Massachusetts-Waltham-400-2 Totten Pond Road Lease - 400/460 Totten Road LP and Lycos Inc.
L E A S E
THIS INSTRUMENT IS A LEASE, dated as of January 30, 1998, in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
space in the building (the "Building") located at 400-2 Totten Pond Road,
Waltham, Massachusetts. The parties to this instrument hereby agree with each
other as follows:
ARTICLE 1
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BASIC LEASE PROVISIONS
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1.1 INTRODUCTION. The following set forth basic data and, where appropriate,
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constitute definitions of the terms hereinafter listed.
1.2 BASIC DATA.
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Landlord: 400/460 Totten Pond Road Limited Partnership, a Delaware
limited partnership.
Landlord's Original Address: c/o Leggat McCall Properties, L.P., 10 Post
Office Square, Boston, MA 02109.
Tenant: LYCOS, INC., a Delaware corporation.
Tenant's Original Address: 500 Old Connecticut Path, Framingham,
Massachusetts.
Guarantor: None.
Basic Rent: Subject to the provisions of Sections 3.1 and 4.1, (i) for
the period commencing on the earliest Rent Commencement Date and expiring on the
day immediately preceding the first anniversary of the Area B Rent Commencement
Date of the entire Premises, as determined in accordance with Section 4.2,
$1,852,039.35 ($24.15 per square foot of Premises Rentable Area) per annum, (ii)
for the next twelve (12) months, $1,871,211.60 ($24.40 per square foot of
Premises Rentable Area) per annum, (iii) for the next twelve (12) months,
$1,890,383.85 ($24.65 per square foot of Premises Rentable Area) per annum, (iv)
for the next twelve (12) months, $1,909,556.10 ($24.90 per square foot of
Premises Rentable Area) per annum, and (v) for the remainder of the Initial
Term, $1,928,728.35 ($25.15) per square foot of Premises Rentable Area) per
annum, as all of the same may be adjusted and/or abated pursuant to Sections 3.2
and 12.1.
Premises Rentable Area: Agreed to be 76,689 square feet.
Permitted Uses: Executive or professional offices, of the type generally
found in first-class office buildings in the suburban Boston area, and customary
ancillary uses, subject to the provisions of Section 5.1(a).
Escalation Factor: With respect to (i) Park Costs (as defined in Exhibit
OC), 27%, (ii) 400 Costs, 50%, and (iii) Building Costs, 100%.
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Initial Term: The period commencing on the Commencement Date and expiring
at the close of the day immediately preceding the fifth anniversary of the Area
B Rent Commencement Date, as determined in accordance with Section 4.2, except
that if the Commencement Date shall be other than the first day of a calendar
month, the expiration of the Initial Term shall be at the close of the day on
the last day of the calendar month on which such anniversary shall fall, but in
no event later than September 30, 2003.
Security Deposit: Not to exceed $1,466,677.13, and subject to reduction in
accordance with the provisions of Section 14.17. As of the date of execution
hereof by Tenant, according to the formula set forth in Section 14.17 and base
upon Tenant's current financial condition, the required security deposit is
$325,928.25.
Base Operating Expenses: The actual Operating Expenses (as that term is
defined and determined in accordance with Section 9.1 and Exhibit OC) incurred
for the calendar year ending December 31, 1998, exclusive of (i) any operating
subsidies for the Cafeteria, and (ii) the cost of utilities provided to the
Building and the surrounding areas of the Property.
Base Taxes: The actual Taxes assessed with respect to the fiscal year
ending June 30, 1999, as the same may be reduced by the amount of any abatement,
determined in accordance with Section 8.1.
Broker: Lynch, Murphy Walsh & Partners, Inc., and Leggat McCall Properties
Management, L.P.
1.3 ADDITIONAL DEFINITIONS.
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Agent: Leggat McCall Properties Management, L.P., 460 Totten Pond Road,
Waltham, MA, Attn: Property Manager, or such other person or entity from time
to time designated by Landlord.
Business Days: All days except Saturday, Sunday, New Year's Day, Martin
Luther King Day, President's Day, Patriots' Day, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day (and the
following day when any such day occurs on Sunday).
Commencement Date: As determined in Section 4.1.
Default of Tenant: As defined in Section 13.1.
Escalation Charges: The amounts prescribed in Sections 8.1 and 9.2.
Extended Term: As defined in Section 15.1.
Fair Market Rental Value: As determined in accordance with Section 17.1.
Force Majeure: Collectively and individually, strike or other labor
trouble, fire or other casualty, governmental preemption of priorities or other
controls in connection with a national or other public emergency or shortages of
fuel, supplies or labor resulting therefrom, or any other cause, whether similar
or dissimilar, beyond Landlord's reasonable control.
Initial Public Liability Insurance: $3,000,000 per occurrence/$5,000,000
aggregate (combined single limit) for property damage, bodily injury or death.
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Landlord's Work: As defined in Section 4.1.
Operating Expenses: As determined in accordance with Section 9.1 and
Exhibit OC.
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Operating Year: As defined in Section 9.1.
Premises: Subject to Sections 2.2 and 3.2, the entire ground, second,
third and fourth floors of the Building.
Property: The Building and the land parcel on which it is located
(including adjacent sidewalks).
Tax Year: As defined in Section 8.1.
Taxes: As determined in accordance with Section 8.1.
Tenant's Removable Property: As defined in Section 5.2.
Term of this Lease: The Initial Term and any extension thereof in
accordance with the provisions hereof.
TPR Properties: Properties owned by Landlord or an affiliate of Landlord
and currently known as 400-1, 400-2 and 460 Totten Pond Road, Waltham,
Massachusetts.
ARTICLE 2
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PREMISES AND APPURTENANT RIGHTS
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2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for the
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Term of this Lease and upon the terms and conditions hereinafter set
forth, and Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
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appurtenant to the Premises, the non-exclusive right to use, and permit
its invitees to use in common with others, public or common walkways
necessary for access to the Building; but such rights shall always be
subject to reasonable rules and regulations from time to time established
by Landlord pursuant to Section 14.7 and to the right of Landlord to
designate and change from time to time areas and facilities so to be used.
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(b) Excepted and excluded from the Premises are the structural elements of
the Building, including without limitation the roof, exterior walls,
foundations and exterior windows (except the inner surface thereof), and
any space in the Premises used for shafts, stacks, pipes, conduits, fan
rooms, ducts, electric or other utilities, sinks or other Building
facilities, but the exterior entry doors (and related glass and finish
work), interior partitions and doors, hung ceilings and lobby areas are a
part thereof. Landlord shall have the right to place in the Premises (but
in such manner as to minimize to the extent reasonably practicable
interference with Tenant's use of the Premises) interior storm windows,
utility lines, equipment, stacks, pipes, conduits, ducts and the like.
Landlord shall notify Tenant in advance of the installation of any such
utility lines, stacks, pipes, conduits, ducts and the like so as to
minimize any adverse impact on Tenant's business operations. In addition,
but subject to Tenant's reasonable security restrictions set forth in
Exhibit TS, Landlord and its agents, employees and contractors shall have
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the right to pass through that portion of the Premises located on the
ground floor of the Building to gain access to the basement of the
Building. In the event that Tenant shall install any hung ceilings or
walls in the Premises, Tenant shall install and maintain, as Landlord may
require, proper access panels therein to afford access to any facilities
above the ceiling or within or behind the walls.
(c) Tenant shall also have the right (subject to reasonable rules and
regulations from time to time established by Landlord) to use, on an non-
exclusive, unreserved basis, up to four parking spaces located on the
Property for each 1,000 square feet of Premises Rentable Area. Landlord
shall not be responsible for policing the parking areas or for restricting
access thereto by parties other than tenants of Landlord's buildings. Such
spaces shall be used for private passenger automobiles only, and not for
delivery trucks or other like vehicles.
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ARTICLE 3
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BASIC RENT; LANDLORD'S USE OF SPACE
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3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
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Landlord, commencing on the Commencement Date without offset, abatement
(except as provided in Section 12.1), deduction or demand, the Basic Rent.
Such Basic Rent shall be payable in equal monthly installments, in
advance, on the first day of each and every calendar month during the Term
of this Lease, to Landlord at P.O. Box 3737, Boston, MA 02241-3737, or at
such other place as Landlord shall from time to time designate by notice,
in lawful money of the United States. In the event that any installment of
Basic Rent is not paid within five (5) Business Days of when due, Tenant
shall pay, in an addition to any charges under Section 14.18, at
Landlord's request an administrative fee equal to 5% of the overdue
payment. Landlord and Tenant agree that all amounts due from Tenant under
or in respect of this Lease, whether labeled Basic Rent, Escalation
Charges, additional charges or otherwise, shall be considered as rental
reserved under this Lease for all purposes, including without limitation
regulations promulgated pursuant to the Bankruptcy Code, and including
further without limitation Section 502(b) thereof.
(b) Basic Rent for any partial month shall be pro-rated on a daily basis,
and if the first day on which Tenant must pay Basic Rent shall be other
than the first day of a calendar month, the first payment which Tenant
shall make to Landlord shall be equal to a proportionate part of the
monthly installment of Basic Rent for the partial month from the first day
on which Tenant must pay Basic Rent to the last day of the month in which
such day occurs, plus the installment of Basic Rent for the succeeding
calendar month.
ARTICLE 4
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COMMENCEMENT AND CONDITION
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4.1 ACCESS AND COMMENCEMENT DATES. (a) Landlord and Tenant acknowledge that
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two different Areas (described in paragraph (c) below) of the Premises,
Area A and Area B, are being delivered to, and accepted by, Tenant at
different times. As provided in Section 5.2, Tenant may desire to perform
Tenant's Work therein to make the Premises more acceptable for Tenant's
occupancy. Tenant may have access to Area A immediately upon execution of
this Lease. The date on which Tenant first occupies all or any portion of
Area A shall be the Commencement Date. The expiration of the Initial Term
shall be based on the Area B Rent Commencement Date, which Date cannot be
established with certainty as of the date hereof (but such expiration
shall in no event be later than September 30, 2003). Tenant shall not be
required to pay Basic Rent or Escalation Charges on account of Area A
prior to the "Area A Rent Commencement Date," as hereafter defined.
However, Tenant shall pay amounts due on account of utilities furnished to
Area A during any occupancy.
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(b) Tenant acknowledges that Area B is currently occupied by an existing
tenant, Molten Metal Technologies, Inc. ("Molten"), which is scheduled to
vacate Area B on or before June 15, 1998. If Molten vacates Area B and
delivers possession thereof to Landlord before June 15, 1998, Landlord
shall so advise Tenant and Tenant shall have access to Area B for the
purpose of performing Tenant's Work therein. Tenant may elect to accept
possession of different portions of Area B at different times, and Tenant
shall not be required to pay Basic Rent or Escalation Charges with respect
to Area B until the Area B Rent Commencement Date; however, Tenant shall
pay amounts due on account of utilities furnished to Area B during any
occupancy. If Molten does not vacate Area B before June 15, 1998, then
Landlord shall so advise Tenant and Tenant's access to Area B shall be
delayed until the day after the day on which Molten delivers possession of
Area B to Landlord. In the event that for any reason Landlord is unable to
deliver possession of Area B to Tenant on or before July 16, 1998, then
for each day thereafter that Landlord is unable so to deliver possession
to Tenant, Tenant shall be granted one (1) day's credit of Basic Rent
allocable to Area B.
(c) The Premises contain 76,689 square feet of Premises Rentable Area. It
is contemplated that Tenant will be able to have access to the Premises
according to the following schedule:
PROPOSED ACCESS DATE FLOOR SQUARE FEET
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The date hereof First 1,414
("Area A") Third 20,327
Fourth 20,327
June 16, 1998 First 15,417
("Area B") Second 19,204
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76,689
Areas A and B are shown on Exhibit FP hereto. Although the Commencement
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Date will occur on the date on which Tenant first occupies any Area of the
Premises for any purpose (including without limitation the performance of
Tenant's Work, as hereinafter provided), it is understood and agreed that,
until the date on which Tenant occupies any portion of Area B, the
definition of "Premises" will include only Area A. Tenant shall be
required to pay Basic Rent, Escalation Charges and all other charges
hereunder for Area A as of that day (the "Area A Rent Commencement Date")
which is the first to occur of (i) the first day on which Tenant occupies
any portion of Area A for the conduct of Tenant's business, and (ii) March
1, 1998. Tenant shall be required to pay Basic Rent, Escalation Charges
and all other charges hereunder for Area B as of that day (the "Area B
Rent Commencement Date") which is the first to occur of (i) the first day
on which Tenant occupies any portion of Area B for the conduct of Tenant's
business, and (ii) June 16, 1998 (or such later date on which Landlord
shall first deliver possession of Area B to Tenant as hereinabove
provided). If Landlord has not delivered possession of Area B to Tenant on
or before June 15, 1998, the Area B Rent Commencement Date shall occur on
June 16, 1998, regardless of whether Tenant shall have elected to accept
possession of all or any portion thereof. If prior to June 16, 1998 Tenant
occupies less than all of Area B for the conduct of Tenant's business,
then the Basic Rent and Escalation Charges for Area B shall be prorated on
the basis of square footage so occupied.
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4.2 CONDITION OF PREMISES. The Premises are being leased in their condition AS
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IS WITHOUT REPRESENTATION OR WARRANTY by Landlord (it being agreed that
the foregoing shall not derogate from Landlord's repair obligations set
forth in Section 7.1 hereof), provided that Landlord represents that as of
the date hereof, the mechanical, electrical and plumbing systems located
in and serving the Premises are in good working order and condition.
Tenant acknowledges that it has inspected the Premises and has found the
same satisfactory for their intended uses.
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ARTICLE 5
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USE OF PREMISES
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5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
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occupied by Tenant only for Permitted Uses specifically excluding, without
limitation, use for medical, dental, governmental, utility company or
employment agency offices.
(b) Tenant agrees to conform to the following provisions during the Term
of this Lease:
(i) Tenant shall cause all freight to be delivered to or removed from
the Premises in accordance with reasonable rules and regulations
established by Landlord therefor;
(ii) Tenant will not place on the exterior of the Premises (including
both interior and exterior surfaces of doors and interior surfaces of
windows) or on any part of the Building outside the Premises, any
signs, symbol, advertisement or the like visible to public view
outside of the Premises. Notwithstanding the foregoing, Landlord
agrees that, so long as Tenant leases not less than fifty-one percent
(51%) of Premises Rentable Area, Tenant shall have the right to place
two (2) signs bearing Tenant's name and logo, on the exterior of the
Building, provided that (i) Tenant shall comply with all applicable
laws, regulations and ordinances and shall obtain at its expense any
necessary permits or approvals, and (ii) Landlord shall have first
approved detailed plans and specifications therefor, which shall show,
at a minimum, the size and style of such sign, the materials to be
used, and the method of affixation. Tenant shall remove such signs
(and repair any damage arising from such signs) upon the request of
Landlord at the expiration or earlier termination of this Lease, or if
Tenant shall cease to lease more than fifty-one percent (51%) of
Premises Rentable Area. In addition, Landlord agrees to maintain at
its expense a monument sign at the driveway entrance to the business
park of which the Building is a part, on which will be placed Tenant's
name (as well as the names of other tenants, if Landlord so chooses)
and the location of the Premises. Tenant's name signage on such
monument sign will not be entitled to a priority of placement or
visibility over those of other tenants;
(iii) Tenant shall not perform any act or carry on any practice which
may injure the Premises, or any other part of the Building, or cause
any offensive odors or loud noise or constitute a nuisance or a menace
to any other tenant or tenants or other persons;
(iv) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and
regulations, including without limitation the Americans With
Disabilities Act of 1990; and
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(v) Tenant (or its permitted sublessees or assignees) shall
continuously throughout the Term of this Lease occupy the Premises for
Permitted Uses.
(b) Tenant acknowledges that the first floor of the Building contains a
cafeteria as shown on Exhibit FP (the "Cafeteria"), which Tenant shall
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operate during the Term of this Lease. From and after the Area B
Commencement Date, the Cafeteria shall be operated by Tenant for the sole
use and enjoyment of Tenant and its employees and invitees, and Tenant
shall contract with a reputable and experienced operator of similar
establishments, first approved in writing by Landlord, provided that
Tenant may from time to time elect to change operators, and further
provided that any such replacement operator shall be subject to the
approval of Landlord, which shall not be unreasonably withheld or delayed.
Between the Area A Commencement Date and the Area B Commencement Date,
Tenant may operate the Cafeteria, but shall allow employees of Molten to
use the same in common with Tenant. Tenant acknowledges that the Cafeteria
contains furniture and kitchen and operating equipment (described on
Exhibit KE), which is and shall remain the property of Landlord. Tenant
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shall during the Term of this Lease be responsible for maintaining all
such furniture and equipment in good and serviceable condition and repair,
including without limitation repairing (but not replacing) the same if and
as necessary. Provided that Tenant has properly maintained and repaired
such equipment, Landlord shall be responsible for replacing the same if
and as necessary.
(c) Tenant acknowledges that Area B also contains a fitness facility (the
"Gym") as shown on Exhibit FP, which Tenant's employees may use during the
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Term of this Lease. From and after the Area B Commencement Date, the Gym
shall be for the sole use and enjoyment of Tenant and its employees and
invitees and the use and occupancy of the Gym by Tenant and its employees
and invitees shall be at the sole risk of Tenant and/or such employees and
invitees, and Landlord shall have no risk or obligation therefor. Except
to the extent that the same arises from the negligent or wrongful act or
omission of Landlord or its agents or contractors, Tenant expressly (i)
releases Landlord, Landlord's mortgagee(s) from time to time, Landlord's
Agent and their respective officers, directors, agents, employees and
contractors, and each of them, of and from any and all damage, liability,
responsibility, claims, counterclaims and causes of action arising
directly or indirectly from or as a result of any bodily injury, property
damage or death in connection with any use of the Gym; and (ii) agrees to
indemnify and hold Landlord and each such released person(s) harmless from
and against any loss, cost, damage or expense (including without
limitation reasonable attorneys' fees) suffered by Landlord or any such
released person(s) as a result of any use or occupancy of the Gym. As an
ongoing condition to Landlord's permission to Tenant's use of the Gym,
Tenant covenants with Landlord to maintain at all times a list of persons
who are using, or who have requested permission to use, the Gym, and to
keep on file for Landlord's inspection a duly executed and witnessed
release and indemnification agreement from each such person, in the form
attached hereto as Exhibit REL, or in such other form as Landlord may from
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time to time approve or require. Tenant acknowledges that the Gym contains
furniture and exercise equipment (described on Exhibit GE), which is and
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shall remain the property of Landlord. Tenant shall during the Term of
this Lease be responsible for maintaining all such furniture and equipment
in good and serviceable condition and repair, including without limitation
repairing (but not replacing) the same if and as necessary.
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5.2 INSTALLATIONS AND ALTERATIONS BY TENANT. (a) Tenant shall make no
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alterations, additions (including, for the purposes hereof, wall-to-wall
carpeting), or improvements in or to the Premises (including any
improvements necessary for Tenant's initial occupancy of the Premises)
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed with respect to non-structural
alterations, additions and improvements that do not affect the Building's
electrical, plumbing or mechanical systems. Any such alterations,
additions or improvements shall be in accordance with complete plans and
specifications meeting the requirements set forth in the rules and
regulations from time to time in effect and approved in advance by
Landlord. Such work shall (i) be performed in a good and workmanlike
manner and in compliance with all applicable laws, (ii) be made at
Tenant's sole cost and expense and in such a manner as Landlord may from
time to time reasonably designate, (iii) be made only in accordance with
the rules and regulations from time to time in effect with respect
thereto, and (iv) become part of the Premises and the property of
Landlord. If any alterations or improvements shall involve the removal of
fixtures, equipment or other property in the Premises which are not
Tenant's Removable Property, such fixtures, equipment or property shall be
promptly replaced by Tenant at its expense with new fixtures, equipment or
property of like utility and of at least equal quality.
(b) All articles of personal property and all business fixtures, machinery
and equipment and furniture owned or installed by Tenant solely at its
expense in the Premises ("Tenant's Removable Property") shall remain the
property of Tenant and may be removed by Tenant at any time prior to the
expiration of this Lease, provided that Tenant, at its expense, shall
repair any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any labor
or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for any such labor or materials shall attach
to or affect the reversion or other estate or interest of Landlord in and
to the Premises. To the maximum extent permitted by law, before such time
as any contractor commences to perform work on behalf of Tenant, such
contractor (and any subcontractors) shall furnish a written statement
acknowledging the provisions set forth in the prior clause. Whenever and
as often as any mechanic's lien shall have been filed against the Property
based upon any act or interest of Tenant or of anyone claiming through
Tenant, Tenant shall forthwith take such action by bonding, deposit or
payment as will remove or satisfy the lien.
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(d) Notwithstanding the foregoing, Landlord acknowledges that Tenant may
desire to make certain alterations or improvements in the Premises from
time to time to make the same more suitable for Tenant's occupancy
("Tenant's Work"). Such alterations or improvements may include tenant
improvements to the Premises, and installation of fixtures (excluding
furniture and equipment) in the Premises. All such Work shall be performed
in a good and workmanlike manner, using first quality materials of recent
manufacture, and shall be undertaken by Tenant in strict accordance with
the applicable requirements of this Lease, and in accordance with
applicable laws, codes, ordinances, permit or license conditions and
regulations. As provided elsewhere in this Section 5.2, Tenant shall first
prepare full plans and specifications reflecting such Tenant's Work, and
shall submit the same to Landlord for review and approval prior to
commencing any such Work. Landlord's approval thereof will not be
unreasonably delayed or withheld. Each contractor retained by Tenant to
perform Tenant's Work shall be subject to Landlord's prior review and
approval, which will not be unreasonably delayed or withheld. With respect
to any Tenant's Work that is completed in accordance with such
requirements, Landlord shall make a contribution ("Landlord's
Contribution") toward the actual cost thereof in an amount equal to the
lesser of such actual cost or Four Dollars ($4.00) per square foot of
Premises Rentable Area. Payments on account of Landlord's Contribution
shall be made from time to time but not more frequently than monthly,
against requisitions by Tenant, which shall specify in reasonable detail
the work done and materials supplied, and shall be accompanied by
receipted invoices showing the actual cost thereof, and lien waivers
therefor. Any such requisition shall be presented to Landlord for payment.
Landlord shall have no obligation to make any advance on account of
Landlord's Contribution (i) to reimburse architectural, engineering or
legal fees or expenses (or other so-called "soft" costs of construction),
or (ii) if there exists any Default of Tenant or any event or circumstance
which, with the giving of notice or the passage of time, or both, would
constitute a Default of Tenant, it being agreed that Landlord may apply
any payment of Landlord's Contribution toward curing such Default, or
(iii) for Tenant's Work completed after the fourth anniversary of the
first Commencement Date (unless, prior to such fourth anniversary, Tenant
shall have validly extended the Term of this Lease for the Extended Term).
(e) In the course of any work being performed by Tenant (including without
limitation the "field installation" of any Tenant's Removable Property),
Tenant agrees to use labor compatible with that being employed by Landlord
for work in or to the Building or other buildings owned by Landlord or its
affiliates (which term, for purposes of this Lease, shall include, without
limitation, entities which control or are under common control with
Landlord, or which are controlled by Landlord or, if Landlord is a
partnership, by any partner of Landlord) and not to employ or permit the
use of any labor or otherwise take any action which might result in a
labor dispute involving personnel providing services in the Building
pursuant to arrangements made by Landlord.
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ARTICLE 6
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ASSIGNMENT AND SUBLETTING
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6.1 PROHIBITION. (a) Except as expressly permitted in this Article 6, Tenant
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covenants and agrees that whether voluntarily, involuntarily, by operation
of law or otherwise neither this Lease nor the term and estate hereby
granted, nor any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred and that neither the Premises
nor any part thereof will be encumbered in any manner by reason of any act
or omission on the part of Tenant, or used or occupied or permitted to be
used or occupied, by anyone other than Tenant, or for any use or purpose
other than a Permitted Use, or be sublet (which term, without limitation,
shall include granting of concessions, licenses and the like) in whole or
in part, or be offered or advertised for assignment or subletting. Without
limiting the foregoing, any agreement pursuant to which: (x) Tenant is
relieved from the obligation to pay, or a third party agrees to pay on
Tenant's behalf, all or any portion of Basic Rent, Escalation Charges or
other charges due under this Lease; and/or (y) a third party undertakes or
is granted the right to assign or attempt to assign this Lease or sublet
or attempt to sublet all or any portion of the Premises, shall for all
purposes hereof be deemed to be an assignment of this Lease and subject to
the provisions of this Article 6. Unless Tenant shall be a corporation
whose stock is publicly traded on the New York or American Stock Exchange,
or on the NASDAQ system or another nationally recognized securities
exchange that is regulated by the Securities and Exchange Commission, the
provisions of this paragraph (a) shall apply to a transfer (by one or more
transfers) of twenty percent (20%) or more of the stock or partnership
interests or other evidences of ownership of Tenant as if such transfer
were an assignment of this Lease.
(b) The provisions of paragraph (a) shall not apply to either:
transactions with an entity into or with which Tenant is merged or
consolidated, or to which substantially all of Tenant's assets are
transferred; or transactions with any entity which controls or is
controlled by Tenant or is under common control with Tenant; provided that
in either such event:
(i) the successor to Tenant has a net worth computed in accordance
with generally accepted accounting principles consistently applied at
least equal to the greater of (1) the net worth of Tenant immediately
prior to such merger, consolidation or transfer, or (2) the net worth
of Tenant herein named on the date of this Lease,
(ii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least 10 days prior to the effective date of
any such transaction, and
(iii) the assignee agrees directly with Landlord, by written
instrument in form satisfactory to Landlord, to be bound by all the
obligations of Tenant hereunder including, without limitation, the
covenant against further assignment and subletting.
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(c) Any consent by Landlord to a particular subletting or occupancy shall
not in any way diminish the prohibition stated in paragraph (a) of this
Section 6.1 or the continuing liability of the original named Tenant. No
assignment or subletting hereunder shall relieve Tenant from its
obligations hereunder and Tenant shall remain fully and primarily liable
therefor. No such assignment, subletting, or occupancy shall affect or be
contrary to Permitted Uses. Any consent by Landlord to a particular
assignment, subletting or occupancy shall be revocable, and any
assignment, subletting or occupancy shall be void ab initio, if the same
shall fail to require that such assignee, subtenant or occupant agree
therein to be independently bound by and upon all of the covenants,
agreements, terms, provisions and conditions set forth in this Lease on
the part of Tenant to be kept and performed.
6.2 CONSENT TO SUBLEASE. Notwithstanding the prohibition set forth in Section
--------------------
6.1(a), in the event that Tenant shall desire to enter into any sublease
of the Premises or any portion thereof, Tenant shall notify Landlord
thereof, and (i) shall identify the proposed subtenant, (ii) shall state
the proposed terms and conditions thereof, and (iii) shall identify the
space proposed to be sublet. Provided that Landlord cannot or will not
provide to such subtenant, within thirty (30) days after the proposed
effective date of such sublease, reasonably comparable space in one of the
TPR Properties on substantially comparable terms and conditions, then
Landlord shall not withhold its consent to the subletting requested by
Tenant, on the further conditions that:
(i) The business of each proposed subtenant and its use of the
Premises shall: (A) be consistent with the Permitted Uses; (B) in
Landlord's good faith judgment, be in keeping with the standards of
the Building and the surrounding office buildings; and (C) not violate
any "exclusive use" right or other similar restriction theretofore
granted to or in favor of any other tenant or occupant of any other
building owned or operated by Landlord or any affiliate of Landlord.
(ii) The proposed subtenant shall, in Landlord's reasonable judgment,
be of good business character and reputation.
(iii) Neither the proposed subtenant, nor any person who directly or
indirectly, controls, is controlled by, or is under common control
with, the proposed subtenant or any person who controls the proposed
subtenant, shall be a government (or subdivision or agency thereof).
In addition, neither the proposed subtenant, nor any person who
directly or indirectly, controls, is controlled by, or is under common
control with, the proposed subtenant or any person who controls the
proposed subtenant, shall be an occupant of any TPR Property on the
date such consent request is delivered, unless within ten (10) days
after Landlord's receipt of Tenant's request for Landlord's consent,
Landlord shall have notified Tenant that Landlord is unwilling or
unable to accommodate such occupant's reasonable space requirements in
another TPR Property;
(iv) The form of the proposed sublease shall be reasonably
satisfactory to Landlord and shall comply with the applicable
provisions of this Article 6;
(v) No proposed sublease shall cover less than 2,500 square feet of
Premises Rentable Area or have a term of less than one (1) year; and
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(vi) not later than thirty (30) days prior to the proposed
commencement of such sublease, Landlord shall have received
information reasonably sufficient to determine compliance with the
foregoing conditions.
Moreover, notwithstanding such sublease, Tenant shall in all cases
remain fully and primarily liable hereunder.
6.3 EXCESS PAYMENTS. In the event that Tenant shall enter into one or more
----------------
subleases pursuant to Section 6.2, if the rent and other sums (including
without limitation the fair value of any services provided by such
subtenant for Tenant) on account of any such sublease exceed the Basic
Rent and Escalation Charges allocable to that portion of the Premises
subject to such sublease, plus actual out-of-pocket third party legal and
brokerage expenses reasonably incurred and actually paid in connection
with such sublease (such expenses to be pro-rated evenly over the term of
such sublease, including any exercised options to extend or renew), Tenant
shall pay to Landlord, as an additional charge, 50% of such excess, such
amount to be paid monthly with payments by Tenant of Basic Rent hereunder.
6.4 TERMINATION. Notwithstanding any other provision of this Article VI to the
------------
contrary, if and at each such time as Tenant shall intend to enter into
any sublease, which sublease either (i) covers all or substantially all of
the Premises, or (ii) covers less than all or substantially all of the
Premises, but covers at least 2,500 square feet of Premises Rentable Area
and has a term (including options to extend or renew) covering all or
substantially all of the remainder of the Term of this Lease (excluding
any extension options with respect to which Tenant shall not then have
exercised its options), then Tenant shall give Landlord notice of such
intent not earlier than sixty (60), and not later than thirty (30), days
prior to the effective date of such proposed sublease, and Landlord may
then elect to terminate this Lease (if less than all or substantially all
of the Premises are covered by such sublease, then such termination shall
affect only that portion of the Premises proposed to be covered by such
sublease) by giving notice to Tenant of such election not later than
thirty (30) days after receipt of Tenant's notice and, upon the giving of
such notice by Landlord, this Lease shall terminate with respect to such
portion thirty (30) days after the giving of such notice by Landlord with
the same force and effect as if such date were the date originally set
forth herein as the expiration date hereof. If Landlord shall elect to
terminate this Lease with respect to any portion of the Premises as
hereinabove provided, then from and after the effective date of such
termination, the definitions of Basic Rent, Premises, Premises Rentable
Area and Escalation Factor shall be adjusted to reflect that portion of
the Premises that remains subject to this Lease after such termination.
6.5 MISCELLANEOUS. (a) Any sublease consented to by Landlord shall be
--------------
expressly subject and subordinate to all of the covenants, agreements,
terms, provisions and conditions contained in this Lease. Any proposed
sub-sublease or proposed assignment of a sublease shall be subject to the
provisions of this Article. Tenant shall reimburse Landlord on demand, as
an additional charge, for any out-of-pocket costs (including reasonable
attorneys' fees and expenses, not to exceed $2,500) incurred by Landlord
in connection with any actual or proposed assignment or sublease, whether
or not consummated, including the costs of making investigations as to the
acceptability of the proposed assignee or subtenant. Any sublease to
which Landlord gives its consent shall not be valid or binding on Landlord
unless and until Tenant and the sublessee execute a consent agreement in
form and substance reasonably satisfactory to Landlord.
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(b) Notwithstanding any sublease, or any amendments or modifications
subsequent thereto, Tenant will remain fully liable for the payment of
Basic Rent, Escalation Charges and other charges and for the performance
of all other obligations of Tenant contained in this Lease. Any act or
omission of any subtenant, or of anyone claiming under or through any
subtenant, that violates any of the obligations of this Lease shall be
deemed a violation of this Lease by Tenant.
(c) The consent by Landlord to any sublease shall not relieve Tenant or
any person claiming through or under Tenant of the obligation to obtain
the consent of Landlord, pursuant to the provisions of this Article, to
any subsequent sublease.
(d) With respect to each and every sublease authorized by Landlord under
the provisions of this Article, it is further agreed that any such
sublease shall provide that: (i) the term of the sublease must end no
later than one day before the last day of the Term of this Lease; (ii) no
sublease shall be valid, and no subtenant shall take possession of all or
any part of the Premises until a fully executed counterpart of such
sublease has been delivered to Landlord; (iii) each sublease shall provide
that it is subject and subordinate to this Lease; (iv) Landlord may
enforce the provisions of the sublease, including collection of rents; (v)
in the event of termination of this Lease or reentry or repossession of
the Premises by Landlord, Landlord may, at its option, take over all of
the right, title and interest of Tenant, as sublessor, under such
sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord but nevertheless Landlord shall not (A) be liable for any
previous act or omission of Tenant under such sublease; (B) be subject to
any defense or offset previously accrued in favor of the subtenant against
Tenant; or (C) be bound by any previous modification of such sublease made
without Landlord's written consent or by any previous prepayment of more
than one month's rent.
6.6 ACCEPTANCE OF RENT. If this Lease is assigned, whether or not in violation
-------------------
of the provisions of this Lease, Landlord may collect rent and other
charges from the assignee. If all or any part of the Premises are sublet,
whether or not in violation of this Lease, Landlord may collect rent and
other charges from the subtenant. In either event, Landlord may apply the
net amount collected to payment of Basic Rent, Escalation Charges and
other charges due in respect of this Lease, but no such assignment,
subletting, or collection shall be deemed a waiver of any of the
provisions of this Article, an acceptance of the assignee or subtenant as
a lessee, or a release of Tenant from the performance by Tenant of
Tenant's covenants and obligations under this Lease.
ARTICLE 7
---------
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
------------------------------------------------------
SERVICES TO BE FURNISHED BY LANDLORD
------------------------------------
15
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7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
----------------
Landlord agrees to keep in good order, condition and repair the roof,
exterior walls (including exterior glass) and structure of the Building
(including all plumbing, mechanical and electrical systems, but
specifically excluding any supplemental heating, ventilation or air
conditioning equipment or systems installed by Tenant or at Tenant's
request or as a result of Tenant's requirements in excess of building
standard design criteria), all insofar as they affect the Premises, except
that Landlord shall in no event be responsible to Tenant for the repair of
glass in the Premises, the entry doors (or related glass and finish work)
leading to the Premises, or any condition in the Premises or the Building
caused by any act or neglect of Tenant, its agents, employees, invitees or
contractors. Landlord shall not be responsible to make any improvements or
repairs to the Building other than as expressly in this Section 7.1
provided, unless expressly provided otherwise in this Lease.
(b) Landlord shall never be liable for any failure to make repairs which
Landlord has undertaken to make under the provisions of this Section 7.1
or elsewhere in this Lease, unless Tenant has given notice to Landlord of
the need to make such repairs, and Landlord has failed to commence to make
such repairs within a reasonable time after receipt of such notice, or
Landlord thereafter fails to proceed with reasonable diligence to complete
such repairs.
(c) If Landlord shall be required to make any repairs or alterations to
the Premises to comply with any laws and requirements of public
authorities hereafter in effect, or with any directions, rules or
regulations of governmental agencies having or purporting to have
jurisdiction, and if the cost to Landlord of making such repairs or
alterations, together with the cost of other such repairs or alterations
theretofore required, would exceed an amount equal to twelve months' Basic
Rent in the aggregate, Landlord may (but shall not be required to) elect
to terminate this Lease by giving Tenant notice of its desire to do so,
which notice shall set forth a date not less than thirty days from the
giving of such notice on which this Lease shall terminate with the same
force and effect as if such date were the date originally set forth herein
as the expiration hereof. Tenant may, however, void Landlord's election
to so terminate this Lease by giving Landlord notice, within fifteen days
after the date of Landlord's notice to Tenant, to the effect that Tenant
shall, at Tenant's expense, promptly and diligently cause all such repairs
or alterations to be performed in the Premises, and Tenant shall hold
Landlord harmless from and against any and all costs, expenses, penalties
and/or liabilities (including without limitation reasonable legal fees and
costs) in connection therewith.
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7.2 TENANT'S AGREEMENT. (a) Tenant will keep neat and clean and maintain in
------------------
good order, condition and repair the Premises and every part thereof,
excepting only those repairs for which Landlord is responsible under the
terms of this Lease, reasonable wear and tear of the Premises, and damage
by fire or other casualty or as a consequence of the exercise of the power
of eminent domain; and shall surrender the Premises, at the end of the
Term, in such condition. Tenant acknowledges that Tenant has requested
that Landlord not provide daily cleaning services, on the condition that
Tenant will do so at its own cost and expense. Tenant shall, on or before
the date hereof, enter into and maintain in full force and effect
throughout the Term of this Lease, one or more cleaning contracts with
Prospect Cleaning Company or another reputable contractor(s) first
approved by Landlord, which approval will not be unreasonably withheld or
delayed. Tenant shall pay all sums from time to time due in respect of
such contract(s), and shall provide copies thereof to Landlord on request.
All trash and refuse removed from the Premises shall be placed, treated
and disposed of in accordance with Landlord's rules and regulations from
time to time in effect. Without limitation of any of the foregoing, Tenant
shall continually during the Term of this Lease maintain the Premises in
accordance with all laws, codes and ordinances from time to time in effect
and all directions, rules and regulations of the proper officers of
governmental agencies having jurisdiction, and the standards recommended
by the Boston Board of Fire Underwriters, and shall, at Tenant's expense,
obtain all permits, licenses and the like required by applicable law for
the conduct of Tenant's particular business (it being understood that
Tenant shall not be required to make any changes or improvements to the
Premises in order to comply with requirements applicable to office
buildings generally in the area in which the Property is located). To the
extent that the Premises constitute a "Place of Public Accommodation"
within the meaning of the Americans With Disabilities Act of 1990, Tenant
shall be responsible, subject to the requirements of Section 5.2, for
making the Premises comply with such Act. Notwithstanding the foregoing or
the provisions of Article 12, but subject to the provisions of Section
14.20, to the maximum extent this provision may be enforceable according
to law, Tenant shall be responsible for the cost of repairs which may be
made necessary by reason of damage to the Building caused by any act or
neglect of Tenant, or its contractors or invitees (including any damage by
fire or other casualty arising therefrom) and, if the premium or rates
payable with respect to any policy or policies of insurance purchased by
Landlord or Agent with respect to the Property increases as a result of
payment by the insurer of any claim arising from the any act or neglect of
Tenant, or its contractors or invitees, Tenant shall be pay such increase,
from time to time, within fifteen (15) days after demand therefor by
Landlord, as an additional charge.
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the same
with reasonable dispatch, after such demand (except in the case of an
emergency, in which event Landlord may make such repairs immediately),
Landlord may (but shall not be required to do so) make or cause such
repairs to be made (the provisions of Section 14.18 being applicable to
the costs thereof), and shall not be responsible to Tenant for any loss or
damage whatsoever that may accrue to Tenant's business or possessions by
reason thereof.
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7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon any
----------------------------
floor in the Premises exceeding the floor load per square foot of area
which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all
business machines and mechanical equipment, including safes, which shall
be placed so as to distribute the weight. Business machines and mechanical
equipment shall be placed and maintained by Tenant at Tenant's expense in
settings sufficient, in Landlord's judgment, to absorb and prevent
vibration, noise and annoyance. Tenant shall not move any safe, heavy
machinery, heavy equipment, freight, bulky matter or fixtures into or out
of the Building without Landlord's prior consent, which consent may
include a requirement to provide insurance, naming Landlord as an insured,
in such amounts as Landlord may deem reasonable.
(b) If any such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons
holding a Master Rigger's License to do such work, and that all work in
connection therewith shall comply with applicable laws and regulations.
Any such moving shall be at the sole risk and hazard of Tenant, and Tenant
will exonerate, indemnify and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly
from such moving.
7.4 BUILDING SERVICES. (a) Landlord shall furnish, 24 hours per day, 7 days
-----------------
per week, heating and cooling as normal seasonal changes may require to
provide reasonably comfortable space temperature and ventilation for
occupants of the Premises under normal business operation at an occupancy
of not more than one person per 150 square feet of Premises Rentable Area
and an electrical load not exceeding 3.0 watts per square foot of Premises
Rentable Area. In the event Tenant introduces into the Premises personnel
or equipment which overloads the capacity of the Building system or in any
other way interferes with the system's ability to perform adequately its
proper functions, supplementary systems may, if and as needed, at
Landlord's option (but after consultation with Tenant), be provided by
Landlord, at Tenant's expense.
(b) Landlord shall also provide:
(i) Passenger elevator service from the existing passenger elevator
system.
(ii) Domestic water service (at temperatures supplied by the city in
which the Property is located) for drinking, lavatory and toilet
purposes, and connection to the municipal sewer system.
(iii) Snow and ice removal to the walks, driveways and parking areas
which Tenant is entitled to use under this Lease, and landscaping of
the surrounding grounds.
(iv) Free access to the Premises at all times, subject to security
precautions from time to time in effect, and subject always to
restrictions based on emergency conditions.
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<PAGE>
(c) Landlord shall have no obligation whatsoever to provide any security
for the Premises or the Property. If and to the extent that Tenant desires
to provide security for the Premises or for Tenant's employees and
invitees or their property, Tenant shall be responsible for so doing.
Tenant agrees that, as between Landlord and Tenant, it is Tenant's
responsibility to advise its agents, employees, contractors and invitees
as to the foregoing and as to necessary and appropriate safety
precautions. Without in any way limiting the operation of Article 10
hereof, Tenant, for itself and its agents, employees, contractors and
invitees, hereby expressly waives any claim, action, cause of action or
other right which may accrue or arise against Landlord as a result of any
damage or injury to the person or property of Tenant or any such agent,
invitee, contractor or employee, except to the extent that the same arises
from the negligent act or omission of Landlord or its agents, employees or
contractors, and will indemnify and hold Landlord harmless from and
against any loss, cost, damage or expense suffered by Landlord as a result
of any such claim, action, cause of action or other right.
7.5 UTILITIES. Tenant acknowledges that Basic Rent does not include the cost
---------
of providing any utilities to the Premises and the Property (including
without limitation the cost of providing parking lot and other exterior
lighting and the cost of water for landscaping irrigation on the
Property). Tenant shall pay for all utilities provided separately to the
Premises and, in addition, Tenant shall pay one-half (?) of the cost of
providing parking lot and other exterior lighting and the cost of water
for landscaping irrigation on the Property and the adjacent property on
which 400-1 Totten Pond Road is located. Landlord shall arrange for
Tenant's reasonable and customary requirements for utilities, including,
but not limited to, gas, water, electricity, sewer charges, and the like,
including all utilities necessary for heating and air-conditioning the
Building and the Premises, and Tenant shall reimburse Landlord for the
costs and expenses incurred in connection therewith, as an additional
charge, within thirty (30) days after receipt of Landlord's invoice
therefor. Landlord shall have no liability for interruption or
unavailability of any utility or service. Tenant shall purchase and
install, at its expense, all lamps, tubes, bulbs, starters and ballasts
for the Premises, and shall operate the utility systems for only their
intended uses, consistent with accepted building operating standards.
ARTICLE 8
---------
REAL ESTATE TAXES
-----------------
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this
----------------------------------------
Article, the term "Tax Year" shall mean the twelve-month period commencing
on the July 1 immediately preceding the Commencement Date and each twelve-
month period thereafter commencing during the Term of this Lease; and the
term "Taxes" shall mean an amount equal to fifty percent (50%) of real
estate taxes assessed with respect to the Property and 400-1 Totten Pond
Road for any Tax Year commencing with the Tax Year ending on June 30,
1999. If the Property shall hereafter be assessed as a taxable parcel
separate and apart from 400-1 Totten Pond Road, then 100% thereof shall be
included in the definition of "Taxes."
(b) In the event that for any reason, Taxes during any Tax Year commencing
on or after July 1, 1999 shall exceed Base Taxes, Tenant shall pay to
Landlord, as an Escalation Charge, an amount equal to (i) the excess of
Taxes over Base Taxes for such Tax Year, multiplied by (ii) the Escalation
Factor, such amount to be apportioned for any portion of a Tax Year in
which the Commencement Date falls or the Term of this Lease ends.
19
<PAGE>
(c) Estimated payments by Tenant on account of Taxes shall be made,
commencing July 1, 1999, on the first day of each and every calendar month
during the Term of this Lease, in the fashion herein provided for the
payment of Basic Rent. The monthly amount so to be paid to Landlord shall
be sufficient to provide Landlord by the time real estate tax payments are
due with a sum equal to Tenant's required payments, as estimated by
Landlord from time to time, on account of Taxes for the then current Tax
Year. Promptly after receipt by Landlord of bills for such Taxes,
Landlord shall advise Tenant of the amount thereof and the computation of
Tenant's payment on account thereof. If estimated payments theretofore
made by Tenant for the Tax Year covered by such bills exceed the required
payments on account thereof for such Year, Landlord shall credit the
amount of overpayment against subsequent obligations of Tenant on account
of Basic Rent (or refund such overpayment if the Term of this Lease has
ended and Tenant has no further obligation to Landlord); but if the
required payments on account thereof for such Year are greater than
estimated payments theretofore made on account thereof for such Year,
Tenant shall make payment to Landlord within 30 days after being so
advised by Landlord.
8.2 ABATEMENT. If Landlord shall receive any tax refund or reimbursement of
---------
Taxes or sum in lieu thereof with respect to any Tax Year, then out of any
balance remaining thereof after deducting Landlord's expenses reasonably
incurred in obtaining such refund, Landlord shall pay to Tenant, provided
there does not then exist a Default of Tenant of the sort described in
Section 13.1(a)(i), an amount equal to such refund or reimbursement or sum
in lieu thereof (together with Tenant's share of any interest actually
received by Landlord in connection with such abatement) multiplied by the
Escalation Factor; provided, that in no event, shall Tenant be entitled to
receive more than the payments made by Tenant on account of Taxes for such
Tax Year pursuant to paragraph (b) of Section 8.1 or to receive any
payments or abatement of Basic Rent if Taxes for any year are less than
Base Taxes or Base Taxes are abated.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall replace
---------------
the current method of assessment of real estate taxes in whole or part, or
the type thereof, or if additional types of taxes are imposed upon the
Property or Landlord, Tenant agrees that such taxes or other charges shall
be deemed to be, and shall be, Taxes hereunder and Tenant shall pay an
equitable share of the same as an additional charge computed in a fashion
consistent with the method of computation herein provided, to the end that
Tenant's share thereof shall be, to the maximum extent practicable,
comparable to that which Tenant would bear under the foregoing provisions.
(b) If a tax (other than a Federal or State net income tax) is assessed on
account of the rents or other charges payable by Tenant to Landlord under
this Lease, Tenant agrees to pay the same as an additional charge within
ten (10) days after billing therefor, unless applicable law prohibits the
payment of such tax by Tenant.
ARTICLE 9
---------
OPERATING AND UTILITY EXPENSES
------------------------------
9.1 DEFINITIONS. For the purposes of this Article, the following terms shall
-----------
have the following respective meanings:
20
<PAGE>
Operating Year: Each calendar year in which any part of the Term of this
Lease shall fall.
Operating Expenses: aggregate costs or expenses reasonably incurred by
Landlord with respect to the operation, administration, cleaning, repair,
maintenance and management of the Premises and the Property, all as set
forth in Exhibit OC annexed hereto: Tenant acknowledges that the Building
----------
is a part of a larger office park comprising the TPR Properties, and that
some costs of operating the TPR Properties are chargeable to the Building.
If during any portion of any Operating Year for which Operating Expenses
are being computed, less than all of the TPR Properties are occupied by
tenants or if Landlord was not supplying all tenants with the services
being supplied to Tenant hereunder, actual Operating Expenses incurred
shall be reasonably extrapolated by Landlord on an item-by-item basis to
the reasonable Operating Expenses that would have been incurred if the TPR
Properties were fully occupied and such services were being supplied to
all tenants, and such extrapolated Operating Expenses shall, for all
purposes hereof, be deemed to be the Operating Expenses for such Operating
Year.
9.2 TENANT'S PAYMENTS. (a) In the event that, for any Operating Year,
-----------------
Operating Expenses shall exceed Base Operating Expenses, Tenant shall pay
to Landlord, as an Escalation Charge, an amount equal to (i) such excess
Operating Expenses multiplied by (ii) the Escalation Factor, such amount
to be apportioned for any portion of an Operating Year in which the
Commencement Date falls or the Term of this Lease ends.
(b) Estimated payments by Tenant on account of Operating Expenses shall be
made, commencing January 1, 1999, on the first day of each and every
calendar month during the Term of this Lease, in the fashion herein
provided for the payment of Basic Rent. The monthly amount so to be paid
to Landlord shall be sufficient to provide Landlord by the end of each
Operating Year a sum equal to Tenant's required payments, as estimated by
Landlord from time to time during each Operating Year, on account of
Operating Expenses for such Operating Year. After the end of each
Operating Year, Landlord shall submit to Tenant a reasonably detailed
accounting of Operating Expenses for such Year, and Landlord shall certify
to the accuracy thereof. If estimated payments theretofore made for such
Year by Tenant exceed Tenant's required payment on account thereof for
such Year, according to such statement, Landlord shall credit the amount
of overpayment against subsequent obligations of Tenant with respect to
Basic Rent (or refund such overpayment if the Term of this Lease has ended
and Tenant has no further obligation to Landlord); but, if the required
payments on account thereof for such Year are greater than the estimated
payments (if any) theretofore made on account thereof for such Year,
Tenant shall make payment to Landlord within 30 days after being so
advised by Landlord. Landlord shall have the same rights and remedies for
the nonpayment by Tenant of any payments due on account of Operating
Expenses as Landlord has hereunder for the failure of Tenant to pay Basic
Rent.
ARTICLE 10
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INDEMNITY AND PUBLIC LIABILITY INSURANCE
----------------------------------------
21
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10.1 INDEMNITY. (a) Except to the extent that such claims arise from the
---------
negligent or wrongful acts or omissions of Landlord or Landlord's agents
or employees, and without in any way limiting the provisions of Sections
5.1(c) and 7.4(c), Tenant agrees to indemnify and save harmless Landlord
from and against all claims, loss, cost, damage or expense of whatever
nature arising: (i) from any accident, injury or damage whatsoever to any
person, or to the property of any person, occurring in or about the
Premises; (ii) from any accident, injury or damage occurring outside of
the Premises but on the Property where such accident, damage or injury
results or is claimed to have resulted from an act or omission on the part
of Tenant or Tenant's agents or employees or independent contractors; or
(iii) in connection with the conduct or management of the Premises or of
any business therein, or any thing or work whatsoever done, or any
condition created (other than by Landlord or its agents or employees) in
or about the Premises; and, in any case, occurring after the date of this
Lease until the end of the Term of this Lease and thereafter so long as
Tenant is in occupancy of any part of the Premises. This indemnity and
hold harmless agreement shall include indemnity against all losses, costs,
damages, expenses and liabilities incurred in or in connection with any
such claim or proceeding brought thereon, and the defense thereof,
including, without limitation, reasonable attorneys' fees and costs at
both the trial and appellate levels.
(b) Landlord agrees to indemnify and save harmless Tenant from and against
all claims, loss, cost, damage or expense of whatever nature arising from
any accident, injury or damage, to the extent that such accident, damage
or injury results from an act or omission on the part of Landlord or
Landlord's agents or employees and occurring after the date of this Lease
until the end of the Term of this Lease. This indemnity and hold harmless
agreement shall include indemnity against all losses, costs, damages,
expenses and liabilities incurred in or in connection with any such claim
or proceeding brought thereon, and the defense thereof, including, without
limitation, reasonable attorneys' fees and costs at both the trial and
appellate levels.
(c) When any claim of the sort described in paragraphs (a) and (b) above
is the result of the jointly negligent or wrongful act or omission on the
part of the indemnifying party and a third party unrelated to the
indemnifying party (other than the indemnifying party's agents or
employees), then the indemnification obligation shall be in proportion to
the indemnifying party's allocable share of the joint negligence or
wrongful conduct.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force from
--------------------------
the date upon which Tenant first enters the Premises for any reason,
throughout the Term of this Lease, and thereafter so long as Tenant is in
occupancy of any part of the Premises, a policy of commercial general
liability and property damage insurance (including broad form contractual
liability, independent contractor's hazard and completed operations
coverage) under which Tenant is named as an insured and Landlord, Agent
(and such other persons as are in privity of estate with Landlord as may
be set out in a notice from time to time) are named as additional
insureds, and under which the insurer agrees to indemnify and hold
Landlord, Agent and those in privity of estate with Landlord, harmless
from and against all cost, expense and/or liability arising out of or
based upon any and all claims, accidents, injuries and damages set forth
in Section 10.1. Each such policy shall be non-cancelable and non-
amendable with respect to Landlord, Agent and Landlord's said designees
without thirty (30) days' prior notice, shall be written on an
"occurrence" basis, and shall be in at least the amounts of the Initial
Public Liability Insurance specified in Section 1.3 or such greater
amounts as Landlord shall from time to time request, and a duplicate
original thereof shall be delivered to Landlord.
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10.3 TENANT'S RISK. Tenant agrees to use and occupy the Premises and to use
-------------
such other portions of the Property as Tenant is herein given the right to
use at Tenant's own risk. Except to the extent that such claims arise from
the negligent acts or omissions of Landlord or its agents or employees,
neither Landlord nor Landlord's insurers shall have any responsibility or
liability for any loss of or damage to Tenant's Removable Property. Tenant
shall carry "all-risk" property insurance on a "replacement cost" basis,
insuring Tenant's Removable Property and any alterations, additions or
improvements installed by Tenant pursuant to Section 5.2, to the extent
that the same have not become the property of Landlord, and other so-
called improvements and betterments. The provisions of this Section 10.3
shall be applicable from and after the execution of this Lease and until
the end of the Term of this Lease, and during such further period as
Tenant may use or be in occupancy of any part of the Premises or of the
Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent that this agreement
------------------------------
may be effective under applicable law, Tenant agrees that Landlord shall
not be responsible or liable to Tenant, or to those claiming by, through
or under Tenant, for any loss or damage that may be occasioned by or
through the acts or omissions of persons occupying adjoining premises or
any part of the Property adjacent to or connecting with the Premises or
any part of the Property or otherwise.
ARTICLE 11
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LANDLORD'S ACCESS TO PREMISES
-----------------------------
11.1 LANDLORD'S RIGHTS. Landlord and Agent shall have the right, subject to
-----------------
Tenant's reasonable security restrictions set forth in Exhibit TS, to
----------
enter the Premises at all reasonable hours and upon reasonable advance
notice (which need not be in writing, and which need not be given at all
in the event of an emergency) for the purpose of inspecting or making
repairs to the same, and Landlord and Agent shall also have the right,
subject to such restrictions, to make access available at all reasonable
hours to prospective or existing mortgagees, purchasers or tenants of any
part of the TPR Properties.
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ARTICLE 12
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FIRE, EMINENT DOMAIN, ETC.
--------------------------
12.1 ABATEMENT OF RENT. If (a) the Premises shall be damaged by fire or
-----------------
casualty, or (b) the Property is damaged by fire or casualty such that the
Tenant's use of the Premises for the conduct of Tenant's business is
materially and adversely affected, Basic Rent and Escalation Charges
payable by Tenant shall abate proportionately for the period in which, by
reason of such damage, there is substantial interference with Tenant's use
of the Premises, having regard for the extent to which Tenant may be
required to discontinue Tenant's use of all or a portion of the Premises,
but such abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises (excluding any alterations, additions
or improvements made by Tenant pursuant to Section 5.2) to the condition
in which they were prior to such damage. If the Premises shall be
affected by any exercise of the power of eminent domain, Basic Rent and
Escalation Charges payable by Tenant shall be justly and equitably abated
and reduced according to the nature and extent of the loss of use thereof
suffered by Tenant. In no event shall Landlord have any liability for
damages to Tenant for inconvenience, annoyance, or interruption of
business arising from such fire, casualty or eminent domain.
12.2 RIGHTS OF TERMINATION. (a) If the Premises or the Building are
---------------------
substantially damaged by fire or casualty (the term "substantially
damaged" meaning damage of such a character that the same cannot, in
ordinary course, reasonably be expected to be repaired within one hundred
thirty-five (135) days from the time that repair work would commence), or
if any part of the Building is taken by any exercise of the right of
eminent domain, then Landlord shall have the right to terminate this Lease
(even if Landlord's entire interest in the Premises may have been
divested) by giving notice of Landlord's election so to do within sixty
(60) days after the occurrence of such casualty or the effective date of
such taking, whereupon this Lease shall terminate 30 days after the date
of such notice with the same force and effect as if such date were the
date originally established as the expiration date hereof.
b) If Landlord does not elect to terminate this Lease pursuant to
paragraph (a), then Landlord shall obtain from Landlord's architect or
engineer, and deliver to Tenant within forty-five (45) days after the
occurrence of such casualty or the effective date of such taking, as the
case may be, a written and stamped determination and certification as to
such architect's or engineer's opinion as to the time that would
reasonably be required to substantially complete the necessary repair and
restoration of such damage. If such certification reflects that such
damage cannot reasonably be expected to be substantially repaired within
six (6) months from date of commencement of such work, Tenant shall have
the right to terminate this Lease by giving notice to Landlord thereof
within fifteen (15) days after the receipt of such certification (or, if
such certification is not delivered by Landlord, then within 15 days after
the expiration of such 45-day period). This Lease shall cease and come to
an end without further liability or obligation on the part of either party
thirty (30) days after such giving of notice by Tenant.
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12.3 RESTORATION. If this Lease shall not have been terminated pursuant to
-----------
Section 12.2, Landlord shall thereafter use due diligence to restore the
Premises (excluding any alterations, additions or improvements made by
Tenant pursuant to Section 5.2, except those that have been sufficiently
incorporated into the Premises as to become a part thereof and be covered
by Landlord's property damage insurance) to proper condition for Tenant's
use and occupation, provided that Landlord's obligation shall be limited
to the amount of insurance proceeds available therefor. If, for any
reason, such restoration shall not be substantially completed within six
months after the expiration of the 45-day period referred to in Section
12.2 (which six-month period may be extended for such periods of time as
Landlord is prevented from proceeding with or completing such restoration
for any cause beyond Landlord's reasonable control, but in no event for
more than an additional three months), Tenant shall have the right to
terminate this Lease by giving notice to Landlord thereof within thirty
(30) days after the expiration of such period (as so extended) provided
that such restoration is not completed within such period. This Lease
shall cease and come to an end without further liability or obligation on
the part of either party thirty (30) days after such giving of notice by
Tenant unless, within such 30-day period, Landlord substantially completes
such restoration. Such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to complete
such restoration, and time shall be of the essence with respect thereto.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
-----
hereby grants and assigns to Landlord, all rights to recover for damages
to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, and by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and assign
to Landlord, all rights to such damages or compensation, and covenants to
deliver such further assignments and assurances thereof as Landlord may
from time to time request, and Tenant hereby irrevocably appoints Landlord
its attorney-in-fact to execute and deliver in Tenant's name all such
assignments and assurances. Nothing contained herein shall be construed
to prevent Tenant from prosecuting in any condemnation proceedings a claim
for the value of any of Tenant's Removable Property installed in the
Premises by Tenant at Tenant's expense and for relocation expenses,
provided that such action shall not affect the amount of compensation
otherwise recoverable by Landlord from the taking authority.
12.5 LANDLORD'S INSURANCE. Landlord agrees to maintain in full force and
--------------------
effect, during the Term of this Lease, property damage insurance with such
deductibles and in such amounts as may from time to time be carried by
reasonably prudent owners of similar buildings in the area in which the
Property is located, provided that in no event shall Landlord be required
to carry other than fire and extended coverage insurance or insurance in
amounts greater than the actual insurable cash value of the Building
(excluding footings and foundations). Landlord may satisfy such insurance
requirements by including the Property in a so-called "blanket" insurance
policy, provided that the amount of coverage allocated to the Property
shall fulfill the foregoing requirements.
ARTICLE 13
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DEFAULT
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13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this Lease
----------------
any one or more of the following events (herein referred to as a "Default
of Tenant") shall happen:
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(i) Tenant shall fail to pay the Basic Rent, Escalation Charges or
additional charges hereunder when due and such failure shall continue
for five (5) full Business Days after notice to Tenant from Landlord;
or
(ii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or observed
and Tenant shall fail to remedy the same within thirty (30) days after
notice to Tenant specifying such neglect or failure, or if such
failure is of such a nature that Tenant cannot reasonably remedy the
same within such thirty (30) day period, Tenant shall fail to commence
promptly to remedy the same and to prosecute such remedy to completion
with diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of creditors or
shall be adjudicated insolvent, or shall file any petition or answer
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any
present or future Federal, State or other statute, law or regulation
for the relief of debtors (other than the Bankruptcy Code, as
hereinafter defined), or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all
or any substantial part of its properties, or shall admit in writing
its inability to pay its debts generally as they become due; or
(v) An Event of Bankruptcy (as hereinafter defined) shall occur with
respect to Tenant; or
(vi) A petition shall be filed against Tenant under any law (other
than the Bankruptcy Code) seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief
under any present or future Federal, State or other statute, law or
regulation and shall remain undismissed or unstayed for an aggregate
of sixty (60) days (whether or not consecutive), or if any trustee,
conservator, receiver or liquidator of Tenant or of all or any
substantial part of its properties shall be appointed without the
consent or acquiescence of Tenant and such appointment shall remain
unvacated or unstayed for an aggregate of sixty (60) days (whether or
not consecutive); or
26
<PAGE>
(vii) If: (x) Tenant shall fail to pay the Basic Rent, Escalation
Charges, additional charges or other charges hereunder when due or
shall fail to perform or observe any other covenant herein contained
on Tenant's part to be performed or observed and Tenant shall cure any
such failure within the applicable grace period set forth in clauses
(i) or (ii) above; or (y) a Default of Tenant of the kind set forth in
clauses (i) or (ii) above shall occur and Landlord shall, in its sole
discretion, permit Tenant to cure such Default after the applicable
grace period has expired; and a similar failure or Default shall occur
---
more than two (2) times within the next 365 days (whether or not such
similar failure is cured within the applicable grace period);
then in any such case Landlord may terminate this Lease by notice to
Tenant, specifying a date not less than five (5) days after the giving of
such notice on which this Lease shall terminate and this Lease shall come
to an end on the date specified therein as fully and completely as if such
date were the date herein originally fixed for the expiration of the Term
of this Lease, and Tenant will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter provided.
(b) For purposes of clause (a)(v) above, an "Event of Bankruptcy" means
the filing of a voluntary petition by Tenant, or the entry of an order for
relief against Tenant, under Chapter 7, 11, or 13 of the Bankruptcy Code,
and the term "Bankruptcy Code" means 11 U.S.C `101, et seq.. If an Event
-------
of Bankruptcy occurs, then the trustee of Tenant's bankruptcy estate or
Tenant as debtor-in-possession may (subject to final approval of the
court) assume this Lease, and may subsequently assign it, only if it does
the following within 60 days after the date of the filing of the voluntary
petition, the entry of the order for relief (or such additional time as a
court of competent jurisdiction may grant, for cause, upon a motion made
within the original 60-day period):
(i) file a motion to assume the Lease with the appropriate court;
(ii) satisfy all of the following conditions, which Landlord and
Tenant acknowledge to be commercially reasonable:
(A) cure all Defaults of Tenant under this Lease or provide
Landlord with Adequate Assurance (as defined below) that it
will (x) cure all monetary Defaults of Tenant hereunder
within 10 days from the date of the assumption; and (y) cure
all nonmonetary Defaults of Tenant hereunder within 30 days
from the date of the assumption;
(B) compensate Landlord and any other person or entity, or
provide Landlord with Adequate Assurance that within 10 days
after the date of the assumption, it will compensate
Landlord and such other person or entity, for any pecuniary
loss that Landlord and such other person or entity incurred
as a result of any Default of Tenant, the trustee, or the
debtor-in-possession;
(C) provide Landlord with Adequate Assurance of Future
Performance (as defined below) of all of Tenant's
obligations under this Lease; and
(D) deliver to Landlord a written statement that the conditions
herein have been satisfied.
27
<PAGE>
(c) For purposes only of the foregoing paragraph (b), and in addition to
any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "Adequate Assurance" means at
least meeting the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:
(i) entering an order segregating sufficient cash to pay Landlord and
any other person or entity under paragraph (b) above, and
(ii) granting to Landlord a valid first lien and security interest (in
form acceptable to Landlord) in all property comprising the
Tenant's "property of the estate," as that term is defined in
Section 541 of the Bankruptcy Code, which lien and security
interest secures the trustee's or debtor-in-possession's
obligation to cure the monetary and nonmonetary defaults under
the Lease within the periods set forth in paragraph (b) above;
(d) For purposes only of paragraph (b), and in addition to any other
requirements under the Bankruptcy Code, any future federal bankruptcy law
and applicable case law, "Adequate Assurance of Future Performance" means
at least meeting the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:
(i) the trustee or debtor-in-possession depositing with Landlord, as
security for the timely payment of rent and other monetary
obligations, an amount which, together with any security deposit
then being held by Landlord, will equal two (2) months' Basic
Rent and two (2) months' installments on account of Operating
Expenses and Taxes, computed in accordance with Articles 8 and 9;
(ii) the trustee or the debtor-in-possession agreeing to pay in
advance, on each day that the Basic Rent is payable, the monthly
installments on account of Operating Expenses and Taxes, computed
in accordance with Articles 8 and 9 hereof;
(iii) the trustee or debtor-in-possession providing adequate assurance
of the source of the rent and other consideration due under this
Lease;
(iv) Tenant's bankruptcy estate and the trustee or debtor-in-
possession providing Adequate Assurance that the bankruptcy
estate (and any successor after the conclusion of the Tenant's
bankruptcy proceedings) will continue to have sufficient
unencumbered assets after the payment of all secured obligations
and administrative expenses to assure Landlord that the
bankruptcy estate (and any successor after the conclusion of the
Tenant's bankruptcy proceedings) will have sufficient funds to
fulfill Tenant's obligations hereunder; and
28
<PAGE>
(e) If the trustee or the debtor-in-possession assumes the Lease under
paragraph (b) above and applicable bankruptcy law, it may assign its
interest in this Lease only if the proposed assignee first provides
Landlord with Adequate Assurance of Future Performance of all of Tenant's
obligations under the Lease, and if Landlord determines, in the exercise
of its reasonable business judgment, that the assignment of this Lease
will not breach any other lease, or any mortgage, financing agreement, or
other agreement relating to the Property by which Landlord or the Property
is then bound (and Landlord shall not be required to obtain consents or
waivers from any third party required under any lease, mortgage, financing
agreement, or other such agreement by which Landlord is then bound).
(f) For purposes only of paragraph (e) above, and in addition to any other
requirements under the Bankruptcy Code, any future federal bankruptcy law
and applicable case law, "Adequate Assurance of Future Performance" means
at least the satisfaction of the following condition, which Landlord and
Tenant acknowledge to be commercially reasonable: the proposed assignee
submitting a current financial statement, audited by a certified public
accountant, that allows a net worth and working capital in amounts
determined in the reasonable business judgment of Landlord to be
sufficient to assure the future performance by the assignee of Tenant's
obligation under this Lease;
(g) If this Lease shall have been terminated as provided in this Article,
or if any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may re-enter the Premises, either
by summary proceedings, ejectment or otherwise, and remove and dispossess
Tenant and all other persons and any and all property from the same, as if
this Lease had not been made.
(h) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what would have been
the Term of this Lease in the absence of such termination, and whether or
not the Premises shall have been relet, shall be liable to Landlord for,
and shall pay to Landlord, as liquidated current damages: (x) the Basic
Rent, Escalation Charges and other sums that would be payable hereunder if
such termination had not occurred, less the net proceeds, if any, of any
reletting of the Premises, after deducting all expenses reasonably
incurred in connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, legal expenses, attorneys'
fees, advertising, expenses of employees, alteration costs and expenses of
preparation for such reletting; and (y) if, in accordance with Section
3.1(a), Tenant commenced payment of the full amount of Basic Rent on any
day other than the Commencement Date, the amount of Basic Rent that would
have been payable during the period beginning on the Commencement Date and
ending on the day Tenant commenced payment of the full amount of Basic
Rent under such Section 3.1(a). Tenant shall pay the portion of such
current damages referred to in clause (x) above to Landlord monthly on the
days which the Basic Rent would have been payable hereunder if this Lease
had not been terminated, and Tenant shall pay the portion of such current
damages referred to in clause (y) above to Landlord upon such termination.
29
<PAGE>
(i) At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in
lieu of all such current damages beyond the date of such demand, at
Landlord's election Tenant shall pay to Landlord an amount equal to the
excess, if any, of the Basic Rent, Escalation Charges and other sums as
hereinbefore provided which would be payable hereunder from the date of
such demand assuming that, for the purposes of this paragraph, annual
payments by Tenant on account of Taxes and Operating Expenses would be the
same as the payments required for the immediately preceding Operating or
Tax Year for what would be the then unexpired Term of this Lease if the
same remained in effect, and discounted to then present value using an
interest factor equal to the then "prime rate" as set by the Wall Street
Journal (or other authoritative source designated by Landlord), over the
then fair net rental value of the Premises for the same period, also
discounted to then present value at the same rate.
(j) In case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord may (i) re-let
the Premises or any part or parts thereof, either in the name of Landlord
or otherwise, for a term or terms which may at Landlord's option be equal
to or less than or exceed the period which would otherwise have
constituted the balance of the Term of this Lease and may grant
concessions or free rent to the extent that Landlord considers advisable
and necessary to re-let the same and (ii) may make such reasonable
alterations, repairs and decorations in the Premises as Landlord in its
sole judgment considers advisable and necessary for the purpose of
reletting the Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in
any way whatsoever for failure to re-let the Premises, or, in the event
that the Premises are re-let, for failure to collect the rent under such
re-letting, provided that Landlord agrees to use commercially reasonable
efforts to relet the Premises (subject to the foregoing terms and
qualifications), but Landlord shall not be required to give the Premises
any preference or priority over other office space that Landlord may then
have available for lease. Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed, or in the event of Landlord
obtaining possession of the Premises, by reason of the violation by Tenant
of any of the covenants and conditions of this Lease.
(k) If a Guarantor of this Lease is named in Section 1.2, the happening of
any of the events described in paragraphs (a)(iv)-(a)(vi) of this Section
13.1 with respect to the Guarantor shall constitute a Default of Tenant
hereunder.
(l) The specified remedies to which Landlord may resort hereunder are not
intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for.
(m) All costs and expenses reasonably incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses at both the
trial and appellate levels) in enforcing its rights hereunder or
occasioned by any Default of Tenant shall be paid by Tenant.
30
<PAGE>
13.2 LANDLORD'S DEFAULT. Except as may be otherwise expressly provided in this
------------------
Lease, Landlord shall in no event be in default in the performance of any
of Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, or if such
failure is of such a nature that Landlord cannot reasonably remedy the
same within such thirty (30) day period, Landlord shall fail to commence
promptly (and in any event within such thirty (30) day period) to remedy
the same and to prosecute such remedy to completion with diligence and
continuity.
ARTICLE 14
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MISCELLANEOUS PROVISIONS
------------------------
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do
-------------------
or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall increase the rate of
property or liability insurance on the Premises or the Property above the
standard rate applicable to Premises being occupied for Permitted Uses;
and Tenant further agrees that, in the event that Tenant shall do any of
the foregoing, Tenant will promptly pay to Landlord, on demand, any such
increase resulting therefrom, which shall be due and payable as an
additional charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord to complain of any action or
------
non-action on the part of Tenant, no matter how long the same may
continue, shall never be a waiver by Landlord of any of Landlord's rights
hereunder. Further, no waiver at any time of any of the provisions hereof
by Landlord shall be construed as a waiver of any of the other provisions
hereof, and a waiver at any time of any of the provisions hereof shall not
be construed as a waiver at any subsequent time of the same provisions.
The consent or approval of Landlord to or of any action by Tenant
requiring such consent or approval shall not be construed to waive or
render unnecessary Landlord's consent or approval to or of any subsequent
similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise than
as a payment on account of the earliest installment of any payment due
from Tenant under the provisions hereof. The acceptance by Landlord of a
check for a lesser amount with an endorsement or statement thereon, or
upon any letter accompanying such check, that such lesser amount is
payment in full, shall be given no effect, and Landlord may accept such
check without prejudice to any other rights or remedies which Landlord may
have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT. Landlord represents to Tenant that, as of
---------------------------
the date hereof, Landlord holds title to the Premises and has the right to
enter into this Lease (subject to approval by Landlord's lender). Tenant,
subject to the terms and provisions of this Lease, on payment of the Basic
Rent and Escalation Charges and observing, keeping and performing all of
the other terms and provisions of this Lease on Tenant's part to be
observed, kept and performed, shall lawfully, peaceably and quietly have,
hold, occupy and enjoy the Premises during the term hereof, without
hindrance or ejection by any persons lawfully claiming under Landlord to
have title to the Premises superior to Tenant; the foregoing covenant of
quiet enjoyment is in lieu of any other covenant, express or implied.
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<PAGE>
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely to
--------------------
Landlord's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically agreed that
Landlord (original or successor) shall never be personally liable for any
such judgment, or for the payment of any monetary obligation to Tenant.
The provision contained in the foregoing sentence is not intended to, and
shall not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's successors in interest,
or to take any action not involving the personal liability of Landlord
(original or successor) to respond in monetary damages from Landlord's
assets other than Landlord's equity interest in the Property.
(b) With respect to any services or utilities to be furnished by Landlord
to Tenant, Landlord shall in no event be liable for failure to furnish the
same when prevented from doing so by strike, lockout, breakdown, accident,
order or regulation of or by any governmental authority, or failure of
supply, or failure whenever and for so long as may be necessary by reason
of the making of repairs or changes which Landlord is required or is
permitted by this Lease or by law to make or in good faith deems
necessary, or inability by the exercise of reasonable diligence to obtain
supplies, parts or employees necessary to furnish such services, or
because of war or other emergency, or for any other cause beyond
Landlord's reasonable control, or for any cause due to any act or neglect
of Tenant or Tenant's servants, agents, employees, licensees or any person
claiming by, through or under Tenant, nor shall any such failure give rise
to any claim in Tenant's favor that Tenant has been evicted, either
constructively or actually, partially or wholly.
(c) Notwithstanding the foregoing to the contrary, if, due to any act or
omission on the part of Landlord in violation of this Lease, Tenant is
prevented from receiving essential services or utilities that Landlord is
obligated to perform or deliver under this Lease, and such interruption of
essential services or utilities renders the Premises untenantable, and if
such interruption shall continue for a period of five (5) consecutive days
after notice thereof from Tenant to Landlord that the Premises are
untenantable as a result thereof, Basic Rent and Escalation Charges shall
abate commencing on the sixth day after such notice (and, if less than all
of the Premises are affected by such interruption, such abatement shall be
pro-rated according to the area so affected) until such time as such
services or utilities are restored. Except as expressly provided in
paragraph (d) below, Tenant's rights herein granted shall be Tenant's sole
remedies for any such interruption. The foregoing rights shall not apply
to repairs or changes necessitated by fire or other casualty, or by the
exercise of the right of eminent domain, which shall be governed by
Article 12, or to interruptions resulting from matters beyond Landlord's
reasonable control as described in paragraph (b) above.
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<PAGE>
(d) If, due to any act or omission on the part of Landlord in violation of
this Lease, Tenant is prevented from receiving essential services or
utilities that Landlord is obligated to perform or deliver under this
Lease, and such interruption of essential services or utilities renders
the Premises untenantable, and if such interruption shall continue for a
period of twenty (20) consecutive days after notice thereof from Tenant to
Landlord that the Premises are untenantable as a result thereof, Tenant
may give Landlord notice that Tenant intends to cure such act or omission
to the extent necessary to restore the delivery of such essential services
or utilities. Such notice shall bear, on the exterior envelope, the
following legend in prominent lettering: "NOTICE OF TENANT'S EXERCISE OF
SELF-HELP REMEDIES," and shall be delivered to all required addressees by
hand delivery. If Landlord shall fail to advise Tenant within five (5)
additional Business Days after delivery of such notice, that Landlord has
commenced to restore such services or utilities, then Tenant may give
Landlord a final notice of Tenant's intent to restore such services or
utilities, with the same legend and delivered as above, and after the
expiration of two (2) additional Business Days without Landlord's notice
that it has commenced necessary restoration, Tenant may commence and
thereafter diligently pursue the same to completion. Tenant shall
undertake any such work using qualified contractors and suppliers, and in
complete accordance with all applicable laws, codes and ordinances. Once
Tenant commences such restoration, Tenant shall not discontinue or abandon
the same without Landlord's consent. Landlord shall reimburse Tenant for
the actual and reasonable cost to Tenant of completing such restoration,
within thirty (30) days after receipt from Tenant of invoices evidencing
the same, provided that Tenant shall in no event be entitled to withhold
such amounts from, or otherwise set off such amounts against, payments of
Basic Rent, Escalation Charges or other amounts due from Tenant to
Landlord hereunder.
(e) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by Tenant
from whatever cause.
(e) Where provision is made in this Lease for Landlord's consent and
Tenant shall request such consent and Landlord shall fail or refuse to
give such consent, Tenant shall not be entitled to any damages for any
withholding by Landlord of its consent, it being intended that Tenant's
sole remedy shall be an action for specific performance or injunction, and
that such remedy shall be available only in those cases where Landlord has
expressly agreed in writing not to unreasonably withhold its consent.
Furthermore, whenever Tenant requests Landlord's consent or approval
(whether or not provided for herein), Tenant shall pay to Landlord, on
demand, as an additional charge, any expenses incurred by Landlord
(including without limitation legal fees and costs, if any) in connection
therewith.
(f) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same may be made during normal
business hours and Landlord shall have no liability for damages to Tenant
for inconvenience, annoyance or interruption of business arising
therefrom. Landlord agrees, however, to use commercially reasonable
efforts to minimize any unreasonable interference with Tenant's business
operations in the Premises.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any
------------------------------------
person, firm or other entity that it holds a mortgage or a ground lease
which includes the Premises, no notice from Tenant to Landlord alleging
any default by Landlord shall be effective unless and until a copy of the
same is given to such holder or ground lessor (provided Tenant shall have
been furnished with the name and address of such holder or ground lessor),
and the curing of any of Landlord's defaults by such holder or ground
lessor shall be treated as performance by Landlord.
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14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
-----------------------------------------
assignment by Landlord of Landlord's interest in this Lease, or the rents
payable hereunder, conditional in nature or otherwise, which assignment is
made to the holder of a mortgage on property which includes the Premises,
Tenant agrees that the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage shall never be treated as an
assumption by such holder of any of the obligations of Landlord hereunder
unless such holder shall, by notice sent to Tenant, specifically otherwise
elect and that, except as aforesaid, such holder shall be treated as
having assumed Landlord's obligations hereunder only upon foreclosure of
such holder's mortgage and the taking of possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases Landlord's
entire interest in the Property back to the seller thereof be treated as
an assumption by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord's
obligations hereunder. In any such event, this Lease shall be subject and
subordinate to the lease to such purchaser-lessor, provided that Landlord
shall obtain the agreement of such purchaser-lessor that, subject to such
reasonable qualifications as such purchaser-lessor may impose, in the
event of the termination of such lease, so long as no Default of Tenant
exists hereunder, Tenant's right to possession of the Premises shall not
be disturbed and Tenant's other rights hereunder shall not be adversely
affected. For all purposes, such seller-lessee, and its successors in
title, shall be the Landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in the event of
any transfer of title to the Property by Landlord, Landlord shall
thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder.
14.7 RULES AND REGULATIONS. Tenant shall abide by rules and regulations from
---------------------
time to time established by Landlord, it being agreed that such rules and
regulations will be established and applied by Landlord in a non-
discriminatory fashion, such that all rules and regulations shall be
generally applicable to other tenants, if any, of similar nature to the
Tenant named herein, of the Building. Landlord agrees to use reasonable
efforts to insure that any such rules and regulations are uniformly
enforced, but Landlord shall not be liable to Tenant for violation of the
same by any other tenant or occupant of the Building, or persons having
business with them. In the event that there shall be a conflict between
such rules and regulations and the provisions of this Lease, the
provisions of this Lease shall control. Rules and Regulations currently in
effect are set forth in Exhibit RR.
----------
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums under
------------------
this Lease designated as an Escalation Charge or additional charge,
Landlord shall have the same rights and remedies as Landlord has hereunder
for failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
-----------------------------------
Lease, or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
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14.10 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms
-----------------------
hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant (except in
the case of Tenant, only such assigns as may be permitted hereunder) and,
----
if Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and permitted assigns. Each term and each
provision of this Lease to be performed by Tenant shall be construed to be
both a covenant and a condition. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to assignment by
Tenant, but has reference only to those instances in which Landlord may
later give consent to a particular assignment as required by those
provisions of Article 6 hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but each party hereto
---------
agrees, on the request of the other, to execute a so-called notice of
lease in recordable form and complying with applicable law and reasonably
satisfactory to Landlord's attorneys. In no event shall such document set
forth the rent or other charges payable by Tenant under this Lease; and
any such document shall expressly state that it is executed pursuant to
the provisions contained in this Lease, and is not intended to vary the
terms and conditions of this Lease.
14.12 NOTICES. Whenever, by the terms of this Lease, notices shall or may be
-------
given either to Landlord or to Tenant, such notice shall be in writing and
shall, except as otherwise required under Section 14.4(d), be sent by
registered or certified mail, postage prepaid, return receipt requested:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address and marked: "Attention: Asset Manager, 400/460 Totten Pond Road,"
with a copy to Stephen T. Langer, Esq., Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., One Financial Center, Boston, MA 02111 (or to
such other address or addresses as may from time to time hereafter be
designated by Landlord by like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original Address
until the Commencement Date and thereafter to the Premises, with a copy to
Michael J. Riccio, Esq., Hutchins, Wheeler & Dittmar, 101 Federal Street,
Boston, MA 02110 (or to such other address or addresses as may from time
to time hereafter be designated by Tenant by like notice).
All such notices shall be effective when deposited in the United States
Mail within the Continental United States, provided that the same are
received in ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING. The submission of this document for
--------------------------
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery hereof
by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and this Lease expressly supersedes any proposals or
other written documents relating hereto. This Lease may be modified or
altered only by written agreement between Landlord and Tenant, and no act
or omission of any employee or agent of Landlord shall alter, change or
modify any of the provisions hereof.
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14.14 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS. The paragraph headings
-------------------------------------------------
throughout this instrument are for convenience and reference only, and the
words contained therein shall in no way be held to explain, modify,
amplify or aid in the interpretation, construction or meaning of the
provisions of this Lease. The provisions of this Lease shall be construed
as a whole, according to their common meaning (except where a precise
legal interpretation is clearly evidenced), and not for or against either
party. Use in this Lease of the words "including," "such as" or words of
similar import, when followed by any general term, statement or matter,
shall not be construed to limit such term, statement or matter to the
specified item(s), whether or not language of non-limitation, such as
"without limitation" or "including, but not limited to," or words of
similar import, are used with reference thereto, but rather shall be
deemed to refer to all other terms or matters that could fall within a
reasonably broad scope of such term, statement or matter.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate to
------------------------------------
any mortgage or ground lease from time to time encumbering the Premises,
whether executed and delivered prior to or subsequent to the date of this
Lease, if the holder of such mortgage or ground lease shall so elect. If
this Lease is subordinate to any mortgage or ground lease and the holder
thereof (or successor) shall succeed to the interest of Landlord, at the
election of such holder (or successor) Tenant shall attorn to such holder
and this Lease shall continue in full force and effect between such holder
(or successor) and Tenant. Tenant agrees to execute such instruments of
subordination or attornment in confirmation of the foregoing agreement as
such holder may request, and Tenant hereby appoints such holder as
Tenant's attorney-in-fact to execute such subordination or attornment
agreement upon default of Tenant in complying with such holder's request.
Notwithstanding the foregoing, if the holder of such mortgage elects to
make this Lease subordinate as aforesaid, then Landlord shall obtain the
holder's written agreement (substantially in the form annexed hereto as
Exhibit SNDA) that, subject to such reasonable qualifications as such
------------
holder may reasonably impose, in the event that the holder shall succeed
to the interests of Landlord hereunder pursuant to such mortgage, ground
lease or other encumbrance, so long as no Default of Tenant exists
hereunder, Tenant's right to possession of the Premises shall not be
disturbed and Tenant's other rights hereunder shall not be adversely
affected by any foreclosure of such mortgage or encumbrance or by
termination of such ground lease.
14.16 STATUS REPORT. Recognizing that both parties may find it necessary to
-------------
establish to third parties, such as accountants, banks, mortgagees, ground
lessors, or the like, the then current status of performance hereunder,
either party, on the request of the other made from time to time, will
promptly furnish to Landlord, or the holder of any mortgage or ground
lease encumbering the Premises, or to Tenant, as the case may be, a
statement of the status of any matter pertaining to this Lease, including,
without limitation, acknowledgments that (or the extent to which) each
party is in compliance with its obligations under the terms of this Lease.
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<PAGE>
14.17 SECURITY DEPOSIT. (a) The requisite security deposit will be paid to
----------------
Landlord upon execution and delivery of this Lease by Tenant, and Landlord
shall hold the same throughout the Term of this Lease as security for the
performance by Tenant of all obligations on the part of Tenant hereunder
and under any other leases or occupancy agreements that may hereafter be
entered into between Landlord and Tenant relative to the TPR Properties.
Landlord shall have the right from time to time without prejudice to any
other remedy Landlord may have on account thereof, to apply such deposit,
or any part thereof, to Landlord's damages arising from, or to cure, any
Default of Tenant hereunder or under any other such lease or occupancy
agreement. If Landlord shall so apply any or all of such deposit, Tenant
shall immediately deposit with Landlord the amount so applied to be held
as security hereunder. If at each time hereafter described there exists no
Default of Tenant (or event or circumstance which, with the passage of
time or the giving of notice, or both, would constitute a Default of
Tenant), Tenant shall be entitled to reduce the amount of the security
deposit, and Landlord shall return any excess amount as shall have
theretofore not been applied in accordance with the terms of this Section
14.17, to Tenant as follows. Not less frequently than quarterly, as of the
last day of each calendar quarter, Landlord shall review the Tenant's then
"Market Value," as hereinafter defined. So long as Tenant's Market Value,
as of such date, is above One Hundred Million Dollars ($100,000,000.00),
but is less than Two Hundred Fifty Million Dollars ($250,000,000.00), then
the security deposit may be reduced to $651,856.50. So long as Tenant's
Market Value, as of such date, is Two Hundred Fifty Million Dollars
($250,000,000.00) or more, then the security deposit may be reduced to
$325,928.25. For purposes of this Lease, Tenant's "Market Value" shall be
determined by multiplying (x) the average per share "bid" price of
Tenant's publicly traded common voting stock, as reflected in the Wall
Street Journal (or other reasonably authoritative publication or resource
acceptable to Landlord, for the thirty-day period ending on the last day
of the calendar quarter in question, by (y) the average number of shares
of common voting stock in Tenant issued and outstanding during such 30-day
period. Likewise, if at any time, Tenant's Market Value falls below any
applicable threshold set forth above then, within seven (7) Business Days
after such determination by Landlord, Tenant shall deposit with Landlord
sufficient additional funds to meet the requirement applicable to such
reduced Market Value. To the extent that Landlord holds any such deposit
in the form of cash, Landlord shall hold the same in a separate account in
a Massachusetts bank, and shall credit to Tenant's account the amount of
any interest actually paid by such bank with respect thereto (after
deducting any fees or other charges imposed on Landlord in respect of such
account). Tenant hereby certifies that it is aware that the Federal
Deposit Insurance Corporation ("FDIC") coverages apply only to a
cumulative maximum amount of $100,000 for each individual deposit for all
of depositor's accounts at the same or related institution. Tenant further
understands that certain banking instruments such as, but not limited to,
repurchase agreements and letters of credit, are not covered at all by
FDIC insurance. Further, Tenant agrees that Landlord assumes no
responsibility for, nor will Tenant hold Landlord liable for, any loss
occurring which arises from the fact that the amount of the security
deposit exceeds $100,000 or from the fact that the excess amount will not
be insured by FDIC, or that FDIC insurance is not available on certain
types of bank instruments. If Landlord conveys Landlord's interest under
this Lease, the deposit, or any part thereof not previously applied, shall
be turned over by Landlord to Landlord's grantee, and, if so turned over,
Tenant agrees to look solely to such grantee for proper application of the
deposit in accordance with the terms of this Section 14.17, and the return
thereof in accordance herewith. The holder of a mortgage shall not be
responsible to Tenant for the return or application of any such deposit,
whether or not it succeeds to the position of Landlord hereunder, unless
such deposit shall have been actually received in hand by such holder.
37
<PAGE>
(b) Landlord has determined that instead of a cash security deposit,
Tenant shall, upon execution and delivery of this Lease, deposit with
Landlord a clean, irrevocable, unconditional letter of credit, with a
right of assignment (without charge or cost to Landlord) to any successor
to Landlord's interests hereunder, in favor of Landlord in the amount of
the security deposit. Such letter of credit, and any replacement thereof,
shall be drawn on a Massachusetts bank approved by Landlord from time to
time. The form of the Letter of Credit annexed hereto as Exhibit LOC is
-----------
acceptable to Landlord. In the event of a material adverse change in the
financial position of any bank which has issued a letter of credit
hereunder, Landlord reserves the right, on any scheduled expiration or
renewal date of any such letter (or, in the event that Landlord reasonably
determines that the condition of the issuing bank is in imminent danger of
insolvency, upon 10 days' notice), to request that Tenant change the
issuing bank to another bank reasonably approved by Landlord. Regardless
of whether Landlord shall have previously requested that Tenant change
issuing banks, if the bank on which the original letter of credit or any
replacement letter is drawn is declared insolvent or placed into
conservatorship or receivership, Tenant shall, within 20 days thereafter,
replace the then-outstanding letter of credit with a like letter of credit
from another bank acceptable to Landlord.
(c) The letter of credit shall contain a clause whereby the issuing bank
agrees to automatically extend the term of the letter of credit from year
to year throughout the Initial Term (and any Extended Term) unless, not
less than sixty (60) days prior to the date on which the letter would
expire absent such extension, the issuing bank gives notice to Landlord,
by certified or registered mail, of non-extension. In the event of notice
from the issuing bank of non-extension, Tenant shall, not later than
twenty (20) Business Days prior to the date on which the outstanding
letter shall expire without extension, obtain a replacement letter of
credit from a Massachusetts bank acceptable to Landlord, under all of the
terms and conditions set forth above. Upon (i) the occurrence of a Default
of Tenant hereunder, or (ii) the failure of Tenant to replace any such
letter at least twenty (20) Business Days prior to its expiration, and
written certification thereof by Landlord to the issuing bank, Landlord
may at its election draw the full amount or any part thereof, and hold,
use and apply the proceeds thereof as if such proceeds were originally
deposited with Landlord in cash under this Section. In the event that
Landlord draws any such letter of credit, Landlord may elect to use such
proceeds (or any excess proceeds after application) to obtain from another
Massachusetts bank a replacement letter of credit, and the cost of such
replacement shall be deducted from the available balance and reimbursed by
Tenant. Tenant hereby agrees, if so requested by Landlord, to enter into a
letter of credit agreement with the bank so designated by Landlord,
failing which Landlord may do so in Tenant's name and behalf. The order in
which Landlord applies the proceeds of the cash security deposit and the
proceeds of the letter of credit shall be determined by Landlord from time
to time in its sole and unfettered discretion.
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(d) From and after the time at which Landlord shall have drawn all or any
portion of the proceeds of such a letter of credit, if Landlord shall not
elect to obtain its own replacement letter of credit, Landlord shall have
the right from time to time without prejudice to any other remedy Landlord
may have on account thereof, to apply such proceeds, or any part thereof,
to Landlord's damages arising from any then existing or subsequently
occurring Default of Tenant hereunder. While Landlord holds any unapplied
proceeds, Landlord shall maintain a separate account and pay interest
thereon as provided in paragraph (a). At the expiration or earlier
termination of the Term of this Lease, Landlord shall return to Tenant the
proceeds thereof (or, if not drawn upon, any letter of credit), or so much
thereof as shall not have theretofore been applied in accordance with the
terms of this Section 14.17 (or be reasonably necessary to cure any
failure of Tenant as to which any notice or grace periods shall not then
have expired), provided that as to the partial reductions in the amount of
the security deposit referred to in paragraph (a), such reductions shall
be effected by amendments to the letter of credit reflecting the reduced
requirements. If Landlord conveys Landlord's interest under this Lease,
the proceeds (or, if not drawn upon, any letter of credit), or any part
thereof not previously applied, shall be turned over by Landlord to
Landlord's grantee, and, when actually turned over, Tenant agrees to look
solely to such grantee for proper application of the proceeds in
accordance with the terms of this Section 14.17, and the return thereof in
accordance herewith. The holder of a mortgage shall not be responsible to
Tenant for the return of any letter of credit or application of any such
proceeds, whether or not it succeeds to the position of Landlord
hereunder, unless such proceeds or letter of credit shall have actually
been received by such holder.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
------------------
required, to pay such sums or do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or
neglect of Tenant to perform any of the provisions of this Lease, and in
the event of the exercise of such right by Landlord, Tenant agrees to pay
to Landlord forthwith upon demand all such sums, together with interest
thereon at a rate equal to 1 1/2% over the base rate in effect from time
to time at BankBoston, as an additional charge. Any payment of Basic Rent,
Escalation Charges or other sums payable hereunder not paid when due
shall, at the option of Landlord, bear interest at a rate equal to 1 1/2%
over the base rate in effect from time to time at BankBoston from the due
date thereof and shall be payable forthwith on demand by Landlord, as an
additional charge.
14.19 HOLDING OVER. Any holding over by Tenant after the expiration of the term
------------
of this Lease shall be treated as a daily tenancy at sufferance at a rate
equal to two (2) times the Basic Rent then in effect plus Escalation
Charges and other charges herein provided (prorated on a daily basis).
Tenant shall also pay to Landlord all damages, direct and/or indirect,
sustained by reason of any such holding over. Otherwise, such holding over
shall be on the terms and conditions set forth in this Lease as far as
applicable.
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14.20 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the following
---------------------
provision shall not make it impossible to secure insurance coverage
obtainable from responsible insurance companies doing business in the
locality in which the Property is located (even though extra premium may
result therefrom) Landlord and Tenant: (i) mutually agree that, with
respect to any damage to property, the loss from which is covered by
insurance then being carried by them, respectively, the one carrying such
insurance and suffering such loss releases the other of and from, and
forever waives, any and all claims with respect to such loss, but only to
the extent of the limits of insurance carried with respect thereto, less
the amount of any deductible; and (ii) mutually agree that any property
damage insurance carried by either shall provide for the waiver by the
insurance carrier of any right of subrogation against the other.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of the
---------------------
Term of this Lease, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition and
repair, together with all alterations, additions and improvements which
may have been made or installed in, on or to the Premises prior to or
during the Term of this Lease, excepting only ordinary wear and use and
damage by fire or other casualty for which, under other provisions of this
Lease, Tenant has no responsibility of repair or restoration. Tenant shall
remove all of Tenant's Removable Property and, to the extent specified by
Landlord, all alterations and additions made by Tenant and all partitions
wholly within the Premises; and shall repair any damages to the Premises
or the Building caused by such removal. Any Tenant's Removable Property
which shall remain in the Building or on the Premises after the expiration
or termination of the Term of this Lease without Landlord's prior consent,
shall be deemed conclusively to have been abandoned, and either may be
retained by Landlord as its property or may be disposed of in such manner
as Landlord may see fit, at Tenant's sole cost and expense.
14.22 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
---------
broker in connection with the consummation of this Lease other than
Broker, and, in the event of any brokerage claims against Landlord
predicated upon prior dealings with Tenant, Tenant agrees to defend the
same and indemnify Landlord against any such claim (except any claim by
Broker).
14.23 GOVERNING LAW. This Lease shall be governed exclusively by the provisions
-------------
hereof and by the laws of the Commonwealth of Massachusetts as the same
may from time to time exist.
ARTICLE 15
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OPTION TO EXTEND
----------------
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15.1 TENANT'S RIGHT. Provided that, at the time of such exercise, (i) there
--------------
exists no Default of Tenant; (ii) this Lease is still in full force and
effect; and (iii) Tenant shall actually occupy not less than seventy-five
percent (75%) of Premises Rentable Area, Tenant shall have the right to
extend the Term of this Lease for one extended term (the "Extended Term")
of five (5) years. The Extended Term shall commence on the day immediately
following the expiration date of the Initial Term, and shall end on the
day immediately preceding the fifth anniversary of the first day of the
Extended Term. Tenant shall exercise such option by giving Landlord notice
of its desire to do so, not later than nine (9) months prior to the
expiration of the Initial Term, it being agreed that time shall be of the
essence with respect to the giving of such notice. The giving of such
notice shall automatically extend the Term of this Lease for the Extended
Term, and no instrument of renewal need be executed. In the event that
Tenant fails to give such notice to Landlord, the Term of this Lease shall
automatically terminate at the end of the Initial Term, and Tenant shall
have no further right or option to extend the Term of this Lease. The
Extended Term shall be on all the terms and conditions of this Lease,
except that: (i) Landlord shall have no obligation to pay any construction
or improvements allowance, or to perform any alterations or improvements
to the Premises, with respect to the Extended Term; and (ii) the Basic
Rent for the Extended Term shall be determined in accordance with section
15.2.
15.2 EXTENDED TERM RENT. (a) The Basic Rent for the Extended Term shall be the
------------------
Fair Market Rental Value of the Premises (as hereinafter defined) as of
the commencement of the Extended Term, determined without regard to
Tenant's right to extend, as agreed by the parties. In no event, however,
shall the Basic Rent for the Extended Term (exclusive of any utility or
other costs paid for by Tenant hereunder and exclusive of Escalation
Charges) be less than $24.65 per square foot of Premises Rentable Area per
annum, it being understood that during the Extended Term Escalation
Charges shall continue to be calculated based on Base Taxes and Base
Operating Expenses set forth in Section 1.2 of this Lease.
ARTICLE 16
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STORAGE SPACE
-------------
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16.1 TENANT'S RIGHT. So long as there then exists no Default of Tenant, if
---------------
during the Term of this Lease Landlord desires to lease all or a portion
of the storage space located in the basement of the Building and
containing 2,380 square feet (the "First Offer Space"), Landlord shall so
notify Tenant setting forth the terms and conditions on which Landlord is
willing to so lease the First Offer Space. Tenant may, by giving Landlord
notice within five (5) days after receipt of Landlord's notice,
irrevocably elect to lease the First Offer Space on the terms and
conditions set forth in Landlord's notice. If Tenant shall so elect,
Tenant shall within five (5) additional days after such receipt of a
reasonably acceptable form thereof from Landlord, enter into a lease
amendment incorporating the terms and conditions set forth in Landlord's
notice. If Tenant shall fail to make such election within such 5-day
period, or if Tenant shall make such election, but shall fail to enter
into such lease amendment within such second 5-day period, then, at
Landlord's election, Tenant shall have no further rights with respect to
the First Offer Space, and Landlord shall thereafter be free to lease any
or all of the First Offer Space to such party or parties, and on such
terms and conditions, as Landlord may deem appropriate. For purposes
hereof, the use of the First Offer Space by Landlord or Landlord's Agent
shall not grant Tenant any rights hereunder, even if a lease or other like
document is prepared in connection therewith. In the event that Landlord
shall lease the First Offer Space to a third party or parties, Landlord
shall require that such party or parties access the First Offer Space only
by means of the direct entrance/exit from outside the Building, and not
through the remainder of the Building.
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ARTICLE 17
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FAIR MARKET RENTAL VALUE
------------------------
17.1 DEFINITION. (a) For purposes of Article 15, the term "Fair Market Rental
----------
Value" shall mean the annual fixed rent that a willing tenant would pay
and a willing landlord would accept, each acting in its own best interest
and without duress, in an arms-length lease of the premises in question as
of the first day of the Extended Term (the "Determination Date"). If
Landlord and Tenant shall fail to agree upon the Fair Market Rental Value
within six (6) months before the Determination Date, then Landlord and
Tenant each shall give notice (the "Determination Notice") to the other
setting forth their respective determinations of the Fair Market Rental
Value, and, subject to the provisions of paragraph (b) below, either party
may apply to the American Arbitration Association or any successor thereto
for the designation of an arbitrator satisfactory to both parties to
render a final determination of the Fair Market Rental Value. The
arbitrator shall be a real estate appraiser or consultant who shall have
at least ten (10) years' continuous experience as a commercial real estate
broker or appraiser, and having significant experience with property
similar to the Building in the greater Boston area. If the parties are
unable, within fifteen (15) days of an arbitration demand by either party,
to agree on the arbitrator, then the matter shall be referred to the then
president of the Greater Boston Real Estate Board, whose designation of an
arbitrator (subject to the foregoing professional qualifications) shall be
binding on the parties. The arbitrator shall conduct such hearings and
investigations as the arbitrator shall deem appropriate and shall, within
thirty (30) days after having been appointed, choose one of the
determinations set forth in either Landlord's or Tenant's Determination
Notice, and that choice by the arbitrator shall be binding upon Landlord
and Tenant. Each party shall pay its own counsel fees and expenses, if
any, in connection with any arbitration under this paragraph (a), and the
parties shall share equally all other expenses and fees of any such
arbitration. The determination rendered in accordance with the provisions
of this paragraph (a) shall be final and binding in fixing the Fair Market
Rental Value. The arbitrator shall not have the power to add to, modify,
or change any of the provisions of this Lease.
(b) In the event that the determination of the Fair Market Rental Value
set forth in the Landlord's and Tenant's Determination Notices shall
differ by less than five percent (5%) per square foot of Premises Rentable
Area per annum for each year for which the same is being determined, then
the Fair Market Rental Value shall not be determined by arbitration, but
shall instead be set by taking the average of the determinations set forth
in Landlord's and Tenant's Determination Notices. Only if the
determinations set forth in Landlord's and Tenant's Determination Notices
shall differ by more than 5% per square foot of Premises Rentable area per
annum for any year for which the same is being determined shall the actual
determination of Fair Market Rental Value be made by an arbitrator as set
forth in paragraph (a) above.
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(c) If for any reason the Fair Market Rental Value shall not have been
determined prior to the Determination Date, then, until the Fair Market
Rental Value and, accordingly, the Basic Rent, shall have been finally
determined, Tenant shall pay Basic Rent at the rate quoted by Landlord in
Landlord's Determination Notice. Upon final determination of the Fair
Market Rental Value, an appropriate adjustment to the Basic Rent
theretofore paid by Tenant from and after the Determination Date shall be
made reflecting such final determination, and Landlord or Tenant, as the
case may be, shall promptly credit or pay, respectively, to the other any
overpayment of deficiency, as the case may be, in the payment of Basic
Rent from the Determination Date to the date of such final determination.
44
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
LANDLORD: 400/460 TOTTEN POND ROAD LIMITED PARTNERSHIP
--------
By: Leggat McCall Properties, Inc.,
General Partner
By:
-----------------------------------
Hereunto Duly Authorized
By:
-----------------------------------
Hereunto Duly Authorized
TENANT: LYCOS, INC.
------
By:
-----------------------------------
(Vice) President
By:
-----------------------------------
Chief Operating Officer
45
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EXHIBIT OC
[ITEMS INCLUDED IN OPERATING EXPENSES]
For purposes of this Exhibit OC, the Escalation Factor for (i) "Park
Costs" shall be 27%, (ii) "400 Costs" shall be 50%, and (iii) "Building Costs"
shall be 100%.
As set forth in Section 9.1 of the Lease, Operating Expenses shall include
the aggregate costs or expenses reasonably incurred by Landlord with respect to
the operation, administration, cleaning, repair, maintenance and management of
the TPR properties, including without limitation the costs and expenses
described below. Landlord and Tenant agree that the Building is one of three
buildings constituting the "TPR Properties," and that some Operating Expenses
("Park Costs") are incurred with respect to all three buildings, while others
("400 Costs") relate to the Building and 400-1 Totten Pond Road, while still
others ("Building Costs") relate only to the Building. Landlord shall reasonably
determine from time to time, in accordance with sound and professional property
management standards, those Operating Expenses that are to be categorized as
Park Costs, 400 Costs and Building Costs, and such determinations by Landlord
shall be binding and conclusive.
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social security,
unemployment and similar taxes, workmen's compensation insurance, disability
benefits, pensions, hospitalization, retirement plans and group insurance,
uniforms and working clothes and the cleaning thereof, and expenses imposed on
Landlord or Landlord's agents pursuant to any collective bargaining agreement
for the services of employees of Landlord or Landlord's agents in connection
with the operation, repair, maintenance, common area cleaning, management and
protection of the TPR Properties, and their respective mechanical systems
including, without limitation, day and night supervisors, property manager,
accountants, bookkeepers, janitors, carpenters, engineers, mechanics,
electricians and plumbers and personnel engaged in supervision of any of the
persons mentioned above (but not more than one property manager and one
superintendent for each of the TPR Properties, and excluding Landlord's
executive personnel); provided that, if any such employee is also employed on
other property of Landlord, such compensation shall be suitably prorated among
the TPR Properties and such other properties.
2. The cost of services, utilities, materials and supplies furnished or
used in the operation, repair, maintenance, common area cleaning, management and
protection of the TPR Properties, including without limitation fees, if any,
imposed upon Landlord, or charged to the TPR Properties, by the state or
municipality in which the TPR Properties is located on account of the need of
the TPR Properties for increased or augmented public safety services.
3. The cost of replacements for tools and other similar equipment used in
the repair, maintenance, common area cleaning and protection of the TPR
Properties, provided that, in the case of any such equipment used jointly on
other property of Landlord, such costs shall be suitably prorated among the TPR
Properties and such other properties.
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4. Where the TPR Properties are managed by Landlord or an affiliate of
Landlord, a sum equal to the amounts customarily charged by management firms in
the Boston area for similar properties, but in no event more than five percent
(5%) of gross annual income, whether or not actually paid, or where managed by
other than Landlord or an affiliate thereof, the amounts accrued for management,
together with, in either case, amounts accrued for legal and other professional
fees relating to the TPR Properties, but excluding such fees and commissions
paid in connection with services rendered for securing or renewing leases and
for matters not related to the normal administration and operation of the
Building.
5. Premiums for insurance against damage or loss to the Building from
such hazards as shall from time to time be generally required by institutional
mortgagees in the Boston area for similar properties, including, but not by way
of limitation, insurance covering loss of rent attributable to any such hazards,
and public liability insurance.
6. If, during the Term of this Lease, Landlord shall make a capital
expenditure to the Building or to the common areas of the TPR Properties, the
total cost of which is not properly includable in Operating Expenses for the
Operating Year in which it was made, there shall nevertheless be included in
such Operating Expenses for the Operating Year in which it was made and in
Operating Expenses for each succeeding Operating Year the annual charge-off of
such capital expenditure. Annual charge-off shall be determined by dividing the
original capital expenditure plus an interest factor, reasonably determined by
----
Landlord, as being the interest rate then being charged for long-term mortgages
by institutional lenders on like properties within the locality in which the
Building is located, by the number of years of useful life of the capital
expenditure (on a straight-line basis); and the useful life shall be determined
reasonably by Landlord in accordance with generally accepted accounting
principles and practices in effect at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other
utilities supplied to the TPR Properties and not paid for directly (i.e., other
----
than by escalation payments) by tenants.
8. Betterment assessments provided the same are apportioned equally over
the longest period permitted by law.
9. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the TPR Properties.
10. Operating Expenses shall not included:
(i) real estate Taxes;
(ii) depreciation;
(iii) interest on and amortization of debt (other than
amortization of capital expenditures as set forth above),
and/or ground rent;
(iv) the cost of leasehold improvements, including redecorating
work, for other tenants;
(v) fees and expenses (including legal and brokerage fees) for
procuring new tenants;
(vi) costs incurred in financing or refinancing of the Building
or any portion thereof;
47
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(vii) the cost of any item included in operating costs hereunder
to the extent that Landlord is actually reimbursed for such
cost by an insurance company, a condemning authority,
another tenant of any other party;
(viii) the cost of remediation of environmental contamination on
the Property, except to the extent that the need therefor
arises from any act or omission of Tenant or Tenant's
employees, agents or contractors, or from any Default of
Tenant hereunder; and
(ix) the cost of correcting defects in the original construction
of the Building, except that conditions (other than
construction defects) resulting from ordinary wear and tear
shall not be considered defects for purposes hereof.
48
<PAGE>
EXHIBIT RR
RULES AND REGULATIONS OF BUILDING
I. The following regulations are generally applicable:
1. The public sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant (except as necessary for deliveries) or used for any purpose other
than that for which they were intended.
2. No awnings, curtains, blinds shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
Premises or any outside wall of the Building.
3. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or like substances shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by the Tenant.
5. Tenant shall not use the Premises or any part thereof, or permit the
Premises or any part thereof to be used, for manufacturing. Tenant shall not
use the Premises or any part thereof or permit the Premises or any part thereof
to be used as a public employment bureau or for the sale of property of any kind
at auction, except in connection with Tenant's business.
6. Tenant must, upon the termination of its tenancy, restore to the
Landlord all locks, cylinders and keys to offices and toilet rooms of the
Premises.
7. Without derogating from any provision of the Lease to the effect that
Landlord is not responsible for providing security for the Premises, Landlord
reserves the right to exclude from the Building between the hours of 6 p.m. and
8 a.m. and at all hours on Sunday and holidays all persons connected with or
calling upon the Tenant who do not present a pass to the Building signed by the
Tenant. Tenant shall be responsible for all persons for whom it issues any such
pass and shall be liable to the Landlord for all wrongful acts of such persons.
8. The requirements of Tenant will be attended to only upon application
at the Building Superintendent's Office. Employees of Landlord shall not
perform any work or do anything outside of the regular duties, unless under
special instructions from the office of the Landlord.
9. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
10. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the Premises.
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11. No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of neighboring building or
premises or those having business with them, whether by use of any musical
instrument, radio, talking machine, unmusical noise, whistling, singing, or in
any other way. No tenant shall throw anything out of the doors, windows or
skylights or down the passageways.
12. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
13. Tenants shall co-operate with Landlord in obtaining maximum
effectiveness of the cooling system by closing draperies when sun's rays fall
directly on windows of Premises.
14. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and street address of the Building.
II. The following regulations are applicable to any additions, alterations or
improvements being undertaken by or for Tenant in the Premises:
A. General
-------
1. All alterations, installations or improvements ("Alterations") to be
made by Tenant in, to or about the Premises shall be made in accordance with the
requirements of this Exhibit and by contractors or mechanics approved by
Landlord.
2. Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, complete plans for the Alterations. Drawings are
to be complete with full details and specifications for all of the Alterations.
3. Alterations must comply with the Building Code applicable to the TPR
Properties and the requirements, rules and regulations and any other
governmental agencies having jurisdiction.
4. No work shall be permitted to commence without the Landlord being
furnished with a valid permit and all other necessary approvals from agencies
having jurisdiction.
5. All demolition, removals or other categories of work that may
inconvenience other tenants or disturb Building operations, must be scheduled
and performed before or after normal working hours and Tenant shall provide the
Building manager with at least 24 hours' notice prior to proceeding with such
work.
6. All inquiries, submissions, approvals and all other matters shall be
processed through the Building manager.
B. Prior to Commencement of Work
-----------------------------
1. Tenant shall submit to the Building manager a request to perform the
work. The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors for Landlord's
approval.
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(ii) Four complete sets of plans and specifications properly stamped by a
registered architect or professional engineer.
(iii) A properly executed building permit application form.
(iv) Four executed copies of the Insurance Requirements agreement in the
form attached to these Tenant's Work Requirements as Exhibit IR from
Tenant's contractor and if requested by Landlord from the contractor's
subcontractors.
(v) Contractor's and subcontractor's insurance certificates including an
indemnity in accordance with the Insurance Requirements agreement.
2. Landlord will return the following to Tenant:
(i) Two sets of plans approved or a disapproval with specific comments as
to the reasons therefor (such approval or comments shall not constitute a
waiver of approval of governmental agencies).
(ii) Two fully executed copies of the Insurance Requirements agreement.
3. Tenant shall obtain a building permit from the Building Department and
necessary permits from other governmental agencies. Tenant shall be responsible
for keeping current all permits. Tenant shall submit copies of all approved
plans and permits to Landlord and shall post the original permit on the Premises
prior to the commencement of any work. All work, if performed by a contractor
or subcontractor, shall be subject to reasonable supervision and inspection by
Landlord's representative. Such supervision and inspection shall be at Tenant's
sole expense and Tenant shall pay Landlord's reasonable charges for such
supervision and inspection.
C. Requirements and Procedures
---------------------------
1. All structural and floor loading requirements shall be subject to the
prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers and all mechanical and electrical work shall be performed
by contractors who are engaged by Landlord in constructing the Building. When
necessary, Landlord will require engineering and shop drawings, which drawings
must be approved by Landlord before work is started. Drawings are to be
prepared by Tenant and all approvals shall be obtained by Tenant.
3. Elevator service for construction work shall be charged to Tenant at
standard Building rates. Prior arrangements for elevator use shall be made with
Building manager by Tenant. No material or equipment shall be carried under or
on top of elevators. If an operating engineer is required by any union
regulations, such engineer shall be paid for by Tenant.
4. If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative. No work will be performed in Building mechanical equipment
rooms without Landlord's approval and under Landlord's supervision.
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5. Tenant's contractor shall:
(i) have a superintendent or foreman on the Premises at all times;
(ii) police the job at all times, continually keeping the Premises
orderly;
(iii) maintain cleanliness and protection of all areas, including
elevators and lobbies.
(iv) protect the front and top of all peripheral HVAC units and
thoroughly clean them at the completion of work;
(v) block off supply and return grills, diffusers and ducts to keep dust
from entering into the Building air conditioning system; and
(vi) avoid the disturbance of other tenants.
6. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for corrective work.
7. All equipment and installations must be equal to the standards
generally in effect with respect to the remainder of the Building. Any
deviation from such standards will be permitted only if indicated or specified
on the plans and specifications and approved by Landlord.
8. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC work.
9. Upon completion of the Alterations, Tenant shall submit to Landlord a
permanent certificate of occupancy and final approval by the other governmental
agencies having jurisdiction.
10. Tenant shall submit to Landlord a set of drawings showing all items of
the Alterations in full detail, as finally constructed.
11. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
III. The following regulations shall be effective with respect to any plans or
specifications that Tenant is required to prepare under the Lease:
Whenever Tenant shall be required by the terms of the Lease to submit
plans to Landlord in connection with any improvement or alteration to the
Premises, such plans shall include at least the following:
1. Floor plan indicating location of partitions and doors (details
required of partition and door types).
2. Location of standard electrical convenience outlets and telephone
outlets.
52
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3. Location and details of special electrical outlets; e.g.,
----
photocopiers, etc.
4. Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located
indicating fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting
fixtures, speakers, etc.
6. Location and specifications of floor covering, paint or paneling with
paint colors referenced to standard color system.
7. Finish schedule plan indicating wall covering, paint, or paneling with
paint colors referenced to standard color system.
8. Details and specifications of special millwork, glass partitions,
rolling doors and grilles, blackboards, shelves, etc.
9. Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latchsets or locksets, closures, stops, and
any special items such as thresholds, soundproofing, etc. Keying
schedule is required.
10. Verified dimensions of all built-in equipment (file cabinets, lockers,
plan files, etc.)
11. Location and weights of storage files.
12. Location of any special soundproofing requirements.
13. Location and details of special floor areas exceeding 50 pounds of
live load per square foot.
14. All structural, mechanical, plumbing and electrical drawings, to be
prepared by the base building consulting engineers, necessary to
complete the Premises in accordance with Tenant's Plans.
15. All drawings to be uniform size (30" x 46") and shall incorporate the
standard project electrical and plumbing symbols and be at a scale of
1/8" = 1' or larger.
16. All drawings shall be stamped by an architect (or, where applicable,
an engineer) licensed in the jurisdiction in which the TPR Properties
are located and without limiting the foregoing, shall be sufficient in
all respects for submission to applicable authorization in connection
with a building permit application.
17. Landlord's approval of the plans, drawings, specifications or other
submissions in respect of any work, addition, alteration or
improvement to be undertaken by or on behalf of Tenant shall create no
liability or responsibility on the part of Landlord for their
completeness, design sufficiency or compliance with requirements of
any applicable laws, rules or regulations of any governmental or
quasi-governmental agency, board or authority.
53
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EXHIBIT IR
CONTRACTOR'S INSURANCE REQUIREMENTS
Building:
Tenant:
Premises:
The undersigned contractor or subcontractor ("Contractor") has been hired
by the tenant or occupant (hereinafter called "Tenant") of the Building
named above or by Tenant's contractor to perform certain work ("Work") for
Tenant in the Premises identified above. Contractor and Tenant have
requested the undersigned landlord ("Landlord") to grant Contractor access
to the Building and its facilities in connection with the performance of
the Work and Landlord agrees to grant such access to Contractor upon and
subject to the following terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord, Leggat
McCall Properties Management Company L.P., and their respective officers,
employees and agents and their affiliates, subsidiaries and partners, and
each of them, from and with respect to any claims, demands, suits,
liabilities, losses and expenses, including reasonable attorneys' fees,
arising out of or in connection with the Work (and/or imposed by law upon
any or all of them) because of personal injuries, bodily injury (including
death at any time resulting therefrom) and loss of or damage to property,
including consequential damages, whether such injuries to person or
property are claimed to be due to negligence of the Contractor, Tenant,
Landlord or any other party entitled to be indemnified as aforesaid except
to the extent specifically prohibited by law (and any such prohibition
shall not void this Agreement but shall be applied only to the minimum
extent required by law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation and Employers, Liability Insurance covering
each and every workman employed in, about or upon the Work, as provided
for in each and every statute applicable to Workmen's Compensation and
Employers' Liability Insurance.
(b) Commercial General Liability Insurance including coverages for
Protective and Contractual Liability (to specifically include coverage for
the indemnification clause of this Agreement) for not less than the
following limits:
Bodily Injury:
$3,000,000 per person
$10,000,000 per
occurrence
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Property Damage:
$3,000,000 per occurrence
$5,000,000 aggregate
(c) Comprehensive Automobile Liability Insurance (covering all owned, non-
owned and/or hired motor vehicles to be used in connection with the Work)
for not less than the following limits:
Bodily Injury:
$1,000,000 per person
$1,000,000 per occurrence
Property Damage:
$1,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that
it has complied with the above requirements regarding insurance and
providing that the insurer will give Landlord ten (10) days' prior written
notice of the cancellation of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the Work
to provide the following insurance:
(a) Comprehensive General Liability Insurance including Protective and
Contractual Liability coverages with limits of liability at least equal to
the limits stated in paragraph 2(b).
(b) Comprehensive Automobile Liability Insurance (covering all owned, non-
owned and/or hired motor vehicles to be used in connection with the Work)
with limits of liability at least equal to the limits stated in paragraph
2(c).
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of , 19 .
Contractor: Landlord:
By:
By:
--------------------------------
By:
--------------------------------
55
<PAGE>
EXHIBIT SNDA
NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
-------------------------------------------------------
THIS AGREEMENT is made and entered into as of this ____ day of_______
1998, by and among BANK BOSTON, a national banking association (hereinafter
called the "Lender"), LYCOS, INC., a ______________________ (hereinafter called
the "Tenant") and 400/460 TOTTEN POND ROAD LIMITED PARTNERSHIP, a Delaware
limited partnership (hereinafter called the "Landlord").
WITNESSETH:
WHEREAS, Landlord owns certain real property located in Middlesex County,
Massachusetts, and more particularly described in Exhibit A attached hereto and
made a part hereof (said property being hereinafter called the "Property"); and
WHEREAS, Landlord and Tenant made and entered into that certain Lease,
dated as of _________________________, 1998 with respect to certain premises
constituting the entire building known as 400-2 Totten Pond Road, Waltham,
Massachusetts, notice of which is recorded herewith or prior hereto (said Lease
being hereinafter called the "Lease" and said premises being hereinafter called
the "Leased Premises"); and
WHEREAS, on or about May ___, 1995, Landlord entered into and delivered
that certain Mortgage and Security Agreement in favor of Lender, which was
recorded in the Middlesex County Registry of Deeds in Book _______, Page _______
(said Mortgage and Security Agreement being hereinafter called the "Security
Deed"), conveying the Property to secure the payment of the indebtedness
described in the Security Deed; and
WHEREAS, on or about May ____ 1995, Landlord entered into and delivered
that certain Assignment of Leases and Rents in favor of Lender, which was
recorded in the Middlesex County Registry of Deeds in Book _____, Page _____
(said Assignment of Leases and Rents being hereinafter called the "Assignment of
Leases"), assigning all of Landlord's right, title and interest as lessor under
the Lease to further secure the indebtedness described in the Security Deed; and
WHEREAS, the parties hereto desire to enter into this Non-Disturbance,
Attornment and Subordination Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender, Tenant and Landlord hereby
covenant and agree as follows:
1. Estoppel. Tenant hereby certifies to Lender that (i) the Lease, as
--------
described above, is the true, correct and complete Lease, and has not been
modified or amended and constitutes the entire agreement between Landlord and
Tenant, and (ii) as far as is known to Tenant, there are no defaults of Landlord
under the Lease and there are no existing circumstances which with the passage
of time, or giving of notice, or both, would give rise to a default under the
Lease and/or allow Tenant to terminate the Lease.
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2. Non-Disturbance. So long as no default on the part of Tenant exists
---------------
under the Lease and continues beyond the expiration of any applicable periods of
notice and grace, nor any other event has occurred, which has continued to exist
beyond the expiration of any applicable periods of notice and grace, as would
entitle the Landlord to terminate the Lease or would cause, without any further
action on the part of Landlord, the termination of the Lease or would entitle
the Landlord to dispossess the Tenant thereunder, the Lease shall not be
terminated, nor shall such Tenant's use, possession or enjoyment of the Leased
Premises or rights under the Lease be adversely affected in any foreclosure or
other action or proceeding in the nature of foreclosure, instituted under or in
connection with the Security Deed, or, in case Lender takes possession of the
Property pursuant to any provisions of the Security Deed or the Assignment of
Leases, unless the Landlord under the Lease would have had such right if the
Security Deed or the Assignment of Leases had not been made. Neither the person
or entity acquiring the interest of the lessor under the Lease as a result of
any such action or proceeding or by way of any deed in lieu of any such action
or proceeding (hereinafter called the "Purchaser") nor Lender, if Lender takes
possession of the Property or otherwise succeeds to the lessor's interest under
the Lease, shall be: (a) liable for any act or omission of any prior lessor
under the Lease; or (b) liable for the return of any security deposit which
Tenant under the Lease has paid to any prior lessor under the Lease, except to
the extent that the amount thereof is turned over to the Purchaser or the
Lender, as the case may be; or (c) subject to any offsets or defenses which the
Tenant under the Lease might have against any prior lessor under the Lease; or
(d) bound by the payment of any base rent, percentage rent or any other payments
which the Tenant under the Lease might have paid for more than the current month
to any prior lessor under the Lease; or (e) bound by any amendment or
modification of the Lease made without Lender's prior written consent; or (f)
bound by any consent by any lessor under the Lease to any assignment of the
lessee's interest in the Lease or sublease of all or any portion of the Leased
Premises made without Lender's prior written consent; or (g) personally liable
for any default under the Lease or any covenant or obligation on its part to be
performed thereunder as lessor, it being acknowledged that Tenant's sole remedy
in the event of such default shall be to proceed against Purchaser's or Lender's
interest in the Property. Notwithstanding anything contained herein to be
contrary, if Lender or any Purchaser succeeds to the lessor's interests under
the Lease, such party shall have absolutely no obligation to perform any
leasehold improvements or other construction obligations in the Leased Premises
on the part of Landlord to have been performed, provided that if such party does
not perform such obligations within a reasonable time after such succession,
then Tenant shall have the right either: (i) to terminate the Lease and to
pursue any and all legal remedies it may have against Landlord and/or any third
parties other than Lender or Purchaser; or (ii) upon the receipt of the prior
written consent, if required, from such party's lender, if any, to perform the
work to have been performed by Landlord, and to withhold from subsequent
payments of rent, additional rent and other amounts to be paid by Tenant an
amount equal to any monetary contribution or reimbursement that Landlord would
have been required to pay under the Lease in respect of such construction work.
<PAGE>
3. Attornment. Unless the Lease is terminated in accordance with
-----------
Paragraph 2, if the interests of the lessor under the Lease shall be transferred
by reason of the exercise of the power of sale contained in the Security Deed
(if applicable), or by any foreclosure or other proceeding for enforcement of
the Security Deed, or by deed in lieu of foreclosure or such other proceeding,
or if Lender takes possession of the Property pursuant to any provisions of the
Security Deed or the Assignment of Leases, the lessee thereunder shall be bound
to the Purchaser or Lender, as the case may be, under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof and
any extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if the Purchaser
or Lender were the lessor under the Lease, and Tenant does hereby attorn to the
Purchaser or Lender, as the case may be (if it takes possession of the
Property), as its lessor under the Lease. Such attornment shall be effective and
self-operative without the execution of any further instruments upon the
succession by Purchaser to the interest of the lessor under the Lease or the
taking of possession of the Property by Lender. Nevertheless, Tenant shall, from
time to time, execute and deliver such instruments evidencing such attornment as
Purchaser or Lender may require. The respective rights and obligations of
Purchaser, Lender and of Tenant upon such attornment, to the extent of the then
remaining balance of the term of the Lease and any extensions and renewals,
shall be and are the same as now set forth in the Lease except as otherwise
expressly provided in Paragraph 2.
4. Subordination. Tenant hereby subordinates all of its right, title and
-------------
interest as lessee under the Lease to the right, title and interest of Lender
under the Security Deed, and Tenant further agrees that the Lease now is and
shall at all times continue to be subject and subordinate in each and every
respect to the Security Deed (including, without limitation, the casualty and
condemnation provisions of the Lease, which are hereby specifically subordinated
to the Security Deed) and to any and all increases, renewals, modifications,
extensions, substitutions, replacements and/or consolidations of the Security
Deed.
5. Assignment of Leases. Tenant hereby acknowledges that all of
--------------------
Landlord's right, title and interest as lessor under the Lease is being duly
assigned to Lender pursuant to the terms of the Assignment of Leases, and that
pursuant to the terms thereof all rental payments under the Lease shall continue
to be paid to Landlord in accordance with the terms of the Lease unless and
until Tenant is otherwise notified in writing by Lender. Upon receipt of any
such written notice from Lender, Tenant covenants and agrees to make payment of
all rental payments then due or to become due under the Lease directly to Lender
or to Lender's agent designated in such notice and to continue to do so until
otherwise notified in writing by Lender. Landlord hereby irrevocably directs and
authorizes Tenant to make rental payments directly to Lender following receipt
of such notice, and covenants and agrees that Tenant shall have the right to
rely on such notice without any obligation to inquire as to whether any default
exists under the Security Deed or the Assignment of Leases or the indebtedness
secured thereby, and notwithstanding any notice or claim of Landlord to the
contrary, and that Landlord shall have no right or claim against Tenant for or
by reason of any rental payments made by Tenant to Lender following receipt of
such notice. Tenant further acknowledges and agrees: (a) that under the
provisions of the Assignment of Leases, the Lease cannot be terminated (nor can
Landlord accept any surrender of the Lease) or modified in any of its terms, or
consent be given to the waiver or release of Tenant from the performance or
observance of any obligation under the Lease, without the prior written consent
of Lender, and without such consent no rent may be collected or accepted by
Landlord more than one month in advance; and (b) that the interest of Landlord
as lessor under the Lease has been assigned to Lender for the purposes specified
in the Assignment of Leases, and Lender assumes no duty, liability or obligation
under the Lease, except only under the circumstances, terms and conditions
specifically set forth in the Assignment of Leases.
<PAGE>
6. Notice of Default by Lessor. Tenant, as lessee under the Lease,
---------------------------
hereby covenants and agrees to give Lender written notice properly specifying
wherein the lessor under the Lease has failed to perform any of the covenants or
obligations of the lessor under the Lease, simultaneously with the giving of any
notice of such default to the lessor under the provisions of the Lease. Tenant
agrees that Lender shall have the right, but not the obligation, within the time
period specified in the Lease (but in no event less than thirty (30) days) for
cure by Landlord (or within such additional time as is reasonably required to
cure any such default, provided Lender shall be diligently prosecuting the same)
to correct or remedy, or cause to be corrected or remedied, each such default
before Tenant may take any action under the Lease by reason of such default.
Such notices to Lender shall be delivered in duplicate to:
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
with a copy to:
Goulston & Storrs
400 Atlantic Avenue
Boston, MA 02110
Attn: First National Bank of Boston
or to such other address as the Lender shall have designated to Tenant by giving
written notice to Tenant at ________________________________________, Attention:
_____________________________, with a copy to Michael J. Riccio, Esq., Hutchins,
Wheeler & Dittmar, 101 Federal Street, Boston, MA 02110, or to such other
address as may be designated by written notice from Tenant to Lender.
7. No Further Subordination. Except as expressly provided to the contrary
------------------------
in Paragraph 4 hereof, Landlord and Tenant covenant and agree with Lender that
there shall be no further subordination of the interest of lessee under the
Lease to any lender or to any other party without first obtaining the prior
written consent of Lender. Any attempt to effect a further subordination of
lessee's interest under the Lease without first obtaining the prior written
consent of Lender shall be null and void.
8. As to Landlord and Tenant. As between Landlord and Tenant, Landlord
-------------------------
and Tenant covenant and agree that nothing herein contained nor anything done
pursuant to the provisions hereof shall be deemed or construed to modify the
Lease.
9. As to Landlord and Lender. As between Landlord and Lender, Landlord
-------------------------
and Lender covenant and agree that nothing herein contained nor anything done
pursuant to the provisions hereof shall be deemed or construed to modify the
Security Deed or the Assignment of Leases.
10. Title of Paragraphs. The titles of the paragraphs of this agreement
-------------------
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this agreement.
11. Governing Law This agreement shall be governed by and construed in
-------------
accordance with the laws of the Commonwealth of Massachusetts.
<PAGE>
12. Provisions Binding. The terms and provisions hereof shall be binding
------------------
upon and shall inure to the benefit of the heirs, executors, administrators,
successors and permitted assigns, respectively, of Lender, Tenant and Landlord.
The reference contained to successors and assigns of Tenant is not intended to
constitute and does not constitute a consent by Landlord or Lender to an
assignment by Tenant, but has reference only to those instances in which the
lessor under the Lease and Lender shall have given written consent to a
particular assignment by Tenant thereunder.
<PAGE>
IN WITNESS WHEREOF, the parties have hereunto set their respective hands
and seals as of the day, month and year first above written.
LENDER:
BANK BOSTON, a national banking association
By:
----------------------------------------
Title:
TENANT:
LYCOS, INC.
By:
----------------------------------------
Title:
LANDLORD
400/460 TOTTEN POND ROAD LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Leggat McCall Properties, Inc., general partner
By:
----------------------------------------
Title:
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ______________ __________________, 1998
Then personally appeared the above-named ____________________________, the
duly authorized ________________________________ of Bank Boston, and
acknowledged the foregoing instrument to be his/her free act and deed and the
free act and deed of Bank Boston, before me
-------------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF _________________ __________________, 1998
Then personally appeared the above-named ______________, the duly
authorized _______________ of Lycos, Inc., and acknowledged the foregoing
instrument to be his/her free act and deed and the free act and deed of Lycos,
Inc., before me
-------------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ___________________ _________________, 1998
Then personally appeared the above-named
_______________________________________, _________________________ of Leggat
McCall Properties, Inc., in its capacity as general partner of 400/460 Totten
Pond Road Limited Partnership, and acknowledged the foregoing to be the free act
and deed of 400/460 Totten Pond Road Limited Partnership, before me
----------------------------------------
Notary Public
<PAGE>
EXHIBIT LOC
[FORM OF LETTER OF CREDIT]
ISSUANCE DATE:
BENEFICIARY: [Name of Landlord]
--------------------------- IRREVOCABLE
--------------------------- STANDBY LETTER
Attn: OF CREDIT NO:
----------------------
("Landlord")
ACCOUNTEE/APPLICANT: CREDIT AMOUNT:
[Tenant]
[Address] DATE AND PLACE
Boston, MA 02109 OF EXPIRY:
Attn: Boston, MA, ______________, 19__
Ladies and Gentlemen:
We hereby establish our irrevocable Letter of Credit in your favor for
account of the Applicant for an amount of ______________________ Dollars US
(US$______________.00), available by your draft(s) on ourselves at sight,
accompanied by:
Beneficiary's statement, signed by a purportedly authorized
officer/official of the Beneficiary, as follows:
"Beneficiary is entitled under the terms and conditions of that
certain Lease dated as of ____________, 199__, between Beneficiary and
Accountee, to draw ________________ US Dollars (US$_______.___),
representing all or a portion of the balance under [Name of Bank]
Letter of Credit No._____________, and to hold or apply the same in
accordance with the Lease."
It is a condition of this Letter of Credit that it shall be deemed
automatically extended, without amendment, for an additional period of one year
from the present or any future Date of Expiry unless, not later than sixty (60)
days prior to any such date, we shall advise you by Certified or Registered
mail, postage prepaid, return receipt requested, that we elect not to so extend
this Letter of Credit for any such additional period, in which case this Letter
of Credit shall expire on the then-scheduled Date of Expiry. Upon receipt of any
such notice, you may draw hereunder your sight draft on ourselves. In no event
shall this Letter of Credit extend beyond 11:59 p.m. Boston time,
___________________, 199__.
Reference in this Letter of Credit to the Lease dated ________________,
199__, by and between Beneficiary and Accountee is for identification purposes
only. Such Lease is not incorporated herein or made a part of this Letter of
Credit.
<PAGE>
All drafts must state "Drawn under [Name of Bank] Letter of Credit
No.___________, dated __________________, 19___.
Except as otherwise expressly stated, this Credit is subject to the
"Uniform Customs and Practice for Documentary Credits (19___ Revision),
International Chamber of Commerce Publication 500."
We engage with you that your drafts drawn under and in accordance with the
terms and conditions hereof will be duly honored by us if presented at this
office, [Address], [City], [State], on or before the Date of Expiry stated above
(as the same may be extended in accordance with the terms hereof).
Very truly yours,
[NAME OF BANK]
By:
--------------------------------------------
Authorized Signature
<PAGE>
EXHIBIT TS
(Tenant Security Provisions)
<PAGE>
EXHIBIT KE
(Kitchen Equipment)
<PAGE>
EXHIBIT GE
(Gym Equipment)
<PAGE>
EXHIBIT REL
-----------
ACKNOWLEDGEMENT AND ASSUMPTION
------------------------------
OF RISK AND RELEASE
-------------------
I, ____________________________________, residing at
_________________________________, ___________________ am an employee of Lycos
Inc. ("Tenant"), a tenant at 400-2 Totten Pond Road, Waltham, Massachusetts. I
desire to be able to use the physical fitness and conditioning facilities (the
"Facilities") being provided by 400/460 Totten Pond Road Limited Partnership
(the "Owner") at 400-2 Totten Pond Road in Waltham, Massachusetts (the
"Building"). As a material inducement to the Owner and Tenant to allow me to use
the Facilities, I have carefully read, considered and understood the following
release and signed the same of my own free will. I understand that, by so doing,
I am giving up certain legal rights for monetary damages or other compensation,
to which I might otherwise be entitled.
I understand and acknowledge that physical fitness training carries with
it a significant risk of physical injury, some of which may be serious or even
fatal. I agree that I alone am responsible for my own safety while going to and
from and using the Facilities. Being fully aware of the risks, conditions and
hazards involved with the proposed activities, for myself and my heirs,
successors and assigns, I HEREBY RELEASE AND DISCHARGE the following persons and
entities, together with their respective successors and assigns, from any and
all damage, liability, responsibility, claims, counterclaims and causes of
action, whether now existing or hereafter first accruing, arising directly or
indirectly from or as a result of any bodily injury, property damage or death in
connection with my use of the Facilities: 400/460 Totten Pond Road Limited
Partnership, Leggat McCall Properties, Inc., Leggat McCall Properties
Management, L.P., Lycos, Inc. and the employees, directors, officers, partners,
limited partners, agents and attorneys of each of the foregoing, and their
respective successors and assigns; and I HEREBY EXPRESSLY WAIVE EACH AND EVERY
SUCH CLAIM, COUNTERCLAIM AND CAUSE OF ACTION.
I understand that the Facilities have been provided by the Owner to the
Tenant as a complimentary amenity for the Tenant and its employees and invitees,
and that the Facilities may be unattended, and that each user of the Facilities
is solely responsible for determining which equipment and what level of exercise
is appropriate for himself or herself. I hereby represent that I am qualified to
make such a judgment for myself. In addition to the releases set forth above, in
the event that the Owner or any party described above suffers any loss, cost,
damage or expense as a result, direct or indirect, of my use of the Facilities,
I WILL INDEMNIFY AND HOLD SUCH PARTY HARMLESS FROM AND AGAINST THE SAME,
including without limitation the costs and fees reasonably incurred in defending
any claim.
<PAGE>
IN WITNESS WHEREOF, I have signed this Acknowledgment and Assumption of Risk
and Release, under seal, this _____ day of ______________, 199___.
Witness:
------------------------------ -------------------------------
Name: Name:
-------------------------
Address:
----------------------
------------------------------