Massachusetts-Norwood-846 University Avenue Lease - Prudential Insurance Co. of America and Phoenix Technologies Ltd.
AMENDED AND RESTATED LEASE AGREEMENT
This Amended and Restated Lease Agreement made this 15th day of March, 1995,
by The Prudential Insurance Company of America, a New Jersey corporation,
authorized to do business in Massachusetts with an office at c/o Prudential
Real Estate Investors, Three Gateway Center, 13th Floor, 100 Mulberry Street,
Newark, New Jersey 07102-4077 (hereinafter called "Landlord") and Phoenix
Technologies Ltd., a Delaware corporation with an office at 846 University
Avenue, Norwood, Massachusetts 02081 (hereinafter called "Tenant").
WITNESSETH THAT
Landlord and Tenant previously entered into a lease dated June 29, 1989
(the "Original Lease") with respect to the Building commonly known as 846
University Avenue, Norwood, Massachusetts (the "Building"). Pursuant to a
letter agreement dated January 11, 1995 among Tenant, Maric, Inc. and others
(the "Preliminary Letter Agreement"), Tenant agreed to restructure the
Original Lease and to pay for the construction of tenant improvements in
those portions of the Building which Tenant was relinquishing. Landlord and
Tenant have agreed to amend and restate the Original Lease to effect the
restructuring contemplated by said letter agreement.
In consideration of the rent and covenants herein set forth and contained,
on the part of Tenant to be paid, performed and observed, Landlord does
hereby demise and lease unto Tenant approximately 17,638 rentable square feet
(RSF) on the first floor (hereinafter called the "Premises") per Exhibit "A"
in the Building containing 63,514 square feet located on a parcel of land
situated on University Avenue, containing approximately 4.612 acres of land
(the "Lot"), together with the right to use in common with Landlord and
others from time to time entitled thereto the common areas of the Building
(including without limitation lobbies, restrooms, elevators), all
appurtenances to the Building, the parking spaces and the Lot, including the
right to use in common the roads, driveways and utilities serving or adjacent
to the Building or the Lot (hereinafter collectively called the "Property").
The Premises are outlined on Exhibit "A" attached and made a part hereof. The
Building and Lot are outlined on Exhibit "A-1" attached and made a part hereof.
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ARTICLE I
TERM
1.1 To have and to hold the Premises for an original term beginning at
12:01 a.m. on the Term Commencement Date, and shall end at 12:00 midnight on
July 27, 1998.
1.2 The Term Commencement Date shall be the date hereof. The "Adjustment
Date" shall mean the Rent Commencement Date as such term is defined in the Lease
between Landlord and NYL of even date (the "NYL Lease"), but in no event later
than June 1, 1995. Landlord and Tenant shall, at the request of either, execute
an acknowledgment, specifying the Adjustment Date.
ARTICLE II
PAYMENT OF RENT
Tenant covenants and agrees with Landlord to pay as rent during the term
hereof and so long thereafter as Tenant or anyone claiming under Tenant occupies
the Premises:
2.l A fixed rental at the rates and in the amounts set forth in Exhibit 1
attached and made a part hereof on the first day of each month in advance
commencing on the Term Commencement Date. In the event there is any partial
month at the beginning or end of the term, the monthly rent for such partial
month will be adjusted proportionately and shall be paid on the Term
Commencement Date or the first of the month, as the case may be. Fixed rent
shall continue to be payable hereunder, as adjusted in accordance with
Exhibit 1, through July 27, 1998, notwithstanding that Tenant may cease to
occupy space in the Building.
2.2 Tenant shall pay to Landlord, as part of Operating Costs as specified
in Section 2.2.5, Tenant's proportionate share of the actual taxes levied
against the Property, including any adjustment for abatements of all real
estate and personal property taxes levied or assessed or becoming due on the
lot and the Building and other improvements located on the Lot for each tax
period included in the term and a proportionate amount for any partial period
at the beginning and end thereof.
2.2.1 Taxes shall include Tenant's proportionate share of each
installment of any public, special or betterment assessment levied or
assessed or becoming payable for or in respect of the Lot or Building, or
both for each installment period wholly included in the term, and, a
proportionate amount
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for any fraction of an installment period included in the term at the
beginning or end thereof, provided only in the case of each respective
assessment that Landlord shall have elected to pay such assessment in
installments over the longest period permitted by law and not otherwise.
Landlord hereby represents to Tenant that to the best of its knowledge, no
such special assessments have been assessed against the Lot and Building in
the past nor are any pending or threatened at the date hereof.
Landlord shall, within thirty (30) days of receipt of Tenant's Request,
deliver to Tenant copies of tax bills and accounting as to how Tenant's share
of taxes was arrived at.
Landlord agrees to monitor the tax assessments of the Lot and Building in
relationship with other properties in the town and to the extent Landlord
deems appropriate to timely file applications for abatement of real estate
taxes and reductions of assessed valuation. In the event Landlord elects not
to seek an abatement after being requested to do so by Tenant, Landlord shall
authorize Tenant to pursue, at Tenant's expense, an abatement.
2.2.2 All taxes levied on the personal property of Tenant shall be the
obligation of and be paid by Tenant whether the same is assessed to Tenant or
Landlord and whether the same shall be considered part of the realty or
personalty and further that Tenant agrees to indemnify, and hold harmless the
Landlord from any loss, damage, debt or claim resulting therefrom.
2.2.3 If, at any time during the term, under the law of the United States
or any state or political subdivision thereof in which the Premises are
situated, there shall be adopted some other method of taxation on real estate
as a substitute in whole or in part for taxes on real estate as now
constituted, such as tax on the fixed rent, additional rent or the other
charges payable by Tenant hereunder, by whatever name called which is levied,
assessed or imposed against Landlord or the rent or other charges payable
hereunder to Landlord, (which substitute tax on the fixed rent, additional
rent, or other charges or other substitute method of taxation are hereinafter
collectively referred to as "Substitute Taxes" and shall be applicable to all
owners of commercial real estate generally), Tenant shall pay its
proportionate share of Substitute Taxes, calculated as if the tax parcel on
which the Building is located was the only property of Landlord. Provided,
however, that the taxation of Landlord's income by the United States and the
Commonwealth of Massachusetts, presently referred to as the "Federal Income
Tax" and "State Income Tax" or similar methods of taxation, including any
local income taxes, are not intended to be herewith applicable and are
specifically excluded, and
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Tenant shall not be required to pay any such income taxes, and further
provided that Tenant shall not be required to pay any franchise, corporate,
estate, inheritance, succession, capital gains, transfer, profits or revenue
or other similar taxes of Landlord. Furthermore, Tenant shall not be
required to pay any amounts with respect to any real estate taxes, personal
property taxes or betterment assessments (i) relating to or resulting from
the sale of the Building, (ii) for periods not within the term of this Lease,
(iii) fines or penalties incurred due to a failure of Landlord to make timely
payment of taxes. Tenant's obligations under this Section 2.2.3 shall
survive termination of this Lease.
2.2.4 Tenant shall provide Comprehensive Liability Insurance
indemnifying Landlord and Tenant against all claims and demands for any
injury to person or property (except for claims resulting from the negligence
of Landlord, its principals, partners, officers, representative, contractors,
agents and/or employees) which may be claimed to have occurred on the
Premises in amounts which shall, at the beginning of the term, be not less
than $l,000,000 for property damage, $l,000,000 for injury or death of one
person and $l,000,000 for injury or death of more than one person in any
single accident, and, from time to time during the term, shall be in such
higher amounts, if any, as are customarily carried in the suburban Boston
area on property similar to the Premises and used for similar purposes. Such
insurance shall be written by companies licensed to do business in
Massachusetts and be reasonably acceptable to Landlord and may be in the form
of a blanket and as an umbrella policy covering more than one location.
Landlord acknowledges that Tenant's current insurance company is acceptable.
Tenant may provide such protection through a self insurance program
reasonably acceptable to Landlord. Tenant shall provide Landlord with
evidence, reasonably acceptable to Landlord, of all insurance required in
connection with the Premises.
2.2.4.1 Tenant shall pay to Landlord, as a part of Operating Costs as
specified in Section 2.2.5, Tenant's proportionate share of the cost to
Landlord of taking out and maintaining throughout the term of this lease, and
Landlord shall maintain throughout the term of this Lease, the following
insurance protecting Landlord:
2.2.4.1.1 (a) Fire Insurance with extended coverage in an amount at least
equal to the full replacement cost of the Building at the time of loss, and
rent loss insurance protecting Landlord against abatement or loss of rent
(resulting from damage to the building) in an amount equal to at least all
rent and additional rent payable under this Article II for one year or such
other period as may be required
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by Landlord's mortgagee; and (b) Landlord shall provide Comprehensive
Liability Insurance indemnifying Tenant and Landlord against all claims and
demands for any injury to person or property (except for claims resulting
from the negligence of Tenant, its principals, partners, officers,
representative, contractors, agents and/or employees) which may be claimed to
have occurred on the Property in amounts which shall, at the beginning of the
term, be not less than $l,000,000 for property damage, $l,000,000 for injury
or death of one person and $l,000,000 for injury or death of more than one
person in any single accident, and, from time to time during the term, shall
be in such higher amounts, if any, as are customarily carried in the suburban
Boston area on property similar to the Premises and used for similar purposes.
2.2.4.1.2 Insurance against loss or damage from sprinklers and from
leakage or explosion or cracking of boilers, pipes carrying steam or water,
or both, pressure vessels or similar apparatus, in the so-called "broad form"
and in such amounts as Landlord may reasonably require. Also, insurance
against other hazards as may from time to time be required by any bank,
insurance company or other lending institution holding a mortgage on the
Premises, provided that such insurance is customarily carried in the suburban
Boston area on property similar to the Premises and used for similar purposes.
2.2.4.1.3 Policies for insurance required under the provisions of
Subsections 2.2.4.1.1 and 2.2.4.1.2 shall, in the case of loss, be first
payable to the holders of any mortgages on the Premises and shall be
deposited with the holder of any mortgage on the Premises or with Landlord,
as Landlord may elect. Landlord reserves the right to provide the insurance
required under Sections 2.2.4.1.1 and 2.2.4.1.2 or insurance in substitution
acceptable to Landlord through a blanket policy and Tenant agrees to pay an
allocated portion of the costs of such blanket policy. The amount of
insurance carried by Landlord pursuant to Sections 2.2.4.1.1 and 2.2.4.1.2
shall be reasonably acceptable to Tenant to insure sufficient net proceeds to
restore the Premises pursuant to Article IV.
2.2.4.2 All insurance which is carried by either party with respect to
the Premises, whether or not required; if either party so requests it can be
so written, and if it does not result in additional premium, or if the
requesting party agrees to pay any additional premium, shall include
provisions which either designate the requesting party as one of the insured
or deny to the insurer acquisition by subrogation of rights of recovery
against the requesting party. The requesting party shall be entitled to have
certificates of any policies containing such provisions. Each party hereby
waives all rights of recovery against the other for loss or injury
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against which the waiving party is protected by insurance containing said
provisions. Neither Landlord nor Tenant shall acquire as insured under any
insurance carried by the other party any right to participate in the
adjustment of loss or to receive insurance proceeds and agrees upon request
promptly to endorse and deliver to Landlord or Tenant as the case may be any
checks or other instrument in payment of loss in which the other is named
payee.
2.2.4.3 Landlord shall, at Tenant's expense, install a separate electric
meter for lighting, office machines and tenant equipment including any
special installation unique to Tenant's use in the Premises which meter may,
at Landlord's discretion, either be a meter which is read by the utility
providing such electrical service or a so-called check meter monitoring
Tenant's usage of electricity. Tenant agrees to reimburse Landlord monthly
throughout the term for, or pay directly to the applicable utility all costs
related to electricity consumed in the Premises for lighting, office
machines, tenant equipment including any special installations unique to
Tenant's use. If Tenant is to reimburse Landlord, Tenant's electrical
reimbursement charge will be calculated by multiplying Tenant's usage times
Landlord's per unit cost of electricity for the period to which the
reimbursement applies.
2.2.5 OPERATING COSTS
With reference to the Operating Costs described in this Section 2.2, it is
agreed as follows:
a) Commencing on the date hereof, Tenant shall pay to the Landlord, as
additional rent, monthly, in advance, during the first lease year,
one-twelfth (1/12) of Tenant's proportionate share, of Landlord's good faith
estimate of calendar year 1995 actual (adjusted to reflect a full year's
operations) Controlled Operating Costs for the Property, but in no event more
than $2.82 per rentable square foot for calendar year 1995. Commencing
January 1, 1996, Tenant shall pay to Landlord, as additional rent, monthly,
in advance, during the balance of the lease term, 1/12 of Tenant's
proportionate share of Landlord's good faith estimate of the Controlled
Operating Costs for the Property for such lease year. Tenant shall receive
by March 31 following each lease year a statement summarizing the actual
Controlled Operating Costs in reasonable detail for such lease year. If the
total amount of estimated Controlled Operating Costs actually received by the
Landlord from the Tenant for any lease year shall be less than Tenant's
proportionate share of the actual Controlled Operating Costs for such lease
year, then the amount of such difference shall be payable by the Tenant
within twenty (20) days of receipt of the annual statement summarizing
Operating Costs. If the total
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amount of the estimated Controlled Operating Costs actually received by the
Landlord from the Tenant for any lease year shall be greater than Tenant's
proportionate share of the actual Controlled Operating Costs for such lease
year, then the Landlord shall pay to the Tenant within twenty (20) days
following receipt by Tenant of such statement the amount of such excess. The
obligations of Landlord and Tenant with respect to the adjustment of
Controlled Operating Costs shall survive the termination or expiration of the
term.
b) Commencing on the date hereof, Tenant shall pay to the Landlord as
additional rent, monthly, in advance, during the Lease term, installments of
Landlord's good faith estimate of Uncontrolled Operating Costs equal to
one-twelfth (1/12) of Tenant's proportionate share of such estimated
Uncontrolled Operating Costs for such year. Tenant shall receive by March 31
following each lease year a statement summarizing the actual Uncontrolled
Operating Costs in reasonable detail for such lease year. If the total
amount of estimated Uncontrolled Operating Costs actually received by the
Landlord from the Tenant for any lease year shall be less than Tenant's
proportionate share of the actual Uncontrolled Operating Costs for such lease
year, then the amount of such difference shall be payable by the Tenant
within twenty (20) days of receipt of the annual statement summarizing actual
Uncontrolled Operating Costs. If the total amount of the estimated
Uncontrolled Operating Costs actually received by the Landlord from the
Tenant for any lease year shall be greater than Tenant's proportionate share
of actual Uncontrolled Operating Costs for such lease year, then the Landlord
shall pay to the Tenant within twenty (20) days following receipt by Tenant
of such statement the amount of such excess. The obligations of Landlord and
Tenant with respect to the adjustment of Uncontrolled Operating Costs shall
survive the termination or expiration of the term.
c) As used herein, estimated Controlled Operating Costs and estimated
Uncontrolled Operating Costs shall be adjusted to reflect 100% occupancy for
twelve (12) months, for the immediately preceding lease year.
d) For the purposes of this Article,
(i) "lease year" shall mean any calendar year from January 1 to December 31.
The first lease year shall begin on the Term Commencement Date and end on
December 31, 1995, and the last lease year during the term of this Lease
shall end on the date this Lease terminates;
(ii) "Uncontrolled Operating Costs" shall mean and include all real estate
taxes and assessments, all costs for
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insurance, all charges for electricity (excluding electricity furnished to
tenants for lighting, office machines and Tenant equipment including any
installation unique to Tenant's use) and all charges and for assessments
for gas, sewer and water services, sewer line maintenance, the cost of an
on-site management office and all net out-of-pocket costs incurred by
Landlord in connection with the operation of the cafeteria (excluding rent
for the space occupied by the cafeteria), provided, that Tenant may on 30
days notice to Landlord and NYL Benefit Services Company, Inc., discontinue
the use of the cafeteria and in such event no portion of the costs of the
cafeteria shall be included as an Operating Cost;
(iii) "Controlled Operating Costs" shall include any and all other costs
reasonably and actually incurred by Landlord in the operation and maintenance
of the Premises including but not limited to:
(1) All reasonable expense incurred by the Landlord or its agents which shall
be directly related to employment of day and night supervisors, janitors,
handymen, engineers, mechanics, electricians, plumbers, porters, cleaners
and other 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 the
Landlord or its agents pursuant to any collective bargaining agreement), for
services in connection with the operation, repair, maintenance, cleaning and
protection of the Building, the Building heating, ventilating,
air-conditioning, electrical, (exclusive of the charges for electricity)
plumbing, and elevator systems and the Lot and personnel engaged in
supervision of any of the persons mentioned above, all in a manner which is
customarily provided to first-class office space in suburban Boston
(collectively, "the Operation" of the Building). All costs related to
personnel who provide services to properties other than the Building shall
be allocated based on the time spent at each property;
(2) The cost of services, materials and supplies furnished or used in the
Operation of the Property;
(3) The cost of replacements for tools and equipment used in the Operation
of the Property;
(4) The amounts paid to managing agents and for reasonable legal and other
professional fees relating to the Operation of the Property but excluding
such fees paid in connection
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with negotiations for leases; provided, however, management fees for the
Building shall not exceed $54,000 per year for the first three years of
the Lease or 5% of the gross rental income of the Building for any period of
time thereafter.
(5) Insurance Premiums in connection with the Property as set forth in
Section 2.2.4.1 above;
(6) The costs of plowing and snow removal, landscaping; maintaining
driveways, the shared roadway and walkways servicing the Building;
maintaining loading docks in good repair and reasonably free of snow and
ice;
(7) Amounts paid to independent contractors for services, materials and
supplies furnished for the Operation of the Property;
(8) All other expenses incurred in connection with the operations of the
Property.
(iv) "Operating Costs" shall mean Controlled Operating Costs and
Uncontrolled Operating Costs. Operating Costs shall be computed on an
accrual basis and shall be determined in accordance with generally accepted
accounting principles consistently applied. They may be incurred directly
or by way of reimbursement, and shall include taxes applicable thereto.
The Landlord shall use reasonable efforts to obtain competitive prices for
the goods and services provided in the operation of the Property. The
following shall be excluded from Operating Costs:
(1) Salaries and related benefits or any portion of officers and executives
of the Landlord who are not classified as property managers or as
reporting to property managers;
(2) Depreciation of the Building;
(3) Interest and amortization on indebtedness;
(4) Expenses for which the Landlord, by the terms of this Lease or any other
lease covering any portion of the Property, makes a separate charge;
(5) The cost of any electric current furnished by third party utilities
directly to and paid for by the Tenant or any other tenant of the
Property;
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(6) Leasing fees or commissions except Landlord and Tenant shall pay
brokerage fees as set forth in the Preliminary Letter Agreement;
(7) Repairs or other work occasioned by the exercise of right of eminent
domain;
(8) Renovating or otherwise improving or decorating, painting or redecorating
leased space for tenants or other occupants or vacant tenant space, other
than ordinary maintenance provided to all tenants, except in all common
areas;
(9) Landlord's costs of utilities and other services sold separately to
tenants for which Landlord is entitled to be reimbursed by such tenants
as an additional charge over and above the base rent and operating
expense or other rental adjustments payable under the lease with such
tenant;
(10) Expenses in connection with services or other benefits of a type which
Tenant is not entitled to receive under the Lease but which are provided
to another tenant or occupant;
(11) Expenses, including rental, created under any ground or underlying
leases;
(12) Any particular items and services for which tenant(s) otherwise
reimburses Landlord by direct payment over and above fixed rent and
operating expense adjustments;
(13) Any expense for which Landlord is compensated through proceeds of
insurance, condemnation or otherwise;
(14) Expenses for periods of time not included within the term of this Lease;
(15) All other items which under generally accepted accounting principles as
consistently applied in the real estate industry for first-class office
buildings are properly classified as capital expenditures.
Notwithstanding the foregoing, if during the Term of this Lease,
Landlord shall make a capital expenditure which is necessary to meet the
requirements of applicable law, regulations or ordinances first
applicable after the date hereof, or which is designed to increase the
operating efficiency of the Building (which for purposes hereof, shall
mean that the aggregate cost savings related to such capital
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improvement can reasonable be expected to equal the amount of such
capital expenditure (plus the interest factor hereinafter referred to)
within the generally accepted useful life of such improvement), the
total cost of which is not properly includable in Operating Costs for
the year in which it was made, there shall nevertheless be included in
such Operating Costs for each succeeding year the annual charge-off of
such capital expenditure. Annual charge-off shall be the amount which
will fully amortize the original capital expenditure over the number of
years of useful life of the improvement made with the capital
expenditure. Annual charge-off shall be the amount which will fully
amortize the original capital expenditure over the number of years of
useful life of the improvement made with the capital expenditure, on the
basis of level annual payments of combined principal and interest at the
rate then being charged by institutional lenders for loans to finance
the item over its useful life. 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;
(16) Cost of rebuilding after casualty or taking or in the removal, abatement
or remediation of hazardous substances or materials caused by Landlord
or persons other than Tenant;
(17) All Operating Costs shall be reduced by the amount (net of collection
costs) of any insurance reimbursement, discount or allowance received by
the Landlord in connection with such costs; and
(18) All costs, charges and expenses not properly included as operating costs
under the NYL Lease.
(v) Tenant's "proportionate share" as used in this Lease shall be 100% of
the total Operating Costs until the Adjustment Date and thereafter shall be
27.77% of the total Operating Costs unless subsequently adjusted pursuant to
Exhibit 1.
d) By March 31 following the completion of each lease year, Landlord shall
submit to Tenant a statement in reasonable detail showing the actual
Controlled and Uncontrolled Operating Costs for such lease year. Tenant
shall have thirty (30) days after receipt of such statement to notify
Landlord that Tenant intends to cause such statement to be reviewed. After
receipt of such notice, and so long as Tenant is not in default (after the
expiration of applicable grace periods) hereunder unless the default is
related to a dispute relating to Operating Expenses, Landlord shall make such
statement, and the supporting documentation therefore, available to Tenant or
Tenant's
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representative for inspection at the location Landlord maintains such records
during normal business hours and upon reasonable advance notice. Tenant
shall provide Landlord with a copy of the report issued in connection with
such inspection. In the event Tenant does not give Landlord notice within
such 30-day period, Landlord's statement shall be deemed to be accepted by
Tenant without dispute and Tenant's rights to inspect Landlord's records with
respect to such statement shall be waived. The right to inspect pursuant to
this Section 2.2.5(d) shall not extend to any assignees or subtenants of the
original Tenant hereunder.
ARTICLE III
COVENANTS OF TENANT AND LANDLORD
Tenant and Landlord covenant and agree:
3.l To pay when due all rent and other charges payable by Tenant hereunder.
3.2 To keep the Premises including, without limitation, both the inside
and outside of all doors therein, in the same order and repair as they are in
on the Rent Commencement Date, reasonable use and wear and damage by fire or
casualty and damage by Landlord, its principals, partners, officers, agents,
contractors, employees and other persons for whose conduct Landlord is
responsible only excepted. Subject to damage covered by manufacturer's
warranties or otherwise insured against and not the fault of Landlord, its
principals, partners, officers, agents, contractors, employees or other
persons for whose conduct Landlord is responsible, Tenant shall keep all
interior glass in good repair. Landlord shall also make, at Tenant's expense,
all repairs to the Building, (including, without limitation, the structure,
outer walls, exterior glass and roof thereon and common areas therein) and
the Lot, if the same are occasioned by Tenant's improper use thereof, or by
the intentional acts or negligence of Tenant, its agents, invitees or
employees and if such repairs are not reimbursable by Landlord's insurance
carriers. Maintenance and repair of equipment located within the Premises
such as kitchen fixtures, special air conditioning equipment, private
bathroom fixtures or any other type of special equipment together with
related plumbing or electrical services, whether installed by Tenant or by
Landlord on behalf of Tenant, shall be the sole responsibility of Tenant and
Landlord shall have no obligation in connection therewith, except for the
kitchen sink and associated plumbing which Landlord shall maintain and
repair. Tenant shall continuously occupy the Premises for its intended use
for the term of this Lease.
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3.3 The Tenant shall indemnify and save harmless the Landlord, its
partners, officers, agents and employees of the Landlord, from and against
all claims, expenses or liability of whatever nature resulting from any act,
omission or negligence of the Tenant, or the Tenant's contractors, licensees,
agents, servants or employees, or the failure of the Tenant or such persons
to comply with any rule, order, regulation or lawful direction now or
hereinafter in force of any public authority, to the extent the same are
related directly to the Premises or the Tenant's use thereof, or arising
directly or indirectly from any accident, injury or damage, however caused,
to any person or property on or about the Premises; provided, however, that
in no event shall the Tenant be obligated under this Section 3.2 to indemnify
the Landlord, its agents, principals, partners, officers, employees,
contractors, or representatives of the Landlord where such claim, expense or
liability arose from any default, act, omission, fault, negligence or other
misconduct of the Landlord, Landlord's contractors, agents, principals,
partners, officers, employees, or representatives on or about the Premises or
the Property.
This indemnity and hold harmless agreement shall include indemnity against
all reasonable expenses and liability incurred in or in connection with any
such claim or proceeding brought thereon and the defense thereof with counsel
reasonably acceptable to the Landlord or counsel selected by an insurance
company which has accepted liability for such claim.
3.3.1 The Tenant agrees to use and occupy the Premises and to use other
portions of the Lot as the Tenant is herein given the right to use at the
Tenant's own risk, and the Landlord shall have no responsibility or liability
for any loss of or damage to fixtures, equipment or other personal property
of the Tenant except for damage caused by the willful or negligent acts of
Landlord, its agents, principals, partners, officers, employees, or
representatives.
3.3.2 The Tenant agrees that the Landlord shall not be responsible or
liable to the Tenant, or to those claiming by, through or under the Tenant,
for any loss or damage resulting to the Tenant or those claiming by, through
or under the Tenant, or its or their property, for any loss or damage from
the breaking, bursting, crossing, stopping or leaking of electric cables and
wires, and water, gas, sewer or steam pipes or like matters, except for such
loss or damage resulting from the negligence of Landlord, its agents,
principals, partners, officers or employees or independent contractors
retained by or on behalf of Landlord.
3.3.3 All merchandise, furniture, fixtures, effects and property of every
kind, nature and description of Tenant and of
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all persons claiming through or under Tenant, except as herein otherwise
provided, which may be on the Premises during the continuance of this lease
or any occupancy by Tenant thereof, shall be at the sole risk and hazard of
Tenant, and if the whole or any part thereof shall be destroyed or damaged by
fire, water or otherwise, or by the leakage or bursting of water pipes, steam
pipes or other pipes, by theft or from any other cause, no part of said loss
or damage is to be charged to or be borne by Landlord; except to the extent
such loss or damage (i) results from the negligence or willful act of
Landlord, its agents, principals, partners, contractors, officers or
employees or (ii) is covered by Landlord's insurance.
3.4 So long as no default hereunder has occurred and is continuing,
Tenant remains directly liable under the terms of this Lease and the use of
the Premises by the proposed subtenant is consistent with the character and
quality of the Building, Tenant may assign and/or sublet this Lease with the
consent in writing of Landlord which consent will not be unreasonably
withheld or delayed. Tenant shall reimburse Landlord promptly for reasonable
legal or other expenses incurred by Landlord in connection with any request
by Tenant for such consent. In all cases, 50% of any amounts received by
Tenant in excess of its reasonable expenses in connection with such
assignment or sublet and any other amounts paid to Landlord hereunder shall
be paid to Landlord immediately on receipt. No assignment or subletting
shall in any way impair the continuing primary liability of Tenant and no
consent to any assigning or subletting in a particular instance shall be
deemed to be a waiver of the obligation to obtain the Landlord's approval in
the case of any other assignment or subletting.
3.5 Tenant shall conduct its business within the Premises in conformance
with all state and municipal laws and with all requirements of any public
body or officers having jurisdiction over the Premises and in conformance
with the requirements or regulations of any Board of Fire Underwriters or
insurance company insuring the Premises at the time, all at Tenant's own
expense without reimbursement from Landlord.
3.6 Tenant shall permit Landlord and its agents to enter and examine the
Premises after reasonable notice, at reasonable times and, to show the
Premises to prospective tenants during the one (1) year preceding expiration
of the term and to prospective purchasers and mortgagees at all reasonable
times, provided such access shall not interfere with Tenant's business
activities. Except in emergencies, Landlord shall enter the Premises on
business days only after reasonable notice to Tenant and only in the company
of an employee or agent of
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Tenant. In emergency situations, Landlord will attempt to give Tenant
telephone notice before entering the Premises. Tenant shall further permit
Landlord's agent entry into the Premises for the purposes of cleaning,
maintaining and repairing the Premises. All such work performed by Landlord
shall be performed in such manner and at such time to minimize interference
with Tenant's use and occupancy of the Premises and not reducing the size or
appearance of the Premises. Tenant may impose additional reasonable
restriction on Landlord's entry and work to protect Tenant's security and
equipment and avoid unreasonable disruption of Tenant's business. Landlord,
its officers, principals, partners, contractors, agents or employees shall
not enter into any part of the Premises which Tenant designates a
confidential area unless accompanied by a representative of Tenant. Tenant
agrees to provide such a representative promptly on request.
3.7 If Tenant shall at any time default in the performance of Tenant's
obligations (other than for payment of rent and additional rent) and fails
within thirty (30) days after written notice from Landlord to commence to
cure, or if commenced fails to diligently pursue such cure, Landlord shall
have the right, after first giving Tenant ten (10) days written notice of
such default (unless such default materially endangers the Premises or
Landlord's interest therein, in which case no such notice shall be required,
but Landlord shall make all reasonable efforts under the circumstances to
notify by telephone or otherwise), to perform such obligation notwithstanding
the fact that no provision for such substituted performance by Landlord is
made in this Lease with respect to such default. Tenant shall not be deemed
in default with respect to any default not requiring the payment of money
which Tenant timely commences to cure and pursues such cure diligently to
completion. In performing any Tenant obligation Landlord may make any
reasonable payment of money or perform any other reasonable act. All sums so
paid by Landlord and all necessary incidental costs and expenses in
connection with the performance of any such act by Landlord shall be deemed
to be additional rent under this Lease and shall be payable to Landlord
immediately on demand. Landlord may exercise the foregoing rights without
waiving or releasing Tenant from any of its obligations under this Lease.
3.8 If any installment of rent, additional rent or any other sum due from
Tenant shall not be received by Landlord or Landlord's designee within five
(5) days after said amount is due, then Tenant shall pay to Landlord a late
charge equal to five percent (5%) of the amount due. The parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Landlord will incur by reason of late payment by Tenant. Acceptance of
such late charge by Landlord shall not
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constitute a waiver of Tenant's default with respect to such overdue amount.
Any payment of money due hereunder which is not paid within thirty (30) days
of the due date and ten (10) days after written notice of such default from
Landlord to Tenant given any time after such payment is due shall bear
interest at the rate then designated by the First National Bank of Boston as
its prime rate of interest plus six percent (6%) per annum in addition to any
late charge.
3.9 Upon the expiration or other termination of the term of this Lease,
Tenant shall quit and surrender to Landlord the Premises, broom clean, in
good order and condition, ordinary wear and tear, casualties not the fault of
Tenant or covered by insurance or resulting from a taking or attributable to
Landlord excepted. Tenant shall remove all of its property, including at
Landlord's request, any alterations or additions made by Tenant after the
commencement of the term hereof (but not pursuant to Article VIII) as to
which Landlord advised Tenant that removal would be required at the time such
alterations or additions were made. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of
the term of this Lease. If the last day of the term of this Lease or any
renewal thereof falls on Sunday, this Lease shall expire on the business day
immediately preceding. If Landlord elects to treat Tenant as a holdover for
a further term, any concession of rent or agreement in respect of decorations
or the like in the initial term shall not apply to such holdover. Rent
during such holdover term shall be 1.5 times the rent paid, including fixed
rent and additional rent during the last preceding period.
3.10 Tenant further covenants and agrees:
a) Subject in each instance to applicable governmental law and
regulations, to use the Premises only for general office purposes.
b) Not to make any alterations or additions affecting basic building
systems or the structure of the Building without the prior written consent of
Landlord and not to make or permit any other alterations or additions without
the prior written consent of Landlord which consent shall not be unreasonably
withheld or delayed. In each instance, all work to be performed in
accordance with plans and specifications and by mechanics reasonably
acceptable to Landlord.
c) Not to permit or suffer any lien to be placed upon the Building or
lot as a consequence of any activity of Tenant, its agents, employees and/or
subcontractors and to promptly cause any such lien to be discharged or bonded
with or without the request of Landlord.
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d) Not to place on the Premises any placard or sign advertising that the
Premises or any part thereof may be sublet.
e) Not to place on the Premises any draperies, venetian blinds, curtains
or similar furnishings visible from the exterior of the Building without the
written consent of Landlord not to be unreasonably withheld or delayed.
f) Not to injure, overload, deface or permit to be injured, overloaded
or defaced, the Premises, and/or improvements and not to make any holes in
the outside stone or brickwork, or place any awnings on or suspended from the
Building except such and in such places as Landlord shall in writing first
approve; and not to make, allow or suffer any waste or any unlawful, improper
or offensive use of the Premises or any occupation or unoccupancy thereof
that shall be injurious to any person or property or invalidate any insurance
on the Building or increase the premium thereof.
g) Tenant shall follow reasonable rules and regulations, applicable to
all tenants in the Building, of which it has received a copy, established by
the Landlord from time to time with thirty (30) days written notice of
change, for the operation of the Building. Landlord reserves the right to
make reasonable modifications which shall be binding upon all Tenants upon
delivery of a copy of them to each tenant. Rules must be uniformly applied
and enforced. A copy of the current Rules and Regulations is attached as
Exhibit E. In the event of any inconsistency between this Lease and such
Rules and Regulations, this Lease shall govern.
h) To reimburse Landlord, as additional rent, promptly on demand for all
reasonable legal, engineering and other professional services expenses
incurred by Landlord in connection with all requests by Tenant for consent or
approval hereunder to assign this Lease or to make any alterations or
modifications to the Premises.
3.11 Landlord and Tenant agree from time to time, upon not less than ten
(10) days prior written request by the requesting party, to execute,
acknowledge and deliver to the other party a statement in writing certifying
that this Lease is unmodified and in full force and effect and that
certifying party knows of no defenses, offsets or counterclaims against its
obligations to pay the fixed and additional rent and any other charges and to
perform its other covenants under this Lease (or, if there have been any
modifications that the same is in full force and effect as modified and
stating the modifications and, if they know of any defenses, offsets, or
counterclaims, setting them forth in reasonable detail), and the dates to
which the fixed and additional rent and other charges have been paid.
Any such
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statement delivered pursuant to this Section 3.9 may be relied upon by any
prospective purchaser or mortgagee of the Premises, Building and Lot or one
or more of them, or any prospective assignee of any such mortgage or any
subtenant or assignee of this Lease. From time to time, but not more than
once in each calendar year, Tenant shall supply Landlord with financial
statements reflecting the balance sheet and then current operating results
for the Tenant.
3.12 Tenant shall not cause or permit any Hazardous Substances to be used,
stored, generated or disposed of on or in the Premises by Tenant, Tenant's
agents, employees or contractors, without first obtaining in each instance
Landlord's written consent. Tenant may, without Landlord's consent, store
and use in accordance with all applicable law Hazardous Substances normally
used in general office operations conducted on the Premises, in quantities
normally associated with office use, as long as (a) such operations are
within the scope of the uses permitted under this lease and (b) in doing so,
Tenant complies with all provisions of this Section 3.12. Landlord agrees
that in the event it consents to the use, storage or generation of Hazardous
Substances beyond the minimal quantities referred to above by any tenant of
the Property, it will advise Tenant of such consent. Landlord has not, as of
the date hereof, issued any such consents to anyone and, agrees to advise
Tenant in the event such consent is granted in the future. Any such use,
storage, generation or disposal of Hazardous Substances shall comply with all
applicable federal, state and local laws and regulations. If Tenant or
Tenant's agents, employees or contractors use, store, generate or dispose of
Hazardous Substances on or in the Premises, or if the Premises become
contaminated in any manner for which Tenant is legally liable, Tenant shall
indemnify and hold harmless the Landlord from any and all claims, damages,
fines, judgments, penalties, costs, liabilities or losses arising during or
after the term and arising as a result of such contamination by Tenant. This
indemnification includes, without limitation, any and all costs incurred due
to any investigation of the site or any cleanup, removal or restoration
mandated by a federal, state or local agency or political subdivision.
Without limitation of the foregoing, if Tenant causes or permits the presence
of any Hazardous Substance on the Premises and such results in contamination,
Tenant shall promptly, at its sole expense, take any and all necessary
actions to return the Premises to the condition existing prior to the
presence of any such Hazardous Substance on the Premises. Except in the case
of an emergency, Tenant shall first obtain Landlord's approval for any such
remedial action, which approval shall not be unreasonably withheld or delayed
and which in any event shall be granted if the regulatory authorities with
jurisdiction have approved the
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proposed remedial action. Tenant shall not have any responsibility or
liability for any Hazardous Substance brought upon, generated or disposed of
on or from the Premises, Building or Property after the date hereof by any
party, other than Tenant or Tenant's agents, employees or contractors.
Landlord recognizes that the motor vehicles of Tenant and Tenant's
employees, guests and agents which will be parked on the lot from time to
time contain Hazardous Substance. The parking and operations of such
vehicles in a manner customary in a suburban office building parking lot
shall not require Landlord assent. No servicing of motor vehicles shall be
allowed on the Property. Tenant shall require its employees, agents and
guests to refrain from servicing vehicles or causing vehicles to be serviced
on the Property.
As used herein, "Hazardous Substance" means any substance which is toxic,
ignitable, reactive, or corrosive and which is regulated by an local
government, the Commonwealth of Massachusetts, or the United States
government. "Hazardous Substances" includes any and all material or
substances which are defined as "hazardous waste", "extremely hazardous waste
or a "hazardous substance" pursuant to state, federal or local governmental
law. "Hazardous Substance" includes but is not restricted to asbestos,
polchlorobiphenyls ("PCB's") and petroleum.
To the best of Landlord's knowledge and belief, Landlord represents and
warrants to Tenant that (i) no investigative order, settlement, agreement,
enforcement order or litigation with respect to Hazardous Materials or
Substances is proposed, threatened, anticipated or in existence with respect
to the Premises or the Building or Lot; and (ii) no notice, demand, claim,
citation, complaint, request for information or similar communication has
been received by Landlord with respect to Hazardous Materials or Substances
in, on, under or at the Building, the Premises or the Lot.
3.13 At Landlord's request, in consideration of entering into this Lease,
Tenant shall execute and deliver to Landlord a Bill of Sale transferring to
Landlord all Tenant's right, title and interest in and to any equipment,
furniture and fixtures used in connection with the operation of the cafeteria
in the Building.
ARTICLE IV
DAMAGE OR DESTRUCTION BY EMINENT DOMAIN, FIRE OR CASUALTY
4.l In the event that the Premises, or any material part thereof,
including access to the Premises, shall be taken by
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any public authority or for any public use, or shall be destroyed or damaged
by fire or unavoidable casualty, or by the action of any public authority,
then this Lease may be terminated at the election of Landlord. In the event
such taking, fire or casualty results in a condition that the Premises cannot
be restored to a condition rentable for Tenant's use and occupancy within
three months of such taking, fire or casualty this Lease may be terminated at
the election of Tenant. Landlord or Tenant's election shall be made by the
giving of written notice to the other party within thirty (30) days after the
event causing the damage or the date of taking. If Landlord or Tenant
exercises such election, this Lease shall terminate, in the case of a taking,
when the Tenant is required to vacate such portion of the Premises, and in
the case of such damage or destruction, on that date designated in its notice
of termination, which shall be not more than thirty (30) days after the date
of such damage or destruction. In the event Tenant's access or egress is
materially reduced or parking is reduced and reasonably equivalent substitute
access egress and/or parking as the case may be are not furnished within the
applicable time period, Tenant may terminate this Lease on sixty (60) days
notice to Landlord.
4.2 If this Lease is not terminated pursuant to the provisions of Section
4.l, this Lease shall continue in force and a just proportion of the rent
reserved, according to the nature and extent of the damages sustained by the
Premises building services and common areas, shall be suspended or abated
from the date of such loss or taking, until the Premises, or what may remain
thereof, shall be put by Landlord in proper condition acceptable to Tenant
for use, which Landlord covenants to do with reasonable diligence subject to
zoning and building laws then in existence. In the case of a taking which
permanently reduces the floor area of the Premises, the rent shall be abated
for the remainder of the term in proportion to the amount by which the floor
area has been reduced.
4.3 Irrespective of the form in which recovery may be had by law, all
rights to damages or compensation shall belong to Landlord in all cases,
except for damage to Tenant's fixtures, property or equipment, and for
damages, if any, awarded for relocation expenses and business interruption
for which Tenant shall be entitled to bring a separate action, provided that
the same shall not reduce the damages or compensation which Landlord would
otherwise recover. Tenant hereby grants to Landlord all of Tenant's rights
to such damages and covenants to deliver such further assignments thereof as
Landlord may from time to time request.
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ARTICLE V
DEFAULT
5.l(a) If Tenant shall default in the performance of any of its
obligations set forth in Article II hereof, and if such default shall
continue for ten (10) days after written notice from Landlord, or if for a
period of thirty (30) days after written notice from Landlord to Tenant
specifying any other default which Tenant does not, within such thirty (30)
day period, commence the correction of, and thereafter diligently pursue such
correction of to completion, or (b) if any assignment shall be made by Tenant
for the benefit of creditors, or (c) if the Tenant's leasehold interest shall
be taken on execution or (d) a petition is filed by Tenant for adjudication
as a bankrupt or for an Order for Relief or for reorganization of an
arrangement under any provision of the Bankruptcy Act as then in force and
effect, or (e) any involuntary petition under any of the provisions of the
said Bankruptcy Act is filed against Tenant and such involuntary petition is
not dismissed within sixty (60) days thereafter, then and in any of such
cases Landlord may lawfully, immediately or at any time thereafter, and
without further notice or demand, and without prejudice to any other remedies
either enter into and upon the Premises or any part thereof, or mail a notice
of termination addressed to Tenant at the Premises, and upon such entry or
mailing this Lease shall terminate, cease and be at an end. Without
mitigating any default of Tenant respecting Article II, Landlord agrees to
give Tenant written notice of such default in a timely fashion. In the event
that this Lease is terminated under any of the foregoing provisions contained
in this Article V, or otherwise for breach of Tenant's obligations hereunder,
Tenant covenants and agrees after any such termination to pay punctually to
Landlord all the sums and perform all the obligations which Tenant covenants
in this Lease to pay and to perform in the same manner and to the same extent
and at the same times as if this Lease had not been terminated through to
cancellation. In calculating the amounts to be paid by Tenant under the
foregoing covenant, Tenant shall be credited with any rent and additional
rent actually obtained by Landlord by reletting the Premises, after deducting
the reasonable expenses of collecting the same. Tenant further covenants as
an additional and cumulative obligation upon Tenant's failure to meet any of
its obligations under the foregoing covenant to pay forthwith to Landlord as
compensation the total rent due for the residue of the term subject to
amounts recovered by reletting. This covenant shall run with the land.
Nothing herein contained shall, however, limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or insolvency
or arrangement with creditors as liquidated damages by reason of such
determination an amount equal to the maximum
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allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved, whether or
not such amount be greater, equal to, or less than the amounts referred to
above.
(b) TERMINATION
It is understood and agreed that at the time of the termination or at any
time thereafter, Landlord may re-let the leased premises, and for the balance
of the term hereof and thereafter, Landlord may rent the Premises, and for a
term which may expire after the expiration of the term of this Lease, without
releasing Tenant from any liability whatsoever except as otherwise provided
herein, that Tenant shall be liable for any expenses reasonably incurred by
Landlord in connection with obtaining possession of the Premises, with
removing with reasonable care from the Premises property of Tenant and
persons claiming under it (including warehouse charges), with putting the
leased premises into good condition for reletting, and with any reletting
costs. Rent from any reletting shall be applied first to amortize the
foregoing expenses and then to the payment of rent and all other payments due
from Tenant to Landlord. Landlord agrees to amortize the costs of releasing
the premises over the term of any new lease. Landlord agrees to use
reasonable diligence to re-let the leased premises and to mitigate damages
hereunder. In no event shall Tenant's obligations with respect to the Lease
extend beyond the term existing at the time of termination.
5.2 If the Landlord shall default in the performance of any of its
obligations under this Lease for more than thirty (30) days after receipt of
written notice from Tenant specifying such default, unless the default is of
such a nature that it cannot be cured in such thirty (30) day period provided
Landlord commences to cure such default within thirty (30) days of receipt of
Tenant's notice, and thereafter diligently pursues such cure to completion,
Tenant may, after the expiration of such thirty (30) day period, cure the
default of Landlord, provided, however, that if as the result of Landlord's
default a condition exists which, if not cured, would be dangerous or would
prevent Tenant from occupying the Premises for the intended purposes, Tenant
may upon such notice as is reasonable under the circumstances, cause such
default to be cured. Landlord shall pay to Tenant all reasonable costs and
expenses incurred by Tenant in curing such defaults within thirty (30) days
of receipt of Tenant's invoice therefore in reasonable detail.
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ARTICLE VI
COVENANTS OF LANDLORD
6.1 OPERATIONS AND CLEANING SERVICES
Landlord shall operate the Building in accordance with standards
equivalent to comparable first class buildings in the suburban Boston,
Massachusetts, area. The Landlord shall cause cleaning services to be
provided to the Premises as described in Exhibit B and charged to Tenant as
part of Operating Costs.
6.2 OTHER SERVICES
The Landlord shall cause other services as set forth in Exhibit C to be
furnished to the Tenant and they shall be included as part of Operating Costs.
6.3 ADDITIONAL SERVICES
At Tenant's request and upon reasonable notice, Landlord will provide
Heating, Ventilating and Air Conditioning earlier or later than the hours
provided in Exhibit C (hereinafter called "Overtime HVAC").
Tenant shall reimburse Landlord as additional rent for the charges of
Overtime HVAC as reasonably set by Landlord from time to time. The charges
for Overtime HVAC at the commencement of the term is $25 per hour.
Upon reasonable advance notice from Tenant, Landlord will furnish other
services to the Premises on days and at times other than as provided in
Exhibits B and C, and Tenant shall on demand and as additional rent pay to
Landlord, on account thereof, the actual costs for such additional services
as determined in good faith by the Landlord's accountants. Landlord shall
provide Tenant a statement in reasonable detail of the costs for such
additional services. The cost of all additional services pursuant to this
Section 6.3 shall be billed directly to Tenant and shall not be deemed to be
an Operating Cost.
Tenant shall designate in writing to Landlord the name of Tenant's
authorized representative to request additional services. Tenant shall not
be responsible for the cost and expense of additional services not requested
in writing by Tenant's authorized representative. Under no circumstances
Landlord shall be obligated to provide additional service not requested by
Tenant's authorized representative. To the extent possible Landlord agrees
to pro-rate charges for additional services to other Tenants in the Building
requesting similar services to those requested by Tenant if both requests are
for
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the same time period. Charges for additional services shall not exceed
Landlord's actual cost for such services. In no case, shall Tenant be
charged for additional services used solely by Landlord in connection with
Landlord's obligations under this Lease.
6.4 REPAIRS AND MAINTENANCE
At Landlord's expense except to the extent provided in Section 2.2.5,
Landlord shall maintain the exterior of the Building, together with all
landscaping and parking area adjacent to the Building, and all common areas
of the Property in good order (including snow removal) and repair; make all
structural repairs (including all subsurface repairs) to the Building,
including but not limited to, all repairs to the foundation, roof, leaks in
the balconies, structural components, exterior walls, and common area doors
and windows; make all repairs (including all subsurface repairs) and
maintenance to electric wiring, risers, plumbing, heating, air-conditioning
(HVAC) and all other building system serving the Premises to the extent such
repair and maintenance is not the result of or caused by (i) misuse of the
Premises by the Tenant, or (ii) any leasehold improvements constructed by
Tenant; and shall take such action as may be required, and in the absence of
a specific governmental directive as Landlord deems appropriate, to comply
with applicable state and municipal laws or requirements of any public body
or authority having jurisdiction over the Premises, to the extent such
violations are not caused by (i) misuses of the Premises by the Tenant, or
(ii) the leasehold improvements constructed by Tenant. Landlord shall
replace, repair and maintain the HVAC System and the various components of
the HVAC system serving the Premises and Building. Provided that the Tenant
improvements constructed by Tenant are designed and built to meet the
performance specifications in Exhibit F, Landlord shall operate the HVAC
system so as to provide comfortable temperature and humidity for normal
office usage in the Premises and building at a level consistent with first
class suburban office buildings in the suburban Boston area. Landlord shall
have no liability to Tenant for damage caused by leaks existing on the date
hereof unless and until such leaks reappear after the same have been repaired.
Tenant shall promptly notify Landlord of the necessity of any repairs to
the Premises which Tenant may have knowledge and for which Landlord may be
responsible under the provisions of this paragraph. Tenant shall reasonably
endeavor to notify Landlord of any conditions in the Building (outside the
Premises) and Lot of which it has knowledge requiring Landlord attention.
Tenant shall be responsible for the operation, maintenance and repair of
any special or supplemental HVAC system or special
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or supplemental electrical, plumbing or heating system, or portion thereof,
installed by or for Tenant which serves the Premises exclusively.
6.5 INTERRUPTION OF SERVICES
Landlord does not warrant that any of the services provided by Landlord
under the terms of this Lease will be free from interruptions caused by
repairs, renewals, improvements, alterations, strikes, lockouts, accidents,
inability of Landlord to obtain fuel or supplies or other cause or causes
beyond the reasonable control of Landlord.
Landlord shall promptly remedy any failure to provide services diligently,
expeditiously and in a good and workmanlike manner without undue interference
with Tenant's use of the Premises.
Landlord shall notify Tenant reasonably in advance of any scheduled
interruption or cessation of a particular service.
6.6 LANDLORD'S INDEMNITY
The Landlord shall indemnify and save harmless the Tenant, its partners,
officers, agents and employees of the Tenant, from and against all claims,
expenses or liability of whatever nature resulting from any act, omission or
negligence of the Landlord, or the Landlord's contractors, licensees, agents,
servants or employees, or the failure of the Landlord or such persons to
comply with any rule, order, regulation or lawful direction now or
hereinafter in force of any public authority, to the extent the same are
related directly to the Property or the Landlord's use or management thereof,
or arising directly or indirectly from any accident, injury or damage,
however caused, to any person or property on or about the Premises; provided,
however, that in no event shall the Landlord be obligated under this Section
3.2 to indemnify the Tenant, its agents, principals, partners, officers,
employees, or representatives of the Tenant where such claim, expense or
liability arose from any default, act, omission, fault, negligence or other
misconduct of the Tenant, Tenant's agents, principals, partners, officers,
employees, or representatives on or about the Premises or the Building.
This indemnity and hold harmless agreement shall include indemnity against
all reasonable expenses and liability incurred in or in connection with any
such claim or proceeding brought thereon and the defense thereof with counsel
reasonably acceptable to the Tenant or counsel selected by an insurance
company which has accepted liability for such claim.
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6.7 In every instance where Landlord is performing an obligation or
exercising a right under the Lease, Landlord shall endeavor to do so in a
manner which does not unreasonably disrupt the operation of Tenant's business.
ARTICLE VII
MISCELLANEOUS
7.l Any consent or permission by Landlord or Tenant to any act or
omission which otherwise would be a breach of any covenant or condition
herein, or any waiver by Landlord or Tenant, as the case may be, of the
breach of any covenant or condition herein, shall not in any way be held or
construed (unless expressly so declared) to operate so as to impair the
continuing obligation of any covenant or conditions herein, or otherwise,
except as to the specific instance, operate to permit similar acts or
omissions.
7.2 This Lease shall be subject and subordinate to any first mortgage
that may hereafter be placed upon the Property granted to a bank, insurance
company, or institutional lender of like character, provided that such
mortgagee enters into a subordination non-disturbance and attornment
agreement with Tenant or other agreements which have the affect of
recognizing and protecting Tenant's rights hereunder with no material adverse
change to the Premises or economics (i.e. rent, hours of operation, size and
condition of Premises, length of term and lease rights) of this Lease (such
agreements shall be deemed in compliance herewith if the same are on forms
customarily used for such by the mortgagee in question and are otherwise
reasonable to Tenant and Landlord and give effect to this paragraph). This
Section shall be self-operative, but in confirmation thereof, Tenant shall
execute and deliver whatever instruments may be required to acknowledge such
subordination in recordable form.
7.3 It is agreed that the agreements and conditions in this Lease
contained on the part of Tenant to be performed and observed shall be binding
upon Tenant and its successors and assigns and shall inure to the benefit of
Landlord and its successors and assigns, and the agreements and conditions
in this Lease contained on the part of Landlord to be performed and observed
shall be binding upon Landlord and its successors and assigns and shall inure
to the benefit of Tenant and its successors and assigns. If at any time or
times during the term Landlord shall be the trustee of a trust or a
partnership, Tenant agrees that only the trust estate of Landlord or the
partnership (and not the individual partners), as the case may be, shall be
liable for the performance of Landlord's obligations hereunder, and that in
no event shall any trustee
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or beneficiary of such trust or any partner of such partnership be
individually liable hereunder, and Tenant further agrees that the Landlord
named herein and any subsequent Landlord shall be liable hereunder only for
obligations accruing while owner of the Premises and only to the extent of
Landlord's interest in the Property. No holder of a mortgage of the
Landlord's interest shall be deemed bound by the provisions of this Lease and
the obligations of the Landlord hereunder until such holder shall have taken
possession of the Premises or acquired indefeasible title to the Premises.
7.4 BROKERAGE
Landlord and Tenant warrant to each other that they have had no dealings
with any broker or agent in connection with this Lease or the NYL Lease
except NYL has been represented by Cushman & Wakefield of Massachusetts,
Inc., Landlord has been represented by Palladins, Inc., and Tenant has been
represented by Fallon, Hines & O'Connor, Inc. and Palladins, Inc. Each
covenant to defend with counsel reasonably acceptable to the other and hold
harmless and indemnify each other from and against any and all costs, expense
or liability for any compensation, commission and charges claimed by any
other broker or agent with respect to any other dealings in connection with
this Lease or the negotiation thereof. Landlord and Tenant shall pay all
commissions due to Cushman & Wakefield of Massachusetts, Inc. and Palladins,
Inc. and Fallon, Hines & O'Connor, Inc. as provided in the Preliminary Letter
Agreement.
7.5 LEASE NOT TO BE RECORDED
Tenant agrees that it will not record this Lease. Both parties shall
simultaneously herewith execute and deliver a notice or short form of this
Lease in such form, if any, as may be permitted by applicable statute. If
this Lease is terminated before the term expires, the parties shall execute,
deliver and record an instrument acknowledging such fact and the actual date
of termination of this Lease.
7.6 SEVERABILITY
It is agreed that if any provision of this Lease shall be determined to be
void by any court of competent jurisdiction, then such determination shall
not affect any other provision of this Lease, all of which other provisions
shall remain in full force and effect; and it is the intention of the parties
hereto that if any provision of this Lease is capable of two constructions,
one of which would render the provision void and the other of which would
render the provision valid, then the provision shall have the meaning which
would render it valid.
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<PAGE>
7.7 SUBMISSION NOT AN OPTION
The submission of this Lease or a summary of some or all of its provisions
for examination does not constitute a reservation of or option for the
Premises, or an offer to lease, it being understood and agreed that this
Lease shall not bind Landlord or Tenant in any manner whatsoever until it has
been approved and executed by Landlord and Tenant and delivered to Tenant.
7.8 TIME
In any instance herein where a reference is made to days, it shall mean
calendar days. Any period ending on a Saturday, Sunday or holiday will be
extended to the next business day.
7.9 QUIET ENJOYMENT
Landlord warrants it has the right to enter into this Lease. Landlord
covenants that Tenant on paying the rent and performing the Tenant
obligations in this Lease, shall peacefully and quietly have, hold and enjoy
the Premises without interference from Landlord or any other entity acting at
Landlord's direction or with Landlord's authority, subject to all of the
terms and provisions hereof. Tenant shall have access and the right to
utilize the Premises twenty-four hours each and every day during the term
hereof.
7.10 REDUCTION OF SPACE
Tenant acknowledges that NYL has the option under the NYL Lease to expand
and occupy either the portion of the Premises on the first floor of the
Building described in Exhibit A-2 attached hereto and made a part hereof or
the entire balance of the Building subject to the following terms and
conditions:
(i) Upon NYL becoming obligated to pay rent on such space, the fixed
rent shall be adjusted as provided in Exhibit 1 and Tenant's
proportionate share of Operating Costs shall be adjusted
appropriately;
(ii) Upon exercise of such option, Landlord and Tenant shall pay when
due all brokerage commissions under the Preliminary Letter
Agreement;
(iii) NYL may exercise the option to expand only between May 1, 1997 and
August 31, 1997;
(iv) Tenant shall receive at least seven (7) months prior notice of
NYL's option to expand; and
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<PAGE>
(v) In the event NYL occupies the entire Building or Phoenix sublets
or assigns all of its rights under this Lease, Tenant shall deposit
in escrow an amount equal to the balance of the fixed rent due
hereunder with irrevocable instructions that the fixed rent be
disbursed monthly to Landlord from such escrow or make other
arrangements satisfactory to Landlord and Tenant for the payment
of such rent.
7.11 OTHER OBLIGATIONS
The Tenant acknowledges that it has no right to extend the term of this
Lease, and that any negotiation of an extension of this Lease will be subject
to a right of first refusal on the part of NYL.
7.12 Tenant agrees to pay to Landlord, immediately on demand as
additional rent under this Lease, the amount of all reasonable costs and
expenses, including reasonable fees and the expenses of legal counsel,
incurred by Landlord in enforcing any of Landlord's rights or Tenant's
obligations; provided Landlord prevails. Landlord shall pay to Tenant,
immediately on demand, the amount of all reasonable costs and expenses,
including reasonable fees and expenses of legal counsel, incurred by Tenant
in enforcing any of Tenant's rights or Landlord's obligations hereunder,
provided Tenant prevails.
7.13 Tenant shall have the right to use the first floor lobby as a
reception area subject to the reasonable approval of Landlord as to the
appearances of, and the activities conducted within, such reception area by
Tenant.
ARTICLE VIII
NYL LEASEHOLD IMPROVEMENTS
8.1 Tenant shall be responsible for reimbursing NYL up to $642,264 with
respect to the tenant improvements in the space to be occupied by NYL. On
the date hereof, Tenant shall deposit $642,264 into an escrow account to be
maintained and disbursed in accordance with the terms of the Tenant
Improvement Escrow Agreement attached hereto as Exhibit G.
ARTICLE IX
NOTICES
9.l All notices for Landlord shall be addressed to Landlord c/o
Prudential Real Estate Investors, Attention Vice President, Newark Realty
Group Office, Gateway Three, 13th Floor, 100 Mulberry Street, Newark, New
Jersey 07102, with a copy to Regional Counsel, RGO, (same address), and to
Mark Rubin, Maric, Inc. 160 Commonwealth Avenue, Suite U9, Boston, MA
02116-2734. or to such other place as may be designated by
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<PAGE>
written notice to Tenant; and all notices for Tenant shall be addressed to
Tenant at 846 University Avenue, Norwood, MA 02081, Attn: Chairman and CEO,
with a copy to Phoenix Technologies Ltd., 2770 De La Cruz Boulevard, Santa
Clara, CA, Attn: General Counsel or to such other places as may be
designated by written notice to Landlord. Any notice shall be deemed duly
served when received or refused by the respective party by telecopy, federal
express or messenger service or mailed postage prepaid registered or
certified mail return receipt requested. Unless otherwise directed in
writing, all rents shall be payable to Landlord its address indicated above.
ARTICLE X
MUTUAL REPRESENTATION OF AUTHORITY
10.1 Landlord and Tenant represent and warrant to each other that they
have full right, power and authority to enter into this Lease without the
consent or approval of any other entity or person and make these
representations knowing that the other party will rely thereon.
10.2 The signatory on behalf of Landlord and Tenant further represent and
warrant that they have full right, power and authority to act for and on
behalf of Landlord and Tenant in entering into this Lease. Landlord further
represents that if the Landlord is a trustee under a trust, that the trusts
do not terminate or provide for forfeiture either under the trust agreement
or by operation of law during the period of this Lease.
ARTICLE XI
PARKING AND SIGNAGE
11.1 During the term hereof, Tenant shall have the right to utilize
parking in the Building main parking lot in common with the other tenant(s)
of the Building on a first-come first-served basis.
11.2 Landlord will, at its own expense, provide appropriate identification
for Tenant in the lobby directories, consistent with that provided for other
tenants of the Building.
11.3 Tenant shall, at its cost and expense, remove its sign from the
outside of the Building and from all common areas in the Building, including
the main lobby, and in so doing will repair any damage caused thereby and
restore the Building to its condition prior to the installation of such signs.
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<PAGE>
11.4 Tenant shall have the right to maintain the existing sign bordering
University Avenue during the entire term of the Lease and such sign shall not
be obstructed by Landlord or any other entity.
ARTICLE XII
RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations of the Building and
Project ("Rules and Regulations") imposed by Landlord as set forth in Exhibit
E attached hereto, and as the same may be changed from time to time upon
reasonable notice to Tenant. These Rules and Regulations are imposed for the
cleanliness, good appearance, proper maintenance, good order and reasonable
use of the Premises and the Property by all tenants and their employees and
invitees. Landlord shall enforce these Rules and Regulations uniformly among
tenants. Landlord shall not be liable for the failure of any tenant, its
agents or employees to conform to the Rules and Regulations. The building is
a non-smoking building and Tenant agrees to enforce a non-smoking policy
within the Premises. Landlord shall enforce such a policy in the common
areas and require other tenants to enforce such policy in their Premises.
The Premises shall be available to Tenant 24 hours per day every day of the
year. In the event of conflict between any rule or regulation and this
Lease, this Lease shall prevail.
ARTICLE XIII
13.1 This instrument contains the entire and complete agreement between
the parties hereto and supercedes the Original Lease and, except as otherwise
provided herein, the Preliminary Letter Agreement. This Lease may not be
amended or modified except by a writing executed by Landlord and Tenant.
Whenever the consent of either party is requested pursuant to this Lease,
such consent shall not be unreasonably withheld or delayed. Landlord
acknowledges that Tenant has satisfied all obligations under the Original
Lease and Tenant shall have no further obligation or liability under the
Original Lease, except for acts occurring prior to the Term Commencement Date
of which Landlord is not aware.
13.2 This Lease shall be governed by Massachusetts Law.
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<PAGE>
Executed as a sealed instrument this 15th day of March, 1995.
LANDLORD:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
BY: /s/Gary H. Picone
-----------------------
TENANT:
PHOENIX TECHNOLOGIES LTD.
BY: /s/ Ronald D. Fisher
-----------------------
Its: Chairman and CEO
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<PAGE>
EXHIBIT 1
846 UNIVERSITY AVENUE
NORWOOD, MASSACHUSETTS
REFERENCE DATA
Execution Date: March 15, 1995
Landlord: The Prudential Insurance Company of America.
Tenant: Phoenix Technologies Ltd.
Premises: 846 University Avenue, Norwood, Massachusetts [ ] rentable square
feet on the first floor.
Tenant's Proportionate Share: 100% until the Adjustment Date, then 27.77%
subject to further adjustment if the Premises are reduced as provided in
Section 7.10.
Term Commencement Date: The date hereof
Term Expires: July 27, 1998
Use of Premises: General Office
Fixed Rent: At the annual rate of $2,780.70 per day from the Term
Commencement Date through the Adjustment Date. Commencing on the Adjustment
Date and continuing until July 27, 1998, the fixed rent shall be the sum of
(i) $15.98 per rentable square foot times the number of rentable square feet
then occupied by Tenant plus (ii) $4.48 per rentable square foot times the
number of rentable square feet in the Building occupied by NYL.
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<PAGE>
EXHIBIT A
Amended and Restated Lease Agreement
Phoenix Technologies Ltd.
846 University Avenue
Norwood, MA
<PAGE>
EXHIBIT A-1
Amended and Restated Lease Agreement
Phoenix Technologies Ltd.
846 University Avenue
Norwood, MA
<PAGE>
EXHIBIT A-2
Amended and Restated Lease Agreement with
Phoenix Technologies Ltd.
<PAGE>
EXHIBIT B
CLEANING SPECIFICATIONS
846 UNIVERSITY AVENUE
NORWOOD, MA
Page 1 of 2
NIGHTLY CLEANING SERVICES
LOBBY
1. Clean entry door.
2. Sweep and wash tile floor.
3. Vacuum all carpets and entry mats.
4. Wipe down reception desk and planter pots.
5. Polish furniture and vacuum or brush upholstered furniture.
OFFICE AREAS AND CONFERENCE ROOMS
1. Vacuum all carpets.
2. Empty and remove all trash to designated area, replace liners as
necessary.
3. Dust desks in offices, wash them if cleared off. Wipe down and
polish conference room tables.
4. Perform high-dusting on a rotating basis.
5. Spot clean walls and light switches.
6. Vacuum or brush all upholstered furniture on a rotating basis.
7. Dust all flat surfaces, including window sills, heat registers,
file-cabinets, partitions, etc.
8. Wash glass partitions, wipe window ledges.
9. Dust and wipe down water units.
CORRIDORS
1. Vacuum carpets.
2. Brush upholstered furniture.
3. Spot clean carpets as needed.
DRINKING FOUNTAINS
1. Clean and sanitize all fountains.
ELEVATORS
1. Wash down walls and doors.
2. Wipe down all switches and buttons.
3. Clean and polish tracks.
4. Clean or vacuum floors.
RESTROOMS
1. Clean & disinfect all fixtures, floors, walls, partitions,
dispensers and counters.
2. Empty all trash and replace liners.
3. Replenish all sanitary and paper products with customer provided
supplies.
4. Polish mirrors and all brightwork.
5. Sweep and mop floors.
6. Remove fingerprints and smudges from walls, doors and light
switches.
TILE FLOORS
1. Damp mop nightly.
<PAGE>
EXHIBIT B
Cleaning Specifications
846 University Avenue
Norwood, MA
Page 2 of 2
WEEKLY CLEANING SERVICES
ELEVATORS
1. Clean ceilings and grills.
ALL TILE FLOORS
1. Spray buff.
OTHER CLEANING SERVICES
LOBBY
1. Machine scrub tile floor as needed.
TILE FLOORS
1. Strip semi-annually
2. Scrub and re-coat as needed.
OFFICE AREAS AND CONFERENCE ROOMS
1. Wash trash receptacles inside and out as needed.
RESTROOMS
1. Machine scrub floors quarterly.
CARPETS
1. Shampoo semi-annually (rotary & extraction).
DAY PORTER
1. Services as in Tenant's existing cleaning contract.
<PAGE>
EXHIBIT C
LANDLORD'S OTHER SERVICES
The Landlord shall furnish elevator service.
The Landlord shall repair and maintain and keep clear the access roadways and
drives and the parking areas, including without limitation, removal of snow
and ice, adjacent to the Building in which the demised premises are located
and treating of all sidewalk and parking areas.
The Landlord shall maintain the landscaping of the Property.
The Landlord shall furnish hot water and water at City temperature for
ordinary cleaning, toilet, lavatory and drinking purposes. All water piping
and equipment beyond Building Standard shall be installed and maintained by
the Landlord at the Tenant's expense. The Landlord shall furnish Building
Standard heat or air conditioning consistent with comparable First Class
Office Buildings in the Norwood area as reasonably required for the
comfortable occupancy of the Premises (subject to applicable governmental
regulation of heating and air conditioning) during the hours of 8:00 a.m. to
6:00 p.m. Mondays through Fridays and 8:00 a.m. to 1:00 p.m. on Saturdays,
State and Federal holidays excepted. Any costs Landlord incurs in providing
same after Building Hours shall be paid by Tenant directly and not as an
Operating Expense.
The Landlord shall maintain the Building's operating systems including the
repair and replacement of all components thereof.
Landlord to provide and maintain a building directory in the main lobby
identifying tenant.
Landlord to provide heating, air conditioning and lighting to common areas.
Landlord shall maintain and operate the first floor shower facilities
provided that the expense thereof is entirely borne by the tenants in the
Building as set forth elsewhere in this Lease.
Landlord shall provide pest extermination services.
Landlord shall provide a security system for the Building.
Landlord shall provide rubbish removal.
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<PAGE>
EXHIBIT D
(Deliberately Omitted)
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<PAGE>
EXHIBIT E
Rules and Regulations
1. The sidewalks, plazas, entrances, lobbies, corridors, elevators, fire
exits and stairways shall not be encumbered or obstructed by any tenant
or its agents, employees, licensees or invitees, or be used for any
purpose other than ingress to and egress from the Tenant's premises.
2. Building operating personnel are not authorized to receipt for shipments
to or from the Building.
Furniture, equipment and supplies, and other packages, materials and
items requiring the use of a hand truck or other type of wheeled
transporter, shall be moved in or out of the Building or between floors
of the Building only upon the elevator or elevators designated by the
Landlord for that purpose and then only during such hours and in such
manner as may be reasonably prescribed by the Landlord and any damage to
the Building or any part thereof caused by the moving in or out of the
Building or between floors of the Buildings of said materials shall be
repaired by the Landlord at the reasonable expense of the tenant
responsible therefore.
3. If a Tenant's premises becomes infested with vermin due to Tenant's own
misuse of the premises, such tenant, at its sole cost and expense, shall
cause its premises to be exterminated by such exterminators as shall be
approved by the Landlord at such times and to such extent as the
Landlord deems necessary to exterminate the vermin.
4. No animals or birds shall be allowed in the corridors, lobbies,
elevators, or elsewhere in the Building.
5. Canvassing, soliciting and peddling in the Building is prohibited and
each tenant shall cooperate to prevent the same.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and
no sweeping, rubbish, rags or other substances shall be thrown therein.
All damages resulting from any misuse of the fixtures by Tenant, its
servants, employees, agents, visitors of licensees, shall be borne by
Tenant.
7. Each tenant shall, at its expense, provide artificial light for the
employees of Landlord while doing janitor's service or other cleaning and
in making repairs or alterations in said premises.
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<PAGE>
8. Typical floors are designed to carry live loads not exceeding eighty
pounds per square foot. The slab on grade first floor is designed to
carry live loads not exceeding 100 pounds per square foot. Safes and
other especially heavy items shall not be located in the Premises
without Landlord's prior written approval. Landlord represents that
Tenant's initial occupancy, exclusive of any equipment not shown on
Tenant's plans, will not exceed the building load capacity.
9. Each tenant shall be responsible for all persons which it has authorized
to have access to the Building and shall be liable to Landlord for all
of their acts while in the Building. Landlord may require all persons
given access to the Building during non-business hours to sign a
register on entering and leaving the Building.
10. No curtains, blinds, shades or screens other than those furnished by
Landlord shall be attached to, hung in or used in connection with, any
window or door of the Premises, without the prior written consent of
Landlord. Such curtain, blinds, shades, screens or other fixtures must
be of a quality type, design and color, and attached in the manner
approved by Landlord.
11. Tenants may be requested to assign from among their employees personnel
to perform specific tasks required by the Building's emergency
evacuation plan.
12. The Landlord reserves the right at any time to change, rescind or waive
any one or more of these rules and regulations, and to make such other
and further reasonable rules and regulations as its judgment from time
to time be necessary for the safety, care, convenience or cleanliness of
the Building or for the preservation of comfort of good order therein.
The Landlord shall not be liable to any tenant for violation of the same
by any other tenant, its agents, employees, licensees or invitees. In
the event of any changes to these rules and regulations, Landlord agrees to
give Tenant 30 days advance written notice of such change. In the event
of any conflict between the rules and regulations and the Lease, the
Lease shall govern. Landlord agrees to uniformly enforce these Rules and
Regulations to all tenants in the project.
13. The Building is a Non-Smoking Building. Landlord requests the
cooperation of all tenants in enforcing a non-smoking policy.
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<PAGE>
EXHIBIT G
TENANT IMPROVEMENT ESCROW AGREEMENT
This Tenant Improvement Escrow Agreement (this "Agreement") is made and
entered into as of March --, 1995, by and among The Prudential Insurance
Company of America, a New Jersey corporation ("Prudential"), NYL Benefit
Services Company, Inc., a Massachusetts corporation ("NYL"), Maric Inc., a
Massachusetts corporation (the "Escrow Holder") and Phoenix Technologies Ltd.
a Delaware corporation ("Phoenix"), with reference to the following facts:
A. Prudential is the owner of the building (the "Building") located at 846
University Avenue, Norwood, MA, and Phoenix is currently the tenant of the
entire Building.
B. Maric has entered into a Real Estate Purchase Agreement with prudential
pursuant to which Maric will acquire the Building. In connection with such
acquisition and at the request of Phoenix, Maric has negotiated, and
Prudential and NYL have entered into, a Lease Agreement of even date with NYL
(the "NYL Lease") pursuant to which NYL will lease a portion of the space
occupied by Phoenix. Maric and Phoenix have also negotiated, and Prudential
and Phoenix have entered into, an Amended and Reinstated Lease of even date
(the "Phoenix Lease") pursuant to which Phoenix will reduce the number of
square feet rented by Phoenix in the Building. In consideration of reducing its
rental obligation to Prudential, Phoenix has agreed to reimburse NYL for a
portion of the tenant improvements to be constructed pursuant to the NYL Lease.
C. As security for Phoenix's performance of its obligation to reimburse NYL
for such tenant improvements, Phoenix will establish an interest-bearing
escrow account (the "ESCROW") with the Escrow Holder and deposit therein the
amount of $642,264 (the "Escrow Amount") to be used only to pay for the
actual cost of tenant improvement work ("TI Work") pursuant to the NYL Lease.
Now, therefore, for and in consideration of the foregoing facts which are
made a part hereof, the mutual covenants contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. ESTABLISHMENT OF ESCROW. Upon execution of this Agreement, the Escrow
Amount shall be delivered by Phoenix to the Escrow Holder to be held in
Escrow.
<PAGE>
2. TENANT IMPROVEMENT DISBURSEMENTS. NYL shall be entitled to
disbursements from the Escrow for reimbursement for tenant improvement
expenditures pursuant to the NYL Lease upon the following specified
conditions:
(a) Upon notice to Escrow Holder, given no more frequently than monthly,
and submission of paid invoices with respect to TI Work done through
the date of such request, lien waivers evidencing payment from the
general contractor for all costs in connection with the TI Work for
which reimbursement is requested, and an inspection report of Escrow
Holder or an inspecting architect or engineer selected by Escrow
Holder (the reasonable cost of which shall be included in the
disbursement) indicating that such work has been done in accordance
with the requirements of the NYL Lease and the percentage of the TI
Work which is complete through the date of such certificate (the
"Percentage Completion"), an amount equal to the (i) Escrow Amount
times the Percentage Completion, less (ii) any retainage applicable
under the construction contracts for such TI Work, less (iii) the
portion of the Escrow Amount theretofor distributed. No disbursement
shall be made unless NYL has submitted reasonably satisfactory
assurances to Escrow Agent that all amounts previously due with
respect to such TI Work have been paid.
(b) A final payment of the Escrow Amount shall be made upon notice to
Escrow Holder, Prudential and Phoenix, accompanied by certificates of
occupancy, paid invoices, final lien waivers from the general
contractor evidencing payment of all costs in connection with the TI
Work, and a reasonably satisfactory inspection report of Escrow
Holder or an inspecting architect or engineer selected by Escrow
Holder (the reasonable cost of which shall be included in the
disbursement) indicating that such work has been done in accordance
with the requirements of the Lease.
(c) The parties hereto agree that ADD, Inc. shall serve as the inspecting
architect for the TI Work as contemplated by Section 2(a) and (b)
above, except that an engineer named by Landlord shall perform an
inspection of the HVAC systems prior to the final payment
contemplated by Section 2(b) above.
3. DISBURSEMENT FROM ESCROW. Upon receipt of the notice set forth in
SECTION 2, Escrow Holder shall determine within 5 days after receipt of such
request that the documentation submitted for any disbursement establishes
that the request is
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<PAGE>
otherwise complete and, upon such determination, release to NYL the lesser
of: (i) the amount provided in Section 2(a) above, or (ii) the remaining
amount of the Escrow.
4. DEFAULT. Notwithstanding any provision in this Agreement to the
contrary, no release shall be made to NYL if there has been a default beyond
the applicable grace period under the NYL Lease. Upon any such Default, the
entire balance of the Escrow fund may be used by the then owner of the
Building, in its sole discretion, to complete the TI Work. Escrow Holder is
irrevocably authorized and directed to honor a withdrawal of funds from the
Escrow at any time by such owner upon receipt of written notice from such
owner that any such Default has occurred.
5. INVESTMENT OF ESCROW. The Escrow shall immediately be invested, and
shall remain invested until disbursed according to this Agreement, in a
federally insured interest bearing account or in securities issued by the
United States or an agency thereof with a remaining term to maturity of 90
days or less, or in other securities directed by Phoenix and approved by
Prudential in writing, but in no event shall the maturities of any securities
extend beyond 90 days. All interest and other investment income shall be paid
to Phoenix immediately upon being credited to the Escrow Account.
6. ESCROW HOLDER'S INSTRUCTIONS. This Agreement shall be delivered to the
Escrow Holder and the provisions hereof shall constitute the escrow
instructions to the Escrow Holder from the parties hereto; provided, however,
that the parties shall execute such additional instructions as reasonably
requested by the Escrow Holder not inconsistent with the provisions hereof.
The Escrow Holder shall not be liable to either Phoenix or NYL in connection
with the performance of any duty imposed on the Escrow Holder hereunder or
any action taken by the Escrow Holder in good faith and in conformity with
the provisions of this Agreement, except for the Escrow Holder's negligence
or willful misconduct.
7. FEES AND COSTS. Phoenix shall have no liability for any fees, costs
and/or expenses of the Escrow Holder in connection with the performance of
its duties under this Agreement and Phoenix shall not be responsible for any
taxes imposed upon or assessed against the Escrow other than income taxes due
on interest or other investment income paid to Phoenix from the Escrow.
8. NOTICE. All notices shall be given in accordance with the provisions
of the NYL Lease or the Phoenix Lease as applicable. Notices to Escrow Holder
shall be addressed as follows:
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<PAGE>
Maric, Inc.
160 Commonwealth Avenue
Suite U-9
Boston, MA 02116
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which shall constitute one and the same Agreement.
10. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the heirs, personal representatives, successors and assigns of the
parties hereto. Upon acquisition of the Building by Maric from Prudential,
Prudential shall cease to be a party to this Agreement, Prudential shall have
no further rights or obligations hereunder and Maric shall succeed to and
assume all of Prudential's rights and obligations hereunder.
11. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
12. PHOENIX OBLIGATIONS. Upon depositing the Escrow Amount in the Escrow
Account, Phoenix shall have no further obligation or liability (under the
Phoenix Lease or otherwise) with respect to any tenant improvement work for
space demised to NYL in the Building.
In witness whereof, the parties hereto have executed this Agreement as a
sealed instrument as of the day and year first set forth above.
PHOENIX TECHNOLOGIES LTD.
By: _______________________
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: _______________________
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<PAGE>
NYL BENEFIT SERVICES COMPANY,
INC.
By: _______________________
Name:
Title:
MARIC, INC.
By: _______________________
Name:
Title:
Hereunto duly authorized
This exhibit shall be set forth above with the changes penned hereon and
such other changes as are mutually agreeable to all parties.
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