STANDARD OFFICE LEASE
000 XXXXXX XXXXXX
XXX XXXXXX XXXXXXXXX XXXXXX
XXXXXXX, XXXXXXXXXXXXX
TABLE OF CONTENTS
ARTICLE
NUMBER CAPTION
I BASIC LEASE PROVISIONS............................................ 1
II PREMISES AND APPURTENANT RIGHTS................................... 3
III BASIC RENT; TENANT'S ELECTRICAL CHARGE............................ 5
IV TERM OF LEASE..................................................... 5
V REAL ESTATE TAXES................................................. 7
VI OPERATING EXPENSES................................................ 9
VII USE OF PREMISES................................................... 12
VIII ASSIGNMENT AND SUBLETTING......................................... 14
IX RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD 16
X INDEMNITY AND INSURANCE........................................... 20
XI LANDLORD'S ACCESS TO PREMISES..................................... 22
XII FIRE, EMINENT DOMAIN, ETC......................................... 22
XIII DEFAULT........................................................... 24
XIV MISCELLANEOUS PROVISIONS.......................................... 26
14.1 Extra Hazardous Use...................................... 26
14.2 Waiver................................................... 27
14.3 Covenant of Quiet Enjoyment.............................. 27
14.4 Landlord's Liability..................................... 28
14.5 Rules and Regulations.................................... 28
14.6 Additional Charges....................................... 28
14.7 Invalidity of Particular Provisions...................... 28
14.8 Provisions Binding, Etc.................................. 28
14.9 Recording................................................ 29
14.10 Notices.................................................. 29
14.11 When Lease Becomes Binding............................... 29
14.12 Paragraph Headings....................................... 29
14.13 Subordination; Attornment................................ 30
14.14 Assignment of Rents and Transfer of Title................ 31
14.15 Status Report............................................ 31
14.16 Remedying Defaults....................................... 32
14.17 Holding over............................................. 32
14.18 Waiver of Subrogation.................................... 32
14.19 Surrender of Premises.................................... 33
14.20 Brokerage................................................ 33
14.21 Substitute Space......................................... 33
14.22 Waiver of Jury Trial..................................... 33
14.23 Governing Law............................................ 34
(EXHIBITS). The Exhibits listed below are incorporated in this Lease by
reference and are to be construed as part of this Lease.
Exhibit A: Plan(s) Showing Leased Premises
Exhibit B: Rules and Regulations
Exhibit C: [INTENTIONALLY OMITTED.]
Exhibit D: [INTENTIONALLY OMITTED.]
Exhibit E: Building Services
Exhibit F: Description of Land
Exhibit G: Description of Office Park
LEASE
THIS INSTRUMENT IS A LEASE, dated as of November __, 1995, in which
Landlord and Tenant are the parties hereafter named, and which relates to space
in a building (the "Building") known as 000 Xxxxxx Xxxxxx, located in Bay Colony
Corporate Center, Waltham, Massachusetts. The parties to this instrument hereby
agree as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. Each reference in this Lease to any of the following
subjects referred to in Section 1.2 or 1.3 shall be construed to incorporate the
data stated for that subject in this Article.
1.2 BASIC DATA.
Landlord: Shorenstein Management, Inc., as Trustee for SRI Two Realty
Trust
Xxxxxxxx's Address: c/o The Shorenstein Company
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx, Executive Vice President
with a copy to: X. Xxxxx Xxxxx, P.C.
c/x Xxxxxxx & Xxxxx, P.C.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
-and-
c/o The Shorenstein Company
Legal Department
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Legal Department
Tenant: Physician's Quality Care, Inc., a Delaware corporation
Tenant's Original Address: 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Building Rentable Area: 268,584 square feet
Tenant's Rentable Area: 6,358 square feet
Leased Premises or Premises: See Exhibit A
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Anticipated Term Commencement Date: December 1, 1995.
Initial Term: 36 months
Basic Rent: $171,672.00 per annum
Operating Expense Base: Operating Expenses incurred on account of
calendar 1996
Tax Base: Taxes incurred on account of the July 1, 1995 - June 30, 1996
fiscal tax year
Tenant's Tax and Operating Percentage: 2.32% (See Section 5.1.)
Tenant's Electrical Charge: $5,404.30 per annum
($0.85 per rentable sq. ft.)
Public Liability Insurance: Combined single limit for bodily injury and
property damage of $3,000,000.00.
Permitted Uses: Administrative offices, clerical offices and
statistical offices.
Broker(s): The Shorenstein Company, Inc.
Construction Representatives: For Landlord: Xxxxxxx Xxxxx
For Tenant: Xxxxxx X. Xxxxxxxxx
1.3 ADDITIONAL DEFINITIONS.
Building: The building erected on the Land, and all alterations and
additions thereto and replacements thereof.
Business Days: All days except Sundays and legal holidays.
Commencement Date: As defined in Section 4.1.
Common Property: All of the land and improvements in the Office Park, as
from time to time constituted (including land owned by
any entity affiliated with Landlord), which is used or
enjoyed by, or made available to, Tenant and other
lessees of the Office Park for access, parking or other
purposes. The term Common Property shall include all
retention ponds, drainage facilities, electric
substations, utility lines, pumping stations and other
facilities and structures which serve the Office Park;
provided, however, that Common Property shall not include
(a) any office building located in the Office Park except
the Building, (b) land reserved exclusively to provide
parking for other buildings within the Office Park and
(c) property reserved for future development
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by Landlord, except to the extent the same is reserved
for, made available to or used by all lessees of the
Office Park.
Default Rate: As defined in Section 14.16.
Escalation Charges: The amounts prescribed in Sections 5.1, 5.2 and 6.2
plus Tenant's Electrical Charge.
Land: The lot or parcel of land on which the Building is located as more
particularly set forth on Exhibit F, subject to adjustments of the
Lot boundaries from time to time.
Leased Premises or Premises: A portion of the Building as shown on
Exhibit A annexed hereto.
Office Park: Bay Colony Corporate Center, which includes all of the land
described in Exhibit G (subject to adjustments of the
boundaries thereof and/or the boundaries of each lot thereof)
plus such additional land as may be added thereto from time
to time.
Operating Expenses: As determined in accordance with Section 6.1.
Property: The Building and the Land.
Taxes: As determined in accordance with Section 5.1.
Tax Year: As defined in Section 5.1.
Tenant's Removable Property: As defined in Section 7.2.
Term of this Lease: The Initial Term and any proper extension thereof
exercised in accordance with the provisions of this
Lease. The Initial Term shall commence on the
Commencement Date and expire at the close of the day on
which the Initial Term ends, except that if the
Commencement Date shall be other than the first day of
a calendar month, the expiration of the Initial Term
shall be at the close of the day on the last day of the
calendar month in which the end of the Initial Term
shall fall.
ARTICLE II
PREMISES AND APPURTENANT RIGHTS
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for
the Term of this Lease and upon the terms and conditions hereinafter set forth,
and Tenant hereby accepts from Landlord, the Premises and all appurtenant areas.
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2.2 APPURTENANT RIGHTS AND RESERVATIONS.
(a) Tenant shall have, as appurtenant to the Premises, the non-
exclusive right to use and permit its invitees to use, in common with others,
public or common lobbies, hallways, stairways, elevators and common walkways
necessary for access to the Building, and if the portion of the Premises on any
floor includes less than the entire floor, the common toilets, corridors and
elevator lobby of such floor; but such rights shall always be subject to the
rules and regulations from time to time established by Landlord pursuant to
Section 14.5 and to the right of Landlord to designate and change from time to
time areas and facilities so to be used.
(b) Tenant shall have, as appurtenant to the Premises, the non-
exclusive right, in common with others entitled thereto, to use the portions of
the Land in such other locations thereon as are designated from time to time by
Landlord, for parking by its customers, employees, suppliers and visitors.
Landlord reserves the right from time to time, and at Landlord's sole
discretion, to alter or redesign the parking area, to temporarily close portions
of the parking area and/or to relocate the ingress and egress to and from the
parking area and Building provided, however, that Landlord will use reasonable
efforts to minimize interference with Xxxxxx's use and enjoyment of the
Premises. Tenant and its employees shall also have the right to use, in common
with others entitled thereto, such other common areas and facilities in or
appurtenant to the Building as Landlord may from time to time designate and
provide.
(c) Tenant shall also have, as appurtenant to the Premises, the non-
exclusive right, in common with others entitled thereto from time to time,
subject to such regulations as Landlord shall from time to time impose, to use
the roads of the Office Park located within the Common Property for access to
the Property and the Premises.
(d) Excepted and excluded from the Premises are exterior faces of
exterior walls, the common stairways and stairwells, elevators and elevator
shafts; but the entry doors to the Premises are a part thereof. Landlord
reserves the right from time to time (a) to install, use, maintain, replace and
relocate for service to the Premises and other parts of the Building, or either,
pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the
Premises or Building, and (b) to alter or relocate any other common facility,
provided that substitutions are substantially equivalent or better. However,
with respect to any such activities within the Premises, Landlord shall act
diligently to minimize interference with Xxxxxx's activities, so as to assure
that there will be no material interference with Xxxxxx's use and enjoyment of
the Premises. Landlord reserves the exclusive use of all fan rooms, electric
and telephone closets, janitor closets, freight elevator vestibules, pipes,
ducts, conduits, wires and appurtenant fixtures located within the Premises
which serve exclusively or in common other parts of the Building.
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ARTICLE III
BASIC RENT; TENANT'S ELECTRICAL CHARGE
3.1 BASIC RENT.
(a) Xxxxxx agrees to pay to Landlord, or as directed by Xxxxxxxx,
without offset, abatement (except as provided in Section 12.1), deduction or
demand, Basic Rent and Tenant's Electrical Charge. Basic Rent and Xxxxxx's
Electrical Charge shall be payable in equal monthly installments, in advance, on
the first day of each and every calendar month during the Term of this Lease, at
Landlord's Address, or at such other place as Landlord shall from time to time
designate by notice.
(b) Basic Rent and Tenant's Electrical Charge for any partial month
shall be prorated on a daily basis, and if the Initial Term commences on a day
other than the first day of a calendar month, the first payment which Tenant
shall make to Landlord shall be payable on the Commencement Date and shall be
equal to a proportionate part of the monthly installment of Basic Rent and
Tenant's Electrical Charge for the partial month from the Commencement Date to
the last day of the month in which the Commencement Date occurs plus the
installment of Xxxxxx's Electrical Charge and Basic Rent for the succeeding
calendar month. In addition to any charges pursuant to Section 14.16, Tenant
shall pay a late charge equal to 5% of the amount of any Basic Rent payment or
Escalation Charge not paid when due (unless such late charge is prohibited by
any applicable law).
ARTICLE IV
TERM OF LEASE
4.1 COMMENCEMENT DATE. The Commencement Date shall be the date on which
Landlord tenders the Premises to Tenant for Tenant's possession; provided,
however, that if the date of tender is earlier than December 1, 1995, then the
Commencement Date shall be the earlier of (a) the date on which Xxxxxx accepts
possession of the Premises and (b) December 1, 1995. At such time as the
Commencement Date has occurred, Landlord and Tenant shall enter into a written
instrument, confirming the exact date of the Commencement Date.
If Landlord shall be unable to give possession of the Premises on the
Anticipated Term Commencement Date because the previous occupant of the Premises
has not vacated the Premises, Landlord shall not be subject to any liability for
failure to give possession on said date, nor shall such failure affect the
validity of this Lease.
4.2 INITIAL CONDITION OF THE PREMISES. Tenant expressly agrees that it
will accept possession of the Premises in a totally "as-is" condition; that
Landlord has made no representation or warranty concerning the fitness of the
Premises for Tenant's intended use of the Premises; and that Landlord shall have
no obligation to alter, renovate or improve the Premises in any way.
4.3. [INTENTIONALLY OMITTED.]
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4.4 [INTENTIONALLY OMITTED.]
4.5 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION. All of Tenant's
alterations, additions and installation of furnishings shall be coordinated with
any work being performed by Landlord and in such manner as to maintain
harmonious labor relations and not damage the Property or interfere with
Building construction or operation and, except for installation of furnishings,
shall, at Xxxxxxxx's option, be performed by Xxxxxxxx's general contractor or by
contractors or workmen first approved by Landlord. If Landlord shall require
that Tenant retain Landlord's contractor, Xxxxxxxx's contractor shall provide
its services at costs reasonably comparable to the charges imposed by other
reputable contractors in the Metropolitan Boston area; and Landlord shall
provide supervisory services (for which Tenant shall pay to Landlord a
reasonable supervisory fee). If Landlord shall not require that Tenant retain
Landlord's contractor, Landlord shall not unreasonably withhold or delay its
approval of contractors and workmen chosen by Xxxxxx. Except for work by
Xxxxxxxx's general contractor, Tenant before its work is started shall: secure
all licenses and permits necessary therefor; deliver to Landlord a statement of
the names of all of its contractors and subcontractors and the estimated cost of
all labor and material to be furnished by them; and cause each contractor to
carry workmen s compensation insurance in statutory amounts covering all of the
contractor's and subcontractor's employees and comprehensive public liability
insurance and property damage insurance with such limits as Landlord may
reasonably require but in no event less than, with respect to public liability
insurance, the amount specified in Section 1.2 (all such insurance to be written
in companies approved by Landlord and insuring Landlord and Tenant as well as
the contractors), and to deliver to Landlord certificates of all such insurance.
Tenant agrees to pay promptly when due the entire cost of any work done on the
Premises by Xxxxxx, its agents, employees, or independent contractors, and not
to cause or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Premises or the Property and immediately
to discharge any such liens which may so attach and, at the request of Landlord,
to deliver to Landlord security satisfactory to Landlord against liens arising
out of the furnishing of such labor and materials. Upon completion of any work
done on the Premises by Tenant, its agents, employees or independent
contractors, Tenant shall promptly deliver to Landlord original lien releases
and waivers executed by each contractor, subcontractor, supplier, materialman,
architect, engineer or other party which furnished labor, materials or other
services in connection with such work and pursuant to which all liens, claims
and other rights of such party with respect to labor, material or services
furnished in connection with such work are unconditionally released and waived.
No material or equipment shall be incorporated in the Premises by Tenant which
is subject to any lien, charge, mortgage or other encumbrance of any kind
whatsoever, or subject to any conditional sale, or other similar or dissimilar
title retention agreement. If Xxxxxx fails to comply with any of the foregoing
obligations, then, in addition to all other rights and remedies hereunder,
Landlord may by notice to Tenant require Tenant to cease the performance of any
alteration, addition or installation until the offending condition has been
remedied.
All construction work required or permitted by this Lease shall be done in
a good and workmanlike manner and in compliance with all applicable laws and
lawful ordinances, regulations and orders of governmental authority and insurers
of the Property. Each party may inspect the work of the other at reasonable
times (and without causing interference with
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on-going construction activities) and shall promptly give notice of observed
defects. Each party authorizes the other to rely, in connection with design and
construction, upon approval and other actions on the party's behalf by the
Construction Representative of the party, if any, named in Article I or any
person named in substitution or addition by notice to the party relying.
The foregoing provisions of this Section 4.5 shall apply from and after the
execution of this Lease, and thereafter for so long as this Lease shall remain
in force and effect.
4.6 CHANGES IN THE OFFICE PARK. Landlord expressly reserves the right to
change the layout, design and plans for the Office Park and the Common Property
at any time and to add to or reduce the size of the Land; provided that no
reduction in the size of the Land may result in a permanent material adverse
effect upon the Building or the parking areas, streets or sidewalks serving the
Building. Landlord hereby expressly reserves the right to dedicate the roads
within the Office Park for public use.
ARTICLE V
REAL ESTATE TAXES
5.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES.
(a) For the purpose of this Article, the term "Tax Year" shall mean
the twelve-month period commencing on the July 1 immediately preceding the
Commencement Date and each twelve-month period thereafter occurring wholly or
partially during the Term, and the term "Taxes" shall mean all taxes and special
assessments of every kind and nature assessed by any governmental authority upon
or against the Land and/or the Building and/or the Property or any part thereof,
or payments in lieu thereof, or which Landlord shall become obligated to pay
because of or in connection with the ownership, leasing and operation of the
Land and/or the Building and/or the Property and reasonable expenses of any
proceedings for abatement of Taxes. "Taxes" shall also include, if any, such
portion of any taxes and special assessments assessed against the remainder of
the Office Park as may be allocated to Landlord as owner of the Land and/or the
Building and/or the Property, pursuant to any joint operating agreement or other
similar arrangement between Landlord and the owner(s) of the remaining portions
of the Office Park. The amount of special taxes or special assessments to be
included shall be limited to the amount of the installment (plus any interest,
other than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the year in respect of which such taxes
are being determined. There shall be excluded from Taxes (i) any federal, state
or local income, profit, franchise, privilege, capital levy, excise,
inheritance, estate, succession, gift, deed, conveyance or transfer taxes, and
(ii) so long as Tenant has satisfied its obligations under this Article V on a
timely basis, any penalties or interest resulting from the late payment of
Taxes: provided, however, that if at any time during the Term the present system
of ad valorem tax on real property shall be changed so that, in lieu of the
whole or any part of the ad valorem tax on real property, there shall be
assessed to Landlord a capital levy or other tax on the gross rents received
with respect to the Property, or a federal, state, county, municipal, or other
local income, franchise, excise or similar tax, assessment, levy or charge
(distinct from any now in effect in the jurisdiction in which the Property is
located) measured by or based,
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in whole or in part, upon any such gross rents, then any and all of such capital
levy or taxes shall be included within the term "Taxes", but only to the extent
that the same would be payable if the Property were the only property of
Landlord.
(b) In the event that, for any reason, Taxes shall be greater during
any Tax Year than the Tax Base, Tenant shall pay to Landlord, as an Escalation
Charge, an amount (the "Tax Excess") equal to the excess of Taxes over the Tax
Base multiplied by Xxxxxx's Tax and Operating Percentage, such amount to be
apportioned for any fraction of a Tax Year in which the Commencement Date falls
or the Term ends.,
(c) Payment of Tenant's Tax Excess shall be made to Landlord within
twenty (20) days from the date Landlord shall give written notice to Tenant
that, based upon a bill received for Taxes (or partial Taxes), or other form of
notice received from any governmental authority responsible for Taxes, there is
due from Tenant any Tax Excess (which collection notice shall set forth the
manner of computation of any Tax Excess due from Tenant). At Landlord's
election, simultaneously with Xxxxxx's monthly payments of Basic Rent, Tenant
shall remit to Landlord one-twelfth of Landlord's estimate of the Tax Excess for
the then-current Tax Year. If the total of such monthly remittances is greater
than the Tax Excess for such Tax Year, Landlord shall credit the difference
against the next installment of Tax Excess due to Landlord hereunder (except,
that, upon Xxxxxx's request, and so long as Tenant is not then in default in the
performance of its obligations hereunder, Landlord shall pay such excess
directly to Tenant, in cash); and if the total of such remittances is less than
the Tax Excess for such Tax Year, Tenant shall pay the difference at the time
any Tax Excess becomes due and payable as hereinabove provided.
(d) If Landlord shall receive any refund of Taxes as to which Xxxxxx
has paid Tax Excess, Tenant shall be entitled to receive a refund from Landlord
in an amount equal to the smaller of (i) the amount of Tax Excess paid by Tenant
with respect to the Tax Year as to which the refund was obtained by Landlord and
(ii) Tenant's Tax and Operating Percentage multiplied by the amount (if any) by
which the amount of the refund received by Landlord exceeds the costs and
expenses incurred by Landlord in obtaining such refund.
5.2 ALTERNATE TAXES. If some method of taxation shall replace the current
method of assessment of real estate taxes, or the type thereof, Xxxxxx agrees
that Tenant shall pay an equitable share of the same computed in a fashion
consistent with the method of computation herein provided, to the end that
Xxxxxx's share thereof shall be, to the maximum extent practicable, comparable
to that which Tenant would bear under the foregoing provisions.
5.3 PERSONAL PROPERTY TAXES. Tenant shall pay, promptly when due, all
taxes which may be imposed upon personal property (including, without
limitation, fixtures and equipment) in the Premises to whomever assessed.
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ARTICLE VI
OPERATING EXPENSES
6.1 DEFINITIONS. For the purpose of this Article, the following terms
shall have the following respective meanings:
Operating Year: Each calendar year in which any part of the Term
shall fall.
Operating Expenses: All costs and expenses incurred with respect to
the operation, administration, cleaning, repair, management, maintenance
and upkeep of (i) the Property and (ii) the Common Property (including the
amount (if any) of any Operating Expenses incurred by other parties with
respect to the remainder of the Office Park and allocated to Landlord as
owner of the Land and/or the Building and/or the Property), including
without limiting the generality of the foregoing:
(a) all salaries, wages, fringe benefits, payroll taxes and
workmen's compensation insurance premiums related thereto with respect
to any employees of Landlord engaged in security, operation,
management and maintenance of the Property and the Common Property,
exclusive, however, of the allocable share of all management personnel
expenses not related to the operation, maintenance or upkeep of the
Property and the Common Property;
(b) all utilities and other costs related to provision of
heat (including oil and/or gas), air-conditioning, lighting, and water
(including sewer charges) and other utilities to the Property and the
Common Property;
(c) all costs, including, without limitation, material and
equipment costs, for cleaning, maintenance, replacement, repair and
upkeep of the Property (including without limitation window cleaning
of the Building) and/or the Common Property, and of all parking areas,
roads and landscaping located on the Property and the Common Property;
(d) all costs of any insurance carried by Landlord relating
to the Property and/or the Common Property;
(e) all costs of operating and maintaining the Property
and/or the Common Property in good working order, appearance and
condition (including, but not limited to, snow removal, security,
operation and repair of heating and air-conditioning equipment,
elevators, and any other common Building equipment or system), as well
as the cost of all repairs and replacements other than repairs for
which Landlord has received full reimbursement from contractors, other
tenants of the Building or others;
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(f) all legal, accounting, management and other fees and
charges directly related to the operation, management and
administration of the Property and the Common Property (including any
management fee charged by Landlord for its services in connection with
the operation, management and administration of the Property);
(g) all costs for electricity supplied to the Property
and/or the Common Property after deducting (i) Tenant's Electrical
Charge paid by Tenant for such period and (ii) all payments of
electricity charges from other tenants in the Property for such period
which are separately stated in such other tenant leases as "Tenant's
Electrical Charge". The cost of electricity supplied to Tenant and to
other tenants of the Building which is separately metered shall not be
included in Operating Expenses (but, in such case, the Operating
Expense Base shall be reduced as and to the extent such Operating
Expense includes sums attributable to the electricity being metered);
(h) all costs of disposal of refuse from the Property and/or
the Common Property;
(i) all license, permit and inspection fees relating to the
Property, the Common Property or any part thereof,
(j) all capital expenses incurred for the purpose of
reducing Operating Expenses (even if no such reduction in fact
results) or required to be made by federal, state or local regulation
or ordinance not in effect as of the Commencement Date;
(k) if during the Term, Landlord shall add or replace a
capital item other than as provided in Item (j), there shall be
included in Operating Expenses for that and each succeeding calendar
year the amount of the annual charge-off (determined as hereinafter
provided) of such capital expenditure together with interest at an
annual rate equal to 2% over the "prime rate" of Bank of Boston in
effect at the time of making such capital expenditure (less insurance
or other proceeds, if any, collected by Landlord by reason of damage
to, or destruction of' any capital item so replaced). (Annual charge-
off shall be determined by dividing the original cost of a capital
item or a capital expenditure made during the Term by the number of
years of useful life of the item acquired, and the useful life shall
be determined by Landlord's accountants in accordance with generally
accepted accounting principles and practices in effect at the time of
acquisition of the capital item.); and
(1) all costs and fees payable under service and management
contracts relating to matters referred to in Items (a) through (i)
hereof.
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There shall not be included in Operating Expenses:
(i) Painting, decoration or other work which Landlord
performs for any other tenant or prospective tenant of the Building
other than painting, decoration or other work which is standard for
the Building and performed for tenants subsequent to their initial
occupancy;
(ii) Leasing commissions and expenses of procuring tenants,
including lease concessions and lease takeover obligations;
(iii) Legal fees incurred in connection with the execution
or enforcement of any other lease concerning premises in the Building;
(iv) Depreciation;
(v) Interest on and amortization of debt;
(vi) Wages or salaries of employees over the rank of
building manager;
(vii) Taxes; and
(viii) Rents payable under any ground lease affecting the
Property.
If, during any portion of the Operating Year for which Operating Expenses
are being computed, less than 95% of Building Rentable Area was occupied by
tenants, actual Operating Expenses incurred shall be reasonably extrapolated by
Landlord on an item by item basis to the estimated Operating Expenses that would
have been incurred if the Building were 95% occupied for such year, and such
extrapolated amount shall, for the purpose hereof be deemed to be Operating
Expenses for such Year.
Tenant acknowledges that Xxxxxxxx's formula for sharing of Operating
Expenses stated in this Lease is based on the assumption that Landlord will be
providing substantially similar services to all tenants in the Property from
year to year. If this assumption is not, in fact, correct (that is, if Landlord
is not furnishing any particular work or service (the cost of which, if
performed by Landlord, would be included in Operating Expenses) to a tenant who
has undertaken to perform such work or service in lieu of the performance
thereof by Landlord), Operating Expenses shall be deemed, for purposes of this
paragraph, to be increased by an amount equal to the additional Operating
Expenses which would reasonably have been incurred during such period by
Landlord if it had, at its own expense, furnished such work or service to such
tenant.
6.2 TENANT'S PAYMENTS. In the event that Operating Expenses for any
Operating Year shall exceed the Operating Expense Base, Tenant shall pay to
Landlord, as an Escalation Charge, an amount (the "Operating Expense Excess")
equal to Xxxxxx's Tax and
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Operating Percentage multiplied by the sum of (i) 100% of such increase in
Operating Expenses related to the Property plus (ii) the percentage of any such
increase in Operating Expenses related to the Common Property which Landlord
fairly allocates to the Property, such amount to be apportioned for any
Operating Year in which the Commencement Date falls or the Term ends.
Payment of any Operating Expense Excess shall be made to Landlord within
twenty (20) days from the date Landlord shall furnish to Tenant an itemized
statement of Tenant's share of any such excess, prepared, allocated and computed
in accordance with generally accepted accounting principles. At Landlord's
election, simultaneously with Xxxxxx's monthly payments of Basic Rent, Tenant
shall remit to Landlord one-twelfth (1/12th) of Landlord's estimate of the
Operating Expense Excess for the then-current Operating Year. If the total of
such monthly remittances is greater than the Operating Expense Excess for such
year, Landlord shall credit any such excess payments against the next
installment of Operating Expense Excess due to Landlord hereunder (except that,
upon Xxxxxx's request, and so long as Tenant is not then in default in the
performance of its obligations hereunder, Landlord shall pay such excess
directly to Tenant, in cash); and if the total of such remittances is less than
the Operating Expense Excess for such year, Tenant shall pay the difference to
Landlord at the time the first monthly installment of Operating Expense Excess
with respect to the next succeeding Operating Year becomes due and payable as
hereinabove provided.
ARTICLE VII
USE OF PREMISES
7.1 PERMITTED USES.
(a) Xxxxxx agrees that the Premises shall be used and occupied by
Tenant only for the Permitted Uses and for no other purposes.
(b) Xxxxxx agrees to conform to the following provisions during the
Term:
(i) Tenant shall cause all freight and other property to be
delivered to or removed from the Building and the Premises in
accordance with reasonable rules and regulations established by
Landlord therefor. Tenant shall not receive or ship articles of any
kind except through loading and receiving facilities, if any, provided
for those purposes by Landlord; and
(ii) Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of windows and
door(s)), or on any part of the Land or Building outside the Premises,
any sign, symbol, advertisement or the like visible to public view
outside of the Premises. Landlord will not unreasonably withhold
consent for signs or lettering on the entry doors to the Premises
provided such signs conform to Building standards adopted by Landlord
and Tenant has submitted to Landlord a plan or sketch of the sign to
be placed on such entry doors. Xxxxxxxx agrees, however, to maintain
a
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tenant directory in the lobby of the Building in which will be
placed Xxxxxx's name and the location of the Premises in the Building;
and
(iii) Tenant shall not perform any act or carry on any practice
which may injure the Premises, or any other part of the Property or
the Office Park, or cause any offensive odors or loud noise or
constitute a nuisance or a menace to any other tenant or tenants or
other persons in the Building or the Office Park. Tenant shall not
overload or otherwise misuse the plumbing, electrical and other
utilities systems serving the Premises and the Building. Tenant shall
not use or devote the Premises or any part thereof for any use which
is inconsistent with the maintenance of the Building as an office
building of first class quality in maintenance, use and occupancy, or
which is improper, offensive, contrary to law or ordinance or liable
to render necessary any alteration or addition to the Building; and
(iv) Tenant shall not operate any cooking apparatus (except for
coffee making equipment, a microwave oven and a refrigerator), or
locate any vending machines in the Premises without Landlord's prior
written consent; and
(v) Tenant shall continuously, throughout the Term of this
Lease, occupy the Premises for the Permitted Uses; and
(vi) Tenant will comply with all laws, ordinances, rules and
regulations of governmental authorities and recommendations of the
Fire Underwriters Rating Bureau or any similar entity with respect to
the condition, use or occupancy of the Premises and the use or
occupancy of the Building; and
(vii) Tenant shall not obstruct in any manner any portion of the
Building not hereby leased or of the Property or the Common Property
used by Tenant in common with others.
7.2 INSTALLATIONS AND ALTERATIONS BY TENANT.
(a) Tenant shall make no alterations, additions (including, for the
purposes hereof, wall-to-wall carpeting), or improvements (including Tenant's
initial improvements) in or to the Premises without Landlord's prior written
consent (Landlord agreeing hereby that such consent shall not be unreasonably
withheld or delayed with respect to any proposed alteration or addition which
will not affect (i) the structural elements or utilities systems of the
Building, (ii) the exterior appearance of the Building or (iii) the appearance
of any common area of the Building or the Office Park). Any such alterations,
additions or improvements shall (i) be performed in a good and workmanlike
manner and in compliance with Building standards, the applicable provisions of
Article IV, and all applicable laws (Without limitation, if, because of
alterations, additions or improvements undertaken (or proposed to be undertaken)
by or on behalf of Tenant, applicable laws require additional alterations,
additions or improvements to the Premises or the Building which would not have
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been required but for Tenant's additions, etc. (or proposed additions, etc.),
Tenant shall be obligated, at its sole cost and expense, to undertake and
complete all such additional alterations, additions or improvements.), (ii) be
made only by Landlord's contractor or by contractors or mechanics approved by
Landlord (all as provided in subsection 4.3(d), above), (iii) be made at
Tenant's sole expense and at such times as Landlord may designate, and (iv)
become part of the Premises and the property of Landlord. Xxxxxx agrees not to
employ or permit the use of any labor or otherwise take any action which might
result in a labor dispute involving personnel providing services, labor or
material in the Building or the Office Park pursuant to arrangements made by
Landlord or Xxxxxxxx's contractor. Furthermore, Xxxxxx agrees that it will not
permit any contractors or other persons retained by Tenant to make alterations,
additions or improvements on the Premises to commence their activities until
such time as Landlord has received Certificates of Insurance confirming that
such persons maintain public liability, automobile liability, workmen's
compensation and other insurance required by Landlord, in amounts satisfactory
to Landlord.
(b) All articles of personal property and all business fixtures,
machinery, equipment and furniture owned or installed by Tenant solely at its
expense in the Premises ("Tenant's Removable Property") shall remain the
property of Tenant and may be removed by Tenant at any time prior to the
expiration of the Term, provided that Tenant, at its expense, shall repair, to
the satisfaction of Landlord, any damage to the Property caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
Premises. Whenever and as often as any mechanic's lien shall have been filed
against the Property based upon any act or interest of Tenant or of anyone
claiming through Tenant, Tenant shall forthwith take such action by bonding,
deposit or payment as will remove or satisfy the lien.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
8.1 PROHIBITION.
(a) Subject to the remaining provisions of this subsection (a), Tenant
covenants and agrees that neither this Lease nor the term and estate hereby
granted, nor any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred, and that neither the Premises nor
any part thereof will be encumbered in any manner by reason of any act or
omission on the part of Tenant, or used or occupied or permitted to be used or
occupied by anyone other than Tenant, or for any use or purpose other than a
Permitted Use, or be sublet (which term, without limitation, shall include
granting of concessions, licenses and the like) in whole or in part, without in
each case having first obtained the express written consent of Landlord. A
transfer or assignment of 50% (computed on a cumulative aggregate basis) or more
of the stock, equity or other indicia of ownership of Tenant shall be deemed to
constitute an assignment in breach of this Section 8.1; provided, however, that
the sale of corporate treasury stock in order to increase the
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capital of Tenant shall not be restricted. The foregoing restrictions shall not
be applicable to an assignment of this Lease or a subletting of the Premises by
Tenant to a subsidiary wholly-owned by Tenant or to a controlling corporation,
the stock of which is wholly-owned by the stockholders of Tenant. It shall be a
condition of the validity of any assignment, whether with the consent of
Landlord or to a subsidiary or controlling corporation, that the assignee agrees
directly with Landlord, by written instrument in form satisfactory to Landlord,
to be bound by all the obligations of Tenant hereunder including, without
limitation, the covenant against further assignment and subletting. No
assignment or subletting shall relieve Tenant from its obligations hereunder and
Tenant shall remain fully and primarily liable therefor.
Landlord agrees that its consent to a proposed assignment or sublease shall
not be unreasonably withheld or delayed, and Xxxxxx agrees to provide to
Landlord such information as Landlord may reasonably require in order to reach
an informed decision. Without limitation, Landlord shall not be deemed to be
unreasonable in withholding its consent to a proposed assignment or sublease
unless each of the following criteria has been satisfied: (i) the proposed
assignee or subtenant is of good reputation and character and is of sound
financial condition, (ii) the proposed assignee or subtenant is not otherwise a
tenant of the Office Park, (iii) the proposed assignee or subtenant will use the
Premises solely for the Permitted Uses, (iv) the proposed assignee or subtenant
does not intend to use the Premises for a "Prohibited Activity" (as hereinafter
defined), (v) the intended use of the Premises by the proposed assignee or
subtenant is consistent with the maintenance of the Building as a first-class
office building, and will not interfere with the business activities of other
occupants of the Office Park, and (vi) the rental and other economic terms of
the proposed assignment or sublease are not inconsistent with or deleterious to
the economic interests of Landlord as owner of the Building. (Without
limitation, Tenant shall not advertise or otherwise offer any portion (or all)
of the Premises at a rental rate which is lower than the rental rate then being
quoted by Landlord for equivalent space in the Building.)
For the purposes of the immediately preceding paragraph, a "Prohibited
Activity" is a use which will, in Landlord's reasonable judgment, (i) introduce
undue amounts of public traffic in the Building (in excess of average traffic
which Landlord reasonably believes is generated by other tenants in the
Building), or (ii) place a strain on the existing plumbing, electrical and
mechanical systems of the Building or (iii) generate unusually high densities of
employees or invitees per square foot of rentable space.
(b) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant, Landlord may, whether or not
it has consented to any such assignment, subletting or occupancy, at any, time
and from time to time collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to the rent and other
charges herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any breach of Section 8.1 (a), or the
acceptance of the assignee, subtenant or occupant as a tenant or a release of
Tenant from the further performance by Tenant of its obligations hereunder. In
the event that Basic Rent and other charges payable to Tenant under any
assignment or sublease exceed Basic Rent and other charges payable hereunder,
Basic Rent hereunder shall automatically be deemed to be increased by 75% of the
amount of such excess. (If only a portion of the
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Premises is subleased, determination of any excess shall be computed by
allocating Basic Rent and other charges hereunder on a per square foot basis,
between the portion of the Premises which is subject to the sublease and the
remainder of the Premises.) The consent by Landlord to an assignment or
subletting shall in no way be construed to relieve Tenant or any successor from
obtaining the express written consent of Landlord to any further assignment or
subletting. No assignment or subletting and no use of the Premises by a
subsidiary wholly-owned by Tenant or controlling corporation of Tenant shall
affect the Permitted Uses.
(c) In the event of any request by Tenant for any consent to a
proposed assignment or sublease, Landlord shall have the option instead to
terminate this Lease. In the case of a proposed sublease concerning only a
portion of the Premises, at Landlord's option, such termination shall apply only
to that portion of the Premises which is intended to be the subject of the
sublease. In such event, Basic Rent and other charges hereunder shall be
reduced proportionately, to take account of the reduction in the size of the
Premises which will be occupied by Tenant following such termination.
Furthermore, in the case of a sublease which is intended to apply to only a
portion of the Term, at Landlord's option, this Lease shall be terminated only
for the period of the proposed sublease, and shall be reinstated upon the
expiration of the term of the proposed sublease. Upon any termination, as
provided above, the Premises (or the portion of the Premises to which the
termination relates) shall be delivered to Landlord in the condition in which
the Premises are required to be delivered to Landlord upon the expiration of the
Term as provided herein. Following any such termination, Landlord shall be
entitled to enter into any lease or occupancy arrangement concerning the
Premises (or portion of the Premises, as the case may be) with any party,
including, without limitation, the assignee or subtenant proposed by Xxxxxx.
ARTICLE IX
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
9.1 LANDLORD REPAIRS. Except as otherwise provided in this Lease,
Landlord agrees to make such repairs to the roof exterior walls, floor slabs,
common areas and common electrical, heating, air conditioning and other common
mechanical systems and facilities of the Building as may be necessary to keep
them in serviceable condition, all insofar only as they affect the Premises,
except that Landlord shall in no event be responsible to Tenant for the
condition of glass in and about the Premises or the doors leading to the
Premises, or for any condition in the Premises or the Building caused by any act
or neglect of Tenant, its invitees or contractors. Landlord shall also perform
snow removal and resurfacing, repairs and replacements to the surface parking
areas and sidewalks of the Property. Landlord shall not be responsible to make
any improvements or repairs to the Building, the Land or the Office Park other
than as expressly in this Section 9.1 provided, unless expressly provided
otherwise in this Lease.
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9.2 TENANT'S AGREEMENT.
(a) Tenant will keep neat and clean and maintain in good order,
condition and repair the Premises and every part thereof excepting only those
repairs for which Landlord is responsible under the terms of this Lease,
reasonable wear and tear of the Premises, and damage by fire or other casualty
and as a consequence of the exercise of the power of eminent domain excepted;
and shall surrender the Premises, at the end of the Term, in such condition.
Without limitation, Tenant shall maintain and use the Premises in accordance
with all directions, rules and regulations of all governmental agencies having
jurisdiction, and shall, at Tenant's own expense, obtain all permits, licenses
and the like required by applicable law. Tenant shall be responsible for the
cost of repairs which may be made necessary by reason of damage to common areas
in the Building and the parking areas, sidewalks, paved areas, landscaping,
lighting and other facilities on the Land or in the Office Park by Tenant,
Xxxxxx's independent contractors, or Xxxxxx's invitees.
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof Landlord may demand that Tenant make the same forthwith, and if Tenant
refuses or neglects to commence such repairs and complete the same with
reasonable dispatch, after such demand, Landlord may (but shall not be required
to do so) make or cause such repairs to be made and shall not be responsible to
Tenant for any loss or damage that may accrue to Tenant's stock or business by
reason thereof. In the case of emergency (that is, any condition which, if not
remedied promptly, would result in additional damage or risk of damage to
persons or property), Landlord shall be permitted to act immediately, without
the requirement of demand or notice to Tenant. If Landlord makes or causes such
repairs to be made, Xxxxxx agrees that Tenant shall forthwith, on demand, pay to
Landlord the cost thereof with interest thereon at the Default Rate, as an
additional charge.
9.3 FLOOR LOAD - HEAVY MACHINERY.
(a) Tenant shall not place a load upon any floor in the Premises
exceeding 50 pounds (live load) per square foot of usable floor area of the
Premises. Landlord reserves the right to prescribe the position of all heavy
business machines and mechanical equipment, including safes, which shall be
placed so as to distribute the weight thereof. Business machines and mechanical
equipment shall be placed and maintained by Tenant at Tenant's expense in
settings sufficient, in Xxxxxxxx's judgement, to absorb and prevent vibration,
noise and annoyance. Tenant shall not move any safe, heavy machinery, heavy
equipment, freight, furniture, bulky matter or fixtures into or out of the
Building without Landlord's prior consent, which consent may include a
requirement to provide insurance in such amounts as Landlord may deem
reasonable. Tenant shall protect all elevators, sidewalks and other areas of
the Property from possible damage prior to moving any such items and shall
comply with all requirements of Landlord in connection therewith.
(b) If any such safe, machinery, equipment, freight, bulky matter or
fixture requires special handling, Xxxxxx agrees to employ only persons holding
a Master Xxxxxx's License to do such work, and all work in connection therewith
shall comply with applicable laws and regulations. Any such moving shall be at
the sole risk and hazard of Tenant, and
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Tenant will exonerate, indemnify and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly from
such moving.
9.4 BUILDING SERVICES.
(a) Landlord shall, on Business Days (except Saturdays) from 8:00 a.m.
to 6:00 p.m. (and on Saturdays from 9:00 a.m. to 1:00 p.m.), furnish heating
and cooling as normal seasonal changes may require to provide reasonably
comfortable space temperature and ventilation for occupants of the Premises
under normal business operation at an occupancy of not more than one person per
150 square feet of usable floor space. If Tenant shall require air
conditioning, heating or ventilation outside the hours and days above specified,
Landlord shall furnish such service and Tenant shall pay to Landlord therefor
such charges as may from time to time be in effect. In the event Tenant
introduces into the Premises personnel or equipment which overloads the capacity
of the Building system or in any other way interferes with the system's ability
to perform adequately its proper functions, or which affects the temperature
otherwise maintained by the air conditioning system, supplementary systems may,
if and as needed, at Landlord's option, be provided by Landlord, at Tenant's
expense.
(b) Landlord shall also provide:
(i) Hot water for lavatory purposes and cold water (at
temperatures supplied by the utility service supplying same) for
drinking, lavatory and toilet purposes. If Tenant uses water for any
purposes other than for ordinary lavatory and drinking purposes,
Landlord may assess a reasonable charge for the additional water so
used, or install a water meter and thereby measure Tenant's water
consumption for all purposes. In the latter event, Tenant shall pay
the cost of the meter and the cost of installation thereof and shall
keep such meter and equipment in good working order and repair.
Tenant agrees to pay for water consumed, as shown on such meter,
together with the sewer charge based on such meter charges, as and
when bills are rendered, and in the event of any default in making
such payment Landlord may pay such charges and collect the same from
Tenant as an additional charge.
(ii) Cleaning and janitorial services to the Premises, provided
the same are kept in order by Tenant, in accordance with the cleaning
standards set forth in Exhibit E attached hereto.
(iii) Passenger elevator service from the existing passenger
elevator system, for use by Tenant in common with Landlord and other
tenants of the Building.
9.5 ELECTRICITY.
(a) Landlord, in its sole discretion, will either (i) furnish
electricity to the Premises sufficient to operate normal lighting and business
machines approved by Landlord (exclusive, however, of Tenant's electrical needs
for computers and similar equipment having
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special power or environmental requirements), charging Tenant's Electrical
Charge for such service, to be paid by Tenant in equal monthly installments on
the same day in each month that rental payments are due and payable hereunder
(but in no event shall Landlord be obligated to furnish electricity to supply a
requirement in excess of 3.0 xxxxx per square foot of the usable area of the
Premises), or (ii) elect, at any time during the Term, to cause electricity
furnished to the Premises to be separately metered, in which event all charges
for electricity consumed on the Premises will be billed directly to, and paid
for by, Tenant. The cost of any such electrical meter as well as the cost of
installation, repair and replacement shall be borne by Xxxxxx, who shall
reimburse Landlord for the cost thereof within 30 days after receipt of written
demand therefor.
(b) Whether or not Landlord is furnishing electricity to Tenant, if
Tenant shall require electricity in excess of the quantity which is to be
furnished as provided in Section 9.5(a), Tenant shall, upon demand, reimburse
Landlord for the cost of such excess electricity. Further, if (i) in Landlord's
judgement, Landlord's facilities are inadequate for such excess requirements, or
(ii) such excess shall result in an additional burden on the Building's or the
Office Park's utility systems or additional cost on account thereof, as the case
may be, Tenant shall, upon demand, reimburse Landlord for all additional costs
related thereto. Further, if Tenant requires electricity in excess of the
quantity which is to be furnished as provided in Section 9.5(a) above, Landlord,
at the sole cost and expense of Tenant, will furnish and install such additional
wires, conduits, feeders, switchboards and appurtenances as Landlord may require
to supply such additional requirements of Tenant (if electricity therefor is
then available to Landlord without affecting the Office Park or Landlord's plans
therefor); provided that Landlord shall have no obligation to furnish any such
excess electricity unless the same shall be permitted by applicable laws and
insurance regulations and shall not cause or threaten permanent damage or injury
to the Building or the Premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations or repairs, or
interfere with or disturb other tenants or occupants of the Building or the
Office Park or interfere with Landlord's plans for the Office Park.
(c) Landlord shall furnish and install the bulbs required within the
Premises as of the Commencement Date. Thereafter, Landlord, at Tenant's
expense, shall replace and install all ballasts, lamps and bulbs (including, but
not limited to, incandescent and fluorescent) used in the Premises. All such
replacements shall be of such type, color and size as are approved by Landlord.
(d) Landlord shall not in any way be liable or responsible for any
loss, damage or expense which Tenant may sustain or incur if the quantity,
character, or supply of electricity is changed or is no longer available or
suitable for Tenant's requirements.
(e) Landlord shall have the right to discontinue furnishing electric
power to the Premises at any time upon not less than thirty (30) days' notice to
Tenant, provided Landlord shall first have arranged for the supply of power for
Tenant's use to be provided to the Premises by the public utility company
furnishing electric service to the Building and shall, at Tenant's expense,
separately meter the Premises. If Landlord exercises such right, from and after
the effective date of such termination, Landlord shall not be obligated to
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furnish electricity to the Premises, and Tenant shall have no obligation to pay
any portion of Tenant's Electrical Charge.
9.6 PARKING. Landlord shall make available to Tenant parking on a
nonexclusive basis on the Land as provided in Section 2.2 of this Lease, except
that Tenant shall not have the right to make use of parking spaces (if any)
marked for visitor or handicapped parking or which are otherwise regulated by
Landlord.
9.7 ADDITIONAL SERVICES. In the event Tenant wishes to provide outside
services for the Premises over and above those services to be provided by
Landlord as set forth herein, Tenant shall obtain the prior written approval of
Landlord for the installation and/or utilization of such services. ("Outside
services" shall include, but shall not be limited to, cleaning services,
television, so-called "canned music," security services, catering and the like.)
In the event Landlord approves the installation and/or utilization of such
services, such installation and utilization shall be at Tenant's sole cost, risk
and expense and subject to such requirements as Landlord may from time to time
elect to impose in connection therewith.
9.8 INTERRUPTION OF SERVICES. Landlord reserves the right to curtail,
suspend, interrupt and/or stop the supply of water, sewage, electricity,
cleaning, parking and other services, and to curtail, suspend, interrupt and/or
stop the use of the roads providing access to the Building, without thereby
incurring any liability to Tenant, when necessary by reason of accident or
emergency, or for repairs, alterations, replacements or improvements in the
judgment of Landlord desirable or necessary, or when prevented from supplying
such services or use by strikes, lockouts, difficulty of obtaining materials,
accidents or any other cause beyond Landlord's reasonable control, or by laws,
orders or inability, by exercise of reasonable diligence, to obtain electricity,
water, gas, steam, coal, oil or other suitable fuel or power, or by any other
condition not reasonably within the control of Landlord. Except as expressly
provided below, no diminution or abatement of rent or other compensation, nor
any direct, indirect or consequential damages shall or will be claimed by Tenant
as a result of' nor shall this Lease or any of the obligations of Tenant be
affected or reduced by reason of' any such interruption, curtailment or
suspension. Failure or omission on the part of Landlord to furnish any of the
foregoing services or use shall not be construed as an eviction of Tenant,
actual or constructive, nor, except as expressly provided below, entitle Tenant
to an abatement of rent, nor render Landlord liable in damages, nor release
Tenant from prompt fulfillment of any of its covenants under this Lease. If
there shall occur any interruption or reduction of service(s), and if (i) such
interruption or reduction materially interferes with Tenant's use and enjoyment
of the Premises, and (ii) such interruption or reduction shall continue for ten
(10) days, then, commencing with the eleventh (11th) day of such interruption or
reduction and continuing until such time as such service(s) have been restored
to the extent necessary to avoid material interference with Tenant's use and
enjoyment of the Premises, Tenant shall be entitled to a reasonable reduction or
abatement of rent (consistent with the extent of interference with Tenant's
activities); provided, however, that Tenant shall not be entitled to such an
abatement or reduction if the interruption or reduction of service(s) results
from any condition not reasonably within Landlord's control.
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ARTICLE X
INDEMNITY AND INSURANCE
10.1 TENANT'S INDEMNITY. TO the maximum extent this agreement may be made
effective according to law, Xxxxxx agrees to indemnify and save harmless
Landlord from and against all loss, costs, penalties and liability damage claims
of whatever nature arising from any act, omission or negligence of Tenant or
Tenant's contractors, licensees, agents, servants or employees or arising from
any death, accident, injury or damage whatsoever caused to any person, or to the
property of any person, occurring after the date of this Lease until the end of
the Term of this Lease and thereafter, so long as Tenant is in occupancy of any
part of the Premises, in or about the Premises; or arising from any death,
accident, injury or damage occurring outside of the Premises but on the Property
or the Office Park, where such accident, damage or injury results or is claimed
to have resulted from any act or omission on the part of Tenant or Tenant's
agents or employees or independent contractors or invitees or suppliers. This
indemnity shall, to the maximum extent this agreement may be made effective
according to law, also extend to all loss, costs, penalties, damage and claims
of whatever nature asserted against Landlord arising out of the use or occupancy
of, passage or travel over or upon, the Property or the Office Park by Tenant or
by any person claiming by, through or under Tenant (including, without
limitation, all employees, agents, contractors and customers of Tenant), or
arising out of any delivery to or service supplied to the Premises, or on
account of or based on anything whatsoever done on the Premises, except if the
same was caused by the negligence, fault or misconduct of Landlord, its agents,
servants or employees. This indemnity and hold harmless agreement shall include
indemnity against all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon, and the defense
thereof with counsel approved by Landlord.
10.2 LIABILITY INSURANCE. Tenant shall keep in force, at its own expense,
so long as this Lease remains in effect and during such other times as Tenant
occupies the Premises or any part thereof, comprehensive general liability
insurance including broad form endorsement contractual liability, with respect
to the Premises, with combined single limits in an amount not less than the
amount specified in Section 1.2 (and in such higher amounts as may reasonably be
required by Landlord from time to time), and so-called "All Risk" insurance on
(and in an amount not less than the full replacement value of) Xxxxxx's personal
property, including trade fixtures, floor coverings, furniture and other
property removable by Tenant. All such insurance shall be written by companies
and on forms acceptable to Landlord. Tenant will further deposit the policy or
policies of such insurance or certificates thereof with Landlord, which policies
shall name Landlord and/or its designee(s) as additional named insured, and
shall also contain a provision stating that such policy or policies shall not be
cancelled or amended except after thirty (30) days written notice to Landlord.
If the nature of Tenant's business is such as to place all or any of its
employees under the coverage of local workmen's compensation or similar
statutes, Tenant shall also keep in force, at its expense, so long as this Lease
remains in effect and during such other times as Tenant occupies the Premises or
any part thereof, workmen's compensation or similar insurance affording
statutory coverage and containing statutory limits. If Tenant shall not comply
with its covenants made in this Section 10.2, Landlord may cause insurance as
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aforesaid to be issued, and, in such event, Xxxxxx agrees to pay, as additional
rent and charge, the premium for such insurance upon Landlord's demand.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Xxxxxx agrees to use and occupy the Premises and to
use such other portions of the Building, the Property and the Common Property as
Tenant is herein given the right to use at Tenant's own risk; and Landlord shall
have no responsibility or liability for any loss of or damage to Tenant's
Removable Property (including, without limitation, damage resulting from the
breaking, bursting, or leaking of pipes, conduits, electrical lines and the like
or from any other cause or condition). The provisions of this Section shall be
applicable from and after the execution of this Lease and until the end of the
Term, and during such further period as Tenant may use or be in occupancy of any
part of the Premises or the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement
may be made effective according to law, Xxxxxx agrees that Landlord shall not be
responsible or liable to Tenant, or to those claiming by, through or under
Tenant, for any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or any part of the Property or the
Office Park or otherwise.
10.5 LANDLORD'S NEGLIGENCE. Notwithstanding anything to the contrary set
forth in the foregoing provisions of this Article X, Landlord agrees to
indemnify and hold harmless Tenant from and against all loss, cost and expense
resulting from Xxxxxxxx's negligence, or from any other tortious act of
Landlord.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. Landlord shall have the right to enter the
Premises at all reasonable hours for the purpose of inspecting or making repairs
to the same, and Landlord shall also have the right to make access available at
all reasonable hours to prospective or existing mortgagees, purchasers or
tenants of any part of the Property.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
casualty, Basic Rent payable by Tenant shall xxxxx proportionately for the
period in which, by reason of such damage, there is substantial interference
with Xxxxxx's uses of the Premises, having regard to the extent to which Tenant
may be required to discontinue Tenant's use of all or a portion of the Premises,
but such abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises to the condition which they were in prior to
such damage (subject, however, to the provisions of applicable zoning and
building regulations). If the Premises shall be affected by any exercise of the
power of eminent domain, Basic Rent payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the loss of
use thereof suffered by Xxxxxx.
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12.2 LANDLORD'S RIGHT OF TERMINATION. If (a) the Premises or (b) the
Building or (c) the parking area serving the Building or (d) any roadway or
other facility within the Common Property necessary for the use and enjoyment of
the Premises (hereinafter referred to as "Critical Common Facilities") are
substantially damaged by fire or casualty (the term "substantially damaged"
meaning damage of such a character that the same cannot reasonably be expected
to be repaired within sixty (60) days from the time that repair work would
commence), or if access to the Property through the Common Property is, or if
(i) any part of the Building or (ii) a substantial part of the parking area
serving the Building or (iii) Critical Common Facilities are, taken by any
exercise of the right of eminent domain, then Landlord shall have the right to
terminate this Lease (even if Landlord's entire interest in the Premises may
have been divested) by giving notice of Landlord's election so to do within 90
days after the occurrence of such casualty or the effective date of such taking,
whereupon this Lease shall terminate 30 days after the date of such notice with
the same force and effect as if such date were the date originally established
as the expiration date hereof.
12.3 RESTORATION. IF this Lease shall not be terminated pursuant to
Section 12.2, Landlord shall thereafter use due diligence to restore the
Premises to proper condition for Tenant's use and occupation, provided that
Landlord's obligation shall be limited to the amount of insurance proceeds or
condemnation awards made available to Landlord therefor. If, for any reason,
such restoration shall not be substantially completed within six (6) months
after the occurrence of the casualty or taking (which six-month period may be
extended for such periods of time as Landlord is prevented from proceeding with
or completing such restoration for any cause beyond Landlord's reasonable
control). Tenant shall have the right to terminate this Lease by giving notice
to Landlord thereof within thirty (30) days after the expiration of such period
(as so extended). Upon the giving of such notice, this Lease shall cease and
come to an end without further liability or obligation on the part of either
party unless, within such 30-day period, Landlord substantially completes such
restoration. Such right of termination shall be Tenant's sole and exclusive
remedy at law or in equity for Landlord's failure to complete such restoration.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and
Tenant hereby grants and assigns to Landlord, all rights to recover for damages
to the Property and the leasehold interest hereby created, and to compensation
accrued or hereafter to accrue by reason of taking, damage or destruction, and
by way of confirming the foregoing, Tenant hereby grants and assigns, and
covenants with Landlord to grant and assign to Landlord, all rights to such
damages or compensation. Nothing contained herein shall be construed to prevent
Tenant from prosecuting in any separate condemnation proceedings a claim for the
value of any of Tenant's Removable Property installed in the Premises by Tenant
at Tenant's expense and for relocation expenses, provided that such action shall
not affect the amount of compensation otherwise recoverable by Landlord from the
taking authority and shall be prosecuted in a proceeding separate and apart from
Landlord.
12.5 TEMPORARY TAKING. In the event of taking of the Premises or any part
thereof for temporary use (that is, for a use which is expected to end prior to
the expiration of the Term), (i) this Lease shall be and remain unaffected
thereby and rent shall not xxxxx, and (ii) Tenant shall be entitled to receive
for itself such portion or portions of any award
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made for such use with respect to the period of the taking which is within the
Term, provided that if such taking shall remain in force at the expiration or
earlier termination of this Lease, Tenant shall then pay to Landlord a sum equal
to the reasonable cost of performing Tenant's obligations under this Lease with
respect to surrender of the Premises and upon such payment shall be excused from
such obligations.
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT.
(a) If at any time subsequent to the date of this Lease any one or
more of the following events (each herein referred to as a "Default of Tenant")
shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation
Charges or other charges hereunder when due and such failure shall
continue for three (3) full business days after notice to Tenant from
Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be performed or
observed and Tenant shall fall to remedy the same within thirty (30)
days after written notice to Tenant specifying such neglect or failure
(or, if such failure is of such a nature that Tenant cannot reasonably
remedy the same within such thirty (30) day period, Tenant shall fail
to commence promptly to remedy the same and to prosecute such remedy
to completion with diligence and continuity); or
(iii) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law directed against Xxxxxx;
or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself
under any present or future Federal, State or other statute, law or
regulation for the relief of debtors, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of its property, or shall
admit in writing its inability to pay its debts generally as they
become due; or
(v) A petition shall be filed against Tenant in bankruptcy
or under any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief
under any present or future Federal, State or other statute, law or
regulation and shall remain undismissed or unstayed for an aggregate
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of Sixty (60) days (whether or not consecutive), or if any debtor in
possession (whether or not Tenant), trustee, receiver, or liquidator
of Tenant or of all or any substantial part of its property or of the
Premises shall be appointed without the consent or acquiescence of
Tenant and such appointment shall remain unvacated or unstayed for an
aggregate of sixty (60) days (whether or not consecutive); or
(vi) Tenant shall abandon or vacate the Premises, or shall
otherwise indicate its unwillingness to continue to perform its
obligations hereunder;
then in any such case (1) if such Default of Tenant shall occur prior to the
Commencement Date, this Lease shall ipso facto, and without further act on the
part of Landlord, terminate, and (2) if such Default of Tenant shall occur after
the Commencement Date, Landlord may terminate this Lease by notice to Tenant,
and this Lease shall come to an end on the date of such notice, as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Term; and Xxxxxx will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter provided.
(b) If this Lease shall have been terminated as provided in this
Article, or if any execution or attachment shall be issued against Tenant or any
of Tenant's property whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may, without notice, re-enter the
Premises, either by force, summary proceedings, ejectment or otherwise, and
remove and dispossess Tenant and all other persons and any and all property from
the same, as if this Lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to
that end.
(c) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until what would have been the end of the
Term in the absence of such termination, and whether or not the Premises shall
have been relet, shall be liable to Landlord for, and shall pay to Landlord, as
liquidated current damages, the Basic Rent, Escalation Charges and other sums
which would be payable hereunder if such termination had not occurred, less the
net proceeds, if any, of any reletting of the Premises for the corresponding
period, after deducting all expenses in connection with such reletting,
including, without limitation, all repossession costs, brokerage commissions,
legal expenses, attorneys' fees, advertising costs, expenses of employees,
alteration costs and expenses of preparation for such reletting. Tenant shall
pay such current damages to Landlord monthly on the days on which Basic Rent
would have been payable hereunder if this Lease had not been terminated.
(d) At any time after such termination, whether or not Landlord shall
have collected any such current damages, as liquidated final damages and in lieu
of all such current damages beyond the date of such demand, Tenant shall pay to
Landlord upon demand an amount equal to the excess, if any, of the Basic Rent,
Escalation Charges and other sums as hereinbefore provided which would be
payable hereunder from the date of such demand (assuming that, for the purposes
of this paragraph, annual payments by Tenant
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on account of Taxes and Operating Expenses would be the same as the payments
required for the immediately preceding Operating or Tax Year) for what would be
the then unexpired Term if the same remained in effect, over the then fair net
rental value of the Premises for the same period.
(e) In case of any Default by Tenant, following any re-entry,
termination and dispossession by summary proceedings or otherwise, Landlord may
(i) re-let the Premises or any part or parts thereof either in the name of
Landlord or otherwise, for a term or terms which may at Landlord's option be
equal to or less than or exceed the period which would otherwise have
constituted the balance of the Term of this Lease and may grant concessions or
free rent to the extent that Xxxxxxxx considers advisable and necessary to re-
let the same and (ii) may make such alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable and necessary for
the purpose of re-letting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for failure to re-let the Premises, or, in the event that the
Premises are re-let, for failure to collect the rent under such re-letting.
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or
dispossessed, or in the event of Landlord obtaining possession of the Premises,
by reason of the violation by Tenant of any of the conditions of this Lease.
(f) If a Guarantor of the Lease is named in Section 1.2, the happening
of any of the events described in paragraphs (a)(iv) or (a)(v) of this Section
13.1 with respect to the Guarantor shall constitute a Default of Tenant
hereunder.
(g) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for.
(h) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses) in enforcing its
rights hereunder or occasioned by any Default of Tenant shall be paid by Xxxxxx.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until Landlord
shall have failed to perform such obligation within thirty (30) days, or such
additional time as is reasonably required to correct any such default, after
notice by Tenant to Landlord specifying wherein Landlord has failed to perform
any such obligations. After receipt of any such notice, Landlord shall commence
the curing of any such default with reasonable promptness.
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant
will not do or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall invalidate or increase the rate
of property or liability insurance on the Premises or the Property above the
standard rate applicable to premises being occupied for the Permitted Uses; and
Tenant agrees that, in the event that Tenant shall do any of the foregoing,
Tenant will promptly pay to Landlord, on demand, any such increase resulting
therefrom, which shall be due and payable as an additional charge hereunder.
14.2 WAIVER.
(a) Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long the same may
continue, shall never be a waiver by Tenant or Landlord, respectively, of any of
the other's rights hereunder. Further, no waiver at any time of any provisions
hereof by Landlord or Tenant shall be construed as a waiver of any of the other
provisions hereof' and a waiver at any time of any of the provisions hereof
shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any action
by the other requiring such consent or approval shall not be construed to waive
or render unnecessary Landlord's or Tenant's consent or approval to or of any
subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser
amount than shall be due from Tenant to Landlord shall be treated otherwise than
as a payment on account. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter accompanying
such check, that such lesser amount is payment in full, shall be given no
effect, and Landlord may accept such check without prejudice to any other rights
or remedies which Landlord may have against Tenant. The delivery of keys to any
employee of Landlord or to Landlord's agent or any employee thereof shall not
operate as a termination of this Lease or a surrender of the Premises.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Basic Rent and Escalation Charges
and other sums and charges due hereunder and observing, keeping and performing
all of the other terms and provisions of this Lease on Tenant's part to be
observed, kept and performed, shall peaceably and quietly have, hold and enjoy
the Premises for the Term without hindrance or molestation by anyone claiming
by, through or under Landlord, subject, however, to the rights of the holders of
all mortgages affecting the property from time to time; provided, however,
Landlord may at any time and from time to time, without the same constituting a
breach of Landlord's covenant of quiet enjoyment or an actual or constructive
eviction, and without incurring any liability to Tenant or otherwise affecting
any of Tenant's obligations under this Lease, make such changes, alterations,
additions, improvements, repairs or replacements in or to the interior and
exterior of the Building (including the Premises) and the fixtures and equipment
thereof, and in or to the Property and the Office Park (including, without
limitation, landscaping, the construction of additional structures, signs and
buildings,
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the relocation of access roads situated within the Office Park and the redesign
or temporary closing of parking areas and other common facilities and roads
serving the Building and the Office Park) as Landlord may deem necessary or
desirable, and change the arrangement and/or location of entrances or
passageways, doors and doorways, corridors, elevators, or other public parts of
the Building, provided further, however, that there be no unreasonable
interference with the conduct of Tenant's business or obstruction of access to
the Premises by Tenant. Nothing contained in this Section 14.3 shall be deemed
to relieve Tenant of any duty, obligation or liability with respect to making
any repair, replacement or improvement or complying with any law, order or
requirement of any governmental or other authority. Landlord reserves the right,
at any time and from time to time, to change the name and address of the
Building and the Office Park.
14.4 LANDLORD'S LIABILITY.
(a) Tenant specifically agrees to look solely to Landlord's then
equity interest in the Property at the time owned by Landlord, for recovery of
any judgment from Landlord; it being specifically agreed that neither Landlord
(original or successor) nor any partner, beneficiary, shareholder, officer,
director, employee or any other party holding any interest in or being
affiliated with Landlord shall ever be personally liable for any such judgment,
or for the payment of any monetary obligation to Tenant. The provision
contained in the foregoing sentence is not intended to, and shall not, limit any
right that Tenant might otherwise have to obtain injunctive relief against
Landlord or Landlord's successors in interest, or to take any action not
involving the personal liability of Landlord (original or successor) to respond
in monetary damages from Xxxxxxxx's assets other than Landlord's equity interest
in the Property.
(b) In no event shall Landlord ever be liable for any indirect or
consequential damages suffered by Tenant from whatever cause.
14.5 RULES AND REGULATIONS. Tenant shall abide by rules and
regulations from time to time established by Landlord (including, without
limitation, the Rules and Regulations annexed hereto as Exhibit B), it being
agreed that such rules and regulations will be established and applied by
Landlord in a non-discriminatory fashion, such that all rules and regulations
shall be generally applicable to other tenants of the Building of similar nature
to the Tenant named herein (having in mind the location and nature of the
Premises and the nature of Tenant's business activities). Xxxxxxxx agrees to
use reasonable efforts to insure that any such rules and regulations are
uniformly enforced, but Landlord shall not be liable to Tenant for violation of
the same by any other tenant or occupant of the Building, or persons having
business with them. Landlord expressly reserves the right to waive application
of any rule or regulation as to any tenant.
14.6 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any
sums under this Lease designated as an additional charge, additional rent or
Escalation Charge or any other charge hereunder, Landlord shall have the same
rights and remedies as Landlord has hereunder for failure to pay Basic Rent.
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14.7 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of
this Lease, or the application thereof to any person or circumstance, shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and shall be
enforced to the fullest extent permitted by law.
14.8 PROVISIONS BINDING, ETC. Except as herein provided, the terms
hereof shall be binding upon and shall inure to the benefit of the successors
and assigns, respectively, of Landlord and Tenant, and, if Tenant shall be an
individual, upon and to his heirs, executors, administrators, successors and
assigns. Each term and each provision of this Lease to be performed by Tenant
shall be construed to be both a covenant and a condition. The reference
contained to successors and assigns of Tenant is not intended to constitute a
consent to assignment by Xxxxxx, but has reference only to those instances in
which Landlord may later give consent to a particular assignment (or as to which
Xxxxxxxx's consent is not required), pursuant to Article VIII hereof.
14.9 RECORDING. Xxxxxx agrees not to record this Lease, but each
party hereto agrees, on the request of the other, to execute a so-called notice
of lease in recordable form and complying with applicable law and reasonably
satisfactory to Xxxxxxxx's attorneys. In no event shall such document set forth
the rent or other charges payable by Tenant under this Lease; and any such
document shall expressly state that it is executed pursuant to the provisions
contained in this Lease, and is not intended to vary the terms and conditions of
this Lease.
14.10 NOTICES. Whenever, by the terms of this Lease, notice shall or
may be given either to Landlord or to Tenant, such notice shall be in writing
and shall be sent by registered mail, return receipt requested, postage prepaid,
or by prepaid Federal Express or other similar overnight delivery service:
If intended for Landlord, addressed to Landlord at Landlord's Address (or
to such other address or addresses as may from time to time hereafter be
designated by Landlord by like notice); and
If intended for Tenant, addressed to Tenant at the Premises (or to such
other address or addresses as may from time to time hereafter be designated
by Tenant by like notice); provided, however, that, prior to the
Commencement Date, notices intended for Tenant shall be addressed to
Xxxxxx's Original Address.
All such notices shall be effective upon receipt by or tender for delivery
to the intended recipient thereof.
14.11 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of' or option for, the Premises, and this document shall become
effective and binding only upon execution and delivery by both Landlord and
Tenant. Except for the provisions of any written instrument or agreement
executed substantially concurrently herewith by Landlord
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and Xxxxxx, all negotiations, considerations, representations and understandings
between Landlord and Tenant are incorporated herein and this Lease expressly
supersedes any proposals or other written documents executed prior hereto. This
Lease may be modified or altered only by written agreement between Landlord and
Tenant, and no act or omission of any employee or agent of Landlord shall alter,
change or modify any of the provisions hereof.
14.12 PARAGRAPH HEADINGS. The paragraph headings in this instrument
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
14.13 SUBORDINATION; ATTORNMENT.
(a) Tenant's rights under this Lease are and shall always be
subordinate to the operation and effect of any lease of land only or of land and
buildings in a sale-leaseback transaction, and any mortgage, deed of trust or
other security instrument now or hereafter placed upon the Property, or any part
or parts thereof' by Landlord. This clause shall be self-operative, and no
further instrument of subordination shall be required. In confirmation thereof
Tenant shall execute such further assurances as may be requisite. In addition,
Xxxxxx agrees to attorn to any successor in interest to Landlord whether by
purchase, foreclosure, sale in lieu of foreclosure, power of sale, termination
of any lease of land only or land and buildings in a sale-leaseback transaction
or otherwise, if so requested or required by such successor in interest, and
Xxxxxx agrees, upon demand, to execute such agreement or agreements in
confirmation of such attornment as may be requested by Landlord. However,
Tenant's obligation of subordination and attornment with respect to any mortgage
hereafter encumbering the Property shall be conditioned upon the execution by
the holder of such mortgage of an agreement, in the form then commonly used by
such holder, to the effect that, notwithstanding any foreclosure of such
mortgage or other exercise by the holder of its rights thereunder, Tenant shall
be permitted to continue to occupy the Premises and exercise its rights
hereunder, so long as there shall occur no condition which, pursuant to the
terms of this Lease, would have permitted Landlord to terminate this Lease or
otherwise interfere with Xxxxxx's rights hereunder. Landlord or its mortgagee,
any ground lessor or other similar secured party, may, at its option, make this
Lease superior to any such mortgage, ground lease or other security instrument
by giving Tenant ten (10) days prior written notice and no other documentation
shall be necessary to effect such change.
(b) If any person shall succeed to all or part of Landlord's
interest in the Premises upon the exercise of any remedy provided for in any
mortgage of the Premises now or hereafter recorded, (i) Tenant shall attorn to
and recognize such person as Xxxxxx's landlord as above provided and this Lease
shall continue in full force and effect as a direct lease between such person
and Tenant as fully and with the same force and effect as if this Lease had
originally been entered into by such person and Tenant, except that such person
shall not be liable for any act or omission of Landlord occurring prior to such
person's succession to title nor be subject to any offset, defense or
counterclaim accruing prior to such person S succession to title, nor be bound
by any modification of this Lease or any waiver, compromise, release or
discharge of any obligation of Tenant hereunder unless such
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modification, waiver, compromise, release or discharge shall have been
specifically consented to in writing by the mortgagee under said mortgage, nor
be bound by any payment of Basic Rent or Escalation Charges which Tenant has
paid more than one month in advance (other than deposits in the nature of
security deposits), and (ii) such person and each person succeeding to its
interest in the Premises shall not be liable for any warranty or guaranty of
Landlord under this Lease and shall be liable for the performance and observance
of the other covenants and conditions to be performed and observed by Landlord
under this Lease only with respect to the period during which such person shall
own such interest.
(c) Concurrently with any notification from Tenant to Landlord
concerning any default by Landlord in the performance of its obligations
hereunder, Tenant shall provide a copy of such notice to any mortgagee or ground
lessor of the Property of which Xxxxxx has received notice. Thereafter, Tenant
will not exercise any right to terminate this Lease on account of such default
unless such mortgagee or ground lessor has failed, within a reasonable time
after its receipt of such notice from Tenant, to remedy such default on behalf
of Landlord.
(d) Xxxxxxx receipt of a collateral assignment of Landlord's
interest hereunder nor receipt of transfer of title to the Property when
followed by a ground lease back to Landlord shall be deemed to constitute an
assumption by the mortgagee or transferee (as the case may be) of the
obligations of Landlord hereunder, unless such obligations shall be expressly
assumed, in writing, by such mortgagee or transferee.
(e) If, in connection with obtaining construction, interim or
permanent financing for the Property, the lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder, or affect
Xxxxxx's rental and other monetary obligations hereunder, the Term or any of the
other "business" terms contained herein, or materially adversely affect the
leasehold interest hereby created or Tenant's rights hereunder.
14.14 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE.
(a) With reference to any assignment of Landlord's interest in this
Lease, or the rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage on property which includes the
Premises, Xxxxxx agrees that the execution thereof by Xxxxxxxx, and the
acceptance thereof by the holder of such mortgage shall never be treated as an
assumption by such holder of any of the obligations of Landlord hereunder unless
such holder shall, by notice sent to Tenant, specifically otherwise elect, and
that, except as aforesaid, such holder shall be treated as having assumed
Xxxxxxxx's obligations hereunder only upon foreclosure of such holder's mortgage
and the taking of possession of the Premises.
(b) In the event of any transfer of title to the Property by
Landlord, Landlord shall thereafter be entirely freed and relieved from the
performance and observance of all covenants and obligations hereunder.
Furthermore, Landlord and each succeeding holder of Landlord's interest under
this Lease shall be responsible only for defaults
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hereunder arising during or prior to the period during which such party holds
Xxxxxxxx's interest hereunder.
14.15 STATUS REPORT. Tenant agrees that, at any time and from time to
time at reasonable intervals, within ten (10) days after written request by
Landlord, Tenant will execute, acknowledge and deliver to Landlord and/or to
Landlord's designee, mortgagee or other similar secured party as may be
designated by Landlord, a certificate stating that this Lease is unmodified and
in full force and effect (or that the same is in full force and effect as
modified, listing the instruments of modification), the dates to which rent and
other charges have been paid, and whether or not, to the best of Tenant's
knowledge, Landlord is in default hereunder (and if so, specifying the nature of
the default), and containing such other statements as to the status of matters
under this Lease as Landlord may require, it being intended that any such
statement delivered pursuant to this paragraph may be relied upon by any
mortgagee, ground lessor or assignee of Landlord's interest in the Premises.
The failure of Tenant to execute and deliver such certificate shall
constitute a default hereunder, in which event, in addition to any other
remedies which Landlord may have under this Lease as a result of Xxxxxx's
default, Landlord is hereby authorized, as attorney and agent of Tenant, to
execute such certificate; and in such event Tenant hereby confirms and ratifies
any such certificate executed by virtue of the power of attorney hereby granted.
14.16 REMEDYING DEFAULTS. Landlord shall have the right, but shall not
be required, to pay such sums or do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or neglect
of Tenant to perform any of the provisions of this Lease, and in the event of
the exercise of such right by Xxxxxxxx, Xxxxxx agrees to pay Landlord forthwith
upon demand all such sums, together with interest thereon at a rate (the
"Default Rate") equal to the greater of (i) 3% over the "prime rate" in effect
from time to time at Bank of Boston and (ii) 18% per annum, as an additional
charge. (However, in no event shall the Default Rate be greater than the highest
rate of interest which may lawfully be charged.) Any payment of Basic Rent,
Escalation Charges or other sums payable hereunder not paid when due shall, at
the option of Landlord, bear interest at the Default Rate from the due date
thereof which interest shall be payable forthwith upon demand by Landlord.
14.17 HOLDING OVER. Any holding over by Tenant after the expiration or
earlier termination of the Term shall be treated as a daily tenancy at
sufferance at a rate equal to 1 1/2 times the sum of the Basic Rent and
Escalation Charges herein provided (prorated on a daily basis), and shall
otherwise be on the terms and conditions set forth in this Lease as far as
applicable.
14.18 WAIVER OF SUBROGATION. Landlord shall cause each insurance
policy carried by it insuring the Building against loss by fire or any of the
casualties covered by standard extended coverage to be written in such a manner
as to provide that the insurer waives all right of recovery by way of
subrogation against Tenant in connection with any loss or damage covered by the
policy. Tenant shall cause each insurance policy carried by it insuring the
Premises as well as the contents thereof' including trade fixtures and personal
property, against loss by fire or any of the casualties covered by standard
extended coverage
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to be written in such a manner as to provide that the insurer waives all right
of recovery by way of subrogation against Landlord in connection with any loss
or damage covered by the policy. Neither party hereto shall be liable to the
other for any loss or damage caused by fire or any of the casualties covered by
standard extended coverage, which loss or damage is covered by the insurance
policies maintained by the other party, provided that such policies are not
invalidated by such waiver; and provided further that, if either party shall be
unable to obtain the waiver of subrogation required by this Section without
additional premium therefor, then unless the party claiming the benefit of such
waiver shall agree to pay such party for the cost of such additional premium
within thirty (30) days after notice of the statement setting forth such
requirement and the amount of additional premium, such waiver shall be of no
force and effect between such party and the claiming party; and provided further
that neither party hereto shall be freed of liability to the extent of any
deductible under the other party's insurance, or to the extent to which such
other party's loss is greater than the coverage provided by the insurance policy
to which the waiver of subrogation required by this Section applies.
14.19 SURRENDER OF PREMISES. Upon the expiration or earlier
termination of the Term, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition and
repair, together with all alterations, additions and improvements which may have
been made or installed in, on or to the Premises prior to or during the Term,
excepting only ordinary wear and use and damage by fire or other casualty for
which, under other provisions of this Lease, Tenant has no responsibility of
repair or restoration. Tenant shall remove all of Tenant's Removable Property
and, to the extent specified by Landlord, all alterations and additions made by
Tenant and all partitions wholly within the Premises unless installed initially
by Landlord in preparing the Premises for Tenant's occupancy pursuant to Article
IV; and shall repair, to the satisfaction of Landlord, any damage to the
Premises or the Building (or any other portion of the Office Park) caused by
such removal. Any of Tenant's Removable Property which shall remain in the
Building or on the Premises after the expiration or termination of the Term
shall be deemed conclusively to have been abandoned, and either may be retained
by Landlord as its property or may be stored by Landlord or disposed of in such
manner as Landlord may see fit, at Tenant's sole cost and expense.
14.20 BROKERAGE. Tenant warrants and represents that Xxxxxx has dealt
with no broker in connection with the consummation of this Lease other than the
Broker(s) (if any) specified in Section 1.2 (the "Broker"), and, in the event of
any brokerage claims against Landlord predicated upon prior dealings with
Xxxxxx, Xxxxxx agrees to defend the same and indemnify Landlord against any such
claim, provided that Landlord shall be solely responsible for the payment of
brokerage commissions to the Broker.
14.21 SUBSTITUTE SPACE. In the event that another tenant or occupant
of the Building desires to expand its premises into the Premises (or any portion
thereof), or if a proposed tenant desires to lease space which includes the
Premises, if Landlord so requests, Tenant shall vacate the Premises and
relinquish its rights with respect to the same provided that Landlord shall
provide to Tenant substitute space in the Building or in another building in the
Office Park, such space to be reasonably comparable in size, layout, finish and
utility to the Premises, and further provided that Landlord shall, at its sole
cost and expense, move
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Tenant and Xxxxxx's Removable Property from the Premises to such new space in
such manner as will minimize, to the greatest extent practicable, undue
interference with the business or operations of Tenant. Any such substitute
space shall, from and after such relocation, be treated as the Premises demised
under this Lease, and shall be occupied by Tenant under the same terms,
provisions and conditions as are set forth in this Lease. In the event that
Tenant occupies substitute space, any notice of lease or short form of lease
shall be amended appropriately, so as to reflect accurately the premises then
occupied by Tenant.
14.22 WAIVER OF JURY TRIAL. Landlord and Tenant hereby waive trial by
jury in any action, proceeding or counter claim brought by either of the parties
hereto against the other, on or in respect to any matter whatsoever arising out
of or in any way connected with this Lease, the relationship of Landlord and
Tenant hereunder, Xxxxxx's use or occupancy of the Premises and/or any claim of
injury or damages.
14.23 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof' as of the date first set forth above.
TENANT: LANDLORD:
Physicians Quality Care, Inc. Shorenstein Management, Inc., As
Trustee
for SRI Two Realty Trust
By: /s/ Xxxxx Xxxxxx By:
_______________________________ ____________________________
Xxxxx Xxxxxx
Its Executive Vice President of Its:
Business Development Hereunto duly authorized
Hereunto duly authorized
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EXHIBIT B
CORPORATE CENTER OFFICE LEASE
FOR
WINTER STREET, WALTHAM, MASSACHUSETTS
RULES AND REGULATIONS
RULES AND REGULATIONS. Xxxxxx agrees to observe the rights reserved to
Landlord in the Lease and agrees, for itself its employees, agents, clients,
customers, invitees, contractors and guests, to comply with the following rules
and regulations and with such reasonable modifications thereof and additions
thereto as Landlord may make, from time to time, for the Building.
(a) Any sign, lettering, curtain, picture, notice, or advertisement within
Tenant's Premises (including but not limited to Tenant identification signs
on doors to the Premises) which is visible outside of the Premises shall be
installed at Tenant's cost and in such manner, character and style as
Landlord may approve in writing. No sign, lettering, picture, notice or
advertisement shall be placed on any outside window or in any position so
as to be visible from outside the Building or from any atrium or lobbies of
the Building.
(b) Tenant shall not use the name of the Building or use pictures or
illustrations of the Building in advertising or other publicity, without
prior written consent of Landlord.
(c) Tenant, its customers, invitees, licensees, and guests shall not
obstruct sidewalks, entrances, passages, courts, corridors, vestibules,
halls, elevators and stairways in and about the Building. Tenant shall not
place objects against glass partitions or doors or windows or adjacent to
any open common space which would be unsightly from the Building corridors
or from the exterior of the Building, and will promptly remove the same
upon notice from Landlord.
(d) Tenant shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electrical or electronic
devises or other devices that emit sound waves or are dangerous to other
tenants and occupants of the Building or that would interfere with the
operation of any device or equipment or radio or television broadcasting or
reception from or within the Building or elsewhere, or with the operation
of roads or highways in the vicinity of the Building and shall not place or
install any projections, antennae, aerials or similar devices inside or
outside of the Premises.
(e) Tenant shall not make any room-to-room canvass to solicit business from
other tenants in the Building and shall not exhibit, sell or offer to sell,
use, rent or exchange any item or services in or from the Premises unless
ordinarily embraced within Tenant's use of the Premises as specified in its
Lease.
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(f) Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and shall refrain from attempting
to adjust any controls. Tenant shall keep public corridor doors closed.
(g) Door keys for doors in the Premises will be furnished at the
commencement of the Lease by Landlord. Tenant shall not affix additional
locks on doors and shall purchase duplicate keys only from Landlord. When
the Lease is terminated, Tenant shall return all keys to Landlord and will
provide to Landlord the means of opening any safes, cabinets or vaults left
in the Premises.
(h) Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means
of entry to the Premises closed and secured.
(i) Peddlers, solicitors and beggars shall be reported to the office of the
Building or as Landlord otherwise requests.
(j) Tenant shall not install nor operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without the written permission of Landlord.
(k) No person or contractor not employed or approved by Landlord shall be
used to perform window washing, cleaning, decorating, repair or other work
in the Premises.
(l) Tenant may not (without Landlord's approval therefor, which approval
will be signified on Tenant Plans submitted pursuant to the Lease) and
Tenant shall not permit or suffer anyone to:
(1) Cook in the Premises.
(2) Place vending or dispensing machines of any kind in or about the
Premises;
(3) At any time sell, purchase or give away, or permit the sale,
purchase or gift of' food in any form;
(m) Tenant shall not:
(1) Use the Premises for lodging, manufacturing or for any immoral or
illegal purposes.
(2) Use the Premises to engage in the manufacture or sale of' or
permit the use of any spirituous, fermented, intoxicating or
alcoholic beverages on the Premises.
(3) Use the Premises to engage in the manufacture or sale of or permit
the use of any illegal drugs on the Premises.
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(n) In no event shall any person bring into the Building inflammables such
as gasoline, kerosene, naphtha and benzene or explosives or firearms
(except as may be used in normal security procedures) or any other article
of intrinsically dangerous nature. If by reason of the failure of Tenant
to comply with the provisions of this paragraph any insurance premium
payable by Landlord for all or any part of the Building shall at any time
be increased above normal insurance premiums for insurance not covering the
items aforesaid, Landlord shall have the option to either terminate the
Lease or to require Tenant to make immediate payment for the whole of the
increased insurance premium.
(o) Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations and building rules, and shall not directly
or indirectly make any use of the Premises which may be prohibited thereby
or which shall be dangerous to person or property or shall increase the
cost of insurance or require additional insurance coverage.
(p) If Tenant desires signal, communication, alarm or other utility or
service connection installed or changed, the same shall be made at the
expense of Tenant, with approval and under direction of Landlord.
(q) Bicycles shall not be permitted in the Building in other than Landlord-
designated locations.
(r) Tenant shall cooperate and participate in all security programs
affecting the Building.
(s) In any event Landlord allows one or more tenants in the Building to do
any act prohibited herein, Landlord shall not be precluded from denying any
other tenant the right to do any such act.
(t) Tenant, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish, paper,
articles, or objects of any kind whatsoever outside the doors of the
Premises or in the corridors or passageways of the Building. No animals or
birds shall be brought or kept in or about the Building.
(u) Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion, tends to impair the reputation of the Building
or its desirability for offices, and, upon written notice from Landlord,
Tenant will refrain from or discontinue such advertising.
(v) Tenant shall not mark, paint or drill into, or in any way deface any
part of the Building or the Premises. No boring, driving of nails or
screws, cutting or stringing wires shall be permitted, except with the
prior written consent of Landlord and as Landlord may direct. Tenant shall
not install any resilient tile or similar floor covering in the Premises
except with the prior approval of Landlord. The use of cement or other
similar adhesive materials is expressly prohibited.
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(w) Landlord shall have the right to limit or control the number and format
of listings on the main Building directory.
(x) Tenant's use of delivery areas, loading areas and freight elevators
shall be scheduled in advance with Landlord and shall be subject to the
reasonable approval of Landlord.
(y) Entry and exiting to and from the office Park and use of all roads,
driveways and walkways in the office Park shall be subject to such traffic
and use rules and regulations as Landlord may promulgate and provide to
Tenant from time to time.
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EXHIBIT E
BAY COLONY CORPORATE CENTER
BUILDING SERVICES/CLEANING SPECIFICATIONS
I. PREMISES
A. Daily (Monday thru Friday, Holidays excluded)
1) Empty and clean all waste receptacles and ashtrays and remove
waste material from the premises.
2) Sweep and dust mop all uncarpeted areas using a dust-treated mop.
3) Hand dust and wipe clean with treated cloths all furniture,
telephones, files, fixtures and window xxxxx as necessary.
4) Spot vacuum or sweep all carpeted areas.
5) Upon completion of cleaning, all lights will be turned off and
doors locked leaving the premises in an orderly condition.
B. Weekly
1) Vacuum all rugs and carpeted areas.
2) Remove finger marks from entrance doors and light switches.
3) Wipe clean and polish bright metal work as necessary.
C. Quarterly - All high dusting not reached in daily cleaning to include:
1) Dusting of all pictures, frames, charts, graphs and similar wall
hangings.
2) Dusting of all vertical surfaces such as walls, doors and ducts.
3) Dusting of all exposed pipes, air conditioning louvres and high
moldings.
II PUBLIC LOBBIES & ELEVATORS
A. Daily (Monday thru Friday) Holidays excluded)
1) All stone, ceramic tile and other unwaxed flooring swept and or
damp mopped.
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2) Vacuum and spot clean all carpeted areas.
3) Wash or sweep clean all floor entry mats.
4) Empty and clean all ashtrays urns.
5) Wash and clean all water fountains and coolers.
6) Wipe clean all metal work and glass as required.
7) Clean elevators, wash or vacuum floors and wipe clean all metal,
glass and/or wood.
8) Check and clean all building stairwells as required.
B. Monthly
1) Wax and or spray buff all non-carpeted flooring areas.
2) Dust and clean all lobby walls and ventilating louvres.
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EXHIBIT F
DESCRIPTION OF LAND
All that certain tract, piece or parcel of land situate in the City of
Waltham, County of Middlesex, Commonwealth of Massachusetts, more particularly
described as follows:
Lot 2 as shown on Plan 41218-B on file with the Engineer's Office of the
Middlesex South Registry District of the Land Court.
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EXHIBIT G
DESCRIPTION OF OFFICE PARK
All those certain tracts, pieces or parcels of land situate in the City of
Waltham, County of Middlesex, Commonwealth of Massachusetts, more particularly
described as follows:
Lots 1, 2, 3 and 4 as shown on Plan 41218-B on file with the Engineer's
office of the Middlesex South Registry District of the Land Court.
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