CRES DEVELOPMENT COMPANY, INC.
COMMERCIAL LEASE
In consideration of the components herein contained, 00 Xxxxxxxxx
Xxxxxx Associates, LLC (an entity controlled by CRES Development Company, Inc.),
hereinafter called LESSOR, does hereby lease to Palomar Medical Technologies,
Inc., hereinafter called LESSEE, the following described premises, hereinafter
called the leased premises: A portion of the first floor of 00 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx, consisting of approximately 44,000 rentable square
feet and a portion of the lower level, consisting of approximately 859 square
feet, all as shown on Exhibit "A" attached hereto. LESSEE shall have, as
appurtenant to the leased premises, the right to use in common with others
entitled thereto the common facilities and areas included in the building (as
defined below) and the land on which the building is located including without
limitation common walkways, driveways, parking areas, freight or loading areas,
lobbies, hallways, stairways and elevators, ramps necessary or desirable in
conjunction with the use and occupancy of the leased premises.
TO HAVE AND TO HOLD the leased premises for a term of ten (10) years
commencing on the Commencement Date (defined below), provided, however, that if
the Commencement Date is other than the first day of a calendar month, the term
of this Lease shall expire on the last day of the calendar month in which the
tenth anniversary of the Commencement Date occurs. As used herein the term
?Commencement Date? shall be the date LESSOR delivers the leased premises to
LESSEE in accordance with the terms and conditions of this Lease. The
anticipated Commencement Date is August 20, 1999. If the leased premises have
not been delivered on or before October 1, 1999, AND if LESSOR (or Owner, as
LESSOR's contractor) shall not have been diligently and continuously prosecuting
the work to be performed under Section 35 hereof, then LESSEE may elect, upon
written notice to LESSOR, given before October 15, 1999, to either (i) assume
the performance of such work and to complete the same in accordance with
approved plans and specifications described in Exhibit C hereto, or (ii)
terminate this Lease, whereupon this Lease and all of the rights and obligations
of the parties shall terminate with the same force and effect as if such date
were the date originally set forth herein as the expiration date hereof. If
LESSEE elects to perform such work, then after such election, neither LESSOR nor
Owner shall have any further responsibility or obligation to complete the same,
and LESSEE shall diligently and continuously complete the same, and LESSOR shall
reimburse LESSEE for the out-of-pocket costs and expenses actually and
reasonably incurred by LESSEE in so doing (and any sum not so reimbursed within
thirty days after receipt of an invoice therefor, together with lien waivers and
evidence of amounts paid to subcontractors and suppliers, shall bear interest at
eighteen percent (18%) per annum). If LESSEE does not elect to terminate this
Lease, and the leased premises have not, despite diligent and continuous efforts
on the part of LESSOR, been delivered on or before December 31, 1999, LESSEE
shall have the right to terminate this Lease upon written notice to LESSOR,
given before January 15, 2000, whereupon this Lease and all of the rights and
obligations of the parties shall terminate with the same force and effect as if
such date were the date originally set forth herein as the expiration date
hereof, and such rights of self-help and termination shall be LESSEE's sole and
exclusive remedy for LESSOR's failure to so deliver the leased premises. LESSOR
and LESSEE now convenant and agree that the following terms and conditions shall
govern this lease during the term hereof and for such further time as LESSEE
shall hold the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent as per Exhibit "B" payable in
advance in monthly installments on the first day in each calendar month, the
first monthly payment (or the fraction of a monthly payment for any portion of a
month occurring at the commencement of the lease term) to be made upon the
Commencement Date. All payments shall be made to LESSOR c/o CRES Development
Company, Inc., 50
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Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, or at such other place as LESSOR shall from
time to time in writing designate.
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in the amount
of $111,073.75 dollars, 50% thereof to be paid upon the execution of this lease
by LESSEE, and the remainder to be paid on the Commencement Date, which shall be
held as security for LESSEE's performance as herein provided and refunded to
LESSEE without interest pursuant to the terms hereof, subject to LESSEE's
satisfactory compliance with the conditions hereof. If LESSEE terminates this
Lease due to LESSOR's failure to deliver the leased premises, as hereinabove
provided, LESSOR shall promptly refund the 50% portion paid by LESSEE on
execution hereof. LESSEE may not apply the security deposit to payment of the
last months rent. In the event of any default or breach of this Lease by LESSEE,
LESSOR shall immediately apply the security deposit to any outstanding invoice
or other payment due to LESSOR, with the balance applied to outstanding rent. If
after any portion of the security deposit is applied to cure a default or breach
during the term of the lease, LESSEE shall be responsible for restoring said
deposit forthwith, and failure to do so, or failure to pay the full security
deposit or any portion thereof when due, shall be considered a substantial
default under the lease.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the purposes
of General Office Use, Light Manufacturing, Research and Development and
Distribution. LESSEE shall have twenty four (24) hour access to the leased
premises and the building in which they are located seven (7) days a week,
subject to reasonable security considerations and to emergency conditions.
4. REAL ESTATE TAXES. LESSEE shall pay LESSOR during the term hereof as
additional rent a proportionate share ("LESSEE's Proportionate Share") of any
increase in (x) the real estate taxes levied against the land and building of
which the leased premises are a part (hereinafter called the "building"), over
(y) "Base Taxes" (as hereinafter defined), whether such increase is caused by an
increase in the tax rate or the assessment of the property, or a change in
method of determining real estate taxes. For purposes of this Lease, LESSEE's
Proportionate Share shall be based on a fraction, the numerator of which is the
rentable square footage leased by LESSEE, and the denominator of which is the
total rentable square footage of the building of which the leased premises are a
part. LESSEE shall make payment within thirty (30) days of written notice from
LESSOR (which shall include a copy of the applicable tax xxxx and a calculation
of LESSEE's Proportionate Share) that such increased taxes are payable, and any
additional rent shall be prorated should the lease terminate before the end of
any tax year. LESSEE shall make such payments on account of Real Estate Taxes,
at the option of LESSOR, on a monthly basis on the days on which the rent under
Paragraph 1 of this lease is payable, in amounts reasonably estimated by LESSOR
(or as otherwise billed by LESSOR, but not more frequently than monthly), so
that LESSOR shall have received from LESSEE, by February 1, May 1, August 1, and
November 1st of each year (or other applicable dates, if the present real estate
tax payment dates are modified) LESSEE's full share of the real estate tax. For
purposes of this Lease, "Base Taxes" shall be the rate and the assessment in
effect as of the date of this lease. In the event that the building was not
assessed as a completed structure as of the aforementioned date, then Base Taxes
shall be as of the first date when the building and supporting facilities are
assessed as a completed office building. LESSOR shall have the exclusive right
to pursue an abatement in the real estate taxes, and if such abatement is
obtained a proportionate adjustment or refund shall be made in LESSEE's favor,
less the cost of obtaining such abatement.
5. OPERATING COSTS. LESSEE shall pay to LESSOR as additional rent a
proportionate share (based on square footage leased by LESSEE compared with the
square footage of all premises to which such costs and expenses are
attributable) of any increase in (x) the aggregate of all costs and expenses
incurred by LESSOR in connection with the operation, maintenance, insurance and
management of the building of which the leased premises are a part (hereinafter
the "Operating Costs"), over (y) the "Base Operating Costs" (as hereinafter
defined). Operating Costs shall include a reasonable annual charge-off of the
cost of any capital
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repairs or improvements made by LESSOR for the building or the leased premises
during the term of this lease and which are for the purpose of reducing
Operating Costs, the schedule for which shall be based on the useful life (under
generally accepted accounting principles, consistently applied) of the repair or
improvement, provided that no such capital repairs or improvements made prior to
the fifth anniversary of the Commencement Date shall be included in Operating
Costs. In the event that during any calendar year (or part thereof) occurring
during the Term, the building has an annual occupancy rate of less than one
hundred percent (100%), for purposes hereof, any Operating Costs that vary with
the level of occupancy of the building with respect to such calendar year (or
part thereof) shall be extrapolated as though the annual occupancy rate were one
hundred percent (100%) for such calendar year (or part thereof). LESSEE shall
make payment within thirty (30) days of written notice from LESSOR that such
increased Operating Costs are payable, and any additional rent shall be prorated
should the lease terminate before the end of any calendar year. LESSEE shall
make such payments on account of Operating Costs, at the option of LESSOR, on a
monthly basis on the days on which the rent under Paragraph 1 of this lease is
payable, in amounts reasonably estimated by LESSOR. Notwithstanding anything to
the contrary contained in this Section 5, Operating Costs shall not include any
capital expenditures arising out of or resulting from (i) defective work,
construction or materials by or on behalf of LESSOR, (ii) the failure of LESSOR
to perform any scheduled maintenance or service, or (iii) the gross negligence
or willful misconduct of LESSOR or its agents, employees, or contractors.
Management fees incurred in favor of related entities shall not exceed market
rates (and in no event exceed four percent (4%) of the actual gross rent from
the building, whether or not such fee is actually paid), nor shall Operating
Costs include the following:
a) Costs billed to another tenant;
b) Costs of repairs or replacements resulting from casualty
losses that would be covered under a standard "all-risk" or
"special form" policy of casualty insurance (but any
deductible will be included, up to $10,000), or eminent domain
takings, to the extent of the settlement or award proceeds;
c) Depreciation or amortization of the building, lot or any part
thereof or improvements thereto;
d) Principal or interest payments on loans secured by mortgages
on the Property;
e) Replacement or contingency reserves;
f) Ground lease rents or payments of any fees relating to
leasing, financing or other services;
g) Brokerage commissions and legal fees payable by LESSOR for or
with respect to new leases for the Building;
h) Legal or professional fees relating to new leasing or
financing;
i) Promotional, advertising or public relations expenses;
j) Services provided for a particular tenant (other than LESSEE)
and not tenants in general;
k) Any costs or expenses relating to (1) any breach by LESSOR of
its obligations hereunder, or (2) the compliance with any
applicable laws, rules, orders, regulations, ordinances,
permits or approvals in effect as of the date of this Lease;
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l) Any costs or expenses relating to environmental remediation
unless the need for such remediation arose as a result of the
negligent act or omission of LESSEE or LESSEE's agents,
employees or contractors (in which case LESSEE shall be solely
liable for such costs or expenses);
m) Any costs or expenses reimbursed to LESSOR by tenants or third
parties, including without limitation, costs of convenience
electricity (lights and plugs) supplied to other tenants of
the Building;
n) Any costs or expenses relating to any in-Building food service
facilities; and
o) Compensation, fringe benefits, insurance premiums and payroll
taxes of any person not engaged in such operation, management
or maintenance work at the Building on a full-time basis (but
such expenses shall be ratably allocated to Operating Costs
based on the time devoted to the Building) or other
administrative overhead or profit increment fees and costs
paid by LESSOR to itself (or to its affiliates or
subsidiaries) except the management fee referred to herein.
For purposes of this Lease, "Base Operating Costs" shall mean (i) during the
period commencing on the Commencement Date and ending on the last day of the
calendar month in which the first anniversary of the Commencement Date occurs,
$4.85 per square foot of rentable area in the building, and (ii) thereafter, the
actual Operating Costs incurred during the first twelve full calendar months of
this Lease. LESSOR's notice of LESSOR's share of operating costs shall include a
reasonably detailed statement setting forth the Operating Costs and the
calculation of LESSOR's proportionate share thereof (the "Statement"). If LESSEE
disputes any items set forth in the Statement, LESSEE shall have the right, upon
notice to LESSOR not later than sixty (60) days following receipt of such
Statement (which notice shall set forth in reasonable detail the particular
respects in which LESSEE disputes the Statement), to audit LESSOR's records and
statements of Operating Costs for the calendar year which is the subject of the
Statement. Such audit shall be conducted by an independent certified public
accountant selected by LESSEE and reasonably acceptable to LESSOR. The audit
shall take place at the offices of LESSOR where its books and records are
located at a mutually convenient time during LESSOR's regular business hours. In
the event that such audit discloses that LESSEE paid in excess of its actual
proportionate share of Operating Costs, then LESSOR shall apply such overpayment
to the next due payment obligation on account of Operating Costs and, if such
refund exceeds such next due payment obligation, refund such excess to LESSEE
within thirty (30) days after LESSOR's receipt of such audit report. In
addition, in the event that such audit discloses that LESSEE paid ten percent
(10%) or more in excess of its actual proportionate share of Operating Costs for
any particular cost item or items, then LESSEE shall have the right, to be
exercised by written notice to LESSOR within fifteen (15) days after delivery of
the results of LESSEE's audit, to review the same cost item(s) for prior
calendar years (and any overpayments discovered with respect to such item(s) in
prior years shall likewise be applied to the next due payment, as stated above).
Notwithstanding the foregoing, LESSEE shall be entitled to continue to review
additional prior years only so long as its audit of such particular cost items
continue to reflect overpayments of 10% or more. The accountant conducting the
audit shall be compensated on an hourly basis and shall not be compensated based
upon a percentage of overcharges it discovers. LESSEE shall pay the cost of any
such audit unless such audit discloses an overpayment (whether for the year in
question or any prior year) in excess of five percent (5%) in which case the
cost of such audit shall be paid for by LESSOR. Any dispute regarding the
results of any such audit, which is not resolved by agreement of the parties
within sixty (60) days after delivery of such audit report, shall be resolved by
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association, except that there shall be only one arbitrator, who shall not have
had a professional relationship with either during the preceding one year
period, and who shall be a certified property manager having at least ten (10)
years' experience in the management of
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commercial properties in the northern suburban Boston market. If LESSOR and
LESSEE are unable to agree on a mutually acceptable arbitrator within twenty-one
(21) days after the expiration of such 60-day period, then either party may ask
the then-president of the Greater Boston Real Estate Board to name a qualified
arbitrator.
6. UTILITIES AND SERVICES. As part of the improvements to the leased premises
being provided by LESSOR, LESSOR shall provide water and sewer service,
equipment to heat and cool the leased premises as provided in EXHIBIT C, and
LESSOR shall provide janitorial services as set forth on EXHIBIT D. LESSEE shall
pay for such services as Operating Costs). LESSEE shall pay directly to the
utility provider for all convenience electricity (lights and plugs) in the
leased premises, as determined by a separate meter serving the leased premises.
LESSEE shall pay for all charges that exceed $1.75 per square foot annually for
electricity and gas for the heat and air conditioning serving the leased
premises. LESSEE shall also pay LESSOR as an Operating Cost a proportionate
share of any other fees and charges relating to utility use for the common areas
of the building and the property. No plumbing, construction or electrical work
of any type (other than repair or replacement of minor fixtures or equipment by
qualified personnel) shall be done without LESSOR's prior written approval
(which shall not be unreasonably withheld or delayed) and LESSEE obtaining the
appropriate municipal permit. LESSOR represents and warrants that as of the
Commencement Date of this Lease, the leased premises shall be connected to
electricity, gas, water, sewer and telephone service.
7. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation, activity
or work shall be conducted in the leased premises or use made thereof which may
be unlawful, improper, noisy, offensive, or contrary to any applicable statute,
regulation, ordinance or bylaw. LESSEE shall keep all employees working in the
leased premises covered by Worker's Compensation Insurance and shall obtain any
licenses and permits necessary for LESSEE's specific occupancy. LESSEE shall be
responsible for causing the leased premises and any alterations by LESSEE which
are allowed hereunder to be in full compliance with any applicable statute,
regulation, ordinance, or bylaw as a result of LESSEE's particular use of the
leased premises, provided that LESSOR shall be required to make alterations to
the leased premises on account of any such statute, regulation, ordinance, or
bylaw that is generally applicable to general office, light manufacturing,
research and development and distribution facilities (subject always to LESSOR's
right, in its sole discretion, to contest the applicability of such statute,
regulation, ordinance, or bylaw). LESSOR hereby represents that, to the best
actual knowledge of LESSOR, as of the Commencement Date, the leased premises and
the improvements described on EXHIBIT C to be performed (or caused to be
performed) by LESSOR shall comply (to the extent that non-compliance would
adversely affect the use and occupancy of the leased premises) with all
applicable laws, codes, rules, regulations, ordinances, permits, approvals and
insurance requirements.
8. FIRE, CASUALTY, EMINENT DOMAIN. Should greater than fifty percent (50%) of
the square footage of either the leased premises or the building of which they
are a part be substantially damaged by fire or other casualty or be taken by
eminent domain, LESSOR may elect to terminate this lease. When such fire,
casualty or taking renders the leased premises substantially unsuitable for
their intended use, a just and proportionate abatement of base rent and
additional rent shall be made (until such time as the leased premises have been
restored or this Lease has been terminated). When such fire, casualty or taking
renders the leased premises (or access thereto or facilities relating thereto)
substantially unsuitable for their intended use, LESSEE may elect to terminate
this lease if: (a) LESSOR fails to give written notice within thirty (30) days
of intention to restore the leased premises; or (b) LESSOR fails to restore the
leased premises to a condition substantially suitable for their intended use
within one hundred and twenty (120) days of said fire, casualty or taking.
LESSOR reserves all rights for damages or injury to the leased premises for any
taking by eminent domain, except for damage to LESSEE's property or equipment.
9. FIRE INSURANCE. LESSEE shall not permit any use of the leased premised which
will adversely affect or make voidable any insurance on the property of which
the leased premises are a part, or on the contents
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of said property, or which shall be contrary to any law or regulation from time
to time established by the Insurance Services Office (or successor), local Fire
Department, LESSOR's insurer, or any similar body. LESSEE shall on demand
reimburse LESSOR, and all other tenants, all extra insurance premiums caused by
LESSEE's use of the leased premises. LESSOR acknowledges and agrees that the
uses set forth in Section 4 above do not currently require extra or increased
insurance premiums. If LESSEE shall vacate the leased premises or permit same to
be unoccupied other than during LESSEE's customary non-business days or hours,
and other than as a result of a fire, casualty or taking, and such vacancy
causes an increase in LESSOR's risk rating, insurance rates or premiums, then
LESSEE shall be solely responsible for the same and shall pay the same as
additional rent within ten days after demand therefor, and if LESSEE had not
given LESSOR notice of such vacancy, and such vacancy shall adversely affect
LESSOR's insurance coverage, LESSOR shall advise LESSEE as soon as LESSOR
becomes aware of such effect, and LESSEE shall be solely responsible for any
loss or costs that would otherwise have been covered prior to the date on which
LESSEE gave such notice.
10. MAINTENANCE OF PREMISES. LESSOR will be responsible for all structural
maintenance of all the leased premised, but specifically excluding all
maintenance of any non "building standard" leasehold improvements installed by
or for LESSEE after the Commencement Date. "Structure" or "structural" for
purposes of this lease shall mean and include only the following: foundation;
roof framing (specially excluding, without limitation, the ceiling (of which the
underdeck of the roof is not to be considered a part); bearing columns; bearing
walls (specially excluding without limitation the interior surfaces thereof),
floor slab and subflooring; space heating and cooling equipment; sprinklers; and
utility supply lines that serve the leased premises in common with premises
other than the leased premises. The costs of such maintenance shall be included
in the Operating Costs, as defined under Section 5 hereof. LESSEE agrees to
maintain at its expense all other aspects of the leased premises in the same
condition as they are at the commencement of the term or as they may be put in
during the term of this lease, excepting only (i) normal wear and tear, (ii)
damage by fire or other casualty, and (iii) damage caused by the negligent acts
or omissions of LESSOR or its agents or contractors, and whenever necessary, to
replace light bulbs and interior glass therein. At LESSEE's request, LESSOR will
replace interior glass and light bulbs and LESSEE shall pay LESSOR's invoices
therefor. LESSEE will properly control or vent all solvents, degreasers, smoke,
odors, etc., and shall not cause the area surrounding the leased premises to be
in anything other than a neat and clean condition, depositing all waste in
appropriate receptacles. LESSEE shall be solely responsible for any damage to
plumbing equipment, sanitary lines, or any other portion of the building which
results from the discharge or use of any acid or corrosive substance by LESSEE.
LESSEE shall not permit the leased premises to be overloaded, damaged, stripped
or defaced, nor suffer any waste, and will not keep animals within the leased
premises. LESSEE shall, however, have the right to keep a small number of
laboratory animals from time to time in accordance with all applicable laws,
codes and ordinances or governmental permits or licenses, which LESSEE shall
first obtain. Any increase in air conditioning equipment or electrical capacity,
or any installation and/or maintenance of equipment which is necessitated by
some specific aspect of LESSEE's change in use of the leased premises from
permitted uses shall be at the LESSEE's expense. All maintenance provided by
LESSOR shall be during LESSOR's normal business hours; provided that LESSOR
shall use commercially reasonable efforts not to materially interfere with
LESSEE's use or occupancy of the leased premises, and provided further that
janitorial services shall be supplied after normal office hours. LESSOR shall
also maintain and repair the common areas and facilities serving the leased
premises and Building, including without limitation common walkways, driveways,
parking areas and lighting, freight or loading areas, lobbies, hallways,
stairways, elevators and ramps in good order and repair, consistent with other
first-class office buildings in the north suburban Boston market. To the extent
that LESSOR shall receive written notice from any governmental agency having
jurisdiction that the Building or the Property is in violation of any applicable
law, regulation or ordinance, and such violation does not arise from the
LESSEE's breach of this Lease or from LESSEE's specific use of the leased
premises, LESSOR shall be responsible for taking such steps as LESSOR may deem
commercially reasonable to contest such notice or cure
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such violation (provided that no contest shall cause LESSEE to incur any
criminal or civil liability or substantially impede access to or occupancy of
the leased premises).
11. ALTERATIONS. LESSEE shall not make structural alterations or additions of
any kind to the leased premises, but may make nonstructural alterations provided
LESSOR consents thereto in writing, which consent shall not be unreasonably
withheld or delayed as to non-structural alterations or additions that do not
adversely affect (in other than a DE MINIMUS way) the building's plumbing,
electrical or mechanical systems. All such alterations shall be at LESSEE's
expense and shall conform with LESSOR's reasonable construction specifications.
If LESSOR or LESSOR's agent provides any services or maintenance for LESSEE in
connection with such alterations or otherwise under this lease, any just invoice
will be promptly paid. LESSEE shall not permit any mechanics' liens or similar
liens to remain upon the leased premises in connection with work of any
character performed or claimed to have been performed at the direction of the
LESSEE and shall cause any such lien to be released or removed forthwith without
cost to LESSOR. Any alterations or additions shall (except to the extent
specified by LESSEE as provided in Section 27) become part of the leased
premises and the property of LESSOR. LESSOR shall have the right at any time to
change the arrangement of parking areas, stairs, walkways or other common areas
of the building, provided that such change does not materially and adversely
affect LESSEE's use or occupancy of or access to the leased premises.
12. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or sublet or
allow any other firm or individual to occupy the whole or part of the leased
premises without LESSOR's prior written consent, which consent shall not be
unreasonably withheld or delayed. Notwithstanding such assignment or subleasing.
LESSEE shall remain liable to LESSOR for the payment of all rent and for the
full performance of the covenants and conditions of this lease. LESSEE shall pay
LESSOR promptly for reasonable legal expenses incurred by LESSOR in connection
with any consent requested thereunder by LESSEE.
13. SUBORDINATION AND ESTOPPEL. This lease shall be subject and subordinate to
any and all mortgages and other instruments in the nature of a mortgage, now or
any time hereafter affecting the leased premises, and LESSEE shall, when
requested, promptly execute and deliver such written instruments as shall be
reasonably customary and necessary to show the subordination of this lease to
said mortgage or other such instruments in the nature of a mortgage. Each party
agrees from time to time, within ten (10) days after written request by the
other, to execute, acknowledge and deliver to the requesting party (and/or, the
case of LESSOR, to any mortgagee or prospective purchaser) a statement in
writing certifying that this lease is unmodified and in full force and effect
and that the certifying party has no defenses, offsets, or counterclaims against
its obligations, including as to LESSEE the obligation to pay rent and any
additional rent or other charges and to perform its other covenants under this
lease, and the dates to which the rent and any additional rent or other charges
have been paid. Notwithstanding the foregoing, such subordination shall be
conditioned on LESSOR's obtaining the holder's written agreement that, subject
to such reasonable qualifications as such holder may reasonably impose, in the
event that the holder shall succeed to the interests of LESSOR hereunder
pursuant to such mortgage, ground lease or other encumbrance, then so long as no
Default of LESSEE exists hereunder, LESSEE's right to possession of the leased
premises shall not be disturbed and LESSEE's other rights hereunder shall not be
adversely affected (and this Lease shall not be terminated) by any foreclosure
of such mortgage or encumbrance or by termination of such ground lease.
14. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at any reasonable time, and
upon reasonable advance notice (which need not be in writing and which need not
be given at all in the event of any emergency) enter to view the leased
premises, to make repairs and alterations as LESSOR should elect to do for the
leased premises, the common areas or any other portions of the building, to make
repairs which LESSEE is required but has failed to do, and to show the leased
premises to others.
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15. SNOW REMOVAL. LESSOR shall be responsible for the prompt plowing of snow
from all roadways and unobstructed parking areas and from the walkways, steps,
and loading areas serving the leased premises.
16. ACCESS & PARKING. LESSEE shall have the right without any additional charge
to use the parking facilities provided for the leased premises in common with
others entitled to the use thereof. The building has three spaces per 1,000
square feet of rentable area, all such spaces to be on an unreserved unallocated
basis. LESSOR shall maintain the foregoing parking ratio, and shall not grant
rights to other tenants or third parties which would be inconsistent with there
remaining three spaces per 1,000 square feet of rentable area in the leased
premises. Subject to final measurement of the leased premises pursuant to
Section 34, LESSEE will be entitled to use 132 parking spaces. LESSEE will not
obstruct in any manner any portion of the building or the walkways or approaches
to the building and will conform to all reasonable rules and regulations now or
hereafter made by LESSOR for parking and for the care, use, or alteration of the
building, its facilities and approaches. LESSOR shall use commercially
reasonable efforts to enforce such rules and regulations in a uniform manner.
LESSEE further warrants that LESSEE will not permit any employee or visitor to
violate this or any other covenant or obligation of LESSEE. All loading and
unloading shall be by a side loading dock or entrance, if such access is
available. No unattended parking will be permitted between 7:00PM and 7:00AM
without LESSOR's prior written approval, which shall not be unreasonably
withheld or delayed. Unregistered or disabled vehicles, or storage trailers of
any type, may not be parked at any time. LESSOR may tow, at LESSEE's sole risk
and expense, any misparked vehicle belonging to LESSEE or LESSEE's agents,
employees, invitees or callers, at any time. LESSOR shall not be responsible for
providing any security services for the leased premises.
17. LIABILITY. To the extent permitted by law, and except with respect to damage
to the Building or leased premises by fire or other casualty, LESSEE shall be
solely responsible as between LESSOR and LESSEE for (i) deaths or personal or
bodily injuries to all persons whomsoever occurring in or on the leased
premises, from whatever cause arising, and (ii) deaths or personal or bodily
injuries to all persons whomsoever occurring outside of the leased premises,
where the same result from the negligent or willful acts or omissions of LESSEE
or its agents, contractors or employees, and (iii) damage to property to
whomsoever belonging arising out of the use, control, condition or occupation of
the leased premises by LESSEE; and LESSEE agrees to indemnify, defend and save
harmless LESSOR from any and liability, including but not limited to costs,
expenses, damages, causes of action, claims, judgments and attorney's fees
caused by or in any way growing out of any matters aforesaid.
18. INSURANCE. LESSEE shall maintain at its own expense with respect to the
leased premises and LESSEE's property which is not a part of the demised
premises a comprehensive public liability insurance policy, insuring LESSEE and
LESSOR against any claims based on bodily injury (including death) or property
damage arising out of the condition of the leased premises (including any common
areas that are considered part of the leased premises hereunder) or their use by
LESSEE, with coverage in the amount of Two Million Dollars ($2,000,000). LESSEE
shall further obtain and keep in force during the term of this Lease "all risk"
extended coverage property insurance on LESSEE's personal property, all tenant
improvements installed at the leased premises by LESSEE, LESSEE's trade fixtures
and other property. LESSOR shall be included in each such policy as an
additional insured using ISO Form CG 20 26 11 85 (or comparable XXXXX form) or
some other form approved by LESSOR. LESSEE will file with LESSOR prior to
occupancy certificates and any applicable riders or endorsements showing that
such insurance is in force, and thereafter will file renewal certificates prior
to the expiration of any such policies. All such insurance certificates shall
provide that such policies shall not be canceled without at least ten (10) days'
prior written notice to LESSOR. In the event LESSEE shall fail to furnish
evidence of renewal of any policy prior to the planned renewal date shown on
such certificate, then LESSOR may elect to contract for such insurance at
LESSEE's expense, and LESSOR shall give notice thereof
8
simultaneously or promptly thereafter. LESSOR shall maintain throughout the term
of this Lease a policy or policies of insurance covering loss or damage to the
building (including LESSOR installed improvements to the leased premises) and
all related improvements in an amount approximately equal to the full insurable
replacement cost thereof, and such insurance shall provide coverage against fire
and other perils customarily covered by an "all-risk" or "special form" policy.
LESSOR shall also carry a policy or policies of general liability insurance in
such amounts and coverages as commercially reasonable against liability arising
out of the ownership, operation and management of the building and all areas
relating thereto.
19. SIGNS. LESSOR shall, at LESSEE's expense (and provided LESSEE shall have
obtained any necessary governmental approvals or permits) erect signage for the
leased premises that will be located on the building pediment and visible to
Cambridge Street, as well as a monument sign in the front of the building.
LESSOR shall cooperate with and assist LESSEE's efforts to obtain such approvals
or permits. LESSEE shall obtain the prior written consent of LESSOR before
erecting any other sign on the leased premises, which consent shall not be
unreasonably withheld, but may include approval as to size, wording, design and
location. LESSOR may remove and dispose of any sign not approved, erected or
displayed in accordance with this lease.
20. BROKERAGE. LESSEE and LESSOR each warrants and represents to the other that
each has dealt with no broker or third party with respect to this lease, except
for XXXXXXXXX & XXXX/COLLIERS (whose fee shall be paid by LESSOR) and each
agrees to indemnify the other against any brokerage claims by any other broker
or third person arising by virtue of this lease.
21. DEFAULT AND ACCELERATION OF RENT. In the event that: (a) any assignment for
the benefit of creditors, trust mortgage, receivership or other insolvency
proceeding shall be made or instituted with respect to LESSEE or LESSEE's
property and not cured, discharged or released within 90 days (provided that
such grace period shall not apply to any proceeding commenced by LESSEE); (b)
LESSEE shall default in the observance or performance of any of LESSEE's
covenants, agreements, or obligations hereunder, other than monetary payments,
and such default shall not be corrected within thirty (30) days after written
notice thereof (or, if such default cannot reasonably be cured within such
30-day period, despite diligent and continuous efforts to cure the same begun
promptly after notice thereof, then such 30-day period shall be extended for an
additional reasonable time, so long as LESSEE continues such efforts); or (c)
LESSEE shall fail to pay the security deposit, rent, taxes, any substantial
invoice from LESSOR or LESSOR's agent for goods and/or services or other sum
herein specified, and such default shall continue for ten (10) days after
written notice specifying such failure; then in any such case LESSOR shall have
the right thereafter, without demand or further notice, to re-enter and take
possession of the leased premises, to declare the term of this lease ended, and
to remove LESSEE's effects, all in accordance with applicable law, without being
guilty of any manner of trespass, and without prejudice to any remedies which
might be otherwise used for arrears of rent or other default of breach of the
lease. In the event of any termination, LESSEE shall pay the rent and other sums
payable hereunder up to the time of such termination, and thereafter LESSEE,
until the end of what would have been the term of this Lease in the absence of
such termination, and whether or not the leased premises shall have been relet,
shall be liable to LESSOR for, and shall pay to LESSOR as liquidated current
damages the rent and other sums that would be payable hereunder if such
termination had not occurred, less the net proceeds, if any, of any reletting of
the leased premises, after deducting all expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, advertising, expenses of
employees, alteration costs and expenses of preparation for such reletting. At
any time after such termination, whether or not LESSOR shall have collected any
such current damages, as liquidated final damages and in lieu of all such
current damages beyond the date of such demand, at LESSOR's election LESSEE
shall pay to LESSOR an amount equal to the excess, if any, of the rent and other
sums as hereinabove provided that would be payable hereunder from the date of
such demand, over the then fair net rental value of the leased premises for the
same period, discounted to then net present value at a rate equal to the WALL
STREET JOURNAL prime rate.
9
LESSOR, without being under any obligation to do so and without thereby waiving
any default, may remedy same for the account and at the expense of LESSEE. If
LESSOR pays or incurs any obligation for the payment of money in connection
therewith, such sums paid or obligations incurred plus interest and costs, shall
be paid to LESSOR by LESSEE as additional rent. Provided LESSOR uses
commercially reasonable efforts to do so, LESSOR shall in no event be liable in
any way whatsoever for failure to relet the Leased premises. For purposes
hereof, marketing of the Leased premises in a manner similar to the manner in
which LESSOR markets other leased premises within LESSOR's control in the
Building shall be deemed to have satisfied LESSOR's obligation to use
"reasonable efforts." In no event shall LESSOR be required to (i) relet the
leased premises before leasing similar vacant space in the Building, (ii) lease
the leased premises for a rental less than the current fair market rental then
prevailing for office space in the Building, or (iii) enter into a lease with
any proposed tenant that does not have, in LESSOR's reasonable opinion,
sufficient financial resources or operating experience to operate the leased
premises in a first-class manner. Any sums received by LESSOR from or on behalf
of LESSEE at any time shall be applied first to any unamortized improvements
completed for LESSEE's occupancy then to offset any outstanding invoice or other
payment due to LESSOR, with the balance applied to outstanding rent. LESSEE
agrees to pay reasonable attorney's fees and/or administrative costs incurred by
LESSOR in enforcing any or all obligations of LESSEE under this lease at any
time. LESSEE shall pay LESSOR interest at the rate of eighteen (18) percent per
annum on any payment from LESSEE to LESSOR which is past due.
22. NOTICE. Any notice from LESSOR to LESSEE relating to the leased premises or
to the occupancy thereof shall be deemed duly served when served by constable,
or sent to the leased premises by certified mail, return receipt requested,
postage prepaid, or sent by nationally recognized overnight delivery or courier
service, and in any case addressed to LESSEE: if prior to the Commencement Date,
addressed to 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx
X. Xxxxxx; and if after the Commencement Date, then to the leased premises,
Attention: Xxxx X. Xxxxxx; or at such other address as LESSEE may from time to
time request. The LESSOR will send a copy of any notice to LESSEE alleging a
failure or default on the part of LESSEE to Sherin and Lodgen LLP, 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx. Any notice
from LESSEE to LESSOR relating to the leased premises or to the occupancy
thereof shall be deemed duly served when served by constable or delivered to
LESSOR by certified mail, return receipt requested postage prepaid, or sent by
nationally recognized overnight delivery or courier service, and in any case
addressed to LESSOR at 00 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 or at LESSOR's last
designated address. No oral notice or representation shall have any force or
effect. Time is of the essence in service of any notice.
23. OCCUPANCY. Unless LESSOR and LESSEE shall then be actively engaged in good
faith negotiations regarding extension of the term (and in that case for no more
than thirty (30) days after the scheduled termination), in the event that LESSEE
continues to occupy or control all or any part of the leased premises after the
agreed termination of this lease without written permission of LESSOR, then
LESSEE shall be liable to LESSOR for any and all loss, damaged or expenses
incurred by LESSOR and all other terms of this lease shall continue to apply
except that rent shall be due in full monthly installments at a rate of one
hundred fifty (150) percent of that which would otherwise be due under this
lease, it being understood between the parties that such extended occupancy is
as a tenant at sufferance and is solely for the benefit and convenience of
LESSEE and as such has a greater rental value. LESSEE's control or occupancy of
all or any part of the leased premised beyond the last day of any monthly rental
period shall constitute LESSEE's occupancy for an entire additional month, and
increased rent as provided in this section shall be due and payable immediately
in advance. LESSOR's acceptance of any payments from LESSEE during such extended
occupancy shall not alter LESSEE's status as a tenant at sufferance.
24. FIRE PREVENTION. LESSOR and LESSEE each agree to use reasonable precautions
against fire and LESSOR agrees to provide and maintain (except as may be
required solely as a result of LESSEE's
10
particular type of business in the leased premises) approved, labeled fire
extinguishers, emergency lighting equipment, and exit signs and complete any
other modifications within the leased premises as required or recommended by the
Insurance Services Office (or successor organization), OSHA, the local Fire
Department, or any similar body. To the extent required solely as a result of
LESSEE's particular type of business in the leased premises, LESSEE shall
maintain approved, labeled fire extinguishers, emergency lighting equipment, and
exit signs and complete any other modifications within the leased premises as
required or recommended by the Insurance Services Office (or successor
organization), OSHA, the local Fire Department, or any similar body.
25. OUTSIDE AREA. No goods, equipment, or things of any type or description
shall be held or stored outside the leased premises at any time without prior
written consent from LESSOR. If LESSEE obtains all necessary approvals and
permits from governmental authorities, LESSEE shall be allowed to place and use
a gas barbeque and lawn/deck furniture on the deck to be constructed and
attached to the leased premises. Any goods, equipment or things left outside the
leased premises without LESSOR's prior written consent shall be deemed abandoned
and may be removed at LESSEE's expense without notice by LESSOR. LESSOR shall
provide a shared dumpster or compactor for use by LESSEE in common with others,
and LESSEE shall pay its proportionate share (based on LESSOR's reasonable
estimate of LESSEE's use) of any costs associated therewith.
26. ENVIRONMENT. LESSEE will so conduct and operate the leased premises as not
to interfere in any way with the use and enjoyment of other portions of the same
or neighboring buildings by others by reason of odors, smoke, smells, noise,
pets, accumulation of garbage or trash, vermin or other pests, or otherwise and
will at its expense employ a professional pest control service if necessary.
LESSEE agrees to maintain efficient and effective devices for preventing damage
to heating equipment from solvents, degreasers, cutting oils, propellants, etc.,
which may be present at the leased premises. No hazardous materials or wastes
shall be stored, disposed of or allowed to remain at the leased premises at any
time (except in strict accordance with applicable laws), and LESSEE shall be
solely responsible for any and all corrosion or other damage associated with the
use, storage and/or disposal of same by LESSEE. LESSOR represents and warrants
that LESSOR has no actual knowledge of, and LESSOR has not received written
notice from any governmental agency having jurisdiction of, any release or
threat of release of any such hazardous materials or waste or oil on, at, in or
under the building or lot on which it is located. LESSOR shall indemnify and
hold LESSEE harmless from and against any and all claims, loss, cost, expense
and damage resulting from and breach of the foregoing representation and
warranty.
27. SURRENDER. Subject to the terms and conditions of this Section, LESSEE shall
at the termination of this lease remove all of LESSEE's goods and effects from
the leased premises, including any and all fixtures and LESSEE-installed
improvements (to the extent specified by LESSOR at the time of initial approval
thereof), and furniture and equipment, and LESSEE shall repair any damage to the
leased premises caused by such removal. LESSEE shall deliver to LESSOR the
leased premises and all keys and locks thereto, all fixtures and equipment
connected therewith (to the extent not to be removed by LESSEE). Not more than
nine (9) months, and not less than three (3) months, prior to the end of the
term of this lease, LESSOR may request that LESSEE specify in writing (to be
delivered within 15 days after such request) those alterations, additions,
fixtures and improvements made to or upon the leased premises by or for LESSEE,
including but not limited to any offices, partitions, window blinds,
manufacturing and research & development fixtures, floor covering (including
computer floors), water coolers, telephone wiring, telephone equipment and
counters, that LESSEE proposes to remove at the expiration of the term. To the
extent that any such alterations, additions and improvements are not listed in
LESSEE's response, then LESSEE shall have no right to remove the same. LESSEE
shall in any event remove all furniture, trade fixtures and business equipment
that, in LESSOR's reasonable judgment, is not readily re-usable for other
business office, warehousing, light manufacturing and research and development
uses, provided that LESSOR gives LESSEE notice of LESSOR's determination not
less than thirty (30) days
11
prior to the expiration of the Term. LESSEE shall not remove plumbing or
electrical equipment or HVAC equipment, except that LESSEE may remove its
particularly specialized plumbing, electrical equipment and HVAC equipment and
trade fixtures, provided that LESSEE shall restore the remaining systems and
equipment to that which was originally present in the leased premises. LESSEE
shall deliver the leased premises sanitized from any chemicals or other
contaminants, and broom clean and in the same condition as they were at the
commencement of this lease or any prior lease between the parties for the leased
premises, or as they were modified during said term with LESSOR's written
consent, reasonable wear and tear and damage by fire or other casualty excepted.
In the event of LESSEE's failure to remove any of LESSEE's property from the
leased premises upon termination of the lease, LESSOR is hereby authorized,
without liability to LESSEE for loss or damage thereto and at the sole risk of
LESSEE, to remove and store any such property at LESSEE's expense, or to retain
same under LESSOR's control, or to sell at public or private sale (without
notice), any or all property not so removed and to apply the net proceeds of
such sale to the payment of any sum due hereunder, or to destroy such abandoned
property. In no case shall the leased premises be deemed surrendered to LESSOR
until the termination date provided herein or such other date as may be
specified in a written agreement between the parties, notwithstanding the
delivery of any keys to LESSOR.
28. RESPONSIBILITY. To the maximum extent permitted by law, LESSOR shall not be
held liable to anyone for loss or damage caused in any way by the LESSEE's use
of the leased premises, leakage, seepage or escape of water from any source or
for the cessation of any service rendered customarily to the leased premises or
building, or agreed to by the terms of this lease, due to any accident, the
making of repairs, alterations or improvements, labor difficulties, weather
conditions, mechanical breakdowns, trouble or scarcity in obtaining electricity,
service or supplies from the sources from which they are usually obtained for
said building, or any cause beyond LESSOR's immediate control. Notwithstanding
the foregoing, in the event that (i) LESSEE shall be deprived of any essential
service and utility that is to be provided by LESSOR hereunder, and the cause of
such deprivation is within LESSOR's reasonable control, and (ii) such
deprivation shall continue for five (5) business days after LESSOR has received
written notice thereof from LESSEE, and (iii) within such 5-business day period
LESSOR shall not have commenced to repair or restore such service or utility and
thereafter diligently pursue such repair or restoration to completion, then
commencing on the sixth business day after such notice, all Rent payable
hereunder shall be abated until such time as such services and/or utilities
shall be restored. For purposes hereof, the term "business day" shall mean a day
on which LESSEE would otherwise normally be open for business in the leased
premises. Notwithstanding the foregoing, with respect to any such deprivation
that makes it impracticable for LESSEE to continue its business in the leased
premises, and if LESSEE actually causes LESSEE to stop conducting its business
in the leased premises, then such rent abatement shall take effect on the
business day next following such notice from LESSEE.
29. SUBROGATION. LESSOR and LESSEE hereby release each other and each other's
officers, directors, employees and agents, to the extent of the insurance
coverage which each is required to carry hereunder, from any and all liability
for any loss or damage caused by fire or any of the extended coverage casualties
or any other casualty insured against, even if such fire or other casualty shall
be brought about by the fault or negligence of a party or parties for whose
conduct a party is legally responsible. This waiver shall be in force and effect
only with respect to loss or damage occurring during such time as the insurance
policy or policies covering such loss or damage shall contain a clause to the
effect that this waiver shall not affect said policies or the right of the
insured party to recover thereunder. Each party hereby agrees that its policy or
policies will include such a clause if such is available. If such is not
available without extra cost, if the other party pays such extra cost. Each
party shall promptly notify the other party of any such extra cost.
30. GENERAL. (a) The invalidity or unenforceability of any provision of this
lease shall not affect or render invalid or unenforceable any other provision
hereof; (b) The obligations of this lease shall run with the land, and this
lease shall be binding upon and inure to the benefit of the parties hereto and
their respective
12
successors and assigns, except that LESSOR shall be liable only for obligations
occurring while LESSOR of the leased premises; (c) Any action or proceeding
arising out of the subject matter of this lease shall be brought by LESSEE only
in a court of the Commonwealth of Massachusetts; (d) If LESSOR is acting under
or as agent for any trust or corporation, the obligations of LESSOR shall be
binding upon the trust or corporation, but not upon any trustee, officer,
director, shareholder, or beneficiary of the trust or corporation individually;
(e) This lease is made and delivered in the Commonwealth of Massachusetts, and
shall be interpreted, construed, and enforced in accordance with the laws
thereof; (f) This lease was the result of negotiations between parties of equal
bargaining strength, and when executed by both parties shall constitute the
entire agreement between said parties, and no other oral or written
representation shall have any effect hereon, and this agreement may hot be
altered, extended or amended except by written agreement attached hereto or as
otherwise provided herein, (g) Except as set forth herein, LESSOR makes no
warranty, express or implied, concerning the suitability of the leased premises
for LESSEE's intended use; (h) LESSEE agrees that if LESSOR does not deliver
possession of the leased premises as herein provided for any reason, LESSOR
shall not (except as expressly provided herein) be liable for any damages to
LESSEE for such failure, but LESSOR agrees to use reasonable efforts to deliver
possession to LESSEE at the earliest possible date, and a proportionate
abatement of rent for such time as LESSEE may be deprived of possession of said
leased premised shall be LESSEE's sole remedy; (i) Neither the submission of
this lease form nor the prospective acceptance of the security deposit and/or
rent shall constitute a reservation of or option for the leased premises, or an
offer to lease, it being expressly understood and agreed that this lease shall
not bind either party in any manner whatsoever until it has been executed by
both parties, (j) LESSEE shall not be entitled to exercise any option contained
herein if LESSEE is in default of any terms or conditions hereof beyond the
expiration of any applicable notice or grace periods; (k) The headings on this
lease are for convenience only and shall not be considered part of the terms
hereof; (l) No endorsement by LESSEE on any check shall bind LESSOR in any way;
and (m) LESSEE agrees that it will not record this Lease, but at the request of
either party, the parties will execute a suitable notice of lease setting forth
the names of the parties, the description of the leased premises and a statement
of the term of this Lease.
31. INTENTIONALLY OMITTED.
32. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR, to or of
any breach of any covenant, condition or duty of LESSEE shall be construed as a
consent or waiver to or of any other breach of the same or any other covenant,
condition or duty. If LESSEE is several persons, several corporations or a
partnership, LESSEE's obligations are joint or partnership and also several.
Unless repugnant to the context "LESSOR" and "LESSEE" mean the person or
persons, natural or corporate, named above as LESSOR and as LESSEE respectively,
and their respective heirs, executors, administrators, successors and assigns.
33. ADDITIONAL PROVISIONS. Exhibit "A (Plans)," "B (Rent/Expenses/Extension
Terms)," "C (Plans and Specifications)," "D (Janitorial Standards)" and "E
(Rules and Regulations)" attached hereto are hereby incorporated.
34. FINAL MEASUREMENT OF LEASED PREMISES; ARCHITECT'S CERTIFICATE.
Notwithstanding anything to the contrary contained in this Lease, upon
Substantial Completion (as defined in Paragraph 35) of the leased premises,
LESSOR shall deliver to LESSEE a certificate from LESSOR's architect setting
forth the actual square footage of the leased premises and the Building. The
leased premises shall be calculated in accordance with BOMA standards of
measuring rentable square feet. If the square footage calculation of the leased
premises changes after this Lease is executed by LESSOR and LESSEE, the rent,
security deposit, LESSEE's Proportionate Share of Taxes and Operating Costs and
the number of parking spaces to which LESSEE shall be entitled, shall be
adjusted accordingly.
13
35. TENDER OF POSSESSION; SUBSTANTIAL COMPLETION. The parties acknowledge that
LESSOR has an agreement with the current owner of the building (the "Owner") to
purchase the property on which the building is located. LESSEE has heretofore
negotiated directly with the Owner a purchase contract, which has been assigned
to LESSOR. The Owner is currently in the process of constructing the building,
as well as tenant improvements required by LESSEE. LESSEE acknowledges that the
base building work has been substantially completed, and at the time of
execution of this Lease, LESSEE has approved plans and specifications for the
remainder of work to be done. The Owner, as LESSOR's contractor shall continue
to perform such work. LESSOR shall deliver possession of the leased premises
vacant and Substantially Completed. As used herein, the term "Substantially
Completed" shall mean that (i) the leased premises have been constructed and
completed by (or on behalf of) LESSOR as aforesaid in accordance with the plans
and specification approved by LESSOR and LESSEE (described on Exhibit C hereto,
as such plans and specifications may be changed or altered only in mutual
agreement between the parties hereto) in a good and workmanlike manner, except
for so called punch list items or defects which can be completed or remedied by
LESSOR or Owner after LESSEE occupies the leased premises without causing
substantial interference with LESSEE's use of the leased premises, and (ii) all
necessary and applicable governmental permits and approvals (including a final
Certificate of Occupancy on the leased premises and building) have been issued
to allow the LESSEE to use and occupy the leased premises in accordance with the
terms and conditions hereof. LESSEE and LESSOR acknowledge that, under LESSOR's
agreement with Owner, LESSOR is entitled under certain circumstances to recover
liquidated damages from Owner for late completion of such work. In the event
that Owner becomes entitled to, and actually recovers such liquidated damages
from Owner, then LESSOR shall pay over to LESSEE thirty-three and one-third
percent (33.3%) of any amounts actually recovered, but in no event shall LESSOR
be obligated to pay over to LESSEE more than $1,000.00 per day of such late
completion. LESSOR shall cause to be completed and/or repaired such punch list
items as soon as practicable but in any event within sixty (60) days after the
Commencement Date, and LESSEE shall allow access to the leased premises for such
purposes. This Lease, and all of the obligation and rights hereunder, are
expressly contingent on LESSOR's purchase of the building as currently
contemplated. In the event that LESSOR has not so purchased the building on or
before July 15, 1999, then either LESSEE or LESSOR may terminate this Lease by
notice to the other, whereupon this Lease shall cease and be void and without
further force or effect.
36. EARLY POSSESSION. Subject to approval by governmental authorities and
LESSOR's or Owner's contractors, LESSEE may enter the leased premises not sooner
than four (4) weeks prior to the anticipated Commencement Date, provided that
LESSEE does not interfere with or delay the completion by LESSOR or its agents
or contractors of the construction of any tenant improvements, for the purpose
of installing furniture, trade fixtures, equipment, wiring and similar items.
Provided that LESSEE has not begun operating its business from the leased
premises, and subject to all of the terms and conditions of the Lease, the
foregoing activity shall not constitute the delivery of possession of the leased
premises to LESSEE and the Lease term shall not commence as a result of said
activities. Prior to entering the leased premises, LESSEE shall obtain all
insurance it is required to obtain by the Lease and shall provide certificates
of said insurance to LESSOR. LESSEE shall coordinate such entry with LESSOR's
construction manager, and such entry shall be made in compliance with all terms
and conditions of this Lease and the Rules and Regulations attached hereto as
EXHIBIT E.
37. RIGHT OF FIRST OFFER. Subject to rights heretofore granted to Mediacom,
another tenant in the Building, if during the term of this Lease LESSOR desires
to lease all or a portion of the building not included in the leased premises
(the "First Refusal Space"), LESSOR shall so notify LESSEE setting forth the
terms and conditions on which LESSOR is willing to so lease the First Refusal
Space, and including a form of amendment to this Lease, which terms and
conditions shall reflect (among other terms) LESSOR's then good faith
determination ("LESSOR's Designation") of the then market rental value for the
First Refusal Space (the "Expansion Rent"). LESSEE may, by giving LESSOR notice
within fifteen (15) days after receipt of LESSOR's notice, irrevocably elect to
lease the First Refusal Space on the terms and conditions set forth in LESSOR's
notice. If LESSEE shall so elect, LESSEE shall, with its notice of exercise,
advise LESSOR of whether LESSEE accepts or disputes LESSOR's Designation, but
LESSEE's exercise shall be irrevocable nonetheless. Failure by LESSEE to advise
LESSOR that LESSEE disputes LESSOR's Designation shall be conclusive evidence
that LESSEE accepts the same. In either case, LESSEE shall within ten (10) days
after such election enter into such amendment incorporating the terms and
conditions set forth in LESSOR's
14
notice. If LESSEE shall fail to exercise its right within such 15-day period,
then at LESSOR's option, LESSEE shall have no further rights with respect to the
First Refusal Space, and LESSOR shall thereafter be free to lease any or all of
the First Refusal Space to such party or parties, and on such terms and
conditions, as LESSOR may deem appropriate. If LESSEE has exercised its right to
lease the First Refusal Space as herein provided, and notified LESSOR that
LESSEE disputes LESSOR's Designation, and if the Expansion Rent has not been
determined by the day on which the First Refusal Space becomes a part of the
leased premises, then LESSOR's Designation shall (notwithstanding LESSEE's
disagreement therewith) be deemed the Expansion Rent until the Expansion Rent is
otherwise determined pursuant to the provisions of EXHIBIT B relating to Current
Market Rent. For purposes hereof, the "Adjustment Date" referred to in EXHIBIT B
shall be the day on which the First Refusal Space becomes a part of the leased
premises.
38. RIGHT OF FIRST OPPORTUNITY. LESSOR agrees that it will not enter into any
agreement to sell or otherwise transfer LESSOR's interest in all or any portion
of the building (or land or facilities relating thereto) unless and until LESSOR
shall have first complied with all of the provisions of this Section. If during
the term of this Lease, LESSOR proposes or desires to sell all or any part of
the building (or land or facilities relating thereto), LESSOR shall give LESSEE
written notice of such intention, which notice (LESSOR's Offer") shall set forth
all material terms and conditions of such proposed sale (including, without
limitation, the gross cash price and any payment terms which LESSOR is willing
to accept) and shall constitute an offer to sell the building to LESSEE at the
gross cash price and upon the terms stated therein. LESSOR's Offer shall be
accompanied by a list of all tenants and occupants in the building (whether
under leases or otherwise) as of the date of LESSOR's Offer. LESSOR's Offer
shall also be accompanied by a schedule including the size of each tenant's
premises, the base rent and escalation reimbursements, the permitted use, length
of term and length and number of extension and/or expansion options. LESSEE's
acceptance of LESSOR's Offer shall be by written notice given within thirty (30)
days following receipt of LESSOR's Offer. LESSEE's acceptance shall set a date
of closing not less than fourteen (14), nor more than sixty (60), days after
receipt by LESSOR of LESSEE's acceptance. It is the contemplation of the parties
that LESSOR's Offer to LESSEE pursuant hereto shall be made by LESSOR in good
faith and that the offering price will be based upon LESSOR's then good faith
estimate of the then fair market value of the property, and that the other terms
and conditions of the offer shall be in accordance with normal and customary
practice in the metropolitan Boston area. If LESSEE fails to accept LESSOR's
Offer within thirty (30) days of receipt, or if prior to thirty (30) days LESSEE
rejects LESSOR's Offer, LESSOR shall be free to sell the Building to such third
party as LESSOR may desire upon terms and conditions not materially more
favorable (I.E., at a purchase price not less than 90% of that proposed to
LESSEE) than those set forth in LESSOR's Offer, and LESSEE shall execute and
deliver to LESSOR, in recordable form, a certificate reciting that LESSEE
received LESSOR's Offer and rejected or failed to accept said offer. If LESSEE
accepts LESSOR's Offer, (i) LESSOR shall deliver to LESSEE copies of such
reports, inspections, surveys, title insurance policies and like due diligence
material as LESSOR may then have in its possession as to the Property (which
shall be kept in confidence by LESSEE, and shall be without any representation
or warranty whatsoever by LESSOR), and (ii) LESSOR shall, on the date specified
in LESSEE's notice of acceptance, deliver the deed conveying the building to
LESSEE or its nominee or assignee, and (iii) LESSEE shall pay LESSOR the price
specified in LESSOR's Offer, making payment in cash (subject to ordinary and
customary adjustments consistent with local conveyancing practices). The deed
shall be at least the equivalent of a so-called "Massachusetts statutory
quitclaim deed," and shall convey a good and clear record and marketable title
to the building, free from all encumbrances and restrictions except (a) this
lease; (b) the existing tenancies; (c) provisions of local zoning laws and other
laws, codes and ordinances then in effect; (d)
15
such real estate taxes for the current tax year as are not yet due and payable
on the date of the delivery of the deed; (e) liens for municipal betterments
assessed after the mailing of lessee's acceptance of LESSOR's Offer; and (f) any
other encumbrance or restriction which LESSEE accepts by written instrument
delivered to LESSOR at the time of the delivery of the deed.
39. TITLE/AUTHORITY. (i) LESSOR represents and warrants to LESSEE that, as of
the Commencement Date, the only liens and encumbrances affecting LESSOR's title
to the property of which the leased premises are a part shall be (x) as set
forth on Schedule B of the owner's title policy to be issued by Chicago Title
Insurance Policy in accordance with Commitment No. 22 0066 106 00000463, and (y)
such other liens and encumbrances as LESSOR may advise LESSEE between the date
hereof and the Commencement Date (none of which shall adversely affect LESSEE's
rights and occupancy hereunder); and (ii) LESSEE and LESSOR each represents and
warrants to the other that each person executing this Lease on such party's
behalf has full right and authority to do so, and that all requisite actions and
approvals have been taken or obtained, as the case may be.
IN WITNESS WHERE OF, LESSOR and LESSEE have hereunto set their hands and common
seals and intend to be legally bound hereby this 17th day of June, 1999.
LESSOR: LESSEE
Palomar Medical Technologies, Inc.
By: By: /s/ Xxxxx X. Xxxxxxx
-------------------------- -------------------------------
Its President
Print Name: Xxxxx X. Xxxxxxx
EXHIBIT A
PREMISES
EXHIBIT B
RENT/EXPENSES
DATES RENT PER MONTH
----- --------------
Years 1-5 $74,049.16
Years 6-10 $81,454.09
OPTION
Years 11-15 * (See Extension Term)
The foregoing calculations are based on the following bases: (i) the rent for
years 1-5 is computed at $20.00 per rentable square foot of first floor space
and $10.00 per rentable square foot for below grade space; and (ii) the rent for
years 1-5 is computed at $22.00 per rentable square foot of first floor space
and $10.00 per rentable square foot for below grade space.
* EXTENSION TERM: Provided that LESSEE is not in default of any of the Terms,
Covenants and Conditions of this Lease (beyond the expiration of applicable
notice and grace periods) at the time LESSEE exercises such right or at the time
of the expiration of the Term, LESSEE shall have the right to one (1) extension
term of five (5) years in addition to the period of the Term described in this
Lease. Said right to extension term shall be exercised by LESSEE if at all, by
written notice received by LESSOR not later than nine (9) months prior to the
expiration of the original term, time being of the essence with respect to such
notice. Not more than 45 days prior to the last day on which LESSEE may exercise
its extension option as herein provided, LESSEE may request that LESSOR advise
LESSEE of LESSOR's then good faith determination ("LESSOR's Designation") of
then Current Market Rent for the leased premises. LESSOR shall, within 30 days
after receipt of LESSEE's request, give LESSOR's Designation of the Current
Market Rent for the extension term. In the event LESSEE does exercise its right
to the extension term, then such notice shall be irrevocable and (i) LESSEE
shall, with its notice of exercise, advise LESSOR of whether LESSEE accepts or
disputes LESSOR's Designation, and (ii) all Terms and Conditions herein set
forth shall continue to apply during the extension term, except that (a) Base
Rent shall increase as indicated below and (b) LESSEE shall have no right to any
additional extension term.
Provided that LESSEE notifies LESSOR of its exercise of the extension term, the
Base Rent shall be determined on the basis of ninety-five (95%) percent of
Current Market Rent. If LESSEE shall not have advised LESSOR that it contests
LESSOR's Designation, the Current Market Rent shall be as set forth in LESSOR's
Designation. If LESSEE has duly contested LESSOR's Designation and the Current
Rent shall not have been determined prior to the extension term commencement,
then LESSOR's Designation shall (notwithstanding LESSEE's disagreement
therewith) be deemed Current Market Rent until Current Market Rent is otherwise
determined pursuant to applicable provisions of this paragraph. On final
determination of Current Market Rent, if such determination would be the basis
on which Base Rent is to be paid, retroactive adjustment shall be made in order
to give it effect to the determination of Current Market Rent. The Adjustment
Date shall be the first day of the extension term.
CURRENT MARKET RENT: The phrase "Current Market Rent" shall mean the rental and
all other monetary payments and escalations that LESSOR could obtain from a
third party desiring to lease space in the Greater Boston Suburban Office Market
as of the Adjustment Date, taking into account the type of building, the size,
location and floor levels and then condition of the leased premises, the quality
of construction of the building and
of the leased premises, the services provided under the terms of the Lease,
including without limitation any special rights hereunder, the rental then being
attained for new Leases of space comparable to the leased premises in the
Greater Boston Suburban Office Market and all other factors that would be
relevant to a third party desiring to lease the leased premises; provided
however that no reduction, deduction or allowance for the construction of lessee
improvements shall be taken into account in determining Current Market Rent. In
the event that within sixty (60) days prior to the Adjustment Date the parties
hereto shall not have agreed in writing (or to be deemed to have agreed pursuant
to the preceding paragraphs) as to the Current Market Rent, each party shall,
within thirty (30) days thereafter appoint an appraiser. Each appraiser so
appointed shall be instructed to determine independently the Current Market
Rent. If the difference between the amounts so determined by such appraisers
shall not exceed ten percent (10%) of the lesser of such amounts, then the
Current Market Rent shall be an amount equal to fifty percent (50%) of the total
of the amounts so determined. If the difference between the amounts so
determined shall exceed ten percent (10%) of the lesser of such amounts, then
such two (2) appraisers shall have ten (10) days thereafter to appoint a third
appraiser, but if such appraisers fail to do so within such ten (10) day period,
then either LESSOR or LESSEE may request the American Arbitration Association or
any successor organization thereto to appoint an appraiser within ten (10) days
of such request, and both LESSOR and LESSEE shall be bound by any appointment so
made within such ten (10) day period. If no such appraiser shall have been
appointed within such ten (10) days either LESSOR or LESSEE may apply to any
court having jurisdiction to have such appointment made by such court. Any
appraiser appointed by the original appraisers, by the American Arbitration
Association or by such court shall be instructed to determine the Current Market
Rent in accordance with the definition of such term contained herein and within
twenty (20) days after its appointment. If the third appraisal shall exceed the
higher of the first two appraisals, the Current Market Rent shall be the higher
of the first two appraisals; if the third appraisal is less than the lower of
the first two appraisals, the Current Market Rent shall be the lower of the
first two appraisals. In all other cases, the Current market Rent shall be equal
to the third appraisal. All such determinations of the Current Market Rent shall
be final and binding upon LESSOR and LESSEE as the Current Market Rent for the
Adjustment Date. Notwithstanding the foregoing, if either party shall fail to
appoint its appraiser within the 30 day period specified above (such party being
referred to herein as the "failing party"), the other party may serve notice on
the failing party requiring the failing party to appoint its appraiser within
then (10) days of the giving of such notice. If the failing party shall not
respond by appointment of its appraiser within said ten day period, then the
appraiser appointed by the other party shall be the sole appraiser whose
determination of the Current Market Rent shall be binding and conclusive upon
LESSEE and LESSOR.
This provision for determination by appraisal shall be specifically enforceable
to the extent such remedy is available under applicable law, and any
determination hereunder shall be final and binding upon the parties except as
otherwise provided by applicable law. Each party shall pay for the fees and
expenses of the appraiser appointed by it, but the fees and expenses of the
third appraiser shall be shared equally by the parties. All appraisers appointed
hereunder shall be MAI appraisers, so-called.
EXHIBIT C
PLANS & SPECIFICATIONS
Work Letter - Enclosed pages 21-34
Construction Drawings created by Xxxxxxx & Xxxxxxxxx dated 5/27/99 incorporated
by reference
Drawing Number A-1 Partition Plan
Drawing Number A-2 Power and Tel/Data Plan (as amended for moving one
electrical and data outlet and adding 15 data outlets)
Drawing Number A-3 Reflected Ceiling Plan
Drawing Number A-4 Finish Plan (as amended for using higher grade 32 oz
carpet in board room, corner meeting room and CEO office; stone floor
within entire reception area; additional changes from carpet to vinyl
flooring as indicated)
Drawing Number A-5 Elevations, Door/Frame/Hardware, Door Schedule (as
amended for adding cabinet and fake drawer below cooktop stove and
raising electrical outlet)
Drawing Number A-6 Details
Drawing Number A-7 Details
In the case of any conflicts between the work letter and the drawings, the work
letter shall supercede the drawings.
PALOMAR MEDICAL TECHNOLOGIES, INC.
WORK LETTER FOR 00-00 XXXXXXXXX XXXXXX, XXXXXXXXXX, XX
JUNE 17, 1999
AREA: Approximately 44,000 RSF located on the East side of the
building and 859 RSF on the Lower Level of the building.
ENTRANCES: Entrances will be as follows:
o One (1) entrance (existing) on Cambridge Street with
white columns. This entrance needs to be fully ADA
compliant and also requires the installation of a
doorbell which will ring in both the left and right
corridors off the Reception area beyond the interior
glass doors in each corridor (meaning in the office area
of each corridor).
o One (1) side employee entrance glass door with a
doorbell, which will ring in both the Loading Docks and
Receiving areas.
EXTERIOR: Installation of a concrete dumpster pad capable of accommodating
a thirty (30) cubic yard roll off container and placed next to
the loading dock in a location suitable to Palomar.
WINDOWS: One (1) large French door sized paired window, 1" insulated
green glass in green frames to match existing to be installed in
the Controller's Office as indicated on the floor plan. Two (2)
continuous 1" insulated green ribbon glass in green frames to be
removed for two (2) loading docks.
One (1) pyramid style skylight to be installed in the reception
area as indicated on the floor plan (at Palomar expense).
Perimeter vertical blinds with 3" vinyl blades to be installed
on all exterior windows. Also, the same vertical blinds to be
installed on the Board Room 1/2 height glass wall.
Interior glass panels as shown on the floor plan to be installed
as follows: three (3) 1/2 height X 6' glass panels to be
installed in walls of the R&D and Optics Assembly Clean Rooms;
1/2 height glass in the Board Room wall facing the Reception
Area glass.
PARTITIONS: Partitions to be installed as follows:
o Type 1 - Partitions at exterior wall: 3-5/8" 25 gauge steel
studs at 16" O.C. (existing), 1 layer 5/8" gypsum wallboard.
Wallboard to be taped and spackled. The inside of walls to have
appropriate fiberglass insulation and a vapor barrier (existing)
Height of partition to underside of existing slab above
(existing).
o Type 2 - Partitions at core toilets, mechanical rooms,
sprinkler rooms, electrical rooms, Loading Docks, R&D Machine
Shop and tenant demising: 3-5/8" 25 gauge steel studs at 16"
O.C., 1 layer 5/8" gypsum wallboard. Wallboard to be taped and
spackled. The inside of walls, excluding the walls abutting
hallways, to receive 3" of fiberglass insulation (at Palomar
expense). Height of partition to underside of existing slab
above.
o Type 3 - Partitions for standard interior walls: 3-5/8" 25
gauge steel studs at 16" O.C., 1 layer 5/8" gypsum wallboard.
Wallboard to be taped and spackled. The inside of walls,
excluding the walls abutting hallways, to receive 3" of
fiberglass insulation (at Palomar expense). Height of partition
to exceed ceiling height by 6".
o Type 4 - Partitions for interior walls in the Test Bay Area:
3-5/8" 25 gauge steel studs at 16" O.C., 1 layer 5/8" gypsum
wallboard. Wallboard to be taped and spackled. The inside of
walls, excluding the walls abutting hallways, to receive 3" of
fiberglass insulation (at Palomar expense). Height of partition
to underside of acoustical tile ceiling (10') to under ceiling
grid. GWB detail at ceiling to be double row foam tape at top
runner with continuous metal casing bead (USG# 200-B) having
spackled finish.
Partitions to include: window xxxxx; "boxing" of columns in
office areas; "special" round enclosure of column in reception
area as shown on floor plan; "special" ceiling treatment in
reception area to accommodate pyramid skylight and accent
lighting (at Palomar expense); and full height chain link fence
with sliding gates (to be installed from floor slab to the
underside of ceiling above) as shown on floor plan.
BATHROOMS: Men's and women's bathrooms with showers will be constructed.
The bathrooms will be constructed with separate air supply and
exhaust directly to the outside and will include all bathroom
fixtures and all accessories such as mirrors, toilet partitions,
toilet tissue dispensers, paper towel dispensers, sanitary
napkin dispensers, soap dispensers. The bathrooms will also
include GFI outlets at the sinks and coat hooks on the shower
walls and on the toilet partition doors. The bathrooms shall be
fully ADA compliant.
PLUMBING: Fixtures will be installed in the bathrooms, showers and
janitor's closet as shown on floor plan and shall be ADA
compliant. Break Room water cooler shall be installed where
shown on floor plan.
Provision for and installation of appropriate plumbing for all
appliances in the Break Room requiring plumbing. The appliances
include a kitchen stainless steel "double" sink with hot and
cold water faucets and spray; piping for a coffee machine; a 1/2
HP garbage disposal; a dishwasher (to be supplied by the
contractor); and one (1) water filter to be placed in a location
as designated by Palomar.
In the production and laboratory areas, eight (8) sinks (of
which the rough plumbing and final connections will be at
contractor expense and the provision of the sinks in laminate
cabinet units will be at Palomar expense) with hot and cold
water faucets and placed in three (3) proximate areas of the
building (to facilitate stacking of common piping) as shown on
floor plan.
Sufficient domestic hot water heating and plumbing shall be
installed to supply an adequate hot water supply to all the
above fixtures with the final engineering calculations and
design to be reviewed by Palomar before installation.
GAS: Gas service via Boston Gas is installed and will be piped to all
units requiring gas. At least two (2) gas meters will be
installed to enable gas to be metered separately for Palomar and
as needed for the other tenant in the building .
ELECTRICAL: Three phase 480 volt, 2,000 amp electrical service provided by
Boston Edison to one (1) electrical panel. At least three (3)
electric meters will be installed to enable electricity to be
metered separately for Palomar's HVAC, Palomar's lights and
plugs and as needed for the other tenant in the building. Also,
a device to measure Palomar's lights and plugs usage in the
manufacturing area for audit purposes as designated by Palomar
to be installed (at Palomar expense).
The distribution of electrical outlets will be as follows:
GENERAL BUILDING REQUIREMENTS
o Enclosed offices, small meeting rooms (10' X 12'), file room,
etc. - Three (3) duplex 20 amp outlets per room.
o Paneled workstations and individual work desks - Two (2)
duplex 20 amp outlets per workstation. The outlets at paneled
workstations to be included as Palomar furniture. Contractor to
make all final connections.
o Large meeting rooms - Four (4) duplex 20 amp outlets per room.
o Corridors - One (1) duplex 20 amp outlet per 30 linear feet of
corridor space.
o Copier/Printer areas - Either one (1) quad or two (2) duplex
20 amp outlets per area.
o All storage rooms, Supply, and Sprinkler & Electrical rooms -
Two (2) duplex 20 amp outlets per room.
SPECIFIC ROOM REQUIREMENTS
o Type 1 - 110/115 volt 20 amp with duplex outlet
o Type 2 - 110/115 volt 20 amp with quad outlet
o Type 3 - 110/115 volt 20 amp duplex outlet dedicated circuit
o Type 4 - 220 volt 30 amp single phase outlet with lockout
switch
o Type 5 - 220 volt 30 amp 50 Hz outlet with lockout switch
o Type 6 - 220 volt 50 amp 3 phase outlet with lockout switch
TYPE 1 TYPE 2 TYPE 3 TYPE 4 TYPE 5 TYPE 6
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
LOCATION:
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D OPTICAL SHOP 4 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D ELECTRICAL SHOP 4 2 2 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D MACHINE SHOP 7 2 2 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D LAB 1 6 1 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D LAB 2 6 2 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D LAB 3 6 1 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D LAB 4 6 1 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D LAB 5 6 1 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R&D MGH LAB 6 1 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
ENG. LAB 1 6 1 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
ENG. LAB 2 6 1 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
ENG. LAB 3 6 1 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TBD LAB 6 1 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TRAINING ROOM 6 1 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
MFG. MECH. & ELEC. LAB 4 2 1 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
DEPOT REPAIR 4 2 1 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
DOCUMENTATION 8 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 1 1 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 2 1 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 3 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 4 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 5 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 6 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 7 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 8 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 9 1 2 1 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 10 1 2 1 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 11 1 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEST BAY 12 1 2 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
OPTICS ASSEMBLY ROOM 16 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
R & D CLEAN ROOM 5
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
CHASSIS & SUB ASSEMBLY 8 3
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
MAIN STORES 5
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
QA INSPECTION 4
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
MRB 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
RECEIVING 3
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
FINISHED GOODS 3
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
LOADING DOCK 4
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
BREAK ROOM 10
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TEL ROOM 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
IS MGR. 6 3
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
BOARD ROOM 3 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
SALES/MARKETING DEMO ROOM 4 2 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
RECEPTION 4 1
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
COPY/FAX/MAIL 4 2
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
EXERCISE ROOM 4
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
BATHROOM 4
------------------------------------------ ----------- ---------- ---------- ---------- ---------- ----------
TOTAL 86 149 19 47 7 2
Additional outlet requirements will be as follows:
o Break Room will require four (4) GFI (of the 10 outlets
specified above) duplex outlets along counter top and an
electric stove outlet as required by the stove manufacturer.
o Bathroom will require GFI outlets (2 per each side). o Deck
will require two (2) outside/protected GFI duplex outlets.
The distribution of electrical circuits will be as follows:
GENERAL BUILDING REQUIREMENTS
o Lighting circuits will be distributed as per good engineering
practice and reviewed with Palomar before installation.
o Enclosed offices, meeting rooms, file room, etc. - Three (3)
rooms per circuit. o Paneled workstations and individual work
desks - Four (4) workstations per circuit.
o Corridors - Ten (10) outlets per circuit.
o Copier areas - One (1) area per circuit.
o All storage rooms, Supply, and Sprinkler & Electrical rooms -
Ten (10) outlets per circuit.
SPECIFIC ROOM REQUIREMENTS
o Type 1 & 2 (20 amp circuits) unless otherwise stated below not
to exceed 20 plugs (5 quads or 10 duplex) per circuit.
o Type 3 each duplex outlet to be on a dedicated circuit.
o Type 4 & 6 not to exceed two (2) plugs per circuit.
o Type 5 to require two (2) 50 Hz generators and to be split
into two (2) circuits. One circuit will have the R&D and
Engineering Lab outlets (totaling 4 outlets) and the other
circuit will have the Mfg. Mech. & Elect. Lab and Test Bays 9 &
10 (totaling 3 outlets).
o The Exercise Room will have two (2) circuits (2 quads per
circuit).
o Break Room to require one (1) circuit for each individual
appliance (each refrigerator, dishwasher, double oven, and stove
top), one (1) circuit for the vending machines and two (2)
circuits for the remaining outlets.
o IS Mgr will have three (3) circuits (2 duplex & 1 quad per
circuit).
o Tel Room will have one (1) circuit for both quad outlets.
Switches to be located as per Palomar direction maintaining ADA
compliance. All light switches to be flat rocker style switches.
All dimmer switches to be lever style switches.
The Chassis and Sub Assembly areas will require two (2) overhead
bus bars running the length of the entire area.
Electrical to also include the purchase and installation on a 8'
X 10' flush ceiling mounted electrically operated projection
screen for the Board Room (to be purchased and installed at
Palomar expense); and the coordination of voice & data cabling,
paging and cable for cable television (the installation costs of
these items at Palomar expense).
LIGHTING: The lighting will be as follows:
o Type 1 - One (1) 2' X 4' fluorescent fixture with 1/2" X 1/2"
paracube lenses per 60 square feet of enclosed offices, Exercise
Room, Bathrooms, all meeting rooms, Coat Room and the
Copy/fax/mail area (except the Board Room, CEO Office and the
Corner Meeting Room). In place of the above paracube fixtures,
equivalent indirect lighting fixtures are to be installed (at
Palomar expense for the premium cost of the indirect lighting
fixtures over paracube fixtures).
o Type 2 - One (1) 2' X 4" fluorescent fixture with solid lenses
per 60 square feet of enclosed space for all labs, all R&D
shops, Optics Assembly Room, the R&D Clean Room, all Test Bays,
Depot Repair, Training Room, all Storage Rooms, Supply and all
Electrical & Sprinkler rooms. R& D Clean Room to be "clean room"
fixtures (at Palomar expense for the premium of clean room
fixtures over standard solid lense fixtures).
o Type 3 - One (1) 2' X 4' fluorescent fixture with solid lenses
per 80 square feet of all remaining open production and
caged/chain link fenced space and loading dock (including
corridors in those areas).
o Type 4 - One (1) 2' X 4' fluorescent fixture with 1/2" X 1/2"
paracube lenses per 80 square feet of remaining office space and
Break Room (including paneled workstations and corridors in
those areas). In place of the above paracube fixtures,
equivalent indirect lighting fixtures are to be installed (at
Palomar expense for the premium cost of the indirect lighting
fixtures over paracube fixtures).
o Type 5 - One (1) 2' X 2' fluorescent fixture with 1/2" X 1/2"
paracube lenses per 60 square feet of space for the Board Room,
CEO office and the Corner Meeting Room, (at Palomar expense for
the premium cost in excess of the Type 1 lighting fixture). In
place of the above paracube fixtures, equivalent indirect
lighting fixtures are to be installed (at Palomar expense for
the premium cost of the indirect lighting fixtures over paracube
fixtures).
o Type 6 - Special Lighting requirements:
1. Incandescent red lights (60 watt) in globes as a laser
warning light above every lab, Test Bay, Training, Depot Repair
and Sales/Marketing Demo Room entrance doorway to be switched
with an indicator light on each switch at each door for these
rooms. Switches to be linked such that turning on one switch in
a room will activate all room laser warning lights and
indicators.
2. Two (2) outdoor spot lights to be located outside the Break
Room to illuminate the Deck with the switch in the Break Room.
3. Interior spot lights to be located in the Reception area
ceiling for accent and general lighting.
4. Interior "high hat" ceiling lights (at Palomar expense) to be
located in the Board Room ceiling as detailed under "SPECIAL
AREAS" and three (3) interior high hat ceiling lights to be
installed on a single dimmer switch in each of the large meeting
rooms (4 rooms in total).
All fluorescent fixtures to be 277 volts and approved by Palomar
before installation.
HVAC: The building will be heated and cooled by rooftop mounted units,
gas fired, packaged air handling units with integral air-cooled
condensing units so as to provide sufficient heating and cooling
distribution and controls shall be installed in all areas as per
good engineering practice so as to maintain 68 degrees F in the
summer and 72 degrees F in the winter in all areas of the
building in full use and occupancy. Temperature/thermostatic
controls in all areas shall be distributed to meet the
requirements stated above.
It should be noted, that in any room in which a laser can be
fired (every lab, all Test Bays, Training Room and Depot
Repair), the laser generates 20,000 BTU's per hour. As such,
special care must be taken in designing the HVAC system for
these rooms to both exhaust the heat and provide sufficient air
flow & cooling.
A total of four (4) adjacent labs (2 in R&D and 2 in Engineering
to be specified by Palomar) and four (4) Test Bays (Test Bays 7
- 10) will be designated as "burn in capable". "Burn in capable"
shall mean that these labs must be able to handle the full heat
load (20,000 BTU's per hour) for up to twenty four (24) hours.
These areas will require individual room controlled air supply
dampers that will allow each room to be supplied with up to 800
CFM of air. In addition, each room will require forced ducted
exhaust to the outside of the building.
The standard for all other labs, all other Test Bays, Depot
Repair and Training Room shall be at a minimum 1/2 the above
requirement (10,000 BTU's per hour). However, these areas will
require individual room controlled air supply dampers that will
allow each room to be supplied with up to 800 CFM of air. In
addition, each of these rooms will require an exhaust (not
forced to the outside as in the "burn in capable" rooms).
Supply air to all labs, Training Room, all assembly areas
(including the Optics Assembly, Chassis Assembly and Sub
Assembly), Depot Repair, Training Room and all Test Bays must be
distributed such that supply air filters can be changed as often
as required and upgraded as needed.
The R&D Clean Room (at Palomar expense for the premium cost in
excess of a lab build out) must be able to achieve a Class
10,000 level of clean room performance (as per Federal Standard
209E and applicable ISO standards). As such, this room will
require HEPA filter(s) on the supply air and all other necessary
construction requirements to meet certification testing.
The distribution of supply air and temperature/thermostatic
controls in all other areas (ie. offices, meeting rooms, paneled
workstations, etc.) shall be as per good engineering practice
and sufficient to meet the temperature standards listed above.
Please note that the IS Manager's room will contain 12
PC's/Servers and be able to run 24 hours each day.
Treated (heated and/or cooled) fresh air will be supplied per
the Massachusetts Building Code and ASHRAE guidelines, and an
economizer cycle will be provided. The system shall be capable
of providing 100% fresh air intake. External venting to be
provided for two (2) exhaust hoods to be placed in locations by
Palomar.
FIRE PROTECTION: A fire protection system including all devices shall be
installed as per all state and local requirements. This system
shall include a main fire alarm panel, all signaling devices,
exit signs, emergency egress lighting, fire extinguisher
cabinets with fire extinguishers and fire hose cabinets with
fire hose (if required by code). A capped sprinkler system with
heads turned up (existing) and all downward turned heads
distributed throughout the entire area will be provided in
accordance with applicable code requirements.
SECURITY: A card access security system shall be installed. The system
shall include a main control panel, card key swipes at all
entrance doors and either room motion detection or perimeter
glass sensors to fully secure the perimeter of the building. The
system shall include security devices on the loading dock doors
and the lower level doors. Palomar shall be supplied with 150
card keys and the ability to be able to program card key
changes.
CEILINGS: Suspended acoustical ceilings shall be installed in all areas.
The ceiling height in all areas except the Reception and
caged/chain link fenced area will be 10' and shall enable a
finished soffit above front windows of at least 6". In the
caged/chain link fence area, the ceiling height shall be as high
as possible. See "SPECIAL AREAS" listed below for the Reception
Area ceiling.
Ceiling tile in all labs, R&D Clean Room, the Optics Assembly
Room, all Test Bays, Training and Depot Repair, will be
installed in a 2' X 4' grid with 2' X 4' flat acoustical vinyl
coated tiles.
Ceiling tile in all other assembly, R&D shops, electrical &
sprinkler rooms, all Storage Rooms, Supply and caged/chain link
fence areas, Loading Docks and including all related corridors
will be installed in a 2' X 4' grid with 2' X 4' flat acoustical
tiles.
Ceiling tile in all offices (including File Room, Interview Room
TBD rooms), all paneled workstation areas, all meeting rooms
(including the Sales/Marketing Demo Room), related common areas
(including Bathrooms, Exercise Room, Reception, Break Room,
Coats and Copy/Fax/Mail), and related corridors will be
installed in a 2' X 4' grid with 2' X 4' acoustical, second look
(Fissuard) tiles.
DOORS & HARDWARE: All doors are to have metal frames and are to be 3' wide X 7'
high X 1 3/4" solid core birch veneer finished with two (2)
coats of stain and two (2) coats of clear polyurethane. Hardware
will be ADA compliant Schlage or comparable, dull chrome. All
locks will be on a master key system and will be placed on all
external doors, all caged/chain link fence gates and 30 other
internal doors to be determined by Palomar. Palomar will be
provided with two keys per each lock and five (5) master keys
with appropriate submasters at Palomar's direction(submasters at
Palomar expense).
Additional door related hardware to be as follows:
1. Floor door stops on all appropriate doors.
2. Coat hooks on interior of office doors.
3. Door closers for the two (2) R&D Clean Room entrance doors
(at Palomar expense).
4. Ten (10) door glass vision panels to be placed in the four
(4) large meeting room entrance doors, Break Room entrance
doors, and the door between the R&D office and Sub Assembly
areas (at Palomar expense for the glass vision panel only).
FLOORING: Flooring for all office areas, paneled workstation areas,
Exercise Room, all meeting rooms, Sales/Marketing Demo room and
related corridors (except as noted below under "SPECIAL AREAS")
shall be 32 oz. carpet of usual commercial cut loop type with
manufacturer and style to be approved by Palomar.
Flooring in the Break Room, all enclosed R&D areas (except the
R&D machine shop), all enclosed Engineering areas, the R&D Clean
Room, Optics Assembly Room, TBD Lab, Training, all Test Bays,
Depot Repair, Mfg. Mech./Elect. Lab, Documentation, IS Mgr., Tel
room and related corridors shall be vinyl tile with the style to
be approved by Palomar.
Flooring in all remaining areas including the R&D Machine Shop,
all caged/chain link fenced areas, loading docks, chassis and
sub assembly areas, mechanical/electrical/sprinkler rooms to be
painted with a polyurethane paint including walkway paths with
the product and colors to be approved by Palomar.
Ceramic tile will be on all floors and the wet areas of the core
toilets, showers and the janitor's closet.
The Reception Area shall require the installation of higher
grade flooring (to be approved by Palomar). (Should any higher
grade flooring be installed, the premium cost of that flooring
over higher grade carpet to be at Palomar expense.)
Vinyl cove base shall be installed in all areas.
PAINT: All walls to be finished with one (1) coat of latex quick seal
primer and two (2) coats of Xxxxxxxx Xxxxx Spec. No. 2-3
(eggshell finish latex base). All door frames to be finished
with one (1) coat latex quick seal primer and two (2) coats of
Xxxxxxxx Xxxxx or comparable Spec. No. 4-6 (semi-gloss
finish/alkyd base).
LOADING DOCKS: Installation of two (2) loading docks as per floor plan. The
installation to include all related fixtures including two (2)
electrically operated dock doors, two (2) dock levelers, a
single ceiling mounted heating/forced air unit and all exterior
treatments such as dock bumpers, leveling of pavement in dock
area and pavement striping.
LOWER LEVEL: Lower Level to be built out as follows:
o Clean exposed ceiling.
o Florescent strip lighting.
o All walls painted (as per above specification).
o All flooring to be painted concrete (as per above
specification). o Electrical outlets to be installed as per
corridor specification above.
o Entrance to storage area to be an overhead rolling door and a
single door.
o HVAC system distribution and controls able to maintain 60
degrees F in winter.
MILLWORK: Millwork to be provided and installed as follows:
o Break Room - Kitchen cabinets above and below a counter top
(containing the sink) placed as shown on floor plan.
o Copy/Fax/Mail - Counter top placed along walls as shown on
floor plan with shelves above and locked cabinets below.
o Coats - A coat rack with shelf above as indicated on floor
plan.
SPECIAL AREAS: The following areas will be finished accordingly:
o Board Room:
1. 2' X 2' suspended ceiling grid with 2' X 2' raised
ceiling tiles.
2. Four (4) incandescent "high hat" ceiling fixtures
controlled by one (1) dimmer circuits (at Palomar
expense).
3. Flush mounted electrically operated 8' X 10' projection
screen (at Palomar expense).
4. Higher grade carpet.
5. Vertical blinds on all glass as shown on floor plan.
6. 6" of fiberglass insulation to be installed above the
ceiling tiles (at Palomar expense).
7. Installation of wall mounted "white board" unit (to be
supplied by Palomar).
o Corner Meeting Room (12' X 20' meeting room in front left
corner of the building):
1. 2' X 2' suspended ceiling grid with 2' X 2' raised
ceiling tiles.
2. Higher grade carpet.
o CEO Office:
1. 2' X 2' suspended ceiling grid with 2' X 2' raised
ceiling tiles.
2. Higher grade carpet.
o Break Room - Millwork (as detailed under "MILLWORK") and
double sink unit as shown on floor plan; the installation of all
appliances as shown on the floor plan; one (1) double exterior
glass door; and deck at the same floor height as interior
flooring with railing as shown on floor plan.
o Reception - incandescent accent and general lighting, as
specified previously under "LIGHTING"; special ceiling treatment
to accommodate pyramid skylight (at Palomar expense), as
specified previously under "WINDOWS"; special flooring, as
specified previously under "FLOORING".
WATER/SEWER: Water and sewer provided by the Town of Burlington. All required
plumbing connections to be installed as per applicable codes and
Town of Burlington requirements.
ROOF: Xxxxxxxx rubber membrane roof (existing). All required roof
penetrations to be done in accordance with Xxxxxxxx requirements
so as to not effect in any way the roof warranty.
GENERAL: All colors to be selected by Palomar.
Y2K: All products, equipment, and systems (including hardware,
software and embedded chips) incorporated into or used in
connection with this site shall be year 2000 compliant, that is,
the products or systems, independently and when incorporated
into this site, will be capable of accurately processing,
providing and/or receiving date data prior to, during, or after
the calendar year 2000 a.d. Such year 2000 compliant products,
equipment, and systems:
1. Will operate during such time period without error of
any nature relating to date data that includes,
represents, or references the year 2000 or later years,
or resulting from the passage of time from the year 1999
to the year 2000;
2. Will not terminate ordinary operations nor produce
invalid or incorrect results as a result of date data
that includes, represents or references the year 1999,
the year 2000 or later years, or the passage of time
from the year 1999 to the year 2000;
3. Will specify the year in any date data either explicitly
or by unambiguous implication in all interfaces and data
storage; and
4. Will recognize and correctly process year 2000 date data
as a leap year.
EXHIBIT D
JANITORIAL STANDARDS
A. GENERAL
1. All stone, ceramic, tile, marble, terrazzo and other unwaxed
flooring to be swept nightly on Business Days, using approved
dust-down preparation; wash flooring once a month.
2. All linoleum, rubber, asphalt tile and other similar types of
flooring (that may be waxed) to be swept nightly on Business Days,
using approved dust-down preparation. Waxing, if any, shall be done
at LESSEE's expense.
3. All carpeting and rugs to be carpet swept or vacuum cleaned
nightly on Business Days, as may be required.
4. Hand dust and wipe clean all furniture, files, fixtures and window
xxxxx nightly on Business Days;
5. Dust interior of all waste paper disposal cans and baskets nightly
on Business Days; damp dust as necessary.
6. Wash clean all water coolers nightly on Business Days;
7. Dust all door and other ventilating louvers within reach, as
necessary.
8. Dust all telephones as necessary.
9. Sweep all private stairway structures nightly on Business Days.
10. Wipe clean all bright work weekly.
11. Interior and exterior of metal elevator car and hatch doors,
including saddles, to be properly cleaned and treated as necessary.
12. Vacuum clean and change filters in air conditioning units
semi-annually.
B. LAVATORIES (BUILDING)
1. Sweep and wash all lavatory floors nightly on Business Days, wash
and polish all mirrors, powder shelves, bright work and enameled
surfaces in lavatories, weekly.
2. Scour, wash and disinfect all basins, bowls and urinals throughout
all lavatories nightly on Business Days.
3. Wash all toilet seats nightly on Business Days.
4. Hand dust and clean all partitions, tile wall dispensers and
receptacles in all lavatories nightly on Business Days.
5. Empty paper towel receptacles and transport wastepaper from the
demised leased premises nightly on Business Days.
6. Fill toilet tissue holders nightly on Business Days (tissue to be
furnished by Owner).
7. Empty sanitary disposal receptacles nightly on Business Days.
8. Wash interior of waste cans and receptacles at least once a week.
9. Thoroughly wash all wall tile and stall surfaces as often as
necessary but in no event less than once every two weeks.
10. Fill soap dispensers and paper towel dispensers (dispensers, soap
and paper towels to be furnished by LESSOR at LESSOR's expense).
C. HIGH DUSTING
Do all high dusting quarterly, which includes the following:
1. Dust clean all vertical surfaces, such as walls, partitions, doors
and bucks and other surfaces not reached in nightly cleaning.
2. Dust clean all pipes, ventilating and air conditioning louvers,
ducts, high moldings and other high areas not reached in nightly
cleaning.
3. Dust all lighting fixtures, including glass or plastic enclosures
(exterior only).
D. WINDOW CLEANING
1. All windows to be cleaned inside and outside, two times a year.
2. LESSEE's entrance doors and lobby glass to be cleaned daily on
Business Days.
3. All other interior glass and a normal amount of partition glass,
glass doors and fan lights are to be cleaned twice a year.
4. Mail chute glass to be kept in a clean condition at all times.
E. DAY PORTERS
1. Service, during Business Days all public and operating space
throughout the Building.
2. Keep elevator cars clean and neat during the day on Business Days.
3. Insert toilet tissue in lavatories (tissue to be furnished by
LESSOR) as necessary on Business Days.
4. Keep staircases policed as necessary on Business Days.
5. Fill soap dispensers and paper towel dispensers on Business Days
(dispensers, soap and paper towels to be furnished by LESSOR at
LESSOR's expense).
EXHIBIT E
RULES & REGULATIONS
I. The following regulations are generally applicable:
1. The public sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by LESSEE (except as necessary for deliveries) or used for any purpose other
than ingress and egress to and from the leased premises.
2. No awnings, curtains, blinds shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
leased premises or any outside wall of the Building unless the same are of a
quality, type, design and color, and attached in the manner, reasonably approved
by LESSOR.
3. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor places in the halls,
corridors or vestibules.
4. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or like substances shall be
deposited therein.
5. LESSEE shall not use the leased premises or any part thereof or
permit the leased premises or any part thereof to be used as a public employment
bureau or for the sale of property of any kind at auction, except in connection
with LESSEE's business as permitted in the Lease.
6. LESSEE must, upon the termination of its tenancy, restore to the
LESSOR all locks, cylinders and keys to offices and toilet rooms of the leased
premises.
7. The LESSOR reserves the right (but assumes no obligation) to
exclude from the Building between the hours of 6 p.m. and 8 a.m. and at all
hours on Sunday and holidays all persons connected with or calling upon the
LESSEE who do not present a pass to the Building signed by the LESSEE.
8. The requirements of LESSEE will be attended to only upon
application at the Building manager's office. Employees of LESSOR shall not
perform any work or do anything outside of the regular duties, unless under
special instructions from the office of the LESSOR.
9. There shall not be used in any space, or in the public halls of
the Building, either by LESSEE or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
10. No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the leased premises.
11. No LESSEE shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the Building. No
LESSEE shall throw anything out of the doors, windows or skylights or down the
passageways.
12. The leased premises shall not be used for lodging or sleeping or
for any immoral or illegal purpose.
13. LESSEE shall co-operate with LESSOR in obtaining maximum
effectiveness of the cooling system by closing draperies when sun's rays fall
directly on windows of leased premises.
14. LESSOR shall have the right, exercisable without notice and
without liability to any LESSEE, to change the name and street address of the
Building.
II. The following regulations are applicable to any additions, alterations or
improvements being undertaken by or for LESSEE in the leased premises:
A. GENERAL
1. All alterations, installations or improvements ("Alterations") to
be made by LESSEE in, to or about the leased premises shall be made in
accordance with the requirements of this Exhibit and by contractors or mechanics
approved by LESSOR.
2. LESSEE shall, prior to the commencement of any work, submit for
LESSOR's written approval, complete plans for the Alterations. Drawings are to
be complete with full details and specifications for all of the Alterations.
3. Alterations must comply with the Building Code applicable to the
Property and the requirements, rules and regulations and any other governmental
agencies having jurisdiction.
4. To the extent that the same is required by applicable law or
regulation, no work shall be permitted to commence without the LESSOR being
furnished with a valid building or demolition permit and all other necessary
approvals from agencies having jurisdiction.
5. All demolition, removals or other categories of work that may
inconvenience other LESSEEs or disturb Building operations, must be scheduled
and performed before or after normal working hours and LESSEE shall provide the
Building manager with at least 24 hours' notice prior to proceeding with such
work.
6. All inquiries, submissions, approvals and all other matters shall
be processed through the Building manager.
B. PRIOR TO COMMENCEMENT OF WORK
1. LESSEE shall submit to the Building manager a request to perform
the work. To the extent that the same are required by applicable law or
regulation, or are customarily produced for similar work, the request shall
include the following enclosures:
(i) A list of LESSEE's contractors and/or subcontractors for LESSOR's
reasonable approval.
(ii) Four complete sets of plans and specifications properly stamped
by a registered architect or professional engineer.
(iii) A properly executed building permit application form.
(iv) Four executed copies of the insurance policies or certificates
from LESSEE's contractor and, if requested by LESSOR, from the
contractor's subcontractors.
2. LESSOR will return to LESSEE two sets of plans approved or a
disapproval with specific comments as to the reasons therefor (such approval or
comments shall not constitute a waiver of approval of governmental agencies).
3. LESSEE shall obtain a building permit from the Building Department
and necessary permits from other governmental agencies. LESSEE shall be
responsible for keeping current all permits. LESSEE shall submit copies of all
approved plans and permits to LESSOR and shall post the original permit on the
leased premises prior to the commencement of any work. All work, if performed by
a contractor or subcontractor, shall be subject to reasonable supervision and
inspection by LESSOR's representative. Such supervision and inspection shall be
at LESSEE's sole expense and LESSEE shall pay LESSOR's reasonable charges for
such supervision and inspection.
C. REQUIREMENTS AND PROCEDURES
1. All structural and floor loading requirements shall be subject to
the prior approval of LESSOR's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of LESSOR's mechanical and
electrical engineers and all mechanical and electrical work shall be performed
by contractors who are reasonably approved by LESSOR or engaged by LESSOR in
maintaining the Building. When necessary, LESSOR will require engineering and
shop drawings, which drawings must be approved by LESSOR before work is started.
Drawings are to be prepared by LESSEE and all approvals shall be obtained by
LESSEE.
3. Elevator service for construction work shall be charged to LESSEE
at standard Building rates. Prior arrangements for elevator use shall be made
with Building manager by LESSEE. No material or equipment shall be carried under
or on top of elevators. If an operating engineer is required by any union
regulations, such engineer shall be paid for by LESSEE.
4. If shutdown of risers and mains for electrical, HVAC, sprinkler
and plumbing work is required, such work shall be supervised by LESSOR's
representative. No work will be performed in Building mechanical equipment rooms
without LESSOR's approval and under LESSOR's supervision.
5. LESSEE's contractor shall:
(i) have a superintendent or xxxxxxx on the leased premises at all
times;
(ii) police the job at all times, continually keeping the leased
premises orderly;
(iii) maintain cleanliness and protection of all areas, including
elevators and lobbies.
(iv) protect the front and top of all peripheral HVAC units and
thoroughly clean them at the completion of work;
(v) block off supply and return grills, diffusers and ducts to keep
dust from entering into the Building air conditioning system; and
(vi) avoid the disturbance of other LESSEEs.
6. If LESSEE's contractor is negligent in any of its
responsibilities, LESSEE shall be charged for corrective work.
7. All equipment and installations must be equal to the standards
generally in effect with respect to the remainder of the Building. Any deviation
from such standards will be permitted only if indicated or specified on the
plans and specifications and approved by LESSOR.
8. A properly executed air balancing report signed by a professional
engineer shall be submitted to LESSOR upon the completion of all HVAC work.
9. Upon completion of the Alterations, LESSEE shall submit to LESSOR
a permanent certificate of occupancy and final approval by the other
governmental agencies having jurisdiction.
10. LESSEE shall submit to LESSOR a final "as-built" set of drawings
showing all items of the Alterations in full detail.
11. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
12. LESSOR's approval of the plans, drawings, specifications or other
submissions in respect of any work, addition, alteration or improvement to be
undertaken by or on behalf of LESSEE shall create no liability or responsibility
on the part of LESSOR for their completeness, design sufficiency or compliance
with requirements of any applicable laws, rules or regulations of any
governmental or quasi-governmental agency, board or authority.
