NEW ENGLAND EXECUTIVE PARK
BUILDING EIGHT
BURLINGTON, MASSACHUSETTS
OFFICE LEASE AGREEMENT
BETWEEN
MA-NEW ENGLAND EXECUTIVE
PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
UTIX GROUP, INC., A DELAWARE CORPORATION
("TENANT")
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OFFICE LEASE AGREEMENT
THIS QFFICE LEASE AGREEMENT (The "LEASE") is made and entered into
as of
the 14 day of September, 2004, by and between MA-NEW ENGLAND EXECUTIVE PARK,
L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY ("LANDLORD")
and UTIX GROUP, INC.,
A DELAWARE CORPORATION ("TENANT"). The following exhibits and
attachments are
incorporated into and made a part of the
Lease: EXHIBIT A
(Outline and Location
of Premises), EXHIBIT B (Expenses and
Taxes), EXHIBIT C (Work Letter), EXHIBIT D
(Commencement Letter), EXHIBIT E (Building Rules and
Regulations),
EXHIBIT F
(Additional Provisions) and EXHIBIT G (Commencement Date Agreement [for
recording]).
1. BASIC
LEASE INFORMATION.
1.01
"BUILDING" shall mean
the building located at Eight New England
Executive Park,
Burlington,
Massachusetts 01803,
and commonly
known as Eight New
England Executive
Park. "RENTABLE SQUARE
FOOTAGE OF THE BUILDING" is deemed to be 218,512 square feet.
1.02
"PREMISES" shall mean the area shown on EXHIBIT A to this
Lease.
The Premises is located on the 1st floor and known as suite
140.
If the
Premises include one or more floors in
their entirety,
all corridors
and restroom facilities located on such full
floor(s) shall be considered part of the Premises. The
"RENTABLE
SQUARE FOOTAGE OF THE
PREMISES" is deemed to be 3,911 square
feet. Landlord and
Tenant stipulate and agree that the Rentable
Square Footage of the
Building and the Rentable Square Footage
of the Premises are correct.
1.03 "BASE
RENT":
MONTHS OF TERM
ANNUAL RATE
MONTHLY
PER SQUARE FOOT
BASE RENT
--------------
---------------
---------
Months 1 - 62
$18.00
$5,866.50
Notwithstanding
anything in this
Section of this Lease
to the
contrary, so long as
Tenant is not in default under this Lease,
Tenant shall be
entitled to an
abatement of Base Rent in the
amount of $5,866.50
per month for 2
consecutive full
calendar
months of the Term,
beginning with the 1st
full calendar month
of the Term (the "BASE
RENT ABATEMENT PERIOD"). The total amount
of Base Rent abated during the Base Rent Abatement Period shall
equal $11,733.00 (the "ABATED BASE RENT"). If Tenant defaults
at
any time during the Term and fails to cure such default within
any applicable
cure period
under this Lease,
all Abated Base
Rent shall immediately
become due and
payable. The payment
by
Tenant of the Abated
Base Rent in the event of a default shall
not limit or affect any of Landlord's other rights, pursuant to
this Lease
or at law or in equity. During the Base Rent
Abatement Period,
only Base Rent shall be abated, and all
Additional Rent and
other costs and charges specified in this
Lease shall remain as due and payable pursuant to the
provisions
of this Lease.
1.04
"TENANT'S PRO RATA SHARE": 1.7898%.
1.05 "BASE
YEAR" for Taxes
(defined in EXHIBIT B): Fiscal Year
(defined below)
2005 (e.g., July 1, 2004 to June 30,
2005);
"BASE YEAR" for Expenses (defined in EXHIBIT B):
calendar year
2004.
For purposes hereof,
"FISCAL YEAR" shall mean the Base Year for
Taxes and each period of July 1 to June 30 thereafter.
1.06
"TERM": A period of 62
months. Subject to Section 3, the Term
shall commence on
September 1, 2004 (the
"COMMENCEMENT
DATE")
and, unless terminated
early in accordance with this Lease, end
on October 31, 2009 (the "TERMINATION DATE"). In addition, if
Tenant is entitled to register or record a notice or memorandum
of this Lease pursuant
to the terms of Section 1.18, Landlord
and Tenant shall also execute and Tenant may register or
record,
as appropriate,
at Tenant's cost and
expense, a
Commencement
Date Agreement in the form attached as EXHIBIT G.
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1.07
Allowance(s): None.
1.08
"SECURITY DEPOSIT":
$25,000.00,
as more fully described in
Section 6.
1.09
"LETTER OF CREDIT": None.
1.10
"GUARANTOR(S)": As of
the date of
this Lease, there are no
Guarantors.
1.11
"BROKER(S)": Nagog Associates.
1.12
"PERMITTED USE": General office use.
1.13
"NOTICE ADDRESS(ES)":
Landlord:
Tenant:
MA-New England Executive Park, L.L.C. UTIX Group, Inc.
c/o Equity Office
8 New England Executive Park
100 Summer Street
Suite 140
Boston, Massachusetts 02110
Burlington, Massachusetts 01803
Attention: Property Manager
A copy of any notices
to Landlord shall be sent to Equity
Office, Two North
Riverside Plaza, Suite 2100, Chicago, IL
60606, Attn: Boston Regional Counsel.
A copy of any notices whereby Landlord is notifying Tenant of
a
Tenant default
under the Lease, or notifying Tenant of, or
responding to Tenant
with respect to, any option rights of
Tenant under the Lease (as opposed to routine notices
concerning
the operation of the Building) shall be sent to:
H. Scott Flegal, Esq.
Flegal Law Office
159 Main Street
Nashua, New Hampshire 03060
1.14
"BUSINESS DAY(S)"
are Monday through Friday of each week,
exclusive of New
Year's Day,
Presidents
Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas
Day
("HOLIDAYS"). Landlord
may designate
additional Holidays
that
are commonly
recognized by other
office buildings in
the area
where the Building is located. "BUILDING SERVICE HOURS" are
8:00
A.M. to 6:00 P.M. on Business Days and 8:00 A.M. to 1:00 P.M.
on
Saturdays.
1.15
"LANDLORD WORK" means
the work that Landlord
is obligated
to
perform in the Premises pursuant to a separate
agreement (the
"WORK LETTER"), attached to this Lease as EXHIBIT C.
1.16
"PROPERTY" means the Building and the parcel(s) of land on
which
it is located and, at Landlord's discretion, the parking
facilities and other improvements, if any, serving the Building
and the parcel(s) of land on which they are located.
1.17
Notwithstanding anything to the contrary contained in Section
12
of the Lease, Landlord shall have the right to require Tenant
to
post a performance or
payment bond in connection with any work
or service done or
purportedly
done by or for the
benefit of
Tenant. Tenant
acknowledges
and agrees
that all such work
or
service is being
performed for the sole
benefit of Tenant
and
not for the benefit of Landlord.
1.18
Tenant shall not record this Lease or any memorandum or notice
without Landlord's
prior written consent;
provided, however,
Landlord agrees to consent to the recordation or registration
of
a memorandum
or notice of this
Lease, at Tenant's cost and
expense (and in a form reasonably satisfactory to Landlord), if
the initial term of
this Lease or the initial term plus renewal
terms granted exceed,
in the aggregate, 7
years. If this Lease
is terminated before the Term expires, upon Landlord's request
the parties shall
execute, deliver and record an instrument
acknowledging the above and the date of the termination of this
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Lease, and Tenant appoints Landlord its attorney-in-fact in its
name and behalf to execute the instrument if Tenant shall fail
to execute and deliver the instrument after Landlord's request
therefor within 10 days.
2. LEASE
GRANT.
The Premises are hereby leased to Tenant from Landlord, together with
the right to use any portions of the
Property that are
designated
by Landlord
for the common use of tenants and others
(the "COMMON AREAS").
3. ADJUSTMENT
OF COMMENCEMENT DATE; POSSESSION.
3.01 If Landlord
is required to perform Landlord Work prior to the
Commencement Date: (a) the date set forth in Section
1.06 as the
Commencement
Date shall instead be defined as the
"TARGET COMMENCEMENT
DATE"; (b) the actual
Commencement Date shall be the date on which
the Landlord Work is Substantially
Complete (defined below); and (c) the Termination Date will
be the last day of
the Term as determined based upon the actual Commencement Date. Landlord's
failure to Substantially Complete the Landlord Work by the
Target
Commencement
Date shall not be a default by Landlord or
otherwise render
Landlord liable for
damages. Promptly after the determination
of the Commencement Date, Landlord and
Tenant shall enter into a commencement
letter agreement in
the form attached as
EXHIBIT D. If the Termination Date does not fall on the last day
of a calendar
month, Landlord and Tenant may elect to
adjust the Termination Date to the last
day of the calendar month in which Termination Date occurs by the mutual
execution of a commencement letter agreement setting forth such adjusted
date.
The Landlord Work shall be deemed to be
"SUBSTANTIALLY
COMPLETE" on the
date
that all Landlord Work has been performed, other than any details of
construction, mechanical adjustment or any other similar matter, the
non-completion of which does not materially
interfere with
Tenant's use of the
Premises. If Landlord is delayed in the
performance
of the Landlord Work
as a
result of the acts or omissions of Tenant,
the Tenant Related
Parties (defined
in Section 13) or their respective
contractors or
vendors, including,
without
limitation, changes requested by Tenant to
approved plans,
Tenant's failure to
comply with any of its obligations under
this Lease, or the specification of any
materials or equipment with long lead times (a "TENANT
DELAY"), the Landlord
Work shall be deemed to be Substantially Complete on the date that Landlord
could reasonably have been expected to
Substantially Complete
the Landlord Work
absent any Tenant Delay.
3.02 Subject to Landlord's obligation, if any, to perform Landlord
Work,
the Premises are accepted by Tenant in "as is"
condition and configuration
without any representations or warranties by
Landlord. By taking
possession of
the Premises, Tenant agrees that the
Premises are in good order and satisfactory
condition. Landlord shall not be liable for a
failure to deliver
possession of
the Premises or any other space due to
the holdover or unlawful possession of
such space by another party, however Landlord shall use reasonable
efforts to
obtain possession of the space.
The commencement date for the space, in such
event, shall be postponed until the date Landlord
delivers possession of the
Premises to Tenant free from occupancy by
any party. If Tenant takes possession
of the Premises before the Commencement Date, such possession shall be
subject
to the terms and conditions of this Lease and
Tenant shall pay Rent (defined in
Section 4.01) to Landlord for each day of
possession
before the
Commencement
Date. However, except for the cost of
services requested by Tenant (e.g. freight
elevator usage), Tenant shall not be required to pay Rent for any days of
possession before the Commencement
Date during which
Tenant, with the
approval
of Landlord, is in possession of the
Premises for the sole purpose of performing
improvements or installing furniture,
equipment or other personal property.
3.03 Notwithstanding anything to the contrary contained herein,
Landlord
and Tenant acknowledge and agree that the Premises shall
be tendered to Tenant
with certain furniture and equipment (the "FURNITURE") of the prior tenant
remaining in the Premises. Although Landlord shall permit Tenant to
utilize or
remove the Furniture, Landlord makes no representation or warranty as to the
ownership of the Furniture and Tenant shall utilize and/or dispose of the
Furniture at Tenant's sole risk.
Tenant agrees to
remove the Furniture from the
Premises on the earlier to occur of the
Termination
Date or the
termination of
this Lease or Tenant's right to possession
thereunder, at Tenant's sole cost and
expense, and to bear the costs of any
repairs or restoration
to the Premises
necessitated by such removal, provided that if Tenant leaves any
Furniture in
the Premises, Landlord shall have the right to remove and dispose of the
Furniture and Tenant shall reimburse Landlord for the cost of such
removal and
disposal and any repairs or restoration to the Premises necessitated by such
removal and disposal. Tenant shall
indemnify, defend and
hold Landlord harmless
from and against any
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and all claims, liabilities, damages or actions brought against
or incurred by
Landlord by any parties claiming to have
any interest in the Furniture.
4. RENT.
4.01 Tenant shall pay Landlord, without any setoff or deduction,
unless
expressly set forth in this Lease, all Base
Rent and Additional Rent due for the
Term (collectively referred to as "RENT"). "ADDITIONAL RENT" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord under this
Lease. Tenant shall pay and be liable for
all rental, sales and
use taxes (but
excluding income taxes), if any, imposed
upon or measured by Rent. Base Rent and
recurring monthly charges of Additional
Rent shall be due and payable in advance
on the first day of each calendar month
without notice or demand, provided that
the installment of Base Rent for the 3rd full
calendar month of the
Term, and
the first monthly installment of Additional Rent for
Expenses and Taxes,
shall
be payable upon the execution of this Lease by Tenant.
All other items of
Rent
shall be due and payable by Tenant on or before 30 days after billing by
Landlord. Rent shall be made payable to the entity,
and sent to the
address,
Landlord designates and shall be made by
good and sufficient
check or by other
means acceptable to Landlord. Tenant shall pay Landlord an
administration
fee
equal to 5% of all past due Rent,
provided that Tenant shall be entitled to a
grace period of 5 days for the first 2 late
payments of Rent in a calendar year.
In addition, past due Rent shall accrue
interest at 12% per
annum. Landlord's
acceptance of less than the correct amount
of Rent shall be considered a payment
on account of the earliest Rent due. Rent for any partial
month during the Term
shall be prorated. No endorsement or
statement on a check or letter accompanying
payment shall be considered an accord and
satisfaction. Tenant's covenant to pay
Rent is independent of every other covenant
in this Lease.
4.02
Tenant shall pay
Tenant's Pro Rata
Share of Taxes and Expenses in
accordance with EXHIBIT B of this
Lease.
5. COMPLIANCE
WITH LAWS; USE.
The Premises shall be
used for the Permitted
Use and for no other
use
whatsoever. Tenant shall comply with all
statutes, codes,
ordinances,
orders,
rules and regulations of any municipal or
governmental entity
whether in effect
now or later, including the Americans with Disabilities Act ("LAW(S)"),
regarding the operation of Tenant's business and the use, condition,
configuration and occupancy of the
Premises. In addition,
Tenant shall, at
its
sole cost and expense, promptly comply with any Laws that relate
to the "Base
Building" (defined below), but only to the
extent such obligations are triggered
by Tenant's use of the Premises, other than for general office use, or
Alterations or improvements in the Premises performed or requested by
Tenant.
"BASE BUILDING" shall include the structural portions of the Building, the
public restrooms and the Building
mechanical,
electrical and
plumbing systems
and equipment located in the internal core of the Building on the floor or
floors on which the Premises are located.
Tenant shall promptly provide Landlord
with copies of any notices it receives
regarding an alleged violation of Law.
Tenant shall comply with the rules and
regulations of the
Building attached
as
EXHIBIT E and such other reasonable rules and regulations adopted by Landlord
from time to time, including rules and regulations for the performance of
Alterations (defined in Section 9).
6. SECURITY
DEPOSIT.
The Security Deposit,
if any, shall be delivered to Landlord
upon the
execution of this Lease by Tenant and held
by Landlord without
liability for
interest (unless required by Law) as security for
the performance of
Tenant's
obligations. The Security Deposit is not an
advance payment of Rent or a measure
of damages. Landlord may use all or a
portion of the Security Deposit to satisfy
past due Rent or to cure any Default (defined in Section 18) by Tenant. If
Landlord uses any portion of the Security
Deposit, Tenant shall,
within 5 days
after demand, restore the Security Deposit to its original
amount. Landlord
shall return any unapplied portion of the Security
Deposit to Tenant
within 45
days after the later to occur of: (a)
determination
of the final Rent due
from
Tenant; or (b) the later to occur of the
Termination
Date or the date
Tenant
surrenders the Premises to Landlord in
compliance with
Section 25. Landlord may
assign the Security Deposit to a successor or
transferee
and, following the
assignment, Landlord shall have no further liability for the return of the
Security Deposit. Landlord shall not be required to
keep the Security
Deposit
separate from its other accounts.
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7. BUILDING
SERVICES.
7.01 Landlord shall
furnish Tenant with
the following
services: (a)
water for use in the Base Building lavatories; (b) customary heat and air
conditioning in season during Building Service Hours. Tenant shall have the
right to receive HVAC service during hours
other than Building
Service Hours by
paying Landlord's then standard charge for
additional HVAC service and providing
such prior notice as is reasonably specified by Landlord; (c) standard
janitorial service on Business Days; (d)
Elevator service;
(e) Electricity in
accordance with the terms and conditions in Section 7.02; and (f) such other
services as Landlord reasonably
determines are
necessary or appropriate for the
Property.
7.02 Electricity
used by Tenant in the
Premises shall,
at Landlord's
option, be paid for by Tenant either:
(a) through inclusion
in Expenses (except
as provided for excess usage); (b) by a separate charge payable by Tenant to
Landlord; or (c) by separate charge billed
by the applicable utility company and
payable directly by Tenant. Without the consent of
Landlord, Tenant's use of
electrical service shall not exceed,
either in voltage,
rated capacity, use
beyond Building Service Hours or overall load,
that which Landlord
reasonably
deems to be standard for the Building.
Landlord shall have
the right to measure
electrical usage by commonly accepted
methods. If it is determined that
Tenant
is using excess electricity, Tenant shall pay Landlord for the cost of such
excess electrical usage as Additional
Rent.
7.03
Landlord's failure to furnish, or any interruption, diminishment
or
termination of services due to the application of Laws, the failure of any
equipment, the performance of repairs,
improvements
or alterations, utility
interruptions or the occurrence of an event
of Force Majeure (defined in Section
26.03) (collectively a "SERVICE FAILURE") shall not render
Landlord liable to
Tenant, constitute a constructive eviction
of Tenant, give rise to an abatement
of Rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement. However, if the Premises, or a
material portion of the Premises, are
made untenantable for a period in excess of 3
consecutive
Business Days as a
result of a Service Failure that is
reasonably within the control of Landlord to
correct, then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the 4th
consecutive Business Day of the Service Failure and ending on the day the
service has been restored. If the entire Premises have not been rendered
untenantable by the Service Failure,
the amount of
abatement shall be equitably
prorated.
8. LEASEHOLD
IMPROVEMENTS.
All improvements
in and to the
Premises, including any Alterations
(collectively, "LEASEHOLD IMPROVEMENTS") shall remain upon
the Premises at the
end of the Term without compensation to Tenant.
Landlord, however, by written
notice to Tenant at least 30 days prior to
the Termination
Date, may require
Tenant, at its expense, to remove (a) any Cable
(defined in Section 9.01)
installed by or for the benefit of Tenant, and (b) any Landlord Work or
Alterations that, in Landlord's reasonable
judgment, are of a
nature that would
require removal and repair costs that are
materially
in excess of the
removal
and repair costs associated with standard office improvements (collectively
referred to as "REQUIRED REMOVABLES"). Required Removables shall include,
without limitation, internal stairways, raised floors, personal baths and
showers, vaults, rolling file systems and structural alterations and
modifications. The designated Required Removables shall be removed by Tenant
before the Termination Date. Tenant shall repair damage caused by the
installation or removal of Required
Removables.
If Tenant fails to
perform its
obligations in a timely manner, Landlord may perform such work at Tenant's
expense. Tenant, at the time it requests
approval for a proposed Alteration, may
request in writing that Landlord advise Tenant whether the Alteration or any
portion of the Alteration is a Required
Removable. Within 10
days after receipt
of Tenant's request, Landlord shall advise Tenant in writing as to which
portions of the Alteration are Required
Removables.
9. REPAIRS
AND ALTERATIONS.
9.01 Tenant shall
periodically
inspect the
Premises to identify
any
conditions that are dangerous or in need of
maintenance or repair.
Tenant shall
promptly provide Landlord with notice of any such
conditions. Tenant
shall, at
its sole cost and expense, perform all maintenance and repairs to the
Premises
that are not Landlord's express responsibility under this Lease, and keep the
Premises in good condition and repair, reasonable wear and tear excepted.
Tenant's repair and maintenance obligations
include, without limitation, repairs
to: (a) floor covering; (b) interior partitions; (c) doors; (d) the interior
side of demising walls; (e) electronic, phone and data cabling and related
equipment that is installed by or for the exclusive benefit of Tenant
(collectively, "CABLE"); (f) supplemental air conditioning units, kitchens,
including hot water heaters, plumbing, and similar facilities exclusively
serving Tenant;
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and (g) Alterations. To the extent Landlord is not reimbursed by insurance
proceeds, Tenant shall reimburse
Landlord for the cost
of repairing damage
to
the Building caused by the acts of Tenant,
Tenant Related Parties and their
respective contractors and vendors.
If Tenant fails to
make any repairs to the
Premises for more than 15 days after notice
from Landlord (although notice shall
not be required in an emergency), Landlord may make the repairs, and Tenant
shall pay the reasonable cost of the repairs, together with an administrative
charge in an amount equal to 10% of the
cost of the repairs.
9.02 Landlord
shall keep and
maintain in good repair and working order
and perform maintenance upon the: (a)
structural elements of
the Building; (b)
mechanical (including HVAC), electrical, plumbing and fire/life safety
systems
serving the Building in general; (c) Common
Areas; (d) roof of the Building; (e)
exterior windows of the Building; and (f) elevators serving the Building.
Landlord shall promptly make repairs for
which Landlord is responsible.
9.03
Tenant shall not make alterations, repairs, additions or
improvements or install any Cable
(collectively
referred to as
"ALTERATIONS")
without first obtaining the written consent
of Landlord in each instance, which
consent shall not be unreasonably withheld or delayed. However, Landlord's
consent shall not be required for any Alteration that satisfies all of the
following criteria (a "COSMETIC
ALTERATION"):
(a) is of a cosmetic
nature such
as painting, wallpapering, hanging pictures
and installing carpeting; (b) is not
visible from the exterior of the Premises or
Building; (c) will not
affect the
Base Building; and (d) does not require
work to be performed inside the walls or
above the ceiling of the Premises.
Cosmetic Alterations
shall be subject to all
the other provisions of this Section 9.03.
Prior to starting work, Tenant shall
furnish Landlord with plans and
specifications; names
of contractors reasonably
acceptable to Landlord (provided that Landlord may designate specific
contractors with respect to Base Building); required permits and approvals;
evidence of contractor's and subcontractor's insurance in amounts reasonably
required by Landlord and naming Landlord as an additional insured; and any
security for performance in amounts
reasonably required by Landlord. Changes to
the plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and
workmanlike
manner
using materials of a quality reasonably approved by Landlord. Tenant shall
reimburse Landlord for any sums paid by
Landlord for third party examination of
Tenant's plans for non-Cosmetic Alterations. In addition, Tenant shall pay
Landlord a fee for Landlord's oversight and coordination of any non-Cosmetic
Alterations equal to 10% of the cost of the
Alterations. Upon completion, Tenant
shall furnish "as-built" plans for non-Cosmetic Alterations, completion
affidavits and full and final waivers of lien. Landlord's approval of an
Alteration shall not be deemed a
representation by
Landlord that the Alteration
complies with Law.
10. ENTRY BY
LANDLORD.
Landlord may enter the
Premises to inspect,
show or clean the Premises
or to perform or facilitate the performance
of repairs, alterations or additions
to the Premises or any portion of the
Building. Except in emergencies or to
provide Building services, Landlord shall provide Tenant with
reasonable prior
verbal notice of entry and shall use reasonable efforts to minimize any
interference with Tenant's use of the Premises. If reasonably necessary,
Landlord may temporarily close all or a portion
of the Premises to perform
repairs, alterations and additions.
However, except in emergencies,
Landlord
will not close the Premises if the work can
reasonably be
completed on weekends
and after Building Service Hours. Entry by Landlord shall not constitute a
constructive eviction or entitle Tenant to
an abatement or reduction of Rent.
11. ASSIGNMENT AND
SUBLETTING.
11.01 Except in connection with a Permitted Transfer (defined in
Section
11.04), Tenant shall not assign, sublease,
transfer or encumber
any interest in
this Lease or allow any third party to use any portion of the Premises
(collectively or individually, a "TRANSFER") without the prior written
consent
of Landlord, which consent shall not be
unreasonably withheld,
conditioned or
delayed if Landlord does not exercise its
recapture rights under
Section 11.02.
If the entity which controls the voting
shares/rights
of Tenant changes at
any
time, such change of ownership or
control shall
constitute a Transfer
unless
Tenant is an entity whose outstanding stock
is listed on a recognized securities
exchange or if at least 80% of its voting
stock is owned by another entity, the
voting stock of which is so listed.
Any attempted Transfer
in violation of this
Section is voidable by Landlord. In no event shall any Transfer, including a
Permitted Transfer, release or relieve Tenant from any
obligation
under this
Lease.
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11.02 Tenant shall provide Landlord with financial statements for the
proposed transferee, a fully executed copy
of the proposed assignment, sublease
or other Transfer documentation and such other information as Landlord may
reasonably request. Within 15 Business Days after receipt of the required
information and documentation, Landlord shall either: (a) consent to the
Transfer by execution of a consent
agreement in a form reasonably designated by
Landlord; (b) reasonably refuse to consent
to the Transfer in writing; or (c) in
the event of an assignment of this Lease or subletting of
more than 20% of the
Rentable Area of the Premises for more than
50% of the remaining Term (excluding
unexercised options), recapture the portion of the Premises that Tenant is
proposing to Transfer. If Landlord
exercises its right to recapture, this Lease
shall automatically be amended (or terminated if the
entire Premises is
being
assigned or sublet) to delete the
applicable portion of
the Premises
effective
on the proposed effective date of the Transfer. Tenant shall pay Landlord a
review fee of $1,500.00 for Landlord's review of any Permitted Transfer or
requested Transfer.
11.03 Tenant shall pay Landlord 50% of all rent and other
consideration
which Tenant receives as a result of a Transfer
that is in excess of
the Rent
payable to Landlord for the portion of the Premises and Term covered by the
Transfer. Tenant shall pay Landlord for
Landlord's share of the excess within 30
days after Tenant's receipt of the excess.
Tenant may deduct from the excess, on
a straight-line basis, all reasonable and
customary expenses
directly incurred
by Tenant attributable to the Transfer.
If Tenant is in
Default, Landlord
may
require that all sublease payments be made directly to
Landlord, in which
case
Tenant shall receive a credit against Rent in the amount of
Tenant's share of
payments received by Landlord.
11.04 Tenant may assign this Lease to a successor to Tenant by
purchase,
merger, consolidation or reorganization
(an "OWNERSHIP
CHANGE") or assign this
Lease or sublet all or a portion of the
Premises to an Affiliate without the
consent of Landlord, provided that all of
the following conditions are satisfied
(a "PERMITTED TRANSFER"): (a) Tenant is not in Default; (b)
in the event of an
Ownership Change, Tenant's successor shall own substantially
all of the assets
of Tenant and have a net worth which is at
least equal to Tenant's net worth as
of the day prior to the proposed
Ownership Change; (c) the Permitted Use does
not allow the Premises to be used for
retail purposes; and (d) Tenant shall give
Landlord written notice at least 15
Business Days prior to the effective date of
the Permitted Transfer. Tenant's notice to Landlord shall
include
information
and documentation evidencing the Permitted
Transfer and showing that each of the
above conditions has been satisfied. If requested by Landlord, Tenant's
successor shall sign a commercially
reasonable
form of assumption
agreement.
"AFFILIATE" shall mean an entity controlled by, controlling or under common
control with Tenant.
12. LIENS.
Tenant shall not permit mechanics' or other liens to be
placed upon the
Property, Premises or Tenant's leasehold
interest in connection with any work or
service done or purportedly done by or for the benefit of Tenant or its
transferees. Tenant shall give Landlord notice at least 15 days prior to
the
commencement of any work in the Premises to
afford Landlord
the opportunity,
where applicable, to post and record notices of non-responsibility. Tenant,
within 10 days of notice from Landlord, shall fully discharge any lien by
settlement, by bonding or by insuring over the
lien in the manner prescribed by
the applicable lien Law. If Tenant fails to do
so, Landlord may bond,
insure
over or otherwise discharge the lien. Tenant shall reimburse
Landlord for any
amount paid by Landlord, including, without limitation, reasonable attorneys'
fees.
13. INDEMNITY AND
WAIVER OF CLAIMS.
Tenant hereby waives
all claims against and
releases Landlord and
its
trustees, members, principals, beneficiaries, partners, officers, directors,
employees, Mortgagees (defined in Section 23)
and agents (the "LANDLORD RELATED
PARTIES") from all claims for any injury to or death of persons, damage to
property or business loss in any manner
related to (a) Force
Majeure, (b) acts
of third parties, (c) the bursting or leaking of any
tank, water closet,
drain
or other pipe, (d) the inadequacy or
failure of any security services, personnel
or equipment, or (e) any matter not within the
reasonable control of
Landlord.
Except to the extent caused by the
negligence or willful
misconduct of Landlord
or any Landlord Related Parties, Tenant shall indemnify, defend and hold
Landlord and Landlord Related Parties
harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges
and expenses,
including, without limitation, reasonable
attorneys' fees and other professional
fees (if and to the extent permitted by Law) (collectively referred to as
"LOSSES"), which may be imposed upon,
incurred by or
asserted against Landlord
or any of the Landlord Related Parties by any third party
and arising out of or
in connection with any damage or injury
occurring in the
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Premises or any acts or omissions
(including
violations of Law) of
Tenant, the
Tenant Related Parties or any of Tenant's
transferees, contractors or licensees.
Except to the extent caused by the
negligence or willful misconduct of Tenant or
any Tenant Related Parties, Landlord shall indemnify, defend and hold Tenant,
its trustees, members, principals,
beneficiaries, partners, officers, directors,
employees and agents ("TENANT RELATED PARTIES") harmless against and from all
Losses which may be imposed upon,
incurred by or
asserted against Tenant or any
of the Tenant Related Parties by any third party and arising out of or in
connection with the acts or omissions
(including violations
of Law) of Landlord
or the Landlord Related Parties.
14. INSURANCE.
Tenant shall maintain the following insurance ("TENANT'S INSURANCE"):
(a) Commercial General Liability Insurance applicable to the Premises and
its
appurtenances providing, on an occurrence
basis, a minimum combined single limit
of $2,000,000.00; (b) Property/Business
Interruption Insurance written on an All
Risk or Special Perils form, with coverage
for broad form water damage including
earthquake sprinkler leakage, at replacement cost value and with
a replacement
cost endorsement covering all of Tenant's business and trade fixtures,
equipment, movable partitions, furniture, merchandise and other personal
property within the Premises ("TENANT'S PROPERTY") and any Leasehold
Improvements performed by or for the benefit of Tenant; (c) Workers'
Compensation Insurance in amounts required by
Law; and (d) Employers
Liability
Coverage of at least $1,000,000.00 per
occurrence. Any
company writing Tenant's
Insurance shall have an A.M. Best rating of
not less than A-VIII. All Commercial
General Liability Insurance policies shall name as
additional insureds Landlord
(or its successors and assignees), the managing agent for the
Building (or any
successor), EOP Operating Limited Partnership, Equity Office Properties Trust
and their respective members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and other designees of Landlord and its
successors as the interest of such designees shall appear. All policies of
Tenant's Insurance shall contain
endorsements
that the insurer(s)
shall give
Landlord and its designees at least 30 days' advance written notice of any
cancellation, termination, material change or lapse of
insurance. Tenant shall
provide Landlord with a certificate of
insurance evidencing
Tenant's Insurance
prior to the earlier to occur of the
Commencement
Date or the date
Tenant is
provided with possession of the Premises,
and thereafter as
necessary to assure
that Landlord always has current
certificates
evidencing Tenant's Insurance. So
long as the same is available at
commercially
reasonable rates,
Landlord shall
maintain so called All Risk property insurance on the Building at
replacement
cost value as reasonably estimated by
Landlord.
15. SUBROGATION.
Landlord and
Tenant hereby waive and shall cause their respective
insurance carriers to waive any and all
rights of recovery,
claims, actions or
causes of action against the other for any loss or damage with respect to
Tenant's Property, Leasehold Improvements, the Building, the Premises, or
any
contents thereof, including rights, claims, actions and causes of
action based
on negligence, which loss or damage is (or would
have been, had the
insurance
required by this Lease been carried)
covered by insurance.
16. CASUALTY
DAMAGE.
16.01 If all or any
portion of the Premises becomes untenantable by fire
or other casualty to the Premises
(collectively a
"CASUALTY"), Landlord,
with
reasonable promptness, shall cause a general contractor
selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of time
required using standard working methods to
Substantially Complete the repair and
restoration of the premises and any common
areas necessary TO
provide access to
the Premises ("COMPLETION ESTIMATE").
If the Completion
Estimate indicates that
the Premises or any Common Areas
necessary to provide access to the Premises
cannot be made tenantable within 210 days from the date the
repair is started,
then either party shall have the right to
terminate this Lease upon written
notice to the other within 10 days after receipt of the Completion Estimate.
Tenant, however, shall not have the right to terminate this Lease if the
Casualty was caused by the negligence or
intentional misconduct of Tenant or any
Tenant Related Parties. In addition, Landlord, by notice to Tenant within 90
days after the date of the Casualty, shall have the right to
terminate this
Lease if: (1) the Premises have been
materially damaged and there is less than 2
years of the Term remaining on the date of the Casualty; (2) any Mortgagee
requires that the insurance proceeds be applied to the payment
of the mortgage
debt; or (3) a material uninsured loss to
the Building occurs.
16.02 If this Lease is
not terminated,
Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable
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control, restore the Premises and Common
Areas. Such
restoration
shall be to
substantially the same c
