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Exhibit 10.15
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Two Willow Street
Southborough, Massachusetts
LEASE dated January 28, 2000
ARTICLE I
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REFERENCE DATA
1.1 Subjects referred to:
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Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1:
Building: The building located on the Lot, as defined below, commonly known as
Two Willow Street, Southborough, Massachusetts
Landlord: Firmin Joint Venture LLC
a Massachusetts Limited Liability Company
Original Address of Landlord: c/o Richard B. Strehlke
Natick Office Park
209 West Central Street
Natick, Massachusetts 01760
Landlord's Construction Representatives: Richard B. Strehlke and
Douglas S. Brodie
Tenant: RTS Software, Inc., a Delaware corporation
Original Address of Tenant: Reservoir Place
1601 Trapelo Road
Waltham, MA 02451
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Tenant's Construction Representative: Michelle Daley
Tenant's Space: Area located on the entire right side and left front portion
of the first floor of the Building as shown on Exhibit A
Rentable Floor Area of Tenant's Space: approximately 13,807 square feet.
Total Rentable Floor Area of the Building: Approximately 40,000 square feet
Term: Five (5) Lease Years
Scheduled Term Commencement Date: May 1, 2000
Term Commencement Date: The Scheduled Term Commencement Date, or such other
date determined in accordance with Section 3.2.
Annual Fixed Rent Rate: $331,368 payable in equal monthly installments on the
first day of each month in the amount of $27,614.
Lease Year: Lease Year shall mean the twelve (12) month period immediately
following the Term Commencement Date. If the Term Commencement Date
shall occur on a day other than the first day of a calendar month,
then the first Lease Year of the Term shall include the partial
month immediately following the Term Commencement Date.
CPI shall mean "Consumer Price Index for All Urban Consumers (CPI-U), Boston,
Massachusetts All Items- (1982-1984=100) as published by the United States
Bureau of Labor Statistics"
Base Year for Operating Cost Escalation: See Section 4.2
Permitted Uses: General office use
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Public Liability Insurance Bodily Injury: $1,000,000 each person; $3,000,000
each accident
Property Damage: $500,000 each accident
Boiler Insurance: $100,000
Security Deposit: $ 27,614
1.2 Exhibits
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The exhibits listed below in this section are incorporated in the Lease by
reference and are to be construed as part of this Lease:
Exhibit A - Plan Showing Tenant's Space
Exhibit B - Tenant's Preliminary Plans
Exhibit C - Landlord's Services
Exhibit D - List of Drawings and Specifications for
Basic Building.- Intentionally Omitted
Exhibit E - Rules and Regulations.
Exhibit F - Description of Lot.
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ARTICLE II
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PREMISES AND TERM
2.1 Premises
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Landlord hereby leases to Tenant, subject to and with the benefit of the
provisions of this Lease, Tenant's Space in the Building. Tenant's space shall
exclude exterior faces of exterior walls, the common stairways, stairwells,
elevators and elevator wells, and pipes, ducts, conduits, wires and appurtenant
fixtures serving exclusively or in common other parts of the Building. If
Tenant's Space includes less than the entire rentable area of any floor then
Tenant's Space shall include a proportionate share of the central core area of
such floor based on the Rentable Floor Area of Tenant's Space as compared to the
Rentable Floor Area of other space on such floor. Tenant's Space is hereinafter
sometimes referred to as "the Premises" and is shown or described on Exhibit A.
2.2 Common Facilities
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Tenant shall have, as appurtenant to the Premises, rights to use in common
with others entitled thereto, subject to reasonable rules of general
applicability to tenants of the Building from time to time made by Landlord of
which Tenant is given notice: (a) the common facilities, common walkways,
driveways, lobbies, hallways, ramps, stairways, elevators, the parking area and
all other interior and exterior common areas which are part of the Building or
the Lot or which are appurtenant thereto; (b) the common pipes, ducts, conduits,
wires and appurtenant equipment serving the Premises; and (c) if the Premises
include less than the entire rentable area of any floor, the common toilets and
other common facilities in the central core area of such floor (collectively,
the "Common Areas")..
2.3 Landlord's Reservations
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Landlord reserves the right from time to time without unreasonable
interference with Tenant's use: (a) to install, repair, replace, use, maintain
and relocate for service to the Premises and to other parts of the Building,
pipes, ducts, conduits, wires and appurtenant fixtures wherever located in the
Building, and (b) to alter or relocate any other common facility, provided that
the substitutions are substantially
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equivalent or better. Installations, replacements and relocations referred to in
this Section 2.3 shall be located to the extent possible in the central core
area, above ceiling surfaces, below floor surfaces or within the perimeter walls
of the premises.
2.4 Term
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To have and to hold for a period commencing on the Term Commencement Date
determined in accordance with Section 3.2, and continuing for the Term unless
sooner terminated as provided in Section 3.2, 7.1 or Article IX. Each party on
the request of the other shall execute and deliver to the other an agreement
setting forth the Term Commencement Date, the expiration of the Term of the
Lease, and the dates on which Tenant's notice(s) of extension shall be given.
ARTICLE III
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3.1 Initial Construction
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It is acknowledged that Landlord's architects have prepared preliminary
line drawings and a brief specification showing the location of partitions,
doors, lighting, switches and electrical outlets ("Tenant's Preliminary Plans")
which are attached hereto as Exhibit B Tenant's Preliminary Plans shall become
the basis for the development of Tenant's Final Plans.
Within fifteen (15) business days after execution of the Lease, Landlord,
at Landlord's expense shall prepare and deliver to Tenant two complete sets of
construction drawings and specifications based upon Tenant's Preliminary Plans
("Tenant's Final Plans"). Tenant shall be responsible for any further
engineering, design or construction costs ("TIW Excess Costs") incurred by
Landlord as a result of any redesign or modification made to Tenant's Final
Plans as requested by Tenant. With the delivery of any revised Tenant's Final
Plans, Landlord shall deliver to Tenant an estimate of the TIW Excess Costs.
Landlord, at Landlord's expense exclusive of TIW Excess Costs , shall cause
its contractor to perform in the Premises and complete ready for Tenant's
occupancy all work shown on Tenant's Final Plans ("Landlord's Work"). De
minimis changes to Tenant's Final Plans due to site conditions may be
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made without Tenant's consent. Otherwise, all changes to Tenant's Final Plans
shall be subject to Tenant's approval, which approval shall not be unreasonably
withheld or delayed. The TIW Excess Costs shown on revised Tenant's Final Plans
shall be borne by Tenant and paid to Landlord upon completion of Landlord's
Work. All of Tenant's installation of furnishings shall be coordinated with any
work being performed by Landlord and in such manner as to maintain harmonious
labor relations and not damage the Building or Lot or interfere with Building
operations.
Space planning services and architectural and engineering services
required for preparation of Tenant's Final Plans and construction drawings and
specifications and any changes therein shall be performed by Landlord's
architects and engineers and the costs thereof paid by Landlord All of
Landlord's Work shall be part of the Building. Any revisions to Tenant's Final
Plans not otherwise shown on Tenant's Final Plans shall be made at the expense
of Tenant.
Notwithstanding the foregoing to the contrary, Landlord shall contribute
up to a maximum of Two Thousand Five Hundred ( $2500) Dollars to be applied
toward an upgrade to the Building Standard floorcovering/carpet.
3.2 Preparation of Premises for Occupancy
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Landlord agrees to use reasonable efforts to have the Term Commencement
Date occur on or before the Scheduled Term Commencement Date. The Term
Commencement Date shall be the date on which all of the following conditions
(the "Delivery Conditions") shall have been satisfied: (i) the Premises have
been completed in accordance with Tenant's Final Plans and a Certificate of
Occupancy has been issued for the Premises (ii) all Building entrances and lobby
areas have been completed with all lighting, painting and carpeting installed,
(iii) all common facilities for access and service to the Premises including,
without limitation, all elevators, loading facilities and parking areas having
been paved and striped and have been fully completed in accordance with Tenant's
Final Plans and all applicable laws, (iv) the Building and Premises, including
the Building exits, bathrooms and fire alarms are delivered in compliance with
federal, state and local laws, codes, rules and regulations including the
Americans with Disabilities Act then in effect at the time of the Term
Commencement Date ("Laws") as such relate to the structure of the Building
except for minor items of work and mechanical adjustment of
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equipment or items ("punchlist items") which because of season or weather or
nature of the item cannot practically be done at the time and are not necessary
to make the Premises reasonably tenantable for the Permitted Uses, or are not
completed due to delays caused by requests made by Tenant for further changes to
Tenant's Final Plans. If Tenant elects to occupy the Premises (for purposes
other than preparing the Premises for occupancy) prior to the satisfaction of
all of the Delivery Conditions, then the date of occupancy shall be the Term
Commencement Date.
Landlord shall complete as soon as conditions practically permit all items
and work excepted above and Tenant shall not use the Premises in such manner as
to increase the cost of completion. Any so-called punchlist items shall be
completed by Landlord within forty-five (45) days following the Term
Commencement Date. Landlord shall permit Tenant access for installing equipment
and furnishings in the Premises prior to the Term Commencement Date when and if
it can be done without material interference with remaining work.
3.3 Tenant Changes and Additions
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Tenant may not make structural or nonstructural changes and additions to
the Premises without the prior written consent and approval of the Landlord.
Tenant shall submit plans and specifications showing the requested changes or
additions, which plans and specifications shall be first approved by Landlord.
Landlord will not approve any such changes or additions if they will require
unusual expense to readapt the Premises to normal office use on lease
termination or will increase the cost of insurance or taxes on the Building or
of Landlord's services called for by Section 5.1, unless Tenant is willing to
bear such cost increase. All such changes and additions shall become part of
the Building except for Tenant's trade fixtures, business equipment and business
furnishings. All of Tenant's changes and additions and installation of
furnishings shall be coordinated with any work being performed by Landlord and
in such a manner as to maintain harmonious labor relations and not to damage the
Building or Lot or interfere with Building operation and, except for
installation of furnishings, shall be performed by a reputable licensed general
contractor., If Landlord's contractor is not used then the identity of the
contractor performing the approved work shall be subject to the reasonable
consent of Landlord, which shall not be delayed more than ten (10) business
days. Before Tenant's work is started and whether or not Landlord's consent
is required, Tenant shall secure all licenses and permits necessary therefor;
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deliver to Landlord a statement of the names of all its contractors and
subcontractors and the estimated cost of all labor and material to be furnished
by them and cause each contractor to carry workmen's compensation insurance in
statutory amounts covering all of their employees and comprehensive public
liability insurance with such limits reasonably satisfactory to Landlord (all
such insurance to be written insuring Landlord and Tenant as well as the
contractors), and to deliver to Landlord certificates of all such insurance.
Tenant agrees to pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agent, employees, or independent contractors, and not to
cause or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Premises and to discharge any such liens
which may so attach.
3.4 General Provisions Applicable to Construction
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All construction work required or permitted by this Lease, whether by
Landlord or by Tenant, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all lawful ordinances, regulations and
orders of governmental authority and insurers of the Building. Either party may
inspect the work of the other at reasonable times, and shall promptly give
notice of observed defects. Landlord's obligations under Section 3.1 shall be
deemed to have been performed when Tenant commences to occupy the Premises for
the Permitted Uses except for (i)latent defects, (ii) incomplete items, and
(iii) items not conforming with the requirements of Section 3.1 which Tenant
has given notice to Landlord within 30 days after the Term Commencement Date.
With respect to the heating, ventilation and air conditioning system, the 30-
day period shall begin with the commencement of the respective heating or air
conditioning season. Landlord's obligations for completion of Landlord's Work
shall be deemed to have been completed when the Delivery Conditions have
occurred except for (A) Landlord's obligation to correct latent defects which
shall continue until the later of one (1) year from the Term Commencement Date
or the time of expiration of Landlord's right to enforce warranty rights
against the General Contractor with respect to any particular defect and (B)
Landlord's obligation to complete so called punchlist items as soon as
practical.
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3.5 Construction Representatives
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In connection with the original design and construction, each party
authorizes the other to rely upon approval and other actions on the party's
behalf by any Construction Representative of the party named in Article I above
or any person hereafter designated in substitution or addition by notice to the
party relying.
ARTICLE IV
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RENT
4.1 The Fixed Rent
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Tenant agrees to pay, without any offset or deduction whatever except as
made in accordance with the provisions of this Lease, commencing on the Term
Commencement Date, fixed rent to Landlord, at the Annual Fixed Rent Rate, in
equal installments of 1/12th of the Annual Fixed Rent Rate in advance on the
first day of each calendar month included in the Term; and for any portion of a
calendar month at the beginning or end of the Term, proportionately at that rate
payable in advance for such portion.
4.2 Operating Expenses Including Real Estate Taxes
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Commencing on January 1, 2001, Tenant shall pay to Landlord as additional
rent, Tenant's Proportionate Share of the excess (the "Operating Expenses
Excess"), if any, of Landlord's Operating Expenses as defined below in this
Section 4.2 over Landlord's Operating Expenses for the Base Year. The Base Year
for the purposes of this Section 4.2 shall be calendar year 2000. If the
Building is not at least 90% occupied during the entire Base Year or if Landlord
is not supplying services to at least 90% of the Total Rentable Floor Area of
the Building at any time during the Base Year, Operating Expenses for the Base
Year shall be determined as if the Building had been 90% occupied and Landlord
had been supplying services to at least 90% of the Total Rentable Floor Area of
the Building.
Not later than 90 days after the end of each calendar year during the Term
and not later than 90 days after Lease termination, Landlord shall render to
Tenant an unaudited statement in reasonable detail
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and according to generally accepted accounting principles showing the actual
Operating Expenses incurred in the operation of the Building during the
preceding year. For purposes of this Lease, Operating Expenses shall include
such competitively priced fringe benefits as are customarily paid to third
parties providing similar services in the vicinity of the Building, workmen's
compensation insurance premiums and payroll taxes paid by Landlord to, for or
with respect to all persons engaged on-site in the operation, maintenance, or
cleaning of the Building or Lot provided that Operating Expenses shall only
include the share of personnel expenses allocable to the time such individuals
are actually performing their duties at the Building; steam, water, sewer,
electric, gas and telephone charges supplied to common areas; costs of building
and cleaning supplies and equipment, cost of maintenance, cleaning and repairs
(other than repairs not properly chargeable against income or for which Landlord
has received reimbursement from contractors under guaranties); cost of snow
removal and care of landscaping; payments under service contracts with
independent contractors; commercially reasonable management fees; and all other
reasonable and necessary expenses paid in connection with the operation,
cleaning, and maintenance of the Building and Lot and properly chargeable
against income. The manager of the Building shall not be required to carry
errors and omissions insurance. In no event shall Tenant's share of Operating
Expenses include: the cost of initial construction of, or of any additions or
expansions to, the Building or the common area, or any other item which under
generally accepted accounting principles is properly classified as a capital
expenditure; the cost of correcting defects in the original construction of the
Building, reserves for future expenditures not yet incurred; costs attributable
to repairing items that are covered by warranties; any charges for depreciation
of the Building or otherwise; services billed directly to tenants., charges for
which Landlord receives or is entitled to receive reimbursement from insurance
proceeds or from another third party; any judgment, settlement or arbitration
award resulting from any tort liability; principal, interest and other charges
payable in connection with any debt; negotiations or disputes with tenants or
prospective tenants; payments to subsidiaries or affiliates of Landlord for
services rendered to the Building to the extent such amounts exceed competitive
costs therefor if not provided by such related parties; efforts to lease
portions of the Building or to secure new tenants for the Building including
advertising expenses, leasing fees or commissions, attorneys' fees and other
professional fees; environmental remediation and compliance excluding testing or
other activities required routinely or as required by law for a nonhazardous
event, any breach or violation of law, lease or other obligation by Landlord or
Landlord's
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employees, agents or contractors, including fines, penalties and attorneys'
fees: and improvements, alterations and repairs and replacements necessary to
bring the Building into compliance with laws existing as of the Term
Commencement Date, including the Americans with Disabilities Act of 1990 ( 42USC
12101, et seq., as amended from time to time) as it relates to the structure of
the Building (it being understood that all issues of compliance which relate to
Tenant's specific use of the Premises are the sole responsibility and expense of
Tenant) Landlord agrees to maintain all Common Areas in good order, condition
and repair and in a safe, clean and sanitary condition in accordance with good
and accepted first-class office building practices.
In addition, commencing on the first day after the Tax Base Year, Tenant
shall pay to Landlord Tenant's Proportionate Share of any increases in Real
Estate Taxes incurred over and above those Real Estate Taxes assessed in the
Tax Base Year ("Tax Excess"). For purposes of this Lease, Tax Base Year shall
be those taxes assessed in the later of tax fiscal year 2000 (e.g. July 1, 1999
- June 30, 2000) or the first tax fiscal year in which the Building is fully
assessed as a completed improvement.
Real Estate Taxes shall include real estate taxes and other taxes, levies,
and assessments imposed upon the Building and the Lot and upon any personal
property of Landlord used in the operation thereof, or Landlord's interest in
the Building, fees and assessments for transit, housing, police, fire, or other
governmental services which benefit the Building, service or user payments in
lieu of taxes, and any and all other taxes, levies, betterments, assessments and
charges arising from the ownership, leasing, operation, or use of the Building
which are or shall be imposed by National, State, or Municipal or other
authorities.
In the event any special assessments are assessed and payable, Tenant's
Proportionate Share of same shall be calculated as if such assessments were
being paid by Landlord over the longest period of time permitted by applicable
law. In no event shall Tenant be responsible to pay any rent, taxes, gross
receipt taxes, franchise taxes, capital stock taxes, inheritance, estate,
succession, transfer, gift or other tax, which is measured in any manner by the
income or profit of Landlord or any portion of any special assessment first
assessed prior to the Term Commencement Date.
For purposes of this Lease, Tenant's Proportionate Share shall be the fraction,
expressed as a percent, the numerator of which shall be the Rentable Floor Area
of Tenant's Space and the denominator of which shall be the Total Rentable
Floor Area of the Building. Initially Tenant's Proportionate Share is 34.6
percent.
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4.3 Lot
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"Lot" means all, and also any parts of, the land described in Exhibit F
plus any addition thereto resulting from the change of any abutting street line.
Landlord represents and warrants that the Lot is a separate taxable parcel and
that the Building is the only building located on the Lot.
4.4 Accounting
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Landlord shall have the right from time to time to change the periods of
accounting under Section 4.2 to any twelve (12) months period other than a
calendar year, and upon any such change, all items referred to in said Section
4.2 shall be appropriately apportioned. In all statements rendered under
Section 4.2 amounts for periods partially within and partially without the
accounting periods shall be appropriately apportioned; and any items which are
not determinable at the time of a statement shall be included therein on the
basis of Landlord's cost for such items in the prior period and with respect
thereto Landlord shall render promptly after determination a supplemental
statement and appropriate adjustment shall be made according thereto. In the
event of any deficiency, Tenant shall pay same within thirty (30) days after
receipt of Landlord's invoice. In the event of any overpayment by Tenant,
Tenant shall have the right to credit such overpayment against installments of
rent next becoming due or a refund if at the end of the Term. All statements
shall be prepared on an accrual basis of accounting.
4.5 Payment of Additional Rent
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Except as otherwise specifically provided herein any sum, amount, item or
charge designated or considered as additional rent in this Lease shall be paid
by Tenant to Landlord on the first day of the month following the date on which
Landlord notifies Tenant of the amount payable, or on the fifteenth day after
the giving of such notice, whichever shall be later. Any such notice shall
specify in reasonable detail the basis of such additional rent. On the first
day of each month following that month in which notice of additional rent is
given, Tenant shall pay to Landlord one-twelfth (1/12) of the amount of
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additional rent which shall be payable by the Tenant for the then current year
based on actual cost experience for the prior period.
ARTICLE V
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LANDLORD'S COVENANTS; RE INTERRUPTIONS AND
DELAYS, SERVICES, REPAIRS, QUIET ENJOYMENT
5.1 Landlord's Covenants
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Landlord covenants:
5.1.1 to furnish, through Landlord's employees or independent contractors,
the services listed in Exhibit C.
5.1.2 to furnish, through Landlord's employees or independent contractors,
reasonable additional building operation services upon reasonable advance
request of Tenant at equitable rates from time to time established by
Landlord to be paid by Tenant.
5.1.3 except as otherwise provided in Article VII, to keep, maintain and
repair and replace, as required, the roof, exterior walls and glass, floor
slabs and all structural components of the Building, and all HVAC,
electrical and other mechanical systems, plumbing and utility lines that do
not serve the Premises exclusively, whether located within or outside of
the Premises, and Common Areas and facilities of the Building as may be
necessary to keep them in first class condition.
5.1.4 that Landlord has the right to make this Lease and that Tenant on
paying the rent and performing its obligations in this Lease shall
peacefully and quietly have, hold and enjoy the Premises throughout the
term, subject to all terms and provisions hereof without any interruption
or disturbance from Landlord or those claiming by, through or under
Landlord.
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5.1.5 to carry throughout the term of this Lease a policy of insurance on
the Building, its furniture, fixtures and other equipment insuring against
all risks of physical loss or damage under an All Risk coverage endorsement
in an amount at least equal to the full replacement value of the property
insured with an agreed amount endorsement sufficient to satisfy co-
insurance requirements.
5.1.6 to provide electricity, heating, ventilation, air conditioning,
security, building access and elevator services and other building services
during normal Building hours which shall be from 6:30 a.m. to 8:00 p.m.
Monday through Friday, necessary for the use and enjoyment of the Premises
by Tenant There shall be 24 hour per day, 7 day per week card access to the
Building and key access to the Premises. Janitorial services will not be
provided on Saturdays. Services requested by Tenant in excess of those
provided during normal Building hours shall be paid for by Tenant.
5.2 Interruptions
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Landlord shall not be liable to Tenant for any compensation or reduction of
rent by reason of inconvenience or annoyance or for loss of business arising
from power losses and shortages, the necessity of Landlord's entering the
Premises for any of the purposes in this Lease authorized or for repairing the
premises or any portion of the Building or Lot however the necessity may occur
(collectively "Interruption") provided that Landlord uses reasonable efforts not
to interfere unreasonably with Tenant's occupancy of the Premises. In case
Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any services or performing any other covenant or
duty to be performed on Landlord's part, by reason of any cause reasonable
beyond Landlord's control including without limitation the causes set forth in
Section 13.15 hereof as being reasonable beyond Landlord's control, Landlord
shall not be liable to Tenant therefor, nor, except as expressly otherwise
provided in Section 7.1, shall Tenant be entitled to any abatement or reduction
of rent by reason thereof, nor shall the same given rise to a claim in Tenant's
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Premises.
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Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed, provided, however, that in each instance of stoppage, Landlord
shall exercise reasonable diligence to eliminate the cause thereof. Except in
case of emergency repairs, Landlord will give Tenant reasonable advance notice
of any contemplated stoppage and will use reasonable efforts to avoid
unnecessary inconvenience to Tenant by reason thereof.
ARTICLE VI
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TENANT'S COVENANTS
6.1 Tenant's Covenants
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Tenant covenants during the Term and such further time as Tenant occupies
any part of the Premises:
6.1.1 to pay when due all fixed rent and additional rent, all taxes which
may be imposed on Tenant's personal property on the Premises (including
without limitation, Tenant's fixtures and equipment) regardless to whomever
assessed and all charges or public utilities for telephone and service
inspections therefor, all charges by public utilities for installation of
metering devices at the Premises and all charges of Landlord for services
rendered pursuant to Section 6.1.5. It shall be Tenant's responsibility to
pay for its own electrical usage in the Premises for lighting and plugs
initially estimated at $.80 per year per square foot. In no event shall
Tenant pay more to Landlord for utility service than Tenant would pay to
the utility company providing such service if Tenant were directly and
separately metered by the utility company.
6.1.2 except as otherwise provided in Article VII and Section 5 hereof, to
keep the Premises in as good order, repair and condition as exists on the
Commencement Date, reasonable wear and damage by fire and casualty only
excepted, and at the expiration or termination of this Lease peaceably to
yield up the Premises and all changes and additions therein (except if
Landlord and
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Tenant agree otherwise at the time Landlord consented to such changes and
additions) in such order, repair and condition, first removing all goods,
effects, and fixtures of Tenant, and repairing all damage caused by such
removal and restoring the Premises leaving them clean and neat;
6.1.3 not to injure or deface the Premises, Building or Lot, nor to permit
in the Premises any auction sale, or nuisance, or the emission from the
Premises of any objectionable noise or odor, nor to use or devote the
Premises or any part thereof for any purpose other than the Permitted Uses,
nor any use thereof which is improper, offensive, disruptive, contrary to
law or ordinance, or liable to invalidate or increase the premiums for any
insurance on the Building or its contents or liable to render necessary any
alteration or addition to the Building;
6.1.4 not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the Lot used by Tenant in common with
others; nor permit the painting or placing of any signs or the placing of
any curtains blinds, shades, awnings, aerials or flagpoles, or the like,
visible from outside the Premises; and to comply with the Rules and
Regulations set forth in Exhibit E and all other reasonable Rules and
Regulations hereafter made by the Landlord, of which Tenant has been given
notice, for the use of the Building and Lot and their facilities and
approaches,; provided Landlord uses good faith to uniformly enforce such
Rules and Regulations: Landlord shall not be liable to Tenant for the
failure of other tenants of the Building to conform to such Rules and
Regulations;
6.1.5 to keep the Premises equipped with all safety appliances required by
law or ordinance or any other regulation of any public authority because of
any use made by Tenant other than normal office use, and to procure all
licenses and permits so required because of such other use and, if
requested by Landlord, to do any work so required because of such use, it
being understood that the foregoing provisions shall not be construed to
broaden in any way Tenant's Permitted Uses;
6.1.6 to defend, save harmless, and indemnify Landlord from any liability
or injury, loss, accident or damage to any person or property, and from any
claims, actions, proceedings and
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expenses and costs in connection therewith (including without limitation
reasonable counsel fees), (i) arising from any negligent act or omission,
or other misconduct of Tenant or its agents, employees, contractors,
invites or those claiming by through or under Tenant or from any use made
or thing done or occurring on the Premises, the Building or the Lot by
Tenant or its agents, employees, contractors, invites or those claiming by
through or under Tenant to the extent not due to the negligence of Landlord
or (ii) resulting from the failure of Tenant to perform and discharge its
covenants and obligations under this Lease;
6.1.7 to maintain public liability insurance in the Premises in the amounts
which shall, at the beginning of the Term, be at least equal to the limits
set forth in Section 1.1, and, from time to time during the Term shall be
for such higher limits, if any, as are customarily carried in the area in
which the Premises are located on property similar to the Premises and used
for similar purposes and to furnish Landlord with the certificates thereof;
said insurance certificates shall name Landlord as an additional insured
party and shall not be canceled unless ten (10) days prior written notice
of said cancellation has been given to Landlord;
6.1.8 to keep all Tenant's employees working in the Premises covered by
workmen's compensation insurance in statutory amounts and to furnish
Landlord with certificates thereof;
6.1.9 to permit Landlord and Landlord's agents to examine the Premises at
reasonable times and, if Landlord shall so elect, to make any repairs or
replacements Landlord may deem necessary to avert an emergency, to remove,
at Tenant's expense, any changes, additions, signs, curtains, blinds,
shades, awnings, aerials, flagpoles, or the like, (except Permitted
Alterations) not consented to in writing, and to show the Premises to
prospective tenants during the six (6) months preceding expiration of the
Term and to prospective purchasers and mortgagees at all reasonable times
upon reasonable appointment with Tenant. Landlord's entry to the Premises
shall be upon reasonable prior notice (except in cases of emergency) and
any entry or work done in the Premises shall be performed in a manner which
minimizes interference with Tenant's use and occupancy of the Premises;
<PAGE>
6.1.10 not to place a load upon the Premises in excess of that permitted
exceeding the permitted pounds of live load per square foot of floor area;
and not to move any safe, vault or other heavy equipment in, about or out
of the Premises except in such manner and at such times as Landlord shall
in each instance authorize; Tenant's business machines and mechanical
equipment which cause vibration or noise that may be transmitted to the
Building structure or to any other leased space in the Building shall be
placed and maintained by Tenant in settings of cork, rubber, spring, or
other type of vibration eliminators sufficient to eliminate such vibration
or noise;
6.1.11 all the furnishings, fixtures, equipment, effects and property of
every kind, nature and description of Tenant and of all persons claiming
by, through or under Tenant which, during the continuance of this Lease or
any occupancy of the Premises by Tenant or anyone claiming under Tenant,
may be on the Premises or elsewhere in the Building, shall be at the sole
risk and hazard of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by leakage or bursting
of water pipes, steam pipes, or other pipes, by theft or from any other
cause, no part of said loss or damage is to be charged to or to be borne by
Landlord.
6.1.12 not to suffer or permit any liens to stand against the Premises by
reason of work, labor services or materials done for or at the request of
Tenant. Tenant shall cause any such liens to be discharged within thirty
days after Tenant receives notice thereof.
6.1.13 not to store or use on the Premises or permit the storage or use on
the Premises, any chemicals that are considered hazardous by the United
States Environmental Protection Agency, except in compliance with
applicable law, unless the Tenant has the proper license and permits.
Tenant further agrees that all chemicals stored on the Premises will be
stored within the Premises and that no chemicals will be stored outside the
Building. In the event any chemicals used by Tenant shall spill or leak
outside the Premises they shall be removed immediately in an approved
manner. In the event of an environmental contamination as a result of
Tenant's operations on the Premises, Tenant will indemnify and hold
harmless the Landlord for any and all liability, including all costs,
attorneys' fees and penalties incurred in the preparation of environmental
studies, the preparation of remediation plan and implementation of cleanup.
Tenant represents
<PAGE>
that it will not store or use any chemicals which are not permitted to be
stored or used in the Commonwealth of Massachusetts.
ARTICLE VII
-----------
CASUALTY AND TAKING
-------------------
7.1 Casualty and Taking
-------------------
In case during the Term all or any substantial part of the Premises, the
Building or the Lot are damaged materially by fire or other casualty or by
action of public or other authority in consequence thereof, or are taken by
eminent domain or Landlord receives compensable damage by reason of anything
lawfully done on pursuance of public or other lawful authority, this Lease shall
terminate at Landlord's election, provided Landlord terminates all other leases
in the Building, which may be made notwithstanding Landlord's entire interest
may be divested, by notice given to Tenant within 60 days after the occurrence
of the event giving rise to the election to terminate which notice shall specify
the effective date of termination, or if Landlord does not elect to so
terminate, which notice shall contain Landlord's nonbinding estimate of the time
needed to put the Premises or such remainder in as good or better condition than
existed immediately prior to such fire, other casualty or taking. In case of a
taking of part of the Premises, if the remainder is insufficient for use for
Tenant's purposes, and Landlord receives written notice thereof signed by
Tenant, or in the case of casualty or taking if the time needed to do the
construction work necessary to put the Premises or such remainder in as good or
better condition than existed immediately prior to such fire, other casualty or
is reasonably estimated by the Landlord to exceed six months, or if Landlord's
restoration work is not actually completed within six (6) months from the date
of casualty or taking Tenant may terminate this Lease by notice given to
Landlord within 30 days after receipt of Landlord's notice, which notice by
Tenant shall specify the effective date of termination.
The effective date of termination specified either by Landlord or Tenant
shall be not less than 15 nor more than 30 days after the date of notice of such
termination. If in any case the Premises are
<PAGE>
rendered unfit for use and occupation and the Lease is not so terminated,
Landlord shall use due diligence (following the expiration of all periods in
which either party may terminate this Lease pursuant to the foregoing provisions
of this Section 7.1) to restore the Premises, or in case of taking what may
remain thereof (excluding any items installed or paid for by Tenant which Tenant
may be required to remove pursuant to Section 3.1 or 3.3), to the condition of
the Premises immediately prior to the casualty or taking and a just proportion
of the fixed rent and additional rent according to the nature and extent of the
injury shall be abated from the date of casualty or taking until the Premises or
such remainder shall have been restored by Landlord and in case of a taking
which permanently reduces the area of the Premises, a just proportion of the
fixed rent and additional rent shall be abated for the remainder of the Term.
7.2 Reservation of Award
--------------------
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises and Building and Lot and the leasehold hereby created,
or any one or more of them, accruing by reason of exercise of eminent domain or
by reason of anything lawfully done in pursuance of public or other lawful
authority. Tenant hereby releases and assigns to Landlord all Tenant's rights
to such awards, and covenants to deliver such further assignments and assurances
thereof as Landlord may from time to time request hereby. It is agreed and
understood, however, that Landlord does not reserve to itself, and Tenant does
not assign to Landlord, any damages payable for (i) movable trade fixtures
installed by Tenant or anybody claiming under Tenant at its own expense or
fixtures or items the removal of which is required or permitted by any agreement
given pursuant to Section 3.1. or 3.3, or (ii) relocation expenses recoverable
by Tenant from such authority in a separate action.
7.3 Temporary Taking
----------------
If the temporary use of the whole or any part of the Premises shall be
taken at any time during the Term for any public or quasi-public purpose by any
lawful power or authority, by the exercise of the right of condemnation or
eminent domain, or by agreement between Tenant and those authorized to exercise
such right, the term of this Lease shall not be reduced or affected in any way
and Tenant shall
<PAGE>
continue to pay in full the fixed rent, additional rent and other sum or sums of
money and charges herein reserved and provided to be paid by Tenant and, subject
to the other provisions of this Section 7.3 and except as hereinafter provided,
Tenant shall be entitled to receive any award or payment for such use and
Landlord and Tenant shall join in a single action for the recovery of such award
or payment. If such taking is for a period extending beyond the Term and if any
award or payment made for such use is made in a lump sum, such award or payment
shall be apportioned between Landlord and Tenant as of the date of expiration of
the Term. If such taking results in changes or alterations in the Premises which
would necessitate an expenditure, after repossession, to restore it to its
former condition and such award or payment includes an amount (whether or not
specified) to compensate for such expenditures and is made prior to the
expiration of the Term of this Lease, then the amount of such award or payment
specified as compensation for the expenses of such restoration or, if no such
amount is specified, such portion of such award or payment as is sufficient, in
the reasonable opinion of Landlord, to cover such expenses, shall be paid to
Landlord in trust.
If possession of the Premises shall revert to Tenant prior to the
expiration date of the Term, Tenant shall restore the Premises as aforesaid and
in all other respects indemnify and save harmless Landlord from the effects of
such taking so that the Premises in every respect shall upon completion of such
restoration be the same as though no such taking had occurred, and upon
completion of such restoration the portion, if any, of the award or payment
deposited with Landlord pursuant to this Section 7.3 shall be paid over to
Tenant, but if Tenant shall not restore the Premises and indemnify Landlord,
said sum so deposited shall be applied by Landlord toward Landlord's damages
occasioned by Tenant's such default, and if possession of the Premises shall
revert to Landlord after the expiration of the term of this Lease, Landlord
shall pay over said sum so deposited itself absolutely and without
apportionment. If the lump sum or payment in question is made on or after the
expiration of the Term then the amount of such award or payment specified, such
portion of such award or payment as is sufficient to cover such expenses, shall
be paid to and retained by Landlord absolutely and Tenant shall thereupon be
excused from any obligation to restore the Premises upon the termination of such
temporary taking, except that any obligation that may have accrued for Tenant to
restore the Premises prior to the commencement of said temporary taking shall
continue to be the obligation of Tenant.
<PAGE>
ARTICLE VIII
------------
RIGHTS OF MORTGAGEE
8.1 Superiority of Lease
--------------------
This Lease and all rights of Tenant hereunder are and will remain subject
and subordinate to any mortgage given by Landlord to any mortgagee including any
future mortgages, deeds of trust and other instruments in nature of a mortgage,
now or hereafter given and by extensions, modifications and renewals thereof.
Tenant shall, promptly upon demand, at any time, execute, acknowledge and
deliver to Landlord any and all commercially reasonable instruments necessary to
indicate that this Lease and all Tenant's rights hereunder are subordinate to
the lien of any such mortgage, deeds of trust and other instruments in nature of
a mortgage, now or hereafter given and by extensions, modifications and renewals
thereof. If Tenant fails to so execute, acknowledge, and deliver any such
subordination instrument, the Landlord may sign the same as Tenant's attorney in
fact and Tenant hereby nominates, constitutes and appoints Landlord as Tenant's
proper legal attorney in fact for such purposes. If notified by any entity that
it holds a mortgage, Tenant shall give the holder the same notices of default as
it is required to give Landlord under this Lease. Either party on written
request of the other, shall within fifteen (15) days of demand thereof, furnish
a written statement or estoppel certificate to the other, of any factual matter
pertaining to this Lease, to the best of such parties knowledge.. Landlord
agrees to use reasonable efforts to obtain a Non Disturbance Agreement from
the holder of any mortgage or deed of trust or lessor under any ground lease
superior in title to Tenant.
8.2 Implementation
--------------
Tenant agrees promptly on request of Landlord to execute and deliver from
time to time any commercially reasonable agreement which may reasonably be
deemed necessary to implement the provisions of this Article VIII.
<PAGE>
ARTICLE IX
----------
DEFAULTS
9.1 Events of Default
-----------------
If at any time during the term of this Lease any one or more of the
following events ("Default of Tenant") shall happen:
A. Tenant shall fail to pay the Fixed Rent or any Additional Rent or other
charge when due and such failure shall continue for ten (10) days after written
notice to Tenant from Landlord,
B. If Tenant shall neglect or fail to perform or observe any other
covenant herein contained and Tenant shall fail to remedy the same within thirty
(30) days after notice to Tenant specifying such neglect or failure, or if such
failure is of such a nature that Tenant cannot reasonably remedy the same within
such thirty (30) days period, Tenant shall fail to commence promptly to remedy
the same and to prosecute such remedy to completion with diligence;
C. Intentionally Omitted.
D. If a petition is filed by Tenant or any guarantor of Tenant for
adjudication as a bankrupt, or for reorganization or an arrangement under any
provision of the Bankruptcy Act as then in force and effect, or
E. If an involuntary petition under any of the provisions of said
Bankruptcy Act is filed against Tenant or any guarantor of Tenant and such
involuntary petition is not dismissed within sixty (60) thereafter, then,
and in any of such Default of Tenant , Landlord and the agent and servants
of Landlord lawfully may, in addition to and not in derogation of any remedies
for any preceding breach of covenant, immediately or at any time thereafter and
without demand or notice and with or without process of law (forcibly, if
necessary) enter into and upon the Premises or any part thereof in the name of
the whole or
<PAGE>
mail a notice of termination addressed to Tenant at the Premises, and repossess
same as of Landlord's former estate and expel Tenant and those claiming through
or under Tenant and remove its and the effects (forcibly, if necessary) without
being deemed guilty any manner of trespass and without prejudice to any remedies
which might otherwise be used for arrears of rent or prior breach of covenant
and upon such entry or mailing as aforesaid this Lease shall terminate.
9.2 Tenant's Obligations After Termination
--------------------------------------
In the event that this Lease is terminated under any of the provisions
contained in Section 9.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant covenants as an additional and cumulative
obligation after any such ending to pay punctually to Landlord all the sums and
perform all the obligations which Tenant covenants in this Lease to pay and to
perform in the same manner and to the same extent and at the same time as if
this Lease had not been terminated. In calculating the amounts to be paid by
Tenant under the next foregoing covenant Tenant shall be credited with any
amount paid to Landlord as compensation provided in this Section 9.2 and also
with the net proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all Landlord's reasonable expenses in connection with
such reletting, including, without limitation, all repossession costs, brokerage
commissions, fees for legal services and expense of preparing the Premises for
such reletting, it being agreed by Tenant that Landlord may (i) relet the
Premises or any part or parts thereof, for a term or terms which may at
Landlord's option be equal to or less than or to exceed the period which would
otherwise have constituted the balance of the Term and may grant such
concessions and free rent as Landlord in its reasonable judgment considers
advisable or necessary to relet the same and (ii) make such alterations, repairs
or decorations in the Premises as Landlord in its reasonable judgment considers
advisable or necessary to relet the same, and no action of Landlord in
accordance with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's liability
as aforesaid. In the event Landlord terminated this Lease or otherwise reenters
the Premises following a Default of Tenant, Landlord shall use reasonable
efforts in good faith to relet the Premises for the account of Tenant at the
then current market rate and upon such other terms and conditions as are
reasonable under the circumstances, and Landlord shall otherwise use its
reasonable efforts in good faith to mitigate Tenant's damages.
<PAGE>
In lieu of any other damages or indemnity and in lieu of full recovery by
Landlord of all sums payable under all the foregoing provisions of this Section
9.2, Landlord may by written notice to Tenant, at any time after this Lease is
terminated under any of the provisions contained in Section 9.1 or is otherwise
terminated for breach of any obligation of Tenant and before such full recovery,
elect to recover, and Tenant shall thereupon pay, as liquidated damages, an
amount equal to the aggregate of the fixed rent and additional rent accrued and
unpaid at the time of termination and less the amount of any recovery by
Landlord under the foregoing provisions of this Section 9.2 up to the time of
payment of such liquidated damages.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
9.3 Landlord's Default
------------------
Landlord shall not be deemed to be in default hereunder unless its default
shall continue for thirty (30) days, or such additional time as is reasonably
required to correct its default, provided that Landlord shall, begin such
correction within 30 day period and thereafter prosecute the curing of such
default to completion with due diligence after written notice thereof has been
given by Tenant to Landlord specifying the nature of the alleged default.
ARTICLE X
---------
RIGHT TO ASSIGN AND SUBLET
10.1 Tenant shall not assign or sublet this Lease without prior consent of
Landlord which consent may be withheld at Landlord's sole discretion; no
assignment or subletting and no consent of Landlord thereto shall affect the
continuing primary liability of Tenant; no consent to any of the foregoing in a
specific instance shall operate as a waiver in any subsequent instance; and no
assignment shall be
<PAGE>
binding upon Landlord or any of Landlord's mortgagees, unless Tenant shall
deliver to Landlord an instrument in recordable form which contains a covenant
of assumption by the assignee running to Landlord and all persons claiming by,
through or under Landlord, but the failure or refusal of the assignee to execute
such instrument of assumption shall not release or discharge assignee from its
liability as Tenant hereunder nor shall execution of such instrument of
assumption affect the continuing primary liability of Tenant.
10.2 In the event Tenant desires to assign this Lease in any instance where
Landlord's consent is required to such assignment, Tenant shall so notify
Landlord. In lieu of consenting to such assignment, Landlord shall have the
option to terminate this Lease, provided notice of Landlord's election to
terminate the Lease shall be given not later than fifteen (15) days following
receipt of Tenant's assignment notice. Upon termination, this Lease shall cease
and expire without further liability of the parties. If Landlord fails to
respond to Tenant's request for consent to an assignment or sublease within said
fifteen (15) day period, Landlord shall be deemed to have consented to such
assignment or sublease.
10.3 Notwithstanding the prohibition set forth herein, Landlord shall not
unreasonably withhold or delay its consent to an assignment or subletting
requested by Tenant, provided that: (i) in Landlord's reasonable judgment the
business of the proposed Tenant will not adversely affect the reputation or
image of the Building; (ii) the rent to be derived is payable monthly at a fixed
rate and not based on the net or gross income or profits derived from such
assignee or subtenant; (iii) the proposed assignee or subtenant is a reputable
party of financial worth and stability sufficient in the Landlord's sole and
reasonable judgement to perform its obligations pursuant to such assignment or
sublease and would not impose a greater load upon the Premises and Building
Services than is imposed by Tenant; (iv) rental payments pursuant to the
assignment or sublease agreement are not less than that being offered by
Landlord for similar space in Building under Leases then being or recently
negotiated; (vi the proposed assignee or subtenant (nor any person which,
directly or indirectly controls, is controlled by, or is under common control
with, the proposed assignee and or subtenant) is not then an occupant of any
part of the Building and within the prior six (6) months has not had
negotiations with the Landlord to lease space in the Building, (vi) Tenant is
not then in default beyond applicable notice and cure periods of its obligations
under the Lease and (vii) Landlord has been furnished with information
sufficient to make a
<PAGE>
determination as to each of the foregoing requirements. If Landlord, shall
withhold such consent, it shall set forth in writing the reasons therefor.
10.4 For the purposes of this Article 10, the following transfers shall not be
deemed an assignment or sublease and shall be permitted as of right without the
prior consent of Landlord,: any assignment of this Lease, sublease of all or any
portion of the Premises or other transfer of Tenant's interests hereunder to any
person or entity (a) controlling, controlled by, or under common control with
Tenant (b) acquiring all or substantially all of the assets of Tenant or (c)
with or into which Tenant merges or consolidates provided that the assignee or
subtenant has a financial net work at least equal to that of Tenant as of the
Term Commencement Date.
ARTICLE XI
----------
OPTION TO EXTEND
11.1 On the conditions which Landlord may waive, at its election, by written
notice to Tenant at any time, that Tenant is not in default of its covenants
and obligations under the Lease beyond notice and applicable cure periods and
Tenant or its permitted assignee un Section 10.4 above, is occupying all of the
Premises both as of the time of option exercise and as of the commencement date
of the extension term, and the financial condition of Tenant is as good as of
the Term Commencement Date, Tenant shall have the option to extend the term of
this Lease for one additional five (5) year term ("Extension Term") , such term
commencing as of the day after the expiration of the initial term of the Lease.
Tenant may exercise such option to extend by giving Landlord written notice on
or before the date twelve (12) months prior to the expiration date of the
original term of the Lease. Upon the timely giving of such notice, the terms of
this Lease shall be automatically extended upon all terms and conditions of
this Lease except that the Annual Fixed Rent, Operating Costs in the Base Year
and Tax Base during said Extension Term shall be as hereinafter set forth. If
Tenant fails to timely give notice, as required, Tenant shall have nor further
right to extend the term of this Lease, time being of the essence to this
Article 11.
<PAGE>
11.2 The Annual Fixed Rent for any Lease Year during the Extension Term shall
be the Fair Market Rental Value, as defined herein, as of the commencement of
the Extension Term . The Base Year for Operating Cost Expense Excess and Tax
Excess shall be adjusted accordingly. Notwithstanding the foregoing to the
contrary, in no event, shall the Annual Fixed Rent, charged during the first
year of the Extension Term be less than the Annual Fixed Rent and other monies
paid by Tenant during the last year of the original Lease Term.
11.3 Notwithstanding the fact that Tenant's exercise of the extension option
shall be self executing, once the Annual Fixed Rent has been determined, the
parties shall execute a written agreement confirming the same.
11.4 Notwithstanding the provisions of Article 11 to the contrary, Tenant
shall have he right to cancel such extension option upon the following
circumstances;
Tenant gives Landlord a written request ("Tenant's Request) twelve (12)
months prior to the expiration of the then current term of the Lease requesting
that Landlord advise Tenant in writing of Landlord's reasonable designation of
the Fair Market Rental Value ("Landlord's Response") which is due within thirty
(30) days of the receipt of Tenant's Request.
Tenant gives Landlord written notice ("Tenant's Cancellation Notice")
within thirty (30) days after Tenant receives Landlord's Response, advising
Landlord that Landlord's designation of Fair Market Rental Value is unacceptable
and therefore canceling Tenant's exercise of the option to extend the term of
the Lease.
Tenant shall have no right to cancel its extension option if Tenant does
not timely give Tenant's Request and Tenant's Cancellation Notice, time being of
the essence.
11.5 Fair Market Rental Value shall be computed as of the date in question at
the then current annual rental charge (i.e. the sum of the base rent plus
escalation and other charges), for new leases then currently being negotiated or
executed in comparable space located in the MetroWest area. In determining Fair
Market Rental Value the following factors among others, shall be taken into
account and given effect: size, location of premises, lease term, current
operating expense and base tax years, condition of the building and services
provided by Landlord.
<PAGE>
If Tenant disagrees with Landlord's designation of a Fair Market Rental
Value, Tenant shall have the right, by written notice given within thirty (30)
days after Tenant has been notified of Landlord's designation to submit such
Fair Market Rental Value to arbitration. Fair Market Rental Value shall be
submitted to arbitration as follows: Fair Market Rental Value shall be
determined by impartial arbitrators, one to be chosen by Landlord, and one to be
chosen by Tenant, and a third to be selected, if necessary, as provided below.
The unanimous written decision of the two first chosen , without selection and
participation of a third arbitrator, or otherwise, the written decisions of a
majority of three arbitrators chosen and selected as aforesaid, shall be
conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each
notify the other of its chosen arbitrator within ten (10) days following the
request for arbitration. Unless the two chosen arbitrators are able to reach a
unanimous decision within thirty (30) days following their appointment, they
shall mutually appoint an impartial arbitrator and render their decisions within
thirty (30) days following the appointment of such third arbitrator. Landlord
and Tenant shall bear the expense of the third arbitrator equally and shall each
pay the expenses of the arbitrator initially appointed by them. Any arbitrator
appointed shall be a qualified real estate appraiser having at least five (5)
years experience in valuing commercial office property similar to the Building.
If the dispute between the parties has not been resolved before the commencement
of Tenant's obligation to pay Fixed Annual Rent based upon such Fair Market
Rental Value, then Tenant shall pay Annual Fixed Rent and other charges under
the Lease in respect of the Premises based upon the then current rent under this
Lease. Upon a final resolution, Tenant shall pay any underpayment of rent and
other charges to Landlord or Landlord shall refund any overpayment of rent and
other charges to Tenant.
ARTICLE XII
EXPANSION OPTION
12.1 Subject to the then existing renewal or expansion option of other tenants
located in the Building, including without limitation, Massachusetts Dental
Society, and provided that Tenant is not in default of the Lease beyond notice
and applicable cure periods and that Tenant or its permitted assignee in Section
10.4 above is occupying all of the Premises and that the financial conditions of
Tenant is as good as of
<PAGE>
the Term Commencement Date , throughout the Term, Landlord shall, prior to
offering the same to any other party , first offer to lease to Tenant any space
located on the first floor of the Building which is contiguous to the Premises
(the "RFO Space") in an AS IS condition. Landlord's notice (Landlord's Notice)
shall be in writing and shall set forth Landlord's designation of the Fair
Market Rental Value, as defined in Article 11 above applicable to such RFO Space
, the specified commencement date in respect of such RFO Space and the precise
location and dimension of the RFO Space. Tenant shall have the right,
exercisable upon written notice ("Tenant's Exercise Notice") given to Landlord
within twenty (20) days after receipt of Landlord's Notice to lease the RFO
Space. Upon the timely giving of such notice, Landlord shall lease to Tenant and
Tenant shall lease from Landlord the RFO Space upon all of the terms and
conditions as set forth in this Lease except:
The Rent Commencement Date in respect of the RFO Space shall be the later
of (a) the Specified Commencement Date in respect of the RFO Space as set forth
in Landlord's Notice or (b) the date that Landlord delivers such RFO Space to
Tenant, free of all tenants, occupants and their property..
The termination date of the RFO Space shall be the termination date of the
Lease.
Landlord shall not provide to Tenant any allowances (e.g moving allowance,
construction allowance, of the like) or other tenant inducements.
The Annual Fixed Rental rate shall be the Fair Market Rental Rate, as
defined in Article 11. If Tenant elects to lease the RFO Space, Landlord and
Tenant shall execute an amendment to the Lease, effective as of the RFO Space
Rent Commencement Date which amendment shall reflect the addition of the RFO
Premises, the Annual Fixed Rent payable in respect of such RFO Premises,
Operating Costs and Tax Base for the RFO Premises.
Time is of the essence to the exercise of all rights set forth herein.
Tenant's rights under this Article shall terminate if (a) this Lease or
Tenant's right to possession of the Premises are terminated or (b) Tenant
assigns any of its interest in this Lease or sublets any portion of the
Premises, other than permitted assignees under Section 10.4.
If Tenant does not elect to lease the RFO Space, Landlord shall be free to
lease the RFO Space to any other party provided, however, the terms and
conditions of any such lease shall be no more favorable than those set forth in
Landlord's Notice. If Landlord fails to consummate such a lease with such
prospective tenant, Tenant shall continue to have the right of first offer with
respect thereto during the Term.
<PAGE>
ARTICLE XIII
------------
MISCELLANEOUS
13.1 Titles
------
The titles of the Articles are for convenience only and are not to be
considered in construing this Lease.
13.2 Notice of Lease
---------------
Upon request of either party both parties shall execute and deliver a
notice of this Lease in form appropriate for recording or registration, and
provide any documents or instruments of authority required to record or register
such notice.
13.3 Consent
-------
Except where otherwise provided herein, whenever any approval, consent,
authorization or the like by Landlord or Tenant is expressly required by this
Lease, the approval, consent, authorization or the like shall not be delayed or
withheld unreasonably.
13.4 Notice
------
Whenever any notices, approval, consent, request or election is given or
made pursuant to this Lease it shall be in writing. Communications and payments
shall be addressed if to Landlord at Landlord's Original Address or at such
other address as may have been specified by prior notice to Tenant, and if to
Tenant, at Tenant's Original Address or at such other address as may have been
specified by prior notice to Landlord, with a copy to Testa, Hurwitz
&Thibeault,LLP , 125 High Street, High Street Tower, Boston , Massachusetts
02110 Attn: Real Estate Department. Any communication or notice so addressed
shall be deemed duly served if delivered by hand with a written acknowledgement
of receipt, mailed by registered or certified mail, return receipt requested, or
sent by any recognized express mail delivery service. Notices shall be
effective on delivery or tender of delivery.
<PAGE>
13.5 Bind and Inure
--------------
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 successors and assigns, except that the original Landlord named
herein and each successive owner of the Premises shall be liable only for the
obligations and liabilities accruing and occurring during the period of its
ownership. Whenever the Premises are owned by a trustee or trustees, the
obligations or Landlord shall be binding upon Landlord's trust estate, but not
upon any trustee or beneficiary of the trust individually.
13.6 No Surrender
------------
The delivery of keys to any employee of Landlord or to Landlord's agent or
any employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
13.7 No-Waiver, Etc.
---------------
The failure of Landlord or of Tenant to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease shall not be deemed a waiver of such violation nor prevent a subsequent
act, which would have originally constituted a violation, from having all the
force and effect of an original violation. The receipt by Landlord of fixed
rent or additional rent with knowledge of breach of any covenant of this Lease
shall not be deemed to have waived such breach. No waiver by Landlord, or by
Tenant, shall be valid unless such waiver be in writing signed by the Party to
be charged. No consent or waiver, express or implied, by Landlord or Tenant to
or of any breach of any agreement or duty shall be construed as a waiver or
consent to or of any other breach of the same or any other agreement or duty.
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<PAGE>
13.8 No Accord and Satisfaction
--------------------------
No acceptance by Landlord of a lesser sum than the fixed rent and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
13.9 Cumulative Remedies
-------------------
The specific remedies to which either party may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which it may be lawfully entitled in case of any
breach or threatened breach by the other party of any provisions of this Lease.
In addition to the other remedies provided in this Lease, each party shall be
entitled to the restraint by injunction of the violation or attempted or
threatened violation of any of the covenants, conditions or provisions of this
Lease or to a decree compelling specific performance of any such covenants,
conditions or provisions.
13.10 Partial Invalidity
------------------
If any term of this Lease, or the application thereof to any person or
circumstances, shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
13.11 Landlord's Right to Cure Tenant's Default
-----------------------------------------
If Tenant shall at any time default in the performance of any obligation
under this Lease, Landlord shall have the right, but shall not be obligated, to
enter upon the Premises and to perform such
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<PAGE>
obligation notwithstanding the fact that no specific provisions for such
substituted performance by Landlord is made in this Lease with respect to such
default. Except in case of emergency, these rights shall be exercised only after
30 days prior written notice from Landlord of his intention to do so and
Tenant's failure to cure such default or commence to cure and diligently pursue
its completion within said 30 day period. In performing such obligation,
Landlord may make any payment of money or perform any other act. All reasonable
sums so paid by Landlord (together with interest at the rate of prime plus 1%
per annum) and all necessary incidental costs and expenses in connection with
the performance of any such act by Landlord, shall be deemed to be additional
rent under this Lease and shall be payable to Landlord within 30 days of demand.
Landlord may exercise the foregoing rights without waiving any other of its
rights or releasing Tenant from any of its obligations under this Lease.
13.12 Estoppel Certificates
---------------------
Both parties agree from time to time, upon not less than fifteen (15) days'
prior written request by the other party, to execute, acknowledge and deliver to
the other party a statement in writing certifying that this Lease is unmodified
and in full force and effect and that Tenant has no defenses, offsets or
counterclaims against its obligations to pay the fixed rent and additional rent
and to perform its other covenants under this Lease and that there are no
uncured defaults of Landlord or Tenant under this Lease (or, if there have been
any modifications that the same is in full force and effect as modified and
stating the modifications and, if there are any defenses, offsets, counterclaims
or defaults, setting them forth in reasonable detail), and the dates to which
the fixed rent, additional rent and other charges have been paid. Any such
statement delivered pursuant to this Section 11.12 may be relied upon by any
prospective purchaser or mortgagees of the Premises or any prospective assignee
of any mortgage of the Premises.
13.13 Waiver of Subrogation
---------------------
Any insurance carried by either party with respect to the Premises, the
Building and property therein or occurrences thereon shall, if it can be so
written without additional premium, or with an additional premium which the
other party agrees to pay, include a clause or endorsement denying to the
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<PAGE>
insurer rights of subrogation against the other party to the extent rights have
been waived by the insured prior to occurrence of injury of loss. Each party,
notwithstanding any provisions of this Lease to the contrary, hereby waives any
rights of recovery against the other for injury or loss due to hazards covered
by insurance required to be carried by such party under this Lease containing
such clause of endorsement to the extent of the indemnification received
thereunder.
13.14 Brokerage
---------
Each party represents and warrants that it has dealt with no broker other
than CB Richard Ellis, Whittier Partners and Hunneman Commercial Company (the
"Brokers") in connection with this transaction and each agrees to defend,
indemnify and save the other harmless from and against any and all claims for a
commission arising out of this Lease by any broker other than those named
herein. Landlord shall be responsible for all fees and commissions due to the
Brokers in connection with or arising out of this Lease.
13.15 Inability to Perform
--------------------
Except as otherwise expressly provided herein, Landlord's failure to
perform the obligations, covenants and agreements herein contained shall be
temporarily excused during such period of its inability to so perform by reason
of unforeseeable weather conditions, strikes, or labor troubles, conditions of
supply and demand, of any other similar or dissimilar cause whatsoever
(including , but not limited to governmental preemption in connection with a
national emergency or by reason of any rule, order or regulation of any
governmental agency or any department or subdivisions thereof); provided,
however, that in each such instance of Landlord's inability to perform, Landlord
shall exercise due diligence to eliminate the cause of such inability to
perform, to secure alternate sources of supply and the like. In no event shall
financial inability excuse a party's performance.
-35-
<PAGE>
13.16 Limitation of Landlord's Liability
----------------------------------
The term "Landlord" as used in the Lease, so far as covenants or
obligations to be performed by Landlord are concerned shall be limited to mean
and include only the owner or owners of the Building, at the time in question,
and in the event of any transfer or transfers of title to said property,
Landlord (and in the case of any subsequent transfers or conveyances, the then
grantor) shall be concurrently freed and relieved from and after the date of
such transfer or conveyance without any further instrument or agreement, of all
liability as respects the performance of any of Landlord's covenants or
obligations. It is agreed that Landlord's covenants and obligations contained
in this Lease shall only be binding on Landlord, its successors and assigns
only during and in respect of their respective successive periods of ownership
of said leasehold interest or fee, as the case may be. Tenant, its successors
and assigns, shall not assert nor seek to enforce any claim for breach of this
Lease against any of Landlord's assets other than all available insurance
proceeds, Landlord's interest in the Building and in the rents, issue and
profits thereof, and Tenant agrees to look solely to such proceeds and interest
for the satisfaction of any liability or claim against Landlord under this
Lease, it being specifically agreed that in no event whatsoever shall Landlord,
(which term shall include, without limitation, any general or limited partner,
trustee, beneficiaries, officers, directors, or stockholders of Landlord) ever
be personally liable for such liability.
13.17 Construction
------------
This Lease shall be construed in accordance with the laws of the
Commonwealth of Massachusetts.
13.18 Security Deposit.
----------------
Concurrent with the execution and delivery of this Lease, Tenant shall
deposit the Security Deposit specified in Section 1.1 hereof and Landlord shall
hold the same throughout the Term of this Lease as security for the performance
by Tenant of all obligations on the part of Tenant hereunder. Subject to the
terms of this Lease, Landlord shall have the right from time to time without
prejudice to
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<PAGE>
any other remedy Landlord may have on account thereof, to apply such deposit, or
any part thereof to Landlord's damage arising from or to cure any default beyond
applicable notice and cure periods of Tenant. If Landlord shall so apply any or
all of such deposit, Tenant shall promptly deposit with Landlord the amount so
applied to be held as security hereunder and any failure on the part of Tenant
to so restore the Security Deposit within five (5) days of Landlord's demand
shall constitute a default of Tenant under the Lease. Within thirty (30) days
after the expiration or earlier termination of the Lease and surrender of
possession of the Premises by Tenant, provided that Tenant is not then in
default, Landlord shall return the deposit, or so much as shall not have been
applied in accordance with the terms of this Section 13.18 or as otherwise
required to cure any existing default of Tenant.
While Landlord holds such deposit Landlord shall have no obligation to pay
interest on the same and shall have the right to commingle the same with
Landlord's other funds. If Landlord conveys Landlord's interest under this
Lease, the deposit, or any part thereof not previously applied, may be turned
over by Landlord to Landlord's grantee, and, if so turned over, Tenant agrees
to look solely to such grantee for proper application and return of the
deposit. The holder of a mortgage shall not be responsible to Tenant for the
return or application of any such deposit, whether or not it succeeds to the
position of Landlord hereunder, unless such deposit shall have been received in
hand by such holder.
13.19 Entire Agreement
----------------
This Lease sets forth the entire agreement between the parties hereto and
cannot be modified or amended except in writing duly executed by both parties.
13.20 Landlord's Representations and Warranties.
-----------------------------------------
Landlord represents and warrants that as of the date of this Lease (i)
Landlord is solely vested with fee simple title to the Building, and has full
right and authority to lease the Premises to the Tenant, (ii) Those persons
executing this Lease on Landlord's behalf are duly authorized to execute and
deliver this Lease on its behalf, and (iii) the Lease is binding upon Landlord
in accordance with its terms. Simultaneously with the execution of this Lease,
Landlord shall deliver evidence of such authority to Tenant in form reasonably
satisfactory to Tenant.
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<PAGE>
13.21 Tenant's Representations and Warranties.
---------------------------------------
Tenant represents and warrants that as of the date of this Lease (i) Those
persons executing this Lease on Tenant's behalf are duly authorized to execute
and deliver this Lease on its behalf, and (iii) the Lease is binding upon Tenant
in accordance with its terms. Simultaneously with the execution of this Lease,
Tenant shall deliver evidence of such authority to Landlord in form reasonably
satisfactory to Landlord.
EXECUTED as a sealed instrument in two or more counterparts on the day and year
first above written.
FIRMIN JOINT VENTURE LIMITED RTS SOFTWARE, INC.
LIABILITY COMPANY
By By:
------------------------------ ---------------------------------------
Richard Strehlke, Manager (name) (title)
Hereunto Duly Authorized Hereunto Duly Authorized
Date Date:
---------------------------- -------------------------------------
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<PAGE>
M.D.S. BUILDING
---------------
EXHIBIT A
---------
PLANS SHOWING TENANT'S SPACE
----------------------------
[Architectural drawing of tenant's floor plan]
<PAGE>
M. D. S. BUILDING
-----------------
EXHIBIT B
---------
TENANT'S PRELIMINARY PLANS
---------------------------
[Architectural blueprint detailing office floor plan within building floor plan]
<PAGE>
M. D. S. BUILDING
-----------------
EXHIBIT C
---------
LANDLORD'S SERVICES
-------------------
A. A heating system which will keep the entire Premises, other than storage
areas and closets, at a temperature between 70 and 72 degrees Fahrenheit,
and storage areas and closets at a temperature of not less than 68 degrees
Fahrenheit during normal business hours (6:30 a.m. to 8:00 p.m. Monday
through Friday.)
B. An air-conditioning system for the Building. All areas shall be air-
conditioned except janitor's closets and mechanical rooms during normal
business hours (6:30 a.m. to 8:00 p.m. Monday through Friday.)
C. (1) Overhead fluorescent light fixtures.
(2) Replacement of fluorescent tubes and starters as needed.
D. Hot and cold water for lavatory and drinking purposes.
E. Toilet supplies, including soap, paper or cloth towels, and toilet tissue
for lavatories.
F. Janitor services in accordance with the following schedule.
Entrance Doors: Entrance glass will be cleaned nightly.
--------------
Entrance Floor: Entrance floor will be polished nightly.
--------------
Broadloom: All carpeted areas will be vacuumed every night. Broadloom will
---------
be shampooed upon request, at an additional cost to the Tenant.
Wastepaper Containers: Wastepaper containers will be emptied every night;
---------------------
plastic liner bags will be provided for wastepaper containers; liners will
be changed once a week.
G. Water Fountains: All water fountains will be sanitized and polished
---------------
nightly.
Washrooms: Washrooms will be cleaned and serviced nightly. This will
---------
include refilling all paper towel, toilet tissue and soap dispensers;
emptying and cleaning all trash containers; cleaning and polishing all
stainless steel fixtures; cleaning toilets; washing and sanitizing all wash
basins and shelves; cleaning and polishing all mirrors; removing
disfigurations such as ink marks, drawings, etc. from all stall partitions
and walls; and damp mopping floors nightly.
Scuff Marks: All scuff marks will be removed nightly from all scuff
-----------
on doors.
Tile Floors: All floors will be swept every night with a treated dust
-----------
preventable mop. All
<PAGE>
corridors and office floors will be polished every night. Floors will be
stripped wherever necessary.
Time of Operation: Services to be performed five nights per week (Monday
-----------------
through Friday) after 6:00 p.m.
H. Proper care of grounds surrounding the Building, including care of lawns and
shrubs and including keeping such grounds neat, clean and free of litter.
I. Maintain and keep the sidewalks and parking areas in front of and around the
Building; and will promptly remove all snow and ice therefrom to prevent
accumulation on walkways and parking area.
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<PAGE>
M. D. S. BUILDING
-----------------
EXHIBIT D
---------
LIST OF DRAWINGS AND SPECIFICATIONS FOR BASIC BUILDING
------------------------------------------------------
INTENTIONALLY OMITTED
---------------------
<PAGE>
RULES AND REGULATIONS
---------------------
FOR THE
-------
M. D. S. BUILDING
-----------------
EXHIBIT E
---------
1. Heating, lighting, and plumbing. The Landlord should be notified at once of
any trouble with heating, lighting or plumbing fixtures. Tenant will make
reasonable efforts not to leave the doors of the Premises unlocked at night.
2. The sidewalks, entries, halls and stairways shall not be obstructed by
Tenant or used for any other purpose than for ingress and egress to and from
the Premises, and no articles or rubbish shall be left therein.
3. No toilet fixture shall be used for any purpose other than that for which it
is intended, and no sweepings, rubbish, rags, ashes or other substances
shall be thrown therein; any damage resulting from so doing shall be borne
by the Tenant causing it.
4. The weight and position of all safes shall be subject to the approval of the
Landlord.
5. Lettering on doors, tablets and building directory shall be subject to the
approval of and provided by the Landlord. Any changes or additions to door
signs, tablets or directories shall be made by the Landlord at the Tenant's
expense. No signs within the suite will be visible from the outside of the
building or from the common areas. No lettering shall be allowed on outside
windows.
6. No wires for telephone service, electric lights, messenger service or for
any other purpose shall be put in the Premises without the consent of the
Landlord, not unreasonably withheld or delayed.
7. No glass in doors or elsewhere through which light is admitted into any part
of the Building shall be covered, nor such light obstructed.
8. No animals or birds shall be kept in or about the Building.
9. Moving of freight or furniture into or from the Building must be coordinated
with Landlord, but special arrangement must be made with the Landlord for
the moving of all safes.
10. Nothing shall be thrown or taken from the windows or doors or in the
corridors, nor shall anything be left outside the Building on the window
sills of the premises.
<PAGE>
11. No person shall loiter in the halls, corridors or lavatories.
12. No Tenant shall use any method of heating other than that provided for in
the Tenant's lease, without special agreement with the Landlord.
13. No person shall smoke in the common areas, halls, corridors, lavatories,
stairwells, or entryways of the building.
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<PAGE>
M. D. S. BUILDING
-----------------
EXHIBIT F
---------
DESCRIPTION OF LOT
------------------
A certain parcel of land with the buildings thereon situated on the
southeasterly side of Willow Street and the southerly side of Firmin Avenue in
Southborough, Worcester County, Massachusetts, designated as "Lot Area =
255,387 square feet or 5.863+/- acres" on a plan entitled: "Plan of Land in
Southboruogh, Mass. Owned by Charlotte E. Brewer, Leased by: Richard B.
Strehlke, October 3, 1984 by MacCarthy & Sullivan Engineering, Inc." which plan
is recorded in Plan Book 555, Plan 36 of the Worcester District Registry of
Deeds.
Said parcel is more particularly bounded and described according to said
plan as follows:
NORTHEASTELY by Firmin Avenue, 4.18 feet;
NORTHERLY by Firmin Avenue, 665.94 feet;
EASTERLY by a stone wall six (6) courses measuring respectively 5.18 feet,
9.02 feet, 46.08 feet, 103.99 feet, 20.80 feet and 49.79 feet;
SOUTHERLY by land of Consolidated Rail Corporation, 288.79 feet;
NORTHEASTERLY by land of said Consolidated Rail Corporation, 17.39 feet:
SOUTHERLY by land of said Consolidated Rail Corporation in two courses
measuring respectively 367.78 feet and 401.26 feet;
WESTERLY by Willow Street in a curved line, 76.32 feet; and
NORTHWESTERLY by Willow Street, 450.11 feet.
