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NEW ENGLAND EXECUTIVE PARK
BUILDING FIFTEEN
BURLINGTON, MASSACHUSETTS
OFFICE LEASE AGREEMENT
BETWEEN
EOP-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
ZAMBA CORPORATION, A DELAWARE CORPORATION
("TENANT")
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TABLE OF CONTENTS
<TABLE>
<S> <C>
I. BASIC LEASE INFORMATION...................................................................1
II. LEASE GRANT..............................................................................2
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.............................................3
IV. RENT.....................................................................................3
V. COMPLIANCE WITH LAWS; USE.................................................................7
VI. SECURITY DEPOSIT.........................................................................7
VII. SERVICES TO BE FURNISHED BY LANDLORD....................................................7
VIII. LEASEHOLD IMPROVEMENTS.................................................................8
IX. REPAIRS AND ALTERATIONS..................................................................8
X. USE OF ELECTRICAL SERVICES BY TENANT......................................................9
XI. ENTRY BY LANDLORD.......................................................................10
XII. ASSIGNMENT AND SUBLETTING..............................................................10
XIII. LIENS.................................................................................11
XIV. INDEMNITY AND WAIVER OF CLAIMS.........................................................11
XV. INSURANCE...............................................................................12
XVI. SUBROGATION............................................................................12
XVII. CASUALTY DAMAGE.......................................................................13
XVIII. CONDEMNATION.........................................................................13
XIX. EVENTS OF DEFAULT......................................................................13
XX. REMEDIES................................................................................14
XXI. LIMITATION OF LIABILITY................................................................15
XXII. NO WAIVER.............................................................................15
XXIII. QUIET ENJOYMENT.....................................................................15
XXIV. RELOCATION............................................................................15
XXV. HOLDING OVER...........................................................................15
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE......................................16
XXVII. ATTORNEYS' FEES......................................................................16
XXVIII. NOTICE..............................................................................16
XXIX. EXCEPTED RIGHTS.......................................................................17
XXX. SURRENDER OF PREMISES..................................................................17
XXXI. MISCELLANEOUS.........................................................................17
XXXII. ENTIRE AGREEMENT.....................................................................19
</TABLE>
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OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as
of the 31st day of May, 2000, by and between EOP-NEW ENGLAND EXECUTIVE PARK,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and ZAMBA CORPORATION,
A DELAWARE CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Building" shall mean the building located at Fifteen New England
Executive Park, Burlington, Massachusetts 01803, and commonly known as
Fifteen New England Executive Park.
B. "Rentable Square Footage of the Building" is deemed to be 43,267
square feet.
C. "Premises" shall mean the area shown on EXHIBIT A to this Lease. The
Premises are located on the 1st floor and known as suite number 120.
The "Rentable Square Footage of the Premises" is deemed to be 11,049
square feet. 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. Landlord and Tenant
stipulate and agree that the Rentable Square Footage of the Building
and the Rentable Square Footage of the Premises are correct and shall
not be remeasured.
D. "Base Rent":
<TABLE>
<CAPTION>
PERIOD ANNUAL RATE ANNUAL MONTHLY
------ ----------- ------ -------
(MONTHS) PER SQUARE FOOT BASE RENT BASE RENT
-------- --------------- --------- ---------
<S> <C> <C> <C>
01 - 24 $30.00 $331,470.00 $27,622.50
25 - 36 $31.00 $342,519.00 $28,543.25
37 - 60 $32.00 $353,568.00 $29,464.00
</TABLE>
E. "Tenant's Pro Rata Share": 25.5368%.
F. "Base Year" for Taxes: Fiscal Year (defined below) 2001 (e.g., July 1,
2000 to June 30, 2001). - "Base Year for Expenses: calendar year 2000.
For purposes hereof, "Fiscal Year shall mean the Base Year for Taxes
and each period of July 1 to June 30 thereafter.
G. "Term": A period of 60 months. The Term shall commence on July 1, 2000
(the "Commencement Date") and, unless terminated early in accordance
with this Lease, end on June 30, 2005 (the "Termination Date").
However, if Landlord is required to Substantially Complete (defined in
Section III.A) any Landlord Work (defined in Section I.O.) prior to the
Commencement Date under the terms of a Work Letter (defined in Section
I.O): (1) the date set forth in the prior sentence as the "Commencement
Date" shall instead be defined as the "Target Commencement Date" by
which date Landlord will use reasonable efforts to Substantially
Complete the Landlord Work; and (2) the actual "Commencement Date"
shall be the date on which the Landlord Work is Substantially Complete,
as determined by Section III.A. In such circumstances, the Termination
Date will instead 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 C. In addition, if Tenant is entitled to register
or record a notice or memorandum of this Lease pursuant to the terms of
Section XXXI, 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 E. Landlord
shall use reasonable efforts to notify Tenant of any circumstances of
which Landlord is aware that have caused or may cause a delay by
Landlord to Substantially Complete the Landlord Work.
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H. Tenant allowance(s): an amount not to exceed $99,441.00 as further
described in the attached EXHIBIT D.
I. "Security Deposit": $48,000.00.
J. "Guarantor(s)": NONE.
K. "Broker(s)": Boston Real Estate Partners.
L. "Permitted Use": general office use.
M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at
the Premises. Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
New England Executive Park - Building 8
Burlington, Massachusetts 01803
Phone #:
Fax #:
Landlord: With a copy to:
EOP-New England Executive Park, L.L.C. Equity Office Properties
c/o Equity Office Properties Two North Riverside Plaza
Three New England Executive Park Suite 2200
Burlington, Massachusetts 01803 Chicago, Illinois 60606
Attention: Building Manager Attention: Northeast
Regional Counsel
Rent (defined in Section IV.A) is payable to the order of EQUITY
OFFICE PROPERTIES at the following address: EOP Operating Limited
Partnership as Agent for EOP-New England Executive Park, L.L.C., P.O.
Box 30229, Hartford, Connecticut 06150-0229.
N. "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day ("Holidays"). Landlord may designate additional
Holidays, provided that the additional Holidays are commonly recognized
by other office buildings in the area where the Building is located.
O. "Landlord Work" means the work, if any, that Landlord is obligated to
perform in the Premises pursuant to a separate work letter agreement
(the "Work Letter"), if any, attached as EXHIBIT D. If a Work Letter is
not attached to this Lease or if an attached Work Letter does not
require Landlord to perform any work, the occurrence of the
Commencement Date shall not be conditioned upon the performance of work
by Landlord and, accordingly, Section III.A. shall not be applicable to
the determination of the Commencement Date.
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
Q. "Normal Business Hours" for the Building 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.
R. "Property" means the Building and the parcel(s) of land on which it is
located and, at Landlord's discretion, the Building garage and other
improvements serving the Building, if any, and the parcel(s) of land on
which they are located.
II. LEASE GRANT.
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Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord, together with the right in common with others to use any portions
of the Property that are designated by Landlord for the common use of tenants
and others, such as sidewalks, unreserved parking areas, common corridors,
elevator foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
A. 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
noncompletion of which does not materially interfere with Tenant's use
of the Premises. However, if Landlord is delayed in the performance of
the Landlord Work as a result of any Tenant Delay(s) (defined below),
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. "Tenant Delay"
means any act or omission of Tenant or its agents, employees, vendors
or contractors that actually delays the Substantial Completion of the
Landlord Work, including, without limitation: (1) Tenant's failure to
furnish information or approvals within any time period specified in
this Lease, including the failure to prepare or approve preliminary or
final plans by any applicable due date; (2) Tenant's selection of
equipment or materials that have long lead times after first being
informed by Landlord that the selection may result in a delay; (3)
changes requested or made by Tenant to previously approved plans and
specifications; (4) performance of work in the Premises by Tenant or
Tenant's contractor(s) during the performance of the Landlord Work; or
(5) if the performance of any portion of the Landlord Work depends on
the prior or simultaneous performance of work by Tenant, a delay by
Tenant or Tenant's contractor(s) in the completion of such work.
B. Subject to Landlord's obligation, if any, to perform Landlord Work and
Landlord's obligations under Section IX.B., the Premises are accepted
by Tenant in "as is" condition and configuration. By taking possession
of the Premises, Tenant agrees that the Premises are in good order and
satisfactory condition, and that there are no representations or
warranties by Landlord regarding the condition of the Premises or the
Building and that Landlord shall have no obligation to remove any
furniture or other property that is present in the Premises as of the
Commencement Date, the parties acknowledging and agreeing that Landlord
shall have no interest in or rights to such furniture or property.
Notwithstanding the foregoing, Landlord shall be responsible for latent
defects in the Landlord Work of which Tenant notifies Landlord to the
extent that the correction of such defects is covered under valid and
enforceable warranties given Landlord by contractors or subcontractors
performing the Landlord Work. Landlord, at its option, may pursue such
claims directly or assign any such warranties to Tenant for
enforcement. If Landlord is delayed delivering possession of the
Premises or any other space due to the holdover or unlawful possession
of such space by any party, Landlord shall use reasonable efforts to
obtain possession of the space. If Landlord is not required to
Substantially Complete Landlord Work before the Commencement Date, the
Commencement Date shall be postponed until the date Landlord delivers
possession of the Premises to Tenant free from occupancy by any party,
and the Termination Date, at the option of Landlord, may be postponed
by an equal number of days. If Landlord is required to Substantially
Complete Landlord Work before the Commencement Date, the Commencement
Date and Termination Date shall be determined by Section I.G.
C. 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 IV.A.) 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.
IV. RENT.
A. Payments. As consideration for this Lease, Tenant shall pay Landlord,
without any setoff or deduction, the total amount of Base Rent and
Additional Rent due for the Term. "Additional Rent" means all sums
(exclusive of Base Rent) that Tenant is
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required to pay Landlord. Additional Rent and Base Rent are sometimes
collectively referred to as "Rent". 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 under applicable Law. 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 first full
calendar month of the Term shall be payable upon the Commencement
Date. All other items of Rent shall be due and payable by Tenant on or
before 30 days after billing by Landlord. All payments of Rent shall
be by good and sufficient check or by other means (such as automatic
debit or electronic transfer) acceptable to Landlord. If Tenant fails
to pay any item or installment of Rent when due, Tenant shall pay
Landlord an administration fee equal to 5% of the 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 given calendar year. If the
Term commences on a day other than the first day of a calendar month
or terminates on a day other than the last day of a calendar month,
the monthly Base Rent and Tenant's Pro Rata Share of any Tax Excess
(defined in Section IV.B.) or Expense Excess (defined in Section
IV.B.) for the month shall be prorated based on the number of days in
such calendar month. Landlord's acceptance of less than the correct
amount of Rent shall be considered a payment on account of the
earliest Rent due. No endorsement or statement on a check or letter
accompanying a check or payment shall be considered an accord and
satisfaction, and either party may accept the check or payment without
prejudice to that party's right to recover the balance or pursue other
available remedies. Tenant's covenant to pay Rent is independent of
every other covenant in this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata Share
of the amount, if any, by which Expenses (defined in Section IV.C.) for
each calendar year during the Term exceed Expenses for the Base Year
(the "Expense Excess") and also the amount, if any, by which Taxes
(defined in Section IV.D.) for each Fiscal Year during the Term exceed
Taxes for the Base Year (the "Tax Excess"). If Expenses and/or Taxes in
any calendar year or Fiscal Year decrease below the amount of Expenses
and/or Taxes for the Base Year, Tenant's Pro Rata Share of Expenses
and/or Taxes, as the case may be, for that calendar year or Fiscal Year
shall be $0. Landlord shall provide Tenant with a good faith estimate
of the Expense Excess and of the Tax Excess for each calendar year or
Fiscal Year during the Term. On or before the first day of each month,
Tenant shall pay to Landlord a monthly installment equal to one-twelfth
of Tenant's Pro Rata Share of Landlord's estimate of the Expense Excess
and one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of
the Tax Excess. If Landlord determines that its good faith estimate of
the Expense Excess or of the Tax Excess was incorrect by a material
amount, Landlord may provide Tenant with a revised estimate. After its
receipt of the revised estimate, Tenant's monthly payments shall be
based upon the revised estimate. If Landlord does not provide Tenant
with an estimate of the Expense Excess by January 1 of a calendar year,
or the Tax Excess by the start of each new Fiscal Year, Tenant shall
continue to pay monthly installments based on the previous calendar
year's or Fiscal Year's estimate(s), as the case may be, until Landlord
provides Tenant with the new estimate. Upon delivery of the new
estimate, an adjustment shall be made for any month for which Tenant
paid monthly installments based on the previous calendar or Fiscal
Year's estimate(s). Tenant shall pay Landlord the amount of any
underpayment within 30 days after receipt of the new estimate. Any
overpayment shall be refunded to Tenant within 30 days or credited
against the next due future installment(s) of Additional Rent.
As soon as is practical following the end of each calendar year or
Fiscal Year, as the case may be, Landlord shall furnish Tenant with a
statement of the actual Expenses and Expense Excess and the actual
Taxes and Tax Excess for the prior calendar year or Fiscal Year, as the
case may be. If the estimated Expense Excess and/or estimated Tax
Excess for the prior calendar year or Fiscal Year, as the case may be,
is more than the actual Expense Excess and/or actual Tax Excess for the
prior calendar year or Fiscal Year, as the case may be, Landlord shall
apply any overpayment by Tenant against Additional Rent due or next
becoming due, provided if the Term expires before the determination of
the overpayment, Landlord shall refund any overpayment to Tenant after
first deducting the amount of Rent due. If the estimated Expense Excess
and/or estimated Tax Excess for the prior calendar year or Fiscal Year,
as the case may be, is less than the actual Expense Excess and/or
actual Tax Excess for such prior calendar year or Fiscal Year, as the
case may be, Tenant shall pay Landlord, within 30
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days after its receipt of the statement of Expenses and/or Taxes, any
underpayment for the prior calendar year.
C. Expenses Defined. "Expenses" means all costs and expenses incurred in
each calendar year in connection with operating, maintaining,
repairing, and managing the Building and the Property, including, but
not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal fees
not attributable to leasing or collection activity, and other
administrative costs. Landlord, by itself or through an affiliate,
shall have the right to directly perform or provide any services
under this Lease (including management services), provided that
the cost of any such services shall not exceed the cost that would
have been incurred had Landlord entered into an arms-length
contract for such services with an unaffiliated entity of
comparable skill and experience.
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment.
4. Premiums and deductibles paid by Landlord for insurance, including
workers compensation, fire and extended coverage, earthquake,
general liability, rental loss, elevator, boiler and other
insurance customarily carried from time to time by owners of
comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which Landlord
is reimbursed by tenants. "Electrical Costs" means: (a) charges
paid by Landlord for electricity; (b) costs incurred in
connection with an energy management program for the Property;
and (c) if and to the extent permitted by Law, a fee for the
services provided by Landlord in connection with the selection of
utility companies and the negotiation and administration of
contracts for electricity, provided that such fee shall not
exceed 50% of any savings obtained by Landlord. Electrical Costs
shall be adjusted as follows: (i) amounts received by Landlord as
reimbursement for above standard electrical consumption shall be
deducted from Electrical Costs; (ii) the cost of electricity
incurred to provide overtime HVAC to specific tenants (as
reasonably estimated by Landlord) shall be deducted from
Electrical Costs; and (iii) if Tenant is billed directly for the
cost of building standard electricity to the Premises as a
separate charge in addition to Base Rent, the cost of electricity
to individual tenant spaces in the Building shall be deducted
from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Property which are: (a) performed
primarily to reduce operating expense costs or otherwise improve
the operating efficiency of the Property; or (b) required to
comply with any Laws that are enacted, or first interpreted to
apply to the Property, after the date of this Lease. The cost of
capital improvements shall be amortized by Landlord over the
lesser of the Payback Period (defined below) or 5 years. The
amortized cost of capital improvements may, at Landlord's option,
include actual or imputed interest at the rate that Landlord
would reasonably be required to pay to finance the cost of the
capital improvement. "Payback Period" means the reasonably
estimated period of time that it takes for the cost savings
resulting from a capital improvement to equal the total cost of
the capital improvement.
If Landlord incurs Expenses for the Property together with one or more
other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned between
the Property and the other buildings or properties. Expenses shall not
include: the cost of capital improvements (except as set forth above);
depreciation; interest (except as provided above for the amortization
of capital improvements); principal payments of mortgage and other
non-operating debts of Landlord; the cost of repairs or other work to
the extent Landlord is reimbursed by insurance or condemnation
proceeds; costs in connection with leasing space in the
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Building, including brokerage commissions; lease concessions,
including rental abatements and construction allowances, granted to
specific tenants; costs incurred in connection with the sale,
financing or refinancing of the Building; fines, interest and
penalties incurred due to the late payment of Taxes (defined in
Section IV.D) or Expenses; organizational expenses associated with the
creation and operation of the entity which constitutes Landlord; or
any penalties or damages that Landlord pays to Tenant under this Lease
or to other tenants in the Building under their respective leases. If
the Building is not at least 95% occupied during any calendar year or
if Landlord is not supplying services to at least 95% of the total
Rentable Square Footage of the Building at any time during a calendar
year, Expenses shall, at Landlord's option, be determined as if the
Building had been 95% occupied and Landlord had been supplying
services to 95% of the Rentable Square Footage of the Building during
that calendar year. If Tenant pays for its Pro Rata Share of Expenses
based on increases over a "Base Year" and Expenses for a calendar year
are determined as provided in the prior sentence, Expenses for the
Base Year shall also be determined as if the Building had been 95%
occupied and Landlord had been supplying services to 95% of the
Rentable Square Footage of the Building. The extrapolation of Expenses
under this Section shall be performed by appropriately adjusting the
cost of those components of Expenses that are impacted by changes in
the occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and other
assessments on the Building and/or Property, including, but not limited
to, assessments for special improvement districts and building
improvement districts, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments
and the Property's share of any real estate taxes and assessments under
any reciprocal easement agreement, common area agreement or similar
agreement as to the Property; (2) all personal property taxes for
property that is owned by Landlord and used in connection with the
operation, maintenance and repair of the Property; and (3) all costs
and fees incurred in connection with seeking reductions in any tax
liabilities described in (1) and (2), including, without limitation,
any costs incurred by Landlord for compliance, review and appeal of tax
liabilities. Without limitation, Taxes shall not include any income,
capital levy, franchise, capital stock, gift, estate or inheritance
tax. If an assessment is payable in installments, Taxes for the year
shall include the amount of the installment and any interest due and
payable during that year. For all other real estate taxes, Taxes for
that year shall, at Landlord's election, include either the amount
accrued, assessed or otherwise imposed for the year or the amount due
and payable for that year, provided that Landlord's election shall be
applied consistently throughout the Term. If a change in Taxes is
obtained for any year of the Term during which Tenant paid Tenant's Pro
Rata Share of any Tax Excess, then Taxes for that year will be
retroactively adjusted and Landlord shall provide Tenant with a credit,
if any, based on the adjustment. Likewise, if a change is obtained for
Taxes for the Base Year, Taxes for the Base Year shall be restated and
the Tax Excess for all subsequent years shall be recomputed. Tenant
shall pay Landlord the amount of Tenant's Pro Rata Share of any such
increase in the Tax Excess within 30 days after Tenant's receipt of a
statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after receiving Landlord's
statement of Expenses, give Landlord written notice ("Review Notice")
that Tenant intends to review Landlord's records of the Expenses for
that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its
review. If any records are maintained at a location other than the
office of the Building, Tenant may either inspect the records at such
other location or pay for the reasonable cost of copying and shipping
the records. If Tenant retains an agent to review Landlord's records,
the agent must be with a licensed CPA firm. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the audit.
Within 60 days after the records are made available to Tenant, Tenant
shall have the right to give Landlord written notice (an "Objection
Notice") stating in reasonable detail any objection to Landlord's
statement of Expenses for that year. If Tenant fails to give Landlord
an Objection Notice within the 60 day period or fails to provide
Landlord with a Review Notice within the 90 day period described above,
Tenant shall be deemed to have approved Landlord's statement of
Expenses and shall be barred from raising any claims regarding the
Expenses for that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in good faith
to resolve any issues raised in Tenant's Objection Notice. If Landlord
and Tenant determine that
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Expenses for the calendar year are less than reported, Landlord shall
provide Tenant with a credit against the next installment of Rent in
the amount of the overpayment by Tenant. Likewise, if Landlord and
Tenant determine that Expenses for the calendar year are greater than
reported, Tenant shall pay Landlord the amount of any underpayment
within 30 days. The records obtained by Tenant shall be treated as
confidential. In no event shall Tenant be permitted to examine
Landlord's records or to dispute any statement of Expenses unless
Tenant has paid and continues to pay all Rent when due.
V. COMPLIANCE WITH LAWS; USE.
The Premises shall be used only for the Permitted Use and for no other
use whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Tenant, within 10 days after receipt, shall provide
Landlord with copies of any notices it receives regarding a violation or alleged
violation of any Laws. Tenant shall reimburse and compensate Landlord for all
expenditures made by, or damages or fines sustained or incurred by, Landlord due
to any violations of Laws by Tenant or any Tenant Related Parties with respect
to the Premises. Tenant shall comply with the rules and regulations of the
Building attached as EXHIBIT B and such other reasonable rules and regulations
adopted by Landlord from time to time. Tenant shall also cause its agents,
contractors, subcontractors, employees, customers, and subtenants to comply with
all rules and regulations. Landlord shall not knowingly discriminate against
Tenant in Landlord's enforcement of the rules and regulations.
VI. SECURITY DEPOSIT.
The Security Deposit shall be delivered to Landlord upon the execution
of this Lease by Tenant and shall be 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 Tenant's liability for damages. Landlord may, from time to time, without
prejudice to any other remedy, use all or a portion of the Security Deposit to
satisfy past due Rent or to cure any uncured default by Tenant. If Landlord uses
the Security Deposit, Tenant shall on 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: (1) the
determination of Tenant's Pro Rata Share of any Tax Excess and Expense Excess
for the final year of the Term; (2) the date Tenant surrenders possession of the
Premises to Landlord in accordance with this Lease; or (3) the Termination Date.
If Landlord transfers its interest in the Premises, Landlord may assign the
Security Deposit to the transferee and, following the assignment and the
assumption of Landlord's responsibilities under this Article VI by the
transferee, 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.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
Normal Business Hours, at such temperatures and in such amounts as are
standard for comparable buildings or as required by governmental
authority. Tenant, upon such advance notice as is reasonably required
by Landlord, shall have the right to receive HVAC service during hours
other than Normal Business Hours. Tenant shall pay Landlord the
standard charge for the additional service as reasonably determined by
Landlord from time to time; (3) Maintenance and repair of the Property
as described in Section IX.B.; (4) Janitor service on Business Days. If
Tenant's use, floor covering or other improvements require special
services in excess of the standard services for the Building, Tenant
shall pay the additional cost attributable to the special services; (5)
Elevator service; (6) Electricity to the Premises for general office
use, in accordance with and subject to the terms and conditions in
Article X; and (7) such other services as Landlord reasonably
determines are necessary or appropriate for the Property.
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B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (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, is made untenantable for a period in excess of
3 consecutive Business Days as a result of the Service Failure, 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 has not been
rendered untenantable by the Service Failure, the amount of abatement
that Tenant is entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not used by
Tenant. In no event, however, shall Landlord be liable to Tenant for
any loss or damage, including the theft of Tenant's Property (defined
in Article XV), arising out of or in connection with the failure of any
security services, personnel or equipment.
VIII. LEASEHOLD IMPROVEMENTS.
All improvements to the Premises (collectively, "Leasehold
Improvements") shall be owned by Landlord and shall remain upon the Premises
without compensation to Tenant. However, Landlord, by written notice to Tenant
within 30 days prior to the Termination Date, may require Tenant to remove, at
Tenant's expense: (1) Cable (defined in Section IX.A) installed by or for the
exclusive benefit of Tenant and located in the Premises or other portions of the
Building; and (2) any Leasehold Improvements that are performed by or for the
benefit of Tenant and, 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"). Without limitation, it is
agreed that Required Removables include internal stairways, raised floors,
personal baths and showers, vaults, rolling file systems and structural
alterations and modifications of any type. The Required Removables designated by
Landlord shall be removed by Tenant before the Termination Date, provided that
upon prior written notice to Landlord, Tenant may remain in the Premises for up
to 5 days after the Termination Date for the sole purpose of removing the
Required Removables. Tenant's possession of the Premises shall be subject to all
of the terms and conditions of this Lease, including the obligation to pay Rent
on a per diem basis at the rate in effect for the last month of the Term. Tenant
shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or perform related
repairs in a timely manner, Landlord, at Tenant's expense, may remove and
dispose of the Required Removables and perform the required repairs. Tenant,
within 30 days after receipt of an invoice, shall reimburse Landlord for the
reasonable costs incurred by Landlord. Notwithstanding the foregoing, Tenant, at
the time it requests approval for a proposed Alteration (defined in Section
IX.C) and at the time it submits the plans for the Initial Improvements, may
request in writing that Landlord advise Tenant whether the Alteration or any
portion of the Alteration or the Initial Alterations or any portion of the
Initial Alterations will be designated as 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 or the Initial Alterations, if any, will be
considered to be Required Removables.
IX. REPAIRS AND ALTERATIONS.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without
limitation, repairs to: (1) floor covering; (2) interior partitions;
(3) doors; (4) the interior side of demising walls; (5) electronic,
phone and data cabling and related equipment (collectively, "Cable")
that is installed by or for the exclusive benefit of Tenant and located
in the Premises or other portions of the Building; (6) supplemental air
conditioning units, private showers and kitchens, including hot water
heaters, plumbing, and similar facilities serving Tenant exclusively;
and (7) Alterations performed by contractors retained by Tenant,
including related HVAC balancing. All work shall be performed in
accordance with the rules and procedures described in Section IX.C.
below. 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 if there is an emergency), Landlord may make the repairs, and
Tenant shall pay the reasonable cost of the
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repairs to Landlord within 30 days after receipt of an invoice,
together with an administrative charge in an amount equal to 10% of
the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in good
repair and working order and make repairs to and perform maintenance
upon: (1) structural elements of the Building; (2) mechanical
(including HVAC), electrical, plumbing and fire/life safety systems
serving the Building in general; (3) Common Areas; (4) the roof of the
Building; (5) exterior windows of the Building; and (6) elevators
serving the Building. Landlord shall promptly make repairs (considering
the nature and urgency of the repair) for which Landlord is
responsible. In addition, Landlord may elect, at the expense of Tenant,
to repair any damage or injury to the Building caused by moving
property of Tenant in or out of the Building, or by installation or
removal of furniture or other property, or by misuse by, neglect or
improper conduct of Tenant or any Tenant Related Parties (hereinafter
defined).
C. Alterations. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (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"): (1) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (2) is not
visible from the exterior of the Premises or Building; (3) will not
affect the systems or structure of the Building; and (4) does not
require work to be performed inside the walls or above the ceiling of
the Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all the other
provisions of this Section IX.C. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications reasonably acceptable to
Landlord; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with respect
to Building systems); copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's insurance in
amounts reasonably required by Landlord; and any security for
performance that is 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 that is at least equal to the
quality designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of the
Building, shall have the right to designate the time when Alterations
may be performed. Tenant shall reimburse Landlord within 30 days after
receipt of an invoice for sums paid by Landlord for third party
examination of Tenant's plans for non-Cosmetic Alterations. In
addition, within 30 days after receipt of an invoice from Landlord,
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 non-Cosmetic Alterations. Upon completion, Tenant shall furnish
"as-built" plans (except for Cosmetic Alterations), completion
affidavits, full and final waivers of lien and receipted bills covering
all labor and materials. Tenant shall assure that the Alterations
comply with all insurance requirements and Laws. Landlord's approval of
an Alteration shall not be a representation by Landlord that the
Alteration complies with applicable Laws or will be adequate for
Tenant's use. Tenant shall pay, as an additional charge, the entire
increase in real estate taxes on the Building which shall, at any time
prior to or after the Commencement Date, result from or be attributable
to any alteration, addition or improvement to the Premises made by or
for the account of Tenant in excess of the Building Standard
improvements for the Building.
X. USE OF ELECTRICAL SERVICES BY TENANT.
A. Electricity used by Tenant in the Premises shall be paid for by Tenant
by a separate charge payable by Tenant to Landlord within 30 days after
billing by Landlord. Electrical service to the Premises may be
furnished by one or more companies providing electrical generation,
transmission and distribution services, and the cost of electricity may
consist of several different components or separate charges for such
services, such as generation, distribution and stranded cost charges.
Landlord shall have the exclusive right to select any company providing
electrical service to the Premises, to aggregate the electrical service
for the Property and Premises with other buildings, to purchase
electricity through a broker and/or buyers group and to change
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the providers and manner of purchasing electricity. Landlord shall be
entitled to receive a fee (if permitted by Law) for the selection of
utility companies and the negotiation and administration of contracts
for electricity, provided that the amount of such fee shall not exceed
50% of any savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in voltage,
rated capacity, use beyond Normal Business Hours or overall load, that
which Landlord deems to be standard for the Building. If Tenant
requests permission to consume excess electrical service, Landlord may
refuse to consent or may condition consent upon conditions that
Landlord reasonably elects (including, without limitation, the
installation of utility service upgrades, meters, submeters, air
handlers or cooling units), and the additional usage (to the extent
permitted by Law), installation and maintenance costs shall be paid by
Tenant. Landlord shall have the right to separately meter electrical
usage for the Premises and to measure electrical usage by survey or
other commonly accepted methods.
XI. ENTRY BY LANDLORD.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to 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 Normal Business Hours. Entry by Landlord shall not constitute
constructive eviction or entitle Tenant to an abatement or reduction of Rent.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), 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
elect to exercise its termination rights under Section XII.B below.
Without limitation, it is agreed that Landlord's consent shall not be
considered unreasonably withheld if: (1) the proposed transferee's
financial condition does not meet the criteria Landlord uses to select
Building tenants having similar leasehold obligations; (2) the proposed
transferee's business is not suitable for the Building considering the
business of the other tenants and the Building's prestige, or would
result in a violation of another tenant's rights; (3) the proposed
transferee is a governmental agency or occupant of the Building; (4)
Tenant is in default after the expiration of the notice and cure
periods in this Lease; (5) any portion of the Building or Premises
would likely become subject to additional or different Laws as a
consequence of the proposed Transfer; or (6) Landlord has commenced
negotiations with the proposed transferee for other space in the
Building. Tenant shall not be entitled to receive monetary damages
based upon a claim that Landlord unreasonably withheld its consent to a
proposed Transfer and Tenant's sole remedy shall be an action to
enforce any such provision through specific performance or declaratory
judgment. Any attempted Transfer in violation of this Article shall, at
Landlord's option, be void. Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfers. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any obligation under
this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant within
30 days of its receipt of the required information and documentation,
either: (1) consent to the Transfer by the execution of a consent
agreement in a form reasonably designated by Landlord or reasonably
refuse to consent to the Transfer in writing; or (2) exercise its right
to terminate this Lease with respect to the portion of the Premises
that Tenant is proposing to assign or sublet. Any such termination
shall be
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effective on the proposed effective date of the Transfer for which
Tenant requested consent. Tenant shall pay Landlord a review fee of
$2,000.00 for Landlord's review of any Permitted Transfer or requested
Transfer.
C. 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 any
excess within 30 days after Tenant's receipt of such excess
consideration. Tenant may deduct from the excess all reasonable and
customary expenses directly incurred by Tenant attributable to the
Transfer (other than Landlord's review fee), including brokerage fees,
legal fees and construction costs. If Tenant is in Monetary Default
(defined in Section XIX.A. below), 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 any payments
received (less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority of
the voting shares/rights at any time changes for any reason (including
but not limited to a merger, consolidation or reorganization), such
change of ownership or control shall constitute a Transfer. The
foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a recognized security exchange, or if at
least 80% of its voting stock is owned by another entity, the voting
stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a successor
to Tenant by purchase, merger, consolidation or reorganization without
the consent of Landlord, provided that all of the following conditions
are satisfied (a "Permitted Transfer"): (1) Tenant is not in default
under this Lease; (2) Tenant's successor shall own all or substantially
all of the assets of Tenant; (3) Tenant's successor shall have a net
worth which is at least equal to the greater of Tenant's net worth at
the date of this Lease or Tenant's net worth as of the day prior to the
proposed purchase, merger, consolidation or reorganization; (4) the
Permitted Use does not allow the Premises to be used for retail
purposes; and (5) Tenant shall give Landlord sufficient written notice
prior to the effective date of the proposed purchase, merger,
consolidation or reorganization. Tenant's notice to Landlord shall
include information and documentation 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.
XIII. LIENS.
Tenant shall not permit mechanic's 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 benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition to
any other right or remedy of Landlord, Landlord may bond or insure over the lien
or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount
paid by Landlord to bond or insure over the lien or discharge the lien,
including, without limitation, reasonable attorneys' fees (if and to the extent
permitted by Law) within 30 days after receipt of an invoice from Landlord.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties (defined below), Tenant shall
indemnify, defend and hold Landlord, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees, Mortgagee(s)
(defined in Article XXVI) and agents ("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), which may be imposed
upon, incurred by or asserted against Landlord or any of the Landlord
Related Parties and arising out of or in connection with any damage or
injury occurring in the Premises or any negligence or willful
misconduct (including violations of Law) of Tenant, the Tenant Related
Parties (defined below) or any of Tenant's transferees, contractors or
licensees.
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B. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), 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 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), which
may be imposed upon, incurred by or asserted against Tenant or any of
the Tenant Related Parties and arising out of or in connection with the
negligence or willful misconduct (including violations of Law) of
Landlord, the Landlord Related Parties or any of Landlord's
contractors.
C. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or
loss, theft or damage to Tenant's Property or the property of any
person claiming by, through or under Tenant resulting from: (1) wind or
weather; (2) the failure of any sprinkler, heating or air-conditioning
equipment, any electric wiring or any gas, water or steam pipes; (3)
the backing up of any sewer pipe or downspout; (4) the bursting,
leaking or running of any tank, water closet, drain or other pipe; (5)
water, snow or ice upon or coming through the roof, skylight, stairs,
doorways, windows, walks or any other place upon or near the Building;
(6) any act or omission of any party other than Landlord or Landlord
Related Parties; and (7) any causes not reasonably within the control
of Landlord. Tenant shall insure itself against such losses under
Article XV below.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) 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; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within the Premises ("Tenant's Property"); (3) Workers' Compensation
Insurance as required by the state in which the Premises is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing any of
Tenant's Insurance shall have an A.M. Best rating of not less than A-VIII. All
Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, and agents, and other
designees of Landlord as the interest of such designees shall appear, as
additional insureds. 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 change, cancellation, termination 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
for any reason, and upon renewals at least 15 days prior to the expiration of
the insurance coverage. 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.
Except as specifically provided to the contrary, the limits of either party's'
insurance shall not limit such party's liability under this Lease.
XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant hereby waive and shall cause their respective insurance carriers to waive
any and all rights of recovery, claim, action or causes of action against the
other and their respective trustees, principals, beneficiaries, partners,
officers, directors, agents, and employees, for any loss or damage that may
occur to Landlord or Tenant or any party claiming by, through or under Landlord
or Tenant, as the case may be, with respect to Tenant's Property, the Building,
the Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
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XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty, the Rent
shall abate for the portion of the Premises that is untenantable and
not used by Tenant. Landlord shall have the right to terminate this
Lease if: (1) the Building shall be damaged so that, in Landlord's
reasonable judgment, substantial alteration or reconstruction of the
Building shall be required (whether or not the Premises has been
damaged); (2) Landlord is not permitted by Law to rebuild the Building
in substantially the same form as existed before the fire or casualty;
(3) the Premises have been materially damaged and there is less than 2
years of the Term remaining on the date of the casualty; (4) any
Mortgagee requires that the insurance proceeds be applied to the
payment of the mortgage debt; or (5) a material uninsured loss to the
Building occurs. Landlord may exercise its right to terminate this
Lease by notifying Tenant in writing within 90 days after the date of
the casualty. If Landlord does not terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to repair and restore
the Building and the Leasehold Improvements (excluding any Alterations
that were performed by Tenant in violation of this Lease). However, in
no event shall Landlord be required to spend more than the insurance
proceeds received by Landlord. Landlord shall not be liable for any
loss or damage to Tenant's Property or to the business of Tenant
resulting in any way from the fire or other casualty or from the repair
and restoration of the damage. Landlord and Tenant hereby waive the
provisions of any Law relating to the matters addressed in this
Article, and agree that their respective rights for damage to or
destruction of the Premises shall be those specifically provided in
this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration of
the Premises and make the Premises tenantable again, using standard
working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days
from the date the repair and restoration is started, then regardless of
anything in Section XVII.A above to the contrary, either party shall
have the right to terminate this Lease by giving written notice to the
other of such election within 10 days after receipt of the Completion
Estimate. Tenant, however, shall not have the right to terminate this
Lease if the fire or casualty was caused by the negligence or
intentional misconduct of Tenant, Tenant Related Parties or any of
Tenant's transferees, contractors or licensees.
XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part
of the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the filing of the
claim does not diminish the award which would otherwise be receivable by
Landlord.
XIX. EVENTS OF DEFAULT.
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Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 5 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not cured
within 10 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 10 days, Tenant
shall be allowed additional time (not to exceed 60 days) as is
reasonably necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 10 days, and (2) Tenant diligently
pursues a course of action that will cure the failure and bring Tenant
back into compliance with the Lease. However, if Tenant's failure to
comply creates a hazardous condition, the failure must be cured
immediately upon notice to Tenant. In addition, if Landlord provides
Tenant with notice of Tenant's failure to comply with any particular
term, provision or covenant of the Lease on 3 occasions during any 12
month period, Tenant's subsequent violation of such term, provision or
covenant shall, at Landlord's option, be an incurable event of default
by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud of
creditors or makes an assignment for the benefit of creditors, or
admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law.
E In the case of any ground floor or retail Tenant, Tenant does not take
possession of, or abandons or vacates all or any portion of the
Premises.
F. Tenant is in default beyond any notice and cure period under any other
lease or agreement with Landlord, including, without limitation, any
lease or agreement for parking.
XX. REMEDIES.
A. Upon any default, Landlord shall have the right without notice or
demand (except as provided in Article XIX) to pursue any of its rights
and remedies at Law or in equity, including any one or more of the
following remedies:
1. Terminate this Lease, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender
the Premises, Landlord may, in compliance with applicable Law and
without prejudice to any other right or remedy, enter upon and
take possession of the Premises and expel and remove Tenant,
Tenant's Property and any party occupying all or any part of the
Premises. Tenant shall pay Landlord on demand the amount of all
past due Rent and other losses and damages which Landlord may
suffer as a result of Tenant's default, whether by Landlord's
inability to relet the Premises on satisfactory terms or
otherwise, including, without limitation, all Costs of Reletting
(defined below) and any deficiency that may arise from reletting
or the failure to relet the Premises. "Costs of Reletting" shall
include all costs and expenses incurred by Landlord in reletting
or attempting to relet the Premises, including, without
limitation, reasonable legal fees, brokerage commissions, the
cost of alterations and the value of other concessions or
allowances granted to a new tenant.
2. Terminate Tenant's right to possession of the Premises and, in
compliance with applicable Law, expel and remove Tenant, Tenant's
Property and any parties occupying all or any part of the
Premises. Landlord may (but shall not be obligated to) relet all
or any part of the Premises, without notice to Tenant, for a term
that may be greater or less than the balance of the Term and on
such conditions (which may include concessions, free rent and
alterations of the Premises) and for such uses as Landlord in its
absolute discretion shall determine. Landlord may collect and
receive all rents and other income from the reletting. Tenant
shall pay Landlord on demand all past due Rent, all Costs of
Reletting and any deficiency arising from the reletting or
failure to relet the Premises. Landlord shall not be responsible
or liable for the failure to relet all or any part of the
Premises or for the failure to collect any Rent. The re-entry or
taking of possession of the Premises shall not be construed
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as an election by Landlord to terminate this Lease unless a
written notice of termination is given to Tenant.
3. In lieu of calculating damages under Sections XX.A.1 or XX.A.2
above, Landlord may elect to receive as damages the sum of (a) all
Rent accrued through the date of termination of this Lease or
Tenant's right to possession, and (b) an amount equal to the total
Rent that Tenant would have been required to pay for the remainder
of the Term discounted to present value at the Prime Rate (defined
in Section XX.B. below) then in effect, minus the then present
fair rental value of the Premises for the remainder of the Term,
similarly discounted, after deducting all anticipated Costs of
Reletting.
B. Unless expressly provided in this Lease, the repossession or
re-entering of all or any part of the Premises shall not relieve Tenant
of its liabilities and obligations under the Lease. No right or remedy
of Landlord shall be exclusive of any other right or remedy. Each right
and remedy shall be cumulative and in addition to any other right and
remedy now or subsequently available to Landlord at Law or in equity.
If Landlord declares Tenant to be in default, Landlord shall be
entitled to receive interest on any unpaid item of Rent at a rate equal
to the Prime Rate plus 4%. For purposes hereof, the "Prime Rate" shall
be the per annum interest rate publicly announced as its prime or base
rate by a federally insured bank selected by Landlord in the state in
which the Building is located. Forbearance by Landlord to enforce one
or more remedies shall not constitute a waiver of any default.
XXI. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT. WITHOUT LIMITING THE FOREGOING,
IN NO EVENT SHALL LANDLORD OR ANY MORTGAGEES OR LANDLORD RELATED PARTIES EVER BE
LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY LOST PROFITS OF
TENANT.
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. RELOCATION.
Intentionally deleted.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's
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occupancy of the Premises during the holdover shall be subject to all the terms
and provisions of this Lease and Tenant shall pay an amount (on a per month
basis without reduction for partial months during the holdover) equal to 150% of
the greater of: (1) the sum of the Base Rent and Additional Rent due for the
period immediately preceding the holdover; or (2) the fair market gross rental
for the Premises as reasonably determined by Landlord. No holdover by Tenant or
payment by Tenant after the expiration or early termination of this Lease shall
be construed to extend the Term or prevent Landlord from immediate recovery of
possession of the Premises by summary proceedings or otherwise. In addition to
the payment of the amounts provided above, if Landlord is unable to deliver
possession of the Premises to a new tenant, or to perform improvements for a new
tenant, as a result of Tenant's holdover and Tenant fails to vacate the Premises
within 15 days after Landlord notifies Tenant of Landlord's inability to deliver
possession, or perform improvements, Tenant shall be liable to Landlord for all
damages, including, without limitation, consequential damages, that Landlord
suffers from the holdover.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "Mortgage").
The party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior
to this Lease, a Mortgagee shall have the right at any time to subordinate its
Mortgage to this Lease. If requested by a successor-in-interest to all or a part
of Landlord's interest in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest. Landlord and Tenant shall each, within 10 days after
receipt of a written request from the other, execute and deliver an estoppel
certificate to those parties as are reasonably requested by the other (including
a Mortgagee or prospective purchaser). The estoppel certificate shall include a
statement certifying that this Lease is unmodified (except as identified in the
estoppel certificate) and in full force and effect, describing the dates to
which Rent and other charges have been paid, representing that, to such party's
actual knowledge, there is no default (or stating the nature of the alleged
default) and indicating other matters with respect to the Lease that may
reasonably be requested. Notwithstanding the foregoing, upon written request by
Tenant, Landlord will use reasonable efforts to obtain a non-disturbance,
subordination and attornment agreement from Landlord's then current Mortgagee on
such Mortgagee's then current standard form of agreement. "Reasonable efforts"
of Landlord shall not require Landlord to incur any cost, expense or liability
to obtain such agreement, it being agreed that Tenant shall be responsible for
any fee or review costs charged by the Mortgagee. Upon request of Landlord,
Tenant will execute the Mortgagee's form of non-disturbance, subordination and
attornment agreement and return the same to Landlord for execution by the
Mortgagee. Landlord's failure to obtain a non-disturbance, subordination and
attornment agreement for Tenant shall have no effect on the rights, obligations
and liabilities of Landlord and Tenant or be considered to be a default by
Landlord hereunder.
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent or notice (collectively
referred to as a "notice") shall or may be given to either party by the other,
the notice shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested, or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Article I, except that if Tenant has vacated the Premises (or if the Notice
Address for Tenant is other than the Premises, and Tenant has vacated such
address) without providing Landlord a new Notice Address, Landlord may serve
notice in any manner described in this Article or in any other manner permitted
by Law. Each notice shall be deemed to have been received or given on the
earlier to occur of actual delivery or the date on which delivery is refused,
or, if Tenant has vacated the Premises or the other Notice Address of Tenant
without providing a new Notice Address, three (3) days after notice is deposited
in the U.S. mail or with a courier
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service in the manner described above. Either party may, at any time, change its
Notice Address by giving the other party written notice of the new address in
the manner described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to Landlord's employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall remove Tenant's Property (defined in Article
XV) from the Premises, and quit and surrender the Premises to Landlord, broom
clean, and in good order, condition and repair, ordinary wear and tear excepted.
Tenant shall also be required to remove the Required Removables in accordance
with Article VIII. If Tenant fails to remove any of Tenant's Property within 2
days after the termination of this Lease or of Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Property. Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant's Property.
Tenant shall pay Landlord, upon demand, the expenses and storage charges
incurred for Tenant's Property. In addition, if Tenant fails to remove Tenant's
Property from the Premises or storage, as the case may be, within 30 days after
written notice, Landlord may deem all or any part of Tenant's Property to be
abandoned, and title to Tenant's Property shall be deemed to be immediately
vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the
state in which the Building is located and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such state.
If any term or provision of this Lease shall to any extent be invalid
or unenforceable, the remainder of this Lease shall not be affected,
and each provision of this Lease shall be valid and enforced to the
fullest extent permitted by Law. The headings and titles to the
Articles and Sections of this Lease are for convenience only and shall
have no effect on the interpretation of any part of the Lease.
B. 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 any 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 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.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
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D. Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant, the period of time for the performance of such
action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or
materials, war, civil disturbances and other causes beyond the
reasonable control of the performing party ("Force Majeure"). However,
events of Force Majeure shall not extend any period of time for the
payment of Rent or other sums payable by either party or any period of
time for the written exercise of an option or right by either party.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Building and/or Property referred to herein, and upon such transfer
Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to the successor in interest of Landlord
for the performance of such obligations.
F. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties harmless
from all claims of any other brokers claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify and
hold Tenant and the Tenant Related Parties harmless from all claims of
any brokers claiming to have represented Landlord in connection with
this Lease.
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of Tenant
is authorized to do so on behalf of Tenant; (2) this Lease is binding
upon Tenant; and (3) Tenant is duly organized and legally existing in
the state of its organization and is qualified to do business in the
state in which the Premises are located. If there is more than one
Tenant, or if Tenant is comprised of more than one party or entity, the
obligations imposed upon Tenant shall be joint and several obligations
of all the parties and entities. If Tenant is a partnership, then each
present and future partner shall be personally bound by and upon all of
the covenants, agreements, terms, provisions and conditions to be
performed by Tenant. Landlord may request (and Tenant shall comply)
that Tenant, at the time that Tenant admits any new partner to its
partnership, require each new partner to execute an agreement in form
and substance satisfactory to Landlord under which the new partner
shall agree to be personally bound by and upon all of the covenants,
agreements, terms, provisions and conditions to be performed by Tenant,
without regard to when the new partner is admitted to the partnership
(or when any obligations under any of covenants, agreements, terms,
provisions and conditions accrue). Notices, payments and agreements
given or made by, with or to any one person or entity shall be deemed
to have been given or made by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This Lease
shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this Lease
shall inure only to the benefit of and be binding only upon Landlord
and Tenant and their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or early
termination of this Lease. Without limiting the scope of the prior
sentence, it is agreed that Tenant's obligations under Sections IV.A,
IV.B., VIII, XIV, XX, XXV and XXX shall survive the expiration or early
termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
such party.
K. All understandings and agreements previously made between the parties
are superseded by this Lease, and neither party is relying upon any
warranty, statement or representation not contained in this Lease. This
Lease may be modified only by a written agreement signed by Landlord
and Tenant.
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L. Tenant, within 15 days after request, shall provide Landlord with a
current financial statement and such other information as Landlord may
reasonably request in order to create a "business profile" of Tenant
and determine Tenant's ability to fulfill its obligations under this
Lease. Landlord, however, shall not require Tenant to provide such
information unless Landlord is requested to produce the information in
connection with a proposed financing or sale of the Building. Upon
written request by Tenant, Landlord shall enter into a commercially
reasonable confidentiality agreement covering any confidential
information that is disclosed by Tenant.
XXXII. ENTIRE AGREEMENT.
This Lease and the following exhibits and attachments constitute the
entire agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: EXHIBIT A (Outline and Location of Premises),
EXHIBIT B (Rules and Regulations), EXHIBIT C (Commencement Letter), EXHIBIT D
(Work Letter Agreement) and EXHIBIT E (Commencement Date Agreement (for
recording).
Landlord and Tenant have executed this Lease as of the day and year
first above written.
WITNESS/ATTEST: LANDLORD:
EOP-NEW ENGLAND EXECUTIVE PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
/s/ Hannah Song By: /s/ Tom Bakke
Name (print): Hannah Song Name: Thomas Q. Bakke
---------------------------------- Title: Vice President
Name (print):
-------------------
WITNESS/ATTEST: TENANT:
ZAMBA CORPORATION, A DELAWARE CORPORATION
By: /s/ Peter D. Marton
/s/ Melissa L. Lightbody
Name: Peter D. Marton
Name (print): Melissa L. Lightbody
Title: COO
----------------------------------
Name (print):
-------------------
19
