EXHIBIT 10.8
LEASE
LANDLORD: Hood Business Park LLC, a Massachusetts Limited
Liability Company
TENANT: HarvardNet Inc., a Delaware Corporation
PREMISES: Hood Business Park, Charlestown, Massachusetts
DATED: October 30, 1998
TABLE OF CONTENTS
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ARTICLE CAPTION PAGE
I REFERENCE DATA 1
(A) Subjects Referred To 1
(B) Exhibits 2
II PREMISES 2
III TERM AND CONSTRUCTION 3
(A) Term 3
(B) Landlord's Required Work 3
(C) Intentionally Omitted 4
(D) General Construction Provisions 4
IV LANDLORD'S COVENANTS 4
(A) Landlord's Covenants During The Term 4
(B) Interruptions 5
V RENT 5
(A) Fixed Rent 5
(B) Additional Rent - Operating and Tax Expenses 6
(C) Additional Rent - Electricity, Gas, Water & Sewer 9
VI TENANT'S COVENANTS 9
VII DEFAULT 13
(A) Events of Default 13
(B) Obligations Thereafter 14
VIII CASUALTY AND TAKING 15
(A) Casualty And Taking 15
(B) Reservation Of Award 15
IX MORTGAGEE 16
(A) Subordination To Mortgages 16
(B) Limitation On Mortgagee's Liability 17
(C) No Release Or Termination 17
X GENERAL PROVISIONS 18
(A) Captions 18
(B) Short Form Lease 18
(C) Relocation 18
(D) Notices 18
(E) Successors And Assigns 18
(F) No Surrender 19
(G) Waivers And Remedies 19
(H) Self-Help 20
(I) Estoppel Certificate 20
(J) Waiver Of Subrogation 20
(K) Brokers 21
(L) Landlord's Defaults 21
(M) Effectiveness Of Lease 21
(N) Hazardous Materials 21
(O) Delays 21
XI SECURITY DEPOSIT 21
XII XXXXXXXXXXXX 00
XXXX XXXXXX 00
(X) Xxxxxx Xxxx 00
(X) Option Rent 24
Exhibit A Plan Showing Location Of The Building
Exhibit B Landlord's Required Work
Exhibit B-1 Plan Showing Layout of Space
Exhibit C Intentionally Omitted
Exhibit D Landlord's Services
Exhibit E Rules And Regulations
Exhibit F Legal Description Of Lot
Lease dated as of the ____ day of October, 1998, by and between Hood
Business Park LLC, a Massachusetts Limited Liability Company, as landlord
("Landlord"), and HarvardNet Inc., a Delaware corporation, as tenant ("Tenant").
ARTICLE I
REFERENCE DATA
1. (A) SUBJECTS REFERRED TO:
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(A):
LANDLORD'S ADDRESS: 00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
LANDLORD'S MANAGING AGENT: Xxxxxxxx Company
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
TENANT'S ADDRESS: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx
BUILDING: That certain building designated as "500 Xxxxxxxxxx
Avenue" upon Exhibit A.
RENTABLE FLOOR AREA OF TENANT'S SPACE:
WAREHOUSE: APPROXIMATELY 17,519 SQUARE FEET
OFFICE: APPROXIMATELY 6,280 SQUARE FEET
TOTAL RENTABLE FLOOR AREA OF THE BUILDING:
WAREHOUSE: APPROXIMATELY 109,148 SQUARE FEET
OFFICE: APPROXIMATELY 191,716 SQUARE FEET
ANTICIPATED DELIVERY DATE:
OCTOBER 31, 1998, FOR THE WAREHOUSE SPACE; AND
JANUARY 1, 1999 FOR THE OFFICE SPACE
ORIGINAL TERM: FIVE (5) YEARS FROM THE
COMMENCEMENT DATE
OPTION TERM: ONE (1) OPTION FOR FIVE (5) YEARS
FIXED RENT FOR THE OFFICE SPACE:
COMMENCING UPON THE DELIVERY OF THE OFFICE SPACE TO TENANT AND THEREAFTER
DURING EACH YEAR OF THE ORIGINAL TERM:
$147,580.00 /YEAR; $12,298.33/MONTH
FIXED RENT FOR THE WAREHOUSE SPACE:
DURING EACH YEAR OF THE ORIGINAL TERM: $205,848.25/YEAR; $17,154.02/MONTH
FIXED RENT DURING EACH YEAR OF THE OPTION TERM:
THAT FIXED RENT DETERMINED AS SET FORTH IN SECTION (B) OF ARTICLE 13 OF
THIS LEASE
ADDITIONAL RENT FOR TAXES AND OPERATING COSTS:
TENANT'S PROPORTIONATE SHARE OF REAL ESTATE TAXES AND OPERATING COSTS IN
EXCESS OF AN AMOUNT EQUAL TO THE PRODUCT OF $4.85 PER SQUARE FOOT AND THE
RENTABLE SQUARE FOOT FLOOR AREA OF TENANT'S OFFICE SPACE; AND IN EXCESS OF
AN AMOUNT EQUAL TO THE PRODUCT OF $2.75 PER SQUARE FOOT AND THE RENTABLE
SQUARE FOOT FLOOR AREA OF TENANT'S WAREHOUSE SPACE.
SECURITY DEPOSIT: $88,357.05 GUARANTOR: NONE
PERMITTED USE: GENERAL OFFICE AND WAREHOUSE
PURPOSES
PUBLIC LIABILITY INSURANCE LIMITS:
BODILY INJURY: $2,000,000.00
PROPERTY DAMAGE: $ 500,000.00
(B) EXHIBITS
The exhibits listed below in this Section are incorporated in this lease
by reference and are to be construed as part of this lease:
EXHIBIT A Plan Showing Location of the Building
EXHIBIT B Landlord's Required Work
EXHIBIT B-1 Plan Showing Layout of Space
EXHIBIT C Intentionally Omitted
EXHIBIT D Landlord's Services
EXHIBIT E Rules and Regulations
EXHIBIT F Legal Description of Lot
ARTICLE II
PREMISES
2. PREMISES
Subject to and with the benefit of the provisions of this lease, Landlord
hereby leases to Tenant, and Tenant leases from Landlord, Tenant's space in the
Building, excluding exterior faces of exterior walls, all common facilities of
the Building and all building service fixtures and equipment serving
(exclusively or in common) other parts of the Building. Tenant's space includes
approximately 17,519 square feet of warehouse space and approximately 6,280
square feet of office space. The Building is outlined in red upon the plan
attached as Exhibit A. Tenant's space, with such exclusions, is hereinafter
referred to as "the demised premises". Tenant shall have, as appurtenant to the
demised premises, the right to use in common with others entitled thereto,
subject to reasonable rules from time to time made by Landlord of which Tenant
is given notice: (i) the common facilities from time to time included in the
Building or on the parcel of land on which the Building is located (said parcel
being more particularly described in Exhibit F and being hereafter referred to
as "the Lot"), to the extent from time to time designated by Landlord; and (ii)
the building service fixtures and equipment serving the demised premises. The
Lot is represented by the area outlined by a bold line upon said Exhibit A. It
is understood and agreed that said plan is intended only to show the approximate
size of the Lot as presently constituted and the approximate size and location
of the Building and for no other purpose. Landlord reserves the right from time
to time (a) to install, repair, replace, use, maintain and relocate for service
to the demised premises and to other parts of the Building or either, building
service fixtures and equipment wherever located in the Building; (b) to alter,
relocate or eliminate any other common facility; (c) to designate specific
parking areas upon the Lot to be for the exclusive use of one or more users
thereof; (d) to designate specific traffic routes for trucks and other delivery
vehicles; (e) to alter the size of the Building, including, without limitation,
converting warehouse space to office space
or office space to warehouse space; and (f) to increase and/or decrease the size
of the Lot by the acquisition of adjacent land and/or the disposition of any
portions thereof. No such increase or decrease shall be deemed to have occurred
until Landlord shall give Tenant notice thereof. Landlord warrants that there
shall always be parking for at least two and one half (2 1/2) cars per 1000
square feet of office space and one and one half (1 1/2) cars per 1000 square
feet of warehouse space. Landlord agrees that in exercising its rights hereunder
it shall not unreasonably interfere with the conduct of Tenant's business in the
demised premises and there shall always be visitor parking reasonably proximate
to the front doors of the Building.
ARTICLE III
TERM AND CONSTRUCTION
3. (A) TERM
To have and to hold for a period ("the Term" or "the Original Term")
commencing when the warehouse space comprising part of the demised premises is
deemed ready for occupancy as provided hereinbelow (being hereafter referred to
as "the Commencement Date") and, unless sooner terminated as provided herein,
ending at the end of the Term; provided that if the Term (calculated as
aforesaid) would expire prior to the last day of a calendar month, the Term
shall be extended so as to expire on the last day of such calendar month.
(B) LANDLORD'S REQUIRED WORK
Landlord agrees to use reasonable efforts to complete Landlord's Required
Work (described in Exhibit B) on or before the Approximate Delivery Date, which
shall, however, be extended for a period equal to that of any delays due to
governmental regulations, scarcity of or inability to obtain labor or materials,
labor difficulties, casualty or other causes reasonably beyond Landlord's
control. The warehouse space comprising part of the demised premises shall be
deemed ready for occupancy on the earlier of:
(a) the date on which Tenant occupies all or any part of the warehouse
space comprising part of the demised premises for the conduct of its business;
or
(b) the substantial completion of Landlord's Required Work as so certified
by Landlord's general contractor, and the issuance of a certificate of occupancy
for
the warehouse space comprising part of the demised premises.
The office space containing part of the demised premises shall be deemed ready
for occupancy on the earlier of:
(i) the date on which Tenant occupies all or any part of the office space
comprising part of the demised premises for the conduct of its business; or
(ii) the substantial completion of Landlord's Required Work as so
certified by Landlord's general contractor, and the issuance of a certificate of
occupancy for the office space comprising part of the demised premises.
Landlord shall permit Tenant access (at Tenant's sole risk) for installing
equipment and furnishings in the demised premises prior to the Term if it can be
done without material interference with, or delay of, Landlord's work in the
demised premises and/or in other portions of the Building. Tenant shall have the
right to install one (1) satellite dish not more than 18" in diameter in a
location approved therefor by Landlord and not more than two (2) antenna of a
height and size approved by Landlord in a location approved by Landlord. Tenant
shall have the right to use the Building risers to connect said devices to the
demised premises. Tenant shall have the right to install an emergency generator
of reasonable size and a fuel tank of reasonable size to run same. The fuel tank
and generator shall be located in a loading bay inside or outside in a location
approved by Landlord. Tenant shall have the right to run a conduit approved by
Landlord from the generator to the demised premises and from the office space
thereof to the warehouse space thereof. Finally, Tenant shall have the right to
engage any telecommunications company approved by Landlord and certified by the
Massachusetts Department of Telecommunications and Energy, to have access to the
Building and the demised premises to install conduit and cabling approved by
Landlord and necessary for the conduct of Tenant's business. Landlord agrees
that its consent to the foregoing shall not be unreasonably withheld, delayed or
conditioned.
(C) INTENTIONALLY OMITTED
(D) GENERAL CONSTRUCTION PROVISIONS
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 authorities and insurance rating or inspection bureaus
having jurisdiction over the Building. Either party may inspect the work of the
other at reasonable times and shall promptly give notice of observed defects.
Landlord's Required Work shall be deemed to have been performed upon the
Commencement Date except for items which are incomplete or do not conform with
the requirements of Exhibit B and as to which Tenant shall, in either case, have
given written notice to Landlord prior to the Commencement Date, except for
latent defects or seasonal defects of which notice is given to Landlord within
twelve (12) months of the Commencement Date.
ARTICLE IV
LANDLORD'S COVENANTS
4. (A) LANDLORD'S COVENANTS DURING THE TERM:
Landlord covenants during the Term:
(1) To furnish, through Landlord's employees or independent contractors,
the services listed in Exhibit D; and
(2) Except as otherwise provided in this lease, to make such structural
repairs to the roof, exterior walls, and common facilities of the Building and
the Lot as may be necessary to keep them in serviceable condition.
(B) INTERRUPTIONS
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 (a) power losses or shortages, or (b) the necessity of Landlord's entering
the demised premises for any of the purposes in this lease authorized, including
without limitation, for repairing or altering the demised premises or any
portion of the Building or for bringing materials into and/or through the
demised premises in connection with the making of repairs or alterations.
Landlord agrees to use reasonable efforts to restore any such service.
In case Landlord is prevented or delayed from making any repairs,
alterations or improvements or furnishing any service or performing any other
covenant or duty to be performed on Landlord's part, by reason of any cause
reasonably beyond Landlord's control, Landlord shall not be liable to Tenant
therefor, nor, except as expressly otherwise provided in Article VIII, shall
Tenant be entitled to any abatement or reduction of rent by reason thereof, nor
shall the same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the demised
premises. Landlord reserves the right to stop any service or utility system when
necessary in Landlord's opinion by reason of accident or emergency or until
necessary repairs have been completed. Except in case of emergency repairs,
Landlord will give Tenant reasonable advance notice of any contemplated stoppage
and, in any event, Landlord will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof. Landlord agrees that if there is a
stoppage of such service or utility system for more than ten (10) business days,
and if Tenant cannot reasonably conduct its business in the demised premises as
a result thereof, Fixed Rent shall thereafter xxxxx until such service or
utility system is restored or Tenant is again able reasonably to conduct its
business in the demised premises.
ARTICLE V
RENT
5. (A) FIXED RENT
Tenant agrees to pay, without any offset or reduction whatever (except as
made in accordance with the express provisions of this lease), fixed monthly
rent equal to 1/12th of the Fixed Rent, such rent to be paid in equal
installments in advance on the first day of each calendar month included in the
Term provided, however, that no fixed monthly rent shall be payable for the
office space until the date same are delivered to Tenant as set forth in Article
3 above; and for any portion of a calendar month at the beginning or end of the
Term, a portion of such fixed monthly rent, prorated on a per diem basis. All
payments of Fixed and additional rent shall be made in lawful money of the
United States and shall be made to Hood Business Park LLC and sent to Landlord's
Managing Agent at Managing Agent's Address set forth in Section (A) of Article I
above, or to such other person and/or at such other address as Landlord may from
time to time designate.
If any payment of rent or any other payment payable hereunder by Tenant to
Landlord shall not be paid within the grace period set forth in Article VII
hereof, the same shall bear interest from the date when the same was payable
until the date paid at the lesser of (a) twelve percent (12%) per annum, or (b)
the highest lawful rate of interest which Landlord may charge to Tenant without
violating any applicable law. Such interest shall constitute additional rent
payable hereunder.
(B) ADDITIONAL RENT - OPERATING AND TAX EXPENSES
(1) For the purposes of this Section, "Tax Year" shall mean the
twelve-month period in use in the City of Boston for the purpose of imposing ad
valorem taxes upon real property. In the event that said City changes the period
of its tax year, "Tax Year" shall mean a twelve-month period commencing on the
first day of such new tax year, and each twelve-month period commencing on an
anniversary of such date during the Term of this lease; "the Property" shall
mean the Lot and all improvements thereon from time to time, including the
Building; "the Office Escalation Factor" shall mean a fraction the numerator of
which is the Rentable Floor Area of Tenant's Office Space and the denominator of
which is the Total Rentable Floor Area of the office space in the Building. The
"Warehouse Escalation Factor" shall mean a fraction the numerator of which is
the Rentable Floor Area of Tenant's warehouse space and the denominator of which
is the Total Rentable Floor Area of warehouse space of the Building; "the
Building's Share of
Real Estate Taxes" shall mean the sum of (i) the real estate taxes upon the
Building (determined in accordance with the real estate tax xxxx, the assessor's
records or a certification from the assessor), plus (ii) the product of the real
estate taxes upon the Lot and a fraction the numerator of which is the number of
square feet of Rentable Floor Area contained within the Building and the
denominator of which is the number of square feet of rentable floor area
contained within all buildings located upon the Lot provided, however, that for
purposes of this sub-subsection (ii), if any portion of the Lot shall be
separately assessed, the real estate taxes towards which Tenant shall be
obligated to contribute shall include only those taxes on those portions of the
Lot jointly assessed with the portion of the Lot on which the Building is
located; and the denominator of the Office Escalation Factor shall be the Total
Rentable Floor Area of the office space contained within all buildings located
upon those portions of the Lot jointly assessed with the portion of the Lot on
which the Building is located. Any betterment assessment, so-called "rent tax"
or any other tax levied or imposed by any governmental authority in addition to,
in lieu of or as a substitute for real estate taxes shall nevertheless be deemed
to be real estate taxes for the purpose of this Section (B). Furthermore, to the
extent that any equipment installed as part of the Property (e.g. heating or air
conditioning equipment) shall be classified as personal property for purposes of
taxation, any personal property taxes thereon shall be deemed to be real estate
taxes for purposes of this Section (B). Real estate taxes shall not include any
franchise, estate, inheritance, succession, capital levy or transfer tax of
Landlord, or any income tax of Landlord.
"Operating Year" shall mean each successive fiscal year (as adopted by
Landlord) in which any part of the Term of this lease shall fall.
"Operating and Tax Expenses" shall mean the Buildings's Share of Real
Estate Taxes plus all costs or expenses reasonably incurred for the operation,
cleaning, maintenance, repair and upkeep of the Property, including, without
limitation, all costs of maintaining and repairing the Property (including snow
removal, landscaping and grounds maintenance, parking lot operation and
maintenance, security, operation and repair of heating and air-conditioning
equipment, elevators, lighting and any other Building equipment or systems) and
of all repairs and replacements (other than repairs or replacements for which
Landlord has received full reimbursement from contractors, other tenants of the
Building or from others) necessary to keep the Property in good working order,
repair, appearance and condition; all costs, including material and equipment
costs, for cleaning and janitorial services to the Building (including window
cleaning of the Building); all costs of any reasonable insurance carried by
Landlord relating to the Property; all costs related to provision of heat
(including oil, electric, steam and/or gas), air-conditioning, and water
(including sewer charges) and other utilities to the Building, if not separately
metered; payments under all service contracts relating to the foregoing; all
compensation, fringe benefits, payroll taxes and workmen's compensation
insurance premiums related thereto with respect to any employees of Landlord or
its affiliates, at customary rates and at or below the grade of building
manager, engaged in security and maintenance of the Property; attorneys' fees
and disbursements (exclusive of any such fees and disbursements incurred in tax
abatement proceedings or the preparation or enforcement of leases or in any
financing or refinancing) and auditing and other professional fees and expenses;
and a management fee at market rates customarily paid with respect to buildings
similar to the Building.
There shall not be included in such Operating and Tax Expenses brokerage fees
(including rental fees) related to the operation of the Building; interest and
depreciation charges incurred on the Property; or expenditures made by Tenant
with respect to (i) cleaning, maintenance and upkeep of the demised premises;
and (ii) the provision of electricity to the demised premises.
If, during the Term of this lease, Landlord shall replace any capital items or
make any capital expenditures which are required by law or are intended to
reduce operating expenses (collectively called "capital expenditures") the total
amount of which is not properly included in Operating and Tax Expenses for the
calendar year in which they were made, there shall nevertheless be included in
Operating and Tax Expenses for each calendar year in which and after such
capital expenditure is made the annual charge-off of such capital expenditure,
with an appropriate allocation being made between warehouse space and office
space as same may be affected by such capital expenditure. (Annual charge-off
shall be determined by (i) dividing the original cost of the capital expenditure
by the number of years of useful life thereof [the useful life shall be
reasonably determined by Landlord in accordance with
generally accepted accounting principles and practices in effect at the time of
acquisition of the capital item]; and (ii) adding to such quotient an interest
factor computed on the unamortized balance of such capital expenditure based
upon an interest rate reasonably determined by Landlord as being the interest
rate then being charged for long term mortgages by institutional lenders on like
properties within the locality in which the Building is located.) Provided,
further, that if Landlord reasonably concludes on the basis of engineering
estimates that a particular capital expenditure will effect savings in Operating
and Tax Expenses and that such annual projected savings will exceed the annual
charge-off of such capital expenditure computed as aforesaid, then and in such
events, the annual charge-off shall be shall be determined by dividing the
amount of such capital expenditure by the number of years over which the
projected amount of such savings shall fully amortize the cost of such capital
item or the amount of such capital expenditure; and by adding the interest
factor, as aforesaid.
If during any portion of any year for which Operating and Tax Expenses are being
computed, the Building was not fully occupied by tenants or if not all of such
tenants were paying fixed rent or if Landlord was not supplying all tenants
with the services being supplied hereunder, actual Operating and Tax Expenses
incurred shall be reasonably extrapolated by Landlord to the estimated Operating
and Tax Expenses that would have been incurred if the Building were fully
occupied by tenants and all such tenants were then paying fixed rent or if such
services were being supplied to all tenants, and such extrapolated amount shall,
for the purposes of this Section (B) be deemed to be the Operating and Tax
Expenses for such year.
Base Operating and Tax Expenses for Office Space: that amount equal to the
product of $4.85 per square foot and the rentable square foot floor area of all
office space in the Building.
Base Operating and Tax Expenses for Warehouse Space: that amount equal to
the product of $2.75 per square foot and the rentable square foot floor area of
all warehouse space in the Building.
(2) After the expiration of each Operating Year, Landlord shall furnish
Tenant with a statement setting forth in reasonable detail the Operating and Tax
Expenses for all the Warehouse Space and for all the Office Space of the
Property for such Operating Year. Such statement shall be accompanied by a
computation of the amount, if any, of the additional rent payable to Landlord
pursuant to this Section.
(3) In the event the respective Operating and Tax Expenses during any
Operating Year shall be greater than the respective Base Operating and Tax
Expenses, Tenant shall pay to Landlord as additional rent an amount equal to the
excess of the Operating and Tax Expenses for the Warehouse Space and/or the
Office Space, as the case may be, for such Operating Year over and above the
Base Operating and Tax Expenses for the Warehouse Space and/or the Office Space,
as the case may be, multiplied by the Warehouse Escalation Factor and/or the
Office Escalation Factor, as the case may be.
(4) Said additional rent shall, with respect to the Operating Years in
which the Commencement Date and end of the Term of this lease fall, be adjusted
to that proportion thereof as the portion of the Term of this lease falling
within such Operating Year bears to the full Operating Year. If Landlord shall
change its fiscal year, appropriate adjustments shall be made for any Operating
Year of less than twelve months which may result.
(5) Any additional rent payable by Tenant under this Section (B) shall be
paid within ten (10) days after Landlord has furnished Tenant with the statement
described above.
(6) In the event of any taking of the Building or buildings under
circumstances whereby this lease shall not terminate, the Escalation Factor
shall be appropriately adjusted to reflect any change in the Rentable Floor Area
of Tenant's Office Space and/or Warehouse Space and/or the Total Rentable Floor
Area of office space and/or warehouse space in all buildings in the Property,
and the Base Operating and Tax Expenses shall be reduced in proportion to the
reduction in the Total Rentable Floor Area of office and/or warehouse space in
the Property.
(7) If with respect to any Operating Year, or fraction thereof, during the
Term, Tenant is obligated to pay any additional rent as aforesaid, then at
Landlord's election Tenant shall pay, as additional rent, on the first day of
each month of the next ensuing Operating Year, estimated monthly operating
escalation payments equal to 1/12th of the annualized amount of additional rent
payable hereunder for said previous Operating Year. Estimated monthly operating
escalation and tax payments for each ensuing Operating Year shall be made
retroactively to the first day of the Operating Year in question, with an
appropriate additional payment or refund to be made at the time set forth in
Paragraph (5) of this Section.
(C) ADDITIONAL RENT - ELECTRICITY, GAS, WATER & SEWER
(1) Tenant shall pay for all electric service as metered in Tenant's
office space and in Tenant's warehouse space; and Tenant shall pay for the gas
consumed by the unit heaters in Tenant's warehouse space. Landlord shall pay for
the customary water and sewer usage in the office space.
(2) Tenant's use of electricity in the demised premises shall not at any
time exceed the capacity of any of the electrical conductors or equipment in or
otherwise serving the demised premises, so long as such conductors and equipment
are of reasonable standards for such space and the proposed uses.
ARTICLE VI
TENANT'S COVENANTS
6. TENANT'S COVENANTS DURING THE TERM.
Tenant covenants during the Term and such other time as Tenant occupies
any part of the demised premises:
(1) To pay when due (a) all Fixed Rent and additional rent, (b) all taxes
which may be imposed on Tenant's personal property in the demised premises
(including, without limitation, Tenant's fixtures and equipment) regardless to
whomever assessed, and (c) all charges by any public utility for telephone and
other utility services rendered to the demised premises;
(2) Except as otherwise provided in Article VIII and Section 4(A)(2), to
keep the demised premises in good order, repair and condition, reasonable wear
only excepted; to replace all light bulbs as necessary; maintain and replace all
interior glass; keep all utilities, pipes, conduits, drains and other
installations used in connection with the demised premises, including , without
limitation, the heating, ventilating and air conditioning systems which serve
only the warehouse space comprising part of the demised premises in good order,
condition and repair; and at the expiration or termination of this lease
peaceably to yield up the demised premises and all changes and additions therein
in such order, repair and condition, first removing all goods and effects of
Tenant and those claiming under Tenant and any items the removal of which is
required by any agreement between Landlord and Tenant (or specified therein to
be removed at Tenant's election and which Tenant elects to remove), and
repairing all damage caused by such removal and restoring the demised premises
and leaving them clean and neat. Notwithstanding anything to the contrary
contained herein, Tenant shall forthwith remove from the demised premises
(repairing any damage caused by such removal) any installations, alterations,
additions or improvements made by Tenant or Landlord as part of Landlord's
Required Work or as part of Tenant's work, and which Landlord requests Tenant to
remove by notice given at the time of installation of the same, such removal to
include returning the previously modified portions of the demised premises to
their condition prior to the making of such installations, alterations,
additions or improvements. Tenant's obligations hereunder shall survive the
expiration or termination of the term of this lease. For purposes of this
Section (2) the word "repairs" includes the making of replacements when
necessary. Tenant shall keep the warehouse space comprising part of the demised
premises clean and
free of refuse and provide all necessary janitorial services to said warehouse
space. Tenant shall provide snow and ice removal from the stairs, entrances and
loading docks serving said warehouse space;
(3) To use and occupy the demised premises only for the Permitted Use; and
not to injure or deface the demised premises, Building, or Lot; and not to
permit in the demised premises any auction sale, nuisance, or the emission from
the demised premises of any objectionable noise or odor; nor any use thereof
which is improper, offensive, contrary to law or ordinances, or liable to
invalidate or increase the premiums for any insurance on the Building (or any
portion thereof) or its contents, or liable to render necessary any alteration
or addition to the Building;
(4) To comply with the rules and regulations set forth in Exhibit E and
all other reasonable rules and regulations hereafter made by Landlord (but only
after copies thereof have been delivered to Tenant) for the care and use of the
Building and Lot and their facilities and approaches, it being expressly
understood, however, that Landlord shall not be liable to Tenant for the failure
of other tenants of the Building to conform to such rules and regulations.
Landlord agrees that it shall not discriminate against Tenant in enforcing said
rules and regulations;
(5) To keep the demised premises equipped with all safety appliances
required by law or ordinance or any other regulation of any public authority
and/or any insurance inspection or rating bureau having jurisdiction pursuant to
the specific use made by Tenant of the demised premises (including hand held
fire extinguishers), and to procure all licenses and permits required because of
any use made by Tenant and, if requested by Landlord, to do any work required
because of such use, it being understood that the foregoing provisions shall not
be construed to broaden in any way the Permitted Use;
(6) Not without the prior written consent of Landlord to assign,
hypothecate, pledge or otherwise encumber this lease, to make any sublease or to
permit occupancy of the demised premises or any part thereof by anyone other
than Tenant, voluntarily or by operation of law, and as additional rent, to
reimburse Landlord promptly upon demand for reasonable legal and other expenses
incurred by Landlord in connection with any request by Tenant for consent to
assignment or subletting. Landlord agrees that it shall not unreasonably
withhold, delay or condition such consent. If Landlord shall consent to any
assignment of this lease by
Tenant or a subletting of the whole of the demised premises by Tenant at a rent
which exceeds the rent payable hereunder by Tenant, or if Landlord shall consent
to a subletting of a portion of the demised premises by Tenant at a rent in
excess of the subleased portion's prorata share of the rent payable hereunder by
Tenant, then Tenant shall pay to Landlord, as additional rent forthwith upon
Tenant's receipt of each installment of any such excess rent, one half (1/2) the
amount of any such excess rent after deducting reasonable expenses related
thereto. Each request by Tenant for permission to assign this lease or to sublet
the whole or any part of the demised premises shall be accompanied by a warranty
by Tenant as to the amount of rent to be paid to Tenant by the proposed assignee
or sublessee. For purposes of this
Section (6), the term "rent" shall mean all fixed rent, additional rent or other
payments and/or consideration payable by one party to another for the use and
occupancy of premises. Tenant agrees, however, that neither it nor anyone
claiming under it shall enter into any sublease, license, concession or other
agreement for use, occupancy or utilization of space in the demised premises
which provides for rental or other payment for such use, occupancy or
utilization based, in whole or in part, on the net income or profits derived by
any person or entity from the space leased, used, occupied or utilized (other
than an amount based on a fixed percentage or percentages of receipts or sales),
and Tenant agrees that any such purported sublease, license, concession or other
agreement shall be absolutely void and ineffective as a conveyance of any right
or interest in the possession, use, occupancy, or utilization of any part of the
demised premises. Tenant further agrees that any sublease, license, concession
or agreement for use, occupancy or utilization of space in the demised premises
entered into by it or by anyone claiming under it shall contain the provisions
set forth in the immediately preceding sentence. If there shall be any
assignment or subletting by Tenant pursuant to the provisions of this paragraph,
Tenant shall remain primarily liable for the performance and observance of the
covenants and agreements herein contained on the part of Tenant to be performed
and observed, such liability to be (in the case of any assignment) joint and
several with that of such assignee. It is expressly understood and agreed that
no assignment of Tenant's interest in this lease shall be effective until such
time as Tenant shall deliver to Landlord an agreement from the assignee, which
agreement shall be reasonably satisfactory to Landlord in form and substance and
shall provide that the assignee agrees with Landlord to be primarily liable for
the performance and observance of the covenants and agreements herein contained
on the part of Tenant to be performed and observed, such liability to be joint
and several with that of Tenant. Landlord hereby agrees, however, that Tenant
may assign its interest in this lease or sublet the whole of the demised
premises to (a) a corporation which owns all of the outstanding stock of Tenant
("Tenant's Parent"); (b) a corporation wholly owned by Tenant or by Tenant's
Parent ("a Subsidiary"); (c) a corporation resulting from the consolidation or
merger of Tenant with any other corporation; or (d) a business organization
which shall acquire all or substantially all of the stock or assets of Tenant
provided, however, that in the case of (c) and (d) above, the net worth of the
surviving entity or assignee shall be at least equal to that of the net worth of
Tenant both immediately prior to the assignment and immediately thereafter.
Notwithstanding the foregoing provisions, if the assignment or subletting is to
a Subsidiary, said assignment or subletting shall be valid only for such period
of time as said Subsidiary is wholly owned by Tenant or Tenant's Parent unless
otherwise permitted above. In the event that Tenant or Tenant's Parent shall
ever sell or otherwise transfer any interest in said Subsidiary to another
person or entity, unless Landlord shall have specifically assented thereto, the
same shall be deemed to be a material breach of this lease;
(7) To defend Landlord, with counsel reasonably acceptable to Landlord,
save Landlord harmless from, and indemnify Landlord against any liability for
injury, loss, accident or damage to any person or property and from any claims,
actions, proceedings and expenses and costs in connection therewith (including,
without implied limitation, reasonable counsel's fees): (i) arising from the
omission, fault, willful act, negligence or other misconduct of Tenant or anyone
claiming under Tenant, or from any use made or thing done or occurring upon or
about the demised premises but not due to the omission, fault, willful act,
negligence or other misconduct of Landlord, or (ii) resulting from the failure
of Tenant to perform and discharge its covenants and obligations under this
lease. Landlord agrees to save Tenant harmless from and indemnify Tenant
against, to the extent permitted by law, any and all injury, loss or damage, and
any and all claims for injury, loss or damage, of whatever nature, caused by or
resulting from, or claimed to have been caused by or to have resulted from, any
act, omission, or negligence of Landlord or its agents or employees. It is a
condition of the foregoing indemnification by each of Tenant and Landlord that
the indemnitor shall be notified with reasonable promptness of any suits,
proceedings, claims or demands with respect to which the indemnitee requests
indemnification, and the indemnitor shall have the right to assume the entire
control of the defense, compromise or settlement thereof, and the indemnitee
shall cooperate fully with the indemnitor in such defense;
(8) To maintain public liability insurance upon the demised premises in
amounts which shall, at the beginning of the Term, be at least equal to
$2,000,000.00 for bodily injury or death to one or more individuals and
$500,000.00 for damage to property, 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 demised premises are located upon property similar in type and use to
the demised premises. Such insurance shall name Landlord, Landlord's Managing
Agent, and Landlord's Mortgagee as additional insureds. Tenant shall deliver to
Landlord the policies of such insurance, or certificates thereof, at least
fifteen (15) days prior to the Commencement Date, and each renewal policy or
certificate thereof, at least
fifteen (15) days prior to the expiration of the policy it renews. Each such
policy shall be written by a responsible insurance company authorized to do
business in the Commonwealth of Massachusetts and shall provide that the same
shall not be modified or terminated without at least twenty (20) days' prior
written notice to each named insured;
(9) To keep all employees working in the demised premises covered by
workmen's compensation insurance in amounts required by law, and to furnish
Landlord with certificates thereof;
(10) To permit Landlord and its agents entry, after reasonable notice
during regular business hours and accompanied by Tenant if Tenant so requests
(provided, however, that in an emergency, Landlord may enter at any time with or
without Tenant, upon the giving of whatever notice is reasonable in the
circumstances): to examine the demised premises at reasonable times and, if
Landlord shall so elect, to make repairs, alterations and replacements; to
remove, at Tenant's expense, any changes, additions, signs, curtains, blinds,
shades, awnings, aerials, flagpoles, or the like not consented to in writing;
and to show the demised premises to prospective tenants during the nine (9)
months preceding the expiration of the Term and to prospective purchasers and
mortgagees at all reasonable times;
(11) Not to place a load upon any part of the floor of the demised
premises exceeding that for which said floor was designed or in violation of
what is allowed by law; and not to move any safe, vault or other heavy equipment
in, about or out of the demised premises except in such manner and at such times
as Landlord shall approve in writing in each instance. Tenant's business
machines and mechanical equipment which cause vibration or noise that may be
transmitted to the Building structure or to any other space in the Building
shall be placed and maintained by Tenant in settings of cork, rubber, spring, or
other types of vibration eliminators sufficient to confine such vibration or
noise to the demised premises;
(12) 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 demised premises by Tenant or anyone claiming under Tenant, may
be on the demised premises or elsewhere in the Building or on the Lot 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 the 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, unless
caused by the gross negligence or willful conduct of Landlord or its agents;
(13) To pay promptly when due the entire cost of any work done on the
demised premises by Tenant and those claiming under Tenant; not to cause or
permit any liens for labor or materials performed or furnished in connection
therewith to attach to the demised premises; and immediately to discharge any
such liens which may so attach;
(14) Not to make any alterations, improvements, changes or additions to
the demised premises without Landlord's prior written consent. Landlord agrees
that it shall not unreasonably withhold or delay its consent to interior, non
structural alterations, improvements, changes or additions to the demised
premises;
(15) To pay to Landlord two (2) times the total of the Fixed Rent and
additional rent then applicable for each month or portion thereof that Tenant
shall retain possession of the demised premises or any part thereof after the
termination of this lease, whether by lapse of time or otherwise, and also to
pay all damages sustained by Landlord on account thereof; however, the
provisions of this subsection shall not operate as a waiver by Landlord of any
right of re-entry provided in this lease or as a matter of law;
(16) To insure the contents, equipment, and improvements of Tenant and
those claiming under Tenant, under policies covering at least fire and the
standard extended coverage risks, in amounts equal to the replacement cost
thereof, the terms of which policies shall provide that such insurance shall not
be canceled without at least twenty (20) days' prior written notice to Landlord.
Copies of such insurance policy or policies, or certificates there of, shall be
delivered to Landlord at least fifteen (15) days prior to the Commencement Date
and each renewal policy or certificate thereof, at least fifteen (15) days prior
to the expiration of the policy it renews; and
(17) To pay Landlord's expenses, including reasonable attorney's fees,
incurred in enforcing any obligation of Tenant in this lease. Landlord agrees to
pay Tenant's expenses, including reasonable attorney's fees, incurred in
enforcing any
obligation of Landlord in this lease.
ARTICLE VII
DEFAULT
7. (A) EVENTS OF DEFAULT
(1) If Tenant shall default in the payment of Fixed Rent, additional rent
or other payments required of Tenant, and if Tenant shall fail to cure said
default within seven (7) days after receipt of notice of said default from
Landlord, or (2) if Tenant shall default in the performance or observance of any
other agreement or condition on its part to be performed or observed and if
Tenant shall fail to cure said default within fifteen days after receipt of
notice of said default from Landlord (but if longer than fifteen days shall be
reasonably required to cure said default, then if Tenant shall fail to commence
the curing of such default within fifteen days after receipt of said notice and
diligently prosecute the curing thereof to completion), or (3) if any person
shall levy upon, or take this leasehold interest or any part thereof upon
execution, attachment or other process of law, or (4) if Tenant or Guarantor
shall make an assignment of its property for the benefit of creditors, or (5) if
Tenant or Guarantor shall be declared bankrupt or insolvent according to law, or
(6) if any bankruptcy or insolvency proceedings shall be commenced by or against
Tenant or Guarantor and, if against, if not dismissed within ninety (90) days,
or (7) if a receiver, trustee or assignee shall be appointed for the whole or
any part of Tenant's or Guarantor's property, then in any of said cases,
Landlord lawfully may immediately, or at any time thereafter, and without any
further notice or demand, enter into and upon the demised premises or any part
thereof in the name of the whole, and hold the demised premises as if this lease
had not been made, and expel Tenant and those claiming under it and remove its
or their property without being taken or deemed to be guilty of any manner of
trespass (or Landlord may send written notice to Tenant of the termination of
this lease), and upon entry as aforesaid (or in the event that Landlord shall
send Tenant notice of termination as above provided, on the fifth day next
following the date of the sending of the notice), the term of this lease shall
terminate. Notwithstanding the provisions of clauses (1) and (2) of the
immediately preceding sentence, if Landlord shall have rightfully given Tenant
notice of default pursuant to either or both of said clauses twice during any
twelve-month period, and if Tenant shall thereafter default in the payment of
Fixed Rent, additional rent or other payments and/or the performance or
observance of any
other agreement or condition required of Tenant, then Landlord may exercise the
right of termination provided for it in said immediately preceding sentence
without first giving Tenant notice of such default and the opportunity to cure
the same within the time provided in said clause (1) and/or clause (2), as the
case may be. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event Landlord terminates this
lease as provided in this Article.
(B) OBLIGATIONS THEREAFTER
In case of any such termination, Tenant will indemnify Landlord each month
against all loss of Fixed Rent and additional rent and against all obligations
which Landlord may incur by reason of any such termination between the time of
termination and the expiration of the Term; or at the election of Landlord,
exercised at the time of termination or at any time thereafter, Tenant will
indemnify Landlord each month until the exercise of the election against all
loss of Fixed Rent and additional rent and against all obligations which
Landlord may incur by reason of such termination during the period between the
time of the termination and the exercise of the election, and upon the exercise
of the election Tenant will pay to Landlord as damages the present value at
prime rate of such amount as at the time of the exercise of the election
represents the amount by which the rental value of the demised premises for the
period from the exercise of the election until the expiration of the Term shall
be less than the amount of rent and other payments provided herein to be paid by
Tenant to Landlord during said period. It is understood and agreed that at the
time of the termination or at any time thereafter Landlord may rent the demised
premises, and for a term which may expire before or after the expiration of the
Term, without releasing Tenant from any liability whatsoever, that Tenant shall
be liable for any reasonable expenses incurred by Landlord in connection with
obtaining possession of the demised premises, with removing from the demised
premises property of Tenant and persons claiming under it (including warehouse
charges), with putting the demised premises into good condition for reletting,
and with any reletting, including, but without limitation, reasonable attorneys'
fees and brokers fees, and that any monies collected from any reletting shall be
applied first to the foregoing expenses and then to the payment of Fixed Rent,
additional rent and all other payments due from Tenant to Landlord.
ARTICLE VIII
CASUALTY AND TAKING
8. (A) CASUALTY AND TAKING
In case during the Term all or any substantial part of the demised
premises, the Building, or Lot or any one or more of them, are damaged by fire
or any other casualty or by action of public or other authority or are taken by
eminent domain, this lease shall terminate at Landlord's election, which may be
made notwithstanding Landlord's entire interest may have been divested, by
notice given to Tenant within thirty days after the occurrence of the event
giving rise to the election to terminate. Said notice shall, in the case of
damage as aforesaid, specify the effective date of termination which shall be
not less than thirty nor more than sixty days after the date of notice of such
termination. In the case of any such taking by eminent domain, the effective
date of the termination shall be the day on which the taking authority shall
take possession of the taken property. Fixed Rent and additional rent shall be
apportioned and adjusted as of the effective date of any such termination. If in
any such case the demised premises are rendered unfit for use and occupation and
this lease is not so terminated, Landlord shall use due diligence to put the
demised premises, or, in the case of a taking, what may remain thereof
(excluding any items which Tenant may be required or permitted to remove from
the demised premises at the expiration of the Term) into proper condition for
use and occupation, but Landlord shall not be required to spend more than the
net proceeds of insurance or award of damages it receives therefor, and a just
proportion of the Fixed Rent and additional rent according to the nature and
extent of the injury to the demised premises shall be abated until the demised
premises or such remainder shall have been put by Landlord in such condition;
and in case of a taking which permanently reduces the area of the demised
premises, a just proportion of the Fixed Rent shall be abated for the remainder
of the Term. Appropriate consideration shall be given as to whether the part so
taken is warehouse space or office space. Notwithstanding the foregoing, if
there shall be damage or destruction to the demised premises by fire or other
casualty which shall not be repaired or restored by Landlord within a period of
twelve (12) months after the date of such damage or destruction, then Tenant, as
Tenant's sole remedy, may terminate the Term of this lease by a notice to
Landlord within sixty (60) days after the expiration of such twelve (12) month
period; provided that said repair or restoration shall not have been completed
prior to the receipt by Landlord of said notice.
(B) RESERVATION OF AWARD
Landlord reserves to itself any and all rights to receive awards made for
damage to the demised premises, Building or Lot and the leasehold hereby
created, or any one or more of them, accruing by reason of any exercise of the
right of eminent domain or by reason of anything done in pursuance of public or
other authority. Tenant hereby releases and assigns to Landlord all of 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 irrevocably
designating and appointing Landlord as its attorney-in-fact to execute and
deliver in Tenant's name and behalf all such further assignments thereof. 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
equipment installed by Tenant or anybody claiming under Tenant at its own
expense or (ii) relocation expenses, but in each case only if and to the extent
that such damages are recoverable by Tenant from such authority in a separate
action and without reducing Landlord's award of damages.
ARTICLE IX
MORTGAGEE
9. (A) SUBORDINATION TO MORTGAGES
It is agreed that the rights and interest of Tenant under this lease shall
be: (i) subject and subordinate to the lien of any present or future first
mortgage and to any and all advances to be made thereunder, and to the interest
thereon, upon the demised premises or any property of which the demised premises
are a part, if the holder of such mortgage shall elect, by notice to Tenant, to
subject and subordinate the rights and interest of Tenant under this lease to
the lien of its mortgage; or (ii) prior to the lien of any present or future
first mortgage, if the holder of such mortgage shall elect, by notice to Tenant,
to give the rights and interest of Tenant under this lease priority to the lien
of its mortgage. It is understood and agreed that the holder of such mortgage
may also elect, by notice to Tenant, to make some provisions hereof subject and
subordinate to the lien of its mortgage while granting other provisions hereof
priority to the lien of its mortgage. In the event of any of such elections, and
upon notification by the holder of such mortgage to that effect, the rights and
interest of Tenant under this lease shall be deemed to be subordinate to, or to
have priority over, as the case may be, the lien of said mortgage, irrespective
of the time of execution or time of recording of any such mortgage. Tenant
agrees that it will, upon request of Landlord, execute, acknowledge and deliver
any and all instruments deemed by Landlord necessary or desirable to
evidence or to give notice of such subordination or priority. Tenant also agrees
that if it shall fail at any time to execute, acknowledge and deliver any such
instrument reasonably requested by Landlord, Landlord may, in addition to any
other remedies available to it, execute, acknowledge and deliver such instrument
as the attorney-in-fact of Tenant and in Tenant's name; and Tenant does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact and in
its name, place and stead so to do. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments and modifications,
consolidations, extensions, renewals, replacements and substitutes thereof.
Whether the lien of any mortgage upon the demised premises or any property of
which the demised premises are a part shall be superior or subordinate to this
lease and the lien hereof, Tenant agrees that it will, upon request, attorn to
the holder of such mortgage or anyone claiming under such holder and their
respective successors and assigns in the event of foreclosure of or similar
action taken under such mortgage. Tenant further agrees that it shall not
subordinate its interest in this lease to the lien of any junior mortgage,
security agreement or lease affecting the demised premises, unless the holder of
the first mortgage upon the demised premises or property which includes the
demised premises shall consent thereto. Notwithstanding anything to the contrary
contained in this Article 9, Tenant shall not be required to subordinate this
lease and the lien hereof to the lien of any mortgage unless the holder of such
mortgage shall enter into an agreement with Tenant, recordable in form, to the
effect that in the event of foreclosure of, or similar action taken under, such
mortgage, Tenant's possession of the demised premises shall not be terminated or
disturbed by such mortgage holder or anyone claiming under such mortgage holder
so long as Tenant shall not be in default under this lease. Landlord agrees to
use best efforts to obtain such an agreement from the present mortgagee of the
Property. Best efforts shall not require Landlord to pay any money.
(B) LIMITATION ON MORTGAGEE'S LIABILITY
Upon entry and taking possession of the mortgaged premises for any
purpose, the holder of a mortgage shall have all rights of Landlord, and during
the period of such possession Landlord, not such mortgage holder, shall have the
duty to perform all of Landlord's obligations hereunder. No such holder shall be
liable, either as a mortgagee or as holder of a collateral assignment of this
lease, to perform, or be liable in damages for failure to perform, any of the
obligations of Landlord unless and until such holder shall succeed to Landlord's
interest herein through foreclosure
of its mortgage or the taking of a deed in lieu of foreclosure, and thereafter
such mortgage holder shall not be liable for the performance of any of
Landlord's obligations hereunder, except for the performance of those
obligations which arise during the period of time that such mortgage holder
holds Landlord's right, title and interest in this lease, such liability to be
limited to the same extent as Landlord's liability is limited pursuant to
Section 10(E) hereof.
(C) NO RELEASE OR TERMINATION
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this lease, or by law, to be relieved of any of
Tenant's obligations hereunder or to terminate this lease, shall result in a
release or termination of such obligations or a termination of this lease unless
(i) Tenant shall have first given written notice of Landlord's act or failure to
act to Landlord's mortgagees of record, if any, specifying the act or failure to
act on the part of Landlord which could or would be the basis of Tenant's rights
and (ii) such mortgagees, after receipt of such notice, have failed or refused
to correct or cure the condition complained of within a reasonable time
thereafter, but nothing contained in this Section (C) shall be deemed to impose
any obligation on any such mortgagee to correct or cure any such condition.
"Reasonable time" as used above means and includes a reasonable time to obtain
possession of the mortgaged premises, if the mortgagee elects to do so, and a
reasonable time to correct or cure the condition. Finally, Tenant agrees that so
long as any present or future mortgage shall remain in effect Tenant shall not
alter, modify, amend, change, surrender or cancel this lease nor pay the rent
due hereunder in advance for more than thirty (30) days, except as may be
required herein, without the prior written consent of the holder thereof, and
Tenant will not seek to be made an adverse or defendant party in any action or
proceeding brought to enforce or foreclose such mortgage.
ARTICLE X
GENERAL PROVISIONS
10. (A) CAPTIONS
The captions of the Articles are for convenience and are not to be
considered in construing this lease.
(B) SHORT FORM LEASE
Upon request of either party both parties shall execute and deliver a
short form of this lease in form appropriate for recording, and if this lease is
terminated before the Term expires, an instrument in such form acknowledging the
date of termination. No such short form lease shall contain any indication of
the amount of the rentals payable hereunder by Tenant.
(C) RELOCATION
Intentionally Omitted.
(D) NOTICES
All notices and other communications authorized or required hereunder
shall be in writing and shall be given by mailing the same by certified or
registered mail, return receipt requested, postage prepaid, by mailing the same
by Express Mail or by having the same delivered by a commercial delivery service
such as Federal Express, UPS, Purolator Courier and the like. If given to Tenant
the same shall be directed to Tenant at Tenant's Address, with a copy to Xxxx
and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx
X. Xxxxxxxxx, Esquire, or to such other person or at such other address as
Tenant may hereafter designate by notice to Landlord; and if given to Landlord
the same shall be directed to Landlord at Landlord's Address, or to such other
person or at such other address as Landlord may hereafter designate by notice to
Tenant. In the event the notice directed as above provided shall not be received
upon attempted delivery thereof to the proper address and shall be returned by
the Postal Service or delivery service to the sender because of a refusal of
receipt, the absence of a person to receive, or otherwise, the time of the
giving of such notice shall be the first business day on which delivery was so
attempted.
After receiving notice from Landlord or from any person, firm or other
entity that such person, firm or other entity holds a mortgage which includes
the demised premises as part of the mortgaged premises, no notice from Tenant to
Landlord shall be effective unless and until a copy of the same is given by
certified or registered mail to such holder, and the curing of any of Landlord's
defaults by such holder shall be treated as performance by Landlord, it being
understood and agreed that such
holder shall be afforded a reasonable period of time after the receipt of such
notice in which to effect such cure.
(E) SUCCESSORS AND ASSIGNS
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 heirs, legal representatives, successors and assigns, except that the
Landlord named herein and each successive owner of Landlord's interest in this
lease shall be liable only for the obligations of Landlord accruing during the
period of its ownership. Whenever Landlord's interest in this lease is owned by
a trustee or trustees, the obligations of Landlord shall be binding upon
Landlord's trust estate, but not upon any trustee, beneficiary or shareholder of
the trust individually. Without limiting the generality of the foregoing, and
whether or not Landlord's interest in this lease is owned by a trustee or
trustees, Tenant specifically agrees to look solely to Landlord's interest in
the Building and Lot for recovery of any judgment from Landlord, it being
specifically agreed that neither Landlord, any trustee, beneficiary or
shareholder of any trust estate for which Landlord acts nor any person or entity
claiming by, through or under Landlord shall ever otherwise be personally liable
for any such judgment.
(F) 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 demised premises.
(G) WAIVERS AND REMEDIES
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, or, with respect to such failure of Landlord, any of the rules and
regulations referred to in Section 6(4), whether heretofore or hereafter adopted
by Landlord, 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, nor shall the failure of
Landlord to enforce any of said rules and regulations against any other tenant
in the Building be deemed a waiver of any such
rules or regulations as far as Tenant is concerned. The receipt by Landlord of
Fixed Rent or additional rent with knowledge of the breach of any covenant of
this lease shall not be deemed a waiver of such breach by Landlord unless such
waiver be in writing signed by Landlord. 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. 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 available to it. The specific remedies to
which Landlord 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 Tenant
of any provisions of this lease. In addition to the other remedies provided in
this lease, Landlord 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. In addition to
other remedies provided in this lease, Tenant 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 undertaken by Landlord or
to a decree compelling specific performance by Landlord of any such covenants,
conditions, or provisions made by Landlord. If any term of this lease, or the
application thereof to any person or circumstances shall be held, to any extent,
to 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 has
been held 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. If any interest to be paid by Tenant hereunder shall exceed the highest
lawful rate which Landlord may recover from Tenant, such interest shall be
reduced to such highest lawful rate of interest.
(H) SELF-HELP
If Tenant shall at any time default in the performance of any obligation
under
this lease after the expiration of any applicable grace period, Landlord shall
have the right, but shall not be obligated, to enter upon the demised premises
and to perform such obligation, notwithstanding the fact that no specific
provision for such performance by Landlord is made in this lease with respect to
such default. In performing such obligation, Landlord may make any payment of
money or perform any other act. All sums so paid by Landlord (together with
interest, from the time paid by Landlord until the time Tenant repays the same
to Landlord, at the rate of interest per annum as set forth in Section (A) of
Article V above), shall be deemed to be additional rent and shall be payable to
Landlord immediately on demand. Landlord may exercise the foregoing right
without waiving any other of its rights or releasing Tenant from any of its
obligations under this lease.
(I) ESTOPPEL CERTIFICATE
Landlord and Tenant agree from time to time after the Commencement Date,
upon not less than ten (10) days' prior written request by either party, to
execute, acknowledge and deliver to the other a statement in writing certifying
that this lease is unmodified and in full force and effect; that Landlord and
Tenant have completed their required work; 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; that Landlord has no
defenses, offsets or counterclaims against its obligation to perform its
covenants under this lease; that there are no uncured defaults of Landlord or
Tenant under this lease (or, if there have been any modifications, that this
lease 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 (I) may be relied upon by any prospective purchaser or
mortgagee of premises which include the demised premises or any prospective
assignee of any such mortgagee.
(J) WAIVER OF SUBROGATION
(1) Tenant hereby releases Landlord to the extent of Tenant's insurance
coverage, from any and all liability for any loss or damage caused by fire or
any of the extended coverage casualties or any other casualty insured against,
even if such fire or other casualty shall be brought about by the fault or
negligence of Landlord
or its agents, provided, however this release shall be in force and effect only
with respect to loss or damage occurring during such time as Tenant's policies
covering such loss or damage shall contain a clause to the effect that this
release shall not affect said policies or the right of Tenant to recover
thereunder. Tenant agrees that its fire and other casualty insurance policies
will include such a clause so long as the same is includable without extra cost,
or if extra cost is chargeable therefor, so long as Landlord pays such extra
cost. If extra cost is chargeable therefor, Tenant will advise Landlord thereof
and of the amount thereof. Landlord at its election, may pay the same, but shall
not be obligated to do so.
(2) Landlord hereby releases Tenant, to the extent of the Landlord's
insurance coverage, from any and all liability for any loss or damage caused by
fire or any of the extended coverage casualties or any other casualty insured
against, even if such fire or other casualty shall be brought about by the fault
or negligence of Tenant or its agents, provided, however, this release shall be
in force and effect only with respect to loss or damage occurring during such
time as Landlord's policies covering such loss or damage shall contain a clause
to the effect that this release shall not affect said policies or the right of
Landlord to recover thereunder. Landlord agrees that its fire and other casualty
insurance policies will include such a clause so long as the same is includable
without extra cost, or if extra cost is chargeable therefor, so long as Tenant
pays such extra cost. If extra cost is chargeable therefor, Landlord will advise
Tenant thereof and of the amount thereof. Tenant at its election may pay the
same, but shall not be obligated to do so.
(K) BROKERS
Tenant and Landlord hereby represent and warrant to the other that they
have dealt with no broker in connection with this lease other than XX Xxxxxxxx
Partners and Xxxxxxxxx & Xxxx ("the Listed Broker/s"), and there are no other
brokerage commissions or other finders' fees payable in connection herewith.
Tenant hereby agrees to hold Landlord harmless from, and indemnified against,
all loss or damage (including without limitation, the cost of defending the
same) arising from any claim by any broker other than"the Listed Broker/s,
claiming to have dealt with Tenant. Landlord hereby agrees to hold Tenant
harmless from, and indemnified against, all loss or damage (including without
limitation, the cost of defending the same) arising from any claim by any broker
claiming to have dealt with Landlord. Landlord agrees to pay the brokerage
commission due the Listed Broker/s by separate
agreement.
(L) LANDLORD'S DEFAULTS
Landlord shall not be deemed to have committed a breach of any obligation
to make repairs or alterations or perform any other act unless: (1) it shall
have made such repairs or alterations or performed such other act negligently;
or (2) it shall have received notice from Tenant designating the particular
repairs or alterations needed or the other act of which there has been failure
of performance and shall have failed to make such repairs or alterations or
performed such other act within a reasonable time after the receipt of such
notice; and in the latter event Landlord's liability shall be limited to the
cost of making such repairs or alterations or performing such other act.
(M) EFFECTIVENESS OF LEASE
The submission of this lease for examination does not constitute a
reservation of, or option for, the demised premises, and this lease becomes
effective as a lease only upon execution and unconditional delivery thereof by
both Landlord and Tenant.
(N) HAZARDOUS MATERIALS
Tenant shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active or other
hazardous substances, or materials. Tenant shall not allow the storage or use of
such substances or materials in any manner not sanctioned by the applicable
permits, or by law or by the highest standards prevailing in the industry for
the storage and use of such substances or materials, nor allow to be brought
into the Lot any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Landlord acknowledges
that Tenant may have hazardous materials present in the warehouse space,
provided, however, if any permit or license is required therefor, Tenant shall
first obtain Landlord's consent thereto. Tenant shall obtain and maintain all
proper permits required by applicable law or ordinance for the storage and use
of hazardous materials, and Tenant shall furnish evidence of same upon request.
Without limitation, hazardous substances and materials shall include those
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any
applicable state or local laws and the regulations adopted under these acts. If
any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of hazardous materials, and if such
testing reveals that Tenant is responsible for any release of hazardous
materials, then the reasonable costs thereof shall be reimbursed by Tenant to
Landlord upon demand as additional rent if such requirement applies to the
demised premises. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's reasonable request concerning
Tenant's best knowledge and belief regarding the presence of hazardous
substances or materials on the demised premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this lease from any
release of hazardous materials on the demised premises occurring while Tenant is
in possession, or elsewhere if caused by Tenant or persons acting under Tenant.
The within covenants shall survive the expiration or earlier termination of the
term of this lease.
(O) DELAYS
In any case where either party hereto is required to do any act (other
than
make a payment of money), delays caused by or resulting from Act of God, war,
civil commotion, fire or other casualty, labor difficulties, shortages of labor,
materials or equipment, government regulations or other causes beyond such
party's reasonable control (other than such party's financial condition) shall
not be counted in determining the time during which such act shall be completed,
whether such time be designated by a fixed date, a fixed time or "a reasonable
time". In any case where work is to be paid for out of insurance proceeds or
condemnation awards, due allowance shall be made, both to the party required to
perform such work and to the party required to make such payment, for delays in
the collection of such proceeds and awards. The foregoing shall not however,
extend the period of restoration following any fire or other casualty
ARTICLE XI
SECURITY DEPOSIT
11. Landlord acknowledges that it has received from Tenant the Security
Deposit, as security for the payment of rents and the performance and observance
of the agreements and conditions in this lease contained on the part of Tenant
to be performed and observed. In the event of any default or defaults in such
payment, performance or observance Landlord may apply said sum or any part
thereof toward the curing of any such default or defaults and/or toward
compensating Landlord for any loss or damage arising from any such default or
defaults. Upon the yielding up of the demised premises at the expiration or
other termination of the Term, if Tenant shall not then be in default or
otherwise liable to Landlord, said sum or the unapplied balance thereof shall be
returned to Tenant. It is understood and agreed that Landlord shall always have
the right to apply said sum, or any part thereof, as aforesaid in the event of
any such default or defaults, without prejudice to any other remedy or remedies
which Landlord may have, or Landlord may pursue any other such remedy or
remedies in lieu of applying said sum or any part thereof. Landlord agrees that
it shall place said sum in an interest bearing account of Landlord's choosing
and all interest payable on said sum or any part thereof shall accrue for the
benefit of Tenant. Tenant shall pay all taxes payable on said interest. If
Landlord shall apply said sum or any part thereof as aforesaid, Tenant shall
upon demand pay to Landlord the amount so applied by Landlord, to restore the
security to its original amount. Whenever the holder of Landlord's interest in
this lease, whether it be the Landlord named in this lease or any transferee of
said Landlord, immediate or remote, shall transfer its interest in this lease,
said holder shall turn over to its
transferee said sum or the unapplied balance thereof, and thereafter such holder
shall be released from any and all liability to Tenant with respect to said sum
or its application or return, it being understood that Tenant shall thereafter
look only to such transferee with respect to said sum, its application and
return. The holder of any mortgage upon property which includes the demised
premises shall never be responsible to Tenant for said sum or its application or
return unless said sum shall actually have been received in hand by such holder.
ARTICLE XII
MODIFICATION
12. In the event that any holder or prospective holder of any mortgage
which includes the demised premises as part of the mortgaged premises, shall
request any modification of any of the provisions of this lease, other than a
provision directly related to the rents payable hereunder, the duration of the
term hereof, or the size, use or location of the demised premises, or any of
Tenant's other material rights under this lease, Tenant agrees that Tenant will
enter into an amendment of this lease containing each such modification so
requested.
ARTICLE XIII
OPTION
13. (A) OPTION TERM
Tenant shall have the right, at its election, to extend the Original Term
of this lease for either the warehouse space, or the office space, or both, for
an additional period of five (5) years commencing upon the expiration of the
Original Term, provided that Landlord shall receive written notice from Tenant
of the exercise of its election at least nine (9) months prior to the expiration
of the Original Term and provided further that Tenant shall not be in default
beyond any applicable cure period at the time of Landlord's receipt of such
notice in the performance or observance of any of the terms and agreements in
this lease contained on the part of Tenant to be performed or observed. Prior to
the exercise by Tenant of said election to extend the Original Term, the
expression "the Term of this lease" or any equivalent expression shall mean the
Original Term; after the exercise by Tenant of the aforesaid election, the
expression the "Term" or "the Term of this lease" or any equivalent expression
shall mean the Original Term as extended. Except as
expressly otherwise provided in this lease, all the agreements and conditions in
this lease contained shall apply to the additional period to which the Original
Term shall be extended as aforesaid. If Landlord shall receive notice of the
exercise of the election in the manner and within the time provided aforesaid,
the Original Term shall be extended upon the receipt of the notice without the
requirement of any action on the part of Landlord.
(B) OPTION RENT
During the additional period for which the Original Term of this lease may
be extended as set forth in Section (A) above, the Fixed Rent payable hereunder
shall be adjusted so as to equal the greater of (a) the Fixed Rent payable
immediately prior thereto for the warehouse space, or the office space, or both,
as the case may be, or (b) the annual fair market rental value (the "Market
Value Rent") of the warehouse space, or the office space, or both, as the case
may be, as mutually determined by Landlord and Tenant through the process of
negotiation. Notwithstanding anything to the contrary contained herein, however,
if for any reason whatsoever Landlord and Tenant shall not agree in writing upon
the Market Value Rent for said additional period not later than six (6) months
prior to the commencement thereof, then Landlord and Tenant each shall give
notice (the "Determination Notice") to the other setting forth their respective
determinations of the Market Value Rent, and, subject to the provisions set
forth below, either party may apply to the American Arbitration Association or
any successor thereto for the designation of an arbitrator to render a final
determination of the Market Value Rent. The arbitrator shall be a licensed MAI
real estate appraiser who shall have at least seven (7) years' continuous
experience in the business of appraising commercial real estate in Boston,
Massachusetts. The arbitrator shall conduct such research and study as the
arbitrator shall deem appropriate and shall, within thirty (30) days after
having been appointed, choose one of the determinations set forth in either
Landlord's or Tenant's Determination Notice, and that choice by the arbitrator
shall be binding upon Landlord and Tenant. Each party shall pay its own counsel
and other advisors' fees and expenses, if any, in connection with the process
set forth in Article XIII, and the parties shall share equally all other
expenses and fees of any such arbitrator. The determination rendered in
accordance with the provisions of this paragraph shall be final and binding in
fixing the Market Value Rent. Notwithstanding the foregoing, in the event that
the determination of the Market Value Rent set forth in the Landlord's and
Tenant's Determination Notices
shall differ by less than five percent (5%) of the smaller of Landlord's or
Tenant's determination thereof, then the Market Value Rent shall not be
determined by arbitration, but shall instead be set by taking the average of the
determinations set forth in Landlord's and Tenant's Determination Notices.
Furthermore, if either party shall fail to send its Determination Notice to the
other party prior to the expiration of ten (10) days after receiving the other
party's Determination Notice, the Market Value Rent shall be conclusively deemed
to be the determination thereof set forth in the Determination Notice which was
provided first. If for any reason the Market Value Rent shall not have been
determined prior to the commencement of said additional period, then, until the
Market Value Rent shall have been finally determined, the Fixed Rent payable
hereunder shall be the amount set forth in clause (a) above. Upon final
determination of the Market Value Rent, an appropriate adjustment to the Fixed
Rent shall be made, if necessary, reflecting such final determination, and
Tenant shall promptly pay to the Landlord any deficiency in the payment of Fixed
Rent from the commencement of said additional period to the date of such final
determination.
EXECUTED as a sealed instrument in two or more counterparts as of the day
and year first above written.
LANDLORD:
HOOD BUSINESS PARK LLC
BY: CATAMOUNT XXXXXXXXXX LLC
ITS MANAGER
/s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx, Manager
TENANT:
HARVARDNET INC.
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxxxx, President
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxxxx, Treasurer
(Corporate Seal)
EXHIBIT A
PLAN SHOWING LOCATION OF THE BUILDING
EXHIBIT B
LANDLORD'S REQUIRED WORK IN WAREHOUSE SPACE
(i) Broom clean;
(ii) Floor painted;
(iii) Fully air conditioned to warehouse standards; and
(iv) One wall to enclose the loading bay doors.
LANDLORD'S REQUIRED WORK IN OFFICE SPACE
Entry way to be brick pavers.
A plan layout is attached as Exhibit B-1.
EXHIBIT C
INTENTIONALLY OMITTED
EXHIBIT D
LANDLORD'S SERVICES
Landlord shall cause the parking areas and driveways of the Lot to be kept
reasonably free and clear of snow, ice and refuse and shall cause the landscaped
areas (if any) of the Lot to be maintained in a reasonably attractive
appearance. Landlord shall also cause the parking areas of the Lot to be kept
lighted during hours of darkness to the extent reasonably required for the
business operations conducted upon the Lot.
Landlord shall provide to the Building hot water for lavatory purposes and
cold water for drinking, lavatory and toilet purposes. Landlord shall also
provide to the Building elevators for the use of all tenants and the general
public. Programming of elevators (including, but not limited to, service
elevators) shall be as Landlord from time to time determines. Landlord shall
cause the common lobbies, corridors, stairways and lavatories within the
Building to be kept reasonably neat and clean and lighted to the extent required
by the business operations conducted within the Building. Landlord shall also
cause the common areas of the Building to be heated and air conditioned during
the heating and air conditioning seasons in a manner consistent with applicable
law and customary practice in Boston, Massachusetts. Landlord shall also provide
central ventilating and air conditioning ("HVAC") service to the office portion
of the demised premises which shall include air conditioning in the cooling
season, and tempered air during the heating season. Tenant shall pay for all
electricity consumed in the warehouse space and office space as separately
metered, and Tenant shall pay for reheating the tempered air in the VAV system.
Finally, Landlord shall provide janitorial service for the office space
comprising part of the demised premises. Subject to the provisions of Section
(O) of Article X, Landlord agrees that throughout the Term, Tenant shall have
access to the demised premises, twenty four (24) hours a day, seven (7) days a
week and fifty two (52) weeks a year. Tenant shall be responsible for cleaning
and maintaining the warehouse space comprising part of the demised premises with
a contractor selected by Tenant. Landlord shall provide security for the Lot 24
hours/day..
EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, paved and/or landscaped areas shall not be obstructed or
encumbered by Tenant or used for any purpose other than ingress and egress to
and from the demised premises. No merchandise, boxes or pallets may be stored by
Tenant outside of the demised premises and no cars, trucks or trailers may be
parked on the Lot overnight without the prior written consent of Landlord.
2. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the demised premises or
Building so as to be visible from outside the demised premises without the prior
written consent of Landlord. In the event of the violation of this paragraph,
Landlord may remove same without any liability, and may charge the expense
incurred in such removal to Tenant, as additional rent.
3. No awnings, curtains, blinds, shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
demised premises or any outside wall of the Building without the prior written
consent of Landlord. Such awnings, curtains, blinds, shades, screens or other
projections must be of a quality, type, design and color, and attached in the
manner, approved by Landlord.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids, chemicals, process water,
cooling water or like substances shall be deposited therein. Said plumbing
fixtures and the plumbing system of the Building shall be used only for the
discharge of so-called sanitary waste. All damage resulting from any misuse of
said fixtures and/or plumbing system by Tenant or anyone claiming under Tenant
shall be borne by Tenant.
5. Tenant must, upon the termination of its tenancy, return to Landlord
all locks, cylinders and keys to the demised premises and any offices therein.
6. Tenant shall, at Tenant's expense, provide artificial light and
electric current for the employees of Landlord and/or Landlord's contractors
while making repairs or alterations in the demised premises.
7. Tenant shall not make, or permit to be made, any unseemly or disturbing
odors or noises or disturb or interfere with occupants of the Building or those
having business with them, whether by use of any musical instrument, radio,
machine, or in any other way.
8. Canvassing, soliciting, and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
9. Tenant shall keep the demised premises free at all times of pests,
rodents and other vermin, and at the end of each business day Tenant shall place
for collection in the place or places provided therefor all trash and rubbish
then in the demised premises.
10. Landlord reserves the right to rescind, alter, waive and/or establish
any rules and regulations, which, in its judgment, are necessary, desirable or
proper for its best interests and the best interests of the occupants of the
Building.
11. All of the work done by Tenant shall be done by such contractors,
labor and means so that, as far as may be possible, all work on the Property,
whether by Landlord or Tenant, shall be done without interruption on account of
strikes, work stoppages or similar causes of delay.
12. The buildings of Hood Business Park are smoke free buildings, and
Tenant shall cause its employees and invitees who smoke to restrict such smoking
to areas designated as "smoking areas" by Landlord from time to time.
EXHIBIT F
LEGAL DESCRIPTION OF LOT
