EXHIBIT 10.19
LEASE
Lease made this 6th day of October, 1987 by Xxxxxxx X. Xxxxx, Xx. as he is
Trustee of Longwater Circle Trust established u/d/t dated October 6, 1987, and
not individually, of Marshfield, Plymouth County, Massachusetts, as landlord
(hereinafter called "Landlord"), and CAP International, Inc., a Massachusetts
corporation having a business office in Marshfield, Massachusetts as tenant
(hereinafter called "Tenant").
PREMISES 1. In consideration of the rents, agreements and conditions
herein reserved and contained on the part of Tenant to be paid,
performed and observed, Landlord does hereby demise and lease to
Tenant, for the term hereinafter set forth, premises hereinafter
described ("the demised premises") in Norwell, Plymouth County,
Massachusetts, as shown upon a certain plan ("the lease plan")
attached to this lease and marked Exhibit A. The demised premises
consist of the building shown upon the lease plan containing
approximately 27,100 square feet of floor area ("the Building")
and the area outlined by a bold line on the lease plan and are
more fully described in Exhibit A-1 hereto.
CONSTRUCTION 2.1 Landlord agrees that the work described in Exhibit B
attached hereto as "Landlord's construction work" will be
prosecuted to completion with due diligence and that said work,
except as provided in Exhibit B, will be done at its own cost and
expense. Landlord agrees that Landlord's construction work shall
be substantially completed and the demised premises suitable for
occupancy on or before April 4, 1988. The demised premises shall
be deemed "substantially completed" when (i) the Building shall be
completely enclosed with all openings secure; (ii) heating, air
conditioning, electric, gas (if any), sprinkler and water systems
of the demised premises shall be installed and operational; (iii)
parking areas and walkways shown upon the lease plan shall be
paved; (iv) interior ceilings, floors, floor coverings, lighting
and toilet facilities of the demised premises shall be installed;
and (v) a temporary or permanent certificate of occupancy shall
have been issued for the demised premises by the appropriate
authority of the Town of Norwell; provided, however, if any
construction which shall not be part of Landlord's construction
work shall be required upon the demised premises as a condition
precedent to the issuance of any such certificate of occupancy,
the issuance of such certificate of occupancy shall not be a
requirement for substantial completion of the demised premises.
Landlord shall deliver possession of the demised premises to
Tenant upon subtantial completion of Landlord's construction work
by delivering the keys to the demised premises to Tenant.
2.2 Landlord agrees to give Tenant at least ten (10) days prior
written notice of the date upon which Landlord estimates that
Landlord's construction work shall be substantially completed.
Landlord further agrees that Landlord shall diligently proceed to
fully complete Landlord's construction work if the same shall not
have been fully completed prior to delivery of possession of the
demised premises to Tenant.
TERM 3.1 The original term of this lease shall be a period of ten
(10) years commencing upon the first to occur of (i) May 1, 1988,
(ii) the date that Landlord's construction work shall be
substantially completed or (iii) the date upon which Tenant shall
commence business operations upon the demised premises and
expiring upon the tenth (10th) anniversary of such commencement
date.
3.2 Tenant agrees that it will not record this lease. Upon the
written request of either party hereto, Landlord and Tenant will
execute an instrument, recordable in form, setting forth the term
and commencement date and such other information as may be
necessary to constitute a "Notice of Lease" under Massachusetts
laws. Tenant will pay the cost of recording said notice of lease.
If this lease is terminated before the expiration of the term
hereof, the parties shall execute, deliver and record an
instrument acknowledging such fact and the actual date of
termination of this lease and Tenant hereby appoints Landlord its
attorney-in-fact in its name and behalf to execute such
instrument.
SECURITY 4. Landlord acknowledges that it has received from Tenant the
sum of Thirty Thousand Dollars ($30,000) 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 towards the curing of any
such default or defaults. Tenant further covenants that it will
not assign or encumber or attempt to assign or encumber said sum
or any part thereof and that neither Landlord nor its successors
or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. Upon the yielding
up of the demised premises at the expiration or other termination
of the term of this lease, if Tenant shall not then be in default
or otherwise liable to
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Landlord, the unapplied balance of said sum 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. No interest shall
be payable on said sum or any part thereof. 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 in its full 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
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.
MINIMUM RENT 5.1 During the first five years of the original term of this
lease Tenant agrees to pay to Landlord a minimum rent at the rate
of Three Hundred Fifty-Nine Thousand Seventy-Five Dollars
($359,075.00), per year. During the second five years of this
lease Tenant agrees to pay to Landlord a minimum rent at the rate
above as such amount may be adjusted pursuant to the provisions
of Section 5.2 hereof. All such minimum rent shall be payable in
equal monthly installments of one-twelfth thereof and shall be
payable in advance upon the first day of each calendar month
included within the term of this lease. Rent for any fraction of
a month at the commencement or termination of the term of this
lease shall be prorated. If the original term shall commence on a
day other than the first day of a month, the installment of
minimum rent payable for the months during which each additional
period, if any, for which the original term of this lease may be
extended, as aforesaid, shall occur shall be prorated on a per
diem basis to reflect the change, if any, in annual rate becoming
effective during that month. All rent and other payments to be
made by Tenant to Landlord shall be made payable to Landlord and
sent to Landlord at the place in which
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notices to Landlord are required to be sent unless Landlord shall
direct otherwise by notice to Tenant. If any installment of
minimum rent or additional rent payable under this lease shall
not be paid within fifteen (15) days after the due date thereof,
Tenant shall pay to Landlord together with such late payment, as
a late charge, in additional to all other amounts payable under
this lease, an amount equal to four (4) percent of the amount not
paid within such fifteen (15) day period.
5.2 The first day of the sixth year of this lease is herein
referred to as an "Adjustment Date." As of each Adjustment Date
the minimum rent (referred to in Section 5.1) shall be increased,
but not decreased, to reflect changes in the Consumer Price Index
for Urban Consumers, Seasonally Adjusted U.S. City Average, All
Items (1967=100) as published by the Bureau of Labor ("the Price
Index") in the same proportion that the Price Index as last
reported prior to such Adjustment Date has increased above the
Price Index for the month of May, 1988 ("Base Year Price Index
Number"). If the Price Index shall cease to use the 1967 average
of 100 as the basis of calculation, or if a substantial change is
made in the terms or number of items contained in the Price
Index, the Base Year Price Index Number shall be adjusted to the
figure that would have been arrived at if the manner of computing
the Base Year Price Index Number had not been altered. If the
Price Index is not available, a reliable governmental or other
non-partisan publication evaluating the information theretofore
used in determining the Price Index shall be used. If the parties
shall be unable to agree upon the dollar amount of the minimum
rent, they shall promptly resolve such dispute by arbitration in
Boston, Massachusetts, by the American Arbitration Association or
its successor, and such arbitration shall be submitted,
commenced, held and determined in accordance with the rules and
regulations of said Arbitration Association or its successors at
the time of any such submission. The expenses thereof shall be
borne equally between Landlord and Tenant unless the arbiters
determine that some other division shall under the circumstances
be more equitable and the determination of the arbiters shall be
conclusive and binding upon the parties. Until the dollar amount
of the minimum rent for any period shall be determined,[??] Until
the dollar amount of the minimum rent after an Adjustment Date is
determined, Tenant shall pay rent at the rate provided in this
Lease immediately prior to such Adjustment Date, and when rent is
determined in accordance with this Section 5.2, Tenant shall pay
Landlord any excess rent
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due for the period which shall have expired since the Adjustment
Date. Tenant shall thereafter pay rent at the rate determined in
accordance with this Section 5.2.
REAL ESTATE 6.1 Tenant shall pay to Landlord as additional rent the
TAXES real estate taxes upon the demised premises for each tax year
included within the term of this lease and a pro rata part of
said real estate taxes for the tax years during which the term of
this lease shall commence and terminate. The expression "real
estate taxes" used herein shall mean all ad valorem taxes and
betterment assessments (and all taxes substituted therefor at any
time during the term hereof) imposed or assessed upon or against
real estate by any public authority having jurisdiction, except
only that if any betterments assessment is payable in
installments, the real estate taxes for any tax year shall
include only such installments of such betterments assessment as
are payable during such tax year; provided only in the case of
each respective betterments assessment that Landlord shall have
elected to pay such assessment in installments over the longest
period permitted by law but not otherwise.
6.2 Promptly upon receipt of any tax xxxx for any tax year the
party receiving the same shall deliver a copy of the same to the
other party hereto but failure to do so shall not constitute a
default hereunder unless such failure continues for 10 days after
written notice thereof. Tenant shall pay directly to the taxing
authority the amount of real estate taxes payable by Tenant
pursuant to this Article at least ten (10) days prior to the time
that such real estate taxes shall be required to be paid to the
taxing authority for said tax year without the accrual of
interest or the payment of a penalty, but, if Tenant shall not
have received a tax xxxx therefor at least twenty (20) days prior
to said time for payment, Tenant shall not be required to make
payment until ten (10) days after the receipt of said xxxx. (If
real estate taxes are payable to any tax authority for any tax
year in installments, the amount payable by Tenant hereunder
shall be payable in similar installments. If real estate taxes
are payable to different taxing authorities for any tax year at
different times, an appropriate apportionment shall be made if
the amount payable by Tenant for said tax year and the
apportioned amount shall be payable at such times). Tenant shall
provide Landlord with a copy of each such tax xxxx receipted by
the taxing authority to indicate full payment of the amount due
not more than fifteen (15) days after the due date of each
installment of real estate taxes
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payable hereunder, it being understood and agreed that if Tenant
shall fail to provide a copy of any such tax xxxx so receipted
and Tenant has not made timely payment of such taxes, Landlord
shall thereafter have the right to require Tenant to make all
payments of real estate taxes payable under this lease to
Landlord, rather than the taxing authority, within the aforesaid
time periods. If the time for payment of taxes with respect to
any real estate taxes payable in whole or in part by Tenant
hereunder shall have occurred prior to commencement of the term
or shall occur after termination of the term, Tenant shall pay to
Landlord upon commencement or termination of the term, as the
case may be, the portion of such tax xxxx payable by Tenant
pursuant to this lease.
Notwithstanding the foregoing, in the event that the holder of
a mortgage on the demised premises requires that real estate
taxes be paid to it in escrow by Landlord, Tenant shall pay,
together with each monthly payment of minimum rent, an amount
equal to one-twelfth (1/12) of the amount of real estate taxes
upon the demised premises and Landlord shall pay the real estate
taxes directly to the taxing authority from the escrowed funds.
Appropriate adjustments shall be made after receipt of the tax
xxxx for any tax year during the term of this lease for any
increase or decrease in said real estate taxes with a
reconciliation to be made within 10 days after receipt of such
tax xxxx.
6.3 The real estate taxes upon the demised premises for any tax
year shall mean such amounts as shall be finally determined,
after deducting abatements, refunds or rebates, if any, to be the
real estate taxes payable with respect to the demised premises
for said tax year. For the purposes of determining payments due
from Tenant to Landlord in accordance with the provisions of this
Article 6, the real estate taxes upon the demised premises for
any tax year shall be deemed to be the real estate taxes assess
for such year until such time as an abatement, refund or rebate
shall be made for any tax year, and, if any abatement, rebate or
refund shall be made for any tax year, an appropriate adjustment
or refund shall be made in the amount payable from or paid by
Tenant to Landlord on account real estate taxes dependent upon
the amount of such abatement, rebate or refund less the cost and
expense of obtaining the same.
6.4 If at least twenty (20) days prior to the last day for
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filing application for abatement of real estate taxes for any tax
year Tenant shall give notice to Landlord that it desires to file
an application for abatement of real estate taxes for said tax
year and, if within ten (10) days after the receipt of said
notice Landlord shall not give notice to Tenant that Landlord
shall file such notice by Tenant, Landlord shall give Tenant
notice that it shall file such application, Landlord shall file
same prior to the expiration of the time for filing of the same
at its own cost and expense. If Tenant shall file an application
for the abatement pursuant to the provisions of this Section,
Tenant will prosecute the same to final determination with due
diligence and shall not, without Landlord's consent, settle,
compromise or discontinue the same except, however, Tenant may
discontinue prosecution of the same at any time after giving
Landlord reasonable notice thereof and an opportunity to take
over prosecution of the same. If Landlord shall file an
application for abatement for any tax year after having received
notice from Tenant that Tenant desires to file an application for
abatement for said tax year, Landlord shall prosecute the same to
final determination with due diligence and shall not, without
Tenant's written consent, settle, compromise or discontinue the
same except, however, Landlord may discontinue the prosecution of
the same at any time after giving Tenant notice thereof and an
opportunity to take over the prosecution of the same.
6.5 All taxes levied on the personal property of Tenant shall
be the obligation of and be paid by Tenant, whether the same
shall be considered part of the realty or personalty and Tenant
agrees to indemnify Landlord against and hold harmless the
Landlord from any loss, damage, debt or claim resulting
therefrom.
REPAIRS AND 7.1 Landlord agrees to make all necessary repairs or
ALTERNATIONS alternations to the property which Landlord is required to
maintain, as hereinafter set forth. The property which Landlord
is required to maintain is the foundation, the roof, the exterior
walls (excluding glass, windows, doors, window sashes and frames
or door frames) and the structural columns, members and beams of
the Building. Notwithstanding the foregoing, if any of said
repairs or alterations shall be made necessary by reason of
repairs, installations, alterations, additions or improvements
made by Tenant or anyone claiming under Tenant, by reason of the
fault or negligence of Tenant or anyone claiming under Tenant, by
reason of a default on the performance or observance of any
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agreements, conditions or other provisions on the part of Tenant
to be performed or observed, or by reason of any special use to
which the demised premises may be put, Tenant shall make all such
repairs or alterations as may be necessary. 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.
7.2 Tenant agrees that it will during the term of this lease
make all repairs and alterations to the property which Tenant is
required to maintain, as hereinafter set forth, which may be
necessary to maintain the same in good repair and condition or
which may be required by any laws, ordinances, regulations or
requirements of any public authorities having jurisdiction,
subject only to the provisions of Article 9 and 10. Tenant agrees
that it will upon the expiration or other termination of the term
of this lease remove its property and that of all persons
claiming under it and will yield up peaceably to Landlord the
demised premises and all property therein other than property of
Tenant or persons claiming under Tenant, broom clean and in good
repair and condition, subject only to the provisions of Articles
9 and 10 and that Tenant's obligation to perform and observe this
covenant shall survive the expiration or termination of the term
of this lease. The property which Tenant is required to maintain
is the demised premises and every part thereof including but
without limitation all walls, floors and ceilings, the heating
system, the air-conditioning system, including rooftop heating
and air-conditioning units if the same are used, all utilities
(water, gas, electricity, drainage, and septic) conduits,
fixtures and equipment within the demised premises, all meters
and all other fixtures and equipment within or appurtenant to the
demised premises, all Tenant's signs (interior and exterior), all
interior and exterior glass, windows, doors, window sashes and
frames and door frames and all driveways, walkways, parking areas
and landscaped areas. Tenant agrees to enter into maintenance
contracts with experienced maintenance
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contractor(s) for the performance of periodic maintenance upon
the heating, ventilating and air conditioning systems of the
Building and to provide Landlord with inspection reports from
such contractors at least annually, the first report to be
furnished not later than the first anniversary of the
commencement of the original term of this lease. Tenant shall
provide Landlord with copies of reinspection reports or holes.
Tenant agrees to pay promptly when due all charges for labor and
materials in connection with any work done by Tenant or anyone
claiming under Tenant upon the demised premises so that the
demised premises shall at all times be free of liens. Tenant
agrees to save Landlord harmless from, and indemnify Landlord
against, any and all claims for injury, loss or damage to person
or property caused by or resulting from the doing of any such
work.
UTILITIES 8.1 Landlord agrees that as of the date of delivery of
possession of the demised premises the Building shall be
connected to the electric and gas lines serving the municipality
wherein the demised premises are located and to the water system
of said municipality. Tenant agrees to pay (or to reimburse
Landlord for) all meter fees assess by such utilities and said
municipality for the connection or metering of the demised
premises.
8.2 Tenant agrees to pay all charges for heat, air-
conditioning, water, gas, electricity and other utilities used by
the demised premises. If a charge shall be made from time to time
by the public authority having jurisdiction for the use of the
sanitary sewer system and/or for the use of the storm sewer
system, Tenant shall pay the same. Tenant agrees that it will at
all times keep sufficient heat in the demised premises to prevent
the pipes therein from freezing. Tenant shall also pay for any
sprinkler stand-by service charge apportionable to the demised
premises.
FIRE OR OTHER 9.1 If the demised premises, or any part thereof, shall
CASUALTY be damaged or destroyed by fire or other casualty, then Tenant
shall promptly thereafter give Landlord written notice thereof
and Landlord shall within a reasonable time after its receipt of
such notice from Tenant, repair or restore the demised premises
to substantially the same condition they were in immediately
prior to the casualty. Landlord shall not be obligated to expend
an amount in excess of the insurance proceeds or damages payable
on account of such damage or destruction in making
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such repair or restoration. In the event of any such damage or
destruction by fire or other casualty, the insurance proceeds or
damages recovered on account of any damage or destruction shall
be made available for the payment of the cost of the aforesaid
repair or restoration. If the insurance proceeds shall be greater
than the cost of repair or restoration, the excess shall belong
to Landlord. A just proportion of the minimum rent according to
the nature and extent of the injury to the demised premises shall
be suspended or abated until the demised premises shall be
repaired or stored by Landlord as aforesaid.
9.2 Insurance against any or all of the risks, including, but
without limitation, fire insurance with extended coverage in an
amount at least equal to the replacement cost of the Building,
insurance against loss or rental income, insurance against loss
or damage from sprinklers, leakage, explosion or cracking of
boilers, pipes, or both, and insurance against such other
casualties as shall be required by the holder of any mortgage
upon the demised premises, may be maintained by Landlord and the
same may be maintained under a blanket policy covering the
demised premises and other real estate of Landlord and/or its
affiliated business organizations. The policies of such insurance
shall be payable in case of loss to the holders of any mortgages
upon the property of which the demised premises are a part as
their interests may appear. Nothing in reasonable evidence that
repairs or replacements were made, if any such repairs or
replacements were recommended in any such inspection report, with
ninety (90) days after the issuance of any such report.
Notwithstanding the foregoing, Tenant shall not be under any
obligation to make any repairs or alterations to the foundation,
the roof, the exterior walls or structural columns, members or
beams of the Building except to the extent provided in Section
7.1. Tenant specifically agrees to replace all glass damaged with
glass of the same kind and quality. Tenant also agrees to paint,
varnish and otherwise redecorate the Interior and exterior of the
building when required to keep the Building attractive in
appearance, but at least once during the first five years and
thereafter on a maintenance basis.
7.3 Tenant agrees that neither it nor anyone claiming under it
will make any installations, alterations, additions or
improvements to or upon the demised premises, except only the
installations, alterations, additions and improvements
specifically described in Exhibit B-1 hereto, without the prior
written
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approval of Landlord. All installations, alterations, additions
and improvements made to or upon the demised premises whether
made by Landlord or Tenant or any other person (except only signs
and movable trade fixtures and equipment installed in the demised
premises prior to or during the term of this lease at the cost of
Tenant or any person claiming under Tenant), shall be deemed part
of the demised premises and upon the expiration or other
termination of the term of this lease shall be surrendered with
the demised premises as a part thereof without disturbance,
molestation or injury unless Landlord shall give notice to Tenant
within fifteen (15) days after termination of the term of this
lease that it elects to have Tenant remove any of the same, in
which event Tenant shall remove those installations, alterations,
additions and improvements so designated within fifteen (15) days
of the giving of such notice or upon termination of the term of
this lease, whichever shall first occur. Said signs, movable
trade fixtures and equipment shall not be deemed part of the
demised premises and may be removed by Tenant at any time or
times during the term of this lease or upon the termination of
the term of this lease, if, and only if, Tenant shall not then be
in default in the performance or observance of any of the
agreements or conditions in this lease contained on the part of
Tenant to be performed or observed. Movable trade fixtures and
equipment shall include trade fixtures, equipment and other
installations not affixed to the realty and trade fixtures,
equipment and other installations affixed only by nails, screws
or other similar means. Movable trade fixtures shall not include
linoleum or other floor covering cemented or otherwise adhesively
affixed to the floor.
7.4 Tenant agrees that it will procure all necessary permits
before making any repairs, installations, alterations, additions,
improvements or removals. Landlord agrees it will cooperate with
Tenant in obtaining such permits. Tenant agrees that all repairs,
installations, alterations, improvements and removals done by it
or anyone claiming under it shall be done in a good and
workmanlike manner, that the same shall be done in conformity
with all laws, ordinances and regulations of all public
authorities and all insurance inspection or rating bureaus having
jurisdiction, that the structure of the Building will not be
endangered or impaired and that Tenant will repair any and all
damage caused by or resulting from any such repairs,
installations, alterations, additions, improvements or removals,
including, but without limitation, the filling of holes. Tenant
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agrees to pay promptly when due all charges for labor and
materials in connection with any work done by Tenant or anyone
claiming under Tenant upon the demised premises so that the
demised premises shall at all times be free of liens. Tenant
agrees to save Landlord harmless from, and indemnify Landlord
against, any and all claims for injury, loss or damage to person
or property caused by or resulting from the doing of any such
work.
UTILITIES 8.1 Landlord agrees that as of the date of delivery of
possession of the demised premises the Building shall be
connected to the electric and gas lines serving the municipality
wherein the demised premises are located and to the water system
of said municipality. Tenant agrees to pay (or to reimburse
Landlord for) all meter fees assessed by such utilities and said
municipality for the connection or metering of the demised
premises.
8.2 Tenant agrees to pay all charges for heat, air-
conditioning, water, gas, electricity and other utilities used by
the demised premises. If a charge shall be made from time to time
by the public authority having jurisdiction for the use of the
sanitary sewer system and/or for the use of the storm sewer
system, Tenant shall pay the same. Tenant agrees that it will at
all times keep sufficient heat in the demised premises to prevent
the pipes therein from freezing. Tenant shall also pay for any
sprinkler stand-by service charge apportionable to the demised
premises.
FIRE OR OTHER 9.1 If the demised premises, or any part thereof, shall
CASUALTY be damaged or destroyed by fire or other casualty, then Tenant
shall promptly thereafter give Landlord written notice thereof
and Landlord shall within a reasonable time after its receipt of
such notice from Tenant, repair, or restore the demised premises
to substantially the same condition they were in immediately
prior to the casualty. Landlord shall not be obligated to expend
an amount in excess of the insurance proceeds or damages payable
on account of such damage or destruction in making such repair or
restoration. In the event of any such damage or destruction by
fire or other casualty, the insurance proceeds or damages
recovered on account of any damage or destruction shall be made
available for the payment of the cost of the aforesaid repair or
restoration. If the insurance proceeds shall be greater than the
cost of repair or restoration, the excess shall belong to
Landlord. A just proportion of the minimum rent
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according to the nature and extent of the injury to the demised
premises shall be suspended or abated until the demised premises
shall be repaired or restored by Landlord as aforesaid.
9.2 Insurance against any or all of the risks, including, but
without limitation, fire insurance with extended coverage in an
amount at least equal to the replacement cost of the Building,
insurance against loss or rental income, insurance against loss
or damage from sprinklers, leakage, explosion or cracking of
boilers, pipes, or both, and insurance against such other
casualties as shall be required by the holder of any mortgage
upon the demised premises, may be maintained by Landlord and the
same may be maintained under a blanket policy covering the
demised premises and other real estate of Landlord and/or its
affiliated business organizations. The policies of such insurance
shall be payable in case of loss to the holders of any mortgages
upon the property of which the demised premises are a part as
their interests may appear. Nothing in this lease contained shall
be deemed to create in Tenant any interest in said insurance
policies or the proceeds thereof or any right to participate in
the adjustment of loss. Tenant agrees to pay to Landlord, as
additional rent, the cost to Landlord of keeping the demised
premises insured under the coverages hereinabove mentioned.
Payment on account of such cost shall be paid, as part of
Tenant's total rent, monthly, and at the times and in the fashion
herein provided for the payment of minimum rent. For an initial
period from the commencement of the term of this lease until the
December 31st of the calendar year in which the term hereof shall
commence, the amount so to be paid shall be one-twelfth (1/12) of
the product of ten cents ($.10) and the number of square feet of
floor area in the demised premises. Promptly after the end of
said partial calendar year and promptly after the end of each
calendar year thereafter, Landlord shall make a determination of
such cost on the basis hereinabove set forth, and if the
aforesaid payments theretofore made for such period by Tenant
exceed such cost, Landlord shall make a suitable refund to
Tenant; and if such cost is greater than such payments
theretofore made on account for such period, Tenant shall make a
suitable payment to Landlord. The initial monthly payment on
account of such cost shall be replaced after Landlord's
determination of the preceding accounting period's cost by a
payment which is one-twelfth (1/12) of such immediately preceding
period's cost, with adjustments as appropriate where such
preceding period is less than a full twelve (12) month period.
Appropriate adjustments
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shall be made for any partial month at the commencement of the
term and for any partial month or year at the end of the term.
9.3 Notwithstanding anything in this Article to the contrary,
it is agreed and understood that (i) if during the second annual
period preceding the expiration of the term of this lease the
demised premises shall be damaged or destroyed by fire or other
casualty to the extent of thirty Percent (30%) or more of their
insurable value, or (ii) if during the annual period preceding
the expiration of the term of this lease the demised premises
shall be damaged or destroyed by fire or other casualty to the
extent of twenty percent (20%) or more of their insurable value,
either Landlord or Tenant may, if either shall so elect,
terminate the term of this lease by notice to the other within
thirty (30) days after such damage or destruction. It is further
agreed that if at any time during the term of this lease the
demised premises shall be substantially damaged or destroyed as
aforesaid, Landlord, at its election, may terminate the term of
this lease by a notice to Tenant within thirty (30) days after
such damage or destruction. For purposes of this Article, the
demised premises shall be deemed to have been substantially
damaged or destroyed if the damage or destruction is of such a
character that the same cannot reasonably be expected to be
repaired or restored within thirty (30) days after the repair or
restoration work would be commenced. In the event of any
termination of the term of this lease pursuant to the provisions
of this Section, the termination shall become effective on the
twentieth (20th) day after the giving of the notice or
termination, rent shall be apportioned and adjusted as of the
time of termination, Landlord shall not be obligated to repair or
restore any damage or destruction caused by fire or other
casualty and the insurance proceeds shall belong to Landlord.
EMINENT 10.1 If after the execution of this lease and prior to
DOMAIN the expiration of the term of this lease the whole of the demised
premises shall be taken under the power of eminent domain, then
the term of this lease shall cease as of the time when Landlord
shall be divested of its title in the demised premises, and rent
shall be apportioned and adjusted as of the time of termination.
10.2 If only a part of the demised premises shall be taken
under the power of eminent domain and if as a result thereof the
floor area of the Building shall be reduced by more than thirty
percent, or if more than thirty percent of the parking areas of
the
14
demised premises shall be taken and not replaced by Landlord
within sixty (60) days thereafter, either Landlord or Tenant may,
at its election, terminate the term of this lease by giving
notice of the exercise of its election to the other of them
within twenty (20) days after it shall receive notice of such
taking (or in the case of a taking of parking areas within twenty
days after such sixty day period), and the termination shall be
effective as of the time that possession of the part so taken
shall be required for public use (or in the case of parking areas
being taken upon the tenth day after the giving of such notice),
and rent shall be apportioned and adjusted as of the time of
termination. If only a part of the demised premises shall be
taken under the power of eminent domain and if the term of this
lease shall not continue in full force and effect and Landlord
shall, within a reasonable time after possession is required for
public use, repair and rebuild what may remain of the demised
premises and the remainder of the Building so as to put the same
into condition for use and occupancy by Tenant, and a just
proportion of the minimum rent according to the nature and extent
of the injury to the demised premises shall be suspended or
abated until what may remain of the demised premises shall be put
into such condition by Landlord, and thereafter a just proportion
of the minimum rent according to the nature and extent of the
part so taken shall be abated for the balance of the term of this
lease.
10.3 Landlord reserves to itself, and Tenant grants and assigns
to Landlord, all rights to damages accruing on account of any
taking under the power of eminent domain or by reason of any act
of any public or quasi-public authority for which damages are
payable irrespective of the form in which recovery may be had by
law. Tenant agrees to execute such instruments by assignment as
may be reasonably required by Landlord in any proceeding for the
recovery of such damages if requested by Landlord, and to turn
over to Landlord any damages that may be recovered in such
proceedings. It is agreed and understood, however, that Landlord
does not reserve to itself, and Tenant does not assign to
Landlord, any damages payable for movable trade fixtures
installed by Tenant or anybody claiming under Tenant at its own
cost and expense or for relocation expenses; provided that the
same do not reduce the damages which Landlord would otherwise
recover.
INDEMNITY AND 11.1 Tenant agrees to save Landlord harmless from,
INSURANCE and indemnify Landlord against, to the extent permitted by law,
15
any and all injury, loss or damage and any and all claims for
injury, loss or damage of whatever nature (i) caused by or
resulting from, or claimed to have been caused by or to have
resulted from, any act, omission or negligence of Tenant or
anyone claiming under Tenant (including, but without limitation,
subtenants and concessionaires of Tenant and employees and
contractors of Tenant or its subtenants or concessionaires), no
matter where occurring, or (ii) occurring upon about the demised
premises, no matter how caused. This indemnity and hold harmless
agreement shall include indemnity against all costs, expenses and
liabilities, incurred in connection with any such injury, loss or
damage or any such claim, or any proceeding brought thereon or
the defense thereof. To the maximum extent that this agreement
may be made effective according to law, Tenant agrees to use and
occupy the demised premises at its sole risk. Without limiting
the generality of the immediately preceding sentence, if Tenant
or anyone claiming under Tenant or the whole or any part of the
property of Tenant or anyone claiming under Tenant shall be
injured, lost or damaged by theft, fire, water or steam or in any
other way or manner, whether similar or dissimilar to the
foregoing, no part of said injury, loss or damage is to be borne
by Landlord or its agents. Tenant agrees that Landlord shall not
be liable to Tenant or anyone claiming under Tenant for any
injury, loss or damage that may be caused by or result from the
fault or negligence of any persons occupying adjoining premises.
11.2 Tenant will maintain general comprehensive public
liability insurance, with respect to the demised premises and its
appurtenances, issued by insurance companies acceptable to
Landlord and authorized to do business in the Commonwealth of
Massachusetts, naming Landlord and Tenant as insureds, in amounts
which shall, at the beginning of the term, be not less than One
Million Dollars ($1,000,000.00) with respect to injuries to any
one person and not less than One Million Dollars ($1,000,000.00)
with respect to injuries suffered in any one accident, and not
less than One Million Dollars ($1,000,000.00) with respect to
property and, from time to time during the term of this lease,
such insurance coverage shall be in such higher amounts, if any,
as are customarily carried in the metropolitan Boston area on
property similar to the demised premises used for similar
purposes or as required by the mortgagee. Tenant shall deliver to
Landlord the policies of such insurance, or certificates thereof,
at least fifteen (15) days prior to the commencement of
16
the term of this lease, and each renewal policy or certificate
thereof, at least fifteen (15) days prior to the expiration of
the policy it renews. Tenant may maintain such insurance under a
blanket policy affecting other premises of Tenant and/or its
affiliated business organizations.
ACCESS TO 12. Landlord shall have the right to enter upon the
PREMISES demised premises or any part thereof without charge at all
reasonable times and in case of emergency, at any time, to
inspect the same, to show the demised premises to prospective
purchasers or tenants, to make or facilitate any repairs,
alterations, additions or improvements to the demised premises
and other portions of the Building (but nothing in this Article
12 contained shall obligate Landlord to make any repairs,
alterations, additions or improvements); and Tenant shall not be
entitled to any abatement or reduction of rent or damages by
reason of any of the foregoing. No forcible entry shall be made
by Landlord unless such entry shall be reasonably necessary to
prevent serious injury, loss or damage to persons or property.
Landlord shall repair any damage to property by Tenant or anyone
claiming under Tenant caused by or resulting from Landlord's
making any such repairs, alterations, additions or improvements
except only such damage as shall result from the making of such
repairs, alterations, additions or improvements which Landlord
shall make as a result of the default, fault or negligence of
Tenant or anyone claiming under Tenant. For the period commencing
nine months prior to the expiration of the term of this lease,
Landlord may maintain "For Rent" signs on the demised premises.
DEFAULTS 13.1 If Tenant shall default in the payment of rent or other
payments required of Tenant, and if Tenant shall fail to cure
said default within seven (7) days after the giving of notice of
said default by 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 the giving of notice
of said default by Landlord, or (3) if any person shall levy
upon, or take this leasehold interest or any part thereof upon
execution, attachment or other process or law, or (4) if Tenant
shall make an assignment of its property for the benefit of
creditors, or (5) if Tenant 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
(7) if a receiver, trustee or assignee shall be appointed for the
whole or any part of Tenant's
17
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, by force or otherwise, 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 (forcibly, if necessary) 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 the term of this
lease), and upon entry as aforesaid (or in the event that
Landlord shall send to Tenant notice of termination as above
provided, on the fifth (5th) day next following the date of the
sending of the notice), the term of this lease shall terminate.
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.
13.2 In case of any such termination, Tenant will indemnify
Landlord each month against all loss of rent and all obligations
which Landlord may incur by reason of any such termination
between the time of termination and the expiration of the term of
this lease; or at the election of Landlord, exercised at the time
of the termination or at any time thereafter, Tenant will
indemnify Landlord each month until the exercise of the election
against all loss of rent and other 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 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. In any event, Tenant shall indemnify
the Landlord against all loss of rent and all obligations which
Landlord may incur by reason of Tenant's default hereunder prior
to such entry or termination, whichever shall first occur. 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 after the expiration of the term of
this lease, without releasing Tenant from any liability
whatsoever, that Tenant shall be liable for any expenses incurred
by Landlord in connection with obtaining
18
possession of the demised premises, with removing from the
demised premises property of Tenant and person 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 rent and all other payments due from Tenant to
Landlord.
14.1 Tenant agrees that upon the request of Landlord it will
subordinate this lease and the lien hereof to the lien of any
present or future mortgage or mortgages upon the demised premises
of any property of which the demised premises are a part,
irrespective of the time of execution or time of recording of any
such mortgage or mortgages; provided that the holder of any such
mortgage shall agree with Tenant that this lease and the rights
of Tenant hereunder shall not be disturbed except in accordance
with the terms of this lease. Tenant agrees that it will upon the
request of Landlord execute, acknowledge and deliver any and all
instruments deemed by Landlord necessary or desirable to give
effect to or notice of such subordination. 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
any one claiming under such holder and their respective
successors and assigns in the event of foreclosure of or similar
action taken under such mortgage.
14.2 After the commencement of the term of this lease and
within five (5) days after written request therefore by Landlord,
Tenant agrees to execute, acknowledge and deliver to Landlord or
to any mortgagee a certificate stating that Tenant has entered
into occupancy of the demised premises in accordance with the
provisions of this lease, that this lease is unmodified and in
full force and effect, that Landlord has performed Landlord's
construction work, that Tenant has no defenses, offsets or
counterclaims against its obligations to pay the minimum rent and
additional rent and any other charges and to perform its other
covenants under this lease (or, if there has been any
19
modifications, that the same is in full force and effect as
modified and stating the modifications and, if there are any
defenses, offsets or counterclaims, setting them forth in
reasonable detail), and the dates to which the minimum and
additional rent and other charges have been paid. Any such
statement delivered pursuant to this Section 14.2 may be relied
upon by any prospective purchaser or mortgagee of the demised
premises, or one or more of them, or any prospective assignee of
any such mortgage.
14.3 After receiving notice from Landlord or from any person,
firm or other entity that such person, firm or other entity holds
a mortgage, as hereinbefore defined, 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.
WAIVER OF 15. Both Landlord and Tenant hereby releases the
SUBROGATION other, to the extent of its 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 the other party 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 releasor'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 releasor to recover thereunder, it
being understood and agreed that the waiving party reserves any
rights with respect to any excess loss or injury over the amount
recovered by such insurance. Each of Landlord and 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 the
other party pays such extra cost. If extra cost is chargeable
therefor, each party will advise the other thereof and the amount
thereof. The other party at its election, may pay the same, but
shall not be obligated to do so.
20
FAILURE OF 16.1 If Tenant shall default in the performance of any
PERFORMANCE agreement or condition in this lease contained on its part to
AND WAIVERS be performed or observed other than an obligation to pay money,
and shall not cure such default within ten (10) days after notice
from Landlord specifying the default (or shall not within said
period commence to cure such default and thereafter prosecute the
curing of such default to completion with due diligence),
Landlord may, at its option, without waiving any claim for
damages for breach of agreement, at any time thereafter cure such
default for the account of Tenant and any amount paid or any
contractual liability incurred by Landlord in so doing shall be
deemed paid or incurred for the account of Tenant and Tenant
agrees to reimburse Landlord therefor or save Landlord harmless
therefrom; provided that Landlord may cure any such default as
aforesaid prior to the expiration of said waiting period but
after notice to Tenant, if the curing of such default prior to
the expiration of said waiting period is reasonably necessary to
protect the real estate or Landlord's interest therein, or to
prevent injury or damage to persons or property. All amounts so
paid by Landlord, all contractual liabilities so incurred by
Landlord and all necessary incidental costs and expenses in
connection with the performance of any such act by Landlord shall
be deemed to be additional rent under this lease and shall be
payable by Tenant to Landlord immediately on demand.
16.2 Failure of either party to complain of any act or omission
on the part of the other party, no matter how long the same may
continue, shall not be deemed to be a waiver by said party of any
of its rights hereunder. No waiver by either party at any time,
express or implied, of any breach of any provision of this lease
shall be deemed a waiver of a breach of any other provision of
this lease or a consent to any subsequent breach of the same or
any other provision. If any action by either party shall require
the consent or approval of the other party, the other party's
consent to or approval of such action on any one occasion shall
not be deemed a consent to or approval of said action on any
subsequent occasion or any consent to or approval of any other
action on the same or any subsequent occasion. Any and all rights
and remedies which either party may have under this lease or by
operation of law, either at law or in equity, upon any breach,
shall be distinct, separate and cumulative and shall not be
deemed inconsistent with each other; and no one of them, whether
exercised by said party or not, shall be deemed to be in
exclusion of any other; and any two or more or all of such rights
21
and remedies may be exercised at the same time.
BROKERS 17. Tenant hereby represents and warrants to Landlord that,
except to the extent, if any, hereinafter set forth, it has dealt
with no broker in connection with this lease and there are no
brokerage commissions or other finders' fees 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 same) arising from any claim by
any broker claiming to have dealt with Tenant.
HOLDING OVER If Tenant or anyone claiming under Tenant shall remain in
possession of the demised premises or any part thereof after the
expiration of the term of this lease without any agreement in
writing between Landlord and Tenant with respect thereto, prior
to acceptance of rent by Landlord, the person remaining in
possession shall be deemed a tenant at sufferance and after
acceptance of rent by Landlord the person remaining in possession
shall be deemed a tenant at will, subject to the provisions of
this lease insofar as the same may be made applicable to a
tenancy at will; provided, however, that if minimum rent shall be
payable during the term of this lease at different rates at
different times, minimum rent during such period as such person
shall continue to hold the demised premises or any part thereof
shall be payable at twice the highest rate payable during the
term hereof.
QUIET 19. Landlord agrees that upon Tenant's paying the rent
ENJOYMENT and performing and observing the agreements, conditions and other
provisions on its part to be performed and observed, Tenant shall
and may peaceably and quietly have, hold and enjoy the demised
premises during the term of this lease without any manner of
hindrance or molestation from Landlord or anyone claiming under
Landlord, subject, however, to the terms of this lease and any
instruments having a prior lien.
USE 20. Tenant agrees that during the term of this lease the
demised premises will be used and occupied for the following
purposes and for no other purposes without the written consent of
Landlord, which Landlord may withhold at Landlord's sole
discretion: general business offices.
ASSIGNMENT 21. Tenant agrees that it will not assign, mortgage,
22
pledge or otherwise encumber this lease or any interest therein,
or sublet the whole or any part of the demised premises without
obtaining on each occasion the written consent of the Landlord,
which Landlord may withhold at Landlord's sole discretion.
DELAYS 22. In any case where either party hereto is required to do any
act, 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 shall not be
counted in determining the time during which such work 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.
NOTICES 23. 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. If given to Tenant the same shall be mailed to
Tenant at Xxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, or to
such other person at such other address as Tenant may hereafter
designate by notice to Landlord; and if given to Landlord the
same shall be mailed to Landlord at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, or to such other person or at
such other address as Landlord may hereafter designate by notice
to Tenant.
DEFINITIONS 24.1 The words "Landlord" and "Tenant" and the
AND INTERPRE- pronouns referring thereto, as used in this lease, shall mean,
TATIONS where the context requires or admits, the persons named herein as
Landlord and as Tenant, respectively, and their respective heirs,
legal representatives, successors and assigns, masculine,
feminine or neuter. Except as hereinafter provided otherwise, the
agreements and conditions in this lease contained on the part of
Landlord to be performed and observed shall be binding upon
Landlord and its heirs, legal representatives, successors and
assigns and shall enure to the benefit of Tenant and its heirs,
legal representatives, successors and assigns; and the agreements
and conditions on the part of Tenant to be performed and observed
shall be binding upon Tenant and its heirs, legal
23
representatives, successors and assigns and shall enure to the
benefit of Landlord and its heirs, legal representatives,
successors and assigns. The word "Landlord", as used herein,
means only the owner for the time being of Landlord's interest in
this lease, that is, in the event of any transfer of Landlord's
interest in this lease the transferor shall cease to be liable,
and shall be released from all liability for the performance or
observance of any agreements or conditions on the part of
Landlord to be performed or observed subsequent to the time of
said transfer, it being understood and agreed that from and after
said transfer the transferee shall be liable for the performance
and observance of said agreements and conditions.
24.2 It is agreed that if any provisions of this lease shall be
determined to be void by any court of competent jurisdiction then
such determination shall not affect any other provisions of this
lease, all of which other provisions shall remain in full force
and effect; and it is the intention of the parties hereto that if
any provision of this lease is capable of two constructions, one
of which would render the provision void and the other which
would render the provision valid, then the provision shall have
the meaning which renders it valid.
24.3 This instrument contains the entire and only agreement
between the parties, and no oral statements or representations or
prior written matter not contained in this instrument shall have
any force or effect. This lease shall not be modified in any way
except by a writing subscribed by both parties.
24.4 Wherever in this lease provision is made for the doing of
any act by any person it is understood and agreed that said act
shall be done by such person at its own cost and expense unless a
contrary intent is expressed.
24.5 If all or any part of Landlord's interest in this lease
shall be held by a trust, no trustee, shareholder or beneficiary
of said trust shall be personally liable for any of the
covenants, or agreements, express or implied, hereunder.
Landlord's covenants and agreements shall be binding upon the
trustees of said trust as trustees as aforesaid and not
individually and upon the trust estate. Without limiting the
generality of the foregoing, and whether or not all or any part
of Landlord's interest in this lease shall be held by a trust,
Tenant specifically agrees to look solely
24
to Landlord's interest in the demised premises for recovery of
any judgment from Landlord; it being specifically agreed that
Landlord shall never otherwise be personally liable for any such
judgment.
24.6 Wherever in this lease provision is made that either party
shall have the right to terminate this lease, then, unless in
said provision it is expressly provided otherwise, neither party
hereto shall thereafter have any claim against the other under
this lease or on account of the termination thereof.
24.7 The marginal notes used as headings for the various
articles of this lease are used only as a matter of convenience
for reference, and are not to be considered a part of this lease
or to be used in determining the intent of the parties of this
lease. Whenever in this lease any portion, or part thereof, has
been stricken out, whether or not any provision has been
substituted therefor, this lease shall be read and construed as
if the words so stricken out were never included herein and no
implication shall be drawn from the words so stricken out.
24.8 This lease shall be governed by the laws of the
Commonwealth of Massachusetts.
TENANTS 25. Tenant agrees that during the term of this lease:
COVENANTS no nuisance will be permitted on or about the demised premises;
nothing will be done upon or about the demised premises which
shall be unlawful, improper, noisy or offensive or contrary to
any public authority or insurance inspection or rating bureau or
similar organization having jurisdiction, or which may be
injurious to or adversely affect the quality or tone of the
demised premises or any abutting or adjacent property of the
Landlord; the demised premises will not be overloaded, damaged or
defaced; Tenant will not drill or make any holes in the stone or
brickwork; Tenant will not permit the omission of any
objectionable noise or odor from the demised premises; no placard
or sign shall be placed on the exterior of the Building or
elsewhere on the demised premises without the prior written
consent of Landlord; Tenant will procure all licenses and permits
which may be required for any use made of the demised premises;
and all waste and refuse will be stored upon and removed from the
demised premises in accordance with all applicable governmental
codes and regulations. Tenant will not do, or suffer to be done,
or keep, or suffer to be kept, or omit to
25
do anything in, upon or about the demised premises which may
prevent the obtaining of any insurance on the demised premises or
on any property therein, including, but without limitation, fire,
extended coverage and public liability insurance, or which may
make void or voidable any such insurance, or which may create any
extra premiums for, or increase the rate of, any such insurance.
If anything shall be done or kept or omitted to be done in, upon
or about the demised premises which shall create any extra
premiums for, or increase the rate of, any such insurance, Tenant
will pay the increased cost of the same to Landlord upon demand.
EXPANSION 26.1 Subject to all then applicable building and zoning codes
and the requirements of the subdivision restrictions contained in
the deed of the demised premises to Landlord, and provided Tenant
shall not then be in default under this lease, Tenant shall have
the right, exercisable by notice to Landlord, by January 31,
1990, to request that Landlord construct upon the demised
premises an addition (the "Addition") to the Building within the
Expansion Area. The Addition shall contain at least twenty-five
thousand (25,000) square feet. Such notice shall be accompanied
by outline plans and specifications for the construction of the
Addition and information concerning the exact size and location
thereof desired by Tenant. Within one hundred twenty (120) days
after the receipt by Landlord of such notice from Tenant,
Landlord shall obtain from the current holder of the first
mortgage upon the demised premises and alternate financing
sources, estimates of terms which would be granted to finance the
Addition, shall prepare detailed plans and detailed
specifications for the construction of the Addition, shall use
its reasonable efforts to obtain two competitive bids from
contractors of Landlord's choice for construction of the Addition
and shall present the same to Tenant; provided, however, that
Landlord shall have the right to select the contractor to be used
for construction of the Addition, in Landlord's reasonable
discretion. Landlord agrees to use reasonable efforts to obtain
the lowest possible estimates of such financing terms. If Tenant
shall be unwilling to accept the bid selected by Landlord,
Landlord shall not be obliged to construct the Addition; this
lease shall continue in full force and effect unmodified by the
provision of this Article 26; and Tenant shall reimburse to
Landlord upon being billed therefor for Landlord's reasonable
out-of-pocket expenses incurred in obtaining any such bid of
bids, including but without limitation the cost to Landlord of
preparing said detailed plans
26
and detailed specifications in connection therewith as additional
rent under this lease. Tenant shall accept or reject any such bid
within thirty (30) days of its receipt thereof by written notice
to Landlord. If Tenant shall be unwilling to accept such
financing terms, Tenant shall have the right to abandon the
Addition, in which event the provisions of the immediately
preceding sentence shall apply. If Tenant shall accept such bid
and give Landlord notice thereof as aforesaid, then (i) the date
upon which Landlord shall substantially complete construction of
the Addition (substantial completion being defined as in Section
2.1 hereof provided) or (ii) the date that Tenant shall first
commence to utilize the Addition in connection with its business,
whichever shall first occur, shall be known as the "effective
date", and from and after the effective date the Addition shall
constitute a portion of the demised premises and be subject to
and have the benefit of the provisions of this lease, except as
hereinafter provided.
26.2 From and after the effective date the annual rate of
minimum rent payable hereunder shall be increased by an amount
which shall be the Determined Percentage (hereinafter defined) of
the product obtained by multiplying (a) the Financed Amount by
(b) the "new annual constant" (hereinafter defined). The
Determined Percentage shall be: one hundred thirty-five (135%) it
being understood and agreed, however, that 135% is based upon the
assumption that the entity providing such financing will adjust
the annual minimum rent payable with respect to the Addition
downward by an aggregate of 9% to reflect a structural reserve,
management costs and a vacancy factor and will require such
annual minimum rent, as so adjusted downward, to be equal to 123%
or more of new annual constant and that if such entity shall
require a smaller downward adjustment in such annual minimum rent
and/or a lower percentage of coverage with respect to the new
annual constant, the 135% amount provided for in this section
shall be reduced to that percentage which shall satisfy the lower
requirements of such entity. Notwithstanding the provisions of
the previous sentence to the contrary, in no event shall the rent
under this Lease be less on a square foot basis than $15.00 per
square foot per annum, triple net. In no event shall said rent be
less than that currently being paid on a per square foot basis on
the current lease. The Financed Amount shall be the "total cost
of constructing the Addition" (hereinafter defined). The new
annual constant shall be the product obtained by multiplying the
Financed Amount by that percentage which will produce the sum
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of twelve equal monthly installments of principal and interest
(at the rate per annum initially payable under such mortgage
loan) --required to fully liquidate the Financed Amount if one
such installment is paid each month, in arrears, over the longer
of (i) the term of said loan for the Financed Amount, (ii) the
amortization period utilized in such loan for the Financed Amount
to compute the monthly constant payments required to be paid by
the Borrower thereunder or (iii) if such loan shall initially
provide for the payment of interest only, a period equal to the
length of time for which no principal payments are required plus
the amortization period utilized in such loan for the Financed
Amount to compute the monthly constant payments required to be
paid once amortization of principal commences. The loan for the
Financed Amount shall be Landlord's proposed financing for the
total cost of constructing the Addition. The total cost of
constructing the Addition shall be the sum of the cost to
Landlord of all "hard" and "soft" costs of every kind and nature,
direct and indirect, incurred by Landlord in constructing the
Addition, including without limitation, (i) construction work for
the Addition, including but without limitation, site work and
additional utilities and parking areas required therefor paid to
the contractors whose bids were accepted as aforesaid, (ii)
construction interest and loan commitment fees upon money
borrowed to finance construction of the Addition, (iii) insurance
premiums and real estate taxes with respect to the Addition for
any period prior to the effective date, (iv) a reasonable
development fee to Landlord or any affiliate of Landlord, (v)
architect's and engineering fees, relating to the Addition, (vi)
Landlord's attorneys' fees incurred in connection with obtaining
permits and approvals for the Addition, the construction and
architects contract for the Addition and such loan for the
Financed Amount, (vii) fees for permits and approvals in
connection with the Addition; (viii) other direct and indirect
out-of-pocket expenses of Landlord paid by Landlord for the
construction of the Addition and (ix) the Expansion Area Value as
at the effective date.
26.3 It is agreed that, notwithstanding anything in the Lease
to the contrary, the minimum rent payable on account of the
Addition (or any phase thereof) shall never exceed fair market
rent for such Addition (or phase) by more than 10%. If Landlord
or Tenant dispute whether the minimum rent payable on account of
the Addition (or phase) exceeds fair market rent by more than
10%, then either party may submit the matter to arbitration
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before a panel of 3 arbitrators chosen by the American
Arbitration Association, Boston office, and the decision of such
arbitrators shall resolve the matter.
26.4 In connection with the construction of the Addition
Landlord may use any adjoining wall as a party or petition wall,
may close any opening in any adjoining wall and may demolish any
part of any adjoining wall of the Building and also tie into the
sewer, water and utility lines of the Building so as to integrate
the Addition and the remainder of the Building.
26.5 Landlord's plans and specifications for the Addition (or
any phase thereof) shall be subject to Tenant's prior approval,
which approval shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as a sealed instrument as of the day and year first above written.
As Trustee )
of Longwater )
Circle Trust, )
and not )
Individually. )
/s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------
Xxxxxxx X. Xxxxx, Xx., Trustee
CAP International, Inc.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------
President
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------
Treasurer
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June 21, 1993
Mr. Xxxxxx Xxxxxx
Chief Executive Officer
BIS Strategic Decisions
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Re: Second Five Year Term of Original Lease
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx
Dear Xxxxxx:
The BIS Strategic Decisions lease at One Longwater Circle entered its sixth year
of a ten year term on June 1, 1993. The lease provided for a rent increased
based upon the change in the CPI Index from May 1988 to May 1993. That increase
was the subject of my proposal to BIS back in January to mitigate the rent
increase in return for a lease extension (copy enclosed). We are still open to
discussion of that proposal. In the interim, however, we must institute the
rent increase as provided for in the lease.
The CPI base being utilized is the May, 1988 Urban Consumer's U.S. City Average
(1982-84 = 100). That base is 117.5. The May 1993 CPI Index was 144.2, giving
us a 1.227 multiplier factor (144.2 / 117.5 = 1.227 factor). The current base
rent of $359,075 times 1.227 equals a new rent of $440,669.06 or $36,722.42 per
month.
Please adjust your payment systems accordingly to pay the $36,722.42 amount
beginning July 1, 1993 and remit the $6,799.50 difference due for June, 1993.
We thank you for your cooperation in this matter and look forward to discussing
our January proposal.
Very truly yours,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
RAD/ca
cc: Xxx Xxxxxxxx
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