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Exhibit 10.6
EXTENSION OF LEASE
THIS EXTENSION OF LEASE effective as of May __, 1997, between EQUITABLE
VARIABLE LIFE INSURANCE COMPANY ("Landlord") and MERCURY COMPUTER SYSTEMS, INC.
("Tenant").
BACKGROUND
Landlord and Tenant are Landlord and Tenant, respectively, under a Lease
dated July 24, 1992, from Landlord, as Landlord, to Tenant, as Tenant, of
premises at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the "Lease"). The
parties desire to extend the term of the Lease on the terms and conditions
herein set forth.
WITNESSETH
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. Landlord and Tenant agree that Tenant has exercised its option to
extend the term of the Lease under Section 2.3 of the Lease. As so extended, the
term of the Lease shall expire on September 31, 2002.
2. The Annual Fixed Rental Rate for the period October 1, 1997,
through September 31, 2002, shall be $672,728 per annum.
3. Tenant shall have the option to extend the term of the Lease for
the period October 1, 2002, through September 31, 2007, provided (a) no default
in the obligations of Tenant under the Lease shall exist at the time such option
is exercised and (b) Tenant shall give notice to Landlord of its exercise of
such option on or before April 1, 2002. All of the terms and provisions of the
Lease shall be applicable during such period except that (a) the Annual Fixed
Rental Rate shall be the greater of (i) Market Rent (as defined in Section 4.2
of the Lease) as of October 1, 2002, or (ii) $672,728.00 per annum and (b)
Tenant shall have no option to extend the term of the Lease beyond September 31,
2007.
4. Except only as amended hereby, the Lease shall continue in full
force and effect.
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WITNESS the execution hereof as an instrument under seal as of the date
first above written.
LANDLORD:
EQUITABLE VARIABLE LIFE
INSURANCE COMPANY
By:
---------------------------------------
Its
TENANT:
MERCURY COMPUTER SYSTEMS, INC.
By:
---------------------------------------
Its
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AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE effective as of October __ , 1992, between
EQUITABLE VARIABLE LIFE INSURANCE COMPANY ("Landlord") and MERCURY COMPUTER
SYSTEMS, INC, ("Tenant").
BACKGROUND
Landlord and Tenant are the Landlord and Tenant, respectively, under the
Lease dated July 24, 1992, of premises at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx (the "Lease"). The parties desire to fully and finally settle
certain disputes as to the condition of the premises under the Lease and to
amend the Lease in certain other respects, all as hereinafter set forth.
Capitalized terms not defined herein shall have the meaning ascribed to them in
the Lease.
W I T N E S S E T H
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. The following terms appearing in Section 1.1 of the Lease are
hereby amended to read as follows:
Rent Commencement Date: January 1, 1993
Term Expiration Date: January 31, 1998
2. The Annual Fixed Rental Rate for the Original Term and the
definition of "Year" are hereby deleted from Section 1.1 of the Lease and the
following substituted therefor:
During Original Term:
January 1993 through August 1993: $24,490.71 per month
September 1993: $27,181.57 per month
October through December 1993: $36,022.96 per month
January 1994 through August 1995: $35,043.33 per month
September 1995: $35,510.25 per month
October 1995 through August 1996: $37,045.50 per month
September 1996: $37,512.67 per month
October 1996 through January 1998: $39,047.67 per month
[The Annual Fixed Rental Rate in effect for each month shall equal
twelve (12) times the applicable monthly rate set forth above.]
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3. The Annual Fixed Rental Rate during the Extension Term shall not
be amended hereby and shall be as set forth in Section 1.1 of the Lease.
4. Landlord shall diligently complete the repairs listed on Exhibit A
hereto.
5. Tenant hereby confirms that it and its consultants have fully
inspected the Premises, and, subject to Landlord's obligations set forth in
Section 4 hereof, Tenant hereby confirms that it has accepted the Premises in
its "as is" condition as of the Term Commencement Date. Landlord and Tenant
agree that this Amendment of Lease is intended to settle completely all disputes
between Landlord and Tenant with respect to the condition of the Premises, and
Tenant hereby waives and releases Landlord from all claims relating thereto,
subject only to Section 4 hereof.
WITNESS the execution hereof as an instrument under seal as of the
date first above written.
Tenant:
MERCURY COMPUTER SYSTEMS, INC.
By: /s/
-------------------------------------
Its President
Landlord:
EQUITABLE VARIABLE LIFE
INSURANCE COMPANY
By: /s/
-------------------------------------
Its
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BUILDING DEFICIENCIES
19 lights out in parking lot. Also, 2 lens covers are broken (1 entrance, 1 at
back).
Electrical room next to elevator room where the flood occurred - Ceiling must be
replaced, fluorescent light fixture rehung, door refinished.
Water faucet on Dock 3 - handle is broken off, needs to be replaced.
Handicapped parking spaces are too narrow - need to be repainted.
Light in back of building on the ground is broken off of pipe and hanging on the
ground.
Employee entrance by cafeteria (inside door) will not close and window is
cracked.
Same problem on second floor - same entrance.
Same stairwell - lights are out.
Men's room, Phase 1, Floor 2 - Urinal 1 - water will not shut off; Urinal 2 does
not work at all.
Same men's room - faucet in sink 3 leaks, rust stain in sink.
Same men's room - 8 ceiling tiles have water stains (no leaks found in ceiling).
Door to second floor from main lobby - won't close.
8 exit lights (fire exit signs) are out.
5 emergency lights (power out units mounted on walls) are out.
First floor, phase 1, men's room - wallpaper is torn and ripped - needs
replacing.
At least 5 sprinklers in landscape irrigation system are not working - need
replacing (Note: landlord will complete repairs to zone #5 in the Spring, 1993).
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LEASE
Dated July 24, 1992
from
EQUITABLE VARIABLE LIFE INSURANCE COMPANY
Landlord
to
MERCURY COMPUTER SYSTEMS, INC,
Tenant
of Premises at
000 Xxxxxxxxx-Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx
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Table of Contents
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LEASE
SECTION I
REFERENCE INFORMATION
Section 1.1. REFERENCE INFORMATION. Reference in this Lease to any of the
following shall have the meaning set forth below:
Date of this Lease: July 24, 1992
Premises: The building (the "Building") and the lot
(the "Lot") shown on Exhibit A, situated at
000 Xxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx.
Landlord: Equitable Variable Life Insurance Company
Address of Landlord: c/o Equitable Real Estate Investment
Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tenant: Mercury Computer Systems, Inc., a
Massachusetts corporation
Address of Tenant: Wannalancit Technology Center
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Term Commencement Date: The date of this Lease
Rent Commencement Date: September 24, 1992
Term Expiration Date: September 31, 1997
Extension Term: One (1) period of five (5) years
Building Square Footage: Approximately 96,104 square feet
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Annual Fixed Rental Rate:
During original Term: Year 1: $282,133 per annum
Years 2 and 3: 420,520 per annum
Year 4: 444,546 per annum
Year 5: 468,572 per annum
For the purpose of the above, a "Year" shall mean the one year
period commencing on the Rent Commencement Date or an
anniversary thereof, provided that Year 5 shall include the
period from the end of Year 5 to the Term Expiration Date.
During Extension Term: The greater of (a) 90% of Market Rent
(as defined in Section 4.2) as of the commencement of the
Extension Term or (b) $576,624 per annum.
Tenant's Proportionate Fraction:
Until the First Anniversary of the Rent
Commencement Date: 74.95%
Thereafter: 100%
Permitted Uses: Research and development, offices, and light
manufacturing.
Commercial General Liability Insurance Limit:
Bodily Injury and Property Damage: Combined single limit of
$3,000,000, or greater amount as
reasonably required by Landlord
from time to time.
Brokers: The Leggat Company and Xxxxx
Xxxxxx & Co., Incorporated
Section 1.2. EXHIBITS. The following Exhibits are attached to and
incorporated in this Lease:
Exhibit A: Plan of Premises
Exhibit B: Preliminary Space Plan
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SECTION 2
PREMISES AND TERM
Section 2.1. PREMISES. Landlord hereby leases and demises the Premises
to Tenant and Tenant hereby leases the Premises from Landlord, subject to any
and all existing encumbrances and other matters of record and subject to the
terms and provisions of this Lease.
Section 2.2. TERM. TO HAVE AND TO HOLD for an original term beginning
on the Term Commencement Date and continuing until the Term Expiration Date,
unless sooner terminated as hereinafter provided.
Section 2.3. OPTION TO EXTEND TERM. Tenant shall have the option to
extend the term of this Lease for the Extension Term, provided (i) no default in
the obligations of Tenant under this Lease shall exist at the time such option
is exercised and (ii) Tenant shall give notice to Landlord of its exercise of
such option not less than six (6) months prior to expiration of the original or
then extended term, as the case may be. All of the terms and provisions of this
Lease shall be applicable during the Extension Term except that (i) the Annual
Fixed Rental Rate shall be as specified in Section 1.1 and (ii) Tenant shall
have no option to extend the term of the Lease beyond the Extension Term.
SECTION 3
CONDITION OF PREMISES; ALLOWANCES
SECTION 3.1. CONDITION OF PREMISES. Tenant agrees to accept the
Premises in its present "as is" condition. Landlord shall have no obligation to
perform any work or construction, except that the building heating and air
conditioning, electrical and plumbing systems shall be in good working order as
of the Term Commencement Date. If Tenant shall desire to perform any other work
or construction, the same shall be done only in accordance with this Lease.
Landlord has approved the preliminary space plan attached as Exhibit B subject
to the preparation of detailed plans and specifications for the construction
contemplated thereby. Detailed plans and specifications for any work or
construction to be performed by Tenant shall be subject to Landlord's approval
to the extent provided in Section 10.4. Landlord shall promptly respond to any
request by Tenant for approval of plans and specifications.
SECTION 3.2. ALLOWANCES. Within thirty (30) days after the Rent
Commencement Date, Landlord shall pay Tenant the sum of $50,000. Landlord shall
also reimburse Tenant up to $10,000 for the cost of installing signs on the
Building and on Riverneck Road, upon presentation of vendor invoices therefor.
SECTION 4
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FIXED RENT
SECTION 4.1. THE FIXED RENT. Tenant shall pay rent to Landlord at the
Address of Landlord or at such other place or to such other person or entity as
Landlord may by notice to Tenant from time to time direct, at the Annual Fixed
Rental Rate set forth in Section 1, in equal installments equal to 1/12th of the
Annual Fixed Rental Rate in advance on the first day of each calendar month
included in the term, and for any portion of a calendar month at the beginning
or end of the term, at that rate payable in advance for such portion.
SECTION 4.2. MARKET RENT. "Market Rent" shall be computed as of the
applicable date at the then current rentals being charged to new tenants for
comparable space located in the vicinity of the Building, taking into account
and giving effect to, in determining comparability, without limitation, such
considerations as size, location and lease term.
Landlord shall initially designate Market Rent and shall furnish data
in support of such designation. If Tenant shall disagree with Landlord's
designation of Market Rent, then Tenant shall have the right, by written notice
given within twenty-one (21) days after Tenant has been notified of Landlord's
designation, to submit such Market Rent to arbitration as follows. Market Rent
shall be determined by arbitrators, one to be chosen by Tenant, one to be chosen
by Landlord and a third to be selected, if necessary, as below provided. If
within twenty (20) days after Tenant's notice, the parties agree upon a single
arbitrator, Market Rent shall be determined by such arbitrator. Otherwise, the
unanimous written decision of the two first chosen without the selection and
participation of a third arbitrator, or otherwise the written decision of a
majority of the three arbitrators chosen and selected as provided herein, shall
be conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall
each notify the other of its chosen arbitrator within twenty-one (21) days
following the call for arbitration and, unless such two arbitrators shall have
reached a unanimous decision within thirty (30) days after their designation,
then they shall so notify the then President of the Boston Bar Association and
request him to select an impartial third arbitrator, who shall be another
building owner, a real estate counselor or a broker dealing with like types of
properties, to determine Market Rent as herein defined. Such third arbitrator
and the first two chosen shall hear the parties and their evidence and render
their decision within thirty (30) days following the conclusion of such hearing
and notify Landlord and Tenant thereof. Landlord and Tenant shall bear the
expense of the third arbitrator (if any) equally. If the dispute between the
parties as to Market Rent has not been resolved before the commencement of
Tenant's obligation to pay rent based upon Market Rent, then Tenant shall pay
rent in respect of the Premises based upon the Market Rent designated by
Landlord until either the agreement of the parties as to the Market Rent or the
decision of the arbitrators, as the case may be, at which time Tenant shall pay
any underpayment of rent to Landlord, or Landlord shall refund any overpayment
of rent to Tenant.
SECTION 5
REAL ESTATE AND OTHER TAXES
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SECTION 5.1. REAL ESTATE TAXES. As Additional Rent, Tenant shall pay to
Landlord Tenant's Proportionate Fraction of all taxes, assessments (special,
betterment or otherwise), levies, fees, water and sewer rents and charges, and
all other government levies and charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, which are allocable to the term hereof
and imposed or levied upon or assessed against the Lot or Building or any rent
or other sums payable by any tenants or occupants thereof (collectively "taxes
and assessments" or if singular "tax or assessment").
If Landlord shall elect to pay betterment assessments over any period
permitted by law, only the installments thereof (and interest thereon) becoming
due during the term shall be treated as taxes and assessments hereunder.
With respect to any period for which Tenant shall be obligated to pay
all taxes and assessments, Tenant shall pay the same directly to the proper
authority prior to any late charges, interest or penalties becoming payable
thereon. Simultaneously with the payment of such taxes or assessments, Tenant
shall provide Landlord with evidence of payment thereof.
All payments shall be made by Tenant within 10 days after receipt of
Landlord's invoice therefor.
Nothing herein shall, however, require Tenant to pay any income taxes,
excess profits taxes, excise taxes, franchise taxes, estate, succession,
inheritance or transfer taxes, provided, however, that if at any time during the
term the present system of ad valorem taxation of real property shall be changed
so that in lieu of the whole or any part of the ad valorem tax on real property,
or in lieu of increases therein, there shall be assessed on Landlord a capital
levy or other tax on the gross rents received with respect to the Building or
Lot or a federal, state, county, municipal, or other local income, franchise,
excise or similar tax, assessment, levy or charge (distinct from any now in
effect) measured by or based, in whole or in part, upon gross rents, then
Tenant's Proportionate Fraction of any and all of such taxes, assessments,
levies or charges, to the extent so measured or based ("Substitute Taxes"),
shall be payable by Tenant, provided, however, Tenant's obligation with respect
to the aforesaid Substitute Taxes shall be limited to the amount thereof as
computed at the rates that would be payable if the Building and Lot were the
only property of Landlord.
SECTION 6
INSURANCE
SECTION 6.1. TENANT'S INSURANCE. Tenant shall, as Additional Rent,
maintain throughout the Term the following insurance:
(a) Commercial general liability insurance for any injury
to person or property occurring on the Premises, naming as insureds Tenant,
Landlord and such persons, including, without limitation, Landlord's managing
agent, as Landlord shall designate from time to time, in amounts which shall, at
the beginning of the Term, be at least equal to the
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limits set forth in Section 1, and, from time to time during the term, shall be
for such higher limits as are reasonably required by Landlord;
(b) Worker's compensation insurance with statutory limits
covering all of Tenant's employees working at the Premises;
(c) All risk fire and casualty insurance on a replacement
value, agreed amount basis, together with rental loss coverage and, if Landlord
so elects, flood coverage to the extent the same is available, insuring the
Building and its rental value, with such deductibles, if any, as Landlord shall
specify from time to time; and
(d) Insurance against loss or damage from sprinklers and
from leakage or explosions or cracking of boilers, pipes carrying steam or
water, or both, pressure vessels or similar apparatus, in the so-called "broad
form", in such amounts and with such deductibles as Landlord may consider
appropriate, and insurance against such other hazards and in such amounts as may
from time to time be required by any bank, insurance company or other lending
institution holding a mortgage on the Building.
The insurance provided pursuant to clauses (c) and (d) above shall name
Landlord and Landlord's mortgagees as the insureds in such manner as Landlord
shall specify and such insurance shall be adjusted solely by Landlord and
Landlord's mortgagees and Tenant shall have no right to the proceeds of such
insurance or to participate in the adjustment thereof, and all policies shall so
provide.
SECTION 6.2. REQUIREMENTS APPLICABLE TO INSURANCE POLICIES. All
policies for insurance required under the provisions of Section 6.1 shall be
acceptable to Landlord and obtained from responsible companies qualified to do
business in the Commonwealth of Massachusetts and in good standing therein,
which companies and the amount of insurance allocated thereto shall be subject
to Landlord's approval, Tenant agrees to furnish Landlord with insurance company
certificates of all such insurance and copies of the policies therefor prior to
the earlier of the time it shall first enter the Premises or the beginning of
the Term hereof and of each renewal policy at least thirty (30) days prior to
the expiration of the policy it renews, together with evidence of the payment of
all premiums therefor. Each such policy shall be noncancellable with respect to
the interest of Landlord and such mortgagees without at least thirty (30) days'
prior written notice thereto.
SECTION 6.3. WAIVER OF SUBROGATION. All insurance which is carried by
either party with respect to the Premises or to furniture, furnishings, fixtures
or equipment therein or alterations or improvements thereto, whether or not
required, shall include provisions which either designate the other party as one
of the insured or deny to the insurer acquisition by subrogation of rights of
recovery against the other party to the extent such rights have been waived by
the insured party prior to occurrence of loss or injury, insofar as, and to the
extent that such provisions may be effective without making it impossible to
obtain insurance coverage from responsible companies qualified to do business in
the Commonwealth of
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Massachusetts (even though extra premium may result therefrom) and without
voiding the insurance coverage in force between the insurer and the insured
party. On reasonable request, each party shall be entitled to have duplicates or
certificates of policies containing such provisions. Each party hereby waives
all rights of recovery against the other for loss or injury against which the
waiving party is protected by insurance containing said provisions, reserving,
however, any rights with respect to any excess of loss or injury over the amount
recovered by such insurance.
SECTION 7
UTILITIES; MAINTENANCE EXPENSES
SECTION 7.1. UTILITIES. Tenant shall pay all charges for water, sewer,
gas, electricity and other utilities or services used or consumed in the
Building, whether called charge, tax, assessment, fee or otherwise, including,
without limitation, water and sewer use charges and taxes, if any, such charges
to be paid within ten (10) days of receipt of Landlord's invoice therefor,
Landlord shall not be liable for any interruption or failure in the supply of
any such utilities to the Premises.
SECTION 7.2. MAINTENANCE EXPENSES. Tenant shall pay to Landlord
Tenant's Proportionate Fraction of Landlord's costs and expenses incurred under
Section 9 and in maintaining the heating, ventilating and air conditioning
contract pursuant to Section 10.2, including a reasonable management fee payable
to Landlord. Notwithstanding the preceding sentence, Tenant shall have no
obligation to pay any of Landlord's costs incurred for replacement of any
component of the roof, foundation, structural supports of the Building, the
Building plumbing, electrical, heating and air conditioning or other Building
mechanical systems, lawn sprinklers or parking lot and driveway paving which is
capitalizable under generally accepted accounting principles.
SECTION 8
Intentionally Deleted.
SECTION 9
LANDLORD'S COVENANTS
SECTION 9.1. BUILDING MAINTENANCE. Subject to Sections 10 and 11,
Landlord shall maintain and repair the exterior walls (exclusive of glass and
doors and exclusive of the interior surfaces of the exterior walls, all of which
Tenant shall maintain and repair), roof, foundation, structural supports of the
Building, make all replacements to the roof, foundation, structural supports of
the Building, the Building plumbing, electrical, heating and air conditioning
system and other Building mechanical systems, lawn sprinklers and parking lot
and driveway paving which are capitalizable under generally accepted accounting
principles and, to the extent that Landlord shall elect from time to time by
notice to Tenant, Landlord
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will maintain all other portions of the Building heating and air conditioning
system and the plumbing, electrical and mechanical systems.
SECTION 10
TENANT'S COVENANTS
SECTION 10.1. USE. Tenant shall use the Premises only for the Permitted
Uses and shall from time to time procure all licenses and permits necessary
therefor at Tenant's sole expense.
SECTION 10.2. REPAIR AND MAINTENANCE. Except as otherwise provided in
Sections 9 and 11, Tenant shall keep the Premises, including all plumbing,
electrical, heating, air conditioning and other systems therein, in first class
order, condition and repair and in at least as good order, condition and repair
as they are in on the Commencement Date or may be put in during the term,
reasonable use and wear only excepted, and shall maintain and repair all
landscaped, paved and other areas on the Lot outside of the Building and shall
clean and provide snow plowing for the same, all to the standards of a first
class building. Tenant shall make all repairs and replacements and do all other
work necessary for the foregoing purposes whether the same may be ordinary or
extraordinary, foreseen or unforeseen. Without limiting the foregoing, Tenant,
at its expense, shall maintain in effect at all times a heating, ventilating and
air conditioning service contract in form and with a contractor satisfactory to
Landlord. Tenant shall also provide to Landlord a written program reasonably
acceptable to Landlord for the maintenance and repair of all portions of the
Premises which Tenant is required to maintain and repair, including, without
limitation, the parking lot and landscaping and all portions of the Building
which Tenant is required to maintain and repair, and Tenant shall make such
modifications to such program as Landlord shall reasonably require from time to
time consistent with the provisions of this Lease. Such maintenance and repair
program shall be consistent with maintenance and repair programs for similar
first class suburban research and development properties. Tenant shall comply
with such approved maintenance and repair program in all respects and in a
timely manner.
Tenant shall keep in a safe, secure and sanitary condition all trash
and rubbish temporarily stored at the Premises and shall arrange for and be
responsible for all of the costs of trash and rubbish removal service in
connection with Tenant's use of the Premises.
SECTION 10.3. COMPLIANCE WITH LAW AND INSURANCE REQUIREMENTS. Tenant
shall make all repairs, alterations, additions or replacements to the Premises
required by any law or ordinance or any order or regulation of any public
authority arising from Tenant's use of the Premises and shall keep the Premises
equipped with all safety appliances so required. Tenant shall not dump, flush,
or in any way introduce any hazardous substances or any other toxic substances
into the septic, sewage or other waste disposal system serving the Premises, or
generate, store or dispose of hazardous substances in or on the Premises or
dispose of hazardous substances from the Premises to any other location without
the prior written consent of Landlord and then only in compliance with the
Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. ss.6901 et
seq., the Massachusetts Hazardous Waste Management
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Act, M.G.L. c.21C, as amended, the Massachusetts Oil and Hazardous Material
Release Prevention and Response Act, M.G,L, c.21E, as amended, and all other
applicable codes, regulations, ordinances and laws. Tenant shall notify Landlord
of any incident which would require the filing of a notice under Chapter 232 of
the Acts of 1982 and shall comply with the orders and regulations of all
governmental authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws applicable to the Premises,
"Hazardous substances" as used in this Section shall mean "hazardous substances"
as defined in the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ss.9601 and regulations adopted
pursuant to said Act. Landlord represents to the best of Landlord's knowledge
that, as of the date hereof, (i) the Premises are not in violation of any of the
environmental laws, rules or regulations listed in this paragraph and (ii)
hazardous substances have not been released, discharged or disposed of on the
Premises.
Landlord may, if it so elects, make any of the repairs, alterations,
additions or replacements referred to in this Section which affect the Building
structure or the Building systems, and Tenant shall reimburse Landlord for the
cost thereof on demand.
Tenant will provide Landlord, from time to time upon Landlord's
request, with all records and information regarding any hazardous substance
maintained on the Premises by Tenant.
Landlord shall have the right, at Tenant's expense, to make such
inspections as Landlord shall reasonably elect from time to time to determine if
Tenant is complying with this Section, provided that, except in the case of
emergency, Landlord shall only perform such inspections (i) upon reasonable
prior notice to Tenant and (ii) during Tenant's normal business hours.
Tenant shall comply promptly with the recommendations of any insurer,
foreseen or unforeseen, ordinary as well as extraordinary, which may be
applicable to the Premises, by reason of Tenant's use thereof. In no event shall
any activity be conducted by Tenant on the Premises which may give rise to any
cancellation of any insurance policy or make any insurance unobtainable.
SECTION 10.4. TENANT'S WORK. Tenant shall not make any installations,
alterations, additions or improvements in or to the Premises, including, without
limitation, any aperture in the walls, partitions, ceilings or floors, without
on each occasion obtaining the prior written consent of Landlord, provided that
(a) Landlord consent to non-structural installations, alterations, additions or
improvements, including, without limitation, construction or relocation of
partitions and installation of computer cabling, which do not affect the
plumbing, electrical, heating, ventilating, air-conditioning or other Building
systems shall not be unreasonably withheld or delayed and (b) Landlord's consent
shall not be required for the construction or relocation of partitions which do
not extend into the dropped ceiling. Any such work so approved by Landlord shall
be performed only in accordance with plans and specifications therefor approved
by Landlord. Tenant shall procure at Tenant's sole expense
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all necessary permits and licenses before undertaking any work on the Premises
and shall perform all such work in a good and workmanlike manner employing
materials of good quality and so as to conform with all applicable zoning,
building, fire, health and other codes, regulations, ordinances and laws and
with all applicable insurance requirements. If requested by Landlord, Tenant
shall furnish to Landlord prior to the commencement of any work costing more
than $50,000 to complete a bond or other security acceptable to Landlord
assuring that any work by Tenant will be completed in accordance with the
approved plans and specifications. Tenant shall keep the Premises at all times
free of liens for labor and materials, and Tenant shall promptly bond off any
liens made against the Premises. Tenant shall employ for such work only
contractors approved by Landlord and shall require all contractors employed by
Tenant to carry worker's compensation insurance in accordance with statutory
requirements and comprehensive public liability insurance covering such
contractors on or about the Premises in amounts that at least equal the limits
set forth in Section 1 and to submit certificates evidencing such coverage to
Landlord prior to the commencement of such work. Tenant shall save Landlord
harmless and indemnified from all injury, loss, claims or damage to any person
or property occasioned by or growing out of such work. Landlord may inspect the
work of Tenant at reasonable times and give notice of observed defects.
SECTION 10.5. INDEMNITY. Tenant shall defend, with counsel approved by
Landlord, all actions against Landlord, any partner, trustee, stockholder,
officer, director, employee or beneficiary of Landlord, holders of mortgages
secured by the Building and any other party having an interest in the Premises
("Indemnified Parties") with respect to, and shall pay, protect, indemnify and
save harmless, to the extent permitted by law, all Indemnified Parties from and
against, any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature arising from (a) injury to or death of any
person, or damage to or loss of property, occurring in the Premises or connected
with the use, condition or occupancy of any thereof unless caused by the
negligence of Landlord or its servants or agents, (b) violation of this Lease by
Tenant, or (c) any act, fault, omission, or other misconduct of Tenant or its
agents, contractors, licensees, sublessees or invitees.
SECTION 10.6. LANDLORD'S RIGHT TO ENTER. Tenant shall permit Landlord
and its agents to enter into the Premises (i) in the case of emergency, at any
time, without notice to Tenant, and (ii) at all other times during normal
business hours and upon reasonable notice to Tenant, to examine the Premises,
make such repairs and replacements as Landlord may be required to make under
this Lease or may elect, without however, any obligation to do so, and show the
Premises to prospective purchasers and lenders, and, during the last year of the
term, to show the Premises to prospective tenants and to keep affixed in
suitable places notices of availability of the Premises.
SECTION 10.7. PERSONAL PROPERTY AT TENANT'S RISK. All furnishings,
fixtures, equipment, effects and property of every kind of Tenant and of all
persons claiming by, through or under Tenant which may be on the Premises, shall
be at the sole risk and hazard of Tenant and if the whole or any part thereof
shall destroyed or damaged by fire, water or
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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
shall be charged to or to be borne by Landlord, except that Landlord shall in no
event be indemnified or held harmless or exonerated from any liability to Tenant
for any injury, loss, damage or liability not covered by Tenant's insurance to
the extent prohibited by law. Tenant shall insure Tenant's personal property.
SECTION 10.8. PAYMENT OF LANDLORD'S COST OF ENFORCEMENT. Tenant shall
pay, on demand, Landlord's expenses, including reasonable attorney's fees,
incurred in enforcing any obligation of Tenant under this Lease or in curing any
default by Tenant under this Lease as provided in Section 12.4.
SECTION 10.9. YIELD UP. At the expiration of the term or earlier
termination of this Lease, Tenant shall surrender all keys to the Premises,
remove all of its trade fixtures and personal property in the Premises, repair
all damage caused by such removal and yield up the Premises (including all
installations and improvements made by Tenant except for trade fixtures and such
installations or improvements made by Tenant as Landlord shall request Tenant to
remove) broom-clean and in the same first class order and repair in which Tenant
is obliged to keep and maintain the Premises under this Lease, reasonable wear
and tear excepted. Any property not so removed shall be deemed abandoned and may
be removed and disposed of by Landlord in such manner as Landlord shall
determine and Tenant shall pay Landlord the entire cost and expense incurred by
it in effecting such removal and disposition and in making any incidental
repairs and replacements to the Premises and for use and occupancy during the
period after the expiration of the term and prior to Tenant's performance of its
obligations under this Section 10.9.
SECTION 10.10 ESTOPPEL CERTIFICATE. Upon not less than ten (10)
business days' prior notice by Landlord, Tenant shall execute, acknowledge and
deliver to Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect and that, except as stated therein,
Tenant has no knowledge of any defenses, offsets or counterclaims against its
obligations to pay the Fixed Rental and Additional Rent and any other charges
and to perform its other covenants under this Lease (or, if there have been any
modifications that the same is in full force and effect as modified and stating
the modifications and, if there are any defenses, offsets or counterclaims,
setting them forth in reasonable detail), the dates to which the Fixed Rental
and Additional Rent and other charges have been paid and a statement that
Landlord is not in default hereunder (or if in default, the nature of such
default, in reasonable detail). Any such statement delivered pursuant to this
Section 10.10 may be relied upon by any prospective purchaser or mortgagee of
the Building.
Upon not less than ten (10) business days' prior notice by Tenant,
Landlord shall execute, acknowledge and deliver to Tenant a statement in writing
certifying that this Lease is unmodified and in full force and effect and that
Landlord has no knowledge of any default by Tenant under this Lease (or, if
there have been any modifications, that the same is in full force and effect as
modified and stating the modifications and, if to Landlord's knowledge there are
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any defaults, setting them forth in reasonable detail). Any such statement
delivered pursuant to this Section 10.10 may be relied upon by any respective
subtenant or assignee of Tenant.
SECTION 10.11. LANDLORD'S EXPENSES RE CONSENTS. Tenant shall reimburse
Landlord promptly on demand for all reasonable legal and other expenses incurred
by Landlord in connection with all requests by Tenant for consent or approval
hereunder.
SECTION 10.12. RULES AND REGULATIONS. Tenant shall comply with such
reasonable Rules and Regulations as may be adopted from time to time by Landlord
to provide for the beneficial operation of the Lot and Building.
SECTION 10.13 HOLDING OVER. Tenant shall vacate the Premises
immediately upon the expiration or sooner termination of this Lease. If Tenant
retains possession of the Premises or any part thereof after the termination of
the term without Landlord's express consent, Tenant shall pay Landlord rent at
double the monthly rate specified in Section 1 for the time Tenant thus remains
in possession and, in addition thereto, shall pay Landlord for all damages,
consequential as well as direct, sustained by reason of Tenant's retention of
possession. The provisions of this Section do not exclude Landlord's rights of
re-entry or any other right hereunder, including without limitation, the right
to refuse double the monthly rent and instead to remove Tenant through summary
proceedings for holding over beyond the expiration of the term of this Lease.
SECTION 10.14 ASSIGNMENT AND SUBLETTING. Tenant shall not assign,
transfer, mortgage or pledge this Lease or grant a security interest in Tenant's
rights hereunder or sublease (which term shall be deemed to include the granting
of concessions and licenses and the like) all or any part of the Premises or
suffer or permit this Lease or the leasehold estate hereby created or any other
rights arising under this Lease to be assigned, transferred or encumbered, in
whole or in part, whether voluntarily, involuntarily or by operation of law, or
permit the occupancy of the Premises by anyone other than Tenant without prior
written approval thereof from Landlord, provided, however, that Landlord shall
not unreasonably withhold its consent to a request by Tenant to sublet all or
portions of the Premises or to an assignment to an entity having a net worth, at
the time of such request for Landlord's approval of such assignment, at least
equal to-that of Tenant's net worth as of the date of this Lease. In connection
with any request by Tenant for such approval to assignment or subletting, Tenant
shall submit to Landlord in writing (i) the name of the proposed assignee or
subtenant, (ii) such information as to its reputation, financial responsibility
and standing as Landlord may reasonably require, including, without limitation,
business references and references from prior landlords, and (iii) all of the
terms and provisions upon which the proposed assignment or subletting is to be
made.
No assignment, transfer, mortgage, grant of security interest, sublease
or other encumbrance, whether or not approved, and no indulgence granted by
Landlord to any assignee or sublessee, shall in any way impair the continuing
primary liability (which after an assignment shall be joint and several with the
assignee) of Tenant hereunder, and no approval
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in a particular instance shall be deemed to be a waiver of the obligation to
obtain Landlord's approval in any other case.
Landlord shall not be deemed to be unreasonable in withholding approval
to an assignment, or sublease of all or any portion of the Premises if, without
limitation, any ascertained debt of Tenant to Landlord is unpaid, any default by
Tenant exists hereunder or under any other agreement between Landlord and
Tenant.
If for any assignment or sublease Tenant shall receive rent or other
consideration, either initially or over the term of the assignment or sublease,
in excess of the rent called for hereunder (or in the case of the sublease of
part, in excess of such rent allocable to the part) after appropriate
adjustments to assure that all other payments called for hereunder are taken
into account, Tenant shall pay to Landlord, as Additional Rent, 90% of such
excess of such payment of rent or other consideration received by Tenant,
promptly after its receipt.
SECTION 10.15 OVERLOADING AND NUISANCE. Tenant shall not injure,
overload, deface or otherwise harm the Premises, commit any nuisance, permit the
emission of any objectionable noise, vibration or odor, make, allow or suffer
any waste or make any use of the Premises which is improper, offensive or
contrary to any law or ordinance or which will invalidate any of Landlord's
insurance.
SECTION 11
CASUALTY OR TAKING
SECTION 11.1 TERMINATION. In the event that greater than twenty-five
(25) percent of the Building or the Lot shall be taken by any public authority
or for any public use or destroyed by the action of any public authority (a
"Taking") then this Lease may be terminated by either Landlord or Tenant
effective on the effective date of the Taking provided that such election, which
may be made notwithstanding the fact that Landlord's entire interest may have
been divested, shall be made by the giving of notice by Landlord or Tenant to
the other within thirty (30) days after Landlord or Tenant, as the case may be,
shall receive notice of the Taking. In the event that the Premises shall be
destroyed or damaged by fire or casualty (a "Casualty") and if Landlord's
architect, engineer or contractor shall determine that it will require in excess
of 150 days from the date of the Casualty to restore the Premises, this Lease
may be terminated by either Landlord or Tenant by notice to the other within
thirty days after the casualty.
SECTION 11.2 RESTORATION. In the event of a Taking or a Casualty, if
neither Landlord nor Tenant exercises the election to terminate provided in
Section 11.1, this Lease shall continue in force and a just proportion of the
Fixed Rent and other charges hereunder, according to the nature and extent of
the damages sustained by the Premises, shall be abated until the Premises, or
what may remain thereof, shall be put by Landlord in proper condition for use
subject to zoning and building laws or ordinances then in existence, which,
unless Landlord or Tenant has exercised its option to terminate pursuant to
Section 11.1, Landlord
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covenants to do with reasonable diligence at Landlord's expense. Landlord's
obligations with respect to restoration shall not require Landlord to expend
more than the net proceeds of insurance recovered or damages awarded for such
Casualty or Taking and made available for restoration by Landlord's mortgagees.
"Net proceeds of insurance recovered or damages awarded" refers to the gross
amount of such insurance or damages less the reasonable expenses of Landlord in
connection with the collection of the same, including without limitation, fees
and expenses for legal and appraisal services.
SECTION 11.3 AWARD. Irrespective of the form in which recovery may be
had by law, all rights to damages or compensation, except for awards
attributable to Tenant's personal property (which Tenant shall have the right to
institute a separate claim for), shall belong to Landlord in all cases. Tenant
hereby grants to Landlord all of Tenant's rights to such damages and
compensation and covenants to deliver such further assignments thereof as
Landlord may from time to time request.
SECTION 12
DEFAULT
SECTION 12.1 EVENTS OF DEFAULT. If:
(a) Tenant shall default in the performance of any of its
obligations to pay the Fixed Rental, Additional Rent or any
other sum payable hereunder and if such default shall continue
for seven (7) days after notice from Landlord designating such
default;
(b) if within thirty (30) days after notice from Landlord
to Tenant specifying any other default or defaults Tenant has
not commenced diligently to correct the default or defaults so
specified or has not thereafter diligently pursued such
correction to completion;
(c) if any assignment for the benefit of creditors shall
be made by Tenant;
(d) if Tenant's leasehold interest shall be taken on
execution or other process of law in any action against
Tenant;
(e) if a lien or other involuntary encumbrance is filed
against Tenant's leasehold interest, and is not discharged
within thirty (30) days thereafter;
(f) if a petition is filed by Tenant for liquidation, or
for reorganization or an arrangement or any other relief under
any provision of the Bankruptcy Code as then in force and
effect; or
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(g) if an involuntary petition under any of the
provisions of said Bankruptcy Code is filed against Tenant and
such involuntary petition is not dismissed within sixty (60)
days thereafter,
then, and in any of such cases, Landlord and the agents and servants of Landlord
lawfully may, in addition to and not in derogation of any remedies for any
preceding breach of covenant, immediately or at any time thereafter and without
demand or notice and with or without process of law (forcibly, if necessary)
enter into and upon the Premises or any part thereof in the name of the whole,
or mail a notice of termination addressed to Tenant, and repossess the same as
of Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove its and their effects without being deemed guilty of any
manner of trespass and without prejudice to any remedies which might otherwise
be used for arrears of rent or prior breach of covenant, and upon such entry or
mailing as aforesaid this Lease shall terminate, Tenant hereby waiving all
statutory rights (including, without limitation, rights of redemption, if any)
to the extent such rights may be lawfully waived. Landlord, without notice to
Tenant, may store Tenant's effects, and those of any person claiming through or
under Tenant at the expense and risk of Tenant, and, if Landlord so elects, may
sell such effects at public auction or private sale and apply the net proceeds
to the payment of all sums due to Landlord from Tenant, if any, and pay over the
balance, if any, to Tenant.
SECTION 12.2 REMEDIES. In the event that this Lease is terminated under
any of the provisions contained in Section 12.1(i) Landlord shall use reasonable
efforts to relet the Premises, and (ii) Tenant shall pay forthwith to Landlord,
as compensation, the excess of the total rent reserved for the residue of the
Term over the fair market rental value of the Premises for the residue of the
term, such excess to be discounted to present value at 10% per annum. In
calculating the rent reserved there shall be included, in addition to the Fixed
Rental and Additional Rent, the value of all other considerations agreed to be
paid or performed by Tenant during the residue. As additional and cumulative
obligations after any such termination, Tenant shall also pay punctually to
Landlord all the sums and shall perform all the obligations which Tenant
covenants in this Lease to pay and to perform in the same manner and to the same
extent and at the same time as if this Lease had not been terminated. In
calculating the amounts to be paid by Tenant pursuant to the preceding sentence,
Tenant shall be credited with any amount paid to Landlord pursuant to the first
sentence of this Section 12.2 and also with the net proceeds of any rent
obtained by Landlord by reletting the Premises, after deducting all Landlord's
reasonable expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, fees for legal
services and expenses of preparing the Premises for such reletting, it being
agreed by Tenant that Landlord may (i) relet the Premises or any part or parts
thereof for a term or terms which may at Landlord's option be equal to or less
than or exceed the period which would otherwise have constituted the balance of
the term hereof and may grant such concessions and free rent as Landlord in its
reasonable judgment considers advisable or necessary to relet the same and (ii)
make such alterations, repairs and decorations in the Premises as Landlord in
its reasonable judgment considers advisable or necessary to relet the same, and
no action of Landlord in accordance
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with the foregoing or failure to relet or to collect rent under reletting shall
operate or be construed to release or reduce Tenant's liability as aforesaid.
SECTION 12.3 REMEDIES CUMULATIVE. Except as otherwise expressly
provided herein, any and all rights and remedies which Landlord may have under
this Lease and at law and equity shall be cumulative and shall not be deemed
inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time to the greatest extent permitted by
law.
SECTION 12.4 LANDLORD'S RIGHT TO CURE DEFAULTS. At any time following
ten (10) days' prior notice to Tenant (except in cases of emergency when no
notice shall be required), Landlord may (but shall not be obligated to) cure any
default by Tenant under this Lease, and whenever Landlord so elects, all costs
and expenses incurred by Landlord, including reasonable attorneys' fees, in
curing a default shall be paid by Tenant to Landlord as Additional Rent on
demand, together with interest thereon at the rate provided in Section 12.7 from
the date of payment by Landlord to the date of payment by Tenant.
SECTION 12.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by
Landlord to any act or omission which otherwise would be a breach of any
covenant or condition herein, or any waiver by Landlord of the breach of any
covenant or condition herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing obligation of
any covenant or condition herein, or otherwise operate to permit the same or
similar acts or omissions except as to the specific instance. The failure of
Landlord to seek redress for violation of, or to insist upon the strict
performance of, any covenant or condition of this Lease shall not be deemed a
waiver of such violation nor prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of rent with knowledge of the breach
of any covenant of this Lease shall not be deemed to have been a waiver of such
breach by Landlord or of any of Landlord's remedies on account thereof,
including its right of termination for such default.
SECTION 12.6 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a
lesser sum than the Fixed Rental, Additional Rent or any other charge then due
shall be deemed to be other than on account of the earliest installment of such
rent or charge due, unless Landlord elects by notice to Tenant to credit such
sum against the most recent installment due. Any endorsement or statement on any
check or any letter accompanying any check or payment as rent or other charge
shall not 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 under this Lease or otherwise.
SECTION 12.7 INTEREST ON OVERDUE SUMS. If Tenant fails to pay Fixed
Rental, Additional Rent or any other sum payable by Tenant to Landlord by the
due date thereof (i,e,, the due date disregarding any requirement of notice from
Landlord or any period of grace allowed to Tenant), the amount so unpaid shall
bear interest at a variable rate (the
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"Delinquency Rate") equal to three percent (3%) in excess of the base rate
(prime rate) of The First National Bank of Boston from time to time in effect
commencing with the due date and continuing through the day on which payment of
such delinquent payment with interest thereon is paid. If such rate is in excess
of any maximum interest rate permissible under applicable law, the Delinquency
Rate shall be the maximum interest rate permissible under applicable law.
SECTION 13
MORTGAGES
SECTION 13.1 RIGHTS OF MORTGAGE HOLDERS. No Fixed Rental, Additional
Rent or any other charge shall be paid more than ten (10) days prior to the due
date thereof and payments made in violation of this provision shall (except to
the extent that such payments are actually received by a mortgagee in possession
or in the process of foreclosing its mortgage) be a nullity as against such
mortgagee and Tenant shall be liable for the amount of such payments to such
mortgagee.
In the event of any act or omission by Landlord which would give Tenant
the right to terminate this Lease or to claim a partial or total eviction,
Tenant shall not exercise any such right (a) until it shall have given notice,
in the manner provided in Section 14.1, of such act or omission to the holder of
any mortgage encumbering the Premises whose name and address shall have been
furnished to Tenant in writing, at the last address so furnished, and (b) until
a reasonable period of time for remedying such act or omission shall have
elapsed following the giving of such notice, provided that following the giving
of such notice, Landlord or such holder shall, with reasonable diligence, have
commenced and continued to remedy such act or omission or to cause the same to
be rendered.
In the event any proceedings are brought for the foreclosure of, or in
the event of exercise of the power of sale under, any mortgage now or hereafter
encumbering the Premises, Tenant shall attorn to the purchaser upon such
foreclosure or sale or upon any grant of a deed in lieu of foreclosure and
recognize such purchaser as Landlord under this Lease.
SECTION 13.2 SUPERIORITY OF LEASE; OPTION TO SUBORDINATE. Unless
Landlord exercises the option set forth below in this Section 13.2, this Lease
shall be superior to and shall not be subordinate to any mortgage on the
Premises. Landlord shall have the option to subordinate this Lease to any
mortgage of the Premises provided that the holder of record thereof enters into
an agreement with Tenant, in such form as is reasonably satisfactory to Tenant,
by the terms of which such holder will agree to (a) recognize the rights of
Tenant under this Lease, (b) perform Landlord's obligations hereunder arising
after the date of such holder's acquisition of title and (c) accept Tenant as
tenant of the Premises under the terms and conditions of this Lease in the event
of acquisition of title by such holder through foreclosure proceedings or
otherwise and Tenant will agree to recognize the holder of such mortgage as
Landlord in such event, which agreement shall be made expressly to bind and
inure to the benefit of the successors and assigns of Tenant and of the holder
and upon anyone purchasing
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the Premises at any foreclosure sale. Tenant agrees to execute and deliver any
appropriate instruments necessary to carry out the agreements contained in this
Section 13.2.
SECTION 14
MISCELLANEOUS PROVISIONS
SECTION 14.1 NOTICES FROM ONE PARTY TO THE OTHER. All notices required
or permitted hereunder shall be in writing and addressed, if to Tenant, at the
Original Address of Tenant or such other address as Tenant shall have last
designated by notice in writing to Landlord and, if to Landlord, at the original
Address of Landlord or such other address as Landlord shall have last designated
by notice in writing to Tenant. Any notice shall be deemed duly given when
delivered or tendered for delivery (via certified mail, return receipt requested
or via a nationally recognized overnight courier service) at such address.
SECTION 14.6 QUIET ENJOYMENT. Landlord agrees that upon Tenant's paying
the rent and performing and observing the terms, covenants, conditions and
provisions on its part to be performed and observed, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises during the term without
any manner of hindrance or molestation from Landlord or anyone claiming under
Landlord, subject, however, to the terms of this Lease.
SECTION 14.3 LEASE NOT TO BE RECORDED; NOTICE OF LEASE. Tenant agrees
that it will not record this Lease. If the Term of this Lease, including
options, exceeds seven years, Landlord and Tenant agree that, on the request of
either, they will enter and record a notice of lease in form reasonably
acceptable to Landlord.
SECTION 14.4 BIND AND INURE: LIMITATION OF LANDLORD'S LIABILITY. The
obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No owner of the Premises shall be liable under this
Lease except for breaches of Landlord's obligations occurring while owner of the
Premises. The obligations of Landlord shall be binding upon the assets of
Landlord which comprise the Premises but not upon other assets of Landlord, No
individual partner, trustee, stockholder, officer, director, employee or
beneficiary of Landlord shall be personally liable under this Lease and Tenant
shall look solely to Landlord's interest in the Premises in pursuit of its
remedies upon an event of default hereunder, and the general assets of Landlord
and its partners, trustees, stockholders, officers, employees or beneficiaries
of Landlord shall not be subject to levy, execution or other enforcement
procedure for the satisfaction of the remedies of Tenant.
SECTION 14.5 ACTS OF GOD. In any case where either party hereto is
required to do any act, delays caused by or resulting from acts of God, war,
civil commotion, fire, flood or other casualty, labor difficulties, shortages of
labor, materials or equipment, government regulations, unusually severe weather,
or other causes beyond such party's reasonable control shall not be counted in
determining the time during which work shall be completed, whether
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such time be designated by a fixed date, a fixed time or a "reasonable time",
and such time shall be deemed to be extended by the period of such delay.
SECTION 14.6 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in
default in the performance of any of its obligations hereunder unless it shall
fail to perform such obligations and unless within thirty (30) days after notice
from Tenant to Landlord specifying such default Landlord has not commenced
diligently to correct the default so specified or has not thereafter diligently
pursued such correction to completion. Tenant shall have no right, for any
default by Landlord, to offset or counterclaim against any rent due hereunder.
SECTION 14.7 BROKERAGE. Each party (i) warrants and represents to the
other party that it has had no dealings with any broker or agent in connection
with this Lease other than the Broker(s) set forth in Section 1 and (ii)
covenants to defend with counsel reasonably approved by the non-breaching party,
hold harmless and indemnify the non-breaching party from and against any claim,
loss, damage, cost or liability for any brokerage commission or fee which may be
asserted against the non-breaching party as a result of the breaching party's
breach of the warranty set forth in this sentence.
SECTION 14.8 MISCELLANEOUS. This Lease shall be governed by and
construed in accordance with the laws of the commonwealth of Massachusetts.
There are no prior oral or written agreements between Landlord and Tenant
affecting this Lease.
SECTION 14.9 RIGHT OF OFFER. Landlord shall not offer the Building for
sale without first complying with the provisions of this Section. The following
provisions shall not apply to any sale or transfer of the Building to any
affiliate of Landlord or to any partner of Landlord or any affiliate of such
partner or if Landlord shall desire to offer the Building for sale as part of a
package which includes one or more other properties. For the purpose of the
preceding sentence, an affiliate shall mean an entity which, directly or
indirectly, controls, is controlled by, or is under control with, a party. Prior
to offering the Building for sale, Landlord shall give Tenant notice of
Landlord's desire to sell the Building, stating a price and the other terms and
conditions on which Landlord desires to sell ("Landlord"s Initial Offer"),
Landlord's notice shall include a date and time for the closing of such purchase
and sale. If during the thirty (30) day period following Landlord's notice,
Tenant shall give notice to Landlord that Tenant desires to purchase the
Building, Landlord shall sell and Tenant shall purchase the Building at the
price and upon the other terms and conditions set forth in Landlord's notice. If
Tenant shall not exercise its right to purchase set forth in the preceding
sentence or if Tenant shall exercise such right but shall fail to complete such
purchase pursuant to such terms and conditions after it shall have exercised
such right, Landlord shall be free thereafter to sell the Building to any party
at any price and on any terms and conditions, without again complying with the
provisions of this section, provided, however, that if Landlord is willing to
accept a price (the "Reduced Price") for the Building that is 90% or less than
the price set forth in Landlord's Initial Offer, Landlord shall reoffer (the
"Reduced offer") the Building to Tenant at the Reduced Price and on the other
terms and conditions upon which
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Landlord is willing to sell the Building, whereupon Tenant shall have five (5)
business days to accept the Reduced Offer.
WITNESS the execution hereof under seal as of the day and year first
above written.
TENANT:
MERCURY COMPUTER SYSTEMS, INC.
By: /s/
--------------------------------
Its:
LANDLORD:
EQUITABLE VARIABLE LIFE
INSURANCE COMPANY
By: /s/
--------------------------------
Its:
EXHIBIT B
PRELIMINARY SPACE PLAN
Plans Chelmf-1 and Chelmf-2 dated 7/22/92 prepared by Xxxxx Xxxx
Note: Approval of preliminary space plan is subject to review by Landlord's
structural and HVAC engineers.
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