EXHIBIT 10.3
NORTHWEST PARK
L E A S E
ARTICLE 1
Reference Data
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1.1 Subject Referred To.
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Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Section 1.1
Date of this Lease: July 31,1996
Building: The single level building containing
approximately 38,801 square feet of
floor area located on the Property.
Property: The parcel of land at 00 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx as shown on
Exhibit A hereto as Lots D, 61 and 70,
together with the Building located
thereon.
Premises: The entire Property.
Landlord: Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx,
Xxxx Xxxxxxxx and Xxxxxx X.Xxxxxxx as
Trustees of Maryland Buildings Trust
under Declaration of Trust dated June
22, 1954 filed for registration with the
Middlesex South Registry District of the
Landlord Court as Document No. 552724
noted on Certificate of Title No. 150413
in Registration Book 882, Page 63, as
amended.
Original Notice
Address of Landlord: c/x Xxxxxxxx Management Company Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Tenant: INTERMETRICS, INC.
Original Notice
Address of Tenant: 00 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to
Xxxxxxxxx, Xxxxxxxxxx & Xxxx,L.L.P.
000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, P.C
Landlord's Construction
Representative: Xxxxx Xxxxx
Tenant's Construction
Representative: Xxxxxxx X'Xxxxxxxx
Term: Seven (7) years
Delivery Date: December 1,1996
Annual Fixed Rent Rate: $350,000.00 during the first four years
of the original term; and $400,000.00
thereafter.
Monthly Fixed Rent Rate: $29,166.67 during the first four years
of the original term, and $33,333.33
thereafter.
Security and
Restoration Deposit: $400,000 in the form of an irrevocable
letter of credit in accordance with
Section 4.4 below.
Initial Estimate of
Taxes for the Tax Year: $54,528
Initial Estimate of
Operating Costs for the
Calendar Year: $54,324
Permitted Uses: General business offices, light
assembly and storage.
Public Liability Insurance Limits:
Comprehensive General Liability: $3,000,000 per occurrence
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$5,000,000 general aggregate
1.2 Exhibits.
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The Exhibits listed below in this section are incorporated in this Lease
by reference and are to be construed as a part of this Lease.
EXHIBIT A Plan of Property
EXHIBIT B Commencement Date Agreement
EXHIBIT C Work Letter
EXHIBIT D Work Change Order
1.3 Table of Articles and Sections.
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ARTICLE I -- Reference Data
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1.1 Subjects Referred To ......................................
1.2 Exhibits ..................................................
1.3 Table of Articles and Sections ............................
ARTICLE II -- Premises and Term
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2.1 Premises ..................................................
2.2 Term ......................................................
2.3 Extension Option ..........................................
ARTICLE III -- Improvements
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3.1 Performance of Work and Approval
of Landlord's Work ........................................
3.2 Acceptance of the Premises ................................
3.3 Construction Representatives ..............................
ARTICLE IV -- Rent
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4.1 The Fixed Rent .............................................
4.2 Additional Rent ............................................
4.2.1 Real Estate Taxes .................................
4.2.2 Betterment Assessments ............................
4.2.3 Tax Fund Payments .................................
4.2.4 Operating Costs ...................................
4.2.5 Insurance .........................................
4.2.6 Utilities .........................................
4.3 Late Payment of Rent .......................................
4.4 Security and Restoration Deposit ...........................
ARTICLE V -- Landlord's Covenants
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5.1 Affirmative Covenants .....................................
5.1.1 Repairs ...........................................
5.1.2 Landscaping .......................................
5.1.3 Insurance .........................................
5.1.4 Payment of Tenant's Cost of Enforcement ...........
5.1.5 Estoppel Certificate ..............................
5.1.6 Pre-existing Hazardous Materials ..................
ARTICLE VI -- Tenant's Additional Covenants
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6.1 Affirmative Covenants .....................................
6.1.1 Perform Obligations ...............................
6.1.2 Use ...............................................
6.1.3 Repair and Maintenance ............................
6.1.4 Compliance with Law ...............................
6.1.5 Indemnification ...................................
6.1.6 Landlord's Right to Enter .........................
6.1.7 Personal Property at Tenant's Risk ................
6.1.8 Payment of Landlord's Cost of Enforcement .........
6.1.9 Yield Up ..........................................
6.1.10 Estoppel Certificate ..............................
6.1.11 Landlord's Expenses Re: Consents ..................
6.2 Negative Covenants ........................................
6.2.1 Assignment and Subletting .........................
6.2.2 Overloading and Nuisance ..........................
6.2.3 Hazardous Wastes and Materials ....................
6.2.4 Installation, Alterations or Additions ............
6.2.5 Signs .............................................
6.2.6 Parking and Storage ...............................
ARTICLE VII -- Casualty or Taking
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7.1 Termination ....................................
7.2 Restoration ....................................
7.3 Award ..........................................
ARTICLE VII - Defaults
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8.1 Events of Default ..............................
8.2 Remedies........................................
8.3 Remedies Cumulative ............................
8.4 Landlord's Right to Cure Defaults ..............
8.5 Effect of Waivers of Default ...................
8.6 No Waiver, etc. ................................
8.7 No Accord and Satisfaction .....................
ARTICLE IX - Rights of Holders
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9.1 Rights of Holders ..............................
9.2 Lease Superior or Subordinate to Mortgages .....
ARTICLE X - Miscellaneous Provisions
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10.1 Notices From One Party to the Other ............
10.2 Quiet Enjoyment ................................
10.3 Lease Not to be Recorded .......................
10.4 Limitation of Landlord's Liability .............
10.5 Acts of God ....................................
10.6 Landlord's Default .............................
10.7 Brokerage ......................................
10.8 Applicable Law and Construction ................
10.9 Expansion ......................................
ARTICLE 2
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PREMISES AND TERM
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2.1 Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
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Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises.
Tenant shall have, as appurtenant to the Premises, rights for Tenant and
its agents, employees, contractors and visitors to use in common, with
others entitled thereto, subject to reasonable rules and regulations from
time to time made by Landlord of which Tenant is given notice, the common
roadways, sidewalks and walkways necessary for access to the Property from
public roads, common parking areas, walkways and grounds, including,
without limitation, the 25' wide rights of way abutting the Premises (as
shown on Exhibit A). Approximately 157 parking spaces are located on the
Premises. In the event that less than 157 parking spaces are available for
use by Tenant on the Premises for any reason other than the fault or
neglect of Tenant or any of Tenant's agents, employees, contractors or
invitees, then, upon Xxxxxx's request, Landlord shall make available to
Tenant sufficient additional parking spaces within a reasonable distance
from the Property so that a total of 157 parking spaces shall be available
to Tenant between such additional spaces and those which remain available
on the Premises.
2.2 Term. (A) TO HAVE AND TO HOLD for a term (the "original term") beginning on
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the Commencement Date, which shall be the earlier of (a) the later of (i)
the date on which the work to be performed by Landlord pursuant to Exhibit
C has been substantially completed, and (ii) the date of issuance of a
temporary or permanent certificate of occupancy, provided that the
conditions in any such temporary certificate of occupancy can be satisfied
after Tenant occupies the Premises without material interference with
Tenant, or (b) the opening by Tenant of its business in the Premises (which
shall not include merely moving furniture, equipment or supplies into the
Premises or the installation of wiring or performing other work to prepare
the Premises for the operation of Tenant's business), and continuing for
the Term, unless sooner terminated as hereinafter provided. The term
"substantially completed" as used herein shall mean that the work to be
performed by Landlord pursuant to Exhibit C has been completed with the
exception of minor items which can be fully completed without material
interference with Tenant and other items which because of the season or
weather or the nature of the item are not practicable to do at the time,
provided that none of said items is necessary to make the Premises
tenantable for the Permitted Uses. Landlord shall apply for and take all
necessary action to obtain such certificate of occupancy, and if a
temporary certificate of occupancy is issued, Landlord shall be
responsible for obtaining a permanent certificate of occupancy as soon as
reasonably possible. Upon Xxxxxx's request, from time to time, Landlord
will advise Tenant of Landlord's estimate of when Xxxxxxxx's Work will be
substantially completed to facilitate Xxxxxx's efforts to schedule its move
into the Premises to coincide as nearly as practicable therewith. When the
dates of the beginning and end of the term have been determined, such dates
shall be evidenced by a document, in the form attached hereto as Exhibit B,
executed by Landlord and Tenant and delivered each to the other.
(B) The parties acknowledge that the Premises are currently occupied an
existing tenant (the "Existing Tenant") who has held over in the Premises
after the expiration of its lease which has delayed Landlord's ability to
commence Xxxxxxxx's Work in order to meet Xxxxxx's time requirements.
Accordingly, within 5 business days after the execution and delivery of
this Lease by Landlord and Tenant, Landlord shall cause to be paid to
Tenant a one-time payment of $50,000 which is to compensate Tenant for
delay in the schedule for delivery of the Premises to Tenant caused by the
Existing Xxxxxx's continued occupancy of the Premises. Promptly after the
Existing Tenant vacates and yields up the Premises to Landlord, Landlord
shall commence and diligently prosecute Landlord's Work under Section 3.1
hereof, subject to delays caused by Tenant or its agents, employees or
contractors or other causes beyond Xxxxxxxx's reasonable control. If the
Commencement Date has not occurred on or before December 31, 1996, then
Landlord shall pay Tenant a one-time payment of $20,000. The payments to be
made by Landlord to Tenant under this Section 2.2(B) shall be Tenant's sole
and exclusive rights and remedies under this Lease, at Law and in equity on
account of any delay in the performance of Landlord's Work and/or the
delivery of the Premises to Tenant.
2.3 Extension Option. Tenant shall have the right to extend the term of this
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Lease for one additional period of five (5) years, to begin immediately
upon the expiration of the original term of this Lease (the "extended
term"). All of the terms, covenants and provisions of this Lease shall
apply to such extended term except that the Annual Fixed Rent Rate for such
extended term shall be the market rate at time of Tenant's exercise notice
hereunder timely given during the months specified below, as designated by
Landlord. If Tenant shall elect to exercise the aforesaid option, it shall
do so by giving Landlord notice in writing of its intention to do so either
during the fifty-first (51st) month or the seventy-fifth (75th) month of
the original term of this Lease. If Tenant timely gives such notice, the
extension of this Lease shall be automatically affected without the
execution of any additional documents. The original term and the extended
term are hereinafter collectively called the "term."
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If the Tenant disagrees with Landlord's designation of the market rate, and
the parties cannot agree upon the market rate, then the market rate shall
be submitted to arbitration as follows: market rate shall be determined by
impartial arbitrators who shall be real estate professionals with
experience in leasing similar properties, one to be chosen by the Landlord,
one to be chosen by Xxxxxx, and a third to be selected, if necessary, as
below provided. The unanimous written decision of the two first chosen,
without selection and participation of a third arbitrator, or otherwise,
the written decision of a majority of three arbitrators chosen and selected
as aforesaid, shall be conclusive and binding upon Landlord and Tenant.
Landlord and Tenant shall each notify the other of its chosen arbitrator
within ten (10) days following the call for arbitration and, unless such
two arbitrators shall have reached a unanimous decision within thirty (30)
days after their designation, they shall so notify the then President of
the Boston Bar Association and request him to select an impartial third
arbitrator, who shall be a real estate professional with experience in
leasing like types of properties, to determine market rate 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 share equally the expense of the
third arbitrator (if any). If the dispute between the parties as to a
market rate has not been resolved before the commencement of Tenant's
obligation to pay Fixed Rent based upon such market rate, then Tenant shall
pay Fixed Rent under the Lease based upon the market rate designated in
good faith by Landlord until either the agreement of the parties as to the
market rate, or the decision of the arbitrators, as the case may be, at
which time Tenant shall pay any underpayment of Fixed Rent to Landlord, or
any overpayment shall be credited against the Fixed Rent next payable by
Tenant hereunder.
In no event, however, shall the Annual Fixed Rent Rate for the Extended
Term be less than $400,000.
ARTICLE 3
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IMPROVEMENTS
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3.1 Performance of Work and Approval of Landlord's Work. Landlord shall cause
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to be performed the work ("Landlord's Work") required by Exhibit C, the
Work Letter. The final plans and specifications for the work set forth in
Part B of Exhibit C (the "Part B Work") which have not been completed as of
the date of this Lease shall be subject to approval by Landlord, which
approval shall not be unreasonably withheld so long as they emanate from
and are consistent with Part B of Exhibit C. All such work shall be done in
a good and workmanlike manner employing new, first quality materials and so
as to conform to all applicable laws. Tenant agrees that Landlord may make
any changes in such work which may become reasonably necessary or advisable
with the written approval of Tenant, which shall not be unreasonably
withheld or delayed provided that such changes are not inconsistent with
Part B of Exhibit C. Landlord shall use reasonable diligence to cause
Landlord's Work to be substantially completed by the Delivery Date, subject
to the provisions of Section 10.5 hereof. Xxxxxxxx agrees that Tenant may
make changes in such work with the approval of Landlord, which approval
shall not be unreasonably withheld so long as Xxxxxx agrees to be
responsible for any cost increases and/or delays associated therewith, and
the execution by Landlord and Tenant of a Work Change Order, in the form
attached hereto as Exhibit D. Promptly after Xxxxxxxx's approval of any
changes requested by Tenant hereunder, Landlord and Tenant shall execute a
Work Change Order reflecting the same. Tenant shall pay Landlord, as
additional rent, the amount (if any) by which the Part B Price (as defined
below) exceeds $400,000, payment to be made against Landlord's invoice
therefor on the Commencement Date. For the purposes hereof the "Part B
Price" shall mean the aggregate of all costs and expenses reasonably
incurred by Landlord in performing the Part B Work, being the cost of the
contract with Landlord's contractor (which shall be based upon the cost of
the Part B Work plus a contractor's fee not to exceed 6% thereof), plus
architectural and engineering fees incurred by Landlord in connection with
the Part B Work, plus a development fee to Landlord equal to 3% of the
aggregate of the foregoing. Landlord agrees that the Building shall be as
weathertight as other comparable buildings in comparable office parks in
the Burlington Bedford areas.
3.2 Acceptance of the Premises. Tenant or its representatives may, at
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reasonable times, enter upon the Premises during the progress of the work
to inspect the progress thereof and to determine if the work is being
performed in accordance with the requirements of Section 3.1 and the Work
Letter. Tenant shall promptly give to Landlord notices of any alleged
failure by Landlord to comply with those requirements. Landlord's Work
shall be deemed approved by Tenant when Tenant occupies the Premises for
the conduct of its business, expect for items of Landlord's Work which are
uncompleted or do not conform to Exhibit C which are, in either case,
included on a punch list submitted by Tenant to Landlord on the date of
such occupancy, or (b) latent defects or failures to complete or conform to
Exhibit C not then discoverable by a reasonable, visual examination and as
to which Tenant shall have given Landlord written notice within one (1)
year after such occupancy. Landlord shall complete such punch list items,
and shall cure such failures to complete or conform, with reasonable
diligence after such occupancy, and shall promptly cure any such latent
defects.
3.3 Construction Representatives. Each party authorizes the other to rely in
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connection with plans and construction upon written approval and other
actions on the party's behalf by any Construction Representative of the
party named in Section 1.1 or any person hereafter designated in
substitution or addition by notice to the party relying.
ARTICLE 4
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RENT
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4.1 The Fixed Rent. Tenant covenants and agrees to pay rent to Landlord at the
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Original Address of Landlord or at such other place or to such other person
or entity as Landlord may by notice in writing to Tenant from time to time
direct, at the Annal Fixed Rent Rate, in equal installments at the Monthly
Fixed Rent Rate (which is 1/12th of the Annual Fixed Rent Rate), in
advance, on the first day of each calendar month included in the term; and
for any portion of a calendar month at the beginning or end of the term, at
that rate payable in advance for such portion. Notwithstanding the
occurence of the Commencement Date on or after the Delivery Date pursuant
to clause (b) of the first sentence of Section 2.2, Fixed Rent shall not
accrue or be payable until the Landlord's Work has been substantially
completed (as that term is defined in Section 2.2).
If Landlord shall give notice to Tenant that all rent and other payments
due hereunder are to be made to Landlord by electronic funds transfers, so
called, or by similar means, Tenant shall make all such payments as shall
be due more than ten (10) days after receipt of said notice by means of
said electronic funds transfers (or such similar means as designated by
Landlord).
4.2 Additional Rent. In order that the Fixed Rent shall be absolutely net to
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Landlord (except to the extent otherwise expressly provided herein), Tenant
covenants and agrees to pay, as Additional Rent, taxes, betterment
assessments, operating costs, insurance costs, and utility charges with
respect to the Premises as provided in this Section 4.2 as follows:
4.2.1 Real Estate Taxes. Tenant shall pay to Landlord all taxes levied or
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assessed by, or becoming payable to the municipality or any
governmental authority having jurisdiction of the Property, for or in
respect of the Property or which may become a lien on the Property,
for each tax period partially or wholly included in the term, such
payments to be made to Landlord in the manner provided in Subsection
4.2.3 of this section 4.2. For any fraction of a tax period included
in the term at the beginning or end thereof, Tenant shall pay to
Landlord the fraction of taxes so levied or assessed or becoming
payable which is allocable to such included period. Tenant may
prosecute
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appropriate proceedings for abatement or reduction of any tax with
respect to which Tenant is required to make payments as hereinbefore
provided, such proceedings to be conducted jointly with any other
parties, including Landlord, who have contributed to the payment of
such taxes, and Xxxxxx agrees to save Landlord harmless from all costs
and expenses incurred on account of Xxxxxx's participation in such
proceedings. Landlord, without obligating itself to incur any costs or
expenses in connection with such proceedings, shall cooperate with
Tenant with respect to such proceedings so far as reasonably
necessary. Any abatement or reduction effected by such proceedings
shall accrue to the benefit of Xxxxxx and Landlord and such other
parties as their interests may appear according to their respective
contributions to the taxes involved in any such proceedings. Nothing
contained in this Lease shall however, require Tenant to pay any
franchise, corporate, estate, inheritance, succession, capital levy or
transfer tax of Landlord, or any income, profits or revenue tax or
charge upon the rent payable by Tenant under this Lease, provided,
however, that if, at any time during the term hereof, the present
system of ad valorem taxation of real property shall be changed so
that in lieu of, or in addition to, the whole or any part thereof
there shall be assessed on Landlord a capital levy or other tax on the
Fixed Rent, Additional Rentals or other charges payable by Tenant
hereunder, or if there shall be assessed on Landlord a federal, state,
county, municipal, or other local income, franchise, excise or similar
tax, assessment, levy or charge measured by or based, in whole or in
part, upon the Fixed Rentals, Additional Rents or other charges
payable by Tenant hereunder, then any and all of such taxes,
assessments, levies or charges, to the extent that the same would be
payable if the Property were the only property of Landlord subject to
same, and if the income from the Property were the only taxable income
of Landlord during the year in question, shall be deemed to be
included in the taxes to be paid by Tenant pursuant to this subsection
4.2.1.
4.2.2 Betterment Assessments. Tenant shall pay to Landlord each installment
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of all public, special or betterment assessments first levied or
assessed by or becoming payable to any municipality or other
governmental authority having jurisdiction of the Property after the
Commencement Date, for or in respect of the Property for each
installment period partially or wholly included in the term, such
payments to be made to Landlord in the manner provided in Subsection
4.2.3 of this Section 4.2. For any fraction of an installment period
included in the term at the beginning or end thereof, Tenant shall pay
to Landlord the fraction of such installment allocable to such
included period. Tenant may prosecute appropriate proceedings to
contest the validity or amount of any assessment with respect to which
Tenant is required to make payments as hereinbefore provided, such
proceedings to be conducted jointly with any other parties, including
Landlord, who have contributed to the payment of such assessments, and
Xxxxxx agrees to save Landlord harmless from all costs and expenses
incurred on account of Xxxxxx's participation in such proceedings.
Landlord, without obligating itself to incur any costs or expenses in
connection with such proceedings, shall cooperate with Tenant with
respect to such proceedings so far as reasonably necessary. Landlord
shall promptly furnish to Tenant a copy of any notice of public,
special or betterment assessment received by Landlord concerning the
Property.
4.2.3 Tax Fund Payments. Tenant shall, as Addition Rent, on the first day of
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each month of the term, make tax fund payments to Landlord. "Tax fund
payments" refer to such payments as Landlord shall reasonably
determine to be sufficient to provide in the aggregate a fund adequate
to pay all taxes and assessments referred to in Subsection 4.2.1 and
4.2.2 of this Section 4.2 when they become due and payable and all
such payments shall, to the extent thereof, relieve Tenant of its
obligations under said subsections. The initial calculation of the
monthly estimated payments shall be based upon the Initial Estimate of
Taxes of the Tax Year and upon quarterly payments being due to the
governmental authority on August 1, November 1, February 1 and May 1,
and shall be made when the Commencement Date has been determined. If
the aggregate of said tax fund payments is not adequate to pay all
said taxes and assessments, Tenant shall pay to Landlord the amount by
which such aggregate is less than the amount equal to all said taxes
and assessments, such payment to be made within ten (10) days after
receipt by Tenant of notice from Landlord of such amount. If Tenant
shall have made the aforesaid payments, Landlord shall on or before
the last day on which the same may be paid without interest or
penalty, pay to the proper authority charged with the collection
thereof all taxes and assessments referred to in said subsections
4.2.1 and 4.2.2 and furnish Tenant, upon request, reasonable evidence
of such payment. Any balance remaining after such payment by Landlord
shall be credited against the next accruing payments to be made by
Tenant pursuant to this subsection 4.2.3, or refunded to Tenant if the
term of this Lease has expired or terminated and Tenant has no further
obligation to Landlord, as the case may be. Landlord shall deliver
to Tenant a copy of all bills for taxes and assessments referred to in
Section 4.2.1 and 4.2.2 hereof promptly after Landlord's receipt
thereof.
4.2.4 Operating Costs. Tenant shall pay to Landlord, Operating Costs (as
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hereinafter defined) incurred by Landlord in any calendar year. Tenant
shall remit to Landlord, on the first day of each calendar month,
estimated payments on account of Operating Costs, such monthly
amounts to be sufficient to provide Landlord, by the end of the
calendar year, a sum equal to the Operating Costs, as reasonably
estimated by Xxxxxxxx from time to time. The initial monthly estimated
payments shall be in an amount equal to 1/12th of the Initial Estimate
of Operating Costs for the Calendar Year. If, at the expiration of the
year in respect of which monthly installments of Operating Costs shall
have been made as aforesaid, the total of such monthly remittances is
greater than the actual Operating Costs for such year, Landlord shall
promptly pay to Tenant, or credit against the next accruing payments
to be made by Tenant pursuant to this subsection 4.2.4, the
difference; if the total of such remittances is less than the
Operating Costs for such year, Tenant shall pay the difference to
Landlord within twenty (20) days from the date Landlord shall furnish
to Tenant an itemized statement of such Operating Costs, prepared and
computed in accordance with generally accepted accounting principles.
Any reimbursement for Operating Costs due and payable by Tenant with
respect to periods of less than twelve (12) months shall be equitably
prorated.
The term "Operating Costs" shall mean:
(a) all reasonable costs incurred by Landlord in performing
maintenance and making repairs and replacements pursuant to
subsection 5.1.1;
(b) all reasonable costs incurred by Landlord in performing its
obligations under subsection 5.1.2;
(c) all reasonable costs of any insurance carried by Landlord
pursuant to subsection 5.1.3;
(d) all reasonable costs incurred by Landlord in connection with
maintenance and operation of common areas and facilities of the
Property and Tenant's exclusive parking areas;
(e) reasonable payments under all service contracts relating to
matters referred to in Items (a) through (d) hereof; and
(f) a reasonable and competitive management fee that does not exceed
the rate charged by managers of comparable buildings for similar
services in comparable office parks in the Burlington Bedford
area;.
If, during the term of this Lease, Landlord shall replace any capital
items or make any capital expenditures in connection with repair or
replacement of the roof or the exterior walls or in connection with
its obligations under
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subsection 6.1.4(collectively called "capital expenditures") and
such capital expenditures are not occasioned by any act or
negligence of Tenant, its employees, customers, suppliers,
contractors, and the like, the total amount of such capital
expenditures shall not be included in Operating Costs for the
calendar year in which they are made, but there shall
nevertheless be included in Operating Costs for each calendar
year in which and after such capital expenditure is made the
annual charge-off of such capital expenditure. (Annual charge-off
shall be determined by (i) dividing the original cost of the
capital expenditure by the number of years of useful life thereof
[The useful life shall be reasonably determined by Landlord in
accordance with generally accepted accounting principles and
practices in effect at the time of acquisition of the capital
item.]; and (ii) adding to such quotient an interest factor
computed on the unamortized balance of such capital expenditure
based upon an interest rate reasonably determined by Landlord as
being the interest rate then being charged for long-term
mortgages by institutional lenders on like properties within the
locality in which the Building is located).
There shall not be including in Operating Costs:
(1) The costs of repairs incurred by Landlord in the event
of a fire or other casualty or in the event of a taking
by eminent domain or resulting from acts or omissions
of Landlord or its employees, agents or contractors; or
(2) Costs of performing Landlord's Work; or
(3) Costs of correcting defects in Landlord's Work during
the first year of Tenant's occupancy of the Premises or
failures to complete or conform of which Tenant gives
timely notice under Section 3.2, and Costs of
correcting defects in Landlord's Work thereafter to the
extent (if any) Landlord has received reimbursement
pursuant to any contractor's warranty relating thereto
[Landlord hereby agreeing to use reasonable efforts to
obtain reimbursements to which it is entitled
thereunder]; to
(4) Costs of correcting any violations of law existing in
the Premises as of the Commencement Date.
4.2.5 Insurance. Tenant shall, at its expense, as Additional Rent,
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take out and maintain throughout the term the following insurance
protecting Landlord:
4.2.5.1 Comprehensive liability insurance naming Landlord,
Tenant, and Xxxxxxxx's managing agent and any mortgagee
of which Xxxxxx has been given notice as insureds or
additional insureds and indemnifying the parties so
named against all claims and demands for death or any
injury to person or damage to property which may be
claimed to have occurred on the Property or on any
property, streets or ways adjoining the Property, in
amounts which shall, at the beginning of the term, be
at least equal to the limits set forth in Section 1.1,
and, which, from time to time during the term, shall be
for such higher limits, if any, as are customarily
carried in the area in which the Premises are located
on property similar to the Property and used for
similar purposes; and workmen's compensation insurance
with statutory limits covering all of Tenant's
employees working on the Premises.
4.2.5.2. Fire insurance with the usual extended coverage
endorsements covering all Tenant's furniture,
furnishings, fixtures and equipment and any other
contents or improvements not covered by the insurance
to be maintained under subsection 5.1.3.1.
4.2.5.3 All such policies shall be obtained from responsible
companies not legally prohibited from doing business in
Massachusetts, which companies and the amount of
insurance allocated thereto shall be subject to
Landlord's reasonable approval, consistent with
practices in the vicinity of the Building. Xxxxxx
agrees to furnish Landlord with certificates evidencing
all such insurance prior to the beginning of the term
hereof and evidencing renewal thereof at least thirty
(30) days prior to the expiration of any such policy.
Each such certificate shall require the insurance
company to endeavor to give Landlord at least ten (10)
days' prior written notice of any cancellation thereof.
In the event provision for any such insurance is to be
by a blanket insurance policy, the policy shall
allocate a specific and sufficient amount of coverage
to the Property.
4.2.5.4 All insurance which is carried by either party with
respect to the Building, 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, provided that such
provisions may be effective without making it
impossible to obtain insurance coverage from
responsible companies qualified to do business in the
state in which the Premises are located (even though
extra premium may result therefrom). In the event that
extra premium is payable by either party as a result of
this provision, the other party shall reimburse the
party paying such premium the amount of such extra
premium. If at the request of one party, this non-
subrogation provision for the benefit of that party is
waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be
effective, but nothing contained in this subsection
shall derogate from or otherwise affect releases
elsewhere herein contained of either party for claims.
Each party shall be entitled to have certificates of
any 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.
Tenant shall not acquire as insured under any insurance
carried by Landlord on the Property any right to
participate in the adjustment of loss or to receive
insurance proceeds and agrees upon request promptly to
endorse and deliver to Landlord any checks or other
instruments in payment under such policies of loss in
which Tenant is named as payee.
4.2.6 Utilities. Tenant shall pay directly to the proper authorities
---------
charged with the collection thereof all charges for water, sewer,
gas, oil, electricity, telephone and other utilities or services
used or consumed on the Property during the term of this Lease,
whether designated as a charge, tax, assessment, fee or
otherwise, including, without limitation, water and sewer use
charges and taxes, if any, all such charges to be paid as the
same from time to time become due. The utilities presently
available to the Premises are each separately metered. Except as
otherwise provided in Exhibit C, it is understood and agreed that
Tenant shall make its own arrangements for the installation or
provision of all such utilities and that Landlord shall be under
no obligation to furnish any utilities to the Premises and shall
not be liable for any interruption or failure in the supply of
any such utilities to the Property. Landlord shall pay any
charges for any utilities furnished to the Premises prior to the
Commencement Date to the extent additional requirements (such as
a security deposit) would be imposed upon Tenant if such charges
remain unpaid.
4.3 Late Payment of Rent. If any installment of rent is paid after the date the
--------------------
same was due, and if on a prior occasion in the twelve (12) month period
prior to the date such installment was due an installment of rent was paid
after the same was due, then Tenant shall pay Landlord a late payment fee
equal to five (5%) percent of the overdue payment.
6
4.4 Security and Restoration Deposit. Upon the execution of this Lease, Tenant
--------------------------------
shall deliver to Landlord an irrevocable letter of credit for the amount
of the Security and Restoration Deposit, from a banking institution
reasonably satisfactory to both Landlord and Tenant, to expire no earlier
than one year from the date the letter of credit is delivered to Landlord.
Landlord shall have the right to present the letter of credit, and draw
the full amount thereof by a sight draft, accompanied by Xxxxxxxx's
certification that:
(a) Tenant is in default in the performance of any of its
obligations to pay the Fixed Rent or Additional Rent and such default
has continued for ten (10) days after Landlord has not given written
notice of such default;
(b) Tenant is in default in the performance of any other
covenant or condition of this Lease on the part of Tenant to be
performed or observed and within thirty days after Landlord has given
written notice of such default and Tenant has not commenced diligently
to correct the default or defaults or has thereafter diligently
pursued correction to completion; or
(c) an event of the character described in clauses (b)
through (f) of Section 8.1 of this Lease has occurred and is
continuing at the time Landlord is permitted to give notice of
termination described in Section 8.1; or
(d) Xxxxxxxx has not received within thirty days prior to
the expiration of the letter of credit an irrevocable extension
thereof for at least one year beyond the current expiration date, or a
replacement thereof issued by a banking institution reasonably
acceptable to Landlord with an expiration date at least one year
following the expiration date of the letter of credit being replaced
and otherwise satisfying the requirements hereof.
Upon receipt of the proceeds of the letter of credit, Landlord shall hold
the same as a security deposit for the faithful performance by Tenant of
all the terms of this Lease by Tenant to be observed and performed. The
security deposit shall not be mortgaged, assigned, transferred or
encumbered by Tenant without the written consent of Landlord and any such
act on the part of Tenant shall be without force and effect and shall not
be binding upon Landlord. If the Fixed Rent or Additional Rent payable
hereunder shall be overdue and unpaid or should Landlord make payments on
behalf of the Tenant, or Tenant shall fail to perform any of the terms of
this Lease, then Landlord may, at its option and without prejudice to any
other remedy which Landlord may have on account thereof, appropriate and
apply said entire deposit or so much thereof as may-be necessary to
compensate Landlord toward the payment of Fixed Rent, Additional Rent or
other sums or loss or damage sustained by Landlord due to such breach on
the part of Tenant; and Tenant shall forthwith upon demand restore said
security to the original sum deposited. Should Tenant comply with all of
said terms and promptly pay all of the rentals as they fall due and all
other sums payable by Tenant to Landlord, said deposit and any interest
earned xxxxxxx shall be returned in full to Tenant at the end of the term.
In the event of bankruptcy or other creditor-debtor proceedings against
Tenant, all securities shall be deemed to be applied first to the payment
of rent and other charges due Landlord for all periods prior to the filing
of such proceedings.
Provided that Tenant is not then in default hereunder (after notice and
expiration of any grace period), and Xxxxxx continues to be profitable,
the Security and Restoration Deposit shall be reduced by $60,000 on each
of the first through sixth anniversaries of the Commencement Date, and
shall remain at $40,000 thereafter. Prior to each anniversary date, Tenant
shall provide proof reasonably satisfactory to Landlord of Tenant's
profitability in order for such reduction to be permitted.
If the letter of credit shall be in effect at the end of the Term,
Landlord shall surrender the same for cancellation within one month after
Tenant shall have vacated and delivered the Premises to Landlord in the
condition required under this Lease, provided the Tenant is not then
otherwise in default under this Lease.
ARTICLE 5
---------
LANDLORD'S COVENANTS
--------------------
5.1 Affirmative Covenants. Landlord covenants with Tenant:
---------------------
5.1.1 Repairs. To correct defects or omissions in Landlord's Work of which
-------
Tenant shall have given Landlord written notice within one (1) year
after Tenant's occupancy of the Premises and to make such repairs
and replacements to items of Landlord's Work, the roof, exterior
walls, foundations and structural elements of, and utility lines and
connections to, the Building (other than doors, windows and glass)
and the parking areas, driveways and walkways on the Property, as
may be necessary, and to maintain, and make such replacements and
repairs to, the heating, ventilating and air conditioning systems of
the Building, as may be necessary in order to maintain the same in a
condition substantially equivalent to the condition of comparable
buildings in comparable office parks in the Burlington Bedford area,
it being agreed that said heating, ventilation and air conditioning
system shall be sufficient to maintain the Premises at comfortable
temperatures so long as Tenant's use does not produce demands in
excess of normal office use or involve additional equipment not
shown on the plans for Landlord's Work;
5.1.2 Landscaping, Etc. To provide landscaping and grounds maintenance for
----------------
the landscaped areas of the Property, and snow, ice and debris
removal and service for the aforementioned right of way abutting the
Premises and the parking area located on Lot 70 substantially
equivalent to that provided in comparable office parks in the
Burlington Bedford area;
5.1.3 Insurance. To take out and maintain throughout the term the
---------
following insurance:
5.1.3.1 All risk casualty insurance, with endorsement for
difference in conditions coverage, debris removal and
demolition, in an amount at least equal to the replacement
cost of the Building and other improvements on the
Premises, as such replacement cost may from time to time be
determined by Landlord. All such policies shall be obtained
from responsible companies not legally prohibited from
doing business in Massachusetts. Xxxxxxxx agrees to furnish
Tenant promptly upon request with certificates evidencing
all such insurance under which the insurance company will
endeavor to give Tenant (10) days' prior written notice of
any cancellation thereof. In the event provision for any
such insurance is to be by a blanket insurance policy, the
policy shall allocate a specific and sufficient amount of
coverage to the Property.
5.1.3.2 Insurance protecting Landlord against abatement or loss of
rent in an amount equal to at least all the Fixed Rent and
Additional Rent payable for one year under Article 4.
5.1.4 Payment of Tenant's Cost of Enforcement. To pay on demand Tenant's
---------------------------------------
expenses, including reasonable attorneys' fees, incurred in enforcing any
obligation of Landlord under this Lease, but only after a final judgement
has been entered in favor of Tenant in an action seeking such enforcement
which has become final beyond appeal.
7
5.1.5 Estoppel Certificate. Upon not less than fifteen (15) days' prior
--------------------
written request by Xxxxxx, to execute, acknowledge and deliver to
Tenant a statement in writing certifying that this Lease is unmodified
and in full force and effect and that to the best of Landlord's
knowledge Tenant is not in default under the Lease beyond the
expiration of any applicable grace periods (or, if there have been a
modifications, that the Lease is in full force and effect as modified
and stating the modifications and, if there are any such default known
to the Landlord, setting them forth in reasonable detail), and the
dates to which the Fixed Rent and Additional Rent and other charges
have been paid. Any such statement delivered pursuant to this
subsection 5.1.5 may be relied upon by any prospective purchaser,
lender or investor of Tenant or a prospective subtenant or assignee.
5.1.6 Pre-existing Hazardous Materials. Landlord shall indemnify and save
--------------------------------
Tenant harmless from all claims, liability, loss or damage which may
at any time be incurred by Tenant arising on account of a release or
threatened release at, on or under the Property of hazardous wastes,
hazardous materials or oil present at, on, under the Property as of
the date of this Lease, including, without limitation, liability under
any federal, state or local laws, requirements and regulations;
provided, however, this indemnity shall not apply in the event Tenant
uses or disposes at, on or under the Property the hazardous wastes,
hazardous materials or oil which are the subject of such claim,
liability, loss or damage except for any used in copy machines,
printers or other commonly used office products, equipment or
supplies.
ARTICLE 6
---------
TENANT'S ADDITIONAL COVENANTS
-----------------------------
6.1 Affirmative Covenants. Tenant covenants at all times during the term
---------------------
and for such further time (prior or subsequent thereto) as Tenant
occupies the Premises or any part thereof:
6.1.1 Perform Obligations. To perform promptly all of the
-------------------
obligations of Tenant set forth in this Lease; and to pay
when due the Fixed Rent and Additional Rent and all charges,
rates and other sums which by the terms of this Lease are to
be paid by Xxxxxx.
6.1.2 Use. To use the Premises only for the Permitted Uses, and
---
from time to time to procure all licenses and permits
necessary therefor, at Tenant's sole expense. Failure to use
and/or occupy the Premises continuously shall not in and of
itself constitute a default hereunder so long as all of
Tenant's covenants and obligations under this Lease are being
performed and observed. With respect to any licenses or
permits for which Tenant may apply, pursuant to this
subsection 6.1.2 or any other provision hereof, Tenant shall
furnish Landlord copies of applications therefor on or before
their submission to the governmental authority.
6.1.3 Repair and Maintenance. Except as otherwise provided in
----------------------
subsection 5.1.1, 5.1.2 and Article 7, to keep the Premises
(including, without limitation, the exterior of the Building,
all improvements thereon and all plumbing, electrical,
mechanical and other fixtures and equipment now or hereafter
on the Premises) in good order, condition and repair and 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 and damage by casualty or eminent
domain only excepted; to keep in good repair and clean and
neat and free of snow and ice all surfaced roadways, walks,
and parking and loading areas; and to make all repairs and
replacements and to do all other work necessary for the
foregoing purposes whether the same may be ordinary or
extraordinary, foreseen or unforseen. It is further agreed
that the exception of reasonable use and wear shall not apply
so as to permit Tenant to keep the Premises in anything less
than suitable, tenant like, and efficient and usable
condition, or in less than good and tenantlike repair.
6.1.4 Compliance with Law. To 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; to keep the Premises equipped with all safety
appliances so required; and to 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, except that
Tenant may defer compliance so long as the validity of any
such law, ordinance, order or regulations shall be contested
by Tenant in good faith and by appropriate legal proceedings,
if Tenant first gives Landlord appropriate assurance or
security against any loss, cost or expense on account
thereof. Notwithstanding the foregoing, it is understood and
agreed that Tenant shall not be required to do any of the
foregoing in order to correct any violation of law existing
in the Premises as of the Commencement Date or in order to
cause the Premises to comply with any law which is applicable
to office buildings generally, which shall be Landlord's
obligation to comply with (as opposed to any which applies to
Tenant's particular use or manner or method of use, which
shall be Tenant's obligation to comply with).
6.1.5 Indemnification. To save Landlord harmless, and to exonerate
---------------
and indemnify Landlord from and against any and all claims,
liabilities or penalties asserted by or on behalf of any
person, firm, corporation or public authority on account of
injury, death, damage or loss to person or property in or
upon the Premises or the Property (a) prior to the
Commencement Date, arising out of the negligence or willful
misconduct of Tenant or any of its agent, employees or
contractors, and (b) thereafter arising out of the use or
occupancy of the Premises by Tenant or by any person claiming
by, through or under Tenant (including, without limitation,
all patrons, employees and customers of Tenant), or
arising out of any delivery to or service supplied to the
Premises or the Property, or on account of or based upon
anything whatsoever done on the Premises or the Property,
except if the same was caused by the willful negligence,
fault or misconduct of Landlord, its agents, servants,
employees or contractors. In respect of all of the foregoing,
Tenant shall indemnify Landlord from and against all
reasonable costs, expenses (including reasonable attorneys'
fees), and liabilities incurred in or in connection with any
such claim, action or proceeding brought thereon; and, in
case of any action or proceeding brought against Landlord by
reason of any such claim, Tenant, upon reasonable advance
notice from Landlord and at Tenant's expense, shall resist
or defend such action or proceeding and employ counsel
therefor reasonably satisfactory to Landlord.
6.1.6 Landlord's Right to Enter. To permit Landlord and its agents
-------------------------
to enter into and examine the Premises at reasonable times
and to show the Premises, and to make repairs to the
Premises, and, during the last six (6) months prior to the
expiration of this Lease, to keep affixed in suitable places
notices of availability of the Premises, provided that
Landlord shall use reasonable efforts to minimize
interference with Tenant's business operations. Landlord
acknowledges that portions of the Premises may be subject to
secrecy restrictions and security requirements imposed by the
Federal government and other customers of Tenant. Tenant may,
from time to time, notify Landlord of any area(s) of the
Premises that are subject to such restrictions and
requirements and the period of time for which they will be in
effect. Landlord agrees that (except in emergency situations)
if Landlord desires access to any area for which it has
received a notice hereunder during the time period specified
therein, Landlord shall give Tenant at least seven (7)
business days advance written notice thereof, and Tenant
shall make whatever arrangements may be necessary to permit
such access in compliance with the applicable security
requirements within such period, provided that if such
arrangements cannot reasonably be made within such seven
8
(7) day period, Tenant shall so notify Landlord and such period
shall be extended by such additional time as may be reasonably
necessary to do so, but in no event longer than an additional
fourteen (14) business days.
6.1.7 Personal Property at Tenant's Risk. All of the furnishings,
----------------------------------
fixtures, equipment, effects and property of every kind, nature
and description of Tenant and of all persons claiming by, through
or under Tenant which, during the continuance of this Lease or
any occupancy of the Premises by Tenant or anyone claiming under
Tenant, may be on the Premises, shall be at the sole risk and
hazard of Tenant and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, or other pipes,
by theft or from any other cause no part of said loss or damage
is to be charged to or to be borne by Landlord, except that
Landlord shall in no event be indemnified or held harmless or
exonerated from any liability to Tenant or to any other person,
for any injury, loss, damage or liability to the extent
prohibited by law.
6.1.8 Payment of Landlord's Cost of Enforcement. To pay on demand
-----------------------------------------
Landlord's expenses, including reasonable attorneys' 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 8.4, but only after a final judgment has been entered
in favor of Landlord in an action seeking such enforcement or
concerning such default which has become final beyond appeal.
6.1.9 Yield Up. At the expiration of the term or earlier termination of
--------
this Lease: to surrender all keys to the Premises; to remove all
of its trade fixtures and personal property in the Premises; to
remove such installations made by it as Landlord may designate at
the time of Landlord's approval of the installations in question
(including computer and telecommunications wiring and cabling)
and all Tenant's signs wherever located; to repair all damage
caused by such removal and to yield up the Premises (including
all installations and improvements made by Tenant except for
trade fixtures and such of said installations or improvements as
Landlord shall request Tenant to remove), broom-clean and in the
same good order and repair in which Tenant is obliged to keep and
maintain the Premises by the provisions of this Lease. Any
property not so removed shall be deemed abandoned and, if
Landlord so elects, deemed to be Landlord's property, and may be
retained or 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 its performance of its
obligations under this subsection 6.1.9. Tenant shall further
indemnify Landlord against all loss, cost and damage resulting
from Xxxxxx's failure and delay in surrendering the Premises as
above provided.
The parties acknowledge and agree that Landlord has approved the
installation of the kitchen, lunchroom and shower facilities (the
"Non-Standard Improvements") included in the Part B Work on the
condition that at the expiration or earlier termination of the
term hereof, Tenant shall pay $7,500 (the "Restoration Fund") to
Landlord which may be used by Landlord to remove the Non-Standard
Improvements, in whole or in part, and restore the demolished
area to the condition of general office space within 9 months
thereafter. All or any portion of the Restoration Fund which has
not been expended for reasonable costs and expenses for such
demolition and restoration at the end of such 9 month period
shall be promptly paid to Tenant. Upon Xxxxxx's request, Landlord
shall provide Tenant with reasonable documentation supporting the
expenditure of the Restoration Fund.
If the Tenant remains in the Premises beyond the expiration or
earlier termination of this Lease, such holding over shall be
without right and shall not be deemed to create any tenancy, but
the Tenant shall be a tenant at sufferance only at a daily rate
of rent equal to two (2) times the rent and other charges in
effect under this Lease as of the day prior to the date of
expiration of this Lease.
6.1.10 Estoppel Certificate. Upon not less than fifteen (15) days' prior
--------------------
written request by Xxxxxxxx, to execute, acknowledge and deliver
to Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect and that to the best of
its knowledge Tenant has no defenses, offsets or counterclaims
against its obligations to pay the Fixed Rent 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
Lease is in full force and effect as modified and stating the
modifications and, if there are any defenses, offsets or
counterclaims known to Tenant, setting them forth in reasonable
detail), and the dates to which the Fixed Rent and Additional
Rent and other charges have been paid. Any such statement
delivered pursuant to this subsection 6.1.10 may be relied upon
by any prospective purchaser or mortgagee of the Premises, or any
prospective assignee of such mortgage. Tenant shall also deliver
to Landlord such publicly available financial information as to
Tenant as may be reasonably required by Landlord to be provided
to any mortgagee or prospective purchaser of the Premises.
6.2 Negative Covenants. Tenant covenants at all times during the term and such
------------------
further time (prior or subsequent thereto) as Tenant occupies the Premises
or any part thereof:
6.2.1 Assignment and Subletting. Not to assign, transfer, mortgage or
-------------------------
pledge this Lease or to 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 the prior written consent of
Landlord. In the event Tenant desires to assign this Lease or
sublet any portion or all of the Premises, Tenant shall notify
Landlord in writing of Xxxxxx's intent to so assign this Lease or
sublet the Premises and the proposed effective date of such
subletting or assignment, and shall request in such notification
that Landlord consent thereto. Landlord may terminate this Lease
in the case of a proposed assignment, or suspend this Lease pro
tanto for the period and with respect to the space involved in
the case of a proposed subletting, by giving written notice of
termination or suspension to Tenant, with such termination or
suspension to be effective as of the effective date of such
assignment or subletting. If Landlord does not so terminate or
suspend Landlord's consent shall not be unreasonably withheld to
an assignment during the original term of this Lease or to a
subletting during the term of this Lease, provided that the
assignee or subtenant shall use the Premises only for the
Permitted Uses. Tenant shall, as Additional Rent, reimburse
Landlord promptly for Landlord's reasonable legal expenses
incurred in connection with any request by Tenant for such
consent. If Landlord consents thereto, no such subletting of
assignment shall in any way impair the continuing primary
liability of Tenant hereunder, and no consent to any subletting
or assignment in a particular instance shall be deemed to be a
waiver of the obligation to obtain the Landlord's written
approval in the case of any other subletting or assignment. With
respect to any assignment or sublease during the original term of
this Lease, such assignment shall not include the right granted
to Tenant under Section 2.3 above to extend the term and such
sublease shall be for a term expiring no later than the
expiration of the original term of this Lease.
The provisions of the preceding paragraph shall not apply to
transactions with an entity into which or with which Tenant is
merged or consolidated or to which substantially all of Tenant's
assets are transferred or to any entity which controls or is
controlled by or under common control with Tenant, provided that
in any of such events (i) the successor to Tenant
9
has a net worth computed in accordance with generally accepted
accounting principles at least equal to the net worth of Tenant
immediately prior to such merger, consolidation or transfer, (ii)
proof reasonably satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least ten (10) days prior to
the effective date of any such transaction, and (iii) the
assignee agrees directly with Landlord, by written instrument in
form reasonably acceptable to Landlord, to perform all of the
obligations of Tenant.
If for any assignment or sublease consented to by Landlord
hereunder Xxxxxx receives 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 case of sublease
of all or part, in excess of such rent fairly allocable thereto,
after appropriate adjustments to assure that all other payments
called for hereunder are appropriately taken into account and
after deduction for reasonable expenses of Tenant in connection
with the assignment or sublease, to pay to Landlord as additional
rent fifty (50%) percent of the excess of each such payment of
rent or other consideration received by Tenant promptly after its
receipt.
Whenever Tenant lists with a broker or brokers or otherwise
advertises, holds out or markets the Premises or any part thereof
for sublease or assignment, Tenant shall give Xxxxxxxx Company,
as brokers, a non-exclusive listing with respect to such
sublease or assignment.
If, at any time during the term of this Lease, there is a
transfer of a controlling interest in the stock or general
partnership interests of Tenant, and the transferee's intention
is to liquidate or dissolve Tenant, Landlord may terminate this
Lease by notice to Tenant within ninety (90) days thereafter, and
Landlord shall thereupon be entitled to the remedies set forth in
Section 8.2. The foregoing shall not apply, however, if the
transferee's intention is to liquidate or dissolve Tenant into a
parent of Tenant which shall be permitted upon compliance by the
parent with the second paragraph of this Section 6.2.1.
6.2.2 Overloading and Nuisance. Not to injure, overload the capacity of
------------------------
the five inch (5") slab-on-grade floor of the Building, deface or
otherwise harm the Premises; nor commit any nuisance; nor permit
the emission of any objectionable noise or odor, nor make, allow
or suffer any waste; nor make any use of the Premises which is
improper, offensive or contrary to any law or ordinance or which
will violate customary insurance requirements for office use; nor
conduct any auction, fire, "going out of business" or bankruptcy
sales. Landlord represents and warrants that the Premises shall
be in compliance with all laws applicable to use of the Building
for office use as of the Commencement Date.
6.2.3 Hazardous Wastes and Materials. Not to dispose of any hazardous
------------------------------
wastes, hazardous materials or oil on the Premises or the
Property, or into any of the plumbing, sewage, or drainage
systems thereon, except to the extent contained in normal office
products which are used and disposed of in compliance with law,
and to indemnify and save Landlord harmless from all claims,
liability, loss or damage arising on account of the use or
disposal of hazardous wastes, hazardous materials or oil at the
Premises, including, without limitation, liability under any
federal, state or local laws, requirements and regulations, or
damage to any of the aforesaid systems. Subject to subsection
5.1.6, Tenant shall comply with all governmental reporting
requirements with respect to hazardous wastes, hazardous
materials and oil, and shall deliver to Landlord copies of all
reports filed with governmental authorities.
6.2.4 Installation, Alterations or Additions. Not to make any
--------------------------------------
installations, alterations or additions in, to or on the Premises
nor to permit the making of any holes (other than by small nails
and screws for hanging pictures and the like) in the walls,
partitions, ceilings or floors without on each occasion obtaining
the prior written consent of Landlord, and then only pursuant to
plans and specifications approved by Landlord in advance in each
instance. Notwithstanding the foregoing, Tenant may, without the
prior consent of Landlord, make nonstructural, interior
installations or alterations not exceeding $5,000 in cost
individually or $10,000 in the aggregate during any twelve (12)
month period, provided that (a) the same do not impair the
structural integrity of the Building, reduce its value, or
involve modifications to the Building heating, ventilation or air
conditioning systems or penetrations of the roof or exterior
walls and (b) in each instance Tenant shall furnish Landlord with
"as built" plans upon completion of such work. Tenant shall pay
promptly when due the entire cost of any work to the premises
undertaken by Tenant so that the Premises shall at all times be
free of liens for labor and materials, and at Landlord's request
Tenant shall furnish to Landlord a bond or other security
acceptable to Landlord assuring that any work commenced by Tenant
will be completed in accordance with the plans and specifications
theretofore approved by Landlord and assuring that the Premises
will remain free of any mechanics' lien or other encumbrance
arising out of such work. In any event, Tenant shall forthwith
bond against or discharge any mechanics' liens or other
encumbrances that may arise out of such work. Tenant shall
procure all necessary licenses and permits at Tenant's sole
expense before undertaking such work. All such work shall be done
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. 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.
Not to grant a security interest in, or to lease, any personal
property being installed in the Premises (including, without
limitation, demountable partitions) without first obtaining an
agreement, for the benefit of Landlord, from the secured party or
lessor that such property will be removed within ten (10)
business days after notice from Landlord of the expiration or
earlier termination of this Lease and that a failure to so remove
will subject such property to the provisions of subsection 6.1.9
of the Lease.
6.2.5 Signs. Not to place any signs on the Building or elsewhere on the
-----
Premises except for an identifying sign on the Building which may
be installed subject to compliance with the Northwest Park sign
policy and Landlord's prior written approval, which shall not be
unreasonably withheld. Such sign shall be maintained in good
repair by Tenant and shall conform to applicable requirements of
public authorities. In any event, Tenant shall not place any
signs on the Building or elsewhere on the Premises regarding
availability of the Premises. Xxxxxxxx agrees that no other signs
will be placed on the Building or Premises except for directional
signs in parking areas.
6.2.6 Parking and Storage. Not to permit any storage of materials
-------------------
outside of the Building; to use reasonable diligence to prevent
Tenant's employees and customers and other persons visiting the
Premises from using any street abutting the Premises for parking;
and, not to permit the use of the Premises for either temporary
or permanent storage of trucks, or for any use for which heavy
trucking to or from the site would be customary.
ARTICLE 7
---------
CASUALTY OR TAKING
------------------
7.1 Termination. In the event that the Premises or the Building, or any
-----------
material part thereof, shall be taken by any public authority or for any
public use, or shall be destroyed or damaged by fire or casualty, or by the
action of any public authority, then this Lease may be terminated at the
election of Landlord. 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 to Tenant within sixty (60) days after
the date of the
10
taking or casualty. In the event that the Premises or any
material part thereof shall be destroyed or damaged by fire or
casualty, or by the action of public authority, and cannot
reasonably be expected to be repaired or restored within one
hundred eighty (180) days (or ninety (90) days, if the damage
occurs during the last year of the term) from the time that
repair or restoration work would be commenced, then this Lease
may be terminated at the election of Landlord or Tenant, which
election shall be made by giving of notice to the other party
within thirty (30) days after the date of damage or destruction.
In the event (a) the remainder of the Premises after a partial
taking is not reasonably sufficient for the operation of Tenant's
business or (b) a taking results in a permanent loss of adequate
parking available for use by Tenant (and Landlord does not elect
to furnish substitute parking in a convenient location on or in
close proximity to the Property), or a permanent deprivation of
convenient access to the Premises, then Tenant may terminate this
Lease by giving Landlord written notice of its election to do so
within thirty (30) days after the date of such taking.
7.2 Restoration. If no termination right is exercised by any party
-----------
having one under to Section 7.1 above, then this Lease shall
continue in force and a just proportion of the rent reserved,
according to the nature and extent of the damages sustained by
the Premises, shall be suspended or abated until the Premises, or
what may remain thereof, shall be put by Landlord in proper
condition for use, which Landlord covenants to do with reasonable
diligence to the extent permitted by the net proceeds of
insurance recovered under the insurance carried by Landlord in
accordance with Section 5.1.3.1 (or which could have been
recovered if Landlord had carried such insurance, if not in fact
carried by Landlord) plus the amount of any deductible thereunder
which shall be funded by Landlord or damages awarded for such
taking, destruction or damage and subject to zoning and building
laws or ordinances then in existence. "Net proceeds of insurance
recovered or damages awarded" refers to the gross amount of such
insurance or damages less the reasonable expenses of Landlord
incurred in connection with the collection of the same, including
without limitation, fees and expenses for legal and appraisal
services. From and after any restoration resulting from a
permanent taking of part of the Premises, a just proportion of
the rent reserved, according to the nature and extent of the
damages sustained by the Premises shall be permanently abated.
7.3 Award. Irrespective of the form in which recovery may be had by
-----
law, all rights to damages or compensation shall belong to
Landlord in all cases. Except for any award made to Tenant for
the personal property of Tenant and relocation expenses of
Tenant, Tenant hereby grants to Landlord all of Tenant's rights
to such damages and covenants to deliver such further assignments
thereof as Landlord may from time to time request. Tenant hereby
grants to Landlord all of Tenant's rights to such damages and
covenants to deliver such further assignments thereof as Landlord
may from time to time request.
ARTICLE 8
---------
DEFAULTS
--------
8.1 Events of Default. (a) If Tenant shall default in the performance
-----------------
of any of its obligations to pay the Fixed Rent or Additional
Rent hereunder and if such default shall continue for ten (10)
days after written notice from Landlord designating such default
or if within thirty (30) days after written 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, or (b) if any assignment shall be made
by Tenant or any guarantor of Tenant for the benefit of
creditors, or (c)) if Tenant's leasehold interest shall be taken
on execution, or (d) if a lien or other involuntary encumbrance
is filed against Tenant's leasehold interest or a material
portion of Tenant's other property, including said leasehold
interest, and is not discharged within twenty (20) days
thereafter, or (e) if a petition is filed by Tenant or any
guarantor of Tenant for liquidation, or for reorganization or an
arrangement under any provisions of any bankruptcy law or code as
then in force and effect, or (f) if an involuntary petition under
any of the provisions of any bankruptcy law or code is filed
against Tenant or any guarantor of Tenant and such involuntary
petition is not dismissed within thirty (30) 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 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 (forcibly, if necessary) 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 covenants, and upon such entry or mailing as
aforesaid this Lease shall terminate, Tenant hereby waiving all
statutory rights to the Premises (including without limitation
rights of redemption, if any, to the extent such rights may be
lawfully waived) and 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.
8.2 Remedies. In the event that this Lease is terminated under any of
--------
the provisions contained in Section 8.1 or the last paragraph of
subsection 6.2.1. Tenant covenants to pay forthwith to Landlord,
as compensation, the excess of the total rent reserved for the
residue of the term over the rental value of the Premises for
said residue of the term. In calculating the rent reserved there
shall be included in addition to the Fixed Rent and Additional
Rent, the value of all other considerations agreed to be paid or
performed by Xxxxxx for said residue. Tenant further covenants as
additional and cumulative obligations after any such termination,
to pay punctually to Landlord all the sums and to 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 next preceding
sentence Tenant shall be credited with any amount paid to
Landlord as compensation as in this Section 8.2 provided and also
with the net proceeds of any rent obtained by Landlord by
reletting the Premises, after deducting all Landlord's expense in
connection with such reletting, including, without limitation,
all reasonable 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 and may grant such concessions and free rent
as Landlord in its sole judgment considers advisable or necessary
to relet the same and (ii) make such alterations, repairs and
decorations in the Premises as Landlord in its sole judgment
considers advisable or necessary to relet the same, and no action
of Landlord in accordance with the foregoing or failure to
relet or to collect rent under reletting shall operate or be
construed to release or reduce Tenant's liability as aforesaid.
In lieu of any other damages or indemnity and in lieu of full
recovery by Landlord of all sums payable under all the foregoing
provisions of this Section 8.2., Landlord may by written notice
to Tenant, at any time after this Lease is terminated under any
of the provisions contained in Section 8.1 or is otherwise
terminated for breach of any obligation of Tenant and before such
full recovery, elect to recover, and Tenant shall thereupon pay,
as liquidated damages, an amount equal to the aggregate of the
Fixed Rent and Additional Rent accrued in the twelve (12) months
ended next prior to such termination plus the amount of rent of
any kind accrued and unpaid at the time of termination and less
the amount of any recovery by Landlord under the foregoing
provisions of this Section 8.2 up to the time of payment of such
liquidated damages. Nothing contained in this Lease shall,
however, limit or prejudice the right of Landlord to prove for
and obtain in proceedings for bankruptcy or insolvency by reason
of the termination of this Lease, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in
11
which, the damages are to be proved, whether or not the amount be greater
than, equal to, or less than the amount of the loss or damages referred to
above.
8.3 Remedies Cumulative. 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 insofar as permitted
by law.
8.4 Landlord's Right to Cure Defaults. Landlord may, but shall not be obligated
---------------------------------
to, cure, at any time, any default by Tenant under this Lease without
notice in emergency situations, or otherwise if such default continues
uncured for ten (10) days after notice to Tenant (or such longer period of
time as may be reasonably required to cure such default, provided that
Tenant commences to cure such default within such ten (10) day period and
diligently prosecutes such cure to completion); and whenever Landlord so
elects, all reasonable costs and expenses incurred by Landlord, including
reasonable attorneys' fees, in curing a default shall be paid, as
Additional Rent, by Tenant to Landlord on demand, together with lawful
interest thereon from the date of payment by Landlord to the date of
payment by Tenant.
8.5 Effect of Waivers of Default. Any consent or permission by either party to
----------------------------
any act or omission which otherwise would be a breach of any covenant or
condition herein by the other party, 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,
except as to the specific instance, operate to permit similar acts or
omissions.
8.6 No Waiver, etc. The failure of either party 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. No
consent or waiver, express or implied, by either party to or for any breach
of any agreement or duty shall be construed as a waiver or consent to or of
any other breach of the same or any other agreement or duty.
8.7 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum than
--------------------------
the Fixed Rent, 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, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent or other charge 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 each
installment or pursue any other remedy in this Lease provided. No
acceptance by Tenant of a lesser sum than any amount due from Landlord
under this Lease shall be deemed to be other than on account of the total
amount due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment be deemed an accord and
satisfaction, and Tenant may accept such check or payment (or make a larger
payment, claimed by Landlord but contested by Tenant) without prejudice to
Tenant's right to recover the balance of such amount or pursue any other
remedy in this Lease provided.
ARTICLE 9
---------
RIGHTS OF MORTGAGE HOLDERS
--------------------------
9.1 Rights of Mortgage Holders. The word "mortgage" as used herein includes
--------------------------
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. The word
"holder" shall mean a mortgagee, and any subsequent holder or holders of a
mortgage. Until the holder of a mortgage shall enter and take possession of
the Property for the purpose of foreclosure, such holder shall have only
such rights of Landlord as are necessary to preserve the integrity of this
Lease as security. Upon entry and taking possession of the Property for the
purpose of foreclosure, such holder shall have all the rights of Landlord.
No such holder of a mortgage shall be liable either as mortgagee or as
assignee, to perform, or be liable in damages for failure to perform, any
of the obligations of Landlord unless and until such holder shall enter and
take possession of the Property. Upon taking possession of the Property,
such holder shall be liable to perform all of the obligations of Landlord,
subject to and with the benefit of the provisions of Section 10.4, provided
that a discontinuance of any foreclosure proceeding shall be deemed a
conveyance under said provisions to the owner of the equity of the
Premises.
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a holder of a mortgage (particularly,
without limitation thereby, the covenants and agreements contained in this
Section 9.1) constitute a continuing offer to any person, corporation or
other entity, which by accepting a mortgage subject to this Lease, assumes
the obligations herein set forth with respect to such holder; such holder
is hereby constituted a party of this Lease as an obligee hereunder to the
same extent as though its name were written hereon as such; and such holder
shall be entitled to enforce such provisions in its own name. Xxxxxx agrees
on request of Xxxxxxxx to execute and deliver from time to time any
agreement which may be reasonably necessary to implement the provisions of
this Section 9.1.
9.2 Lease Superior or Subordinate to Mortgages. It is agreed that the rights
------------------------------------------
and interest of Tenant under this Lease shall be (i) subject or subordinate
to any present or future mortgage or mortgages and to any and all advances
to be made thereunder, and to the interest of the holder thereof in the
Premises or any property of which the Premises are a part if Landlord shall
elect by notice to Tenant to subject or subordinate the rights and interest
of Tenant under this Lease to such mortgage or (ii) prior to any present or
future mortgage or mortgages, if Landlord shall elect, by notice to Tenant,
to give the rights and interest of Tenant under this Lease priority to such
mortgage; in the event of either of such elections and upon notification by
Landlord to that effect, the rights and interest of Tenant under this Lease
should be deemed to be subordinate to, or have priority over, as the case
may be, said mortgage or mortgages, irrespective of the time of execution
or time of recording of any such mortgage or mortgages (provided that, in
the case of subordination of this Lease to any future mortgages, the holder
thereof agrees not to disturb the possession and to recognize the rights of
Tenant hereunder so long as Tenant is not in default hereunder). Xxxxxx
agrees it will, upon request of Landlord, execute, acknowledge and deliver
any and all instruments reasonably deemed by Landlord necessary or
desirable to give effect to or notice of such subordination or priority,
provided such instruments are in form and on terms customarily agreed to by
tenants in Massachusetts under similar circumstances. Xxxxxx also agrees
that if it shall fail at any time to execute, acknowledge and deliver any
such instrument requested by Landlord within seven (7) business days after
Xxxxxxxx's request therefor, Tenant shall in terminable default under
this Lease without any further notice or opportunity to cure under Section
8.1 or otherwise. Any Mortgage to which this Lease shall be subordinated
may contain such terms, provisions and conditions as the holder deems usual
or customary. Xxxxxxxx agrees to obtain from each holder of a present
mortgage, if any, an agreement that the possession of Tenant will not be
disturbed and Xxxxxx's rights hereunder will be recognized so long as
Tenant is not in default hereunder.
12
ARTICLE 10
----------
Miscellaneous Provisions
------------------------
10.1 Notices from One Party to the Other. All notices required or permitted
-----------------------------------
hereunder shall be in writing and addressed, if to the Tenant, at the
Original Notice Address of Tenant or such other address (which may
include one additional address to receive a copy) as Tenant shall have
last designated by notice in writing to Landlord and, if to Landlord,
at the Original Notice Address of Landlord or such other address
(which may include one additional address to receive a copy) as
Landlord shall have last designated by notice in writing to Tenant.
Any notice shall be deemed duly given when mailed to such address
postage prepaid, by registered or certified mail, return receipt
requested, or when delivered to such address by hand.
10.2 Quiet Enjoyment. Landlord agrees that upon Xxxxxx's paying the rent
---------------
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 Premises during the
term hereof without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord, subject, however, to the
terms of this Lease; provided, however, Landlord reserves the right,
without the same constituting a breach of Landlord's covenant of quiet
enjoyment, to make such changes, alterations, additions, improvements,
repairs or replacements in or to the Premises as Landlord may deem
necessary or desirable, provided further, however, that there be no
unreasonable interference with Xxxxxx's use of the Premises or the
parking therefor or access thereto or unreasonable impact on the
appearance or operation of the Building.
10.3 Lease not to be Recorded. Tenant agrees that it will not record this
------------------------
Lease. Both parties shall, upon the request of either, execute and
deliver a notice or short form of this Lease in such form, if any, as
may be permitted by applicable statute.
10.4 Limitation of Landlord's Liability. The term "Landlord" as used in
----------------------------------
this Lease, so far as covenants or obligations to be performed by
Landlord are concerned, shall be limited to mean and include only the
owner or owners at the time in question of the Property, and in the
event of any transfer or transfers of title to said property, the
Landlord (and in case of any subsequent transfers or conveyances, the
then grantor) shall be concurrently freed and relieved from and after
the date of such transfer or conveyance, without any further
instrument or agreement of all liability as respects the performance
of any covenants or obligations on the part of the Landlord contained
in this Lease thereafter to be performed, it being intended hereby
that the covenants and obligations contained in this Lease on the part
of Landlord, shall, subject as aforesaid, be binding on the Landlord,
its successors and assigns, only during and in respect of their
respective successive periods of ownership of said leasehold interest
or fee, as the case may be. Tenant, its successors and assigns, shall
not assert nor seek to enforce any claim for breach of this Lease
against any of Landlord's assets other than Landlord's interest in the
Property and in the rents, issues and profits thereof, and Xxxxxx
agrees to look solely to such interest for the satisfaction of any
liability or claim against Landlord under this Lease, it being
specifically agreed that in no event whatsoever shall Landlord (which
term shall include, without limitation, any general or limited
partner, trustees, beneficiaries, officers, directors, or stockholders
of Landlord) ever be personally liable for any such liability.
10.5 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 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.
10.6 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 such failure shall continue for a
period of thirty (30) days or such additional time as is reasonably
required to correct any such default after written notice has been
given by Tenant to Landlord specifying the nature of Landlord's
alleged default. Landlord shall not be liable in any event for
incidental or consequential damages to Tenant by reason of Xxxxxxxx's
default, whether or not notice is given.
Tenant may, but shall not be obligated to, cure, after reasonable
notice, any default by Landlord under this Lease that is detrimental
to Tenant's business not to have cured and a court has ordered
Landlord to cure, and whenever Tenant so elects, all costs and
expenses incurred by Tenant in curing a default shall be paid by
Landlord to Tenant on demand, together with lawful interest thereon
from the date of payment by Tenant to the date of payment by Landlord;
provided, however, that Tenant shall indemnify Landlord against
damage to the Premises resulting from Xxxxxx's effecting such cure.
10.7 Brokerage. Tenant warrants and represents that it has dealt with no
---------
broker in connection with the consummation of this Lease, other than
Xxxxxxxx Company and Xxxxxxxxx & Xxxx, and in the event of any
brokerage claims, other than by Xxxxxxxx Company or Xxxxxxxxx & Xxxx,
against Landlord predicated upon prior dealings with Xxxxxx, Xxxxxx
agrees to defend the same and indemnify and hold Landlord harmless
against any such claim.
10.8 Applicable Law and Construction. This Lease shall be governed by and
-------------------------------
construed in accordance with the laws of the Commonwealth of
Massachusetts and, if any provisions of this Lease shall to any extent
be invalid, the remainder of this Lease shall not be affected thereby.
There are no oral or written agreements between Landlord and Tenant
affecting this Lease. This Lease may be amended, and the provisions
hereof may be waived or modified, only by instruments in writing
executed by Landlord and Xxxxxx. The titles of the several Articles
and Sections contained herein are for convenience only and shall not
be considered in construing this Lease. Unless repugnant to the
context, the words "Landlord" and "Tenant" appearing in this Lease
shall be construed to mean those named above and their respective
heirs, executors, administrators, successors and assigns, and those
claiming through or under them respectively. If there be more than one
tenant, the obligations imposed by this Lease upon Tenant shall be
joint and several.
10.9 Expansion. At any time after the first year of the term, Tenant may
---------
notify Landlord that Tenant desires to expand into 5,000 square feet
or more of additional office space. Landlord will respond reasonably
promptly to any such notice received from Tenant with what space (if
any) is or is likely to become available in Northwest Park within the
time frame required by Tenant and shall engage in discussions with
Tenant in order to attempt to achieve agreement on mutually acceptable
terms for any space so identified in which Tenant may be interested;
provided that neither party shall have any responsibility or
liability to the other party in the event that mutually acceptable
terms cannot be agreed upon within a reasonable time.
13
WITNESS the execution hereof under seal on the day and year first above written:
Landlord:
/s/ [SIGNATURE ILLEGIBLE]
----------------------------------------
As Trustee, but not individually
/s/ Xxxx X. Xxxxxxxx
----------------------------------------
As Trustee, but not individually
/s/ [SIGNATURE ILLEGIBLE]
----------------------------------------
As Trustee, but not individually
Tenant:
INTERMETRICS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Its: Chief Executive Officer & Chairman
-------------------------------------
14
EXHIBIT A
PLAN OF PROPERTY
[PLAN APPEARS HERE]
EXHIBIT B
---------
COMMENCEMENT DATE AGREEMENT
---------------------------
______________________ ("Landlord") and _____________________ ("Tenant") are
parties to a lease ("Lease") dated _______________ of premises in a building
known as _____________, Massachusetts. Landlord and Tenant hereby acknowledge
and agree that the term of the Lease commenced on __________________ and will
end on ___________________.
Executed under seal this ___________ day of _____________, 19__.
Landlord:
____________________________________________
As Trustee, but not individually
Tenant:
By _________________________________________
EXHIBIT C
XXXXXXXX'S WORK
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX
PART A
------
The Landlord, at its expense, will provide the following improvements in
conformance with the plans and specifications by Xxxxxx Architects, Inc. revised
to July 3, 1996:
DEMOLITION: All interior partitions, ceilings, finishes and mechanical
and electrical equipment will be removed. The raised
computer room flooring will be disassembled and stored on
site for reuse. The existing glass and frames at the
exterior walls will be removed, and the slab, exterior walls
and roof steel will be demolished at the location of the new
entrance. The tank and chemical storage building will be
removed from the rear parking lot, and the parking area
restored.
ENTRANCE: A new fully handicapped accessible, aluminum curtainwall and
glass entrance will be constructed at the northwest corner
of the building.
WINDOWS: New aluminum frames and thermopane, Low-E, tinted glass
windows will be installed in locations as indicated on the
plan.
ROOF: The existing roof will be removed and a new single-ply, EPDM
membrane system with 2 1/2" of insulation providing an R16
with a 10 year manufacturer's warrantee will be installed.
SKYLIGHTS: A grouping of four 3' x 3' skylights will be installed in
one location as indicated on the plan.
PARTITIONS: The inside of the exterior walls will receive steel studs
16" on center with hat insulation and 1/2" gypsum wall board
to 12 feet above finished floor. Interior drywall partitions
for the bathroom core and electrical and sprinkler rooms
will be steel studs, 16" on center with 1/2" gypsum wall
board to the underside of the steel deck.
DOORS &: The interior doors will be 3'-0" x 7'-0" solid-core cherry
FRAMES in hollow metal frames with standard lever hardware.
PAINTING: Two coats of latex paint to be provided on all new drywall
and door frames. Doors and window xxxxx will be stained
and/or clear sealed. Paint colors will coordinate with the
paint used for the Part B work and will be subject to the
tenant's approval.
HVAC: A new, variable-air-volume system, consisting of three
state-of-the-art 30-ton Trane rooftop units with electric
cooling and gas fired early warm up heating and 32 VAV boxes
containing two-stage electric heat will be provided. The
system is designed to provide adequate capacity for standard
office use and will be installed and distributed throughout
the building. Separate HVAC for the computer room is not
included in the Part A work.
CEILINGS: A new 2' x 4' Xxxxxxxxx "Second Look" suspended ceiling will
be installed throughout.
Page 1 of 2
LANDLORD'S WORK
PAGE 2
TILE: Porcelain tile will be provided in the bathrooms and shower rooms
on the floors and the walls and on the floor of the new lobby.
VCT will be provided as required by the Tenant's floor plan.
CARPET: New carpeting (allowance of $14.00 per installed yard) will be
installed via the glued down method as indicated on the Tenant's
floor plan. Carpet selection to be made by Tenant.
ELECTRICAL: The existing main service (1600 amp main switch board at 120/208
volt, 3 phase, 4 wire) will remain and be reused. New
distribution panels and feeders will be installed for the HVAC
system, lighting and utility power. New 18 cell parabolic
fluorescent lighting will be installed throughout. At least one
general duty duplex outlet will be installed on the exterior wall
in each perimeter office.
PLUMBING: New fixtures and related plumbing will be installed at the
restroom core, including one handicapped accessible, fiberglass
shower stall in each of the men's and woman's rooms.
SPRINKLER: The sprinkler system will be put in good repair and re-
distributed to meet the new floor plan and all code requirements.
FIRE ALARM: A new fire alarm system will be installed in conformance with
current State and Town of Burlington code requirements.
PARKING: The cracks in the parking lot will be filled, the lots sealed and
the parking spaces re-lined.
LANDSCAPING: The landscape plantings around the building will be replaced and
general landscape improvements made to the site. A lawn
irrigation system will be installed.
PART B
------
The Landlord will build out the rest of the premises that is not defined as
Part A work in conformance with the plans and specifications revised to July 3,
1996 by Xxxxxx Architects, Inc.
Telephone and data wiring is not included in the Landlord's work.
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