Exhibit 10.18
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is dated as of Oct. 01,
1997, by and between XXXXXX LIMITED PARTNERSHIP, a Massachusetts
limited partnership, of 0000 Xxxx Xxx, Xxxxxxxxxx, Xxxxxxxxxxxxx,
00000 (Tel: 000-000-0000, Fax 000-000-0000) ("Landlord") and
Electronic Retailing Systems International, Inc. (ERS) a Delaware
Corporation, (Tel: 000-000-0000, fax 000-000-0000) ("Tenant").
ARTICLE I
DEFINITIONS
1.01 Building: A Single story office/Light assembly building
containing forty five thousand five hundred (45,308) square feet
of rentable area, known as 000 Xxxxxx Xxxx Xx., Xxxxxxxxxx,
Xxxxxxxxxxxxx, 00000 and located on certain land (the "Land")
together with related parking areas and facilities (whether in or
near the Building), roadways and driveways and other amenities.
1.02 Premises: Approximately 22,512 square feet of rentable area,
on the northerly end of the Building and as outlined in Exhibit A,
attached hereto and incorporated by reference herein.
1.03 Intentionally deleted.
1.04 Lease Term: Five (5) Years.
1.05 Lease Commencement Date: The latter of Oct. 01, 1997, or upon
Landlord delivering premises to Tenant.
1.06 Gross Rent: Payable monthly, in advance, commencing the Lease
Commencement Date, and as stipulated below:
Base Rental Rate Monthly Annual
Year 1 $8.00 NNN $22,305.64 $267,667.68
Year 2 $8.00 NNN $22,305.64 $267,667.68
Year 3 $8.50 NNN $23,243.64 $278,923.68
Year 4 $8.75 NNN $23,712.64 $284,551.68
Year 5 $9.00 NNN $24,181.64 $290,179.68
1.07 Intentionally deleted
1.08 Amount due at execution of lease: First months rent, plus an
amount equal to the last month of the last year (year 5) as the
Lease Deposit, totaling $46,487.28
1.09 Brokers. Landlord's: New England Industrial Properties.
Tenant's : New England Industrial Properties.
1.10 Tenant Address for Notices: Electronic Retailing Systems
International, Inc., 000 Xxxx Xxxxxx, Xxxxxxx, XX 00000-0000
1.11 Landlord Address for Notices: Xxxxxx Limited Partnership,
0000 Xxxx Xxx, Xxxxxxxxxx, XX, 00000.
1.13 Intentionally deleted.
ARTICLE II
PREMISES
2.1 Tenant exclusively leases the Premises from Landlord upon the
terms stated herein. Tenant will have non-exclusive right to use
for their intended purpose, the areas of the Building designated
by Landlord from time to time as common and public space.
2.2 On the Lease commencement date, Tenant shall occupy and shall
pay rent as provided in section 1.06 above.
2.3 Intentionally deleted.
2.4 Intentionally deleted.
2.5 Intentionally deleted.
ARTICLE III
LEASE TERM
3.1 The terms and conditions of this Lease shall be effective from
the latter of the date of execution of this Lease by Landlord and
Tenant or the date set forth in Section 1.05. The Lease Term shall
commence on the Lease Commencement Date specified by Section 1.05
hereinabove. If the Lease Commencement Date is not the first day
of the month, then the Lease Term shall be the period set forth in
Section 1.04 hereinabove plus the partial month in which the Lease
Commencement Date occurs. The Lease Term shall also include any
properly exercised renewal or extension of the term of this Lease.
3.2 Lease Year shall mean a period of twelve (12) consecutive
months, commencing on the Lease Commencement Date and each
successive twelve (12) month period thereafter; provided however,
that if the Lease Commencement Date is not the first day of a
month, then the second Lease Year shall commence on the first day
of the month in which the first anniversary of the Lease
Commencement Date occurs.
3.3 Intentionally deleted.
3.4 Intentionally deleted.
3.5 Intentionally deleted.
ARTICLE IV
GROSS RENT
4.1 During each Lease Year during the Lease Term, Tenant shall pay
to Landlord as annual rent for the Premises, without set-off,
deduction or demand, the Gross Rent stated in section 1.06. The
Gross Rent shall be divided into twelve (12) equal monthly
installments and each such monthly installment shall be due and
payable in advance on the first day of each month during each
Lease Year. Notwithstanding the provisions of Article 19.6
payments made later than the tenth (10th) day of any month shall
be deemed late. If the Lease Commencement Date is not the first
day of the month, then the Gross Rent from the Lease Commencement
Date until the first day of the following month shall be prorated
on a per diem basis at the rate of one-thirtieth (1/30) of the
monthly installment of the Gross Rent payable during the first
Lease Year, and Tenant shall pay such prorated installment in
advance on the Lease Commencement Date.
4.2 Intentionally Deleted.
4.3 Intentionally Deleted.
4.4 All sums payable by Tenant shall be paid to Landlord in legal
tender of the United States, at the address to which notices to
Landlord are to be given or to such other party or such other
address as Landlord may designate in writing. Landlord's
acceptance of rent after it shall have become due and payable
shall not excuse a delay upon subsequent occasions nor constitute
a waiver of rights, not withstanding any endorsement or
restriction that Tenant may include with such payment.
ARTICLE V
TAX AND OPERATING EXPENSES
5.1 The Gross Rent described in section 1.06 includes an annual
factor for real estate taxes, common area maintenance, property
management fees, utilities, insurance and electricity (HVAC,
lights and outlets). Tenant agrees to pay as additional rent, its
proportionate share, which is equal to the ratio of the area of
the Premises to the area of the Building and which for purposes of
this Lease is 49 and 69 hundredths percent (49.69%), of any
increase in the following expenses over the base for these
expenses.
Expenses Base
Fire and Casualty Insurance $0.15 per rentable sq.ft.
Real Estate Taxes $0.64 per rentable sq.ft.
Common Area Maintenance $1.00 per rentable sq.ft.
Snow plowing, landscaping, fire
protection, parking lot lights,
security, fire protection,
parking maintenance, dumpster
Property Management $0.30 per rentable sq.ft.
Utilities
Water $0.25 per rentable sq.ft.
Gas (Heat & AC) $0.55 per rentable sq.ft.
Electricity $1.00 per rentable sq.ft.
-----
Totals $3.89 per rentable sq.ft.
The operating expenses include, but are not limited to, real
estate taxes assessed by the Town of Boxborough on the Building
and Land on which the Building is situated, insurance required
under this Lease and as may be required by Landlord's Mortgagee,
electricity, heating, cooling, water, sewage, fire-protection,
operations, management, maintenance, landscaping, snow-plowing and
such other expense the Landlord may reasonably incur in operating
and maintaining the Building and Land. Tenant agrees, within
thirty (30) days of receipt of a xxxx from Landlord, to pay as
additional rent, Tenant's proportionate share of any increase in
the tax and operating expenses; provided however, that any
increase or decrease in Tenant's proportionate share during one
billing period shall be set off against any decrease or increase
during a succeeding period.
At the conclusion of the first year of the lease term, the tax and
operating expense base shall be adjusted as necessary to reflect
the actual expenses experienced during the first year.
ARTICLE VI
USE OF PREMISES
6.1 Tenant shall use the Premises solely for purposes of General
Office and Light manufacturing, and for no other use or purpose.
Tenant shall not use the Premises for any unlawful purpose or in
any manner that the Landlord's opinion will constitute waste,
nuisance or unreasonable annoyance to Landlord or any tenant of
the Building. Tenant shall comply at it's expense with all present
and future laws, ordinances, regulations and orders (including,
without limitation, any regulation requiring the sorting or
separation of refuse and trash) concerning the use, occupancy and
condition of the Premises and all machinery, equipment and
furnishings therein. If any such law, ordinance, regulation or
order requires an occupancy or use permit for the Premises, then
Tenant shall obtain and keep current such permit at Tenant's
expense and promptly deliver a copy thereof to Landlord. Use of
the Premises is subject to all covenants, conditions and
restrictions of record and which have been disclosed to Tenant.
Landlord agrees to give Tenant copies of any such laws,
ordinances, regulations and orders currently in effect and of
which it becomes aware from time to time during the term of this
agreement.
6.2 Tenant shall pay before delinquency any business, rent or
other tax or fee that is now or hereafter assessed or imposed upon
Tenant's use or occupancy of the Premises, the conduct of Tenant's
business in the Premises or Tenant's personal property, equipment,
fixtures, furnishings or inventory. If any such tax or fee is
enacted or altered so that such tax or fee is imposed upon
Landlord or so that Landlord is responsible for collection or
payment thereof, then Tenant shall pay the amount of such tax or
fee within ten (10) business days after Landlords demand thereof.
6.3 Tenant shall not in the Building and/or Premises generate,
store, handle, release, discharge, or otherwise deal with any
material classified as "hazardous material" for purposes of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended from time to time (CERCLA) or the Resource
Conservation and Recovery Act of 1976, as amended from time to
time (RCRA), or any similar or related federal, state, or local
statutes, rules, regulations or ordinances. Provided, however,
that this provision shall not limit Tenant's use of the Premises,
provided further that such use is in compliance with provisions of
this paragraph. Without limiting the generality of the foregoing,
Tenant expressly covenants and agrees that it shall not, nor shall
it permit anyone to:
(A) Use asbestos or any asbestos-containing materials in the
Premises or in the Building;
(B) Use any liquid-filled transformers in the Premises or in
the Building, unless consented to by Landlord in writing and
confirmed by an outside authoritative source to be free of
polychlorinated biphenyl's (PCB's);
(c) Install any underground storage tanks, unless consented
to by Landlord in writing specifically approved and certified to
be in compliance with applicable code requirements;
(D) Store any opened containers of combustible products, such
as cleaning solvents, in other than metal containers and cabinets
approved by the Landlord in writing.
Tenant shall protect, indemnify, and save Landlord and its
officers, agents, servants and employees harmless from and against
any and all obligations, liabilities, costs, damages, claims and
expenses of whatsoever nature arising from or in connection with
any violation of this section 6.3.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 Tenant shall not assign this Lease or any Tenant's rights or
obligations hereunder, or sublet or permit anyone to occupy the
Premises except in accordance with Article 7.2
7.2 Tenant may transfer, assign or sublease all or a portion of
Tenant's interest in the leased Premises and the improvements on
the leased Premises, but only to some responsible party or
parties, provided that all rents, taxes, assessments, liens,
insurance, and other charges of every kind that Tenant has
covenanted to pay shall be fully paid to the date of the
assignment, and all covenants and agreements contained in this
lease agreement to be kept and performed by Tenant shall be fully
complied with to the date of the assignment. In no event shall
Tenant's interest in the leased Premises and the improvements on
the Premises be assigned otherwise than by an instrument fully
executed and acknowledged in which the assignee shall expressly
assume all the obligations of Tenant under this lease agreement,
or unless there shall be placed in the hands of Landlord or
delivered to the party then authorized to receive the rent for
Landlord, not less than ten (10) days before the transfer is to be
made, a copy of the instrument of assignment. Any assignment,
except by devise or descent, or by operation of law, not made as
required in this lease agreement to be made, shall, if Landlord so
elects, be void, and Tenant shall remain bound to perform all of
Tenant's obligations, under this lease agreement in spite of such
an assignment. Written consent by Landlord to an assignment of any
interest under this lease agreement shall be deemed to be a
satisfaction of the requirements of this provision. Tenant agrees
to reimburse Landlord for Landlords reasonable attorney fees and
related costs incurred in connection with the processing, review,
or documentation of any requested transfer, assignment, subletting
of this lease agreement or of Tenant's interest in and to the
leased Premises. Notwithstanding any of the foregoing to the
contrary, notice of any assignment or subletting of all or a
portion of the leased premises shall be given in writing to the
Landlord and for a period of 30 days Landlord may exercise it's
right ("Landlord's Preferential Right") to lease such assigned or
sublet space to any other Tenant and Landlord will exercise this
right by giving Tenant written notice within said time period, and
there upon the Lease of said space by Tenant will end. Should
landlord exercise such Preferential Right, Tenant shall be
released from any further obligation, cost or liability as to that
portion of the Leased Premises in which Landlord leases or sublets
to a third party. Should landlord not lease or sublet the entire
Leased Premises, Tenant shall be free to pursue a transfer,
assignment or sublease of the remaining Leased Premises as
aforesaid in this Section 7.2 free from Landlord's Preferential
Right, and this Lease Agreement shall terminate as to Tenant for
such portion of the Leased Premises in which Landlord leases or
sublets to a third party.
7.3 Intentionally deleted.
7.4 Intentionally deleted.
7.5 Intentionally deleted.
ARTICLE VIII
MAINTENANCE AND REPAIRS
8.1 Tenant shall keep and maintain the Premises and all fixtures
and equipment located therein in clean, safe and sanitary
condition and in compliance with all legal requirements, shall
take good care thereof and make all reasonably necessary repairs
thereto, shall suffer no waste or injury thereto, and at the
expiration or earlier termination of the Lease Term, shall
surrender the Premises in the same order and condition in which
they were on the Lease Commencement Date (ordinary wear and tear
consistent with the permitted use hereunder excepted). All injury,
breakage, and damage to the Premises and to any other part of the
Building or the Land caused by an act or omission of any invitee,
agent, employee, subtenant, assignee, contractor, client, family
member, licensee, customer or guest of Tenant (collectively
"Invitee") or Tenant, shall be repaired or replaced (as
applicable) by and at Tenant's expense, except that Landlord shall
have the right at Landlord's option to make any such repair or
replacement and to charge Tenant for all reasonable costs and
expenses incurred in connection therewith upon receipt of notice
thereof by Tenant and upon Tenant's failure to do so.
8.2 (a) Landlord shall keep the exterior walls, load bearing
elements, foundations, pipes, and conduits, roof and common areas
that form a part of the building, and the building standard
mechanical, electrical, HVAC and plumbing systems that are
provided by Landlord in the operation of the Building, clean and
in safe, sanitary and good operating condition and, in compliance
with all legal requirements, and subject to Section 8.1, shall
make all required repairs thereto.
(b) Notwithstanding any of the foregoing to the contrary,
maintenance and repair of special Tenants area, facilities,
finishes and equipment relating solely to the Premises (including,
but not limited to, any special fire equipment, telecommunications
and computer equipment, kitchen/galley/coffee equipment or air
conditioning equipment serving the Premises only and all other
furniture, finishing and equipment of Tenant and any Alterations
(as hereinafter defined) made by Tenant shall be the sole
responsibility of Tenant.
8.3 Landlord shall provide one dumpster/compactor, common with
other tenants of the Building, for purpose of receiving Tenant's
normal office waste. Tenant shall not use this facility for trade,
industrial or any waste other than normal office waste.
8.4 During the term of this Lease agreement and any extension
thereof Landlord shall cause the parking area to be properly
operated and maintained and all entrances, exits, driveways and
walkways kept in good repair, such operation and maintenance to
include, without limitation, lighting, traffic control signage,
timely removal of snow, ice and debris, and surfacing and
resurfacing with a hard surface.
ARTICLE IX
ALTERATIONS
9.1 The initial improvement of the Premises shall be accomplished
by Landlord in accordance with Exhibit D (Demising walls),
Landlord is under no obligation to make any alterations,
decorations, additions, improvements, demolition's or other
changes (collectively "alterations") in or to the Premises except
as set forth in Exhibit D.
9.2 Tenant shall not make or permit anyone to make any Alteration
in or to the Premises or the Building without Landlord's prior
written consent, which consent may not be unreasonably withheld.
Any Alteration which Landlord permits Tenant to make shall be
made: (a) in a good, workmanlike, first-class and prompt manner;
(b) using new materials only; (c) by a contractor of Tenant's
choice and approved by Landlord and in accordance with plans and
specifications consented to in writing by Landlord; (d) in
accordance with legal requirements (including, without limitation,
the Americans With Disabilities Act) and requirements of any
insurance company insuring the Building; (e) after obtaining any
required consent of the holder(s) of any Mortgage; (f) after
obtaining a workmen's compensation insurance policy approved by
Landlord, wherein such approval is not unreasonably withheld; and
(g) in compliance with such other reasonable requirements as
Landlord might impose. If any lien (or a petition to establish a
lien) is filed in connection with any Alteration, then such lien
(or petition) shall be discharged by Tenant at Tenant's expense
within ten (10) days thereafter by the payment thereof or filing
of a bond acceptable to Landlord. Landlord's consent to the making
of an Alteration shall be deemed not to constitute Landlord's
consent to subject its interest in the Premises or the Building or
the Land to liens which may be connection therewith.
9.3 If any Alteration is made without Landlord's prior consent,
then Landlord shall have the right, in addition to exercising all
other available remedies, at Tenant's expense to remove and
correct such Alteration, and restore the Premises and the Building
to their condition immediately prior thereto or to require Tenant
to do the same. Unless Landlord elects otherwise pursuant to this
Section 9.3, all Alterations, except additions of removable
furniture, equipment, and furnishings, and trade fixtures, to the
Premises or the Building made by either party shall immediately
become Landlord's property (provided, however, that during the
Lease Term Tenant shall retain an insurable interest in such
Alterations) and shall remain upon and be surrendered with the
Premises at the expiration or earlier termination of the Lease
Term; provided, however, that if Tenant is not in default under
this Lease, then Tenant shall have the right to remove, prior to
the expiration or earlier termination of the Lease Term, all
movable or removable furniture, equipment and furnishings, and
trade fixtures installed on the Premises solely at Tenant's
expense. Notwithstanding anything of the foregoing to the contrary
in this Section 9.3, Tenant shall also be required to remove all
Alterations, removable or attached, at Landlords discretion, to
Premises or the Building and all non-trade fixtures and equipment
which Landlord has not previously approved for installation and
which Landlord designates in writing for removal (which
designation shall be provided to Tenant prior to the expiration or
earlier termination of the Lease Term) and Tenant shall be
required to remove all telephone and data cabling installed by or
on behalf of Tenant not used by or accepted by subsequent Tenants
(collectively "Cabling"). Movable or removable furniture,
equipment and furnishings, and trade fixtures shall be deemed to
exclude any item which would normally be removed or detached from
the Premises with the assistance of any tool or machinery other
than a hand truck equipped with rubber tires and other devices
used by professional movers. Landlord shall have the right to
repair or replace at Tenant's reasonable expense all damage to the
Premises or the Building caused by any such removal or to require
Tenant to do the same. If any such furniture, furnishings or trade
fixtures is not removed by Tenant prior to the expiration or
earlier termination of the Lease Term, then the same shall, at
Landlord's option, become Landlord's property and shall be
surrendered with the Premises as a part thereof; provided,
however, that Landlord shall have the right to remove from the
Premises at Tenant's Expense such furniture, equipment and
furnishings, or trade fixtures and any Alteration, non-trade
fixture or equipment (which Landlord designates in writing for
removal) and any Cabling.
ARTICLE X
SIGNS
10.1 Landlord will list Tenant's name on a Building directory
at the entrance to the Codman Hill property and a standard signage
near the suite entry door. Tenant shall not paint, affix or
otherwise display on any part of the exterior or interior of the
Building (or any part of the Premises which is visible from
outside the Premises) any other sign, advertisement or notice
without the prior written approval of Landlord, which approval
shall not be unreasonably withheld and without the securing of all
necessary Sign Permits from the Town of Boxborough. If any such
item that has not been approved by Landlord is so displayed, then
Landlord shall have the right to remove such item at Tenant's
expense or to require Tenant to do the same.
10.2 Except by United States mail, Tenant shall not distribute any
advertisements or notices within the building or on the Land.
Landlord reserves the right to prohibit any advertisement which in
Landlord's reasonable opinion tends to impair the reputation or
desirability of the Building.
ARTICLE XI
LEASE DEPOSIT
11.1 Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord an amount equal to one (1)
monthly installment of the Gross Rent payable during the fifth
lease year ($24,181.64) as the Lease Deposit to secure Tenant's
full and faithful performance of all the obligations herein set
forth. Landlord shall not be required to pay interest on the Lease
Deposit or to maintain the Lease Deposit in a separate account. If
any sum payable by Tenant to Landlord shall be due and unpaid, or
if Landlord makes any payments on behalf of Tenant, or if Landlord
suffers any loss, cost or expense as a result of Tenant's non-
performance of any obligation or covenant herein, then Landlord,
at its option and without limiting any other remedy, may use and
apply any part of the Lease Deposit to compensate Landlord for the
payments not made or the loss, cost or expense suffered by
Landlord and notify Tenant of Landlord's intended use thereof
prior to such use. Within thirty (30) days after written notice of
Landlord's use of the Lease Deposit, Tenant shall deposit with
Landlord cash in an amount sufficient to restore the Lease Deposit
to its prior amount. Within approximately ninety (90)) days after
the later of (a) the expiration or earlier termination of the
Lease Term, or (b) Tenant's vacating the Premises, Landlord shall
return the Lease Deposit less such portion thereof as Landlord may
have used to satisfy Tenant's obligations and less such other sums
as are reasonably due from Tenant. If Landlord transfers the Lease
Deposit to a transferee of the Building or Landlord's interest
therein, then such transferee (and not Landlord) shall be liable
for its return. The holder of any Mortgage shall not be liable for
the return of the Lease Deposit unless such holder actually
receives the Lease Deposit. Tenant shall not transfer or assign
the Lease Deposit or any interest therein without Landlord's prior
written consent, which consent Landlord may not unreasonably be
withheld.
ARTICLE XII
HOLDING OVER
12.1 Tenant acknowledges that if Tenant fails to surrender
Premises at the expiration of the Lease Term, then it will be
conclusively presumed that the value to Tenant of remaining in
possession, and the loss that will be suffered by Landlord as a
result thereof, far exceed the Gross Rent and additional rent that
would have been payable had the Lease Term continued during such
holdover period. Therefore, if Tenant does not immediately
surrender the Premises upon the expiration of the Lease Term, then
the Gross Rent shall be increased to equal to double the Gross
Rent, and other sums that would have been payable pursuant to the
provisions of the Lease if the Lease Term had continued during
such holdover period. Such rent shall be computed on a monthly
basis and shall be payable on the first day of such holdover
period and the first day of each calendar month thereafter during
such holdover period until the Premises has been vacated.
Landlord's acceptance of such rent shall not in any manner
adversely affect Landlord's other rights and remedies, including
Landlord's right to evict Tenant and recover damages. Tenant
agrees to hold Landlord harmless from and against all loss and
damages, direct and consequential, which Landlord may suffer or
incur in connection with claims by other parties against Landlord
arising out of the holding over by Tenant, including, without
limitation, reasonable attorney's fees which may be incurred by
Landlord in defense of such claims. Except as otherwise
specifically provided in this Article, all terms of this Lease
shall remain in full force and effect during such holdover period.
ARTICLE XIII
INSURANCE
13.1 Tenant shall not conduct any activity or place any item in or
about the Building which may increase the rate of any insurance on
the Building. If any increase in the rate of such insurance is due
to any such activity or item, then (whether or not Landlord has
consented to such activity or item and without waiving Landlord's
right to require such activities to cease), Tenant shall pay the
amount of such increase. The statement of any insurance company or
insurance rating organization regularly providing service to the
building (or other organization exercising similar functions in
connection with the prevention of fires or the correction of
hazardous conditions) that such an increase is due to any such
activity or item shall be conclusive evidence thereof.
13.2 Tenant shall maintain throughout the Lease Term with a
company licensed to do business in Massachusetts, approved by
Landlord and having a rating equal to or exceeding A:11 in Best's
Insurance Guide (a) broad form comprehensive general liability
insurance and (b) all-risk property insurance. Such liability
insurance shall be in minimum amounts typically carried by prudent
tenants engaged in similar operations, but in no event shall be in
an amount less than one million ($1,000,000) dollars combined
single limit per occurrence. Such property insurance shall be in
an amount not less than required to replace all Alterations and
all other contents of the Premises, excluding only the work and
materials considered to be building standard finishes. All such
insurance shall name Landlord as additional named insured; contain
an endorsement that such insurance shall remain in full force and
effect regardless of whether Tenant has waived any claim against
Landlord, under this Lease, or any other person; provide that the
insurer waives all right of recovery by way of subrogation against
Landlord, its agents and employees; and contain an endorsement
prohibiting cancellation, failure to renew, reduction in amount of
insurance or change of coverage as to the interests of Landlord by
reason of any act or omission of Tenant without the insurer's
giving Landlord thirty (30) days prior written notice of such
action. Landlord reserves the right from time to time to require
Tenant to obtain higher minimum amounts or different types of
insurance. Tenant shall deliver a certificate of such insurance
and receipts evidencing payment of the premium for such insurance
to Landlord on or before the Lease Commencement Date and at least
annually thereafter.
13.3 Landlord shall maintain general comprehensive and all hazards
(storm, flood, water, wind, etc.) as well as fire insurance with
extended coverage insuring the base Building (but not any
Alterations or any personal property or other property of any
tenant, including Tenant). Landlord here by waives its right of
recovery against Tenant if the damage, loss or destruction was not
caused by the gross negligence or willful act or omission of
Tenant or any Invitee, but only to the extent that Landlord
receives insurance proceeds with respect to such damage, loss or
destruction.
ARTICLE XIV
SERVICES AND UTILITIES
14.1 Landlord will furnish to the Premises heating, ventilation
and air conditioning ("HVAC") during the seasons they are required
in Landlord's reasonable judgment at temperatures and as are
typically provided to similar types of buildings in the area.
Landlord shall not be liable for any failure to maintain
comfortable atmosphere conditions in all or any portion of the
Premises due to excessive heat generated by any equipment or
machinery installed by Tenant (with or without Landlord's consent)
or due to any impact that Tenant's furniture, equipment, machinery
or millwork may have upon the delivery of HVAC to the Premises.
For purposes of this Section 14.1, excessive heat shall be deemed
to result from (a) the installation of machinery or equipment,
other than normal office machinery and equipment or light
manufacturing or software engineering equipment, in an area not
engineered for such equipment, or (b) the installation and
concurrent operation of a number of normal office machines or
pieces of equipment in an area not engineered for such a
concentration. For example, a typical light manufacturing and
engineering facility will provide comfortable temperatures for its
occupant when a normal personal computer and other operational
equipment, or a number of smaller computers are installed and
operated in that area. The normal hours of operation of the
Building will be 8:00 a.m. to 6:00 p.m. on Monday through Friday
(except such holidays) and such other hours, if any, as Landlord
determines.
14.2 If Tenant requires lighting, air conditioning or heat beyond
the normal hours of operation (8AM to 6PM Monday through Friday),
then Landlord will furnish the same. Tenant agrees to pay
Landlord, as Additional Rent for such extra service, $70.00 per
hour for use of Premises beyond the normal hours. Tenant
acknowledges that this amount represents use of utilities for
normal office operations only and does not include use of
utilities for any other purpose.
14.3 Tenant shall promptly reimburse Landlord on demand for the
cost of any excess utility usage in or in connection with the
Premises (including, but not limited to, water, sewer and chiller
usage). Excess and/or disproportionate usage shall be determined
by joint consultation of Landlord and Tenant's independent
mechanical contractors, and pursuant to measurement of such usage
by Landlord's energy management system.
14.4 Landlord reserves the right to curtail or suspend any
utility, service or Building system when necessary or desirable in
the reasonable judgment of Landlord, except in cases of emergency,
with forty-eight (48) hours prior written notice to Tenant, by
reason of accident, emergency, repairs, alterations, replacements
or improvements, until such cause has been removed or remedied. In
the event of Landlord's failure or inability to furnish any of the
utilities or services required to be furnished by Landlord
hereunder, Landlord shall not have any liability to Tenant;
provided, however, that Landlord shall use good faith efforts to
restore such failure or inability so long as such failure or
inability is within Landlord's reasonable control, and Tenant's
rent is reduced in prorate share to such curtailment or suspension
of any utility services or building system if due to landlords
willful misconduct.
14.5 If any public utility or governmental body requires Landlord
or Tenant to restrict the consumption of any utility or reduce any
service to the Premises or the Building, Landlord and Tenant shall
comply with such requirements whether or not utilities and
services referred to in this Article XIV are thereby reduced or
otherwise affected, without any abatement, deduction, set-off,
rebate or adjustment to the Gross Rent or additional rent payable
hereunder.
ARTICLE XV
LIABILITY OF LANDLORD
15.1 Except for the gross negligence or willful misconduct and to
the extent not covered by either party's insurance any damage,
injury, loss or claim based on or arising out of an act or
omission of the Landlord, its employees or agents, Landlord, its
employees and agents shall not be liable to Tenant, any Invitee or
any other person or entity for any damage (including indirect and
consequential damage), injury, loss or claim (including claims for
the interruption of or loss of business) based on or arising out
of any cause whatsoever (except as otherwise provided in this
Section), including without limitation the following; repair to
any portion of the Premises or the Building; interruption in the
use of the Premises or any equipment therein; any accident or
damage resulting from any use or operation (by Landlord, Tenant or
any other person or entity) of elevators or heating, cooling,
electrical, sewerage, or plumbing or mechanical equipment or
apparatus; termination of this Lease by reason of damage to the
Premises or the Building; fire, robbery, theft, vandalism,
mysterious disappearance or any other casualty; actions of any
other tenant of the Building or of any other person or entity;
failure or inability to furnish any service specified in this
Lease; and leakage in any part of the Premises or the Building
from water, rain, snow, ice or other cause that may leak into, or
flow from, any part of the Premises or the Building or the Land.
If any condition exists which may be the basis of a claim of
constructive eviction, then Tenant shall give Landlord written
notice thereof and a reasonable opportunity to correct such
condition, and in the interim Tenant shall not claim that it has
been constructively evicted or is entitled to a rent abatement.
Any property placed by Tenant or Invitees in or about the
Premises, the Building or the Land shall be at the sole risk of
Tenant, and Landlord shall not in any manner be responsible
therefor. If any employee of Landlord receives any package or
article delivered for Tenant, then such employee shall be acting
as Tenant's agent for such purpose and not as Landlord's agent.
15.2 Tenant shall reimburse Landlord for, and shall indemnify,
defend upon request and hold Landlord, its employees and agents
harmless from and against, all reasonable costs, damages, claims,
liabilities, expenses (including reasonable attorney's fees),
actual losses and court costs suffered by or claimed against
Landlord, directly or indirectly, based on or arising out of, in
whole or in part, (a) Tenant's use and occupancy of the Premises
or the business conducted therein, (b) any negligent or willful
act or omission of Tenant or Invitee, (c) any breach of Tenant's
obligations under this Lease, including failure to surrender the
Premises upon the expiration or earlier termination of the Lease
Term, or (d) any unreasonable or unauthorized entry by Tenant or
any Invitee upon Land prior to the Lease Commencement Date.
15.3 If any Landlord hereunder transfers the Building or such
Landlord's interest therein, then such Landlord shall not be
liable for any obligation or liability based on or arising out of
any event or condition occurring after such transfer. Tenant shall
attorn to such transferee and, within Ten (10) days after request,
shall execute, acknowledge and deliver any document submitted to
Tenant confirming such attornment.
15.4 Tenant shall not have the right to offset or deduct any
amount allegedly owed to Tenant pursuant to any claim against
Landlord from any rent or sum payable to Landlord. Tenant's sole
remedy for recovering upon such claims shall be to institute an
independent action against Landlord.
15.5 If Tenant or any Invitee is awarded a money judgment against
Landlord, then recourse for satisfaction of such judgment shall be
limited to execution against Landlord's estate and interest in the
Building and the Land. No other asset of Landlord, any partner,
director or officer of Landlord (collectively "Officer") or any
other person or entity shall be available to satisfy or subject to
such judgment, nor shall any Officer or other person or entity
have personal liability for satisfaction of any claim or judgment
against Landlord or any Officer.
ARTICLE XVI
RULES
16.1 Tenant and Invitees shall observe the rules specified in
Exhibit C attached hereto. Tenant and Invitees shall also observe
any other rule that Landlord may reasonably promulgate for the
operation or maintenance of the Building, provided that notice
thereof is given and such rule is not inconsistent with the
provisions of this Lease or otherwise inconsistent with law.
Landlord shall have no duty to enforce such rules or any
provisions of any other lease against any other Tenant, except to
the extent that Tenants are tenants of the Building.
ARTICLE XVII
DAMAGE OR DESTRUCTION
17.1 If the Premises or the Building are totally or partially
damaged or destroyed thereby rendering the Premises totally or
partially untenantable, then Landlord shall repair and restore the
Premises (except as hereinafter provided) and the Building to
substantially the same condition in which they were in prior to
such damage or destruction; provided, however, that if in
Landlord's judgment such repair and restoration cannot be
completed within ninety (90) days after the occurrence of such
damage or destruction (taking into account the time needed for
effecting a satisfactory settlement with any insurance company
involved, removal of debris, preparation of plans and issuance of
all required permits), then Landlord shall have the right, at its
sole option, to terminate this Lease as of the sixtieth (60th) day
after such damage or destruction by giving written notice of
termination within forty-five (45) days after the occurrence of
such damage and destruction. In such event the Gross Rent and any
other sums owed to Landlord shall be abated as of the date the
Premises was rendered inaccessible to Tenant. If the Premises or
any part thereof are damaged or destroyed by fire or any other
cause, Tenant shall give prompt notice thereof to Landlord. Tenant
shall be responsible for any additional expenses incurred in the
event that Tenant does not promptly provide such notice. If this
Lease is terminated pursuant to this Article, then rent shall be
apportioned (based on the portion of the Premises which is usable
after such damage or destruction) and paid to the date of
termination. If this Lease is not terminated as a result of such
damage or destruction, then until such repair and restoration of
the Premises are substantially complete, Tenant shall be required
to pay Gross Rent and additional rent only for the portion of the
Premises that is usable while such repair and restoration are
being made. If this Lease is not terminated as a result of damage
or destruction, then Landlord shall bear the expenses of such
repair and restoration of the Premises and the Building; provided,
however, that if such damage or destruction was caused by the
negligent or willful act or omission of Tenant or any Invitee,
then Tenant shall pay the amount by which such expenses exceed the
insurance proceeds, if any, actually received by Landlord on
account of such damage or destruction; and provided further,
however, that in no event shall Landlord be required to repair or
restore any work and materials not deemed by Landlord to be
building standard work and materials, any Alteration previously
made by Tenant or any of Tenant's trade fixtures, furnishings,
equipment or personal property.
Notwithstanding anything herein to the contrary, Landlord or
Tenant shall have the right to terminate this Lease if (a)
Landlord's insurance is insufficient to pay the full cost of such
repair or restoration, (b) the holder of any Mortgage fails or
refuses to make such insurance proceeds available for such repair
and restoration, (c) zoning or other applicable laws or regulation
do not permit such repair and restoration, or (d) the Building is
damaged by fire or casualty (whether or not the Premises has been
changed) to such an extent that Landlord decides, in its sole and
absolute discretion, not to rebuild or reconstruct the Building.
ARTICLE XVIII
CONDEMNATION
18.1 If one-third or more of the Premises or occupancy thereof
shall be taken or condemned by any governmental or quasi-
governmental authority for any public or quasi-public use or
purpose or sold under threat of such taking or condemnation
(collectively, "condemned"), then this Lease shall terminate on
the date title vests in such authority and rent shall be
apportioned as of such date. If less than one-third of the
Premises or occupancy thereof is condemned. then this Lease shall
continue in full force and effect as to the part of the Premises
not condemned, except that as of the date title vests in such
authority Tenant shall only be required to pay the Gross Rent and
additional rent with respect to the part of the Premises not
condemned. Notwithstanding anything herein to the contrary, if any
portion of the Land or the Building is condemned, and the entire,
location or extent of such condemnation is such that Landlord
elects, in its sole and absolute discretion, to demolish the
Building (in whole or in part), then Landlord may terminate this
Lease by giving sixty (60) days prior written notice of such
termination to the Tenant at any time after such condemnation and
this Lease shall terminate on the date specified in such notice
and rent shall be adjusted to such date.
18.2 Except for awards made for Tenant's fixtures and/or Tenant
owned improvements, all awards, damages and other compensation
paid by such authority on account of such condemnation shall
belong to Landlord, and Tenant assigns to Landlord all rights to
such awards, damages and compensation. Tenant shall not make any
claim against Landlord or the authority for any portion of such
award, damages or compensation attributable to damage of the
Premises, value of the unexpired portion of the Lease Term, loss
of profits or goodwill, leasehold improvements or severance
damages. Nothing contained herein, however, shall prevent Tenant
from pursuing a separate claim against the authority for the value
of furnishings, trade fixtures or Tenant improvements installed in
the Premises at Tenant's expense and for relocation expenses,
provided that such claim is stated separately from any award to
Landlord and provided further that such claim shall in no way
diminish the award, damages or compensation otherwise payable to
Landlord in connection with such condemnation.
ARTICLE XIX
DEFAULT
19.1 An Event of Default is any one or more of the following: (a)
Tenant's failure to make when due, any payment of the Gross Rent,
additional rent or other sum due hereunder; (b) Tenant's failure
to perform or observe any other term, covenant or condition hereof
and such failure continues for a period of fifteen working days
after written notice from Landlord excepting however Tenant's
failure to comply with Hazardous Materials provisions of this
Lease or Tenant's violation of any health laws, zonal or building
codes; (c) Tenant's failure to occupy continuously the Premises;
(d) an Event of Bankruptcy as specified in Article XX; or (e)
Tenant's dissolution or liquidation.
19.2 If there shall be an Event of Default, including an Event of
Default prior to the Lease Commencement Date, then the provisions
of this Section shall apply. Landlord shall have the right, at its
sole option, to terminate this Lease. In addition, with or without
terminating this Lease, Landlord may re-enter, terminate Tenant's
right of possession and take possession of the Premises. If
necessary, Landlord may proceed to recover possession of the
Premises under applicable laws, by such other proceedings,
including re-entry and possession, or by using such force as may
be necessary. If Landlord elects to terminate this Lease and/or
elects to terminate Tenant's right of possession, then everything
in this Lease to be done by Landlord shall cease, without
prejudice, subject however, to Tenant's liability for all rent and
other sums due hereunder. Landlord may relet the Premises or any
part thereof, alone or together with other premises, for such
term(s) (which may extend beyond the date on which the Lease Term
would have expired but for Tenant's default) and on such terms and
conditions (which may include concessions or free rent and
alteration of the Premises) as Landlord, in its sole discretion,
may determine, but Landlord shall not be liable for, nor shall
Tenant's obligations be diminished by reason of, Landlords failure
to relet the Premises or collect any rent due upon such reletting.
If Landlord relets the Premises and collects rent in excess of the
Gross Rent and additional rent owed by Tenant hereunder, Landlord
shall be entitled to retain any such excess and Tenant shall be
entitled to a credit therefor. Whether or not this Lease is
terminated, Tenant nevertheless shall remain liable for the Gross
Rent, additional rent and damages which may be due or sustained,
and all costs, fees and expenses (including without limitation
attorney's fees brokerage fees and expenses incurred in placing
the Premises in first class rentable condition) incurred by
Landlord in pursuit of its remedies and in renting the Premises to
others from time to time. Tenant shall be liable for all rent
(limited to 12 months) that would have applied to any period of
occupancy of the Premises (whether or not any such period has
elapsed) for which Tenant was hereunder granted occupancy with out
any obligation to pay such rent (if any). Tenant shall also be
liable for additional damages which at Landlord's election shall
be either: (a) an amount equal to the Gross Rent and additional
rent which would have become due during the remainder of the Lease
Term, less the amount of rental, if any which Landlord receives
during such period from others to whom the Premises may be rented
(other than any additional rent payable as a result of any failure
of such other person to perform any of its obligations), in which
case such damages shall be computed and payable in monthly
installments, in advance, on the first day of each calendar month
following Tenant's default (provided, however, that if at the time
of any reletting of the Premises there exists other space in the
Building available for leasing, then the Premises shall be deemed
the last space rented, even though the Premises may be relet prior
to the date such other space is leased and provided further
however, that separate suits may be brought to collect such
damages for any month(s), and such suits shall not in any manner
prejudice Landlord's right to collect any such damages for any
subsequent month(s), or Landlord may defer any such suit until
after the expiration of the Lease Term); or (b) an amount equal to
the present value (as of the date of Tenant's default) of the
Gross Rent and additional rent which would have become due through
the date on which the Lease Term would have expired but for
Tenant's default, which damages shall be payable to Landlord in a
lump sum on demand. For purpose of this section, present value
shall be computed by discounting at a rate equal to one (1) whole
percentage point above the discount rate then in effect at the
Federal Reserve in Boston. Tenant waives any right of redemption,
reentry or restoration of the operation of this Lease under any
present or future law, including any such right which Tenant would
otherwise have if Tenant shall be dispossessed for any cause. As
used in the preceding sentence, the words "redemption",
"re-entry", and "dispossessed", shall not be deemed restricted to
their technical or legal meanings. Whether or not this Lease
and/or Tenant's rights of possession is terminated, Landlord shall
have the right to terminate by written notice any renewal or
expansion right contained in this Lease and to grant or withhold
any consent or approval pursuant to this Lease so long as it is
not unreasonable.
19.3 Landlord's rights and remedies set forth in this Lease are
cumulative and in addition to Landlord's other right's and readies
at law or in equity, including those available as a result of any
anticipatory breach of this Lease. Landlord's exercise of any such
right or remedy shall not prevent the concurrent or subsequent
exercise of any other right or remedy. Landlord's delay or failure
to exercise or enforce any of Landlord's rights or remedies or
Tenant's obligations shall not constitute a waiver of such rights,
remedies or obligations. Landlord shall not be deemed to have
waived any default unless such waiver expressly is set forth in an
instrument signed by Landlord. Any such waiver shall not be
construed as a waiver of any covenant or condition except as to
the specific circumstances described in such waiver. Neither
Tenant's payment of an amount less than a sum due nor Tenant's
endorsement or statement on any check or letter accompanying such
payment shall be deemed an accord and satisfaction.
Notwithstanding any request or designation by Tenant, Landlord may
apply any payment received from Tenant to any payment then due.
Landlord may accept the same without prejudice to Landlord's right
to recover the balance of such sum or to pursue other remedies.
Re-entry and acceptance of keys shall not be considered an
acceptance of a surrender of this Lease.
19.4 If more than one natural person and/or entity shall
constitute Tenant or any Guarantor, then the liability of each
person or entity shall be joint and several. If Tenant or any
Guarantor is a general partnership or other entity, the partners
or members of which are subject to personal liability, then the
liability of each such partner or member shall be joint and
several.
19.5 If Tenant fails with respect to this Lease to make any
payment to any third party and the Landlord is notified by that
party or to do any act herein required to be made or done by
Tenant, then Landlord may, but shall not be required to, make such
payment or do such act. Landlord's taking such action shall not be
considered a cure of such failure by Tenant nor prevent Landlord
from pursuing any remedy it is otherwise entitled to in connection
with such failure. If Landlord elects to make such payment or do
such act, then all expenses incurred, plus interest therein at the
Default Rate (as hereinafter defined) from the date incurred to
the date of payment thereof by Tenant, shall constitute additional
rent. The Default Rate shall equal the rate per annum which is the
lesser of eighteen percent (18%) or the highest rate permitted by
law.
19.6 If Tenant fails to make any payment of the Gross Rent,
additional rent or any other sum payable to Landlord on or before
the date such payment is due or payable, the Tenant shall pay a
late charge equal to five percent (5%) of the amount of such
payment, beginning 10 days after the payment is due. Such payment
and such late fee shall bear interest at the Default Rate from the
date such payment was due to the date of payment. If Tenant is in
default of this Lease for the same or substantially the same
reason more than twice during any Lease Year, then at Landlord's
election, Tenant shall not have the right to cure such repeated
default; provided however, that if Tenant is in default on account
of Tenant's failure to make any payment of Gross Rent or
additional rent when due, and any such occurrence of default does
not exceed fifteen working days, then Tenant shall have the right
to cure such default twice during any Lease Year and four (4)
times during the Lease Term. In the event of Landlord's election
not to allow a cure of a repeated default, Landlord shall have all
rights and remedies provided herein and by law. In addition,
following each second consecutive monthly installment of rent that
remains unpaid for longer than fifteen working days beyond the
date on which the same is due and payable, Landlord may, in
addition to all other rights and remedies provided herein and by
law, require that Tenant increase the amount of the security
deposited with Landlord by an amount equal to two (2) months rent.
If Tenant shall deliver to Landlord a check that is returned
unpaid for any reason, such payment shall be deemed never to have
been made and, additionally, Tenant shall pay Landlord One Hundred
Dollars ($100.00) for Landlords expense in connection therewith
(plus reasonable out-of-pocket expenses incurred in connection
therewith) and said charge shall be payable to Landlord on the
first day of the next succeeding month as additional rent.
19.7 intentionally deleted.
ARTICLE XX
BANKRUPTCY
20.1 An Event of Bankruptcy is: (a) Tenant's, a Guarantor's or any
general partner ("General Partner") of Tenant's becoming
insolvent, as that term is defined in Title II of the United
States Code (the "Bankruptcy Code"), or under the insolvency laws
of any state (the "Insolvency Laws"); (b) appointment of a
receiver or custodian for any property of Tenant, a Guarantor or
a General Partner, or the institution of a foreclosure or
attachment action upon any property of Tenant, a Guarantor or a
General Partner; (c) filing of a voluntary petition by Tenant, a
Guarantor or a General Partner under the provisions of the
Bankruptcy Code or Insolvency Laws; (d) filing of an involuntary
petition against Tenant, a Guarantor or a General Partner as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which
either (1) is not dismissed within thirty (30) days after filing,
or (2) results in the issuance of an order for relief against the
debtor; (e) Tenant's a Guarantor's or a General Partner's making
or consenting to an assignment for the benefit of creditors or a
composition of creditors; or (f) a material and adverse change in
the financial condition or status of Tenant, a General Partner or
a Guarantor.
20.2 Upon occurrence of an Event of Bankruptcy, Landlord shall
have all rights and remedies available pursuant to Article XIX;
provided, however, that while a case (the "Case") in which Tenant
is the subject debtor under the Bankruptcy Code is pending,
Landlord's right to terminate this Lease shall be subject, to the
extent required by the Bankruptcy Code, to any rights of Tenant or
its trustee in bankruptcy (collectively "Trustee") to assume or
assign this Lease pursuant to the bankruptcy code. To the extent
permitted by the Bankruptcy Code, Trustee shall not have the right
to assume or assign this Lease unless Trustee promptly (a) cures
all defaults under this Lease, (b) compensates Landlord for all
damages incurred as a result of such defaults, (c) provides
adequate assurance of future performance on the part of Tenant as
debtor in possession or Tenant's assignee, and (d) complies with
all other requirements of the Bankruptcy Code. To the extent
permitted by the Bankruptcy Code, if trustee fails to assume or
assign this Lease in accordance with the requirements of the
Bankruptcy Code within sixty (60) days after the initiation of the
Case, then Trustee shall be deemed to have rejected this Lease. To
the extent permitted by the Bankruptcy Code, adequate assurance of
future performance shall require that, at a minimum, all of the
following minimum criteria be met: (1) Tenant's gross income (as
defined by generally accepted accounting principles) during the
thirty (30) days preceding the filing of the Case must be greater
than ten (10) times the next monthly installment of the Gross Rent
and additional rent; (2) Both the average and median of Tenant's
monthly gross income (as defined by generally accepted accounting
principles) during the seven (7) months preceding the filing of
the Case must be greater than ten (10) times the next monthly
installment of the Gross Rent and additional rent; (3) Trustee
must pay its estimated prorate share of cost of all services
performed or provided by Landlord (whether directly or through
agents or contractors and whether or not previously included as
part of the Gross Rent) in advance of the performance or provision
of such services; (4) Trustee must agree that Tenant's business
shall be conducted in a first-class manner and that no liquidation
sale, auction or other non-first-class business operation shall be
conducted on the Premises; (5) Trustee must agree that the use of
the Premises as stated in this Lease shall remain unchanged and
that no prohibited use shall be permitted; (6) Trustee must agree
that the assumption or assignment of this Lease shall not violate
or affect the rights of other Tenant's in the Building; (7)
Trustee must pay at the time the next monthly installment of the
Gross Rent is due, in addition to such installment, an amount
equal to the monthly installments of the Gross Rent and additional
rent due for the next six (6) months thereafter, such amount to be
held as a security deposit; (8) Trustee must agree to pay, at any
time Landlord draws on such security deposit, the amount necessary
to restore security deposit to its original amount; and (9) All
assurances of future performance specified in the Bankruptcy Code
must be provided.
ARTICLE XXI
SUBORDINATION
21.1 This Lease is subject and subordinate to the lien,
provisions, operation and effect of all mortgage, deeds or trust,
ground leases or other security instruments which may not or
hereafter encumber the Building or the Land (individually,
"Mortgage" and collectively, "Mortgages"), to all funds and
indebtedness intended to be secured thereby, and to all renewals,
extensions, modifications, recasting or refinancing thereof. The
holder of any Mortgage to which this Lease is subordinate shall
have the right (subject to any required approval of the holders of
any superior Mortgage) at any time to declare this Lease to be
superior to the lien, provisions, operation and effect of such
Mortgage and Tenant shall execute, acknowledge and deliver all
confirming documents required by such holder.
21.2 In confirmation of the foregoing subordination, Tenant
shall at Landlord's request promptly execute any requisite or
appropriate document. Tenant appoints Landlord as Tenant's
attorney-in-fact to execute any such document for Tenant if Tenant
fails to execute same within ten (10) days after request therefor.
Tenant waives the provisions of any statute or rule of law now or
hereafter in effect which may give or purport to give Tenant any
right to terminate or otherwise adversely affect this Lease or
Tenant's obligations in the event any such foreclosure proceeding
is prosecuted or completed or in the event the Land, the Building
or Landlord's interest therein is sold at a foreclosure sale or by
deed in lieu of foreclosure. If this Lease is not extinguished
upon such sale or by the purchase following such sale, then, at
the request of such purchaser, Tenant shall attorn to such
purchaser and shall recognize such purchaser as the Landlord under
this Lease which shall be liable for all Landlord covenants and
obligations hereunder. Upon such attornment such purchaser shall
not be (a) bound by any payment of the Gross Rent or additional
rent more than one (1) month in advance, except as provided for in
par 4.1 above, (b) bound by any amendment of this Lease made
without the consent of the holder of each Mortgage existing as of
the date of such amendment, (c) liable for damages for any breach,
act or omission of any prior Landlord, or (d) subject to any
offsets or defenses which Tenant might have against prior
Landlord. Within five (5) days after receipt, Tenant shall
execute, acknowledge and deliver any requisite or appropriate
document submitted to Tenant confirming such attornment.
21.3 If any lender providing financing secured by the Building
requires as a condition of such financing that modifications to
this Lease be obtained, and provided that such modifications (a)
are reasonable, (b) do not adversely affect in a material manner
Tenant's use of the Premises as herein permitted, and (c) do not
increase the rent and other sums to be paid by Tenant, then
Landlord may submit to Tenant an amendment to this Lease
incorporating such modifications. Tenant shall execute,
acknowledge and deliver such amendment to Landlord within fifteen
(15) days after receipt.
21.4 Landlord will request any holders of mortgages on the
Premises to execute a non disturbance agreement that has been
submitted by any Tenant to Landlord for submission to mortgage
holder. The failure of mortgage holder to execute such non
disturbance agreement will in no case affect any of Tenant's
obligations or agreements hereunder.
ARTICLE XXII
COVENANTS OF LANDLORD
22.1 Landlord covenants that if Tenant shall perform timely all of
its obligations under this Lease, then subject to the provisions
of this Lease, Tenant shall during the Lease Term peaceably and
quietly occupy and enjoy possession of the Premises without
hindrance by Landlord or other tenants or anyone claiming through
Landlord.
22.1.5 Landlord covenants that it shall provide such services as
are identified in Article XIV of this Lease.
22.2 Landlord reserves the right to: (a) change the Street address
and name of the Building, provided however that Landlord will
reimburse Tenant for all reasonable cost involved in such changes
if the change is at the election of Landlord; (b) change the
arrangements and location of entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets or other public
parts of the Building and in connection with such work, to
temporarily close door entry ways, common or public spaces and
corridors of the Building so long as the Premises remain
reasonably accessible; (c) erect, use and maintain pipes and
conduits in and through the Premises; (d) grant to anyone the
exclusive right to conduct any particular business in the Building
not inconsistent with the permitted use of the Premises or
provisions of this Lease save renting to one of the competitors of
Tenant listed below (e) use or lease exclusively the roof areas
and other exterior areas excluding Building Common Areas; (f)
resubdivide the Land or the combine the Land with other lands; (g)
construct improvements (including kiosks) on the Land and in the
public and common areas of the Building; (h) relocate or change
roads, driveways and parking areas and to alter the means of
access to all or any portion of the Building; (I) install and
display signs, advertisements and notices on any part of exterior
or interior of the Building; (j) install such security systems and
devices as Landlord deems appropriate; (k) create easements over
the Premises and in the entrances, aisles and stairways of any
parking area for utilities, telephone lines, sanitary sewer, storm
sewer, water lines, pipes, conduits, drainage ditches, sidewalks,
pathways, emergency vehicles, and ingress and egress for the use
and benefit of others so as to not to substantially affect
Tenant's use or enjoyment of the Premises, with Tenant joining in
the execution thereof and the Lease shall automatically be subject
and subordinate thereto; and (1) alter the site plan, landscaping,
repairs, and maintenance provided however that any such right
shall be performed consistent with, and so as to not substantially
affect Tenant's use or enjoyment of the Premises. Exercise of any
such right shall not be considered a constructive eviction or a
disturbance of Tenant's business or occupancy.
Competitors of Tenant: Telepanel, Pricer, NCR, Intellidge.
ARTICLE XXIII
GENERAL PROVISIONS
23.1 Tenant acknowledges that neither Landlord or any Broker,
agent or employee of Landlord has made any representation or
promise with respect to the Premises or the Building or the Land
except as expressly set forth herein, and no right is being
acquired by Tenant except as expressly set forth herein. This
Lease contains the entire agreement of the parties and supersedes
all prior agreements, negotiations, letters of intent, proposals,
representations, warranties and discussions between the parties.
This Lease may be changed in any manner only by an instrument
signed by both parties.
23.2 Nothing contained in this Lease shall be constructed as
creating any relationship between Landlord and Tenant other than
that of Landlord and tenants.
23.3 Landlord and Tenant each warrants that in connection with
this Lease it has not employed or dealt with any broker, agent or
finder or other than the Broker(s) named herein and shall
indemnify and hold each other harmless from and against any claim
for brokerage or other commissions asserted by any other broker,
agent or finder employed by Tenant or Landlord or with whom Tenant
or Landlord has dealt. Landlord shall pay broker's fee of
Landlord's and Tenant's broker described in section 1.9.
23.4 From time to time upon Ten (10) days prior written notice,
Tenant and each subtenant, assignee or occupant of Tenant shall
execute, acknowledge and deliver to Landlord and any designee of
Landlord a written statement certifying if applicable: (a) that
this Lease is unmodified and in full force and effect (or that
this Lease is in full force and effect as modified and stating the
modifications); (b) the dates to which rent and any other charges
have been paid; (c) that Landlord is not in default in the
performance of any obligation (or specifying the nature of any
default); (d) the address to which notices are to be sent; (e)
that this Lease is subject and subordinate to all Mortgages; (f)
that Tenant has accepted the Premises and all work thereto has
been completed (or specifying the incomplete work); and (g) such
other matters as Landlord may reasonably request. Tenant shall
make reasonable and expeditious attempts to respond to the request
within the 10 day period.
23.5 Intentionally Deleted.
23.6 All notices or other communications shall be in writing and
shall be deemed duly given only when delivered in person (with
receipt therefor), or when sent by certified or registered mail,
return receipt requested, postage prepaid, to the following
address: (a) if to Landlord, at the Landlord Address for Notices;
or (b) if to Tenant, at the Tenant Address for Notices. Either
party may change its address for the giving of notices by notice
given in accordance with this Section. If Landlord or the holder
of any Mortgage notifies Tenant that a copy of each notice to
Landlord shall be sent to such holder at a specified address, then
Tenant shall send in the manner specified in this Section and at
the same time such notice is sent to Landlord, a copy of each such
notice to such holder, and no such notice shall be considered duly
sent unless such copy is so sent to such holder. If Tenant claims
that Landlord has breached any obligation, then Tenant shall send
such holder notice specifying the breach and permit such holder
reasonable opportunity to cure the breach.
23.7 Each provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law. If any provision or its
application to any person or circumstance shall to any extent be
invalid or unenforceable, then such provision shall be deemed to
be replaced by the valid and enforceable provision most
substantively similar thereto, and the remainder of this Lease and
the application of such provision to other persons or
circumstances shall not be affected.
23.8 Feminine, masculine and neuter pronouns shall be substituted
for those of another form, and the plural or singular shall be
substituted for the other number, in any place in which the
context may require.
23.9 The provisions of this Lease shall be binding upon and inure
to the benefit of the parties and their respective
representatives, successors, and assigns, subject to the
provisions herein restricting assignment or subletting.
23.10 Except for emergency, upon twenty-four (24) hours prior
written notice to Tenant, Landlord and it designees may enter the
Premises at any time, without charge therefor and without
diminution of the rent payable by Tenant, to inspect and exhibit
the Premises and make such alterations and repairs as Landlord may
deem necessary (including, but not limited to, alterations and
repairs for a new tenant during the last (60) days of the Lease
Term if Tenant has vacated the Premises). Landlord and its
employees shall preserve in strict confidence and not disclose to
third parties any non-public information or Tenant products
witnessed by Landlord or its employees or obtained or received
from Tenant while in the Premises.
23.11 This Lease shall be governed by the laws of the Commonwealth
of Massachusetts.
23.12 Headings are used for convenience and shall not be
considered when construing this Lease.
23.13 The submission of a copy of this document to Tenant shall
not constitute an offer or option to lease. This Lease shall
become effective and binding only upon execution and delivery by
both Landlord and Tenant.
23.14 Time is of the essence with respect to each obligation of
Tenant and Landlord.
23.15 This Lease may be executed in multiple counterparts, each of
which is deemed an original and all of which constitute one and
the same document.
23.16 This Lease shall not be recorded.
23.17 Landlord reserves the right to make reasonable changes to
the plans and specifications for the Building without Tenant's
consent, provided such changes do not alter the Premises or the
character of the Building as a first-class light manufacturing and
engineering facility, and reasonable notice is given to tenant.
23.18 Except as otherwise provided in this Lease, any additional
rent or other sum owed by Tenant to Landlord, and any cost,
expense, damage, or liability incurred by Landlord for which
Tenant is liable, shall be considered additional rent payable
pursuant to this Lease and paid by Tenant no later than fifteen
working days after the date Landlord notified Tenant of the amount
thereof.
23.19 Tenant's rights and liabilities existing as of the
expiration or earlier termination of the Lease Term shall survive
such expiration or earlier termination.
23.20 If Landlord is in any way delayed or prevented from
performing any obligation due to fire, act of God, governmental
act or failure to act, labor dispute, inability to procure
materials or any cause beyond Landlords reasonable control
(whether similar or dissimilar to the foregoing events), then the
time for performance of such obligation shall be excused for the
period of such delay or prevention and extended for the time
necessary to compensate for the period of such delay or
prevention.
23.21 The deletion of any printed, typed or other portion of this
Lease shall not evidence an intention to contradict such deleted
portion. Such deleted portion shall be deemed not to have been
inserted in this Lease.
23.22 The person executing this Lease on Tenant's behalf warrants
that such person is duly authorized to so act.
23.23 Intentionally deleted.
23.24 If Landlord requires the services of an attorney to cause
Tenant to cure any default, to evict Tenant or to pursue any other
remedies to which Landlord is entitled hereunder, Tenant shall pay
the reasonable fees of such attorney (including in-house
attorneys) together with all reasonable costs and expenses
incurred by Landlord in connection with such matters, whether or
not any legal proceeding has commenced.
23.25 Intentionally Omitted.
23.26 Landlord agrees to make readily achievable modifications in
order to comply with applicable laws and regulations pertaining to
access by handicapped persons, including, but not limited to, the
Americans with Disabilities Act ("ADA"), with respect to the
Building and the parking lot and other common area, but excluding
the Premises. Tenant accepts the Premises in its present condition
with respect to satisfaction of the ADA and all other laws, and
shall be solely responsible for compliance therewith during the
term of this Lease.
ARTICLE XXIV
PARKING
24.1 During the Lease Term, Tenant shall have the right to use (on
a non-exclusive first-come, first served basis during the lease
term) the Parking Lot for the parking of passenger automobiles in
the parking areas designed from time to time by Landlord for the
use of Tenant's of the Building, in a ratio of 3.5 permittable
spaces per one thousand rentable square feet leased, for a total
of seventy nine (79) spaces or more, for the term of the lease.
Included in this allotment, twenty four parking spaces in front of
the building, will be exclusively allocated to the Tenant during
the term of the lease. Tenant will be granted the right to park
overnight, in designated areas in the rear of the building, for
the purpose of business activities and such parking will be
limited in duration to one (1) week at a time. Parking
requirements beyond this must be requested from the landlord,
whose approval will not be unreasonably withheld.
24.2 Landlord reserves the right to reasonably establish and
modify or amend rules and regulations governing the use of such
parking areas. Landlord shall have the right to revoke a user's
parking privilege in the event such user fails to abide by the
rules and regulations governing the use of such parking areas.
Tenant shall be prohibited from using such parking areas for
purposes other than for parking registered vehicles. The storage
or repair of vehicles in such parking areas shall be prohibited.
Tenant shall be allowed to use additional parking spaces so long
as it obtains Landlord's prior consent and such use does not
unreasonably infringe on the use, enjoyment or rights of any other
tenant to the additional spaces.
24.3 Tenant shall not assign or sublet any parking rights granted
to Tenant herein, nor use parking space exceeding its share. Any
attempted assignment or sublease shall be null and void.
24.4 Intentionally Deleted.
24.5 Except to the extent caused by Landlord's negligent, willful
act or omission, Landlord shall not be liable for any damages or
loss to any automobile (or property therein) parked in, on or
about such parking areas, or for any injury sustained by any
person in, on or about such areas. If Landlord, in its sole and
absolute discretion, deems it necessary to repair and maintain
such parking areas, Landlord shall reserve the right to substitute
use of other parking areas.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
as of the date first above written.
ARTICLE XXV
QUIET ENJOYMENT
25. Landlord warrants that Tenant shall be granted peaceable and
quiet enjoyment of the demised premised free from any eviction or
interference by Landlord if Tenant pays the rent and other charges
provided in this lease agreement, and otherwise fully and
punctually performs the terms and conditions imposed on Tenant.
ARTICLE XXVI
OPTION TO RENEW
26.0 Landlord grants to Tenant an option to extend this Lease for
one additional three year term. Tenant may exercise such option by
giving Landlord written notice six (6) months prior to the
expiration of the Lease Term. The Base Rent (Gross Rent less Tax
and Operating Expense factor identified in Article 5.1) for the
three year Renewal Term shall be the Base Rent for the fifth year
of the Lease Term increased by an amount equal to the increase in
the Cost of Living Index for all items, Boston, MA published by
the United States Department of Labor's Bureau of Labor
Statistics, as compared between October 1 of the Lease -
Commencement Date and October 1, of the year of expiration of the
initial Lease Term. If the index should increase by greater than
4% during any year(s) of the initial Lease Term, then the amount
of increase used for that year(s) in calculating the overall
increase for the Renewal Term shall not exceed four percent (4%).
The resulting rate shall be fixed as the Base Rent Rate for the
three year Renewal Term. All other terms of the Lease shall remain
unchanged for the renewal period, except there shall be no further
option to extend.
WITNESS: LANDLORD:
Xxxxxx Limited Partnership
s/Xxxx X. Xxxxx, Xx. By: s/Xxxxxx Xxxxxx
------------------------- -----------------------------
Name : Xxxxxx Xxxxxx
Title: General Partner
Date : 10/3/97
WITNESS: TENANT:
Electronic Retailing Systems
International, Inc.
s/Xxxxxxxx X. Xxxxxxx By: s/Xxxxxxx Xxxxxx
------------------------ ------------------------------
Officer duly authorized.
Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer
Date : 10/2/97
