EXHIBIT 10.35
00 XXXXXXXXXXXX XXX
L E A S E
ARTICLE 1
REFERENCE DATA
1.1 SUBJECT REFERRED TO
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Section 1.1.
DATE OF THIS LEASE: March 16, 2000
BUILDING: The three-level building situated on
the parcel of land known and
numbered as 00 Xxxxxxxxxxxx Xxx,
Xxxxxx, Xxxxxxxxxxxxx, as more
particularly described in Exhibit
A-1 attached to this Lease (the
Building and such parcel of land
hereinafter being collectively
referred to as the "Property").
RENTABLE FLOOR AREA
OF THE BUILDING: 163,176 rentable square feet of
floor area.
PREMISES: The entire second (2nd) and third
(3rd) floors of the Building,
substantially as shown on Exhibit A
attached hereto.
RENTABLE FLOOR
AREA OF PREMISES: Approximately 81,938 rentable
square feet, consisting of
approximately 73,049 rentable square
feet on the second (2nd) floor of
the Building and approximately 8,889
rentable square feet on the third
(3rd) floor of the Building.
LANDLORD: 10 Presidential Way Associates, LLC,
a Delaware limited liability company
ORIGINAL NOTICE
ADDRESS OF LANDLORD: c/x Xxxxxxxx Management Company, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
TENANT: Oak Technology, Inc., a Delaware
corporation
ORIGINAL NOTICE
ADDRESS OF TENANT: 000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
EXPIRATION DATE: The last day of the seventh (7th)
lease year (as hereinafter defined)
COMMENCEMENT DATE: See Section 2.2.
ADJUSTMENT DATE: The date which is 90 days from the
Commencement Date.
DELIVERY DATE: August 1, 2000
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ANNUAL FIXED RENT RATE: $1,753,176.00 from the Commencement
Date until the day before the
Adjustment Date;
$1,966,512.00 from the Adjustment
Date through the end of the 5th lease
year; and $2,294,264.00 thereafter.
MONTHLY FIXED RENT RATE: $146,098.00 from the Commencement
Date until the day before the
Adjustment Date;
$163,876.00 from the Adjustment Date
through the end of the 5th lease
year; and $191,188.67 thereafter.
ALLOWANCE: $1,720,698.00
FINAL PLANS DATE: May 12, 2000
LETTER OF CREDIT
AMOUNT: $1,966,512.00
BASE OPERATING COSTS: $734,292.00
BASE TAXES: $244,764.00
TENANT'S PERCENTAGE: The ratio of the Rentable Floor
Area of the Premises to the
Rentable Floor Area of the
Building, which shall initially be
deemed to be 50.21%.
PERMITTED USES: General offices and uses ancillary
thereto.
PUBLIC LIABILITY INSURANCE LIMITS:
Comprehensive General Liability: $2,000,000 per occurrence
$5,000,000 general aggregate
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1.2 EXHIBITS.
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 Floor Plans of Premises
EXHIBIT A-1 Description of Property
EXHIBIT B Commencement Date Notification
EXHIBIT C Base Building Work Specifications
EXHIBIT D Work Change Order
EXHIBIT E Rules and Regulations
EXHIBIT F Form Tenant Estoppel Certificate
EXHIBIT G Form of Letter of Credit
1.3 TABLE OF ARTICLES AND SECTIONS.
ARTICLE 1 -- REFERENCE DATA
1.1 Subjects Referred To.................................................1
1.2 Exhibits.............................................................1
1.3 Table of Articles and Sections.......................................2
ARTICLE 2 -- PREMISES AND TERM
2.1 Premises.............................................................3
2.2 Term.................................................................3
2.3 Extension Options....................................................4
ARTICLE 3-- IMPROVEMENTS
3.1 Performance of Work and Approval of Landlord's Work..................4
3.2 Plans and Specifications.............................................5
3.3 Acceptance of the Premises...........................................5
3.4 Pre-Commencement Entry by Tenant.....................................5
ARTICLE 4 -- RENT
4.1 The Fixed Rent.......................................................6
4.2 Additional Rent......................................................6
4.2.1 Real Estate Taxes...........................................6
4.2.2 Personal Property Taxes.....................................6
4.2.3 Operating Costs.............................................6
4.2.4 Insurance...................................................7
4.2.5 Utilities...................................................8
4.3 Late Payment of Rent.................................................8
4.4 Letter of Credit.....................................................8
4.4.1 Amount of Letter of Credit..................................8
4.4.2 Renewal of Letter of Credit.................................8
4.4.3 Draws to Cure Defaults......................................8
4.4.4 Draws to Pay Damages........................................8
4.4.5 Draws for Failure to Deliver Substitute Letter of Credit....8
4.4.6 Transferability.............................................9
4.4.7 Return of Letter of Credit at End of Term...................9
ARTICLE 5 -- LANDLORD'S COVENANTS
5.1 Affirmative Covenants................................................9
5.1.1 Heat and Air Conditioning...................................9
5.1.2 Electricity.................................................9
5.1.3 Cleaning; Water.............................................9
5.1.4 Elevator; Fire Alarm........................................9
5.1.5 Repairs.....................................................9
5.1.6 Landscaping.................................................9
5.1.7 Landlord's Insurance........................................9
5.2 Interruption.........................................................9
5.3 Outside Services.....................................................9
5.4 Landlord's Representations...........................................9
5.5 On-Site Amenities....................................................9
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ARTICLE 6 -- TENANT'S ADDITIONAL COVENANTS
6.1 Affirmative Covenants...............................................10
6.1.1 Perform Obligations........................................10
6.1.2 Use........................................................10
6.1.3 Repair and Maintenance.....................................10
6.1.4 Compliance with Law........................................10
6.1.5 Indemnification............................................10
6.1.6 Landlord's Right to Enter..................................10
6.1.7 Personal Property at Tenant's Risk.........................10
6.1.8 Payment of Landlord's Cost of Enforcement..................10
6.1.9 Yield Up...................................................10
6.1.10 Rules and Regulations......................................11
6.1.11 Estoppel Certificate.......................................11
6.2 Negative Covenants..................................................11
6.2.1 Assignment and Subletting..................................11
6.2.2 Nuisance...................................................11
6.2.3 Hazardous Wastes and Materials.............................12
6.2.4 Floor Load; Heavy Equipment................................12
6.2.5 Installation, Alterations or Additions.....................12
6.2.6 Abandonment................................................12
6.2.7 Signs......................................................12
6.2.8 Parking and Storage........................................12
ARTICLE 7 -- CASUALTY OR TAKING
7.1 Termination.........................................................12
7.2 Restoration.........................................................12
7.3 Award...............................................................13
ARTICLE 8 -- DEFAULTS
8.1 Events of Default...................................................13
8.2 Remedies............................................................13
8.3 Remedies Cumulative.................................................13
8.4 Landlord's Right to Cure Defaults...................................13
8.5 Effect of Waivers of Default........................................13
8.6 No Waiver, etc......................................................13
8.7 No Accord and Satisfaction..........................................13
ARTICLE 9 -- RIGHTS OF MORTGAGE HOLDERS
9.1 Rights of Mortgage Holders..........................................14
9.2 Lease Superior or Subordinate to Mortgages..........................14
ARTICLE 10 -- MISCELLANEOUS PROVISIONS
10.1 Notices From One Party to the Other.................................14
10.2 Quiet Enjoyment.....................................................14
10.3 Lease Not to be Recorded............................................14
10.4 Limitation of Landlord's Liability..................................14
10.5 Acts of God.........................................................14
10.6 Landlord's Default..................................................14
10.7 Brokerage...........................................................14
10.8 Applicable Law and Construction.....................................15
10.9 Right of First Offer................................................15
ARTICLE 2
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, excluding the
roof, exterior faces of exterior walls, the common
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stairways, stairwells, elevators and elevator shafts, and pipes,
ducts, conduits, wires, and appurtenant fixtures serving exclusively
or in common with the Premises, other parts of the Building, and if
Tenant's space includes less than entire rentable area of any floor,
excluding the central core area of such floor.
Tenant shall have, as appurtenant to the Premises, rights to use, in
common with Landlord and other tenants of the Building, subject to
reasonable rules of general applicability to tenants of the Building
from time to time made by Landlord in accordance with Section 6.1.10 of
this Lease: (a) the lobbies, hallways, stairways and elevators
necessary for access to the Premises, (b) if the Premises includes less
than the entire rentable area of any floor, the restrooms on such
floor, (c) any common cafeteria and/or fitness center that may be now
or hereafter constructed on the Property, (d) the common walkways and
driveways necessary for access to the Building and the parking areas on
the Property, (e) the parking areas on the Property and any other
parking areas serving the Building,, and (f) all wires, cables, pipes,
poles, mains, conduits, ducts, trenches and other fixtures, facilities
and equipment necessary or convenient to provide electricity,
telephone, cable, gas, water, sewer and other utility and
telecommunications services to the Premises (collectively, the "Common
Facilities"). Tenant shall also have the right to use up to 3.7 parking
spaces located at the Property for each 1,000 rentable square feet of
the Rentable Floor Area of the Premises at no additional cost to
Tenant. Landlord shall not grant to all tenants in the aggregate the
right to use more parking spaces than available at the Property.
Landlord reserves the right from time to time, without unreasonable
interference with Xxxxxx's use of the Premises: (a) to install, use,
maintain, repair, replace and relocate for service to the Premises and
other parts of the Building, or either, pipes, ducts, conduits, wires
and appurtenant fixtures, above dropped ceilings in the Premises or in
core areas of the Building, (b) to alter or relocate any other common
facility, (c) to make any repairs and replacements to the Premises
which Landlord may deem necessary, and (d) in connection with any
excavation made upon adjacent land of Landlord or others, at reasonable
times and upon reasonable prior notice (except in an emergency), to
enter upon the Premises to do such work as the person causing such
excavation deems necessary to preserve the wall of the Building from
injury or damage and to support the same.
2.2 TERM. TO HAVE AND TO HOLD for a term (the "original term") beginning on
the Commencement Date, which shall be the earlier of (a) the date on
which the Base Building Work and the TIW has been substantially
completed and Landlord has delivered the Premises to Tenant in a broom
clean condition and free of all tenants and occupants or (b) the
opening by Tenant of its business in the Premises, and ending on the
Expiration Date, unless sooner terminated as hereinafter provided. The
term "substantially completed" as used herein shall mean that (i) the
Base Building Work and TIW has been completed with the exception of the
hydraulic service elevator specified in Exhibit C and minor items which
can be fully completed after Tenant takes possession of the Premises
without material interference with Xxxxxx's use of the Premises 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 (collectively, "Punch List Items"), and (ii) a temporary
certificate of occupancy has been issued which permits Tenant to occupy
the Premises for the Permitted Uses; provided, however, if at the time
clause (i) of this Section 2.2 has been satisfied Landlord cannot
obtain a temporary certificate of occupancy because of a Tenant Delay
(hereinafter defined), then, notwithstanding Landlord's inability to
obtain the temporary certificate of occupancy, the Commencement Date
shall be deemed to have occurred and the Base Building Work and the TIW
shall be deemed to be "substantially completed" on the date that such
work would have been substantially completed but for such Tenant Delay,
but Landlord shall not be relieved from the obligation to actually
complete Landlord's Work. Landlord shall promptly notify Tenant of any
potential Tenant Delay of which Landlord becomes aware. If the
Landlord's Work is deemed substantially completed pursuant to the
foregoing (and the Commencement Date shall have occurred by reason
thereof), but the Landlord's Work is not in fact substantially
completed, Tenant shall not (except with Xxxxxxxx's consent which shall
not be unreasonably withheld or delayed) be entitled to take possession
of the Premises for the Permitted Uses until the Landlord's Work is in
fact substantially completed, except in such case as Tenant can legally
occupy the Premises while Tenant waits for a long lead time item to be
delivered and installed. For the purposes hereof, "Tenant Delay" shall
be defined as any material delay in the completion of Landlord's Work
actually caused by (i) special work or long lead-time items for which
Landlord identifies a specified period of Tenant Delay at the time of
its approval of the Final Plans (provided, however, that Landlord shall
identify no component of the TIW as special work or long lead-time
items, or charge Tenant for any expediting or overtime costs, if such
components are consistent with the tenant standard finishes at 00
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx), or change orders made by
Tenant under Section 3.1 hereof for which Landlord identifies a
specified period of Tenant Delay at the time of its approval (and
Tenant does not withdraw or alter such special work, long lead-time
item or change order which avoids such delay), (ii) the delay of Tenant
in submitting the Final Plans by the Final Plans Date, approving the
Cost Proposal within the time period specified below, or supplying,
submitting or approving any other plans, specifications or estimates or
giving authorizations or supplying information reasonably required by
Landlord or its contractors within the specific time periods set forth
in this Lease, or in any instance where no specific time period is
specified herein, within such reasonable period of time as shall be
typically required for the expeditious prosecution of the work to be
performed by Landlord, (iii) any contractors employed by Tenant
including, without limitation, entities furnishing communications, data
processing or other service or equipment directly to Tenant (and not
under Xxxxxxxx's contractor(s)), or (iv) any failure to comply with
this Article 3 or any material interference with the performance of
Xxxxxxxx's Work by Tenant or any of its agents, employees, engineers or
contractors.
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, which Landlord shall complete and deliver
to Tenant, and which shall be deemed conclusive unless Tenant shall
notify Landlord of any disagreement therewith within ten (10) days of
receipt. Landlord shall complete the Punch List Items within 30 days
after the Commencement Date, except for items which because of the
season or weather or the nature of the item are not practicable to do
at the time, which items Landlord shall complete as soon as reasonably
practicable and with diligence and continuity. If the Commencement Date
occurs before the issuance of a permanent certificate of occupancy for
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the Premises, Landlord shall obtain a permanent certificate of
occupancy for the Premises as soon as reasonably practicable after the
Commencement Date.
The term "lease year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first lease year shall begin on
the Commencement Date if the Commencement Date is the first day of a
calendar month; if not, then the first lease year shall commence upon
the first day of the calendar month next following the Commencement
Date. Each succeeding lease year shall commence upon the anniversary
date of the first lease year, and upon the anniversary date of each
succeeding lease year.
2.3 EXTENSION OPTIONS. Provided that as of the date of the notice specified
below, Tenant is not in default in the payment or performance of its
obligations under this Lease after receiving any notice required under
this Lease and beyond any applicable grace periods, and has not
previously been in monetary default of its obligations under this Lease
beyond any applicable grace period during the two (2) years prior to
the date of such notice, Tenant shall have the right to extend the term
of this Lease for one or both of two additional periods of five (5)
years each, each such period to begin immediately upon the expiration
of the then current term (the "Extended Term" or the "Extended Terms").
All of the terms, covenants and provisions of this Lease shall apply to
each such Extended Term except that (i) Base Operating Costs and Base
Taxes shall be adjusted to reflect a current base year for Operating
Costs and Taxes, and (ii) the Annual Fixed Rent Rate for each such
Extended Term shall be the market rate at the commencement of each of
the Extended Terms. The "market rate" shall be the annual fair market
rental rate during the Extended Term, for leases, on terms and
conditions (other than Fixed Rent but including any such adjusted Base
Operating Costs and Base Taxes) comparable to this Lease, for a term of
five years, for space of similar size to the Premises (but not in no
event less than 10,000 square feet) and of an age, quality, condition,
amenities and location comparable to the Premises and the Building in
the Woburn market area. If Tenant shall elect to exercise either or
both of the aforesaid options, it shall do so by giving Landlord notice
in writing of its intention to do so not later than 12 months prior to
the expiration of the then current term, as the case may be. If Tenant
gives such notice, the extension of this Lease shall be automatically
effected without the execution of any additional documents. The
original term and the Extended Terms are hereinafter collectively
called the "term".
Within fifteen (15) days following receipt of such notice by Xxxxxx,
Landlord shall give notice to Tenant setting forth Landlord's
determination of the market rate for the Extended Term in question.
Within fifteen (15) days following receipt of Landlord's notice Tenant
shall either propose its determination of the market rate by giving
notice thereof to Landlord or shall accept Landlord's determination.
Failure on the part of Tenant to give such notice of its determination
shall bind Tenant to Landlord's determination. If Tenant proposes its
determination of the market rate, then Landlord and Tenant shall meet
for the purpose of reaching agreement. If the parties have been unable
to reach agreement within fifteen (15) days following Xxxxxx's notice
to Landlord of its determination, then Tenant's exercise shall be
deemed revoked and its exercise of the aforesaid option shall be
rendered ineffective unless, within fifteen (15) days thereafter,
Tenant shall call for arbitration by written notice to Landlord.
If the Tenant calls for arbitration, then the market rate shall be
submitted to arbitration as follows: The market rate shall be
determined by impartial arbitrators, one to be chosen and paid for by
the Landlord, one to be chosen and paid for 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. All such arbitrators shall be brokers or appraisers
with at least ten years of experience in appraising or valuing
properties of the general location, type and character as the Property
who is either a Senior Real Property Appraiser of the Society of Real
Estate Appraisers or a member of the Appraisal Institute (or any
successor organization). 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 appointment of the third
arbitrator 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 the Extended Term, then Tenant
shall pay Fixed Rent under the Lease based upon the rate then in effect
at the expiration of the then current term 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 Landlord shall refund any
overpayment of Fixed Rent to Tenant.
In any event, the Annual Fixed Rent Rate for the Extended Terms shall
not be less than the Annual Fixed Rent Rate in effect immediately prior
to each such Extended Term.
ARTICLE 3
IMPROVEMENTS
3.1 PERFORMANCE OF WORK AND APPROVAL OF XXXXXXXX'S WORK. Landlord shall
cause to be performed and completed the alterations, improvements,
renovations, installations and other base building work (the "Base
Building Work") described in the specifications attached hereto as
Exhibit C (the "Base Building Work Specifications") at Landlord's
expense. Additionally, Landlord shall cause to be performed and
completed the alterations, improvements, renovations, installations and
other work desired by Tenant to prepare the Premises for Tenant's use
and occupancy (the "TIW") in accordance with the Final Plans (as
hereinafter defined).
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The Final Plans, which are not prepared as of the date hereof,
shall be prepared in accordance with Section 3.2 below. (The
Base Building Work and the TIW are sometimes collectively referred
to herein as the "Landlord's Work"). All such Landlord's Work shall be
done in a good and workmanlike manner, in accordance with the Base
Building Plans and the Final Plans, employing good materials and so as
to conform to all applicable federal, state and local building laws,
including those relating to the removal of architectural barriers for
disabled persons. Tenant agrees that Landlord may make any minor
changes in Landlord's Work ("minor changes" meaning changes that are
customary to the trades to accommodate field conditions or substitute
materials of equal or better qualities in order to meet availability
schedules) which may become reasonably necessary or advisable, other
than substantial changes, without approval of Tenant, provided written
notice is promptly given to Tenant; and Landlord may make substantial
changes in Landlord's Work necessitated by building code requirements,
unavailability of materials and the like, with the written approval of
Tenant, which shall not be unreasonably withheld or delayed. Landlord
shall submit promptly the Final Plans and the building permit
application to the Town of Woburn and shall prosecute such application
and the issuance of all building permits for the Landlord's Work and
all certificates of use and occupancy for the Premises. Landlord shall
use diligence to cause Landlord's Work to be substantially completed by
the Delivery Date, subject to the provisions of Section 10.5 hereof and
any Tenant Delay. Xxxxxxxx agrees that Tenant may make changes in such
work with the approval of Landlord, which Landlord shall not
unreasonably withhold, delay or condition, and the execution by
Landlord and Tenant of a Work Change Order in the form attached hereto
as Exhibit D. The TIW is specialized for Tenant's use and therefore
shall be deemed to be Tenant's property during the term hereof. Tenant
acknowledges that the hydraulic service elevator described in Exhibit C
as part of the Base Building Work may not be installed by the
Commencement Date. If Landlord has not installed the service elevator
on or before the Commencement Date, Landlord shall use diligence to
complete such installation no later than forty-five (45) days after the
Commencement Date. During such time that the service elevator is not
operational, Tenant shall be permitted to use the passenger elevator
for all purposes, including moving palettes of paper. Landlord shall be
responsible for paying the reasonable incremental moving costs incurred
by Xxxxxx as a result of the lack of a service elevator.
3.2 PLANS AND SPECIFICATIONS. Tenant shall be solely responsible for the
preparation and submission to Landlord of the architectural,
electrical, mechanical and plumbing construction design drawings,
construction plans and specifications required to permit, construct and
complete the TIW (called "TIW Plans") and all and all other information
required by Landlord and the General Contractor necessary to perform
the TIW. The TIW Plans shall be subject to the approval of Landlord's
architect and engineers and shall comply with their requirements to
avoid aesthetic or other conflicts with the design and function of the
Building. If requested by Xxxxxx, Xxxxxxxx's architect will prepare the
TIW Plans necessary for the TIW at Tenant's cost. Whether or not the
TIW Plans are prepared with the help (in whole or in part) of
Xxxxxxxx's architect, Xxxxxx agrees to remain solely responsible for
the preparation and submission of the TIW Plans and all costs related
thereto. Xxxxxx has assured itself by direct communication with the
architect and engineers (Landlord's or its own, as the case may be)
that the Final Plans can be delivered to Landlord on or before the
Final Plans Date, provided that Tenant promptly furnishes complete
information concerning its requirements to said architect and engineers
as and when requested by them and Landlord responds with its approval
or disapproval of the TIW Plans and any revisions to the TIW Plans
within the periods specified in this Section 3.2; and Tenant covenants
and agrees to cause said Final Plans to be delivered to Landlord on or
before Final Plans Date and to devote such time as may be necessary in
consultation with said architect and engineers to enable them to
complete and submit the TIW Plans before the Final Plans Date. Time is
of the essence in respect of the preparation and submission of plans by
Xxxxxx and Xxxxxxxx's response to each submission of the TIW Plans or
the revised TIW Plans by Xxxxxx.
The TIW Plans shall require Landlord's approval, which shall not be
unreasonably withheld, delayed or conditioned. Landlord shall give
Tenant notice, in reasonable detail, of any reasonable objections or
concerns Landlord may have with respect to any TIW Plans or revised TIW
Plans within 7 business days after Landlord's receipt of TIW Plans or
revisions, and if Landlord does not give such notice within the
aforesaid 7-business day period, Landlord shall be deemed to have
approved the TIW Plans in question. Landlord shall not be deemed
unreasonable for withholding approval of plans which (i) involve or
might affect any structural element or exterior element of the Building
or any portion thereof, or (ii) might, in Landlord's reasonable
opinion, materially adversely affect the value of the Building or any
portion thereof, or (iii) might materially adversely affect the proper
functioning of the Building systems. If Landlord reasonably and timely
objects to the TIW Plans, or any portion thereof, Tenant shall cause
the TIW Plans to be revised in a manner sufficient to remedy Landlord's
reasonable objections and respond to Landlord's reasonable concerns and
redelivered to Landlord as soon as reasonably possible after Xxxxxx's
receipt of Landlord's notice of objection (Tenant hereby agreeing to
use best efforts to respond within five (5) business days). The
aforesaid process shall be repeated until the plans are approved by
Landlord. The final TIW Plans approved by Landlord shall be called the
"Final Plans." Tenant shall use diligence to submit revised TIW Plans
and both parties shall cooperate to diligently complete the Final Plans
by the Final Plans Date.
Landlord shall cause the TIW to be completed, in accordance with this
Lease, by Erland Construction (the "General Contractor") and by
subcontractors selected and engaged by Landlord and the General
Contractor. Landlord shall cause the General Contractor to obtain
competitive bids for the TIW from at least three subcontractors for
each major trade of work involved in the TIW. Tenant shall have the
right to specify one subcontractor reasonably acceptable to Landlord to
participate in such competitive bidding for each such trade. One of the
three subcontractors shall employ non-union labor, unless no such
subcontractor is available to perform any particular trade. Landlord
shall cause the General Contractor to accept the lowest qualified bid
submitted for each such trade unless such bid fails to conform to the
Final Plans or the requirements of this Lease. Within 10 business days
after the date of the delivery of Final Plans to Landlord, Landlord
shall provide to Tenant a written summary (the "Cost Proposal") of the
cost of the TIW, based on the Final Plans. The Cost Proposal (and any
revisions thereto) shall include such reasonable supporting
documentation as Tenant shall reasonably require to confirm the
accuracy of the calculation of Tenant's Share (as hereinafter defined)
and compliance with the terms of this Lease. Tenant shall give written
notice to Landlord of any disapproval of the Cost Proposal, together
with reasons for such disapproval, within five business days after
receiving the Cost Proposal from Landlord. Tenant shall not
unreasonably withhold
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or condition its approval of the Cost Proposal. If Tenant fails to
deliver such notice of disapproval to Landlord within such
five-business-day period, Tenant shall be deemed to have approved the
Cost Proposal. If Tenant reasonably disapproves the Cost Proposal
within such five-business-day period, Tenant shall revise the Final
Plans within such 5-day period, subject to Landlord's approval, which
shall not be unreasonably withheld, delayed or conditioned. Within 5
business days after Xxxxxx's submitting of the revised Final Plans,
Landlord shall submit a revised Cost Proposal to Tenant based on the
revised Final Plans and shall then be released to commence the TIW.
Tenant and Landlord agree to hold weekly project meetings with the
architect and contractor commencing fourteen (14) days after the date
this Lease is executed.
In calculating the costs of Xxxxxxxx's Work for the purpose of
determining Tenant's Share (the "Contract Price"), such costs shall
include only the sum of (i) fees and expenses paid to architects and
engineers in connection with the preparation and revision of the Final
Plans, (ii) the total of all bids from subcontractors accepted by the
General Contractor in accordance with this Lease (the "Hard Costs"),
(iii) a charge for the General Contractor's general conditions
(equitably allocated to the TIW) not to exceed ten (10%) percent of the
Hard Costs (the "General Conditions") and a fee equal to 5% of the sum
of the Hard Costs PLUS the General Conditions, and (iv) a fee payable
to Nordblom Development Company on account of the management of
Landlord's Work equal to 3% of the sum of the Hard Costs, PLUS the
General Conditions, PLUS the General Contractor's fee. Landlord shall
complete Landlord's Work at its sole expense, subject to reimbursement
by Tenant of the amount ("Tenant's Share") by which the Contract Price,
as specified in the Cost Proposal (subject to increases or decreases
under the next paragraph), exceeds the Allowance.
If, after the Cost Proposal has been approved by Landlord and Tenant,
Tenant requests any changes or substitutions to the Final Plans, all
such changes shall be subject to Landlord's prior written approval,
which shall not be unreasonably withheld, delayed or conditioned.
Before implementing any such change or substitution, Landlord shall
prepare and deliver to Tenant, for Tenant's approval, a change order,
on the form attached to this Lease as Exhibit D, setting forth any
increase or decrease in the Contract Price resulting from such change.
If Tenant fails to approve such change order within five business days
after receiving it from Landlord, Tenant shall be deemed to have
withdrawn its request. If Tenant approves such change order, Landlord
shall make the requested change or substitution to Landlord's Work and
shall revise the Cost Proposal if necessary. Landlord shall cause its
General Contractor to retain until ninety (90) days after the
substantial completion of the Leasehold Improvements complete and
accurate financial records with respect to all costs and expenses
incurred in connection with the performance of the Landlord's Work, and
Tenant shall have the right to inspect such records during normal
business hours for the purpose of verifying such costs.
Tenant shall pay to Landlord 50% of Tenant's Share, determined in
accordance with the final Cost Proposal approved by Landlord and Tenant
(the "First Payment"), within ten business days after receiving such
Cost Proposal. On the Commencement Date, Tenant shall pay to Landlord a
sum equal to 90% of Tenant's Share, determined in accordance with such
Cost Proposal, as increased or decreased by any change orders, less the
amount of the First Payment. Any contrary provision of this Lease
notwithstanding, until completion of all Punch List Items, Tenant shall
have the right to retain a sum equal to ten percent of Tenant's Share.
Tenant shall pay Landlord such retained sum within 30 days after the
completion of all Punch List Items.
3.3 ACCEPTANCE OF THE PREMISES. Tenant or its representatives may, at
reasonable times, enter upon the Premises during the progress of the
Landlord's Work to inspect the progress thereof and to determine if the
Landlord's Work is being performed in accordance with the requirements
of this Lease. Tenant shall promptly give to Landlord notices of any
alleged failure by Landlord to comply with those requirements. Except
for latent or structural defects which reasonably could not have been
discovered in the course of a diligent inspection of Landlord's Work
(including without limitation any defects that Tenant could not
reasonably discover due to seasonal conditions) and of which Tenant
shall give Landlord notice within one (1) year from the Commencement
Date, any incomplete Punch List Items and all incomplete or defective
items of Landlord's Work of which Tenant gives Landlord notice within
90 days after the Commencement Date, Tenant shall be deemed to have
approved all aspects of Landlord's Work as of the end of such 90-day
period.
3.4 PRE-COMMENCEMENT ENTRY BY TENANT. With Landlord's prior consent, which
shall not be unreasonably withheld, Tenant shall have the right to
enter the Premises, during normal business hours and without payment of
rent, but otherwise subject to all of the terms and conditions of this
Lease, to perform such work or decoration as is to be performed by, or
under the direction or control of Tenant, which work may include,
without limitation, installation of Tenant's telephone and
telecommunications system and equipment, cubicles and moveable
partitions, so long as such work does not interfere with the
performance of Xxxxxxxx's Work. Notwithstanding the foregoing, no
earlier than fourteen (14) days prior to the Commencement Date, Tenant
shall be permitted access to the Premises to commence installation of
its cubicles and moveable partitions as aforesaid. At such time,
Landlord shall have sufficiently completed installation of carpet in
portions of the Premises to allow Tenant to commence the installation
of its cubicles and partitions, and shall thereafter diligently
complete the installation of said carpet in the remainder of the
Premises in order to permit Tenant to diligently complete the
installation of its cubicles and partitions.
ARTICLE 4
RENT
4.1 THE FIXED RENT. Commencing on the Commencement Date, Tenant covenants
and agrees to pay rent ("Fixed Rent") to Landlord at the 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 Annual 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
8
portion of a calendar month following the Commencement Date, at the
rate of 1/30 of the installment of Monthly Fixed Rent applicable
during the first lease year for each day of such calendar month
included in the term payable in advance on the Commencement Date.
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, to the extent
Tenant has capabilities and means in place, make all such payments as
shall be due after receipt of said notice by means of said electronic
funds transfers (or such similar means as designated by Landlord).
4.2 ADDITIONAL RENT. Tenant covenants and agrees to pay insurance costs,
utility charges, personal property taxes and its pro rata share of
increases in operating costs with respect to the Premises as provided
in this Section 4.2 as follows:
4.2.1 REAL ESTATE TAXES. If Taxes (as hereinafter defined) for any
fiscal tax year (hereinafter called, a "Tax Year") during the
term shall exceed Base Taxes, Tenant shall reimburse Landlord,
as additional rent, for Tenant's Percentage of such excess
(such amount hereinafter referred to as "Tax Excess"). Tenant
shall remit to Landlord, on the first day of each calendar
month, estimated payments on account of Tax Excess, in equal
installments sufficient in the aggregate to provide Landlord,
by the time payments on account of Taxes are due and payable
to any governmental authority responsible for collection of
such payments, a sum equal to the Tax Excess, as reasonably
estimated by Landlord from time to time on the basis of the
most recent tax data available, payable by Tenant on account
of such payments. If the total of such monthly remittances for
any Tax Year is greater than the actual Tax Excess for such
Tax Year, Landlord shall promptly pay to Tenant, or credit
against the next accruing payments to be made by Tenant
pursuant to this subsection 4.2.1, the difference; if the
total of such remittances is less than the actual Tax Excess
for such Tax Year, Tenant shall pay the difference to Landlord
at least ten (10) days prior to the date or dates within such
Tax Year that any Taxes become due and payable to the
governmental authority (but in any event no earlier than ten
(10) days following a written notice to Tenant, which notice
shall set forth the manner of computation of Tax Excess).
Landlord shall, upon request of Xxxxxx, from time to time,
provide Tenant with copies of real estate tax bills with
respect to which Tenant is required to pay Tax Excess.
If, after Tenant shall have made reimbursement to Landlord
pursuant to this subsection 4.2.1, Landlord shall receive a
refund of any portion of Taxes paid by Tenant with respect to
any Tax Year during the term hereof as a result of an
abatement of such Taxes by legal proceedings, settlement or
otherwise (without Landlord having any obligation to undertake
any such proceedings), Landlord shall promptly pay to Tenant,
or credit against the next accruing payments to be made by
Tenant pursuant to this subsection 4.2.1, the Tenant's
Percentage of the refund (less the proportional, pro rata
expenses, including attorneys' fees and appraisers' fees,
incurred in connection with obtaining any such refund), as
relates to Tax Excess paid by Tenant to Landlord with respect
to any Tax Year for which such refund is obtained.
In the event this Lease shall commence, or shall end (by
reason of expiration of the term or earlier termination
pursuant to the provisions hereof), on any date other than the
first or last day of the Tax Year, or should the Tax Year or
period of assessment of real estate taxes be changed or be
more or less than one (1) year, as the case may be, then the
amount of Tax Excess which may be payable by Tenant as
provided in this subsection 4.2.1 shall be appropriately
apportioned and adjusted.
The term "Taxes" shall mean all taxes, assessments,
betterments and other charges and impositions (including, but
not limited to, fire protection service fees and similar
charges) levied, assessed or imposed at any time during the
term by any governmental authority upon or against the
Property, or taxes in lieu thereof, and additional types of
taxes to supplement real estate taxes due to legal limits
imposed thereon. If, at any time during the term of this
Lease, any tax or excise on rents or other taxes, however
described, are levied or assessed against Landlord with
respect to the rent reserved hereunder, either wholly or
partially in substitution for, or in addition to, real estate
taxes assessed or levied on the Property, such tax or excise
on rents shall be included in Taxes; however, Taxes shall not
include franchise, estate, inheritance, succession, capital
levy, excise, transfer, income or excess profits taxes
assessed on Landlord. Taxes shall include any estimated
payment made by Landlord on account of a fiscal tax period for
which the actual and final amount of taxes for such period has
not been determined by the governmental authority as of the
date of any such estimated payment.
4.2.2 PERSONAL PROPERTY TAXES. Tenant shall pay all taxes charged,
assessed or imposed upon the personal property of Tenant in or
upon the Premises.
4.2.3 OPERATING COSTS. If, during the term hereof, Operating Costs
(as hereinafter defined) incurred by Landlord in any calendar
year shall exceed Base Operating Costs, Tenant shall reimburse
Landlord, as additional rent, for Tenant's Percentage of any
such excess (such amount being hereinafter referred to as the
"Operating Costs Excess"). Tenant shall remit to Landlord, on
the first day of each calendar month, estimated payments on
account of Operating Costs Excess, such equal monthly amounts
to be sufficient to provide Landlord, by the end of the
calendar year, a sum equal to the Operating Costs Excess for
such calendar year, as reasonably estimated by Xxxxxxxx from
time to time. If, at the expiration of the year in respect of
which monthly installments of Operating Costs Excess shall
have been made as aforesaid, the total of such monthly
remittances is greater than the actual Operating Costs Excess
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 4.2.3, the difference; if the
total of such remittances is less than the Operating Costs
Excess for such
9
year, Tenant shall pay the difference to Landlord
within twenty (20) days from the date Landlord shall
furnish to Tenant an itemized statement of the Operating Costs
Excess, which statement Landlord shall provide to Tenant
within a reasonable period of time following the end of any
calendar year (but in no event later than 12 months following
the end of such calendar year), prepared, allocated and
computed in accordance with generally accepted accounting
principles, such statement setting forth in reasonable detail
the basis for the computation of any increase in Operating
Costs for such year. Tenant shall have the right, upon
reasonable notice and during business hours, to examine, at
Landlord's office, within six (6) months following receipt of
a statement, Landlord's books and records respecting such
statement. If such examination discloses any errors,
appropriate adjustments shall be made. 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 all costs and expenses
incurred by Landlord for the operation, cleaning, maintenance,
repair and upkeep of the Property, including, without
limitation, all costs of maintaining and repairing the
Property (including snow removal, landscaping and grounds
maintenance, parking lot operation and maintenance, cleaning
of any common dining area for the cafeteria, cleaning,
maintenance and repair of a fitness facility, security,
operation and repair of heating and air-conditioning
equipment, elevators, lighting and any other Building
equipment or systems) and of all repairs and replacements
(other than repairs or replacements or other items for which
Landlord has a right to receive reimbursement from
contractors, other tenants of the Building or from others)
necessary to keep the Property in good working order, repair,
appearance and condition; all costs, including material and
equipment costs, for cleaning and janitorial services to the
Building (including window cleaning of the Building); all
costs of cafeteria subsidy programs, if any, not to exceed
$4,000 per month for the entire Building; all costs of any
reasonable insurance carried by Landlord relating to the
Property; all costs related to provision of heat (including
oil, electric, steam and/or gas), air-conditioning, and water
(including sewer charges) and other utilities to the Building
(exclusive of reimbursement to Landlord for any of same
received as a result of direct billing to any tenant of the
Building); payments under all service contracts relating to
the foregoing; all compensation, fringe benefits, payroll
taxes and workmen's compensation insurance premiums related
thereto with respect to any employees of Landlord or its
affiliates engaged in security and maintenance of the
Property; attorneys' fees and disbursements (exclusive of any
such fees and disbursements incurred in tax abatement
proceedings or the preparation of leases, in procuring
tenants, or in disputes with tenants) and auditing and other
professional fees and expenses relating to the operation of
the Property; and a management fee comparable to fees charged
by other landlords of comparable buildings in the vicinity of
the Building.
Notwithstanding any other provision of this Lease, Operating
Costs shall not include the following: (a) the cost of repairs
or replacements (i) resulting from casualty losses or eminent
domain takings (other than the amount of any reasonable
deductible) or (ii) correcting defects in design or
construction of the Building; (b) costs incurred due to
violation by Landlord or its agents, employees or contractors
of the terms and conditions of any lease or any applicable
law, code or regulation; (c) depreciation or amortization of
the Building or any part thereof; (d) replacement or
contingency reserves; (e) ground lease rents or payments of
principal, interests or other charges in connection with any
other debt or equity obligations; (f) legal, other
professional fees and internal administrative expenses
relating to disputes or negotiations with tenants, leasing,
financing or other services not related to the normal
operation, maintenance, cleaning, repair and protection of the
Property; (g) brokerage fees and commissions and other
expenses incurred in connection with efforts to lease portions
of the Property; (h) the cost of special services rendered for
to Building tenants which are directly chargeable to such
tenants; (i) expenses incurred for the sole benefit of a
particular tenant; (j) Landlord's and Landlord agents' general
overhead not directly related to the operation or maintenance
of the Premises; (k) costs of alterations, additions,
installations and improvements made in connection with the
preparation of any portion of the Property for occupancy by a
new or existing tenant; (l) costs of expanding the rentable
area of the Building; (m) capital expenditures other than
those included in Operating Costs under the next paragraph of
this Section 4.2.3; (n) any expenses with respect to which
Landlord is entitled to reimbursement from insurance proceeds
or from a third party; (o) costs of investigating, testing,
evaluating or remediating hazardous materials on the Property
or the compliance of the Property with laws and regulations
governing or regulating hazardous materials, except to the
extent any such costs arise out of a breach of Tenant's
covenants specified in subsection 6.2.3, (p) costs of
complying with laws in effect prior to the Commencement Date,
including without limitation the Americans with Disabilities
Act of 1990, as amended; (q) sculptures, paintings and other
works of art; and (r) all expenses related to any cafeteria,
other than expenses of cleaning any common dining area and a
subsidy not exceeding $4,000 in any calendar year, and
compensation paid to employees or other persons in connection
with other commercial concessions operated by Landlord.
If during the term of this Lease, Landlord shall incur any
Operating Expenses that are properly characterized as any
capital expenditures according to generally acceptable
accounting practices, Operating Costs for each calendar year
in which and after such capital expenditure is made shall
include only the annual charge-off of such capital
expenditure. Such annual charge-off shall be determined by (i)
dividing the original cost of the capital expenditure by the
number of years of useful life of the item procured by such
capital expenditure, which useful life shall be reasonably
determined by Landlord in accordance with generally accepted
accounting principles and good building management 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.)
If during any portion of any year for which Operating Costs
are being computed, the Building was not fully occupied by
tenants or if Landlord was not supplying all tenants with the
services being supplied hereunder, the variable components of
10
Operating Costs incurred shall be reasonably extrapolated by
Landlord to the estimated Operating Costs that would have been
incurred if the Building were fully occupied by tenants and
such services were being supplied to all tenants, and such
extrapolated amount shall, for the purposes of this Section
4.2.3, be deemed to be the Operating Costs for such year.
4.2.4 INSURANCE. Tenant shall, at its expense, take out and maintain
throughout the term the following insurance:
4.2.4.1 Comprehensive liability insurance covering Tenant and
naming Landlord and Landlord's managing agent and any
mortgagee of which Xxxxxx has been given notice as
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 Premises (or the
Property, insofar as used by customers, employees,
servants or invitees of the Tenant), 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 Premises and used for
similar purposes; and workmen's compensation
insurance with statutory limits covering all of
Tenant's employees working on the Premises.
4.2.4.2 Fire insurance with the usual extended coverage
endorsements covering all Tenants' furniture,
furnishings, trade fixtures, and equipment.
4.2.4.3 All such policies shall be obtained from responsible
companies qualified to do business and in good
standing in Massachusetts, which companies and the
amount of insurance allocated thereto shall be
subject to Landlord's reasonable approval. 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 policy shall be non-cancelable
with respect to the interest of Landlord without at
least ten (10) days' prior written notice thereto. 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 Premises.
4.2.4.4 All insurance which is carried by either Landlord or
Tenant 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 to the extent such rights have been waived by
the insured party prior to occurrence of loss or
injury, insofar as, and to the extent that, such
provisions may be effective without making it
impossible to obtain insurance coverage from
responsible companies qualified to do business in the
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 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 or is required under this Lease to be so
protected, reserving, however, any rights with
respect to any excess of loss or injury over the
amount recovered by such insurance.
4.2.5 UTILITIES. Tenant shall pay to Landlord, as
additional rent, all charges for electricity supplied
by Landlord to the Premises and separately check
metered (which shall include electricity for lights,
outlets and VAV boxes serving the Premises
exclusively) without any mark-up by Landlord, and
charges for telephone and other utilities or services
not supplied by Landlord pursuant to Subsections
5.1.1, 5.1.2, and 5.1.3 directly to the providers of
such utilities or services, whether designated as a
charge, tax, assessment, fee or otherwise, all such
charges to be paid as the same from time to time
become due. It is expressly understood and agreed by
Xxxxxx that Tenant shall be solely responsible for
procuring the installation of all telephone services
to the Premises. For any period in which Xxxxxx is
responsible for paying electrical charges, Landlord
shall furnish Tenant with a statement specifically
stating the number of kilowatt hours consumed by
Tenant for the period in question. Tenant shall have
the right, upon reasonable notice and during business
hours, to examine, at Landlord's office, within six
(6) months following the end of the calendar year in
question, Xxxxxxxx's books and records relating to
the apportionment of electrical charges. Tenant shall
also have the right, from time to time and upon
reasonable notice to Landlord, to have access to the
electric meter servicing the Premises for the purpose
of confirming Tenant's level of consumption of
electricity. Except as otherwise provided in Article
5, 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 Premises.
11
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.
4.4 LETTER OF CREDIT. The performance of Tenant's obligations under this
Lease shall be secured by a letter of credit throughout the term hereof
in accordance with and subject to the following terms and conditions:
4.4.1 AMOUNT OF LETTER OF CREDIT. (a) Concurrently with Xxxxxx's
execution and delivery of this Lease, Tenant shall deliver to
Landlord an irrevocable standby letter of credit (the
"Original Letter of Credit") which shall be (i) in the form of
Exhibit G attached to this Lease (the "Form LC"), (ii) issued
by a bank reasonably satisfactory to Landlord upon which
presentment may be made in Boston, Massachusetts, (iii) in the
amount equal to the Letter of Credit Amount, and (iv) for a
term of at least 1 year, subject to the provisions of Section
4.4.2 below. The Original Letter of Credit, any Additional
Letters(s) of Credit and Substitute Letter(s) of Credit are
referred to herein as the "Letter of Credit."
(b) Tenant shall be entitled to reduce the Letter of Credit
Amount up to 2 times during the term, provided the following
conditions are satisfied at the time of each such reduction:
(x) At such time that Tenant has had a net income of
at least $3,000,000.00 during any 12-month period,
Tenant shall be permitted to reduce the Letter of
Credit Amount to an amount equal to the sum of nine
(9) TIMES the Monthly Fixed Rent Rate in effect at
the time of the reduction, provided that Tenant
delivers to Landlord a statement which has been
reviewed by auditors reporting such net income, and
provided, further, that Tenant has not received from
Landlord notice of a default under this Lease, which
default is continuing at the time of the reduction,
and provided further that at the time of the
reduction Tenant's cash and/or cash equivalents
exceed $20,000,000.00.
(y) In addition, if Tenant has had a net income of at
least $3,000,000.00 during a 12-month period
subsequent to the 12-month period on which the first
reduction was based, Tenant shall be permitted to
further reduce the Letter of Credit Amount to an
amount equal to the sum of six (6) TIMES the Monthly
Fixed Rent Rate in effect at the time of the
reduction, provided Tenant delivers to Landlord with
a statement which has been reviewed by auditors
reporting such net income, and provided further that
Tenant has not received from Landlord notice of a
default under this Lease, which default is continuing
at the time of the reduction, and provided, further,
that at the time of the reduction Tenant's cash
and/or cash equivalents exceed $20,000,000.00.
Tenant shall not be entitled to any other reductions in the
Letter of Credit Amount during the term of this Lease.
4.4.2 RENEWAL OF LETTER OF CREDIT. Each Letter of Credit shall be
automatically renewable in accordance with the second to last
paragraph of the Form LC; provided however, that Tenant shall
be required to deliver to Landlord a new letter of credit (a
"Substitute Letter of Credit") satisfying the requirements for
the Original Letter of Credit under Section 4.4.1 on or before
the date 30 days prior to the expiration of the term of the
Letter of Credit then in effect, if the issuer of such Letter
of Credit gives notice of its election not to renew such
Letter of Credit for any additional period pursuant thereto.
Should any Letter of Credit contain a final expiration date,
in addition to a current expiration date, such final
expiration date shall be no earlier than 45 days following the
Expiration Date of this Lease.
4.4.3 DRAWS TO CURE DEFAULTS. If Tenant shall fail to pay when due
any Fixed Rent, Additional Rent or other charges payable under
this Lease or shall fail to perform any of its obligations
under this Lease, and if any such failure continues after any
notice required under this Lease is given and the expiration
of all applicable cure periods, then Landlord shall have the
right, at any time thereafter to draw down from the Letter of
Credit the amount necessary to cure such default. In the event
of any such draw by the Landlord, Tenant shall, within 30 days
of written demand therefor, deliver to Landlord an additional
Letter of Credit ("Additional Letter of Credit") satisfying
the requirements for the Original Letter of Credit, except
that the amount of such Additional Letter of Credit shall be
the amount of such draw.
4.4.4 DRAWS TO PAY DAMAGES. In addition, if (i) this Lease shall
have been terminated as a result of Tenant's default under
this Lease beyond the expiration of the applicable cure
period, and/or (ii) this Lease shall have been rejected in a
bankruptcy or other creditor-debtor proceeding, then Landlord
shall have the right at any time thereafter to draw down from
the Letter of Credit an amount sufficient to pay any and all
damages payable by Tenant on account of such termination or
rejection, as the case may be, pursuant to Article 8 hereof.
In the event of bankruptcy or other creditor-debtor proceeding
against Tenant, all proceeds of the Letter of Credit 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.
4.4.5 DRAWS FOR FAILURE TO DELIVER SUBSTITUTE LETTER OF CREDIT. If
Tenant fails timely to deliver to Landlord a Substitute Letter
of Credit, then Landlord shall have the right, at any time
thereafter, without giving any further notice to Tenant, to
draw down the Letter of Credit and to hold the proceeds
thereof ("Security Proceeds") in a separate interest-bearing
bank account identified as holding Tenant's funds, which
proceeds may be withdrawn and applied by Landlord under the
same circumstances and for the same purposes as if the
Security Proceeds were a Letter of Credit. Upon any such
application of Security Proceeds by Landlord, Tenant shall,
within 30 days of written demand therefor, deliver to
12
Landlord an Additional Letter of Credit in the amount of
Security Proceeds so applied. Notwithstanding the foregoing,
at any time that Landlord is holding Security Proceeds as
aforesaid, Tenant may replace the Security Proceeds with a
Substitute Letter of Credit in the full amount of the
Security Proceeds. Landlord shall promptly refund such
Security Proceeds to Tenant upon receipt of the Substitute
Letter of Credit.
4.4.6 TRANSFERABILITY. Landlord shall be entitled to transfer its
beneficial interest under the Letter of Credit or any Security
Proceeds in connection with a transfer of Landlord's interest
in the Property, and the Letter of Credit shall specifically
state that it is transferable by Landlord, its successors and
assigns. Upon any transfer of Landlord's interest in the
Property, Landlord shall simultaneously transfer its interest
under the Letter of Credit and/or Security Proceeds to the
transferee of the Property. All costs and expenses incurred by
Landlord to effect such transfer shall be paid by Tenant upon
demand therefor.
4.4.7 RETURN OF LETTER OF CREDIT AT END OF TERM. Within 45 days
after the expiration of the term, to the extent Landlord has
not previously drawn upon any Letter of Credit or Security
Proceeds held by Landlord, Landlord shall return the same to
Tenant provided that there is not at such time any continuing
default of any of Tenant's obligations under this Lease.
ARTICLE 5
LANDLORD'S COVENANTS
5.1 AFFIRMATIVE COVENANTS. Landlord covenants with Tenant:
5.1.1 HEAT AND AIR-CONDITIONING. To furnish to the Premises heat and
air-conditioning (reserving the right, at any time, to change
energy or heat sources) sufficient to maintain the Premises at
comfortable temperatures (subject to all federal, state, and
local regulations relating to the provision of heat), during
the hours of 8:00 a.m. to 6:00 p.m. on Mondays through Fridays
and 8:00 a.m. to 1:00 p.m. on Saturdays, except for the
following holidays on which the Building is normally closed:
New Year's Day, Washington's Birthday, Patriot's Day, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veteran's Day,
Thanksgiving, Christmas and Xxxxxx Xxxxxx Xxxx Day. If Tenant
requires heat and air-conditioning other than on the days that
the Building is normally open or during hours other than
listed above, Landlord shall furnish the same upon Tenant's
reasonable advance request therefor and Tenant shall pay
Landlord, as additional rent, Landlord's charges for such
after-hours heat or air-conditioning.
5.1.2 ELECTRICITY. To furnish to the Premises, separately metered
and at the direct expense of Tenant as hereinabove provided,
reasonable electricity for Tenant's Permitted Uses. If Tenant
shall require electricity in excess of reasonable quantities
for Tenant's Permitted Uses and if (i) in Landlord's
reasonable judgment, Landlord's facilities are inadequate for
such excess requirements, or (ii) such excess use shall result
in an additional burden on the Building utilities systems and
additional cost to Landlord on account thereof, as the case
may be, (a) Tenant shall, upon demand, reimburse Landlord for
such additional cost, as aforesaid, or (b) Landlord, upon
Xxxxxx's written request, and at the sole cost and expense of
Tenant, will furnish and install such additional wire,
conduits, feeders, switchboards and appurtenances as
reasonably may be required to supply such additional
requirements of Tenant (if electricity therefor is then
available to Landlord), provided that the same shall be
permitted by applicable laws and insurance regulations and
shall not cause permanent damage or injury to the Building or
cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations or repairs.
5.1.3 CLEANING; WATER. To provide cleaning to the Premises and
common areas of the Building in accordance with cleaning and
janitorial standards generally prevailing throughout the term
hereof in comparable office buildings within the municipality
in which the Building is located; and to furnish water for
ordinary cleaning, lavatory and toilet facilities.
5.1.4 ELEVATOR; FIRE ALARM. To furnish passenger elevator service
(if any) from the lobby to the Premises and to provide a
freight elevator for use by all tenants during normal Building
hours; and to maintain fire alarm systems within the Building.
5.1.5 REPAIRS. Except as otherwise expressly provided herein, to
perform such maintenance, repairs and replacements to the
roof, exterior walls, floor slabs and other structural
components of the Building, and to the Common Facilities and
the plumbing, electrical, mechanical, emergency, heating,
ventilating and air-conditioning and other systems and
equipment of the Building as may be necessary to keep them in
good repair and condition and in compliance with all
applicable laws, rules and regulations (exclusive of equipment
installed by Tenant and except for those repairs required to
be made by Tenant pursuant to Section 6.1.3 hereof and repairs
or replacements occasioned by any act or negligence of Tenant,
its servants, agents, customers, contractors, employees,
invitees, or licensees).
5.1.6 LANDSCAPING. To provide landscaping, snow removal and grounds
maintenance services to the Property consistent with those
services provided by landlords of comparable office buildings
in the area.
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5.1.7 LANDLORD'S INSURANCE. To take out and maintain throughout the
term (i) all-risk casualty insurance in an amount equal to
100% of the replacement cost of the Building and the
improvements on the Property, and (ii) comprehensive general
liability insurance with respect to the Property in
commercially reasonable amounts, but in no event less than the
amounts specified in Section 1.1 of this Lease.
5.2 INTERRUPTION. Landlord shall be under no responsibility or
liability for failure or interruption of any of the
above-described services, repairs or replacements caused by
breakage, accident, strikes, repairs, inability to obtain
supplies, labor or materials, or for any other causes beyond
the control of the Landlord, and in no event for any indirect
or consequential damages to Tenant; and failure or omission on
the part of the Landlord to furnish any of same for any of the
reasons set forth in this paragraph shall not be construed as
an eviction of Tenant, actual or constructive, nor entitle
Tenant to an abatement of rent, nor render the Landlord liable
in damages, nor release Tenant from prompt fulfillment of any
of its covenants under this Lease. However, in each instance
of interruption or failure, Landlord shall use diligence to
eliminate the cause thereof.
5.3 OUTSIDE SERVICES. In the event Tenant wishes to provide outside
services for the Premises over and above those services to be provided
by Landlord as set forth herein, Tenant shall first obtain the prior
written approval of Landlord (which approval shall not be unreasonably
withheld or delayed) for the installation and/or utilization of such
services ("Outside services" shall include, but shall not be limited
to, cleaning services, television, so-called "canned music" services,
security services, catering services and the like.) In the event
Landlord approves the installation and/or utilization of such services,
such installation and utilization shall be at Tenant's sole cost, risk
and expense.
5.4 LANDLORD'S REPRESENTATIONS. Landlord hereby represents and warrants to
Tenant that (i) it has good title to the Premises and common areas of
the Building and the Property in fee simple with no encumbrances
thereon that would interfere with Xxxxxx's rights hereunder; (ii) it
has full right and authority to execute this Lease; (iii) this Lease
does not conflict with any other agreement to which Landlord is bound;
(iv) the Building and the Property are zoned to allow Xxxxxx's use of
the Premises for offices; and (v) the heating, ventilating and
air-conditioning systems and the mechanical, electrical and plumbing,
and all other Building systems are, as of the date of this Lease, in
good working order and condition.
5.5 ON-SITE AMENITIES. Landlord shall provide fitness and shower facilities
for Tenant's use during the normal Building hours specified above, and
by card access for after hours use, and shall cause to be operated on
the Property an on-site cafeteria in accordance with the terms and
provisions of an operating agreement entered into between Landlord and
the provider of such cafeteria services, it being expressly understood
that said provider shall have the sole right to determine the hours of
operation of the cafeteria pursuant to the terms of the aforesaid
operating agreement. Xxxxxx agrees to participate in any subsidy
programs for the cafeteria that may be established from time to time.
Tenant shall be obligated to pay the Tenant's Percentage of any such
subsidy program, which shall be included as part of Operating Costs for
the Building and which shall not to exceed $4,000.00 per month for the
entire Building. In the event that a cafeteria is not operating on or
before the Commencement Date, Landlord will arrange for a temporary
food service, such as a catering truck or a temporary in-house
facility, for Tenant's use until such time that the full service
cafeteria is operating. Landlord agrees to complete the amenities
center no later than one hundred twenty (120) days after the
Commencement Date.
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. With respect to any
licenses or permits for which Tenant may apply relating to
Tenant's use of the Premises, 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. To maintain the Premises in neat order
and condition and to perform all routine and ordinary repairs
to the Premises and to any plumbing, heating, electrical,
ventilating and air-conditioning systems located within the
Premises and installed by Tenant such as are necessary to keep
them in good working order, appearance and condition, as the
case may require, reasonable use and wear thereof and damage
by fire or by other casualty only excepted; to keep all glass
in windows and doors of the Premises (except glass in the
exterior walls of the Building) whole and in good condition
with glass of the same quality as that injured or broken; and
to make as and when needed as a result of misuse by, or
neglect or improper conduct of Tenant or Tenant's servants,
employees, agents, invitees or licensees or otherwise, all
repairs necessary, which repairs and replacements shall be in
quality and class equal to the original work. (Landlord, upon
default of Tenant beyond the expiration of the applicable
notice and cure periods
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hereunder (except in an emergency), may elect, at the expense
of Tenant, to perform all such cleaning and maintenance and
to make any such repairs or to repair any damage or injury to
the Building or the Premises caused by moving property of
Tenant in or out of the Building, or by installation or
removal of furniture or other property, or by misuse by, or
neglect, or improper conduct of, Tenant or Tenant's servants,
employees, agents, contractors, customers, patrons, invitees,
or licensees.)
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 provided the same are triggered solely by virtue of
Tenant's unique and specific use of the Premises; 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
Tenant's unique and specific use of 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.
6.1.5 INDEMNIFICATION. To save harmless, exonerate and indemnify
Landlord, its agents (including, without limitation,
Xxxxxxxx's managing agent) and employees (such agents and
employees being referred to collectively as the "Landlord
Related Parties") 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 and the Property 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 the installation, operation and/or repair of Tenant's
rooftop antenna, or arising out of any delivery to or service
supplied to the Premises, or on account of or based upon
anything whatsoever done on the Premises, except if the same
was caused by the negligence, fault or misconduct of Landlord
or the Landlord Related Parties. In respect of all of the
foregoing, Tenant shall indemnify Landlord and the Landlord
Related Parties from and against all 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 or the Landlord Related
Parties by reason of any such claim, Tenant, upon 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
with reasonable prior notice (except in an emergency) 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.
6.1.7 PERSONAL PROPERTY AT TENANT'S RISK. All of the furnishings,
fixtures, equipment, effects and personal 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, or to the extent caused by Xxxxxxxx's negligence or
misconduct.
6.1.8 PAYMENT OF LANDLORD'S COST OF ENFORCEMENT. To pay on demand
Landlord's expenses, including reasonable attorneys' fees,
incurred in successfully enforcing any obligation of Tenant
under this Lease or in curing any default by Tenant under this
Lease as provided in Section 8.4. Landlord shall pay Tenant on
demand Xxxxxx's expenses, including reasonable attorney's
fees, incurred in successfully enforcing any obligation of
Landlord hereunder.
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; and to deliver to Landlord architectural plans
showing the Premises at yield up (which may be the initial
plans if Tenant has made no installations after the
Commencement Date); to remove such installations made by it as
Landlord may request (including computer and
telecommunications wiring and cabling, unless such wiring and
cabling is left in a useable condition, 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,
reasonable wear and tear and damage by casualty excepted.
Tenant, at the time of making any installation, may request in
writing Landlord's written permission to leave such
installation in the Premises at the expiration or earlier
termination of this Lease. Landlord shall, within ten (10)
days after receipt of Xxxxxx's request, notify Tenant in
writing as to whether such installation may or may not remain
in the Premises at the expiration or earlier termination of
this Lease. If Landlord so notifies Tenant that such
installation may remain in the Premises at the expiration or
earlier termination of this Lease, Landlord shall thereafter
not be permitted to request or require that such installation
be removed, disassembled or otherwise modified at the
expiration or earlier termination of the Lease, or otherwise.
Any property not removed in accordance with the provisions of
this subsection shall be deemed abandoned and, if Landlord so
elects, deemed to be Landlord's property,
15
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 beyond thirty (30) days after the expiration
of the term.
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 RULES AND REGULATIONS. To comply with the Rules and
Regulations set forth in Exhibit E, and with all reasonable
Rules and Regulations of general applicability to all tenants
of the Building hereafter made by Landlord, of which Xxxxxx
has been given notice provided the same do not derogate from
Xxxxxx's rights hereunder and further provided that Landlord
applies the same uniformly to all other tenants of the
Building. Landlord shall not be liable to Tenant for the
failure of other tenants of the Building to conform to such
Rules and Regulations.
6.1.11 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, in the form
attached hereto as Exhibit F, certifying all or any of the
following: that this Lease is unmodified and in full force and
effect and that 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, setting them forth in
reasonable detail), and the dates to which the Fixed Rent and
Additional Rent and other charges have been paid, whether or
not, to the best of Tenant's knowledge, Landlord is in default
in performance of any of the terms of this Lease, and such
further factual information with respect to the Lease or the
Premises as Landlord may reasonably request. Any such
statement delivered pursuant to this subsection 6.1.11 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-known financial
information as may be reasonably required by Landlord to be
provided to any mortgagee or prospective purchaser of the
Premises. Xxxxxxxx agrees to execute, acknowledge and deliver
to Tenant, upon not less than fifteen (15) days' prior written
request by Xxxxxx, a similar written statement certifying any
or all of the items specified hereinabove.
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 the application of this Lease
for the period and with respect to the space involved in the
case of a proposed subletting (in which case the Annual Fixed
Rent Rate, Monthly Fixed Rent Rate and Tenant's Percentage
shall be reduced in proportion to the reduction of the
Rentable Floor Area of Premises due to the removal of the
sublet premises) 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,
Xxxxxxxx's consent shall not be unreasonably withheld to an
assignment or to a subletting, 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 or 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 subletting during the
original term or any Extended Term of this Lease, such
assignment shall not include the rights granted to Tenant
under Section 2.3 hereinabove to extend the term, and such
sublease shall be for a term expiring no later than the
Expiration Date. Notwithstanding anything to the contrary
contained herein, Landlord shall have no right during the
original term to terminate this Lease in the case of a
proposed subletting of 15,000 square feet of Premises or less,
so long as such subletting is not for the balance of the
original term.
If for any assignment or sublease consented to by Landlord
hereunder Xxxxxx receives rent or other consideration
attributable to Tenant's interest under this Lease so assigned
or subleased, 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 part, in excess of such
rent fairly allocable to the part, 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
16
assignment or sublease, including without limitation
brokerage commissions, alterations and improvements to the
Premises in connection with any such sublease amortized on a
straight-line basis over the term of the sublease in question,
and reasonable attorneys' fees, to pay to Landlord as
additional rent fifty (50%) percent of any such excess arising
from each such payment of rent or other consideration received
by Tenant promptly after its receipt.
Any other provision of this Lease notwithstanding, Tenant
shall have the right, without Landlord's prior consent,
without any right of Landlord to terminate this Lease and
without any obligation to pay any such excess rent or other
consideration to Landlord, to assign this Lease and to
sublease all or any portion of the Premises to any person or
business organization controlling, controlled by, or under
common control with Tenant (an "Affiliate"), or in connection
with the consolidation or merger of or into Tenant or the sale
of all or substantially all of Tenant's assets to another
entity (a "Permitted Transferee"), provided, however, in the
case of an assignment or sublease to an Affiliate, Tenant
remains primarily liable hereunder, and provided, further, in
respect of an assignment or sublease to a Permitted
Transferee, (i) the resulting entity has a net worth equal to
or greater than the net worth of Tenant immediately prior to
such transfer, (ii) provided further that proof reasonably
satisfactory to Landlord of such net worth is delivered to
Landlord within thirty (30) days after such transfer, and
(iii) such entity agrees in a written instrument to assume all
of the obligations of Tenant hereunder.
6.2.2 NUISANCE. Not to injure, deface or otherwise harm the
Premises; nor commit any nuisance; nor permit in the Premises
any vending machine (except such as is used for the sale of
merchandise to employees of Tenant) or inflammable fluids or
chemicals (except such as are customarily used in connection
with standard office equipment); nor permit any cooking to
such extent as requires special exhaust venting; 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 invalidate any of Landlord's
insurance; nor conduct any auction, fire, "going out of
business" or bankruptcy sales.
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 (other than customary quantities of
ordinary office and cleaning supplies, which Tenant may
dispose of in accordance with all applicable laws), 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 by
Tenant and its agents, including, without limitation,
liability under any federal, state, or local laws,
requirements and regulations, or damage to any of the
aforesaid systems. 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 FLOOR LOAD; HEAVY EQUIPMENT. Not to place a load upon any
floor of the Premises exceeding the floor load per square foot
area which such floor was designed to carry and which is
allowed by law. Landlord reserves the right to prescribe the
weight and position of all heavy business machines and
equipment, including safes, which shall be placed so as to
distribute the weight. Business machines and mechanical
equipment which cause vibration or noise shall be placed and
maintained by Tenant at Tenant's expense in settings
sufficient to absorb and prevent vibration, noise and
annoyance. Tenant shall not move any safe, heavy machinery,
heavy equipment, freight or fixtures into or out of the
Premises except in such manner and at such time as Landlord
shall in each instance authorize.
6.2.5 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 nor the installation
or modification of any locks or security devices 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 (which consent and
approval, in the case of nonstructural interior installations
or alterations that do not impair the structural integrity of
the Building, reduce its value, or involve penetrations of the
roof or exterior walls, shall not be unreasonably withheld,
and which shall not be required for work costing in the
aggregate in any one instance not more than $5,000, provided,
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
and if necessary Landlord shall cooperate with Tenant in such
effort. 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. Without waiver of any of the
foregoing provisions of this Section 6.2.5 relating to the
performance of work and approval of plans, Tenant shall be
permitted, at its sole expense, to install one antenna on the
roof of the Building. The size and location of the antenna
must be approved by Landlord, which approval shall not be
unreasonably withheld, delayed or conditioned.
17
Not to grant a security interest in, or to lease, any fixtures
being installed in the Premises (including 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. Landlord hereby waives any lien rights which it may
otherwise have with respect to Xxxxxx's personal property and
agrees that such property shall be exempt from execution,
foreclosure, sale, levy, attachment, or distress for any rent
due or to become due.
6.2.6 ABANDONMENT. Not to abandon the Premises during the term.
6.2.7 SIGNS. Not without Landlord's prior written approval (which
shall not be unreasonably withheld or delayed) to paint or
place any signs or place any curtains, blinds, shades,
awnings, aerials, or the like, visible from outside the
Premises. Tenant may place an identification sign on the east
facade of the Building at Tenant's expense, in conformance
with Landlord's sign policy and subject to Landlord's prior
approval (which shall not be unreasonably withheld or
delayed). Such sign shall be maintained in good repair by
Tenant and shall conform to all applicable requirements of
public authorities. Xxxxxxxx agrees that any other tenant
signage on the Building shall not be larger than Tenant's
sign. If any tenant signage is provided on a pylon sign, then
Tenant will be allowed equal space on such pylon for its
identification signage.
6.2.8 PARKING AND STORAGE. Not to permit any storage of materials
outside of the Premises; nor to permit the use of the parking
areas for either temporary or permanent storage of trucks; nor
permit the use of the Premises for any use for which heavy
trucking 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 substantially destroyed or damaged by fire
or casualty to such a degree that repairs of such destruction or damage
shall, in Landlord's reasonable opinion, take more than one hundred
eighty (180) days, or by the action of any public authority, then this
Lease may be terminated at the election of Landlord. If any portion of
the Premises shall be so taken or if any such taking materially and
adversely restricts Tenant's access to the Premises or materially
reduces the number of parking spaces on the Property available for
Tenant's use, this Lease may be terminated at the election of Tenant.
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 either Landlord or Tenant to the other within sixty
(60) days after the date of the taking or casualty. In the event that
the Premises are destroyed or damaged by fire or casualty, and, in the
reasonable opinion of an independent architect or engineer selected by
Landlord, cannot be repaired or restored within one hundred eighty
(180) days from the date repair or restoration work would commence,
then this Lease may be terminated at the election of Landlord or
Tenant, which election shall be made by the giving of notice to the
other party within thirty (30) days after the date the opinion of the
architect or engineer is made available to the parties. Landlord shall
endeavor to cause such opinion to be delivered to Tenant within thirty
(30) days after any such fire or casualty.
7.2 RESTORATION. If neither Landlord nor Tenant elect to so terminate, 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 from the date of such
taking of casualty 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 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. If Landlord shall not have
restored the Premises within one hundred eighty (180) days from the
taking or casualty, Tenant shall have the right to terminate this Lease
by giving notice of such termination to Landlord, effective at the
expiration of thirty (30) days from the giving of such notice; provided
however, that such termination will be rendered ineffective if, prior
to the expiration of said 30-day period, Landlord shall have completed
such restoration.
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 awards made to Tenant for its personal property,
fixtures and moving expenses. Except for such awards 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
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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, or fail to maintain the insurance specified in subsection
4.2.4, and if such default or failure 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 Xxxxxx'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 Tenant's
other property, including said leasehold interest, and is not
discharged within thirty (30) 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 provision of any bankruptcy
law or code as then in force and effect and such petition is not
dismissed within (30) days thereafter, 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 sixty (60) days thereafter, then, and
in any of such cases, Landlord and the agents and servants of Landlord
lawfully may, in addition to and not in derogation of any remedies for
any preceding breach of covenant, immediately or at any time thereafter
without demand or notice and with process of law enter into and upon
the Premises or any part thereof in the name of the whole or mail a
notice of termination addressed to Tenant, and repossess the same as of
landlord's former estate and expel Tenant and those claiming through or
under Tenant and remove its and their effects without being deemed
guilty of any manner of trespass and without prejudice to any remedies
which might otherwise be used for arrears of rent or prior breach of
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 shall be otherwise terminated
for breach of any obligation of Tenant, Tenant covenants 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 preceding sentence, Tenant shall be credited 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 repossession costs,
brokerage commissions, fees for legal services and reasonably necessary
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. However, Landlord shall use its
reasonable efforts to mitigate its damages hereunder. In lieu of full
recovery by Landlord of the sums payable under the foregoing provisions
of this Section 8.2 (except for the amount of any rent of any kind
accrued and unpaid at the time of termination), Landlord may by written
notice to Tenant, elect to recover, and Tenant shall thereupon pay
forthwith to Landlord, as compensation, an amount equal to the
discounted value (calculated using a discount factor equal to the then
Prime Rate as published in the Wall Street Journal), 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.
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 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. Except as otherwise provided herein, any and all
rights and remedies which Landlord may have under this Lease, and at
law and equity, shall be cumulative and shall not be deemed
inconsistent with each other, and any two or more of all such rights
and remedies may be exercised at the same time 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 in emergency situations and after the
expiration of all applicable notice and grace periods hereunder in all
other cases, any default by Tenant under this Lease; and whenever
Landlord so elects, all costs and expenses incurred by Landlord,
including reasonable attorneys' fees, in curing a default
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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 Xxxxxx.
8.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by Landlord to
any act or omission which otherwise would be a breach of any covenant
or condition herein, 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 Landlord or Tenant to seek
redress for violation of, or to insist upon the strict performance of,
any covenant or condition of this Lease by the other party 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 of any
breach of any agreement or duty shall be construed as a waiver or
consent to or of any other breach of the same or any other agreement or
duty.
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 such installment 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 for the purpose of foreclosure. Upon entry for the
purpose of foreclosure, 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 Property.
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,
however, that no such subordination shall be effective unless Tenant
has received an agreement (a "Non-Disturbance Agreement"), in
recordable form, from each holder of any such mortgage and/or the
lessor under any ground lease or superior lease under which Landlord
derives its interest in the Premises that, in the event of that such
holder or lessor (or their successor or assignees, including any
purchaser at a foreclosure sale or the grantee under any deed in lieu
of foreclosure) succeeds to Landlord's title to the Premises or
interest under this Lease, such holder or lessor shall recognize
Xxxxxx's rights, not disturb Tenant's occupancy, and assume Landlord's
obligations, under this Lease. 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 a
so-called non-disturbance agreement for Xxxxxx's benefit from its
present lender on such lender's usual and customary form within sixty
(60) days after the Date of this Lease.
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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, with a copy to Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Real Estate Department, or such other address 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 as Landlord shall have last designated by notice in writing to
Tenant. Any notice shall be deemed duly given three business days after
being mailed to such address postage prepaid, by registered or
certified mail, return receipt requested, or when delivered to such
address by nationally recognized overnight courier service or by hand.
10.2 QUIET ENJOYMENT. Xxxxxxxx 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.
10.3 LEASE NOT TO BE RECORDED. Xxxxxx 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 any proceeds of insurance related to the
Property, 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.
10.7 BROKERAGE. Tenant warrants and represents that it has dealt with no
broker in connection with the consummation of this Lease, other than
XxXxxx & Xxxx, XX Xxxxxxx Xxxxx and Xxxxxxxx Company, and in the event
of any brokerage claims, other than by Xxxxxxxx Company or XxXxxx &
Xxxx, or CB Xxxxxxx Xxxxx, against Landlord predicated upon prior
dealings with Xxxxxx, Xxxxxx agrees to defend the same and indemnify
and hold Landlord harmless against any such claim. Landlord warrants
and represents that it has dealt with no broker in connection with the
consummation of this Lease, other than XxXxxx & Xxxx, XX Xxxxxxx Xxxxx
and Xxxxxxxx Company, and in the event of any brokerage claims, other
than by Xxxxxxxx Company, XxXxxx & Xxxx, or CB Xxxxxxx Xxxxx, against
Tenant predicated upon prior dealings with Landlord, Xxxxxxxx agrees to
defend the same and indemnify and hold Tenant 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.
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10.9 RIGHT OF FIRST OFFER. If additional space (the "RFO Space") on the
first floor of the Building becomes available at any time during the
original term of this Lease, prior to marketing such space, other than
to the then tenant thereof, Landlord shall first offer to Tenant the
opportunity to lease such space by written notice to Tenant, provided
that the initial Tenant named herein, or an Affiliate or a Permitted
Transferee occupies the Premises and is not in default beyond any
applicable grace period at such time and has not previously been in
monetary default of its obligations under this Lease beyond any
applicable grace period during the two (2) years prior to the date on
which Landlord offers the RFO Space to Tenant. The offering terms shall
be the same as Landlord would offer to the general market, except that
(i) the term in respect of the RFO Space shall be for seven (7) years,
and (ii) the Annual Fixed Rent Rate in respect of the RFO Space shall
be the market rate, which shall be determined in the manner set forth
in Section 2.3 of this Lease and which shall not be less than the
Annual Fixed Rent Rate in effect for the original Premises prior to the
commencement date for the RFO Space.
Tenant shall have twenty (20) days from its receipt of such offer to
accept or reject such offer. If Tenant rejects such offer, Landlord
will then be free to offer such space to the general market. If Tenant
accepts such offer, Tenant shall either accept Landlord's designation
of the market rate for the RFO Space or propose its designation of the
market rate by giving notice thereof to Landlord concurrently with
Xxxxxx's notice of acceptance of the offer for the RFO Space. If Tenant
proposes its designation of the market rate, then Landlord and Tenant
shall attempt to agree upon a market rate. If the parties are unable to
reach agreement within thirty (30) days following Tenant's designation,
then the market rate shall be submitted to arbitration by either party
in the manner set forth in the 3rd paragraph of Section 2.3 of the
Lease. For the purposes of this Section 10.9, all references in Section
2.3 to the "Extended Term" shall be deemed to mean the term in respect
of the RFO Space, or the extension of the term for the original
Premises, as the case may be.
Once the parties have agreed on the Annual Fixed Rent Rate for the RFO
Space, Landlord and Tenant shall both negotiate in good faith an
amendment to this Lease with respect to such space, acceptable to both
parties, which amendment shall include, among other things, a provision
whereby the original term of this Lease is extended by the number of
years necessary to make the original term coterminous with the term for
the RFO Space. The Annual Fixed Rent Rate for the original Premises
during any such extension of the term of this Lease shall be the market
rate for such original Premises, which shall be determined in the
manner set forth in said Section 2.3 as if such extension were for an
Extended Term. It is expressly understood and agreed that the second
paragraph of said Section 2.3 shall have no force or effect nor
applicability to the RFO Space and any extension of the term for the
original Premises.
WITNESS the execution hereof under seal on the day and year first above
written:
Landlord:
10 PRESIDENTIAL WAY ASSOCIATES, LLC
By: Nordic Holdings II LLC, its sole Manager
By: /s/ XXXXX X. XXXXXXXX
------------------------------------------
Xxxxx X. Xxxxxxxx, its manager
By: /s/ XXXXX XXXXXXXXX
------------------------------------------
Xxxxx Xxxxxxxxx, its manager
Tenant:
OAK TECHNOLOGY, INC.
By: /s/ XXXX X. XXXXXXX
------------------------------------------
Xxxx X. Xxxxxxx, Vice President Finance and CFO
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