1
EXHIBIT 10.5
OFFICE LEASE
by and between
NAGOG PARK INVESTORS, L.L.C.
("Landlord")
and
ANDOVER ADVANCED TECHNOLOGIES, INC.
(d/b/a Andover Net)
("Tenant")
Dated: March ___, 1999
2
TABLE OF CONTENTS
Page
ARTICLE I REFERENCE DATA.........................................................1
1.1 Commencement Date..............................................1
1.2 Building.......................................................1
1.3 Leased Premises................................................1
1.4 Land...........................................................1
1.5 Property.......................................................1
1.6 Landlord's Mailing Address.....................................2
1.7 Tenant's Mailing Address.......................................2
1.8 Broker.........................................................2
1.9 Tenant's Prorata Share.........................................2
1.10 Security Deposit...............................................2
1.11 Guarantor......................................................2
1.12 Leased Premises Rentable Area..................................2
1.13 Permitted Use..................................................2
1.14 Lease Year.....................................................2
1.15 Base Year Taxes................................................2
1.16 Base Year Operating Costs......................................3
ARTICLE II LEASE TERM; EXTENSIONS................................................3
2.1 Term...........................................................3
2.2 Extension Rights...............................................3
ARTICLE III RENT.................................................................4
3.1 Base Rent......................................................4
3.2 Additional Rent................................................5
3.3 Manner of Payment of Additional Rent...........................6
ARTICLE IV SECURITY DEPOSIT......................................................6
4.1 Handling of Security Deposit...................................6
4.2 Restoration of Security Deposit................................6
ARTICLE V UTILITIES AND SERVICES ................................................7
5.1 Electricity, Heating, Ventilation, Air Conditioning............7
5.2 Other Utilities................................................7
5.3 Tenant's Obligations Regarding Additional Utilities............7
5.4 Landlord's Right to Install Other Utilities....................7
ii
3
ARTICLE VI USE OF LEASED PREMISES................................................8
6.1 Use of Leased Premises.........................................8
6.2 Compliance with Laws...........................................8
6.3 Compliance with Americans with Disabilities Act................8
6.4 No Nuisance or Other Harmful or Disruptive Activity............8
6.5 Compliance with Fire Insurance Requirements....................9
6.6 Hazardous Materials............................................9
ARTICLE VII MAINTENANCE; REPAIRS................................................10
7.1 Tenant's Obligations..........................................10
7.2 Landlord's Obligations........................................11
7.3 Removal of Snow, Ice and Debris...............................11
7.4 Tenant's Failure to Make Repairs..............................11
ARTICLE VIII ALTERATIONS........................................................11
8.1 Alterations or Additions by Tenant............................11
8.2 Alterations or Additions by Landlord..........................12
ARTICLE IX ASSIGNMENT; SUBLEASING...............................................12
Landlord's Consent.....................................................12
ARTICLE X SUBORDINATION; ESTOPPEL CERTIFICATES..................................13
10.1 Subordination.................................................13
10.2 Estoppel Certificates.........................................14
ARTICLE XI INDEMNIFICATION AND WAIVER...........................................14
11.1 Damage to Property............................................14
11.2 Indemnity Against Liability...................................15
11.3 Waiver of Claims..............................................15
ARTICLE XII INSURANCE...........................................................16
12.1 Insurance to be Maintained by Tenant..........................16
12.2 Other Insurance Requirements..................................16
12.3 Waiver of Subrogation.........................................16
12.4 Insurance to be Maintained by Landlord........................17
ARTICLE XIII FIRE; CASUALTY; EMINENT DOMAIN.....................................17
13.1 Damage by Casualty............................................17
13.2 Tenant's Option to Terminate in the Event of a Taking.........18
13.3 Landlord's Option to Terminate in the Event of a Taking.......18
13.4 Miscellaneous Provisions Regarding Casualty or Taking.........19
ARTICLE XIV DEFAULT; REMEDIES; BANKRUPTCY.......................................20
14.1 Events of Default.............................................20
iii
4
14.2 Landlord's Remedies...........................................21
14.3 Landlord's Cure Rights........................................23
14.4 Tenant's Obligation to Reimburse Landlord.....................23
14.5 No Waiver.....................................................23
14.6 Acceptance of Late Payments...................................23
14.7 Interest on Late Payments.....................................23
14.8 Remedies Cumulative...........................................23
14.9 Landlord's Rights in Tenant's Bankruptcy......................24
14.10 Landlord's Default............................................24
ARTICLE XV SURRENDER; HOLDING OVER..............................................25
15.1 Surrender of Leased Premises..................................25
15.2 Holding Over..................................................25
ARTICLE XVI LANDLORD'S LIABILITY................................................26
16.1 Limited Recourse..............................................26
16.2 Interruption of Services and Utilities........................26
16.3 No Consequential Damages......................................26
16.4 Liability after Conveyance of Property........................26
ARTICLE XVII MISCELLANEOUS PROVISIONS...........................................27
17.1 Governing Law.................................................27
17.2 Partial Invalidity............................................27
17.3 Captions......................................................27
17.4 Successors and Assigns........................................27
17.5 Recording of Lease............................................27
17.6 Entire Agreement..............................................27
17.7 Amendments....................................................27
17.8 Quiet Enjoyment...............................................28
17.9 No Partnership................................................28
17.10 Time of Essence...............................................28
17.11 Brokerage.....................................................28
17.12 Rules and Regulations.........................................28
17.13 Signs.........................................................28
17.14 Landlord's Access and Tenant's Access; Security...............29
17.15 Notices.......................................................29
17.16 No Merger.....................................................29
17.17 No Offer......................................................29
17.18 Waiver of Jury Trial..........................................29
17.19 Financial Reports.............................................30
17.20 Landlord's Fees...............................................30
17.21 Telecommunications............................................30
17.22 Confidentiality...............................................30
iv
5
17.23 Notice to Landlord's Mortgagee................................30
17.24 Condition of Leased Premises..................................31
17.25 Landlord's Work...............................................31
17.26 Tenant Improvements...........................................32
List of Exhibits:
Exhibit FP - Floor Plan of Leased Premises
Exhibit LD - Legal Description of Property
Exhibit OC - Operating Costs
Exhibit RR - Rules and Regulations
Exhibit LW - Landlord's Work
Exhibit LW-1 - Landlord's Specifications
Exhibit LW-2 - Landlord's Plans
Exhibit TI - Tenant Improvements
Exhibit J - Janitorial Services
Exhibit TR - Title Restrictions
v
6
OFFICE LEASE
THIS OFFICE LEASE (this "Lease") is made as of the ____ day of March,
1999, by and between Nagog Park Investors, L.L.C., having a business address c/o
Xxxxxxx-Xxxxxx Partners, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000
("Landlord") and Andover Advanced Technologies, Inc. (d/b/a Andover Net), a
Massachusetts corporation, having a business address
at 000 Xxxxx Xxxx, Xxxxx, Xxxxxxxxxxxxx 00000 ("Tenant").
Subject to the covenants, conditions and other provisions of this
Lease, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
the Leased Premises (as defined below), together with the non-exclusive right to
use in common with others the Common Facilities (as defined below) and the right
to use in common with other tenants, forty-one (41) unassigned parking spaces on
the Land.
ARTICLE I
REFERENCE DATA
Each of the capitalized terms used in this Lease shall have the meaning
set forth opposite such term below:
1.1 COMMENCEMENT DATE: May 15, 1999
1.2 BUILDING: The building located at 00 Xxxxx Xxxx,
Xxxxx, Xxxxxxxxxxxxx, containing
approximately one hundred eighteen
thousand three hundred nine (118,309)
rentable square feet of floor space.
1.3 LEASED PREMISES: A portion of the Building containing
approximately eleven thousand seven
hundred forty (11,740) rentable square
feet of floor space, located within the
Building on the second (2nd) floor as
shown on EXHIBIT FP attached hereto.
1.4 LAND: The land on which the Building is
located, as described in the legal
description attached hereto as
EXHIBIT LD.
1
7
1.5 PROPERTY: The Land, the Building, the Common
Facilities and the other common areas
and the other improvements
1.6 LANDLORD'S MAILING ADDRESS: 000 Xxxxx Xxxxxx Xxxxxx, Xxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxxxx
1.7 TENANT'S MAILING ADDRESS: 00 Xxxxx Xxxx
Xxxxx, XX 00000
Attn: President/CEO
1.8 BROKER: Xxxxx & Xxxxx Company
1.9 TENANT'S PRORATA SHARE: Nine and nine tenths percent (9.9%)
1.10 SECURITY DEPOSIT: Thirty-Five Thousand Dollars
($35,000.00)
1.11 GUARANTOR: N/A
1.12 LEASED PREMISES RENTABLE AREA: Eleven thousand seven hundred forty
(11,740) rentable square feet
1.13 PERMITTED USE: General office but only to the extent
permitted by applicable zoning, and no
other purpose.
1.14 LEASE YEAR: A period of twelve (12) consecutive
calendar months commencing on the
Commencement Date (or the first day of
the first calendar month after the
Commencement Date occurs if the
Commencement Date is any day other than
the first day of a month), and then
each consecutive twelve (12) month
period occurring thereafter during the
Term of this Lease.
1.15 BASE YEAR TAXES: Total Taxes (as defined below) paid
with respect to the Property for the
period from July 1, 1999 through June
30, 2000 (i.e., fiscal tax year 2000);
provided, however, if at the time the
Building reaches 95% occupancy, it can
be reasonably determined that the
assessment of the Property has been
increased to reflect an increase in the
occupancy of the Building over the
occupancy level that existed on the
relevant assessment date for fiscal
year 2000, then the Base Year Taxes
shall be calculated to equal the
product of
2
8
(a) the new, higher assessed value
which reflects such 95% occupancy (as
distinct from any increased valuation
which is part of a general increased
valuation of all the property within
the Town of Acton) times (b) the tax
rate in effect for the Property for
fiscal year 2000.
1.16 BASE YEAR OPERATING COSTS: Total Operating Costs (as defined
below) paid with respect to the
Property for the period from January 1,
1999 through and including December 31,
1999; however, if during such period
average occupancy of the Building was
less than ninety-five (95%), then Base
Year Operating Costs shall be adjusted
as reasonably appropriate to reflect
the Operating Costs which would have
been incurred had average occupancy of
the Building for such period been
ninety-five percent (95%).
1.17 COMMON FACILITIES: The driveways and walkways necessary
for access to the Building and the
parking areas on the Land; the loading
docks and loading areas serving the
Building; the cafeteria and shower
facilities on the first floor of the
Building; the entrances, lobbies,
stairways, freight and passenger
elevators, and corridors necessary for
access to said loading docks, cafeteria
and shower facilities and the Leased
Premises; rest rooms on the same floor
as the Leased Premises; and the
heating, ventilating, air conditioning,
plumbing, electrical, security,
emergency and other mechanical systems
and equipment serving the Leased
Premises in common with other portions
of the Building.
ARTICLE II
LEASE TERM; EXTENSIONS
2.1 TERM. The term of this Lease shall be for a period of five (5)
years commencing on the Commencement Date and ending on the last day of the
month immediately prior to the month in which the fifth (5th) anniversary of the
Commencement Date occurs (the "Term"). Landlord shall deliver the Leased
Premises to Tenant, free of all tenants and occupants, on the Commencement Date.
3
9
2.2 EXTENSION RIGHTS. Provided there is no uncured Event of
Default, or existing facts or circumstance which, with the giving of notice or
passage of time or both, could become an Event of Default, both at the time of
Tenant's exercise of its right to extend and at the commencement of the relevant
Option Term (defined below), Tenant shall have the right to extend the Term for
one (1) five-year extension period (the "Option Term") upon the following terms
and conditions:
2.2.1 Tenant must notify Landlord in writing of its
election to extend the Term for the Option Term on or before one hundred eighty
(180) days prior to the expiration of the Term.
2.2.2 The annual Base Rent for the Option Term shall be
equal to ninety-five percent (95%) of the Fair Market Rental Value as determined
pursuant to EXHIBIT FMRV attached hereto as of the last day of the original Term
with respect to the Base Rent due during the Option Term; provided that such
Fair Market Rental Value shall not be less than Two Hundred Thirty-Four Thousand
and 00/100 Dollars ($234,000.00) per year.
2.2.3 Additional Rent (defined below) due for Real Estate
Taxes (defined below), Operating Costs (defined below), the costs of utilities
and other sums due under this Lease shall be payable during the Option Term in
the same manner as herein provided for the original Term.
2.2.4 All other provisions of this Lease shall also remain
in effect during the Option Term except the right to extend as set forth in this
Section 2.2, it being agreed that there are no further rights of extension after
the first Option Term. Unless expressly stated herein to the contrary, all
references in this Lease to the "Term" shall include the Option Term when and if
Landlord receives Tenant's notice of election to extend the Term as herein
provided.
4
10
ARTICLE III
RENT
3.1 BASE RENT. Tenant shall pay to Landlord annual rent equal to
(i) Two Hundred Five Thousand Four Hundred Fifty and 00/100 Dollars
($205,450.00) per year, payable in equal monthly installments of Seventeen
Thousand One Hundred Twenty and 83/100 Dollars ($17,120.83) each from May 1,
1999 through April 30, 2002, and Two Hundred Twenty-Eight Thousand Nine Hundred
Thirty and 00/100 Dollars ($228,930.00) per year, payable in equal monthly
installments of Nineteen Thousand Seventy-Seven and 75/100 Dollars ($19,077.75)
each from May 1, 2002 through April 30, 2004 ("Base Rent"), AND (ii) an amount
equal to the cost of the electricity consumed by Tenant at the Building
determined by a check meter (the "Electricity Rent"). Landlord shall pay for the
cost of such check meter. Payments of Base Rent shall be made by Tenant at the
Landlord's Mailing Address commencing on May 1, 1999 and continuing thereafter
on the first day of each month during the Term in advance, without offset,
deduction, demand, or abatement (except as otherwise expressly specified in this
Lease) whatsoever, in lawful money of the United States. The Base Rent payment
for any fractional month at the commencement, termination or expiration of the
Term will be prorated accordingly. The amount of Base Rent payable during the
Option Term shall be determined in accordance with Section 2.2.2 above.
Electricity Rent shall be payable in monthly installments in arrears within
thirty (30) days after Tenant receives an invoice from Landlord stating the
amount of electricity consumed by Tenant during the previous month according to
said check meter and the actual cost to Landlord of such electricity.
3.2 ADDITIONAL RENT. In addition to the Base Rent and Electricity
Rent, Tenant shall pay to Landlord the following amounts as additional rent
("Additional Rent") hereunder:
3.2.1 TAXES. Commencing July 1, 2000, Tenant will pay to
Landlord Tenant's Prorata Share of the "Increased Taxes" (defined below) for
each fiscal tax year or portion thereof included within the Term. "Taxes" shall
mean the total of all real estate taxes, charges, and assessments, extraordinary
as well as ordinary, and any payments in lieu of such real estate taxes, levied,
imposed, or assessed for a particular fiscal year during the Term of this Lease
by governmental authorities upon or attributable to the Property, or to any and
all personalty owned by Landlord installed in or about the same by Landlord. If
due to a future change in the method of taxation any franchise, income or profit
tax shall be levied against Landlord in substitution for or in lieu of any tax
which would otherwise constitute a real estate tax or payment in lieu of real
estate tax, or if a specific tax on rentals from the Property shall be levied
against Landlord, such franchise, rental, or income tax shall be deemed to
constitute "Taxes" for the purposes hereof. Notwithstanding any other provision
of this Lease, "Taxes" shall not include any tax on Landlord's net income.
"Increased Taxes" shall mean the amount, if any, by which total Taxes paid for
any fiscal tax year included within the Term exceed Base Year Taxes. If Landlord
obtains an abatement of any such Taxes, a proportionate share of such abatement,
less the reasonable fees and costs incurred in obtaining the same, shall be
refunded to Tenant. Taxes shall be deemed to be paid over the maximum time
permitted under law. If the Term includes only a portion of any fiscal tax year,
Tenant's Prorata Share of Increased Taxes for such fiscal tax year shall be
prorated according to the fraction calculated by dividing (a) the total number
of days in such fiscal tax year included within the Term by (b) 365. Tenant
shall be fully responsible for any tax assessment or other charge levied by any
governmental authority against any personalty placed upon the Property by
Tenant.
5
11
3.2.2 OPERATING COSTS. Commencing January 1, 2000, Tenant
shall pay to Landlord Tenant's Prorata Share of the Increased Operating Costs
(defined below) for each calendar year. For the purposes of this Lease, the term
"Operating Costs" shall mean the items listed in EXHIBIT OC attached hereto and
made a part hereof. "Increased Operating Costs" shall mean the amount, if any,
by which total Operating Costs for any calendar year included within the Term
exceed Base Year Operating Costs. If during any calendar year less than
ninety-five percent (95%) of the rentable area of the Building is occupied, then
Operating Costs for such calendar year shall be adjusted reasonably to reflect
the Operating Costs which would have been incurred if at least ninety-five
percent (95%) of the rental area of the Building had been occupied during such
calendar year. If the Term includes only a portion of a calendar year, Tenant's
Prorata Share of Increased Operating Costs for such calendar year shall be
prorated according to the fraction calculated by dividing (a) the total number
of days in such calendar year included within the Term by (b) 365.
3.3 MANNER OF PAYMENT OF ADDITIONAL RENT. Landlord shall
reasonably estimate Base Year Operating Costs, Increased Taxes, Increased
Operating Costs, and Tenant's Prorata Share of such Increased Taxes and such
Increased Operating Costs for the Lease Year in question and commencing January
1, 2000, Tenant shall pay with each monthly installment of Base Rent during that
Lease Year, in advance as Additional Rent, an amount equal to one-twelfth
(1/12th) of the total of Tenant's Prorata Share of such estimated Increased
Taxes and Increased Operating Costs. On or before April 1 of each calendar year,
Landlord shall deliver to Tenant a reasonably detailed written statement of the
actual Taxes and Operating Costs for the preceding calendar year, together with
reasonable supporting documentation to permit Tenant to confirm the accuracy of
all charges and calculations. If total payments made by Tenant based upon such
estimates exceed Tenant's Prorata Share of actual Increased Taxes and Increased
Operating Costs as finally determined for the Lease Year in question, then any
overpayment shall be credited in full to such payments next coming due under
this Lease. If total payments based upon such estimates are less than the actual
amounts required to pay in full Tenant's Prorata Share of actual Increased Taxes
and Increased Operating Costs for the year in question, then Tenant shall pay to
Landlord the full amount of the deficiency within thirty (30) days after
receiving written notice from Landlord of the amount of such deficiency. The
Additional Rent payment for any fractional month at the commencement,
termination or expiration of the Term shall be prorated accordingly. Payments of
Additional Rent shall be made by Tenant without offset, deduction, demand, or
abatement whatsoever (except as otherwise expressly provided in this Lease), in
lawful money of the United States.
ARTICLE IV
SECURITY DEPOSIT
4.1 HANDLING OF SECURITY DEPOSIT. Upon the execution of this
Lease, Tenant shall pay to Landlord the Security Deposit in the amount specified
in Section 1.10 above, which shall be held as security for Tenant's performance
of Tenant's obligations under this Lease (and may be applied
6
12
by Landlord to defray the cost or expense to Landlord (including, without
limitation, payment of any unpaid Rent) arising out of any Event of Default by
Tenant hereunder) and refunded to Tenant at the end of the Lease Term subject to
Tenant's satisfactory compliance with the conditions and obligations of this
Lease. Landlord may co-mingle the Security Deposit with Landlord's other funds
and shall have no obligation to pay any interest with respect to the Security
Deposit. Further, Landlord shall have the obligation to turn over the Security
Deposit to any grantee of Landlord's interest in the Property, excluding any
mortgagee; and if so turned over, Tenant agrees to look solely to such grantee
for proper application of the Security Deposit. In the event the Security
Deposit is so turned over, Landlord shall provide written notice of such
transfer to Tenant stating the amount of money so turned over and naming the
recipient of such Security Deposit.
4.2 RESTORATION OF SECURITY DEPOSIT. In the event Landlord
applies any portion of the Security Deposit in accordance with Section 4.1 above
(excluding transfers of the Security Deposit to any grantee of Landlord's
interest in the Property), Tenant shall immediately make payment to Landlord of
the amount necessary to restore the Security Deposit to the full dollar amount
set forth in Section 1.10.
ARTICLE V
UTILITIES AND SERVICES
5.1 ELECTRICITY, HEATING, VENTILATION, AIR CONDITIONING. Tenant
shall pay directly to Landlord monthly (as set forth in Section 3.1) Tenant's
share of charges for electricity consumed in the Leased Premises as established
by the so-called check meter or sub-meter (the "Sub- meter") between the main
meter (the "Main Meter") for the Building and the Leased Premises which monitors
electricity usage at the Leased Premises. Tenant's share shall equal the total
monthly electric xxxx based upon the usage reflected by the Main Meter, times a
fraction of which the denominator is the total kilowatt hours shown on the Main
Meter for the month in question and the numerator of which is the total kilowatt
hours shown on the Sub-meter for the month in question. During the Term,
Landlord shall provide heating, ventilation and air conditioning ("HVAC") to the
Leased Premises between the hours of 8:00 a.m. to 6:00 p.m. Monday through
Friday and from 8:00 a.m. to 1:00 p.m. on Saturday, but excluding holidays (the
"Normal Hours HVAC"). Upon Tenant's request, which request must be made to
Landlord's property manager by 3:00 pm on the preceding business day, Landlord
shall provide HVAC beyond Normal Hours HVAC at a cost of fifty dollars ($50) per
hour.
5.2 OTHER UTILITIES. For any utility service provided to the
Leased Premises other than electricity, water or sewer, Tenant must make
arrangements directly with the provider of such utility service for bills to be
rendered directly to Tenant, and Tenant shall have full responsibility to pay
all such bills.
5.3 TENANT'S OBLIGATIONS REGARDING ADDITIONAL UTILITIES. Landlord
shall have no obligation to provide utilities or equipment other than the
utilities and equipment within the Leased
7
13
Premises as of the Commencement Date of this Lease. In the event Tenant's use of
the Leased Premises requires additional utilities or equipment or utilities of
greater capacity, the installation and maintenance thereof shall be Tenant's
sole obligation and shall be performed at Tenant's sole cost and expense,
provided that such installation shall be subject to the prior written consent of
Landlord which shall not be unreasonably withheld, delayed or conditioned.
5.4 LANDLORD'S RIGHT TO INSTALL OTHER UTILITIES. Landlord shall be
entitled to install in or through the Leased Premises (above drop ceilings) and
the Property and repair, maintain, and replace pipes, conduits, wires, and other
utility lines serving other tenants or portions of the Property provided said
installation, repair, maintenance or replacements do not unreasonably interfere
with Tenant's use of the Leased Premises, other than a reasonable time necessary
to complete such installation, repair, maintenance, or replacement. Landlord
shall provide at least forty-eight (48) hours advance written notice to Tenant
of any such work to be performed in or adjacent to the Leased Premises that may
reasonably be calculated to have an effect on the Tenant's use of the Leased
Premises.
5.5 JANITORIAL SERVICES. Landlord shall provide janitorial
services to the Leased Premises according to the schedule attached as EXHIBIT J.
The cost of such services shall be included in Operating Costs.
ARTICLE VI
USE OF LEASED PREMISES
6.1 USE OF LEASED PREMISES. Tenant acknowledges that no trade or
occupation shall be conducted in the Leased Premises or use made thereof other
than the Permitted Use set forth in Section 1.13 above.
6.2 COMPLIANCE WITH LAWS. Tenant, at its sole expense, shall
comply with all laws, rules, orders and regulations of federal, state, county,
and municipal authorities (collectively, "Governmental Regulations"), and with
any direction of any public officers pursuant to law, which impose any duty upon
Landlord or Tenant with respect to the Leased Premises. Conversely, Landlord, at
its sole expense, shall comply with all Governmental Regulations and any such
directions which impose any duty with respect to the portions of the Building or
Property outside of the Leased Premises, except to the extent that such duty is
triggered by the specific use for which Tenant is utilizing the Leased Premises,
in which event the provisions of the prior sentence shall govern. Tenant shall
also comply with all covenants, conditions and restrictions of record as
specified herein on EXHIBIT TR as of the execution of this Lease applicable to
Tenant's use or occupancy of the Property.
6.3 COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT. Without in
any way limiting the generality of the obligations set forth in Section 6.2
above, Tenant also shall comply at Tenant's sole cost and expense with all
applicable provisions of the Americans with Disabilities Act ("ADA") and all of
the regulations promulgated thereunder as they apply to Tenant's use and
occupancy of
8
14
the Leased Premises and the operation of Tenant's business therein and shall be
fully responsible for any modifications or alterations to the Leased Premises or
the common areas of the Property necessary to meet requirements of the ADA which
have become applicable to the Leased Premises or the Property as a result of
Tenant's operation of its business within the Leased Premises. Landlord shall be
responsible for compliance of the Building or Property outside of the Leased
Premises with all provisions of the ADA, except to the extent that such duty is
triggered by the specific use for which Tenant is utilizing the Leased Premises,
in which event and to which extent the provisions of the prior sentence shall
govern (unless Tenant's use of the Leased Premises is solely a "general office
use," in which case such duty shall be Landlord's duty).
6.4 NO NUISANCE OR OTHER HARMFUL OR DISRUPTIVE ACTIVITY. Tenant
shall not perform any acts or carry on any business or practices which may (a)
injure or overburden any part of the Leased Premises, the Property or common
areas, including, without limitation, any of the electrical or mechanical
systems of the Property, (b) violate any certificate of occupancy affecting the
same, (c) constitute a public or private nuisance or a menace to other tenants
on the Property, (d) produce undue noise, (e) create obnoxious fumes or other
odors or (f) otherwise cause unreasonable interference with other tenants or
occupants of the Property.
6.5 COMPLIANCE WITH FIRE INSURANCE REQUIREMENTS. Tenant shall not
permit any use of the Leased Premises which will make voidable any insurance on
the Property or on the contents of the Building or which shall be contrary to
any law or regulation from time to time established by the New England Fire
Insurance Rating Association or any similar body succeeding to its powers. If
Landlord gives notice and Tenant persists in any use of the Leased Premises
which will make voidable any insurance on the Property or on the contents of the
Building, then in addition to any other remedies Landlord may have, Tenant shall
on demand reimburse Landlord, and all other tenants to the extent of insurance
carried directly by them, all extra insurance premiums caused in any way by
Tenant's use of the Leased Premises, including, without limitation, the volume
of electricity and electrical equipment used by Tenant.
6.6 HAZARDOUS MATERIALS. Tenant shall not permit the emission,
release, threat of release or other escape of any Hazardous Materials (defined
below) so as to adversely affect in any manner, even temporarily, any element or
part of the Leased Premises or the Property. Tenant shall not use, generate,
store or dispose of Hazardous Materials in or about the Leased Premises (except
for ordinary office and cleaning supplies which are stored, used and disposed of
in compliance with all applicable Environmental Laws (defined below)), or dump,
flush or in any way introduce Hazardous Materials (other than common cleaning
products which are being disposed of in compliance with all applicable
Environmental Laws) into sewage or other waste disposal systems serving the
Leased Premises (nor shall Tenant permit its employees, agents or contractors to
take any of the foregoing actions).
Tenant will indemnify, defend and hold Landlord harmless from and
against all claims, loss, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements, diminution in the value of the
Leased Premises or the Property, costs incurred in connection with
9
15
any investigation of site conditions or any clean-up or remedial work required
by any federal, state or local governmental agency) to the extent incurred as a
result of any contamination of the Leased Premises or any other portion of the
Property with, or any release or threat of release of, Hazardous Materials by
Tenant or Tenant's contractors, licensees, invitees, agents, servants or
employees (collectively, the "Tenant Group"). Without limiting the foregoing, if
the presence of any Hazardous Materials in, on or under the Leased Premises or
the Property caused or permitted by any of the Tenant Group results in any
contamination of the Leased Premises or the Property or any other property,
Tenant shall promptly take all actions at its sole expense as are necessary to
return the Leased Premises, the Property and such other property to the
condition existing prior to the introduction of any such Hazardous Material by
such member(s) of the Tenant Group, provided that Landlord's approval of such
action shall first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on Landlord, the Leased Premises or the Property.
Landlord shall indemnify, defend and hold harmless Tenant from and against all
claims, loss, costs and expenses (including without limitation reasonable
attorney's fees and disbursements, diminution in the value of the Leased
Premises, costs incurred in the investigation of site conditions or any clean-up
or remedial work required by any federal, state or local governmental agency) to
the extent incurred as a result of any contamination of the Property with, or
any release of, Hazardous Material existing or arising prior to the date of this
Lease or arising after the date of this Lease as a result of the actions or
negligence of Landlord or its agents, employees or contractors, but neither
Landlord nor Tenant shall be responsible for the actions or negligence of other
tenants.
The obligations of Tenant and Landlord in this Section shall survive
the expiration or earlier termination of this Lease and any transfer of title to
the Leased Premises, whether by sale, foreclosure, deed in lieu of foreclosure
or otherwise.
For purposes of this Lease, "Hazardous Materials" means, collectively,
any animal wastes, medical waste, blood, biohazardous materials, hazardous
waste, hazardous substances, pollutants or contaminants, petroleum or petroleum
products, radioactive materials, asbestos in any form or condition, or any
pollutant or contaminant or hazardous, dangerous or toxic chemicals, materials
or substances within the meaning of any applicable federal, state or local law,
regulation, ordinance or requirement relating to or imposing liability or
standards of conduct concerning any such substances or materials on account of
their biological, chemical, radioactive, hazardous or toxic nature, all as now
in effect or hereafter from time to time enacted or amended. For purposes of
this Lease, "Environmental Laws" means all laws, rules, orders and regulations
of federal, state, county, and municipal authorities, concerning, any Hazardous
Materials whatsoever.
10
16
ARTICLE VII
MAINTENANCE; REPAIRS
7.1 TENANT'S OBLIGATIONS. Tenant shall, at Tenant's sole cost and
expense, (a) maintain and keep in good repair, good working order and free of
litter and refuse (excluding litter and refuse contained in wastebaskets or
disposed of in an area designated by Landlord) the interior of the Leased
Premises and, except for Landlord's obligations under Section 7.2 of this Lease,
make any and all repairs and replacements thereto as and when required, ordinary
or extraordinary, foreseeable or unforeseeable, including, but not limited to,
the maintenance, repair and replacement of any and all furnishings, fixtures and
leasehold improvements within the Leased Premises, exterior entrances, windows
and plate glass (provided that Landlord shall contribute any insurance proceeds
it receives for any damage to the plate glass to the extent the insurance
premiums paid by Landlord respecting the plate glass are included in Operating
Costs) within or part of the wall delimiting the Leased Premises and any
electrical wiring, lighting fixtures, heating or plumbing fixtures, pipes, air
conditioning or heating components contained within and exclusively serving the
Leased Premises; and (b) keep unclogged and in good repair all drains, traps and
sewer pipes exclusively serving the Leased Premises and maintain and leave the
same in good working order. At Landlord's option, ordinary maintenance of any of
the systems described above shall be undertaken by Landlord in which event,
promptly upon demand by Landlord, Tenant shall reimburse Landlord (such
reimbursement to constitute Additional Rent hereunder) for all costs and
expenses incurred by Landlord in connection with such maintenance undertaken.
7.2 LANDLORD'S OBLIGATIONS. Landlord agrees to make all necessary
repairs, replacements, additions and removals, interior and exterior, structural
and nonstructural to maintain the exterior and structural portions of the
Building and the Property (including foundations, floors, structural supports,
roofs, roof structures, canopies (excluding Tenant's signage thereon), walls,
driveways, sidewalks and parking facilities), the building systems including
heating, ventilation, air conditioning, electrical, mechanical and plumbing
systems (except for portions of those systems exclusively serving the Leased
Premises and located within the Leased Premises), the Common Facilities and
windows and plate glass (to the extent maintenance is required due to product
failure or storm related damage) of the Building, reasonable wear and tear,
damage by fire and other casualty only excepted. Further, if any such
maintenance is required because of the negligence or intentional misconduct of
Tenant or those for whose conduct Tenant is legally responsible and such
maintenance is not covered by insurance, then Tenant shall be responsible for
such maintenance, and if such maintenance is covered by insurance, then Tenant
shall be fully liable and responsible to Landlord for the deductible amount of
any such insurance. Landlord agrees to maintain the Common Facilities of the
Building and the landscaped and paved areas of the Property in the same
condition as they may be as of the Commencement Date.
7.3 REMOVAL OF SNOW, ICE AND DEBRIS. Removal of snow, ice and
debris from the Common Facilities including sidewalks, driveways and parking
areas of the Property shall be the responsibility of Landlord. Snow, ice and
debris shall be removed as soon as reasonably practicable.
7.4 TENANT'S FAILURE TO MAKE REPAIRS. If repairs are required to
be made by Tenant pursuant to the terms hereof, Landlord may demand that Tenant
make the same forthwith, and if Tenant refuses or neglects to commence such
repairs and complete the same with reasonable
11
17
dispatch, after such demand, Landlord may (but shall not be required to do so)
make or cause such repairs to be made and such repairs by Landlord shall be
governed by the provisions of Sections 14.3 and 14.4 below.
ARTICLE VIII
ALTERATIONS
8.1 ALTERATIONS OR ADDITIONS BY TENANT. Tenant shall not make any
alterations (structural or otherwise), improvements, or additions to the Leased
Premises, without the prior written consent of the Landlord, other than the
Tenant Improvements as set forth in Section 17.27 and EXHIBIT TI below. All such
allowed alterations, improvements or additions other than the Tenant
Improvements shall be at Tenant's sole cost and expense. Tenant shall not permit
any mechanics' liens, or similar liens, to remain upon the Leased Premises for
labor and material furnished to Tenant or claimed to have been furnished to
Tenant in connection with work of any character performed or claimed to have
been performed at the direction of Tenant and shall cause any such lien to be
released of record forthwith without cost to Landlord. Any alterations or
improvements made by Tenant shall, at the option of Landlord, either become the
property of the Landlord at the expiration or earlier termination of the Term or
be removed by Tenant at Tenant's sole cost and expense at the expiration or
earlier termination of the Term. All alterations or additions made by Tenant
shall be performed in a good and workmanlike manner and in compliance with all
the applicable laws, ordinances, orders, rules, regulations and requirements
applicable thereto, shall be carried out in conformance with plans and
specifications approved by Landlord, and shall be performed only by contractors
or mechanics approved by Landlord. All such contractors and mechanics shall
carry liability insurance (which shall name Landlord and Tenant as an additional
insured) and workmen's compensation insurance reasonably satisfactory to
Landlord, and Landlord shall be presented with certificates of same prior to the
commencement of any work. Tenant agrees to pay Landlord's reasonable charges for
the review of all proposed alterations, improvements and additions and for
supervision of the same other than the Tenant Improvements. Neither approval of
the plans and specifications nor supervision of the Tenant's work by Landlord
shall constitute a representation or warranty by Landlord as to the accuracy,
adequacy, sufficiency or propriety of such plans and specifications or the
quality of workmanship or the compliance of such alteration with applicable law.
8.2 ALTERATIONS OR ADDITIONS BY LANDLORD. Landlord hereby reserves
the right at any time to enter upon the Property or the Leased Premises,
provided Landlord shall give Tenant at least forty-eight (48) hours prior notice
before entering the Leased Premises, and make alterations or additions thereto,
or to any or all of the common facilities, improvements or personalty comprising
a part thereof, provided such alterations or additions do not unreasonably
interfere with Tenant's use of, or diminish the useable space contained in, the
Leased Premises.
12
18
ARTICLE IX
ASSIGNMENT; SUBLEASING
LANDLORD'S CONSENT. Tenant shall not, without the prior written consent
of Landlord, such consent not to be unreasonably withheld: (i) assign, convey,
mortgage or otherwise transfer this Lease or any interest hereunder, or sublease
the Leased Premises, or any part thereof, whether voluntarily or by operation of
law; or (ii) permit the use of the Leased Premises by any person other than
Tenant and its employees. Any such assignment, sublease, transfer or use
described in the preceding sentence (a "Transfer") occurring without the prior
written consent of Landlord shall be void and of no effect. Landlord's consent
to any Transfer shall not constitute a waiver of Landlord's right to withhold
its consent to any future Transfer. Landlord's consent to any Transfer or
acceptance of Base Rent or Additional Rent from any party other than Tenant
shall not release Tenant from any covenant or obligation under this Lease, but
Landlord shall not enforce against Tenant any obligation for which Landlord has
already received full payment or performance from such other party.. Landlord
may require as a condition to its consent to any assignment of this Lease that
the assignee execute an instrument in which such assignee assumes the
obligations of Tenant hereunder. If Landlord consents to any Transfer, Tenant
shall pay to Landlord all rent and other consideration received by Tenant in
excess of the Base Rent, Electricity Rent and Additional Rent paid by Tenant for
the portion of the Leased Premises so transferred. In addition, Tenant shall pay
to Landlord any attorneys' fees and expenses incurred by Landlord in connection
with any proposed Transfer, whether or not Landlord consents to such Transfer.
ARTICLE X
SUBORDINATION; ESTOPPEL CERTIFICATES
10.1 SUBORDINATION. If the Leased Premises are, as of the date
hereof, subject to any mortgage or trust deed, Landlord shall provide Tenant
with an agreement executed by such lienholder which shall assure Tenant's right
to possession of the Leased Premises and other rights granted under this Lease
substantially in accordance with this Lease's terms and conditions. Such
agreement shall be reasonably acceptable to Tenant, Landlord, and such
lienholder and shall be recordable with the applicable registry or office.
Tenant agrees to subordinate this Lease to any future mortgage, or trust deeds,
provided such lienholder shall assure Tenant's right to possession of the Leased
Premises and other rights granted under this Lease substantially in accordance
with this Lease's terms and conditions. Such assurance shall be in the form
customarily used by such lienholder, and shall be recordable with the applicable
registry or office.
Upon such attornment, this Lease shall continue in full force and
effect as a direct lease between the Successor Landlord (as defined below) and
Tenant upon all of the terms, conditions and covenants as are set forth in this
Lease, except that the Successor Landlord (unless formerly Landlord under this
Lease or its nominee or designee) shall not be: (i) liable in any way to Tenant
13
19
for any act or omission, neglect or default on the part of Landlord under this
Lease; (ii) responsible for any monies owing by or on deposit with Landlord to
the credit of Tenant unless actually received by the Successor Landlord; (iii)
subject to any counterclaim or setoff which theretofore accrued to Tenant
against Landlord; (iv) bound by any modification of this Lease subsequent to
such Superior Lease or Superior Mortgage (each as defined below) or by any
previous prepayment of Base Rent or Additional Rent for more than one (1) month,
which was not approved in writing by the Superior Mortgagee (as defined below);
(v) liable to Tenant beyond the Successor Landlord's interest in the Property
and the rents, income, receipts, revenues, issues and profits issuing from such
Property; (vi) responsible for the performance of any work to be done by
Landlord under this Lease to render the Leased Premises ready for occupancy by
Tenant; or (vii) required to remove any person occupying the Leased Premises or
any part thereof, except if such person claims by, through or under the
Successor Landlord. Any mortgage to which this Lease is, at the time referred
to, subject and subordinate, is herein called the "Superior Mortgage" and the
holder of a Superior Mortgage is herein called the "Superior Mortgagee." Any
Superior Mortgagee or the nominee or designee of any Superior Mortgagee or
lessor under any Superior Lease, and their respective successors or assigns,
including the purchaser at a foreclosure sale, who succeeds to the rights of
Landlord under this Lease shall be a "Successor Landlord."
10.2 ESTOPPEL CERTIFICATES. Tenant shall, within fifteen (15)
business days after request from Landlord, deliver to any mortgagee, proposed
mortgagee, proposed purchaser of all or any part of the Property, or any other
person or entity designated by Landlord, in recordable form, a certificate
certifying any and all information reasonably requested, including, but not
limited to, the following: (a) the date of this Lease, the date when the Term of
this Lease commenced, the date of the expiration of the Term, and the date when
Base Rent and Additional Rent commenced to accrue hereunder; (b) that this Lease
is unmodified, not amended, and in full force and effect; or, if there have been
any amendments or modifications, that the Lease is in full force and effect as
so amended or modified and stating the amendments or modifications and the dates
thereof; (c) whether or not there are then existing any setoffs or defenses
against the enforcement of any of the terms and/or conditions of this Lease and
any amendments or modifications hereof on the part of Tenant to be performed,
and, if so, specifying the same; and (d) the dates, if any, to which the Base
Rent, the Additional Rent and other sums on Tenant's part to be paid hereunder
have been paid and/or paid in advance; and (e) Tenant has accepted the Leased
Premises and any and all improvements in the condition then existing as being
complete and in accordance with Tenant's agreements as to the same and in
accordance with the Lease, and that Tenant waives any and all claims or causes
of action as to the condition of the Leased Premises including the improvements
thereto (to the extent that the work for such improvements has been completed)
as against Landlord and any new owner of the Property or assignee, or specifying
in detail any respect in which the Leased Premises or any improvements have not
been completed in accordance with the Lease, if that is the case (setting forth
any such deficiencies in reasonable detail). If Landlord shall submit to Tenant
a proposed instrument containing any of the foregoing information, then, if
Tenant shall fail to respond to Landlord's request for confirmation of the
information set forth therein within fifteen (15) business days after Landlord's
request, any information contained in such proposed instrument shall be deemed
to be true, and Tenant shall be deemed to have waived any rights accruing by
reason of any inaccuracy
14
20
in such proposed instrument. Further, Tenant's failure or refusal to execute and
deliver such certificate within such fifteen (15) business day period shall
constitute an Event of Default under this Lease.
ARTICLE XI
INDEMNIFICATION AND WAIVER
11.1 DAMAGE TO PROPERTY. Tenant shall save Landlord harmless from
all loss and damage to property occurring within the Leased Premises occasioned
by the use or escape of water or by the bursting of pipes, as well as from any
claim or damage resulting from neglect in not removing snow and ice from the
roof of the Building, or by any nuisance made or suffered on the Leased
Premises. Tenant also agrees to save Landlord harmless from any claim or damage
resulting from neglect in not removing snow and ice from the sidewalks on the
Property, unless such loss is caused by the intentional misconduct or negligence
of Landlord. Landlord shall not be liable for any loss or damage arising from
any latent defect in the Leased Premises or in the Building except as may be
otherwise expressly and specifically provided herein. All personal property or
improvements of Tenant at or about the Leased Premises shall be installed, used,
or enjoyed at the sole risk of Tenant, and Tenant shall defend, indemnify and
hold Landlord harmless from and against any and all claims and/or causes of
action pertaining to or arising out of damage to the same, including but not
limited to subrogation claims by Tenant's insurance carrier, but excepting such
claims and/or causes of action resulting from the actual negligence and/or
willful misconduct of Landlord.
11.2 INDEMNITY AGAINST LIABILITY. Tenant shall also indemnify and
hold Landlord harmless, to the fullest extent permitted by law, from and against
any and all claims, actions, loss, damage, liability and expense (including,
without limitation, reasonable attorney's fees and related legal costs incurred
by Landlord) in connection with loss of life, personal injury and/or damage to
property arising out of or resulting from (i) any occurrence in, upon or at the
Leased Premises or (ii) the occupancy or use of the Leased Premises, the
Building or the Property or any part thereof, or anywhere on or about the
Property if caused wholly or in part by any act, negligence or failure to
perform the obligations imposed by this Lease or any breach thereof, or omission
of Tenant, its officers, agents, employees, subtenants, licensees,
concessionaires, invitees, visitors or others occupying space in the Leased
Premises, except to the extent arising out of the negligence or willful
misconduct of Landlord or its agents, employees or contractors. If Landlord
shall be threatened with or made a party to any litigation commenced by or
against Tenant (except in the event that such litigation is commenced by
Landlord against Tenant or by Tenant against Landlord and Tenant prevails in
such litigation), or with respect to any matter described above, except to the
extent arising out of the negligence or willful misconduct of Landlord or its
agents, employees or contractors, then Tenant shall protect and hold Landlord
harmless and indemnified and shall defend Landlord with counsel reasonably
acceptable to Landlord, or, at Landlord's option, shall advance all costs,
expenses and reasonable attorney's fees incurred or paid by Landlord in
connection with such litigation.
15
21
11.3 WAIVER OF CLAIMS. Tenant releases Landlord and its agents and
employees from, and waives all claims for, damage or injury to person or
property and loss of business sustained by Tenant and resulting from the
Building or the Leased Premises or any part thereof or any equipment therein
becoming in disrepair (other than from Landlord's negligence in managing and
operating the Property), or resulting from any accident, or from any
intentionally wrongful conduct by anyone other than Landlord, in or about the
Building or the Leased Premises or occurring anywhere on or about the Property.
This paragraph shall apply particularly, but not exclusively, to flooding,
damage caused by Building equipment and apparatus, water, snow, ice, frost,
steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise
or vibration or the bursting or leaking of pipes, plumbing fixtures or sprinkler
devices. Without limiting the generality of the foregoing, Tenant waives all
claims and rights of recovery against Landlord and its agents and employees for
any loss or damage to any property of Tenant, whether or not such loss or damage
is due to the fault or negligence of Landlord or its agents or employees, and
regardless of the amount of insurance proceeds collected or collectible under
insurance policies in effect.
ARTICLE XII
INSURANCE
12.1 INSURANCE TO BE MAINTAINED BY TENANT. At its own cost and
expense, Tenant shall obtain and maintain throughout the Term of this Lease the
following insurance coverage: (a) comprehensive general public liability
insurance covering claims for injury to persons or property occurring in or
about the Leased Premises or the Property, or arising out of ownership,
maintenance, use, or occupancy thereof by the Tenant, in the amount of Three
Million Dollars ($3,000,000.00), with property damage insurance with limits of
Five Hundred Thousand Dollars ($500,000.00); (b) all risk hazard insurance
including and not limited to fire, extended coverage, vandalism and malicious
mischief insurance, covering any and all of the Tenant's equipment, trade
fixtures, tools, inventory, and personal property in, at, or about the Leased
Premises, in the full amount of the replacement cost of any and all of the same;
(c) Worker's Compensation and all other insurance coverages for employees,
agents, servants, and others at or about the Leased Premises in compliance with
and as required by any and all applicable governmental regulations and statutes;
and (d) if any of the walls delimiting the Leased Premises contain plate glass,
plate glass insurance for the benefit of Landlord in the amount of replacement
cost thereof. Landlord may from time to time reasonably require Tenant to
maintain other insurance coverage or may increase the amount of the foregoing
insurance to be maintained by Tenant so as to provide insurance coverage in
forms and amounts consistent with the extent of coverage maintained by similar
tenants in similar buildings located in the same geographic market as the Leased
Premises. Tenant shall obtain an endorsement to such insurance waiving rights of
subrogation against Landlord, if such an endorsement is available from Tenant's
insurance company.
12.2 OTHER INSURANCE REQUIREMENTS. All such insurance procured by
Tenant as provided herein shall be in responsible companies qualified to do
business in Massachusetts and in good standing therein and having a Best's
rating of A+++, naming Landlord and Landlord's mortgagee; as well as Tenant
against injury to persons or damage to property as herein provided.
16
22
Tenant shall deposit with Landlord certificates for such insurance at or prior
to the Commencement Date, and thereafter within thirty (30) days prior to the
expiration of any such policies. All such insurance certificates shall provide
that such policies shall not be canceled or modified without at least ten (10)
days prior written notice to each insured named therein.
12.3 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the
following provision may be effective without invalidating or making it
impossible to secure insurance coverage obtainable from responsible insurance
companies doing business in the locality in which the Property is located (even
though an extra premium may result therefrom), Landlord and Tenant mutually
agree that, with respect to any hazard, the loss from which is covered by
insurance then being carried by them, respectively, the party carrying such
insurance and suffering such loss releases the other of and from any and all
claims with respect to such loss to the extent of the insurance proceeds paid
with respect thereto; and they further mutually agree that their respective
insurance companies shall have no right of subrogation against the other on
account thereof.
12.4 INSURANCE TO BE MAINTAINED BY LANDLORD. Landlord shall
maintain property and casualty insurance with respect to the Building and other
improvements constituting the Property in such amounts as are required by the
first mortgage lender for the Property, or in the absence of a first mortgage
lender, in amounts which are comparable to those maintained by other reasonably
prudent property owners of facilities of the type and character of the Property,
but not less than full replacement cost thereof as reasonably determined by
Landlord.
ARTICLE XIII
FIRE; CASUALTY; EMINENT DOMAIN
13.1 DAMAGE BY CASUALTY. Should a substantial portion of the Leased
Premises, or of the Building or Property, be substantially damaged by fire or
other casualty, or in the event that a fire or other casualty renders the Leased
Premises or the access thereto substantially unsuitable for its intended use,
Landlord may elect to terminate this Lease upon notice to Tenant within thirty
(30) days after such fire or casualty. If less than a substantial portion of the
Leased Premises, or of the Building, or of the Property is damaged by fire or
other casualty, then (subject to the availability of insurance proceeds from any
mortgagee of the Property) Landlord shall be obligated to repair, reconstruct or
replace the damaged portions of the Leased Premises and shall use reasonable
diligence to complete same, Building or Property including the Tenant
Improvements as nearly as possible to their former condition. When such fire or
casualty renders the Leased Premises substantially unsuitable for its intended
use, a just and proportionate abatement of rent shall be made until such time as
Tenant is able to resume full utilization of Premises or this Lease is
terminated. If any casualty results in the total suspension of business in the
Leased Premises as a result of damage or any adverse effect on the Leased
Premises, Tenant shall have the option of suspending the running of the Term
from the date of the casualty to the earlier of the date business is resumed or
sixty (60) days following the completion of restoration; such option to be
exercised by written notice within thirty (30) days after the date of the
casualty. Further, within thirty (30) days after any
17
23
substantial fire or other casualty, Landlord shall give written notice to Tenant
with respect to whether or not Landlord will restore the Leased Premises,
including the Tenant Improvements to the Leased Premises. Tenant may elect to
terminate this Lease if either (a) Landlord notifies Tenant that Landlord has
elected not to restore the Leased Premises, including the Tenant Improvements to
the Leased Premises, or (b) Landlord elects to restore but fails to restore the
Leased Premises, including the Tenant Improvements to the Leased Premises, to a
condition substantially suitable for its intended use within one hundred eighty
(180) days after such fire or casualty. However, Tenant's failure to give such
notice of termination within ten (10) business days after the date on which the
right to terminate ripens under either (a) or (b) above shall constitute a
waiver of such right by Tenant. Landlord will seek to have the first mortgagee
of the Property, if any, provide for application of hazard insurance loss
proceeds to the repair or reconstruction of the Leased Premises upon any hazard
loss. Subject to the mortgagee (if any) of the Property making the hazard loss
insurance proceeds available for such restoration and to Landlord's receipt of
such proceeds for that purpose, if Landlord elects to repair, reconstruct, or
cause to be repaired or reconstructed, such damage or destruction, Landlord
shall not be required to expend, in connection with such repair or
reconstruction, any amount exceeding the amount of casualty insurance proceeds
actually received by Landlord. Notwithstanding the foregoing, in the event such
mortgagee shall not make the insurance loss proceeds available for repair or
restoration, Landlord shall not be required to repair or reconstruct the Leased
Premises and shall notify Tenant within thirty (30) days next following such
hazard loss, of its election in this respect and thereupon, Tenant shall have
the termination rights described above in this Section. For purposes of this
Section 13.1, damage shall be deemed substantial if (i) fifty percent (50%) or
more of the Leased Premises, Building or Property is damaged or destroyed, or
(ii) the time needed for Landlord to repair or restore the damage and put the
Leased Premises, Building and/or Property in proper condition for use or
occupancy is reasonably estimated by Landlord to require more than one hundred
eighty (180) days.
13.2 TENANT'S OPTION TO TERMINATE IN THE EVENT OF A TAKING. If the
Property shall be taken in its entirety under any condemnation or eminent domain
proceedings (each such occurrence being hereinafter referred to as a "Taking")
by any governmental authority (the "Taking Authority") during the Term hereof,
or in the event twenty-five percent (25%) or more of the Leased Premises, or the
access thereto, is taken in any such proceedings and the remaining portion shall
not be suitable or adequate (in the reasonable opinion of Tenant exercised in
good faith) for the conduct of Tenant's business and Tenant notifies Landlord in
writing of such determination within thirty (30) days next following the notice
of such taking by the Taking Authority or the date upon which Tenant receives
written notice that title has vested in the Taking Authority, whichever is first
to occur, then in any such event this Lease and the Term hereof shall terminate
thirty (30) days after such written notice from Tenant to Landlord, and Tenant
shall be liable for the payment of Base Rent, Additional Rent and all other
charges due from Tenant hereunder, and performance of the other terms and
conditions of this Lease on Tenant's part to be performed only up to date of
such termination, and any Base Rent and Additional Rent paid in advance for
periods following such date shall be apportioned and promptly refunded to
Tenant.
18
24
13.3 LANDLORD'S OPTION TO TERMINATE IN THE EVENT OF A TAKING. If less
than the entire Property, or less than twenty-five (25%) percent of the Leased
Premises, shall be acquired or taken by condemnation or eminent domain as
aforesaid, and the mortgagee of the Property shall not make the proceeds of any
awards or damages payable as to the Taking available for restoration and repair
of the balance of the Building, or Landlord shall determine in its reasonable
discretion that the restoration and repair of the balance of the Building shall
be impracticable; or in the event the Taking occurs within the last eighteen
(18) months of the initial Term (or of an Option Term, if any), Landlord shall
be entitled to terminate this Lease by sixty (60) days prior written notice to
Tenant without liability by reason of such Taking. If Landlord does not so
terminate this Lease, this Lease shall continue and Landlord shall rebuild and
restore the Leased Premises as nearly as possible to the condition existing next
preceding such Taking, with due allowance for the portion so taken; further,
Tenant shall promptly restore or repair any improvements made by it in the
Leased Premises to the extent proceeds from such awards are made available to
Tenant for such purpose and this Lease shall be and remain in full force and
effect and be unaffected by, the Taking, except that from the date possession of
the taken portion of the Leased Premises is acquired by the Taking Authority,
the Base Rent payable under this Lease shall be diminished by a percentage equal
to the percentage of the Leased Premises so taken and the Tenant's Pro Rata
Share shall be recalculated. The restoration or repair work to be done by Tenant
shall be done subject to any and all terms and conditions elsewhere set forth in
this Lease governing alterations or work on Tenant's part to be performed. Upon
written request from Tenant (which written request shall specifically reference
this Section 13.3 and the consequence of Landlord's failure to respond),
Landlord shall notify Tenant of its determination called for in this Section
within one hundred twenty (120) days after the date of the Taking. In the event
that Landlord shall fail to respond to such request and notify Tenant of its
determination within such one hundred twenty (120) day period, Tenant shall have
the right to terminate this Lease without cost or liability therefor as of the
date of the Taking.
13.4 MISCELLANEOUS PROVISIONS REGARDING CASUALTY OR TAKING.
13.4.1 In the event this Lease is terminated or terminates by
reason of a Taking or a Casualty, the provisions of the Lease applicable upon
expiration of the Lease shall govern the parties.
13.4.2 Landlord will seek to have any mortgagee of the
Building or Property provide for application of the proceeds of any Taking
awards to restoration, repair, and reconstruction of the portion of such
Property remaining after the Taking. Notwithstanding the amount of land,
building, or improvements taken by condemnation or eminent domain or the
termination or continuance of this Lease with respect thereto, Tenant shall not
participate or share in any recovery, award, or damages payable or paid as to
such Taking, nor have or assert any right, claim, or cause of action against
Landlord, the fee owner, or mortgagee of the Property or, except as expressly
provided in Section 13.4.3 below, the Taking Authority whether for the loss of,
or diminution in value of, the unexpired Term of this Lease, or as to the Taking
of any such land, building, and/or improvements or otherwise; and Tenant for
itself and its successors and assigns hereby waives, surrenders, and
19
25
releases to Landlord any and all claims or rights to claim or receive all or any
portion of any and all recovery, awards, and/or damages as to such Taking.
13.4.3 If permitted by statute, Tenant may assert a separate
and independent claim for and recover from the Taking Authority, but not from
Landlord, any compensation as may be separately awarded or recoverable by Tenant
in its own name and right for the value of the Tenant Improvements made by
Tenant (but only to the extent Tenant has paid the cost of installing or
constructing such Tenant improvements), any damage to Tenant's portable fixtures
and equipment, or on account of any expenses which it shall incur in relocation
expenses, but in no event shall any such claims or recoveries be asserted if the
same would diminish in any way the award to Landlord for the Land, Building and
any Tenant Improvements paid for by Landlord.
ARTICLE XIV
DEFAULT; REMEDIES; BANKRUPTCY
14.1 EVENTS OF DEFAULT. Each of the following shall be an event of
default ("Event of Default") under this Lease:
14.1.1 Tenant shall default in the payment of any
installment of Base Rent, Additional Rent or other sum herein specified to be
paid by Tenant and such default shall continue for five (5) business days after
written notice thereof; provided, however, that Landlord shall not be required
to give more than two (2) notices during any consecutive twelve (12) month
period with regard to defaults in the payment of installments of Base Rent,
Additional Rent or any other sums payable by Tenant under this Lease, and in the
event that Landlord has already given two (2) such notices during any
consecutive twelve (12) month period, any subsequent failure of Tenant during
such twelve (12) month period to make any such payment shall immediately
constitute an Event of Default even though no notice has been given;
14.1.2 Tenant shall default in the observance or performance
of any other of Tenant's covenants, agreements, or obligations hereunder and
such default shall not be cured within thirty (30) days after written notice
thereof, or if such default is of a nature that it cannot be reasonably cured
within such thirty (30) day period, Tenant shall not have commenced to cure such
default within such thirty (30) day period and diligently proceed to completion
of said cure within one hundred twenty (120) days after written notice thereof,
but only if such extended period beyond thirty (30) days without a completed
cure will not have a material adverse effect on the value of the Property or the
Leased Premises or expose Landlord to any liability; further, Landlord shall not
be required to give more than two (2) notices during any consecutive eighteen
(18) month period with regard to Tenant's failure to perform its obligations
under a particular Section of this Lease (a "Previously Defaulted Provision")
and in the event that Landlord has already given two (2) such notices during any
consecutive eighteen (18) month period, any subsequent failure of Tenant during
such eighteen (18) month period to fully and punctually observe such Previously
Defaulted
20
26
Provision shall immediately constitute an Event of Default even though no notice
has been given; or
14.1.3 Tenant's leasehold interest in the Leased Premises
shall be taken on execution, levied upon or attached by other process of law
directed against Tenant;
14.1.4 Tenant or any Guarantor shall die, dissolve, shall
become insolvent, shall make a transfer in fraud of creditors, shall make an
assignment for the benefit of creditors, shall file a voluntary petition in
bankruptcy, shall be adjudicated bankrupt or insolvent, shall file any petition
or answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under Title 11 of the
United States Bankruptcy Code relating to Bankruptcy, as amended (the
"Bankruptcy Code") or under any present or future Federal, State or other
statute, law or regulation for the relief of debtors, or shall seek or consent
to or acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or Guarantor or of all or any substantial part of their respective
assets, or shall admit in writing its inability to pay its debts generally as
they become due (Tenant and Guarantor hereby acknowledging that this Lease is a
lease of nonresidential real property and therefore agreeing that Tenant, as
debtor in possession, or the trustee for Tenant in any proceeding under the
Bankruptcy Code, shall not seek or request any extension of time to assume or
reject this Lease or to perform any obligations of this Lease which arise from
or after the order of relief);
14.1.5 A petition shall be filed against Tenant or Guarantor
in bankruptcy under the Bankruptcy Code or under any other law seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future Federal, State or
other statute, law or regulation and shall remain undismissed or unstayed for an
aggregate of sixty (60) days (whether or not consecutive), or if any debtor in
possession (whether or not Tenant or Guarantor) trustee, receiver or liquidator
of Tenant or Guarantor or of all or any substantial part of their respective
assets shall be appointed without the consent or acquiescence of Tenant or
Guarantor, as the case may be, and such appointment shall remain unvacated or
unstayed for an aggregate of sixty (60) days (whether or not consecutive); or
14.1.6 If the Leased Premises or any substantial portion are
abandoned by Tenant.
14.2 LANDLORD'S REMEDIES. Upon the occurrence of an Event of
Default, Landlord shall have the following rights and remedies:
14.2.1 Landlord shall have the right at its election, at any
time thereafter, to give Tenant written notice of Landlord's election to
terminate this Lease on a date specified in such notice. Upon the giving of such
notice, this Lease and the estate hereby granted shall expire and terminate on
such date as fully and completely and with the same effect as if such date were
the date hereinbefore fixed for the expiration of the Term, and all rights of
Tenant hereunder shall expire and terminate, but Tenant shall remain liable as
hereinafter provided. Further, Tenant hereby expressly
21
27
waives any rights of redemption it may have under M.G.L. c. 186, ss.11 or
pursuant to any other statutory provision or common law principle.
14.2.2 Landlord shall have the immediate right, whether or
not this Lease shall have been terminated pursuant to Section 14.2.1, to
re-enter and repossess the Leased Premises or any part thereof and repossess the
same as of its former estate by force, summary proceedings, ejectment or
otherwise and the right to remove all persons and property therefrom. Landlord
shall be under no liability for or by reason of any such entry, repossession or
removal. No such re-entry or taking of possession of the Leased Premises by
Landlord shall be deemed to waive or prejudice any remedies provided to Landlord
hereunder, nor be construed as an election on Landlord's part to terminate this
Lease unless a written notice of such election be given to Tenant pursuant to
Section 14.2.1 or unless the termination of this Lease be decreed by a court of
competent jurisdiction.
14.2.3 At any time or from time to time after the
repossession of the Leased Premises or any part thereof pursuant to Section
14.2.2, whether or not this Lease shall have been terminated pursuant to Section
14.2.1, Landlord may relet the Leased Premises or any part thereof for the
account of Tenant, in the name of Tenant or Landlord or otherwise, without
notice to Tenant, for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of the Term) and on
such conditions (which may include free rent and any other concessions) and for
such uses as Landlord, in its reasonable discretion, may determine; and Landlord
may collect and receive any rents payable by reason of such reletting. Landlord
shall not be responsible or liable for any failure to relet or to collect any
rent due upon such reletting.
14.2.4 In the event of any termination of this Lease or
repossession of the Leased Premises or any part thereof by reason of the
occurrence of an Event of Default, Tenant will pay to Landlord the Base Rent,
Additional Rent and other sums required to be paid by Tenant for the period to
and including the date of such termination or repossession; and, thereafter,
until the end of what would have been the Term in the absence of such
termination or repossession, and whether or not the Leased Premises or any part
thereof shall have been relet, Tenant shall be liable to Landlord for, and shall
pay to Landlord, as liquidated and agreed current damages, the Base Rent,
Additional Rent and other sums which would be payable under this Lease by Tenant
in the absence of such termination or repossession, less the net proceeds, if
any, of any reletting effected for the account of Tenant pursuant to Section
14.2.3, after deducting from such proceeds all of Landlord's expenses reasonably
incurred in connection with such reletting (including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorney's fees,
employee expenses, alteration costs and expenses of preparation for such
reletting). Tenant will pay such current damages on the days on which Base Rent
would have been payable under this Lease in the absence of such termination or
repossession, and Landlord shall be entitled to recover the same from Tenant on
each such day.
14.2.5 At any time after any such termination of this Lease
or repossession of the Leased Premises or any part thereof by reason of the
occurrence of an Event of Default, whether or not Landlord shall have collected
any current damages pursuant to Section 14.2.4, Landlord shall be entitled to
recover from Tenant, and Tenant will pay to Landlord on demand, as and for
liquidated
22
28
and agreed final damages for any Event(s) of Default by Tenant and in lieu of
all current damages beyond the date of such demand (it being agreed that it
would be impracticable or extremely difficult to fix the actual damages), an
amount equal to the excess, if any, of (a) the Base Rent, Additional Rent and
other sums which would be payable under this Lease from the date of such demand
(or, if it be earlier, the date to which Tenant shall have satisfied in full its
obligations under Section 14.2.4 to pay current damages) for what would be the
then unexpired Term in the absence of such termination or repossession plus
Landlord's estimate of the aggregate expenses of reletting the Leased Premises,
over (b) the then net fair rental value of the Leased Premises for the same
period (after deducting from such fair rental value reasonable amounts on
account of the time needed to relet the Leased Premises and concessions which
would normally be given to a new tenant). Fair rental value shall be established
by reference to the terms and conditions upon which Landlord relets the Leased
Premises if such reletting is accomplished within a reasonable period of time
after such termination or repossession and otherwise established on the basis of
Landlord's estimates and assumptions of fact regarding market and other relevant
circumstances, which shall govern unless shown to be clearly erroneous.
14.3 LANDLORD'S CURE RIGHTS. If an Event of Default shall occur,
Landlord, without being under any obligation to do so and without thereby
waiving such Event of Default, may remedy such default for the account and at
the expense of Tenant.
14.4 TENANT'S OBLIGATION TO REIMBURSE LANDLORD. If Landlord makes
any expenditures (pursuant to Section 14.3 above or otherwise) or incurs any
obligations for the payment of money in connection with any failure of Tenant to
perform fully all of its obligations under this Lease, such sums paid or
obligations incurred (including but not limited to, reasonable attorney's fees
and court costs in instituting, prosecuting or defending any action or
proceeding), with interest at the rate of one and one half percent (1-1/2%) per
month and costs, shall upon demand be paid to Landlord by Tenant as Additional
Rent.
14.5 NO WAIVER. Landlord's failure to take action against Tenant
with respect to any default in Tenant's performance of its obligations hereunder
shall not, under any circumstances, constitute a waiver of any of Landlord's
rights under this Lease and, further, no waiver of any of the provisions of this
Lease shall be effective unless given in writing nor shall any waiver be
construed as a waiver of any of the other provisions hereof or as a waiver of
the same provisions for any subsequent time.
14.6 ACCEPTANCE OF LATE PAYMENTS. No payment by Tenant, or
acceptance by Landlord, of a lesser amount than then due from Tenant to Landlord
shall be treated otherwise than as a payment on account regardless of any letter
accompanying such check or legend entered upon such check. Further, no
acceptance of any payment by Landlord from Tenant shall in any way constitute a
waiver of any default then existing or which would exist with the proper giving
of notice.
14.7 INTEREST ON LATE PAYMENTS. If Tenant shall fail to pay, when
the same is due and payable, any Base Rent, or Additional Rent or any other
charges or payments required hereunder
23
29
(excluding the payments described in Section 14.4 above), such unpaid amounts
shall bear interest from the due date thereof to the date of payment at the
annual rate of interest of twelve percent (12%) per annum, but in no event
higher than the maximum rate permitted by law; and, in addition, Tenant shall
pay Landlord a late charge for any Base Rent, any Additional Rent or any other
charges or payments due hereunder which is paid after its due date equal to five
percent (5%) of such payment.
14.8 REMEDIES CUMULATIVE. Any and all remedies set forth in this
Lease (a) shall be in addition to any and all other remedies Landlord may have
at law or in equity, (b) shall be cumulative, and (c) may be pursued
successively or concurrently as Landlord may elect. The exercise of any remedy
by Landlord shall not be deemed an election of remedies or preclude Landlord
from exercising any other remedies in the future.
14.9 LANDLORD'S RIGHTS IN TENANT'S BANKRUPTCY. If this Lease is
assigned to any person or entity pursuant to the provisions of the Bankruptcy
Code, 11 U.S.C. 101 ET SEQ. as now existing or hereafter amended (the
"Bankruptcy Code"), any and all monies or other considerations payable or
otherwise to be delivered in connection with such assignment shall be paid and
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and be
promptly paid to or turned over to the Landlord. Notwithstanding anything in
this Lease to the contrary, all amounts payable by Tenant to or on behalf of
Landlord under this Lease, whether or not expressly denominated as rent,
including, without limitation, the Base Rent and Additional Rent specified
herein, shall constitute rent for the purpose of Section 502(b)(7) of the
Bankruptcy Code.
If Tenant assumes this Lease and proposes to assign the same pursuant
to the provisions of the Bankruptcy Code to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms acceptable
to Tenant, then notice of such proposed assignment, setting forth (a) the name
and address of such person; (b) all of the terms and conditions of such offer,
and (c) the adequate assurance to be provided Landlord to assure such person's
future performance under the Lease, including without limitation, the assurance
referred to in Sections 365(b)(1)(c) and 365(b)(3) of the Bankruptcy Code, shall
be given to Landlord by the Tenant no later than twenty (20) days after receipt
by the Tenant of such bona fide offer, but in any event no later than ten (10)
days prior to the date that the Tenant shall make application to a court of
competent jurisdiction for authority and application to enter into such
assignment and assumption, and Landlord shall thereupon have the prior right and
option, to be exercised by notice to the Tenant given at any time prior to the
effective date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such person, less any brokerage commissions which
may be payable out of the consideration to be paid by such person for the
assignment of this Lease. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed on and after the date of such assignment all
of the
24
30
obligations arising under this Lease. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such assumption.
14.10 LANDLORD'S DEFAULT. (a) If Tenant shall give written notice to
Landlord requesting that Landlord undertake any repair or replacement of the
Leased Premises or Property or to undertake any other obligation which Landlord
is expressly required to perform under the terms of this Lease, and Landlord
shall not, within twenty (20) business days thereafter either (i) commence and
diligently prosecute such repair, replacement or other obligation, or (ii)
refute on some reasonable basis Tenant's contention that Landlord is required to
undertake the same, then in such event, Tenant may give a second notice to
Landlord requesting that Landlord undertake the same. If, within fifteen (15)
days after such second notice, Landlord shall not either (i) commence and
diligently prosecute such repair, replacement or other obligation or (ii) refute
on some reasonable basis Tenant's contention that Landlord is required to
undertake the same, then Tenant, on three (3) business days prior notice to
Landlord of Tenant's intent to do so, may undertake such repair, replacement or
other obligation on Landlord' behalf (unless Landlord shall have already
commenced and be diligently prosecuting the same) and Landlord shall reimburse
Tenant for the reasonable costs incurred by Tenant in connection herewith within
fifteen (15) business days after demand by Tenant therefor (such demand to be
accompanied by documentation of such expenditures in reasonable detail).
(b) If Landlord shall not make payment to Tenant as
required pursuant to this Subsection 14.10, then Tenant may file a legal
proceeding against Landlord to recover the same, but under no circumstance will
Tenant have the right to offset against Base or Additional Rent any amount owed
by Landlord to Tenant pursuant to this Section 14.10. If Tenant prevails against
Landlord in connection with such legal proceeding, then Landlord shall also be
obligated to reimburse Tenant fully for any and all reasonable attorney's fees
or other costs incurred by Tenant in connection with such legal proceeding and
Landlord agrees that its obligation to reimburse Tenant shall be made a part of
any order entered by a court as part in such legal proceeding.
(c) Tenant shall not seek to enforce any remedy it may
have for any default on the part of Landlord without first giving written notice
to any mortgagee of the Property in accordance with Section 17.23 below.
ARTICLE XV
SURRENDER; HOLDING OVER
15.1 SURRENDER OF LEASED PREMISES. Tenant shall, at the expiration
or other termination of the Term, (a) remove all of Tenant's goods and effects
and trade fixtures from the Leased Premises (including, without hereby limiting
the generality of the foregoing, all signs and lettering affixed or painted by
Tenant either inside or outside the Leased Premises) and repair fully any damage
caused by such removal, and (b) deliver to Landlord the Leased Premises, in
broom clean
25
31
condition, and otherwise in the same condition as existed as of the Commencement
Date (normal wear and tear and damage by fire or other casualty excepted), all
keys, locks thereto, other fixtures connected therewith and all alterations and
additions made to or upon the Leased Premises (other than any Tenant's trade
fixtures removed pursuant to the preceding subsection (a)). Upon Tenant's
failure to comply with the preceding sentence, Landlord is hereby authorized,
without liability to Tenant for loss or damage thereto, and at the sole risk of
Tenant, to remove and store any of such property at Tenant's expense, or to
retain same under Landlord's control or to sell, at public or private sale, with
notice to Tenant, any or all of such property not so removed and to apply the
net proceeds of such sale to the payment of any sum due hereunder, or to destroy
such property.
15.2 HOLDING OVER. If Tenant remains in possession of the Leased
Premises or any part thereof after the expiration or earlier termination of the
Term of this Lease, Tenant shall be deemed to be in use and occupancy of the
Leased Premises as a month-to-month tenant at a rate of monthly Base Rent two
(2) times the rate of the total monthly installment of Base Rent then in effect
upon the date of expiration or termination of this Lease and subject to the same
terms and conditions (including, without limitation, provisions concerning the
payment of all other charges hereunder) as those set forth in this Lease other
than as to the length of Term. However, nothing in this Lease provision shall be
deemed to extend the Term beyond that set forth in Article 2 hereof, nor grant
any right to Tenant or any other person to use, occupy, or remain in possession
of all or any part of the Leased Premises beyond the expiration or earlier
termination of the Term of this Lease.
ARTICLE XVI
LANDLORD'S LIABILITY
16.1 LIMITED RECOURSE. Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for recovery
of any judgment from Landlord; it being specifically agreed that Landlord
(original or successor) shall never be personally liable for any such judgment,
or for the payment of any monetary obligation to Tenant.
16.2 INTERRUPTION OF SERVICES AND UTILITIES. Landlord shall in no
event be liable for any interruption in, failure of, or discontinuance of
services or utilities to the Building or the Leased Premises for any reason,
including, without limitation, when such services or utilities are interrupted
(a) by strike (not limited to Landlord or its business operations), lockout,
breakdown, accident, order or regulation of or by an governmental authority, or
failure of supply, (b) by reason of the making of repairs or alterations which
Landlord is required or is permitted by this Lease or by law to make or in good
xxxxx xxxxx necessary; (c) by inability to obtain supplies, parts or employees
necessary to furnish such services, or because of war or other emergency, (d) by
any other cause beyond Landlord's reasonable control, or (e) by any cause due to
any act or neglect of Tenant or Tenant's servants, agents, employees, licensees
or any persons claiming by, through or under Tenant In addition, no such
interruption in, failure of, or discontinuance of any such services or utilities
shall be considered as an eviction or disturbance of Tenant's occupancy of the
Leased Premises, relieve
26
32
Tenant from its obligations under this Lease, or entitle Tenant to any offset
rights or any other rights or remedies against Landlord.
16.3 NO CONSEQUENTIAL DAMAGES. In no event shall Landlord ever be
liable to Tenant for any loss of business or any other indirect or consequential
damages suffered by Tenant from whatever cause.
16.4 LIABILITY AFTER CONVEYANCE OF PROPERTY. The term "Landlord",
as used herein, shall mean and refer to the owner of the fee estate in the
Property whosoever such owner may be from time to time or to the person or
entity named as Landlord above or its successors or assigns, as the case may be;
and upon any conveyance or transfer of the interest of such person or entity as
Landlord, such person or entity shall be thereupon released and discharged from
any and all liability under this Lease or otherwise to Tenant and any and all
others whomsoever except for breaches of this Lease occurring prior to such
transfer.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 GOVERNING LAW. This Lease shall be governed by the law of the
Commonwealth of Massachusetts and shall be deemed to have been made, executed,
delivered and accepted by the respective parties in that state.
17.2 PARTIAL INVALIDITY. If any term or provision of this Lease, or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law. It is the intention of the parties hereto that if any
provision of this Lease is capable of two constructions, one of which would
render the provision valid, then the provision shall have the meaning which
renders it valid.
17.3 CAPTIONS. The captions of this Lease are for convenience and
reference only and shall not be deemed or construed to bind, modify, increase,
or decrease the terms and conditions of this Lease, or any interpretation or
construction thereof.
17.4 SUCCESSORS AND ASSIGNS. The terms and conditions in this Lease
shall apply to and be binding upon the parties herein and their respective
successors and assigns, except as expressly otherwise provided.
17.5 RECORDING OF LEASE. Tenant shall not record this Lease.
However, at the request of either party, Landlord and Tenant shall execute,
acknowledge, deliver, exchange, and record at the
27
33
requestor's expense a Notice of Lease or other short-form instrument permitted
under applicable state law and prepared by Landlord.
17.6 ENTIRE AGREEMENT. This Lease and any and all exhibits and
riders attached hereto and made a part of this Lease constitute the entire
agreement of the parties concerning this Lease, and any and all other or prior
agreements, representations, or warranties are hereby terminated, canceled, and
agreed to be void and of no force or effect.
17.7 AMENDMENTS. No change, amendment, deletion, or addition to
this Lease shall be effective unless in writing and signed by the parties.
17.8 QUIET ENJOYMENT. So long as Tenant is not in default of any of
its obligations under this Lease, Tenant shall peaceably and quietly have, hold
and enjoy the Leased Premises free of any claims by, through or under Landlord.
17.9 NO PARTNERSHIP. Nothing in this Lease shall create or be
construed to create a partnership between Tenant and Landlord, or make them
joint venturers, or bind or make Landlord in any way liable or responsible for
any acts, omissions, negligence, debts or obligations of Tenant.
17.10 TIME OF ESSENCE. Time is of the essence of this Lease and all
of the terms and conditions specified herein.
17.11 BROKERAGE. Tenant acknowledges that Tenant has dealt with no
broker in connection with this Lease other than the Broker or Brokers named in
Section 1.8 above. In the event of any other brokerage claim against Landlord
predicated upon dealings with Tenant, Tenant agrees to defend the same and
indemnify Landlord against any such claim. Landlord warrants and represents that
it has dealt with no broker in connection with the consummation of this Lease
except the Broker or Brokers listed in Section 1.8 above, and in the event of
any other brokerage claim against Tenant predicated upon dealings with Landlord,
Landlord agrees to defend the same and indemnify Tenant against any such claim.
The Broker shall be paid by Landlord.
17.12 RULES AND REGULATIONS. Tenant agrees to comply, and cause its
employees, agents, contractors, invitees and other representatives to comply,
with any and all rules and regulations established by Landlord for the Property
as reasonably determined by Landlord to be necessary for the orderly and
efficient operation of the Property, including, without limitation, those rules
and regulations set forth in EXHIBIT RR attached hereto and any reasonable
modifications, amendments or additions thereto as Landlord may make from time to
time by written notice to Tenant. However, Landlord shall not be responsible to
Tenant for failure to enforce any of such rules and regulations or for the
non-observance or violation of any of such rules and regulations by any other
tenant or owner or by any other person, or for the non- observance or violation
of or failure to enforce or to perform the provisions of any other lease.
28
34
17.13 SIGNS. Tenant shall obtain the prior written consent of
Landlord, which consent shall not be unreasonably withheld, before placing any
sign at, on, or about the door to the Leased Premises. Tenant shall also obtain
the prior written consent of Landlord, which consent may be withheld in
Landlord's sole and absolute discretion, before erecting any other type of sign
outside of the Building or any exterior door, wall, window, or portion of the
Leased Premises, or within the lobby of the Building and Landlord shall have no
obligation whatsoever to approve any such sign. Any materials or displays
approved by Landlord, shall at all times be maintained by Tenant at its cost and
expense in good condition, good working order and appearance and in compliance
with all applicable laws, codes, ordinances and by-laws; and Tenant hereby
unconditionally and irrevocably authorizes Landlord to enter upon the Leased
Premises at Tenant's expense and without liability or penalty, and to remove any
materials or displays not in accordance with each and all of the foregoing
provisions. Landlord shall provide, at its sole cost and expense, an identifying
sign for Tenant in a Building directory located in the lobby of the first floor
of the Building in the same design and size as the identification in the
Building directory for other tenants of the Building.
17.14 LANDLORD'S ACCESS AND TENANT'S ACCESS; SECURITY. (a) Landlord
or agents of Landlord may, upon forty-eight (48) hours prior notice to Tenant
(or at any time without notice in the case of emergency), enter the Leased
Premises to (i) inspect the same, (ii) remove placards and signs affixed thereto
and not approved as herein provided, (iii) make alterations as provided in
Section 8.2 above or repairs, (iv) show the Leased Premises to others, and (v)
at any time within six (6) months before the expiration of the Term, affix to
any suitable part of the Leased Premises a notice that the Leased Premises are
available for lease and keep the same so affixed without hindrance or
molestation.
(b) Provided Tenant shall not be in default of any term,
covenant or condition of this Lease, Tenant shall have access to the Leased
Premises twenty-four (24) hours per day, seven (7) days a week, fifty-two (52)
weeks per year, through means of the Building card-key security/access system.
17.15 NOTICES. Any and all notices, demands, consents or approvals
required hereunder shall be given in writing in accordance with this Section
17.15. Any notice from Landlord to Tenant shall be deemed duly served, if mailed
to Tenant's Mailing Address (as defined in Section 1.7 above), or such other
address as Tenant may advise by written notice to Landlord, by overnight
courier, or by registered or certified mail, return receipt requested, postage
prepaid. Any notice from Tenant to Landlord shall be deemed duly served, if
mailed to Landlord by a nationally recognized overnight courier, or by
registered or certified mail, return receipt requested, postage prepaid,
addressed to Landlord at Landlord's Mailing Address (as defined in Section 1.6
above) or at such other address as Landlord may from time to time advise in
writing. All payments of Base Rent and Additional Rent shall be paid and sent to
Landlord at Landlord's Mailing Address.
17.16 NO MERGER. There shall be no merger of the leasehold estate
hereby created with the fee estate in the Property or any part thereof if the
same person acquires or holds, directly or
29
35
indirectly, this Lease or any interest in this Lease and the fee estate in the
Property or any interest in such fee estate.
17.17 NO OFFER. The submission of this Lease to Tenant shall not be
construed as an offer, and Tenant shall not have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
17.18 WAIVER OF JURY TRIAL. To the maximum extent permitted by law,
Landlord and Tenant each waive right to trial by jury in any litigation arising
out of or with respect to this Lease.
17.19 FINANCIAL REPORTS. Not more than once in any twelve (12) month
period, and within fifteen (15) days after Landlord's request, Tenant shall
furnish Tenant's most recent financial statements (including any notes to them)
as may have been prepared by an independent certified public accountant or,
failing those, Tenant's internally prepared financial statements to Landlord.
Landlord will not disclose any aspect of Tenant's financial statements that
Tenant designates to Landlord as confidential except (i) to Landlord's lenders
or prospective purchasers of the Property, (ii) in litigation between Landlord
and Tenant, and (iii) if required by court order.
17.20 LANDLORD'S FEES. Whenever Tenant requests Landlord to take any
action or give any consent required or permitted under this Lease, Tenant will
reimburse Landlord for Landlord's reasonable out-of-pocket costs incurred in
reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within ten (10) days
after Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action.
17.21 TELECOMMUNICATIONS. Tenant and its telecommunications
companies, including but not limited to local exchange telecommunications
companies and alternative access vendor services companies shall have no right
of access to and within the Building, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless, and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent which shall not be
unreasonably withheld, conditioned or delayed. Regardless of Landlord's consent
to the installation and operation of such telecommunications systems, Tenant
hereby acknowledges that Landlord has no obligation to Tenant to ensure
performance by telecommunication companies or other service companies, and
Landlord has no responsibility for any delays, deficiencies or defects in
connection with the services provided. Tenant hereby acknowledges and agrees
that the indemnification of Landlord by Tenant set forth in Section 11.2 above,
shall expressly apply to any damage to the Leased Premises or the Building, and
injury to persons or other damage to property occurring during or as a result of
any actions taken or done pursuant to Landlord's consent given in accordance
with this Section 17.21.
30
36
17.22 CONFIDENTIALITY. Tenant and Landlord each acknowledge that the
terms and conditions of this Lease are to remain confidential, and may not be
disclosed by Tenant or Landlord to anyone, by any manner or means, directly or
indirectly, without the prior written consent of the other, except in connection
with a proposed sale or financing. The consent by either the Landlord or the
Tenant to any disclosures shall not be deemed to be a waiver on the part of
either of the prohibition against any future disclosure.
17.23 NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek to
enforce any remedy it may have for any default on the part of the Landlord
without first giving written notice by certified mail, return receipt requested,
specifying the default in reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant, and affording such Landlord's Mortgagee a
reasonable opportunity to perform Landlord's obligations hereunder.
17.24 CONDITION OF LEASED PREMISES. Tenant hereby accepts the Leased
Premises in their "AS-IS" condition, and Landlord shall have no obligation to
perform any work therein (including, without limitation, demolition of any
improvements existing therein or construction of any tenant finish-work or other
improvements therein), and shall not be obligated to reimburse Tenant or provide
an allowance for any costs related to the demolition or construction of
improvements therein except for completion of the Landlord Work (defined below)
in accordance with EXHIBIT LW. No agreement of Landlord to alter, remodel,
decorate, clean or improve the Leased Premises or the Building (or to provide
Tenant with any credit or allowance for the same), and no representations
regarding the condition of the Leased Premises or the Building have been made by
or on the behalf of Landlord or relied upon by Tenant other than with respect to
the Landlord Work as set forth in Section 17.25 and as described in EXHIBIT LW.
Landlord and Tenant expressly disclaim any implied warranty that the Leased
Premises are suitable for Tenant's intended commercial purpose, and Tenant's
obligation to pay rent hereunder is not dependent upon the condition of the
Leased Premises or the performance by Landlord of its obligations hereunder,
and, except as otherwise expressly provided herein, Tenant shall continue to pay
the rent, without abatement, setoff or deduction, notwithstanding any breach by
Landlord of its duties or obligations hereunder, whether express or implied.
Tenant's taking possession of the Leased Premises shall be conclusive evidence
that the Leased Premises were in good order and satisfactory condition when
Tenant took possession.
17.25 LANDLORD'S WORK. Landlord shall perform the construction work
(the "Landlord Work") described in EXHIBIT LW attached hereto in a good and
workmanlike manner and in accordance with all Government Regulations and shall
substantially complete the Landlord Work (that is, complete the Landlord Work,
except for normal "punch list" items which shall be completed within thirty (30)
days after substantial completion of the Landlord Work) on or before May 1,
1999. Subject to the provisions of the following paragraph, if substantial
completion of the Landlord Work is delayed beyond May 1, 1999, payment of Base
Rent pursuant to Section 3.1 of this Lease shall commence on the date the
Landlord Work is substantially complete.
31
37
In the event the Landlord Work is not substantially completed on or
before June 1, 1999 (the "Outside Date for Completion"), Tenant shall have the
right to terminate its obligations under this Lease; provided, however, that (1)
the Outside Date for Completion shall be extended for a period equal to the
duration of any delays in construction caused by strikes, shortages of
materials, acts of God or other matters not reasonably within the control of
Landlord, and (2) in the event any delays in completing the Landlord Work are as
a result of change orders or other delays caused by Tenant, the Outside Date for
Completion shall be extended day for day for each such delay caused by Tenant or
longer if appropriate to compensate for additional delays which were encountered
on account of items enumerated in (1) above that would not otherwise have been
encountered but for the Tenant caused delays. Further, if issuance of a
temporary or permanent certificate of occupancy for the Landlord Work or the
Leased Property is delayed beyond May 1, 1999, because of delays caused by
Tenant, then the rent commencement date shall be May 1, 1999 and on that date
Tenant shall commence to pay Base Rent and Additional Rent under this Lease.
Except for latent defects and deficiencies in the Landlord Work of
which Tenant has given written notice to Landlord not later than thirty (30)
days following the Commencement Date, Landlord shall be deemed to have
satisfactorily completed the Landlord Work, and Tenant shall be deemed to have
waived all rights and remedies with respect to deficiencies (other than latent
defects) in the Landlord Work. If Tenant does give timely notice of
deficiencies, Landlord shall remedy as soon as reasonably practicable any
deficiencies specified in such notice and shall begin such remediation within
thirty (30) days after Tenant's notice.
Landlord shall bear the full cost of the Design Allowance (as defined
below), and the Tenant Improvement Allowance (as defined below). The Design
Allowance shall be the allowance for the cost of any architect or other design
fees incurred to design, and prepare the plans and specifications necessary for,
the Landlord Work, which allowance shall not exceed Ten Thousand Five Hundred
Sixty-Six and 00/100 Dollars ($10,566.00) in total. The Tenant Improvement
Allowance shall be the allowance for any so-called "hard costs" incurred in
constructing the Landlord Work, which allowance shall not exceed Fifty-Eight
Thousand Seven Hundred and 00/100 Dollars ($58,700.00) plus any unused portion
of the Design Allowance. Tenant shall be responsible for any architect or other
design fees in excess of Ten Thousand Five Hundred Sixty-Six and 00/100 Dollars
($10,566.00) and for any construction-related costs of the Tenant Improvements
work exceeding Fifty-Eight Thousand Seven Hundred and 00/100 Dollars
($58,700.00) plus any unused portion of the Design Allowance, and Tenant shall
pay such amount to Landlord within thirty (30) days of receiving an invoice
describing the costs with reasonable detail. The Tenant Improvement Allowance
shall be used for physical improvements only.
17.26 TENANT IMPROVEMENTS. Except for Landlord's Work, all
improvements to the Building required for Tenant's initial occupancy of the
Building are referred to as "Tenant Improvements." Tenant Improvements shall be
constructed in accordance with the plans and specifications prepared by Tenant
("Tenant Space Plan") (as further defined in EXHIBIT TI) and submitted to
Landlord and approved by Landlord as provided below and in EXHIBIT TI.
Landlord's approval, shall be limited to determining whether Tenant's plans and
specifications (a) will have an
32
38
adverse impact on Landlord's re-use of the Leased Premises at the end of the
Term and (b) conform with the requirements of applicable Governmental
Regulations, good construction practices, and insurance industry standards,
their consistency with the architectural and structural integrity of the
Building, and with the ability of the heating, ventilation and air conditioning
system serving the Leased Premises to provide adequate ventilation and
heating/cooling capacity for general office purposes.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed and delivered as a sealed instrument by their respective duly
authorized officers as of the day and year first written above.
LANDLORD: TENANT:
NAGOG PARK INVESTORS, L.L.C. ANDOVER ADVANCED
TECHNOLOGIES, INC. (d/b/a Andover
Net, Inc.)
By: _______________________ By: _____________________________
Its ___________________ Name: _______________________
Title: ______________________
By: ________________________
Name: __________________
Title: _________________
33
39
EXHIBIT FP
FLOOR PLAN OF LEASED PREMISES
SEE ATTACHED
34
40
EXHIBIT LD
LEGAL DESCRIPTION OF PROPERTY
Lot 106 on a Plan entitled " 'Nagog Square' Definitive Subdivision Plan of Land
in Acton, Mass." by X. X. Xxxxxx dated May 10, 1973, last revised November 12,
1973 and recorded with Middlesex South District Registry of Deeds as Plan No.
448 of 1974 in Book 12629, Page 25 (hereinafter called the "Plan"), bounded and
described as follows:
SOUTHERLY by Nagog Park, as shown on the Plan, by five courses,
76.81', 520.00', 99.38', 346.17' and 104.76',
respectively;
SOUTHEASTERLY by land of Nagog Development Company shown on the Plan
as "60' R. O. W. Easement Area 20.450 S.F.," by two
courses, 43.17' and 289.09', respectively;
NORTHERLY by land now or formerly of X. X. Xxxxxx & X. X.
Xxxxxxx, 231.95';
EASTERLY again by said land now or formerly of X. X. Xxxxxx & V.
E. Xxxxxxx by five courses, 86.36', 141.00', 62.49',
110.13', and 135.94', respectively;
NORTHEASTERLY by land now or formerly of S. & X. Xxxxx, 623.67';
NORTHWESTERLY by land shown on the Plan as Lot 8A, by three courses,
109.64', 103.78' and 154.91', respectively;
SOUTHWESTERLY again by said land shown on the Plan as Lot 8A, 102.27'
Together with grant of easements contained in a deed May 27, 1982 recorded in
Book 14625, Page 368.
35
41
EXHIBIT OC
OPERATING COSTS
"Operating Costs" shall mean:
(a) all costs and expenses paid or incurred by Landlord in
operating, managing, equipping, insuring, controlling traffic, policing (if and
to the extent provided by Landlord), lighting, cleaning, maintaining, repairing
(including minor replacements associated with such repair) and restoring the
Property, including all utility lines, pipes and conduits, drainage or sewage
systems, elevators and escalators, and electricity, steam, water, fuel, heating,
lighting and air conditioning systems serving the Property and also including
the costs and expenses for all utilities, including, without limitation, HVAC,
water and sewer service, used or consumed in the Building, and also including
all costs and expenses for mail collection and distribution, sweeping,
snowplowing, sanding, refuse removal, planting and replacing decorations,
flowers and landscaping, painting, uniforms, wages, fidelity bonds, unemployment
taxes, social security taxes, workmen's compensation insurance premiums, fees
for required licenses and permits, supplies, repair, maintenance, operation,
replacement and debt service of any equipment associated with the maintenance or
operation of common areas and Common Facilities (but excluding the cost of
equipment properly chargeable to the capital account and depreciation of the
original cost of construction of the common areas, buildings and building
systems), and any other expense or charge, whether or not hereinbefore
mentioned, which, in accordance with generally accepted accounting and
management principles, would be considered an expense of managing, operating,
maintaining or repairing the Property; and
(b) all premiums for comprehensive general public liability,
property damage, difference-in-condition, casualty, rent loss, elevator, and
other insurance maintained by Landlord with respect to all of the Property,
including the Common Facilities and other common areas and all buildings and
improvements.
Notwithstanding any contrary provision of this Lease, Operating Costs
shall not include expenses relating to the following:
(i) salaries, wages, benefits and other expenses of administrative
employees and other persons not involved in the daily operations of the
Building;
(ii) principal, interest or other charges relating to indebtedness
secured by a mortgage covering any portion of the Property, and payments of rent
and other charges under any superior lease covering any portion of the Property;
(iii) leasehold improvements made in connection with the preparation
of any portion of the Building for occupancy by a new or existing tenant;
36
42
(iv) any expansion of the rentable area of the Building;
(v) costs, expenses or charges properly chargeable or attributable
to a particular tenant or tenants;
(vi) any utility or other service used or consumed in the premises
leased to any tenant or occupant, if Tenant's use or consumption of such utility
or other services is separately metered or sub-metered at the Premises;
(vii) efforts to lease portions of the Building or to procure new
tenants for the Building, including advertising expenses, leasing commissions
and attorney's fees;
(viii) negotiations or disputes with any tenant of the Building;
(ix) Landlord's general overhead not directly related to the
management or operations of the Building;
(x) depreciation of the Building;
(xi) repairs and replacements arising out of a fire or other
casualty or an exercise of the eminent domain of the Building; provided,
however, that the deductible portion of any loss covered by insurance shall be
amortized over the useful life of the improvements which have been repaired or
replaced in response to such fire or other casualty and such amortized portion
shall be includable in annual operating costs;
(xii) Landlord's breach or violation of a law, lease or other
obligation, including fines, penalties and attorneys' fees;
(xiii) compensation paid to employees or other persons in connection
with commercial concessions operated by Landlord;
(xiv) fees for licenses, permits or inspections that are not part of
routine maintenance of the Building (but Operating Costs shall include fees for
licenses, permits of inspections required to comply with changes in any laws
occurring after the Commencement Date) or result from the act or negligence of
Landlord or any other tenant of the Building;
(xv) environmental testing, remediation and compliance;
(xvi) compliance by Landlord with laws existing as of the date of
this Lease, including without limitation the Americans with Disabilities Act and
the regulations and standards thereunder;
(xvii) sculptures, paintings and other works of art;
37
43
(xviii) repairs necessary to cure defects in the construction of any
portion or component of the Building;
(xix) any items with respect to which Landlord receives
reimbursement from insurance proceeds or from a third party; and
(xx) any repair or replacement which would be deemed a capital
expenditure under generally accepted accounting; provided, however, that the
cost of any such repair or replacement shall be amortized over the useful life
of the improvements which have been repaired or replaced and such amortized
portion shall be includable in annual operating costs.
38
44
EXHIBIT FMRV
CALCULATION OF FAIR MARKET RENTAL VALUE
For purposes of Section 2.2, "Fair Market Rental Value" shall be as
reasonably determined by Landlord to be the annual rental charge (including
without limitation Base Rent, Additional Rent and other charges) as of the
commencement date of each Option Period, for new leases then being negotiated or
executed for comparable office space in Boston, Massachusetts for terms
commencing on or about the date of commencement of the Option Period. In
determining Fair Market Rental Value, Landlord shall take into consideration the
size of the premises, location of the premises, lease term, condition and
location of the applicable office building, services provided by the landlord,
rental concessions and other comparable factors). Bona fide written offers to
lease comparable space received by Landlord from third parties (at arm's length)
may be used by Landlord as an indication of the Fair Market Rental Value.
Landlord shall notify Tenant of its determination of Fair Market Rental Value
within thirty (30) days after Landlord's receipt of Tenant's notice exercising
its option to extend. If the Landlord does not receive written notice from
Tenant of Tenant's disagreement with Landlord's determination of the Fair Market
Rental Value within ten (10) days after Tenant's receipt of said determination,
Tenant shall be deemed to have accepted said determination by Landlord. If
Tenant disagrees with Landlord's determination of the Fair Market Rental Value,
Tenant shall have the right, by written notice given to Landlord within ten (10)
days after Tenant has received notice of Landlord's determination, to request
that such Fair Market Value be determined by appraisal in accordance with the
provisions of this EXHIBIT FMRV. In such event, the Fair Market Rental Value
shall be determined by impartial MAI appraisers, one to be chosen by Landlord,
one to be chosen by Tenant (the "Initial Appraisers"), and, if necessary, a
third to be selected as provided below. Landlord and Tenant shall each notify
the other of its selected appraiser within ten days following the giving of
Tenant's request for appraisal as provided above. Each appraiser shall be
independent, familiar with office buildings and leases and rents in Boston,
Massachusetts and experienced in making real estate appraisals. The cost of each
Initial Appraiser shall be paid by the party selecting such Appraiser. The
appraisers shall render their written appraisal of the Fair Market Rental Value
for the Option Period within thirty (30) days following the appointment of both
such appraisers. If the appraisals determined by each of the Initial Appraisers
are less than five percent (5%) apart (I.E., the higher appraisal is less than
105% of the lower appraisal), then the Fair Market Rental Value shall be
determined by taking the average of the two appraisals. In the event the Initial
Appraisers are five percent (5%) or more apart, the Initial Appraisers shall
promptly select a third appraiser who meets the same criteria as required of the
Initial Appraisers ("Third Appraiser"). The Third Appraiser shall submit to
Landlord and Tenant, within twenty-one (21) days after its appointment, its
written appraisal of the Fair Market Rental Value with respect to the Leased
Premises as of the applicable commencement date, which appraisal shall be
binding upon Landlord and Tenant. The cost of the Third Appraiser shall be borne
equally by Landlord and Tenant.
39
45
EXHIBIT RR
RULES AND REGULATIONS
The following rules and regulations shall apply to the Leased Premises,
the Building, and the Property:
1. Sidewalks, doorways, vestibules, halls, stairways, and other
similar areas shall not be obstructed by tenants or used by any tenant for
purposes other than ingress and egress to and from their respective leased
premises and for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or
affixed on or to any windows or doors or other part of the Building (nor to the
outside of the Leased Premises) without the prior written consent of Landlord.
No nails, hooks or screws shall be driven or inserted in any part of the
Building (nor to the outside of the Leased Premises) except by Building
maintenance personnel. No curtains or other window treatments shall be placed
between the glass and the Building standard window treatments.
4. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
5. Movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by tenants of any bulky material, merchandise
or materials which require use of elevators or stairways, or movement through
the Building entrances or lobby shall be conducted under Landlord's supervision
at such times and in such a manner as Landlord may reasonably require. Each
tenant assumes all risks of and shall be liable for all damage to articles moved
and injury to persons or public engaged or not engaged in such movement,
including equipment, property and personnel of Landlord if damaged or injured as
a result of acts in connection with carrying out this service for such tenant.
6. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner acceptable to
Landlord which may include the use of such supporting devices as Landlord may
require. All damages to the Building caused by the installation or removal of
any property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
40
46
7. Corridor doors, when not in use, shall be kept closed. Nothing
shall be swept or thrown into the corridors, halls, elevator shafts or
stairways. No birds or animals shall be brought into or kept in, on or about any
tenant's leased premises. No portion of any tenant's leased premises shall at
any time be used or occupied as sleeping or lodging quarters.
8. Tenant shall cooperate with Landlord's employees in keeping
its leased premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
9. To ensure orderly operation of the Building, no ice, mineral
or other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
10. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors to permeate outside of the Leased
Premises or otherwise interfere in any way with other tenants or persons having
business with them.
11. No machinery of any kind (other than normal office equipment)
shall be operated by any tenant on its leased area without Landlord's prior
written consent, nor shall any tenant use or keep in the Building any flammable
or explosive fluid or substance.
12. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
13. No vending or dispensing machines of any kind may be
maintained in any leased premises without the prior written permission of
Landlord.
14. Tenant shall not conduct any activity on or about the
Property, the Building or the Leased Premises which will draw pickets,
demonstrators, or the like.
15. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expenses of
the owner or driver. Landlord may place a "boot" on the vehicle to immobilize it
and may levy a charge of $50.00 to remove the "boot". Tenant shall indemnify,
hold and save harmless Landlord of any liability arising from the towing or
booting of any vehicles belonging to Tenant, Tenant's agents, vendors, employees
and customers.
41
47
EXHIBIT LW
LANDLORD'S PLANS AND SPECIFICATIONS
Landlord and Tenant shall agree on mutually acceptable plans and specifications
for the Leased Premises which will be attached hereto as EXHIBIT LW
42
48
EXHIBIT TI
TENANT IMPROVEMENTS
(a) Tenant shall cause its architect to prepare a reasonable detailed
layout plan of proposed Tenant Improvements of the Leased Premises, as the same
may be amended ("Tenant Space Plan") and submitted to and approved by Landlord,
which approval or disapproval shall not be unreasonably delayed or conditioned.
Landlord shall provide its approval or disapproval to Tenant within five (5)
business days after Landlord's receipt of the Tenant Space Plan and provided
that any disapproval shall contain reasonable objections, Tenant will enter into
a contract (the "TI Construction Contract") with one of three general
contractors to be chosen by Landlord in its reasonable discretion ("Tenant's
General Contractor"). Tenant shall have the right to solicit competitive bids
for the construction of the Tenant Improvements from said three (3) general
contractors.
(b) Tenant shall adhere to the following requirements in performing all the
Tenant Improvements work. Tenant shall procure all necessary governmental
approvals and all Tenant Improvements work shall be performed at Tenant's risk
in compliance with all applicable laws and in a good and workmanlike manner
employing new materials of good quality and producing a result at least equal in
quality to the other parts of the Leased Premises. When any Tenant Improvements
work is in progress, Tenant shall cause to be maintained insurance as described
below and such other insurance as may be required by Landlord covering any
additional hazards due to such Tenant Improvements work, and is required by
Landlord a statutory xxxx xxxx pursuant to M.G.L. c. 254 ss. 12 or any successor
statute (or such other protection of Landlord's interest in the Building against
liens as Landlord may reasonably require), in each case for the benefit of
Landlord and any mortgagee. It shall be a condition of Landlord's approval of
any Tenant Improvements work (i) that certificates of such insurance, and a xxxx
xxxx in recordable form (if so required), issued by responsible insurance
companies qualified to do business in Massachusetts and reasonably approved by
Landlord, shall have been deposited with Landlord, (ii) that Tenant has provided
Tenant's certification of the insurable value of the work in question for
casualty insurance purposes, and (iii) that all of the other conditions of the
Lease have been satisfied. At all times while performing Tenant Improvements
work, Tenant and each contractor of Tenant shall not discriminate against any
individual because of race, color, sex, religion or national origin.
(c) In performing Tenant Improvements work, each contractor of Tenant shall
comply with Landlord's reasonable requirements relating to the time and methods
for such work, use of delivery elevators and other Building facilities; and no
contractor shall ever interfere with or disrupt any other tenant or other person
using the Building. Each contractor shall in all events work on the Leased
Premises without causing labor disharmony or coordination difficulties, and
without causing any delays to, or impairing any guaranties, warranties or
obligations of, any contractors of Landlord. Tenant and its contractors shall
not have any obligation to employ union labor. If any such contractor uses or
asks Landlord to provide any services in addition to those services specified in
this Lease, such contractors, jointly and severally with Tenant, shall agree to
reimburse Landlord for the
43
49
cost thereof based on Landlord's schedule of charges established from time to
time (and if no such charges have been established, then based on Landlord's
reasonable charge established at the time). Each such contractor shall, by its
entry into the Building, be deemed to have agreed jointly and severally with
Tenant to indemnify and hold Landlord, Landlord's Managing Agent and Landlord's
mortgagee and their respective partners, officers, directors, employees and
agents harmless from any claim, loss or expense arising in whole or in part out
of any act or neglect committed by such person while in the Building, to the
same extent as Tenant has so agreed in the Lease.
Tenant shall purchase and, unless waived in writing by the Landlord in
particular instances, shall cause each contractor of Tenant to purchase, in a
company or companies against which the Landlord has no reasonable objections,
such insurance as will protect Landlord from claims set forth below:
4.1 claims under workers' or workmen's compensation,
disability benefit and other similar employee benefit acts;
4.2 claims for damages because of bodily injury,
occupational sickness or disease, or death of his employees;
4.3 claims for damages because of bodily injury, sickness
or disease, or death of any person other than his employees;
4.4 claims for damages insured by personal injury
liability coverage which are sustained (1) by any person as a result of an
offense directly or indirectly related to the employment of such person by the
Contractor, or (2) by any other person;
4.5 claims for damages, other than to the Tenant
Improvements work itself, because of injury to or destruction of tangible
property, including loss of use resulting therefrom;
4.6 claims for damages because of bodily injury or death
of any person or property damage arising out of the ownership, maintenance or
use of any motor vehicle; and
4.7 claims for contractual liability (both oral and
written) under his undertaking with Tenant.
(d) The insurance required shall include all major divisions of coverage,
and shall be on a comprehensive general basis including Premises and Operations
(deleting X-C-U exclusions), Owners' and Contractor's Protective, Products and
Completed Operations, and Owned, Nonowned, and Hired Motor Vehicles. Such
insurance shall be written for not less than any limits of liability required by
law or those set forth below (which amounts may, from time to time, be
reasonably increased by Landlord), whichever is greater.
44
50
.1 Xxxxxxx'x Compensation - Statutory/Employers Liability and all
additional endorsements $500,000.
.2 Public Liability - Single Limit (Combined) Per Occurrence.
Bodily & Personal Injury $1,000,000
Property Damage $1,000,000 Occurrence/Aggregate.
.3 Automobile Liability - Single Limit (Combined) Per Occurrence.
Bodily Injury $1,000,000
Property Damage $1,000,000 Per Occurrence.
.4 Independent Contractors - $1,000,000 Per Occurrence.
.5 Products and Completed Operations $1,000,000 Per
Occurrence, covering liability for claims made within
applicable statutes of limitations following issuance
of final Certificate of Payment.
.6 Broad Form Blanket Contractual Liability (both oral and
written) $1,000,000 per occurrence.
.7 Excess Liability Umbrella - $5,000,000 Per Occurrence.
Certificates of insurance acceptable to Landlord shall be filed with
Landlord prior to commencement of the Tenant Improvements work. These
Certificates shall contain a provision that coverages afforded under the
policies will not be amended, canceled or non-renewed until at least 30 days'
prior written notice has been given to Landlord and all other additional
insureds. The form of certificate shall be acceptable to Landlord. If by the
terms of insurance carried by tenant or any contractor a mandatory deductible is
required, in the event of a paid claim Tenant or such contractor shall be
responsible for the deductible amount. All deductible/self-insured retention
amounts shall be show on the Certificate of Insurance. In all cases, Landlord,
Landlord's Managing Agent, each mortgagee of the Building and any other person
reasonably designated by Landlord shall be named as additional insureds.
45
51
EXHIBIT J
JANITORIAL SERVICES
CLEANING SPECIFICATIONS
A. GENERAL NOTES
1. All cleaning personnel shall sign in and out at the main lobby
security desk.
2. Building keys shall be accounted for and returned daily. Any
missing keys are to be reported to building security
immediately.
3. All cleaning personnel will wear uniforms and proper
identification including the company and the employee names.
4. Cleaning company will maintain a logbook on a daily basis
noting any problems, areas inaccessible due to tenants working
after hours and utility work completed.
5. Cleaning supervisors will maintain a log of building supplies
used and advise management when to restock. Cleaning
supervisor will be responsible for transporting, storing and
organizing supplies.
6. Supervisors will be responsible for turning off all lights and
locking all doors when their job is done.
B. MAIN LOBBY AND COMMON AREAS
1. Dust mop, wash and rinse all hard floor surfaces. Wash with a
detergent solution and rinse with a clear water solution.
Spray buff, using a high speed floor machine as necessary.
Strip and reseal as directed.
2. Clean all entrance mats as required.
3. Vacuum all carpeted surfaces and spot clean all stains with a
spot carpet cleaner.
4. Clean, with glass cleaner, all fingerprints and marks on all
glass entry doors including revolving doors, etc.
5. Polish all exposed metal surfaces in main lobby.
6. Wipe clean and polish all metal and wood surfaces in elevator
and on elevator doors.
46
52
7. Vacuum carpeted elevators and spot clean as necessary. Wash
freight elevator floor as necessary.
8. Dust elevator light fixtures.
9. Empty all exterior trash receptacles, cleaning as needed and
replace liners.
10. Clean and sanitize all drinking fountains using a germicidal
detergent solution.
C. RESTROOMS
1. Dust mop and sweep tiled lavatory floors. Wash and rinse using
germicidal solution. Machine scrub once per month. Strip and
reseal tile floors as directed.
2. Clean, using a germicidal solution, all metal toilet and
urinal partitions.
3. Clean, using a germicidal solution, all tile walls as
required.
4. Clean all vanity tops.
5. Clean and sanitize all sinks, toilet bowls and seats, and
urinals, using a germicidal detergent.
6. Clean and polish all bright work (chrome fixtures, faucets,
etc.).
7. Clean and sanitize all dispensers and receptacles (soap
dispensers, paper towels, toilet paper, sanitary napkins).
8. Refill all dispensers in lavatories.
9. Remove all waste paper and refuse to a designated area.
D. TENANT CLEANING
1. Empty all wastebaskets and dispose of trash in designated
area. Replace plastic liners.
2. Dust mop, wash and rinse all hard surfaces. Spray buff, using
a high speed floor machine, as necessary. Strip and reseal
floors as directed.
3. Vacuum all carpeted surfaces and spot clean all stairs with a
spot cleaner.
47
53
4. Clean all fingerprints and marks on walls, door frames, kick
planes, door louvers, door handles and light switches.
5. Dust and clean any spots on all baseboards throughout tenant
areas.
6. Dust and wipe clean as necessary, all furniture, chair rails,
moldings, closets and coat racks.
7. Damp wipe and polish all glass furniture tops.
E. UTILITY CLEANING
1. Keep electric and telephone closets in clean and orderly
fashion.
2. Police loading dock and trash areas.
3. Perform miscellaneous projects such as cleaning mechanical
areas, exterior stairs, etc. as may be requested by building
management.
48
54
EXHIBIT TR
TITLE RESTRICTIONS
1. Rights in a cartpath shown and rights represented by a line designated
"APPROX. LAKE NAGOG WATERSHED LINE" on plan dated May 10, 1973, last
revised November 12, 1973, recorded as Plan No. 448 of 1974 in Book
12629, Page 25, as affected by a plan entitled "Nagog Square
Modification Plan in Acton, Mass. Modification of the Nagog Square'
Definitive Subdivision Plan by X.X. Xxxxxx Civil Engineers, dated May
10, 1973 as revised" dated July 5, 1982 recorded in Book 15170, Page
End; Said cartpath being also shown on the Survey referred to in Item
8.
2. Rights under an "Agreement with Water Supply District of Acton to Pay
Demand Charge" dated October 12, 1972 recorded in Book 12345, Page 670,
as affected by an amendment dated May 14, 1974 recorded in Book 12633,
Page 191; Certificate of Performance recorded March 16, 1981 in Book
14238, Page 35; and Revised Certificate of Performance dated May 18,
1981 recorded in Book 14321, Page 63.
3. Declaration of Restrictive Covenants by Nagog Development Company dated
March 13, 1981 recorded in Book 14238, page 59, as affected by First
Amendment dated May 8, 1981 recorded in Book 14286, Page 442, as
affected by Certificate of Approval dated December 1, 1988 recorded in
Book 19599, Page 290, and as affected by Confirmation Certificate of
Approval, dated February 7, 1998 recorded in Book 28159, Page 204.
4. Reservation of a slope easement for the support of the right of way
along the easterly bound of the Premises as set forth in deed from
Nagog Development Company to Digital Equipment Corporation dated May
27, 1982 recorded in Book 14625, Page 368; said Slope Easement being
also shown on the Survey referred to in Item No. 8.
5. Conditions set forth in an instrument of the Acton Board of Selectmen
entitled "DECISION SITE PLAN SPECIAL PERMIT" dated June 9, 1987
recorded in Book 19159, Page 50.
6. Decision of Acton Planning Board for approval of Definitive Plan
Highridge Subdivision, approved October 18, 1989, recorded in Book
20595, Page 358, as shown on plan recorded in Book 20595, Page 356 and
357, affecting an easement over a small, triangular parcel at the
eastern extremity of the insured premises as shown on the survey
referred to in Item 8.
7. Plan entitled "Plan of Land Highridge Subdivision Acton MA Prepared
for: Mutual Development Co. 000 Xxxxxxxxxxx Xxx., Xxxxxx XX 00000"
dated August 21, 1989, last revised September 26, 1989, recorded in
Book 20590, Page 356 as Plan No. 496 of 1990 discloses utility and
grading easement running across the northeasterly corner of the
premises.
49
55
8. Survey entitled "ALTA/ACSM PLAN, 00 XXXXX XXXX XXXXX, XXXXX,
XXXXXXXXXXXXX, PREPARED FOR XXXXXX/SIGNET PARTNERS dated
September 9, 1998, revised September 18, 1998 Prepared by Xxxx
Surveying Associates, Inc., Civil Engineers & Land Surveyors discloses
the following:
a. Approximate Lake Nagog Watershed Line.
b. Telephone, electric, sewer and water lines crosses
onto premises.
c. Record Location of cartpath.
d. Slope Easement Area.
e. Curb cut and curbing in Nagog Park Drive.
f. Utility and grading easement affecting a triangular
portion of the premises at the eastern extremity of
the premises.
9. Terms and provisions of Lease between CTRON ACQUISITION, INC., Landlord
and Digital Equipment Corporation dated February 7, 1998, notice of
which is dated February 7, 1998 recorded in Book 28159, Page 237.
10. Rights set forth in Deed to Digital Equipment Corporation dated May 27,
1982 recorded in Book 14625, Page 368 as shown on the survey referred
to in Item 8.
11. Easement to MCI Metro Access Transmission Services, Inc. dated November
4, 1994 recorded in Book 25085, Page 18.
12. Mortgage, Assignment of Rents and Security Agreement to Principal
Commercial Advisors, Inc. dated November ___, 1998 recorded on November
___, 1998 as Instrument No. _________.
13. UCC-1 Financing Statement naming Nagog Park Investors, L.L.C., as
Debtor, and Principal Commercial Advisors, Inc., as Secured Party,
recorded November ___, 1998 as Instrument No. _______.
a. Board of Appeals Decision (Hearing #80-43) dated
November 3, 1980 recorded November ___, 1998 as
Instrument No. ______ (as reflected in Landlord's
title policy insuring Landlord's interest in the land
described on EXHIBIT A to this Lease).
b. Board of Appeals Decision (Hearing #80-43) dated
November 3, 1980 recorded November ___, 1998 as
Instrument No. _____ (as reflected in Landlord's
title policy insuring Landlord's interest in the land
described on EXHIBIT A to this Lease).
50
