EXHIBIT 10.9
LEASE
Date of Lease: October 1, 1999
Landlord: Boston Mutual Life Insurance Company
having an address at:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Tenant: Embedded Support Tools, Corp., a Massachusetts corporation
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
The Building: The building known and numbered as 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx.
Appurtenant Land and
Improvements: All landscaped grounds, trees, shrubbery, flower beds, parking
lots, driveways, including the driveway from Xxxxxx Street,
walkways, and other improvements located within the ten (10)
acres (more or less) on which the Building is located.
The Premises: The Premises containing approximately 28,878 rentable square
feet located on the second and fourth floors of the Building
together with the right to use in common with others entitled
thereto, the common lobbies, hallways and stairways necessary
for access to said Premises; washrooms; main entrance,
elevators, cafeteria and service entrance of the Building;
driveways, parking lots, and common walkways located within
the Appurtenant Land and Improvements and necessary for access
to the Building. The approximate square footage given in
paragraph 3.1 below for each space comprising the Premises is
stated for identification purposes only; the rents set forth
in paragraph 3.1 are fixed, despite any later remeasurement of
the space. Notwithstanding the immediate prior sentence,
Tenant may, with Landlord's consent, use the space currently
used as the hallway for purposes other than passage, whereupon
the area of such hallway space, the restrooms and service
rooms shall be added to the total square footage for the
Second Floor Space (25,635 square feet), shall be recalculated
to include such hallway space, the rest rooms and service
rooms, and Minimum
Rent and Tenant's Pro Rate Share of Taxes and Operating
Expenses shall be adjusted accordingly. Minimum Rent for the
additional hallway, restrooms and service rooms shall be the
greater of the then market rent or $22.00 per square foot.
Whether or not Tenant has sought Landlord's consent for a
change of use of said hallway, if, in Landlord's
determination, Tenant is using such hallway space for purposes
other than passage, including storage or reception, the total
square footage for the Second Floor Space shall be
recalculated to include such hallway space, rest rooms and
service rooms, and Minimum Rent and Tenant's Pro Rata Share of
Taxes and Operating Expenses shall be adjusted accordingly as
of the date Tenant's use of the hallway space commenced.
Original Term: Three (3) years and six (6) months.
Commencement
Date: October 1, 1999
Expiration Date: March 31, 2003
Pro Rata Share
of Taxes: Square footage of the Premises divided by the total square
footage of the Building (108,010 sq. ft.). Base year: 1997
fiscal year.
Pro Rata Share of
Operating Costs: Square footage of the Premises divided by the total square
footage of the Building. Base year: 1997 calendar year.
Security Deposit: N/A
Minimum Rent: See Article 3.
Use of Premises: General research and development and light assembly.
Number of Parking
Spaces in reserved
parking area: Ten (10) spaces.
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LEASE
LEASE dated as of the first date above, by and between Landlord and Tenant.
1. Premises
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Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
for the term herein set forth, upon and subject to the agreements and conditions
of this Lease, the Premises.
2. Term
----
The Term of this Lease shall commence on the Commencement Date and expire
on the Expiration Date. Notwithstanding the foregoing, Tenant shall be bound by
all obligations upon the Tenant contained in this Lease from and after the
execution and delivery hereof except for Tenant's rent obligations, which shall
commence on the Commencement Date of the term hereof.
3. Minimum Rent
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3.1 Original Term. Tenant shall pay Landlord Minimum Rent according to
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the following schedule:
Approximate
Square Footage Former Space Name Rental Rate Total
7,820* AMCO X $22.00 = $172,040.00
3,192* Sedgwick X $22.00 = 70,224.00
7,282* SR Research X $22.00 = 160,204.00
1,766* Achieve Piece X $22.00 = 38,852.00
3,243 0xx Xxxxx X $20.00 = 64,860.00
5,575* Achieve X $22.00 = 122,650.00
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28,878 Square Feet TOTAL ANNUAL RENT DUE $628,830.00
MONTHLY RENT $ 52,402.50
*Second Floor Space.
3.2 Installments of Minimum Rent. All Minimum Rent hereunder shall be
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payable in equal monthly installments of one-twelfth of the applicable annual
amount, in advance on the first day of each and every calendar month during the
term hereof. All payments of Rent (Minimum Rent, real estate taxes payable
pursuant to Article 4, operating cost escalation payments payable pursuant to
Article 5, noon-time meal service fees payable pursuant to Article 5 and
electrical
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usage charges pursuant to Article 9 are hereinafter collectively referred to as
Rent) shall be made payable to Landlord and sent to Landlord at the place to
which notices to Landlord are required to be sent or to such other person or
address as Landlord shall from time to time designate by notice to Tenant. Rent
for any partial month of any rental period shall be prorated. All Rent hereunder
shall be paid without any deduction, set-off or counterclaim whatsoever (except
as otherwise herein set forth), and without any notice or demand therefor. Any
payment of rent or any other monetary sum due under this Lease which is not paid
within ten (10) days following the date due shall bear interest at the rate of
1-1/2 percent per month.
4. Real Estate Tax Escalation
--------------------------
The Tenant shall pay to the Landlord as additional rent Tenant's Pro-Rata
Share of any increase in real estate taxes, including municipal betterments
levied against the Appurtenant Land and Improvements and Building, over those
incurred or levied during the fiscal year ending June 30, 1997, as finally
determined after tax abatement proceedings (the "Base Fiscal Tax Year.") This
increase shall be prorated should this Lease terminate before the end of any
fiscal year. The Tenant shall make payment of such tax escalation amount, if
any, within twenty days after Landlord has submitted to Tenant a xxxx for the
tax escalation amount. Landlord shall submit a xxxx to Tenant for each tax
installment payment due during any Fiscal Tax Year in which real estate taxes
exceed those incurred in the Base Fiscal Tax Year. The xxxx submitted by
Landlord shall include a copy of Landlord's tax xxxx for the current tax period,
and the first such xxxx rendered to Tenant shall also include a copy of
Landlord's tax xxxx for the Base Fiscal Tax Year. The xxxx shall state the real
estate taxes levied upon or assessed against the Building and Appurtenant Land
and Improvements in the Base Fiscal Tax Year and in the current tax year, and
Tenant's share of the increase. In the event of abatement in the real estate
taxes on the Appurtenant Land and Improvements and Building, the Landlord shall
refund to the Tenant the Tenant's pro-rata share of any such abatement, less the
Tenant's pro-rata share of the fees and costs incurred by the Landlord in
securing such abatement; provided, however, that Tenant shall receive no refund
to the extent that the abatement reduces the taxes below those levied during the
Base Tax Fiscal Year.
5. Operating Cost Escalation
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5.1 Operating Costs. As used in this Article, "Operating Costs" shall
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mean all costs accrued or incurred and expenditures made by the Landlord in the
operation and management of the Building and the Appurtenant Land and
Improvements (hereinafter collectively called the Property), exclusive of
financing expenses, as determined in accordance with generally accepted
accounting principles. Operating costs include, without limitation, costs of
cleaning, security and janitorial service (including costs of materials and
equipment); utilities and
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other costs related to the provision of heat, electricity, telephones and air
conditioning (excluding the cost of electricity for Landlord's electronic data
processing equipment); maintenance and repairs to the Property (including snow
and ice removal, landscaping and gardening, repair and maintenance of parking
areas, and repair of heating and air conditioning equipment, elevators and other
Building components); payments under all service contracts relating to the
operation and maintenance of the Property; management fees; wages, salaries,
benefits, payroll taxes and unemployment compensation insurance for employees of
Landlord or any contractor of Landlord engaged in the cleaning, operation,
maintenance or security of the Property; insurance relating to the Property;
legal fees related to the management of tenants and operation of the Property;
auditing, expenses; amortized capital expenditures made by Landlord; payments
other than taxes (as hereinafter defined) to the Town of Canton (including, but
not limited to, water and sewer charges, fire service fees and other user fees),
supplies and all other expenses customarily incurred in connection with the
operation of first class office buildings.
5.2 Base Operating Cost Amount and Operating Cost Excess. If in any
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calendar year occurring during the term of this Lease, the Operating Costs for
such year exceed the amount of Operating Costs for calendar year 1997, (the
"Base Operating Cost Amount"), Tenant shall pay to Landlord an amount equal to
Tenant's Pro Rata Share of such excess (the "Operating Cost Excess"). Such
amount shall be due and payable within twenty (20) days following receipt by
Tenant of an Operating Cost escalation statement for such year. The Operating
Cost escalation statement shall show in reasonable detail the Operating Costs
for the just-completed year, the total Operating Costs for the Base Year, and
the amount payable by Tenant. If this Lease shall commence or terminate in the
middle of a calendar year, Tenant shall be liable for only that portion of the
Operating Cost Excess in respect of such calendar year represented by a fraction
the numerator of which is the number of days of the term which falls within the
calendar year and the denominator of which is three hundred sixty-five (365).
5.3 Noon-Time Meal Service. In accordance with Exhibit C hereto, Landlord
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shall provide a noon-time meal service in the Building. Landlord shall offer to
Tenant's employees purchasing lunches at the Building meal service the same
discount on meal prices which Landlord provides to its own employees. In the
first year of the Term, Tenant will pay $0.97 per square foot per year for noon-
time meal service (the "Meal Fee"). In each succeeding year of the Term, Tenant
shall pay the Meal Fee plus such additional amount which Landlord reasonably
calculates covers the increase in expense from the previous year for providing
such meal service. Meal Fees and escalations shall be due and payable quarterly
within twenty (20) days following receipt by Tenant of a meal service statement
for such quarter. Tenant may elect not to participate in the discount meal
program by giving Landlord prior written notice of such election. Tenant's
obligations to pay
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the Meal Fee and Landlord's discount meal program shall terminate as of the date
sixty (60) days following Tenant's notice.
6. Security Deposit
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Intentionally Omitted.
7. Possession of Premises and Construction
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Landlord shall be under no obligation to make any repairs, alterations or
improvements to the Premises prior to or at the commencement of the term hereof,
and it is understood and agreed that Tenant will accept the Premises in their
existing physical condition as of the Commencement Date.
8. Use of Premises
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8.1 Tenant agrees that during the term of this Lease the Premises will be
used and occupied solely for the purposes stated on page 2 of this Lease. Tenant
farther agrees that during the term of this Lease: nothing will be done upon or
about the Premises which shall be unlawful, improper, noisy or offensive, or
which may be injurious to or adversely affect the quality or tone of the
Premises or the Building; the Premises will not be overloaded, damaged or
defaced; Tenant will procure all licenses and permits which may be required for
any use made of the Premises (Landlord making no representation, however, that
such licenses or permits will be available); Tenant will not do, or suffer to be
done, or keep or suffer to be kept, or omit to do anything in, upon or about the
Premises which may prevent the obtaining of any insurance on the Premises or any
other portions of the Building, including without limitation, fire, extended
coverage and public liability insurance, or which may make void or voidable any
such insurance, or which may create any extra premiums for, or increase the rate
of, any such insurance. If anything shall be done or kept or omitted to be done
in, upon or about the Premises which shall create any extra premiums for, or
increase the rate of, any such insurance, Tenant shall pay the increased costs
of the same to Landlord upon demand. Such payment shall not, however, constitute
a waiver of any right of Landlord on account of such breach hereunder by Tenant.
9. Services, Repairs, and Alterations
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9.1 Services. (a) Landlord shall provide the services set forth in
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Exhibit C attached hereto. Landlord reserves the right to interrupt, curtail,
stop and suspend the furnishing of any services, including without limitation
noon-time meal service and cleaning services, and the operation of elevators and
of the plumbing, electrical, heating, ventilating and air conditioning systems
when necessary by reason of accident or emergency or for repairs, alterations,
replacements or improvements which may become necessary or when it cannot secure
supplies or labor, or by
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reason of any other cause beyond its control, without liability or any abatement
of rent being due thereby.
(b) Except in the case of emergency repairs, the Landlord shall famish to
the Premises, at the direct expense of Tenant as hereinafter provided,
reasonable electricity for Tenant's permitted office purposes. Landlord shall
grant to Tenant an allowance equal to Two Dollars ($2.00) per square foot per
year for electrical usage for HVAC wall units, electrical outlets and lighting
located within the Premises. At Landlord's election, Landlord may pay for the
installation of a separate electrical meter. If Tenant shall require
electricity in excess of such allowance, Tenant shall, upon demand, reimburse
Landlord quarterly for such additional cost. If Tenant shall require special
data or communication systems or quantities of electricity in excess of normal
office requirements and if (i) in Landlord's judgment, Landlord's facilities are
inadequate for such excess requirements, or (ii) such excess use shall result in
an additional burden on the Building utility systems and additional costs to
Landlord on account thereof, as the case may be, Landlord, in its sole
discretion, and at the sole cost and expense of Tenant, may furnish and install
such additional wires, conduits, feeders, lines, switchboards and related
equipment as reasonably may be required to supply such additional requirements
of Tenant. Tenant shall pay when due all charges made by public or private
utility companies for telephone and other utilities and utility services,
supplied to or consumed upon the Premises, and service inspections made therefor
during the Term (other than those expressly required to be provided by Landlord
hereunder), whether initially charged to Landlord or Tenant and whether
designated as a charge, tax, assessment, fee or otherwise.
9.2 Maintenance and Repair. (a) Tenant shall, at its sole cost and
----------------------
expense, maintain the Premises in good order, condition and repair and shall
make all foreseen and unforeseen and ordinary and extraordinary changes and
repairs required to keep the Premises in good repair and condition including,
without limitation, repairs to doors, locks, hardware, carpets, walls, ceilings,
fixtures, sinks, plumbing within the Premises and interior and exterior glass in
the Premises and cleaning of carpets. Landlord may (but shall be under no
obligation to do so) offer to perform any such maintenance activity for a
reasonable fee to be established by Landlord and paid by Tenant to Landlord in
addition to any other payments pursuant to the terms of this Lease. Tenant shall
wash any dishes and perform any cleaning necessary to maintain in a clean and
sanitary condition, free of all vermin, any kitchen areas or any other areas in
the Premises in which beverages or foods may be prepared or dispensed. If Tenant
fails to maintain the kitchen areas in a clean and sanitary condition, then
Landlord may clean the kitchen areas and Tenant shall pay to Landlord as
additional rent hereunder a reasonable charge determined by Landlord for such
cleaning services.
(b) Landlord shall (i) keep the Building structure, doors, locks and
hardware, and the plumbing not within the Premises, electrical, heating,
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ventilating and air conditioning systems and utility service lines famished by
Landlord in good and serviceable condition and repair (except for any repair or
replacement occasioned by any act or neglect of Tenant, its servants, agents,
customers, contractors, employees or licenses); (ii) keep the sidewalks, common
corridors, stairways, elevators and all other public portions of the Building in
serviceable repair and in a reasonably clean and safe condition; and (iii)
comply with applicable governmental rules, regulations, laws and ordinances
affecting the Building, unless the violation is caused by Tenant or Tenant's use
of the Premises or Tenant's neglect in connection therewith.
9.3 Tenant Improvements and Alterations. Prior to commencing any
-----------------------------------
improvements or alterations to the Premises, including the installation or
modification of telephone communication or data wires, cables and boxes, Tenant
shall obtain the written approval of Landlord, which approval shall not be
unreasonably withheld or delayed, in connection with which Tenant shall submit
to Landlord, prior to commencing such work, detailed plans and specifications,
showing all such work, and the names of all proposed contractors. Electrical
work required by the Tenant will only be performed by the electrician then hired
by the Landlord as the Building Electrician. Tenant shall give Landlord the
opportunity to make the proposed improvements or alterations, at Tenant's
expense. Tenant agrees that it will procure all necessary permits, licenses, and
approvals before commencing any construction upon the Premises. Tenant agrees
that all construction, repairs, installations, alterations, improvements and
removals not done by Landlord ("Tenant Construction") will be done in a good and
workmanlike manner, with a contractor approved by Landlord, in conformity with
all laws, ordinances and regulations of all public authorities and all insurance
inspection or rating bureaus having jurisdiction, and that the structure of the
Building will not be endangered or impaired and that Tenant will repair any and
all damage caused by or resulting from any such Tenant Construction, including,
without limitation, the filling of holes. Tenant must obtain from Landlord prior
written approval (which shall not be unreasonably withheld or delayed) of
proposed work hours and of the timing of delivery of materials and equipment.
Tenant agrees to pay promptly when due all charges for labor and materials in
connection with any work done by Tenant or anyone claiming under Tenant or by
Landlord on behalf of Tenant upon the Premises, so that the Premises will at all
times be free of liens. Tenant agrees to save Landlord harmless from, and
indemnify Landlord against, any and all claims for injury, loss or damage to
person or property caused by or resulting from the doing of any such work.
10. Indemnity and Insurance
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10.1 Indemnity. Tenant agrees to save Landlord harmless from, and
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indemnify Landlord against, to the extent permitted by law, any and all injury,
loss or damage, and any and all claims for injury, loss or damage, of whatever
nature (i) caused by or resulting from, or claimed to have been caused by or to
have resulted
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from, any act, omission or negligence of Tenant or anyone claiming under Tenant
(including without limitation, employees and contractors of Tenant), no matter
where occurring, or (ii) occurring upon or about the Premises, unless caused by
the gross negligence of Landlord, its agents, contractors or employees. Landlord
agrees to save Tenant harmless from, and indemnify Tenant against, to the extent
permitted by law, any and all injury, loss or damage, and any and all claims for
injury, loss or damage, of whatever nature caused by or resulting from, or
claimed to have been caused by or to have resulted from, any act, omission or
negligence of Landlord or anyone claiming under Landlord (including without
limitation, employees and contractors of Landlord), no matter where occurring.
This indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities incur-red in connection with any such injury,
loss or damage or any such claim, or any proceeding brought thereon or in the
defense thereof. To the maximum extent that this agreement may be made effective
according to law, Tenant agrees to use and occupy the Premises and to use such
other portions of the Building as it is herein given the right to use at its
sole risk, and without limiting the generality of the foregoing, if Tenant or
anyone claiming under Tenant or the whole or any part of the property of Tenant
or anyone claiming under Tenant shall be injured, lost or damaged by theft,
fire, water or steam or in any other way or manner, whether similar or
dissimilar to the foregoing, no part of such injury, loss or damage is to be
borne by Landlord or its agents. Tenant agrees that Landlord shall not be liable
to Tenant or anyone claiming under Tenant for any injury, loss or damage that
may be caused by or result from the fault or negligence of any persons occupying
other leased premises within the Building.
10.2 Tenant's Insurance. Tenant shall throughout the term hereof maintain
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general comprehensive public liability insurance with respect to the Premises
and its appurtenances, issued by well-rated insurance companies authorized to do
business in the Commonwealth of Massachusetts and naming Landlord and Tenant as
insureds, in amounts not less than One Million Dollars ($1,000,000) with respect
to injuries suffered in any one accident and not less than Five Hundred Thousand
Dollars ($500,000) with respect to property. Tenant shall keep all personal
property of Tenant and all leasehold improvements made by Tenant fully insured
(for 100% of replacement cost), in well-rated insurance companies authorized to
do business in the Commonwealth of Massachusetts, naming Landlord as additional
insured and Tenant as insured as their respective interests may appear. Tenant
shall deliver to Landlord the policies of all of such insurance, or certificates
thereof, at least thirty (30) days prior to the Commencement Date, and each
renewal policy, or certificate thereof, at least fifteen (15) days prior to the
expiration of the policy it renews. Each such policy shall provide that it may
not be canceled without at least thirty days prior written notice to Landlord.
10.3 Contractor's Indemnity and Insurance. With respect to any additions
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or alterations performed by the Tenant, the Tenant shall require that any
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contractor indemnify and hold both the Tenant and the Landlord harmless from and
against any liability, claims, losses and expenses arising out of, related to or
resulting from the actions or the conduct of the contractor, its sub-
contractors, employees, agents, or their employees, in the performance of the
work required by the Tenant, whether performed on the Premises of the Tenant or
elsewhere. The contractor shall purchase and maintain insurance that will
protect him from claims which may arise out of or result from the contractor's
operation, whether such operations be by himself or by any sub-contractor or by
anyone directly or indirectly employed by any of them or by anyone for whose
acts any of them may be liable.
11. Access to Premises
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11.1 Landlord's Access. Landlord shall have the right to enter upon the
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Premises or any part thereof, without charge, at all reasonable times and, in
case of emergency, at any time, to inspect the same, to show the Premises to
prospective purchasers or tenants, and to make or facilitate any repairs,
alterations, additions or improvements to the Premises or any other part of the
Building. Tenant shall not be entitled to any abatement or reduction of rent or
damages by reason of any of the foregoing. No forcible entry shall be made by
Landlord unless such entry shall be reasonably necessary to prevent serous
injury, loss or damage to person or property.
11.2 Tenant's Access: During the period prior to Tenant's occupancy of the
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Additional Space, Tenant shall provide J.J. Wild Inc. of New England access to
the room containing J.J. Wild's telephone equipment. Such access shall be at
reasonable times and during usual business hours.
12. Fire and Other Casualty; Eminent Domain
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12.1 Fire and Other Casualty. Should a substantial portion of the
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Premises, or of the Building be substantially damaged by fire or other casualty,
the Landlord may elect to terminate this Lease. (The terms "substantial" and
"substantially damaged" are herein defined to mean damage as determined by
Landlord's architect to be of a character as cannot reasonably be expected to be
repaired or the Premises restored within 180 days from the time that such repair
or restoration work would be commenced.) The Tenant may elect to terminate this
Lease if:
(a) The Landlord fails to give written notice within sixty (60) days
of its intention to restore the Premises, or
(b) The Landlord fails to restore the Premises to a condition
substantially suitable for Tenant's intended use within one hundred and
eighty (180) days of the date that Landlord notified Tenant of its
intention to restore the Premises.
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When such fire, casualty, or taking renders the Premises substantially
unsuitable for Tenant's intended use, a just and proportionate abatement of rent
shall be made until the Premises shall be repaired or restored, as aforesaid.
12.2 Eminent Domain.
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(a) If after the execution of this Lease and prior to the expiration
of the term of this Lease the whole of the Premises shall be taken under the
power of eminent domain, then the term of this Lease shall cease as of the time
when Landlord shall be divested of its title in the Premises.
(b) If only a part of the Premises shall be taken under the power of
eminent domain, and if as a result thereof the floor area of the Premises shall
be reduced by more than twenty percent and the part remaining shall not be
reasonably adequate for the operation of the business conducted in the Premises
prior to the taking, Landlord or Tenant may, at its election, terminate the term
of this Lease, by giving the other notice of the exercise of its election within
twenty (20) days after it shall receive notice of such taking, and the
termination shall be effective as of the time that possession of the part so
taken shall be required for public use. If only a part of the Premises shall be
taken under the power of eminent domain and if the term of this Lease shall not
be terminated as aforesaid, then the term of this Lease shall continue in full
force and effect and Landlord shall, within a reasonable time after possession
is required for public use, repair and rebuild what may remain of the Premises
so as to put the same into condition for use and occupancy by Tenant and a just
proportion of the minimum rent according to the nature and extent of the injury
to the Premises shall be suspended or abated until what may remain of the
Premises shall be put into such condition by Landlord, and thereafter a just
proportion of the minimum rent according to the nature and extent of the part so
taken shall be abated for the balance of the term of this Lease. Notwithstanding
the foregoing, Landlord shall not be required to expend in connection with such
repair and rebuilding more than the eminent domain award actually received by
Landlord and allocable to the Premises, nor shall Landlord be required to
restore any leasehold improvements or personal property of Tenant.
(c) Landlord reserves to itself, and Tenant assigns to Landlord, all
rights to damages accruing on account of any taking under the power of eminent
domain or by reason of any act of any public or quasi public authority for which
damages are payable. Tenant agrees to execute such instruments of assignment as
may be reasonably required by Landlord in any proceeding for the recovery of
such damages if required by Landlord, and to turn over to Landlord any damages
that may be recovered in such proceeding. It is agreed and understood, however,
that Landlord does not reserve to itself, and Tenant does not assign to
Landlord, any damages payable for movable fixtures installed by Tenant at
Tenant's sole cost or for moving expenses of Tenant.
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13. Defaults
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13.1 Grace Periods, Defaults, Lease Termination. (A) If Tenant shall
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default in the payment of rent or any other payment required of Tenant, or (B)
if Tenant shall default in the performance or observance of any other agreement
or condition on its part to be performed or observed hereunder, and such default
shall not be corrected within fifteen (15) days after written notice thereof, or
(C) if any person shall levy upon, or take this leasehold interest or any part
thereof upon, execution, attachment or other process of law, or (D) if Tenant
shall make an assignment of its property for the benefit of creditors, or (E) if
Tenant shall be declared bankrupt or insolvent according to law, or (F) if any
bankruptcy or insolvency proceedings shall be commenced by or against Tenant, or
(G) if a receiver, trustee or assignee shall be appointed for the whole or any
part of Tenant's property, or (H) if the individual tenant named herein shall
die or become disabled or shall otherwise cease to be the "principal" and
manager of the business conducted by Tenant in the Premises, or (I) if Tenant
abandons the Premises, then, in any of such cases, Landlord lawfully may,
immediately or at any time thereafter, and without any further notice or demand,
enter into and upon the Premises, or any part thereof in the name of the whole,
by force or otherwise, and hold the Premises as if this Lease had not been made,
and expel Tenant and those claiming under it and remove its or their property,
without being taken or deemed to be guilty in any manner of trespass (or
Landlord may send written notice to Tenant of the termination of the term of
this Lease), and upon entry as aforesaid (or in the event that Landlord shall
send to Tenant notice of termination as above provided, on the fifth (5th) day
next following the date of the sending of the notice), the term of this Lease
shall terminate. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event Landlord terminates this
Lease as provided in this article.
13.2 Rent Indemnity. In case of any such termination, Tenant shall
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indemnify Landlord each month against all loss of rent and all obligations which
Landlord may incur by reason of any such termination between the time of
termination and the expiration of the term of this Lease, or, at such election
of Landlord, exercised at the time of the termination or at any time thereafter,
Tenant shall pay to Landlord as damages the aggregate amount of rent and other
payments provided herein to be paid by Tenant to Landlord through the time when
the term of this Lease would have expired but for the default by Tenant, on an
accelerated basis. It is understood and agreed that at the time of the
termination or at any time thereafter Landlord may rent the Premises, and for a
term which may expire after the expiration of the term of this Lease, without
releasing Tenant from any liability whatsoever, that Tenant shall be liable for
any expenses incurred by Landlord in connection with obtaining possession of the
Premises with removing from the Premises property of Tenant and persons claiming
under Tenant (including warehouse charges), with putting the Premises into
condition for reletting and with
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any reletting, including without limitation, attorneys' fees and brokers' fees,
and that any monies collected from any reletting shall be applied first to the
foregoing expenses and then to the payment of Rent and all other payments due
from Tenant to Landlord.
14. Subordination to Mortgages
--------------------------
This lease is subject and subordinate in all respects to all mortgages
which may be hereafter be placed on or affect this Lease, the Building, or
Landlord's interest or estate therein, and to each advance made or hereafter to
be made under any such mortgages, and to all renewals, modifications,
consolidations, replacements, and extensions thereof and all substitutions
therefor. This Section shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall execute and deliver within ten (10) days any certificate acknowledging or
confirming such subordination that Landlord or any mortgagee or their respective
successors in interest may request.
15. Estoppel Certificate
--------------------
Within seven (7) days after each request by Landlord, Tenant shall deliver
to Landlord and/or to any mortgagee a certificate stating that Tenant has
entered into occupancy of the Premises in accordance with the provisions of this
Lease, that this Lease is in full force and effect, and any other information
reasonably requested.
16. Assignment, Subletting, Other Transfer
--------------------------------------
16.1 Prohibited Transfers. Tenant shall not assign, mortgage, pledge or
--------------------
otherwise encumber this Lease or any interest herein, or sublet the whole or any
part of the Premises, or permit the occupancy thereof by anyone other than
Tenant, or, if Tenant shall be a corporation or partnership, permit any change
in the control of Tenant, whether by transfer of stock, transfer of partnership
interest or otherwise without Landlord's prior written consent which consent
shall not be unreasonably withheld or delayed. Notwithstanding the immediately
preceding sentence, Tenant may assign this Lease to a corporation which owns and
controls Tenant's stock or a wholly-owned subsidiary of Tenant.
16.2 Tenant's Continuing Liability; Excess Rent; Landlord's Expenses. If
---------------------------------------------------------------
this Lease is assigned, or if the Premises or any part thereof be sublet and
occupied by anybody other than Tenant and its employees, Tenant shall remain
liable to Landlord for the payment of all rent and for the full performance of
the covenants and conditions of this Lease. In the event of an assignment or
sublease of this Lease by the Tenant at a Rent (including the additional charges
hereinabove described) in excess of that then being charged the Tenant then an
amount equal to such excess shall be paid by the Tenant to the Landlord.
Landlord shall be entitled to any consideration received by Tenant in connection
with the assignment/sublease
-13-
of the Premises. Tenant shall, upon demand, reimburse Landlord for the legal
fees and expenses incurred by Landlord in processing such assignment or
sublease.
17. Surrender
---------
The Tenant shall at the expiration or other termination of this Lease
remove all Tenant's goods and effects from the Premises, including, without
hereby limiting the generality of the foregoing, all signs and lettering affixed
or painted by the Tenant, either inside or outside the Premises, and Tenant's
telephone, data and communication wiring. Tenant shall deliver to the Landlord
the Premises and all keys, locks thereto and other fixtures connected therewith
and all alterations and additions made to or upon the Premises, in the same
condition as they were put in during the term hereof, reasonable wear and tear
and damage by fire or other casualty only excepted. In the event of the
Tenant's failure to remove any of the Tenant's property from the Premises,
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 the property
at Tenant's expense, or to retain same under Landlord's control or to sell at
public or private sale, without notice, any or all of the 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.
18. Holding Over
------------
If Tenant or anyone claiming under Tenant shall remain in possession of the
Premises or any part thereof after the expiration of the term of this Lease
without any agreement in writing between Landlord and Tenant with respect
thereto, the person remaining in possession shall prior to acceptance of rent by
Landlord be deemed a tenant at sufferance and after acceptance of rent by
Landlord a tenant at will, subject to the provisions of this Lease insofar as
the same may be made applicable to a tenancy at will, provided that minimum rent
shall be payable during such period as such person shall continue to hold the
Premises or any part thereof at twice the highest rate payable during the term
hereof.
19. Waivers
-------
Failure of either Landlord or Tenant to complain of any act or omission on
the part of the other, no matter how long the same may continue, shall not be
deemed to be a waiver by Landlord or Tenant of any of its respective rights
hereunder. No waiver by Landlord or Tenant at any time, express or implied, of
any breach of any provision of this Lease shall be deemed a waiver of a breach
of any other provision of this Lease or a consent to any subsequent breach of
the same or any other provision.
-14-
20. Rules and Regulations
---------------------
Tenant shall observe and comply with, and shall cause its subtenants and
concessionaires and its and their employees and agents to observe and comply
with, reasonable building rules and regulations from time to time promulgated by
Landlord.
21. Failure of Performance
----------------------
21.1 Right to Cure. If Tenant shall default in the performance or
-------------
observance of any agreement or condition in this Lease contained on its part to
be performed or observed, other than an obligation to pay money, and shall not
cure such default within thirty (30) days after notice from Landlord specifying
the default, Landlord may, at its option, without waiving any claim for damages
for breach of agreement, at any time thereafter cure such default for the
account of Tenant, and any amount paid or any contractual liability incurred by
Landlord in so doing shall be deemed paid or incurred for the account of Tenant,
Tenant agreeing to reimburse Landlord promptly therefor or save Landlord
harmless therefrom. Landlord may cure any such default as aforesaid prior to the
expiration of said waiting period, but after notice to Tenant, if the curing of
such default prior to the expiration of said waiting period is reasonably
necessary to protect the real estate or Landlord's interest therein or to
prevent injury or damage to persons or property. If Tenant shall fail to
reimburse Landlord upon demand for any amount paid for the account of Tenant
hereunder, such amount shall be added to and become due as a part of the next
payment of rent due hereunder.
21.2 Costs of Enforcement. If Landlord shall commence legal proceedings
--------------------
against Tenant on account of a default by Tenant in the performance or
observance of any agreement or condition in this lease contained on the part of
Tenant to be performed or observed, in addition to all other amounts payable by
Tenant under this Lease, Tenant shall pay to Landlord, as additional rent, on
demand the costs and expenses, including but without limitation reasonable
attorneys' fees, incurred by Landlord in connection with such proceedings.
22. Definitions and Interpretations
-------------------------------
22.1 "Landlord" and "Tenant." The words "Landlord" and "Tenant" and the
------------------------
pronouns referring thereto, as used in this Lease, shall mean, where the context
requires or admits, the persons named herein as Landlord and as Tenant
respectively, and their respective heirs, legal representatives, successors and
assigns, irrespective of whether singular or plural, masculine, feminine or
neuter. The foregoing shall not be construed to give any rights to Tenant that
shall conflict with the terms of Article 16. The word "Landlord" as used herein
shall mean, however, only the owner for the time being of the landlord's
interest in this lease, i.e., in the event of any transfer of the landlord's
interest in this Lease the
-15-
transferor shall cease to be liable for, and shall be released from all
liability for the performance and observance of, any agreements or conditions on
the part of Landlord to be performed or observed subsequent to the time of such
transfer, it being understood and agreed that from and after such transfer
Tenant shall look solely to the transferee for the performance and observance of
such agreements and conditions.
22.2 Joint and Several Liability. If Tenant shall consist of more than one
---------------------------
person or if there shall be a guarantor of Tenant's obligations under this
Lease, then the liability of all such persons, including the guarantor, if any,
shall be joint and several, and the word "Tenant" as used in clauses (D), (E),
(F) and (G) of Paragraph 13.1 of this Lease shall be deemed to mean any one or
more of such persons.
22.3 Interpretation. It is agreed that if any provisions(s) of this Lease
--------------
shall be determined to be void by any court of competent jurisdiction such
determination shall not affect any other provision(s) of this Lease, all of
which other provisions shall remain in full force and effect, and 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 void and the other
of which would render the provision valid, the provision shall have the meaning
which renders it valid.
22.4 Entire Agreement. This instrument contains the entire and only
----------------
agreement between the parties, and no oral statements or representations or
prior written matter not contained in this instrument shall have any force or
effect. This Lease may not be modified in any way except by a writing subscribed
by both parties.
22.5 Limitation of Landlord's Liability. The term "Landlord", as used in
----------------------------------
this Lease, so far as covenants or obligations to be performed by Landlord are
concerned, shall be limited to mean and include only the owner or owners at the
time in question of the Building, and in the event of any transfer or transfers
of title to said Building, the Landlord herein named (and in case of any
subsequent transfers or conveyances, the then grantor) shall be automatically
freed and relieved from and after the date of such transfer or conveyance of all
liability as respects the performance of any covenants or obligations on the
part of the Landlord contained in this Lease thereafter to be performed, it
being intended hereby that the covenants and obligations contained in this Lease
on the part of Landlord shall, subject as aforesaid, be binding on the Landlord,
its successors and assigns, only during and in respect of their respective
successive periods of ownership of the Property. Tenant, for itself and for its
successors and assigns, agrees it shall not assert nor seek to enforce any claim
for breach of this Lease against any of Landlord's assets other than Landlord's
interest in the Building and Appurtenant Land and Improvements and in the rents,
issues and profits thereof, and Tenant agrees to look solely to such interest
for the satisfaction of any liability of or claim
-16-
against Landlord under this Lease, it being specifically agreed that in no event
whatsoever shall Landlord(which term shall include, without limitation, any
beneficiary of any trust of which Landlord is a trustee) ever be personally
liable for any such liability.
23. Notices
-------
All notices and other communications authorized or required hereunder shall
be in writing and shall be given by mailing the same by certified or registered
mail, return receipt requested, postage prepaid. If given to Tenant the same
shall be mailed to Tenant at the Premises, or to such other address as Tenant
may hereafter designate by notice to Landlord; if given to Landlord the same
shall be mailed to Landlord at the address on page 1 of this Lease or such other
address as the Landlord may from time to time advise in writing.
24. Headings
--------
The headings for the various articles and paragraphs of this Lease are used
only as a matter of convenience for reference, and are not to be considered a
part of this Lease or to used in determining the intent of the parties to this
Lease.
25. Governing Law
-------------
This lease is made pursuant to and shall be governed by and construed in
accordance with the Laws of the Commonwealth of Massachusetts.
[this page ends here]
-17-
In Witness Whereof, Landlord and Tenant have caused this Lease to be
executed, as a sealed instrument, as of the day and year first above written.
WITNESS LANDLORD:
BOSTON MUTUAL LIFE
INSURANCE COMPANY
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------------------- -------------------
Title: Xxxxxxx X. Xxxx, Second Vice
/s/ Xxxxx X. Xxxxxxxxxx President
-------------------------------------
TENANT:
EMBEDDED SUPPORT TOOLS,
CORP.
/s/ Xxxxxx Xxxx By:/s/ Xxxx X. Xxxxxx
------------------------------------- -------------------------------
Controller, North American Operations Title: CFO, Xxxx X. Xxxxxx
------------------------------------- By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Title: President, Xxxxx X. Xxxxxx
EXHIBITS:
--------
A - Floor Plans
B - Landlord's Improvements
C - Landlord's Services
D - Rules and Regulations
-18-
OFFICE LEASE
EXHIBIT A
FLOOR PLANS
-19-
OFFICE LEASE
EXHIBIT B
LANDLORD'S IMPROVEMENTS
None.
-20-
OFFICE LEASE
EXHIBIT C
SERVICES PROVIDED BY LANDLORD
Attached to and Made Part of Lease Dated 10/1, 1999
BETWEEN
BOSTON MUTUAL LIFE INSURANCE COMPANY, LANDLORD
AND
EMBEDDED SUPPORT TOOLS, CORP.
A. Water.
B. Heat and air conditioning at levels generally accepted for normal office
use between the hours of 8:00 a.m. and 6:00 p.m., Monday through Friday of
each week except legal holidays. Saturday, Sunday and holidays only by
permission of Landlord. Written requests for Saturday, Sunday and holiday
are required to be given to Landlord prior to 3:00 p.m. on Friday or the
day preceding the holiday. Excessive use during non-normal office hours
will be billed to Tenant.
C. Electricity for normal lighting of the main lobby, elevators, washrooms and
stairs but not for the Premises.
D. Fully automatic elevator service for access to and from the floor on which
the Premises are located.
E. Noon-time meal service Monday through Friday of each week, except legal
holidays or as scheduled by the Landlord.
F. Cleaning of premises and appurtenant areas in accordance with standards
established for Landlord's own area in the Building.
G. Cleaning of window glass, inside and out, once a year.
H. Free use of parking lot for employees and visitors. Tenant will be
provided with the number of reserved parking spaces in Landlord's reserved
parking area set forth on page 2 of this Lease.
-21-
RULES AND REGULATIONS
---------------------
1. LESSEE may only move or have delivered one office of furniture and
equipment at a time. In the event LESSEE wishes to move or have delivered
more than one office of furniture and equipment at a time, LESSEE must do
so during non-business hours during the week or on a Saturday upon
obtaining LESSOR's approval.
2. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by any
LESSEE, nor shall they be used for any purpose other than ingress and
egress to and from the Premises. LESSOR shall keep the sidewalks and curbs
directly in front of said Premises, clean and free from ice and snow.
3. A building directory will be maintained in the lobby of the building at the
expense of the LESSOR and the number of such listings shall be at the sole
discretion of the LESSOR. Such listing shall include the name of LESSEE and
its floor location. No sign, advertisement, notice or other lettering shall
be exhibited, inscribed, painted or affixed by any LESSEE on any part of
the outside or inside of the Premises or building, without the prior
written consent of the Lessor. In the event of violation of the foregoing
by any LESSEE, LESSOR may remove same without any liability and may charge
the expense incurred by such removal to any LESSEE violating this rule.
Interior Premises signs shall be at LESSEE's expense, and shall be of a
size, color and style acceptable to the LESSOR .
4. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passageways or other public places in the
building shall not be covered or obstructed by any LESSEE, nor shall any
bottles, parcels or other articles be placed on the windowsills.
5. No show cases or other articles shall be put in front of, or affixed to any
part of the exterior of the building, nor placed in the halls, corridors,
vestibules or fire escapes, without the prior written consent of the
LESSOR.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuses of the fixtures shall be borne by the
LESSEE who, or whose servants, employees, agents, visitors, or licensees,
shall have caused same .
7. No LESSEE shall xxxx, paint, drill into, or in any way deface any part of
the Premises or the building of which they form a part. No boring, cutting
or
-22-
stringing of wires shall be permitted, except with the prior written
consent of LESSOR, and as the LESSOR may direct.
8. No bicycles, vehicles or animals of any kind shall be brought in or kept
about the Premises, and no cooking shall be done or permitted by LESSEE on
said Premises. No LESSEE shall cause or permit any unusual or objectionable
odors to be produced upon or permeate from the Premises.
9. No space in the building except as provided in individual Leases shall be
used for manufacturing, for the storage of merchandise, or for the sale of
merchandise, goods or property of any kind at auction.
10. No LESSEE shall make, or permit to be made, any unsettling or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises, or those having business with them, whether by the
use of any musical instrument, radio talking machine, unmusical noise,
whistling, singing, or in any other way. No LESSEE shall throw anything out
of doors, windows, skylights or down the passageways.
11. No LESSEE, nor any of LESSEE's servants, employees, agents, visitors or
licensees, shall at any time bring or keep upon the Premises any flammable,
combustible or explosive fluid, chemical and substance.
12. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any LESSEE, nor shall any changes be made in existing
locks or the mechanism thereof. Each LESSEE must, upon the termination of
his tenancy, return to the LESSOR, all keys for storage and offices, either
furnished to, or otherwise procured by, such LESSEE, and in the event of
the loss of any keys so furnished, such LESSEE shall pay the LESSOR the
cost thereof.
13. All removals, or the carrying in or out of any safes, freight, furniture or
bulky matter of any description must take place during the hours and in the
manner which the LESSOR or its agents may determine from time to time. The
LESSOR reserves the right to inspect all freight to be brought into the
building and to exclude from the building, all freight which violates any
of these Rules and Regulations or the Lease of which these Rules and
Regulations are a part.
14. No LESSEE shall occupy or permit any portion of the Premises leased to him
to be occupied for the possession, storage, manufacture or sale of liquor,
narcotics, dope or any other illegal purpose.
15. LESSOR shall have the right to prohibit any advertising by any LESSEE
which, in LESSOR's opinion, tends to impair the reputation of the building
or its desirability as a building for offices, and upon written notice
from
-23-
LESSOR, LESSEE shall refrain from or discontinue such advertising.
LESSEE shall not use the name of the building or its owner in any
advertising without the express written consent of the LESSON.
16. No LESSEE shall install or permit the installation or foods, Beverages
cigarettes, machines dispensing goods for sale, including without
limitation, foods, beverages, cigarettes or cigars. No food or beverage
shall be carried in the public halls and elevators of the buildings, except
in closed containers.
17. The Premises shall not be used for lodging or sleeping or for any immoral
or illegal purpose.
18. Canvassing, soliciting and peddling in the building is prohibited and each
LESSEE shall cooperate to prevent the same by notifying the LESSOR. LESSOR
reserves the right to inspect any parcel or package being removed from the
building by LESSEE, its employees, representatives and business invitees.
19. There shall not be used in any space or in the public halls of any
building, either by a LESSEE or by jobbers or others in the delivery of or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
20. All persons employed in the Boston Mutual Life Building are required to
sign the Employee Log Book located at the front door Security Station for
access to the building prior to 7:00 a.m. and after 7:00 p.m. weekdays and
all day Saturday, Sundays and Holidays .
21. All persons employed in the Boston Mutual Life Building are to complete a
Vehicle Registration Card for the motor vehicle they will be parking in
building parking lot. Vehicle registration is to be updated as persons
obtain or change vehicles.
22. On a periodic basis as requested by LESSOR, LESSEE is to provide a list of
its current employees to LESSOR.
-24-
