LEASE
LEASE
ARTICLE
1 - REFERENCE DATA
1.1 Subjects
Referred To
Each
reference in this Lease to any of
the following subjects shall be construed to incorporate the date stated for
that subject in this Section 1.1:
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DATE:
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June
22, 2007
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LANDLORD:
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Atlantic-Philadelphia
Realty LLC
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LANDLORD
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ADDRESS:
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c/o
Atlantic Management Corporation
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000
Xxxxxxx Xxxxxx
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Framingham,
Massachusetts 01701
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BUILDING:
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The
building situated on Newbury Street, Framingham, Middlesex County,
Massachusetts, known as #000 Xxxxxxx Xxxxxx (the "Premises"), upon
the Lot
(the "Lot") more particularly described on Exhibit A attached hereto
and
made a part hereof.
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TENANT:
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TENANT
SPACE:
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Those
premises to be used as OFFICE SPACE located on
the second (2nd) floor of the Premises, as shown on floor
plan attached here to as Exhibit B.
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RENTABLE
FLOOR 4,467
rentable square feet
AREA
OF TENANT
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SPACE:
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TOTAL
RENTABLE
FLOOR
AREA OF
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THE
BUILDING:
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56,865
square feet
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TENANT'S
PROPORTIONATE 7.8%
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SHARE:
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TERM:
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Three
(3) Years
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RENT
AND TERM
COMMENCEMENT DATE:
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September
1, 2007
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OCCUPANCY
DATE:
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July
1, 2007
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TERMINATION DATE:
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June 30, 2010 |
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ANNUAL
FIXED RENT:
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The
sum of $20.50/Sq.Ft., which equates to an Annual Fixed Rent of
$91,573.50 per
annum.
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MONTHLY
FIXED RENT:
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Tenant
shall pay the Annual Fixed Rent as
follows:
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Lease
Year
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Annual
Rent
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Monthly
Rent
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| 7/1/07-6/30/08 | $92,990.22 | $7,749.18 |
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7/1/08-6/30/09
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$97,457.22
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$8,121.43
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7/1/09-6/30/10
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$101,924.22
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$8,493.85
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All
such monthly installments are due on or before the fist day of each
month,
beginning with the first payment due on the Commencement
Date.
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OPTION:
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Tenant
shall have one (1) option to extend the term of this Lease for an
additional three years.
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SECURITY
DEPOSIT:
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Tenant
shall deposit the sum equal to one month’s rent, or $7,631.12, which shall
be held by Landlord as a Security Deposit. Said deposit shall
be held by Landlord in a non-interest bearing account and shall be
due and
payable by Tenant upon execution of this
Lease.
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BASE
YEAR
FOR 2007
CALCULATING
LANDLORD'S
OPERATING
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EXPENSE:
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BASE
YEAR
FOR Fiscal
year 2007
CALCULATING
LANDLORD'S
TAX
EXPENSE:
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PERMITTED
USES:
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General
Office Space
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PUBLIC
LIABILITY
INSURANCE
BODILY
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INJURY:
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$1,000,000
Combined Single Limit Coverage
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BROKER:
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X.X.
Xxxxxx Realty Co., Inc.
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SIGNAGE:
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Tenant
will be allowed a sign on the entrance door to the Premises, and
on the
building directory in the lobby
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PARKING:
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Tenant
will receive 3.8 parking spaces per 1,000 square feet of rented space,
or
17 parking spaces, on a first come first serve
basis.
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BUILDING
HOURS:
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Monday
through Friday 7:00 AM to 6:00 PM
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Saturday
8:00 AM to 1:00 PM
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1.2 Exhibits
The
Exhibits listed below in this
Section 1.2 are incorporated in this Lease by reference and are to be construed
as part of this Lease:
Exhibit
A - Description of Lot
Exhibit
B - Floor
Plan Showing Tenant's Space
Exhibit
C - Landlord's Services
Exhibit
D - Rules
and Regulations
Exhibit
E - Estoppel Certificate
Exhibit
F
- Description of Landlord’s Work
1.3 Table
of Contents by Article and Section:
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1.
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Reference
Data
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1.1
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Subjects
Referred To
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1.2
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Exhibits
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1.3
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Table
of Contents
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2.
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Premises
and Term
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2.1
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Premises
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2.2
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Common
Facilities
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2.3
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Landlord's
Reservations
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2.4
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Term
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2.5
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Option
to Renew
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2.6 Holdover
Penalty
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3.
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Alteration
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3.1
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Preparation
of Premises for Occupancy
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3.2
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Tenant
Changes and Additions
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3.3
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General
Provisions Applicable to
Construction
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4.
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Rent
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4.1
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Fixed
Rent
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4.2
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Operating
Expenses Including Real Estate
Taxes
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4.3
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Lot
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4.4
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Accounting
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4.5
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Payment
of Additional Rent
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5.
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Landlord's
Covenants
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5.1
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Landlord's
Covenants
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5.2
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Interruptions
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6.
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Tenant's
Covenants
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6.1
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Tenant's
Covenants
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7.
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Casualty
and Taking
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7.1
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Casualty
and Taking
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7.2
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Reservations
of Award
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8.
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Right
of Mortgage
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8.1
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Subordination
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8.2
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Entry
Other Than For Foreclosure
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8.3
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Entry
For Foreclosure
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8.4
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No
Prepayment
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8.5
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No
Release or Termination
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8.6
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No
Modification, Etc.
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8.7
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Continuing
Offer
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8.8
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Implementation
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8.9
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Financing
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9.
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Defaults
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9.1
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Events
of Default
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9.2
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Tenant's
Obligations After Termination
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9.3
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Landlord's
Default
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10.
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Miscellaneous
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10.1
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Measurement
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10.2
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Titles
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10.3
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Notice
of Lease
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10.4
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Consent
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10.5
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Notice
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10.6
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Bind
and Inure
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10.7
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No
Surrender
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10.8
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No
Waiver, Etc.
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10.9
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No
Accord and Satisfaction
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| 10.10 | Cumulative Remedies |
| 10.11 | Partial Invalidity |
| 10.12 | Landlord's Rights to Cure Xxxxxx's Default |
| 10.13 | Estoppel Certificate |
| 10.14 | Waiver of Subrogation |
| 10.15 | Brokerage |
| 10.16 | Security Deposit |
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11.
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Arbitration
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ARTICLE
2 - PREMISES AND TERM
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2.1
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Premises
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Landlord
hereby leases to Tenant,
subject to and with the benefit of the provisions of this Lease, Tenant's Space
in the Building on the Lot referred to in Section 4.3 below and described in
Exhibit A, excluding exterior faces of exterior walls, the common stairways,
stairwells, elevators and elevator xxxxx, and pipes, ducts, conduits, wires
and
appurtenant fixtures serving exclusively or in common other parts of the
Building, and if Tenant's space includes less than the entire rentable area
of
any floor, excluding the central core area of such floor. Tenant's Space, with
said exclusions, is hereinafter sometimes referred to as the
"Premises". Tenant shall have access to the Premises twenty four
hours a day, seven days a week.
2.2 Common
Facilities
Tenant
shall have, as appurtenant to
the Premises, rights to use in common with others now or hereafter entitled
thereto, subject to reasonable rules of general applicability to Tenants of
the
Building from time to time made by Landlord of which Tenant is given notice:
(1)
the common facilities of the Building and Lot including common walkways,
driveways, lobbies, hallways, ramps, stairways, elevators, loading platform
and
the parking area; (2) the common pipes, ducts, conduits, wires and appurtenant
equipment serving the Premises; and (3) if the Premises include less than the
entire rentable area of any floor, the common toilets and other common
facilities in the central core area of such floor
2.3 Landlord's
Reservations
Landlord
reserves the right, from time
to time, without unreasonable interference with Xxxxxx's use: (1) to install,
repair, replace, use, maintain and relocate for service to the Premises and
to
other parts of the Building, pipes, ducts, conduits, wires and appurtenant
fixtures wherever located in the Building, and (2) to alter or relocate any
other common facility, provided that the substitution are substantially
equivalent or better. Installations, replacements and relocations referred
to in
this Section 2.3 shall be located as far as practicable in the central core
area, above ceiling surfaces, below floor surfaces or within the perimeter
walls
of the Premises.
2.4 Term
To
have and to hold for a period
commencing on with the scheduled Term Commencement Date and continuing for
the
Term unless sooner terminated as provided in Section 7.1 or in Article 9
below.
2.5Option
to Extend
(a) Subject
to the conditions set forth below, Tenant is granted an Option to Renew this
Lease for one (1) consecutive (additional) term of three (3) years (the
“Extension Term”), such Extension Term commencing on the day following the
expiration of this Lease. Said Option to Extend this Lease shall be
on the same terms and conditions and provisions and covenants as set forth
herein (except as specifically set forth hereunder). The Extension
Term shall be subject to and provided that Tenant (a) is not in default beyond
the expiration of any applicable cure period or the monetary covenant, or a
material non-monetary covenant under this Lease; (b) this Lease is still in
full
force and effect; (c) Tenant shall not have sublet, assigned, or otherwise
transferred all or any portion of its interest under this Lease in violation
of
the terms of this Lease; and (d) Tenant shall have exercised this Option at
least nine (9) months prior to the expiration of the Lease Term, then the Tenant
may renew this Lease as set forth below.
(b) The
Base Rent during the Extension Term shall be equal to the greater of the
Tenant’s then current rental rate, or the fair market value rent, as determined
by the Landlord in its sole judgment as of the date of notice from the Tenant
exercising this Extension Term. Landlord agrees to provide Tenant
with written notification of such fair market rental value within twenty (20)
days of receiving a request from Tenant for such notification, provided such
request is received by Landlord no earlier than nine (9) months and no later
than three (3) months and three (3) weeks prior to the expiration of the
original Term.
(c) Except
as provided above, all of the terms, covenants and agreements contained in
this
Lease shall continue during the Extension Term.
2.6 Hold-Over
Penalty.
Tenant
shall be liable to pay two and
one-half times (2.50 times) the Base Rental Amount for any hold-over period
in
the event Tenant fails to vacate on or before the applicable Expiration
Date.
ARTICLE
3 - ALTERATIONS
3.1 Preparation
of Premises for Occupancy
Tenant
shall accept the Premises in
their "as is" and present condition, except that prior to the Term Commencement
date, Landlord, at its expenses, shall perform the work described on Exhibit
F.
3.2 Tenant
Changes and Additions
Tenant
may, from time to time, after
commencement of the Term, make changes and additions to the Premises in
accordance with plans and specifications therefore first being approved by
Landlord, which Landlord will not approve if they will require unusual expense
to readapt the Premises to normal office use on lease termination or will
increase the cost of insurance or taxes on the Building or of Landlord's
services called for by Section 5.1, unless Tenant first provides assurances
acceptable to Landlord for payment of such increased cost and that such
readaptation will be made prior to such termination without expense to Landlord.
All such changes and additions shall be part of the Building except Xxxxxx's
business equipment, business furnishings and other special items relating to
Tenant's business. Such other special items shall include only those items
which
the parties agree in writing at the time of approval shall be removed by Tenant
on termination of the Lease, or which Xxxxxxxx agrees in writing that Tenant
may
elect to remove or leave, provided that the Building is not damaged by removal
nor reduced below the then building standard. All of Tenant's changes and
additions and installations of furnishings shall be coordinated with any work
being performed by Xxxxxxxx and in such manner as to maintain harmonious labor
relations and not to damage the Building or Lot or interfere with Building
operation and, except for installation of furnishings, shall be performed by
Xxxxxxxx's general contractor or by contractors or workmen first approved by
Landlord. Except for work by Xxxxxxxx's general contractor, Tenant, before
its
work is started shall: (a) secure all licenses and permits necessary therefore,
(b) deliver to Landlord a statement of the names of all its contractors and
subcontractors and the estimated cost of all labor and material to be furnished
by them, (c) cause each contractor to carry workmen's compensation insurance
in
statutory amounts covering all of the contractor's and subcontractor's
employees, comprehensive public liability insurance with limits in no event
less
than $1,000,000 combined single limited coverage and property damage insurance
with limits of not less than $1,000,000 (all such insurance to be written
insuring Landlord and Tenant as well as the contractor, and (d) deliver to
Landlord certificates of all such insurance. Xxxxxx agrees to pay promptly,
when
due, the entire cost of any work done on the Premises by Xxxxxx, its agent,
employees or independent contractors, and not to cause or permit any liens
for
labor or materials performed or furnished in connection therewith to attach
to
the Premises. Xxxxxx agrees to immediately discharge any such liens which may
be
so attached.
3.3 General
Provisions Applicable to Construction
All
construction work required or
permitted by this Lease, whether by Landlord or Tenant, shall be done in a
good
and workmanlike manner and in compliance with all applicable laws and all lawful
ordinances, regulations and orders of governmental authority and insurers of
the
Building. Either party may inspect the work of the other at reasonable times,
and shall promptly give notice of observed defects.
ARTICLE
4 - RENT
4.1 Fixed
Rent
Tenant
agrees to pay, without any
offset or deduction whatever except as made in accordance with the provisions
of
this Leased, Annual Fixed Rent at the rate set forth in Section 1.1 above in
equal monthly installments ("Monthly Fixed Rent") at the rate set forth in
Section 1.1 above, on the first day of each calendar month including in the
Term
hereof and for any portion of a calendar month at the beginning or the end
of
the Term, unless otherwise excluded hereunder, at the rate payable in advance
for such portion. Provided, however, that Tenant shall make an
additional payment of $4,250.00 upon the execution of this Lease, which
represents one half the cost of the installation of the kitchen sink and counter
requested by Xxxxxx. The remaining cost $4,250.00, is amortized into the base
rent at the rate of $118.06 per month, or $1,416.67 per year.
4.2 Operating
Expenses - Including Real Estate Taxes
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(a)
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If,
with respect to any calendar year of the Term after the Base Year
for
calculating Landlord's Operating Expenses set forth in Section 1.1,
or
fraction thereof, Xxxxxxxx's Operating Expenses for the Building
and Lot
either:
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(i)
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for
a full calendar year exceed Xxxxxxxx's Initial Operating Expenses,
as
defined below (as the same may be reduced from time to time pursuant
to
the following sentence), or for any fraction of a calendar year exceed
the
corresponding fraction of such Landlord's Initial Operating Expenses;
or
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(ii)
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for
a full calendar year are less than Landlord's Initial Operating Expenses
(as the same may be reduced from time to time pursuant to the following
sentence), or for any fraction of a calendar year are less than the
corresponding fraction of such Landlord's Initial Operating
Expenses;
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then,
on
or before the thirtieth (30th) day following receipt by Tenant of the statement
referred to below in this Section 4.2, Tenant shall, in the case of (i) pay
to
Landlord, as additional rent, Landlord's Operating Expenses allocable to the
Premises, as defined below in this Section 4.2, or in the case of (ii) Landlord
shall, if the Tenant is paying previously a monthly estimated operating expense
charge, credit over the next year such amount against monthly installments
of
operating expense next coming due.
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(b)
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Landlord
shall render Tenant an unaudited statement in reasonable detail and
according to usual accounting practices showing for the preceding
calendar
year or fraction thereof, as the case may be, Landlord's Operating
Expenses for the Building and Lot, excluding costs of special services
rendered to tenants (including Tenant) for which a special charge
is made,
but including without limitation: real estate taxes on the Building
and
Lot; installments and interest on assessments for public betterments
or
public improvements, offset by any condemnation award, such assessments
to
be paid over the longest period permitted by law; expenses of any
proceedings for abatement of taxes and assessments with respect to
any
calendar year or fraction of a calendar year; premiums for insurance
of
any kind normally carried by owners of similar properties (including
insurance in case of fire or casualty) or, if there be any mortgage
of the
Lot or Building, or both, as may be required by the holder of the
mortgage; compensation and all fringe benefits, workmen's compensation
insurance premiums and payroll taxes paid by Landlord to, for or
with
respect to all persons engaged in the operating, maintaining or cleaning
of the Building or Lot; steam, water, sewer, electric, gas and telephone
charges not chargeable to tenants; cost of building and cleaning
supplies
and equipment; and cost of maintenance, cleaning and repairs (other
than
repairs not properly chargeable against income or for which Landlord
has
received reimbursement from contractors under guaranties); cost of
snow
removal and care of landscaping; payments under service contracts
with
independent contractors; management fees at a rate of six percent
(6%) of
total rent from all tenants; and all other reasonable and necessary
expenses paid in connection with the operation, cleaning and maintenance
of the Building and Lot and properly chargeable against
income.
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(c)
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If
some other method or type of assessment or taxation shall replace
the
current method of assessment or the type of real estate taxes, Xxxxxx
agrees to pay an equitable share of the same computed in a fashion
consistent with the method of computation herein provided, to the
end that
Xxxxxx's share thereof shall be, to the maximum extent practicable,
comparable to that which Tenant would bear under the foregoing provisions.
If a tax (other than a Federal or State net income tax) is assessed
on
account of the rents or other charges payable by Tenant to Landlord
under
this Lease, the Tenant agrees to pay the same within ten (10) days
after
billing therefore, unless applicable law prohibits the payment of
such tax
by Xxxxxx.
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(d)
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Landlord's
Initial Operating Expenses shall be Landlord's expenses for the Base
Year
for Calculating Landlord's Base Operating Expenses set forth in Section
1.1. Xxxxxxxx's Operating Expenses Allocable to the Premises for
any
particular year shall be determined by multiplying the difference
between
Landlord's Operating Expenses for the Building and Lot for the items
covered by the foregoing statement for such year and Landlord's Initial
Operating Expenses times a fraction, the numerator of which is the
Rentable Floor Area of Tenant's Space and the denominator of which
is the
Total Rentable Floor Area of the Building ("Tenant's Proportionate
Share"). In case of special services which are not rendered to all
areas
on a comparable basis, the proportion allocable to the Premises shall
be
the same proportion which Rentable Floor Area of Tenant's Space bears
to
the total rentable floor area of the Building to which such service
is so
rendered (such latter area to be determined in the same manner as
the
Total Rentable Floor Area of the
Building).
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(e)
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Landlord
shall maintain accurate, detailed records of Landlord’s Operating Expenses
at Landlord’s office identified on page 1 of this Lease for at least two
(2) years after delivery of the Statement to Tenant. During the
six (6) months after a Statement is submitted to Tenant, Tenant may,
upon
ten (10) days’ prior written notice to Landlord, inspect and/or audit
Landlord’s records of Landlord’s Operating Expenses for the period covered
by such Statement. If the audit shows that Xxxxxx paid less of
Tenant’s pro rata share of Landlord’s Operating Expenses than was actually
due, Tenant shall pay the amount of the deficiency to Landlord within
one
(1) month after Xxxxxx’s receipt of such audit. If the audit
shows that Xxxxxx paid more of Tenant’s pro rata share of Landlord’s
Operating Expenses than was actually due, Landlord shall, at Tenant’s
election, pay said excess to Tenant within one (1) month after completion
of such audit or credit such excess to Tenant’s next installment of Base
Rent due. If such audit shows that such Statement contains an
overstatement of Landlord’s Operating Expenses exceeding five percent (5%)
of the actual Landlord’s Operating expenses for the period covered by such
Statement, then the reasonable third party fees and expenses actually
incurred by Xxxxxx in conducting such audit shall be paid by Landlord;
otherwise, such fees and expenses shall be paid by Tenant. If
Landlord protests the conclusions of such audit, Landlord may contest
Tenant’s determination by giving Tenant written notice within one (1)
month following Xxxxxxxx’s receipt of the audit report. If
Landlord and Xxxxxx cannot mutually agree as to Tenant’s pro rata share of
Landlord’s Operating Expenses due within one (1) month after Xxxxxx’s
receipt of Landlord’s notice of protest, Landlord and Tenant shall jointly
choose an independent Certified Public Accountant, whose determination
shall be binding upon the parties hereto. If Landlord and
Xxxxxx fail to agree upon an independent Certified Public Accountant,
the
parties agree to proceed forthwith to arbitrate the issue in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association. The cost of the independent Certified Public
Accountant or the cost of arbitration shall be borne equally by the
parties, but the cost of the audit shall be borne by either Landlord
or
Tenant as aforesaid.
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4.3 Lot
"Lot"
means all the land described in Exhibit A, or any part(s) thereof, plus any
addition(s) thereto resulting from the change of any abutting street
line.
4.4 Accounting
Landlord
shall have the right, from time to time, to change the periods of accounting
under Section 4.2 to any annual period other than a calendar year, and upon
any
such change, all items referred to in said Section 4.2 shall be appropriately
apportioned. In all statements rendered under Section 4.2 amounts for periods
partially within and partially without the accounting periods shall be
appropriately apportioned. Any costs which are not determinable at the time
of a
statement shall be included therein on the basis of Landlord's estimate, and
Landlord shall render promptly after determination of such costs a supplemental
statement and appropriate adjustment shall be according thereto, provided,
however, that under no circumstances shall a change in the periods of accounting
result in Tenant paying more amounts than provided under Section 4.2, merely
because of such change in periods of accounting.
4.5 Payment
of Additional Rent
Except
as otherwise specifically provided in this Lease, any sum, amount, item or
charge designated or considered as additional rent in this Lease shall be paid
by Tenant to Landlord on the first day of the month following the date on which
Landlord notifies Tenant of the amount payable, or on the fifteenth day after
the giving of such notice, whichever shall be later. Any such notice shall
specify, in reasonable detail, the basis of such additional rent. On the first
day of each month following that month in which notice of additional rent is
given, Tenant shall pay to Landlord one-twelfth (1/12) of the amount reasonably
estimated by Landlord to be the amount of additional rent which shall be payable
by the Lessee for the then current year. Reasonably estimated amounts shall,
where possible, be based on actual cost experience. When the actual, rather
than
reasonably estimated, amount(s) of such additional rent has been ascertained,
Landlord shall notify Tenant of the amount due, if any, giving credit for the
monthly payments theretofore made by Tenant and crediting the overage, if any,
against additional rent to become due. Tenant shall pay any balance due within
ten (10) days after Landlord's notice.
ARTICLE
5 - LANDLORD'S COVENANTS
5.1 Landlord's
Covenants
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(a)
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to
furnish, through Landlord's employees or independent contractors,
the
services listed in Exhibit C attached hereto and made a part hereof;
and
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(b)
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to
furnish, through Landlord's employees or independent contractors,
reasonable additional building operation services upon reasonable
advance
request of Tenant at equitable rates from time to time established
by
Landlord to be paid for by Tenant;
and
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(c)
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except
as otherwise provided in Article 7, to make such repairs to the roof,
exterior walls and glass, floor slabs and common areas and facilities
of
the Building as may be necessary to keep them in serviceable condition;
and
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(d)
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that
Landlord has the right to make this Lease and that Tenant, on paying
the
rent and
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performing
its obligations in this Lease, shall peacefully and quietly have, hold and
enjoy
the Premises throughout the Term, subject to all the terms and provisions
hereof; and
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(e)
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to
defend, save harmless and indemnify Tenant from any liability or
injury,
loss, accident or damage to any person or property and from any claims,
actions, proceedings and expenses and costs in connection therewith
(including, without limitation, reasonable counsel fees), (i) arising
from
the omission, fault, wilful act, negligence or other misconduct of
Landlord or from any use made or thing done or occurring on the Premises
not due to the omission, fault, wilful act, negligence or other misconduct
of Tenant, or (ii) resulting from the failure of Landlord to perform
and
discharge its covenants and obligations under this
Lease.
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5.2
|
Interruptions
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(a)
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Landlord
shall not be liable to Tenant for any compensation or reduction of
rent by
reason of inconvenience or annoyance or for loss of business arising
from
power losses and shortages, the necessity of Landlord's entering
the
Premises for any of the purposes in this Lease authorized, or for
repairing the Premises or any portion of the Building or Lot however
the
necessity may occur. In case Landlord is prevented or delayed from
making
any repairs, alterations or improvements, or furnishing any services
or
performing any other covenant or duty to be performed on Landlord's
part,
by reason of any cause reasonably beyond Landlord's control. Landlord
shall not be liable to Tenant therefore, nor, except as expressly
provided
in Section 7.1, shall Tenant be entitled to any abatement or reduction
of
rent by reason thereof, nor shall the same give rise to a claim in
Tenant's favor that such failure constitutes actual or constructive,
total
or partial, eviction from the
Premises.
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(b)
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Landlord
reserves the right to stop any service or utility system, when necessary,
by reason of accident or emergency, or until necessary repairs have
been
completed; provided, however, that in each instance of stoppage,
Landlord
shall exercise reasonable diligence to eliminate the cause(s) thereof.
Except in case of emergency repairs, Landlord will give Tenant reasonable
advance efforts to avoid unnecessary inconvenience to Tenant by reason
thereof.
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ARTICLE
6 - TENANT'S COVENANTS
6.1 Tenant's
Covenants
Tenant
Covenants during the Term hereof
and such further time as Tenant occupies any part of the Premises:
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(a)
|
to
pay when due all fixed rent and additional rent, all taxes which
may be
imposed on Tenant's personal property on the Premises (including,
without
limitation, Tenant's fixtures and equipment) regardless to whomever
assessed, and all charges by Landlord or by public utility companies
for
telephone, electricity, gas and any other utility services and service
inspections therefor, and all charges by public utility companies
for
installation of metering devices (which charges, if not separately
metered
or otherwise apportionable, shall be apportioned on a floor area
basis for
multi-tenanted floors)(electricity charges for the Premises, however,
are
separately metered and Tenant shall be responsible for paying such
charges
directly to the supplier thereof), and all charges of Landlord for
services rendered pursuant to Section 5.1;
and
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(b)
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except
as otherwise provided in Article 7 and Section 5.1 (c), to keep the
Premises in good order, repair and condition, reasonable wear and
damage
by fire and casualty only excepted, and at the expiration or termination
of this Lease peaceable to yield up the Premises and all changes
and
additions therein in such order, repair and condition, first removing
all
goods, effects and fixtures of Tenant and any items the removal of
which
is required by any agreement made pursuant to Section 3.2 hereof,
or
specified therein to be removed at Tenant's election and which Tenant
elects to remove, and repairing all damage caused by such removal
and
restoring the Premises and leaving them clean and neat;
and
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(c)
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not
inure or deface the Premises, Building or Lot, nor to permit in the
Premises any auction sale, or nuisance, or the emission from the
Premises
of any objectionable noise or odor, nor to use or devote the Premises
or
any part thereof for any purpose other than the Permitted Uses, nor
any
use thereof which is improper, offensive, contrary to law or ordinance,
or
liable to invalidate or increase the premiums for any insurance on
the
Building or its contents or liable to render necessary any alteration
or
addition to the Building; and
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(d)
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not
to obstruct in any manner any portion of the Building not hereby
leased or
any portion thereof or of the Lot used by Tenant in common with others;
not without prior consent of Landlord to permit the painting or placing
of
any signs or the placing of any curtains, blinds, shades, awnings,
aerials
or flagpoles, or the like, visible from outside the Premises; and
to
comply with the Rules and Regulations set forth in Exhibit D attached
hereto, and all other reasonable rules and/or regulations hereafter
made
by Landlord, of which Tenant has been given notice, for the case
and use
of the Building and Lot and their facilities and approaches; Landlord
shall not be liable to Tenant for the failure of other tenants of
the
Building to conform to such Rules and Regulations;
and
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(e)
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to
keep the Premises equipped with all safety appliances required by
law or
ordinance or any other regulation of any public authority because
of any
use made by Tenant other than normal office use, and to procure all
licenses and permits so required because of such use and, if requested
by
Landlord, to do any work so required because of such use, it being
understood that the foregoing provisions shall not be construed to
broaden
in any wan Tenant's Permitted Uses;
and
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(f)
|
not
without prior consent of Landlord to assign this Lease or sublet
the
Premises (which consent Landlord shall not unreasonably withhold);
as
additional rent, to reimburse Landlord promptly for reasonable legal
and
other expenses incurred by Landlord in connection with any request
by
Tenant for consent to a assignment or subletting; no assignment or
subletting and no consent of Landlord thereto shall affect the continuing
primary liability of Tenant (which, following assignment, shall be
joint
and several with the assignee); no consent to any of the foregoing
in a
specific instance shall operate as a waiver in any subsequent instance;
and not withstanding Landlord's consent, no assignment shall be binding
upon Landlord or any of Landlord's mortgagees, unless Tenant shall
deliver
to Landlord an instrument in recordable form which contains a covenant
of
assumption by the assignee running to Landlord and all persons claiming
by, through or under Xxxxxxxx, but the failure or refusal of the
assignee
to execute such instrument of assumption shall not release or discharge
assignee from its liability as Tenant hereunder nor shall execution
of
such instrument of assumption affect the continuing primary liability
of
Tenant; Landlord agrees not to unreasonably withhold or delay its
consent
to an assignment or subletting, provided, however, that with respect
to
any assignment or subletting, the following provisions shall
apply:
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(1) Tenant
shall give Landlord written notice of the assignment or subletting no less
than
45 days prior to the effective date thereof, which notice shall set forth the
identity of the proposed transferee, and the nature of the proposed transferee’s
business to be carried on in the Premises.
(2) Tenant
shall furnish Landlord (a) no less than 30 days prior to the effective date
of the assignment or subletting, with a current financial statement of the
proposed transferee reasonably acceptable to Landlord, and (b) within three
(3) days following Landlord’s demand, with all other information reasonably
requested by Xxxxxxxx with respect to such transferee.
In
any case, where the Landlord shall
consent to such assignment, other transfer or subletting, the Tenant originally
named herein shall remain fully liable for Tenant obligations hereunder,
including, without limitation, the obligation to pay the rent and other amounts
provided under this Lease, and the Tenant also hereby agrees to pay to the
Landlord, within fifteen (15) days of billing therefor, all legal and other
fees
incurred by the Landlord in connection with reviewing and approving any such
assignment, other transfer or subletting. Any Assignment or subletting, whether
or not Landlord's prior consent is required, shall be subject to any successor
using the Premises for the same use as Tenant's use, or for a modified use
only
if acceptable to Landlord. The Tenant shall give written notice to
the Landlord of the terms of any such proposed assignment or sublease and the
Landlord shall be entitled to 50% of all net profits from any such sublease
or
assignment. Net profit shall be calculated by first allowing Tenant
to recover any reasonable construction and commission inducement(s) given to
the
subtenant or assignee. It shall be a condition of the validity of any
permitted assignment or other transfer or subletting that the assignee or
transferee or subtenant agree directly with the Landlord, in form satisfactory
to the Landlord, to be bound by all Tenant obligations hereunder, including,
without limitation, the obligation to pay rent and other amounts provided for
under this Lease and the covenant against further assignment or other transfer
or subletting.
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(g)
|
to
defend, with counsel approved by Landlord, save harmless and indemnify
Landlord from any liability or injury, loss, accident or damage to
any
person or property and from any claims, actions, proceedings and
expenses
and costs in connection therewith (including without limitation reasonable
counsel fees), (i) arising from the omission, fault, willful act,
negligence or other misconduct of Tenant or from any use made or
thing
done or occurring on the Premises not due to the omission, fault,
willful
act, negligence or other misconduct of Landlord, or (ii) resulting
from
the failure of Tenant to perform and discharge its covenants and
obligations under this Lease; and
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(h)
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to
maintain public liability insurance on the Premises in the amounts
which
shall, at the beginning of the Term, be at least equal to the limits
set
forth in Section 1.1, and, from time to time during the Term, shall
be for
such higher amounts, if any, as are customarily carried in the area
in
which the Premises are located on property similar to the Premises
and
used for similar purposes, and to furnish Landlord with certificates
thereof: and
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(i)
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to
keep all Tenant's employees working in the Premises covered by workmen's
compensation insurance in statutory amounts and to furnish Landlord
with
certificates thereof; and
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(j)
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to
permit Landlord and Xxxxxxxx's agents to examine the Premises at
reasonable times and, if Landlord shall so elect, to make any repairs
or
replacements Landlord may deem necessary to avert an emergency, to
remove,
at Tenant's expense, any changes, additions, signs, curtains, blinds,
shades, awning(s), aerials, flagpoles, or the like, not consented
to in
writing, and to show the Premises to prospective tenants during twelve
(12) months preceding the expiration of the Term hereof and to prospective
purchasers and mortgagees at all reasonable times upon reasonable
appointment with Tenant; and
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(k)
|
not
to place a load upon the Premises exceeding an average rate of 80
pounds
of live load per square foot of floor area; and not to move any safe,
vault or other heavy equipment in, about or out of the Premises except
in
such manner and at such times as Landlord shall in each instance
authorize; Tenant's business machines and mechanical equipment which
cause
vibration or noise that may be transmitted to the Building structure
or to
any other leased space in the Building shall be placed and maintained
by
Tenant in settings of cork, rubber, spring or other type of vibration
eliminators sufficient to eliminate all such vibrations or noise;
and
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(l)
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all
the furnishings, fixtures, equipment, effects and property of every
kind,
nature and description of Tenant and of all persons claiming by,
through
or under Tenant which, during the continuance of this Lease or any
occupancy of the Premises by Tenant or anyone claiming under Tenant,
may
be on the Premises or elsewhere in the Building, shall be at the
sole risk
and hazard of Tenant, and if the whole or any part thereof shall
be
destroyed or damaged by fire, water or otherwise, or by the leakage
or
bursting of pipes, steam pipes or other pipes, by theft or from any
other
cause, no part of said loss or damage is to be charged to or borne
by
Landlord; and
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(m)
|
not
to suffer or permit any liens to stand against the Premises by reason
of
work, labor services or materials done for or at the request of Tenant;
Tenant shall cause any such liens to be immediately discharged within
thirty (30) days after the date of any such lien(s) being filed thereof;
and
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(n)
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in
case Landlord shall, without any fault on its part, be made party
to any
litigation commenced by or against Tenant or by or against any parties
in
possession of the Premises or any party thereof claiming under Tenant,
to
pay, as additional rent, all costs including, without limitation,
reasonable attorney fees, incurred by or imposed upon Landlord in
connection with such litigation, and also to pay, as additional rent,
all
such costs and fees incurred by Landlord in connection with the successful
enforcement by Landlord of any obligations of Tenant under this Lease;
and
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(o)
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not
to allow any of the Tenant's employees, agents, etc., to park illegally,
i.e. in fire lanes, traffic lanes, spaces marked for visitors, handicapped
or reserved parking, etc.; and
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(p)
|
not
to allow any of Tenant's employees, agents, etc. to smoke anywhere
in the
building, including the Leased Premises, hallways, corridors, bathrooms,
etc., as the Building is a "Smoke Free"
building.
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ARTICLE
7 - CASUALTY AND TAKING
7.1 Casualty
and Taking
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(a)
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In
case during the Term all or any substantial part of the Premises
are
damaged materially by fire or other casualty or by action of public
or
other authority in consequence thereof, or are taken by eminent domain
or
Landlord receives compensable damage by reason of anything lawfully
done
in pursuance of public or other authority (a "Material Event" subject
to
Section 7.1 (c) below), this Lease shall terminate at Landlord's
or
Tenant's election, which may be made notwithstanding that Xxxxxxxx's
entire interest may have been divested, by notice given to the other
within sixty (60) days after the notice given by Landlord pursuant
to
Section 7.1(c) hereof, which notice shall specify the effective date
of
termination. Tenant shall also have the right to terminate (i) in
the
event of substantial damage to or taking of the Building or Lot that
renders Tenant unable to conduct its business in the Premises, or
(ii) in
the event of damage to the Premises in the last ninety (90) days
of the
Term, which damage renders the Premises untenantable for more than
fifteen
(15) days.
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(b)
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In
case, during the Term, all or any substantial part of the Building
or the
Lot are damaged materially by fire or other casualty or by action
of
public or other authority in consequence thereof, or are taken by
eminent
domain or Landlord receives compensable damage by reason of anything
lawfully done in pursuance of public or other authority (a "Material
Event" subjection to Section 7.1 (c) below), this Lease shall terminate
at
Landlord's election, which may be made notwithstanding that Xxxxxxxx's
entire interest may have been divested, by notice given to Tenant
within
sixty (60) days after the occurrence of the notice given by Landlord
pursuant to Section 7.1 (c) hereof, which notice shall specify the
effective date of termination.
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(c)
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The
effective date of any termination by Landlord or Tenant under this
Section
7.1 shall not be less than fifteen (15) days nor more than thirty
(30)
days after the date of such notice of termination. For all purposes
of
this Section 7.1., no damage or taking shall be considered a "Material
Event" unless the time needed for Landlord to do the construction
work
necessary to put the Premises, Building or Lot or the remainder in
proper
condition for use and occupancy is reasonably estimated by Landlord
to
exceed six (6) months, or if more than thirty percent (30%) of the
Lot,
the Building or the Premises are so taken. In case of any such damage
or
taking, Landlord shall notify Tenant within thirty (30) days after
the
occurrence thereof of Landlord's estimate of the time needed to do
the
construction work necessary to put the Premises, Building or Lot
or the
remainder in proper condition for use and occupancy, or of the percentage
of the Building, Lot or Premises
taken.
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(d)
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If
in any such case, the Premises are rendered unfit for use and occupancy
and the Lease is not so terminated, Landlord shall use due diligence
(following the expiration of all periods in which either party may
terminate this Lease pursuant to the foregoing provisions of this
Section
7.1 ) to put the Premises, or in case of taking what may remain thereof
(excluding any times installed or paid for by Tenant that Tenant
may be
required to remove pursuant to Section 3.2), into proper condition
for use
and occupancy and a just proportion of the fixed rent and additional
rent
according to the nature and extent of the injury shall be abated
until the
Premises or such remainder shall have been put by Landlord in such
condition, and in case of a taking that permanently reduces the area
of
the Premises, a just proportion of the fixed rent and additional
rent
shall be abated for the remainder of the
Term.
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7.2
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Reservation
of Award
|
Landlord
reserves to itself all rights
to receive awards made for damages to the Premises and Building and Lot and
the
leasehold hereby created, or any one or more of them accruing by reason of
exercise of eminent domain or by reason of anything lawfully done in pursuance
of public or other authority.
Tenant
hereby releases and assigns to
Landlord all Tenant's rights to such awards, and covenants to deliver such
further assignments and assurances thereof as Landlord may from time to time
request, hereby irrevocably designating and appointing Landlord as its
attorney-in-fact to execute and deliver in Xxxxxx's name and behalf all such
further assignment thereof. It is agreed and understood, however, that Landlord
does not reserve to itself, and Xxxxxx does not assign to Landlord, any damages
payable for (i) movable trade fixtures installed by Tenant or anyone claiming
under Tenant at its own expense or fixtures or items the removal of which is
required or permitted by any agreement made pursuant to Section 3.2, or (ii)
relocation expenses recoverable by Tenant from such authority in a separate
action.
ARTICLE
8 - RIGHTS OF MORTGAGEE
8.1 Subordination
The
Lease shall be subject and
subordinate to any first mortgage on the Building, now or at any time hereafter
in effect, unless the holder of such mortgage elects by notice to Tenant to
have
this Lease superior to its mortgage. In addition, Xxxxxxxx shall have the option
to subordinate this Lease to any other mortgage or deed of trust that includes
the Premises as part of the mortgaged premises, provided that the holder thereof
enters into an agreement with Tenant by the terms of which (i) in the event
of
acquisition of title by such holder through foreclosure proceedings or
otherwise, and provided Tenant is not in default hereunder, the holder will
agree to recognize the rights of Tenant under this Lease and to accept Tenant
as
tenant of the Premises under the terms and conditions of this Lease, and (ii)
Tenant will agree to recognize the holder of such mortgage as Landlord in such
event. This agreement shall be made to expressly bind and insure to the benefit
of the successors and assigns of Tenant and of the holder and of anyone
purchasing said Premises at any foreclosure sale. Any such mortgage to which
this Lease shall be subordinated may contain such terms, provisions and
conditions as the holder deems usual or customary. The Lot or Building, or
both,
are separately and together hereinafter in this Article 8 referred to as "the
mortgaged premises". The word "mortgagee" as used in this Lease shall include
the holder for the time being whenever the context permits.
8.2 Entry
Other Than For Foreclosure
Upon
entry and taking possession of the
mortgaged premises for any purpose other than foreclosure, the holder of a
mortgage shall have all right of Landlord, and, during the period of such
possession, the duty to perform all of Landlord's obligations under this Lease.
No such holder shall otherwise be liable to perform any other of Landlord's
covenants and obligations under this Lease.
8.3 Entry
For Foreclosure
Except
as otherwise provided in Section
8.2 hereof, no such holder of a mortgage shall be liable, either as mortgagee
or
as holder of a collateral assignment of this Lease, to perform, or be liable
in
damages for failure to perform, any of the obligations of Landlord unless and
until such holder shall enter and take possession of the mortgaged premises
for
the purpose of foreclosing a mortgage. Upon entry for the purpose of foreclosing
a mortgage, such holder shall be liable to perform all of the subsequent
obligations of Landlord, subject to the provisions of Section 8.6 and subject
to
and with the benefit of the provisions of Section 10.6, provided that a
discontinuance of any foreclosure proceeding shall be deemed a conveyance under
said provisions to the owner of the equity of the mortgaged
premises.
8.4 No
Prepayment
No
fixed rent, additional rent, or any
other charge shall be paid more than ten (10) days prior to the due dates
thereof, and payments made in violation of this provision shall (except to
the
extent that such payments are actually received by a mortgagee in possession
or
in the process of foreclosing its mortgage) be a nullity as against such
mortgagee, and Tenant shall be liable for the amount of such payments to such
mortgagee.
8.5 No
Release or Termination
No
act or failure to act on the part of
Landlord that would entitle Tenant under the terms of this Lease or by law
to be
relieved of Tenant's obligations hereunder or to terminate this Lease shall
result in a release or termination of such obligations or a termination of
this
Lease unless (i) Tenant shall have first given written notice of Landlord's
act
or failure to act to Landlord's mortgagee(s) of record, if any, specifying
the
act or failure to act on the part of Landlord that could or would give basis
to
Tenant's rights, and (ii) such mortgagee(s), after receipt of such notice,
have
failed or refused to correct or cure the condition complained of within a
reasonable time thereafter; but nothing contained in this Section 8.5 shall
be
deemed to impose any obligation on any such mortgagee to correct or cure any
such condition. "Reasonable time" as used above means and includes a reasonable
time to obtain possession of the mortgaged premises, if the mortgagee elects
to
do so, and a reasonable time to correct or cure the condition if such condition
is determined to exist.
8.6 No
Modification Etc.
No
assignment of this Lease, no
agreement to make or accept any surrender, termination or cancellation of this
Lease and no agreement to modify this Lease so as to reduce the rent, change
the
Term, or otherwise materially change the rights of Landlord under this Lease
or
to relieve Tenant of any obligations or liability under this Lease, shall be
valid unless consented to in writing by Xxxxxxxx's mortgagees of record, if
any.
8.7 Continuing
Offer
The
covenants and agreements contained
in this Lease with respect to the rights, powers and benefits of a mortgagee
(particularly, without limiting the generality of the foregoing, the covenants
and agreements contained in this Article 8) constitute a continuing offer to
any
person, corporation or other entity that by accepting or requiring an assignment
of this Lease or by entry or foreclosure assumes the obligations herein set
forth with respect to such mortgagee; such mortgagee is hereby constituted
a
part to this Lease as an obligee hereunder to the same extent as though its
name
were written hereon as such, and such mortgagee shall be entitled to enforce
such provisions in its own name.
8.8 Implementation
Xxxxxx
agrees, on request of Xxxxxxxx,
to execute and deliver from time to time any agreement which may reasonably
be
deemed necessary to implement the provisions of this Article 8.
8.9 Financing
In
the event that any actual or
proposed holder of a first mortgage on the Building or Lot shall demand that
this Lease be modified or amended in any respect, Xxxxxx agrees to so modify
or
amend this Lease within fifteen (15) days after Xxxxxxxx's request, so long
as
such modification or amendment does not materially adversely affect Tenant's
rights of obligations under this Lease.
ARTICLE
9 - DEFAULTS
9.1 Events
of Default
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(a)
|
If
Landlord contends that Xxxxxx has neglected or failed to perform
any of
Tenant's covenants, agreements or obligations hereunder, Landlord
shall
notify Tenant in writing accordingly, specifying the alleged neglect
or
failure. Such notice having been given by Xxxxxxxx, Tenant
shall:
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(1)
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in
the case of alleged failure to pay fixed rent, make payment in FULL
within
seven (7) days after notice thereof;
and
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(2)
|
in
the case of alleged neglect or failure to perform any of Tenant's
covenants, agreements or obligations hereunder, other than the obligation
to pay fixed rent:
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(i)
|
correct
the matters complained of in such notice within thirty (30) days
after
notice thereof (or, if more than thirty (30) days are reasonably
required
to complete such correction, begin such correction within such thirty
(30)
days and thereafter prosecute the correction to such default to completion
with due diligence), or
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(ii)
|
notify
Landlord within such thirty (30) day period that Tenant disputes
the
matters contained in such notice and at the same time serve on Landlord
a
copy of a demand for arbitration of the matter disputed and otherwise
proceed to arbitration under Article 11 hereof. If the decision of
the
arbitrator pursuant to Article 11 is adverse to Tenant, in whole
or in
part, Tenant shall forthwith begin to correct the matters complained
of by
Landlord or that portion thereof as to which the decision shall have
been
adverse to Tenant, and Tenant shall complete the same within thirty
(30)
days after such decision, or if more than thirty (30) days are reasonably
required to complete such correction, begin such correction within
such
thirty (30) days and thereafter prosecute the correction of such
default
to completion with due diligence. If so requested by either party,
the
arbitrator shall establish the time in excess of thirty (30) days
reasonably required for such completion and the same shall be completed
within such time, subject to unavoidable
delay.
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(b)
In
the event that:
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(1
)
|
Tenant
fails to comply with subparagraph (1 ) above with respect to fixed
rent
defaults or Tenant fails to comply with either subclause (i) or (ii)
or
subparagraph (2) above with respect to non-performance of any other
covenant, agreement or obligation contained herein;
or
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(2)
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any
assignment shall be made by Tenant or any guarantor of Tenant for
the
benefit of creditors; or
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(3)
|
Tenant's
leasehold interest shall be taken on execution;
or
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(4)
|
a
lien or other involuntary encumbrance is filed against Xxxxxx's leasehold
interest or Xxxxxx's other property, including said leasehold interest,
and is not discharged within ten (10) days thereafter;
or
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(5)
|
a
petition is filed by Tenant or any guarantor of Tenant for adjustment
as a
bankrupt, or for reorganization or an arrangement under any provision
of
the Bankruptcy Act as then in force and effect;
or
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(6)
|
an
involuntary petition under any of the provisions of said Bankruptcy
Act is
filed against Tenant or any guarantor of Tenant and such involuntary
petition is not dismissed within sixty (30) days
thereafter;
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then,
and
in any of such case(s), Landlord and the agent and servants of Landlord may,
in
addition to and not in derogation of any remedies for any preceding breach
of
covenant, immediately or at any time thereafter and without demand or notice
and
with or without process of law (forcibly, if necessary) enter into and upon
the
Premises or any part thereof in the name of the whole or mail a notice of
termination addressed to Tenant at the Premises, and repossess the same as
of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove Tenant and its effect(s) (forcibly, if necessary) without
being deemed guilty and manner of trespass and without prejudice to any remedies
which might otherwise be used for arrears of rent or prior breach of covenant,
and upon such entry or mailing as aforesaid, this Lease shall
terminate.
9.2 Tenant's
Obligations After Termination
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(a)
|
In
the event that this Lease is terminated under any of the provisions
of
Section 9.1 or is otherwise terminated for breach of any obligation
of
Tenant, Tenant covenants to pay forthwith to Landlord, as compensation,
the excess of the total rent reserved for the residue of the Term
(discounted over the balance of the Term at a rate of four percent
(4%))
over the fair market rental value of the Premises for said residue
of the
Term. In calculating the rent reserved there shall be included, in
addition to the fixed rent and all additional rent, the value of
all other
considerations agreed to be paid or performed by Xxxxxx for said
residue.
Tenant further covenants as an additional and cumulative obligation
after
any such termination to pay punctually to Landlord all the sums and
perform all the obligations which Tenant covenants in this Lease
to pay
and to perform in the same manner and to the same extent and at the
same
time as if this Lease had not been terminated. In calculating the
amounts
to be paid by Tenant under paragraph 9.2(b) below, Tenant shall be
credited with any amount paid to Landlord as compensation in accordance
with this Section 9.2 and also with the net proceeds of any rent
obtained
by Landlord by reletting the Premises, after deducting all of Landlord's
expenses in connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, fees for legal services
and
expense of preparing the Premises for such reletting. Tenant agrees
that
Landlord may (i) relet the Premises or any part or parts thereof
for a
term or terms which may, at Landlord's option, be equal to, less
than or
greater than the period which would otherwise have constituted the
balance
of the Term and may grant such concessions and free rent as Landlord,
in
its sole judgment, considers advisable or necessary to relet the
same, and
(ii) make such alterations, repairs and decorations in or to the
Premises
as Landlord, in its sole judgment, considers advisable or necessary
to
relet the same. Any action of Landlord in accordance with this Section
9.2
or any failure of Landlord to relet or to collect rent after reletting
shall not operate or be construed to release or reduce Tenant's liability
as aforesaid.
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(b)
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In
lieu of any other damages or indemnity and in lieu of full recovery
by
Landlord of all sums payable under paragraph 9.2(a) above, Landlord
may,
by written notice to Tenant, at any time after this Lease is terminated
under any of the provisions contained in Section 9.1 or is otherwise
terminated for breach of any obligation of Tenant and before such
full
recovery, elect to recover, and Tenant shall thereupon pay, as liquidated
damages, an amount equal to the aggregate of the fixed rent and additional
rent accrued under Article IV in the twelve (12) months ended next
prior
to such termination plus the amount of fixed rent and additional
rent of
any kind accrued and unpaid at the time of termination and less the
amount
of any recovery by Landlord under paragraph 9.2(a) up to the time
of
payment of such liquidated damages.
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(c)
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Nothing
contained in this Lease shall limit or prejudice the right of Landlord
to
prove for an obtain in proceedings for bankruptcy or insolvency,
by reason
of the termination of this Lease, an amount equal to the maximum
allowed
by any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or
not the
amount be greater than, equal to, or less than the amount of the
loss or
damaged referred to above.
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9.3 Landlord's
Default
Landlord
shall not be deemed to be in
default hereunder unless its default shall continue for thirty (30) days after
written notice thereof has been given by Tenant to Landlord specifying the
nature of the alleged default, or such additional time as is reasonably required
to correct its default, provided that Landlord shall, subject to its arbitration
rights set forth below, begin such correction within such thirty (30) days
period and thereafter prosecute the curing of such default to completion with
due diligence. Landlord shall have the right to dispute Xxxxxx's allegation
of
default using the arbitration procedures set forth in Article 11. In no event
shall Tenant be entitled to a right of set-off hereunder. In the event of
Landlord's default, Tenant shall be obligated to continue to pay rent in
full.
ARTICLE
10 - MISCELLANEOUS
10.1 Measurement
For
all purposes of this Lease, all
floor areas shall be computed generally in accordance with the current standard
method of floor measurement of office buildings used in the greater Boston
area.
In such computation, common areas shall be included to the extent therein
provided notwithstanding their exclusion from the Premises.
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0.2 Titles
The
titles of the Articles and Sections
contained herein are for convenience only and are not to be considered in
construing this Lease.
10.3 Notice
of Lease
Upon
request of either party, both
parties shall execute and deliver after the Lease Term begins, a Notice of
Lease
satisfactory in form to Landlord and appropriate for recording at the Registry
of Deeds, if applicable, and, if this Lease is terminated before the Lease
Term
expires, a Termination of Lease or such other form shall be executed by Tenant
and Landlord acknowledging the date of Termination, in form satisfactory to
Landlord and appropriate for recording, if applicable.
1
0.4 Consent
Except
where otherwise provided herein,
whenever any approval, consent, authorization or the like by Landlord or Tenant
is expressly required by this Lease, the approval, consent, authorization or
the
like shall not be unreasonably delayed or withheld.
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0.5 Notices
Whenever
any notice, approval, consent,
request or election is given or made pursuant to this Lease, it shall be in
writing. Communications and payments shall be addressed if to Landlord at the
Address of Landlord set forth in Section 1.1 hereof or at such other address
as
may have been specified by prior notice from Landlord to Tenant. If said
communication or payment is to Tenant, to the Tenant at the Premises or at
such
other address as may have been specified by prior notice to Landlord. Any
communication or notice so addressed shall be deemed duly served if mailed
by
registered or certified mail, return receipt requested.
10.6 Bind
and Inure
The
obligations of this Lease shall run
with the land, and this Lease shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns, except that
only
the original Landlord named herein shall be liable for obligations accruing
before the beginning of the Term, and thereafter the original Landlord named
herein and each successive owner of the Premises shall be liable only for the
obligations accruing during this period of its ownership. Whenever the Premises
are owned by a trustee or trustees, the obligations of Landlord shall be binding
upon Landlord's trust estate, but not upon any trustee or beneficiary of the
trust individually.
10.7 No
Surrender
The
delivery of keys to any employee or
Landlord or to Landlord's agent or any employee thereof shall not operate as
a
termination of this Lease or a surrender of the Premises.
10.8 No
Waiver. etc.
The
failure of Landlord or of Tenant to
seek redress for violation of, or to insist upon the strict performance of,
any
covenant or condition of this Lease or any of the Rules and Regulations attached
hereto shall not be deemed a waiver of such violation nor prevent a subsequent
act that would have originally constituted a violation from having all the
force
and effect of an original violation. The failure of Landlord to enforce any
of
said Rules and Regulations against any other tenant in the Building shall not
be
deemed a waiver of any such Rules or Regulations. The receipt by Landlord of
fixed rent or additional rent with knowledge of the breach of any covenant
of
this Lease shall not be deemed to be a waiver in writing signed by the Party
so
waiving. No consent or waiver, expressed or implied, by Landlord or Tenant
to or
of any breach of any agreement or duty shall be construed as a waiver or consent
to or of any other breach of the same or any other agreement or
duty.
10.9 No
Accord and Satisfaction
No
acceptance by Landlord of a lesser
sum than the fixed rent and additional rent then due shall be deemed to be
other
than on account of the earliest installment of such rent due, nor shall any
endorsement or statement on any check or any letter accompanying any check
or
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy provided in this
Lease.
10.10Cumulative
Remedies
The
specific remedies to which Landlord
may resort under the terms of this Lease are cumulative and are not intended
to
be exclusive of any other remedies or means of redress to which it may be
lawfully entitled in case of any breach or threatened breach by Tenant of any
provisions of this Lease. In addition to the other remedies provided in this
Lease, Landlord shall be entitled to the restraint by injunction of the
violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease or to a decree compelling specific
performance of any such covenants, conditions or provisions.
10.11 Partial
Invalidity
If
any term of this Lease, or the
application thereof to any person or circumstances, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each term of this Lease
shall be valid and enforceable to the fullest extent permitted by
law.
10.12 Landlord's
Right to Cure Xxxxxx's Default
If
Tenant shall at any time default in
the performance of any obligation under this Lease, Landlord shall have the
right, but shall not be obligated, to enter upon the Premises and to perform
such obligation notwithstanding the fact that no specific provisions for such
substituted performance by Xxxxxxxx is made in this Lease with respect to such
default. Except in case of emergency, these rights shall be exercised only
after
ten (10) days prior written notice from Landlord to Tenant of Landlord's
intention to do so. In performing such obligation, Landlord may make any payment
of money or perform any other act. All sums so paid by Xxxxxxxx, together with
interest at the rate of eighteen percent (18%) per annum, and all necessary
incidental costs and expenses in connection with the performance of any such
act
by Landlord shall be deemed to be additional rent under this Lease and shall
be
payable to Landlord immediately on demand. Landlord may exercise the foregoing
rights without waiving any other of its rights or releasing Tenant from any
of
its obligations under this Lease.
10.13 Estoppel
Certificate
Both
parties agree, from time to time,
upon not less than fifteen (15) days prior written request by the other party,
to execute, acknowledge and deliver to the other party a statement in writing
certifying that this Lease is unmodified and in full force and effect and that
Tenant has no defenses, offsets or counterclaims against its obligations to
pay
the fixed rent and additional rent and to perform its other covenants under
this
Lease and that there are no uncured defaults of Landlord or Tenant under this
Lease (or, if there have been any modifications, that the same is in full force
and effect as modified and stating the modifications and, if there are any
defenses, offsets, counterclaims or defaults, setting them forth in reasonable
detail), and the dates to which the fixed rent, additional rent and other
charges have been paid. Any such statement delivered pursuant to this Section
10.13 may be relied upon by any prospective purchaser or mortgagee of the
Premises or any prospective assignee of any mortgagee of the Premises. Xxxxxx
agrees to execute one or more Estoppel Certificates substantially in the form
attached hereto as Exhibit F as so requested by Landlord.
10.14 Waiver
of Subrogation
Any
insurance carried by either party
with respect to the Premises and property therein or occurrences thereon shall,
if the other party so requests and if it can be so written without additional
premium, or with an additional premium with the other party agrees to pay,
include a clause or endorsement denying to the insurer rights of subrogation
against the other party to the extent rights have been waived by the insured
prior to occurrence of injury or loss. Each party, notwithstanding any
provisions of this Lease to the contrary, hereby waives any rights of recovery
against the other for injury or loss due to hazards covered by insurance
contained in such clause of endorsement to the extent of the indemnification
received thereunder.
10.15 Brokerage
Tenant
warrants and represents that it
has dealt with no broker(s) in connection with this transaction other than
the
broker named in Section 1.1 hereof. Xxxxxx agrees to defend, indemnify and
save
Landlord from and against any and all claims for a commission or other type
broker's fee arising as a result of this Lease, other than from the aforesaid
broker's.
10.16 Security
Deposit
Upon
the execution of this Lease,
Tenant shall pay the Security Deposit set forth in Section 1.1 to Landlord,
which shall be held as security for Tenant's performance under this Lease.
The
Security Deposit shall be refunded to Tenant at the end of the Term, subject
to
Xxxxxx's satisfactory compliance with the conditions of this Lease and
Landlord's approval of the Premises after Xxxxxx has vacated same. Tenant xxxxxx
agrees not to look to the mortgagee, as mortgagee, mortgagee in possession,
or
successor in title to the property, for accountability for any security deposit
required by Landlord hereunder, unless said sums have actually been received
by
said mortgagee as security for Xxxxxx's performance of this Lease.
ARTICLE
11 -
ARBITRATION
In
the event of a dispute between
Landlord and Tenant with respect to any matter set forth in Section
9.1(a)(2)(ii) or 9.3 hereof, such dispute shall be arbitrated by three (3)
arbitrators appointed as follows: Landlord and Tenant shall each appoint a
fit
and impartial person as arbitrator who shall have at least ten (10) years
experience in the Boston Metropolitan Area in a calling connected with the
subject matter of the dispute. Written notice of such appointment shall be
given
by each party to the other within fifteen (15) days of the date upon which
written notice is given by one party to the other demanding arbitration and
the
arbitrators so appointed shall appoint a third arbitrator with like experience
as stated above. If the arbitrators fail to agree upon a third arbitrator within
fifteen (15) days of the date upon which the later of such written notices
of
appointment of the first two arbitrators is given, such third arbitrator shall
be appointed by Justice of the Superior Court of the Commonwealth of
Massachusetts, Middlesex County District, upon ten (10) days notice of the
institution of proceedings for such Court appointment, or by any other Court
sitting in said Middlesex County succeeding to the jurisdiction and functions
exercised by the Superior Court of the Commonwealth of Massachusetts. Any award
that shall be made in such arbitration by the arbitrators, or a majority of
them, shall be binding and shall have the same force and effect as a judgment
made in a court of competent jurisdiction and both Landlord and Tenant shall
have the right to apply to the aforesaid Superior Court, or to any other court
sitting in Middlesex County succeeding to the jurisdiction and functions
exercised by said Superior Court, for a decree, judgment or order upon said
arbitration or award upon ten (10) days notice to the other party. The fees,
costs and expenses of arbitration, other than fees for attorneys for the
parties, expert witnesses and other witness fees, shall be borne equally between
the parties unless the arbitrators determine that some other division shall
under the circumstances be more equitable.
EXECUTED
as a sealed instrument, in two
or more counterparts which constitute only one instrument, on the day and year
first above written.
LANDLORD: TENANT:
ATLANTIC-PHILADELPHIA
REALTY
LLC
BY: /s/Xxxxx
Xxxxxxxxxx
BY:
__/s/ Xxxxxxx
Xxxxx____________
Print
Name:__Xxxxx
Xxxxxxxxxx______________ Print
Name: __William Santo________
Title:______Manager______________________ Title:
______CEO_______________
EXHIBIT
A
Description
of Lot
That
certain parcel of land on Newbury
Street in Framingham, Middlesex County, Massachusetts, shown as Lots 2, 3 and
4
on a plan entitled "PLAN OF LAND IN FRAMINGHAM, MASS.", dated April 2, 1984,
prepared by XxXxxxxx & Xxxxxxxx Engineering, Inc., recorded with the
Middlesex South District Registry of Deeds as Plan No. 524 of 1984 in Book
15583, Page 165 (the "Plan"), bounded and described according to the Plan as
follows:
WESTERLY: by
Newbury Street by two courses together totaling two
hundred
twenty-two and 19/100 (222.19)
feet;
NORTHEASTERLY: by
an existing thirty-foot drain easement two hundred forty-
nine
and 68/100 (249.68)
feet;
SOUTHEASTERLY: by
land now or formerly of Zayre Eighth Realty Corp., two
hundred
sixty-three and 84/100
(263.84) feet;
NORTHEASTERLY: by
land now or formerly of said Xxxxx, by two courses
together
totalling two hundred fifteen
and 80/100
(215.80)
feet;
EASTERLY: by
land now or formerly of Worcester Terminal Corporation
one
hundred forty-three and 90/100
(143.90) feet;
SOUTHWESTERLY: by
land now or formerly of said Worcester and land now or
formerly
of Xxxxxxx X. and Xxxx X.
Xxxxx, four hundred six
and
18/100 (406.18) feet;
WESTERLY: by
Newbury Street one hundred fifty-six (156.00) feet;
NORTHEASTERLY: by
Lot 5 on said Plan, one hundred twenty (120.00) feet;
SOUTHEASTERLY: by
Lot 5 on said Plan, sixty-two (62.00) feet; and
SOUTHWESTERLY: by
Lot 5 on said Plan, one hundred thirty-six and 56/100 (136.56)
feet.
Said
property being known and numbered as 000 Xxxxxxx Xxxxxx. Framingham,
Mass.
EXHIBIT
B
Floor
Plan of Tenant's Space - SEE ATTACHED
EXHIBIT
C
SERVICES
BY
LANDLORD
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1.
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A
heating and air conditioning system which will keep the entire Premises,
other than storage areas, file rooms, closets, etc., at a comfortable
temperature for general office use, during normal office/business
operating hours.
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If
Tenant
shall require heating or air conditioning outside said normal office/business
operating hours, Landlord may furnish such services and Tenant shall pay for
any
charges related to same as may from time to time be in effect.
In
the
event Tenant introduces into the Premises any type of equipment which overloads
the capacity of any building system(s) or in any other way interferes with
any
such system(s) to perform adequately, supplemental system(s) may, at Landlord's
option, be provided by Landlord at Tenant's sole cost and expense.
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2.
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(a)
Overhead fluorescent light
fixtures.
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(b)
Replacement of fluorescent tubes
and starters, as needed.
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3.
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Hot
and cold water for lavatory and drinking
purposes.
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4.
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Toilet
supplies in lavatories, including soap, paper or cloth towels and
toilet
tissue.
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5.
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Janitor
services in accordance with the following schedule and to be accomplished
after normal business hours (after 6:00
P.M.):
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a)
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Entrance
Door glass will be cleaned
nightly.
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b)
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Entrance
Floor will be cleaned and/or polished
nightly.
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c)
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Broadloom
Carpet areas will be vacuumed nightly. Will be shampooed upon request,
at additional cost to Tenant.
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d)
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Wastepaper
Containers will be emptied nightly. Plastic liner bags for wastepaper
containers will be provided and liners will be changed once a
week.
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e)
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Water
Fountains will be cleaned/polished and sanitized
nightly.
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f)
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Washrooms
will be cleaned and serviced nightly. This will include refilling
paper
towels, toilet tissue and soap dispensers. Emptying and cleaning
of all
used towel and trash containers. Clean all stainless steel fixtures.
Clean
toilets. Wash and sanitize all wash basins and shelves. Clean all
mirrors.
Remove all disfigurations, such as ink marks, drawings, etc. from
all
stool partitions and walls. Floors will be mopped
nightly.
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g)
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Scuff
Marks will be removed nightly from all scuff plates on
doors.
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h)
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Tile
Floors will be swept nightly and a treated dust preventable mop. All
corridors and office floors will be cleaned or polished, as needed,
nightly. Floors will be stripped as
necessary.
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i)
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Time
of Operation - Services to be performed five (5) nights per week after
end of normal working hours (after 6:00
p.m.)
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6.
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Proper
care of grounds surrounding the leased premises, including care of
lawns
and shrubs and including maintaining such grounds neat, clean and
free of
litter.
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7.
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Maintain
and keep clean the sidewalks and parking areas in front of and around
the
building and remove all snow
therefrom.
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EXHIBIT
D
RULES
AND REGULATIONS
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1.
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The
Landlord should be notified at once of any trouble with heating,
lighting
or plumbing fixtures. Tenants will make reasonable efforts to not
leave
windows of premises open or unlocked and not to leave the doors of
the
premises unlocked at night.
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2.
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The
sidewalks, entries, halls and stairways shall not be obstructed by
any of
the tenants or used by them for any other purpose than for ingress
and
egress to and from their respective premises, and no articles or
rubbish,
of any kind, shall be left therein.
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3.
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No
toilet fixture shall be used for any purpose other than that which
it is
intended and no sweepings, rubbish, rags, ashes, or other substances
shall
be thrown therein; any damage resulting from so doing shall be born
by the
tenant causing
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4.
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The
weight and position of all safes shall be subject to the approval
of
Landlord.
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5.
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Lettering
on doors, tablets and building directory shall be subject to the
approval
of Landlord. No lettering shall be allowed on outside
windows.
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6.
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No
wires for telephone service, electric lights, messenger service or
any
other purpose shall be put in the premises without the prior consent
of
Landlord, which consent shall not be unreasonably delayed or
withheld.
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7.
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No
glass in doors or elsewhere through which light is admitted into
any part
of the building shall be covered, nor such light
obstructed.
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8.
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No
animals or birds shall be kept in or about the
building.
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9.
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All
freight, furniture, etc., must be received and delivered through
the SIDE
entrance unless otherwise pre-authorized by Landlord and an appointment
MUST be made with the Landlord to move furniture into or from the
building, but special arrangements MUST be made with the Landlord
for the
moving of all safes.
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10.
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Nothing
shall be thrown or taken from the windows or doors or in the corridors,
nor shall anything be left outside the building on the window xxxxx
of the
premises.
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11.
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No
person shall loiter in the halls, corridors or
lavoratories.
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12.
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The
Landlord, its employees and other proper persons employed by Landlord
shall have access, at all reasonable times, to perform their duties
in the
upkeep and care of the leased
premises.
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13.
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No
tenant shall use any method of heating other than that provided for
in the
tenant's lease, without special arrangements pre-authorized by
Landlord.
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14.
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The
Landlord reserves the right to make any such other further rules
and
regulations as in its judgment may, from time to time, be needful
for the
safety, care and cleanliness of the premises and building and for
the
preservation of good order therein. Landlord shall uniformly enforce
all
rules and regulations.
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15.
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Any
damage done to the building or premises or person or property therein,
in
consequence of any breach of any of the rules and regulations, shall
be
borne by the tenant, if tenant is responsible for such
damage(s).
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16.
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No
person shall smoke in ANY of the common areas, halls, corridors,
lavatories, stairwells, entry ways of the building, or in tenants
respective leased premises the Building is a "Smoke Free"
building.
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17.
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Tenants,
and all of their employees, agents, etc., shall not park illegally;
i.e.
no parking in fire lands, traffic lanes, visitor or handicapped spaces,
reserved spaces, etc. Tenants so parked may be towed and the owner
of any
towed vehicle will be solely responsible for the costs incurred for
same.
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18.
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During
the applicable holiday season, no "live" plants, trees, etc., shall
be
place in or near the premises or anywhere in the Building by
tenants.
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EXHIBIT
E
ESTOPPEL
CERTIFICATE
TO:
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RE:
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Lease
Dated:
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Lease
Amendments (if any)
Dated:
Landlord: Atlantic-Philadelphia
Realty LLC
Demised
Premises:
Gentlemen:
The
undersigned ("Tenant") is the
Tenant under the above-captioned Lease (said Lease, together with all amendments
thereto (if any) hereafter the "Lease"), and, understanding that the Lender
will
rely on the representations and agreements below in granting a loan (the "Loan")
to the above-named Landlord to be secured by a mortgage upon the premises of
which the Demised Premises are a part, hereby acknowledges, certifies and
represents to the Lender that:
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1.
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A
true and accurate copy of the Lease is attached hereto. The Lease
represents the entire understanding between Landlord and Tenant with
respect to the leasing of the Demised Premises and, except as modified
by
the Lease Amendments noted above (if any), has not been otherwise
altered,
modified or amended. The Lease has been duly authorized, executed
and
delivered by Tenant, is in full force and effect in accordance with
its
terms, and constitutes a legally valid instrument, binding and enforceable
against Tenant in accordance with its terms, subject only to applicable
limitations imposed by laws relating to bankruptcy and creditors'
rights.
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2.
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Xxxxxx
has accepted possession of the Demised Premises and is in occupancy
under
the Lease. The initial term of the Lease commenced on
and expires on . Tenant
has right to extend the original term of the Lease as set
forth in the Lease (or has no right, whichever is applicable) and
Tenant
has no right to acquire or purchase the Demised Premises or any portion
thereof or interest therein.
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3.
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The
obligation to pay rent under the Lease commenced on All rent payable
by
Tenant through the date of this letter has been paid. Rent has not
been
paid for any period beyond the now current monthly rent due, except
as
expressly provided in the Lease. To the best of Xxxxxx's knowledge,
there
exists no default with respect to any of the terms, covenants and
conditions of the Lease by the Landlord or the Tenant to be performed,
and
there is no condition or event which could ripen into a default upon
the
lapse of time or the giving of notice. There are no offsets, deductions,
or credits against the rents due and payable under the
Lease.
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WITNESS
the execution hereof under seal this day of
TENANT:
BY:
(duly
authorized)
Print/Type
Name & Title:
EXHIBIT
F
DESCRIPTION
OF LANDLORD’S WORK
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1.)
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Removal
& Installation of New Carpet & Cove Base based on Tenant Selection
Choices.
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2.)
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Patch
& Paint all Walls, Doors, Door Jambs, & Columns based on
Tenant Selection Choices.
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3.)
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Replace
Main Entry Door with a replica of the 4th Floor Atlantic Management
Office
.(Only Door)
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4.)
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Remove
Double Doors entry to Conf Room and replace with a new single entry
Mahogany Door.
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5.)
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Install
4 ft Glass Side Light to the right of the Conf Entry
Door.
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6.)
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Wire
all High Height Lights in Conference Room on Dimmer
Switches.
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7.)
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Have
all Door Locks for Offices Keyed with 1 Master Key for all
Offices.
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8.)
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All
Carpet, Base, & Color Selections need to be received in writing before
June 25 to ensure a target date of August 1
occupancy.
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9.)
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Build
2 new offices near the existing
offices.
|
|
10.)
|
Install
kitchen counter with sink
|
