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EXHIBIT 10e
LEASE
DATED: NOVEMBER 5, 1992
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
AND
TRIPLE I CORPORATION
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TABLE OF CONTENTS
ARTICLE I SUMMARY OF BASIC LEASE PROVISIONS ................................ 1
1.1 BASIC DATA ............................................................ 1
1.2 DEFINITIONS ........................................................... 2
ARTICLE II DESCRIPTIONS OF PREMISES AND APPURTENANT RIGHTS; ................ 3
2.1 LOCATION OF PREMISES .................................................. 3
2.2 APPURTENANT RIGHTS AND RESERVATIONS ................................... 3
ARTICLE III TERM OF LEASE; CONSTRUCTION .................................... 4
3.1 COMMENCEMENT DATE ..................................................... 4
3.2 DELIVERY OF PREMISES .................................................. 4
3.4 CONSTRUCTION OF IMPROVEMENTS .......................................... 4
ARTICLE IV RENT ............................................................ 6
4.1 RENT .................................................................. 6
4.2 BASE RENT ............................................................. 6
ARTICLE V USE OF PREMISES .................................................. 7
5.1 PERMITTED USE ......................................................... 7
5.2 ALTERATIONS ........................................................... 8
ARTICLE VI ASSIGNMENT AND SUBLETTING ....................................... 9
6.1 PROHIBITION ........................................................... 9
6.2 ACCEPTANCE OF RENT FROM TRANSFEREE .................................... 10
ARTICLE VII RESPONSIBILITY FOR REPAIRS ..................................... 11
7.1 REPAIRS ............................................................... 11
ARTICLE VIII SERVICES TO BE FURNISHED BY LANDLORD .......................... 12
8.1 CLEANING SERVICES ..................................................... 12
8.2 OTHER SERVICES ........................................................ 13
ARTICLE IX REAL ESTATE AND OTHER TAXES; OTHER EXPENSES ..................... 13
9.1 LANDLORD TO PAY REAL ESTATE TAXES ..................................... 13
9.2 TENANT'S SHARE OF REAL ESTATE TAXES ................................... 13
ARTICLE X OPERATING COSTS .................................................. 14
10.1 TENANT'S SHARE OF OPERATING COSTS ..................................... 14
ARTICLE XI INDEMNITY ....................................................... 16
11.1 THE TENANTS INDEMNITY ................................................. 16
11.2 THE TENANT'S RISK ..................................................... 17
11.3 INJURY CAUSED BY THIRD PARTIES ........................................ 17
ARTICLE XII THE LANDLORD'S ACCESS TO PREMISES .............................. 18
12.1 THE LANDLORD'S RIGHT OF ACCESS ........................................ 18
12.2 ACCESS DURING THE LAST MONTH OF TERM .................................. 18
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ARTICLE XIII CASUALTY ...................................................... 18
13.1 DEFINITIONS OF "SUBSTANTIAL DAMAGE" & "PARTIAL DAMAGE" ............... 18
13.2 PARTIAL DAMAGE TO THE BUILDING ....................................... 18
13.3 SUBSTANTIAL DAMAGE TO THE BUILDING ................................... 19
13.4 ABATEMENT OF RENT .................................................... 19
13.5 MISCELLANEOUS ........................................................ 19
ARTICLE XIV EMINENT DOMAIN ................................................. 20
14.1 RIGHTS OF TERMINATION FOR TAKING ..................................... 20
14.2 PAYMENT OF AWARD ..................................................... 20
14.3 ABATEMENT OF RENT .................................................... 21
14.4 MISCELLANEOUS ........................................................ 21
ARTICLE XV INSURANCE ....................................................... 21
15.1 PUBLIC LIABILITY AND PROPERTY INSURANCE .............................. 21
15.2 NON-SUBROATION ....................................................... 22
15.3 EXTRA HAZARDOUS USE .................................................. 22
ARTICLE XVI DEFAULT ........................................................ 24
16.1 TENANT'S DEFAULT ..................................................... 24
16.2 REMEDIES UPON DEFAULT ................................................ 25
16.3 DAMAGES UPON TERMINATION ............................................. 25
16.4 COMPUTATION OF RENT FOR PURPOSES OF DEFAULT .......................... 26
16.5 RIGHTS OF LANDLORD IN BANKRUPTCY ..................................... 26
ARTICLE XVII MISCELLANEOUS PROVISIONS ...................................... 27
17.1 WAIVER ............................................................... 27
17.2 COVENANT OF QUIET ENJOYMENT .......................................... 27
17.3 NO PERSONAL LIABILITY OF THE LANDLORD ................................ 27
17.4 NOTICE TO MORTGAGE AND GROUND LESSOR; OPPORTUNITY TO CURE ............ 28
17.5 NO BROKERAGE ......................................................... 28
17.6 INVALIDITY OF PARTICULAR PROVISIONS .................................. 28
17.7 PROVISIONS BINDING, ETC .............................................. 28
17.8 RECORDING ............................................................ 29
17.9 NOTICES .............................................................. 29
17.10 WHEN LEASE BECOMES BINDING ........................................... 29
17.11 PARAGRAPH HEADINGS ................................................... 30
17.12 RIGHTS OF MORTGAGEE .................................................. 30
17.13 STATUS REPORT; MODIFICATION .......................................... 31
17.14 SECURITY DEPOSIT ..................................................... 31
17.15 SELF-HELP ............................................................ 32
17.16 RELIEF LIMITED ....................................................... 32
17.17 HOLDING OVER ......................................................... 32
17.18 CERTIFICATE .......................................................... 32
EXHIBIT A PLAN SHOWING THE PREMISES ....................................... 34
EXHIBIT B DESCRIPTION OF LOT .............................................. 35
EXHIBIT C RULES AND REGULATIONS ........................................... 38
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LEASE
This instrument is an Indenture of Lease between Xxxx Xxxxxxx Mutual
Life Insurance Company (the "Landlord") and Triple I Corporation (the "Tenant").
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
SUMMARY OF BASIC LEASE PROVISIONS
1.1 BASIC DATA
Date: November 5, 1992
Landlord: Xxxx Xxxxxxx Mutual Life Insurance Company
Present Mailing Address of Landlord: Xxxxxxx Realty Investors, Inc.
000 Xxxxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Tenant: Triple I Corporation
Present Mailing Address of Tenant: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Lease Premises: Premises on the first floor of the
building known as 000 Xxxxxx Xxxxxx,
Xxxxxx, XX 00000, shown on Exhibit A.
Rentable Area: 11,118 rentable square feet
Lease Term: Thirty six (36) calendar months (plus
the partial month, if any, immediately
following the Commencement Date).
Commencement Date: November 6, 1992
Rental Commencement Date: November 6, 1992
Base Rent: See Section 4.2
Security Deposit: One (1) months rent ($6,400.00).
Tenant's Parking Spaces: Non-exclusive right to thirty nine (39)
parking space.
Tenant's Proportionate Share: 19.8%
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1.2 DEFINITIONS
As used in this Lease, the terms defined in this Section 1.2 shall have
the following meanings:
BROKER: Xxxxxxxx & Grew, Incorporated, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX
00000-0000; Palladins, 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX
00000.
BUILDING: as defined in Section 2.1.
BUILDING MANAGER: Xxxxxxxx & Grew, or such other managing agent as may
be designated by the Landlord.
LEASE: this lease agreement including all of its Exhibits as executed
and delivered, as amended from time to time, pursuant to the terms
hereof.
LEASE YEAR: as defined in Section 10.1 (c).
LOT: the land area described in Exhibit B, subject to minor adjustments
by the Landlord from time to time during the Lease Term.
OPERATING COSTS: as defined in Section 10.1 (c).
OPERATION: as defined in Section 10.1 (c) (1).
PARTIAL LEASE YEAR: as defined in Section 10.1 (c).
PARTIAL DAMAGE: as defined in Section 13.1.
PERMITTED USE: General office, light manufacturing, research and
development, and uses accessory thereto (as permitted by applicable
law).
PREMISES: as defined in Section 2.1.
PROPERTY: as defined in Section 10.1 (c) (1).
RULES & REGULATIONS: as set forth in Exhibit F and as the same may be
amended by the Landlord from time to time.
SUBSTANTIAL DAMAGE: as defined in Section 13.1.
TAXES: as defined in Section 9.1.
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ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS;
NET RENTABLE AREA
2.1 LOCATION OF PREMISES
The Landlord hereby leases to the Tenant and the Tenant hereby accepts
from the Landlord, the premises (the "Premises") identified on Exhibit A in the
Landlord's building located on land owned by the Landlord (the "Lot"), known as
000 Xxxxxx Xxxxxx, Xxxxxx, XX (the "Building"). Nothing in Exhibit A shall be
treated as a representation that the Premises (other than the Rentable Area
thereof described in Section 1.1 shall be precisely of the dimensions or shapes
as shown, it being the intention of the parties only to show diagrammatically,
rather than precisely, on Exhibit A the layout of the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
Tenant shall have, as appurtenant to the Premises, rights to use in
common with others entitled thereto: (a) the common facilities included in the
Building or Lot, including common walkways, driveways and ramps; (b) the parking
facility (including the visitor's parking area and parking spaces reserved for
the handicapped) to the extent of the number of Tenant's Parking Spaces, at
location which may from time to time be designated by Landlord; and (c) the
pipes, ducts, conduits, wires and appurtenant equipment serving the Premises.
Such rights shall always be subject to the Rules and Regulations set forth in
Exhibit C attached hereto an incorporated herein by reference, as the same maybe
amended by the Landlord from time to time and such other reasonable rules and
regulations from time to time established by the Landlord by suitable notice,
and to the right of the Landlord to designate and change from time to time areas
and facilities so to be used.
Not included in the Premises are the roof and all exterior perimeter
walls of the space identified in Exhibit A, except the inner surfaces thereof
and the interior doors and windows. The Tenant agrees that the Landlord shall
have the right to place in the Premises (but in such a manner as not
unreasonably to interfere with the Tenant's use of the Premises) utility lines,
telecommunication lines, shafts, pipes and the like, for the use and benefit of
Landlord and other tenants in the Building, and re replace and maintain and
repair such lines, shafts, pipes, and the like, shall not be deemed part of the
Premises under this Lease.
ARTICLE III
TERM OF LEASE; CONSTRUCTION
3.1 COMMENCEMENT DATE
The Term of this Lease shall be the period specified in Section 1.1
hereof as the "Lease Term" and the term shall commence on the Commencement Date.
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Tenant shall, in all events, be treated as having commenced beneficial
use of the Premises when it begins to move into the Premises furniture and
equipment for its regular business operations.
3.2 DELIVERY OF PREMISES
Landlord shall deliver the premises to Tenant on the Commencement Date
broom clean and free of tenants and occupants, but otherwise "AS IS" as to
condition and layout. Tenant, at Tenant's sold risk, may, upon prior notice to
Landlord and in accordance with the terms herein, construct its leasehold
improvement and install its furniture, furnishings and equipment. Tenant shall
construct the leasehold improvements in accordance with the requirements of
Section 3.4 hereof and Tenant and Tenant's agents, contractors, workmen,
mechanics, suppliers and invitees shall work in harmony with Landlord and
contractors working for Landlord and with other tenants and occupants in the
Building.
3.3 CONSTRUCTION OF IMPROVEMENTS
(a) Tenant shall construct all leasehold improvements to the Premises
in accordance with the provisions of this Section. Once installed, all such
leasehold improvements with the exception of a 50 Hz generator shall be part of
the Premises and shall be the sole property of Landlord. Landlord shall have no
obligation to construct any leasehold improvements to the Premises.
(b) All leasehold improvements constructed by Tenant within the
Premises shall be done in accordance with plans and specifications first
approved by Landlord. Tenant shall submit to Landlord for Landlord's approval
all plans and specifications for Tenant's construction of any leasehold
improvements, alterations or additions in or to any part of the Premises.
Landlord shall review such plans and specifications as submitted within thirty
(30) business days after the receipt thereof and shall notify Tenant if Landlord
approves or disapproves such plans and specifications. If Landlord disapproves
such plans, Landlord shall specify the reasons for its disapproval of any aspect
of such plans. Tenant shall prepare any revisions to such plans and
specifications which may be necessary as a result of Landlord's disapproval and
complete and revise the same so that the plans are satisfactory to, and have
been approved by, Landlord within seven (7) business days after Landlord's
request for revisions of the same. Landlord and Tenant shall initial the plans
and specifications after the same have been submitted by Tenant and approved by
Landlord. Tenant agrees that Tenant's construction shall be built in accordance
with such final plans and specifications meet all federal, state and local
governmental requirements, including, without limitation, all applicable zoning
laws, building codes, environmental codes, rules, ordinances or regulations, and
any applicable laws and regulations regarding accommodations for handicapped
persons. Landlord shall not be deemed unreasonable for withholding approval of
any improvements, alternations or additional which (i) adversely affect any
structural, mechanical, plumbing HVAC electrical or exterior elements of the
Building, or (ii) will require unusual expense to re-adapt the Premises to
normal warehouse use on termination of the Lease or (iii) will increase the cost
of construction or of insurance or taxes on the Building or the Premises, unless
Tenant agrees in writing to pay all such costs. Tenant
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shall provide Landlord with a full set of as-built plans for the Premises so
improved upon completion of such improvements.
(c) All construction work in the Premises shall be done by
contractors and laborers approved by Landlord, in a good and xxxxxxx like manner
and in compliance with the Lease, all applicable laws and ordinances,
regulations and order of governmental authority and insurers of the Building or
the Premises. Tenant further covenants that it shall 1 not employ or permit the
use of any contractors or laborers or otherwise take any action in connection
with any work to the Premises which might in any was result in a labor dispute
or disharmony with any personnel providing services at the Building. Before
Tenant begins any work, it shall secure all licenses and permits necessary
therefore and cause each contractor to carry (1) workmen's compensation
insurance in statutory amounts covering all the contractor's subcontractor's
employees, (2) comprehensive public liability insurance with such limits as
Landlord may reasonably require, but in no event less than $1,000,000, and (3)
property damage insurance with limits of not less than $1,000,000 (all such
insurance to be written in companies approved by Landlord and insuring Landlord
and Tenant as well as the contractors), and to deliver to Landlord certificates
of all such insurance; and secure casualty insurance against loss or damage to
Tenant's work pending completion and deliver evidence of such insurance to
Landlord. Tenant agrees to pay promptly when due the entire cost of any work
done in the Premises by Tenant, its agents, employees or independent
contractors, and not to cause or permit any liens for labor or materials
performed or furnished in connection with its work to attach the Premises and
immediately discharge any such work liens which may attach. Landlord may inspect
the work at any time. Tenant shall indemnify Landlord and hold it harmless from
and against any cost, claim or liability arising from any work done by or at the
direction of Tenant. All work shall be done so as to minimize interference with
other tenants and with Landlord's operation of the Building or other
construction work being done by Landlord.
ARTICLE IV
RENT
4.1 RENT
The Base Rent (specified in Section 1.1 hereof) and any additional rent
or other charges payable pursuant to this Lease (collectively or individually,
"Rent"), shall be payable by the Tenant to the Landlord at Landlord's mailing
address or such other place as the Landlord may from time to time designate by
notice to the Tenant without prior demand therefore and without any offset or
deduction whatsoever except at otherwise specifically provided for in this
Lease.
(a) The Rent shall be payable in advance on the first day of each and
every calendar month during the term of this Lease, except as
otherwise provided in Subsection (b) of this Section 4.1.
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(b) The Rent for the first calendar month of the Lease Term is due
and payable at the time of execution and delivery of the Lease.
If the Commencement Date occurs on a day other than the first day
of a calendar month, the Tenant shall pay to the Landlord on the
first day of the succeeding calendar month a pro rata payment of
Rent for the Partial month from the Commencement Date to the
first day of the succeeding calendar month. Such payment,
together with the payment made by the Tenant upon execution and
delivery of the Lease, shall constitute payment for the first
full calendar month of the Lease Term plus the partial month, if
any, immediately following the Commencement Date.
(c) Rent for any partial month shall be paid by the Tenant to the
Landlord at such rate on a pro rata basis. Other charges payable
by the Tenant on a monthly basis, as hereinafter provided, shall
likewise be prorated.
(d) Rent, additional rent and any other sums due hereunder not paid
on the date shall bear interest at the rate of 1% per month or
fraction thereof (or at any lesser maximum legally permissible
rate) from 5 days past the due date until paid.
4.2 BASE RENT
Rent for November 6, 1992 through November 30, 1993 shall be at a
monthly rate of $6,717.00 ($7.25 per rentable square foot); Rent for December 1,
1993 through November 30, 1994 shall be at a monthly rate of $7,180.00 ($7.75
per rentable square foot); Rent for December 1, 1994 through November 30, 1995
shall be at a monthly rate of $7,643.62 ($8.25 per rentable square foot).
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE
Tenant agrees that the Premises shall be used and occupied by Tenant
only for the purpose specified as the Permitted Use thereof in Section 1.2 of
this Lease, and for no other purpose or purposes.
Tenant further agrees to conform to the following provisions during the
entire term of this Lessee:
(a) Tenant will not place on the exterior of exterior walls
(including both interior and exterior surfaces of windows and
doors) or on any part of the Building outside the Premises, any
signs, symbols, advertisement or the like visible to public view
outside of the Premises without the prior consent of Landlord.
Without limitation, lettering on windows is expressly prohibited.
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(b) The Tenant, at its expense, shall comply with all rules,
ordinances, orders, regulations and requirements of any Board of
Fire Underwriters, or any other body hereafter constituted
exercising similar functions and governing insurance rating
bureaus; and shall not do or permit anything to be done in or
upon the Premises, or bring or keep anything therein, except as
now or hereafter permitted by any governmental authority, Board
of Fire Underwriters or any other similar body having
jurisdiction, or insurance rating bureaus; and shall keep the
Premises equipped with all safety appliances or equipment
required by any governmental authority, Board of Fire
Underwriters or other similar body or governing insurance rating
bureau by reason of the Tenant's particular use of the Premises
or the location of partition, trade fixtures or other contents of
the Premises; and shall procure all licenses, permits or other
approvals required because of such use, it being understood that
the foregoing provisions shall not be construed to broaden in any
way the Permitted Use of the Premises;
(c) The Tenant, at its expenses, shall comply with all rules,
ordinances, orders, permit conditions and regulations of
governmental authorities now or hereafter in force and with any
lawful direction of any public officer, in each case to the
extent the same are applicable to the Premises or the use and
maintenance thereof. If the Tenant receives notice of any
violation of law, ordinance, order, permit conditions or
regulation applicable to the Premises or the use and maintenance
thereof, it shall give prompt written notice thereof to the
Landlord;
(d) [The Tenant shall not place a load upon any floor of the Premises
exceeding the load which such floor was designed to carry or that
which is allowed by law, whichever is less. The Landlord reserves
the right to limit the weight of safes and other heavy objects
and to designate their position. The Tenant shall not move any
safes or heavy objects in or out of the Building without the
Landlord's prior consent;]
(e) The Tenant shall not commit or suffer to be committed any waste
upon the Premises or any public or private nuisance or other act
or thing which may disturb the quiet enjoyment of any other
tenant or occupant in the Building, nor, without limiting the
generality of the foregoing, shall the Tenant make any unusual
noises in the Building, cause or permit any offensive odors to be
produced upon the Premises, or use any apparatus, machinery or
device in or about the Premises which shall cause any damage to
the Building or the Premises or any vibration outside of the
Premises;
(ee) The Tenant shall be permitted to utilize the premises for the
manufacturing of its products subject to applicable law.
(f) The electricity furnished to the Premises shall be separately
metered. The tenant shall pay directly to the supplier of
electricity , within thirty (30) days of invoice therefor, the
entire cost of such electricity consumed in the Premises. The
Tenant
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shall not, without the Landlord's written consent in each
instance, connect to the electrical distribution system any
fixtures, appliances or equipment other than lamps, typewriters
and similar small office machines which operate on a voltage not
in excess of 120, or make any alteration or addition to the
electrical system of the Premises; and
(g) The Tenant shall continuously occupy the Premises during the
Lease Term, subject to temporary interruptions for causes beyond
the Tenant's reasonable control. The Tenant shall comply and
shall cause its employees, agents and invitees to comply with the
Rules and Regulations of the Building as set forth in Exhibit E
and such changes therein and other reasonable rules and
regulations as the Landlord shall from time to time establish for
the proper regulation of the Building and the Lot, provided that
such additional rules and regulations shall be of general
application to all the tenants in the Building.
5.2 ALTERATIONS.
The Tenant shall not make alterations, additions or improvements to the
Premises, except with the prior written consent of the Landlord.
All alterations, additions and improvements made by the Tenant to the
Premises shall remain therein and, at the termination of the Lease, shall be
surrendered as a part thereof, except for trade fixtures and equipment (as
distinguished from leasehold improvement) installed prior to or during the term
of this Lease at the Tenant's sole cost. Such trade fixtures and equipment may
be removed by the Tenant if the Tenant is not then in default hereunder and if
such removal shall not result in permanent damage to the Premises or the
Building. The Tenant shall remove such trade fixtures and equipment at the
termination of the Lease if requested to do so by the Landlord. The Tenant shall
at its expense promptly repair any and all damage to the Premises or the
Building resulting from any removal of such fixtures and equipment.
Any personal property which shall remain in the Building or on the
Premises after the expiration of earlier termination of the Lease shall
conclusively be deemed to have been abandoned by the Tenant, and either may be
retained by the Landlord as its own property or may be disposed of by sale,
storage or otherwise as the Landlord shall see fit, all at the Tenant's expense.
Notwithstanding the foregoing, the Tenant will, upon request of the Landlord
after the expiration or termination of the Term hereof, promptly remove from the
Building any such personal property, or if any part of such personal property
shall be sold, the Landlord may receive and retain the proceeds of such sale and
apply the same, at its option, against the expenses of sale, the costs of moving
and storage, and arrears of Rent, additional rent or other charges payable
hereunder or any damages in which the Landlord may be entitled.
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ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION
Notwithstanding any other provisions of this Lease, the Tenant shall
not assign or otherwise transfer, voluntarily or involuntarily, this Lease or
any interest herein or sublet (which term, without limitation, shall include
granting of concessions, licenses and the like) or allow any other person to
occupy the whole or any part of the Premises, without, in each instance, the
prior written consent of the Landlord. This prohibition does not include any
assignment, subletting or other transfer which would occur by merger,
consolidation, reorganization, acquisition, transfer or other change of the
Tenant's corporate or proprietary structure, including a change in the partners
of any partnership, and the sale, pledge or other transfer of any of the issued
and outstanding capital stock of any corporate Tenant (unless such stock is
publicly traded on a recognized security exchange or over-the-counter market),
provided however, that the Tenant's business continues to operate in the
Premises prior to said merger, assignment or other transaction.
Notwithstanding the above, any request by Tenant for Landlord's consent
to an assignment or a sublease of the premises ("Transfer", and the party to
whom the Transfer shall be directed shall hereinafter be referred to as
"Transferee") shall include (i) the name and address of the proposed Transferee;
(ii) the nature of the proposed Transferee's business and proposed use of the
Premises; (iii) complete information as to the financial condition and standing
of the proposed Transferee, including a copy of the proposed Transferee's most
recent quarterly and annual financial statements; (iv) the terms and conditions
of the proposed Transfer; and (v) such other information as Landlord shall
reasonably request. Landlord shall have the right to meet and interview the
proposed Transferee or its managing officers.
Landlord shall not unreasonably withhold consent to a proposed
Transfer, provided, however, a refusal based on any of the following factors
shall be deemed a reasonable refusal of consent to a Transfer: (i) the proposed
Transferee's expected use of the Premises is not consistent with the use, image
and character which the Landlord desires to promote for the Building; or (ii)
the proposed Transferee's balance sheet for the previous 8 months does not
reflect a cash flow which would cover the rental obligations set forth herein,
when added to the Transferee's other obligations of its operation. In no event
shall a failure by Landlord to approve a proposed Transferee cause a termination
of this Lease.
Tenant may, without prior consent of the Landlord, but with prior
written notice, assign this Lease, or sublet all or any portion of the Premises,
to a wholly-owned subsidiary of the Tenant or an affiliate of the Tenant. For
the purposes of this Lease, the term "affiliate" shall mean any corporation that
controls, is controlled by, or is under common control with, the Tenant; as used
in the preceding clause, the term "control" shall mean the right to exercise
more than 50% of the voting rights attributable to the shares of the controlled
corporation.
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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. 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% net profits from any such sublease or assignment. Net profit shall be
calculated by first allowing Tenant to recover any actual construction
inducement and other related costs including brokerage fees, given to the
subtenant or assignee. It shall be a condition to the validity of any permitted
assignment or other transfer or subletting that the assignee or transferee or
sublessee 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.
6.2 ACCEPTANCE OF RENT FROM TRANSFEREE.
The acceptance by the Landlord of the payment of Rent, additional rent
or other charges following an assignment, subletting or other transfer
prohibited by this Article VI shall not be deemed to be a consent by the
Landlord to any such assignment, subletting or other transfer, nor shall the
same constitute a waiver of any right or remedy of the Landlord.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS
7.1 REPAIRS.
From and after the date that possession of the Premises is delivered to
the Tenant and until the end of the Lease Term, the Tenant shall keep the
Premises and every part thereof in good order, condition and repair, reasonable
wear and tear and damage by unavoidable casualty only excepted; and the Tenant
shall surrender the Premises at the end of the Lease Term in such condition.
Except as may be provided in Articles XIII and XIV, the Landlord agrees to keep
in good order, condition and repair the structural and exterior portions of the
Building and the common areas and facilities and common equipment in the
Building, except any condition caused by any act, omission or neglect of the
Tenant or any contractor of the Tenant or any party for whose conduct the Tenant
is responsible. Without limitation, the Landlord shall not be responsible to
make any improvements or repairs other than as expressly provided in this
Section, and the Landlord shall not be liable for any failure to make such
repairs unless the Tenant has given notice to the Landlord of the need to make
such repairs and the Landlord has failed to commence to make such repairs within
a reasonable time thereafter.
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In addition to the requirements of Section 3.4 herein, whenever the
Tenant shall make repairs, alterations, decorations, additions, removals, or
improvements (including the installation of any equipment other than normal
light business office equipment) in or to the Premises:
(a) No material or equipment shall be incorporated in or added to the
Premises in connection with any such repair, alteration,
decoration, addition, removal or improvement which is subject to
or claimed to be subject to any lien, charge, mortgage, or other
encumbrance of any kind whatsoever or is subject to any security
interest or any form of title retention agreement. Any mechanic's
or materialmen's lien filed against the Premises or the Building
for work claimed to have been done for, or materials claimed to
have been furnished to the Tenant, shall be immediately
discharged by the Tenant, at the Tenant's expense, by filing the
bond required by law or otherwise. If the Tenant fails so to
discharge any lien, the Landlord may do so at the Tenant's
expense and the Tenant shall reimburse the Landlord for all
expenses and costs incurred by the Landlord in so doing
immediately after rendition of a xxxx therefor by the Landlord to
the Tenant.
(b) All installations or work done by or for the Tenant shall be at
its own expense and shall at all times comply with (i) laws,
rules, orders and regulations of governmental authorities having
jurisdiction thereof; (ii) orders and regulations of any
Board of Fire Underwriters, or any other body hereafter
constituted exercising similar functions, and governing insurance
rating bureaus; (iii) plans and specifications (which shall be
prepared by and at the expense of the Tenant) theretofore
submitted to and approved in writing by the Landlord.
(c) The Tenant shall procure all necessary permits before undertaking
any work in the Premises and shall do all such work in a good and
workmanlike manner, employing new materials of first class
quality and shall defend, save harmless, exonerate and indemnify
the Landlord from all injury, loss or damage to any person or
property occasioned by such work. The Tenant shall cause
contractors employed by the Tenant to carry and maintain in force
during the continuance of any work being performed for the Tenant
Worker's Compensation Insurance in accordance with statutory
requirements and Comprehensive Public Liability Insurance and
Automobile Liability Insurance covering such contractors on or
about the Premises in amounts reasonably acceptable to the
Landlord and to submit certificates evidencing such coverage to
the Landlord prior to the commencement of such work.
(d) The Tenant shall not, at any time prior to or during the Term of
this Lease, directly or indirectly employ, or permit the
employment of, any contractor, mechanic or laborer in the
Premises, whether in connection with any repair work or the
making of any alteration, improvements or additions or otherwise,
if such employment will interfere or cause any conflict with
other contractors, mechanics or laborers engaged in the
construction, maintenance or operation of the Building by the
Landlord, Tenant or others. In the event of any such interference
or
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conflict, the Tenant, upon demand of the Landlord, shall cause
all contractors, mechanics or laborers causing such interference
or conflict to leave the Building immediately.
ARTICLE VIII
SERVICES TO BE FURNISHED BY LANDLORD
8.1 LANDLORD SERVICES.
The Landlord shall maintain the Building and the access roadways and
drives and the parking areas and landscaping immediately adjacent to the
Building in which the demised premises are located. The Landlord shall provide
heating, ventilating and air conditioning as normal seasonal changes may require
during normal building operating hours. Landlord shall also provide cleaning.
The Landlord shall furnish water at City temperature for ordinary
cleaning, toilet, lavatory and drinking purposes. If the Tenant uses or consumes
water for any other purpose, it shall reimburse the Landlord therefor, and for
any related sewer charge, as reasonably estimated by the Landlord or, at its
election, metered. In the latter event, the Tenant shall pay the cost of the
meter and its installation and maintenance. Such reimbursement shall be made as
and when bills are rendered. All water piping and equipment shall be installed
and maintained by the Landlord at the Tenant's expense.
8.2 CAUSES BEYOND CONTROL OF THE LANDLORD.
The Landlord shall in no event be liable for failure to perform any of
its obligations under this Lease when prevented from doing so by causes beyond
its control, including, without limitation, labor dispute, breakdown, accident,
order or regulation of or by any governmental authority, or failure of supply,
or inability by the exercise of reasonable diligence to obtain supplies, parts
or employees necessary to furnish services required under this Lease or because
of war or other emergency, or for any cause due to any act, neglect or default
of the Tenant or the Tenant's servants, contractors, agents, employees,
licensees or any person claiming by, through or under the Tenant, and in no
event shall the Landlord ever be liable to the Tenant for any indirect or
consequential damages under the provisions of this Section 8.2 or any other
provision of this Lease.
ARTICLE IX
REAL ESTATE AND OTHER TAXES; OTHER EXPENSES
9.1 LANDLORD TO PAY REAL ESTATE TAXES.
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Landlord shall be responsible for the payment, before the same becomes
delinquent, of all general and special taxes, including assessments for local
improvements, and other governmental charges which may be lawfully charged,
assessed or imposed (herein collectively called the "Taxes") upon the Building
and the Lot. However, if authorities having jurisdiction assess real estate
taxes, assessments or other charges which Landlord considers excessive, Landlord
may defer compliance therewith to the same extent permitted by the laws of the
jurisdiction in which the same are located, so long as the validity or amount
thereof is contested by Landlord in good faith, and so long as Tenant's
occupancy of the Premises is not disturbed.
9.2 TENANT'S SHARE OF REAL ESTATE TAXES.
With reference to the Taxes described in Section 9.1, it is agreed as
follows:
(a) Tenant shall pay to Landlord Tenant's Proportionate Share of an
increase in Taxes assessed against the Building and the Lot over
the fiscal year 1993 Taxes during the term of this Lease. The
Tenant shall pay to the Landlord pro rated monthly installments
on account of projected increased Taxes for the Lease Year,
calculated by the Landlord on the basis of the most recent Tax
data or budget available, with an adjustment made to account for
actual increase in Taxes for such Lease Year. If the total of
such monthly installments in any Lease Year is greater than the
actual increase in Taxes for such Lease Year, the Tenant shall be
entitled to a credit against the Tenant's base rental obligations
hereunder in the amount of such difference. If the total of such
monthly installments is less than the actual Taxes for such Lease
Year, the Tenant shall pay to the Landlord the amount of such
difference promptly upon billing therefor.
(c) If some method or type of taxation or assessment shall replace in
whole or in part, the current method of assessment of real estate
taxes, or the type thereof, Tenant agrees that Tenant shall pay
Tenant's equitable share of the same computed in a fashion
consistent with the method of computation herein provided, to the
end that Tenant's cost on account thereof shall be, to the
maximum extent practicable, the same as Tenant would bear under
the foregoing paragraphs.
(d) If a tax (other than a net income tax) is assessed on account of
the rents or other charges payable by Tenant Landlord under this
Lease, Tenant agrees to pay the same within ten (10) days after
billing therefor, unless applicable law prohibits the payment of
such tax by the Tenant. Tenant's obligation to make payment of
the same shall be applicable irrespective of the party to which
the tax is assessed.
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ARTICLE X
OPERATING COSTS
10.1 TENANT'S SHARE OF OPERATING COSTS.
(b) Tenant shall pay, as additional rent, the Tenant's Proportionate
Share of increases in Operating Costs over the calendar year 1993
actual expenses. The Tenant shall pay to the Landlord pro rata
monthly installments on account of projected Operating Costs for
the Lease Year, calculated by the Landlord on the basis of the
most recent Operating Costs data or budget available, with an
adjustment made to account for actual increased Operating Costs
for such Lease Year. If the total of such monthly installments in
any Lease Year is greater than the actual Operating Costs for
such Lease Year, the Tenant shall be entitled to a credit against
the Tenant's base rental obligations hereunder in the amount of
such difference. If the total of such monthly installments is
less than the actual Operating Costs for such Lease Year, the
Tenant shall pay to the Landlord the amount of such difference
promptly upon billing therefor.
(c) For the purposes of this Article "Lease Year" shall mean any
fiscal year from January 1 to December 31, except that the first
Lease Year during the term of this Lease shall commence on the
Commencement Date and end on the next following December 31 and
the last Lease Year during the term of this Lease shall end on
the date this Lease terminates (each of such first and last Lease
Years are referred to in the immediately preceding paragraph (b)
as a "Partial Lease Year"); and "Operating Costs" shall include:
(1) All expense incurred by the Landlord or its agents which
shall be directly related to employment of day and night
supervisors, janitors, handymen, carpenters, engineers,
firemen, mechanics, electricians, plumbers, guards,
cleaners, secretaries and other personnel (including
amounts incurred for wages, salaries and other compensation
for services, payroll, social security, unemployment and
similar taxes, workmen's compensation insurance, disability
benefits, pensions, hospitalization, retirement plans and
group insurance, uniforms and working clothes and the
cleaning thereof, and expenses imposed on the Landlord or
its agents pursuant to any collective bargaining
agreement), for services in connection with the operation,
management, minor repair, maintenance, cleaning and
protection (collectively, "the Operation") of the Building,
the Building heating, ventilating, air conditioning,
electrical, plumbing, fire protection and other systems and
the Lot (collectively, "the Property"), and personnel
engaged in supervision of any of the persons mentioned
above;
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(2) The cost of services, materials and supplies furnished or
used in the Operation of the Property;
(3) The cost of replacements for tools and equipment used in
the Operation of the Property;
(4) The amounts paid to managing agents and for legal,
accounting and other professional fees relating to the
Operation of the Property, but excluding such fees paid in
connection with negotiations for leases;
(5) Insurance premiums;
(6) Costs for electricity, steam and other utilities required
in the Operation of the Property;
(7) Water and sewer use charges;
(8) The costs of snow-plowing and removal and landscaping;
(9) Amounts paid to independent contractors for services,
materials and supplies furnished for the Operation of the
Property;
(10) All other expenses incurred in connection with the
Operation of the Property;
(11) Any replacement of capital equipment will be amortized over
the useful life of the capital item.
Operating Costs shall be computed on all accrual basis and shall
be determined in accordance with generally accepted accounting
principles consistently applied. They may be incurred directly or
by way of reimbursement, and shall include taxes applicable
thereto. The following shall be excluded from Operating Costs:
(1) Salaries of officers and executives of the Landlord not
connected with the Operations of the Property;
(2) Depreciation;
(3) Expenses relating to tenants' alterations;
(4) Interest on indebtedness;
(5) Expenses for which the Landlord, by the terms of this Lease
or any other lease, makes a separate charge;
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(6) Real estate taxes; and
(7) Leasing fees or commissions.
All Operating Costs shall be reduced by the amount (net of
collection costs) of any insurance reimbursement, discount or
allowance received by the Landlord in connection with such costs.
ARTICLE XI
INDEMNITY
11.1 THE TENANT'S INDEMNITY.
To the maximum extent permitted by law, the Tenant shall indemnify and
save harmless the Landlord, the directors, officers, agents and employees of the
Landlord and those in privity of estate with the Landlord, from and against all
claims, expenses or liability of whatever nature (a) arising from any default,
act, omission or negligence of the Tenant, or the Tenant's contractors,
licensees, agents, servants or employees or the failure o the Tenant or such
persons to comply with any rule, order, regulation or lawful direction now or
hereafter in force of any public authority, in each case to the extent the same
are related, directly or indirectly, in the Premises or the Building, or the
Tenant's use thereof; or (b) arising directly or indirectly from any accident,
injury or damage, however caused, to any person or property on or about the
Premises; or (c) arising, directly or indirectly, out of default or breach by
the Tenant under any of the terms or covenants of this Lease or in connection
with any equipment or installations to be maintained or repaired by the Tenant;
or (d) arising directly or indirectly, from any accident, injury or damage to
any person or property occurring outside the Premises but within the Building,
or on the Lot where such accident, injury or damage results, or is claimed to
have resulted from, any act, omission or negligence on the part of the Tenant,
or the Tenant's contractors, licensees, agents, servants, employees or customers
of anyone claiming by or through the Tenant; provided, however, that in no event
shall the Tenant be obligated under this Section 11.1 to indemnify the Landlord,
the directors, officers, agents and employees of the Landlord, or those in
privity of estate with the Landlord, where such claim, expense or liability
results solely from any omission, fault, negligence or other misconduct of the
landlord or the officers, agents or employees of the Landlord on or about the
Premises or the Building.
This indemnify and hold harmless agreement shall include indemnity
against all expenses and liabilities incurred in or in connection with any such
claim of proceeding brought thereon, and the defense thereof with counsel
acceptable to the Landlord or counsel selected by an insurance company which has
accepted liability for any such claim.
11.2 THE TENANT'S RISK.
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The Tenant agrees to use and occupy the Premises and to use such other
portions of the Building and the Lot as the Tenant is herein given the right to
use at the Tenant's sole risk; and to the fullest extent permitted by law the
Landlord shall have no responsibility or liability for any loss of or damage to
furnishings, fixtures, equipment or other personal property of the Tenant or of
any persons claiming by, through or under the Tenant.
11.3 INJURY CAUSED BY THIRD PARTIES.
The Tenant agrees that the Landlord shall not be responsible or liable
to the Tenant, or to those claiming by, through or under the Tenant for any loss
or damage resulting to the Tenant or those claiming by, through or under the
Tenant, or its or their property, that may be occasioned by or through the acts
or omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or in any part of the Building, or
for any loss or damage from the breaking, bursting, stopping or leaking of
electric cables and wires, and water, gas, sewer or steam pipes or like matters.
ARTICLE XII
THE LANDLORD'S ACCESS TO PREMISES
12.1 THE LANDLORD'S RIGHT OF ACCESS.
The Landlord shall have the right to enter the Premises at all
reasonable hours for the purpose of inspecting or of making repairs, alterations
or additions to the premises or the Building, and the Landlord shall also have
the right to make access available at all reasonable hours to prospective or
existing mortgagees or purchasers of any part of the Building. To assure access
by the Landlord to the Premises, the Tenant shall provide the Landlord with
duplicate copies of all keys to be used in emergencies only used by the Tenant
in providing access to the Premises.
For a period commencing twelve (12) months prior to the expiration of
the term of this Lease, the Landlord may have reasonable access to the Premises
at all reasonable hours for the purpose of exhibiting the same to prospective
tenants.
12.2 ACCESS DURING THE LAST MONTH OF TERM.
If during the last month of the Lease Term, the Tenant shall have
removed all of the Tenant's property therefrom, the Landlord may immediately
enter and alter, renovate and redecorate the Premises without elimination or
abatement of rent, or incurring liability to the Tenant for any compensation,
and such acts shall have no effect upon otherwise applicable terms of this
Lease.
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ARTICLE XIII
CASUALTY
13.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE".
The term "substantial damage", as used herein, shall refer to damage
which is of such a character that in the Landlord's reasonable opinion the same
cannot, in ordinary course, be expected to be repaired within 120 calendar days
from the time that such repair work would commence. Any damage which is not
"substantial damage" is "partial damage".
13.2 PARTIAL DAMAGE.
If during the Lease Term there shall be partial damage to the Building
by fire or other casualty and if such damage shall materially interfere with the
Tenant's use of the Premises as contemplated by this Lease, the Landlord shall
promptly proceed to restore the Building to substantially the condition in which
it was immediately prior to the occurrence of such damage.
If during the Lease Term there shall be a partial damage to the
Premises by fire or other casualty, the Landlord shall promptly proceed to
restore the Premises to substantially the condition it was immediately prior to
the occurrence of such damage.
13.3 SUBSTANTIAL DAMAGE.
If during the Lease Term there shall be substantial damage to the
Building by fire or other casualty and if such damage shall materially interfere
with the Tenant's use of the Premises as contemplated by this Lease, or there
shall be substantial damage to the Premises, the Landlord shall promptly restore
the Building or the Premises, as applicable to the extent reasonably necessary
to enable the Tenant's use of the Premises, unless the Landlord, within
forty-five (45) days after the occurrence of such damage, shall give notice to
the Tenant of the Landlord's election to terminate this Lease. The Landlord
shall have the right to make such election in the event of substantial damage to
the Building whether or not such damage materially interferes with the Tenant's
use of the Premises. If the Landlord shall give such notice, then this Lease
shall terminate as of the date of such notice with the same force and effect as
if such date were the date originally established as the expiration date hereof.
Notwithstanding the foregoing, if the damage has not been substantially
completed within nine (9) months of the casualty, Tenant may elect to terminate
the lease.
13.4 ABATEMENT OF RENT.
If during the Lease Term the Building or the Premises shall be damaged
by fire or casualty and if such damage shall materially interfere with the
Tenant's use of the Premises as contemplated by this Lease, a just proportion of
the Rent and other charges payable by the Tenant hereunder shall xxxxx
proportionately for the period in which, by reason of such damage, there is such
interference with the Tenant's use of the Premises.
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13.5 MISCELLANEOUS.
In no event shall the Landlord have any obligation to make any repairs
or perform any restoration work under this Article XIII if prevented from doing
so by reason of any cause beyond its reasonable control, including without
limitation, the requirements of any applicable laws, codes, ordinances, rules or
regulations, or in the event of damage to or destruction of any portion of he
Building which is not fully covered by the insurance proceeds received by
Landlord, or in the event that any portion of the insurance proceeds must be
paid over to or are retained by the holder of any mortgage or deed of trust on
the Building or Lot, and in such events Landlord may terminate this Lease by
written notice to the Tenant, given within thirty (30) days after the date of
notice to Landlord that said damage or destruction is not so covered or that the
proceeds are not available for repair of the damage or destruction. Further, the
Landlord shall not be obligated to make any repairs or perform any restoration
work to any fixtures in or portions of the Premises or the Building which were
constructed or installed by or for some party other than the Landlord or which
are not the property of the Landlord or if the damage arises out of an act or
omission of Tenant.
ARTICLE XIV
EMINENT DOMAIN
14.1 RIGHTS OF TERMINATION FOR TAKING.
If the Premises, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable for the Tenant's purposes, shall be taken by condemnation or right of
eminent domain (including a temporary taking in excess of 180 days), the
Landlord or the Tenant shall have the right to terminate this Lease by notice to
the other of its desire to do so, provided that such notice is given not later
than thirty (30) days after the Tenant has been deprived of possession.
Further, if so much of the Building (which may include the Premises) of
the Lot shall be so taken or condemned or shall receive any direct or
consequential damage by reason of anything done pursuant to public or
quasi-public authority such that continued operation of the same would, in the
Landlord's reasonable opinion, be uneconomical, the Landlord shall have the
right to terminate this Lease by giving notice to the Tenant of the Landlord's
desire so to do not later than thirty (30) days after the effective date of such
taking.
Should any part of the Premises be so taken or condemned or receive
such damage and should this Lease be not terminated in accordance with the
foregoing provisions, the Landlord shall promptly after the determination of the
Landlord's award on account thereof, expend so much as may be necessary of the
net amount which may be awarded to the Landlord in such condemnation proceedings
in restoring the Premises to an architectural unit that is reasonably suitable
to the uses of the Tenant permitted hereunder. Should the net amount so awarded
to the Landlord be insufficient to cover the cost of so restoring the Premises,
in the reasonable estimate of the Landlord, the Landlord may, but shall have no
obligation to, supply the amount of such
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insufficiency and restore the premises to such an architectural unit, with
reasonable diligence, or may terminate this Lease by giving notice to the Tenant
not later than a reasonable time after the Landlord has determined the estimated
cost of such restoration.
14.2 PAYMENT OF AWARD.
The Landlord shall have and hereby reserves and excepts, and the Tenant
hereby grants and assigns to the Landlord, all rights to recover for damages to
the Building and the Lot and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking or damage,
as aforesaid. The Tenant covenants to deliver such further assignments and
assurances thereof as the Landlord may form time to time request, hereby
irrevocably designating and appointing the Landlord as its attorney-in-fact to
execute and deliver in the Tenant's name and behalf all such further assignments
thereof. Nothing contained herein shall be construed to prevent the Tenant from
prosecuting in any condemnation proceedings a separate claim for the value of
any of the Tenant's trade fixtures installed in the Premises by the Tenant at
the Tenant's expense and for relocation expenses, provided that such action
shall not affect the amount of compensation otherwise recoverable hereunder by
the Landlord from the taking authority.
14.3 ABATEMENT OF RENT.
In the event of any such taking of the Premises, the Rent and other
charges, or a fair and just proportion thereof, according to the nature and
extent of the damage sustained, shall be suspended or abated, as appropriate and
equitable in the circumstances.
14.4 MISCELLANEOUS.
In no event shall the Landlord have any obligation to make any repairs
under this Article XIV if prevented from doing so by reason or any cause beyond
its reasonable control, including requirements of any applicable laws, codes,
ordinances, permit conditions, rules or regulations. Further, the Landlord shall
not be obligated to make any repairs to any portions of the Premises or the
Building which were constructed or installed by or for some party other than the
Landlord or which were not the property of the Landlord.
ARTICLE XV
INSURANCE
15.1 PUBLIC LIABILITY AND PROPERTY INSURANCE.
The Tenant agrees to maintain in full force from the date upon which
the Tenant first enters the Premises for any reason, throughout the Lease Term,
and thereafter so long as the Tenant is in occupancy of any part of the
Premises, a policy of comprehensive public liability insurance, written on an
occurrence basis and including contractual liability coverage to cover any
liabilities assumed under this Lease, insuring against all claims for injury to
or death of
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persons or damage to property on or about the Premises or arising out of the use
of the Premises and under which the Landlord, and such other persons as are in
privity of estate with the Landlord (as may be set forth in a notice given from
time to time by the Landlord) and the Tenant are named as insureds, as their
respective interests appear, each with the same effect as if separately insured.
The minimum limits of liability of such insurance shall be: Bodily injury -
$1,000,000 per occurrence and in the aggregate over the term of the policy, and
Property Damage - $1,000,000 per occurrence. The Landlord shall have the right
from time to time to increase such minimum limits upon notice to the Tenant,
provided that any such increase shall provide for coverage in amounts similar to
like coverage being carried on like property in the greater Boston area.
The Tenant shall also maintain in full force and effect from the date
upon which the Tenant first enters the Premises for any reason, throughout the
Lease Term and thereafter so long as the Tenant is in occupancy of any part of
the Premises property insurance covering the Tenant's furnishings, fixtures,
equipment or other personal property of the Tenant written on an "All Risk"
basis for full replacement cost, and such other insurance as the Landlord may,
from time to time, reasonably require. Without limiting the provisions of
Section 11.2, if the Tenant fails to take out or maintain any policy of
insurance required by this Article XV to be taken out and maintained, such
failure shall be compete defense to any claim asserted by the Tenant against the
Landlord by reason of any loss sustained by the Tenant that would have been
covered by such policy.
Each such policy shall be non-cancellable and non-amendable with
respect to the Landlord and such designees of the Landlord without thirty (30)
days' prior notice to the Landlord, and a duplicate original of certificate
thereof shall be delivered to the Landlord.
15.2 NON-SUBROGATION.
Insofar as, and to the extent that, the following provision may be
effective without invalidating or making it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in the
locality in which the Premises are located (even though extra premium may result
therefrom), the Landlord and the Tenant mutually agree that, with respect to any
hazard which is covered by insurance then being carried by them, respectively,
the one carrying such insurance and suffering such loss releases the other of
and from any and all claims with respect to such loss; and they further mutually
agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof. In the event that extra
premium is payable by either party as a result of this provision, the other
party shall reimburse the party paying such premium the amount of such extra
premium. If, at the request of one party, this release and non-subrogation
provision is waived, then the obligation of reimbursement shall cease for such
period of time as such waiver shall be effective. If the release of either party
provided above shall contravene any law with respect to exculpatory agreements,
the liability of the party for whose benefit such release was intended shall
remain but shall be secondary to that of the other party's insurer.
15.3 EXTRA HAZARDOUS USE.
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The Tenant covenants and agrees that the Tenant will not do or permit
anything to be done in or upon the Premises, or bring in anything or keep
anything therein, which would invalidate or be in conflict with insurance
coverage maintained by or for the Landlord with respect to the Building or which
would increase the rate of insurance on the Premises or on the Building above
the standard rate applicable to the Premises or the Building for the use to
which the Tenant has agreed to devote the Premises; and the Tenant further
agrees that, in the event that the Tenant shall do any of the foregoing, the
Tenant will, at Landlord's election, cease such activity or promptly pay to the
Landlord, on demand, any such increase resulting therefrom, which shall be due
and payable as additional rent hereunder.
Tenant shall not cause or permit any hazardous or toxic wastes,
hazardous or toxic substances or hazardous or toxic materials (collectively,
"Hazardous Materials") to be used, generated, stored or disposed of on, under or
about, or transported to or from, the Premises (collectively, "Hazardous
Materials Activities") without first receiving Landlord's written consent, which
may be withheld for any reason and revoked at any time. If Landlord consents to
any such Hazardous Materials Activities, Tenant shall conduct them in strict
compliance (at Tenant's expense) with all applicable Regulations, as hereinafter
defined, and using all necessary and appropriate precautions to prevent any
spill, discharge, release or exposure to persons or property. Landlord shall not
be liable to Tenant for any loss, cost, expense, claims, damage or liability
arising out of any Hazardous Materials Activities by Tenant, Tenant's employees,
agents, contractors, licensees, customers or invitees, whether or not consented
to by Landlord. Tenant shall indemnify, defend with counsel acceptable to
Landlord, and hold Landlord harmless from and against any and all loss, costs,
expenses, claims, damages or liabilities arising out of all Hazardous Materials
Activities on the Premises, whether or not consented to by Landlord, which
obligation shall survive the termination of this Lease. For purposes hereof,
Hazardous Materials shall include but not be limited to substances defined as
"hazardous substances", "toxic substances", or "hazardous waste" in the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended; the Federal Hazardous Materials Transportation Act, as amended; and the
Federal Resource Conservation and Recovery Act, as amended ("RCRA"); those
substances defined as "hazardous wastes" in the Massachusetts Hazardous Waste
Facility Siting Act, as amended (Massachusetts General Laws Chapter 21D); those
substances defined as "hazardous materials" or "oil" in Massachusetts General
Laws Chapter 21E, as amended; and as such substances are defined in any
regulations adopted and publication promulgated pursuant to any of said laws
(collectively, "Regulations"). If Landlord consents to any Hazardous Materials
Activities, prior to using, storing or maintaining any Hazardous Materials on or
about the Premises, Tenant shall provide Landlord with a list of the types and
quantities thereof, and shall update such list as necessary for continued
accuracy. Tenant shall also provide Landlord with a copy of any Hazardous
Materials inventory statement required by any applicable Regulations, and any
update filed in accordance with any applicable Regulations. If Tenant's
activities violate or create a risk of violation of any Regulations or cause a
spill, discharge, release or exposure to any persons or property, Tenant shall
cease such activities immediately upon notice from Landlord. Tenant shall
immediately notify Landlord both by telephone and in writing of any spill,
discharge, release or exposure of Hazardous Materials or of any condition
constituting an "imminent hazard" under any Regulations. Landlord, Landlord's
representatives and employees may enter the Premises at any time during
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the Term to inspect Tenant's compliance herewith, and may disclose any spill,
discharge, release, or exposure or any violation of any Regulations to any
governmental agency with jurisdiction. Nothing herein contained shall prohibit
Tenant from using minimal quantities of cleaning fluid and office supplies which
may constitute Hazardous Materials but which are customarily present in premises
devoted to office use, provided that such use is in compliance with all
Regulations and shall be subject to all of the other provisions of this
Section 15.3.
ARTICLE XVI
DEFAULT
16.1 TENANT'S DEFAULT.
The occurrence of any of the following shall constitute an "Event of
Default" on the part of the Tenant:
a) the Tenant shall fail to pay the Rent or other charges on or
before the date on which the same becomes due and payable and the
same continues for ten (10) days (up to two times per year) after
the date the same becomes due hereunder, or
b) the Tenant shall fail to perform or observe any other term or
condition contained in this Lease within thirty (30) days after
notice from the Landlord thereof, unless such default is of such
a nature that it cannot be cured within such thirty (30) day
period, in which case no event of default shall occur unless the
Tenant shall not commence to cure such failure promptly within
such ten (10) day period and thereafter continuously and
diligently complete the curing of the same, or
c) the Tenant shall vacate or abandon the Lease Premises, or
d) if the Tenant's interest in this Lease shall devolve upon or pass
to any person, whether by operation of law or otherwise, except
as expressly permitted under Article VI,
e) except as otherwise provided by applicable law, if the estate
hereby created shall be taken on execution or by other process of
law, or if the Tenant shall be judicially declared bankrupt or
insolvent according to law, or if any assignment shall be made of
the property of the Tenant for the benefit of creditors, or if a
receiver, guardian, conservator, trustee in involuntary
bankruptcy or other similar officer shall be appointed to take
charge of all or any substantial part of the Tenant's property by
a court of competent jurisdiction, or if a petition shall be
filed for the reorganization of the Tenant under any provisions
of law now or hereafter enacted, and such proceeding is not
dismissed within forty-five (45)
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days after it is begun, or if the Tenant shall file a petition
for such reorganization, or for arrangements under any provisions
of such laws providing a plan for a debtor to settle, satisfy or
extend the time for the payment of debts.
16.2 REMEDIES UPON DEFAULT.
(a) If an Event of Default occurs, Landlord shall have the right, with
or without notice or demand, immediately to terminate this Lease, and at any
time thereafter recover possession of the Premises or any part thereof and expel
and remove therefrom Tenant and any other person occupying the same, by any
lawful means, and again repossess and enjoy the Premises without prejudice to
any of the remedies that Landlord may have under this Lease, or at law or equity
be reason of Tenant's default or of such termination.
(b) Even though Tenant has breached this Lease, this Lease shall
continue in effect for so long as Landlord does not terminate Tenant's right to
possession under Section 16.2(a) hereof, and Landlord may enforce all of its
rights and remedies under this Lease, including, without limitation, the right
to recover Rent as it becomes due. Acts of maintenance, preservation or efforts
to lease the Premises or the appointment of a receiver upon application of
Landlord to protect Landlord's interest under this Lease shall not constitute an
election to terminate Tenant's right to possession.
16.3 DAMAGES UPON TERMINATION.
Should Landlord terminate this Lease pursuant to the provisions of
Section 16.2(a) hereof, Landlord shall have all the rights and remedies of a
landlord in law or in equity. Upon such termination, in addition to any other
rights and remedies to which Landlord may be entitled under applicable law,
Landlord shall be entitled to recover from Tenant: (i) the worth at the time of
award of the unpaid Rent and other amounts which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such Rent loss that the Tenant proves could have
been reasonably avoided; (iii) the worth at the time of award of the amount by
which the unpaid Rent for the balance of the Term after the time of award
exceeds the rental value of the Premises for the balance of the Term after the
time of award exceeds the rental value of the Premises for the balance of the
Term; and (iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which, in the ordinary course, would be likely to result
therefrom. Tenant further covenants, as an additional cumulative obligation
after any such termination, to punctually pay to Landlord all sums and perform
all obligations which Tenant covenants in this Lease to pay and to perform, as
if this Lease had not been terminated. In calculating the amounts to be paid by
Tenant pursuant to this Section 16.3, Tenant shall be credited with any amount
paid to Landlord pursuant to this Section 16.3 and also (in respect of the
amounts referred to in (i) and (ii)) the net proceeds of rent obtained by
Landlord by reletting the Premises through the time of award, after deducting
all Landlord's expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commission, fees for legal
services and expenses of preparing the Premises for reletting it being agreed by
Tenant that Landlord may (x) relet the Premises or any part thereof for a term
or terms which may at Landlord's option be
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equal or less than or exceed the period which would otherwise have constituted
the balance of the Term and may grant such concessions and free rent as Landlord
in its sole judgement considers advisable or necessary to relet the same and (y)
make such alterations, repairs and decorations in the Premises as Landlord in
its sole judgment considers advisable or necessary to relet the same, and no
action of Landlord in accordance with the foregoing or failure to relet to
collect rent under Landlord's reletting of the Premises shall operate or be
construed to release or reduce Tenant's liability as aforesaid. The "time of
award" shall refer to such time as (I) Tenant shall, as a settlement of the
amounts due pursuant to this Section 16.3, pay to Landlord such sums pursuant to
a written agreement in form and substance satisfactory to Landlord or (II) the
date on which a judgment shall be entered in a court of competent jurisdiction
to the effect that Tenant shall pay Landlord the amounts due and owing pursuant
to this Section 16.3. The "worth at the time of award" of the amounts referred
to in (i) and (ii) shall mean such amounts together with interest at the lesser
of eighteen percent (18%) per annum or the maximum rate allowed by law. The
"worth at the time of award" of the amount referred to in (iii) shall mean such
amounts as computed by referenced to competent appraisal evidence or the formula
prescribed by and using the lowest discount rate permitted under applicable law.
16.4 COMPUTATION OF RENT FOR PURPOSES OF DEFAULT.
For purposes of computing unpaid Rent which would have accrued and
become payable under this Lease pursuant to the provisions of Section 16.3,
unpaid Rent shall consist of the sum of:
(1) the total Base Rent for the balance of the Term, plus
(2) a computation of the Operating Expenses and Taxes for the balance
oft he Term, the assumed Operating Expenses for the calendar year
of the default and each future calendar year in the Term to be
equal to the Operating Expenses and Taxes for the calendar year
prior to the year in which the default occurs compounded at a per
annum rate equal to the mean average rate of inflation for the
preceding five (5) calendar years as determined by the United
States Department of Labor, Bureau of Labor Statistics Consumer
Price Index (All Urban Consumers, All Items, 1967 equals 100) for
the metropolitan Area or Region of which Boston, Massachusetts is
a part. If such Index is discontinued or revised, the average
rate of inflation shall be determined by reference to the index
designated as the successor or substitute index by the government
of the United States, plus
(3) the amounts, if any, designated in Section 4.1.
16.5 RIGHTS OF LANDLORD IN BANKRUPTCY.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or insolvency, by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or
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not the amount be greater, equal to, or less than the amount of the loss or
damages referred to in this Article XVI.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 WAIVER.
Failure on the part of the Landlord to complain of any action or
non-action on the part of the Tenant, no matter how frequently the same may
occur or how long the same may continue, shall never by a waiver by the Landlord
of its rights hereunder. Further, no waiver at any time of any of the provisions
hereof by the Landlord shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions hereof
shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of the Landlord to or of any action by the
other requiring such consent or approval shall not be construed to waive or
render unnecessary the Landlord's consent or approval to or of any subsequent
similar act by the Tenant. No option or right granted to the Tenant to renew
this Lease or to extend the Lease Term shall be considered to give the Tenant
any further option or right to renew or extend.
17.2 COVENANT OF QUIET ENJOYMENT.
Subject to the terms and provisions of this Lease and on payment of the
rent and compliance with all of the terms and provisions of this Lease, the
Tenant shall lawfully, peaceably and quietly have, hold, occupy and enjoy the
Premises during the term hereof, without hindrance or ejection by the Landlord
or by any persons lawfully claiming under the Landlord; the foregoing covenant
of quiet enjoyment is in lieu of any other covenant, express or implied.
17.3 NO PERSONAL LIABILITY OF THE LANDLORD.
The Tenant agrees to look solely to the Landlord's then equity interest
in the Building at the time owned, or in which the Landlord holds an interest as
ground lessee, for recovery of any judgment from the Landlord; it being
specifically agreed that neither the Landlord (whether the Landlord be an
individual, partnership, firm, corporation, trustee or other fiduciary) nor any
of the partners comprising the Landlord, nor any beneficiary of any trust of
which any person holding the Landlord's interest is trustee nor any successor in
interest to any of the foregoing shall ever by personally liable for any such
judgment, or for the payment of any monetary obligation to the Tenant. The
covenants of the Landlord contained in this Lease shall be binding upon the
Landlord and the Landlord's successors only with respect to breaches occurring
during the Landlord's and the Landlord's successors' respective periods of
ownership of the Landlord's interest hereunder.
17.4 NOTICE TO MORTGAGEE AND GROUND LESSOR; OPPORTUNITY TO CURE.
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After receiving notice from any person, firm or other entity that it
holds a mortgage which includes the Premises as part of the mortgaged premises,
or that it is the ground lessor under a lease with the Landlord, as ground
lessee, which includes the Premises as a part of the demised premises, no notice
from the Tenant to the Landlord shall be effective unless and until a copy of
the same is given to such holder or ground lessor, and the curing of any of the
Landlord's defaults by such holder or ground lessor shall be treated as
performance by the Landlord. Accordingly, no act or failure to act on the part
of the Landlord which would entitle the Tenant under the terms of this Lease, or
by law, to be relieved of the 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) the Tenant shall have first given written
notice of the Landlord's act or failure to act to such holder or ground lessor,
if any, specifying the act or failure to act on the part of the Landlord which
could or would give basis to the Tenant's rights; and (ii) such holder or ground
lessor, after receipt of such notice, has failed or refused to correct or cure
the condition complained of within a reasonable time thereafter, but nothing
contained in this paragraph shall be deemed to impose any obligation on any such
holder or ground lessor to correct or cure any such condition. "Reasonable time"
as used above means and includes a reasonable time to obtain possession of the
Lot and Building if any such holder or ground lessor elects to do so and a
reasonable time to correct or cure the condition if such condition is determined
to exist.
17.5 NO BROKERAGE.
The Tenant warrants and represents that the Tenant has dealt with no
broker other than the Broker in connection with the consummation of this Lease,
and, in the event of any brokerage claims, other than claims by the Broker,
against the Landlord predicated upon prior dealings with the Tenant named
herein, the Tenant agrees to defend the same and indemnify the Landlord against
any such claim. Landlord shall be responsible for the payment to Broker of any
commission arising out of this Lease.
17.6 INVALIDITY OF PARTICULAR PROVISIONS.
If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and been forced to the fullest extent permitted by
law.
17.7 PROVISIONS BINDING, ETC.
Except as herein otherwise expressly provided, the terms hereof shall
be binding upon and shall inure to the benefit of the successors and assigns,
respectively, of the Landlord and the Tenant and, if the Tenant shall be an
individual, upon and to his heirs, executors, administrators, legal
representatives, successors and assigns. Each term and each provision of this
Lease to be performed by the Tenant shall be construed to be both a covenant and
a condition. The reference contained to successors and assigns of the Tenant is
not intended to constitute a consent to assignment by the Tenant, but has
reference only to those instances in which the Landlord may later give consent
to a particular assignment as required by those provisions of Article VI hereof.
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If the Tenant be several persons, natural or corporate, the liability of such
persons for compliance with the obligations of the Tenant under this Lease shall
be joint and several. In all instances where the Tenant is required under this
Lease to pay any sum or do any act at or by a particular time it is agreed that
time is of the essence.
17.8 RECORDING.
The Tenant agrees not to record this Lease.
17.9 NOTICES.
Whenever, by the terms of this Lease, notice shall or may be given
either to the Landlord or to the Tenant, such notice shall be in writing and
shall be sent by registered or certified mail, postage prepaid or by so-called
"express" mail (such as Federal Express or U.S. Postal Service Express Mail);
If intended for the Landlord, addressed to the Landlord at the
address set forth on the first page of this Lease, or to such other
address or addresses as may from time to time hereafter be designated
by the Landlord by like notice.
with a copy to : Xxxxxxxx & Grew Incorporated
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
If intended for the Tenant, addressed to the Tenant at the
address set forth on the first page of this Lease, or to such other
address or addresses as may from time to time hereafter be designated
by the Tenant by like notice.
All such notices shall be effective two (2) days after deposited in the
United States mail within the Continental United States or when received by the
"express" mail carrier, as the case may be.
17.10 WHEN LEASE BECOMES BINDING.
Employees or agents of the Landlord have no authority to make or agree
to make a lease or any other agreement or undertaking in connection herewith.
The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of , or option for, the Premises,
and this document shall become effective and binding only upon the execution and
delivery hereof by both the Landlord and the Tenant. All negotiations,
consideration, representations and understandings between the Landlord and the
Tenant are incorporated herein and may be modified or altered only by written
agreement between the Landlord and the Tenant, and no act or omission of any
employee or agent of the Tenant, and no act or omission of any employee or agent
of the Landlord shall alter, change or modify any of the provisions hereof.
17.11 PARAGRAPH HEADINGS.
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The paragraph headings throughout this instrument are for convenience
and reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this Lease.
17.12 RIGHTS OF MORTGAGEE.
(a) If any holder of a mortgage or holder of a ground lease of
property which includes the Premises, originally given to a
lender, and executed and recorded subsequent to the date of this
Lease, shall so elect, the interest of the Tenant hereunder shall
be subordinate to the rights of such holder. If any holder of a
mortgage or holder of a ground lease of property which includes
the premises, originally given to a lender, and executed and
recorded prior to the date of this Lease, shall so elect, this
Lease, and the rights of the Tenant hereunder, shall be superior
in right to the rights of such holder, with the same force and
effect as if this Lease had been executed and delivered, and
recorded, or a statutory notice hereof recorded, prior to the
execution, delivery and recording of any such mortgage. If in
connection with obtaining financing for the Building, a bank,
insurance company, pension trust or other institutional lender
shall request reasonable modifications in this Lease as a
condition to such financing, the Tenant will not unreasonably
withhold, delay or condition its consent thereto, provided that
such modifications do not materially increase the obligations of
the Tenant hereunder or materially adversely affect the Tenant or
the leasehold interest hereby created. No assignment of this
Lease and no agreement to make or accept any surrender,
termination or cancellation of this Lease and no agreement to
modify so as to reduce the rent, change the term, or otherwise
materially change the rights of the Landlord under this Lease, or
to relieve the Tenant of any obligations or liability under this
Lease, shall be valid unless consented to in writing by the
Landlord's mortgagees of record, if any. Tenant agrees on request
of the Landlord to execute and deliver from time to time any
agreement which may reasonably be deemed necessary to implement
the provisions of this Section 17.12.
(b) Notwithstanding anything to the contrary contained in Section
14.15(a) or Section 14.6(b), Tenant shall not be required to
subordinate this Lease to any mortgage or to thee lien of any
mortgage or sale and leaseback, nor shall the subordination
provided herein be self-operative unless the holder of such
mortgage or ground lease, as the case may be, shall enter into an
agreement with Tenant, recordable in form, to the effect that in
the event of foreclosure of, or similar action taken under, such
mortgage or ground lease, this Lease shall not be terminated or
disturbed by such mortgageholder or ground lessor or anyone
claiming under such mortgageholder or ground lessor, as the case
may be, so long as Tenant shall not be in Default under this
Lease. The form of any such agreement shall not be the form as
required by any such mortgagee or ground lessor (consistent with
the provisions of this Lease).
17.13 STATUS REPORT; MODIFICATION.
Recognizing that the Landlord may find it necessary to establish to
third parties, such as accountants, banks, mortgagees or the like, the then
current status of performance hereunder Tenant agrees to execute in form
satisfactory to the Landlord within ten (10) days of a written request therefor
a certificate stating (i) that this Lease is then in full force and effect and
has not
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been modified or if modified, setting forth the specific nature of all
modifications, (ii) the date to which the Rent and any additional rent or other
charges has been paid, (iii) whether or not the Landlord is in default under
this Lease, and if the Landlord is in default, setting forth the specific nature
of all such defaults) and (iv) any other matters relating to the Lease
reasonably requested by Landlord. Tenant's failure to deliver such statement
within such time shall be conclusive upon Tenant that this Lease is in full
force and effect, without modification except as may be represented by Landlord,
that there are no uncured defaults in Landlord's performance and that not more
than one (1) month's Rent has been paid in advance. Without limiting the
generality of the foregoing, the Tenant specifically agrees, promptly upon the
commencement of the Term hereof, to acknowledge to the Landlord satisfaction of
any requirements with respect to construction except for such matters as the
Tenant may set forth specifically in such statement. The Tenant acknowledges
that any statement delivered pursuant to this Section 17.13 may be relied upon
by any purchaser or owner of the Building, or the Lot or any part thereof, or
Landlord's interest in the Building or the Lot or any ground or underlying
lease, or by any mortgagee, or by any assignee of any mortgagee, or by any
lessee under any ground or underlying lease.
17.14 SECURITY DEPOSIT.
If, in Section 1.1 hereof a security deposit is specified, the Tenant
agrees that the same will be paid upon execution and delivery of this Lease, and
that the Landlord shall hold the same, throughout the term of this Lease, as
security for the performance by the Tenant of all obligations on the part of the
Tenant to be kept and performed. The Landlord shall have the right from time to
time, without prejudice to any other remedy the Landlord may have on account
thereof, to apply such deposit, or any part thereof, to the Landlord's damages
arising from any default on the part of the Tenant. Upon such application the
amount so applied shall be paid by Tenant to Landlord upon demand in order that
the security deposit may at all times be equal to the amount set forth in
Section 1.1. The Tenant not then being in default, the Landlord shall return the
deposit, or so much thereof as shall not have theretofore been applied in
accordance with the terms of this Section 17.14, to the Tenant on the expiration
or earlier termination of the Lease Term and surrender of possession of the
Premises by the Tenant to the Landlord at such time. The Landlord shall, unless
otherwise required by law, have no obligation to pay interest on the deposit and
shall have the right to commingle the same with the Landlord's other funds. If
the Landlord conveys the Landlord's interest under this Lease, the deposit, or
any part thereof not previously applied, may be turned over by the Landlord to
the Landlord's grantee, and, if so turned over, the Tenant agrees to look solely
to such grantee for proper application of the deposit in accordance with the
terms of this Section 17.14, and the return thereof in accordance herewith. The
Tenant agrees that the Tenant will not assign, encumber or pledge attempt to
assign, encumber or pledge the moneys deposited herein as security, and that
neither the Landlord, nor its successors and assigns, shall be bound by any such
assignment, encumbrance or pledge, attempted assignment, attempted pledge, or
attempted encumbrance.
The holder of a mortgage of property which includes the Premises shall
not be responsible to the Tenant for the return or applicability of any such
deposit, whether or not it
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succeeds to the position of the Landlord hereunder, unless such deposit shall
have been in hand by such holder.
17.15 SELF-HELP.
The Landlord shall have the right, but shall not be required, to pay
such sums or do any act which requires the expenditure of moneys which may be
necessary or appropriate by reason of the failure or neglect of the Tenant to
perform any of the provisions of this Lease, and in the event of the exercise of
such right by the Landlord, the Tenant agrees to pay to the Landlord forthwith
upon demand the cost of performing the same, plus an administrative charge
(covering overhead and profit) not to exceed 15% of such cost; and if the Tenant
shall default in such payment, the Landlord shall have the sane rights and
remedies as the Landlord as hereunder for the failure of the Tenant to pay the
Rent.
17.16 RELIEF LIMITED.
Whenever the Tenant shall claim under any provision of this Lease, that
the Landlord has unreasonably withheld or delayed is consent to some request of
the Tenant, the Tenant shall have no claim for damages by reason of such alleged
withholding or delay, and Tenant's sole remedy therefore shall be declaratory or
injunctive relief, but in no event without the recovery of damages.
17.17 HOLDING OVER.
Any holding over by the Tenant after the expiration of the term of this
Lease without the written consent or the Landlord shall be treated as a tenancy
at sufferance at double the rent specified herein (prorated on a daily basis)
and shall otherwise be on the terms and conditions set forth in this Lease, so
far as applicable.
Any holding over by the Tenant after the expiration of the term of this
Lease with the written consent of the Landlord shall be on a month-to-month
basis, terminable by either party on thirty (30) days notice and shall be at the
same Rent specified herein and shall otherwise be on the terms and conditions
set forth herein, so far as applicable.
17.18 CERTIFICATE.
If the Tenant is a corporation, each of the person executing this
instrument on behalf of the Tenant, hereby covenants and warrants that the
Tenant is a duly existing and valid and corporation and that the Tenant is
qualified to do business in Massachusetts. Further, if the Tenant is a
corporation, the Tenant shall deliver to the Landlord, at the time of execution
of this Lease, a Clerk's or Secretary's Certificate in the form attached hereto
as Exhibit H or other suitable form satisfactory to counsel for the Landlord),
as to the due authorization of this Lease and incumbency of the signing officer.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed, under seal, as of the Date set forth in Section 1.1.
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LANDLORD: XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: XXXXXXX REALTY INVESTORS, INC.
By: __________________________________
Xxxxxx X. Xxxxxx, Associate
TENANT: TRIPLE I CORPORATION
By: __________________________________
Xxxx X. Xxxxxx, Its Chairman & CEO
hereunto duly authorized
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EXHIBIT A
PLAN SHOWING THE PREMISES
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EXHIBIT B
DESCRIPTION OF LOT
Land in Lowell and Tewksbury, Middlesex County, Massachusetts shown as Lot 1 on
a "Plan of Land in Lowell & Tewksbury, Mass. Prepared for the Iver Company"
dated April 2, 1984 by Xxxxxxx, Xxxxxxxx & Associates, Inc. recorded with
Middlesex North District Deeds Plan Book 143, Plan 104, bounded and described,
as follows:
NORTHERLY: by Xxxxxx Street, 58.65 feet;
WESTERLY: by land of owners unknown, 324.99 feet;
NORTHERLY: by land of owners unknown, 94.28 feet;
EASTERLY: by land of owners unknown, 17.03 feet;
WESTERLY: by land of owners unknown, 153.66 feet;
NORTHWESTERLY: by land of owners unknown, 16.76 feet;
SOUTHERLY, WESTERLY
and NORTHERLY: by land now or formerly of Duke, 7.21 feet and
410.62 feet;
SOUTHERLY,
SOUTHEASTERLY, EASTERLY,
SOUTHERLY, EASTERLY,
SOUTHEASTERLY and
EASTERLY: by Lot 2, as shown on said plan, 291.64 feet,
70.71 feet, 124.00 feet, 209.50 feet,
60.00 feet, 45.93 feet and 16.27 feet;
NORTHERLY: by Lot 4, shown on said plan, 429.43 feet;
EASTERLY: by said Lot 4 by four courses measuring
138.95 feet, 256,19 feet, 54.63 feet and
100.00 feet.
The following parcels of registered land are included within the above-described
premises:
PARCEL 1 (LOT 1 ON LAND COURT PLAN 34845B)
A certain parcel of land in Lowell, Middlesex County, Massachusetts, bounded and
described as follows:
NORTHEASTERLY: by the southwesterly line of Xxxxxx Street by
two courses measuring respectively: 23.29 feet
and 7.62 feet;
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WESTERLY: by Lot 2 as shown on the plan hereinafter
mentioned, 97.80 feet; and
EASTERLY: by land of owners unknown 100.42 feet.
All of the boundaries are located as shown on a plan drawn by Essex Survey
Service, Inc. (Xxxx Xxxxx Xxxx Xx. 00000X) filed with the Land Registration
Office with Certificate of Title No. 25071 and the premises described are shown
thereon as Xxx 0.
XXXXXX 0 (XXX 0 XX XXXX XXXXX XXXX 00000X)
A certain parcel of land in Lowell, Middlesex County, Massachusetts, bounded and
described as follows:
NORTHERLY by Lot 2 as shown on the plan hereinafter
mentioned, 21.05 feet;
EASTERLY: by land of owners unknown, 34.25 feet; and
WESTERLY: by land of owners unknown; 34.26 feet.
All of the boundaries are located as shown on a plan drawn by Essex Survey
Service, Inc. (Xxxx Xxxxx Xxxx Xx. 00000X) filed with the Land Registration
Office with Certificate of Title No. 25071 and the premises described are shown
thereon as Lot 3.
PARCEL 3 (LOT 4 ON LAND COURT PLAN NO. 36430C)
A certain parcel of land in Lowell, Middlesex County, Massachusetts, bounded and
described as follows:
NORTHERLY: by Xxxxxx Street, 35.36 feet;
EASTERLY: by Lot 3 on the plan below mentioned by four
courses measuring respectively: 100.00 feet,
54.63 feet, 256.19 feet and 138.95 feet;
NORTHERLY: by said Lot 3, 394.73 feet;
SOUTHEASTERLY: by land now or formerly of Xxxxxxxxx by a
curved line with a radius of 60.00 feet, a
distance of 94.25 feet;
SOUTHERLY: by land now or formerly of said Xxxxxxxxx by
two courses measuring respectively: 372.84
feet and 50.10 feet;
WESTERLY: by land now or formerly of said Xxxxxxxxx
265.76 feet;
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NORTHWESTERLY: by Lot 3 shown on Land Court Plan Number
34845B, 34125 feet;
NORTHERLY AND WESTERLY: by land now or formerly of XxXxxxxx'x Corp. by
two courses measuring respectively: 73.23 feet
and 227.19 feet; and
NORTHWESTERLY: by land now or formerly of Xxxxxxx X.
Xxxxxxxxx, being Xxx 0 xx xxxx Xxxx Xxxxx Xxxx
Xx. 00000X, 100.41 feet.
All of the boundaries are located as shown on a plan drawn by Xxxxxxx, Xxxxxxxx
& Associates, Inc. (Land Court Plan No. 36430C) filed with the Land Registration
Office with Certificate of Title No. 25853 and the premises described are shown
thereon as Lot 4.
That portion of the unregistered premises which is part of Parcel B on a "Plan
of Land in Lowell, Mass. Surveyed for Phoenix Real Estate Corp." dated June 1,
1961 by Xxxx X. Xxxxxxx and Sons. Inc. recorded with said Deeds, Plan Book 105,
Plan 93 is entitled to the to the benefit of a 45 foot easement over Parcel A on
said plan to Phoenix Avenue (which 45 foot easement is the same as the 45 foot
easement over land now or formerly of Duke shown on the plan first mentioned in
this Exhibit "A") as set forth in a deed from Xxxx X.
Xxxxxxxx to Odesseus X. Xxxxxxxx dated July 7, 1967 recorded with said Deeds,
Book 1802, Page 489.
The unregistered premises are entitled to the easements reserved in a deed from
Phoenix Real Estate Corporation to Xxxx X. XxxXxxxxx, Xx. dated October 28, 1964
recorded with said Deeds Book 1673, Page 338.
Said premises are entitled to the benefit of easements as set forth in an Access
and Parking Easement dated as of November 10, 1984, recorded with said Deeds
Book 2914, Page 256 also filed with said Registry District as Document
No. 103171.
36
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EXHIBIT C
RULES AND REGULATIONS
The Tenant shall observe faithfully, and comply with, and shall not
permit the violation of, the Rules and Regulations set forth in this Exhibit C
and such additional Rules and Regulations as Landlord may, from time to time,
adopt. All of the terms, covenants and conditions of this Exhibit C shall be
deemed part of this Lease as though fully set forth in the body of this Lease.
In case Tenant disputes the reasonableness of any additional Rules and
Regulations hereafter adopted by Landlord, the Tenant's right to dispute the
reasonableness of any additional Rule or Regulation shall be deemed waived
unless asserted by service of a notice upon the Landlord within ten (10) days
after the date upon which the Landlord shall give notice to the Tenant of the
adoption of any such additional Rule or Regulation.
The Tenant agrees:
1. The sidewalks, entrances, lobbies, corridors, elevators, fire
exits and stairways of the Building shall not be encumbered or
obstructed by any tenant or its agents, employees, licensees or
invitees, or be used for any purpose other than ingress to and
egress from the tenant's premises.
2. If a tenant's premises become infested with vermin due to tenants
own misuse of the premises, such tenant, at its sole cost and
expense, shall cause its premises to be exterminated by such
exterminators as shall be approved the Landlord at such times and
to such extent as the Landlord deems necessary to exterminate the
vermin.
3. No animals or birds shall be allowed in the Building.
4. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were
constructed, and no sweeping, rubbish, rags or other substances
shall be thrown therein. All damages resulting from any misuse of
the fixtures by Tenant, its servants, employees, agents. visitors
or licensees, shall be borne by Tenant.
5. Each tenant shall, at its expense, provide artificial light for
the employees of Landlord when such are making repairs or
alterations in said premises. Landlord shall be in no way
responsible to any tenant for loss of property from the premises,
however occurring, or for damage done to the furniture or other
effects of any tenant by Landlord's agents, other janitors,
cleaners, employees or contractors doing work in the premises.
6. Each tenant shall be responsible for all persons under the
tenant's control authorized to have access to the Building and
shall be liable to Landlord for all of their acts while in the
Building or on the Lot.
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7. No curtains, blinds, shades or screens other than those furnished
by Landlord shall be attached to, hung in or used in connection
with, any window or door of the Premises, without the prior
written consent of Landlord. Such curtain, blinds, shades,
screens or other fixtures must be of a quality, type, design and
color, and attached in the manner approved by Landlord.
8. The Landlord reserves the right at any time to change, rescind or
waive any one or more of these Rules and Regulations, and to make
such other and further reasonable rules and regulations as its
judgment may from time to time be necessary for the safety, care,
convenience or cleanliness of the Building or for the
preservation of comfort or good order therein. The Landlord shall
not be liable to any tenant for violation of the same by any
other tenant, its agents, employees, licensees or invitees.
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AMENDMENT TO LEASE
This Amendment to Lease executed this 31st day of October, 1995 between
Xxxx Xxxxxxx Mutual Life Insurance Company, a corporation ("Landlord") and
Triple I Corporation, a corporation ("Tenant").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Landlord and Tenant executed an Indenture of Lease dated
November 5, 1992 (the "Original Lease") of premises located at 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx;
WHEREAS, Landlord and Tenant wish to extend the term of the Lease and
to otherwise amend the Lease in accordance with the provisions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. All capitalized terms used herein and not defined herein shall
have the meanings ascribed to them in the Lease.
2. The Lease Term, which but for this Amendment is currently
scheduled to expire on November 30, 1995, is hereby extended for one (1) period
of three (3) years commencing on December 1, 1995 and expiring on November 30,
1998 (the "Extended Term"), unless sooner terminated in accordance with the
provisions of the Lease, such extension to be upon all of the same terms and
conditions set forth in the Lease, such extension to be upon all of the same
terms and conditions set forth in the Lease except as otherwise provided in this
Amendment.
3. The original Premises is hereby expanded by 2,957 square feet as
outlined on the attached Exhibit A, and the Premises will be 14,075 square feet
as of December 1, 1995.
4. Tenant's Proportionate Share shall be increased to 26% upon
expansion into the 2,957 square feet as outlined in the attached Exhibit A.
5. During the Extended Term, Basic Rent shall be payable by Tenant at
the annual rate of $119,637.50 (being the product of (a) $8.50 and (b) the
rentable floor area of the premises (being 14,075 square feet)). For the period
prior to December 1, 1995, basic Rent shall continue to be paid by Tenant as set
forth in the Lease prior to this Amendment.
6. Landlord will construct improvements to the Premises as outlined
in the specifications attached hereto as Exhibit B. Landlord shall contribute
$10,000 towards said improvements and Tenant shall reimburse Landlord promptly
in full upon receipt of invoice for the balance of the cost of said
improvements.
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7. Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this Amendment other than Xxxxxxxx
& Grew, Incorporated. In the event that any claim is made against Landlord
relative to dealings by Tenant with any brokers (other than Xxxxxxxx & Grew,
Incorporated), Tenant shall defend the claim with counsel reasonably acceptable
to Landlord and save harmless and indemnify Landlord on account of loss, cost or
damage which may arise by reason of such claim.
8. Except as set forth herein, the Lease shall remain unmodified and
in full force and effect.
EXECUTED as a sealed insturment as of the day and year first written
above.
LANDLORD:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By:
---------------------------------
Xxxxxx X. Xxxxxx
Its: Associate Investment Officer
Hereunto Duly Authorized
TENANT:
TRIPLE I CORPORATION
By:
---------------------------------
Its:Chief Financial Officer
Hereunto Duly Authorized
2
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EXHIBIT B
(PAGE ONE OF TWO)
IMPROVEMENTS TO AREA AS DEFINED IN EXHIBIT A
Demolition
Remove carpet in first room, main room and hallway including vinyl
base
Scrape floor at old computer room
Remove 64 lineal feet of existing hallway partition
Cut in one 3070 door and one 6070 door opening
Remove debris from site
Leave existing two floor standing Liebert HVAC units
Leave 24 lineal feet of existing partition at first room
Leave electrical disconnect
panels and excess outlets
Drywall
Patch walls at removed electrical outlets
Patch & prep walls as required
Do not create soffitt at reception wall as not being demolished
Doors
Doors
Furnish and install one new pair of doors, 6070
Painting
Paint walls two coats, latex eggshell
Paint door frames and touch up doors
Ceilings
Patch back grid at demising walls
Replace damaged ceiling tiles as required
Flooring
Furnish and install 26 ounce level loop carpet at main room and
first room
Patch flooring at removed hallway partition
Furnish and install 4" vinyl base
Furnish and install Tarkett VCT in computer room
3
45
EXHIBIT B
(PAGE TWO OF TWO)
IMPROVEMENTS TO AREA AS DEFINED IN EXHIBIT A
Plumbing
No plumbing, sinks, ejector pump included
HVAC
Add required ductwork to serve both new and old computer room
Relocate six diffusers and relocate one thermostat
Start up, test & air balance
Work does not include removal of any existing HVAC equipment or moving of
existing HVAC equipment
Electrical
Rework electrical as required at demolished walls
Add specified outlets per Tenant's list (Does not include 400 volt,
triple phase, 15 amp outlet)
Phone and data excluded
General Conditions
Building permit
Supervision
Insurance
Progress cleaning and broom clean at completion
No stamped architectural plans
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ATTACHMENT B
October 10, 1995
Xxxxx X. Xxxxxxx, RPA
Xxxxxxxx and Grew, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
RE: Triple I Expansion Revised Proposal
000 Xxxxxx Xxxxxx, Xxxxxx
Dear Xxxxx,
We submit this revised proposal to furnish all labor and materials to construct
the following per attached sketch and our discussion:
Demolition
* remove existing carpet in first room, main room, and hallway
including vinyl base
* scrape floor at old computer room
* remove 64 lineal feet of existing hallway partition
* cur in one 3070 door and one 6070 door opening
* remove debris from site
* existing Liebert units to remain as is
* existing partition at first room to remain as is
* existing electrical panels and excess outlets to remain as is
Drywall
* patch walls at removed electrical outlets
* parch and prep wails as required
* soffit at reception area is excluded
Doors
* furnish and install one new pair of doors, 6070
* reinstall one 3070 door and frame
Painting
* paint walls two coats, latex eggshell
* paint door frames and touch up doors
5
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Ceilings
* patch back grid at demising walls
* replace damaged ceiling tiles as required
Plumbing and Sprinkler
* excludes all plumbing and sprinkler work
Flooring
* furnish and install 26 ounce level loop carpet at main room and first room
* furnish and install 4" vinyl base
* furnish and install Tarkctt VCT in computer room
* patch flooring at removed hallway partition
HVAC
* add required ductwork to serve new and old computer rooms
* install six diffusers and one thermostat
* start up, test, and air balance
* excludes removal or relocation of any existing HVAC equipment excludes any
hook up of existing HVAC equipment
Electrical
* rework electrical as required at demolished walls
* add specified outlets per renovation list, excludes the 400 volt, triple
phase 15 amp outlets
* existing panels to remain as is
* phone and data excluded
General Conditions
* building permit is included
* includes supervision
* includes insurance
* includes progress cleaning and broom clean at completion
* excludes cost of stamped architectural plans
The revised cost of construction as listed above is twenty thousand eight
hundred twenty dollars (20,820.), subject to additions and deductions. The
payment terms are net ten days from invoice. Invoicing to be as work progresses.
We expect to need three weeks for construction.
This proposal presented in outline form, more detail available upon request.
_____________________________ _________________________________
Xxxxxxxx and Grew, Inc. Xxxxxxx Construction/Design, Inc.
by Xxxxx X. Xxxxxxx, RPA by Xxxx X. Xxxxxxxx
6
