EXHIBIT 10.27
LEASE
This Lease made and entered into as of the 1st day of July, 1996 by and
between RJR VENTURES LIMITED PARTNERSHIP, a Massachusetts limited partnership
having its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx (hereinafter called the "Lessor" which term shall include its
successors and assigns where the context so admits)
and
WANG LABORATORIES, INC., a Delaware corporation, having its principal place
of business at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter
called the "Lessee" which term shall include its successors and assigns where
the context so admits)
WHEREAS, the Lessor is the owner of a certain parcel of land (the "Site")
situated in Tewksbury, Massachusetts, containing approximately 84.3 acres and
more particularly described in Exhibit A attached hereto, together with eight
buildings thereon having an aggregate of 755,000 square feet of area, parking
areas and other improvements (the Site and all said improvements being herein
described as the "Premises");
and
WHEREAS, Lessor and Lessee desire to enter into a lease of a part of the
Premises (the "Demised Premises")
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, the parties hereto hereby agree as follows:
W I T N E S S E T H:
ARTICLE I
PREMISES
SECTION 1. Lessor, for and in consideration of the rents to be paid and
obligations to be performed by the Lessee, does hereby demise and lease to the
Lessee, and the Lessee does hereby take and hire, upon and subject to the terms
and conditions set forth herein the Demised Premises.
SECTION 2. The Demised Premises consist of approximately 383,500 square feet
of space in Building Nos. 7 and 8, all as shown on the plan attached hereto as
Exhibit B. The Lessee shall have the right, in common with other tenants at the
Premises, to use the common areas (including all utility areas, conduits and
other like places) and all driveways and parking areas. Lessee shall be entitled
to 2 parking spaces per 1,000 of space during the term of
this Lease. In addition, the Lessee agrees for so long as in its reasonable
business judgment deems it appropriate to do so to maintain, operate (in the
manner it deems prudent) and insure the cafeteria located in Xxxxxxxx 0, Xxxxx 0
and a health facility in Building 4A, for its own use and that of other tenants
at the Premises. In the event Lessee ceases operation of either facility title
to all equipment owned by Lessee shall be transferred to Lessor for no
additional consideration. All Additional Rent and Operating Costs directly
related to the cafeteria and health facility are to be paid by Lessee. Lessor
shall provide Lessee and other tenants common area access, within the Premises,
to both the cafeteria and health club.
SECTION 3. Lessee shall be entitled to the use and occupancy of additional
space in the Premises as shown on Exhibit C (the "Temporary Space"). It is
agreed that so long as Lessee is not in default hereunder for a period of six
(6) months commencing on July 1, 1996 the 52,000 square feet shown on Exhibit C
shall not require payment of Base Rent and that for a period of twelve (12)
months the 10,000 square feet of space shown on Exhibit D shall not require the
payment of Base Rent. All Additional Rent and costs as hereinafter defined shall
be paid by the Lessee in the same manner as required for the Demised Premises.
Lessee shall have the right to terminate any and all Temporary Space at any time
upon written notice to Lessor and Lessee's obligation to pay Additional Rent and
costs shall cease in regard to the Temporary Space so terminated at the end of
the month following receipt of the Notice of Termination.
SECTION 4. Lessor shall have the right to alter or relocate the access road
and ways to the Demised Premises as well as parking for the Demised Premises,
provided that any relocated entry roadway is of the same width and the same
standards as the present roadway. The Lessee shall have the non-exclusive right
to use either the now existing or relocated roadways for access to the Demised
Premises. Lessor agrees to use reasonable efforts not to interfere with or
relocate all parking space presently designated for Lessee's specific use.
ARTICLE II
TERM
SECTION 1. The Term of this Lease shall commence as of 12:01 A.M. on
July 1, 1996 (the "Commencement Date") and expire at midnight June 30, 2001 (the
"Initial Term").
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ARTICLE III
OPERATION OF THE PREMISES
SECTION 1. Lessor and its agents and employs agree to manage and operate the
Premises in a manner consistent with proper professional management and
operation of similar facilities including, without limitation, providing for the
operation, cleaning, maintenance, landscaping, repair, replacement and upkeep of
the Premises necessary to keep the Premises in reasonably good working order,
repair, appearance and condition and providing heating, ventilating and air
conditioning and building and grounds maintenance and repair. Responsibility for
the operation and upkeep of the Demised Premises is further outlined in
Article VIII Section 1 hereto.
ARTICLE IV
USE OF PREMISES
SECTION 1. The Lessee shall have the right to use the Demised Premises only
for manufacturing, warehouse, storage, data center, research and development and
office uses and for no other purpose or purposes whatsoever. The Demised
Premises shall be used only in compliance with applicable laws and only if and
to the extent the Lessee has obtained and maintained all licenses and permits
which may be necessary for its use.
SECTION 2. The Lessee shall not use or occupy or permit the Demised Premises
to be used or occupied, nor do or permit anything to be done in or on the
Demised Premises or any part thereof, in a manner that would in any way violate
any certificate of occupancy affecting the Demised Premises or make void or
voidable any insurance then in force with respect thereto, or that may make it
impossible to obtain fire or other insurance thereon required to be furnished
hereunder by the Lessee, or that will cause or be likely to cause structural
injury to the Demised Premises, or that will constitute a public or private
nuisance or waste.
SECTION 3. The Lessee further agrees that it shall not use (other than
incidental to its use of the Demised Premises and only if in compliance with
applicable laws and after Lessee notifies Lessor thereof) or dispose of any
hazardous substance on the Premises and shall promptly notify the Lessor of any
filing or notice, claim or action, pending or threatened, by any governmental
agency having jurisdiction over the Premises on account of any hazardous
materials or substances. In the event any liability or cost is imposed upon or
incurred by the Lessor pursuant to the provisions of Massachusetts General Laws,
Chapter 21E or any other federal, state or local law governing hazardous waste
or substances as a result of the Lessee's breach of the provisions hereof, the
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Lessee agrees to be solely responsible for all costs of removal, clean up fees
and fines or remediation associated therewith including all of Lessor's costs
related to or incurred and to fully indemnify and hold the Lessor harmless from
actual losses, costs and claims, including the defense thereof, suffered by the
Lessor. This indemnity shall expressly survive the termination of this Lease.
ARTICLE V
RENT
SECTION 1. Beginning with the Commencement Date, during the Initial Term of
this Lease, the Lessee covenants and agrees to pay the Lessor annual rent in the
amount of $4.35 per square foot (the "Base Rent") which equals One Million Six
Hundred Sixty Eight Thousand Two Hundred and Twenty Five ($1,668,225.00) Dollars
annually.
SECTION 2. Base Rent shall be payable in equal monthly installments in
advance by the fifth day of each calendar month occurring during the term of
this Lease. In the event that the Commencement Date is other than the first day
of a calendar month, the rent payment for such fraction of a calendar month
shall be prorated on a daily basis and paid at the Commencement Date.
SECTION 3. All payments of rent shall be made by the Lessee, without offset,
deduction or demand therefor, to the Lessor at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or to such other place as the Lessor may, from time to
time, designate in writing.
SECTION 4. No payment by the Lessee or receipt by the Lessor of a lesser
amount than the monthly rent called for by this Lease shall be deemed other than
a payment on account of the earliest rent due, nor shall any endorsement or
statement on any check or on any letter accompanying any check or payment as
rent be deemed an accord and satisfaction and the Lessor may accept such check
or payment without prejudice to its right to recover the balance of the rent or
to pursue any other remedy provided for in this Lease.
SECTION 5. In addition to the Base Rent, Lessee shall pay Additional Rent as
hereinafter provided in Article VI, VII and VIII, and in no event shall the
Lessor be liable for, or be obliged to incur any operating expense with respect
to the Demised Premises or the Temporary Space, except as in this Lease
expressly provided.
SECTION 6. Lessor acknowledges that it is in receipt of a sum of $93,150
which is being held by Lessor as security for the Lessee's payment of rent and
Additional Rent and the performance of its other obligations under this Lease.
In the event that the Lessee defaults in the payment of rent or the performance
of its other
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obligations under this Lease, the Lessor may use all or part of the security
deposit for the payment of rent or any other amount in default, or for the
payment of any other amount which the Lessor may spend or become obligated to
spend by reason of the Lessee's default, or for the payment to the Lessor of and
other loss or damage which the Lessor may suffer by reason of the Lessee's
default. If the Lessor so uses any portion of the security deposit, the Lessor
agrees to restore the security deposit to its original amount within five (5)
days after written demand from the Lessee. The security shall not be a
limitation on the Lessor's damages or other rights under this Lease, or a
payment of liquidated damages, or an advance payment of rent. In the event that
the Lessee pays the rent and performs all of its other obligations under this
Lease, the Lessor will return the unused portion of the security deposit with
its accumulated interest to the Lessee within thirty (30) days after the end of
the Term.
ARTICLE VI
ADDITIONAL RENT: REAL ESTATE TAXES
SECTION 1. Lessor agrees to pay when due all Impositions as hereinafter
defined) and provide Lessee with evidence of payment; provided Lessee covenants,
and agrees to pay 30 days before due, as additional rent, throughout the term of
this Lease, its pro rata share (as that term is hereinafter defined) of any and
all taxes, assessments (including, but not limited to, all assessments for
public improvements or benefits, payable during the term of this Lease), water,
sewer and other rents, rates and charges, charges for public utilities, excises,
levies, licenses and permit and inspection fees and other governmental charges
general and special, ordinary and extraordinary, foreseen and unforeseen, of any
kind and nature whatsoever, which at any time during the term of this Lease are
assessed, levied, confirmed, imposed upon, or grow or become due or payable out
of or in respect of, or become a lien on (a) the Premises, or (b) the buildings
and improvements from time to time on the Premises or (c) the Base Rent, any
additional rent reserved or payable hereunder or any other sums payable by the
Lessee hereunder relating to the Premises, or (d) this Lease or the leasehold
estate hereby created or which arise in respect of the operation, possession,
occupancy or use of the Premises, the improvements thereon or any part of any of
them (all of which taxes, assessments, or like charges are sometimes hereinafter
referred to collectively as "Impositions" and individually as an "Imposition");
provided, however, that:
(i) If, by law, any Imposition is or may be payable, at the option of the
taxpayer, in installments, the Lessee may pay such Imposition in
installments and shall pay each such installment as the same
respectively become due and before any fine, penalty, further interest
or cost may be
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added thereto.
(ii) Impositions, whether or not a lien upon the Premises, shall be
apportioned between Lessor and Lessee at the beginning and end of the
term of this Lease.
SECTION 2. Nothing herein contained shall require the Lessee to pay
income taxes assessed against the Lessor or any capital levy, corporation
franchise, excess profits, estate, succession, inheritance or transfer taxes of
the Lessor, unless such taxes are imposed or levied upon or assessed as a total
or partial substitute for, or in lieu of, any other Imposition required to be
paid by the Lessee pursuant to this Article VI, in which event, the same shall
be deemed Impositions and shall be paid by the Lessee; provided, however, that
if at any time during the term of this Lease, the method of taxation shall be
such that there shall be levied, assessed or imposed on the Lessor a capital
levy, gross receipts or other tax on the rents received therefrom and/or a
franchise tax or an assessment, levy or charge measured by or based, in whole or
in part, upon such rents, the Premises (including but not limited to the
acquisition, leasing, use or value thereof), or the present or any future
improvements on the Premises or on the construction thereof and/or measured in
whole or in part by Lessor's income from the Premises, then all such taxes,
assessments, levies and charges, or the part thereof so measured or based, shall
be deemed to be included within the term "Impositions" for the purposes hereof,
but only to the extent that such taxes would be payable if the Premises were the
only property of the Lessor, and shall pay the same as herein provided in
respect of the payment of Impositions. The Lessor shall have the right, at the
Lessor's option and as a condition of this Lease to require the Lessee to: (i)
promptly deposit with Lessor funds for the payment of current Impositions
required to be paid by Lessee hereunder; and (ii) also deposit one-twelfth
(1/12th) of the current annual Impositions or those of the preceding years, if
the current amounts thereof have not been fixed, on the first day of each month
in advance, except that all additional funds required for any payments thereof
shall also be deposited as aforesaid on the first day of the month preceding the
date on which a payment is due and payable without interest or penalty. Any
deposits so received by Lessor shall be held and applied to the payment of such
Impositions, but in no event shall the Lessee be entitled to receive interest
upon, or any payments on account of earning or profits derived from such
payments by Lessee to Lessor.
SECTION 3. The Lessee shall have the right to contest the amount or
validity, in whole or in part, of any Imposition by appropriate proceedings
diligently conducted in good faith. Lessee will pay and save Lessor harmless
against any and all losses, judgments, decrees and costs (including all
attorneys' fees and expenses) in connection with any such contest and will,
promptly after the final
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settlement, compromise or determination of such contest, fully apply and
discharge the amounts which shall be levied, assessed, be payable therein or in
connection therewith, together with all penalties, fines, interest, costs and
expenses thereof or in connection therewith, or may direct Lessor to pay out of
such deposits, the amount of such Impositions so due and payable; and, upon such
payment, Lessor shall return, with such interest as shall have accrued thereon,
the balance, if any, of the amount deposited with it with respect to such
Impositions as aforesaid. If, at any time during the continuance of such
proceedings, Lessor shall deem the amount deposited or the security posted, as
aforesaid, insufficient, Lessee shall, upon demand, make an additional deposit
or provide additional security satisfactory to Lessor of such sums as Lessor may
require reasonably, and upon failure of Lessee to do so, the amount theretofore
deposited or the security posted may be applied by Lessor to the payment,
removal and discharge of such impositions, and the interest and penalties in
connection therewith, together with any costs, fees or other liability accruing
in any such proceedings, with only the balance, if any, being returned to
Lessee.
SECTION 4. Whenever the terms "pro-rata" or "pro-rated" appear in Article 6,
7 8 and 18 of this Lease, either of these terms shall mean the result of
dividing the number of square feet in the Demised Premises by the total number
of square feet in all of the buildings on the Site. At the Commencement Date, it
is hereby agreed that the result of such calculation for the Demised Premises is
50.66%. During the first twelve (12) months of the Lease term, the proration
shall be adjusted to include the Temporary Space in the calculation. If at any
time during the term hereof, the number of square feet in the Premises or in the
Demised Premises shall change, the pro-rata percentage shall be correspondingly
adjusted.
ARTICLE VII
ADDITIONAL RENT: INSURANCE
SECTION 1. LIABILITY INSURANCE. Lessee shall maintain at its expense during
the Term or Extended Term of this Lease commercial general liability insurance,
with "Broad Form" endorsement insuring the indemnity hereafter set forth, for
the benefit of Lessor and Lessee, and naming Lessor as an additional insured,
against all claims for bodily injury, personal injury, death and Property damage
in or about the Premises limits not less than Five Million Dollars
($5,000,000.00) in the event of bodily injury or death of any number of persons
in any one accident and at any one location and Property damage coverage of not
less than One Million Dollars ($1,000,000.00), or Five Million Dollars
($5,000,000.00) combined single limits bodily injury and property damage
coverage on an occurrence basis. The limits of said policy shall be increased
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from time to time to meet changed circumstances at Lessors request, including,
but not limited to, changes in purchasing power of the dollar.
SECTION 2. PROPERTY INSURANCE. At all times, Lessor shall maintain or cause
to be maintained the insurance below described for the benefit of Lessor and
Lessee, against the following risks:
(a) Loss or damage from all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, and such other
risks as may be embraced within the form of extended coverage
insurance, with "comprehensive special" form including endorsement,
sprinkler leakage, insuring, at all times, the full replacement cost
of any buildings and improvements from time to time erected on the
Premises, including all Lessee Improvements. Lessor specifically
agrees that the insurance policy shall contain an endorsement or
appropriate provision which specifically states that the amount of
coverage shall at all times be for the actual full replacement cost of
the buildings and other improvements on the replacement cost of the
Property. If any of the risks covered by the currently employed
customary comprehensive general endorsement on fire policies are
hereafter excluded from such endorsement, but are insurable
nevertheless by separate policies regularly issued by fire or casualty
companies doing business in the State of Massachusetts, then the
reference above to "risks as may be embraced within the standard form
of extended coverage insurance" includes insurance coverage by such
separate policy of Policies;
(b) Loss or damage by explosion of steam boiler, air conditioning
equipment, pressure vessels, miscellaneous similar apparatus, or
similar apparatus, now or hereafter installed on the Premises in such
limits with respect to any one accident as may reasonably be
determined by Lessor from time to time, but not less than the full
replacement cost of any buildings and improvements from time to time
erected on the property;
(c) Such other insurance and in such amounts as may from time to time be
reasonably determined to be necessary by Lessor;
(d) Lessee shall pay within thirty (30) days of receipt of invoice, its
pro-rata share of all insurance required by this Section 2.
SECTION 3. WAIVER OF SUBROGATION. Lessor and Lessee, on behalf of themselves
and their respective insurers, hereby waive all
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causes of action and rights of recovery against the other and each of their
respective officers, employees and agents, for any loss occurring to the
property of either of them, regardless of cause or origin. Lessor and Lessee
agree that all insurance policies presently existing or obtained after the date
hereof shall include a clause or endorsement to the effect that such policies
shall not be invalidated nor shall the right of the insured to recover
thereunder be impaired as a result of the denial to the insurers of all rights
of subrogation against the other party on the basis of the foregoing waiver.
SECTION 4. LIABILITY INSURANCE. Lessor and Lessee shall each procure and
maintain in effect at all times during the Term comprehensive general liability
insurance with a combined single limit of liability of at least $5,000,000.
Lessor and Lessee shall furnish certificates of such insurance to the other
promptly upon receipt of written request therefor.
SECTION 5. WORKER'S COMPENSATION. Lessee shall maintain at all times
Worker's Compensation insurance covering all persons employed by it in the
conduct of its business on the Premises.
SECTION 6. POLICIES.
(a) All Policies shall name Lessee as the insured, and naming Lessor as an
additional insured, as their respective interest may appear, but
subject, nevertheless to loss payee provisions and provisions relative
to disposition of insurance proceeds to a Mortgagee, as stated below.
Except for the payment of proceeds to a Mortgagee as provided below,
all insurance proceeds shall be payable to Lessor and/or Lessee as
their respective interests may appear.
(b) All insurance shall be effected by valid and enforceable policies
issued by insurers of responsibility and licensed to do business in
the State of Massachusetts, holding a General Policyholders' Rating of
A or better and a financial category of XII or better as set forth in
the most current issue of Best's Insurance Guide. Lessee shall deliver
to Lessor and the Mortgagee, if any, copies of all Policies of
insurance required to be provided by Lessee hereunder, or certificates
from the insurance company evidencing the existence and amounts of all
insurance required to be carried by Lessee hereunder. All such
Policies shall contain agreements by the insurers that (i) no act or
omission by Lessee or Lessor shall impair or affect the rights of any
insured to receive and collect the proceeds of the Policy (i.e., a
cross liability endorsement); (ii) such policy shall not be canceled
except upon thirty (30) days prior written
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notice to each named insured and loss payee; and (iii) the coverage
afforded thereby shall not be affected by the performance of any work
in or about the Premises. In addition, all policies shall contain
endorsements that the rights of the assured to receive and collect
proceeds shall not be diminished because of any additional insurance
carried by Lessee or Lessor on their own accounts.
SECTION 7. INCLUSION OF MORTGAGEE AS LOSS PAYEE. Subject to the provisions
hereinafter set forth in this section, the policies provided shall also provide,
if required by either party hereto, for any loss to be payable to any Mortgagee
as the respective interest of such party may appear, pursuant to a standard
mortgagee clause or endorsement, provided, however, that such Mortgagee must
agree that any insurance proceeds received by such party shall be made available
for restoration of the improvements, or equivalent improvements, to at least the
condition of said improvements prior to the casualty. Any loss shall be adjusted
with the insurance companies by Lessor.
SECTION 8. CONSENT TO BLANKET INSURANCE POLICY. Nothing in this Lease shall
prevent the Lessor or Lessee from carrying insurance of the kind required of
Lessee under a blanket insurance policy or policies which cover other properties
owned or operated by Lessee as well as the Premises. Any such policy for
Property Insurance must contain, as respects the Premises, an endorsement
specifically covering the Premises for the types of insurance and in the amounts
required hereunder.
SECTION 9. INDEMNITY. a) Indemnity by Lessee. Lessee does hereby indemnify
and agree to forever save and hold harmless Lessor, and Lessor's interest in the
Premises and this Lease from and against any and all damages, claims, losses,
demands, costs, expenses (including attorneys' fees and costs), obligations,
liens, liabilities, actions and causes of action which Lessor may suffer or
incur arising directly or indirectly from this Lease, from Lessee's use of the
Demised Premises, from the conduct of Lessee's business, from any activity, work
or things done, permitted or suffered by Lessee in or about the Premises, from
Lessee's non-observance or nonperformance of any law, ordinance or regulations,
or from any negligence of Lessee or any of Lessee's agents, contractors,
employees, guests, licensees and invitees, but not including any liability
resulting from any acts or omissions or negligence or willful misconduct of
Lessor, its agents, employees, or contractors. Lessee further agrees that in
case of any such claim, demand, action or proceeding against Lessor, Lessee,
upon notice from Lessor, shall defend Lessor at Lessee's expense by counsel
reasonably satisfactory to Lessor. In the event Lessee does not provide a
defense against any and all such claims, demands, liens, liabilities, actions or
causes of action,
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threatened or actual, then Lessee shall, in addition to the above, pay Lessor
the attorneys' fees, legal expenses and costs incurred by Lessor in providing
such defense, and Lessee agrees to cooperate with Lessor in such defense,
including, but not limited to, the providing of affidavits and testimony upon
request of Lessor.
b) Indemnity by Lessor. Lessor agrees to indemnify, defend and hold Lessee
harmless from and against any loss, cost, liability, damage or expense
including, without limitation, reasonable attorney's fees, incurred in
connection with or arising from (i) any cause whatsoever in or on the common
areas of the Building (any portion of the Building except the Demised Premises)
including without limitation, the negligence of Lessor or its employees, agents
or contractors, other than the act or omission of Lessee, or (ii) the negligence
or intentional acts of Lessor or its employees, agents or contractors in or on
the Premises.
SECTION 10. EXEMPTION OF LESSOR FROM LIABILITY. Except for any liability
resulting from negligence or willful misconduct of Lessor, its agents,
employees, or contractors, or except as otherwise provided in the Lease, Lessee
hereby agrees that Lessor shall not be liable for injury to Lessee's business or
any loss of income therefrom or for damages to the goods, wares, merchandise or
other property of Lessee, Lessee's employees, invitees, customers, or any other
person in or about the Premises, nor shall Lessor be liable for injury to the
person of Lessee, Lessee's employees, agents, or contractors, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether the said damage or injury results from
conditions arising upon the Premises or from other sources or places, regardless
of whether the cause of such damage or injury or the means of repairing the same
is inaccessible to Lessee.
ARTICLE VIII
ADDITIONAL RENT - OPERATING EXPENSES
SECTION 1. During the Term of this Lease, the Lessee covenants and agrees to
pay, as additional rent, the Lessee's pro-rata share of Operating Expenses. The
term "Operating Expenses" as used herein, shall specifically exclude real estate
taxes, and insurance as governed by Article VI and Article VII of this Lease,
"Operating Expenses" shall include Lessor's costs or expenses incurred for the
operation, cleaning, maintenance, landscaping, repair, replacement and upkeep of
the Premises necessary to keep the Premises in reasonably good working order,
repair, appearance and condition; all costs, including reasonable management
fees charged for properties of similar size and occupancy, material and
equipment costs, for cleaning and janitorial service, all costs related to
provision of heat, air conditioning, water, sewerage and other
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utilities (exclusive of reimbursement to Lessor for any of the same received as
a result of direct billing to other tenants); payments under service contracts;
all compensation, fringe benefits, payroll taxes, and worker's compensation
insurance premiums related to employees for the purpose of the maintenance and
upkeep of the Premises, but shall exclude the cost of repairs or replacements
that are of a capital nature. The parties intend that Lessee, at its option,
furnish its own ordinary operating services including security protection for
the Demised Premises. In the event Lessor is asked or required to provide these
operating services, Lessee agrees to pay monthly estimated charges in advance
subject to year end reconciliation. To the extent Lessee elects to provide its
own ordinary operating services and is therefore directly paying for a portion
of the above mentioned operating costs, Lessee's pro-rata costs shall be amended
to reflect such payment. Lessee shall have the right to perform a review of
Lessors operating expense calculations; and Lessor shall make all material
available for Lessee's inspection. The foregoing not withstanding; if at any
time during the Term hereof, the number of square feet in all of the buildings
on the Site shall change, the Lessee's share of operating expenses shall be
correspondingly adjusted.
SECTION 2. CAPITAL COSTS. Costs (other than those being performed under
Exhibit E) associated with repairs and replacements to structural elements,
including without limitation, roofs, walls, footing, floor slab and mechanical
systems located within the Demised Premises or primarily servicing the Demised
Premises during the Term and the Extended Term of the Lease shall be allocated
as follows:
Year One 50% Lessor 50% Lessee
Year Two 60% Lessor 40% Lessee
Year Three 70% Lessor 30% Lessee
Year Four 80% Lessor 20% Lessee
Year Five 100% Lessor
ARTICLE IX
CONDITION OF THE PREMISES
SECTION 1. Lessor agrees to improve the Premises and the Demised Premises as
shown on the attached Exhibit E.
SECTION 2. With the exception of the work described in Section 1 above, the
Demised Premises are being leased to the Lessee in "as is" condition, without
representation or warranty of any kind as to its state of repair or condition or
compliance with applicable laws. The Lessee acknowledges its occupancy under a
prior lease and its familiarity with the Premises. The Lessee agrees to maintain
the Demised Premises in substantially their present condition taking into
account its uses on the date hereof and in full compliance with applicable laws
throughout the term of this Lease, reasonable wear and use, fire and casualty
and condemnation
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only excepted. All work performed by the Lessee shall be done in a good and
workmanlike manner and in compliance with all applicable laws, ordinances and
regulations relative thereto. The Lessee further agrees that the Demised
Premises shall be kept and maintained throughout the term of this Lease in
compliance with all laws, ordinances, rules and regulations of any duly
constituted governmental authority having jurisdiction over the Premises. In the
event Building Improvements are required by any changes mandated by any such
governmental authority within the Demised Premises during the Term of this
Lease, the cost therefor shall be treated as a Capital Cost. The Lessee shall
not permit or commit any waste.
ARTICLE X
ALTERATIONS
SECTION 1. The Lessee shall not make any alterations with a cost in excess
of $50,000 to the Demised Premises without the Lessor's prior written consent
which consent shall not be unreasonably withheld or delayed. The foregoing
notwithstanding any alterations which impact any party wall or penetrate the
roof shall require Lessor's prior express written consent. All alterations made
shall remain on and be surrendered with the Demised Premises on the expiration
or termination of this Term. Upon termination of this Lease, at the option of
the Lessor with respect to Alterations for which consent was not required, the
Lessee will restore the Demised Premises to the condition they were in prior to
any alterations and with respect to Alterations for which consent was required,
Lessee will so restore if Lessor so specified in the terms of its consent.
SECTION 2. LESSOR'S RIGHT TO MAKE ALTERATIONS. Lessor reserves the right at
any time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Lessee therefor to
make such changes, alterations, improvements, repairs or replacements in or to
the Demised Premises provided, however, that there be no unreasonable
obstruction of the right of access to or unreasonable interference with the use
and enjoyment of, the Premises by Lessee.
ARTICLE XI
DAMAGE; DESTRUCTION
SECTION 1. If at any time during the Term (i) more than twenty-five percent
(25%) of the Demised Premises are substantially damaged or destroyed by fire or
other casualty, or (ii) any portion of the Demised Premises is so damaged or
destroyed and such damage or destruction materially affects Lessee's ability to
conduct normal business operations in the Demised Premises and such damage
cannot reasonably be expected to be repaired within ninety (90) days, then
Lessee may elect to terminate the Lease by so notifying the other within thirty
(30) days after the date of the damage or
13
destruction, specifying a date for termination that shall be not less than
thirty (30) days from the date of such notice. If at any time during the Term
(i) more than thirty-five percent (35%) of the Buildings or 35% of the Demised
Premises are substantially damaged or destroyed by fire or other casualty, or
(ii) any portion of the Buildings or Demised Premises is so damaged or destroyed
and such damage or destruction materially affects Lessee's ability to conduct
normal business operations in the Demised Premises and such damage cannot
reasonably be expected to be repaired within ninety (90) days, then Lessor may
elect to terminate the Lease by so notifying the Lessee within thirty (30) days
after the date of the damage or destruction, specifying a date for termination
that shall be not less than thirty (30) days from the date of such notice. If
neither Lessor nor Lessee so elect to terminate this Lease, or if less than
twenty five percent (25%) of the Building or Demised Premises is substantially
damaged by such fire or other casualty, then Lessor shall promptly commence to
repair and restore the Building and the Demised Premises to their condition
immediately prior to such fire or casualty except that Lessor shall not be
required to repair or restore alterations and additions to the Premises made by
Lessee in accordance with the provisions of Article X hereof except to the
extent insurance proceeds are available therefor. Upon completion of such
restoration, the Lessor shall be entitled to all insurance proceeds payable
under any casualty policy maintained as required by the provisions of Article VI
hereof. If existing laws do not permit the restoration, either party shall have
the right to terminate this Lease by written notice to the other party. An
equitable abatement of rent shall apply commencing upon the date of any such
casualty and continue until repair or termination in accordance with the terms
of this Lease.
ARTICLE XII
EMINENT DOMAIN
SECTION 1. In the event that 50% or more of the total number of square feet
in the Demised Premises shall be condemned or taken for public or quasi public
use, the Lessee may elect to terminate this Lease. If the Lessee elects to
terminate this Lease, it must exercise its right to terminate by giving written
notice to the Lessor within thirty (30) days after the nature and extent of the
taking have been finally determined. If the Lessee elects to terminate this
Lease as provided herein, the Lessee shall also notify the Lessor of the date of
termination which date shall be not earlier than thirty (30) days after the
Lessee has notified the Lessor of its election to terminate; provided, however,
that this Lease shall terminate on the date of the taking of the date if the
taking falls on a date prior to the date of termination as designated by the
Lessee. If the Lessee does not elect to terminate this Lease within the thirty
(30) day period, this Lease shall continue in full force and effect except that
Base Rent and additional rent shall be reduced pursuant to Section 2 hereof.
14
SECTION 2. In the event that any portion of the Demised Premises is taken by
condemnation and this Lease remains in full force and effect, on the date of the
taking, the Base Rent and all additional rent shall be reduced by an amount that
is in the same ratio to the Base Rent and Additional Rent as the total number of
square feet in the Demised Premises taken bears to the total number of square
feet in the Demised Premises immediately prior to the date of the taking.
SECTION 3. The Lessor shall be entitled to the entire award resulting from
any such condemnation or taking, including, without limitation, any portion of
the award attributable to the value of the leasehold estate created by this
Lease, provided, however, that the Lessee shall be entitled to any portion of
any award attributable to the Lessee's personal property or fixtures, or
specifically attributable to its relocation expenses or the interruption or
damage to its business.
ARTICLE XIII
UTILITIES
SECTION 1. The Lessor shall provide and the Lessee shall pay for all of its
requirements for utilities for the Demised Premises including, but not limited
to, gas, steam, water, electricity, telephone, sewer and the like. Lessor shall
have absolute and final right to negotiate with utility suppliers. The parties
agree that separate meters shall be installed in order that Lessee pay for its
utilities, the Lessor shall install separate meters. The Lessor's financial
obligation to install separate meters shall be limited to $15,000. Any cost
above $15,000 is to be borne by Lessee, in accordance with Exhibit E.
ARTICLE XIV
DEFAULT
SECTION 1. The following occurrences are "events of default":
(a) The Lessee defaults in the due and punctual payment of Base Rent and
Additional Rent and such default continues for ten (10) days after
receipt of notice from the Lessor; provided, however, that the Lessee
will not be entitled to more than one (1) notice of default in payment
of rent during any twelve month period, and if, within twelve (12)
months after any such notice, any rent is not paid when due, the grace
period shall be shortened to five (5) days after receipt of notice
from Lessor.
(b) Lessee breaches any of the other agreements, terms, covenants, or
conditions which this Lease requires Lessee to perform, and such
breach continues for a period of thirty (30) days after notice by
Lessor to Lessee
15
provided that if any breach cannot reasonably be cured within said
thirty (30) days, then no event of default shall exist so long as
Lessee has commenced to cure the failure within said thirty (30) days
and diligently prosecutes the curing thereof.
SECTION 2. If an Event of Default shall occur, Lessor may, at its option,
give to the Lessee a notice terminating this Lease upon a date specified in such
notice which date shall be not less than three (3) business days after the date
of receipt by the Lessee of such notice and upon the date specified in said
notice, the term and estate hereby vested in the Lessee shall cease and any and
all other right, title and interest of Lessee hereunder shall likewise cease
without further notice or lapse of time as fully and with like effect as of the
term of this Lease had elapsed, but Lessee shall continue to be liable to Lessor
as hereinafter provided.
SECTION 3. Upon any termination of this Lease as the result of an Event of
Default, the Lessee shall quit and peaceably surrender the Demised Premises to
the Lessor and, at any time after such termination, the Lessor may, without
further notice, enter the Demised Premises and repossess the same by summary
proceedings or other lawful means and may dispossess the Lessee and remove it
and all claiming under it from the Demised Premises and may have, hold and enjoy
the Demised Premises and the right to receive all rental income from the same.
SECTION 4. At any time or from time to time after any such termination,
Lessor shall use reasonable efforts to relet the Demised Premises or any part
thereof, in the name of Lessor or otherwise, for such term or terms (which may
be greater or less than the period which would otherwise have constituted the
balance of the Lease term) and on such conditions (which may include concessions
or free rent) as the Lessor, in its reasonable discretion, may determine and may
collect and receive the rents therefor. Lessor shall in no way be responsible or
liable for any failure to relet the Demised Premises or any part thereof, or for
any failure to collect any rent due upon any such reletting provided it has used
its reasonable efforts as aforesaid. In the event of Lessee's default, Lessee
shall be liable to Lessor for all expenses associated with reletting including,
without limitation, legal fees and real estate broker's commissions.
SECTION 5. No such termination of this Lease shall relieve Lessee of its
liability and obligations under this Lease and such liability and obligations
shall survive any such termination as more particularly described below.
In the event of any such termination, the Lessee shall pay to the Lessor Base
Rent and Additional Rent up to the date of termination. The Lessee shall also
pay to the Lessor, on demand, at the Lessor's election, either
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(i) the amount by which, at the time of the termination of this Lease (or
at any time thereafter if the Lessor shall have initially elected
damages under subparagraph (ii) of this Section 5) (a) the aggregate
of the rent due hereunder projected over the period commencing with
such time and ending on the termination date of this Lease exceeds (b)
the aggregate fair market rental value of the Demised Premises for
such period; or
(ii) amounts equal to the rent which would have been payable by Lessee had
this Lease not been so terminated, payable upon the due dates therefor
specified herein following such termination and until the then
scheduled termination date, provided, however, if Lessor shall re-let
the Demised Premises during such period, that Lessor shall credit
Lessee with the net rents received by Lessor from such reletting, such
net rents to be determined by first deducting from the gross rents as
and when received by Lessor from such re-letting the expenses
reasonably incurred or paid by Lessor in terminating this Lease, as
well as the reasonable expenses of re-letting, including altering and
preparing the Demised Premises for new tenants, brokers' commissions,
and all other similar and dissimilar reasonable expenses properly
chargeable against the Demised Premises and the rental therefrom, it
being understood that any such re-letting may be for a period equal to
or shorter or longer than the remaining term of this Lease; and
provided, further, that (a) in no event shall Lessee be entitled to
receive any excess of such net rents over the sums payable by Lessee
to Lessor hereunder and (b) in no event shall Lessee be entitled in
any suit for the collection of damages pursuant to this Subparagraph
(ii) to a credit in respect of any net rents from a re-letting except
to the extent that such net rents are actually received by Lessor
prior to the commencement of such suit. If the Demised Premises or any
part thereof should be re-let in combination with other space, then
proper apportionment on a square foot area basis shall be made of the
rent received from such re-letting and of the expenses of re-letting.
Lessor shall use reasonable efforts to re-let the Demised Premises.
SECTION 6. A suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Lessor from time to time at its
election, and nothing contained herein shall be deemed to require Lessor to
postpone suit until the date when the term of this Lease would have expired if
it had not been terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Lessor against Lessee of any sums or damages to which, in addition
to the damages particularly provided
17
above, Lessor may lawfully be entitled by reason of any default hereunder on the
part of Lessee.
SECTION 7. The specified remedies to which Lessor may resort hereunder are
cumulative and are not intended to be exclusive of any remedies or means of
redress to which Lessor may at any time be lawfully entitled, and Lessor may
invoke any remedy (including without limitation the remedy of specific
performance) allowed at law or in equity as if specific remedies were not herein
provided for.
ARTICLE XV
ASSIGNMENT AND SUBLETTING
SECTION 1. CONSENT REQUIRED. Lessee shall not sublet any portion of the
Premises or assign, mortgage, pledge or transfer any of its rights with respect
to this Lease without Lessor's prior written consent in each instance (such
consent is not to be unreasonably withheld), which consent shall be given or
withheld as hereinafter provided, except by operation of law. Notwithstanding
the foregoing, Lessee may assign this Lease without Lessor's consent to any
affiliate of Lessee, or any successor entity by sale or merger with Lessee, or
to any entity that has acquired all or substantially all of the capital stock or
assets of Lessee, or to any successor to the business being conducted by Lessee
in the Demised Premises, provided Lessee shall assume all cost associated with
such assignment and Lessee shall remain fully liable for all obligations
hereunder.
SECTION 2. PROCEDURE. If Lessee desires at any time to sublet any portion
of the Premises or to assign this Lease, it shall give written notice to Lessor
of its desire to do so and the terms and provisions of the proposed assignment
or sublease. Lessor shall within fifteen (15) days after receipt of such notice
consent to or disapprove of the proposed assignment or subletting. No consent by
Lessor to any assignment or subletting by Lessee shall relieve Lessee of any
obligation to be performed by Lessee under this Lease.
ARTICLE XVI
LESSEE'S PROPERTY
SECTION 1. All Lessee's machinery, equipment, furniture, demountable
partitions, and all other property of Lessee installed or located in the Demised
Premises from time to time ("Lessee's Property") shall be and remain the
property of Lessee. At any time during the term, Lessee may remove any of
Lessee's Property from the Demised Premises. Upon the termination of this Lease,
Lessee shall remove all Lessee's Property from the Demised Premises. If within
thirty (30) days after the termination of this Lease, Lessee has not removed all
Lessee's Property from the Demised Premises,
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and Lessor desires to dispose of such remaining Lessee's Property, Lessor may
notify Lessee that the remaining Lessee's Property must be removed whereupon
Lessee shall remove the same forthwith, failing which it shall at Lessor's
option become property of Lessor or Lessor may remove it at Lessee's expense.
Lessor may do so at Lessee's expense.
SECTION 2. Lessee's Property and all furnishings, fixtures, equipment,
affects and property of those claiming by, through or under Lessee located in
the Demised Premises shall be at the sole risk and hazard of Lessee, and if the
whole or any part hereof shall be damaged or destroyed by fire, flood, the
leakage or bursting of pipes, or by theft or by any other cause, no part of such
damage shall be borne by Lessor.
SECTION 3. Upon the termination of this Lease, the Lessee will surrender
the Demised Premises in good order and condition, ordinary wear and tear
excepted. The Lessee will fully repair any damage occasioned by the removal of
the Lessee's Property in accordance with the provisions of Section 1 hereof.
ARTICLE XVII
SPECIAL PROVISIONS
OPTION TO EXTEND.
SECTION 1. OPTION PERIOD. As long as Lessee is not in default under this
Lease, either at the time of exercise or at the time the extended term
commences, Lessee shall have the option to extend the initial five (5) year term
of this lease for one (1) additional term of five (5) years (the "Extended
Term") on all of the same terms, covenants and conditions of this Lease, except
that the annual rent will be determined pursuant to Section 2. In order to
exercise its option, Lessee must do so by giving Lessor written notice at least
three hundred and sixty five (365) days prior to the expiration of the Initial
Term of this lease.
SECTION 2. EXTENDED TERM - ANNUAL RENT. The annual rent for the Extended
Term shall be determined as follows:
(a) Lessor and Lessee shall have thirty days after Lessor received the
option notice to agree upon the annual rent for the option period
which shall be an amount representative of eighty five (85%) percent
of the then fair market rental value (as defined in Section 2(c) but
in no event less than the rent during the Initial Term. If Lessor and
Lessee are able to agree upon the annual rent for the Extended Term,
this Lease shall be amended to reflect the annual rent for the
Extended Term.
(b) If Lessor and Lessee are not able to agree upon the annual rent for
the extended term within thirty (30)
19
days, Lessee may withdraw its written notice to extend, or, if not
withdrawn, the annual rent shall be determined in accordance with the
provisions of Section 2(d).
(c) The "then fair market rental value of the premises" means what a
landlord under no compulsion to lease the premises and a tenant under
no compulsion to lease the premises would determine as rent for the
Extended Term, as of the commencement of the Extended Term, taking
into consideration the uses permitted under this Lease, the quality,
size, design and location of the premises, and the rent for comparable
buildings located in the vicinity of Tewksbury, Massachusetts.
(d) If the parties are unable to agree on the annual rent for the Extended
Term within thirty (30) days, then within ten (10) days after the
expiration of that period each party, at its cost and by giving notice
to the other party, shall appoint a real estate appraiser with at
least 5 years' full-time commercial appraisal experience in the area
in which the premises are located to appraise and set the annual rent
for the Extended Term. If a party does not appoint an appraiser within
ten (10) days after the other party has given notice of the name of
its appraiser, the single appraiser appointed shall be the sole
appraiser and shall set the annual rent for the Extended Term. If the
two appraisers are appointed by the parties as stated in this
paragraph, they shall meet promptly and attempt to set the annual rent
for the Extended Term. If they are unable to agree within thirty (30)
days after the second appraiser has been appointed, they shall attempt
to elect a third appraiser meeting the qualifications stated in this
paragraph within ten (10) days after the last day the two appraisers
are given to set the annual rent. If they are unable to agree on the
third appraiser, either of the parties to this Lease by giving ten
(10) days' notice to the other party can apply to the then president
of the county real estate board of the county in which the premises
are located, or to the presiding judge of the probate court of that
county, for the selection of a third appraiser who meets the
qualifications stated in this paragraph. Each of the parties shall
bear one half of the cost of appointing the third appraiser and of
paying the third appraiser's fee. The third appraiser, however
selected, shall be a person who has not previously acted in any
capacity for either party.
Within thirty (30) days after the selection of the third appraiser, a
majority of the appraisers shall set the annual rent for the Extended
Term. If a majority of the appraisers are unable to set the Annual
Base Rent within the stipulated period of time, the three appraisals
shall
20
be added together and their total divided by three; the resulting
quotient shall be the annual rent for the premises during the Extended
Term.
In setting the annual rent for the Extended Term, the appraiser or
appraisers shall consider the use to which the premises are restricted
under this Lease and shall not consider the highest and best use for
the premises without regard to the restriction on use of the premises
contained in this Lease.
The decision of the appraisers as to the amount of the annual rent for
the extended term shall be binding on the parties and non-appealable.
(e) The foregoing notwithstanding, in no event shall the Base Rent be less
than $4.35 per square foot.
SECTION 2. RIGHT OF FIRST REFUSAL. Before entering into a Lease at any time
during the Term for space shown on Exhibit F (the "Additional Space") and so
long as Lessee is not then in default under this Lease, Lessor will notify
Lessee in writing of the terms, including without limitation bona-fide amount of
monthly rent, commencement date, additional rent, termination date, Lessee
buildout, ("Rental Terms") and proposed tenant upon which Landlord intends to
lease the Additional Space.
If within fifteen (15) days after receipt of Lessor's notice, Lessee agrees in
writing to lease the Additional Space upon the Rental Terms, Lessor and Lessee
will execute a Lease Addendum for the Additional Space within fifteen (15) days
after Lessor's receipt of Lessee's notice of intent. If Lessee shall elect to
lease the additional space, Lessee shall lease the additional space upon the
Rental Terms, and except for the Rental Terms all other conditions and terms of
this Lease shall apply. If Lessee does not deliver its notice of intent to lease
the Additional Space within such fifteen (15) day period, then this right of
first refusal will lapse and Lessor may lease the Additional Space, or any
portion thereof to a third party on terms as may be negotiated between Lessor
and such third party. This right of refusal shall be for the Initial Term, and
not for the Extended Term.
SECTION 3. RIGHT TO EXPAND. At any time during the Term, prior to Lessor
receiving a bona-fide third party offer to Lease the space shown on Exhibit F,
and so long as Lessee is not then in default under this Lease, Lessee shall have
the right to Lease any or all of the Additional Space on the same Rental Terms
as applies to the Demised Premises. Lessor and Lessee agree that this Lease
shall be amended to include such additional space into Article I, Section 2. All
other terms and conditions shall remain unchanged.
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ARTICLE XVIII
MISCELLANEOUS PROVISIONS
SECTION 1. COMMON AREAS. Lessor and Lessee agree that a portion of the
Premises {not to exceed 5% of the total square feet in all the buildings on
site) and the parking lots and other land areas of the site shall be treated as
common areas and Lessee shall pay its pro-rata share of all taxes, insurance and
operating expenses related thereto.
SECTION 2. STATUS REPORT. The Lessor and Lessee agree at any time and
from time to time, upon not less than thirty (30) days' prior written request by
the other, to execute, acknowledge and deliver to the other a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as modified, and stating the modifications), and the dates to which the Base
Rent and other charges have been paid in advance, if any, it being intended that
any such statement delivered pursuant to this Section 1 may be relied upon by
any prospective mortgagee or assignee of any mortgage on the Premises, or any
portion thereof.
SECTION 3. PROVISIONS BINDING. The term "Lessor" wherever used in this Lease
shall be deemed to mean the corporation, persons or other legal entity holding
the rights of Lessor under this Lease at the time in question.
In addition, the Lessee specifically agrees to look solely to the Lessor's
interest in the Premises for recovery of any monetary or other judgment from
Lessor; it being specifically agreed that neither the Lessor nor any of its
partners or principals or anyone claiming under the Lessor shall ever be
personally liable for any such judgment.
Except as set forth above, all of the covenants, agreements, stipulations,
provisions, conditions, options and obligations herein expressed and set forth
shall be considered as running with the land and shall (unless herein otherwise
specifically provided) extend to, bind and inure to the benefit of, as the case
may require, the successors and assigns of the Lessor and the Lessee,
respectively or their successors in interest, as fully as if such words were
written whenever reference to the Lessor and the Lessee occur in this Lease. The
reference contained to successors and assigns of Lessee is not intended to
constitute a consent to an assignment by the Lessee.
SECTION 4. NOTICES. Any and all notices, requests, designations, demands and
the like, required to be given or served by the terms and provisions of this
Lease, either by Lessor to Lessee, or by Lessee to Lessor, shall be in writing,
and shall be sent by recognized overnight carrier or registered or certified
mail, return receipt requested, addressed to the party intended to
22
be notified:
Such Notice shall be sent,
in the case of the Lessor, to:
RJR Ventures Limited Partnership
c/o Cornerstone Corporation
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
ATTENTION: Xxxx X. Xxxxxx
with a copy to:
Xxxxx Xxxxx, Esquire
Xxxxxxx, Xxxxxx & Goldings
00 Xxxx Xxxxx
Xxxxxx, XX 00000
and in the case of the Lessee, to:
Wang Laboratories, Inc.
000 Xxxxxxxxxx Xxxxx
Mail Stop 01C-190
Billerica, MA 01821-4130
ATTENTION: Director of
Corporate Real Estate
with a copy to:
General Counsel
Wang Laboratories, Inc.
000 Xxxxxxxxxx Xxxxx
Mail Stop 01C-190
Billerica, MA 01821-4130
or, in either case, to such other address or addresses as either party shall
from time to time hereafter designate by like notice to the other. Notices shall
be deemed to be effective upon delivery or tender of delivery.
SECTION 5. 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 invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Lease shall be valid and shall be
enforceable to the fullest extent permitted by law.
SECTION 6. RECORDING. Neither party shall have the right to record this
Lease. A mutually acceptable notice of Lease may be recorded in the appropriate
Registry of Deeds.
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SECTION 7. SUBORDINATION TO MORTGAGES. The Lessee agrees that upon the
request of the Lessor it will subordinate this Lease to the lien of any mortgage
or deed of trust that may now or hereafter exist for which the Demised Premises
or Lessor's interest in this Lease is pledged as security, provided that the
mortgagees or beneficiaries named in such mortgages or deeds of trust agree in
writing to recognize the interest of Lessee under this Lease, agree that so long
as Lessee shall perform its obligations under this Lease the rights of Lessee
hereunder shall remain in full force and effect, and agree that they will not
disturb Lessee's occupancy of the Demised Premises under this Lease in the event
of foreclosure or other action taken under the mortgage or deed of trust if
Lessee is not then in default. Lessee shall execute and deliver to Lessor all
instruments Lessor reasonably deems necessary to evidence and give effect to any
such subordination, provided that no such instrument shall alter any of the
terms, covenants or conditions of this Lease.
SECTION 8. PROTECTION OF MORTGAGEE. If in connection with any mortgage by
Lessor of the Premises there shall be executed an assignment by Lessor of
Lessor's interest in this Lease, or the rents payable hereunder, conditional in
nature or otherwise, Lessee agrees:
(a) that the execution thereof by Lessor and the acceptance thereof by the
mortgagee or assignee (herein referred to as the "Holder"), shall
never be deemed an assumption by the Holder of any of the obligations
of the Lessor hereunder, unless the Holder shall, by written notice
sent to Lessee, specifically otherwise elect;
(b) that except as aforesaid, the Holder shall be treated as having
assumed Lessor's obligations hereunder only upon foreclosure of the
Holder's mortgage or assignment and the taking possession of the
Demised Premises or such portion thereof as may be covered thereby;
(c) that Lessee shall execute such instruments as may be reasonably
required to assure the Holder that without written consent of the
Holder: (i) no rent shall be prepaid hereunder other than for the
current and next ensuing month or as expressly set forth in this
Lease; (ii) no modification shall be made in the provisions of this
Lease; and (iii) this Lease shall not be terminated except as
expressly provided herein, nor shall the Lessee accept a surrender of
the Lease except incident to a termination provided for herein; and
(d) that Lessee shall provide to the Holder copies of all notices alleging
Lessor defaults hereunder, and shall afford the Holder a reasonable
time to cure any such defaults prior to exercising any rights or
remedies available to Lessee.
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SECTION 9. NON DISTURBANCE. Lessor shall use best efforts to obtain a
non-disturbance agreement from all mortgage holders on the Premises in a form
reasonably satisfactory to Lessee.
SECTION 10. WAIVER. No failure by Lessor or Lessee to insist upon the strict
performance of any provision, condition or agreement contained in this Lease to
be performed by the other shall ever be deemed to be a waiver of such provision
as to any subsequent event constituting nonperformance or observance by such
party.
SECTION 11. SELF HELP. If Lessee shall default in the performance or
observance of any agreement, condition or other provision in this Lease
contained on its part to be performed or observed and shall not cure such
default within ten days after notice in writing from Lessor specifying the
default (or, in the event such default shall require more than thirty days to be
cured, if the Lessee shall not, within said period, commence to cure such
default and thereafter, with due diligence, prosecute the curing of such default
to completion), Lessor may, at its option, without waiving any claim for breach
of agreement, at any time thereafter, cure such default for the account of
Lessee, and Lessee shall reimburse Lessor for any amount paid and any expense of
contractual liability so incurred, including reasonable attorneys' fees.
Lessor may cure the default of Lessee prior to the expiration of such waiting
period, but after notice, which notice need not be in writing if confirmed
forthwith by notice in writing to Lessee, if it is necessary to protect the
Premises or the interest of Lessor therein, or to prevent injury or damage to
persons or property. Any amount payable by Lessee to Lessor pursuant to the
provisions of this Section shall be paid as part of and at the time for payment
of the next installment of rent first coming due after receipt of a xxxx for
such amount from Lessor.
SECTION 12. EXCULPATION. Except as otherwise expressly provided in this
Lease, this Lease and the obligations of Lessee to pay rent hereunder and
perform all other covenants, agreements, terms, provisions and conditions
hereunder on the part of Lessee to be performed shall in no way be affected,
impaired or excused because Lessor is unable to fulfill any of its obligations
under this Lease or is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make or is delayed in
making any repairs, replacements, additions, alterations, improvements or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Lessor is prevented or delayed from doing so by reason of strikes or
labor troubles or any other similar or dissimilar cause whatsoever beyond
Lessor's reasonable control, including but not limited to, governmental
preemption in connection with a national emergency or by any reason of any rule,
order or relation of any department or subdivision thereof of any governmental
agency or by reason of the conditions of supply and demand which have been or
are affected by
25
war, hostilities or other similar or dissimilar emergency. In each instance of
inability of Lessor to perform, Lessor shall exercise reasonable diligence to
eliminate the cause of such inability to perform and shall notify Lessee of its
inability to perform.
SECTION 13. QUIET ENJOYMENT. Lessor covenants that upon paying the Base Rent
and Additional Rent, if any, and observing and keeping all covenants, agreements
and conditions applicable to it under this Lease, Lessee shall peaceably and
quietly have, hold and enjoy the Demised Premises, without hindrance or
molestation from Lessor or anyone claiming by, through or under Lessor.
SECTION 14. EXISTING OCCUPANCY. In the event, Lessor occupies greater square
footage than outlined in Article I, Sections 2. and 3. of this Lease, such
excess occupancy shall be treated as a "tenancy-at-will" which may be terminated
by either party upon thirty (30) days Notice. All tenant-at-will space shall be
billed in accordance with the same economic terms as the Demised Premises.
During the time such tenancy-at-will occupancy exists, the definition of
"pro-rata" under Article VI, Section 4. shall be interpreted to include such
"at-will" occupancy.
SECTION 15. YIELD UP. Lessee covenants to peacefully yield up and surrender
the Demised Premises upon the termination of this Lease in good order, repair
and condition, and in repair similar to the repair of the Demised Premises as of
the Commencement Date of this Lease, reasonable wear and tear excepted, and to
remove all Lessee's property and all alterations and additions required to be
removed under the provisions hereof.
SECTION 16. LESSOR'S ENTRY. Lessee covenants to permit the Lessor or its
agents to enter the Demised Premises upon reasonable advance notice or at any
time in the event of a bona fide emergency for the purpose of inspections and
exercising any rights in carrying out any obligations it may have under this
Lease and to show the Demised Premises to prospective Lessees during the twelve
(12) months prior to the expiration of the Term and during other periods of time
as Lessee and Lessor may agree.
SECTION 17. MECHANIC'S AND OTHER LIENS. The Lessor shall not be liable for
any labor or materials furnished, or to be furnished directly to Lessee upon
credit and no mechanic's liens or other lien for any such labor or materials
shall attach to or affect the reversionary or other estate or interest of Lessor
in and to the Premises. Lessor further agrees to indemnify Lessor against any
and all reasonable costs, damages and expenses it may suffer on account of the
same. Lessee shall cause the same to be removed or dissolved by bond.
SECTION 18. BROKER. The Lessor and Lessee each represent and warrant that
they have not directly or indirectly dealt with any broker and that no
commission is due anyone as a result of this transaction.
26
SECTION 19. SIGNAGE. Lessor shall provide building standard identification
for Lessee on the main entry sign for the Premises and at any directory signs
and/or directional signs located elsewhere on the Premises. Furthermore, Lessor
grants Lessee the right to install signage at Lessee's sole cost and expense on
the roof or facade of the Demised Premises provided, however, Lessor must
provide written consent prior to installation of any such signage and such
signage conforms to all applicable laws.
SECTION 20. AMENDMENTS. This document shall become effective and binding only
upon the execution and delivery hereof by both Lessor and Lessee. All
negotiations, considerations, representations and understandings between Lessor
and Lessee are incorporated herein and this Lease may be modified or altered
only by agreement in writing between Lessor and Lessee.
SECTION 21. PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience only, and the words contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation or
construction of the meaning of the provisions of this Lease.
SECTION 22. GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts, as the
same may from time to time exist.
WITNESS the execution hereof, under seal, in any number of counterpart
copies, each of which counterpart copies shall be deemed an original for all
purposes, as of the day and year first above written.
RJR VENTURES LIMITED PARTNERSHIP
By Cornerstone Corporation
General Partner
By /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx, President
WANG LABORATORIES, INC.
By /s/ Xxxxxx Xxxxxx
------------------------------------
Duly Authorized
27
LEASE
This Lease made and entered into as of the 1st day of July, 1998 by and
between RJR VENTURES LIMITED PARTNERSHIP, a Massachusetts limited partnership
having its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx (hereinafter called the "Lessor" which term shall include its
successors and assigns where the context so admits)
and
WANG LABORATORIES, INC., a Delaware corporation, having its principal place
of business at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter
called the "Lessee" which term shall include its successors and assigns where
the context so admits)
WHEREAS, the Lessor is the owner of a certain parcel of land (the "Site")
situated in Tewksbury, Massachusetts, containing approximately 84.3 acres and
more particularly described in Exhibit A attached hereto, together with eight
buildings thereon having an aggregate of 755,000 square feet of area, parking
areas and other improvements (the Site and all said improvements being herein
described as the "Premises");
and
WHEREAS, Lessor and Lessee desire to enter into a lease of a part of the
Premises (the "Demised Premises")
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, the parties hereto hereby agree as follows:
W I T N E S S E T H:
ARTICLE I
PREMISES
SECTION 1. Lessor, for and in consideration of the rents to be paid and
obligations to be performed by the Lessee, does hereby demise and lease to the
Lessee, and the Lessee does hereby take and hire, upon and subject to the terms
and conditions set forth herein the Demised Premises.
SECTION 2. The Demised Premises consist of approximately 84,000 square feet
of space in Buildings Nos. 5 and 6 all as shown on the plans attached hereto as
Exhibit B. The Lessee shall have the right, in common with other tenants at the
Premises, to use the driveways and parking areas. Lessee shall be entitled to 3
parking spaces per 1,000 of space during the term of this Lease.
SECTION 3. Lessor shall have the right at Lessor's sole expense to alter or
relocate the access road and ways to the Demised Premises as well as parking for
the Demised Premises, provided that
1
any relocated entry roadway is of the same width and the same standards as the
present roadway. The Lessee shall have the non-exclusive right to use either the
now existing or relocated roadways for access to the Demised Premises. Lessor
agrees to use reasonable efforts not to interfere with or relocate all parking
space presently designated for Lessee's specific use.
ARTICLE II
TERM
SECTION 1. The Term of this Lease shall commence as of 12:01 A.M. on July 1,
1998 (the "Commencement Date") and expire at midnight June 30, 2006 (the
"Initial Term").
ARTICLE III
OPERATION OF THE PREMISES
SECTION 1. Lessor and its agents and employs agree to manage and operate the
Premises in a manner consistent with proper professional management and
operation of similar facilities including, without limitation, providing for the
operation, cleaning, maintenance, landscaping, repair, replacement and upkeep of
the Premises necessary to keep the Premises in reasonably good working order,
repair, appearance and condition and providing heating, ventilating and air
conditioning and building and grounds maintenance and repair.
ARTICLE IV
USE OF PREMISES
SECTION 1. The Lessee shall have the right to use the Demised Premises only
for warehouse, storage, data center, research and development, systems
integration, office uses and for any uses ancillary or incident to such
foregoing uses and for no other purpose or purposes whatsoever. The Demised
Premises shall be used only in compliance with applicable laws and only if and
to the extent the Lessee has obtained and maintained all licenses and permits
which may be necessary for its use.
SECTION 2. The Lessee shall not use or occupy or permit the Demised Premises
to be used or occupied, nor do or permit anything to be done in or on the
Demised Premises or any part thereof, in a manner that would in any way violate
any certificate of occupancy affecting the Demised Premises or make void or
voidable any insurance then in force with respect thereto, or that may make it
impossible to obtain fire or other insurance thereon required to be furnished
hereunder by the Lessee, or that will cause or be likely to cause structural
injury to the Demised Premises, or that will constitute a public or private
nuisance or waste.
SECTION 3. The Lessee further agrees that it shall not use (other than
incidental to its use of the Demised Premises and only if in compliance with
applicable laws and after Lessee notifies
2
Lessor thereof) or dispose of any hazardous substance on the Premises and shall
promptly notify the Lessor of any filing or notice, claim or action, pending or
threatened, by any governmental agency having jurisdiction over the Premises on
account of any hazardous materials or substances. In the event any liability or
cost is imposed upon or incurred by the Lessor pursuant to the provisions of
Massachusetts General Laws, Chapter 21E or any other federal, state or local law
governing hazardous waste or substances as a result of the Lessee's breach of
the provisions hereof, the Lessee agrees to be solely responsible for all costs
of removal, clean up fees and fines or remediation associated therewith
including all of Lessor's costs related to or incurred and to fully indemnify
and hold the Lessor harmless from actual losses, costs and claims, including the
defense thereof, suffered by the Lessor. This indemnity shall expressly survive
the termination of this Lease.
ARTICLE V
RENT
SECTION 1. Beginning with the Commencement Date, during the Initial Term of
this Lease, the Lessee covenants and agrees to pay the Lessor annual rent in the
amount of $6.25 per square foot (the "Base Rent") which equals Five Hundred
Twenty Five Thousand ($525,000.00) Dollars annually.
SECTION 2. Base Rent shall be payable in equal monthly installments in
advance by the fifth day of each calendar month occurring during the term of
this Lease. In the event that the Commencement Date is other than the first day
of a calendar month, the rent payment for such fraction of a calendar month
shall be prorated on a daily basis and paid at the Commencement Date.
SECTION 3. All payments of rent shall be made by the Lessee, without offset,
deduction or demand therefor, to the Lessor at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or to such other place as the Lessor may, from time to
time, designate in writing.
SECTION 4. No payment by the Lessee or receipt by the Lessor of a lesser
amount than the monthly rent called for by this Lease shall be deemed other than
a payment on account of the earliest rent due, nor shall any endorsement or
statement on any check or on any letter accompanying any check or payment as
rent be deemed an accord and satisfaction and the Lessor may accept such check
or payment without prejudice to its right to recover the balance of the rent or
to pursue any other remedy provided for in this Lease.
SECTION 5. In addition to the Base Rent, Lessee shall pay additional rent as
hereinafter provided in Articles VI, VII, and VIII, and in no event shall the
Lessor be liable for, or be obliged to incur any operating expense with respect
to the Demised Premises, except as in this Lease expressly provided.
SECTION 6. The above sections 1-5 notwithstanding, the Lessor has agreed to
waive payment of Base Rent for period of six and one
3
half (6.5) months. Base Rent shall commence as of 12:01 A.M. on January 15,
1999. All other payments of additional rent as hereinafter provided shall be due
and payable as expressly provided within this Lease.
ARTICLE VI
ADDITIONAL RENT: REAL ESTATE TAXES
SECTION 1. Lessor agrees to pay when due all Impositions and provide Lessee
with evidence of payment; provided Lessee covenants, and agrees to pay 30 days
before due, as additional rent, throughout the term of this Lease, its pro rata
share (as that term is hereinafter defined) of any and all taxes, assessments
(including, but not limited to, all assessments for public improvements or
benefits, payable during the term of this Lease), water, sewer and other rents,
rates and charges, charges for public utilities, excises, levies, licenses and
permit and inspection fees and other governmental charges general and special,
ordinary and extraordinary, foreseen and unforeseen, of any kind and nature
whatsoever, which at any time during the term of this Lease are assessed,
levied, confirmed, imposed upon, or grow or become due or payable out of or in
respect of, or become a lien on (a) the Premises, or (b) the buildings and
improvements from time to time on the Premises or (c) the Base Rent, any
additional rent reserved or payable hereunder or any other sums payable by the
Lessee hereunder relating to the Premises, or (d) this Lease or the leasehold
estate hereby created or which arise in respect of the operation, possession,
occupancy or use of the Premises, the improvements thereon or any part of any of
them (all of which taxes, assessments, charges, interest, penalties or like
charges are sometimes hereinafter referred to collectively as "Impositions" and
individually as an "Imposition"); provided, however, that:
(i) If, by law, any Imposition is or may be payable, at the option of the
taxpayer, in installments, the Lessee may pay such Imposition in
installments and shall pay each such installment as the same
respectively become due and before any fine, penalty, further interest
or cost may be added thereto.
(ii) Impositions, whether or not a lien upon the Premises, shall be
apportioned between Lessor and Lessee at the beginning of the term of
this Lease.
SECTION 2. Nothing herein contained shall require the Lessee to pay income
taxes assessed against the Lessor or any capital levy, corporation franchise,
excess profits, estate, succession, inheritance or transfer taxes of the Lessor,
unless such taxes are imposed or levied upon or assessed as a total or partial
substitute for, or in lieu of, any other Imposition required to be paid by the
Lessee pursuant to this Article VI, in which event, the same shall be deemed
Impositions and shall be paid by the Lessee; provided, however, that if at any
time during the term of this Lease, the method of taxation shall be such that
there shall be levied, assessed or imposed on the Lessor a capital levy, gross
receipts or
4
other tax on the rents received therefrom and/or a franchise tax or an
assessment, levy or charge measured by or based, in whole or in part, upon such
rents, the Premises (including but not limited to the acquisition, leasing, use
or value thereof), or the present or any future improvements on the Premises or
on the construction thereof and/or measured in whole or in part by Lessor's
income from the Premises, then all such taxes, assessments, levies and charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "Impositions" for the purposes hereof, but only to the extent that such
taxes would be payable if the Premises were the only property of the Lessor, and
shall pay the same as herein provided in respect of the payment of Impositions.
The Lessor shall have the right, at the Lessor's option and as a condition of
this Lease to require the Lessee to: (i) promptly deposit with Lessor funds for
the payment of current Impositions required to be paid by Lessee hereunder; and
(ii) also deposit one-twelfth (1/12th) of the current annual Impositions or
those of the preceding years, if the current amounts thereof have not been
fixed, on the first day of each month in advance, except that all additional
funds required for any payments thereof shall also be deposited as aforesaid on
the first day of the month preceding the date on which a payment is due and
payable without interest or penalty. Any deposits so received by Lessor shall be
held and applied to the payment of such Impositions, but in no event shall the
Lessee be entitled to receive interest upon, or any payments on account of
earning or profits derived from such payments by Lessee to Lessor.
SECTION 3. The Lessee shall have the right to contest the amount or
validity, in whole or in part, of any Imposition by appropriate proceedings
diligently conducted in good faith. Lessee will pay and save Lessor harmless
against any and all losses, judgments, decrees and costs (including all
attorneys' fees and expenses) in connection with any such contest and will,
promptly after the final settlement, compromise or determination of such
contest, fully apply and discharge the amounts which shall be levied, assessed,
be payable therein or in connection therewith, together with all penalties,
fines, interest, costs and expenses thereof or in connection therewith, or may
direct Lessor to pay out of such deposits, the amount of such Impositions so due
and payable; and, upon such payment, Lessor shall return, with such interest as
shall have accrued thereon, the balance, if any, of the amount deposited with it
with respect to such Impositions as aforesaid. If, at any time during the
continuance of such proceedings, Lessor shall deem the amount deposited or the
security posted, as aforesaid, insufficient, Lessee shall, upon demand, make an
additional deposit or provide additional security satisfactory to Lessor of such
sums as Lessor may require reasonably, and upon failure of Lessee to do so, the
amount theretofore deposited or the security posted may be applied by Lessor to
the payment, removal and discharge of such impositions, and the interest and
penalties in connection therewith, together with any costs, fees or other
liability accruing in any such proceedings, with only the balance, if any, being
returned to Lessee.
5
SECTION 4. Whenever the terms "pro-rata" or "pro-rated" appear in
Article VI, VII and VIII of this Lease, either of these terms shall mean the
result of dividing the number of square feet in the Demised Premises by the
total number of square feet in all of the buildings on the Site. At the
Commencement Date, it is hereby agreed that the result of such calculation for
the Demised Premises is 8.99%.G22
ARTICLE VII
ADDITIONAL RENT: INSURANCE
SECTION 1. LIABILITY INSURANCE. Lessee shall maintain at all times
commercial general liability insurance, with "Broad Form" endorsement insuring
the indemnity hereafter set forth, for the benefit of Lessor and Lessee, and
naming Lessor as an additional insured, against all claims for bodily injury,
personal injury, death and Property damage in or about the Premises (including
the sidewalks, driveways, parking lot, and curbs adjacent thereto) limits not
less than Five Million Dollars ($5,000,000.00) in the event of bodily injury or
death of any number of persons in any one accident and at any one location and
Property damage coverage of not less than One Million Dollars ($1,000,000.00),
or Five Million Dollars ($5,000,000.00) combined single limits bodily injury and
property damage coverage on an occurrence basis. The limits of said policy shall
be increased from time to time to meet changed circumstances at Lessors request,
including, but not limited to, changes in purchasing power of the dollar.
SECTION 2. PROPERTY INSURANCE. At all times, Lessor shall maintain or cause
to be maintained the insurance below described for the benefit of Lessor and
Lessee, against the following risks:
(a) Loss or damage from all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, and such other
risks as may be embraced within the form of extended coverage
insurance, with "comprehensive special" form including endorsement,
sprinkler leakage, insuring, at all times, the full replacement cost
of any buildings and improvements from time to time erected on the
Premises, including all Lessee Improvements. Lessor specifically
agrees that the insurance policy shall contain an endorsement or
appropriate provision which specifically states that the amount of
coverage shall at all times be for the actual full replacement cost of
the buildings and other improvements on the replacement cost of the
Property, regardless of the stated dollar amount of the policy. If any
of the risks covered by the currently employed customary comprehensive
general endorsement on fire policies are hereafter excluded from such
endorsement, but are insurable nevertheless by separate policies
regularly issued by fire or casualty companies doing business in the
State of Massachusetts, then the reference above to "risks as may be
embraced within the
6
standard form of extended coverage insurance" includes insurance
coverage by such separate policy of Policies;
(b) Loss or damage by explosion of steam boiler, air conditioning
equipment, pressure vessels, miscellaneous similar apparatus, or
similar apparatus, now or hereafter installed on the Premises in such
limits with respect to any one accident as may reasonably be
determined by Lessor from time to time, but not less than the full
replacement cost of any buildings and improvements from time to time
erected on the property;
(c) Such other insurance and in such amounts as may from time to time be
reasonably determined to be necessary by Lessor;
(d) Lessee shall pay within thirty (30) days of receipt of invoice, its
pro-rata share of all insurance required by this Section 2.
SECTION 3. WAIVER OF SUBROGATION. Lessor and Lessee, on behalf of themselves
and their respective insurers, hereby waive all causes of action and rights of
recovery against the other and each of their respective officers, employees and
agents, for any loss occurring to the property of either of them, regardless of
cause or origin. Lessor and Lessee agree that all insurance policies presently
existing or obtained after the date hereof shall include a clause or endorsement
to the effect that such policies shall not be invalidated nor shall the right of
the insured to recover thereunder be impaired as a result of the denial to the
insurers of all rights of subrogation against the other party on the basis of
the foregoing waiver.
SECTION 4. LIABILITY INSURANCE. Lessor and Lessee shall each procure and
maintain in effect at all times during the Term comprehensive general liability
insurance with a combined single limit of liability of at least $2,000,000.
Lessor and Lessee shall furnish certificates of such insurance to the other
promptly upon receipt of written request therefor.
SECTION 5. WORKER'S COMPENSATION. Lessee shall maintain at all times
Worker's Compensation insurance covering all persons employed by it in the
conduct of its business on the Premises.
SECTION 6. POLICIES.
(a) All Policies shall name Lessee as the insured, and naming Lessor as an
additional insured, as their respective interest may appear, but
subject, nevertheless to loss payee provisions and provisions relative
to disposition of insurance proceeds to a Mortgagee, as stated below.
Except for the payment of proceeds to a Mortgagee as provided below,
all insurance proceeds shall be payable to Lessor and/or Lessee as
their respective interests may appear.
7
(b) All insurance shall be effected by valid and enforceable policies
issued by insurers of responsibility and licensed to do business in
the State of Massachusetts, holding a General Policyholders' Rating
of A or better and a financial category of XII or better as set forth
in the most current issue of Best's Insurance Guide. Lessee shall
deliver to Lessor and the Mortgagee, if any, copies of all Policies of
insurance required to be provided by Lessee hereunder, or certificates
from the insurance company evidencing the existence and amounts of all
insurance required to be carried by Lessee hereunder. All such
Policies shall contain agreements by the insurers that (i) no act or
omission by Lessee or Lessor shall impair or affect the rights of any
insured to receive and collect the proceeds of the Policy (i.e., a
cross liability endorsement); (ii) such policy shall not be canceled
except upon thirty (30) days prior written notice to each named
insured and loss payee; and (iii) the coverage afforded thereby shall
not be affected by the performance of any work in or about the
Premises. In addition, all policies shall contain endorsements that
the rights of the assured to receive and collect proceeds shall not
be diminished because of any additional insurance carried by Lessee
or Lessor on their own accounts.
SECTION 7. INCLUSION OF MORTGAGEE AS LOSS PAYEE. Subject to the provisions
hereinafter set forth in this section, the policies provided shall also provide,
if required by either party hereto, for any loss to be payable to any Mortgagee
as the respective interest of such party may appear, pursuant to a standard
mortgagee clause or endorsement, provided, however, that such Mortgagee must
agree that any insurance proceeds received by such party shall be made available
for restoration of the improvements, or equivalent improvements, to at least the
condition of said improvements prior to the casualty giving rise to the payment
of such proceeds of said lender. The loss shall be adjusted with the insurance
companies by Lessor.
SECTION 8. CONSENT TO BLANKET INSURANCE POLICY. Nothing in this Lease shall
prevent Lessee from carrying insurance of the kind required of Lessee under a
blanket insurance policy or policies which cover other properties owned or
operated by Lessee as well as the Premises. Any such policy for Property
Insurance must contain, as respects the Premises, an endorsement specifically
covering the Premises for the types of insurance and in the amounts required
hereunder.
SECTION 9. INDEMNITY. a) Indemnity by Lessee. Lessee does hereby indemnify
and agree to forever save and hold harmless Lessor, and Lessor's interest in the
Premises and this Lease from and against any and all damages, claims, losses,
demands, costs, expenses (including attorneys' fees and costs), obligations,
liens, liabilities, actions and causes of action which Lessor may suffer or
incur arising directly or indirectly from this Lease, from Lessee's use of the
Demised Premises, from the conduct of Lessee's
8
business, from any activity, work or things done, permitted or suffered by
Lessee in or about the Premises, from Lessee's non-observance or nonperformance
of any law, ordinance or regulations, or from any negligence of Lessee or any of
Lessee's agents, contractors, employees, guests, licensees and invitees, but not
including any liability resulting from any acts or omissions of negligence or
willful misconduct of Lessor, its agents, employees, or contractors. Lessee
further agrees that in case of any such claim, demand, action or proceeding
against Lessor, Lessee, upon notice from Lessor, shall defend Lessor at Lessee's
expense by counsel reasonably satisfactory to Lessor. In the event Lessee does
not provide a defense against any and all such claims, demands, liens,
liabilities, actions or causes of action, threatened or actual, then Lessee
shall, in addition to the above, pay Lessor the attorneys' fees, legal expenses
and costs incurred by Lessor in providing such defense, and Lessee agrees to
cooperate with Lessor in such defense, including, but not limited to, the
providing of affidavits and testimony upon request of Lessor.
b) Indemnity by Lessor. Lessor agrees to indemnify, defend and hold
Lessee harmless from and against any loss, cost, liability, damage or expense
including, without limitation, reasonable attorney's fees, incurred in
connection with or arising from (i) any cause whatsoever in or on the common
areas of the Building (any portion of the Building except the Demised Premises)
including without limitation, the negligence of Lessor or its employees, agents
or contractors, other than the act or omission of Lessee, or (ii) the negligence
or intentional acts of Lessor or its employees, agents or contractors in or on
the Premises.
SECTION 10. EXEMPTION OF LESSOR FROM LIABILITY. Except for any liability
resulting from negligence or willful misconduct of Lessor, its agents,
employees, or contractors, or except as otherwise provided in the Lease, Lessee
hereby agrees that Lessor shall not be liable for injury to Lessee's business or
any loss of income therefrom or for damages to the goods, wares, merchandise or
other property of Lessee, Lessee's employees, invitees, customers, or any other
person in or about the Premises, nor shall Lessor be liable for injury to the
person of Lessee, Lessee's employees, agents, or contractors, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether the said damage or injury results from
conditions arising upon the Premises or from other sources or places, regardless
of whether the cause of such damage or injury or the means of repairing the same
is inaccessible to Lessee.
9
ARTICLE VIII
ADDITIONAL RENT - OPERATING EXPENSES
SECTION 1. During the Term of this Lease, the Lessee covenants and agrees
to pay, as additional rent, the Lessee's pro-rata share of Operating Expenses.
The term "Operating Expenses" as used herein, shall specifically exclude real
estate taxes, and insurance as governed by Article VI and Article VII of this
Lease, "Operating Expenses" shall include Lessor's costs or expenses incurred
for the operation, cleaning, maintenance, landscaping, repair, replacement and
upkeep of the Premises necessary to keep the Premises in reasonably good working
order, repair, appearance and condition; all costs, including reasonable
management fees charged for properties of similar size and occupancy, material
and equipment costs, for cleaning and janitorial service, all costs related to
provision of heat, air conditioning, water, sewerage and other utilities
(exclusive of reimbursement to Lessor for any of the same received as a result
of direct billing to other tenants); payments under service contracts; all
compensation, fringe benefits, payroll taxes, and worker's compensation
insurance premiums related to employees for the purpose of the maintenance and
upkeep of the Premises, but shall exclude the cost of repairs or replacements
that are of a capital nature. The parties intend that Lessee furnish its own
ordinary operating services for the Demised Premises. In the event Lessor is
asked or required to provide these operating services, Lessee agrees to pay
monthly estimated charges in advance subject to year end reconciliation. Lessee
shall have the right to perform a review of Lessors operating expense
calculations; and Lessor shall make all material available for Lessee's
inspection. The foregoing not withstanding, If at any time during the Term
hereof, the number of square feet in all of the buildings on the Site shall
change, the Lessee's share of operating expenses shall be correspondingly
adjusted.
ARTICLE IX
CONDITION OF THE PREMISES
SECTION 1. Lessor agrees, at its expense, to cause the roof and all
structural components of the Buildings, all common areas, and the building
systems serving the Demised Premises (including without limitation, the
electric, plumbing, heat, fire, safety, and HVAC systems) to be in good
operating condition and working order and in compliance with all applicable
codes and regulations (including without limitation, the Americans with
Disabilities Act) as of the date of this Lease. Lessee agrees that, subject to
the above statement, as of the date hereof, the Demised Premises are being
leased to the Lessee in "as is" condition, without representation or warranty of
any kind as to its state of repair or condition or compliance with applicable
laws. The Lessee acknowledges its occupancy under a prior lease and its
familiarity with the Premises. The Lessee agrees to maintain the Demised
10
Premises in substantially their present condition taking into account its uses
on the date hereof and in full compliance with applicable laws throughout the
term of this Lease, reasonable wear and use, fire and casualty and condemnation
only excepted. All work performed by the Lessee shall be done in a good and
workmanlike manner and in compliance with all applicable laws, ordinances and
regulations relative thereto. The Lessee further agrees that the Demised
Premises shall be kept and maintained throughout the term of this Lease in
compliance with all laws, ordinances, rules and regulations of any duly
constituted governmental authority having jurisdiction over the Premises. The
Lessee shall not permit or commit any waste. The cost of capital repairs and
capital replacement, not resulting from Lessee's alterations, shall be the
obligation of Lessor.
ARTICLE X
ALTERATIONS
SECTION 1. The Lessee shall not make any alterations with a cost in excess
of $10,000 to the Demised Premises without the Lessor's prior written consent.
The foregoing not withstanding any alterations which impact any party wall or
penetrate the roof shall require Lessor's prior express written consent. All
alterations made shall remain on and be surrendered with the Demised Premises on
the expiration or termination of this Term. Upon termination of this Lease, at
the option of the Lessor with respect to Alterations for which consent was not
required, the Lessee will restore the Demised Premises to the condition they
were in prior to any alterations and with respect to Alterations for which
consent was required, Lessee will so restore if Lessor so specified in the terms
of its consent.
SECTION 2. LESSOR'S RIGHT TO MAKE ALTERATIONS. Lessor reserves the right at
any time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Lessee therefor to
make such changes, alterations, improvements, repairs or replacements in or to
the Demised Premises provided, however, that there be no unreasonable
obstruction of the right of access to or unreasonable interference with the use
and enjoyment of, the Premises by Lessor.
ARTICLE XI
DAMAGE: DESTRUCTION
SECTION 1. If at any time during the Term (i) more than twenty-five percent
(25%) of the Demised Premises are damaged or destroyed by fire or other
casualty, or (ii) any portion of the Demised Premises is so damaged or destroyed
and such damage or destruction materially affects Lessee's ability to conduct
normal business operations in the Demised Premises and such damage cannot
reasonably be expected to be repaired within ninety (90) days, then
11
Lessee may elect to terminate the Lease by so notifying the other within thirty
(30) days after the date of the damage or destruction, specifying a date for
termination that shall be not less than thirty (30) days from the date of such
notice. If at any time during the Term (i) more than thirty-five percent (35%)
of the Buildings or 35% of the Demised Premises are damaged or destroyed by fire
or other casualty, or (ii) any portion of the Building or Demised Premises is so
damaged or destroyed and such damage or destruction materially affects Lessee's
ability to conduct normal business operations in the Demised Premises and such
damage cannot reasonably be expected to be repaired within ninety (90) days,
then Lessor may elect to terminate the Lease by so notifying the Lessee within
thirty (30) days after the date of the damage or destruction, specifying a date
for termination that shall be not less than thirty (30) days from the date of
such notice. If neither Lessor nor Lessee so elect to terminate this Lease, or
if less than thirty five percent (35%) of the Building of Demised Premises is
damaged by such fire or other casualty, then Lessor shall promptly commence to
repair and restore the Building and the Demised Premises to their condition
immediately prior to such fire or casualty except that Lessor shall not be
required to repair or restore alterations and additions to the Premises made by
Lessee in accordance with the provisions of Article X hereof except to the
extent insurance proceeds are available therefor. Upon completion of such
restoration, the Lessor shall be entitled to all insurance proceeds payable
under any casualty policy maintained as required by the provisions of
Article VII hereof. If existing laws do not permit the restoration, either party
shall have the right to terminate this Lease by written notice to the other
party. An equitable abatement of rent shall apply commencing upon the date of
any such casualty and continue until repair or termination in accordance with
the terms of this Lease.
ARTICLE XII
EMINENT DOMAIN
SECTION 1. In the event that 50% or more of the total number of square feet
in the Demised Premises shall be condemned or taken for public or quasi public
use, the Lessee may elect to terminate this Lease. If the Lessee elects to
terminate this Lease, it must exercise its right to terminate by giving written
notice to the Lessor within thirty (30) days after the nature and extent of the
taking have been finally determined. If the Lessee elects to terminate this
Lease as provided herein, the Lessee shall also notify the Lessor of the date of
termination which date shall be not earlier than thirty (30) days after the
Lessee has notified the Lessor of its election to terminate; provided, however,
that this Lease shall terminate on the date of the taking of the date if the
taking falls on a date prior to the date of termination as designated by the
Lessee. If the Lessee does not elect to terminate this Lease within the thirty
(30) day period, this Lease shall continue in full force and effect except that
Base Rent and
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additional rent shall be reduced pursuant to Section 2 hereof.
SECTION 2. In the event that any portion of the Demised Premises is taken by
condemnation and this Lease remains in full force and effect, on the date of
the taking, the Base Rent and all additional rent shall be reduced by an amount
that is in the same ratio to the Base Rent and additional rent as the total
number of square feet in the Demised Premises taken bears to the total number of
square feet in the Demised Premises immediately prior to the date of the taking.
SECTION 3. The Lessor shall be entitled to the entire award resulting from
any such condemnation or taking, including, without limitation, any portion of
the award attributable to the value of the leasehold estate created by this
Lease, provided, however, that the Lessee shall be entitled to any portion of
any award attributable to the Lessee's personal property or fixtures, or
specifically attributable to its relocation expenses or the interruption or
damage to its business.
ARTICLE XIII
UTILITIES
SECTION 1. The Lessor shall provide and the Lessee shall pay for all of its
requirements for utilities for the Demised Premises including, but not limited
to, gas, steam, water, electricity, telephone, sewer and the like. Lessor shall
have absolute and final right to negotiate with utility suppliers.
ARTICLE XIV
DEFAULT
SECTION 1. The following occurrences are "events of default":
(a) The Lessee defaults in the due and punctual payment of Base Rent and
Additional Rent and such default continues for ten (10) days after
receipt of notice from the Lessor; provided, however, that the Lessee
will not be entitled to more than one (1) notice of default in payment
of rent during any twelve month period, and if, within twelve (12)
months after any such notice, any rent is not paid when due, the grace
period shall be shortened to five (5) days after receipt of notice
from Lessor.
(b) Lessee breaches any of the other agreements, terms, covenants, or
conditions which this Lease requires Lessee to perform, and such
breach continues for a period of thirty (30) days after notice by
Lessor to Lessee provided that if any breach cannot reasonably be
cured within said thirty (30) days, then no event of default shall
exist so long as Lessee has commenced to cure the
13
failure within said thirty (30) days and diligently prosecutes the
curing thereof.
SECTION 2. If an Event of Default shall occur, Lessor may, at its option,
give to the Lessee a notice terminating this Lease upon a date specified in such
notice which date shall be not less than three (3) business days after the date
of receipt by the Lessee of such notice and upon the date specified in said
notice, the term and estate hereby vested in the Lessee shall cease and any and
all other right, title and interest of Lessee hereunder shall likewise cease
without further notice or lapse of time as fully and with like effect as of the
term of this Lease had elapsed, but Lessee shall continue to be liable to Lessor
as hereinafter provided.
SECTION 3. Upon any termination of this Lease as the result of an Event of
Default, the Lessee shall quit and peaceably surrender the Demised Premises to
the Lessor and, at any time after such termination, the Lessor may, without
further notice, enter the Demised Premises and repossess the same by summary
proceedings or other lawful means and may dispossess the Lessee and remove it
and all claiming under it from the Demised Premises and may have, hold and enjoy
the Demised Premises and the right to receive all rental income from the same.
SECTION 4. At any time or from time to time after any such termination,
Lessor shall use reasonable efforts to relet the Demised Premises or any part
thereof, in the name of Lessor or otherwise, for such term or terms (which may
be greater or less than the period which would otherwise have constituted the
balance of the Lease term) and on such conditions (which may include concessions
or free rent) as the Lessor, in its reasonable discretion, may determine and may
collect and receive the rents therefor. Lessor shall in no way be responsible or
liable for any failure to relet the Demised Premises or any part thereof, or for
any failure to collect any rent due upon any such reletting provided it has used
its reasonable efforts as aforesaid. In the event of Lessee's default, Lessee
shall be liable to Lessor for all expenses associated with reletting including,
without limitation, legal fees and real estate broker's commissions.
SECTION 5. No such termination of this Lease shall relieve Lessee of its
liability and obligations under this Lease and such liability and obligations
shall survive any such termination as more particularly described below.
In the event of any such termination, the Lessee shall pay to the Lessor Base
Rent and Additional Rent up to the date of termination. The Lessee shall also
pay to the Lessor, on demand, at the Lessor's election, either
(i) the amount by which, at the time of the termination of this Lease (or
at any time thereafter if the Lessor shall have initially elected
damages under subparagraph (ii) of
14
this Section 5) (a) the aggregate of the rent due hereunder projected
over the period commencing with such time and ending on the
termination date of this Lease exceeds (b) the aggregate fair market
rental value of the Demised Premises for such period; or
(ii) amounts equal to the rent which would have been payable by Lessee had
this Lease not been so terminated, payable upon the due dates therefor
specified herein following such termination and until the then
scheduled termination date, provided, however, if Lessor shall re-let
the Demised Premises during such period, that Lessor shall credit
Lessee with the net rents received by Lessor from such reletting, such
net rents to be determined by first deducting from the gross rents as
and when received by Lessor from such re-letting the expenses
reasonably incurred or paid by Lessor in terminating this Lease, as
well as the reasonable expenses of re-letting, including altering and
preparing the Demised Premises for new tenants, brokers' commissions,
and all other similar and dissimilar reasonable expenses properly
chargeable against the Demised Premises and the rental therefrom, it
being understood that any such re-letting may be for a period equal to
or shorter or longer than the remaining term of this Lease; and
provided, further, that (a) in no event shall Lessee be entitled to
receive any excess of such net rents over the sums payable by Lessee
to Lessor hereunder and (b) in no event shall Lessee be entitled in
any suit for the collection of damages pursuant to this Subparagraph
(ii) to a credit in respect of any net rents from a re-letting except
to the extent that such net rents are actually received by Lessor
prior to the commencement of such suit. If the Demised Premises or any
part thereof should be re-let in combination with other space, then
proper apportionment on a square foot area basis shall be made of the
rent received from such re-letting and of the expenses of re-letting.
Lessor shall use reasonable efforts to re-let the Demised Premises.
SECTION 6. A suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Lessor from time to time at its
election, and nothing contained herein shall be deemed to require Lessor to
postpone suit until the date when the term of this Lease would have expired if
it had not been terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Lessor against Lessee of any sums or damages to which, in addition
to the damages particularly provided above, Lessor may lawfully be entitled by
reason of any default hereunder on the part of Lessee.
15
SECTION 7. The specified remedies to which Lessor may resort hereunder
are cumulative and are not intended to be exclusive of any remedies or means of
redress to which Lessor may at any time be lawfully entitled, and Lessor may
invoke any remedy (including without limitation the remedy of specific
performance) allowed at law or in equity as if specific remedies were not herein
provided for.
ARTICLE XV
LESSEE'S PROPERTY
SECTION 1. All Lessee's machinery, equipment, furniture, demountable
partitions, and all other property of Lessee installed or located in the Demised
Premises from time to time ("Lessee's Property") shall be and remain the
property of Lessee. At any time during the term, Lessee may remove any of
Lessee's Property from the Demised Premises. Upon the termination of this Lease,
Lessee shall remove all Lessee's Property from the Demised Premises. If within
ten (10) days after the termination of this Lease, Lessee has not removed all
Lessee's Property from the Demised Premises, and Lessor desires to dispose of
such remaining Lessee's Property, Lessor may notify Lessee that the remaining
Lessee's Property must be removed whereupon Lessee shall remove the same
forthwith, failing which Lessor may do so at Lessee's expense.
SECTION 2. Lessee's Property and all furnishings, fixtures, equipment,
affects and property of those claiming by, through or under Lessee located in
the Demised Premises shall be at the sole risk and hazard of Lessee, and if the
whole or any part hereof shall be damaged or destroyed by fire, flood, the
leakage or bursting of pipes, or by theft or by any other cause, no part of such
damage shall be borne by Lessor.
SECTION 3. Upon the termination of this Lease, the Lessee will surrender
the Demised Premises in good order and condition, ordinary wear and tear
excepted. The Lessee will fully repair any damage occasioned by the removal of
the Lessee's Property in accordance with the provisions of Section 1 hereof.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 1. OPTION TO CANCEL: The Lessee shall have the right on January 14,
2004 to cancel this Lease. In order to exercise its right to cancel, the Lessee
shall notify the Lessor in writing on or before July 1, 2003 and shall, at the
time of giving such notice, pay to the Lessor a Termination Fee which shall be
an amount equal to eighteen (18) months' Base Rent and Lessee's prorata share of
real estate taxes and insurance for the same 18 month period multiplied by the
number of square feet Lessee occupies under this Lease at the time such notice
is given.
16
SECTION 2. COMMON AREAS. Lessor and Lessee agree that a portion of the
Premises (not to exceed 5% of the total square feet in all the buildings on
site) and the parking lots and all other land areas of the site shall be treated
as common areas and Lessee shall pay its pro-rata share of all taxes, insurance
and operating expenses related thereto.
SECTION 3. STATUS REPORT. The Lessor and Lessee agree at any time and
from time to time, upon not less than thirty (30) days' prior written request by
the other, to execute, acknowledge and deliver to the other a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as modified, and stating the modifications), and the dates to which the Base
Rent and other charges have been paid in advance, if any, it being intended that
any such statement delivered pursuant to this Section 1 may be relied upon by
any prospective mortgagee or assignee of any mortgage on the Premises, or any
portion thereof.
SECTION 4. PROVISIONS BINDING. The term "Lessor" wherever used in this
Lease shall be deemed to mean the corporation, persons or other legal entity
holding the rights of Lessor under this Lease at the time in question.
In addition, the Lessee specifically agrees to look solely to the Lessor's
interest in the Premises for recovery of any monetary or other judgment from
Lessor; it being specifically agreed that neither the Lessor nor anyone
claiming under the Lessor shall ever be personally liable for any such judgment.
Except as set forth above, all of the covenants, agreements, stipulations,
provisions, conditions, options and obligations herein expressed and set forth
shall be considered as running with the land and shall (unless herein otherwise
specifically provided) extend to, bind and inure to the benefit of, as the case
may require, the successors and assigns of the Lessor and the Lessee,
respectively or their successors in interest, as fully as if such words were
written whenever reference to the Lessor and the Lessee occur in this Lease. The
reference contained to successors and assigns of Lessee is not intended to
constitute a consent to an assignment by the Lessee.
SECTION 5. NOTICES. Any and all notices, requests, designations, demands
and the like, required to be given or served by the terms and provisions of this
Lease, either by Lessor to Lessee, or by Lessee to Lessor, shall be in writing,
and shall be sent by recognized overnight carrier or registered or certified
mail, return receipt requested, addressed to the party intended to be notified:
Such Notice shall be sent,
17
in the case of the Lessor, to:
RJR Ventures Limited Partnership
c/o Cornerstone Corporation
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
ATTENTION: Xxxx X. Xxxxxx
with a copy to:
Xxxxx Xxxxx, Esquire
Xxxxxxx, Xxxxxx & Goldings
00 Xxxx Xxxxx
Xxxxxx, XX 00000
and in the case of the Lessee, to:
Wang Laboratories, Inc.
000 Xxxxxxxxxx Xxxxx
Mail Stop 01C-190
Billerica, MA 01821-4130
ATTENTION: Director of
Corporate Real Estate
with a copy to:
General Counsel
Wang Laboratories, Inc.
000 Xxxxxxxxxx Xxxxx
Mail Stop 01C-190
Billerica, MA 01821-4130
or, in either case, to such other address or addresses as either party shall
from time to time hereafter designate by like notice to the other. Notices shall
be deemed to be effective upon delivery or tender of delivery.
SECTION 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 invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Lease shall be valid and shall be
enforceable to the fullest extent permitted by law.
SECTION 7. RECORDING. Lessee shall have the right to record this Lease or a
Notice of Lease.
SECTION 8. SUBORDINATION TO MORTGAGES. The Lessee agrees that upon the
request of the Lessor it will subordinate this Lease to the lien of any mortgage
or deed of trust that may now or hereafter
18
exist for which the Demised Premises or Lessor's interest in this Lease is
pledged as security, provided that the mortgagees or beneficiaries named in such
mortgages or deeds of trust agree in writing to recognize the interest of Lessee
under this Lease, agree that so long as Lessee shall perform its obligations
under this Lease the rights of Lessee hereunder shall remain in full force and
effect, and agree that they will not disturb Lessee's occupancy of the Demised
Premises under this Lease in the event of foreclosure or other action taken
under the mortgage or deed of trust if Lessee is not then in default. Lessee
shall execute and deliver to Lessor all instruments Lessor reasonably deems
necessary to evidence and give effect to any such subordination, provided that
no such instrument shall alter any of the terms, covenants or conditions of this
Lease.
SECTION 9. PROTECTION OF MORTGAGEE. If in connection with any mortgage by
Lessor of the Demised Premises there shall be executed an assignment by Lessor
of Lessor's interest in this Lease, or the rents payable hereunder, conditional
in nature or otherwise, Lessee agrees:
(a) that the execution thereof by Lessor and the acceptance thereof by the
mortgagee or assignee (herein referred to as the "Holder"), shall
never be deemed an assumption by the Holder of any of the obligations
of the Lessor hereunder, unless the Holder shall, by written notice
sent to Lessee, specifically otherwise elect;
(b) that except as aforesaid, the Holder shall be treated as having
assumed Lessor's obligations hereunder only upon foreclosure of the
Holder's mortgage or assignment and the taking possession of the
Demised Premises or such portion thereof as may be covered thereby;
(c) that Lessee shall execute such instruments as may be reasonably
required to assure the Holder that without written consent of the
Holder: (i) no rent shall be prepaid hereunder other than for the
current and next ensuing month or as expressly set forth in this
Lease; (ii) no modification shall be made in the provisions of this
Lease; and (iii) this Lease shall not be terminated except as
expressly provided herein, nor shall the Lessee accept a surrender of
the Lease except incident to a termination provided for herein; and
(d) that Lessee shall provide to the Holder copies of all notices alleging
Lessor defaults hereunder, and shall afford the Holder a reasonable
time to cure any such defaults prior to exercising any rights or
remedies available to Lessee.
SECTION 10. NON DISTURBANCE. Lessor shall use best efforts to obtain a
non-disturbance agreement from all mortgage holders on the
19
Premises in a form reasonably satisfactory to Lessee.
SECTION 11. WAIVER. No failure by Lessor or Lessee to insist upon the strict
performance of any provision, condition or agreement contained in this Lease to
be performed by the other shall ever be deemed to be a waiver of such provision
as to any subsequent event constituting nonperformance or observance by such
party.
SECTION 12. SELF HELP. If Lessee shall default in the performance or
observance of any agreement, condition or other provision in this Lease
contained on its part to be performed or observed and shall not cure such
default within ten days after notice in writing from Lessor specifying the
default (or, in the event such default shall require more than thirty days to be
cured, if the Lessee shall not, within said period, commence to cure such
default and thereafter, with due diligence, prosecute the curing of such default
to completion), Lessor may, at its option, without waiving any claim for breach
of agreement, at any time thereafter, cure such default for the account of
Lessee, and Lessee shall reimburse Lessor for any amount paid and any expense of
contractual liability so incurred, including reasonable attorneys' fees.
Lessor may cure the default of Lessee prior to the expiration of such waiting
period, but after notice, which notice need not be in writing if confirmed
forthwith by notice in writing to Lessee, if it is necessary to protect the
Premises or the interest of Lessor therein, or to prevent injury or damage to
persons or property. Any amount payable by Lessee to Lessor pursuant to the
provisions of this Section shall be paid as part of and at the time for payment
of the next installment of rent first coming due after receipt of a xxxx for
such amount from Lessor.
SECTION 13. EXCULPATION. Except as otherwise expressly provided in this
Lease, this Lease and the obligations of Lessee to pay rent hereunder and
perform all other covenants, agreements, terms, provisions and conditions
hereunder on the part of Lessee to be performed shall in no way be affected,
impaired or excused because Lessor is unable to fulfill any of its obligations
under this Lease or is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make or is delayed in
making any repairs, replacements, additions, alterations, improvements or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Lessor is prevented or delayed from doing so by reason of strikes or
labor troubles or any other similar or dissimilar cause whatsoever beyond
Lessor's reasonable control, including but not limited to, governmental
preemption in connection with a national emergency or by any reason of any rule,
order or relation of any department or subdivision thereof of any governmental
agency or by reason of the conditions of supply and demand which have been or
are affected by war, hostilities or other similar or dissimilar emergency. In
each instance of inability of Lessor to perform, Lessor shall exercise
20
reasonable diligence to eliminate the cause of such inability to perform and
shall notify lessee of its inability to perform.
SECTION 14. QUIET ENJOYMENT. Lessor covenants that upon paying the Base Rent
and Additional Rent, if any, and observing and keeping all covenants, agreements
and conditions applicable to it under this Lease, Lessee shall peaceably and
quietly have, hold and enjoy the Demised Premises, without hindrance or
molestation from Lessor or anyone claiming by, through or under Lessor.
SECTION 15. YIELD UP. Lessee covenants to peacefully yield up and surrender
the Demised Premises upon the termination of this Lease in good order, repair
and condition and in repair similar to the repair of the Demised Premises as of
the Commencement Date of this Lease, reasonable wear and tear excepted, and to
remove all Lessee's property and all alterations and additions required to be
removed under the provisions hereof.
SECTION 16. LESSOR'S ENTRY. Lessee covenants to permit the Lessor or its
agents to enter the Demised Premises upon reasonable advance notice or at any
time in the event of a bona fide emergency for the purpose of inspections and
exercising any rights in carrying out any obligations it may have under this
Lease and to show the Demised Premises to prospective Lessees during the twelve
(12) months prior to the expiration of the Term and during other periods of time
as Lessee and Lessor may agree.
SECTION 17. MECHANIC'S AND OTHER LIENS. The Lessor shall not be liable for
any labor or materials furnished, or to be furnished to Lessee upon credit and
no mechanic's liens or other lien for any such labor or materials shall attach
to or affect the reversionary or other estate or interest of Lessor in and to
the Premises. Lessee further agrees to indemnify Lessor against any and all
reasonable costs, damages and expenses it may suffer on account of the same.
Lessee shall cause the same to be removed or dissolved by bond.
SECTION 18. BROKER. The Lessor and Lessee each represent and warrant that
they have not directly or indirectly dealt with any broker and that no
commission is due anyone as a result of this transaction.
SECTION 19. SIGNAGE. Lessor shall provide building standard identification
for Lessee on main entry sign for the Premises and at any directory signs and/or
directional signs located elsewhere on the Premises. Furthermore, Lessor grants
Lessee the right to install signage, at Lessee's sole cost and expense, on the
roof or facade of the Demised Premises provided, however, Lessor must provide
written consent (such consent not to be unreasonably withheld or delayed) prior
to installation of any such signage.
SECTION 20. AMENDMENTS. This document shall become effective and binding only
upon the execution and delivery hereof by both
21
Lessor and Lessee. All negotiations, considerations, representations and
understandings between Lessor and Lessee are incorporated herein and this Lease
may be modified or altered only by agreement in writing between Lessor and
Lessee.
SECTION 21. PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience only, and the words contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation or
construction of the meaning of the provisions of this Lease.
SECTION 22. GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts, as the
same may from time to time exist.
SECTION 23. Lessee shall not assign or sublet all or any portion of the
Demised Premises without prior consent of Lessor, which consent shall not be
unreasonably withheld or delayed; provided that no such consent shall be
required by any assignment or sub-lease resulting by operation of law or to an
entity that is controlled by controls or is under common control with Lessee.
However, in no event shall Lessee be relieved of primary obligations under this
Lease.
WITNESS the execution hereof, under seal, in any number of counterpart
copies, each of which counterpart copies shall be deemed an original for all
purposes, as of the day and year first above written.
RJR VENTURES LIMITED PARTNERSHIP
By Cornerstone Corporation
General Partner
By /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx, President
WANG LABORATORIES, INC.
By /s/ Xxxxxxx Xxxxxx
-----------------------------------
Duly authorized
Xxxxxxx Xxxxxx
Director Corp Real Estate
22
LEASE
This Lease made and entered into as of the 1st day of May, 2000 by and
between RJR VENTURES LIMITED PARTNERSHIP, a Massachusetts limited partnership
having its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx (hereinafter called the "Lessor" which term shall include its
successors and assigns where the context so admits)
and
GETRONICS WANG CO., a Delaware corporation, having its principal place of
business at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter
called the "Lessee" which term shall include its successors and assigns where
the context so admits)
WHEREAS, the Lessor is the owner of a certain parcel of land (the "Site")
situated in Tewksbury, Massachusetts, containing approximately 84.3 acres and
more particularly described in Exhibit A attached hereto, together with eight
buildings thereon having an aggregate of 755,000 square feet of area, parking
areas and other improvements (the Site and all said improvements being herein
described as the "Premises");
and
WHEREAS, Lessor and Lessee desire to enter into a lease of a part of the
Premises (the "Demised Premises")
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, the parties hereto hereby agree as follows:
W I T N E S S E T H:
ARTICLE I
PREMISES
SECTION 1. Lessor, for and in consideration of the rents to be paid and
obligations to be performed by the Lessee, does hereby demise and lease to the
Lessee, and the Lessee does hereby take and hire, upon and subject to the terms
and conditions set forth herein the Demised Premises.
SECTION 2. The Demised Premises consist of approximately 12,500 square feet
of space in Buildings No. 2 all as shown on the plans attached hereto as
Exhibit B. The Lessee shall have the right, in common with other tenants at the
Premises, to use the driveways and parking areas. Lessee shall be entitled to 3
parking spaces per 1,000 of space during the term of this Lease.
SECTION 3. Lessor shall have the right at Lessor's sole expense to alter or
relocate the access road and ways to the Demised Premises as well as parking for
the Demised Premises, provided that any relocated entry roadway is of the same
width and the same standards as the present roadway. The Lessee shall have the
non-exclusive right to use either the now existing or relocated roadways for
access to the Demised Premises. Lessor agrees to use reasonable efforts not to
interfere with or relocate all parking space presently designated for Lessee's
specific use.
ARTICLE II
TERM
SECTION 1. The Term of this Lease shall commence as of 12:01 A.M. on May, 1,
2000 (the "Commencement Date") and expire at midnight June 30, 2001 (the
"Initial Term").
ARTICLE III
OPERATION OF THE PREMISES
SECTION 1. Lessor and its agents and employs agree to manage and operate the
Premises in a manner consistent with proper professional management and
operation of similar facilities including, without limitation, providing for the
operation, cleaning, maintenance, landscaping, repair, replacement and upkeep of
the Premises necessary to keep the Premises in reasonably good working order,
repair, appearance and condition and providing heating, ventilating and air
conditioning and building and grounds maintenance and repair.
ARTICLE IV
USE OF PREMISES
SECTION 1. The Lessee shall have the right to use the Demised Premises only
for storage, data center, research and development, systems integration, office
uses and for any uses ancillary or incident to such foregoing uses and for no
other purpose or purposes whatsoever. The Demised Premises shall be used only in
compliance with applicable laws and only if and to the extent the Lessee has
obtained and maintained all licenses and permits which may be necessary for its
use.
SECTION 2. The Lessee shall not use or occupy or permit the Demised Premises
to be used or occupied, nor do or permit anything to be done in or on the
Demised Premises or any part thereof, in a manner that would in any way violate
any certificate of occupancy affecting the Demised Premises or make void or
voidable any insurance then in force with
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respect thereto, or that may make it impossible to obtain fire or other
insurance thereon required to be furnished hereunder by the Lessee, or that will
cause or be likely to cause structural injury to the Demised Premises, or that
will constitute a public or private nuisance or waste.
SECTION 3. The Lessee further agrees that it shall not use (other than
incidental to its use of the Demised Premises and only if in compliance with
applicable laws and after Lessee notifies Lessor thereof) or dispose of any
hazardous substance on the Premises and shall promptly notify the Lessor of any
filing or notice, claim or action, pending or threatened, by any governmental
agency having jurisdiction over the Premises on account of any hazardous
materials or substances. In the event any liability or cost is imposed upon or
incurred by the Lessor pursuant to the provisions of Massachusetts General Laws,
Chapter 21E or any other federal, state or local law governing hazardous waste
or substances as a result of the Lessee's breach of the provisions hereof, the
Lessee agrees to be solely responsible for all costs of removal, clean up fees
and fines or remediation associated therewith including all of Lessor's costs
related to or incurred and to fully indemnify and hold the Lessor harmless from
actual losses, costs and claims, including the defense thereof, suffered by the
Lessor. This indemnity shall expressly survive the termination of this Lease.
ARTICLE V
RENT
SECTION 1. Beginning with the Commencement Date, during the Initial Term of
this Lease, the Lessee covenants and agrees to pay the Lessor annual rent in the
amount of $6.50 per square foot (the "Base Rent") which equals Eighty-one
Thousand Two Hundred Fifty ($81,250.00) Dollars Annually.
SECTION 2. Base Rent shall be payable in equal monthly installments in
advance by the fifth day of each calendar month occurring during the term of
this Lease. In the event that the Commencement Date is other than the first day
of a calendar month, the rent payment for such fraction of a calendar month
shall be prorated on a daily basis and paid at the Commencement Date.
SECTION 3. All payments of rent shall be made by the Lessee, without offset,
deduction or demand therefor, to the Lessor at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or to such other place as the Lessor may, from time to
time, designate in writing.
SECTION 4. No payment by the Lessee or receipt by the Lessor of a lesser
amount than the monthly rent called for by this Lease shall be deemed other than
a payment on account of the earliest rent due, nor shall any endorsement or
statement on any check or on any letter accompanying
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any check or payment as rent be deemed an accord and satisfaction and the Lessor
may accept such check or payment without prejudice to its right to recover the
balance of the rent or to pursue any other remedy provided for in this Lease.
SECTION 5. In addition to the Base Rent, Lessee shall pay additional rent as
hereinafter provided in Articles VI, VII, and VIII, and in no event shall the
Lessor be liable for, or be obliged to incur any operating expense with respect
to the Demised Premises, except as in this Lease expressly provided.
ARTICLE VI
ADDITIONAL RENT: REAL ESTATE TAXES
SECTION 1. Lessor agrees to pay when due all Impositions and provide Lessee
with evidence of payment; provided Lessee covenants, and agrees to pay 30 days
before due, as additional rent, throughout the term of this Lease, its pro rata
share (as that term is hereinafter defined) of any and all taxes, assessments
(including, but not limited to, all assessments for public improvements or
benefits, payable during the term of this Lease), water, sewer and other rents,
rates and charges, charges for public utilities, excises, levies, licenses and
permit and inspection fees and other governmental charges general and special,
ordinary and extraordinary, foreseen and unforeseen, of any kind and nature
whatsoever, which at any time during the term of this Lease are assessed,
levied, confirmed, imposed upon, or grow or become due or payable out of or in
respect of, or become a lien on (a) the Premises, or (b) the buildings and
improvements from time to time on the Premises or (c) the Base Rent, any
additional rent reserved or payable hereunder or any other sums payable by the
Lessee hereunder relating to the Premises, or (d) this Lease or the leasehold
estate hereby created or which arise in respect of the operation, possession,
occupancy or use of the Premises, the improvements thereon or any part of any of
them (all of which taxes, assessments, charges, interest, penalties or like
charges are sometimes hereinafter referred to collectively as "Impositions" and
individually as an "Imposition"); provided, however, that:
(i) If, by law, any Imposition is or may be payable, at the option of
the taxpayer, in installments, the Lessee may pay such Imposition
in installments and shall pay each such installment as the same
respectively become due and before any fine, penalty, further
interest or cost may be added thereto.
(ii) Impositions, whether or not a lien upon the Premises, shall be
apportioned between Lessor and Lessee at the beginning of the
term of this Lease.
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SECTION 2. Nothing herein contained shall require the Lessee to pay income
taxes assessed against the Lessor or any capital levy, corporation franchise,
excess profits, estate, succession, inheritance or transfer taxes of the Lessor,
unless such taxes are imposed or levied upon or assessed as a total or partial
substitute for, or in lieu of, any other Imposition required to be paid by the
Lessee pursuant to this Article VI, in which event, the same shall be deemed
Impositions and shall be paid by the Lessee; provided, however, that if at any
time during the term of this Lease, the method of taxation shall be such that
there shall be levied, assessed or imposed on the Lessor a capital levy, gross
receipts or other tax on the rents received therefrom and/or a franchise tax or
an assessment, levy or charge measured by or based, in whole or in part, upon
such rents, the Premises (including but not limited to the acquisition, leasing,
use or value thereof), or the present or any future improvements on the Premises
or on the construction thereof and/or measured in whole or in part by Lessor's
income from the Premises, then all such taxes, assessments, levies and charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "Impositions" for the purposes hereof, but only to the extent that such
taxes would be payable if the Premises were the only property of the Lessor, and
shall pay the same as herein provided in respect of the payment of Impositions.
The Lessor shall have the right, at the Lessor's option and as a condition of
this Lease to require the Lessee to: (i) promptly deposit with Lessor funds for
the payment of current Impositions required to be paid by Lessee hereunder; and
(ii) also deposit one-twelfth (1/12th) of the current annual Impositions or
those of the preceding years, if the current amounts thereof have not been
fixed, on the first day of each month in advance, except that all additional
funds required for any payments thereof shall also be deposited as aforesaid on
the first day of the month preceding the date on which a payment is due and
payable without interest or penalty. Any deposits so received by Lessor shall be
held and applied to the payment of such Impositions, but in no event shall the
Lessee be entitled to receive interest upon, or any payments on account of
earning or profits derived from such payments by Lessee to Lessor.
SECTION 3. The Lessee shall have the right to contest the amount or
validity, in whole or in part, of any Imposition by appropriate proceedings
diligently conducted in good faith. Lessee will pay and save Lessor harmless
against any and all losses, judgments, decrees and costs (including all
attorneys' fees and expenses) in connection with any such contest and will,
promptly after the final settlement, compromise or determination of such
contest, fully apply and discharge the amounts which shall be levied, assessed,
be payable therein or in connection therewith, together with all penalties,
fines, interest, costs and expenses thereof or in connection therewith, or may
direct Lessor to pay out of such deposits, the amount of such Impositions so due
and payable; and, upon such payment, Lessor shall return, with such interest as
shall have accrued thereon, the balance, if any, of the amount deposited with it
with
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respect to such Impositions as aforesaid. If, at any time during the continuance
of such proceedings, Lessor shall deem the amount deposited or the security
posted, as aforesaid, insufficient, Lessee shall, upon demand, make an
additional deposit or provide additional security satisfactory to Lessor of such
sums as Lessor may require reasonably, and upon failure of Lessee to do so, the
amount theretofore deposited or the security posted may be applied by Lessor to
the payment, removal and discharge of such impositions, and the interest and
penalties in connection therewith, together with any costs, fees or other
liability accruing in any such proceedings, with only the balance, if any, being
returned to Lessee.
SECTION 4. Whenever the terms "pro-rata" or "pro-rated" appear in
Article VI, VII and VIII of this Lease, either of these terms shall mean the
result of dividing the number of square feet in the Demised Premises by the
total number of square feet in all of the buildings on the Site. At the
Commencement Date, it is hereby agreed that the result of such calculation for
the Demised Premises is .165%.
ARTICLE VII
ADDITIONAL RENT: INSURANCE
SECTION 1. LIABILITY INSURANCE. Lessee shall maintain at all times
commercial general liability insurance, with "Broad Form" endorsement insuring
the indemnity hereafter set forth, for the benefit of Lessor and Lessee, and
naming Lessor as an additional insured, against all claims for bodily injury,
personal injury, death and Property damage in or about the Premises (including
the sidewalks, driveways, parking lot, and curbs adjacent thereto) limits not
less than Five Million Dollars ($5,000,000.00) in the event of bodily injury or
death of any number of persons in any one accident and at any one location and
Property damage coverage of not less than One Million Dollars ($1,000,000.00),
or Five Million Dollars ($5,000,000.00) combined single limits bodily injury and
property damage coverage on an occurrence basis. The limits of said policy shall
be increased from time to time to meet changed circumstances at Lessors request,
including, but not limited to, changes in purchasing power of the dollar.
SECTION 2. PROPERTY INSURANCE. At all times, Lessor shall maintain or cause
to be maintained the insurance below described for the benefit of Lessor and
Lessee, against the following risks:
(a) Loss or damage from all perils included within the classification
of fire, extended coverage, vandalism, malicious mischief, and
such other risks as may be embraced within the form of extended
coverage insurance, with "comprehensive special" form including
endorsement, sprinkler leakage,
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insuring, at all times, the full replacement cost of any
buildings and improvements from time to time erected on the
Premises, including all Lessee Improvements. Lessor specifically
agrees that the insurance policy shall contain an endorsement or
appropriate provision which specifically states that the amount
of coverage shall at all times be for the actual full replacement
cost of the buildings and other improvements on the replacement
cost of the Property, regardless of the stated dollar amount of
the policy. If any of the risks covered by the currently employed
customary comprehensive general endorsement on fire policies are
hereafter excluded from such endorsement, but are insurable
nevertheless by separate policies regularly issued by fire or
casualty companies doing business in the State of Massachusetts,
then the reference above to "risks as may be embraced within the
standard form of extended coverage insurance" includes insurance
coverage by such separate policy of Policies;
(b) Loss or damage by explosion of steam boiler, air conditioning
equipment, pressure vessels, miscellaneous similar apparatus, or
similar apparatus, now or hereafter installed on the Premises in
such limits with respect to any one accident as may reasonably be
determined by Lessor from time to time, but not less than the
full replacement cost of any buildings and improvements from time
to time erected on the property;
(c) Such other insurance and in such amounts as may from time to time
be reasonably determined to be necessary by Lessor;
(d) Lessee shall pay within thirty (30) days of receipt of invoice,
its pro-rata share of all insurance required by this Section 2.
SECTION 3. WAIVER OF SUBROGATION. Lessor and Lessee, on behalf of themselves
and their respective insurers, hereby waive all causes of action and rights of
recovery against the other and each of their respective officers, employees and
agents, for any loss occurring to the property of either of them, regardless of
cause or origin. Lessor and Lessee agree that all insurance policies presently
existing or obtained after the date hereof shall include a clause or endorsement
to the effect that such policies shall not be invalidated nor shall the right of
the insured to recover thereunder be impaired as a result of the denial to the
insurers of all rights of subrogation against the other party on the basis of
the foregoing waiver.
SECTION 4. LIABILITY INSURANCE. Lessor and Lessee shall each procure and
maintain in effect at all times during the Term comprehensive general liability
insurance with a combined single limit of liability of at least $2,000,000.
Lessor and Lessee shall furnish certificates of such insurance to the other
promptly upon receipt of written request therefor.
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SECTION 5. WORKER'S COMPENSATION. Lessee shall maintain at all times
Worker's Compensation insurance covering all persons employed by it in the
conduct of its business on the Premises.
SECTION 6. POLICIES.
(a) All Policies shall name Lessee as the insured, and naming Lessor
as an additional insured, as their respective interest may
appear, but subject, nevertheless to loss payee provisions and
provisions relative to disposition of insurance proceeds to a
Mortgagee, as stated below. Except for the payment of proceeds to
a Mortgagee as provided below, all insurance proceeds shall be
payable to Lessor and/or Lessee as their respective interests may
appear.
(b) All insurance shall be effected by valid and enforceable policies
issued by insurers of responsibility and licensed to do business
in the State of Massachusetts, holding a General Policyholders'
Rating of A or better and a financial category of XII or better
as set forth in the most current issue of Best's Insurance Guide.
Lessee shall deliver to Lessor and the Mortgagee, if any, copies
of all Policies of insurance required to be provided by Lessee
hereunder, or certificates from the insurance company evidencing
the existence and amounts of all insurance required to be carried
by Lessee hereunder. All such Policies shall contain agreements
by the insurers that (i) no act or omission by Lessee or Lessor
shall impair or affect the rights of any insured to receive and
collect the proceeds of the Policy (i.e., a cross liability
endorsement); (ii) such policy shall not be canceled except upon
thirty (30) days prior written notice to each named insured and
loss payee; and (iii) the coverage afforded thereby shall not be
affected by the performance of any work in or about the Premises.
In addition, all policies shall contain endorsements that the
rights of the assured to receive and collect proceeds shall not
be diminished because of any additional insurance carried by
Lessee or Lessor on their own accounts.
SECTION 7. INCLUSION OF MORTGAGEE AS LOSS PAYEE. Subject to the provisions
hereinafter set forth in this section, the policies provided shall also provide,
if required by either party hereto, for any loss to be payable to any Mortgagee
as the respective interest of such party may appear, pursuant to a standard
mortgagee clause or endorsement, provided, however, that such Mortgagee must
agree that any insurance proceeds received by such party shall be made available
for restoration of the improvements, or equivalent improvements, to at least the
condition of said improvements prior to the casualty giving rise to the payment
of such proceeds of said lender. The loss shall be adjusted with the insurance
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companies by Lessor.
SECTION 8. CONSENT TO BLANKET INSURANCE POLICY. Nothing in this Lease shall
prevent Lessee from carrying insurance of the kind required of Lessee under a
blanket insurance policy or policies which cover other properties owned or
operated by Lessee as well as the Premises. Any such policy for Property
Insurance must contain, as respects the Premises, an endorsement specifically
covering the Premises for the types of insurance and in the amounts required
hereunder.
SECTION 9. INDEMNITY. a) Indemnity by Lessee. Lessee does hereby indemnify
and agree to forever save and hold harmless Lessor, and Lessor's interest in the
Premises and this Lease from and against any and all damages, claims, losses,
demands, costs, expenses (including attorneys' fees and costs), obligations,
liens, liabilities, actions and causes of action which Lessor may suffer or
incur arising directly or indirectly from this Lease, from Lessee's use of the
Demised Premises, from the conduct of Lessee's business, from any activity, work
or things done, permitted or suffered by Lessee in or about the Premises, from
Lessee's non-observance or nonperformance of any law, ordinance or regulations,
or from any negligence of Lessee or any of Lessee's agents, contractors,
employees, guests, licensees and invitees, but not including any liability
resulting from any acts or omissions of negligence or willful misconduct of
Lessor, its agents, employees, or contractors. Lessee further agrees that in
case of any such claim, demand, action or proceeding against Lessor, Lessee,
upon notice from Lessor, shall defend Lessor at Lessee's expense by counsel
reasonably satisfactory to Lessor. In the event Lessee does not provide a
defense against any and all such claims, demands, liens, liabilities, actions or
causes of action, threatened or actual, then Lessee shall, in addition to the
above, pay Lessor the attorneys' fees, legal expenses and costs incurred by
Lessor in providing such defense, and Lessee agrees to cooperate with Lessor in
such defense, including, but not limited to, the providing of affidavits and
testimony upon request of Lessor.
b) Indemnity by Lessor. Lessor agrees to indemnify, defend and hold
Lessee harmless from and against any loss, cost, liability, damage or expense
including, without limitation, reasonable attorney's fees, incurred in
connection with or arising from (i) any cause whatsoever in or on the common
areas of the Building (any portion of the Building except the Demised Premises)
including without limitation, the negligence of Lessor or its employees, agents
or contractors, other than the act or omission of Lessee, or (ii) the negligence
or intentional acts of Lessor or its employees, agents or contractors in or on
the Premises.
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SECTION 10. EXEMPTION OF LESSOR FROM LIABILITY. Except for any liability
resulting from negligence or willful misconduct of Lessor, its agents,
employees, or contractors, or except as otherwise provided in the Lease, Lessee
hereby agrees that Lessor shall not be liable for injury to Lessee's business or
any loss of income therefrom or for damages to the goods, wares, merchandise or
other property of Lessee, Lessee's employees, invitees, customers, or any other
person in or about the Premises, nor shall Lessor be liable for injury to the
person of Lessee, Lessee's employees, agents, or contractors, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether the said damage or injury results from
conditions arising upon the Premises or from other sources or places, regardless
of whether the cause of such damage or injury or the means of repairing the same
is inaccessible to Lessee.
ARTICLE VIII
ADDITIONAL RENT - OPERATING EXPENSES
SECTION 1. During the Term of this Lease, the Lessee covenants and agrees to
pay, as additional rent, the Lessee's pro-rata share of Operating Expenses. The
term "Operating Expenses" as used herein, shall specifically exclude real estate
taxes, and insurance as governed by Article VI and Article VII of this Lease,
"Operating Expenses" shall include Lessor's costs or expenses incurred for the
operation, cleaning, maintenance, landscaping, repair, replacement and upkeep of
the Premises necessary to keep the Premises in reasonably good working order,
repair, appearance and condition; all costs, including reasonable management
fees charged for properties of similar size and occupancy, material and
equipment costs, for cleaning and janitorial service, all costs related to
provision of heat, air conditioning, water, sewerage and other utilities
(exclusive of reimbursement to Lessor for any of the same received as a result
of direct billing to other tenants); payments under service contracts; all
compensation, fringe benefits, payroll taxes, and worker's compensation
insurance premiums related to employees for the purpose of the maintenance and
upkeep of the Premises, but shall exclude the cost of repairs or replacements
that are of a capital nature. The parties intend that Lessee furnish its own
ordinary operating services for the Demised Premises. In the event Lessor is
asked or required to provide these operating services, Lessee agrees to pay
monthly estimated charges in advance subject to year end reconciliation. Lessee
shall have the right to perform a review of Lessors operating expense
calculations; and Lessor shall make all material available for Lessee's
inspection. The foregoing not withstanding, If at any time during the Term
hereof, the number of square feet in all of the buildings on the Site shall
change, the Lessee's share of operating expenses shall be correspondingly
adjusted.
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ARTICLE IX
CONDITION OF THE PREMISES
SECTION 1. Lessor agrees, at its expense, to cause the roof and all
structural components of the Buildings, all common areas, and the building
systems serving the Demised Premises (including without limitation, the
electric, plumbing, heat, fire, safety, and HVAC systems) to be in good
operating condition and working order and in compliance with all applicable
codes and regulations (including without limitation, the Americans with
Disabilities Act) as of the date of this Lease. Lessee agrees that, subject to
the above statement, as of the date hereof, the Demised Premises are being
leased to the Lessee in "as is" condition, without representation or warranty of
any kind as to its state of repair or condition or compliance with applicable
laws. The Lessee acknowledges its occupancy under a prior lease and its
familiarity with the Premises. The Lessee agrees to maintain the Demised
Premises in substantially their present condition taking into account its uses
on the date hereof and in full compliance with applicable laws throughout the
term of this Lease, reasonable wear and use, fire and casualty and condemnation
only excepted. All work performed by the Lessee shall be done in a good and
workmanlike manner and in compliance with all applicable laws, ordinances and
regulations relative thereto. The Lessee further agrees that the Demised
Premises shall be kept and maintained throughout the term of this Lease in
compliance with all laws, ordinances, rules and regulations of any duly
constituted governmental authority having jurisdiction over the Premises. The
Lessee shall not permit or commit any waste. The cost of capital repairs and
capital replacement, not resulting from Lessee's alterations, shall be the
obligation of Lessor.
ARTICLE X
ALTERATIONS
SECTION 1. The Lessee shall not make any alterations with a cost in excess
of $10,000 to the Demised Premises without the Lessor's prior written consent.
The foregoing not withstanding any alterations which impact any party wall or
penetrate the roof shall require Lessor's prior express written consent. All
alterations made shall remain on and be surrendered with the Demised Premises on
the expiration or termination of this Term. Upon termination of this Lease, at
the option of the Lessor with respect to Alterations for which consent was not
required, the Lessee will restore the Demised Premises to the condition they
were in prior to any alterations and with respect to Alterations for which
consent was required, Lessee will so restore if Lessor so specified in the terms
of its consent.
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SECTION 2. LESSOR'S RIGHT TO MAKE ALTERATIONS. Lessor reserves the right at
any time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Lessee therefor to
make such changes, alterations, improvements, repairs or replacements in or to
the Demised Premises provided, however, that there be no unreasonable
obstruction of the right of access to or unreasonable interference with the use
and enjoyment of, the Premises by Lessor.
ARTICLE XI
DAMAGE; DESTRUCTION
SECTION 1. If at any time during the Term (i) more than twenty-five percent
(25%) of the Demised Premises are damaged or destroyed by fire or other
casualty, or (ii) any portion of the Demised Premises is so damaged or destroyed
and such damage or destruction materially affects Lessee's ability to conduct
normal business operations in the Demised Premises and such damage cannot
reasonably be expected to be repaired within ninety (90) days, then Lessee may
elect to terminate the Lease by so notifying the other within thirty (30) days
after the date of the damage or destruction, specifying a date for termination
that shall be not less than thirty (30) days from the date of such notice. If at
any time during the Term (i) more than thirty-five percent (35%) of the
Buildings or 35% of the Demised Premises are damaged or destroyed by fire or
other casualty, or (ii) any portion of the Building or Demised Premises is so
damaged or destroyed and such damage or destruction materially affects Lessee's
ability to conduct normal business operations in the Demised Premises and such
damage cannot reasonably be expected to be repaired within ninety (90) days,
then Lessor may elect to terminate the Lease by so notifying the Lessee within
thirty (30) days after the date of the damage or destruction, specifying a date
for termination that shall be not less than thirty (30) days from the date of
such notice. If neither Lessor nor Lessee so elect to terminate this Lease, or
if less than thirty five percent (35%) of the Building of Demised Premises is
damaged by such fire or other casualty, then Lessor shall promptly commence to
repair and restore the Building and the Demised Premises to their condition
immediately prior to such fire or casualty except that Lessor shall not be
required to repair or restore alterations and additions to the Premises made by
Lessee in accordance with the provisions of Article X hereof except to the
extent insurance proceeds are available therefor. Upon completion of such
restoration, the Lessor shall be entitled to all insurance proceeds payable
under any casualty policy maintained as required by the provisions of
Article VII hereof. If existing laws do not permit the restoration, either party
shall have the right to terminate this Lease by written notice to the other
party. An equitable abatement of rent shall apply commencing upon the date of
any such casualty and continue until repair or termination in accordance with
the terms of this Lease.
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ARTICLE XII
EMINENT DOMAIN
SECTION 1. In the event that 50% or more of the total number of square
feet in the Demised Premises shall be condemned or taken for public or quasi
public use, the Lessee may elect to terminate this Lease. If the Lessee
elects to terminate this Lease, it must exercise its right to terminate by
giving written notice to the Lessor within thirty (30) days after the nature
and extent of the taking have been finally determined. If the Lessee elects
to terminate this Lease as provided herein, the Lessee shall also notify the
Lessor of the date of termination which date shall be not earlier than thirty
(30) days after the Lessee has notified the Lessor of its election to
terminate; provided, however, that this Lease shall terminate on the date of
the taking of the date if the taking falls on a date prior to the date of
termination as designated by the Lessee. If the Lessee does not elect to
terminate this Lease within the thirty (30) day period, this Lease shall
continue in full force and effect except that Base Rent and additional rent
shall be reduced pursuant to Section 2 hereof.
SECTION 2. In the event that any portion of the Demised Premises is taken by
condemnation and this Lease remains in full force and effect, on the date of the
taking, the Base Rent and all additional rent shall be reduced by an amount that
is in the same ratio to the Base Rent and additional rent as the total number of
square feet in the Demised Premises taken bears to the total number of square
feet in the Demised Premises immediately prior to the date of the taking.
SECTION 3. The Lessor shall be entitled to the entire award resulting from
any such condemnation or taking, including, without limitation, any portion of
the award attributable to the value of the leasehold estate created by this
Lease, provided, however, that the Lessee shall be entitled to any portion of
any award attributable to the Lessee's personal property or fixtures, or
specifically attributable to its relocation expenses or the interruption or
damage to its business.
ARTICLE XIII
UTILITIES
SECTION 1. The Lessor shall provide and the Lessee shall pay for all of its
requirements for utilities for the Demised Premises including, but not limited
to, gas, steam, water, electricity, telephone, sewer and the like. Lessor shall
have absolute and final right to negotiate with utility suppliers.
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ARTICLE XIV
DEFAULT
SECTION 1. The following occurrences are "events of default":
(a) The Lessee defaults in the due and punctual payment of Base Rent
and Additional Rent and such default continues for ten (10) days
after receipt of notice from the Lessor; provided, however, that
the Lessee will not be entitled to more than one (1) notice of
default in payment of rent during any twelve month period, and
if, within twelve (12) months after any such notice, any rent is
not paid when due, the grace period shall be shortened to five
(5) days after receipt of notice from Lessor.
(b) Lessee breaches any of the other agreements, terms, covenants, or
conditions which this Lease requires Lessee to perform, and such
breach continues for a period of thirty (30) days after notice by
Lessor to Lessee provided that if any breach cannot reasonably be
cured within said thirty (30) days, then no event of default
shall exist so long as Lessee has commenced to cure the failure
within said thirty (30) days and diligently prosecutes the curing
thereof.
SECTION 2. If an Event of Default shall occur, Lessor may, at its option,
give to the Lessee a notice terminating this Lease upon a date specified in such
notice which date shall be not less than three (3) business days after the date
of receipt by the Lessee of such notice and upon the date specified in said
notice, the term and estate hereby vested in the Lessee shall cease and any and
all other right, title and interest of Lessee hereunder shall likewise cease
without further notice or lapse of time as fully and with like effect as of the
term of this Lease had elapsed, but Lessee shall continue to be liable to Lessor
as hereinafter provided.
SECTION 3. Upon any termination of this Lease as the result of an Event of
Default, the Lessee shall quit and peaceably surrender the Demised Premises to
the Lessor and, at any time after such termination, the Lessor may, without
further notice, enter the Demised Premises and repossess the same by summary
proceedings or other lawful means and may dispossess the Lessee and remove it
and all claiming under it from the Demised Premises and may have, hold and enjoy
the Demised Premises and the right to receive all rental income from the same.
SECTION 4. At any time or from time to time after any such termination,
Lessor shall use reasonable efforts to relet the Demised Premises or any part
thereof, in the name of Lessor or otherwise, for such term or terms (which may
be greater or less than the period which would otherwise have
14
constituted the balance of the Lease term) and on such conditions (which may
include concessions or free rent) as the Lessor, in its reasonable discretion,
may determine and may collect and receive the rents therefor. Lessor shall in
no way be responsible or liable for any failure to relet the Demised Premises or
any part thereof, or for any failure to collect any rent due upon any such
reletting provided it has used its reasonable efforts as aforesaid. In the event
of Lessee's default, Lessee shall be liable to Lessor for all expenses
associated with reletting including, without limitation, legal fees and real
estate broker's commissions.
SECTION 5. No such termination of this Lease shall relieve Lessee of its
liability and obligations under this Lease and such liability and obligations
shall survive any such termination as more particularly described below.
In the event of any such termination, the Lessee shall pay to the Lessor Base
Rent and Additional Rent up to the date of termination. The Lessee shall also
pay to the Lessor, on demand, at the Lessor's election, either
(i) the amount by which, at the time of the termination of this Lease
(or at any time thereafter if the Lessor shall have initially
elected damages under subparagraph (ii) of this Section 5) (a)
the aggregate of the rent due hereunder projected over the period
commencing with such time and ending on the termination date of
this Lease exceeds (b) the aggregate fair market rental value of
the Demised Premises for such period; or
(ii) amounts equal to the rent which would have been payable by Lessee
had this Lease not been so terminated, payable upon the due dates
therefor specified herein following such termination and until
the then scheduled termination date, provided, however, if Lessor
shall re-let the Demised Premises during such period, that Lessor
shall credit Lessee with the net rents received by Lessor from
such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by Lessor
from such re-letting the expenses reasonably incurred or paid by
Lessor in terminating this Lease, as well as the reasonable
expenses of re-letting, including altering and preparing the
Demised Premises for new tenants, brokers' commissions, and all
other similar and dissimilar reasonable expenses properly
chargeable against the Demised Premises and the rental therefrom,
it being understood that any such re-letting may be for a period
equal to or shorter or longer than the remaining term of this
Lease; and provided, further, that (a) in no event shall Lessee
be entitled to receive any excess of such net rents over the sums
payable by Lessee to Lessor hereunder and (b) in no event shall
Lessee be entitled in any suit for the collection of damages
pursuant to this
15
Subparagraph (ii) to a credit in respect of any net rents from a
re-letting except to the extent that such net rents are actually
received by Lessor prior to the commencement of such suit. If the
Demised Premises or any part thereof should be re-let in
combination with other space, then proper apportionment on a
square foot area basis shall be made of the rent received from
such re-letting and of the expenses of re-letting. Lessor shall
use reasonable efforts to re-let the Demised Premises.
SECTION 6. A suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Lessor from time to time at its
election, and nothing contained herein shall be deemed to require Lessor to
postpone suit until the date when the term of this Lease would have expired if
it had not been terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Lessor against Lessee of any sums or damages to which, in addition
to the damages particularly provided above, Lessor may lawfully be entitled by
reason of any default hereunder on the part of Lessee.
SECTION 7. The specified remedies to which Lessor may resort hereunder are
cumulative and are not intended to be exclusive of any remedies or means of
redress to which Lessor may at any time be lawfully entitled, and Lessor may
invoke any remedy (including without limitation the remedy of specific
performance) allowed at law or in equity as if specific remedies were not herein
provided for.
ARTICLE XV
LESSEE'S PROPERTY
SECTION 1. All Lessee's machinery, equipment, furniture, demountable
partitions, and all other property of Lessee installed or located in the Demised
Premises from time to time ("Lessee's Property") shall be and remain the
property of Lessee. At any time during the term, Lessee may remove any of
Lessee's Property from the Demised Premises. Upon the termination of this Lease,
Lessee shall remove all Lessee's Property from the Demised Premises. If within
ten (10) days after the termination of this Lease, Lessee has not removed all
Lessee's Property from the Demised Premises, and Lessor desires to dispose of
such remaining Lessee's Property, Lessor may notify Lessee that the remaining
Lessee's Property must be removed whereupon Lessee shall remove the same
forthwith, failing which Lessor may do so at Lessee's expense.
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SECTION 2. Lessee's Property and all furnishings, fixtures, equipment,
affects and property of those claiming by, through or under Lessee located in
the Demised Premises shall be at the sole risk and hazard of Lessee, and if the
whole or any part hereof shall be damaged or destroyed by fire, flood, the
leakage or bursting of pipes, or by theft or by any other cause, no part of such
damage shall be borne by Lessor.
SECTION 3. Upon the termination of this Lease, the Lessee will surrender the
Demised Premises in good order and condition, ordinary wear and tear excepted.
The Lessee will fully repair any damage occasioned by the removal of the
Lessee's Property in accordance with the provisions of Section 1 hereof.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 1. COMMON AREAS. Lessor and Lessee agree that a portion of the
Premises (not to exceed 5% of the total square feet in all the buildings on
site) and the parking lots and all other land areas of the site shall be treated
as common areas and Lessee shall pay its pro-rata share of all taxes, insurance
and operating expenses related thereto.
SECTION 2. The Lessor reserves the right to relocate the Lessee, at the
Lessor's expense, to substantially comparable space in one of the other
buildings on the Premises - such right to be exercised by giving the Lessee at
least one hundred twenty (120) days prior written notice of such relocation. The
Lessor agrees that such relocation shall be accomplished without any
unreasonable interference with the conduct of the Lessee's business. In the
event that the space to which the Lessee is to be relocated is not satisfactory
to the Lessee, the Lessor shall have the right to cancel this Lease by giving
the Lessee not less than sixty (60) days prior written notice of such
cancellation. In the event of such relocation, the Lessor and the Lessee shall
execute an amendment to this Lease indicating the substituted Demised Premises.
SECTION 3. STATUS REPORT. The Lessor and Lessee agree at any time and from
time to time, upon not less than thirty (30) days' prior written request by the
other, to execute, acknowledge and deliver to the other a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified, and stating the modifications), and the dates to which the Base Rent
and other charges have been paid in advance, if any, it being intended that any
such statement delivered pursuant to this Section 1 may be relied upon by any
prospective mortgagee or assignee of any mortgage on the Premises, or any
portion thereof.
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SECTION 4. PROVISIONS BINDING. The term "Lessor" wherever used in this Lease
shall be deemed to mean the corporation, persons or other legal entity holding
the rights of Lessor under this Lease at the time in question.
In addition, the Lessee specifically agrees to look solely to the Lessor's
interest in the Premises for recovery of any monetary or other judgment from
Lessor; it being specifically agreed that neither the Lessor nor anyone claiming
under the Lessor shall ever be personally liable for any such judgment.
Except as set forth above, all of the covenants, agreements, stipulations,
provisions, conditions, options and obligations herein expressed and set forth
shall be considered as running with the land and shall (unless herein otherwise
specifically provided) extend to, bind and inure to the benefit of, as the case
may require, the successors and assigns of the Lessor and the Lessee,
respectively or their successors in interest, as fully as if such words were
written whenever reference to the Lessor and the Lessee occur in this Lease. The
reference contained to successors and assigns of Lessee is not intended to
constitute a consent to an assignment by the Lessee.
SECTION 5. NOTICES. Any and all notices, requests, designations, demands and
the like, required to be given or served by the terms and provisions of this
Lease, either by Lessor to Lessee, or by Lessee to Lessor, shall be in writing,
and shall be sent by recognized overnight carrier or registered or certified
mail, return receipt requested, addressed to the party intended to be notified:
Such Notice shall be sent,
in the case of the Lessor, to:
RJR Ventures Limited Partnership
c/o Cornerstone Corporation
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
ATTENTION: Xxxx X. Xxxxxx
with a copy to:
Xxxxx Xxxxx, Esquire
Xxxxxxx, Xxxxxx & Goldings
00 Xxxx Xxxxx
Xxxxxx, XX 00000
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and in the case of the Lessee, to:
GETRONICS WANG CO.
000 Xxxxxxxxxx Xxxxx
Mail Stop 01C-190
Billerica, MA 01821-4130
ATTENTION: Director of
Corporate Real Estate
with a copy to:
General Counsel
GETRONICS WANG CO.
000 Xxxxxxxxxx Xxxxx
Mail Stop 01C-190
Billerica, MA 01821-4130
or, in either case, to such other address or addresses as either party shall
from time to time hereafter designate by like notice to the other. Notices
shall be deemed to be effective upon delivery or tender of delivery.
SECTION 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 invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Lease shall be valid and shall be
enforceable to the fullest extent permitted by law.
SECTION 7. RECORDING. Lessee shall have the right to record this Lease or a
Notice of Lease.
SECTION 8. SUBORDINATION TO MORTGAGES. The Lessee agrees that upon the
request of the Lessor it will subordinate this Lease to the lien of any mortgage
or deed of trust that may now or hereafter exist for which the Demised Premises
or Lessor's interest in this Lease is pledged as security, provided that the
mortgagees or beneficiaries named in such mortgages or deeds of trust agree in
writing to recognize the interest of Lessee under this Lease, agree that so long
as Lessee shall perform its obligations under this Lease the rights of Lessee
hereunder shall remain in full force and effect, and agree that they will not
disturb Lessee's occupancy of the Demised Premises under this Lease in the event
of foreclosure or other action taken under the mortgage or deed of trust if
Lessee is not then in default. Lessee shall execute and deliver to Lessor all
instruments Lessor reasonably deems necessary to evidence and give effect to any
such subordination, provided that no such instrument shall alter any of the
terms, covenants or conditions of this Lease.
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SECTION 9. PROTECTION OF MORTGAGEE. If in connection with any mortgage by
Lessor of the Demised Premises there shall be executed an assignment by Lessor
of Lessor's interest in this Lease, or the rents payable hereunder, conditional
in nature or otherwise, Lessee agrees:
(a) that the execution thereof by Lessor and the acceptance thereof
by the mortgagee or assignee (herein referred to as the
"Holder"), shall never be deemed an assumption by the Holder of
any of the obligations of the Lessor hereunder, unless the Holder
shall, by written notice sent to Lessee, specifically otherwise
elect;
(b) that except as aforesaid, the Holder shall be treated as having
assumed Lessor's obligations hereunder only upon foreclosure of
the Holder's mortgage or assignment and the taking possession of
the Demised Premises or such portion thereof as may be covered
thereby;
(c) that Lessee shall execute such instruments as may be reasonably
required to assure the Holder that without written consent of the
Holder: (i) no rent shall be prepaid hereunder other than for the
current and next ensuing month or as expressly set forth in this
Lease; (ii) no modification shall be made in the provisions of
this Lease; and (iii) this Lease shall not be terminated except
as expressly provided herein, nor shall the Lessee accept a
surrender of the Lease except incident to a termination provided
for herein; and
(d) that Lessee shall provide to the Holder copies of all notices
alleging Lessor defaults hereunder, and shall afford the Holder a
reasonable time to cure any such defaults prior to exercising any
rights or remedies available to Lessee.
SECTION 10. NON DISTURBANCE. Lessor shall use best efforts to obtain a
non-disturbance agreement from all mortgage holders on the Premises in a form
reasonably satisfactory to Lessee.
SECTION 11. WAIVER. No failure by Lessor or Lessee to insist upon the strict
performance of any provision, condition or agreement contained in this Lease
to be performed by the other shall ever be deemed to be a waiver of such
provision as to any subsequent event constituting nonperformance or observance
by such party.
SECTION 12. SELF HELP. If Lessee shall default in the performance or
observance of any agreement, condition or other provision in this Lease
contained on its part to be performed or observed and shall not cure such
default within ten days after notice in writing from Lessor specifying the
default (or, in the event such default shall require more than thirty days
20
to be cured, if the Lessee shall not, within said period, commence to cure such
default and thereafter, with due diligence, prosecute the curing of such default
to completion), Lessor may, at its option, without waiving any claim for breach
of agreement, at any time thereafter, cure such default for the account of
Lessee, and Lessee shall reimburse Lessor for any amount paid and any expense of
contractual liability so incurred, including reasonable attorneys' fees.
Lessor may cure the default of Lessee prior to the expiration of such waiting
period, but after notice, which notice need not be in writing if confirmed
forthwith by notice in writing to Lessee, if it is necessary to protect the
Premises or the interest of Lessor therein, or to prevent injury or damage to
persons or property. Any amount payable by Lessee to Lessor pursuant to the
provisions of this Section shall be paid as part of and at the time for payment
of the next installment of rent first coming due after receipt of a xxxx for
such amount from Lessor.
SECTION 13. EXCULPATION. Except as otherwise expressly provided in this
Lease, this Lease and the obligations of Lessee to pay rent hereunder and
perform all other covenants, agreements, terms, provisions and conditions
hereunder on the part of Lessee to be performed shall in no way be affected,
impaired or excused because Lessor is unable to fulfill any of its obligations
under this Lease or is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make or is delayed in
making any repairs, replacements, additions, alterations, improvements or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Lessor is prevented or delayed from doing so by reason of strikes or
labor troubles or any other similar or dissimilar cause whatsoever beyond
Lessor's reasonable control, including but not limited to, governmental
preemption in connection with a national emergency or by any reason of any rule,
order or relation of any department or subdivision thereof of any governmental
agency or by reason of the conditions of supply and demand which have been or
are affected by war, hostilities or other similar or dissimilar emergency. In
each instance of inability of Lessor to perform, Lessor shall exercise
reasonable diligence to eliminate the cause of such inability to perform and
shall notify Lessee of its inability to perform.
SECTION 14. QUIET ENJOYMENT. Lessor covenants that upon paying the Base Rent
and Additional Rent, if any, and observing and keeping all covenants, agreements
and conditions applicable to it under this Lease, Lessee shall peaceably and
quietly have, hold and enjoy the Demised Premises, without hindrance or
molestation from Lessor or anyone claiming by, through or under Lessor.
SECTION 15. YIELD UP. Lessee covenants to peacefully yield up and surrender
the Demised Premises upon the termination of this Lease in good order, repair
and condition, and in repair similar to the repair of the
21
Demised Premises as of the Commencement Date of this Lease, reasonable wear and
tear excepted, and to remove all Lessee's property and all alterations and
additions required to be removed under the provisions hereof.
SECTION 16. LESSOR'S ENTRY. Lessee covenants to permit the Lessor or its
agents to enter the Demised Premises upon reasonable advance notice or at any
time in the event of a bona fide emergency for the purpose of inspections and
exercising any rights in carrying out any obligations it may have under this
Lease and to show the Demised Premises to prospective Lessees during the twelve
(12) months prior to the expiration of the Term and during other periods of time
as Lessee and Lessor may agree.
SECTION 17. MECHANIC'S AND OTHER LIENS. The Lessor shall not be liable for
any labor or materials furnished, or to be furnished to Lessee upon credit and
no mechanic's liens or other lien for any such labor or materials shall attach
to or affect the reversionary or other estate or interest of Lessor in and to
the Premises. Lessee further agrees to indemnify Lessor against any and all
reasonable costs, damages and expenses it may suffer on account of the same.
Lessee shall cause the same to be removed or dissolved by bond.
SECTION 18. BROKER. The Lessor and Lessee each represent and warrant that
they have not directly or indirectly dealt with any broker and that no
commission is due anyone as a result of this transaction.
SECTION 19. SIGNAGE. Lessor shall provide building standard identification
for Lessee on main entry sign for the Premises and at any directory signs and/or
directional signs located elsewhere on the Premises. Furthermore, Lessor grants
Lessee the right to install signage, at Lessee's sole cost and expense, on the
roof or facade of the Demised Premises provided, however, Lessor must provide
written consent (such consent not be unreasonably withheld or delayed) prior to
installation of any such signage.
SECTION 20. AMENDMENTS. This document shall become effective and binding only
upon the execution and delivery hereof by both Lessor and Lessee. All
negotiations, considerations, representations and understandings between Lessor
and Lessee are incorporated herein and this Lease may be modified or altered
only by agreement in writing between Lessor and Lessee.
SECTION 21. PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation or
construction of the meaning of the provisions of this
22
Lease.
SECTION 22. GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts, as the
same may from time to time exist.
SECTION 23. Lessee shall not assign or sublet all or any portion of the
Demised Premises without prior consent of Lessor, which consent shall not be
unreasonably withheld or delayed; provided that no such consent shall be
required by any assignment or sub-lease resulting by operation of law or to an
entity that is controlled by controls or is under common control with Lessee.
However, in no event shall Lessee be relieved of primary obligations under this
Lease.
WITNESS the execution hereof, under seal, in any number of counterpart
copies, each of which counterpart copies shall be deemed an original for all
purposes, as of the day and year first above written.
RJR VENTURES LIMITED PARTNERSHIP
By Cornerstone Corporation
General Partner
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
GETRONICS WANG CO.
By /s/ Xxxx Xxxxx
------------------------------------
Duly authorized
23
LEASE AMENDMENT
This Lease Amendment is made as of the 28 day of July, 2000 by and between
RJR Ventures Limited Partnership, a Massachusetts limited partnership having an
address of 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, as landlord ("Landlord"),
and Getronics Wang Co., LLC, a Delaware limited liability company having an
address of 000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx and the successor in
interest to Wang Laboratories, Inc., and Getronics Wang Co., as tenant
("Tenant").
W I T N E S E T H
WHEREAS, Tenant leases certain premises from Landlord located in Tewksbury,
Middlesex County, Massachusetts, pursuant to 3 separate Leases between Landlord
and Tenant, one dated July 1, 1996 (the "1996 Lease"), one dated July 1, 1998
(the "1998 Lease"), and one dated May 1, 2000 (the "2000 Lease") (the 1996
Lease, the 1998 Lease, and the 2000 Lease are sometimes collectively referred to
herein as the "Leases"); and
WHEREAS, Landlord and Tenant have agreed to amend the Leases;
NOW, THEREFORE, the parties hereto, for themselves, their successors and
assigns, mutually covenant and agree that the Leases are hereby amended as
follows:
1. Article 1, Section 2 of the 1996 Lease is amended, effective as of
October 1, 2000, to provide that the Demised Premises, as defined in such
section, will be reduced by approximately 102,000 square feet by removing from
the definition of Demised Premises all of the high bay warehousing and floor
8-G-2. Tenant agrees to fully vacate such portion of the Demised Premises and
give up all right to occupy such premises no later than October 1, 2000. From
and after October 1, 2000, the term "Demised Premises" shall thereafter consist
of approximately 330,500 square feet as shown on Exhibit B attached hereto,
which shall replace the present Exhibit B to the 1996 Lease.
2. Article 1, Section 2 of each of the Leases is hereby further amended
to provide that effective October 1, 2000, the number of parking spaces to which
Tenant is entitled under the Lease shall increase to 3 spaces per 1,000 square
feet of Demised Premises.
1
3. Article V, Section 1 of each of the Leases, is amended to provide that
effective January 1, 2001, the Base Rent all of the Demised Premises then
occupied by Tenant under each of the Leases shall be $7.25 per square foot.
4. Article II, Section 1 of the 1996 Lease and the 2000 Lease is amended
to provide that the Initial Term shall expire at midnight on June 30, 2006 (the
same date the term of the 1998 Lease expires).
5. Article XVII, SPECIAL PROVISIONS, Option to Extend, Section 1 of the
1996 Lease is amended by deleting the words "at least three hundred and sixty
five days (365) and replacing the same with "fifteen months (15)". In all other
respects this section remains the same.
6. Article XVII, SPECIAL PROVISIONS, Option to Extend, Section 2(a) of
the 1996 Lease is amended by deleting eighty-five (85%) percent and replacing
the same with ninety (90%) percent. The 1998 Lease and the 2000 Lease are also
amended to provide that the same extension option set forth in Article XVII,
Section 2(a) of the 1996 Lease shall also apply to the 1998 and the 2000 Lease,
provided, however, that in order to be validly exercised the option shall be
exercised with respect to all of the Demised Premises then occupied under all of
the Leases.
Notwithstanding anything to the contrary in this document or any of the
Leases, Lessor reserves the following Right: within 30 days of Lessee giving its
written notice, Lessor may give written notice of its intention to purchase
Lessee's Option to Extend. Upon Lessor's notice and payment of the Option
Purchase Price, the Option to Extend will terminate and the Lease will expire on
June 30, 2006. The Option Purchase Price is $5 million payable at the end of the
Term. The Purchase Price will be reduced by $17.75 per square foot for any space
that the Lessee relinquishes in accordance with this Lease.
7. Article XVII, SPECIAL PROVISIONS, Section 2, Right of First Refusal
and Section 3, Right to Expand, of the 1996 Lease are hereby deleted and
replaced with the following provision as Section 3:
"Tenant shall have a right of first offer to lease up to 50,000 square
feet in additional space at
2
the Premises described as Level 7-1 and shown on the attached
replacement Exhibit F, subject to one terms and considerations of this
section. If Landlord decides to market this space for lease, Landlord
shall first provide written notice to Tenant of such intention, such
notice to contain a specified rent and a specified allowance for
tenant improvements. Tenant shall have 15 days from the date of
Landlord's notice to provide written notice to Landlord that Tenant
desires to lease up to 50,000 square feet of such premises on the
terms set forth in Landlord's notice. If Tenant provides such notice,
Tenant shall have 7 days from the date of Tenant's notice to enter a
lease amendment for such premises prepared by Landlord reflecting the
terms of Landlord's notice. If Tenant fails to either provide its
notice or to execute and deliver the required lease amendment within
the time required, Landlord shall be free to market such additional
premises to any party on terms not materially more favorable to the
tenant than those described in Landlord's notice. Tenant's rights
under this Section shall only apply if at both the time of delivery of
Tenant's notice and at the time of execution of the lease amendment
for the additional premises there exists no event of default that
remains uncured hereunder."
8. Article XVI, Section 1 of the 1998 Lease is hereby deleted.
9. Article XVI, Section 2 of the Lease is hereby deleted and replaced
with the following:
"Lessor and Lessee agree that a reasonable portion of the Premises and
the Parking lots in their entirety and all other land areas of the
site shall be treated as common areas and Lessee shall pay for its
pro-rata share of all taxes, insurance and expenses related thereto."
10. Tenant shall further surrender an additional approximately 123,500
square foot portion of the Demised Premises under the 1996 Lease, consisting of
Floors 7-G-2,
3
7-1 and 6-1, by December 31, 2000. Tenant shall use best efforts to vacate such
premises as soon as possible thereafter and Tenant's obligation to pay Base Rent
for such premises shall terminate upon Tenant's fully vacating such premises.
Tenant's obligation to pay additional rent for real estate taxes, insurance and
operating expenses for such surrendered premises shall continue until the
earlier of June 30, 2001 or the date Landlord enters a lease with another Tenant
for all or any portion of such premises, and upon execution of such new lease
Tenant's obligation to pay such additional rent shall cease with respect to all
or such portion of the surrendered premises to which such new lease applies.
11. Tenant shall further surrender an additional approximately 22,000
square foot portion of the Demised Premises under the 1998 Lease, consisting of
Floors 5-2, by December 31, 2000. Tenant shall use best efforts to vacate such
premises as soon as possible thereafter and Tenant's obligation to pay Base Rent
for such premises shall terminate upon Tenant's fully vacating such premises.
Tenant's obligation to pay additional rent for real estate taxes, insurance and
operating expenses for such surrendered premises shall continue until the
earlier of June 30, 2001 or the date Landlord enters a lease with another
Tenant for all or any portion of such premises, and upon execution of such new
lease Tenant's obligation to pay such additional rent shall cease with respect
to all or such portion of the surrendered premises to which such new lease
applies.
12. On January 1, 2004, Tenant shall have the further option to surrender
an additional 50,000 square foot portion of the Demised Premises under the
Leases by providing 90 days prior written notice to Landlord of its intention to
so surrender such premises, provided that the Landlord shall have the right to
approve where the premises are to be surrendered within 30 days of the date of
Tenant's notice, such consent not to be arbitrarily withheld. Failure to approve
or reject the premises so identified in Tenant's notice shall be deemed an
acceptance of the premises so selected by Tenant. In the event Landlord approves
such notice, Tenant shall vacate such premises as soon as practical thereafter
and Tenant's obligation to pay Base Rent and all additional rent for such
premises shall terminate upon Tenant's vacating such premises.
4
13. Landlord shall pay Tenant $800,000.00 to Tenant for Tenant's
relocation and fit-up expenses. Such amount shall be paid to Tenant on January
1, 2001, and such amounts shall be applied fully to building improvements by
Tenant as Tenant determines in its sole discretion; provided that approximately
$200,000.00 shall be paid by Tenant to replace and make other improvements to
the roof of Building 7 pursuant to plans and specifications mutually agreed upon
by Landlord and Tenant.
14. Upon the execution hereof Tenant shall provide Landlord with a full
and complete guarantee by tenant's parent company, Getronics, NV, of Tenant's
obligations under the Leases, as the same are amended hereby, such Guaranty to
be in the form attached hereto.
As amended hereby, the Leases are hereby ratified and confirmed and remain
in full force and effect. Executed under seal as of the date first above
written.
RJR Ventures Limited Partnership Getronics Wang Co., LLC
By: Cornerstone Corporation, By: /s/ Xxxxx Xxxxxxx
its General Partner -----------------------------
Its: President, N.A. Operations
By: /s/
-------------------
Its: VICE PRESIDENT
Attachments to Lease Amendment
New Exhibit B to replace the present Exhibit B to the 1996 Lease
New Exhibit F to replace the present Exhibit F to the 1996 Lease
Form of Guaranty
5
CORPORATE GUARANTY
This Corporate Guaranty is made between Getronics N.V., a company organized
under the laws of The Netherlands (the "Guarantor") and RJR Venture Limited
Partnership, 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, (the "Landlord") in regard to
the Lease Amendment signed on _________2000 by and between Getronics Wang Co.
LLC ("Tenant"), 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000 and Landlord and the
underlying lease agreements referenced therein (collectively the "Leases") for
the lease of facilities at 000 Xxxxx Xxxx, Xxxxxxxxx, XX.
As a material inducement to the Landlord to enter into the Leases, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Guarantor, the Guarantor, hereby unconditionally and
irrevocably guarantees the complete and timely payment and performance of each
and every obligation of Tenant under the Leases, as the same may be modified or
amended from time to time, the payment of all of the Landlord's costs to cure an
Event of Default and the payment of all of the Landlord's costs to enforce the
provisions of this guaranty ("Guaranty"). This Guaranty is an absolute, primary,
and continuing guaranty of payment and performance and is independent of
Tenant's obligations under the Leases, as modified or amended from time to time.
Guarantor waives any right to require the Landlord to (a) join Tenant with
Guarantor in any suit arising under this Guaranty, (b) proceed against or
exhaust any other remedy in the Landlord's power. The Landlord may, without
notice or demand and without affecting Guarantor's liability hereunder, from
time to time, compromise, extend, waive or otherwise modify any or all of the
terms of the Leases. Guarantor hereby waives all demands for performance,
notices of performance, and notice of acceptance of this Guaranty.
The liability of Guarantor under this Guaranty will not be affected by (i)
the release or discharge of Tenant from, or impairment, limitation or
modification of, Tenant's obligations under the Leases, as modified or amended
form time to time, in any bankruptcy, receivership, or other debtor relief
proceeding, whether state or federal and whether voluntary or involuntary; (ii)
the rejection of disafformance of the Leases, as
modified or amended from time to time, in any such proceeding; (iii) the
cessation from any cause whatsoever of the liability of Tenant under the Leases,
as modified or amended from time to time; (iv) any transfer of (by assignment or
otherwise) of all or any part of Tenant's rights under the Leases or of the
Tenant's interest in the leasehold estate created hereby or the Leased Premises,
or any other transfer or transaction which, by the terms of the Leases
constitute a transfer of the Tenant's rights under the Leases; or (v) the breach
or unenforceability of any agreement, commitment or guaranty for the benefit of
Tenant, or the Guarantor.
If Landlord at any time is compelled to take any action or proceeding in
court or otherwise to enforce or compel compliance with the terms of the Leases,
as modified or amended from time to time, or this Guaranty, the Guarantor shall,
in addition to any other rights or remedies to which the Landlord may be
entitled hereunder or at law or in equity, be obligated to pay all costs,
including reasonable attorney's fees, incurred or expended by the Landlord in
connection therewith.
Any Capitalized term not defined in the Guaranty has the meaning ascribed
to it in the Leases.
Agreed to this 14th day of July 2000.
GETRONICS N.V. RJR VENTURE LIMITED PARTNERSHIP
CORNERSTONE CORP, GEN. PARTNER
By: /s/ C.G. van Luijk By: Cornerstone Corporation, its
--------------------------- General Partner
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: C.G. van Luijk Name: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Title: President & CEO Title: VICE-PRESIDENT
-------------------------------
SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is made as of the 1st day of
October, 2000 by and between Getronics WangCo., LLC, a Delaware limited
liability company having a place of business at 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX
00000 (hereinafter referred to as "Sublessor"), and Getronics Government
Solutions, LLC, a Delaware limited liability company having a place of business
at 0000 Xxxxxxxx Xxxxx, XxXxxx, XX 00000 (hereinafter referred to as
"Sublessee").
W I T N E S E T H
WHEREAS, the RJR Ventures Limited Partnership, as landlord ("Landlord"),
leased certain premises to Sublessor, as tenant pursuant to a lease dated July
1, 1996, as the same is affected by a Lease Amendment dated as of July 28, 2000
(as so amended, the "Lease"), copies of which have been provided to Sublessee;
and
WHEREAS, Sublessee desires to sublet from Sublessor the premises under the
Lease as more particularly shown on the plan attached hereto as Exhibit A.
NOW, THEREFORE, the parties hereto, for themselves, their successors and
assigns, mutually covenant and agree as follows:
1. SUBLET PREMISES. Sublessor does hereby sublease to Sublessee and
Sublessee does hereby sublease from Sublessor, for the term and upon the
conditions hereinafter provided the premises consisting of approximately 75,000
square feet of floor area in building 7-G-1 and 8-G-1, all as more particularly
shown on Exhibit A hereto, including all appurtenant rights thereto (the "Sublet
Premises").
2. TERM. The term of this Sublease shall commence on November 15,
2000, (the "Commencement Date") and shall end at 11:59 p.m. on the 30 day of
June, 2006, or on such earlier date as the Lease may expire or be terminated
pursuant to a termination of the Lease (the "Sublease Term"). Upon execution
of this Sublease, Sublessee shall have a license to enter the Sublet Premises
prior to the Commencement Date for the purpose of preparing the Sublet
Premises for Sublessee's use and occupancy, subject to the prior written
consent of Landlord. Any entry to the Sublet Premises prior to the
Commencement Date shall be on the same terms and conditions of this Sublease
except that Sublessee shall not be responsible for the rent due hereunder
until the Commencement Date.
3. RENT AND ADDITIONAL RENT. Beginning on the Commencement Date,
Sublessee shall pay to Sublessor rent at an annual rate of $911,392.00 ("Base
Rent"), in equal monthly installments of $75,949.33 (the "Monthly Base Rent") on
the first day of each
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calendar month during the Sublease Term in lawful money of the United States of
America, without demand, deduction, offset or abatement. If the Sublease Term
includes a partial calendar month at its beginning or end, the monthly
installment of Base Rent for such partial month shall be prorated at the rate of
1/30 of the monthly installment for each day in such partial month within the
Sublease Term and shall be payable in advance on the first day of such partial
month occurring within the Sublease Term. The Base Rent shall be paid to
Sublessor at its offices located at 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000, or
such other place as Sublessor may designate in writing.
Sublessee shall not be required to pay Sublessor the additional rent
payable under the Lease for property taxes, insurance, or operating expenses,
but Sublessee shall maintain at its expense worker's compensation, liability and
property damage, and such other insurance as required under the Lease. Such
insurance shall be adequate in all respects to comply with the provisions of the
Lease and shall comply with the provisions of Section 12 below. Sublessee shall
also be required to provide or contract for its own cleaning services, and
Sublessor shall not be required to perform any cleaning services within the
Sublet Premises. In addition to the Base Rent, Sublessee shall also pay all
charges for all utilities serving the Sublet Premises. Such amounts shall be
paid directly to the utility company providing the particular utility service,
or, if such service is provided by and billed to Landlord or Sublessor,
Sublessee shall pay to each such party, as applicable, the charges for utilities
attributable to the Sublet Premises as additional rent hereunder. In addition to
Base Rent, Sublessee shall also pay Sublessor, as additional rent hereunder, any
charges imposed by Landlord for Sublessee's failure to comply with the
provisions of the Lease. Sublessee shall also pay to Sublessor, as additional
rent hereunder, all charges for any additional services requested by Sublessee
and provided to Sublessee for the portion of the Sublet Premises during the
Sublease Term, including, without limitation, charges and fees for alterations
and after-hours heating and air-conditioning services. Sublessee shall be
responsible for paying directly to telephone companies providing telephone
services to the Sublet Premises all telephone charges in respect of the Sublet
Premises.
All amounts payable by Sublessee to Sublessor hereunder shall be paid
within 10 days of Sublessor's invoice for the same. Sublessee's obligations to
pay any and all amounts due under this Sublease shall survive the termination of
this Sublease.
4. USE. Sublessee will use and occupy the Sublet Premises solely for uses
permitted under the Lease, and the Sublet Premises will not be used for any
other purposes without the prior written consent of Landlord and Sublessor.
Sublessee shall also comply with all laws governing or affecting Sublessee's use
of the Premises, and Sublessee acknowledges that Sublessor has made no
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representations or warranties concerning whether the permitted uses comply with
such laws.
5. CONDITION OF SUBLET PREMISES. Sublessee hereby acknowledges that the
Sublet Premises are hereby subleased in an "as is" condition, without
representation or warranty of any kind.
6. ALTERATIONS. Sublessee shall not make any alteration, improvement,
decoration or installation (hereinafter called "Alterations") in or to the
Sublet Premises without in each instance obtaining the prior written consent of
Sublessor and Landlord (if Landlord's consent is required to be obtained under
the Lease) and otherwise in compliance with the Lease. Sublessor's consent shall
not be required under this section for usual and customary office art work and
pictures that are temporary in nature and do not constitute fixtures.
7. SUBLESSEE'S PERSONAL PROPERTY. Upon the expiration or earlier
termination of this Sublease, Sublessee shall remove all of its furniture,
furnishings and equipment, shall repair all damage resulting from such removal
or its use of the Sublet Premises, and shall surrender the Sublet Premises, as
so required, in good condition, subject only to reasonable wear and tear and to
damage, if any, by fire or other casualty. The obligations of Sublessee as
herein provided shall survive the termination of this Sublease.
8. INCORPORATION AND OBSERVANCE OF THE TERMS OF THE LEASE. All of the
terms, provisions, covenants and conditions of the Lease are incorporated herein
by reference and hereby made a part of and are superior to this Sublease, except
as herein otherwise expressly provided, and except that Sublessee shall be
obligated to pay only the rent and additional rent provided for in this Sublease
Agreement and not the amounts of rent provided to be paid under the Lease, and
as between the parties hereto, Sublessee hereby assumes and agrees to perform
all of the obligations of and shall have all the rights of, Sublessor as tenant
under the Lease (but only with respect to the portion of the Sublet Premises
occupied by Sublessee for the Sublease Term). Sublessor shall have all of the
rights of the Landlord under the Lease as against Sublessee, but Sublessor shall
have not obligation to observe and perform the terms, covenants and conditions
under the Lease required to be performed by Landlord, and Sublessor shall not be
liable to Sublessee for any failure or delay in Landlord's performance of its
obligations as landlord under the Lease, provided, however, that Sublessor shall
use reasonable efforts to cause Landlord to observe and perform those terms,
covenants and conditions required to be observed and performed by Landlord under
the Lease. If the Lease terminates before the end of the term under the Lease,
Sublessor shall not be liable to Sublessee for any damages arising out of such
termination, except if the Lease terminates due to a default by Sublessor under
the Lease, and such default is not caused by the default, negligence or willful
misconduct of Sublessee, in which
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event Sublessor shall be liable to Sublessee only for direct damages arising out
of such termination.
Notwithstanding any contrary provision of the Lease or this Sublease,
Sublessee shall have no right to extend the term of this Sublease or to expand
the Sublet Premises. To the extent Sublessor has extension and/or expansion
rights under the Lease, Sublessor shall have the right to exercise or not
exercise such rights as Sublessor may determine in its sole discretion. In the
event any such rights exist and are exercised by Sublessor, Sublessee shall have
no right to extend the term of this Sublease or to expand the Sublet Premises,
and Sublessor may offer or refuse to offer such rights to Sublessee as Sublessor
may determine in its sole discretion. Notwithstanding any contrary provision of
the Lease or this Sublease, Sublessee shall have no right to receive all or any
portion of any payments made or credited to Sublessor in lieu of the exercise of
its extension rights, and Sublessee shall have no right to receive all or any
portion of any payments made or credited to Sublessor for relocation and fit up
expenses under the Lease.
9. SUBLESSEE'S AND SUBLESSOR'S COVENANTS. Sublessee covenants and agrees
that with respect to the portion of the Sublet Premises occupied by Sublessee
during the Sublease Term, Sublessee will not take or permit any action which
would constitute a default under the Lease or omit to do anything which
Sublessee is obligated to do under the terms of this Sublease or which would
constitute a default under the Lease. So long as Sublessee is not in default of
its obligations hereunder, Sublessor covenants and agrees that it (a) will pay
the rent and any additional rent payable as required under the Lease, (b) will
not do anything which would constitute a default under the Lease, and (c) will
not enter into a voluntary termination of the Lease, or agree to any amendment
or modification of the Lease that affects any of Sublessor's rights or
obligations hereunder without the prior written consent of Sublessee.
10. INDEMNIFICATION. To the fullest extent permitted by law, Sublessee
shall and hereby does indemnify and hold Sublessor and Landlord harmless from
and against any and all actions, claims, demands, damages, liabilities, expenses
and judgments (including, without limitation, attorney's fees and expenses)
asserted against, imposed upon or incurred by Sublessor or Landlord by reason of
(a) any violation caused, suffered or permitted by Sublessee, its agents,
servants, employees or invitees, of any of the terms, covenants or conditions of
the Lease or this Sublease, and (b) any damage or injury to persons or property
occurring upon or in connection with the use or occupancy of the portion of
Sublet Premises occupied by Sublessee, expect as a result of the negligent acts
or omissions of Sublessor or Landlord or their agents, employees or invitees.
To the fullest extent permitted by law, Sublessor shall and
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hereby does indemnify and hold Sublessee harmless from and against any and all
actions, claims, demands, damages, liabilities, expenses and judgments
(including, without limitation, attorney's fees and expenses) asserted against,
imposed upon or incurred by Sublessee by reason of any damage or injury to
persons or property occurring upon or in connection with the use of the common
areas of the building in which the Premises are located or the lot upon which
the building is constructed, except as a result of the negligent acts or
omissions of Sublessee or its agents, employees or invitees.
11. ASSIGNMENT AND SUBLEASE. Notwithstanding any provision of the Lease to
the contrary, Sublessee shall not assign, mortgage, pledge or otherwise encumber
this Sublease, nor sublet the Sublet Premises or any part thereof, without in
each instance obtaining the prior written consent of Sublessor, which consent
shall not be unreasonably withheld, and without in each instance obtaining the
prior written consent of Landlord in the event that Landlord's consent is
required to be obtained under the Lease. As between Sublessor and Sublessee, the
determination of whether Landlord's consent is required under the Lease shall
be made by Sublessor in its sole discretion.
12. INSURANCE. During the Sublease Term, Sublessee shall maintain
insurance for the Sublet Premises of such types, in such policies, with such
endorsements and coverages, and in such amounts as may be required under the
Lease. All insurance policies shall name Landlord and Sublessor as additional
insureds and loss payees and shall contain an endorsement that such policies may
not be modified or canceled without 30 days prior written notice to Landlord,
Main Tenant, and Sublessor. Sublessee shall promptly pay all insurance premiums
and shall provide Landlord and Sublessor with policies or certificates
evidencing such insurance on the Commencement Date and thereafter upon demand of
Sublessor or Landlord.
14. DEFAULTS AND REMEDIES. The following shall constitute an event of
default (each, an "Event of Default") under this Sublease:
(i) Sublessee shall fail to pay rent or other sums payable under
this Sublease within 5 business days after notice that such payment is due;
(ii) Sublessee shall fail to cure any other default under this
Sublease within thirty (30) days after written notice thereof from Sublessor to
Sublessee;
(iii) Sublessee shall make an assignment for the benefit of creditors,
shall admit in writing its inability to pay its debts as they come due, or shall
file a petition for liquidation or for reorganization or any arrangement or any
other relief under any provision of any federal or state bankruptcy or
insolvency law;
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(iv) an involuntary petition under any provision of any federal or
state bankruptcy law shall be filed against Sublessee and not be dismissed
within ninety (90) days thereafter; or
(v) a lien or other encumbrance shall be filed against Sublessee's
leasehold interest and not be discharged within ten (10) days thereafter.
Upon the occurrence of an Event of Default, Sublessor may, in addition to
and not in derogation of any remedies for any proceeding breach of covenant,
immediately or at any time thereafter and without demand or notice, enter into
and upon the Sublet Premises or any part thereof in the name of the whole, or
mail a notice of termination addressed to Sublessee, and repossess the same as
of Sublessee's former estate and expel Sublessee and those claiming through or
under Sublessee and remove its and their effects without being deemed guilty of
any manner of trespass and without prejudice to any remedies which might
otherwise be used for arrears of rent or prior breach of covenant, and upon such
entry or mailing as aforesaid this Sublease shall terminate, Sublessee hereby
waiving all statutory rights to the extent such rights may be lawfully waived.
Sublessor, without notice to Sublessee, may store Sublessee's effects and those
of any person claiming through or under Sublessee at the expense and risk of
Sublessee, and, if Sublessor so elects, may sell such effects at public auction
or private sale and apply the net proceeds to the payment of all sums due to
Sublessor from Sublessee, if any, and pay over the balance, if any to Sublessee.
Sublessee covenants and agrees, notwithstanding any termination of this
Sublease under any of the provisions of this Section or any entry or re-entry by
Sublessor, whether by summary proceedings, termination or otherwise, to pay and
be liable for on the days originally fixed herein for the payment thereof,
amounts equal to the several installments of rent and other charges reserved as
they would, under the terms of this Sublease, become due if this Sublease had
not been terminated or if Sublessor had not entered or re-entered as aforesaid
and whether the Sublet Premises be relet or remain vacant, in whole or in part,
or for a period less than the remainder of the term, or for the whole thereof,
provided that in the event the Sublet Premises be relet by Sublessor, Sublessee
shall be entitled to a credit equal to the net amount of rent received by
Sublessor in reletting, after deduction of all expenses incurred in reletting
the Sublet Premises (including but not limited to remodeling costs, brokerage
fees, and the like) and in collecting rent in connection therewith. Sublessor
shall be required to mitigate any damages incurred as a result of Sublessee's
default as may be required by applicable law.
In the event that Base Rent or other payments are not made by the date when
such payments are due, then in addition to all other remedies otherwise
available to Sublessor, said past due payments
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shall carry interest from the date any such payment was due to the date that the
payment has actually been received by Sublessor at an annual rate equal to two
(2) points above the then so-called "base rate" of Fleet National Bank.
Sublessee specifically agrees to pay any such interest to Sublessor along with
the payment of rent and other charges.
15. ENTIRE AGREEMENT. This Sublease, together with those provisions of the
Lease applicable hereto, contains all of the covenants, agreements, terms,
provisions, conditions, warranties and understandings relating to the leasing of
the Sublet Premises and Sublessor's obligations in connection therewith, and
neither Sublessor nor any agent or representative of Sublessor has made or is
making, and Sublessee in executing and delivering this Sublease is not relying
upon, any warranties, representations, promises or statements whatsoever, except
to the extent expressly set forth in this Sublease. The failure of Sublessee or
Sublessor to insist in any instance upon the strict keeping, observance or
performance of any covenant, agreement, term, provision or condition of this
Sublease or to exercise any election herein contained shall not be construed as
a waiver or relinquishment for the future of such covenant, agreement, term,
provision, condition or election, but the same shall continue and remain in full
force and effect. No waiver or modification of any covenant, agreement, term,
provision or condition of this Sublease shall be deemed to have been made unless
expressed in writing and signed by Landlord, Main Tenant, Sublessee and
Sublessor. No surrender of possession of the Sublet Premises or of any part
thereof or of any remainder of the term of this Sublease shall release Sublessee
from any of its obligations hereunder unless accepted by Sublessor in writing.
The receipt and retention by Sublessor of monthly Base Rent or additional rent
from anyone other than Sublessee shall not be deemed a waiver of the breach by
Sublessee of any covenant, agreement, term or provision of this Sublease, or as
the acceptance of such other person as a tenant, or as a release of Sublessee
from the further keeping, observance or performance by Sublessee of the
covenants, agreements, terms, provisions and conditions herein contained. The
receipt and retention by Sublessor of monthly Base Rent or additional rent with
knowledge of the breach of any covenant, agreement, term, provision or condition
herein contained shall not be deemed a waiver of such breach.
16. SUCCESSORS AND ASSIGNS. The obligations of this Sublease shall bind
and benefit the successors and permitted assigns of the parties with the same
effect as if mentioned in each instance where a party hereto is named or
referred to, provided that this section shall not be construed as a consent to a
further sublease of the Sublet Premises if such consent has not been obtained as
required under Section 12.
17. NOTICES. All notices required or permitted to be given hereunder shall
be in writing and delivered by hand, by a
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commercial overnight courier, or mailed postage prepaid by U.S. certified or
registered or mail, addressed to the address set forth in the first paragraph of
this Sublease, or to such other address as shall be designated by written notice
given to the other party at the above address; and any such notice so sent shall
be deemed received; when received if delivered by hand; on the next business day
after depositing of such notice with a private overnight courier if delivered
by private overnight courier; and 3 business days after depositing of such
notice with the U.S. Postal Service if delivered by U.S. registered or certified
mail.
18. LANDLORD'S CONSENT. This Sublease shall not take effect until
Landlord's written consent to this Sublease is obtained or until Sublessor
determines, in its sole discretion, that such consent is not required under the
Lease.
IN WITNESS WHEREOF, Sublessee and Sublessor have duly executed this
Sublease as of the day and year first above written.
Sublessor: Sublessee:
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxx
----------------------------- -----------------------------
Its: V.P. FINANCE Its:
Hereunto duly authorized Hereunto duly authorized
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