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Exhibit 10.22
LEASE
Building 1
000 Xxxxxxx Xxxx
Xxxxxxxxx, XX
LANDLORD: Teachers Insurance and Annuity
Association of America
TENANT: Impact Sciences Corporation
DATED: As of September 29, 1995
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TABLE OF CONTENTS
ARTICLE CAPTION PAGE
I. BASIC LEASE PROVISIONS
1.1 Introduction
1.2 Basic Data
1.3 Additional Definitions
II. PREMISES AND APPURTENANT RIGHTS
2.1 Lease of Premises
2.2 Appurtenant Rights and Reservations
III. BASIC RENT
3.1 Payment
IV. COMMENCEMENT AND CONDITION
4.1 Commencement Date
4.2 Condition of the Premises
V. USE OF PREMISES
5.1 Permitted Use
5.2 Installation and Alterations by Tenant
VI. ASSIGNMENT AND SUBLETTING
6.1 Prohibition
VII. RESPONSIBILITY FOR REPAIRS AND CONDITIONS
OF PREMISES; SERVICES TO BE FURNISHED BY LANDLORD
7.1 Landlord Repairs
7.2 Tenant's Agreement
7.3 Floor Load - Heavy Machinery
7.4 Building Services
7.5 Electricity
VIII. REAL ESTATE TAXES
8.1 Payments on Account of Real Estate Taxes
8.2 Abatement
8.3 Alternate Taxes
IX. OPERATING EXPENSES
9.1 Definitions
9.2 Tenant's Payments
X. INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 Tenants Indemnity
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10.2 Public Liability Insurance
10.3 Tenant's Risk
10.4 Injury Caused by Third Parties
XI. LANDLORD'S ACCESS TO PREMISES
11.1 Landlord's Rights
XII. FIRE, EMINENT DOMAIN, ETC.
12.1 Abatement of Rent
12.2 Landlord's Right of Termination
12.3 Restoration
12.4 Award
XIII. DEFAULT
13.1 Tenant's Default
13.2 Landlord's Default
XIV. MISCELLANEOUS PROVISIONS
14.1 Extra Hazardous Use
14.2 Waiver
14.3 Covenant of Quiet Enjoyment
14.4 Landlord's Liability
14.5 Notice to Mortgagee or Ground Lessor
14.6 Assignment of Rents and Transfer of Title
14.7 Rules and Regulations
14.8 Additional Charges
14.9 Invalidity of Particular Provisions
14.10 Provisions Binding, Etc.
14.11 Recording
14.12 Notices
14.13 When Lease Becomes Binding
14.14 Paragraph Headings
14.15 Rights of Mortgagee or
Ground Lessor
14.16 Status Report
14.17 Security Deposit
14.18 Remedying Defaults
14.19 Holding Over
14.20 Waiver of Subrogation
14.21 Surrender of Premises
14.22 Substituted Space
14.23 Brokerage
14.24 Special Taxation Provisions
14.25 Hazardous Materials
14.26 Governing Law
14.27 Right of First Offer
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14.28 Option to Extend
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L E A S E
Preamble
THIS INSTRUMENT IS A LEASE, dated as of September 29 , 1995 in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
space in Building 1 (the "Building") which is one of those three certain
buildings known as Buildings 1, 2 and 3 (collectively called the "Buildings")
known as and numbered 000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx. The parties to
this instrument hereby agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. The following terms and provisions set forth basic data and,
where appropriate, constitute definitions of the terms hereinafter listed:
1.2 BASIC DATA.
LANDLORD: Teachers Insurance and Annuity
Association of America
LANDLORD'S ORIGINAL ADDRESS:
c/o Leggat XxXxxx Properties Management, L.P.
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
TENANT: Implant Sciences Corporation
TENANT'S ORIGINAL ADDRESS:
Building 1
000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
GUARANTOR: N/A
BASIC RENT: $108,829.50 per annum ($6.50 per rentable square foot per
annum) payable in equal monthly installments of $9,069.13
PREMISES RENTABLE AREA: Approximately 16,743 square feet.
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PERMITTED USES: Office and light manufacturing, but specifically
excluding any use which would cause any portion of the Premises to be
deemed a "place of public accommodation" as defined in the Americans
with Disabilities Act of 1990, as amended.
BUILDING ESCALATION FACTOR: 20.93%, as computed in accordance with the
Building Escalation Factor Computation.
PROPERTY ESCALATION FACTOR: 10.49% as computed in accordance with the
Property Escalation Factor Computation.
INITIAL TERM: Three (3) years commencing on the Commencement Date and
expiring at the close of the day immediately preceding the 3rd
anniversary of the Commencement Date, except that if the Commencement
Date shall be other than the first day of a calendar month, the
expiration of the Initial Term shall be at the close of the day on the
last day of the calendar month on which such anniversary date shall
fall.
SECURITY DEPOSIT: N/A.
1.3 ADDITIONAL DEFINITIONS.
MANAGER: Leggat XxXxxx Properties Management, L.P.
BUILDING RENTABLE AREA: 80,000 rentable square feet.
PROPERTY RENTABLE AREA: 159,654 rentable square feet.
BUSINESS DAYS: All days except Saturday, Sunday, New Year' s Day,
Washington's Birthday, Patriots Day, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day
(and the following day when any such day occurs on Sunday).
COMMENCEMENT DATE: As defined in Section 4.1.
DEFAULT OF TENANT: As defined in Section 13.1.
ESCALATION CHARGES: The amounts prescribed in Sections 8.1 and 9.2.
BUILDING ESCALATION FACTOR COMPUTATION: Premises Rentable Area divided
by 100% of the Building Rentable Area.
PROPERTY ESCALATION FACTOR COMPUTATION: Premises Rentable Area divided
by 100% of the Property Rentable Area.
FORCE MAJEURE: Collectively and individually, strike or other labor
trouble, fire or other casualty; governmental preemption of priorities
or other controls in connection with a
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national or other public emergency or shortages of, or inability to
obtain, fuel, supplies or labor resulting therefrom, or any other cause,
whether similar or dissimilar, beyond Landlord's reasonable control.
INITIAL PUBLIC LIABILITY INSURANCE: $1,000,000 per person; $3,000,000
per occurrence (combined single limit) for property damage, bodily
injury or death.
OPERATING EXPENSES: As set forth in Section 9. 1.
OPERATING YEAR: As defined in Section 9.1.
PREMISES: A portion of the Building as shown on Exhibit A annexed
hereto.
PROPERTY: The Buildings (Buildings 1, 2 and 3) situated at 000 Xxxxxxx
Xxxx, Xxxxxxxxx, XX and the land parcel on which they are located
(including roadways, parking lots and adjacent sidewalks).
TAX YEAR: As defined in Section 8.1.
TAXES: As determined in accordance with Section 8.1.
TENANTS REMOVABLE PROPERTY: As defined in Section 5.2.
TERMS OF THIS LEASE: The Initial Term and any extension thereof in
accordance with the provisions hereof.
UTILITY EXPENSES: As defined in Section 9.1.
EXHIBITS: The following Exhibits are annexed to this Lease and
incorporated herein by this reference:
Exhibit A - Plan showing Premises
Exhibit B - Intentionally omitted
Exhibit C - Rules and Regulations
Exhibit D - Plan Showing First Offer space
Exhibit E - Operating Expenses
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ARTICLE II
PREMISES AND APPURTENANT RIGHTS,
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for the
Term of this Lease and upon the terms and conditions hereinafter set
forth, and Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
appurtenant to the Premises, the non-exclusive right to use, and permit
its invitees to use in connection with others, public or common
lobbies, hallways, and common walkways necessary for access to the
Building, and if the portion of the Premises on any floor includes less
than the entire floor, the common toilets, corridors and elevator lobby
of such floor; but Tenant shall have no other appurtenant rights and
all such rights shall always be subject to reasonable rules and
regulations from time to time established by Landlord pursuant to
Section 14.7 and to the right of Landlord to designate and change from
time to time areas and facilities so to be used.
Notwithstanding the foregoing to the contrary, during the Term of this
Lease, Tenant shall have, as appurtenant to the Premises, the exclusive
right to use two (2) parking spaces in the parking lot (the "Tenant's
Spaces") which Tenant spaces are to be in a location mutually agreeable
to Landlord and Tenant. Tenant hereby acknowledges that Tenant shall,
at its sole cost and expense identify such Tenant's Spaces with signage
or other marking first approved in writing by Landlord. Landlord shall
have no obligation to police or enforce Tenant's exclusive right to use
Tenant's spaces.
(b) Excepted and excluded from the Premises are the ceiling, floor,
perimeter walls and exterior windows, except the inner surfaces
thereof, but the entry doors (and related glass and finish work) to the
Premises are a part thereof; and Tenant agrees that Landlord shall have
the right to place in the Premises (but in such manner as to reduce to
a minimum interference with Tenant's use of the Premises) interior
storm windows, subcontrol devices (by way of illustration, an electric
sub panel, etc.), utility lines, pipes, equipment and the like, in,
over and upon the Premises. Tenant shall install and maintain, as
Landlord may require, proper access panels in any hung ceilings or
walls as may be installed by Tenant in the Premises to afford access to
any facilities above the ceiling or within or behind the walls.
ARTICLE III
BASIC RENT
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
Landlord, commencing on the Commencement Date without offset,
abatement, deduction or
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demand, the Basic Rent plus Landlord's estimated amounts for Escalation
Charges. Such Basic Rent plus Landlord's estimated amounts for
Escalation Charges shall be payable in equal monthly installments, in
advance, on the first day of each and every calendar month during the
Term of this Lease, at Landlord's Original Address, or at such other
place as Landlord shall from time to time designate by notice to
Tenant, in lawful money of the United States. In the event that any
installment of Basic Rent is not paid within ten (10) days after the
due date thereof, Tenant shall pay, in addition to any Escalation
Charges or other additional charges due under this Lease, an
administrative fee equal to 5% of the overdue payment.
(b) Basic Rent and Escalation Charges for any partial month shall be
pro-rated on a daily basis, and if the first day on which Tenant must
pay Basic Rent and Escalation Charges shall be other than the first day
of a calendar month, the first payment which Tenant shall make to
Landlord shall be equal to a proportionate part of the monthly
installment of Basic Rent for the partial month from the first day on
which Tenant must pay Basic Rent and Escalation Charges to the last day
of the month in which such day occurs, plus the installment of Basic
Rent and Escalation Charges for the succeeding calendar month.
ARTICLE IV
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. The Commencement Date shall be December 1, 1996.
4.2 CONDITION OF THE PREMISES. Tenant acknowledges that Tenant is presently
in possession of the entire Premises pursuant to a separate Lease with
Landlord. Tenant hereby acknowledges and agrees to accept the Premises
on the Commencement Date in its then "as is" condition without
representation or warranty of Landlord of any kind, either express or
implied.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE.
(a) Tenant agrees that the Premises shall be used and occupied by
Tenant only for Permitted uses.
(b) Tenant agrees to conform to the following provisions during the
Term of this Lease:
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(i) Tenant shall cause all freight to be delivered to or
removed from the Building and the Premises in accordance with
reasonable rules and regulations established by Landlord therefor;
(ii) Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of doors and interior
surfaces of windows) or on any part of the Building outside the
Premises, any signs, symbol, advertisements or the like visible to
public view outside of the Premises. Landlord will not unreasonably
withhold consent for signs or lettering on the entry doors to the
Premises provided such signs conform to building standards adopted by
Landlord and Tenant has submitted a sketch of the sign to be placed on
such entry doors.
(iii) Tenant shall not perform any act or carry on any
practice which may injure the Premises, or any other part of the
Building, or cause offensive odors or loud noise or constitute a
nuisance or menace to any other tenant or tenants or other persons in
the Building or the Property;
(iv) Tenant shall, at its sole cost and expense: (x) in its
use of the Premises, the Building or the Property, comply with the
requirements of all applicable governmental laws, rules and regulations
including, without limitation, the Americans with Disabilities Act of
1990, as amended (the "ADA") and (y) pay for and perform any work
necessary to bring the Premises, the Building or the Property into
compliance with the ADA which work is required due to the Tenant's use
of the Premises, the Building or the Property for any purpose; and
(v) Tenant shall continuously throughout the Term of this
Lease occupy the Premises for the Permitted Uses and for no other
purposes.
5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions (including, for the purposes hereof,
wall-to-wall carpeting), or improvements in or to the Premises without
Landlord's prior written consent. Any such alterations, additions or
improvements shall (i) be in accordance with complete plans and
specifications prepared by Tenant and approved in advance by Landlord;
(ii) be performed in a good and workmanlike manner and in compliance
with all applicable laws; (iii) be performed and completed in the
manner required in Section 5.2(d) hereof; (iv) be made at Tenant's sole
expense and at such times as Landlord may from time to time designate;
and (v) become a part of the Premises and the property of Landlord. It
is agreed and understood that Landlord shall have the right to review
and approve all changes to any plans which Landlord shall have approved
pursuant to this Section 5.2(a). It is also agreed and understood that
Landlord shall not be deemed to be unreasonable in denying its consent
to alterations, additions and improvements to the Premises which affect
"Base Building Systems" (as said term is hereafter defined).
As used herein, the term "Base Building Systems" shall mean (i) any
mechanical, electrical or plumbing system or component of the Building
(including the Premises) (ii)
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the exterior of the Building (iii) the Building HVAC distribution
system (iii) any fire safety prevention/suppression system and (iv) any
structural element or component of the Building.
(b) All articles of personal property and all business fixtures,
machinery and equipment and furniture owned or installed by Tenant
solely at its expense in the Premises ("Tenant's Removable Property")
shall remain the property of Tenant and may be removed by Tenant at any
time prior to the expiration of this Lease, provided that Tenant, at
its expense, shall repair any damage to the Building caused by such
removal.
(c) Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit,
and that no mechanics or other lien for any such labor or materials
shall attach to or affect the reversion or other estate or interest of
Landlord in and to the Premises or the Property. Whenever and as often
as any mechanic's lien shall have been filed against the Premises or
the Property based upon any act or interest of Tenant or of anyone
claiming through Tenant, Tenant shall forthwith take such actions by
bonding, deposit or payment as will remove or satisfy the lien.
(d) All of the Tenant's alterations, additions and installation of
furnishings shall be coordinated with any work being performed by
Landlord and in such manner as to maintain harmonious labor relations
and not damage the Building or the Property or interfere with Building
construction or operation and, except for installation of furnishings,
shall be performed by Landlord's general contractor or, at Landlord's
election, by contractors or workmen first approved by Landlord.
Installation and moving of furnishings, equipment and the like shall be
performed only with labor compatible with that being employed by
Landlord for work in or to the Building and not to employ or permit the
use of any labor or otherwise take any action which might result in a
labor dispute involving personnel providing services in the Building or
the Property. Except for work by Landlord's general contractor, Tenant
before its work is started shall: secure all licenses and permits
necessary therefor and deliver copies thereof to Landlord; deliver to
Landlord a statement of the names of all its contractors and
subcontractors and the estimated cost of all labor and material to be
furnished by them; and cause each contractor to carry workmen's
compensation insurance in statutory amounts covering all the
contractor's and subcontractor's employees and comprehensive public
liability insurance and property damage insurance with such limits as
Landlord may reasonably require but in no event less than a combined
single limit of Two million and No/100ths ($2,000,000.00) Dollars (all
such insurance to be written in companies approved by Landlord and
insuring Landlord, Manager and Tenant as well as the contractors) , and
to deliver to Landlord certificates of all such insurance. Tenant
agrees to pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees, or independent contractors,
and not to cause or permit any liens for labor or materials performed
or furnished in connection therewith to attach to the Premises or the
Property and immediately to discharge any such liens which may so
attach and, at the request of Landlord to deliver to Landlord security
satisfactory to Landlord against liens arising out of the furnishing of
such labor and material. Upon completion of any work
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done on the Premises by Tenant, its agents, employees, or independent
contractors, Tenant shall promptly deliver to Landlord (i) original
lien releases and waivers executed by each contractor, subcontractor,
supplier, materialmen, architect, engineer or other party which
furnished labor, materials or other services in connection with such
work and pursuant to which all liens, claims and other rights of such
party with respect to labor, material or services furnished in
connection with such work are unconditionally released and waived and
(ii) copies of any certificate(s) of occupancy relating to the Premises
issued by the Town of Wakefield. Tenant shall pay within fourteen (14)
days after being billed therefor by Landlord, as an additional charge
hereunder, one hundred percent (100%) of any increase in real estate
taxes on the Property not otherwise billed to Tenant which shall, at
any time after commencement of the Term, result from any alteration,
addition or improvement to the Premises made by or on behalf of Tenant
(including Tenant's original installation and Tenant's subsequent
alterations, additions, substitutions and improvements), whether done
prior to or after the commencement of the Term of this Lease.
(e) In connection with the performance of any alterations,
improvements, changes or additions to the Premises as contemplated by
Article IV or Section 5.2 of this Lease, in the event that any such
improvement, alteration, change or addition to the Premises to be
performed by Tenant (the "Work") affects so-called "Base Building
Systems" and to the extent that such Work is not performed by Landlord
or a general contractor employed directly by Landlord, Tenant hereby
agrees to use the services of a construction management firm designated
by Landlord to oversee, coordinate and review all aspects of any such
Work. The cost and expense of the services of such construction manager
shall be borne by Tenant but only to the extent that such costs and
expenses are comparable to and competitive with the costs and expenses
charged by other firms engaged in construction management and oversight
services in the general geographic location of the Building for
services of a similar scope and type.
(f) To the maximum extent this agreement may be made effective
according to law, Tenant hereby agrees to indemnity and save Landlord
harmless from and against any and all loss, cost, penalties,
liabilities, damages and claims (including, without limitation,
reasonable attorney's fees) arising from any act, omission or
negligence of Tenant or Tenant's general contractor or its
subcontractors or their contractors, licensees, agents, servants or
employees arising from the performance of Tenant's Work caused to any
person or to the property of any person, the Building, or the Property.
This indemnity shall, to the maximum extent this agreement may be made
effective according to law, also extend to all loss, cost, penalties,
liability, damage, and claims of whatever nature asserted against the
Landlord arising out of the use or occupancy or passage or travel in,
over or upon, the Building or the Property by Tenant or by any person
claiming by, through or under Tenant including, without limitation,
Tenant's general contractor, its subcontractors and their respective
agents, employees, contractors and customers or arising out of any
delivery to or service supplied to the Premises or on account of or
based on anything whatsoever done in the Property by any of them
including, without limitation, any loss, cost, damages or claims
sustained or incurred by Landlord as the
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direct result of any tenant of the Building (including any retail
tenant) claiming a breach of the covenant of quite enjoyment or an
interference with ongoing business operations as the result of Tenant's
Work. The indemnity contained in this sub-paragraph (f) shall include
indemnity against all cost, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon and the
defense thereof with counsel approved by the Landlord. The indemnity
contained in this sub-paragraph (f) shall survive any expiration or
earlier termination of this Lease.
(g) In addition to and without limitation of any other right or remedy
provided to Landlord pursuant to this Lease, at law or in equity, and
in the event that (i) Tenant's general contractor shall fail or refuse
to continue to perform Tenant's Work for any reason or (ii) Tenant's
general contractor shall abandon the project and cease performing
Tenant's Work for more than ten (10) Business Days or (iii) all or any
portion of Tenant's Work is not performed strictly in accordance with
Tenant's plans and specifications (first approved by Landlord) as said
plans and specifications may be amended by change orders first approved
by Landlord and Manager, then, in any such case, Landlord shall have
the right, but not the obligation, to complete Tenant's Work (at
Landlord's option with or without Tenant's general contractor) in
accordance with Tenant's plans and specifications (first approved by
Landlord) at the sole cost and expense of Tenant. In the event that
Landlord shall exercise such right, Tenant agrees to pay Landlord
forthwith upon demand all such sums incurred by Landlord in so
completing Tenant's Work together with interest thereon at a rate equal
to three (3%) percent over the prime rate in effect from time to time
at the Bank of Boston (but in no event, more than the maximum rate
permitted under Massachusetts law) as an additional charge hereunder.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise, neither this Lease nor
the term and estate hereby granted, nor any interest herein or therein,
will be assigned, mortgaged, pledged, encumbered or otherwise
transferred and that neither the Premises nor any part thereof will be
encumbered in any manner by reason of any act or omission on the part
of Tenant, or used or occupied, by anyone other than Tenant, or for any
use or purpose other than a Permitted Use, or be sublet (which term,
without limitation, shall include granting of concessions, licenses and
the like) in whole or in part, or be offered or advertised for
assignment or subletting.
(b) The provisions of paragraph (a) of this Section shall apply to a
transfer (by one or more transfers) of a majority of the stock or
partnership interests, or other evidences of ownership of Tenant as if
such transfer were an assignment of this Lease; but such provisions
shall not apply to transactions with an entity into or with which
Tenant is
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merged or consolidated or to which substantially all of Tenant's assets
are transferred or to any entity which controls or is controlled by
Tenant or is under common control with Tenant, provided that in any of
such events (i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal
to the net worth of Tenant immediately prior to such merger,
consolidation or transfer, (ii) proof satisfactory to Landlord of such
net worth shall have been delivered to Landlord at least 10 days prior
to the effective date of any such transaction, and (iii) the assignee
agrees directly with Landlord, by written instrument in form
satisfactory to Landlord, to be bound by all the obligations of Tenant
hereunder including, without limitation, the covenant against further
assignment or subletting.
(c) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant, Landlord may, at any
time and from time to time, collect rent and other charges from the
assignee, subtenant or occupant, and apply the net amount collected to
the rent and other charges herein reserved, but no such assignment,
subletting, occupancy, collection or modification of any provisions of
this Lease shall be deemed a waiver of this covenant, or the acceptance
of the assignee, subtenant or occupant as a tenant or a release of the
original named Tenant from the further performance by the original
named Tenant hereunder. No assignment or subletting hereunder shall
relieve Tenant from its obligations hereunder and Tenant shall remain
fully and primarily liable therefor. No assignment or subletting, or
occupancy shall affect Permitted Uses. Upon demand, Tenant shall
reimburse Landlord for all costs and expenses including, without
limitation, reasonable attorneys fees sustained or incurred by Landlord
in connection with any request for Landlord's consent to or any attempt
by Tenant to assign or sublet under this Lease.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
Landlord agrees to keep in good order, condition and repair the roof,
public areas, exterior walls (including exterior glass) and structure
of the Building (including plumbing, mechanical and electrical systems
installed by Landlord but excluding any systems installed specifically
for Tenant's benefit or used exclusively by Tenant) and the HVAC system
serving the Premises, all insofar as they affect the Premises, except
that Landlord shall in no event be responsible to Tenant for the
condition of glass in the Premises or for the doors (or related glass
and finish work) leading to the Premises, or for any condition in the
Premises or the Building caused by any act or neglect of Tenant, its
agents, employees, invitees or contractors. Landlord shall cause the
paved portions of the Property to be kept reasonably free and clear of
snow, ice and refuse and shall cause the landscaped areas of the
Property to be maintained in a reasonably attractive appearance.
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Landlord shall not be responsible to make any improvements or repairs
to the Building other than as expressly in this Section 7.1 provided,
unless expressly provided otherwise in this Lease. All costs and
expenses incurred by Landlord in performing its obligations under this
Section 7.1 shall be included in Operating Expenses (as said term is
hereafter defined).
(b) Landlord shall never be liable for any failure to make repairs
which Landlord has undertaken to make under the provisions of this
Section 7.1 or elsewhere in this Lease, unless Tenant has given notice
to Landlord of the need to make such repairs, and Landlord has failed
to commence to make such repairs within a reasonable time after receipt
of such notice, or fails to proceed with reasonable diligence to
complete such repairs.
(c) Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option be furnished from
time to time, in whole or in part, by employees of Landlord or by the
Manager of the Property or by one or more third persons.
7.2 TENANT'S AGREEMENT, (a) Tenant will keep neat and clean and maintain in
good order, condition and repair the Premises and every part thereof,
excepting only those repairs for which Landlord is responsible under
the terms of this Lease, reasonable wear and tear of the Premises, and
damage by fire or other casualty and as a consequence of the exercise
of the power of eminent domain; and shall surrender the Premises, at
the end of the Term, in such condition. Without limitation, Tenant
shall continually during the Term of this Lease maintain the Premises
in accordance with all laws, codes and ordinances from time to time in
effect and all directions, rules and regulations of the proper officers
of governmental agencies having jurisdiction, and of the Boston Board
of Fire Underwriters, and shall, at Tenant's own expense, obtain all
permits, licenses and the like required by applicable law.
Notwithstanding the foregoing or the provisions of Article XII, Tenant
shall be responsible for the cost of repairs which may be necessary by
reason of damage to the Building caused by any act or neglect of Tenant
or its agents, employees, contractors or invitees (including any damage
by fire or any other casualty arising therefrom). Tenant shall be
responsible for the payment of all charges for gas or other utilities
used or consumed in the Premises.
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the
same with reasonable dispatch after such demand, Landlord may (but
shall not be required to do so) make or cause such repairs to be made
(the provisions of Section 14.18 being applicable to the costs thereof)
and shall not be responsible to Tenant for any loss or damage that may
accrue to Tenant's stock or business by reason thereof. Notwithstanding
the foregoing, Landlord may elect to take action hereunder immediately
and without notice to Tenant if Landlord reasonably believes an
emergency to exist.
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7.3 FLOOR LOAD - HEAVY MACHINERY, (a) Tenant shall not place a load upon
any floor in the Premises exceeding the floor load per square foot of
area which such floor was designed to carry or which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all
business machines and mechanical equipment, including safes, which
shall be placed so as to distribute the weight. Business machines and
mechanical equipment shall be placed and maintained by Tenant at
Tenant's expense in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance. Tenant shall not
move any safe, heavy machinery, heavy equipment, freight, bulky matter
or fixtures into or out of the Building without Landlord's prior
consent, which consent may include a requirement to provide insurance,
naming Landlord as an insured, in such amounts as Landlord may deem
reasonable.
(b) If such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only
persons holding a Master Rigger's License to do such work, and that all
work in connection therewith shall comply with applicable laws and
regulations. Any such moving shall be at the sole risk and hazard of
Tenant, and Tenant will exonerate, indemnity and save Landlord harmless
against and from any liability, loss, injury, claim or suit resulting
directly or indirectly from such moving.
7.4 BUILDING SERVICES, (a) Landlord shall also provide:
(i) Cold water (at temperatures supplied by the Town of
Wakefield) for drinking, lavatory and toilet purposes. If Tenant uses
water for any purpose other than for ordinary lavatory and drinking
purposes, Landlord may assess a reasonable charge for the additional
water so used, or install a water meter and thereby measure Tenant's
water consumption for all purposes. In the latter event, Tenant shall
pay the cost of the meter and the cost of installation thereof and
shall keep such meter and installation equipment in good working order
and repair. Tenant agrees to pay for water consumed, as shown on such
meter, together with the sewer charge based on such meter charges, as
and when bills are rendered, and in default in making such payment
Landlord may pay such charges and collect the same from Tenant as an
additional charge.
(ii) Access to the Premises twenty-four hours per day, subject
to reasonable security restrictions and restrictions based on emergency
conditions and all other applicable provisions of this Lease.
(b) Landlord reserves the right to curtail, suspend, interrupt and/or
stop the supply of water, sewage, electrical current, cleaning, and
other services, and to curtail, suspend, interrupt and/or stop use of
entrances and/or lobbies serving access to the Building, without
thereby incurring any liability to Tenant, when necessary by reason of
accident or emergency, or for repairs, alterations, replacements or
improvements in the judgment of Landlord desirable or necessary, or
when prevented from supplying such services or use by strikes,
lockouts, difficulty in obtaining materials, accidents or any other
cause beyond Landlord's control, or by laws, orders or inability, by
exercise of reasonable diligence, to obtain electricity, water, gas,
steam, coal, oil or other suitable fuel or power. No
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diminution or abatement of rent or other compensation, nor any direct,
indirect or consequential damages shall or will be claimed by Tenant as
a result of, nor shall this Lease or any of the obligations of Tenant
be affected or reduced by reason of, any such interruption,
curtailment, suspension or stoppage in the furnishing of the foregoing
services or use, irrespective of the cause thereof. Failure or omission
on the part of Landlord to furnish any of the foregoing services or use
shall not be construed as an eviction of Tenant, actual or
constructive, nor entitle Tenant to an abatement of rent, nor to render
the Landlord liable in damages, nor release Tenant from prompt
fulfillment of any of its covenants under this Lease.
7.5 ELECTRICITY, (a) Landlord shall permit Landlord's existing wires,
pipes, risers, conduits and other electrical equipment of Landlord to
be used for the purpose of providing electrical service to the
Premises. Tenant covenants and agrees that its electrical usage and
consumption will not disproportionately "siphon off" electrical service
necessary for other tenants of the Building and that its total
connected load will not exceed the maximum load from time to time
permitted by applicable governmental regulations nor the design
criteria of the existing Building electrical capacity. Landlord shall
not in any way be liable or responsible to Tenant for any loss or
damage or expense which Tenant may sustain or incur if, during the Term
of this Lease, either the quantity or character of electric current is
changed or electric current is no longer available or suitable for
Tenant's requirements due to a factor or cause beyond Landlord's
control. Tenant shall purchase and install all lamps, tubes, starters
and ballasts. Tenant shall pay all charges for electricity, HVAC, gas
and other utilities used or consumed in the Premises. Tenant shall bear
the cost of repair and maintenance of any electric or gas meter used or
to be installed in (or serving) the Premises.
(b) From time to time during the Term of this Lease and with reasonable
notice to Tenant, Landlord shall have the right to have an electrical
consultant selected by Landlord make a survey of Tenant's electric
usage, the result of which shall be conclusive and binding upon
Landlord and Tenant. In the event that such survey shows that Tenant
has exceeded the requirements set forth in paragraph (a), in addition
to any other rights Landlord may have hereunder, Tenant shall, upon
demand, reimburse Landlord for the costs of such survey.
ARTICLE VIII
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES, (a) For the purposes of this
Article, the term "Tax Year" shall mean the twelve-month period
commencing on the July 1 immediately preceding the Commencement Date
and each twelve-month period thereafter commencing during the Term of
this Lease; and the term "Taxes" shall mean
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all real estate taxes, special assessments and betterment assessments
assessed with respect to the Property for any Tax Year.
(b) Tenant shall pay to Landlord, as an Escalation Charge, an amount
equal to (i) Taxes for each Tax Year (or partial Tax year) falling
within the Term of this Lease, multiplied by (ii) the Property
Escalation Factor, such amount to be apportioned for any fraction of a
Tax Year in which the Commencement Date falls or the Term of this Lease
ends.
(c) Estimated payments by Tenant on account of Taxes shall be made
monthly and at the time and in the fashion herein provided for the
payment of Basic Rent. The monthly amount so to be paid to Landlord
shall be sufficient to provide Landlord by the time real estate tax
payments are due a sum equal to Tenant's required payments, as
estimated by Landlord from time to time, on account of Taxes for the
then current Tax Year. Promptly after receipt by Landlord of bills for
such Taxes, Landlord shall advise Tenant of the amount thereof and the
computation of Tenant's payment on account thereof. If estimated
payments theretofore made by Tenant for the Tax Year covered by such
bills exceed the required payments on account thereof for such Year,
Landlord shall credit the amount of overpayment against subsequent
obligations of Tenant on account of Taxes (or refund such overpayment
if the Term of this Lease has ended and Tenant has no further
obligation to Landlord); but if the required payments on account
thereof for such Year are greater than estimated payments theretofore
made on account thereof for such Year, Tenant shall make payment to
Landlord within 30 days after being so advised by Landlord. Landlord
shall have the same rights and remedies for the nonpayment by Tenant of
any payments due on account of Taxes as Landlord has hereunder for the
failure of Tenant to pay Basic Rent.
8.2 ABATEMENT. If Landlord shall receive any tax refund or reimbursement of
Taxes or sum in lieu thereof with respect to any Tax Year which is not
due to vacancies in the Building, then out of any balance remaining
thereof after deducting Landlord's expenses reasonably incurred in
obtaining such refund, Landlord shall, provided there does not then
exist a Default of Tenant, credit an amount equal to such refund or
reimbursement or sum in lieu thereof (exclusive of any interest)
multiplied by the Property Escalation Factor against the obligations of
Tenant next falling due under this Article VIII; provided, that in no
event shall Tenant be entitled to receive a credit equal to more than
the payments made by Tenant on account of such Tax Year pursuant to
paragraph (b) of Section 8.1.
8.3 ALTERNATE TAXES (a) If some method or type of taxation shall replace
the current method of assessment of real estate taxes in whole or in
part, or the type thereof, or if additional types of taxes are imposed
upon the Property or Landlord relating to the Property, Tenant agrees
that Tenant shall pay a proportionate share of the same as an
additional charge computed in a fashion consistent with the method of
computation herein provided, to the end that Tenant's share thereof
shall be, to the maximum extent practicable, comparable to that which
Tenant would bear under the foregoing provisions.
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(b) If a tax (other than Federal or State net income tax) is assessed
on account of the rents or other charges payable by Tenant to Landlord
under this Lease, Tenant agrees to pay the same as an additional charge
within ten (10) days after billing therefor, unless applicable law
prohibits the payment of such tax by Tenant.
ARTICLE IX
OPERATING EXPENSES
9.1 DEFINITIONS. For the purposes of this Article, the following terms
shall have the following respective meanings:
(i) Operating Year: Each calendar year in which any part of
the Term of this Lease shall fall.
(ii) Operating Expenses: The aggregate costs or expenses
reasonably incurred by Landlord with respect to the operation,
administration, insuring, cleaning, repair, maintenance and management
of the Property, all as set forth in Exhibit E annexed hereto, provided
that, if during any portion of the Operating Year for which Operating
Expenses are being computed, less than all of Building Rentable Area or
the Property Rentable Area was occupied by tenants or if Landlord is
not supplying all tenants with the services being supplied hereunder,
actual Operating Expenses incurred shall be reasonably extrapolated by
Landlord on an item by item basis to the estimated Operating Expenses
that would have been incurred if the Building or the Property were
fully occupied for such Year and such services were being supplied to
all tenants, and such extrapolated amount shall, for the purposes
hereof, be deemed to be the Operating Expenses for such Year. Operating
Expenses shall include Utility Expenses.
(iii) Utility Expenses: The aggregate costs or expenses
reasonably incurred by Landlord with respect to supplying electricity
(other than electricity supplied to those portions of the Building
leased to tenants) , oil, steam, gas, water and sewer and other
utilities supplied to the Property and not paid for directly by
tenants, provided that, if during any portion of the operating Year for
which Utility Expenses are being computed, less than all Building
Rentable Area or the Property Rentable Area was occupied by tenants or
if Landlord is not supplying all tenants with the utilities being
supplied hereunder, actual utility expenses incurred shall be
reasonably extrapolated by Landlord on an item-by-item basis to the
estimated Utility Expenses that would have been incurred if the
Building or the Property were fully occupied for such Year and such
utilities were being supplied to all tenants, and such extrapolated
amount shall, for the purposes hereof, be deemed to be the Utility
Expenses for such Year.
(iv) Operating Expenses Allocable to the Building: Those
operating Expenses that Landlord determines are allocable solely to the
Building rather than to other portions of the Property.
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(v) Operating Expenses Allocable to the Property: Those
Operating Expenses that Landlord determines are allocable to the
Property generally, rather than solely to the Building.
9.2 TENANT'S PAYMENTS, (a) Tenant shall pay to Landlord, as an Escalation
Charge, an amount equal to (i) Operating Expenses Allocable to the
Building for each operating Year (or partial Operating Year) falling
within the Term of this Lease multiplied by (ii) the Building
Escalation Factor, such amount to be apportioned for any partial
Operating Year in which the Commencement Date falls or the Term of this
Lease ends.
(b) Tenant shall pay to Landlord, as an Escalation Charge, an amount
equal to (i) Operating Expenses Allocable to the Property for each
operating Year (or partial Operating Year) falling within the Term of
this Lease multiplied by (ii) the Property Escalation Factor, such
amount to be apportioned for any partial operating Year in which the
Commencement Date falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of operating Expenses
Allocable to the Building and Operating Expenses Allocable to the
Property shall be made monthly and at the time and in the fashion
herein provided for the payment of Basic Rent. The monthly amount so to
be paid to Landlord shall be sufficient to provide Landlord by the end
of each Operating Year a sum equal to Tenant's required payments, as
estimated by Landlord from time to time during each Operating Year, on
account of operating Expenses Allocable to the Building and Operating
Expenses Allocable to the Property for such Operating Year. After the
end of each Operating Year, Landlord shall submit to Tenant a
reasonably detailed accounting of Operating Expenses Allocable to the
Building and Operating Expenses Allocable to the Property for such
Year, and Landlord shall certify to the accuracy thereof. If estimated
payments theretofore made for such Year by Tenant exceed Tenant's
required payment on account thereof for such Year, according to such
statement, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant with respect to Operating Expenses (or
refund such overpayment if the term of this Lease has ended and Tenant
has no further obligation to Landlord), but, if the required payments
on account thereof for such Year are greater than the estimated
payments (if any) theretofore made on account thereof for such Year,
Tenant shall make payment to Landlord within thirty (30) days after
being so advised by Landlord. Landlord shall have the same rights and
remedies for the nonpayment by Tenant of any payments due on account of
Operating Expenses as Landlord has hereunder for the failure of Tenant
to pay Basic Rent.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
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10.1 TENANT'S INDEMNITY, To the maximum extent this agreement may be made
effective according to law, Tenant agrees to defend, indemnify and save
harmless Landlord and its officers, directors, shareholders, employees,
contractors, servants, invitees, representatives and agents from and
against all claims, loss, liability, costs and damages of whatever
nature arising from any default by Tenant under this Lease and the
following: (i) from any accident, injury, death or damage whatsoever to
any person, or to the property of any person, occurring in or about the
Premises; (ii) from any accident, injury, death or damage occurring
outside of the Premises but on the Property, where such accident,
damage or injury results or is claimed to have resulted from an act or
omission on the part of Tenant or Tenant's agents, employees, invitees,
contractors or any other person acting under Tenant; or (iii) in
connection with the conduct or management of the Premises or of any
business therein, or any thing or work whatsoever done, or any
condition created (other than by Landlord) in or about the Premises;
and, in any case, occurring after the date of this Lease, until the end
of the Term of this Lease, and thereafter so long as Tenant is in
occupancy of the Premises. This indemnity and hold harmless agreement
shall include indemnity against all costs, expenses and liabilities
incurred in, or in connection with, any such claim or proceeding
brought thereon, and the defense thereof, including, without
limitation, reasonable attorneys, fees and costs at both the trial and
appellate levels. The provisions of this Section 10.1 shall survive the
expiration or any earlier termination of this Lease.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force
from the date upon which Tenant first enters the Premises for any
reason, throughout the Term of this Lease, and thereafter so long as
Tenant is in occupancy of any part of the Premises, a policy of general
liability and property damage insurance (including broad form
contractual liability, independent contractor's hazard and completed
operations coverage) under which Landlord, manager (and such other
persons as are in privity of estate with Landlord as may be set out in
notice from time to time) and Tenant are named as insureds, and under
which the insurer agrees to defend, indemnify and hold Landlord,
Manager, and those in privity of estate with Landlord, harmless from
and against all cost, expense and/or liability arising out of or based
upon any and all claims, accidents, injuries and damages set forth in
Section 10.1. Each such policy shall be non-cancellable and non-
amendable with respect to Landlord, Manager and Landlord's said
designees without thirty (30) days, prior notice to Landlord and shall
be in at least the amounts of the Initial Public Liability Insurance
specified in Section 1.3 or such greater amounts as Landlord shall from
time to time request, and a duplicate original or certificate thereof
shall be delivered to Landlord.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to use and occupy the
Premises and to use such other portions of the Property as Tenant is
herein given the right to use at Tenant's own risk; and Landlord shall
have no responsibility or liability for any loss of or damage to
Tenant's Removable Property or for any inconvenience, annoyance,
interruption or injury to business arising from Landlord's making any
repairs or changes which Landlord is permitted by this Lease or
required by law to make in or to any portion of the Premises or
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other sections of the Property, or in or to the fixtures, equipment or
appurtenances thereof. Tenant shall carry "all-risk" property insurance
on a "replacement cost basis" (including so-called improvements and
betterments) , and provide a waiver of subrogation as required in
Section 14.20. The provisions of this Section 10.3 shall be applicable
from and after the execution of this Lease and until the end of the
Term of this Lease, and during such further period as Tenant may use or
be in occupancy of any part of the Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES, To the maximum extent this agreement
may be made effective according to law, Tenant agrees that Landlord
shall not be responsible or liable to Tenant, or to those claiming by,
through or under Tenant, for any loss or damage that may be occasioned
by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with the
Premises or any part of the Property or otherwise. The provisions of
this Section 10.4 shall survive the expiration or any earlier
termination of this Lease.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. Landlord shall have the right to enter the Premises
at all reasonable hours for the purpose of inspecting or making repairs
to the same, and Landlord shall also have the right to make access
available at all reasonable hours to prospective or existing
mortgagees, purchasers or tenants of any part of the Property.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT, If the Premises shall be damaged by fire or
casualty, Basic Rent and Escalation Charges payable by Tenant shall
xxxxx proportionately for the period in which, by reason of such
damage, there is substantial interference with Tenant's use of the
Premises, having regard to the extent to which Tenant may be required
to discontinue Tenant's use of all or a portion of the Premises, but
such abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises (excluding any alterations,
additions or improvements made by Tenant pursuant to Section 5.2) to
the condition in which they were prior to such damage. If the Premises
shall be affected by any exercise of the power of eminent domain, Basic
Rent and Escalation Charges payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the
loss of use thereof suffered by Tenant. In no event shall Landlord have
any liability for damages to Tenant for inconvenience, annoyance, or
interruption of business arising from such fire, casualty or eminent
domain.
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12.2 LANDLORD'S RIGHT OF TERMINATION. if the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially
damaged" meaning damage of such a character that the same cannot, in
ordinary course, reasonably be expected to be repaired within sixty
(60) days from the time the repair work would commence), or if any part
of the Building is taken by any exercise of the right of eminent
domain, then Landlord shall have the right to terminate this Lease
(even if Landlord's entire interest in the Premises may have been
divested) by giving notice of Landlord's election so to do within 90
days after the occurrence of such casualty or the effective date of
such taking, whereupon this Lease shall terminate thirty (30) days
after the date of such notice with the same force and effect as if such
date were the date originally established as the expiration date
hereof.
12.3 RESTORATION. If this Lease shall not be terminated pursuant to Section
12.2, Landlord shall thereafter use due diligence to restore the
Premises (excluding any alterations, additions or improvements made by
Tenant) to proper condition for Tenant's use and occupation, provided
that Landlord's obligation shall be limited to the amount of insurance
proceeds available therefor. If, for any reason, such restoration shall
not be substantially completed within six months after the expiration
of the 90-day period referred to in Section 12.2 (which six-month
period may be extended for such periods of time as Landlord is
prevented from proceeding with or completing such restoration for any
cause beyond Landlord's reasonable control, but in no event for more
than an additional three months), Tenant shall have the right to
terminate this Lease by giving notice to Landlord thereof within thirty
(30) days after the expiration of such period (as so extended). Upon
the giving of such notice, this Lease shall cease and come to an end
without further liability or obligation on the part of either party
unless, within such 30-day period, Landlord substantially completes
such restoration. Such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to
complete such restoration.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for
damages to the Property and the leasehold interest hereby created, and
to compensation accrued or hereafter to accrue by reason of such
taking, damage or destruction, and by way of confirming the foregoing,
Tenant hereby grants and assigns, and covenants with Landlord to grant
and assign to Landlord, all rights to such damages or compensation.
Nothing contained herein shall be construed to prevent Tenant from, at
its sole cost and expense, prosecuting a separate condemnation
proceeding with respect to a claim for the value of any of Tenant's
Removable Property installed in the Premises by Tenant at Tenant's
expense and for relocation expenses, provided that such action shall
not affect the amount of compensation otherwise recoverable by Landlord
from the taking authority.
ARTICLE XIII
DEFAULT
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13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this
Lease any one or more of the following events (herein referred to as a
"Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation
Charges or other sums payable as additional charges hereunder when due
and such failure shall continue for ten (10) Business Days after
written notice from Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be performed or
observed, or Tenant shall desert or abandon the Premises or the
Premises shall become, or appear to have become vacant (regardless
whether the keys shall have been surrendered or the rent and all other
sums due shall have been paid), and Tenant shall fail to remedy the
same within thirty (30) days after notice to Tenant specifying such
neglect or failure, or if such failure is of such a nature that Tenant
cannot reasonably remedy the same within such thirty (30) day period,
Tenant shall fail to commence promptly to remedy the same and to
prosecute such remedy to completion with diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law directed against Tenant;
or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any petition or answer
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any present
or future Federal, State or other statute, law or regulation for the
relief of debtors, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all
or any substantial part of its properties, or shall admit in writing
its inability to pay its debts generally as they become due; or
(v) A petition shall be filed against Tenant in bankruptcy or
under any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief
under any present or future Federal, State or other statute, law or
regulation and shall remain undismissed or unstayed for an aggregate of
sixty (60) days (whether or not consecutive), or if any debtor in
possession (whether or not Tenant) trustee, receiver or liquidator of
Tenant or of all or any substantial part of its properties or of the
Premises shall be appointed without the consent or acquiescence of
Tenant and such appointment shall remain unvacated or unstayed for an
aggregate of sixty (60) days (whether or not consecutive); or
(vi) If a Default of Tenant of the kind set forth in clauses
(i) or (ii) above shall occur and if either (a) Tenant shall cure such
Default within the applicable grace period or (b) Landlord shall, in
its sole discretion , permit Tenant to cure such Default after the
applicable grace period has expired, and an event which would
constitute a similar Default if not cured within the applicable grace
period shall occur more than once within the next 365 days, whether or
not such event is cured within the applicable grace period;
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then in any such case (1) if such Default of Tenant shall occur prior
to the Commencement Date, this Lease shall ipso facto, and without
further act on the part of Landlord, terminate, and (2) if such Default
of Tenant shall occur after the Commencement Date, Landlord may
terminate this Lease by notice to Tenant, and thereupon this Lease
shall come to an end as fully and completely as if such date were the
date herein originally fixed for the expiration of the Term of this
Lease, and Tenant will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter provided.
(b) If this Lease shall be terminated as provided in this Article, or
if any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may, without notice, re-enter
the Premises, either by force, summary proceedings, ejectment or
otherwise, and remove and dispossess Tenant and all other persons and
any and all property from the same, as if this Lease had not been made,
and Tenant hereby waives the service of notice of intention to re-enter
or to institute legal proceedings to that end.
(c) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of
such termination, and thereafter Tenant, until the end of what would
have been the Term of this Lease in the absence of such termination,
and whether or not the Premises shall have been relet, shall be liable
to Landlord for, and shall pay to Landlord, as liquidated current
damages, the Basic Rent, Escalation Charges and other sums which would
be payable hereunder if such termination had not occurred, less the net
proceeds, if any, of any reletting of the Premises, after deducting all
expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, advertising, expenses of employees,
alteration costs and expenses of preparation for such reletting. Tenant
shall pay such current damages to Landlord monthly on the days which
the Basic Rent would have been payable hereunder if this Lease had not
been terminated.
(d) At any time after such termination, whether or not Landlord shall
have collected any such current damages, as liquidated final damages
and in lieu of all such current damages beyond the date of such demand,
at Landlord's election Tenant shall pay to Landlord and amount equal to
the excess, if any, of the Basic Rent, Escalation Charges and other
sums as hereinbefore provided which would be payable hereunder from the
date of such demand (assuming that, for the purposes of this paragraph,
annual payments by Tenant on account of Taxes, Utility Expenses and
Operating Expenses would be the same as the payments required for the
immediately preceding Operating or Tax Year) for what would be the then
unexpired Term of this Lease if the same had remained in effect, over
the then fair net rental value of the Premises for the same period.
(e) In the case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceeding or otherwise, Landlord may (i)
re-let the Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms which may
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at Landlord's option be equal to or less than or exceed the period
which would otherwise have constituted the balance of the Term of this
Lease and may grant concessions or free rent to the extent that
Landlord considers advisable and necessary to re-let the same and (ii)
may make such reasonable alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable and
necessary for the purpose of reletting the Premises; and the making of
such alterations, repairs and decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatsoever for failure
to re-let the Premises, or, in the event that the Premises are re-let,
for failure to collect the rent under such re-letting. Tenant hereby
expressly waives any and all rights of redemption granted by or under
any present or future laws in the event of Tenant being evicted or
dispossessed, or in the event of Landlord obtaining possession of the
Premises, by reason of the violation by Tenant of any of the covenants
and conditions of this Lease.
(f) If a Guarantor of this Lease is named in Section 1.2, the happening
of any of the events described in paragraphs (a) (iv) or (a) (v) of
this Section 13.1 with respect to the Guarantor shall constitute a
Default of Tenant hereunder.
(g) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to
which Landlord may at any time be entitled to lawfully, and Landlord
may invoke. any remedy (including the remedy of specific performance)
allowed at law or in equity as if specific remedies were not herein
provided for.
(h) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses) in
enforcing its rights hereunder or occasioned by any Default of Tenant
shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default of the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have unreasonably failed to perform such obligation
within a period of time reasonably required to correct any such
default, after notice by Tenant to Landlord specifying wherein Landlord
has failed to perform any such obligations.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not
do or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall increase the rate of
property or liability insurance on the Premises or of the Building
above the standard rate applicable to premises being occupied for
Permitted Uses; and Tenant further agrees that, in the event that
Tenant shall do any of
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the foregoing, Tenant will promptly pay to Landlord, on demand, any
such increase resulting therefrom, which shall be due and payable as an
additional charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of
any action or non-action on the part of the other, no matter how long
the same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of the other's rights hereunder. Further, no
waiver at any time of any of the provisions hereof by Landlord or
Tenant shall be construed as a waiver of any of the other provisions
hereof, and a waiver at any time of any of the provisions hereof shall
not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any
action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's or Tenant's consent
or approval to or of any subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account of the earliest installment of any payment
due from Tenant under the provisions hereof. The acceptance by Landlord
of a check for a lesser amount with an endorsement or statement
thereon, or upon any letter accompanying such check, that such lesser
amount is payment in full, shall be given no effect, and Landlord may
accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Basic Rent and Escalation
Charges and observing, keeping and performing all of the other terms
and provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the term hereof, without hindrance or
ejection by any persons lawfully claiming under Landlord to have title
to the Premises superior to Tenant; the foregoing covenant of quiet
enjoyment is in lieu of any other covenant, express or implied.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically agreed
that neither Landlord (original or successor) nor any of its agents,
servants, employees, officers, shareholder or directors shall ever be
personally liable for any such judgment, or for the payment of any
monetary obligation to Tenant. The provision contained in the foregoing
sentence is not intended to, and shall not, limit any right that Tenant
might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or to take any action not involving
the personal liability of Landlord (original or successor) to respond
in monetary damages from Landlord's assets other than Landlord's equity
interest in the Property.
(b) With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to
furnish the same when prevented from doing so by Force Majeure, strike,
lockout, breakdown, accident, order or regulation of or
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by any governmental authority, or failure of supply, or inability by
the exercise of reasonable diligence to obtain supplies, parts or
employees necessary to furnish such services, or because of war or
other emergency, or for any cause beyond Landlord's reasonable control,
or for any cause due to any act or neglect of Tenant or Tenant's
servants, agents, employees, licensees or any person claiming by,
through or under Tenant; nor shall any such failure give rise to any
claim in Tenant's favor that Tenant has been evicted, either
constructively or actually, partially or wholly.
(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by
Tenant from whatever cause.
(d) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same may be made during normal
business hours and Landlord shall have no liability for damages to
Tenant for inconvenience, annoyance or interruption of business arising
therefrom.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any
person, firm or other entity that it holds a mortgage or a ground lease
which includes the Premises, no notice from Tenant to Landlord alleging
any default by Landlord shall be effective unless and until a copy of
the same is given to such holder or ground lessor (provided Tenant
shall have been furnished with the name and address of such holder or
ground lessor), and the curing of any of Landlord's defaults by such
holder or ground lessor shall be treated as performance by Landlord.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
assignment by Landlord of Landlord's interest in this Lease, or the
rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage on property which
includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage,
shall never be treated as an assumption by such holder of any of the
obligations of Landlord hereunder unless such holder shall, by notice
sent to Tenant, specifically otherwise elect and that, except as
aforesaid, such holder shall be treated as having assumed Landlord's
obligations hereunder only upon foreclosure of such holder's mortgage
and the taking of possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases
Landlord's entire interest in the Property back to the seller thereof
be treated as an assumption by operation of law or otherwise, of
Landlord's obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title, for
performance of Landlord's obligations hereunder. In any such event,
this Lease shall be subject and subordinate to the lease to such
purchaser. For all purposes, such seller-lessee, and its successors in
title, shall be the Landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
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(c) Except as provided in paragraph (b) of this Section, in the event
of any transfer of title to the Property by Landlord, Landlord shall
thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder.
14.7 RULES and REGULATIONS. Tenant shall abide by rules and regulations set
forth in Exhibit C attached hereto and those rules and regulations from
time to time established by Landlord, it being agreed that such rules
and regulations will be established and applied by Landlord in a
non-discriminatory fashion, such that all rules and regulations shall
be generally applicable to other tenants of the Building of similar
nature to the Tenant named herein. Landlord agrees to use reasonable
efforts to insure that any such rules and regulations are uniformly
enforced, but Landlord shall not be liable to Tenant for violation of
the same by any other tenant or occupant of the Building, or persons
having business with them. In the event that there shall be any
conflict between such rules and regulations and the provisions of this
Lease, the provisions of this Lease shall control.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums under
this Lease designated or payable as an additional charge, Landlord
shall have the same rights and remedies as Landlord has hereunder for
failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by Law.
14.10 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms
hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if
Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and assigns. Each term and each provision of
this Lease to be performed by Tenant shall be construed to be both a
covenant and a condition. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to assignment
by Tenant, but has reference only to those instances in which Landlord
may later give consent to a particular assignment as required by those
provisions of Article VI hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but each party
hereto agrees, on the request of the other, to execute a so-called
notice of lease in form recordable and complying with applicable law
and reasonably satisfactory to Landlord's attorneys. In no event shall
such document set forth the rent or other charges payable by Tenant
under this Lease; and any such document shall expressly state that it
is executed pursuant to the provisions contained in this Lease, and is
not intended to vary the terms and conditions of this Lease.
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14.12 NOTICES. Whenever, by the terms of this Lease, notices, consents or
approvals shall or may by given either to Landlord or to Tenant, such
notices, consents or approvals shall be in writing and shall be sent by
registered or certified mail, return receipt requested, postage
prepaid:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address with a copy Addressed to Landlord (Teachers Insurance and
Annuity Association of America) at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 Attention: Xx. Xxxxxx X. Xxxxxxxx, Senior Real Estate Manager (or
to such other address as may from time to time hereafter by designated
by Landlord by like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original
Address until the Commencement Date and thereafter to the Premises (or
to such other address or addresses as may from time to time hereafter
be designated by Tenant by like notice.)
All such notices shall be effective when deposited in the United States
Mail within the Continental United States, provided that the same are
received in ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and this Lease expressly supersedes any proposals
or other written documents relating hereto. This Lease may be modified
or altered only by written agreement between Landlord and Tenant, and
no act or omission of any employee or agent of Landlord shall alter,
change or modify any of the provisions hereof.
14.14 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein
shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction, or meaning of the provisions of this
Lease.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate
to any mortgage or ground lease from time to time encumbering the
Premises, whether executed and delivered prior to or subsequent to the
date of this Lease, if the holder of such mortgage or ground lease
shall so elect. If this Lease is subordinate to any mortgage or ground
lease and the holder thereof (or successor) shall succeed to the
interest of Landlord, at the election of such holder (or successor)
Tenant shall attorn to such holder and this Lease shall continue in
full force and effect between such holder (or successor) and Tenant.
Tenant agrees to execute such instruments of subordination or
attornment in confirmation of the foregoing agreement as such holder
may request, and Tenant hereby appoints such holder as Tenant's
attorney-in-fact to execute such subordination or attornment agreement
upon default of Tenant in complying with such holder's request.
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14.16 STATUS REPORT. Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees,
ground lessors, or the like, the then current status of performance
hereunder, either party, on the request of the other made from time to
time, will promptly furnish to Landlord, or the holder of any mortgage
or ground lease encumbering the Premises, or to Tenant, as the case may
be, a statement of the status of any matter pertaining to this Lease,
including, without limitation, acknowledgment that (or the extent to
which) each party is in compliance with its obligations under the terms
of this Lease.
14.17 SECURITY DEPOSIT. Concurrently with the execution and delivery of this
Lease, Tenant shall deposit the Security Deposit specified in Section
1.2 hereof and that Landlord shall hold the same throughout the Term of
this Lease as security for the performance by Tenant of all obligations
on the part of Tenant hereunder. Landlord shall have the right from
time to time without prejudice to any other remedy Landlord may have on
account thereof, to apply such deposit, or any part thereof, to
Landlord's damages arising from, or to cure, any Default of Tenant. If
Landlord shall so apply any or all of such deposit, Tenant shall
immediately deposit with Landlord the amount so applied to be held as
security hereunder. There then existing no Default of Tenant, Landlord
shall return the deposit, or so much thereof as shall theretofore not
been applied in accordance with the terms of this Section 14.17, to
Tenant on the expiration or earlier termination of the Term of this
Lease and surrender of possession of the Premises by Tenant to Landlord
at such time. While Landlord holds such deposit, Landlord shall have no
obligation to pay interest on the same and shall have the right to
commingle the same with Landlord's other funds. If Landlord conveys
Landlord's interest under this Lease, the deposit, or any part thereof
not previously applied, may be turned over by Landlord to Landlord's
grantee, and, if so turned over, Tenant agrees to look solely to such
grantee for proper application of the deposit in accordance with the
terms of this Section 14.17, and the return thereof in accordance
therewith. The holder of a mortgage shall not be responsible to Tenant
for the return or application of any such deposit, whether or not it
succeeds to the position of Landlord hereunder, unless such deposit
shall have been received in hand by such holder.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
required, to pay such sums or to do any act which requires the
expenditure of monies which may be necessary or appropriate by reason
of the failure or neglect of Tenant to perform any of the provisions of
this Lease, and in the event of the exercise of such right by Landlord,
Tenant agrees to pay to Landlord forthwith upon demand all such sums,
together with interest thereon at a rate equal to 3% over the prime
rate in effect from time to time, at the Bank of Boston (but in no
event less than 18% per annum), as an additional charge. Any payment of
Basic Rent, Escalation Charges or other sums payable hereunder not paid
within ten (10) days of the due date thereof shall, at the option of
Landlord, bear interest at a rate equal to 3% over the prime rate in
effect from time to time at the Bank of Boston (but in no event less
than 18% per annum) from the due date thereof and shall be payable
forthwith on demand by Landlord, as an additional charge.
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14.19 HOLDING OVER. Any holding over by Tenant after the expiration of the
Term of this Lease shall be treated as a daily tenancy at sufferance at
a rate equal to the then fair rental value of the Premises but in no
event less than twice the sum of (i) Basic Rent and (ii) Escalation
Charges in effect on the expiration date. Tenant shall also pay to
Landlord all damages, direct and/or indirect (including any loss of a
tenant or rental income), sustained by reason of any such holding over.
Otherwise, such holding over shall be on the terms and conditions set
forth in this Lease as far as applicable. The Landlord may, but shall
not be required to, and only on written notice to Tenant after the
expiration of the Term hereof, elect to treat such holding over as an
extension of the Term of this Lease for a period of up to one (1) year,
as designated by Landlord, such extension to be on the terms and
conditions set forth in this Section 14.19.
14.20 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the
following provision shall not make it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business
in the locality in which the Property is located (even though extra
premium may result therefrom) Landlord and Tenant mutually agree that
any property damage insurance carried by either shall provide for the
waiver by the insurance carrier of any right of subrogation against the
other, and they further mutually agree that, with respect to any damage
to property, the loss from which is covered by insurance then being
carried by them, respectively, the one carrying such insurance and
suffering such loss releases the other of and from any and all claims
with respect to such loss to the extent of the insurance proceeds paid
with respect thereto.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of
the Term of this Lease, Tenant shall peaceably quit and surrender to
Landlord the Premises in neat and clean condition and in good order,
condition and repair, together with all alterations, additions and
improvements which may have been made or installed in, on or to the
Premises prior to or during the Term of this Lease, excepting only
ordinary wear and use and damage by fire or other casualty for which,
under other provisions of this Lease, Tenant has no responsibility of
repair and restoration. Tenant shall remove all of Tenant's Removable
Property and, to the extent specified by Landlord, all alterations and
additions made by Tenant and all partitions wholly within the Premises;
and shall repair any damage to the Premises or the Building caused by
such removal. Any Tenant's Removable Property which shall remain in the
building or on the Premises after the expiration or termination of the
Term of this Lease shall be deemed conclusively to have been abandoned,
and either may be retained by Landlord as its property or may be
disposed of in such manner as Landlord may see fit, at Tenant's sole
cost and expense.
14.22 SUBSTITUTE SPACE. If Landlord so requests, Tenant shall vacate the
Premises and relinquish its rights with respect to the same provided
that Landlord shall provide to Tenant substitute space in one of the
Buildings, such space to be reasonably comparable in size, layout,
finish and utility to the Premises, and further provided that Landlord
shall, at its sole cost and expense, move Tenant and its Removable
Property from the Premises to such new space in such manner as will
minimize, to the greatest extent practicable, undue interference with
the business or operation of Tenant. Any such substitute space
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shall, from and after such relocation, be treated as the Premises
demised under this Lease, and shall be occupied by Tenant under the
same terms, provisions and conditions as are set forth in this Lease.
14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
broker in connection with the consummation of this Lease other than
Leggat XxXxxx Properties Management, L.P. (the "Broker") and, in the
event of any brokerage claims against Landlord predicated upon prior
dealings with Tenant, Tenant agrees to defend the same and indemnify
Landlord against any such claim (except any claim by the Broker).
14.24 SPECIAL TAXATION PROVISIONS. Landlord shall have the right at any time
and from time to time, to unilaterally amend the provisions of this
Lease if Landlord is advised by its Counsel that all or any portion of
the monies paid by Tenant to Landlord hereunder are, or may be deemed
to be, unrelated business income within the meaning of the United
States Internal Revenue Code, or any regulation issued thereunder, and
Tenant agrees that it will execute all documents or instruments
necessary to effect such amendment or amendments, provided that no such
amendment shall result in Tenant having to pay in the aggregate more
money on account of its occupancy of the demised premises under the
provisions of this Lease as so amended and provided further, that no
such amendment or amendments shall result in Tenant receiving under the
provisions of this Lease less services than it is entitled to receive
nor services of a lesser quality. Anything contained in the foregoing
provisions of this Lease (including, without limitation, Article VI
hereof) to the contrary notwithstanding, neither Tenant nor any other
person having an interest in the possession, use, occupancy or
utilization of the Premises, shall enter into any lease, sublease,
license, concession or other agreement for use, occupancy, utilization
of space in the Premises which provides for rental or other payment for
such use, occupancy or utilization of space, in whole or in part, on
the net income or profits derived by any person from the Premises
leased, used, occupied or utilized (other than an amount based on a
fixed percentage or percentage of receipts for sales) and any such
recorded lease, sublease, license, concession or other agreement shall
be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part
of the Premises.
14.25 HAZARDOUS MATERIALS. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal, release or threat of
release or any biologically or chemically active or other Hazardous
Materials (as said term is hereafter defined) on, in, upon or under the
Property or the Premises. Tenant shall not allow the generation,
storage, use or disposal of such Hazardous Materials in any manner not
sanctioned by law or by the highest standards prevailing in the
industry for the generation, storage, use and disposal of such
Hazardous Materials, nor allow to be brought into the Property any such
Hazardous Materials except for use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of
the identity of such Hazardous Materials. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has
been any release of Hazardous Materials, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as
additional charges but only if such
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requirement applies to the Premises or may be the result of the acts or
omissions of Tenant. In addition, Tenant shall execute affidavits,
representations and the like, from time to time, at Landlord's request
concerning Tenant's best knowledge and belief regarding the presence of
Hazardous Materials on the Premises.
The Tenant shall, at its own expense, remove, clean up, remedy and
dispose of (in compliance with all applicable laws, rules and
regulations) all Hazardous Materials generated or released by the
Tenant or its officers, directors, employees, contractors, servants,
invitees, agents or any other person acting under Tenant during the
term of this Lease (or during such term as the Tenant is in occupancy
or possession of any part of the Premises, the Building or the
Property) at or from the Premises, the Building or the Property in
compliance with all Environmental Laws (as said term is hereafter
defined) and further, shall remove, clean up, remedy and dispose of all
Hazardous Materials located at, upon, under, within or in the Premises,
the Building or the Property generated by or resulting from its
operations, activities or processes during the tern of this Lease (or
such other periods of time as the Tenant may be in occupancy or in
possession of the Premises or any portion of the Property or Building),
in compliance with all Environmental Laws. In performing its
obligations hereunder, the Tenant shall use best efforts to avoid
interference with the use and enjoyment of the Building and the
Property by other tenants and occupants thereof. The provisions hereof
shall survive expiration or termination of this Lease.
The Tenant shall indemnify, defend and save harmless the Landlord and
its officers, directors, shareholders, employees, contractors,
servants, invitees, representatives and agents from and against all
loss, costs, damages, claims, proceedings, demands, liabilities,
penalties, fines and expenses, including without limitation, reasonable
fees and costs for attorneys' fees, consultants, fees, litigation costs
and clean-up costs asserted against or incurred by the Landlord, its
officers, directors, shareholders, employees, contractors, servants,
invitees representatives or agents at any time by reason of or arising
out of (i) any release or threat of release of any Hazardous Materials
at, in, upon, under or from the Premises, the Building or the Property
where such release or threat of release is the result of or alleged to
result from the acts or omissions of the Tenant or its agents,
servants, employees, contractors or invitees, or any other person
acting under Tenant or (ii) any violation or alleged violation of any
Environmental Laws governing Hazardous Materials where such violation
or alleged violation is the result of or alleged to result from the
acts or omissions of the Tenant or its agents, servants, employees,
contractors, invitees, or any other person acting under Tenant. The
indemnities set forth in this Section shall survive expiration or
termination of this Lease.
In addition to the requirements set forth above, the Tenant shall,
within ten (10) days of receipt, provide to the Landlord copies of any
inspection or other reports, correspondence, documentation, orders,
citations, notices, directives, or suits from or by any governmental
authority or insurer regarding non-compliance with or potential or
actual violation of Environmental Laws. The Landlord hereby expressly
reserves the right to enter the Premises and all other portions of the
Building and the Property in order to perform
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inspections and testing of the air, soil and ground water for the
presence or existence of Hazardous Materials.
As used herein, the term "Hazardous Materials" shall mean and include,
without limitation, any material or substance which is (i) petroleum,
(ii) asbestos, (iii) designated as a "hazardous substance" pursuant to
Section 311 of the Federal Water Pollution Control Act, 33 U.S.C.
Sections 1251 et seq. (33 U.S.C. Sections 1321) or listed
in Sections 307 of the Federal Water Pollution Control Act (33
U.S.C. Sections 1317), (iv) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act,
42 U.S.C. Sections 6901 et seq. (42 U.S.C. Sections 6903),
(v) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. Sections 9601 et seq. (42 U.S.C. Sections 9601),
as amended and regulations promulgated thereunder, or (vi) defined as
"oil" or a "hazardous waste", a "hazardous substance", a "hazardous
material" or a "toxic material" under any other law, rule or regulation
applicable to the Property, including, without limitation, Chapter 21E
of the Massachusetts General Laws, as amended and the regulations
promulgated thereunder. As used herein, the term "Environmental Laws"
shall mean, without limitation, each and every law, rule, order,
statute or regulation described above in this Section, together with
(i) any amendments thereto, or regulations promulgated thereunder and
(ii) any other laws pertaining to the protection of the environment or
governing the use, release, storage, generation or disposal of
Hazardous Materials, whether now existing or hereafter enacted or
promulgated.
14.26 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.
14.27 RIGHT OF FIRST OFFER. In the event that during the Initial Term, all or
any portion of the space shown on Exhibit D as the "First Offer Space"
shall become "available for leasing" (as said term is hereafter
defined), Landlord shall by written notice to Tenant first offer (the
"Offer") to lease all of the such available First Offer Space to Tenant
upon terms and conditions designated and specified by Landlord in the
Offer. If (a) within ten (10) days after Landlord provides the Offer to
Tenant, Tenant does not unconditionally accept the Offer as to all of
such space upon the terms and conditions described in the Offer in
writing and concurrently deposit one month's advanced rent and one
month's security deposit with Landlord or (b) if Tenant accepts the
offer as aforesaid but does not for any reason execute and deliver to
Landlord a final fully executed Amendment to this Lease Agreement in
form and substance satisfactory to Landlord and Tenant within 14 days
after acceptance of the offer as aforesaid, Landlord shall be free to
rent all or any part of such space to any party upon such terms and
conditions as Landlord may, in its sole discretion elect, and Tenant's
Right of First Offer shall terminate as to all of the space described
in such Offer. As used herein, the term "available for leasing" shall
mean that such First Offer Space is to become vacant with the present
occupant thereof having no further options to extend its lease without
any renewal or extension agreement entered into between Landlord and
such existing occupant, it being agreed and
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understood that Landlord need not provide Tenant with an Offer
hereunder if Landlord and such existing occupant have or may enter into
an arrangement to extend or renew its occupancy of the First Offer
Space.
14.28 OPTION TO EXTEND. Tenant shall have the right and option, which said
option and right shall not be severed from this Lease or separately
assigned, mortgaged or transferred, to extend the Initial Term for one
(1) additional consecutive period of three (3) years (hereinafter
referred to as the "Extension Period") , provided that (a) Tenant shall
give Landlord notice of Tenant's exercise of such option at least
twelve (12) full calendar months prior to the expiration of the Initial
Term (b) no Default of Tenant shall exist at the time of giving the
applicable notice and the commencement of the Extension Period and (c)
the Original Tenant named herein is itself occupying the entire
Premises both at the time of giving the applicable notice and at the
time of commencement of such Extension Period. Except for the amount of
Basic Rent (which is to be determined as hereinafter provided), all the
terms, covenants, conditions, provisions and agreements in the Lease
contained shall be applicable to the additional period through which
the Term of this Lease shall be extended as aforesaid, except that
there shall be no further options to extend the Term nor shall Landlord
be obligated to make or pay for any improvements to the Premises nor
pay any inducement payments of any kind or nature. If Tenant shall give
notice of its exercise of such option to extend in the manner and
within the time period provided aforesaid, the Term of this Lease shall
be extended upon the giving of each such notice without the requirement
of any further attention on the part of either Landlord or Tenant
except as may be required in order to determine Basic Rent as hereafter
set forth. Landlord hereby reserves the right, exercisable by Landlord
in its sole discretion, to waive (in writing) any condition precedent
set forth in clauses (a), (b) or (c) above.
If Tenant shall fail to give timely notice of the exercise of such
option as aforesaid, Tenant shall have no right to extend the Term of
this Lease, time being of the essence of the foregoing provisions. Any
termination of this Lease Agreement shall terminate the rights hereby
granted Tenant.
The Basic Rent payable for each twelve (12) month period during the
Extension Period shall be the Fair Market Rental Value (as said term,
is hereinafter defined) as of commencement of the Extension Period but
in no event less than the Basic Rent per annum payable for and with
respect to the last 12 calendar months of the Initial Term. "Fair
Market Rental Value" shall be computed as of the beginning of the
Extension Period at the then current annual rental charges, including
provisions for subsequent increases and other adjustments, for
extensions of existing leases then currently being negotiated or
executed in comparable space and buildings located in Wakefield,
Massachusetts. In determining Fair Market Rental Value, the following
factors, among others, shall be taken into account and given effect:
size of the premises, escalation charges then payable under the Lease,
location of the premises, location of the building, allowances or lack
of allowances (if any) and lease term. In no event shall the Basic Rent
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payable with respect to any Lease Year during the Extension Period be
less than the Basic Rent payable during the last 12 calendar months of
the Initial Term.
Dispute as to Fair Market Value. Landlord shall initially designate the
Fair Market Rental Value and shall furnish data in support of such
designation. If Tenant disagrees with Landlord's designation of the
Fair Market Rental Value, Tenant shall have the right, by written
notice given to Landlord within thirty (30) days after Tenant has been
notified of Landlord's designation, to submit such Fair Market Rental
Value to arbitration as follows: Fair market Rental Value shall be
determined by agreement between Landlord and Tenant but if Landlord and
Tenant are unable to agree upon the Fair Market Rental Value at least
ten (10) months prior to the date upon which the Fair Market Rental
Value is to take effect, then the Fair Market Rental Value shall be
determined by appraisal as follows: The Landlord and Tenant shall each
appoint a Qualified Appraiser (as said term is hereinafter defined) at
least nine (9) months prior to the commencement of the period for which
Fair Market Rental Value is to be determined and shall designate the
Qualified Appraiser so appointed by notice to the other party. The two
appraisers so appointed shall meet within ten (10) days after both
appraisers are designated in an attempt to agree upon the Fair Market
Rental value for the applicable Extension Period and if, within fifteen
(15) days after both appraisers are designated, the two appraisers do
not agree upon the Fair Market Rental value, then each appraiser shall,
not later than thirty (30) days after both appraisers have been chosen,
deliver a written report to both the Landlord and Tenant setting forth
the Fair Market Rental Value as determined by each such appraiser
taking into account the factors set forth in this Section 14.28. If the
lower of the two determinations of Fair Market Rental Value as
determined by such two appraisers is equal to or greater than 95% of
the higher of the Fair Market Rental value as determined by such two
appraisers, the Fair Market Rental Value shall be deemed to be the
average of such Fair Market Rental Value as set forth in such two
determinations. If the lower determination of Fair Market Rental Value
is less than 95% of the higher determination of Fair Market Rental
Value, the two appraisers shall promptly appoint a third Qualified
Appraiser and shall designate such third Qualified Appraiser by notice
to Landlord and Tenant. The cost and expenses of each appraiser
appointed separately by Tenant and Landlord shall be borne by the party
who appointed the appraiser. The cost and expenses of the third
appraiser shall be shared equally by Tenant and Landlord. If the two
appraisers cannot agree on the identity of the third Qualified
Appraiser at least three (3) months prior to commencement of the period
for which Fair Market Rental Value is to be determined, then the third
Qualified Appraiser shall be appointed by the American Arbitration
Association ("AAA") sitting in Boson, Massachusetts and acting in
accordance with its rules and regulations. The costs and expenses of
the AAA proceeding shall be borne equally by the Landlord and Tenant.
The third appraiser shall promptly make its own independent
determination of Fair Market Rental Value for the Premises taking into
account the factors set forth in this Section 14.28 and shall promptly
notify Landlord and Tenant of his determination. If the determinations
of the Fair Market Rental Value of any two of the appraisers shall be
identical in amount, said amount shall be deemed to be the Fair Market
Rental Value for the Premises. If the determinations of all three
appraisers shall be different in amount, the average of the two nearest
in amount
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shall be deemed the Fair market Rental value. The Fair Market Rental
Value of the subject space determined in accordance with the provisions
of this Section shall be binding and conclusive on Tenant and Landlord.
As indicated above, in no event shall the Fair Market Rental Value be
less than the Basic Rent applicable to the 12 calendar month period
immediately preceding the commencement of the Extension Period. As used
herein, the term "Qualified Appraiser" shall mean any disinterested
person (a) who is employed by an appraisal firm of recognized
competence in the greater Boston area, (b) who has not less than ten
(10) years experience in appraising and valuing properties of the
general location, type and character as the Premises, and (c) who is
either a Senior Real Property Appraiser of the Society of Real Estate
Appraisers or a member of the Appraisal Institute (or any successor
organization) . Notwithstanding the foregoing, if either party shall
fail to appoint its appraiser within the period specified above (such
party referred to hereinafter as the "Failing Party"), the other party
may serve notice on the Failing Party requiring the Failing Party to
appoint its appraiser within ten (10) days of the giving of such notice
and if the Failing Party shall not respond by appointment of its
appraiser within said ten (10) day period, then the appraiser appointed
by the other party shall be the sole appraiser whose determination of
Fair Market Rental value shall be binding and conclusive upon Tenant
and Landlord. If, for any reason, Fair Market Rental Value shall not
have been determined by the time of commencement of the Extension
Period and until such rent is determined, Tenant shall pay Basic Rent
during the Extension Period in an amount (the "Interim Rent") as
specified by Landlord's appraiser and upon receipt of a final
determination of Fair Market Rental Value as hereinabove set forth, any
overpayment or underpayment of Interim Rent shall be paid promptly to
the party entitled to receive the same.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in multiple
copies, each to be considered an original hereof, as of the date first set forth
above.
TENANT:
IMPLANT SCIENCES CORPORATION
Dated: By: /s/ X. X. Xxxxxx
---------------------------- -------------------------------
Its: President
-------------------------------
LANDLORD:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
Dated: September 29, 1995 By: /s/ Xxxxxxx X. Xxxx
------------------------------ ----------------------------
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Xxxxxxx X. Xxxx
Its: Director
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EXHIBIT A
Floor Plans
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Exhibit B
Intentionally Omitted
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EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, paved and/or landscaped areas shall not be obstructed
or encumbered by Tenant or used for any purpose other than ingress and egress to
and from the demised premises.
2. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the demised
premises or Building so as to be visible from outside the demised premises
without the prior written consent of Landlord, which will not be unreasonably
withheld or delayed. In the event of any violation of this paragraph, Landlord
may remove same without any liability, and may charge the expense incurred in
such removal to Tenant, as additional rent.
3. No awnings, curtains, blinds, shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
demised premises or any outside wall of the Building without the prior written
consent of Landlord, which will not be unreasonably withheld or delayed so long
as said so long as said awning or other item conforms to similar items installed
in or upon other portions of the Building. Such awnings, curtains, blinds,
shades, screens or other projections must be of a quality, type, design and
color, and attached in the manner, approved by Landlord. If any portion of the
demised premises which is not used for office purposes shall have windows, such
windows shall be equipped with curtains, blinds or shades approved by Landlord,
and said curtains, blinds or shades shall be kept closed at all times.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids, chemicals, process water,
cooling water or like substances shall be deposited therein. Said plumbing
fixtures and the plumbing system of the Building shall be used only for
discharge of so-called sanitary waste. All damage resulting from any misuse of
said fixtures and/or plumbing system by Tenant or anyone claiming under Tenant
shall be borne by Tenant.
5. Tenant must, upon the termination of its tenancy, return to Landlord
all locks, cylinders and keys to the demised premises and any offices therein.
6. Tenant shall keep any sidewalks and planters in front of the demised
premises reasonably free and clear of litter and refuse, regardless of the
source thereof.
7. Tenant shall, at Tenant's expense, provide artificial light and
electric current for the employees of Landlord and/or Landlord's contractors
while making repairs or alterations in the demised premises.
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8. Tenant shall not make, or permit to be made, any unseemly or
disturbing odors or noises or disturb or interfere with occupants of the
Building or those having business with them, whether by use of any musical
instrument, radio, machine, or in any other way.
9. Canvassing, soliciting, and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
10. Tenant shall keep the demised premises free at all time of pests,
rodents and other vermin, and Tenant shall keep all trash and rubbish stored in
containers of a type approved by Landlord, such containers to be kept at
locations designated by Landlord. Tenant shall cause such containers to be
emptied whenever necessary to prevent them from overflowing or from producing
any objectionable odors.
11. Landlord reserves the right to rescind, alter, waive and/or
establish any reasonable rules and regulations of uniform application to all
tenants which, in its judgment, are necessary, desirable or proper for its best
interests and the best interests of the occupants of the Building.
12. The access roads, driveways, entrances and exits shall not be
obstructed or encumbered by Tenant or used for any purpose other than ingress
and egress.
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EXHIBIT D
Floor Plans
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EXHIBIT E
(ITEMS INCLUDED IN OPERATING EXPENSES)
A. Without limitation, Utility Expenses shall include:
Costs for electricity, fuel, oil, gas, steam, water and sewer use
charges and other utilities supplied to the Property and not paid for
directly by tenants.
B. Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which
shall be directly related to employment of personnel,
including amounts incurred for wages, salaries and other
compensation for services, payroll, social security,
unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization,
retirement plans and group insurance, uniforms and working
clothes and the cleaning thereof, and expenses imposed on
Landlord or Landlord's agents in connection with the
operation, repair, maintenance, cleaning, management and
protection of the Property, and its mechanical systems
including, without limitation, day and night supervisors,
property manager, accountants, bookkeepers, janitors,
carpenters, engineers, mechanics, electricians and plumbers
and personnel engaged in supervision of any of the persons
mentioned above: provided that, if any such employee is also
employed on other property of Landlord, such compensation
shall be suitably allocated by Landlord among the Property and
such other properties.
2. The cost of services, materials and supplies furnished or used
in the operation, repair, maintenance, cleaning, management
and protection of the Property including, without limitation,
fees and assessments, if any, imposed upon Landlord, or
charged to the Property, by any governmental agency or
authority or other duly authorized private or public entity on
account of public safety services, transit, housing, police,
fire, sanitation or other services or purported benefits.
3. The cost of replacements for tools and other similar equipment
used in the repair, maintenance, cleaning and protection of
the Property, provided that, in the case of any such equipment
used jointly on other property of Landlord, such costs shall
be allocated by Landlord among the Property and such other
properties.
4. Premiums for insurance against damage or loss to the Building
from such hazards as shall from time to time be generally
required by institutional mortgagees in the Boston area for
similar properties, including, but not by way of limitation,
insurance covering loss of rent attributable to any such
hazards, and public liability insurance.
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5. Where the Property is managed by Landlord or an affiliate of
Landlord, a sum equal to the amounts customarily charged by
management firms in the Boston area for similar properties,
but in no event more than six percent (6%) of gross annual
income, whether or not actually paid, or where managed by
other than Landlord or an affiliate thereof, the amounts
accrued for management, together with, in either case, amounts
accrued for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in
connection with services rendered for securing or renewing
leases and for matters not related to the normal
administration and operation of the Building.
6. If, during the Term of this Lease, Landlord shall make a
capital expenditure, the total cost of which is not properly
includable in Operating Expenses for the Operating Year in
which it was made, there shall nevertheless be included in
such Operating Expenses for the operating Year in which it was
made and in Operating Expenses for each succeeding Operating
Year, an annual charge-off of such capital expenditure. The
annual charge-off shall be determined by dividing the original
capital expenditure plus an interest factor, reasonably
determined by Landlord, as being the interest rate then being
charged for long-term mortgages, by institutional lenders on
like properties within the locality in which the Building is
located, by the number of years of useful life of the capital
expenditure, and the useful life shall be determined
reasonably by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of
making such expenditure.
7. Betterment assessments provided the same are apportioned
equally over the longest period permitted by law.
8. Amounts paid to independent contractors for services,
materials and supplies furnished for the operation, repair,
maintenance, cleaning and protection of the Property.
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