EXHIBIT 10.1
NORTHWEST PARK
LEASE
ARTICLE 1
Reference Data
1.1 Subject Referred To.
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section
1.1.
Date of this Lease: January 8, 1999
Building: The one-level building in Northwest Park in
Burlington, Massachusetts (hereinafter
referred to as the "Park") constructed on a
parcel of land located at 00 Xxxxxx Xxxxxx
(the Building and such parcel of land
hereinafter being collectively referred to
as the "Property").
Premises: The entire Building, substantially as shown
on Exhibit A attached hereto.
Rentable Floor
Area of Premises: Approximately 27,235 square feet
Landlord: Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, as
Trustees of Northwest Associates under
Declaration of Trust dated December 9, 1971
and filed with Middlesex South District of
the Land Court as Document No. 493351.
Original Notice
Address of Landlord: c/x Xxxxxxxx Management Company, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Tenant: VIP Calling, Inc., a Delaware corporation
Original Notice
Address of Tenant: 00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Expiration Date: The last day of the sixth (6th) lease year
(as hereinafter defined)
Delivery Date: March 15, 1999
Annual Fixed
Rent Rate: $435,760.00 during the first 3 lease years;
and $490,230.00 thereafter
Monthly Fixed
Rent Rate: $36,313.33 during the first 3 lease years;
and $40,852.50 thereafter
Security and
Restoration
Deposit: $217,879.98 (subject to reduction pursuant
to Section 4.4)
Initial Estimate
of Taxes for the
Tax Year: $43,584.00
Initial Estimate
of Operating Costs
for the Calendar
Year: $36,492.00
Permitted Uses: General business offices and light assembly
of equipment.
Public Liability
Insurance Limits:
Comprehensive General Liability: $2,000,000 per occurrence
$4,000,000 general aggregate
1.2 Exhibits.
The Exhibits listed below in this section are incorporated in this Lease
by reference and are to be construed as a part of this Lease.
EXHIBIT A Plan showing the Premises.
EXHIBIT B Commencement Date Notification
EXHIBIT C Work Letter
EXHIBIT D Work Change Order
EXHIBIT E Rules and Regulations
EXHIBIT F Form Tenant Estoppel Certificate
1.3 Table of Articles and Sections.
ARTICLE I -- Reference Data
1.1 Subjects Referred To ............................................
1.2 Exhibits ........................................................
1.3 Table of Articles and Sections ..................................
1
ARTICLE 2 -- Premises and Term
2.1 Premises ...........................................................
2.2 Term ...............................................................
2.3 Extension Option ...................................................
ARTICLE 3 -- Improvements
3.1 Performance of Work and Approval of Landlord's Work ................
3.2 Acceptance of the Premises .........................................
ARTICLE 4 -- Rent
4.1 The Fixed Rent .....................................................
4.2 Additional Rent ....................................................
4.2.1 Real Estate Taxes ...........................................
4.2.2 Personal Property Taxes .....................................
4.2.3 Operating Costs .............................................
4.2.4 Insurance ...................................................
4.2.5 Utilities ...................................................
4.3 Late Payment of Rent ...............................................
4.4 Security and Restoration Deposit ...................................
ARTICLE 5 -- Landlord's Covenants
5.1 Affirmative Covenants ..............................................
5.1.1 Water .......................................................
5.1.2 Fire Alarm ..................................................
5.1.3 Repairs .....................................................
5.1.4 Landscaping .................................................
5.2 Interruption .......................................................
ARTICLE 6 -- Tenant's Additional Covenants
6.1 Affirmative Covenants ..............................................
6.1.1 Perform obligations ..........................................
6.1.2 Use ..........................................................
6.1.3 Repair and Maintenance .......................................
6.1.4 Compliance with Law ..........................................
6.1.5 Indemnification ..............................................
6.1.6 Landlord's Right to Enter ....................................
6.1.7 Personal Property at Tenant's Risk ...........................
6.1.8 Payment of Landlord's Cost of Enforcement ....................
6.1.9 Yield Up .....................................................
6.1.10 Rules and Regulations .......................................
6.1.11 Estoppel Certificate ........................................
6.1.12 Landlord's Expenses Re: Consents ............................
6.2 Negative Covenants .................................................
6.2.1 Assignment and Subletting ...................................
6.2.2 Nuisance ....................................................
6.2.3 Hazardous Wastes and Materials ..............................
6.2.4 Floor Load; Heavy Equipment .................................
6.2.5 Installation, Alterations or Additions ......................
6.2.6 Abandonment .................................................
6.2.7 Signs .......................................................
6.2.8 Parking and Storage .........................................
ARTICLE 7 -- Casualty or Taking
7.1 Termination ........................................................
7.2 Restoration ........................................................
7.3 Award ..............................................................
ARTICLE 8 -- Defaults
8.1 Events of Default ..................................................
8.2 Remedies ...........................................................
8.3 Remedies Cumulative ................................................
8.4 Landlord's Right to Cure Defaults ..................................
8.5 Effect of Waivers of Default .......................................
8.6 No Waiver, etc. ....................................................
8.7 No Accord and Satisfaction .........................................
ARTICLE 9 -- Rights of Mortgage Holders
9.1 Rights of Mortgage Holders .........................................
9.2 Lease Superior or Subordinate to Mortgages .........................
ARTICLE 10 -- Miscellaneous Provisions
10.1 Notices From One Party to the Other ................................
10.2 Quiet Enjoyment ....................................................
10.3 Lease Not to be Recorded ...........................................
10.4 Limitation of Landlord's Liability .................................
10.5 Acts of God ........................................................
10.6 Landlord's Default .................................................
10.7 Brokerage ..........................................................
10.8 Applicable Law and Construction ....................................
2
ARTICLE 2
Premises and Term
2.1 Premises, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, excluding, however,
the use of the roof of the Building for telecommunications equipment,
Landlord reserving the right, from time to time, without unreasonable
interference with Xxxxxx's use of the Premises, to install, use and repair
telecommunications equipment on the roof of the Building.
Tenant shall be permitted to use up to 108 parking spaces in the parking
area on the Property.
2.2 Term. TO HAVE AND TO HOLD for a term (the "original term") beginning on
the Commencement Date, which shall be the earlier of (a) the date on which
the work to be performed by Landlord pursuant to Exhibit C has been
substantially completed or (b) the opening by Tenant of its business in
the Premises, and ending on the Expiration Date, unless sooner terminated
as hereinafter provided. The term "substantially completed" as used herein
shall mean that (a) the work to be performed by Landlord pursuant to
Exhibit C has been completed with the exception of minor items which can
be fully completed without material interference with Tenant and other
items which because of the season or weather or the nature of the item are
not practicable to do at the time, provided that none of said items is
necessary to make the Premises tenantable for the Permitted Uses, and (b)
a temporary certificate of occupancy has been issued. When the dates of
the beginning and end of the term have been determined, such dates shall
be evidenced by a document, in the form attached hereto as Exhibit B,
which Landlord shall complete and deliver to Tenant, and which shall be
deemed conclusive unless Tenant shall notify Landlord of any disagreement
therewith within ten (10) days of receipt.
The term "lease year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first lease year shall begin on the
Commencement Date if the Commencement Date is the first day of a calendar
month; if not, then the first lease year shall commence upon the first day
of the calendar month next following the Commencement Date. Each
succeeding lease year shall commence upon the anniversary date of the
first lease year.
2.3 Extension Option. Provided that as of the date of the notice specified
below, Tenant is not in default and has not previously been in default of
its obligations under this Lease beyond any applicable grace period more
than once, Tenant shall have the right to extend the term of this Lease
for one additional period of five (5) years, to begin immediately upon the
expiration of the original term of this Lease (the "extended term"). All
of the terms, covenants and provisions of this Lease shall apply to such
extended terms except that the Annual Fixed Rent Rate for such extension
period shall be the fair market rate at the commencement of such extended
term, as designated by Landlord for comparable buildings in the greater
Burlington area. If Tenant shall elect to exercise the aforesaid option,
it shall do so by giving Landlord notice in writing of its intention to do
so not later than one (1) year prior to the expiration of the original
term of this Lease. If Tenant gives such notice, the extension of this
Lease shall be automatically effected without the execution of any
additional documents. The original term and the extended term are
hereinafter collectively called the "term".
If the Tenant disagrees with Landlord's designation of the market rate,
and the parties cannot agree upon the market rate, then the market rate
shall be submitted to arbitration as follows: market rate shall be
determined by impartial arbitrators, one to be chosen by the Landlord, one
to be chosen by Xxxxxx, and a third to be selected, if necessary, as below
provided. The unanimous written decision of the two first chosen, without
selection and participation of a third arbitrator, or otherwise, the
written decision of a majority of three arbitrators chosen and selected as
aforesaid, shall be conclusive and binding upon Landlord and Tenant.
Landlord and Tenant shall each notify the other of its chosen arbitrator
within ten (10) days following the call for arbitration and, unless such
two arbitrators shall have reached a unanimous decision within thirty (30)
days after their designations, they shall so notify the then President of
the Boston Bar Association and request him to select an impartial third
arbitrator, who shall be another office building owner, a real estate
counselor or a broker dealing with like types of properties, to determine
market rate as herein defined. Such third arbitrator and the first two
chosen shall hear the parties and their evidence and render their decision
within thirty (30) days following the conclusion of such hearing and
notify Landlord and Tenant thereof. Landlord and Tenant shall share
equally the expense of the third arbitrator (if any). If the dispute
between the parties as to a market rate has not been resolved before the
commencement of Tenant's obligation to pay Fixed Rent based upon such
market rate, then Tenant shall pay Fixed Rent under the Lease based upon
the market rate designated by Landlord until either the agreement of the
parties as to the market rate, or the decision of the arbitrators, as the
case may be, at which time Tenant shall pay any underpayment of Fixed Rent
to Landlord, or Landlord shall refund any overpayment of Fixed Rent to
Tenant.
In any event, the Annual Fixed Rent Rate for the extended term shall not
be less than the Annual Fixed Rent Rate in effect immediately prior to
such extended term.
ARTICLE 3
Improvements
3.1 Performance of Work and Approval of Landlord's Work. Landlord shall cause
to be performed the work (the "Landlord's Work") required by Exhibit C,
the Work Letter. Xxxxxxxx's Work shall be done in a good and workmanlike
manner employing new and first-quality materials. Landlord covenants and
warrants for the benefit of Tenant that Landlord's Work shall be performed
so as to conform to all applicable local, state and federal laws,
regulations and ordinances promulgated by governmental authorities with
competent jurisdiction which are in effect on or before the Commencement
Date, including, without limitation, all applicable laws relating to the
removal of architectural barriers to accommodate disabled persons. Xxxxxx
agrees that Landlord may make any changes in such work which may become
reasonably necessary or advisable, other than substantial changes, without
approval of Tenant, provided written notice is promptly given to Tenant;
and Landlord may make substantial changes in such work, with the written
approval of Tenant, which shall not be unreasonably withheld or delayed.
Landlord shall use diligence to cause Xxxxxxxx's Work to be substantially
completed by the Delivery Date, subject to the provisions of Section 10.5
hereof. Landlord agrees that Tenant may make changes in such work with the
approval of Landlord and the execution by Xxxxxxxx and Tenant of a Work
Change Order, in the form attached hereto as Exhibit D. Tenant shall pay
to Landlord a contribution in the amount of $106,000.00 (subject to
adjustment by Work Change Order) toward the costs incurred by Landlord in
performing the work set forth in Exhibit C, payment to be made as follows:
(a) an amount equal to fifty (50%) percent of such contribution upon
execution of this Lease, (b) forty (40%) percent of such contribution upon
the earlier of substantial completion of the work or the opening by Tenant
of its business in the Premises and (c) the balance of such contribution
upon Xxxxxxxx's submission of the final bill.
3.2 Acceptance of the Premises. Tenant or its representatives may, at
reasonable times, enter upon the Premises during the progress of the work
to inspect the progress thereof and to determine if the work is being
performed in accordance with the requirements of Section 3.1. Tenant shall
promptly give to Landlord notices of any alleged failure by Landlord to
comply with those requirements. Xxxxxxxx's Work shall be deemed approved
by Tenant when Tenant occupies the Premises for the conduct of its
business, except for (a) items of Landlord's Work which are uncompleted or
do not conform to Exhibit C and as to which Tenant shall, in either case,
have given written notice to Landlord prior to such occupancy and (b) a
punch-list prepared by Landlord and Tenant based on an inspection made by
the parties on the date on which Tenant occupies the Premises for the
conduct of its business. Landlord shall forthwith correct all defects
noted on such punch-list within thirty (30) days thereafter, except for
items which by their nature cannot be corrected within said thirty (30)
day period, provided that Landlord shall use reasonable efforts to correct
such items expeditiously. A certificate of completion by a licensed
architect or registered engineer shall be conclusive evidence that
Xxxxxxxx's Work has been completed except for items stated in such
certificate to be incomplete or not in conformity with Exhibit C.
3
ARTICLE 4
Rent
4.1 The Fixed Rent. Tenant covenants and agrees to pay rent to Landlord at the
Original Address of Landlord or as such other place or to such other
person or entity as Landlord may by notice in writing to Tenant from time
to time direct, at the Annual Fixed Rent Rate, in equal installments as
the Monthly Fixed Rent Rate (which is 1/12th of the Annual Fixed Rent
Rate), in advance, on the first day of each calendar month included in the
term; and for any portion of a calendar month as the beginning of the
term, at the rate for the first lease year payable in advance for such
portion.
If Landlord shall give notice to Tenant that all rent and other payments
due hereunder are to be made to Landlord by electronic funds transfers, so
called, or by similar means, Tenant shall make all such payments as shall
be due after receipt of said notice by means of said electronic funds
transfers (or such similar means as designated by Landlord).
4.2 Additional Rent. Tenant covenants and agrees to pay, an Additional Rent,
insurance costs, utility charges, personal property taxes, real estate
taxes and operating costs with respect to the Premises as provided in this
Section 4.2 as follows:
4.2.1 Real Estate Taxes. Tenant shall pay to Landlord, as additional rent,
for each tax period partially or wholly included its the term, Taxes
(as hereinafter defined). Tenant shall remit to Landlord, on the
first day of each calendar month, estimated payments on account of
Taxes, such monthly amounts to be sufficient to provide Landlord, by
the time real estate tax payments are due and payable to any
governmental authority responsible for collection of same, a sum
equal to the Taxes, as reasonably estimated by Xxxxxxxx from time to
time on the basis of the most recent tax data available. The initial
calculation of the monthly estimated payments shall be based upon
the Initial Estimate of Taxes for the Tax Year and upon quarterly
payments being due to the governmental authority on August 1,
November 1, February 1 and May 1, and shall be made when the
Commencement Date has been determined. If the total of such monthly
remittances for any Tax Year is greater than the actual Taxes for
such Tax Year, Landlord shall promptly pay to Tenant, or credit
against the next accruing payments to be made by Tenant pursuant to
this subsection 4.2.1, the difference; if the total of such
remittances is less than the actual Taxes for such Tax Year, Tenant
shall pay the difference to Landlord at least ten (10) days prior to
the date or dates within such Tax Year that any Taxes become due and
payable to the governmental authority (but in any event no earlier
than ten (10) days following a written notice to Tenant, which
notice shall set forth the manner of computation of Tenant's
Percentage of Taxes).
If, after Tenant shall have made reimbursement to Landlord pursuant
to this subsection 4.2.1, Landlord shall receive a refund of any
portion of Taxes paid by Tenant with respect to any Tax Year during
the term hereof as a result of an abatement of such Taxes by legal
proceedings, settlement or otherwise (without either party having
any obligation to undertake any such proceedings), Landlord shall
promptly pay to Tenant, or credit against the next accruing payments
to be made by Tenant pursuant to this subsection 4.2.1, the Tenant's
Percentage of the refund (less the expenses, including reasonable
attorneys' fees and reasonable appraisers' fees, incurred in
connection with obtaining any such refund), as relates to Taxes paid
by Tenant to Landlord with respect to any Tax Year for which such
refund is obtained.
In the event this Lease shall commence, or shall end (by reason of
expiration of the term or earlier termination pursuant to the
provisions hereof), on any date other than the first or last day of
the Tax Year, or should the Tax Year or period of assessment of real
estate taxes be changed or be more or less than one (1) year, as the
case may be, then the amount of Taxes which may be payable by Tenant
as provided in this subsection 4.2.1 shall be appropriately
apportioned and adjusted.
The term "Taxes" shall mean all taxes, assessments, betterments and
other charges and impositions (including, but not limited to, fire
protection service fees and similar charges) levied, assessed or
imposed at any time during the term by any governmental authority
upon or against the Property, or taxes in lieu thereof, and
additional types of taxes to supplement real estate taxes due to
legal limits imposed thereon. If, at any time during the term of
this Lease, any tax or excise on rents or other taxes, however
described, are levied or assessed against Landlord with respect to
the rent reserved hereunder, either wholly or partially in
substitution for, or in addition to, real estate taxes assessed or
levied on the Property, such tax or excise on rents shall be
included in Taxes; however, Taxes shall not include franchise,
estate, inheritance, succession, capital levy, transfer, income or
excess profits taxes assessed on Landlord. Taxes shall include any
estimated payments made by Landlord on account of a fiscal tax
period for which the actual and final amount of taxes for such
period has not been determined by the governmental authority as of
the date of any such estimated payment.
4.2.2 Personal Property Taxes. Tenant shall pay all taxes charged,
assessed or imposed upon the personal property of Tenant in or upon
the Premises.
4.2.3 Operating Costs. Tenant shall pay to Landlord the Operating Costs
(as hereinafter defined) incurred by Landlord in any calendar year.
Tenant shall remit to Landlord, on the first day of each calendar
month, estimated payments on account of Operating Costs, such
monthly amounts to be sufficient to provide Landlord, by the end of
the calendar year, a sum equal to the Operating Costs, as reasonably
estimated by Xxxxxxxx from time to time. The initial monthly
estimated payments shall be in an amount equal to 1/12th of the
Initial Estimate of Operating Costs for the Calendar Year. If, at
the expiration of the year in respect of which monthly installments
of Operating Costs shall have been made as aforesaid, the total of
such monthly remittances is greater than the actual Operating Costs
for such year, Landlord shall promptly pay to Tenant, or credit
against the next accruing payments to be made by Tenant pursuant to
this subsection 4.2.3, the difference; if the total of such
remittances is less than the Operating Costs for such year, Tenant
shall pay the difference to Landlord within twenty (20) days from
the date Landlord shall furnish to Tenant an itemized statement of
the Operating Costs, prepared, allocated and computed in accordance
with generally accepted accounting principles. Any reimbursement
for Operating Costs due and payable by Tenant with respect to
periods of less than twelve (12) months shall be equitably prorated.
The term "Operating Costs" shall mean all costs and expenses
incurred for the operation, cleaning, maintenance, repair and upkeep
of the Property, and the portion of such costs and expenses with
regard to the common areas, facilities and amenities of the Park
which is equitably allocable to the Property, including, without
limitation, all costs of maintaining and repairing the Property and
the Park (including snow removal, landscaping and grounds
maintenance, operation and maintenance of parking lots, sidewalks,
walking paths, access roads and driveways, security, and repair of
heating and air-conditioning equipment, lighting and any other
Building equipment or system) and of all repairs and replacements,
subject to the last paragraph of this subsection 4.2.3 (other than
repairs or replacements for which Landlord has received full
reimbursement from contractors or from others) necessary to keep the
Property and the Park in good working order, repair, appearance and
condition; all costs, including material and equipment costs; all
costs of any reasonable insurance carried by Landlord relating to
the Property; payments under all service contracts relating to the
foregoing; all compensation, fringe benefits, payroll taxes and
workmen's compensation insurance premiums related thereto with
respect to any employees of Landlord or its affiliates engaged in
security and maintenance of the Property and the Park; to the extent
relating to the operation of the Property, reasonable attorneys'
fees and disbursements (exclusive of any such fees and disbursements
incurred in tax abatement proceedings or the preparation of taxes)
and reasonable auditing and other professional fees and expenses;
and a management fee comparable to management fees charged by other
landlords of similar office property in the greater Burlington area.
4
There shall not be included in such Operating Costs brokerage fees
(including rental fees) related to the operation of the Building;
interest and depreciation charges incurred on the Property;
expenditures made by Tenant with respect to (i) cleaning, trash
removal, maintenance and upkeep of the Premises, and (ii) the
provision of electricity to the Premises; Landlord's advertising and
marketing costs; matters for which Landlord is reimbursed by
insurance; Landlord's negligence; mortgage and debt service payments
(including payments of principal, interest and other charges due
under any mortgage or deed of trust); salaries of executives or
principals of Landlord; expenses for which Landlord, by the terms of
this Lease, makes a separate charge; and any costs incurred by
Landlord for alterations or improvements to the Premises on account
of Landlord's failure to perform the Landlord's Work in compliance
with applicable laws in effect on or before the Commencement Date.
If, during the term of this Lease, Landlord shall replace any
capital items or make any capital expenditures (collectively called
"capital expenditures") the total amount of which is not properly
included in Operating Costs for the calendar year in which they were
made, there shall nevertheless be included in Operating Costs for
each calendar year in which and after such capital expenditure is
made the annual charge-off of such capital expenditure. (Annual
charge-off shall be determined by (i) dividing the original cost of
the capital expenditure by the number of years of useful life
thereof [The useful life shall be reasonably determined by Landlord
in accordance with generally accepted accounting principles and
practices in effect at the time of acquisition of the capital
item.]; and (ii) adding to such quotient an interest factor computed
on the unamortized balance of such capital expenditure based upon an
interest rate 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.) Provided, further, that if Landlord
reasonably concludes on the basis of engineering estimates that a
particular capital expenditure will effect savings in Operating
Costs and that such annual projected savings will exceed the annual
charge-off of capital expenditure computed as aforesaid, then and in
such events, the annual charge-off shall be determined by dividing
the amount of such capital expenditure by the number of years over
which the projected amount of such savings shall fully amortize the
cost of such capital item or the amount of such capital expenditure;
and by adding the interest factor, as aforesaid.
4.2.4 Insurance. Tenant shall, at its expense, as Additional Rent, take
out and maintain throughout the terms the following insurance
protecting Landlord:
4.2.4.1 Comprehensive liability insurance naming Landlord, Tenant,
and Xxxxxxxx's managing agent and any mortgagee of which
Xxxxxx has been given notice as insureds or additional
insureds and indemnifying the parties so named against all
claims and demands for death or any injury to person or
damage to property which may be claimed to have occurred on
the Premises (or the Property, insofar as used by
customers, employees, servants or invitees of the Tenant),
in amounts which shall, at the beginning of the term, be at
least equal to the limits set forth in Section 1.1, and,
which, from time to time during the term, shall be for such
higher limits, if any, as are customarily carried in the
area in which the Premises are located on property similar
to the Premises and used for similar purposes; and
workmen's compensation insurance with statutory limits
covering all of Tenant's employees working on the Premises.
4.2.4.2 Fire insurance with the usual extended coverage
endorsements covering all Tenant's furniture, furnishings.
fixtures and equipment.
4.2.4.3 All such policies shall be obtained from responsible
companies qualified to do business and in good standing in
Massachusetts, which companies and the amount of insurance
allocated thereto shall be subject to Landlord's approval.
Xxxxxx agrees to furnish Landlord with certificates
evidencing all such insurance prior to the beginning of the
term hereof and evidencing renewal thereof at least thirty
(30) days prior to the expiration of any such policy. Each
such policy shall be non-cancelable with respect to the
interest of Landlord without at least ten (10) days' prior
written notice thereto. In the event provision for any such
insurance is to be by a blanket insurance policy, the
policy shall allocate a specific and sufficient amount of
coverage to the Premises.
4.2.4.4 All insurance which is carried by either party with respect
to the Premises or to furniture, furnishings, fixtures, or
equipment therein or alterations or improvements thereto,
whether or not required, shall include provisions which
either designate the other party as one of the insured or
deny to the insurer acquisition by subrogation of rights of
recovery against the other party to the extent such rights
have been waived by the insured party prior to occurrence
of loss or injury, insofar as, and to the extent that, such
provisions may be effective without making it impossible to
obtain insurance coverage from responsible companies
qualified to do business in the state in which the Premises
are located (even though extra premium may result
therefrom). In the event that extra premium is payable by
either party as a result of this provision, the other party
shall reimburse the party paying such premium the amount of
such extra premium. If at the request of one party, this
non-subrogation provision is waived, then the obligation of
reimbursement shall cease for such period of time as such
waiver shall be effective, but nothing contained in this
subsection shall derogate from or otherwise affect releases
elsewhere herein contained of either party for claims. Each
party shall be entitled to have certificates of any
policies containing such provisions. Each party hereby
waives all rights of recovery against the other for loss or
injury against which the waiving party is protected by
insurance containing said provisions, reserving, however,
any rights with respect to any excess of loss or injury
over the amount recovered by such insurance. Tenant shall
not acquire as insured under any insurance carried on the
Premises any right to participate in the adjustment of loss
or to receive insurance proceeds and agrees upon request
promptly to endorse and deliver to Landlord any checks or
other instruments in payment of loss in which Tenant is
named as payee.
4.2.5 Utilities. Tenant shall pay all charges made by public authority or
utility for the cost of electricity, gas and water (including sewer
charges), telephone and other utilities or services furnished or
consumed on the Premises, whether designated as a charge, tax,
assessment, fee or otherwise, all such charges to be paid as the
same from time to time become due. It is understood and agreed that
Tenant shall make its own arrangements for the installation or
provision of all such utilities and that Landlord shall be under no
obligation to furnish any utilities to the Premises and shall not be
liable for any interruption or failure in the supply of any such
utilities to the Premises.
4.3 Late Payment of Rent. If any installment of rent is paid more than five
(5) days after the date the same was due, and if on a prior occasion in
the twelve (12) month period prior to the date such installment was due an
installment of rent was paid after the same was due, then Tenant shall pay
Landlord a late payment fee equal to five (5%) percent of the overdue
payment.
4.4 Security and Restoration Deposit. Upon the execution of this Lease, Tenant
shall deposit with Landlord the Security and Restoration Deposit, which
Landlord shall deposit in its name in an interest-bearing account. Said
deposit shall be held by Landlord as security for the faithful performance
by Tenant of all the terms of this Lease by said Xxxxxx to be observed and
performed. The security deposit shall not be mortgaged, assigned,
transferred or encumbered by Tenant without the written consent of
Landlord and any such act on the part of Tenant shall be without force and
effect and shall not be binding upon Landlord.
If the Fixed Rent or Additional Rent payable hereunder shall be overdue
and unpaid or should Landlord make payments on behalf of the Tenant, or
Tenant shall fail to perform any of the terms of this Lease in all cases
beyond the expiration of all applicable notice and cure periods, then
Landlord may, at its option and without prejudice to any other remedy
which Landlord may have on account thereof, appropriate and apply said
entire deposit or so much thereof as may be necessary to compensate
Landlord toward the payment of Fixed Rent, Additional Rent or other sums
or loss or damage sustained by Landlord due to such breach on the part of
Tenant; and Tenant shall forthwith upon demand restore said security to
the original sum deposited. Should Tenant comply with all of said terms
5
and promptly pay all of the rentals as they fall due and all other sums
payable by Tenant to Landlord, said deposit and any interest earned
xxxxxxx shall be resumed in full to Tenant at the end of the term.
In the event of bankruptcy or other creditor-debtor proceedings against
Tenant, all securities shall be deemed to be applied first to the payment
of rent and other charges due Landlord for all periods prior to the filing
of such proceedings.
If Tenant has any net income for any quarter of a fiscal year of Tenant,
and provides Landlord with an audited statement reporting such net income,
and provided Tenant is not then in default under this Lease, the Security
and Restoration Deposit shall be reduced to an amount equal to the product
of the Monthly Fixed Rent Rate then in effect times four, and Landlord
shall promptly return to Tenant the amount necessary to effect such
reduction. This reduction shall only be effected one time during the term
of this Lease.
ARTICLE 5
Landlord's Covenants
5.1 Affirmative Covenants. Landlord covenants with Tenant:
5.1.1 Water. To furnish water for ordinary cleaning, lavatory and toilet
facilities.
5.1.2 Fire Alarm. To maintain fire alarm systems within the Building.
5.1.3 Repairs. Except as otherwise expressly provided herein, to make such
repairs and replacements to the roof, exterior walls, floor slabs
and other structural components of the Building, and to the
plumbing, electrical, heating, ventilating and air-conditioning
system of the Building as may be necessary to keep them in good
repair and condition and in compliance with applicable laws
(exclusive of equipment installed by Tenant and except for those
repairs required to be made by Tenant pursuant to Section 6.1.3
hereof and repairs or replacements occasioned by any act or
negligence of Tenant, its servants, agents, customers, contractors,
employees, invitees, or licensees).
5.1.4 Landscaping. To provide landscaping and grounds maintenance
services for the Property.
5.2 Interruption. Landlord shall be under no responsibility or liability for
failure or interruption of any of the above-described services, repairs or
replacements caused by breakage, accident, strikes, repairs, inability to
obtain supplies, labor or materials, or for any other causes beyond the
control of the Landlord, and in no event for any indirect or consequential
damages to Tenant; and failure or omission on the part of the Landlord to
furnish any of same for any of the reasons set forth in this paragraph
shall not be construed as an eviction of Tenant, actual or constructive,
nor entitle Tenant to an abasement of rent, nor render the Landlord liable
in damages, nor release Tenant from prompt fulfillment of any of its
covenants under this Lease. However, in each instance of a failure or
interruption, Landlord shall use best efforts to remedy the cause thereof.
ARTICLE 6
Tenant's Additional Covenants
6.1 Affirmative Covenants. Tenant covenants at all times during the term and
for such further time (prior or subsequent thereto) as Tenant occupies the
Premises or any part thereof:
6.1.1 Perform Obligations. To perform promptly all of the obligations of
Tenant set forth in this Lease; and to pay when due the Fixed Rent
and Additional Rent and all charges, rates and other sums which by
the terms of this Lease are to be paid by Xxxxxx.
6.1.2 Use. To use the Premises only for the Permitted Uses, and from time
to time to procure all licenses and permits necessary therefor, at
Tenant's sole expense. With respect to any licenses or permits for
which Tenant may apply, pursuant to this subsection 6.1.2 or any
other provision hereof, Tenant shall furnish Landlord copies of
applications therefor on or before their submission to the
governmental authority.
6.1.3 Repair and Maintenance. Except for Landlord repairs referenced in
Section 5.1.3 hereinabove, to maintain the Premises in neat order
and condition and to provide for all cleaning and janitorial
services to the Premises and to cause all trash to be removed from
the Premises, and to perform all routine and ordinary repairs to the
Premises and to any plumbing, heating, electrical, ventilating and
air-conditioning system located within the Premises and installed by
Tenant such as are necessary to keep them in good working order,
appearance and condition, as the case may require, reasonable use
and wear thereof and damage by fire or by unavoidable casualty only
excepted; to keep all glass in windows and doors of the Premises
(except glass in the exterior walls of the Building) whole and in
good condition with glass of the same quality as that injured or
broken; and to make as and when needed as result of misuse by, or
neglect or improper conduct of Tenant or Tenant's servants,
employees, agents, invitees or licensees or otherwise, all repairs
necessary, which repairs and replacements shall be in quality and
class equal to the original work. (Landlord, upon default of Tenant
hereunder and upon prior notice to Tenant, may elect, at the expense
of Tenant, to perform all such cleaning and maintenance and to make
any such repairs or to repair any damage or injury to the Premises
caused by moving property of Tenant in or out of the Building, or by
installation or removal of furniture or other property, or by misuse
by, or neglect, or improper conduct of, Tenant or Tenant's
servants, employees, agents, contractors, customers, patrons,
invitees, or licensees.)
6.1.4 Compliance with Law. To the extent required as a result of
alterations performed by or on behalf of Tenant pursuant to Section
6.2.5 below or any other act of Tenant or by Tenant's particular use
of the Premises and not required for office buildings generally, to
make all repairs, alterations, additions or replacements to the
Premises required by any law or ordinance or any order or regulation
of any public authority; to keep the Premises equipped with all
safety appliances so required; and to comply with the orders and
regulations of all governmental authorities with respect to zoning,
building, fire, health and other codes, regulations, ordinances or
laws applicable to the Tenant's use of the Premises, except that
Tenant may defer compliance so long as the validity of any such law,
ordinance, order or regulations shall be contested by Tenant in good
faith and by appropriate legal proceedings, if Tenant first gives
Landlord appropriate assurance or security against any loss, cost or
expense on account thereof.
6.1.5 Indemnification. To save harmless, exonerate and indemnify Landlord,
its agents (including, without limitation, Xxxxxxxx's managing
agent) and employees (such agents and employees being referred to
collectively as the "Landlord Related Parties") from and against any
and all claims, liabilities or penalties asserted by or on behalf of
any person, firm, corporation or public authority on account of
injury, death, damage or loss to person or property in or upon the
Premises and the Property arising out of the use or occupancy of the
Premises by Tenant or by any person claiming by, through or under
Tenant (including, without limitation, all patrons, employees and
customers of Tenant), or arising out of any delivery to or service
supplied to the Premises, or on account of or based upon anything
whatsoever done on the Premises, except if the same was caused by
the willful negligence, fault or misconduct of Landlord or the
Landlord Related Parties. In respect of all of the foregoing, Tenant
shall indemnify Landlord and the Landlord Related Parties from and
against all costs,
6
expenses (including reasonable attorneys' fees), and liabilities
incurred in or in connection with any such claim, action or
proceeding brought thereon; and, in case of any action or
proceeding brought against Landlord or the Landlord Related Parties
by reason of any such claim, Tenant, upon notice from Landlord and
at Xxxxxx's expense, shall resist or defend such action or
proceeding and employ counsel therefor reasonably satisfactory to
Landlord.
6.1.6 Landlord's Right to Enter. Provided that Landlord does not
materially interfere with Xxxxxx's use or enjoyment of the
Premises, to permit Landlord and its agents to enter into and
examine the Premises at reasonable times and to show the Premises,
and to make repairs to the Premises, and, during the last six (6)
months prior to the expiration of this Lease, to keep affixed in
suitable places notices of availability of the Premises.
6.1.7 Personal Property at Tenant's Risk. All of the furnishings,
fixtures, equipment, effects and property of every kind, nature and
description of Tenant and of all persons claiming by, through or
under Tenant which, during the continuance of this lease or any
occupancy of the Premises by Tenant or anyone claiming under
Tenant, may be on the Premises, shall be at the sole risk and
hazard of Tenant and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage
or bursting of water pipes, steam pipes, or other pipes, by theft
or from any other cause, no part of said loss or damage is to be
charged to or to be borne by Landlord, except that Landlord shall
in no event be indemnified or held harmless or exonerated from any
liability to Tenant or to any other person, for any injury, loss,
damage or liability to the extent prohibited by law or to the
extent resulting from any willful misconduct by Landlord or
Landlord Related Parties.
6.1.8 Payment of Landlord's Cost of Enforcement. To pay on demand
Landlord's expenses, including reasonable attorneys' fees, incurred
in enforcing any obligation of Tenant under this Lease or in curing
any default by Tenant under this Lease as provided in Section 8.4.
6.1.9 Yield Up. At the expiration of the term or earlier termination of
this Lease: to surrender all keys to the Premises; to remove all of
its trade fixtures and personal property in the Premises; to
deliver to Landlord stamped architectural plans showing the
Premises at yield up (which may be the initial p1ans if Tenant has
made no installations after the Commencement Date); to remove such
installations made by it as Landlord may request (including
computer and telecommunications wiring and cabling, it being
understood that if Tenant leaves such wiring and cabling in a
useable condition, Landlord, although having the right to request
removal thereof, is less likely to so request) and all Tenant's
signs wherever located; to repair all damage caused by such removal
and to yield up the Premises (including all installations and
improvements made by Tenant except for trade fixtures and such of
said installations or improvements as Landlord shall request Tenant
to remove), broom-clean and in the same good order and repair in
which Tenant is obliged to keep and maintain the Premises by the
provisions of Section 6.1.3 of this Lease. Any property not so
removed shall be deemed abandoned and, if Landlord so elects,
deemed to be Landlord's property, and may be retained or removed
and disposed of by Landlord in such manner as Landlord shall
determine and Tenant shall pay Landlord the entire cost and expense
incurred by it in effecting such removal and disposition and in
making any incidental repairs and replacements to the Premises and
for use and occupancy during the period after the expiration of the
term and prior to its performance of its obligations under this
subsection 6.1.9.
If the Tenant remains in the Premises beyond the expiration or
earlier termination of this Lease, such holding over shall be
without right and shall not be deemed to create any tenancy, but
the Tenant shall be a tenant at sufferance only at a daily rate of
rent equal to two (2) times the rent and other charges in effect
under this Lease as of the day prior to the date of expiration of
this Lease. Tenant shall further indemnify Landlord against all
reasonable loss, cost and damage resulting from Xxxxxx's failure
and delay in surrendering the Premises.
6.1.10 Rules and Regulations. To comply with the Rules and Regulations set
forth in Exhibit E, and with all reasonable Rules and Regulations
hereafter made by Landlord, of which Tenant has been given notice.
6.1.11 Estoppel Certificate. Upon not less than fifteen (15) days' prior
written request by Xxxxxxxx, to execute, acknowledge and deliver to
Landlord a statement in writing, in the form attached hereto as
Exhibit F, certifying all or any of the following: (i) that this
Lease is unmodified and in full force and effect, (ii) whether the
term has commenced and Fixed Rent and Additional Rent have become
payable hereunder and, if so, the dates to which they have been
paid, (iii) whether or not Landlord is in default in performance of
any of the terms of this Lease, (iv) whether Tenant has accepted
possession of the Premises, (v) whether Xxxxxx has made any claim
against Landlord under this Lease and, if so, the nature thereof
and the dollar amount, if any, of such claim, (vi) whether there
exist any offsets or defenses against enforcement of any of the
terms of this Lease upon the part of Tenant to be performed, and
(vii) such further information with respect to the Lease or the
Premises as Landlord may reasonably request. Any such statement
delivered pursuant to this subsection 6.1.11 may be relied upon by
any prospective purchaser or mortgagee of the Premises, or any
prospective assignee of such mortgage. Tenant shall also deliver to
Landlord such financial information as may be reasonably required
by Landlord to be provided to any mortgagee or prospective
purchaser of the Premises.
6.1.12 Landlord's Expenses Re Consents. To reimburse Landlord promptly on
demand for all reasonable legal expenses incurred by Landlord in
connection with all requests by Xxxxxx for consent or approval
hereunder.
6.2 Negative Covenants. Tenant covenants at all times during the term and such
further time (prior or subsequent thereto) as Tenant occupies the Premises
or any part thereof:
6.2.1 Assignment and Subletting. Except for an assignment or subletting
to a wholly-owned subsidiary or a corporation in which Tenant owns
in excess of 25% of the outstanding capital stock (in either case
called a "Permitted Transfer") not to assign, transfer, mortgage or
pledge this Lease or to sublease (which term shall be deemed to
include the granting of concessions and licenses and the like) all
or any part of the Premises or suffer or permit this Lease or the
leasehold estate hereby created or any other rights arising under
this Lease to be assigned, transferred or encumbered, in whole or
in part, whether voluntarily, involuntarily or by operation of law,
or permit the occupancy of the Premises by anyone other than Tenant
without the prior written consent of Landlord. In the event Tenant
desires to assign this Lease or sublet any portion or all of the
Premises, Tenant shall notify Landlord in writing of Xxxxxx's
intent to so assign this Lease or sublet the Premises and the
proposed effective date of such subletting or assignment, and shall
request in such notification that Landlord consent thereto. Except
for a Permitted Transfer, Landlord may terminate this Lease in the
case of a proposed assignment, or suspend this Lease pro tanto for
the period and with respect to the space involved in the case of a
proposed subletting, by giving written notice of termination or
suspension to Tenant, with such termination or suspension to be
effective as of the effective date of such assignment or
subletting. If Landlord does not to terminate or suspend,
Xxxxxxxx's consent shall not be unreasonably withheld to an
assignment or to a subletting, provided that the assignee or
subtenant shall use the Premises only for the Permitted Uses.
Tenant shall, as Additional Rent, reimburse Landlord promptly for
Landlord's reasonable legal expenses incurred in connection with
any request by Tenant for such content. If Landlord consents
thereto, or in the case of a Permitted Transfer, no such subletting
or assignment shall in any way impair the continuing primary
liability of Tenant hereunder, and no consent to any subletting or
assignment in a particular instance shall be deemed to be a waiver
of the obligation to obtain the Landlord's written approval in the
case of any other subletting or assignment.
The provisions of the preceding paragraph shall not apply to
transactions with an entity into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are
transferred, provided that in any of such events (i) the successor
to Xxxxxx 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 reasonably satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior
to the effective
7
date of any such transaction, and (iii) the assignee agrees directly
with Landlord, by written instrument in form satisfactory to
Landlord to perform all the obligations of Tenant.
If for any assignment or sublease consented to by Landlord hereunder
Xxxxxx receives rent or other consideration, either initially or
over the term of the assignment or sublease, in excess of the rent
called for hereunder, or in case of sublease of part, in excess of
such rent fairly allocable to the part, after appropriate
adjustments to assure that all other payments called for hereunder
are appropriately taken into account and after deduction for
reasonable expenses of Tenant in connection with the assignment or
sublease, to pay to Landlord as additional rests fifty (50%) percent
of the excess of each such payment of rent or other consideration
received by Tenant promptly after its receipt.
Whenever Tenant lists with a broker or brokers or otherwise
advertises, holds out or markets the Premises or any part thereof
for sublease or assignment, Tenant shall give Xxxxxxxx Company, as
brokers, a non-exclusive listing with respect to such sublease or
assignment.
If, at any time during the term of this Lease, there is a transfer
of a controlling interest in the stock, membership or general
partnership interests of Tenant, Tenant shall so notify Landlord and
(whether or not Tenant so notifies Landlord) such transfer shall be
deemed an assignment subject to the provisions of the first
paragraph of this Section 6.2.1, except for a transfer of less than
50% of the outstanding stock of Tenant that is not also a transfer
of a controlling interest of Tenant (in which case Landlord's prior
consent is not required). Landlord hereby consents to the assignment
by Tenant of this Lease to an institutional lender ("Leasehold
Mortgagee") as security for the payment of all indebtedness and
performance of obligations under the financing with such Leasehold
Mortgagee. Xxxxxxxx agrees that so long as any such financing shall
remain in effect, the following provisions shall apply:
1. Landlord shall, upon serving Tenant with any notice of
default, promptly serve a copy of such notice upon Leasehold
Mortgagee provided Landlord has previously been given written
notice of the name and address of the Leasehold Mortgagee.
Leasehold Mortgagee shall thereupon have the same period as is
allowed to Tenant, to remedy or cause to be remedied the
defaults specified by Landlord, and Landlord shall accept such
performance by or at the instigation of Leasehold Mortgagee in
response to any such notice of default as if the same had been
performed by Tenants; and
2. Should Tenant be in default under the terms of such financing
Leasehold Mortgagee shall have the right, but not the
obligation, to receive an assignment of this Lease for the
remainder of its term and assume all of Tenant's rights,
duties and obligations under the Lease, provided that as a
condition to such assignment and assumption Leasehold
Mortgagee shall have remedied or caused to be remedied
defaults, if any, under this Lease of which Leasehold
Mortgagee shall have been given written notice prior to such
assignment and assumption, and provided further that the use
of the Premises by any such Leasehold Mortgagee shall be
substantially similar to that of Tenant immediately prior to
the assumption, and that any assignment or subletting by such
Leasehold Mortgagee shall be subject to all of the provisions
of this subsection 6.2.1., except that the third sentence of
the first paragraph shall not be applicable its the case of a
proposed assignment to an entity acquiring substantially all
of the assets of the initial Tenant named herein.
6.2.2 Nuisance. Not to injure, deface or otherwise harm the Premises; nor
commit any nuisance; nor permit in the Premises any vending machine
(except such as is used for the sale of merchandise for employees of
Tenant) or inflammable fluids or chemicals (except such as are
customarily used in connection with standard office equipment); nor
permit any cooking to such extent as requires special exhaust
venting; nor permit the emission of any objectionable noise or odor;
nor make, allow or suffer any waste; nor make any use of the
Premises which is improper, offensive or contrary to any law or
ordinance or which will invalidate any of Landlord's insurance; nor
conduct any auction, fire, "going out of business" or bankruptcy
sales.
6.2.3 Hazardous Wastes and Materials. Not to dispose of any hazardous
wastes, hazardous materials or oil on the Premises or the Property,
or into any of the plumbing, sewage, or drainage systems thereon,
and to indemnify and save Landlord harmless from all claims,
liability, loss or damage arising on account of the use or disposal
of hazardous wastes, hazardous materials or oil, including, without
limitation, liability under any federal, state, or local laws,
requirements and regulations, or damage to any of the aforesaid
system. Tenant shall comply with all governmental reporting
requirements with respect to hazardous wastes, hazardous materials
and oil, and shall deliver to Landlord copies of all reports filed
with governmental authorities.
6.2.4 Floor Load; Heavy Equipment. Not to place a load upon any floor of
the Premises exceeding the floor load per square foot area which
such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weighs and position of
all heavy business machines and equipment, including safes, which
shall be placed so as to distribute the weight. Business machines
and mechanical equipment which cause vibrations or noise shall be
placed and maintained by Tenant at Tenant's expense in settings
sufficient to absorb and prevent vibration, noise and annoyance.
Except if in the due course of Tenant's business operations, Tenant
shall not move any safe, heavy machinery, heavy equipment, freight
or fixtures into or out of the Premises except in such manner and as
such time as Landlord shall in each instance authorize.
6.2.5 Installation, Alterations or Additions. Not to make any
installations, alterations or additions in, to or on the Premises
nor to permit the making of any holes in the walls, partitions,
ceilings or floors nor the installation or modification of any locks
or security devices without on each occasion obtaining the prior
written consent of Landlord, and then only pursuant to plans and
specifications approved by Landlord in advance in each instance;
Tenant shall pay promptly when due the entire cost of any work to
the premises undertaken by Tenant so that the Premises shall at all
times be free of liens for labor and materials, and at Landlord's
request Tenant shall furnish to Landlord a bond or other security
acceptable to Landlord assuring that any work commenced by Tenant
will be completed in accordance with the plans and specifications
theretofore approved by Landlord and assuring that the Premises will
remain free of any mechanics' lien or other encumbrance arising out
of such work. In any event, Tenant shall forthwith bond against or
discharge any mechanics' liens or other encumbrances that may arise
out of such work. Tenant shall procure all necessary licenses and
permits at Tenant's sole expense before undertaking such work. All
such work shall be done in a good and workmanlike manner employing
materials of good quality and so as to conform with all applicable
zoning, building, fire, health and other codes, regulations,
ordinances and laws. Tenant shall save Landlord harmless and
indemnified from all injury, loss, claims or damage to any person or
property occasioned by or growing out of such work.
Not to grant a security interest in, or to lease, any personal
property being installed in the Premises (including, without
limitation, demountable partitions) without first obtaining an
agreement, for the benefit of Landlord, from the secured party or
lessor that such property will be removed within fifteen (15)
business days after notice from Landlord of the expiration or
earlier termination of this Lease and that a failure to so remove
will subject such property to the provisions of subsection 6.1.9 of
the Lease.
6.2.6 Abandonment. Not to abandon or vacate the Premises during the term.
6.2.7 Signs. Not without Landlord's prior written approval to paint or
place any signs or place any curtains, blinds, shades, awnings,
aerials, or the like, visible from outside the Premises. Tenant
shall be permitted to install its identification sign on the
exterior of the Building, subject to Landlord's prior reasonable
approval. Such sign shall be maintained in good repair
8
by Xxxxxx, shall conform to applicable requirements of public
authorities and shall conform with Landlord's sign policy for the
Park.
6.2.8 Parking and Storage. Not to permit any storage of materials outside
of the Premises; nor to permit the use of the parking areas for
either temporary or permanent storage of trucks; nor permit the use
of the Premises for any use for which heavy trucking would be
customary.
ARTICLE 7
Casualty or Taking
7.1 Termination. In the event that the Premises, or any material part thereof,
shall be taken by any public authority or for any public use, or shall be
destroyed or damaged by fire or casualty, or by the action of any public
authority, then this Lease may be terminated at the election of Landlord.
Such election, which may be made notwithstanding the fact that Landlord's
entire interest may have been divested, shall be made by the giving of
notice by Landlord to Tenant within sixty (60) days after the date of the
taking or casualty. In the event the Premises are destroyed or damaged by
fire or casualty, or by the action of public authority, and, in the
reasonable opinion of an independent architect or engineer selected by
Landlord, cannot be repaired or restored within one hundred eighty (180)
days from the time that repair or restoration work would be commenced,
then this Lease may be terminated at the election of Landlord or Tenant,
which election shall be made by the giving to the other party within
thirty (30) days after the date the opinion of the architect or engineer
is made available to all parties.
7.2 Restoration. If neither party elects to so terminate, this Lease shall
continue in force and a just proportion of the rent reserved, according to
the nature and extent of the damages sustained by the Premises, shall be
suspended or abated until the Premises, or what may remain thereof, shall
be put by Landlord in proper condition for use, which Landlord covenants
to do with reasonable diligence to the extent permitted by the net
proceeds of insurance recovered or damages awarded for such taking,
destruction or damage and subject to zoning and building laws or
ordinances then in existence. "Net proceeds of insurance recovered or
damages awarded" refers to the gross amount of such insurance or damages
less the reasonable expenses of Landlord incurred in connection with the
collection of the same, including without limitation, fees and expenses
for legal and appraisal services.
7.3 Award. Irrespective of the form in which recovery maybe had by law, all
rights to damages or compensation shall belong to Landlord in all cases.
Tenant hereby grants to Landlord all of Tenant's rights to such damages
and covenants to deliver such further assignments thereof as Landlord may
from time to time request.
ARTICLE 8
Defaults
8.1 Events of Default. (a) If Tenant shall default in the performance of any
of its obligations to pay the Fixed Rent or Additional Rent hereunder and
if such default shall continue for ten (10) days after written notice from
Landlord designating such default or if within thirty (30) days after
written notice from Landlord to Tenant specifying any other default or
defaults Tenant has not commenced diligently to correct the default or
defaults so specified or has not thereafter diligently pursued such
correction to completion, or (b) if any assignment shall be made by Tenant
or any guarantor of Tenant for the benefit of creditors, or (c) if
Tenant's leasehold interest shall be taken on execution, or (d) if lien or
other involuntary encumbrance is filed against Xxxxxx's leasehold interest
or Xxxxxx's other property, including said leasehold interest, and is not
discharged or bonded over within thirty (30) days thereafter, or (e) if a
petition is filed by Tenant or any guarantor of Tenant for liquidation, or
for reorganization or an arrangement under any provision of any bankruptcy
law or code as then in force and effect, or (f) if an involuntary petition
under any of the provisions of any bankruptcy law or code is filed against
Tenant or any guarantor of Tenant and such involuntary petition is not
dismissed within sixty (60) days thereafter, then, and in any of such
cases, Landlord and the agents and servants of Landlord lawfully may, in
addition to and not in derogation of any remedies for any preceding breach
of covenant, immediately or at any time thereafter without demand or
notice and with or without process of law enter into and upon the Premises
or any part thereof in the name of the whole or mail a notice of
termination addressed to Tenant, and repossess the same as of landlord's
former estate and expel Tenant and those claiming through or under Tenant
and remove its and their effects without being deemed guilty of any manner
of trespass and without prejudice to any remedies which might otherwise be
used for arrears of rent or prior breach of covenants, and upon such entry
or mailing as aforesaid this Lease shall terminate, Tenant hereby waiving
all statutory rights to the Premises (including without limitation rights
of redemption, if any, to the extent such rights may be lawfully waived)
and Landlord, without notice to Tenant, may store Tenant's effects, and
those of any person claiming through or under Tenant, at the expense and
risk of Tenant, and, if Landlord so elects, may sell such effects at
public auction or private sale and apply the net proceeds to time payments
of all sums due to Landlord from Tenant, if any, and pay over the balance,
if any, to Tenant.
8.2 Remedies. In the event that this Lease is terminated under any of the
provisions contained in Sections 8.1 or shall be otherwise terminated for
breach of any obligation of Tenant, Tenant covenants to pay punctually to
Landlord all the sums and to perform all the obligations which Tenant
covenants in this Lease to pay and to perform in the same manner and to
the same extent and as the same time as if this Lease had not been
terminated. In calculating the amounts to be paid by Tenant pursuant to
the preceding sentence Tenant shall be credited with the net proceeds of
any rent obtained by Landlord by reletting the Premises, after deducting
all Landlord's expense in connection with such reletting, including,
without limitation, all repossession costs, brokerage commissions, fees
for legal services and expenses of preparing the Premises for such
reletting, it being agreed by Tenant that Landlord may (i) relet the
Premises or any part or parts thereof, for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which
would otherwise have constituted the balance of the term and may grant
such concessions and free rent as Landlord in its sole judgment considers
advisable or necessary to relet the same and (ii) make such alterations,
repairs and decorations in the Premises as Landlord in its sole judgment
considers advisable or necessary to relet the same, and no action of
Landlord in accordance with the foregoing or failure to relet or to
collect rent under reletting shall operate or be construed to release or
reduce Tenant's liability as aforesaid. Landlord shall use commercially
reasonable efforts to mitigate its damages hereunder.
In lieu of full recovery by Landlord of the sums payable under all of the
foregoing provision of this Section 8.2 (except for the amount of any rent
of any kind accrued and unpaid as of the time of termination), Landlord
may, by written notice to Tenant, elect to recover, and Tenant shall
thereupon pay, as liquidated damages, an amount equal to the excess of the
total rent reserved for the residue of the term over the rental value of
the Premises for said residue of the term. In calculating the rent
reserved there shall be included, in addition to the Fixed Rent and
Additional Rent, the value of all other considerations agreed to be paid
or performed by Xxxxxx for said residue.
In lieu of any other damages or indemnity and in lieu of full recovery by
Landlord of all sums payable under all the foregoing provisions of this
Sections 8.2, Landlord may by written notice to Tenant, at any time after
this Lease is terminated under any of the provisions contained in Section
8.1 or is otherwise terminated for breach of any obligation of Tenant and
before such full recovery, elect to recover, and Tenant shall thereupon
pay, as liquidated damages, an amount equal to the aggregate of the Fixed
Rent and Additional Rent accrued in the two (2) months ended next prior to
such termination plus the amount of rent of any kind accrued and unpaid at
the time of termination and less the amount of any recovery by Landlord
under the foregoing provisions of this Section 8.2 up to the time of
payment of such liquidated damages. Nothing contained in this Lease shall,
however, limit or prejudice the right of Landlord to prove for and obtain
in proceedings for bankruptcy or insolvency by reason of the termination
of this Lease, an amount
9
equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are to
be proved, whether or not the amount be greater than, equal to, or less
than the amount of the loss or damages referred to above.
8.3 Remedies Cumulative. Any and all rights and remedies which Landlord may
have under this Lease, and at law and equity, shall be cumulative and
shall not be deemed inconsistent with each other, and any two or more of
all such rights and remedies may be exercised at the same time insofar as
permitted by law.
8.4 Landlord's Right to Cure Defaults. Landlord may, but shall not be
obligated to, cure, as any time, without notice, any default by Tenant
under this Lease; and whenever Landlord so elects, all costs and expenses
incurred by Landlord, including reasonable attorneys' fees, in curing a
default shall be paid, as Additional Rent, by Tenant to Landlord on
demand, together with lawful interest thereon from the date of payment by
Landlord to the date of payment by Tenant.
8.5 Effect of Waivers of Default. Any consent or permission by Landlord to any
act or omission which otherwise would be a breach of any covenant or
condition herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing
obligation of any covenant or condition herein, or otherwise, except as to
the specific instance, operate to permit similar acts or omissions.
8.6 No Waiver etc. The failure of Landlord to seek redress for violation of,
or to insist upon the strict performance of, any covenant or condition of
this Lease shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from
having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this
Lease shall not be deemed to have been a waiver of such breach by
Landlord. No consent or waiver, express or implied, by Landlord to or of
any breach of any agreement or duty shall be construed as a waiver or
consent to or of any other breach of the same or any other agreement or
duty.
8.7 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum than
the Fixed Rent, Additional Rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such
rent or charge due, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent or other charge be
deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of
such installment or pursue any other remedy in this Lease provided.
ARTICLE 9
Rights of Mortgage Holders
9.1 Rights of Mortgage Holders. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. The word
"holder" shall mean a mortgagee, and any subsequent holder or holders of a
mortgage. Until the holder of a mortgage shall enter and take possession
of the Property for the purpose of foreclosure, such holder shall have
only such rights of Landlord as are necessary to preserve the integrity of
this Lease as security. Upon entry and taking possession of the Property
for the purpose of foreclosure, such holder shall have all the rights of
Landlord. No such holder of a mortgage shall be liable either as mortgagee
or as assignee, to perform, or be liable in damages for failure to
perform, any of the obligations of Landlord unless and until such holder
shall enter and take possession of the Property for the purpose of
foreclosure. Upon entry for the purpose of foreclosure, such holder shall
be liable to perform all of the obligations of Landlord, subject to and
with the benefit of the provisions of Section 10.4, provided that a
discontinuance of any foreclosure proceeding shall be deemed a conveyance
under said provisions to the owner of the equity of the Property.
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a holder of a mortgage (particularly,
without limitation thereby, the covenants and agreements contained its
this Section 9.1) constitute a continuing offer to any person, corporation
or other entity, which by accepting a mortgage subject to this Lease,
assumes the obligations herein set forth with respect to such holder; such
holder is hereby constituted a party of this Lease as an obligee hereunder
to the same extent as though its name were written hereon as such; and
such holder shall be entitled to enforce such provisions in its own name.
Xxxxxx agrees on request of Xxxxxxxx to execute and deliver from time to
time any agreement which may be necessary to implement the provisions of
this Section 9.1.
9.2 Lease Superior or Subordinate to Mortgages. It is agreed that, subject to
Xxxxxxxx's obtaining non-disturbance agreement as further described in the
last sentence of this Section 9.2, the rights and interest of Tenant under
this Lease shall be (i) subject or subordinate to any present or future
mortgage or mortgages and to any and all advances to be made thereunder,
and to the interest of the holder thereof in the Premises or any property
of which the Premises are a part if Landlord shall elect by notice to
Tenant to subject or subordinate the rights and interest of Tenant under
this Lease to such mortgage or (ii) prior to any present or future
mortgage or mortgages, if Landlord shall elect, by notice to Tenant, to
give the rights and interest of Tenant under this Lease priority to such
mortgage; in the event of either of such elections and upon notification
by Landlord to that effect, the rights and interest of Tenant under this
Lease should be deemed to be subordinate to, or have priority over, as the
case may be, said mortgage or mortgages, irrespective of the time of
execution or time of recording of any such mortgage or mortgages (provided
that, in the case of subordination of this Lease to any future mortgages,
the holder thereof agrees not to disturb the possession of Tenant so long
as Tenant is not in default hereunder). Xxxxxx agrees it will, upon
request of Landlord, execute, acknowledge and deliver any and all
instruments deemed by Landlord necessary or desirable to give effect to or
notice of such subordination or priority. Tenant also agrees that if it
shall fail at any time to execute, acknowledge and deliver any such
instrument requested by Landlord, Landlord may, in addition to any other
remedies available to it, execute, acknowledge and deliver such instrument
as the attorney-in-fact of Tenant and in Tenant's name; and Xxxxxx does
hereby make, constitute and irrevocably appoint Landlord as its
attorney-in-fact, coupled with an interest with full power of
substitution, and in its name, place and stead so to do. Any Mortgage to
which this Lease shall be subordinated may contain such terms, provisions
and conditions as the holder deems usual or customary. Landlord will
obtain a non-disturbance agreement for the benefit of Tenant from its
current mortgagee, if any, in connection with Xxxxxx's use and occupancy
under this Lease, substantially to the effect that no steps or proceedings
taken by reason of Landlord's default under such mortgage shall terminate
this Lease, nor shall Tenant be named a defendant in any proceeding for
foreclosure of such mortgage or be disturbed by virtue of such steps or
proceedings.
ARTICLE 10
Miscellaneous Provisions
10.1 Notices from One Party to the Other. All notices required or permitted
hereunder shall be in writing and addressed, if to the Tenant, at the
Original Notice Address of Tenant or such other address as Tenant shall
have last designated by notice in writing to Landlord and, if to Landlord,
as the Original Notice Address of Landlord or such other address as
Landlord shall have last designated by notice in writing to Tenant. Any
notice shall be deemed duly given when mailed to such address postage
prepaid, by registered or certified mail, return receipt requested, or
when delivered to such address by hand.
10
10.2 Quiet Enjoyment. Xxxxxxxx agrees that upon Xxxxxx's paying the rent and
performing and observing the agreements, conditions and other provisions
on its part to be performed and observed, Tenant shall and may peaceably
and quietly have, hold and enjoy the Premises during the term hereof
without any manner of hindrance or molestation from Landlord or anyone
claiming under Landlord, subject, however, to the terms of this Lease.
10.3 Lease not to be Recorded. Xxxxxx agrees that it will not record this
Lease. Both parties shall, upon the request of either, execute and deliver
a notice or short form of this Lease in such form, if any, as may be
permitted by applicable statute.
10.4 Limitation of Landlord's Liability. The term "Landlord" as used in this
Lease, so far as covenants or obligations to be performed by Landlord are
concerned, shall be limited to mean and include only the owner or owners
at the time in question of the Property, and in the event of any transfer
or transfers of title to said property, the Landlord (and in case of any
subsequent transfers or conveyances, the then grantor) shall be
concurrently freed and relieved from and after the date of such transfer
or conveyance, without any further instrument or agreement of all
liability as respects the performance of any covenants or obligations on
the part of the Landlord contained in this Lease thereafter to be
performed, it being intended hereby that the covenants and obligations
contained in this Lease on the part of Landlord, shall, subject as
aforesaid, be binding on the Landlord, its successors and assigns, only
during and in respect of their respective successive periods of ownership
of said leasehold interest or fee, as the ease may be. Tenant, its
successors and assigns, shall not assert nor seek to enforce any claim for
breach of this Lease against any of Landlord's assets other than
Landlord's interest in the Property and in the rents, issues and profits
thereof, and Xxxxxx agrees to look solely to such interest for the
satisfaction of any liability or claim against Landlord under this Lease,
it being specifically agreed that in no event whatsoever shall Landlord
(which term shall include, without limitation, any general or limited
partner, trustees, beneficiaries, officers, directors, or stockholders of
Landlord) ever be personally liable for any such liability.
10.5 Acts of God. In any case where either party hereto is required to do any
act, delays caused by or resulting from Acts of God, war, civil commotion,
fire, flood or other casualty, labor difficulties, shortages of labor,
materials or equipment, government regulations, unusually severe weather,
or other causes beyond such party's reasonable control shall not be
counted in determining the time during which work shall be completed,
whether such time be designated by a fixed date, a fixed time or a
"reasonable time," and such time shall be deemed to be extended by the
period of such delay.
10.6 Landlord's Default. Landlord shall not be deemed to be in default in the
performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of
thirty (30) days or such additional time as is reasonably required to
correct any such default after written notice has been given by Tenant to
Landlord specifying the nature of Landlord's alleged default. Landlord
shall not be liable in any event for incidental or consequential damages
to Tenant by reason of Xxxxxxxx's default, whether or not notice is given.
Tenant shall have no right to terminate this Lease for any default by
Landlord hereunder and no right, for any such default, to offset or
counterclaim against any rent due hereunder.
10.7 Brokerage. Tenant warrants and represents that it has dealt with no broker
in connection with the consummation of this Lease, other than Xxxxxxxx
Company and the Codman Company, and in the event of any brokerage claims,
other than by Xxxxxxxx Company or the Codman Company, against Landlord
predicated upon prior dealings with Xxxxxx, Xxxxxx agrees to defend the
same and indemnify and hold Landlord harmless against any such claims.
10.8 Applicable Law and Construction This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
and, if any provisions of this Lease shall to any extent be invalid, the
remainder of this Lease shall not be affected thereby. There are no oral
or written agreements between Landlord and Tenants affecting this Lease.
This Lease may be amended, and the provisions hereof maybe waived or
modified, only by instruments in writing executed by Landlord and Xxxxxx.
The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Lease.
Unless repugnant to the context, the words "Landlord" and "Tenant"
appearing in this Lease shall be construed to mean those named above and
their respective heirs, executors, administrators, successors and assigns,
and those claiming through or under them respectively. If there be more
than one tenant, the obligations imposed by this Lease upon Tenant shall
be joint and several.
WITNESS the execution hereof under seal on the day and year first above
written:
Landlord:
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
As Trustee, but not individually
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
As Trustee, but not individually
Tenant:
VIP CALLING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Its: Xxxxxxx X. Xxxxxx, CFO
-----------------------------------------
11
FIRST AMENDMENT OF LEASE
This AMENDMENT is made and entered into this 26 day of February, 1999, by
and between Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, as Trustees of Northwest
Associates under Declaration of Trust dated December 9, 1971 ("Landlord") and
VIP Calling, Inc. ("Tenant").
WHEREAS, Landlord and Tenant have entered into a lease (the "Lease") dated
January 8, 1999 with respect to a premises known as 00 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx; and
WHEREAS, Landlord and Tenant have agreed that the Security and Restoration
Deposit required to be provided by Tenant under the Lease will be a letter of
credit instead of cash and desire to amend the Lease to reflect the same;
NOW, THEREFORE, for valuable consideration, the Lease is hereby modified
and amended as follows:
1. Section 1.1 is hereby amended by deleting the term "Security and
Restoration Deposit: $217,879.98 (subject to reduction pursuant to Section 4.4)"
and inserting the following in place thereof:
"Letter of Credit Amount: $217,879.98 (subject to reduction pursuant to
Section 4.4.1(b))."
2. Section 4.4 of the Lease is hereby amended and restated in its entirety
as follows:
"4.4 Letter of Credit. The performance of Tenant's obligations under this Lease
shall be secured by a letter of credit throughout the term hereof in
accordance with and subject to the following terms and conditions:
4.4.1 Amount of Letter of Credit. (a) Concurrently with Xxxxxx's execution
and delivery of the First Amendment to this Lease, Tenant shall
deliver to Landlord an irrevocable standby letter of credit (the
"Original Letter of Credit") which shall be (i) in the form of
Exhibit A attached to the First Amendment of this Lease (the "Form
LC"), (ii) issued by a bank reasonably satisfactory to Landlord upon
which presentment may be made in Boston, Massachusetts, (iii) in the
amount equal to the Letter of Credit Amount, and (iv) for a term of
at least 1 year, subject to the provisions of Section 4.4.2 below.
The Original Letter of Credit, any Additional Letters(s) of Credit
and Substitute Letter(s) of Credit are referred to herein as the
"Letter of Credit."
1
(b) If Tenant has any net income for any quarter of a fiscal year of
Tenant, and provides Landlord with an audited statement reporting
such net income, and provided Tenant is not then in default under
this Lease, the Letter of Credit Amount shall be reduced to an
amount equal to the product of the Monthly Fixed Rent Rate then in
effect times four. This reduction shall only be effected one time
during the term of this Lease.
4.4.2 Renewal of Letter of Credit. Each Letter of Credit shall be
automatically renewable in accordance with the second to last
paragraph of the Form LC; provided however, that Tenant shall be
required to deliver to Landlord a new letter of credit (a
"Substitute Letter of Credit") satisfying the requirements for the
Original Letter of Credit under Section 4.4.1 on or before the date
30 days prior to the expiration of the term of the Letter of Credit
then in effect, if the issuer of such Letter of Credit gives notice
of its election not to renew such Letter of Credit for any
additional period pursuant thereto.
4.4.3 Draws to Cure Defaults. If the Fixed Rent or Additional Rent payable
hereunder shall be overdue and unpaid or should Landlord make
payments on behalf of the Tenant, or Tenant shall fail to perform
any of the terms of this Lease in all cases beyond the expiration of
all applicable notice and cure periods, then Landlord shall have the
right, at any time thereafter to draw down from the Letter of Credit
the amount necessary to cure such default. In the event of any such
draw by the Landlord, Tenant shall, within 30 days of written demand
therefor, deliver to Landlord an additional Letter of Credit
("Additional Letter of Credit") satisfying the requirements for the
Original Letter of Credit, except that the amount of such Additional
Letter of Credit shall be the amount of such draw.
4.4.4 Draws to Pay Damages. In addition, if (i) this Lease shall have been
terminated as a result of Tenant's default under this Lease beyond
the expiration of the applicable cure period, and/or (ii) this Lease
shall have been rejected in a bankruptcy or other creditor-debtor
proceeding, then Landlord shall have the right at any time
thereafter to draw down from the Letter of Credit an amount
sufficient to pay any and all damages payable by Tenant on account
of such termination or rejection, as the case may be, pursuant to
Article 8 hereof. In the event of bankruptcy or other
creditor-debtor proceeding against Tenant, all proceeds of the
Letter of Credit shall be deemed to be applied first to the payment
of rent and other charges due Landlord for all periods prior to the
filing of such proceedings.
4.4.5 Draws for Failure to Deliver Substitute Letter of Credit. If Tenant
fails timely to deliver to Landlord a Substitute Letter of Credit,
then Landlord shall have the right, at any time thereafter, without
giving any further notice to Tenant, to draw down the Letter of
Credit and to hold the proceeds thereof ("Security Proceeds") in a
bank account in the name of Landlord, which may be withdrawn and
applied
2
by Landlord under the same circumstances and for the same purposes
as if the Security Proceeds were a Letter of Credit. Upon any such
application of Security Proceeds by Landlord, Tenant shall, within
30 days of written demand therefor, deliver to Landlord an
Additional Letter of Credit in the amount of Security Proceeds so
applied.
4.4.6 Return of Letter of Credit at End of Term. Within 30 days after the
expiration of the term, to the extent Landlord has not previously
drawn upon any Letter of Credit or Security Proceeds held by
Landlord, Landlord shall return the same to Tenant provided that
Tenant is not then in default of any of its obligations under this
Lease."
All of the terms, conditions, and provisions of the Lease, including those
amended hereby, are ratified and confirmed and shall remain in full force and
effect.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have duly executed this Amendment
of Lease.
LANDLORD:
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
As Trustee of Northwest Associates and Not
Individually
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
As Trustee of Northwest Associates and Not
Individually
TENANT:
VIP CALLING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Its: Xxxxxxx X. Xxxxxx
CFO
3
