EXHIBIT 10.2
LEASE
This instrument is an indenture of lease by and between the 425 Medford Nominee
Trust, c/o The Xxxxxxx Company, of 00 Xxxxxxxxx Xxxx Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Landlord") and Saleslink Corporation, of 00 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Tenant").
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
SUMMARY OF BASIC LEASE PROVISIONS
1.1 INTRODUCTION
As further supplemented in the balance of this instrument and its Exhibits,
the following sets forth the basic terms of this Lease, and, where appropriate,
constitutes definitions of certain terms used in this Lease.
1.2 BASIC DATA
Date: January 6, 1998
Landlord: 425 Medford Nominee Trust
Present Mailing Address
of Landlord: 00 Xxxxxxxxx Xxxx Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000-0000
Payment Address: X.X. Xxx 000000, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000-0000
Tenant: Saleslink Corporation
Mailing Address of
Tenant: 00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
with a copy to: Xxxxxxx, Xxxxxx & Xxxxxxxx, P.C.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
and Xxxxxxx Xxxxxxxx, II, Esq.
Xxxxxx & Dodge
0 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Premises: Approximately 154,676 rentable square feet of space consisting of (i)
approximately 78,605 rentable square feet located on the first (1st) floor and
49,151 rentable square feet located on the second (2nd) floor, of warehouse
space, and (ii) approximately 9,928 rentable square feet located on the first
(1st) floor, 9,928 rentable square feet located on the second (2nd) floor and
7,064 rentable square feet located on the third (3rd) floor; of office space;
all in the Building and as more particularly described in Exhibit A hereto. The
Premises shall be expanded in accordance with the terms of Section 2.3 of this
Lease.
Lease Term: Fifteen (15) years and one (1) month (plus the partial calendar
month immediately following the Term Commencement Date (as defined below) if the
Term Commencement Date does not fall on the first day of a month). The Lease
Term may be extended by Tenant in accordance with the terms of Section 3.3.1 of
this Lease.
Term Commencement Date: The Term Commencement Date shall occur, on the date
Landlord has Substantially Completed the Landlord's Work (as defined in Exhibit
B), provided, however, in no event shall the Term Commencement Date be earlier
than May 1, 1998.
Base Rent: For the first five (5) Lease Years, at the rate of $855,358.28 per
annum ($71,279.86 per month, i.e. $5.53 per rentable square foot); for the sixth
through tenth Lease Years, at the rate of $962,084.72 per annum ($80,173.73 per
month, i.e. $6.22 per rentable square foot); and for the eleventh through
fifteenth Lease Years, at the rate of $1,081,185.24 per annum ($90,098.77 per
month, i.e. $6.99 per rentable square foot).
Rent Commencement Date: The later of (i) the Term Commencement Date, or (ii)
June 1, 1998.
Base Rent Commencement Date: Thirty (30) days after the Rent Commencement Date.
Security Deposit: Letter of Credit in the amount of $800,000.00 in form and
substance satisfactory to Landlord.
Guarantor of Tenant's
Obligations: CMG Information Services, Inc.
Permitted Use: General office and warehouse uses and other uses permitted under
applicable law and for no other purpose or purposes.
Tenant's Proportionate
Share: 100%.
Additional Rent: (i) Operating Expenses: All Operating Costs (as defined in
Section 4.3) for the Building and Lot.
(ii) Real Estate Taxes: All Real Estate Real Estate Taxes (as defined in Section
4.2) for the Building and tax lot or lots on which the Building and other
improvements are located ("Lot").
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Tenant's Insurance
Requirements: Public Liability: ONE MILLION AND 00/100 ($1,000,000.00) Dollars
for injury to one person, ONE MILLION AND 00/100 ($1,000,000.00) Dollars for
injury to more than one person, per incident with umbrella liability coverage in
an amount not less than FIVE MILLION AND 00/100 ($5,000,000.00) Dollars.
Property Damage: ONE MILLION AND 00/100 ($1,000,000.00) Dollars per incident.
Landlord's Insurance
Requirements: See Section 11.4.
1.3 ENUMERATION OF EXHIBITS
Exhibit A: Plan showing the Premises
Exhibit A-1: Site Plan
Exhibit B: Description of Landlord's Work
Exhibit B-1: Workletter
Exhibit B-2: Specifications for Landlord's Work
Exhibit B-3: Schedule for Work
Exhibit C: Term Commencement Date Agreement
Exhibit D: Form of Operating Costs Budget
Exhibit E: Form of Letter of Credit
ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT
RIGHTS
2.1 LOCATION OF PREMISES
The Landlord hereby leases to Tenant, and Tenant hereby accepts from
Landlord, the Premises as described in Section 1.2 in Landlord's building (the
"Building") located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx consisting of
approximately 154,676 square feet of space as identified on Exhibit A. Nothing
in Exhibit A shall be treated as a representation that the Premises or the
Building shall be precisely of the area, dimensions, or shapes as shown, it
being the intention of the parties only to show diagrammatically, rather than
precisely, on Exhibit A the layout of the Premises and the Building.
Upon Tenant's prior written request within sixty (60) days of the Rent
Commencement Date, Landlord shall cause the rentable square footage of the
Premises to be measured by Landlord's architect in accordance with New York
standard measurement standards and such rentable square footage as so determined
shall be the rentable square footage of the Premises hereunder. If the rentable
square footage of the Building is other than as initially stated
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herein, the Tenant's Proportionate Share shall be retroactively adjusted to
reflect the actual rentable square footage of the Premises, as determined in
accordance with this paragraph for the period commencing on the Rent
Commencement Date, and Landlord or Tenant, as the case may be, shall pay the
other any difference due within thirty (30) days of the date the rentable square
footage of the Premises is finally determined.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
Tenant shall have, as appurtenant to the Premises, rights to use in common
with others entitled thereto the common facilities included in the Building or
the land on which the Building is located (the "Lot"), including common
walkways, driveways, lobbies, hallways, ramps, stairways and elevators,
necessary for access to said Premises and lavatories nearest thereto. Such
rights shall always be subject to reasonable rules and regulations from time to
time established by Landlord by suitable notice, and to the right of Landlord to
designate and to change from time to time the areas and facilities so to be
used, provided that such changes do not unreasonably interfere with the use of
the Premises for the Permitted Use.
Not included in the Premises are the roof or ceiling, the floor and all
perimeter walls of the space identified in Exhibit A, except the inner surfaces
thereof and the perimeter doors and windows. The Landlord reserves the right to
install, use, maintain, repair and replace in the Premises (but in such manner
as not unreasonably to interfere with Tenant's use of the Premises) utility
lines, shafts, pipes, and the like, in, over and upon the Premises, provided
that the same are located above the dropped ceiling (or, if there is no dropped
ceiling, then within three (3) feet of the roof deck), below the floor surfaces
or tight against demising walls or columns. Landlord agrees to repair any
damage to the Premises caused by the installation of any such items. Such
utility lines, shafts, pipes and the like shall not be deemed part of the
Premises under this Lease. The Landlord also reserves the right to alter or
relocate any common facility and to change the lines of the Lot.
Landlord shall maintain not less than 175 parking spaces for Tenant's use
from time to time on the Lot as shown on Exhibit A-1 attached hereto. Tenant
shall have the right to designate visitor parking areas and overnight parking
areas within the area designated for Tenant's parking as shown on Exhibit A-1
attached hereto. Landlord reserves the right to relocate the Tenant's parking
area provided such relocated have reasonably comparable access to the Premises.
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2.3 EXPANSION PREMISES
Provided that (i) Tenant has not assigned the Lease, and (ii) not more than
50% of the Premises are then subject to a sublease (whether the term of the
sublease has commenced or is to be commenced thereafter), then Tenant shall
lease the entirety of approximately 21,142 rentable square feet of space located
on the third floor of the Building (collectively, "Expansion Space") upon the
earlier to occur of (i) two (2) years following the Term Commencement Date (the
"Outside Expansion Premises Commencement Date"), or (ii) the date on which the
Expansion Space is substantially completed in accordance with subsection (A)
below in the event Tenant provides written notice to Landlord that Tenant has
elected to take the Expansion Premises prior to the Outside Expansion Premises
Commencement Date (which notice shall include a designation of the portions of
the Expansion Space to be used as office area and the portion to be used as
warehouse/production space); on the terms and conditions as follows: (A) the
Expansion Space shall be leased in the condition set forth in Exhibit B under
the heading: "Expansion Space"; (B) except for the Base Rent and Additional
Rent, the Expansion Space shall be leased on all the terms and conditions of
this Lease then in effect with respect to the initial Premises, provided all
terms of the Lease based upon the rentable square feet of the Premises shall be
adjusted accordingly; (C) the term for the Expansion Space shall be the
remaining Term of this Lease (including the Extension Period(s)); and (D) the
Expansion Space shall be leased at an initial annual Base Rent equal to the
total of (x) $8.00 per rentable square foot for any office space in the
Expansion Space, plus (y) $6.00 per rentable square foot for any
warehouse/production space in the Expansion Space; for the period until the end
of the fifth Lease Year.
The Base Rent for the Expansion Space shall be increased thereafter as follows:
Lease Years: Annual Base Rent:
6-10 $9.00 per rentable square foot for any office space in the Expansion
Space, plus (y) $6.75 per rentable square foot for any warehouse/production
space in the Expansion Space; and
11-15 $10.12 per rentable square foot for any office space in the Expansion
Space, plus (y) $7.60 per rentable square foot for any warehouse/production
space in the Expansion Space.
At Landlord's option, the addition of the Expansion Space to the Premises shall
be effective only if, on the date on which Landlord is to deliver the Expansion
Space to Tenant, no uncured Event of Default shall then be outstanding. Time is
of the essence.
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ARTICLE III
TERM OF LEASE; CONDITION OF PREMISES
3.1 TERM OF LEASE
The term of this Lease shall be the period specified in Section 1.2 hereof
as the "Lease Term" commencing upon the Rent Commencement Date specified in
Section 1.2. Promptly upon the determination of the date constituting the Rent
Commencement Date, the parties hereto shall enter into a term commencement date
agreement substantially in the form of Exhibit C attached hereto and made a part
hereof. Tenant shall have the right of access to enter the Premises for
furnishing, fixturing, cabling and the like by the later of (i) May 1, 1998, or
(ii) upon notice from Landlord that the Premises are suitable for Tenant to so
enter. Landlord agrees to give Tenant not less than thirty (30) days prior
written notice of the date of Tenant's early access and anticipated Term
Commencement Date.
3.2 CONDITION OF PREMISES
(i) Landlord shall Substantially Complete the Premises and prepare same for
occupancy by Tenant in accordance with Landlord's work as set forth in Exhibit
"B" attached hereto. "Substantially Complete" shall mean that Landlord has
completed the work set forth in Exhibit "B" to the extent that only minor
details of construction (so-called "punch list" items) and minor mechanical
adjustments remain to be done in the Premises. Landlord shall use its best
efforts to Substantially Complete the Premises on or before the June 1, 1998,
provided that no subsequent material changes are made to the scope of work and
specifications set out in Exhibit "B". If Landlord is delayed in the
performance of this work because of strikes, labor difficulties, inability to
obtain materials, fire, governmental regulations, or any other circumstances
beyond its control, then such schedule of completion, will be postponed for a
period of time equal to the delay thus incurred, provided that if Landlord fails
to Substantially Complete Landlord's Work in the Premises in accordance with the
terms and conditions of the Lease by December 31, 1998 (the "Outside Delivery
Date"), Tenant may, as its sole remedy (other than self-help as set forth in
Section 8.2 hereof), terminate this Lease upon thirty (30) days prior written
notice given any time before such delivery, provided however, if Landlord
completes and delivers the Premises to Tenant in accordance with the terms and
conditions of the Lease within such thirty (30) day period, Tenant's termination
notice shall be null and void. Failure on the part of the Landlord to provide
occupancy as herein described shall not constitute a breach or default on
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the part of the Landlord under this Lease or give rise to any claims of damage
or expenses of any kind against the Landlord by Tenant, either direct or
consequential. In the event Tenant is unable to take possession of the Premises
on the Term Commencement Date because of Landlord but not Tenant, the Rent
Commencement Date, Term Commencement Date and the Term Expiration Date shall be
adjusted to reflect the date of Tenant's later occupancy. The Rent Commencement
Date, Term Commencement Date and Term Expiration Date shall not be adjusted in
the event such delay of Landlord's Work is caused by Tenant.
Notwithstanding the foregoing, if Tenant's personnel shall occupy all or
any part of the Premises for the conduct of its business (as opposed to
installation and testing of furniture and equipment and performance of Tenant's
Work) prior to the Rent Commencement Date, such date of occupancy shall, for all
intents and purposes of this Lease, be the Rent Commencement Date.
3.3.1 EXTENSION PERIOD
Provided that (i) Tenant has not assigned the Lease, (ii) not more than
50% of the Premises are then subject to a sublease (whether the term of the
sublease has commenced or is to be commenced thereafter), and (iii) Landlord has
not exercised its right to terminate this Lease in accordance with Section 17.24
hereof, then Tenant has the right to extend the Term of the Lease for one (1)
five (5) year period (the "Extension Period") at a Base Rent equal to the Market
Rent, and otherwise on the same terms and conditions as this Lease, except that
there shall be no further rights to extend the Term. The Market Rent shall be
the rent set forth in a written notice from Landlord to Tenant given not less
than eighteen (18) months prior to expiration of the Term based on the rent for
comparable renewal leases (in terms of length of term, space and other relevant
factors) for "as-is" space for comparable space in the Boston area, except as
set forth in the following paragraphs of this Section. Tenant shall exercise
the option for each Extension Period by written notice to Landlord not more than
fifteen (15) months nor less than twelve (12) months before the then expiration
of the Term. At Landlord's option, Tenant's exercise of the option shall be
effective only if, at the time of the notice and upon the effective date of the
Extension Period, no uncured Event of Default shall then be outstanding.
Tenant shall have twenty (20) business days after receipt of Landlord's
notice of Market Rent to notify Landlord that (i) Tenant is contesting same, or
(ii) Tenant is accepting Landlord's estimate of Market Rent. Tenant's failure
to so notify Landlord within such twenty (20) business day period shall be
deemed an acceptance of such
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Market Rent. If Tenant timely contests Landlord's determination of Market Rent,
then the parties shall have thirty (30) days after Landlord receives Tenant's
notice of contest in accordance herewith in which to agree on the Market Rent
for the Extension Period. If the Tenant exercises its option and the parties
agree on the Market Rent during such thirty (30) day period, Landlord and Tenant
shall execute an amendment to this Lease setting forth the Annual Fixed Rent for
the Extension Period.
If the parties are unable to agree on the Market Rent within the thirty
(30) day period, then, within ten (10) days after the expiration of that period,
each party, at its cost and by giving written notice to the other party, shall
appoint a qualified M.A.I. real estate appraiser with at least 5 years' full-
time commercial appraisal experience in the Boston area to appraise and set the
Market Rent for the Premises in accordance with the foregoing criteria. If a
party does not appoint such an appraiser within ten (10) days after the other
party has given notice of the name of its appraiser, the single appraiser
appointed shall be the sole appraiser and shall set the Market Rent for the
Premises. The two appraisers appointed by the parties as stated in this
paragraph shall meet promptly and attempt to establish the Market Rent for the
Premises in accordance with the foregoing criteria. If they are unable to agree
within thirty (30) days after the second appraiser has been appointed, they
shall attempt to elect a third appraiser meeting the qualifications stated in
this paragraph within ten (10) days after the last day the two appraisers are
given to set the Market Rent. If they are unable to agree on the third
appraiser, either of the parties to this Lease, by giving ten (10) days' notice
to the other party, can appeal to the then president of the Greater Boston Real
Estate Board, for the selection of a third appraiser who meets the
qualifications stated in this paragraph. Each of the parties shall bear one-
half (1/2) of the cost of appointing and paying the fee of the third appraiser.
The third appraiser, however selected, shall be a person who has not previously
acted in any capacity for either party.
Within thirty (30) days after the selection of the third appraiser, the
third appraiser shall set the Market Rent for the Premises which shall be
binding on all parties.
ARTICLE IV
RENT
4.1 RENT PAYMENTS
The Base Rent (at the rates specified in Section 1.2 hereof) and the
additional rent or other charges payable pursuant to this Lease (collectively
the "Rent") shall be payable by Tenant to Landlord at the Payment Address or
such
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other place as Landlord may from time to time designate by notice to Tenant
without any demand whatsoever except as otherwise specifically provided in this
Lease and without any counterclaim, offset or deduction whatsoever.
(a) Commencing on the Rent Commencement Date, the monthly installments of
Tenant's Proportionate Share of the Real Estate Taxes and Tenant's Proportionate
Share of Operating Costs shall be payable in advance on the first day of each
and every calendar month during the term of this Lease. Commencing on the Base
Rent Commencement Date, monthly installments of Tenant's Proportionate Share of
the Base Rent shall be payable in advance on the first day of each and every
calendar month during the term of this Lease. Provided no Event of Default
shall then be outstanding, no Base Rent shall be payable for the period from the
Rent Commencement Date to the Base Rent Commencement Date. If the Rent
Commencement Date falls on a day other than the first day of a calendar month,
the first payment which Tenant shall make shall be made on the Rent Commencement
Date and shall be equal to a proportionate part of such monthly Rent for the
partial month from the Rent Commencement Date to the first day of the succeeding
calendar month, and the monthly Rent for such succeeding calendar month. If the
Base Rent Commencement Date falls on a day other than the first day of a
calendar month, the first payment which Tenant shall make shall be made on the
Base Rent Commencement Date and shall be equal to a proportionate part of such
monthly Base Rent for the partial month from the Base Rent Commencement Date to
the first day of the succeeding calendar month, and the monthly Base Rent for
such succeeding calendar month. As used in this Lease, the term "lease year"
shall mean any twelve (12) month period commencing on the Rent Commencement
Date; provided, however, if the Rent Commencement Date does not fall on the
first day of a month, then the term "lease year" shall mean any twelve month
period commencing on the first day of the month immediately following the Rent
Commencement Date, in which event the first lease year shall also include the
partial month containing the Rent Commencement Date.
(b) Base Rent and the monthly installments of Tenant's Proportionate Share
of Real Estate Taxes and Tenant's Proportionate Share of Operating Costs for any
partial month shall be paid by Tenant to Landlord at such rate on a pro rata
basis. Any other charges payable by Tenant on a monthly basis, as hereinafter
provided, shall likewise be prorated.
(c) Rent not paid within ten (10) days of the date due shall bear interest
at a rate (the "Lease Interest Rate") equal to the lesser of (i) the so-called
base rate of interest charged from time to time by The First National Bank of
Boston, N.A., plus three percent (3%) per annum or (ii) the maximum legally
permissible rate, from the due date until paid.
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(d) Rent for the first full month of the initial Term for which rent is
due shall be paid by Tenant upon the execution of this Lease.
4.2 REAL ESTATE TAXES
(a) The term "Real Estate Taxes" shall mean all taxes and assessments
(including without limitation, assessments for public improvements or benefits
and water and sewer use charges), and other charges or fees in the nature of
taxes for municipal services which at any time during or in respect of the Lease
Term may be assessed, levied, confirmed or imposed on or in respect of, or be a
lien upon, the Building and the Lot, or any part thereof, or any rent therefrom
or any estate, right, or interest therein, or any occupancy, use, or possession
of such property or any part thereof, and ad valorem taxes for any personal
property used in connection with the Building or Lot. Landlord agrees that
Tenant's share of any special assessment shall be determined (whether or not
Landlord avails itself of the privilege so to do) as if Landlord had elected to
pay the same in installments over the longest period of time permitted by
applicable law and Tenant shall be responsible only for those installments
(including interest accruing and payable thereon) or parts of installment that
are attributable to periods within the Lease Term.
Should the Commonwealth of Massachusetts, or any political subdivision
thereof, or any other governmental authority having jurisdiction over the
Building, (1) impose a tax, assessment, charge or fee, which Landlord shall be
required to pay, by way of substitution for such Real Estate Taxes, or
(2) impose an income or franchise tax or a tax on rents in substitution for a
tax levied against the Building or the Lot or any part thereof and/or the
personal property used in connection with the Building or the Lot or any part
thereof, all such taxes, assessments, fees or charges ("Substitute Real Estate
Taxes") shall be deemed to constitute Real Estate Taxes hereunder. Real Estate
Taxes shall also include, in the year paid, all reasonable fees and costs
incurred by Landlord in obtaining a reduction of, or a limit on the increase in,
any Real Estate Taxes, regardless of whether any reduction or limitation is
obtained provided that Tenant has consented to seeking such a reduction or
limitation. Except as hereinabove provided with regard to Substitute Real Estate
Taxes, Real Estate Taxes shall not include any inheritance, estate, succession,
transfer, gift, franchise, net income or capital stock tax.
(b) Tenant shall pay to Landlord, as additional rent, Tenant's
Proportionate Share of the Real Estate Taxes assessed against the Building and
Lot, as the same may change from time to time) during the Lease Term.
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Commencing on the Rent Commencement Date, Tenant shall pay monthly, at the
time when Rent payments are due hereunder, an amount equal to one-twelfth
(1/12th) of the total of Tenant's Proportionate Share of the annual Real Estate
Taxes (as reasonably estimated by Landlord) due from Tenant to Landlord pursuant
to this Article 4.2(b). Promptly after the determination by any taxing
authority of Real Estate Taxes upon the Building and Lot for each tax year,
Landlord shall make a determination of the Tenant's Proportionate Share of the
Real Estate Taxes, and if the aforesaid payments theretofore made for such tax
year by Tenant exceed the Tenant's Proportionate Share of the Real Estate Taxes,
such overpayment shall be credited against the payments thereafter to be made by
Tenant pursuant to this paragraph, unless such overpayment is made during the
last year of the Term, in which case such overpayment shall be paid to Tenant
within twenty (20) days; and if the Tenant's Proportionate Share of the Real
Estate Taxes for such tax year are greater than such payments theretofore made
on account for such tax year, Tenant shall, within twenty (20) days of written
notice from Landlord, make a suitable payment to Landlord. Copies of tax bills
submitted by Landlord with any such statement shall be conclusive evidence of
the amount of Real Estate Taxes. After the full assessment year, the initial
monthly payment on account of the Tenant's Proportionate Share of the Real
Estate Taxes shall be replaced each year by a payment which is one-twelfth
(1/12th) of the Tenant's Proportionate Share of the Real Estate Taxes for the
immediately preceding tax year.
(c) If any Real Estate Taxes, with respect to which Tenant shall have paid
Tenant's Proportionate Share, shall be adjusted to take into account any
abatement or refund, Landlord shall promptly pay to Tenant the amount of
Tenant's Proportionate Share of such abatement or refund less Landlord's
reasonable costs or expenses, including without limitation appraiser's and
attorneys' fees, of securing such abatement or refund. Upon Tenant's prior
written request, Landlord shall either seek a tax abatement, or authorize Tenant
to seek such an abatement provided that if such abatement is initiated at
Tenant's request, Tenant shall pay all costs and expenses in connection
therewith. If Tenant prosecutes such abatement itself, Landlord shall cooperate
in connection with such abatement proceeding and shall, upon request, furnish
such information and documentation relating to the Property and execute such
instruments as Tenant may reasonably request.
(d) Tenant shall pay or cause to be paid, prior to delinquency, any and all
taxes and assessments levied upon all trade fixtures, inventories and other
personal property placed in and upon the Premises by Tenant.
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4.3 TENANT'S SHARE OF OPERATING COSTS
Tenant shall pay to Landlord, as additional rent, Tenant's Proportionate
Share of the Operating Costs during the Lease Term.
Commencing on the Rent Commencement Date, Tenant shall pay monthly, at the
time when Rent payments are due hereunder, an amount equal to one-twelfth
(1/12th) of Tenant's Proportionate Share of the total annual Operating Costs (as
reasonably estimated by Landlord) due from Tenant to Landlord pursuant to
Article 4.3 of this Lease. Promptly after the end of each calendar year
thereafter, Landlord shall make a determination of Tenant's Proportionate Share
of such Operating Costs; and if the aforesaid payments theretofore made for such
period by Tenant exceed Tenant's share, such overpayment shall be credited
against the payments thereafter to be made by Tenant pursuant to this Paragraph
(unless such overpayment is made during the last year of the Term, in which case
such overpayment shall be paid to Tenant within twenty (20) days); and if
Tenant's Proportionate Share is greater than such payments theretofore made on
account for such period, Tenant shall within thirty (30) days of written notice
from Landlord make a suitable payment to Landlord.
The initial monthly payment on account of Tenant's Proportionate Share of
Operating Costs shall be adjusted after Landlord's determination of Tenant's
Proportionate Share actually due for the preceding accounting period by a
payment which is one-twelfth (1/12th) of Tenant's Proportionate Share of the
actual Operating Costs for the immediately preceding period, with adjustments as
appropriate where such preceding period is less than a full twelve-month period.
Landlord shall have the same rights and remedies for non-payment by Tenant of
any such amounts due on account of such Operating Costs as Landlord has
hereunder for the failure of Tenant to pay Rent as provided for in Article 14 of
this Lease.
As used in this Lease, the term "Operating Costs" shall mean all competitive,
reasonable and customary costs and expenses incurred by Landlord in connection
with the operation, insuring, repair, maintenance, replacement and management
(collectively, "the Operation") of the Building, the Building heating,
ventilating, electrical, plumbing, and other systems and the Lot (collectively,
"the Property") calculated in accordance with generally accepted accounting
principles, including, without limitation, the following:
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(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, worker'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 pursuant to any collective bargaining agreement
for the services of employees of Landlord or Landlord's agents in connection
with the Operation 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 properties
of Landlord such compensation shall be suitably prorated among the Property and
such other properties;
(2) The cost of services, materials and supplies furnished or used in the
Operation of the Property, including, without limitation, the cost to perform
Landlord's obligations under Sections 8.2 and 9.1 of this Lease;
(3) The amounts paid to managing agents and for legal and other professional
fees relating to the Operation of the Property, but excluding such fees paid in
connection with (x) negotiations for or the enforcement of leases; and (y)
seeking abatements of Real Estate Taxes; provided, however, that management fees
shall not exceed 3.5% of the gross revenues of the Building;
(4) Insurance premiums;
(5) Costs for electricity, steam and other utilities required in the Operation
of the Property, excluding electricity and gas (if any) supplied for use in the
Premises by Tenant;
(6) Water and sewer use charges;
(7) The costs of snow-plowing and removal and landscaping;
(8) Amounts paid to independent contractors for services, materials and
supplies furnished for the Operation of the Property;
(9) All other reasonable expenses incurred in connection with the Operation of
the Property; and
(10) Any capital expenditure made by Landlord during the term of this Lease
(other than capital expenditures in
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connection with replacement of (x) mechanical systems under Section 8.2 of this
Lease, or (y) the roof or structure, which shall not be included in Operating
Costs), the total cost of which is not properly includable in Operating Costs
for the operating year in which it was made, shall nevertheless be included in
such Operating Costs for the operating year in which it was made, and Operating
Costs for each succeeding operating year shall include the annual charge-off of
such capital expenditure. 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.
The "Statement" shall mean a statement rendered to Tenant by Landlord within
one hundred twenty (120) days after the end of each year, provided Landlord's
failure to render such Statement within such period shall not limit Tenant's
obligations to make any required payments when the Statement is issued. The
Statement shall be in reasonable detail, certified by Landlord's representative,
and show the Operating Costs for the Property and amounts already paid by Tenant
for Tenant's Proportionate Share of Operating Costs, and the amount of Tenant's
Proportionate Share of Operating Costs remaining due from or overpaid by Tenant
for the year or fraction thereof covered by the Statement with appropriate
prorations for fractional years. Landlord shall prepare the Statement in a form
and with categories which are relatively consistent from year to year and
consistent with the form of operating budget attached hereto as Exhibit D.
If Tenant shall so request within sixty (60) days after receipt of any
Statement, at Tenant's expense (including reasonable administrative fees of
Landlord related to Tenant's review) and during normal business hours, Tenant
shall be able to review Landlord's books and records relating to Operating Costs
which are chargeable to Tenant for the period in respect of which such Statement
was prepared for the purpose of verifying any such Statement that Landlord has
given hereunder. Any such request shall be accompanied by a letter setting
forth, in reasonable detail, the particular aspects of such Statement which
Tenant disputes or questions. In making such examination, Tenant agrees and
shall request and use commercially reasonable efforts to cause its auditors,
accountants and any other employees, agents or contractors having access to such
information to agree, and to keep strictly confidential
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(i) any and all information contained in such books and records, and (ii) the
circumstances and details pertaining to such examination including, without
limitation, the nature of any disputes with respect to Operating Costs, and the
nature and details of any settlement thereof (subject, however, to disclosure in
the event of litigation or the information otherwise becomes public); and Tenant
shall confirm and shall request and use commercially reasonable efforts to cause
its auditors, accountants, employees, agents and contractors to confirm such
agreement in writing, if so requested by Landlord, prior to such examination. If
Tenant shall not request any such review within the sixty (60) day period
hereinabove referred to, then Landlord's accounting shall be binding and
conclusive. During the pendency of such examination, Tenant shall make all
payments claimed by Landlord to be due, such payment to be without prejudice to
Tenant's position. In the event of a final determination that the amounts paid
by Tenant on account of Operating Costs for the period in question exceeded
amounts actually due from Tenant, then Landlord shall pay such excess to Tenant
as provided in this Section 4.3. In the event of a final determination that the
amounts paid by Tenant on account of Operating Costs Payment for the period in
question were less than amounts actually due to Landlord, Tenant shall pay such
deficiency to Landlord as provided in this Section 4.3.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE
Tenant agrees that the Premises shall be used and occupied by Tenant only for
the purposes specified as the Permitted Use thereof in Section 1.2 of this
Lease, and for no other purpose or purposes.
Tenant shall comply and shall cause its employees, agents, and invitees to
comply with such reasonable rules and regulations as Landlord shall from time to
time establish for the proper regulation of the Building and the Lot, provided
that Landlord gives Tenant reasonable advance notice thereof and that such
additional reasonable rules and regulations shall be consistent with those for
comparable buildings in the area, except where different circumstances justify
different treatment.
5.2 COMPLIANCE WITH LAWS
Tenant agrees that no trade or occupation shall be conducted in the Premises
or use made thereof which will be unlawful, improper, or contrary to any law,
ordinance, by-law, code, rule, regulation or order applicable in the
municipality in which the Premises are located. Tenant
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shall obtain any and all approvals, permits, licenses, variances and the like
from governmental or quasi-governmental authorities, including without
limitation any Architectural Access Board and Board of Fire Underwriters
(collectively, "Approvals") which are required for Tenant's use of the Premises,
including, without limitation, any which may be required for any construction
work and installations, alterations, or additions made by Tenant to, in, on, or
about the Premises; provided, however, that Tenant shall not seek or apply for
any Approvals without first having given Landlord a reasonable opportunity to
review any applications for Approvals and all materials and plans to be
submitted in connection therewith and obtaining Landlord's written consent,
which consent shall not be unreasonably withheld or delayed. In any event,
Tenant shall be responsible for all costs, expenses, and fees in connection with
obtaining all Approvals, except that Landlord shall be solely responsible for
obtaining any and all Approvals in connection with Landlord's initial
construction in the Premises. Tenant's inability to obtain or delay in obtaining
any such Approval shall in no event reduce, delay, or terminate Tenant's rental,
payment, and performance obligations hereunder. Tenant shall, at its own cost
and expense, (i) make all installations, repairs, alterations, additions, or
improvements to the Premises required by any law, ordinance, by-law, code, rule,
regulation or order of any governmental or quasi-governmental authority;
(ii) keep the Premises equipped with all required safety equipment and
appliances; and (iii) comply with all laws, ordinances, codes, rules,
regulations, and orders and the requirements of Landlord's and Tenant's insurers
applicable to the Premises, Building and Lot. Notwithstanding the foregoing,
Tenant shall not be required to make any structural modifications to the
Building unless required by Tenant's particular use of the Building as opposed
to office/warehouse uses generally. Tenant shall not place a load upon any floor
in the Premises exceeding 150 pounds per square foot of area.
Landlord warrants that the Premises and the Building and other common areas
shall, on the Term Commencement Date, be in compliance with all existing health,
safety, fire, zoning, building and environmental laws, rules and regulations,
including, without limitation, the Federal Americans with Disabilities Act.
-------------------------------
42 USC (S)12101 et seq. (ADA).
---
In the event the Approvals shall not have been obtained on or before March 1,
1998 (the "Approvals Date"), either party shall have the right to terminate this
lease by giving notice to the other of its election to so terminate at any time
after the Approvals Date (but prior to the date the Approvals may have been
issued and obtained). Landlord and Tenant shall reasonably cooperate with each
other in
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connection with the Approvals. The Approvals shall not be considered as having
been issued and obtained for purposes of this Section in the event any
interested party still has the right to challenge or appeal any Approvals, or in
the event such challenge or appeal has been taken and has not been resolved in
Landlord's favor.
5.3 INSURANCE RISKS
Tenant shall not permit any use of the Premises which will make voidable or,
unless Tenant pays the extra insurance premium attributable thereto as provided
below, increase the premiums for any insurance on the Building or on the
contents of said property or which shall be contrary to any law or regulation
from time to time established by the New England Fire Insurance Rating
Association (or any successor organization) or which shall require any
alteration or addition to the Building. Tenant shall, within thirty (30) days
after written demand therefor, reimburse Landlord for the costs of all extra
insurance premiums caused by Tenant's use of the Premises. Any such amounts
shall be deemed to be additional rent hereunder. Landlord acknowledges that
Tenant's contemplated use of the Premises will not make voidable or cause the
payment of extra insurance premiums or increase the premiums for any insurance
on the Building or on the contents of said property or be contrary to any such
law or regulation.
5.4 ELECTRICAL EQUIPMENT
The Tenant shall not, without Landlord's written consent in each instance,
connect to the electrical distribution system any fixtures, appliances, or
equipment which will operate individually or collectively at a wattage in excess
of the capacity of the electrical system serving the Premises as set forth in
Exhibit B and Landlord may audit Tenant's use of electric power to determine
Tenant's compliance herewith.
5.5 TENANT'S OPERATIONAL COVENANTS
(a) Affirmative Covenants
In regard to the use and occupancy of the Premises, Tenant will at its
expense: (1) keep the inside and outside of all glass in the doors and windows
of the Premises reasonably clean; (2) replace promptly any cracked or broken
glass of the Premises with glass of like kind and quality; (3) maintain the
Premises in a clean, orderly and sanitary condition and free of insects,
rodents, vermin and other pests; (4) keep any garbage, trash, rubbish or other
refuse in vermin-proof containers within the interior of the Premises until
removed (and Tenant shall cause the Premises to be inspected and exterminated on
a regular basis by a
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reputable, licensed exterminator and shall provide Landlord, on request, with a
copy of Tenant's contract for such services); (5) keep all mechanical apparatus
free of vibration and loud noise which may be transmitted beyond the Premises;
and (6) comply with and observe all rules and regulations reasonably established
by Landlord from time to time.
(b) Negative Covenants
In regard to the use and occupancy of the Premises and common areas,
Tenant will not: (7) place or maintain any trash, refuse or other articles in
any vestibule or entry of the Premises, on the sidewalks or corridors adjacent
thereto or elsewhere on the exterior of the Premises so as to obstruct any
corridor, stairway, sidewalk or common area; (8) permit undue accumulations of
or burn garbage, trash, rubbish or other refuse within or without the Premises;
or (9) commit, or suffer to be committed, any waste upon the Premises or any
public or private nuisance or use or permit the use of any portion of the
Premises for any unlawful purpose.
5.6 SIGNS, BLINDS and DRAPES
Tenant shall not place any signs on the exterior of the Building or on or in
any window, public corridor or door visible from the exterior of the Premises.
No drapes or blinds may be put on or in any window nor may any Building drapes
or blinds be removed by Tenant. Landlord agrees to provide a 2' x 6' ground
sign identifying Tenant at Landlord's sole cost and expense. Tenant shall be
entitled, at Tenant's sole cost and expense, to such exterior signage on the
Building as is determined by Tenant in compliance with all applicable codes,
subject to the prior written approval of Landlord, which approval shall not be
unreasonably withheld or delayed.
5.7 HAZARDOUS MATERIALS
Tenant shall not use, handle, store or dispose of any oil, hazardous or toxic
substances, materials or wastes (collectively "Hazardous Materials") in, under,
on or about the Property except for such storage and use consented to by
Landlord in advance which consent may be withheld in Landlord's sole and
absolute discretion. Any Hazardous Materials in the Premises, and all containers
therefor, shall be used, kept, stored and disposed of in conformity with all
applicable laws, ordinances, codes, rules, regulations and orders of
governmental authorities. If the transportation, storage, use or disposal of
Hazardous Materials anywhere on the Property in connection with Tenant's use of
the Premises results in (1) contamination of the soil or surface or ground water
or (2) loss or damage to
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person(s) or property, then Tenant agrees (i) to notify Landlord immediately of
any contamination, claim of contamination, loss or damage, (ii) after
consultation with and approval by Landlord, to clean up all contamination in
full compliance with all applicable statutes, regulations and standards, and
(iii) to indemnify, defend and hold Landlord harmless from and against any
claims, suits, causes of action, costs and fees, including, without limitation,
attorneys' fees, arising from or connected with any such contamination, claim of
contamination, loss or damage. This provision shall survive the termination of
this Lease. No consent or approval of Landlord shall in any way be construed as
imposing upon Landlord any liability for the means, methods, or manner of
removal, containment or other compliance with applicable law for and with
respect to the foregoing. The terms of this Section 5.7 shall apply to any
transportation, storage, use or disposal of Hazardous Materials irrespective of
whether Tenant has obtained Landlord's consent therefor but nothing in this
Lease shall limit or otherwise modify the requirement of obtaining Landlord's
prior consent as set forth in the first sentence of this Section 5.7.
Landlord represents, warrants and covenants that it has no actual knowledge
of the presence at the Building or Lot (including the Premises) of any Hazardous
Materials (except as set forth in the environmental site report entitled:
Whole Site Response Action Outcome Statement Report, dated May 15, 1996
(2 Volumes) a copy of which has been provided to Tenant (the "Report")
(including, but not limited to, asbestos, asbestos containing materials, fuel
oil, gasoline, or tanks for storage of fuel oil or gasoline). Landlord shall be
deemed only to have "actual knowledge" of only such Hazardous Materials at the
Building or Lot of which Xxxxxxx Xxxxxxx is actually aware as of the date hereof
and which Hazardous Materials are not referred to in the Report (the foregoing,
however, shall not be deemed to construe any personal liability whatsoever on
Xxxxxx X. Xxxxxxx and/or Xxxxxxx Xxxxxxx). Landlord agrees that it will not,
generate, store, use, dispose of or release any such substances in or onto the
Building or Lot (including the Premises) during the Lease Term in violation of
applicable environmental laws. Landlord agrees to remediate the contamination
disclosed in the Report prior to the Term Commencement Date in accordance with
applicable environmental laws. Except for only the representations, warranties
and covenants set forth in Section 5.7 hereinabove, Landlord makes no
representation, warranty or covenant whatsoever concerning the presence or
absence of Hazardous Materials at, in, on or under the Building, Premises and/or
Lot. Prior to the parties execution of this Lease, Landlord has furnished
Tenant, and Tenant hereby acknowledges that it has received and read the Report.
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ARTICLE VI
INSTALLATIONS, ALTERATIONS, AND ADDITIONS
6.1 INSTALLATIONS, ALTERATIONS, AND ADDITIONS
Tenant shall not make structural installations, alterations, or additions to
the Premises, but may make non structural installations, alterations or
additions provided that Landlord consents in advance and in writing to any non-
structural installations, alterations or additions costing more than $25,000.00,
which consent shall not be unreasonably withheld or delayed. In no event shall
Landlord's approval of any proposed installations, alterations, or additions to
the Premises, whether in connection with Tenant's initial leasehold improvements
or otherwise, constitute a representation by Landlord that such work complies
with the requirements of any applicable law or regulation, including without
limitation the requirements of the ADA. Any installations, alterations, or
additions made by Tenant shall be at Tenant's sole cost and expense and shall be
done in a good and workmanlike manner using materials of a quality at least
equivalent to that of the existing improvements and in compliance with the
requirements of Section 5.2; and prior to Tenant's use of the Premises, after
the performance of any such work, Tenant shall procure certificates of occupancy
and any other required certificates. Tenant shall not suffer or permit any
mechanics' or similar liens to be placed upon the Premises for labor or
materials furnished to Tenant or claimed to have been furnished to Tenant in
connection with work of any character performed or claimed to have been
performed at the direction of Tenant, and shall cause any such lien to be
released of record forthwith without cost to Landlord. Any and all Tenant
installations, alterations, and additions, in or to the Premises (but excluding
all articles of Tenant's personal property and all Tenant's business fixtures,
machinery, equipment, and furnishings owned or installed by Tenant ("Tenant's
Personal Property")), shall become part of the real estate ("Permanent Tenant
Improvements"), shall be fully paid for and free and clear of any and all
chattel mortgages, conditional bills of sale, security interests, or any liens
or encumbrances of any kind or nature. At all times when any material
installation, alteration, or addition by Tenant is in progress, there shall be
maintained, at Tenant's cost and expense, insurance meeting the requirements of
Section 11.3 below and certificates of insurance evidencing such coverage shall
be furnished to Landlord prior to the commencement of any such work. All
Permanent Tenant Improvements shall become the property of Landlord at the
termination or expiration of this Lease.
It is further agreed and understood that at the termination of this Lease or
any extensions thereof, Tenant
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shall have restored the Premises to good repair, order and condition in all
respects, reasonable wear and tear and damage by casualty excepted, including
but not limited to repair of all floor surfaces damaged by the removal of
partitions, machinery and equipment, and shall leave the Premises broom-clean.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 PROHIBITION
Notwithstanding any other provision of this Lease, Tenant shall not, directly
or indirectly, assign, mortgage, pledge or otherwise transfer, voluntarily or
involuntarily, this Lease or any interest herein or sublet (which term without
limitation, shall include granting of concessions, licenses, and the like) or
allow any other person or entity to occupy the whole or any part of the
Premises, except for Permitted Transfers (as hereinafter defined) without, in
each instance, having first received the express consent of Landlord, which
consent shall not be unreasonably withheld or delayed provided that (i) the
proposed subtenant shall have a business reputation and use which is a Permitted
Use; (ii) the proposed subtenant has the financial ability to fulfill all of its
obligations under the proposed assignment or sublease; and (iii) the proposed
assignee or subtenant agrees in writing, in form acceptable to Landlord in the
exercise of reasonable business judgment, that its assignment or sublease shall
be subject to all of the terms and conditions of this Lease. Any request for
consent under this Section 7.1 shall set forth, in detail reasonably
satisfactory to Landlord, the identification of the proposed assignee or
sublessee, its financial condition and the terms on which the proposed
assignment or subletting is to be made, including, without limitation, the rent
or any other consideration to be paid in respect thereto.
In any case where Landlord shall consent to any assignment or subletting,
Tenant originally named herein shall remain fully liable for Tenant obligations
hereunder, including, without limitation, the obligation to pay the rent and
other amounts provided under this Lease and such liability shall not be affected
in any way by any amendment, modification, or extension or by any further
assignment, other transfer, or subleasing of this Lease provided that after an
assignment, Tenant's obligations shall be limited to those in effect at the time
of the assignment. Tenant agrees to pay to Landlord, within fifteen (15) days
of billing therefor, all reasonable legal and other out-of-pocket expenses
incurred by Landlord in connection with any request to assign or sublet. It
shall be a condition of the validity of any permitted assignment or subletting
that the assignee or sublessee agree directly with Landlord, in form
-21-
satisfactory to Landlord, to be bound by all Tenant obligations hereunder,
including, without limitation, the obligation to pay all Rent and other amounts
provided for under this Lease and the covenant against further assignment or
other transfer or subletting.
In the event Tenant requests Landlord's consent to (i) assign this Lease; or
(ii) sublet more than 30,000 rentable square feet of the Premises for each
sublease transaction (other than Permitted Transfers), Landlord shall have the
option, exercisable by notice to Tenant given within thirty (30) days after
Landlord's receipt of such request, to terminate this Lease as of the date
specified in such notice which shall be not less than thirty (30) nor more than
sixty (60) days after the date of such notice for the entire Premises, in the
case of an assignment or subletting of the whole, and for the portion of the
Premises, in the case of a subletting of a portion. In the event of termination
in respect of a portion of the Premises, the portion so eliminated shall be
delivered to Landlord on the date specified in the manner provided in
Section 8.1 at the end of the Lease Term and thereafter, to the extent necessary
in Landlord's judgment, Landlord, at Tenant's sole cost and expense, may have
access to and may make modification to the Premises so as to make such portion a
self-contained rental unit with access to common areas, elevators and the like.
Rent and Tenant's Proportionate Share shall be adjusted according to the extent
of the Premises for which this Lease is terminated. Without limitation of the
rights of Landlord hereunder in respect thereto, if there is any assignment of
this Lease by Tenant for consideration or a subletting of the whole of the
Premises by Tenant at a rent which exceeds the rent payable hereunder by Tenant,
or if there is a subletting of a portion of the Premises by Tenant at a rent in
excess of the subleased portion's pro rata share of the Rent payable hereunder
by Tenant, then Tenant shall pay to Landlord, as additional rent, forthwith upon
Tenant's receipt of the consideration (or the cash equivalent thereof) therefor,
fifty percent (50%) of the amount of any such excess rent, after Tenant
deducting therefrom the commercially reasonable legal, brokerage and fit-up
costs paid by Tenant in connection with such transaction. The provisions of this
paragraph shall apply to each and every assignment of this Lease and each and
every subletting of more than 30,000 rentable square feet of the Premises,
except as specifically set forth herein. For the purposes of this Section 7.1,
the term "rent" shall mean all rent, additional rent or other payments and/or
consideration payable by one party to another for the use and occupancy of all
or a portion of the Premises.
Notwithstanding anything herein to the contrary, the immediately preceding
paragraph shall not apply to, and Landlord's consent shall not be required for,
(i) the sale
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of all or substantially all of Tenant's stock or assets as a going concern,
(ii) a public offering of stock, (iii) the transfer of stock to a subsidiary or
Affiliate (as defined herein), or (iv) the assignment or sublet of the Premises
to an Affiliate of Tenant (in each case, a "Permitted Transfer") (and it shall
be a condition of the validity of any such assignment) that such Affiliate agree
directly with Landlord to be bound by all of the obligations of Tenant
hereunder, including, without limitation, the obligation to pay the rent and
other amounts provided for under this Lease, the covenant to use the Premises
only for the purposes specifically permitted under this Lease and the covenant
against further assignment; but such assignment shall not relieve Tenant herein
named of any of its obligations hereunder and Guarantor of its obligations under
the Guaranty, and Tenant and Guarantor shall remain fully liable therefor. The
term "Affiliate" for purposes of this Article shall mean (i) any corporation,
partnership, trust, association or other business organization directly or
indirectly (through other entities or otherwise) owning, controlling or holding,
whether with or without power to vote, 51% or more of the entire beneficial
interest in Tenant or any successor whether by merger, consolidation or
acquisition of all or substantially all of the assets of Tenant, or any such
entity which is under common control with Tenant, (ii) any corporation or trust
with transferable shares, 51% or more of whose outstanding capital stock or
shares of beneficial interest of any class is directly or indirectly (through
other entities or otherwise) owned, controlled or held, whether with or without
the power to vote, by Tenant or any successor whether by merger, consolidation
or acquisition of all or substantially all of the assets of Tenant or any
corporation affiliated with Tenant or such successor as defined in (i) above,
and (iii) any partnership, association or other business organization, 51% or
more of the beneficial interest in which, whether with or without the power to
vote, is directly or indirectly (through other entities or otherwise) owned,
controlled or held by Tenant or such successor or any corporation affiliated
with Tenant or such successor as defined in (i) above.
In the event of a subsequent sale or transfer of the stock of an Affiliate
(either individually or in the aggregate) resulting in Tenant owning less than
50% of the stock of such Affiliate shall be treated as if such sale or transfer
were, for all purposes, an assignment of this Lease governed by the provisions
of this Section 7.1.
7.2 ACCEPTANCE OF RENT FROM TRANSFEREE
The acceptance by Landlord of the payment of Rent, additional rent, or other
charges following assignment, subletting, or other transfer prohibited by this
Article VII
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shall not be deemed to be a consent by Landlord to any such assignment,
subletting, or other transfer, nor shall the same constitute a waiver of any
right or remedy of Landlord.
ARTICLE VIII
REPAIRS AND MAINTENANCE
8.1 TENANT OBLIGATIONS
From and after the date that possession of the Premises is delivered to
Tenant and until the end of the Lease Term, Tenant shall keep the Premises and
every part thereof in good order, condition, and repair, reasonable wear and
tear and damage by casualty, as a result of condemnation, or as a result of the
failure of Landlord to provide services required to be provided hereunder only
excepted; and shall return the Premises to Landlord at the expiration or earlier
termination of the Lease Term in such condition. Notwithstanding the foregoing,
Tenant shall only be required to provide routine day to day maintenance on the
HVAC system, which shall include, without limitation, maintaining a commercially
reasonable service contract therefor.
8.2 LANDLORD OBLIGATIONS
Except as may be provided in Articles XII and XIII, Landlord agrees to keep
in good order, condition, and repair the structural components and the roof of
the Building, replacement of the plumbing, electrical, sewer and HVAC systems
and major components thereof, all exterior facilities on the Lot, including,
without limitation, pipes, utility lines, loading areas, outdoor lighting, the
paved surface of the parking areas serving the Building, landscaped areas and
shall keep the parking areas serving the Building reasonably free from snow and
ice, except that Tenant shall reimburse Landlord, as additional rent hereunder,
for the costs of maintaining, repairing, or otherwise correcting any condition
caused by an act, omission, neglect or default under this Lease of Tenant or any
employee, agent, or contractor of Tenant or any other party for whose conduct
Tenant is responsible. Without limitation, Landlord shall not be responsible to
make any improvements or repairs other than as expressly provided in this
Section 8.2, and Landlord shall not be liable for any failure to make such
repairs 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 thereafter. Landlord shall provide the warranty of the
structural components of the Building and building systems as set forth in
Exhibit B.
If Landlord shall be in default under this Lease, including, but not limited
to Exhibit B hereof, which default shall continue for thirty (30) days after
written
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notice thereof from Tenant, then Tenant shall have the right, but not the
obligation, to cure such default, in which event Landlord shall pay to Tenant
upon demand, the reasonable cost thereof plus interest at the Lease Interest
Rate; provided, however, if such default is not susceptible of being cured
within a period of thirty (30) days then as long as Landlord shall commence the
curing thereof within such thirty (30) day time period and is proceeding with
due diligence to cure the same, Tenant shall not have the aforesaid right. If
Landlord shall not reimburse Tenant as provided herein, Tenant shall have the
right to deduct the same from any monthly installment of Base Rent until it has
been fully reimbursed such costs and interest, provided that in no event shall
any such deduction exceed Ten Thousand Dollars ($10,000.00) for any month during
the Lease Term. If twelve months or less remain in the Lease Term and amounts
due to Tenant would otherwise remain unpaid at the expiration of the Lease Term,
any remaining amounts due hereunder may be deducted in equal monthly
installments of the amount then remaining outstanding over the remaining months
in the Lease Term. If in Tenant's reasonable judgment an emergency shall exist,
the aforesaid thirty (30) day notice shall be shortened to such reduced period,
following notice to Landlord, as shall be reasonable in the circumstances prior
to Tenant having the right to cure such default. In such an emergency event,
Tenant's notice may be given by telegram, fax transmission or other substitute
means of writing.
ARTICLE IX
SERVICES TO BE FURNISHED BY LANDLORD;
UTILITIES
9.1 LANDLORD'S SERVICES
Tenant shall be responsible for providing its own basic services, including,
without limitation, cleaning, utilities, elevator service and security and
Landlord shall have no obligations with respect thereto except as specifically
set forth herein.
Landlord (or affiliate(s) of Landlord) shall provide, and Tenant's employees
shall have the right to use, certain services generally available to tenants at
certain property adjacent to the Lot and owned by a party affiliated with the
Landlord known as The Schrafft Center, 00 Xxxx Xxxxxx, Xxxxxx ("Schrafft") which
shall include and be limited to the health club and day care facilities,
cafeteria and shuttle bus services (running directly to the Building) on the
same basis as such facilities are available to tenants at Schrafft's employees.
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If there is any material interruption, curtailment, stoppage, or suspension
of Landlord's Services, (x) continuing after written notice thereof to Landlord
(or in an emergency situation which threatens the health or safety of Tenant's
employees, oral notice followed by written notice) (y) not caused by Tenant, and
(z) such deficiency reasonably causes Tenant to vacate the Premises or parking
areas or a part thereof (individually and collectively, "Landlord Deficiency"),
then Tenant shall, if such Landlord Deficiency continues for more than ten (10)
business days, be entitled to a proportional abatement of Base Rent and
Additional Rent to the extent of Tenant's interference with its use of the
Premises until the same is cured, provided that in no event shall such any such
deduction exceed Ten Thousand Dollars ($10,000.00) for any month during the
Lease Term. If twelve months or less remain in the Lease Term and amounts due
to Tenant would otherwise remain unpaid at the expiration of the Lease Term, any
remaining amounts due hereunder may be deducted in equal monthly installments of
the amount then remaining outstanding over the remaining months in the Lease
Term.
9.2 CAUSES BEYOND CONTROL OF THE LANDLORD
The Landlord shall in no event be liable for failure to perform any of its
obligations under this Lease when prevented from doing so by causes beyond its
reasonable control, including without limitation labor dispute, breakdown,
accident, order or regulation of or by any governmental authority, or failure of
supply, or inability by the exercise of reasonable diligence to obtain supplies,
parts, or employees necessary to furnish services required under this Lease, or
because of war or other emergency, or for any cause due to any act, neglect, or
default of Tenant or Tenant's servants, contractors, agents, employees,
licensees or any person claiming by, through or under Tenant, and in no event
shall Landlord ever be liable to Tenant for any indirect, special or
consequential damages under the provisions of this Section 9.2 or any other
provision of this Lease. Tenant's rights of self-help set forth in Section 8.2
shall be applicable in the event of any such failure. In the event of any such
occurrence, Landlord shall give Tenant written notice of the occurrence and
cause of delay and further written notice upon the termination thereof. During
any such occurrence, Landlord shall use commercially reasonable efforts to
mitigate such delay.
9.3 SEPARATELY METERED UTILITIES
Tenant shall pay directly to the utility, as they become due, all bills for
electricity and other utilities to the Premises, Building and Lot all of which
shall be separately metered for Tenant's account. Tenant shall have the right
to purchase electricity (and other utilities) from such sources as Tenant
determines, provided Landlord incurs no costs in connection therewith.
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ARTICLE X
INDEMNITY
10.1 MUTUAL INDEMNITY
The Tenant shall indemnify and save harmless Landlord, the directors,
officers, agents, and employees of Landlord, against and from all claims,
expenses, or liabilities of whatever nature (a) arising directly or indirectly
from any default or breach by Tenant or Tenant's contractors, licensees, agents,
servants, or employees under any of the terms or covenants of this Lease
(including without limitation any violation of Landlord's Rules and Regulations
and any failure to maintain or repair equipment or installations to be
maintained or repaired by Tenant hereunder) or the failure of Tenant or such
persons to comply with any rule, order, regulation, or lawful direction now or
hereafter in force of any public authority, in each case to the extent the same
are related, directly or indirectly, to the Premises or the Building, or
Tenant's use thereof; or (b) arising directly or indirectly from any accident,
injury, or damage, however caused, to any person or property, on or about the
Premises; or (c) arising directly or indirectly from any accident, injury, or
damage to any person or property occurring outside the Premises but within the
Building or on the Lot, where such accident, injury, or damage results, or is
claimed to have resulted, from any act, omission, or negligence on the part of
Tenant, or Tenant's contractors, licensees, agents, servants, employees, or
customers, or anyone claiming by or through Tenant: provided, however, that in
no event shall Tenant be obligated under this clause (c) to indemnify Landlord,
the directors, officers, agents, employees of Landlord, to the extent such
claim, expense, or liability results from any omission, fault, negligence, or
other misconduct of Landlord or the officers, agents, or employees of Landlord
on or about the Premises or the Building or from breach of Landlord's
obligations under this lease. This indemnity and hold harmless agreement shall
include, without limitation, indemnity against all expenses, attorney's fees and
liabilities incurred in connection with any such claim or proceeding brought
thereon and the defense thereof with counsel reasonably acceptable to Landlord.
At the request of Landlord, Tenant shall defend any such claim or proceeding
directly on behalf and for the benefit of Landlord.
Landlord shall indemnify and save harmless Tenant, the directors, officers,
agents, and employees of Tenant, against and from all claims, expenses, or
liabilities of whatever nature (a) arising directly or indirectly from any
default or breach by Landlord or Landlord's contractors, licensees, agents,
servants, or employees under any of the
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terms or covenants of this Lease; or (b) arising directly or indirectly from any
accident, injury, or damage to any person or property, on or about the Lot but
outside of the Premises and Building; or (c) arising directly or indirectly from
any accident, injury, or damage to any person or property occurring in the
Premises to the extent that such accident, injury, or damage results, or is
claimed to have resulted, from any act, omission, or negligence on the part of
Landlord, or Landlord's contractors, licensees, agents, servants, employees, or
customers, or anyone claiming by or through Landlord; provided, however, that in
no event shall Landlord be obligated under clauses (b) and (c) to indemnify
Tenant, the directors, officers, agents, employees of Tenant, to the extent such
claim, expense, or liability results from any omission, fault, negligence, or
other misconduct of Tenant or the contractors, licensees, servants, officers,
agents, or employees of Tenant on or about the Premises or the Building or from
breach of Tenant's obligations under this lease. This indemnity and hold
harmless agreement shall include, without limitation, indemnity against all
expenses, reasonable attorney's fees and liabilities incurred in connection with
any such claim or proceeding brought thereon and the defense thereof with
counsel reasonably acceptable to Tenant. At the request of Tenant, Landlord
shall defend any such claim or proceeding directly on behalf and for the benefit
of Tenant.
10.2 THE TENANT'S RISK
The Tenant agrees to use and occupy the Premises and to use such other
portions of the Building and the Lot as Tenant is herein given the right to use
at Tenant's sole risk; and Landlord shall have no responsibility or liability
for any loss or damage, however caused, to furnishings, fixtures, equipment, or
other personal property of Tenant or of any persons claiming by, through, or
under Tenant.
10.3 INJURY CAUSED BY THIRD PARTIES
The 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 from
the breaking, bursting, crossing, stopping, or leaking of electric cables and
wires, and water, gas, sewer, or steam pipes, or like matters.
10.4 SECURITY
Tenant agrees that, in all events, Tenant is responsible for providing
security to the Premises and its own personnel. Landlord agrees that the
security camera at Schrafft shall monitor the Lot on a 24 hour basis.
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ARTICLE XI
INSURANCE
11.1 TENANT'S INSURANCE OBLIGATIONS
Tenant shall carry public liability insurance in a company or companies
licensed to do business in the state in which the Premises are located and
reasonably approved by Landlord. Said insurance shall be in minimum amounts
reasonably required by Landlord from time to time by notice to Tenant and shall
name Landlord as an additional insured, as its interests may appear, and Tenant
shall provide Landlord with evidence, when requested, that such insurance is in
full force and effect. Tenant shall carry property damage insurance for all of
its equipment and for all leasehold improvements above the building standard
which are made by Landlord or Tenant in and to the Premises, which policies
shall name Landlord as an additional insured. If required by Landlord, receipts
evidencing payment for said insurance shall be delivered to Landlord at least
annually by Tenant and each policy shall contain an endorsement that will
prohibit its cancellation or amendment prior to the expiration of thirty (30)
days after notice of such proposed cancellation or amendment to Landlord.
Tenant shall carry insurance in the initial amounts listed in the Basic Data and
shall provide Landlord with certificates of such Tenant Insurance Requirements
on or prior to the Commencement Date.
11.2 CONSTRUCTION PERIOD INSURANCE
At any time when demolition or construction work is being performed on or
about the Premises or Building by or on behalf of Tenant, the Tenant shall keep
in full force and effect the following insurance coverage in each instance with
policies reasonably acceptable to Landlord, including, without limitation, the
amount of any deductible thereunder:
(1) builder's risk completed value (non-reporting form) in such form and
affording such protections as required by Landlord, naming Landlord and its
mortgagees as additional insureds; and
(2) workers' compensation or similar insurance in form and amounts required
by law.
Tenant shall cause a certificate or certificates of such insurance to be
delivered to Landlord prior to the commencement of any work in or about the
Building or the Premises, in default of which Landlord shall have the right, but
not the obligation, to obtain any or all such insurance at the expense of
Tenant, in addition to any other right or remedy of Landlord. The provisions of
this (S)11.3 shall survive the expiration or earlier termination of this Lease.
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11.3 WAIVER OF SUBROGATION
Tenant and Landlord each hereby release the other to the extent of their
respective insurance coverage, from any and all liability for any loss or damage
caused by fire or any of the extended coverage casualties or any other casualty
insured against, even if such fire or other casualty shall be brought about by
the fault or negligence of Tenant, Landlord or their agents. Tenant and
Landlord agree that their respective policies covering such loss or damage shall
contain a clause to the effect that this release shall not affect said policies
or the right of Tenant or Landlord, as the case may be, to recover thereunder
and otherwise acknowledging this mutual waiver of subrogation.
11.4 LANDLORD'S INSURANCE OBLIGATIONS
Throughout the Lease Term, Landlord shall maintain a full replacement value
policy of insurance on all of the Building (including, without limitation the
Premises and all of Landlord's Work therein) against damage by all risks of
physical loss or damage to the extent customarily insured by owners of similar
property.
ARTICLE XII
CASUALTY
12.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE"
The term "substantial damage," as used herein, shall refer to damage which is
of such a character that in Landlord's reasonable, good faith estimate the same
cannot, in ordinary course, be expected to be repaired within 90 calendar days
from the time that such repair work would commence. Any damage which is not
"substantial damage" is "partial damage."
12.2 PARTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be partial damage to the Building by
fire or other casualty, Landlord shall promptly proceed to restore the Building
to substantially the condition in which it was immediately prior to the
occurrence of such damage.
12.3 SUBSTANTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be substantial damage to the Building by
fire or other casualty, Landlord shall promptly restore the Building to the
extent reasonably necessary to enable Tenant's use of the Premises, unless
Landlord, within thirty (30) days after the occurrence of such damage, shall
give notice to Tenant of Landlord's election to terminate this Lease. The
Landlord shall have
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the right to make such election in the event of substantial damage to the
Building whether or not such damage materially interferes with Tenant's use of
the Premises. If Landlord shall give such notice, then this Lease shall
terminate as of the date of such notice with the same force and effect as if
such date were the date originally established as the expiration date hereof. If
Landlord has not restored the Premises to the extent required under this Section
12.3 within 150 days after the date of such damage or destruction, such period
to be subject to the terms of Section 9.2 of this Lease (not exceeding in any
event an additional 60 days), or if the Premises shall be substantially damaged
during the last two (2) years of the Lease Term then, in either such case,
Tenant may elect to terminate this Lease by giving written notice of such
election to Landlord within thirty (30) days after the end of such nine-month
period and before the substantial completion of such restoration. If Tenant so
elects to terminate this Lease, then this Lease and the term hereof shall cease
and come to an end on the date that is thirty (30) days after the date that
Landlord receives Tenant's termination notice, unless on or before such date
Landlord has substantially completed such restoration.
12.4 ABATEMENT OF RENT
If during the Lease Term the Building shall be damaged by fire or casualty
and if such damage shall interfere with Tenant's use of the Premises as
contemplated by this Lease, a just proportion of the Base Rent and Additional
Rent payable by Tenant hereunder shall xxxxx proportionately for the period in
which, by reason of such damage, there is such 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 the Premises, but such abatement or reduction shall
end if and when Landlord shall have substantially restored the Premises or so
much thereof as shall have been originally constructed by Landlord (exclusive of
any of Tenant's fixtures, furnishings, equipment and the like or work performed
therein by Tenant) to substantially the condition in which the Premises were
prior to such damage.
ARTICLE XIII
EMINENT DOMAIN
13.1 RIGHTS OF TERMINATION FOR TAKING
If the Premises, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable for Tenant's purposes, shall be taken (including a temporary taking
in excess of 180 days) by condemnation or right of eminent domain or sold in
lieu of condemnation, Landlord or
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Tenant may elect to terminate this Lease by giving notice to the other of such
election not later than thirty (30) days after Tenant has been deprived of
possession.
Further, if so much of the Building (which may include the Premises) or the
Lot shall be so taken, condemned or sold or shall receive any direct or
consequential damage by reason of anything done pursuant to public or quasi-
public authority such that continued operation of the same would, in Tenant's
reasonable opinion, be uneconomical, Landlord or Tenant may elect to terminate
this Lease by giving notice to Tenant of such election not later than thirty
(30) days after the effective date of such taking.
Should any part of the Premises be so taken or condemned or receive such
damage and should this Lease be not terminated in accordance with the foregoing
provisions, Landlord shall promptly after the determination of Landlord's award
on account thereof, expend so much as may be necessary of the net amount which
may be awarded to Landlord in such condemnation proceedings in restoring the
Premises to an architectural unit that is reasonably suitable to the uses of
Tenant permitted hereunder. Should the net amount so awarded to Landlord be
insufficient to cover the cost of so restoring the Premises, in the reasonable
estimate of Landlord, Landlord may, but shall have no obligation to, supply the
amount of such insufficiency and restore the Premises to such an architectural
unit, with all reasonable diligence, or Landlord may terminate this Lease by
giving notice to Tenant within a reasonable time after Landlord has determined
the estimated cost of such restoration.
13.2 PAYMENT OF AWARD
The Landlord shall have and hereby reserves and excepts, and Tenant hereby
grants and assigns to Landlord, all rights to recover for damages to the
Building and the Lot and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking or damage,
as aforesaid. The Tenant covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request. Nothing contained
herein shall be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any of tenant improvements or trade
fixtures 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 hereunder by Landlord from the taking
authority.
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13.3 ABATEMENT OF RENT
In the event of any such taking of the Premises, the Base Rent and Additional
Rent or a fair and just proportion thereof, according to the nature and extent
of the damage sustained, shall be suspended or abated, as appropriate and
equitable in the circumstances.
ARTICLE XIV
TENANT'S DEFAULT
14.1 TENANT'S DEFAULT
(a) Events of Default. The following shall be "Events of Default" under
this Lease:
(i) If Tenant shall fail to pay any monthly installment of Rent when due, and
such default shall continue for ten (10) days after written notice from
Landlord; provided that no such notice shall be required if Tenant has received
a similar notice within three hundred sixty-five (365) days prior to such
violation or failure;
(ii) If Tenant shall fail to timely make any other payment required under
this Lease and such default shall continue for ten (10) days after written
notice from Landlord; provided that no such notice shall be required if Tenant
has received a similar notice within three hundred sixty-five (365) days prior
to such violation or failure;
(iii) If Tenant shall violate or fail to perform any of the other terms,
conditions, covenants or agreements herein made by Tenant, if such violation or
failure continues for a period of thirty (30) days after Landlord's written
notice thereof to Tenant, unless such default cannot reasonably be corrected
within such thirty (30) day period, in which event no Event of Default shall be
deemed to have occurred so long as Tenant has commenced cure and is diligently
prosecuting the same;
(iv) Tenant's becoming insolvent, as that term is defined in Title 11 of the
United States Code, entitled Bankruptcy, 11 U.S.C. Section 101 et. seq. (the
"Bankruptcy Code"), or under the insolvency laws of any State, District,
Commonwealth or Territory of the United States (the "Insolvency Laws");
(v) the appointment of a receiver or custodian for all or a substantial
portion of Tenant's property or assets, or the institution of a foreclosure
action upon all or a substantial portion of Tenant's real or personal property;
(vi) the filing of a voluntary petition under the provisions of the
Bankruptcy Code or Insolvency Laws;
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(vii) the filing of an involuntary petition against Tenant as the subject
debtor under the Bankruptcy Code or Insolvency Laws, which is either not
dismissed within forty-five (45) days of filing, or results in the issuance of
an order for relief against the debtor, whichever is earlier;
(viii) Tenant's making or consenting to an assignment for the benefit of
creditors or a common law composition of creditors; or
(ix) Tenant's interest in this Lease being taken on execution in any action
against the Tenant.
(b) Landlord's Remedies. Should an Event of Default occur under this Lease,
Landlord may pursue any or all of the following remedies:
(i) Termination of Lease. Landlord may terminate this Lease by giving
written notice of such termination to Tenant, whereupon within five (5) days of
the deemed receipt of such notice of termination addressed to Tenant this Lease
shall automatically cease and terminate and Tenant shall be immediately
obligated to quit the Premises. Termination by notice as provided herein shall
require no further action on the part of Landlord including, without limitation,
resort to legal process under applicable law. Any other notice to quit is hereby
expressly waived. If Landlord elects to terminate this Lease, everything
contained in this Lease on the part of Landlord to be done and performed shall
cease without prejudice, subject, however, to the right of Landlord to recover
from Tenant all Annual Rent and Additional Rent and any other sums accrued up to
the time of termination by Landlord.
(ii) Suit for Possession. Landlord may proceed to recover possession of the
Premises under and by virtue of the provisions of the laws of the state in which
the Premises are located or by such other proceedings, including lawful reentry
and possession, as may be applicable.
(iii) Reletting of Premises. Should this Lease be terminated before the
expiration of the Term of this Lease by reason of Tenant's default as
hereinabove provided, Landlord shall use commercially reasonable efforts to
relet the Premises and otherwise mitigate its losses and, if the full Annual
Rent and Additional Rent reserved under this Lease (and any of the costs,
expenses or damages indicated below) shall not be realized by Landlord, Tenant
shall be liable for all damages sustained by Landlord, including, without
limitation, deficiency in rent, reasonable attorneys' fees, brokerage fees and
expenses of placing the Premises in good order and condition including without
limitation any alterations and improvements. Landlord, in putting the Premises
in good order or preparing the same for
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re-rental may, at Landlord's option, make such alterations, repairs or
replacements 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, or replacements 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 relet the
Premises, or in the event that the Premises are relet, for failure to collect
the rent under such reletting, and in no event shall Tenant be entitled to
receive the excess, if any, of such net rent collected over the sums payable by
Tenant to Landlord hereunder.
(iv) Acceleration of Payment. If this Lease is terminated by Landlord
following an Event of Default and Tenant shall fail to pay any monthly
installment of Rent pursuant to the terms of this Lease, then Landlord may, by
giving written notice to Tenant, elect to receive, in lieu of any other damages
for loss of future rents after the date of termination (reserving to itself all
rights as to past due Rent) an amount equal to the present worth (as of the date
of such termination) of Rent which, but for the termination of this Lease, would
have become due during the remainder of the Term, less the present worth of the
fair rental value of the Premises, as determined by an independent real estate
appraiser named by Landlord. Such damages shall be payable to Landlord in one
lump sum within ten (10) days of such notice and shall bear interest at the
Lease Interest Rate until paid. For purposes of this Clause (iv), "present
worth" shall be computed by discounting such amount to present worth at a
discount rate equal to the Lease Interest Rate.
(v) Monetary Damages. Any damage or loss of rent sustained by Landlord may
be recovered by Landlord, at Landlord's option, at the time of the reletting, or
in separate actions, from time to time, as said damage shall have been made more
easily ascertainable by successive relettings, or at Landlord's option in a
single proceeding deferred until the expiration of the Term of this Lease (in
which event Tenant hereby agrees that the cause of action shall not be deemed to
have accrued until the date of expiration of said Term) or in a single
proceeding prior to either the time or reletting or the expiration of the Term
of this Lease. In addition, should it be necessary for Landlord to employ legal
counsel to enforce any of the provisions herein contained, Tenant agrees to pay
all attorney's fees and court costs reasonably incurred.
(vi) Anticipatory Breach; Cumulative Remedies. Nothing contained herein
shall prevent the enforcement of any claim Landlord may have against Tenant for
anticipatory breach of the unexpired Term of this Lease. In the event of a
breach
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or anticipatory breach by Tenant of any of the covenants or provisions hereof,
Landlord shall have the right of injunction and the right to invoke any remedy
allowed at law or in equity as if reentry, summary proceedings and other
remedies were not provided for herein. Mention in this Lease of any particular
remedy shall not preclude Landlord from any other remedy, in law or in equity,
whether or not mentioned herein. Landlord's election to pursue one or more
remedies, whether as set forth herein or otherwise, shall not bar Landlord from
seeking any other or additional remedies at any time and in no event shall
Landlord ever be deemed to have elected one or more remedies to the exclusion of
any other remedy or remedies. Any and all rights and remedies that Landlord may
have under this Lease, and at law and in 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. 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 for any cause, 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, or otherwise.
(c) Waiver. If, under the provisions hereof, Landlord shall institute
proceedings against Tenant and a compromise or settlement thereof shall be made,
the same shall not constitute a waiver of any other covenant, condition or
agreement herein contained, nor of any of Landlord's rights hereunder. No
waiver by Landlord of any breach of any covenant, condition or agreement herein
contained shall operate as a waiver of such covenant, condition, or agreement
itself, or of any subsequent breach thereof. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly installments of rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or letter
accompanying a check for payment of Rent or any other sum 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 Rent or any other
sum or so pursue any other remedy provided in this Lease. No reentry by
Landlord, and no acceptance by Landlord of keys from Tenant, shall be considered
an acceptance of a surrender of the Lease or Premises.
(d) Right of Landlord to Cure Tenant's Default. If Tenant defaults in the
making of any payment or in the doing of any act herein required to be made or
done by Tenant, then Landlord may, but shall not be required to, make such
payment or do such act, and charge the amount of the expense thereof, if made or
done by Landlord, with interest thereon at the Lease Interest Rate. Such
payment and interest shall
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constitute Additional Rent hereunder due and payable with the next monthly
installment of Rent; but the making of such payment or the taking of such action
by Landlord shall not operate to cure such default or to stop Landlord from the
pursuit of any remedy to which Landlord would otherwise be entitled.
(e) Late Payment. If Tenant fails to pay any installment of Rent on or
before the first (1st) day of the calendar month when such installment becomes
due and payable, Tenant shall pay to Landlord a late charge of three percent
(3%) of the amount of such installment, and, in addition, such unpaid
installment shall bear interest at the Lease Interest Rate. Such late charge
and interest shall constitute Additional Rent hereunder due and payable with the
next monthly installment of Rent due, or if payments have been accelerated
pursuant to this Article 14, due and payable immediately.
(f) Lien on Personal Property. Landlord shall have a lien upon all the
personal property of Tenant moved into the Premises, as and for security for the
Rent and other obligations of Tenant herein provided. In order to perfect and
enforce said lien, Landlord may, at any time after default by Tenant in the
payment of Rent or default of other obligations to be performed or complied with
by Tenant under this Lease, seize and take possession of any and all personal
property belonging to Tenant that may be found in and upon the Premises. If
Tenant fails to redeem the property so seized, by payment of whatever sum may be
due Landlord under and by virtue of the provisions of this Lease, then and in
that event, Landlord shall have the right, after twenty (20) days written notice
to Tenant of its intention to do so, to sell such personal property so seized at
public or private sale and upon such terms and conditions as to Landlord may
appear advantageous, and after the payment of all proper charges incident to
such sale, apply the proceeds thereof to the payment of any balance due to
Landlord on account of Rent or other obligations of Tenant pursuant to this
Lease. In the event there shall then remain in the hands of Landlord any
balance realized from the sale of said personal property as aforesaid, the same
shall be held by Landlord as additional Security Deposit. The exercise of the
foregoing remedy by Landlord shall not relieve or discharge Tenant from any
deficiency owed to Landlord which Landlord has the right to enforce pursuant to
any other provisions of this Lease.
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ARTICLE XV
THE LANDLORD'S ACCESS TO PREMISES
15.1 THE LANDLORD'S RIGHT OF ACCESS
The Landlord and its agents, contractors, and employees shall have the right
to enter the Premises at all reasonable hours upon reasonable advance notice or
any time in case of emergency, for the purpose of inspecting or of making
repairs or alterations, to the Premises or the Building or additions to the
Building, and Landlord shall also have the right to make access available at all
reasonable hours to prospective or existing mortgagees or purchasers of any part
of the Building.
For a period commencing six (6) months prior to the expiration of the Lease
Term, Landlord may have reasonable access to the Premises at all reasonable
hours upon prior notice for the purpose of exhibiting the same to prospective
tenants, provided such access does not unreasonably interfere with Tenant's
business operations.
ARTICLE XVI
LANDLORD'S MORTGAGES
16.1 SUBORDINATION
Upon the written request of Landlord, Tenant shall enter into a recordable
agreement with the holder of any present or future mortgage of the Premises,
Building or Lot which shall provide that (i) this Lease shall be subordinated to
such mortgage, (ii) in the event of foreclosure of said mortgage or any other
action thereunder by the mortgagee, the mortgagee (and its successors in
interest) and Tenant shall be directly bound to each other to perform the
respective undischarged obligations of Landlord and Tenant hereunder (in the
case of Landlord accruing after such foreclosure or other action and in the case
of Tenant whether accruing before or after such foreclosure or other action),
(iii) this Lease shall continue in full force and effect, and (iv) Tenant's
rights hereunder shall not be disturbed, except as in this Lease set forth
provided the holder of any such mortgage executes an agreement which states that
provided Tenant is not in default beyond the expiration of any applicable grace
period of any of the terms and conditions of this Lease, Tenant shall remain in
possession of the Premises under the terms of this Lease for the Term and that
Landlord, or anyone claiming, by, through or under Landlord, shall not disturb
the tenancy created by this Lease. The word "mortgage" as used herein includes
mortgages, deeds of trust and all similar instruments, all modifications,
extensions, renewals and replacements thereof, and any and all assignments of
the Landlord's interest in this Lease given as collateral security for any
obligation of Landlord.
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16.2 MODIFICATIONS
In the event that any holder or prospective holder of any mortgage, as
hereinbefore defined, which includes the Premises as part of the mortgaged
Premises, shall request any modification of any of the provisions of this Lease,
other than a provision which would otherwise increase Tenant's obligations or
reduce Tenant's rights and benefits hereunder, Tenant agrees that Tenant will
enter into a written agreement in recordable form with such holder or
prospective holder which shall effect such modification and provide that such
modification shall become effective and binding upon Tenant and shall have the
same force and effect as an amendment to this Lease in the event of foreclosure
or other similar action taken by such holder or prospective holder or by anyone
claiming by, through or under such holder or prospective holder.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 CAPTIONS
The captions throughout this Lease are for convenience or reference only and
shall in no way be held or deemed to define, limit, explain, describe, modify,
or add to the interpretation, construction, or meaning of any provision of this
Lease.
17.2 NO WAIVER
The failure of Landlord or of Tenant to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this Lease
shall not be deemed to be a waiver of such violation or to prevent a subsequent
act, which would originally have constituted a violation, from having all the
force and effect of an original violation. The receipt by Landlord of Rent or
additional rent with knowledge of the breach of any covenant of this Lease shall
not be deemed to be a waiver of such breach by Landlord unless such waiver be in
writing signed by Landlord. No consent or waiver, express or implied, by
Landlord or Tenant to or of any breach of any agreement or duty shall be
construed as a waiver or consent to or of any other breach of the same or any
other agreement or duty.
17.3 NO ACCORD AND SATISFACTION
No acceptance by Landlord of a lesser sum than the minimum and additional
rent then due shall be deemed to be other than on account of the earliest
installment of such rent due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed to be 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 or at law or in equity provided.
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17.4 CUMULATIVE REMEDIES
The specific remedies to which Landlord may resort under the terms of this
Lease are cumulative and not intended to be exclusive of any other remedies or
means of redress to which it may be lawfully entitled in case of any breach or
threatened breach by Tenant of any provisions of this Lease. In addition to the
other remedies provided in this Lease, Landlord shall be entitled to the
restraint by injunction of the violation or attempted or threatened violation of
any of the covenants, conditions or provisions of this Lease or to a decree
compelling specific performance of any such covenants, conditions or provisions.
Except as otherwise set forth herein, any obligations of Tenant as set forth
herein (including, without limitation, rental and other monetary obligations,
repair obligations and obligations to indemnify Landlord) shall survive the
expiration or earlier termination of this Lease, and Tenant shall immediately
reimburse Landlord for any reasonable expense incurred by Landlord in curing
Tenant's failure to satisfy any such obligation (notwithstanding the fact that
such cure might be effected by Landlord following the expiration or earlier
termination of this Lease).
17.5 PARTIAL INVALIDITY
If any term or provision of this Lease or any portion thereof or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, then the remainder of this Lease and of such term or
provision and the application of this Lease and of such term and provision to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
17.6 LANDLORD'S RIGHT TO CURE
If Tenant shall at any time default in the performance of any obligation
under this Lease, Landlord shall have the right, but not the obligation, to
enter upon the Premises and/or to perform such obligation, notwithstanding the
fact that no specific provision for such substituted performance by Landlord is
made in this Lease with respect to such default. In performing any such
obligations, Landlord may make any payment of money or perform any other act.
All sums so paid by Landlord (together with interest at the Lease Interest Rate)
and all necessary incidental costs and expenses in connection with the
performance of any such act by Landlord, shall be deemed to be additional rent
under
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this Lease and shall be payable to Landlord immediately on demand. Landlord may
exercise the foregoing rights without waiving any other of its rights or
releasing Tenant from any of its obligations under this Lease.
17.7 ESTOPPEL CERTIFICATES
Each party agrees on the Term Commencement Date and from time to time
thereafter, upon not less than fifteen (15) days' prior written request by the
other party, to execute, acknowledge and deliver to the other party a statement
in writing, certifying that this Lease is unmodified and in full force and
effect, that said party has no defenses, offsets or counterclaims against its
obligations to pay rent and other charges required under this Lease and to
perform its other covenants under this Lease and that there are no uncured
defaults of either party under this Lease (or, if there have been any
modifications, that this Lease is in full force and effect, as modified, and
stating the modifications, and, if there are any defenses, offsets,
counterclaims or defaults, setting them forth in reasonable detail), and the
dates to which the Rent and other charges have been paid. Any such statement
delivered pursuant to this Section 17.7 may be relied upon by any prospective
purchaser or mortgagee of the Property or any prospective assignee of any such
mortgagee or Tenant or any party acquiring, financing, merging with or taking an
assignment from Tenant.
17.8 BROKERAGE
Other than Xxxxx & Xxxxx (the "Broker"), Landlord and Tenant each warrant
that there are no claims for broker's commission or finder's fees relating to
dealings by it in connection with its execution of this Lease or the tenancy
hereby created and each party agrees to indemnify and save the other party
harmless from any liability that may arise from such claim. Landlord agrees to
pay the commission due to Broker in accordance with a separate agreement.
17.9 HOLDOVER
If Tenant remains in the Premises after the termination of this Lease, by its
own terms or for any other reason, such holding over shall not be deemed to
create any tenancy, but Tenant shall be a tenant at sufferance only, at a daily
rate equal to one and one-half (1 1/2) times the Rent applicable immediately
prior to such termination plus the then applicable additional rent and other
charges under this Lease. Otherwise, such holding over shall be on the terms
and conditions set forth in this Lease as far as applicable.
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17.10 COUNTERPARTS
This Lease is executed in any number of counterparts, each copy of which is
identical, and any one of which shall be deemed to be complete in itself and may
be introduced in evidence or used for any purpose without the production of the
other copies.
17.11 CONSTRUCTION AND GRAMMATICAL USAGE
This Lease shall be governed, construed and interpreted in accordance with
the laws of The Commonwealth of Massachusetts, and Tenant and Landlord agree to
submit to the personal jurisdiction of any court (federal or state) in said
Commonwealth for any dispute, claim or proceeding arising out of or relating to
this Lease. In construing this Lease, feminine or neuter pronouns shall be
substituted for those masculine in form and vice versa, and plural terms shall
be substituted for singular and singular for plural in any place in which the
context so admits or requires. If there be more than one party tenant, the
covenants of Tenant shall be the joint and several obligations of each such
party and, if Tenant is a partnership, the covenants of Tenant shall be the
joint and several obligations of each of the partners and the obligations of the
firm.
17.12 SECURITY DEPOSIT
Tenant has deposited with Landlord the Security Deposit, a copy of which is
attached hereto as Exhibit E, as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this Lease. It
is agreed that in the event there exists an Event of Default by Tenant in
respect of any of the terms, provisions and conditions of this Lease, Landlord
may draw upon and use, apply or retain the whole or any part of the proceeds so
drawn of the Security Deposit to the extent required for payment of any Rent or
any other sum as to which there is an Event of Default by Tenant or for any sum
which Landlord may expend or may be required to expend by reason of Tenant's
Event of Default in respect of any of the terms, covenants and conditions of
this Lease, including but not limited to any damage or deficiency accrued before
or after summary proceedings or other reentry by Landlord, including the costs
of such proceeding or reentry and further including, without limitation,
reasonable attorney's fees. It is agreed that Landlord shall always have the
right to draw upon and apply the Security Deposit, or any part thereof, as
aforesaid, without notice and without prejudice to any other remedy or remedies
which Landlord may have, or Landlord may pursue any other such remedy or
remedies in lieu of drawing upon and applying the Security Deposit or any part
thereof. If Landlord shall draw upon and use, apply or retain the Security
Deposit in whole or in part, Tenant shall within ten (10) days after written
notice from the Landlord make such further or other deposit of
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monies or amended Letter of Credit in form and substance satisfactory to
Landlord as may be necessary to bring the balance of the Security Deposit to a
sum equal to the amount of the Security Deposit required to be maintained at
such time. In the event that (i) there is no Event of Default by Tenant under
this Lease, and (ii) the Guarantor has a net worth in excess of Forty Million
Dollars ($40,000,000.00) determined in accordance with generally accepted
accounting principles for the Guarantor's most recent twelve (12) month fiscal
year and reasonably approved by Landlord, the amount of the Security Deposit
shall be reduced by One Hundred Fifty Thousand Dollars ($150,000.00) at the end
of each anniversary hereof for the first five (5) years following the date
hereof. If the Letter of Credit is terminated at any one (1) year anniversary
thereof, Landlord shall have the right to draw on such Letter of Credit if a
substitute Letter of Credit meeting the requirements of this Section 17.12 is
not provided not later than fifteen (15) days prior to the expiration of the
then effective Letter of Credit. The holder of any mortgage upon the Building or
Lot shall never be responsible to Tenant for the Security Deposit or its
application or return unless the Security Deposit shall actually have been
received in hand by such holder.
17.13 ENFORCEMENT EXPENSES
Unless prohibited by applicable law, each party agrees to pay to the other
party the amount of all fees and expenses (including, without limitation,
reasonable attorneys' fees and costs) incurred by it arising out of or resulting
from any act or omission by the other party with respect to this Lease or the
Premises, including without limitation, any breach by the other party of its
obligations hereunder, irrespective of whether it resorts to litigation as a
result thereof, provided if there is litigation, the party seeking such
reimbursement is the prevailing party.
17.14 NO SURRENDER
The delivery of keys to any employee of Landlord or to Landlord's agents or
employees shall not operate as a termination of this Lease or a surrender of the
Premises.
17.15 COVENANT OF QUIET ENJOYMENT
Subject to the terms and provisions of this Lease and on payment of the Rent,
Additional Rent, and other sums due hereunder and compliance with all of the
terms and provisions of this Lease, Tenant shall lawfully, peaceably, and
quietly have, hold, occupy, and enjoy the Premises during the term hereof,
without hindrance or ejection by Landlord or by any persons claiming under
Landlord; the foregoing covenant of quiet enjoyment is in lieu of any other
covenant, express or implied.
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17.16 NO PERSONAL LIABILITY OF THE LANDLORD
It is specifically agreed that the obligations of Landlord under this Lease
do not constitute personal obligations of Landlord and that Tenant shall not
seek recourse against the personal assets of Landlord for satisfaction of any
liability with respect to this Lease.
17.17 NOTICES
Any notice or consent required to be given by or on behalf of either party to
the other shall be in writing and shall be given by mailing such notice or
consent as set forth in Article 1.2 of this Lease, addressed, if to Landlord, at
the address set forth in Article 1.2 of this Lease, and, if to Tenant, at the
address as set forth in Article 1.2 of this Lease, or at such other address as
may be specified from time to time in writing sent to the other party by like
notice.
Whenever, by the terms of this Lease, notice shall or may be given either to
Landlord or to Tenant, such notice shall be in writing and shall be delivered by
hand or sent by registered or certified mail, postage prepaid or by so-called
"express" mail (such as Federal Express or U.S. Postal Service Express Mail).
17.18 FINANCIAL INFORMATION
It is hereby understood and agreed that Tenant will supply to the Landlord,
on an annual basis, a copy of Tenant's and Guarantor's audited financial
statement within one hundred twenty (120) days following Tenant's and
Guarantor's fiscal year ends. Any information obtained by Landlord pursuant to
the provisions of this Paragraph shall be treated as confidential, except that
Landlord may disclose such information to its lenders.
17.19 RULES AND REGULATIONS
The Tenant will observe and comply with the Rules and Regulations as attached
hereto and made a part hereof, including revisions and additions as the Landlord
may from time to time institute with prior notice to Tenant, provided that in
cases of conflict with this Lease and such Rules and Regulations, the provisions
of this Lease shall prevail.
17.20 RECORDING
Tenant agrees not to record this lease, but Landlord agrees to execute and
record a recordable notice of lease complying with applicable laws
contemporaneously with the execution of this lease. In no event shall such
document
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set forth the rental 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. Any recording costs associated with the short form of
lease shall be paid by the party requesting recordation. Upon the expiration of
this Lease in accordance with its terms, or in the event of an Event of Default
giving rise to a termination of this Lease by Landlord, Landlord may,
unilaterally and without Tenant's consent, record a termination of the short
form of lease with the Suffolk County Registry of Deeds (the "Termination").
Landlord and Tenant agree that (i) the fact that the Termination has been
recorded by Landlord shall not be deemed an admission by Tenant that it has
agreed to a termination of this Lease or otherwise work as an estoppel by Tenant
as to its rights under this Lease, (ii) in the event of a dispute between
Landlord and Tenant, the relative rights and remedies of Landlord and Tenant
with respect to the Premises shall be determined by a court of competent
jurisdiction without reference to Landlord's recording of the Termination.
Tenant agrees to re-execute and deliver a termination in recordable form to
Landlord at any time and from time to time after the valid termination of this
Lease in accordance with its terms, upon the prior written request of Landlord
or its successors and assigns. The terms of this paragraph shall survive
termination of the Lease.
17.21 WHEN LEASE BECOMES BINDING
Employees or agents of Landlord have no authority to make or agree to make a
lease or any other agreement or undertaking in connection herewith. The
submission of this Lease for examination and negotiation does not constitute an
offer to lease, a reservation of, or option for the Premises and shall vest no
right in any party. Tenant or anyone claiming under or through Tenant shall
have the rights to the Premises as set forth herein and this Lease becomes
effective as a Lease only upon execution, acknowledgment and delivery thereof by
Landlord and Tenant, regardless of any written or verbal representation of any
agent, manager or employee of Landlord to the contrary.
17.22 MISCELLANEOUS
Each party hereto has reviewed and revised (or requested revisions of) this
Lease, and therefore any usual rules of construction requiring that ambiguities
are to be resolved against a particular party shall not be applicable in the
construction and interpretation of this Lease or any Exhibits hereto.
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17.23 ENTIRE AGREEMENT
This Lease and the exhibits and any rider attached hereto, set forth all the
covenants, promises, agreements conditions, representations and understandings
between Landlord and Tenant concerning the Premises and there are no covenants,
promises, agreements, conditions, representations or understandings, either oral
or written between them other than those herein set forth and this Lease
expressly supersedes any proposals or other written documents relating hereto.
Except as herein otherwise provided, no subsequent alteration, amendment, change
or addition to this Lease shall be binding upon Landlord and Tenant unless
reduced to writing and signed by them. Tenant agrees that Landlord and its
agents have made no representations or promises with respect to the Premises, or
the Building of which the Premises are a part, or the Lot, except as herein
expressly set forth.
17.24 LANDLORD'S EARLY TERMINATION OPTION
Landlord shall have the right to terminate the Lease at any time after the
tenth Lease Year provided that Landlord exercises the option to terminate by
written notice delivered to Tenant not later than eighteen (18) months prior to
the effective date of termination (i.e. at any time following 8 1/2 years from
the Rent Commencement Date).
IN WITNESS WHEREOF, the parties hereto have executed this instrument under
seal as of the date set forth in Section 1.2, above.
LANDLORD:
The 425 Medford Nominee Trust
_______________________________________
Xxxx X. Xxxxxxx, Trustee and Not Individually
_______________________________________
Xxxxxxx X. Xxxxxx, Trustee and Not Individually
TENANT:
Saleslink Corporation
BY:_______________________________________
Its:
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RULES AND REGULATIONS
---------------------
l. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by any
Tenant, nor shall they be used for any purpose other than ingress and egress to
and from the Premises. Landlord shall keep the sidewalks and curbs directly in
front of the Premises, clean and free from ice and snow.
2. No awnings or other projections shall be attached to the outside walls of
the Building without the prior written consent of the Landlord. No curtains,
blinds, shades or screens shall be attached to, hung in, or used in connection
with, any window or door of the Premises, without the prior written consent of
the Landlord. Any such awnings, projections, curtains, blinds, shades, screens
or other fixtures used by Tenant (if given the prior written consent of the
Landlord for such use), shall be of a quality, type, design and color, attached
in a manner approved by the Landlord.
3. A building directory will be maintained in the main lobby of the Building at
the expense of the Landlord and the number of such listings shall be at the sole
discretion of the Landlord. No sign, advertisement, notice or other lettering
shall be exhibited, inscribed, painted or affixed by any Tenant on any part of
the outside of the Premises or building, without the prior written consent of
the Landlord. In the event of violation of the foregoing by any Tenant,
Landlord may remove same without any liability and may charge the expense
incurred by such removal to any Tenants violating this rule.
4. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passageways or other public places in the Building
shall not be covered or obstructed by any Tenant, nor shall any bottles, parcels
or other articles be placed on the windowsills.
5. No show cases or other articles shall be put in front of, or affixed to any
part of the exterior of the Building, nor placed in the fire escapes, without
the prior written consent of the Landlord.
6. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed, and no sweepings,
rubbish, rags or other substances shall be thrown therein. All damages
resulting from any misuses of the fixtures shall be borne by the Tenant who, or
whose servants, employees, agents, visitors, or licensees, shall have caused
same.
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7. No bicycles, vehicles or animals of any kind shall be brought in or kept
about the Premises. No tenant shall cause or permit any unusual or
objectionable odors to be produced upon or permeate from the Premises.
8. Intentionally omitted.
9. No tenant shall make, or permit to be made, any unsettling or disturbing
noises or disturb or interfere with occupants of this or neighboring buildings
or premises' or those having business with them, whether by the use of any
musical instrument, radio, talking machine, unmusical noise, whistling, singing,
or in any other way. No tenant shall throw anything out of doors, windows,
skylights or down the passageways.
10. Except as permitted in the Lease, no tenant, nor any of tenant's servants,
employees, agents, visitors or licensees, shall at any time bring or keep upon
the Premises any flammable, combustible or explosive fluid, chemical and
substance.
11. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any tenant unless Landlord is provided with copies of the
keys, nor shall any changes be made in existing locks or the mechanism thereof.
Each tenant must, upon the termination of his tenancy, return to the Landlord,
all keys for stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such Tenant, and in the event of the loss of any keys so furnished,
such Tenant shall pay the Landlord the cost thereof.
12. No tenant shall occupy or permit any portion of the Premises leased to him
to be occupied for the possession, storage, manufacture or sale of liquor,
narcotics or as a xxxxxx or manicure shop.
13. Tenant shall not use the name of the Building or its owner in any
advertising without the express written consent of the Landlord.
14. The Premises shall not be used for lodging or sleeping or for any immoral
or illegal purpose.
15. Canvassing, soliciting and peddling in the building is prohibited and each
tenant shall cooperate to prevent the same by notifying the Landlord.
16. There shall not be used in any space or in the public halls of the
Building, either by a tenant or by jobbers or others in the delivery of or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
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EXHIBIT A
Plan of Premises
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EXHIBIT B
Construction Workletter
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EXHIBIT B-1
Construction
Attached to and made part of Lease dated as of
Between
1970 Xxxxxxx Family Trust
and
Saleslink Corporation
A. SUBSTANTIAL COMPLETION. For the purposes hereof, the Landlord's Work shall
be deemed to be substantially complete on the date that (i) Landlord's Work, as
defined in Paragraph B hereof, has been completed except for items of work and
adjustment of equipment and fixtures which can be completed after possession has
been taken without causing substantial interference with the performance of
Tenant's Work (i.e., so-called "punch list" items), which "punch list" items (a)
shall be designated jointly by Tenant and Landlord, and (b) Landlord shall
complete within thirty (30) business days (except for any long-lead items), and
(ii) Tenant has received the project architect's certificate of substantial
completion in the AIA form of the Premises in accordance with clause (i) of this
Paragraph.
B. LANDLORD'S WORK. For the purposes of determining substantial completion,
"LANDLORD'S WORK" shall be defined as all work shown on the Plans as defined in
Paragraph D hereof and Section 3.2 of this Lease, but shall not include special
work (i.e., long-lead items) and any items of work which are delayed by the
performance of special work, or changes made by Tenant after the Plans have been
approved by Landlord and Tenant.
The Plans shall include the following items of Landlord's Work:
I. Office Areas: built out per specifications attached hereto as Exhibit B-2
including:
(i) Painted;
(ii) Carpet;
(ii) New HVAC system;
(iv) Dropped ceiling;
(v) Lights;
(vi) Full sprinkler system and waterline (excluding any in-rack
sprinklering);
(vii) Bathrooms as required by Code;
(viii) Reception/entry on first floor;
(ix) Elevators in good working order and condition;
(x) All fire alarm pull stations; and
(xi) 4,000 amp electric service.
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II. Warehouse Areas:
(i) Warehouse lighting as required by Tenant;
(ii) Two (2) coats of paint throughout;
(iii) Sealing of warehouse floor; and
(iv) All dock doors to be replaced as needed and/or blocked up, if not
necessary.
III. Production Area:
(i) 8' strip lighting as required, 80 candlepower;
(ii) Two (2) coats of paint throughout;
(iii) Sealed floor; and
(iv) Elevators for freight and passengers in good working condition.
Expansion Space:
The Expansion Space shall be completed to the same level of finish for all
portions of office and warehouse space as set forth above for the initial
Premises.
C. PAYMENT FOR WORK. Landlord shall pay for all costs of Landlord's Work
(except as set forth below). If (A) Tenant makes any changes after the Plans
have been approved by Landlord and Tenant, or (B) the scope of the Landlord's
Work exceeds the scope of the Landlord's Work set forth above, and (C) the cost
---
of Landlord's Work will be increased thereby (collectively, "Tenant Costs"),
then Tenant shall pay to Landlord within ten (10) days of demand the net amount
of any increase in the cost of Landlord's Work resulting from the applicable
change. Tenant Costs shall include overhead and profit to the Landlord in an
amount not exceeding 8% of such Tenant Costs.
D. PLAN PREPARATION AND APPROVAL.
1. Landlord shall provide Tenant with a full and complete set of the plans and
specifications for Landlord's Work (the "Plans").
2. Response (i.e. approval or disapproval of the Plans) by Tenant): Tenant
shall respond to the Plans on or before the tenth (10th) business day after
Landlord submits to Tenant all of the Plans (or revised plans). Tenant's
approval of the Plans shall not be unreasonably withheld or delayed. Any
disapproval of the Plans shall include a detailed written statement of the
grounds for such disapproval, and specific suggested changes. Failure to
respond within ten (10) business days of submittal of the Plans shall be deemed
approval on the part of Tenant.
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E. PERFORMANCE OF WORK. Landlord agrees to use commercially reasonable efforts
to substantially complete Landlord's Work on or before June 1, 1998 (the
"Anticipated Completion Date"). If Tenant (i) fails or omits to supply
additional information which may be requested, or fails to approve requests for
change orders or in giving authorizations or materially interferes with the
performance of Landlord's Work for any Phase in the exercise of its rights
pursuant to Paragraph G hereof, or (ii) changes the scope of Landlord's Work for
any Phase or requests change orders which because of the process for approval
therefor or the additional time to perform the work or obtain the materials
delay the performance of Landlord's Work for any Phase and Landlord gives Tenant
written notice of such delay ((i) and (ii) collectively, "TENANT DELAYS"), then
the Rent Commencement Date shall be deemed to have occurred as of the date the
Rent Commencement Date would have occurred in accordance with the terms hereof,
but for such Tenant Delays, even if Premises are not, in fact, actually ready
for Tenant's occupancy. Landlord agrees to use reasonable efforts to accelerate
construction or reschedule certain portions of the Landlord's Work to make up
for lost time due to any delays, provided that Landlord shall not be required to
incur additional costs as a result thereof and any overtime costs incurred by
Landlord as a result of accelerating construction due to Tenant Delays shall be
Tenant change orders. Attached hereto as Exhibit B-3 is a schedule of certain
dates, including, without limitation, the dates of (i) delivery to Tenant of the
Plans and portions thereof, (ii) approval by Tenant of the Plans and portions
thereof, (iii) commencement of construction, (iv) anticipated dates of
Substantial Completion of Landlord's Work and delivery to Tenant.
Landlord agrees to give Tenant notice of any anticipated Tenant Delays (or
increased costs) as soon as reasonably practicable and shall give Tenant its
good faith estimate of the estimated net increase in time and cost which would
result from the change. Tenant shall have the right to withdraw the change
order if it does not accept the impact of the delay or price increase, provided
that Tenant shall nonetheless be responsible for any increase in time and cost
which results from the request for such change.
F. LANDLORD'S CERTIFICATE. Landlord's architect's certificate of substantial
completion, given in good faith, or of any other facts pertinent to this Exhibit
B shall be deemed conclusive of the statements therein contained and binding
upon Tenant.
G. TENANT'S WORK. Tenant shall contract with cabling and wiring contractors to
install cable and wiring and other specialty trades, provided Tenant's
contractors shall
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cooperate and coordinate their work with the general contractor for Landlord's
Work (which schedule shall be as set by said general contractor), and shall
comply with reasonable, non-discriminatory rules and regulations, in an "open-
shop" capacity. All Tenant contractors shall be subject to the supervision and
authority of Landlord's job superintendent. Tenant will be responsible for its
voice, data, security systems and other cabling requirements racking systems and
in-rack sprinklering and Landlord's Work shall not include the same.
H. TENANT'S CONTRACTORS. In the event that Tenant engages any separate
contractors in the initial construction of the Premises including, without
limitation, for the purposes of performing the work described in Paragraph G
above, Tenant and Tenant's contractors shall cooperate in all ways with
Landlord's contractors to avoid any delay to the work being performed by
Landlord's contractors or conflict in any other way with the performance of such
work, or any damages which might occur to any work or materials to be installed
by Landlord's Contractors in the Premises.
I. ACCEPTANCE OF WORK. Tenant shall be conclusively deemed to have agreed that
Landlord has performed all of its obligations under this Exhibit B unless not
later than thirty (30) days after the Rent Commencement Date, Tenant shall give
Landlord written notice specifying the respects in which Landlord has not
performed any such obligation and Landlord shall promptly remedy any physical
defect in Landlord's Work within or affecting the Premises of which Tenant gives
Landlord written notice within one (1) year of the date on which Landlord's Work
is Substantially Complete or, if such Landlord's Work is subject to a warranty
or guaranty with a longer term, within such term.
J. RIGHTS AND REMEDIES. Landlord shall have the same rights and remedies which
Landlord has upon the nonpayment of Base Rent and Additional Rent due under
this Lease for nonpayment of any amounts which Tenant is required to pay to
Landlord or Landlord's contractor in connection with the construction and
initial preparation of the Premises (including, without limitation, any amounts
which Tenant is required to pay in accordance with this Exhibit B hereof) or in
connection with any construction in the Premises performed for Tenant by
Landlord, Landlord's contractor or any other person, firm or entity after the
Term Commencement Date.
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Exhibit B-2
Specifications for Office Space
-55-
Exhibit B-3
Construction Schedule
-56-
EXHIBIT C
Term Commencement Agreement
---------------------------
Pursuant to that certain Lease by and between Xxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxx, Trustees of 425 Medford Nominee Trust c/o The Xxxxxxx Company, of 00
Xxxxxxxxx Xxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, as Landlord,
and Saleslink Corporation, of 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 as
Tenant, dated September , 1997 (the "Lease"), the undersigned hereby establish
and agree to the following:
1. The Term Commencement Date of the Lease is __________, 1998;
2. The Rent Commencement Date is __________, 1998;
3. The initial term of the Lease shall expire on the last day of __________,
201_, subject to Tenant's extension option under the Lease.
Capitalized terms used herein and not otherwise defined shall have the meaning
as defined in the Lease.
Executed as an instrument under seal.
LANDLORD:
The 425 Medford Nominee Trust
_______________________________________
Xxxx X. Xxxxxxx, Trustee and Not Individually
_______________________________________
Xxxxxxx X. Xxxxxx, Trustee and Not Individually
TENANT:
Saleslink Corporation
BY:_______________________________________
Its:
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF NORFOLK
This __ day of , 199_, then personally appeared the above named Xxxx X. Xxxxxxx
and Xxxxxxx X. Xxxxxx, trustees as aforesaid and acknowledged the foregoing
instrument to be their free act and deed, as trustees, before me,
_____________________________
Notary Public
My Commission Expires:_______
-00-
XXXXXXXXXXXX XX XXXXXXXXXXXXX
XXXXXX XX XXXXXXX
This __ day of , 199_, then personally appeared the above named , of
Saleslink Corporation, and acknowledged the foregoing instrument to be the free
act and deed of Saleslink Corporation, before me,
_____________________________
Notary Public
My Commission Expires:_______
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