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Exhibit 10.6
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SINGLE TENANT COMMERCIAL LEASE
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By and Between
WESTBOROUGH LAND REALTY TRUST
LANDLORD
and
APPLIX, INC.
TENANT
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THE SUBMISSION OF A DRAFT OF THIS LEASE DOES NOT
CONSTITUTE AN OFFER AND NEITHER PARTY SHALL BE BOUND UNLESS
AND UNTIL A FINAL LEASE IS EXECUTED AND DELIVERED.
XXXXXX X. XXXX, ESQ.
XXXX, XXXXXXX & ASSOCIATES, LLP
000 XXXXXXX XXXXXX
XXXXXX, XX 00000
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TEL: (000) 000-0000 / FAX: (000) 000-0000
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APPLIX, INC.
LEASE AGREEMENT
TABLE OF CONTENTS
1 BASIC DATA.........................................................................................1
1.2 Exhibits................................................................................3
1.3 Additional Definitions..................................................................3
2 PREMISES...........................................................................................5
2.1 Premises................................................................................5
2.2 Condition of Premises...................................................................6
2.3 Security................................................................................6
3 TERM/EXTENSION TERM................................................................................6
3.1 Term....................................................................................6
3.2 Extension Term..........................................................................6
4. BASE RENT.........................................................................................7
4.1 Base Rent - Term........................................................................7
4.2 Base Rent - Extension Term..............................................................7
4.2 Late Payment of Rent....................................................................7
5. ADDITIONAL RENT...................................................................................8
5.1 Taxes and Operating Expenses............................................................8
5.2 Real Estate Taxes.......................................................................8
5.3 Operating Expenses......................................................................8
5.4 Tax and Expense Stop Increases..........................................................9
5.5 Records.................................................................................9
6. UTILITIES AND SERVICES............................................................................10
6.1 Utilities...............................................................................10
6.2 Landlord Services.......................................................................10
6.3 Personal Property.......................................................................11
7. USE OF PREMISES...................................................................................11
8. TENANT IMPROVEMENTS...............................................................................12
9. PROPERTY OF TENANT................................................................................13
10. MAINTENANCE, OPERATIONS AND REPAIRS..............................................................14
11. SIGNS/ADVERTISING................................................................................15
12. ASSIGNMENT.......................................................................................16
12.1 Assignment of Lease....................................................................16
12.2 Intracorporate Transfers...............................................................16
12.3 Landlord's Option......................................................................17
13. SUBORDINATION....................................................................................17
14. LANDLORD'S ACCESS................................................................................18
15. INDEMNIFICATION..................................................................................18
15.1 Indemnification........................................................................18
15.2 Tenant Insurance.......................................................................18
15.3 Tenant Property........................................................................18
15.4 Waiver of Subrogation..................................................................19
16. CASUALTY.........................................................................................19
16.1 Fire or Other Casualty.................................................................19
16.2 Landlord's Obligation to Rebuild.......................................................19
16.4 Tenant's Termination Right.............................................................19
16.4 Rent Abatement.........................................................................20
16.5 Definition of Substantial Damage.......................................................20
16.6 Condemnation/eminent Domain............................................................20
17. DEFAULT..........................................................................................20
18. DAMAGES..........................................................................................21
18.1 Damages................................................................................21
19. NOTICES..........................................................................................22
20. SURRENDER........................................................................................23
21. NO BROKER........................................................................................23
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22. HAZARDOUS WASTE..................................................................................24
22.1 Prohibitions...........................................................................24
22.2 Indemnification........................................................................24
23. ESTOPPEL CERTIFICATE.............................................................................24
24. NOTICE OF LEASE..................................................................................24
25. SECURITY DEPOSIT.................................................................................25
25.1 Security Deposit.......................................................................25
25.2 Reduced Security Deposit...............................................................25
26. ADDITIONAL COVENANTS.............................................................................26
26.1 Unlawful Trade.........................................................................26
26.2 Landlord Liability.....................................................................26
26.3 Landlord/tenant Representation.........................................................26
26.4 Validity and Binding Affect............................................................26
26.5 Construction...........................................................................26
26.6 Period of Ownership....................................................................27
26.7 Right to Self-help.....................................................................27
27. MISCELLANEOUS....................................................................................27
27.1 Massachusetts Law......................................................................27
27.2 Severability...........................................................................27
27.3 Waiver.................................................................................27
27.4 Successors and Assigns.................................................................27
27.5 Integration............................................................................27
27.6 Holdover...............................................................................27
27.7 Usury..................................................................................28
27.8 Landlord's Right to Maintain Pipes.....................................................28
27.9 Peaceful Enjoyment.....................................................................28
27.10 Assignment of Rents...................................................................28
27.11 Landlord's Limited Guarantee..........................................................28
EXHIBIT A - PLAN OF THE PREMISES.....................................................................30
EXHIBIT B -WORK LETTER...............................................................................31
EXHIBIT C - CLERK'S CERTIFICATE......................................................................40
EXHIBIT D - CERTIFICATE OF GOOD STANDING.............................................................41
EXHIBIT E - COMMENCEMENT DATE MEMORANDUM.............................................................42
EXHIBIT F - RULES AND REGULATIONS....................................................................43
EXHIBIT G - TENANT'S ESTOPPEL CERTIFICATE............................................................44
EXHIBIT H - IRREVOCABLE LETTER OF CREDIT.............................................................45
EXHIBIT I - SNDA.....................................................................................47
EXHIBIT J - PARKING AND ACCESS PLAN..................................................................50
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APPLIX, INC.
LEASE AGREEMENT
SINGLE TENANT LEASE AGREEMENT
GREAT WAY PLACE
WESTBOROUGH, MASSACHUSETTS
XXXXXX XXXXX, TRUSTEE, of the WESTBOROUGH LAND REALTY TRUST, u/d/t dated
May 29, 1997, and recorded with the Worcester County Registry of Deeds Book
18882, Page 317 (hereinafter called "Landlord"), which expression shall include
its successors and assigns where the context so admits, does hereby lease to
APPLIX, INC., a Massachusetts Corporation with a principal place of business at
000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 (hereinafter called "Tenant"), which
expression shall include its successors and assigns where the context so admits,
and Tenant hereby leases from Landlord the following described premises.
WITNESSETH:
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ARTICLE 1
BASIC DATA
1.1 Basic Data. The following sets forth basic data hereinafter referred to
in this lease, and, where applicable, constitute definitions of the terms
hereinafter listed.
(a) THE TENANT: APPLIX, INC.;
(b) PRESENT MAILING ADDRESS OF THE TENANT: 000 XXXXXXXX XXXX, XXXXXXXXXXX,
XX 00000;
(c) THE TENANT'S TRADE NAME: APPLIX
(d) PREMISES: THE ENTIRETY OF THE BUILDING LOCATED AT 000-000
XXXXXXXX XXXX, XXXXXXXXXXX, XX, CONSISTING OF
APPROXIMATELY 49,920+/- TOTAL RENTABLE SQUARE FEET AND
AS SHOWN ON THE PLAN ATTACHED HERETO AS EXHIBIT "A".
UPON COMPLETION OF THE FINAL PLANS (AS DEFINED IN THE
WORK LETTER) LANDLORD SHALL PROVIDED TENANT WITH A SET
OF "AS-BUILT" DRAWINGS SHOWING THE ACTUAL RENTABLE AREA
OF THE PREMISES;
(e) LEASE TERM: TWELVE (12) YEARS;
(f) EXTENSION TERM: ONE (1) OPTION TO EXTEND TERM FOR FIVE (5) YEARS;
(g) COMMENCEMENT DATE: THE LATER OF (a) NOVEMBER 1, 2001 (THE "TARGET
COMMENCEMENT DATE"), OR (b) THE DATE UPON WHICH
THE PREMISES ARE SUBSTANTIALLY COMPLETE. THE
PREMISES SHALL BE DEEMED TO BE "SUBSTANTIALLY
COMPLETE" ON THE LATER OF: (1) LANDLORD FILES OR
CAUSES TO BE FILED WITH THE TOWN OF WESTBOROUGH
AND DELIVERS TO TENANT AN ARCHITECT'S NOTICE OF
SUBSTANTIAL COMPLETION, OR SIMILAR WRITTEN NOTICE
THAT THE PREMISES ARE SUBSTANTIALLY COMPLETE; OR
(2) A CERTIFICATE OF OCCUPANCY (OR A REASONABLY
SUBSTANTIAL EQUIVALENT SUCH AS A SIGNOFF FROM A
BUILDING INSPECTOR OR A
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APPLIX, INC.
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TEMPORARY CERTIFICATE OF OCCUPANCY) IS ISSUED FOR THE
PREMISES. TENANT MAY ENTER THE PREMISES PRIOR TO THE
COMMENCEMENT DATE TO PREPARE THE PREMISES FOR OCCUPANCY,
PROVIDED TENANT FIRST DELIVER TO LANDLORD PROOF OF THE
REQUIRED INSURANCE AND PROVIDED FURTHER THAT TENANT SHALL BE
RESPONSIBLE FOR ALL UTILITIES USED OR CONSUMED THEREIN;
PROVIDED, HOWEVER, SHOULD TENANT COMMENCE BUSINESS
OPERATIONS IN THE PREMISES DURING THIS PERIOD, THE
COMMENCEMENT DATE SHALL BE DEEMED TO OCCUR ON SUCH DATE;
(h) RENT COMMENCEMENT DATE: THE COMMENCEMENT DATE;
(i) EXPIRATION DATE: 11:59 P.M. ON THE LAST DAY OF THE TWELFTH (12TH)
FULL YEAR AFTER THE COMMENCEMENT DATE;
(j) (i) BASE RENT: TERM:
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MONTHS SQ. FEET RATE TOTAL
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1-60 49,920 $28.00 $1,397,760.00
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61-120 49,920 $30.00 $1,497,600.00
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121-144 49,920 $32.00 $1,597,440.00
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(ii) BASE RENT: EXTENSION TERM: FAIR MARKET RENT;
(k) REAL ESTATE TAXES/ OPERATING EXPENSES/INSURANCE: TENANT'S BASE RENT
INCLUDES A MINIMUM $6.00 PER RENTABLE SQUARE FOOT CHARGE FOR REAL
ESTATE TAXES, OPERATING EXPENSES AND INSURANCE (AS DEFINED IN SS.5
HEREINBELOW). COMMENCING ON THE FIRST ANNIVERSARY OF THE COMMENCEMENT
DATE AND FOR EACH AND EVERY LEASE-YEAR THEREAFTER DURING THE TERM OF
THE LEASE, TENANT SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL
INCREASES OVER THE INITIAL TAX AND EXPENSE STOP (AS DEFINED IN SS.5.1
HEREINBELOW);
(l) USE/RESTRICTION: FOR OFFICE, RESEARCH AND DEVELOPMENT USE AND FOR ALL
USES DIRECTLY RELATED THERETO, AND FOR NO OTHER
PURPOSE;
(m) SECURITY DEPOSIT: IRREVOCABLE LETTER OF CREDIT ("LC") IN THE AMOUNT OF
ONE MILLION FIFTY THOUSAND ($1,050,000.00) DOLLARS
SUBJECT TOSS.25 HEREINBELOW;
(n) GUARANTOR OF THE TENANT'S OBLIGATIONS: N/A;
(o) COMMERCIAL GENERAL LIABILITY INSURANCE: BODILY INJURY: $5,000,000.00
PROPERTY DAMAGE: $5,000,000.00
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APPLIX, INC.
LEASE AGREEMENT
(p) NOTICES: LANDLORD: WESTBOROUGH LAND REALTY TRUST
C/O NEW ENGLAND MANAGEMENT AND REALTY
000 XXXXXXXX XXXX
XXXXXXXXXXXX, XX 00000
ATTENTION: XXXXX XXXXX
TEL: 000-000-0000
FAX: 000-000-0000
TENANT: (a) BEFORE THE COMMENCEMENT DATE:
APPLIX, INC.
000 XXXXXXXX XXXX
XXXXXXXXXXX, XX 00000
ATTENTION: XXXXXX XXXXXX, CFO
TEL: 000-000-0000
FAX: 000-000-0000
(b) AFTER THE COMMENCEMENT DATE:
AT THE PREMISES
1.2. EXHIBITS. The exhibits listed below in this section are incorporated
in this Lease by reference and are to be construed as part of this Lease:
EXHIBIT A - PLAN OF THE PREMISES
EXHIBIT B - WORK LETTER
EXHIBIT C - CLERK CERTIFICATE
EXHIBIT D - CERTIFICATE OF GOOD STANDING
EXHIBIT E - COMMENCEMENT DATE MEMORANDUM
EXHIBIT F - RULES AND REGULATIONS
EXHIBIT G - TENANT'S ESTOPPEL LETTER
EXHIBIT H - IRREVOCABLE LETTER OF CREDIT
EXHIBIT I - SUBORDINATION NONDISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT J - PARKING AND ACCESS PLAN
1.3 ADDITIONAL DEFINITIONS.
ADDITIONAL RENT. All sums and other charges (other than Base Rent) either
due from Tenant to Landlord hereunder or incurred by Landlord as the result of a
Default.
ADDITIONAL SERVICES. Services provided to Tenant or in respect of the
Premises which are not described in ss.6.2 hereto.
ADJUSTED OPERATING EXPENSE BASE RATE. The amount determined by multiplying
the Operating Expense Base Rate by the Adjustment Factor.
ADJUSTMENT FACTOR. With respect to the First Calendar Year and the Last
Calendar Year, the percentage computed by dividing (i) the number of days of
each respective period falling within the Lease Term by (ii) 365.
AFFILIATE: Any Person who directly or indirectly controls or is controlled
by or is under direct or indirect common control with another Person, including,
without limitation, any Person with whom a Person is merged or consolidated, or
who purchases all or substantially all of the assets of a Person.
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APPLIX, INC.
LEASE AGREEMENT
"Control" means the power to direct the management and policies of such Person,
directly or indirectly, through the exercise of voting rights, by contract, or
otherwise.
ALTERATIONS. Except as set forth below, any and all alterations, additions,
improvements and/or renovations to the Building or other improvements located on
the Land made or desired to be made by Tenant or required hereunder to be made
by Tenant, whether in preparation for the initial occupancy of the Building by
Tenant or at any time thereafter during the Lease Term.
APPLICABLE LAW REQUIREMENTS. All statutes, codes, and ordinances (and all
rules and regulations thereunder), all executive orders and other administrative
orders, judgments, decrees, injunctions and other judicial orders of or by any
Governmental Authority which may at any time be applicable to parts or
appurtenances of the Premises, or to any condition or use thereof, and the
provisions of all Authorizations.
AUTHORIZATIONS. All approvals, licenses, permits, franchises, and other
consents issued by Governmental Authorities pursuant to Legal Requirements which
are or may be required for either (a) the use and occupancy of the Premises for
the conduct or continuation of a Permitted Use therein or (b) the construction
or installation of any Alterations.
BUILDING SYSTEMS. The plumbing, heating, ventilating, air conditioning,
elevators, mechanical, electrical and fire protection systems, installations and
facilities of the Premises.
BUSINESS DAY. A day which is not a Saturday after 1:00 P.M., Sunday or
other day on which either the New York Stock Exchange or banks in Westborough,
Massachusetts are closed.
DEFAULT. Any event or condition specified in Article 17 hereof so long as
any applicable requirement for the giving of notice or lapse of time, or both,
have not been fulfilled or expired.
EVENT OF DEFAULT. Any event or condition specified in Article 17 hereof (if
all applicable periods for both the giving of notice and lapse of time have been
fulfilled).
EXPIRATION DATE. 11:59 P.M. on the last day of the one hundred forty fourth
(144th) month after the Commencement Date.
FORCE MAJEURE. The occurrence of any event which is beyond the reasonable
control of Landlord or Tenant, PROVIDED, HOWEVER, Tenant's timely payment of
Base Rent, Additional Rent or any other monetary obligation under this Lease,
shall never be excused hereunder, including, without limitation, the inability
to obtain building permits or other approvals from Governmental Authorities on a
timely basis, unavailability of building materials, strikes and labor
disruptions, unusual weather conditions, Act of God, Acts of War, building
moratoriums, sewer moratoriums, earthquake, fire, flood or other natural
disaster.
GOVERNMENTAL AUTHORITY. United States of America, the Commonwealth of
Massachusetts, the Town of Westborough, County of Worcester, and any political
or quasi-public subdivision thereof and any agency, authority, department,
commission, board, bureau or instrumentality of any of them.
HAZARDOUS MATERIALS. Any chemical, substance, waste, material, gas or
emission which is deemed hazardous, toxic, a pollutant, or a contaminant under
any statute, ordinance, by-law, rule, regulation, executive order or other
administrative order, judgment, decree, injunction or other judicial order of or
by any Governmental Authority, now or hereafter in effect, relating to pollution
or protection of human health or the environment. By way of illustration and not
limitation, "Hazardous Materials" includes asbestos, radioactive materials, and
"oil," "hazardous materials," "hazardous waste," "hazardous substance" and
"toxic material" as defined in the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 ET SEQ., as amended, and
the Toxic Substances Control Act, 15 U.S.C. Section
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APPLIX, INC.
LEASE AGREEMENT
2601 ET SEQ., as amended, the regulations promulgated thereunder, and
Massachusetts General Laws, Chapter 21C and Chapter 21E and the regulations
promulgated thereunder.
INSURANCE REQUIREMENTS. All terms of any policy of insurance maintained by
Tenant and applicable to (or affecting any condition, operation, use or
occupancy of), the Premises or any part or parts thereof, and all requirements
of the issuer of any such policy and all orders, rules, regulations and other
requirements of the National Board of Fire Underwriters (or any other body
exercising similar functions).
LEASE TERMINATION DATE. The earlier to occur of (1) the stated Expiration
Date, (2) the termination of this Lease by Landlord as a result of an Event of
Default, (3) the termination of this Lease pursuant to Article 16 (Casualty)
hereof.
LEASE YEAR. The period of time commencing on the Commencement Date and
ending on the day preceding the first (1st) anniversary of the Commencement
Date, and each one (1) year period thereafter throughout the Lease Term.
OPERATING COST STATEMENT. A statement in writing signed by Landlord,
setting forth the amounts payable by Tenant for a specified computation year
pursuant to ss.ss.5.3 and 5.4 below.
PERSON. Any person or entity, including without limitation, an individual,
a corporation, a company, a voluntary association, a partnership, a trust, or an
unincorporated organization.
PRIME RATE. A rate of interest equal to the so-called "Prime Rate"
announced by the Wall Street Journal.
REAL ESTATE TAX STATEMENT. A statement in writing signed by Landlord,
setting forth the amounts payable by Tenant for a specified computation period
pursuant to ss.5.2 below.
SUBSTANTIAL COMPLETION. The completion of Landlord's work (not including
punch-list items) in such fashion as to enable Tenant to take possession of the
Premises and use the same for the permitted uses in the normal course and in
compliance with all laws.
TAX YEAR. The tax year of the Town of Westborough commencing on July 1st
and ending on the following June 30th, subject to modification in the event of a
change in the tax year.
TIME IS OF THE ESSENCE. It is agreed that time is of the essence of this
lease.
ARTICLE 2
PREMISES
2.1 PREMISES. Landlord hereby leases to Tenant the Building and that
portion of the Land (or all thereof if the Building constitutes the material
improvement thereon) upon which the Building is situated and as defined in
ss.1.1(d) (hereinafter collectively referred to as the "PREMISES") as shown on
EXHIBIT A attached hereto.
Landlord reserves the right from time to time, with reasonable prior
written or oral notice, without unreasonable interference or disruption of
Tenant's use, and for the benefit of Landlord: (a) to install, use, maintain,
repair, replace and relocate (in the case of relocation, with Tenant's prior
reasonable consent, which consent shall neither be unreasonably withheld,
conditioned or delayed) for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures,
wherever located in the Premises or Building; and (b) to alter or relocate any
other common facility.
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APPLIX, INC.
LEASE AGREEMENT
2.2 CONDITION OF PREMISES. Notwithstanding anything to the contrary
contained in this lease, by taking possession of the Premises, Tenant will be
deemed to have fully examined the Premises, be aware of the existing condition
of the Premises and will have determined that the Premises are acceptable for
Tenant's use, and, Tenant acknowledges that, except as set forth in the Work
Letter, neither Landlord nor any broker or agent has made any representations or
warranties in connection with the physical condition of the Premises or their
fitness for Tenant's use upon which Tenant has relied directly or indirectly for
any purpose. By taking possession of the Premises, Tenant accepts the Premises
"AS-IS" and waives all claims of defect in the Premises, except as set forth in
the Work Letter, except for punch list items and defects in materials or
workmanship or substantial deviations from the approved plans claimed by Tenant
within one (1) year after the Commencement Date, which Landlord shall be
responsible to remedy at its expense (not as an operating expense) except in the
event such damage or defect is caused by the negligent acts or omissions of
Tenant.
2.3 SECURITY. Tenant acknowledges that, in all events, Tenant is
responsible for providing security to its own Premises and personnel, and Tenant
shall indemnify and defend with counsel reasonably acceptable to Landlord,
PROVIDED, HOWEVER, the selection of such counsel shall require Landlord's
written reasonable consent, and save Landlord harmless from any claim for injury
to person or damage to property asserted by any of the personnel and employees,
guests, invitees or agents of Tenant which is suffered or occurs in or about the
Premise or in or about the Building and parking area of which the Premises are a
part by reason of the act of an intruder or any other person in or about the
Premises or the Building of which the same are a part, except for Landlord's
gross negligence and willful misconduct. Tenant's indemnity shall not extend to
invitees of Landlord or other tenants of Landlord whom Landlord has granted
access to the Building.
ARTICLE 3
TERM/EXTENSION TERM
3.1 TERM. The term of this Lease shall commence on the Commencement Date
and run according to the time period set forth in ss.1.1(e) above (the "Term").
Tenant shall execute an estoppel letter simultaneously in the form attached
hereto, identifying, among other items, the Commencement date and the Expiration
Date of this Lease.
3.2 EXTENSION TERM. Provided that Tenant is not in Default of any term of
this Lease beyond applicable notice periods and periods of grace either at the
time of exercise of the option hereinafter set forth or thereafter at any time
prior to the expiration of the Term of this Lease, Tenant shall have the option,
exercisable by written notice to Landlord to such effect given not later than
twelve (12) months nor longer than eighteen (18) months prior to the expiration
of the Term hereof, to extend the term of this Lease for the time period set
forth in ss.1.1(f) above upon all of the terms and conditions contained herein
(the "Extension Term"), except that the base rent payable during such extensions
shall be at the rate set forth in Article 4.2.
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APPLIX, INC.
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ARTICLE 4.
RENT
4.1 BASE RENT - TERM. Tenant shall pay without notice, demand or offset to
Landlord annual fixed rent (the "Base Rent"), monthly in advance on the first
day of each calendar month of the Term, commencing on the Rent Commencement Date
at the rate set forth in ss.1.1(j)(i), and proportionally at such rate for any
partial month.
4.2 BASE RENT - EXTENSION TERM. If Tenant exercises its option to extend
the term of this Lease as above provided, Tenant covenants to pay to Landlord
during the first year of the Extension Term of this Lease (year 13), Base Rent
equal to the "Fair Market Rent" for the Premises. Tenant shall pay such
Extension Term Base Rent without notice, demand or offset to Landlord monthly in
advance on the first day of each calendar month of the Extension Term. Landlord
shall notify Tenant as to the Fair Market Rent for the Extension Term of this
Lease within fifteen (15) days after Landlord's receipt of Tenant's notice
exercising its option to extend. In the event Tenant disputes the Fair Market
Rent as established by Landlord, Tenant shall notify Landlord of its objection
to said amount within fifteen (15) days after the receipt of Landlord's notice
together with the name of one real estate broker. The parties shall then have an
additional fifteen (15) day period in which to reach agreement on the Fair
Market Rent for the Premises (the "Negotiation Period"). If Landlord and Tenant
reach agreement on the Fair Market Rent during Negotiation Period, the agreed
Fair Market Rent shall become the Base Rent for the Extension Term.
If Landlord and Tenant are unable to agree on the Fair Market Rent during
the Negotiation Period, the Fair Market Rent shall be decided by two (2) real
estate brokers, one (1) selected by Landlord and the real estate broker already
selected by Tenant. The Fair Market Rent for the Premises shall be determined as
of the effective date of the Extension Term for comparable space in buildings
similar to the Building on Worcester Road in the town of Westborough giving
recognition to (i) any brokerage commissions actually paid; (ii) any tenant
improvements contributed by the landlord; and (iii) the then current condition
of the Premises.
If the two (2) real estate brokers do not reach a decision within twenty
(20) days after the end of the Negotiation Period, they shall select a third
real estate broker. The three (3) real estate brokers shall render their
decision within twenty (20) days following the selection of the third real
estate broker and shall notify Landlord and Tenant thereof. Each real estate
broker shall have at least ten (10) years experience in the leasing of
commercial property in the Westborough/Metro West section of the Commonwealth.
The unanimous written decision of the two (2) first chosen (without selection
and participation of a third real estate broker), or otherwise the written
decision of a majority of the three (3) real estate brokers chosen as herein
provided shall be conclusive and binding upon Landlord and Tenant. If no two (2)
real estate brokers are able to agree upon Base Rent, the decision of the third
(3rd) real estate broker shall control. Landlord and Tenant shall divide equally
all costs of the third real estate broker (which shall be determined and
accepted prior to commencing the appraisal) and each party shall pay the
expenses of the real estate broker selected by it.
If any real estate broker is not appointed as provided herein, either party
may request that such real estate broker be appointed by the President of the
Greater Boston Real Estate Board.
4.2 LATE PAYMENT OF RENT. Any installment of Base Rent or Additional Rent
paid more than five (5) business days after the same was due shall accrue
interest on the past due amount at the rate specified in Article 18, from the
date the same was due until the date paid.
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ARTICLE 5.
ADDITIONAL RENT
5.1 TAXES AND OPERATING EXPENSES. Tenant's Base Rent includes a $6.00 per
square foot charge for Real Estate Taxes (as defined in ss.5.2), and Operating
Expenses and Insurance (as defined in ss.5.3) (the "Tax and Expense Stop"). In
the event Tenant's first lease-year Tax and Expense Stop is determined to be
greater than $6.00 per rentable square foot, Tenant's Tax and Expense Stop shall
become the greater of such amounts (but never less than $6.00). By way of
example, if Landlord's audit reveals that the actual first year stop for Real
Estate Taxes, Operating Expenses and Insurance was $11.00 per square foot, the
Tax and Expenses Stop would be redefined to be $11.00.
5.2 REAL ESTATE TAXES. "Real Estate Taxes" shall mean all taxes,
assessments and betterments levied, assessed or imposed by any governmental
authority upon or against the Property or Building or payments in lieu thereof,
including reasonable expenses, which shall include without limitation,
reasonable fees of attorneys, appraisers and other consultants incurred in
connection with any efforts to obtain abatements or reductions or to assure
maintenance of Landlord's taxes for any tax fiscal year wholly or partially
included in the Term. If, at any time during the Term of this Lease, any tax or
excise on rents or other taxes, however described, are levied or assessed
against Landlord with respect to the rent reserved hereunder, either wholly or
partially in substitution for, or in addition to, real estate taxes assessed or
levied on the Property or Building, or payments in lieu thereof, such tax or
excise on rents shall be included in Taxes; however, Taxes shall not include
franchise, estate, inheritance, succession, capital levy, transfer, income or
excess profits taxes assessed to Landlord. Tenant shall have the right, at its
sole cost and expense, to contest the amount of Real Estate Taxes levied or
assessed against the Premises or the validity thereof by appropriate legal
proceedings or in such other manner as it shall deem reasonably suitable, and
Landlord shall join in such contest, protest or proceeding, but at Tenant's sole
cost and expense. Any refund obtained by Tenant shall be paid to Landlord;
PROVIDED, HOWEVER, in the event Tenant's then current charges for Real Estate
Taxes and Operating Costs (as defined in ss.5.3 below) exceed the actual first
lease-year Tax and Expense Stop (as defined in ss.5.4 below), to the extent
actually received by Landlord from the taxing authorities, such tax refund shall
be applied by Landlord against such increase (but never below the Base Year
Rate).
5.3 OPERATING EXPENSES. "Operating Costs" shall mean all commercially
reasonable costs incurred and expenditures paid by the Landlord in the operation
and management, maintaining and repair of the Building, common areas, and the
land on which the Building is situated (hereinafter collectively called the
Property). Operating Costs include, without limitation, costs of security,
janitorial service, (including costs of materials and equipment); utilities and
other costs related to the provision of heat, electricity and air conditioning;
maintenance and repairs to the Property (including without limitation snow
removal, landscaping, paving, striping, repair of heating and air conditioning
equipment, elevators and other Building components); payments under all service
contracts relating to the operation and maintenance of the Property; management
fees at comparable rates (currently 5%); wages, salaries, benefits, payroll
taxes and unemployment compensation insurance for employees of Landlord or any
contractor of Landlord engaged in the cleaning, operation, maintenance or
security of the Property; insurance relating to the Property; legal fees related
to the operation of the Property; auditing expenses, payments other than taxes
(as hereinafter defined) to the Town of Westborough (including, but not limited
to, water and sewer use charges, fire service fees and other user fees),
supplies and all other expenses customarily incurred in connection with the
operation of first class office buildings. If Landlord, in its reasonable
judgment, and with the prior consent of Tenant, which consent shall neither be
unreasonably withheld, conditioned or delayed) (except if such replacement is
required by law or Building safety in which case Tenant's consent shall not be
required), installs a new or more efficient replacement item which constitutes a
capital expense, the cost of such item, including interest thereon, shall be
included as an Operating Cost amortized in accordance with generally accepted
accounting principles.
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Notwithstanding anything to the contrary set forth in the Lease,
Operating Costs shall not include the following:
(i) Any ground or underlying lease rental;
(ii) Bad debt expenses and interest, principal, points and fees on debts
or amortization on any mortgage or other debt instrument encumbering the
Building or the Land;
(iii) Costs incurred by Landlord to the extent that Landlord is reimbursed
by insurance proceeds or is otherwise reimbursed;
(iv) Advertising and promotional expenditures, and costs of acquisition of
signs in or on the Building identifying the owner of the Building or other
tenants, except for directional signs;
(v) Marketing costs, including leasing commissions, attorneys' fees (in
connection with the negotiation and preparation of letters, deal memos, letters
of intent or leases), space planning costs, and other costs and expenses
incurred in connection with lease negotiations and transactions with prospective
tenants or other occupants of the Building;
(vi) Rent for any office space occupied by Building management personnel
to the extent the size or rental rate for such office space exceeds the size or
fair market rental value of office space occupied by management personnel of
comparable buildings in the vicinity of the Building;
(vii) Landlord's general corporate overhead and general and administrative
expenses not directly associated with the Premises;
(viii) Costs incurred in connection with upgrading the Building to comply
with laws, rules, regulations and codes in effect prior to the Term Commencement
Date;
(ix) Costs arising from the negligence or willful misconduct of Landlord
or other tenants or occupants of the Building or their respective agents,
employees, licensees, vendors, contractors or providers of materials or
services;
(x) Costs arising from Landlord's charitable or political contributions
in excess of $1,000.00;
(xi) Costs arising from latent defects or repair thereof after the first
lease-year; and
(xii) Costs for sculpture, paintings or other objects of art;
5.4 TAX AND EXPENSE STOP INCREASES. Commencing on the first anniversary of
the Commencement Date and for each and every lease-year thereafter during the
Term of the Lease as it may be extended from time to time, Tenant shall be
solely responsible for any and all increases in the Tax and Expense Stop over
the first lease-year's stop (the "Base Year Rate"). In the event Landlord
notifies Tenant of a Tax and Expense Stop Increase, Landlord shall provide
Tenant with an Operating Expense Statement which shall enumerate all real estate
taxes and operating expenses for the Premises and Building for the lease-year in
which the stop increases and compare it to the actual taxes and operating
expenses comprising the Base Year Rate. Tenant shall remit such increase to
Landlord within thirty (30) days after receipt of Landlord's notice;
5.5 RECORDS. Tenant shall have six (6) months after receipt of a Tax and
Expenses Stop Increase notice from Landlord to notify Landlord that Tenant
intends to cause such statement to be reviewed. After receipt of such notice,
and so long as Tenant is not in Default (after the expiration of applicable
grace periods) hereunder, Landlord shall make such statement, and the supporting
books, records, and other documentation therefore, available to Tenant or
Tenant's representative for inspection at
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the location in the greater Westborough area where Landlord maintains such
records upon normal business hours and upon seven (7) days advance notice.
Tenant shall provide Landlord with a copy of the report issued in connection
with such inspection. In the event Tenant does not give Landlord notice within
such six (6) month period, Landlord's statement shall be deemed to be accepted
by Tenant without dispute and Tenant's rights to inspect Landlord's records with
respect to such statement shall be waived. The right to inspect pursuant to this
section 5.4 shall not extend to any subtenants or assignees of the original
Tenant hereunder. In the event Tenant's audit reveals an underpayment on the
part of Tenant, Tenant shall immediately remit to Landlord the amount of such
underpayment. In the event Tenant's audit reveals an overpayment on the part of
Tenant, provided Tenant is not then in Default beyond applicable periods of
grace, Landlord shall apply such overpayment to Tenant's next due installment of
additional rent, or if the Term has expired and Tenant is not in Default
hereunder, shall be refunded within sixty (60) days thereof. In the event
Tenant's audit reveals that Landlord's records have overstated Operating
Expenses by seven and one half (7 1/2%) percent or more, Landlord agrees to pay
Tenant's reasonable cost of the audit.
ARTICLE 6.
UTILITIES AND SERVICES
6.1 UTILITIES. The Premises shall be separately metered by Landlord, at
Landlord's expense, for electricity and Tenant shall pay directly to the utility
company providing such service all charges for electricity used or consumed in
the Premises, such payments to be made prior to the same becoming over due.
Tenant shall make separate arrangements for telephone and other communication
utilities used or consumed by Tenant in the Premises, and shall pay directly to
the utility company providing the same before charges therefor become over due.
All other utilities to be provided by Landlord as part of the Tax and Expense
Stop.
6.2 LANDLORD SERVICES. Landlord shall provide as part of the Tax and
Expense Stop:
A. Replacement of fluorescent tubes, starters and ballasts in
overhead parabolic light fixtures as needed;
B. Hot and cold water for lavatory, drinking, shower and cafeteria
purposes;
C. Toilet supplies including soap, paper or cloth towels, and toilet
tissue for lavatories.
D. Janitor services in accordance with the following schedule and to
be accomplished unless otherwise indicated, five nights per week after
Tenant's normal working hours:
ENTRANCE DOORS: Entrance glass will be cleaned five times per week;
ENTRANCE FLOOR: Entrance floor will be polished five times per week;
BROADLOOM: All carpeted, areas will be vacuumed three times per
week. Broadloom will be shampooed upon request, at an
additional cost to Tenant;
WASTEPAPER
CONTAINERS: Wastepaper containers will be emptied five times per
week; plastic liner bags will be provided for
wastepaper containers; liners will be changed once a
week;
WATER FOUNTAINS: All water fountains will be sanitized and polished
five times per week;
WASHROOMS: Washrooms will be cleaned and serviced five times per
week. This will include refilling all paper towel,
toilet tissue, and soap dispensers, cleaning all
towel and trash containers, cleaning and polishing
all
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stainless steel fixtures, cleaning toilets, washing
and sanitizing all wash basins and shelves, cleaning
and polishing all mirrors, removing all
disfigurations such as ink marks, drawings, etc. from
all partitions and walls, damp mopping of floors;
SCUFF MARKS: All scuff marks will be removed five times per week
from all scuff plates on doors;
TILE FLOORS: All floors will be swept five times per week. All
corridors and office floors will be polished five
times per week. Floors will be stripped upon request,
at an additional cost to Tenant;
CAFETERIA: Table and counters will be cleaned five times per
week.
E. Proper care of grounds surrounding the Building, including care
of lawns and shrubs and including removal of litter.
F. Maintaining and cleaning the sidewalks and parking areas in front
of and around the Building including snow removal;
G. Providing of adequate lighting for the parking areas servicing
the Building;
H. Exterior windows will be washed annually as a common area
expense;
I. Heat pump, HVAC will be provided to Tenant Monday through Friday
7:00 A.M. through 7:00 P.M., and Saturday, 8:00 A.M. to 1:00 P.M. All
of Tenants secondary HVAC systems and any special interior HVAC
requirements shall be at Tenant's sole expense.
6.3 PERSONAL PROPERTY. Tenant shall pay, directly to the authority
responsible for collecting the same and prior to the same becoming over due, all
taxes imposed upon its personal property located in or upon the Premises during
the term of this Lease.
ARTICLE 7.
USE OF PREMISES
7. USE OF PREMISES. The Premises shall be used only for the Permitted Uses
set forth in ss.1.1(l) and for no other uses. At the Commencement Date the
Premises shall be in compliance with, and Tenant's use of the Premises shall be
in compliance with and subject to all applicable laws, statutes, codes,
ordinances, orders, rules, regulations, conditions of approval and requirements
of all federal, state, county, municipal and governmental authorities and all
administrative or judicial orders or decrees and all permits, licenses,
approvals and other entitlements issued by governmental entities, and rules of
common law, relating to or affecting the Premises or the Building or the use or
operation thereof, whether now existing or hereafter enacted, including, without
limitation, the Americans with Disabilities Act of 1990, 42 USC 12111 ET SEQ.
(the "ADA") as the same may be amended from time to time, all Environmental Laws
(as defined hereinbelow) ("APPLICABLE LAWS"). If Tenant makes alterations to the
Premises, Tenant, at Tenant's sole cost and expense, shall comply with all
Applicable Laws, which compliance obligation shall include the alteration of the
Premises and/or any interior improvements or fixtures in order to comply with
such Applicable Laws. Tenant shall be responsible for obtaining any permit,
business license, or other permits or licenses required by any governmental
agency permitting Tenant's use or occupancy of the Premises. Tenant shall comply
with the rules and regulations attached hereto as EXHIBIT D, together with such
additional rules and regulations as Landlord may from time to time prescribe.
Notwithstanding the foregoing or any other provision of this Lease, however,
Tenant shall not be responsible for compliance with any such laws, regulations,
or the like requiring (i) structural repairs or modifications or (ii) repairs or
modifications to the utility or building service equipment or (iii) installation
of new building service
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equipment, such as fire detection or suppression equipment, unless such repairs,
modifications, or installations shall have been installed by Tenant or be due to
Tenant's particular manner of use of the Premises (as opposed to office use
generally).
ARTICLE 8.
TENANT IMPROVEMENTS
8. TENANT'S IMPROVEMENTS. Aside from those improvements governed by the
Work Letter, Tenant shall not make any alterations or additions to the Premises
without first having obtained Landlord's express written consent thereto, which
consent may be withheld by Landlord in its sole and absolute discretion with
respect to structural alterations and structural additions, or alterations or
additions which might adversely affect the Building Systems, but Landlord's
written consent shall not be unreasonably withheld with respect to additions in
the nature of decorations. Without limitation, Landlord shall not be deemed
unreasonable for withholding approval of any alterations or additions which
would require unusual expense to readapt the Premises to normal office use upon
termination of this Lease. At Landlord's election made at the time of plan
approval, as a condition to the granting of its consent to any alterations or
additions, Landlord may require that Tenant remove at the expiration or earlier
termination of this Lease any or all such alterations which would require
unusual expense to readapt the Premises for normal office use upon the
termination of this Lease, at Tenant's sole cost and expense and restore the
Premises to their condition existing prior to such alterations or additions. All
such allowed alterations and additions shall be performed in such a manner as to
maintain harmonious labor relations, in a good and xxxxxxx-like manner by
contractors reasonably approved by Landlord, at Tenant's sole cost and expense
and except for work done by or through Landlord, Tenant before its work is
started shall secure all licenses and permits necessary therefor (with copies of
such licenses and permits delivered to Landlord), including a Certificate of
Occupancy after completion; deliver to Landlord a good-faith estimate of the
cost of all labor and material to be furnished by the approved contractors; and
cause each contractor, including Tenant if Tenant intends to perform its own
work, to carry workmen's compensation insurance in statutory amounts covering
all the contractor's and subcontractor's employees and comprehensive public
liability insurance with such limits as Landlord may reasonably require, but in
no event less than $2,000,000.00, and property damage insurance with limits of
not less than $2,000,000.00 during the performance of Tenant's work, copies of
any such insurance policies will be provided to Landlord and any mortgagee of
Landlord, naming Landlord and any mortgagees of Landlord as additional insureds
under such coverage (all such insurance to be written in companies reasonably
approved by Landlord and insuring Landlord and Tenant as well as the
contractors); however, such requirements shall not effect Tenant's insurance
obligations hereunder. All work of Tenant's contractors shall be in accordance
with and shall comply with any and all applicable federal, state, regional,
county, municipal and other laws and regulations, including without limitation,
the ADA. Tenant covenants that its contractor will pay for all labor and
materials utilized in the performance of this work, will keep the Building free
of liens, and, prior to the commencement of any work, to the extent allowable by
law, shall deliver to Landlord, in recordable form, executed lien waivers from
all such contractors, subcontractors, and materialmen. All work done by Tenant,
its agents, employees or independent contractors shall be done in compliance
with all Legal Requirements and Insurance Requirements, and shall be consistent
with the quality, character and aesthetics of the Building. Landlord may inspect
such work at any time or times. In the event Tenant wishes to commence its work
in the Premises prior to the completion of Landlord's work under the Work
Letter, Tenant hereby acknowledges and agrees that it shall: (i) deliver
evidence of the required insurance to Landlord; (ii) deliver the name of its
pre-approved general contractor to Landlord; (iii) not interfere with Landlord's
work in the Premises; (iv) report and at all times be subordinate to Landlord's
general contractor while on the Premises; and (v) indemnify and hold Landlord
harmless for any and all delays, loss, cost or damage caused directly or
indirectly by Tenant's commencing such work in the Premises.
ARTICLE 9.
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PROPERTY OF TENANT
9. PROPERTY OF TENANT. Subject to the provisions of this Section, Tenant
may place fixtures, machines, and the like (Tenant's Property) in the Premises.
Tenant shall not place a load upon any floor of the Premises exceeding the floor
load per square foot area which such floor was designed to carry and which is
allowed by law. Machines and mechanical equipment and Tenant's other personal
property shall be placed and maintained by Tenant, at its expense, in settings
sufficient to absorb and suppress vibration and noise such that the levels of
vibration and noise shall not exceed the legal limit and without overloading the
electrical service available to the Premises. Tenant covenants and agrees that
all Tenant's Property of every kind, nature and description which may be in or
upon the Premises or Building, in the public corridors, or on the sidewalks,
area ways and approaches adjacent thereto, during the Term hereof, and any
movement of Tenant's Property, shall be at the sole risk and hazard of Tenant
and Tenant hereby indemnifies and agrees to save Landlord harmless from and
against any liability, loss, injury, claim or suit resulting directly or
indirectly therefrom, excluding Landlord's negligent acts or willful misconduct.
Tenant shall not commit waste, subject the Premises or the Project to any use
which would damage the same or increase the risk of loss or violate any
insurance coverage, permit any unreasonable odors, smoke, dust, gas, substances,
noise or vibrations to emanate from the Premises, take any action which would
disturb, obstruct or endanger any other tenants of the Building, take any action
which would abrogate any warranties, or use or allow the Premises to be used for
any unlawful purpose. Tenant shall have the right to use for its employees and
invitees, the parking areas on the Premises as shown in the Parking and Access
Plan attached hereto as Exhibit "J". Landlord shall not be responsible for
non-compliance by any other tenant or occupant of the Building with, or
Landlord's failure to enforce, any of the rules or regulations or any other
terms or provisions of such tenant's or occupant's lease. Tenant shall promptly
comply with the reasonable requirements of any board of fire insurance
underwriters or other similar body now or hereafter constituted.
At the end of the Term of this Lease, as it may be extended from time to
time, Tenant shall remove all of its personal property and trade fixtures, and,
as provided in ss.8 above, Tenant shall remove any or all of its improvements.
If Landlord has so directed Tenant to remove the improvements, Landlord shall
not require removal of pipes, wires, ducts and the like from walls, ceilings or
floors provided, that Tenant properly cuts, caps and disconnects such pipes and
wires and seals them off in a safe and lawful manner flush with the applicable
wall, floor or ceiling and redecorates the area consistent with the remainder of
the Premises. Tenant shall maintain the Premises in a first class manner during
the Term of the Lease and shall be responsible for any and all damage to the
Premises, the fixtures, appurtenances and equipment of Landlord or the Building
caused by the installation, malfunction or removal of Tenant's Property as
defined in this Article 9.
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ARTICLE 10.
MAINTENANCE, OPERATIONS AND REPAIRS
10. MAINTENANCE OF PREMISES. (a) LANDLORD. Landlord shall, at its sole cost
and expense, and subject to the following limitations, repair and maintain the
structural portions of the Building, including the roof, foundation, floor slab
and load-bearing portions of walls (excluding wall coverings, painting, glass
and doors) except for any repair or replacement occasioned by any willful or
negligent omission or act of Tenant, its servants, agents, customers,
contractors, employees or licensees. After the first Lease-Year, Landlord shall
not be liable to Tenant for injury or damage that may result from any defect in
the construction or condition of the Premises, nor for any damage that may
result from interruption of Tenant's use of the Premises during any repairs by
Landlord.
(b) TENANT. Landlord, as part of Tenant's Operating Expense Stop, shall
keep and maintain the Premises (interior and exterior) in good repair and in a
clean and safe condition, in good order, condition and repair, including,
without limitation, the roof membrane (except to the extent that the need for
such repair is caused solely by Landlord installing third-party
telecommunications equipment or other third-party equipment on the roof), all
floors, subfloors and floor coverings, walls and wall coverings, mechanical,
electrical, and plumbing systems, appliances and devices using or containing
refrigerants, doors, windows, glass, plate glass, ceilings, skylights, lighting
systems, parking lots, driveways, parking areas, loading dock areas and doors,
fences, and truck aprons, gutters and downspouts, landscaping and any signage.
Tenant's obligation to pay for repair and maintenance shall include, but not be
limited to, the obligation to maintain and repair the parking area which is a
part of the Premises, which shall include, but not be limited to, slurrycoating
the parking area as needed but in all events every thirty (30) months; parking
area and driveway sweeping and repaving; and responsibility for exterior
painting which shall be done for the Building as needed but in all events every
sixty (60) months.
(c) LANDLORD'S FAILURE TO PERFORM. In the event Landlord fails to commence
the repair of the Premises as required under this Lease ("Landlord Repair
Obligations") and such failure to commence such repair(s) continues at the end
of thirty (30) days following Landlord's receipt of written notice from Tenant
stating with particularity the nature of such failure, Tenant shall
simultaneously give Landlord and Landlord's mortgagee written notice specifying
such default and containing the following phrase on page 1 of the notice in all
capital letters and boldface type (or it shall not be deemed validly given to
Landlord) "YOUR FAILURE TO COMMENCE THE CURE OF LANDLORD'S REPAIR OBLIGATIONS
SET FORTH IN THIS NOTICE WITHIN TEN (10) BUSINESS DAYS SHALL ENTITLE THE
UNDERSIGNED TO CURE SUCH DEFAULT AT LANDLORD'S EXPENSE WITHOUT FURTHER NOTICE"
or shall contain substantially the same text. Landlord shall thereupon have ten
(10) business days in which to commence to cure the applicable Landlord Repair
Obligation. In addition, Landlord's mortgagee shall have the right (but not the
obligation) to cure or remedy Landlord's Repair Obligations during the period
that is permitted to Landlord hereunder, plus an additional period of fifteen
(15) days, and Tenant will accept such curative or remedial action taken by
Landlord's mortgagee with the same effect as if such action had been taken by
Landlord. In the event Tenant undertakes a Landlord Repair Obligation, Tenant
shall use its commercially reasonable efforts to use those contractors used by
Landlord in the construction of the Building for the applicable required work
unless such contractors are unwilling or unable to perform, or timely perform,
such work, in which event Tenant may utilize the services of any other qualified
and licensed contractor which normally and regularly performs similar work on
commercial buildings. If Landlord does not deliver a detailed written objection
to Tenant within fifteen (15) days after receipt of an invoice by Tenant of its
costs of taking action which Tenant claims should have been taken by Landlord
(the "Tenant Invoice"), and if such Tenant Invoice sets forth a reasonably
particularized breakdown of its costs and expenses in connection with
undertaking such Landlord Repair Obligation, then Tenant shall be entitled to
reimbursement from Landlord for the amount set forth in such Tenant Invoice. If,
however, Landlord delivers to Tenant, within fifteen (15) days after receipt of
the Tenant Invoice, a written objection to the payment of such Tenant Invoice,
setting forth with reasonable particularity Landlord's reasons for its claim
that such action did not have to be taken by Landlord pursuant to the terms
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of this Lease or that the charges are excessive (in which case Landlord shall
pay the amount it contends would not have been excessive), then Tenant shall not
be entitled to such reimbursement, but as Tenant's sole remedy, Tenant may
proceed to claim a Landlord default and, if elected by either Landlord or
Tenant, the matter shall proceed to resolution by arbitration. The costs of such
arbitration (if any) shall be paid to the prevailing party in the arbitration if
and to the extent awarded by the arbitrator. In the event that (a) Landlord
fails to pay such amount to Tenant within twenty (20) days following delivery of
the Tenant Invoice, or (b) if Landlord timely objects to any portion of such
Tenant Invoice and the matter proceeds to arbitration in the manner described
above, Landlord fails to pay any amount awarded to Tenant within twenty (20)
days following the date of such award, then Tenant may commence legal
proceedings against Landlord for the collection thereof including recovery of
Tenant's reasonable costs and expenses (including reasonable attorney's fees);
PROVIDED, HOWEVER, if, prior to the time of such Landlord default, Landlord had
conveyed all of its right, title and interest in the Building to an unrelated
third party (the "New Landlord"), then Tenant may provide such New Landlord with
a final written demand for reimbursement (the "FINAL DEMAND") which contains the
following phrase on page 1 of the notice in all capital letters and boldface
type (or it shall not be deemed validly delivered to Landlord) "YOUR FAILURE TO
REIMBURSE TENANT AS REQUIRED HEREIN WITHIN FIFTEEN (15) DAYS SHALL ENTITLE THE
UNDERSIGNED TO EXERCISE CERTAIN OFFSET RIGHTS AS SET FORTH IN THE LEASE WITHOUT
FURTHER NOTICE" or shall contain substantially the same text. If the New
Landlord fails to pay to Tenant the amount due to Tenant within fifteen (15)
days following the New Landlord's receipt of the Final Demand, then Tenant may
offset from the next installments of rent and other charges coming due under
this Lease the full amount owed by the New Landlord to Tenant (together with
interest accrued thereon at the Applicable Interest Rate), provided, however,
that the amount of offset during any single month shall not exceed the greater
of (A) fifteen (15%) percent of the total Base Rent payable by Tenant to the New
Landlord for such month or (B) the amount necessary to fully amortize Tenant's
cost of cure from the date of completion of such cure to the expiration date of
the Lease Term (without regard to any unexercised renewal options).
ARTICLE 11.
SIGNS/ADVERTISING
11. SIGNS/ADVERTISING. (a) Tenant shall have the right to install and
maintain a sign or signs on an exterior wall/walls of the Building as reasonably
agreed upon by Landlord and Tenant and in accordance with and subject to all
applicable governmental laws, codes, ordinances and regulations. Tenant shall
also have the non-exclusive right, with others, to be listed on a monument sign
at the entrance of the property. Subject to Landlord's prior obligations and to
the extent reasonably practicable, the size and placement of names on such sign
shall be in accordance with the comparative size of the respective tenant
premises.
(b) The design of such signs which Tenant elects to construct pursuant to
paragraph (A) above, shall be subject to Landlord's approval, which Landlord
agrees not to unreasonably withhold, condition or delay, shall advertise
Tenant's business in the Premises and shall be constructed and maintained in
good repair at Tenant's expense. Tenant shall pay the cost of electricity
consumed in illuminating Tenant's Signs.
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ARTICLE 12.
ASSIGNMENT/SUBLETTING.
12.1 ASSIGNMENT/SUBLETTING OF LEASE. Tenant shall not assign, sublet or
otherwise transfer, whether voluntarily or involuntarily or by operation of law,
the Premises or any part thereof without Landlord's prior written approval,
which shall not be unreasonably withheld, conditioned or delayed; provided,
however, Tenant agrees it shall be reasonable for Landlord to disapprove of a
proposed sublease or assignment, if the proposed subtenant's or assignee's net
worth (as determined in accordance with generally accepted accounting principles
consistently applied), as of the date of the Lease as shown in the financial
information provided to Landlord, would require Landlord to pledge additional
security for any financing on the Premises, or if the proposed subtenant or
assignee is currently a tenant in any other space leased by Landlord or if the
proposed subtenant or assignee is in the process of negotiation with Landlord to
lease other space owned or managed by Landlord. The merger of Tenant with any
other entity or the transfer of any controlling or managing ownership or
beneficial interest in Tenant, or the assignment of a substantial portion of the
assets of Tenant, whether or not located at the Premises, shall not constitute
an assignment hereunder; provided, however, Tenant shall give written notice to
Landlord of such merger or transfer within thirty (30) days after the effective
date thereof. If Tenant desires to assign this Lease or sublet any or all of the
Premises, and Landlord's consent is required hereunder, Tenant shall give
Landlord written notice thereof with copies of all related documents and
agreements associated with the assignment or sublease, including without
limitation, the financial statements of any proposed assignee or subtenant,
thirty (30) days prior to the anticipated effective date of the assignment or
sublease. Tenant shall pay Landlord's reasonable attorney's fees incurred in the
review of such documentation plus an administrative fee of Five Hundred Dollars
($500.00) for each proposed transfer. Landlord shall have a period of seven (7)
business days following receipt of such notice and all related documents and
agreements to notify Tenant in writing of Landlord's approval or disapproval of
the proposed assignment or sublease. If Landlord fails to notify Tenant in
writing of such election, Landlord shall be deemed to have approved such
assignment or subletting. This Lease may not be assigned by operation of law;
PROVIDED, HOWEVER, a change in corporate structure shall not be deemed to be an
assignment under this Lease. Any purported assignment or subletting contrary to
the provisions hereof shall be void and shall constitute an Event of Default
hereunder. If Tenant receives rent or other consideration in the nature of rent
for any such transfer in excess of the Rent, or in case of the sublease of a
portion of the Premises, in excess of such Rent that is fairly allocable to such
portion, after appropriate adjustments to assure that all other payments
required hereunder are appropriately taken into account, after recovery of all
Tenant's reasonable costs associated therewith, Tenant shall pay Landlord fifty
(50%) percent of the difference between each such payment of rent or other
consideration in the nature of rent and the Rent required hereunder. Landlord
may, without waiving any rights or remedies, collect rent from the assignee,
subtenant or occupant and apply the net amount collected to the Rent herein
reserved and apportion any excess rent so collected in accordance with the terms
of the preceding sentence. Such acceptance of Rent shall in no event be deemed
to imply that Landlord is approving a subtenant or assignee which Landlord has
not approved in writing pursuant to the requirements of this Section 12. Tenant
shall continue to be liable as a principal and not as a guarantor or surety to
the same extent as though no assignment or subletting had been made. Landlord
may consent to subsequent assignments or subletting of this Lease by assignees
of Tenant without notifying Tenant or any successor of Tenant and without
obtaining their consent. No permitted assignment or subletting of this Lease
shall be effective until there has been delivered to Landlord a counterpart of
the assignment or sublease instrument in which the transferee agrees to be and
remain jointly and severally liable with Tenant for the payment of Rent
pertaining to the Premises and for the performance of all the terms and
provisions of this Lease relating thereto. If Landlord consents to any proposed
assignment or subletting (and under all circumstances), Tenant, and any
guarantor of the obligations of Tenant hereunder, shall nonetheless remain
primarily responsible to Landlord hereunder, and in no event shall any such
consent relieve the requirement of obtaining Landlord's reasonable consent to
any subsequent assignment or subletting.
12.2 INTRACORPORATE TRANSFERS. Notwithstanding anything to the contrary
contained herein, Tenant may, without the consent of, but with written notice
to, Landlord, assign the Lease, or sublease the
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Premises in whole or in part, to any of the following (collectively,
"INTRACORPORATE TRANSFERS") subject to the terms of this Section 12: (i) any
person who or entity which owns a controlling interest in Tenant; or (ii) any
entity a majority of whose voting control is owned by Tenant or any entity under
common control with Tenant; or (iii) any entity in which or with which Tenant is
merged or consolidated in accordance with applicable statutory provisions for
merger or consolidation of such entities. In the case of an Intracorporate
Transfer involving an assignment, such transfer shall be permitted so long as
the obligations of Tenant under this Lease are assumed by the assignee of
Tenant. In the event of the occurrence of any Intracorporate Transfer, Tenant
shall notify Landlord in writing and the assignment or subletting shall not
become effective until Tenant has provided Landlord with such resolutions and
documentation evidencing the existence of, the authority of and the assumption
of Lease obligations of such assignee. No Intracorporate Transfer shall relieve
Tenant from its obligations under this Lease and Tenant shall continue to be
liable as a principal and not as a guarantor or surety to the same extent as
though no assignment or subletting had been made. Furthermore, no Intracorporate
Transfer shall be effective until there has been delivered to Landlord a
counterpart of the transfer instrument. No assignment of this Lease in
connection with an Intracorporate Transfer shall be effective unless the
transferee agrees in the applicable transfer instrument to be and remain jointly
and severally liable with Tenant for the payment of Rent and for the performance
of all the terms and provisions of this Lease arising on or after the date of
the transfer.
12.3 LANDLORD'S OPTION. Notwithstanding anything else to the contrary
contained in the Lease, but subject to ss.12.1 and ss.12.2 hereinabove, in the
event Tenant desires Landlord's consent to an assignment or subletting of all or
any part of the Premises for the balance of the Term, Tenant, by notice in
writing, (i) shall notify Landlord of the name of the proposed assignee or
subtenant; such information as to the proposed assignee's or subtenant's
proposed use and financial responsibility and standing as Landlord may require a
copy of the proposed assignment or sublease executed by all parties; and (ii)
shall offer to vacate the space covered by the proposed area to be subleased or
the entire Premises in the event of an assignment of the entire Premises (as the
case may be) and to surrender the same to Landlord as of a date (the "Surrender
Date") specified in said offer that shall be the last day of any calendar month
during the term hereof, provided, however, that the Surrender Date shall not be
earlier than the date occurring sixty (60) days after the giving of such notice
nor be later than the effective date of the proposed assignment or the
commencement date of the term of the proposed sublease. Landlord may accept such
offer in writing by notice to Tenant given within fifteen (15) days after the
receipt of such notice from Tenant. If, Landlord accepts such offer, Tenant
shall surrender to Landlord, effective as of the surrender Date, all Tenant's
right, title, and interest in and to the portion of the Premises covered by the
proposed sublease, or, if Tenant proposes to sublet the entire Premises, or
assign this Lease, all Tenant's right, title and interest in and to the entire
Premises, and, Tenant, aside from its obligation to restore the Premises as
described hereinabove, shall have no further liability.
ARTICLE 13.
SUBORDINATION/ATTORNMENT.
13. SUBORDINATION/ATTORNMENT. This Lease is and shall be subject and
subordinate to any and all ground leases, mortgages, deeds of trust, and other
instruments in the nature of a mortgage (collectively, a "Mortgage"), now or at
any time hereafter a lien or liens on the Property, and Tenant shall, when
requested, promptly execute and deliver such written instruments as shall be
necessary to evidence the subordination of this Lease to such Mortgage provided
that Landlord delivers to Tenant a so-called Subordination, Non-Disturbance and
Attornment Agreement (SNDA) in the mortgagee's standard form by which mortgagee
agrees to recognize all of Tenant's rights under the Lease and not to disturb
Tenant's tenancy provided Tenant is not in Default beyond applicable periods of
grace (any and all reasonable costs and expenses, including reasonable attorneys
fees of Tenant, associated with delivery of such SNDA shall be the sole
responsibility of Tenant). Tenant shall, at the election of the holder of any
such Mortgage, in the event of the foreclosure of such Mortgage or if the holder
thereof otherwise succeeds to the interests of Landlord hereunder, attorn to and
recognize such holder as its landlord hereunder.
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ARTICLE 14.
LANDLORD'S ACCESS
14. LANDLORD'S ACCESS. Landlord or agents of Landlord may, with prior
reasonable written or oral notice, except in the case of emergency when no
notice will be required, at reasonable times including, without limitation,
during normal business hours, and accompanied by a representative of Tenant if
feasible, and in a manner which is reasonably designed to minimize any
interference with Tenant's business operations, enter to view the Premises and
to exercise any other rights reserved to Landlord hereunder, and make repairs
and alterations (with Tenant's reasonable approval which shall neither be
unreasonably withheld, conditioned or delayed) as Landlord should elect to do
and may show the Premises to others and, within six (6) months before the
termination of this Lease, may affix signs on the Building for the purpose of
letting or selling of the Premises or the Building and show the Premises to
prospective tenants.
ARTICLE 15.
INDEMNIFICATION/INSURANCE
15.1 INDEMNIFICATION. Tenant and Landlord shall save each other and each
other's agents harmless from, and indemnify each other and each other's agents
against, to the extent permitted by law, any and all injury, loss or damage and
any and all claims, for injury, loss or damage, of whatever nature (i) caused by
or resulting from or claimed to have been caused by or to have resulted from,
any act, omission or negligence of the indemnifying party or anyone claiming
thereunder (including, but without limitation, employees and contractors), no
matter where occurring, (ii) occurring upon or about the Premises, no matter how
caused (other than as a result of any act, omission or negligence of the
indemnifying party or their agents or employees), or (iii) resulting, directly
or indirectly from any default by the indemnifying party under this Lease. This
indemnity and hold harmless agreement shall include indemnity against all costs,
expenses and liabilities, including reasonable legal fees, incurred in
connection with any such injury, loss or damage or any such claim, or proceeding
brought thereon or the defense thereof.
15.2 TENANT INSURANCE. Tenant shall maintain, with respect to the Premises,
the Building and the Property, commercial general liability insurance with a
single combined limit of $5,000,000.00 for personal injury and at least
$5,000,000.00 for property damage, together with a broad form contractual
liability rider with business interruption insurance, in responsible companies
qualified to do business in Massachusetts and in good standing therein and
reasonably acceptable to Landlord, insuring Landlord, Landlord's mortgagees as
well as Tenant against injury to persons or damage to property as provided
therein, which insurance shall provide said coverage from the date Tenant
commences occupancy of the Premises and through the remainder of the term of
this Lease. Tenant shall deposit with Landlord certificates for such insurance
at or prior to the commencement of Tenant's occupancy, and thereafter within
twenty (20) days prior to the expiration of any such policies. All such
insurance certificates shall provide that such policies shall not be canceled
without at least twenty (20) days prior written notice to each insured named
therein and shall name Landlord and any mortgagees of Landlord as additional
insureds under such coverage.
15.3 TENANT PROPERTY All of Tenant's equipment, fixtures, furnishings and
other personal property located with the Premises shall be at Tenant's sole
risk, and Tenant shall carry "contents and improvements" casualty insurance on
all of its equipment, fixtures, furnishings and other personal property located
within the Premises and any alterations or improvements made to the Premises by
Tenant, which insurance shall provide coverage from the date Tenant commences
occupancy of the Premises and through the remainder of the term of this Lease
and shall name Landlord and any mortgagees of Landlord as additional insureds
under such coverage on Tenant's leasehold improvements. Tenant shall not make
any claim against Landlord and Landlord's agents for any loss and damage
occasioned by the use or escape of
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water or by the bursting of pipes, or by any nuisance made or suffered on the
Premises, unless such loss is caused by the negligence or willful misconduct of
Landlord, or its agents or employees.
15.4 WAIVER OF SUBROGATION As used in this section, the term "waiver of
subrogation clause" means a clause, endorsement or other provision appearing in
an insurance policy which provides that the insurer waives any right of
subrogation it may have against Tenant (if the clause is in a policy insuring
Landlord) or against Landlord (if the clause is in a policy insuring Tenant).
Landlord and Tenant each shall obtain a waiver of subrogation clause included in
all insurance policies which it maintains insuring against loss or damage to the
Premises, the Building or any of the contents of the Building due to fire or any
of the other risks which are customarily covered by an "extended coverage"
endorsements to fire insurance policies. If the insurer charges an extra fee or
premium for such waiver, the party gaining the benefit of the waiver shall pay
any reasonable extra cost for said waiver. Landlord releases Tenant, and Tenant
releases Landlord, from all liability for loss or damage caused by fire or the
extended coverage casualties, but this release is effective only if, and to the
extent that, the loss or damage is covered by an insurance policy maintained by
one of the parties to this Lease.
ARTICLE 16.
CASUALTY/EMINENT DOMAIN
16.1 FIRE OR OTHER CASUALTY Landlord shall, as an Operating Expense as
above provided, maintain property damage insurance insuring 100% of the
replacement cost of the Building against fire and other casualties customarily
included in an "all risk" endorsement and keep in force any such policy. In case
during the term hereof the Premises or the Building of which they are a part,
shall be partially damaged (as distinguished from "substantially damaged", as
that term is hereinafter defined) by fire or other casualty, Landlord shall
forthwith proceed to repair such damage and restore the Premises, or so much
thereof as was originally constructed by Landlord, to substantially their
condition at the time of such damage, but Landlord shall not be responsible for
any delay which may result from any cause beyond Landlord's reasonable control.
16.2 LANDLORD'S OBLIGATION TO REBUILD In case during the term hereof the
Premises or the Building of which they are a part, shall be substantially
damaged or destroyed by fire or other casualty, the risk of which is covered by
Landlord's insurance, this lease shall, except as hereinafter provided, unless
Tenant elects to terminate this Lease as provided in ss.16.3 below, remain in
full force and effect, and Landlord shall, proceeding with all reasonable
dispatch, repair or rebuild the Premises, or so much thereof as was originally
constructed by Landlord, to substantially their condition at the time of such
damage or destruction (subject, however, to zoning laws and building codes then
in existence), but Landlord shall not be responsible for any delay which may
result from any cause beyond Landlord's reasonable control. In case of
substantial damage or destruction, as a result of a risk which is not covered by
Landlord's insurance, Landlord shall likewise be obligated to rebuild the
Premises, all as aforesaid, unless Landlord as soon as reasonably practical
after the occurrence of such event, gives written notice to Tenant of Landlord's
election to terminate this lease.
However, if the Premises or the Building of which they are a part, shall be
substantially damaged or destroyed by fire, windstorm, or otherwise within the
last twelve (12) months of the term of this lease, either party shall have the
right to terminate this lease, provided that notice thereof is given to the
other party not later than sixty (60) days after such damage or destruction.
16.3 TENANT'S TERMINATION RIGHT Tenant may elect to terminate this Lease
if, after a substantial casualty, Landlord fails to give written notice within
ninety (90) days after such substantial casualty of its intention to restore the
Premises, or if after giving such notice, Landlord fails to commence restoration
within 120 days after receipt of all necessary permits and approvals therefore,
and, except for
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delays caused by Tenant or by Force Majeure, to thereafter continuously pursue
such restoration and complete such restoration within 180 days thereafter.
16.4 RENT ABATEMENT In the event that the provisions of ss.16.1 or ss.16.2
of this ARTICLE 16 shall become applicable, the Base Rent, and Additional Rent
specified under this lease, shall be abated or reduced proportionately during
any period in which, by reason of such damage or destruction, there is
substantial interference with the operation of the business of Tenant in the
Premises, having regard to the extent to which Tenant may be required to
discontinue its business in the Premises, and such abatement or reduction shall
continue for the period commencing with such destruction or damage and ending
with the earlier of (i) the one hundred and twentieth (120) day following
completion by Landlord of such work of repair and/or reconstruction as Landlord
is obligated to do or (ii) the recommencement of business in that portion of the
Premises so damaged or destroyed. In the event of termination of this lease
pursuant to this ARTICLE 16, this lease and the term hereof shall cease and come
to an end as of the date specified in the termination notice.
16.5 DEFINITION OF SUBSTANTIAL DAMAGE The terms "substantially damaged" and
"substantial damage" as used in this Paragraph, shall have reference to damage
of such a character as cannot reasonably be expected to be repaired or the
premises restored within one hundred twenty (120) days from the time that such
repair or restoration work would be commenced (after all necessary permits have
been received).
16.6 CONDEMNATION/EMINENT DOMAIN If the Premises, or such portion thereof
as to render the balance (when reconstructed) unsuitable for the purposes of
Tenant, shall be taken by condemnation or right of eminent domain, either party,
upon written notice to the other, shall be entitled to terminate this lease,
provided that such notice is given not later than thirty (30) days after Tenant
has been deprived of possession. Landlord agrees to 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 as
nearly like their condition prior to such taking as shall be practicable. Should
the net amount so awarded to Landlord be insufficient to cover the cost of
restoring the Premises, as estimated by Landlord's architect, Landlord may, but
shall not be obligated to, supply the amount of such insufficiency and restore
said premises as above provided, with all reasonable diligence, or terminate
this lease. Where the Tenant has not already exercised any right of termination
accorded to it under the foregoing portion of this paragraph, Landlord shall
notify Tenant of Landlord's election not later than ninety (90) days after the
final determination of the amount of the award.
Out of any award for any taking of the Landlord's interest in the Premises,
in condemnation proceedings or by right of eminent domain, Landlord shall be
entitled to receive and retain the amounts awarded for such Premises and for
Landlord's business loss. Landlord reserves, and Tenant assigns to Landlord, all
rights which Tenant may have for damages or injury to the Premises for any
taking by eminent domain, except for damage to Tenant's fixtures, property, or
equipment and those relocation expenses provided in M.G.L. c. 79A, Section 7 or
any other federal or state law or statute, provided Landlords rights and claims
hereunder are neither reduced nor otherwise impaired.
In the event of any such taking of the Premises, the Base Rent,
additional rent and the pro rata charge specified in ARTICLE 4 of this lease, or
a fair and just proportion thereof, according to the nature and extent of the
damage sustained, shall be suspended or abated.
ARTICLE 17.
DEFAULT/BANKRUPTCY
17. DEFAULT/BANKRUPTCY In the event that:
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(a) Tenant shall default in the payment of any installment of Base Rent,
additional rent or any other sum herein specified and such default shall
continue for five (5) business days after written notice thereof; PROVIDED,
HOWEVER, if Landlord shall have sent to Tenant two (2) notices of such
default during any lease-year, even though the same shall have been cured
and this Lease not terminated, if during the same lease-year Tenant shall
again default in any monetary payment, Landlord shall not be required to
send a written notice of such Default; or
(b) Tenant shall default in the observance or performance of any other of
Tenant's covenants, agreements, or obligations hereunder and such default
shall not be corrected within thirty (30) days after written notice thereof
(or in case such default cannot be corrected within thirty (30) days, if
Tenant has not commenced diligently to correct the default within said
thirty (30) day period or has not thereafter diligently pursued such
correction to completion); or
(c) Tenant or any guarantor of Tenant's obligations under this Lease makes
any assignment for the benefit of creditors, commits any act of bankruptcy
or files a petition under any bankruptcy or insolvency law; or if such a
petition is filed against Tenant or any guarantor of Tenant's obligations
under this Lease and is not dismissed within sixty (60) days; or if a
receiver or similar officer becomes entitled to Tenant's leasehold
hereunder and it is not returned to Tenant within sixty (60) days, or if
such leasehold is taken on execution or other process of law in any action
against Tenant; or
(d) Tenant shall abandon the Premises;
then Landlord shall have the right thereafter, to re-enter and take complete
possession of the Premises, to declare the term of this Lease ended, and remove
Tenant's effects, or mail a notice of termination addressed to Tenant without
prejudice to any remedies which might be otherwise used for arrears of rent or
other default. Tenant shall indemnify Landlord against all loss of rent and
additional rent which Landlord may incur by reason of such termination during
the residue of the term as hereinafter provided.
ARTICLE 18.
DAMAGES
18.1 DAMAGES In the event of a termination of this Lease resulting from
Tenant's Default, Tenant shall pay to Landlord as damages, at the election of
Landlord, either:
(a) a sum which, at the time of such termination, represents the amount
discounted to present value of the excess, if any of (i) the aggregate of
the Base Rent and additional rent (making reasonable assumptions with
respect to additional rent) which, had this Lease not terminated, would
have been payable hereunder by Tenant for the period commencing with the
day following the date of such termination and ending with the date
hereinbefore set for the expiration of the term of this Lease over (ii) the
aggregate fair rental value of the Premises for the same period; or
(b) sums equal to the aggregate of the Base Rent and additional rent
(making reasonable assumptions with respect to additional rent) which would
have been payable by Tenant had this Lease not terminated, payable upon the
due dates therefor specified herein until the date hereinbefore set for the
expiration of the term of this Lease; PROVIDED, HOWEVER, that if Landlord
shall relet all or any part of the Premises for all or any part of the
period commencing on the day following the date of such termination and
ending on the date hereinbefore set for the expiration of the term of this
Lease, Landlord shall credit Tenant with the net rents received by Landlord
from such reletting, such net rents to be determined by first deducting
from the gross rents as and when received by Landlord from such reletting
the expenses incurred or paid by Landlord in terminating
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this Lease and of re-entering the Premises and of securing possession
thereof, as well as the expenses of reletting, including altering and
preparing the Premises for new tenants, brokers' commissions, and all other
expenses properly chargeable against the Premises and the rental therefrom
in connection with such reletting, it being understood that any such
reletting may be for a period equal to or shorter or longer than said
period; PROVIDED, FURTHER, that (i) in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to
Landlord hereunder, (ii) in no event shall Tenant be entitled, in any suit
for the collection of damages pursuant to this subparagraph (b), to a
credit in respect of any net rents from a reletting except to the extent
that such net rents are actually received by Landlord prior to the
commencement of or during such suit, and (iii) if the Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot rentable area basis shall be made of the
rent received from such reletting and of the expenses of reletting.
Landlord shall use commercially reasonable efforts to mitigate damages.
Suit or suits for the recovery of any damages payable hereunder by Tenant,
or any installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired but
for such termination. Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any sums or damages to
which, in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of Tenant;
PROVIDED, HOWEVER, that Tenant shall not be liable to Landlord for any
consequential damages.
In the event of a breach or threatened breach on the part of Tenant with
respect to any of the covenants or agreements on the part of or on behalf of
Tenant to be kept, observed or performed, Landlord shall also have the right to
seek injunctive relief. The specified remedies to which Landlord may resort
hereunder are cumulative and are not intended to be exclusive of any other
remedies or means or redress to which Landlord may lawfully be entitled at any
time, and Landlord may invoke any remedy allowed at law or in equity as if
specific remedies were not herein provided for.
If Tenant shall default, after notice thereof as hereinabove required, in
the observance or performance of any conditions or covenants on Tenant's part to
be observed or performed under or by virtue of any of the provisions in any
section of this Lease, Landlord, without waiving such default, may remedy such
default for the account and at the expense of Tenant. If Landlord makes any
expenditures or incurs any obligations for the payment of money in connection
therewith, including, but not limited to, reasonable attorney's fees in
instituting, prosecuting or defending any action or proceeding against Tenant
hereunder, or against any other party as a result of Tenant's default hereunder,
such sums paid or obligations incurred, with interest at the rate of twelve
(12%) per annum and costs, shall be paid to Landlord by Tenant as additional
rent.
ARTICLE 19.
NOTICES
19. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered to a corporate officer by
messenger service, process server, or, if mailed, two days after mailed by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the parties at their respective addresses set forth in Paragraph 1,
or at such other address as either party may from time to time advise in
writing. Until further notice, all rent and notices shall be paid and sent to
Landlord c/o New England Management and Realty Corp, 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxxx, XX 00000, with a simultaneous copy to Xxxxxx X. Xxxx, Esquire,
Xxxx, Fireman & Associates, LLP, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000.
Until such time as Tenant advises otherwise, notices to Tenant shall be sent to
Xxxxxx Xxxxxx, CFO, at the address specified in Article 1.
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ARTICLE 20.
SURRENDER.
20. SURRENDER Tenant shall at the expiration or earlier termination of this
Lease remove all Tenant's goods and effects from the Premises (including,
without limitation, all signs and lettering affixed or painted by Tenant, either
inside or outside the Premises). Except as otherwise provided in Articles 10 &
12 hereof, Tenant shall deliver to Landlord the Premises and all keys and locks
thereto, and other fixtures connected therewith, and all alterations and
additions made to or upon the Premises, in the same condition as they were at
the commencement of the term, or as they were put during the term hereof,
reasonable wear and tear and damage by fire or other casualty only excepted. In
the event of Tenant's failure to remove any of Tenant's personal property or
fixtures from the Premises, Landlord is hereby authorized, without liability to
Tenant for loss or damage thereto, and at the sole risk of Tenant, to remove
and/or store any of the property at Tenant's expense, or to retain same under
Landlord's control or to sell at public or private sale, without notice, any or
all of the property not so removed and to apply the net proceeds of such sale to
the payment of any sum due hereunder.
ARTICLE 21.
NO BROKER.
21. NO BROKER Except as herein provided, each party warrants to the other
that neither it nor its agents or representatives have engaged or contracted
with any broker with respect to the transaction contemplated herein, and that no
brokers have been involved with this Lease except CRF Partners, Inc.,338 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, a duly authorized and licensed
Massachusetts real estate broker, whose compensation shall be paid by Landlord
pursuant to a separate agreement; and each party agrees to indemnify and hold
harmless the other party from any and all claims or demands for brokerage fees
arising out of a breach of its aforesaid warranty.
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ARTICLE 22.
HAZARDOUS WASTE.
22.1 PROHIBITIONS Tenant shall not cause or permit any Hazardous Materials
to be used, stored, generated or released or disposed of on or in the Premises
by Tenant, Tenant's agents, employees or contractors, or Persons claiming by,
through or under Tenant, without obtaining Landlord's prior written consent,
provided that Tenant may, without Landlord's consent, but after written notice
to Landlord as to amount, use and location of Hazardous Materials other than
normal office supplies normally used in Tenant's business operations conducted
on the Premises (for which no notice shall be required), use, store, generate
and/or properly dispose of such substances in quantities normally associated
with the uses permitted under ss.1.1(l), as long as any such use, storage,
generation or disposal of Hazardous Materials shall comply with all applicable
federal, state and local laws and regulations and Insurance Requirements.
22.2 INDEMNIFICATION Tenant shall indemnify, defend and hold harmless
Landlord from all claims, costs, liabilities or expenses, including reasonable
attorneys' fees, and other costs of every type, style and description resulting
from the breach by Tenant of the provisions of ss.22.1 above. Landlord shall
defend, indemnify and hold Tenant harmless from and against any and all loss,
cost, damage, claim or expense (including reasonable legal fees) incurred in
connection with or arising out of or relating in any way to the presence of
Hazardous Materials on the Premises or the land on which the Building, parking
and driveways are located and not caused by Tenant or its agents, contractors or
invitees.
ARTICLE 23.
ESTOPPEL CERTIFICATE.
23. ESTOPPEL CERTIFICATE At any time and from time to time, upon not less
than fifteen (15) days' prior written request by Landlord to Tenant, or by
Tenant to Landlord (provided Tenant is not in default hereunder beyond
applicable periods of grace), Landlord and Tenant shall execute, acknowledge and
deliver to each other a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that this Lease is in full force and effect as modified and stating the
modifications), that Tenant has no right of reduction, abatement or set-off
against the rent or any other charge payable to Landlord, the amount, if any, of
any security deposited by Tenant, the dates to which the Base Rent and
additional rent and other amounts and charges have been paid in advance, and any
increases or decreases of rent that are anticipated, or other information
reasonably requested, it being intended that any such statement delivered
pursuant to this Paragraph may be relied upon by any purchaser of the fee or
mortgagee or beneficiary or assignee of any Mortgage or assignee of the Lease or
sublessee. Tenant hereby designates Landlord as Tenant's attorney-in-fact
irrevocable to execute and deliver any such required estoppel certificate which
Tenant fails to execute and deliver within ten (10) days after Landlord's
request therefor.
ARTICLE 24.
NOTICE OF LEASE
24. NOTICE OF LEASE Neither party shall record this Lease; provided,
however, that either party at the request of the other shall execute and deliver
a recordable notice of this Lease in the statutorily prescribed form.
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ARTICLE 25.
SECURITY DEPOSIT.
25.1 SECURITY DEPOSIT Tenant shall deliver to Landlord by not later than
August 1, 2001, an unconditional, irrevocable, standby letter of credit (the
"Letter of Credit") with an expiration date no earlier than one year after the
Effective Date of this Lease in the amount of ONE MILION FIFTY THOUSAND and
XX/00 ($1,050,000.00) DOLLARS (the "Security Deposit"), substantially in the
form attached hereto as EXHIBIT H. The Letter of Credit shall secure the full
and faithful performance of each provision of this Lease to be performed by
Tenant. The Letter of Credit shall state on its face that, notwithstanding the
stated expiration date, the term of the Letter of Credit shall be automatically
renewed for successive, additional one (1) year periods unless, at least sixty
(60) days prior to any such date of expiration, the issuing bank shall have
given written notice to Landlord, by certified mail, return receipt requested
and at the Landlord's Address stated in the Basic Lease Information or such
other address as Landlord shall have given to the issuing bank, that the Letter
of Credit will not be renewed. The failure of Tenant to cause the Letter of
Credit to be renewed or reissued at least sixty (60) days prior to the
expiration thereof shall constitute an Event of Default under this Lease. The
Letter of Credit shall be issued by a financial institution reasonably
acceptable to Landlord, which financial institution shall be a bank that accepts
deposits, maintains accounts, will negotiate letters of credit and whose
deposits are insured by the FDIC. The Letter of Credit must be presentable in
and about Boston, Massachusetts. If Tenant fails to perform fully and timely all
or any of Tenant's covenants and obligations set forth in this Lease beyond
grace and cure periods, including, without limitation, Tenant's failure to renew
the Letter of Credit at least thirty (30) days prior to the expiration thereof,
Landlord may, without notice to Tenant, execute one or more drafts on the Letter
of Credit and apply all or any portion of the Letter of Credit toward
fulfillment of Tenant's unperformed covenants and/or obligations. If Landlord
draws on all or any portion of the amount represented by the Letter of Credit,
then Tenant shall, within ten (10) days after written demand therefor, at
Landlord's sole election: (i) deposit cash with Landlord in lieu of the Letter
of Credit in the amount drawn; or (ii) deliver a replacement letter of credit in
the amount drawn so that the total amounts represented by the Letter of Credit
and the replacement letter of credit total ONE MILION FIFTY THOUSAND and XX/00
($1,050,000.00), and Tenant's failure to do so shall be a Default under this
Lease for which Tenant shall only have three (3) business days to cure. After
Tenant vacates the Premises, upon the expiration or sooner termination of this
Lease, if Tenant is not then in default, Landlord shall within thirty (30) days
return to Tenant the Letter of Credit (and any unapplied cash balance of the
Letter of Credit that had been previously drawn upon). Should the Permitted Use
be amended to accommodate a change in the business of Tenant or to accommodate a
subtenant or assignee, Landlord shall have the right, in Landlord's reasonable
judgment, to increase the Letter of Credit to by one (1) additional month's Base
Rent (at the rate then in effect), to account for any increased risk to the
Premises or increased wear and tear that the Premises may suffer as a result
thereof. If a change in control of Tenant occurs during this Lease and following
such change the financial condition of Tenant is, in Landlord's reasonable
judgment, reduced, Tenant shall deposit up to one (1) additional month's Base
Rent (at the rate then in effect) with Landlord to cause the Letter of Credit to
be at a commercially reasonable level based on said change in financial
condition. Tenant acknowledges that Landlord has the right to sell, mortgage or
otherwise convey its interests in the Land and the Building and in this Lease.
Tenant agrees that in the event of any such sale, mortgage or other transfer,
Landlord shall have the right to transfer, assign and/or endorse the Letter of
Credit to Landlord's master lessors, ground lessors, mortgagees or other
transferees or assignees and Tenant shall look solely to such parties for the
return of the Letter of Credit in accordance with the terms of this Lease.
Tenant agrees further that, upon Landlord's written request, and subject to such
entity's return obligations hereunder, it shall have the Letter of Credit issued
in favor of Landlord's master lessor, ground lessor, mortgagee or other
transferee or assignee to be held by any such party in accordance with the terms
of this Lease.
25.2 REDUCED SECURITY DEPOSIT Provided Tenant shall not have been defaulted
under this Lease beyond applicable periods of grace, on the first day of the
second, third, and fourth Lease Years, the Letter of Credit Security Deposit
shall be reduced to $933,333.00, $816,666.00 and $641,665.00
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respectively (the "Reduced Security Deposit"). Provided Tenant shall not have
been defaulted under this Lease beyond applicable periods of grace, on the first
day of Lease Year 5, the Letter of Credit Security Deposit shall be again
reduced to $408,335.00. Provided Tenant shall not have been defaulted under this
Lease beyond applicable periods of grace, on the first day of Lease Year 6 and
for every Lease Year thereafter through the Expiration Date, Tenant shall have
the election to either (i) reduce the Letter of Credit to $125,000.00, or (ii)
substitute $125,000.00 in cash in lieu of the Letter of Credit. Thereafter, if
Landlord shall apply any portion of the Reduced Security Deposit, Tenant shall,
upon demand by Landlord, deposit with Landlord an amount sufficient to restore
the Reduced Security Deposit to the amounts specified above. In the event Tenant
elects to exchange the Letter of Credit for cash, the Landlord shall pay no
interest thereon and shall have the right to commingle the Reduced Security
Deposit with the Landlord's other funds. The portion, if any, of the Reduced
Security Deposit not so applied by Landlord in accordance with this Paragraph
shall be returned to Tenant, less any amounts applied by Landlord to cure any
defaults under the Lease or repair any damage done to the Premises, within
thirty (30) days after the end of the Term.
ARTICLE 26.
ADDITIONAL COVENANTS.
26.1 UNLAWFUL TRADE No trade or occupation shall be conducted in the
Premises or use made thereof which will be unlawful, improper, unreasonably
noisy or offensive, or contrary to any law or any municipal by-law or ordinance
in force in the Town or town in which the Premises are situated. Tenant shall
not permit any use of the Premises which will make voidable any insurance on the
Building or on the contents of the Building 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 similar body succeeding to its powers.
26.2 LANDLORD LIABILITY Neither the original Landlord nor any successor
Landlord, including, without limitation, any successor Landlord who or which is
a trustee or a partnership, nor any beneficiary of the original Landlord or any
successor Landlord nor any partner, general or limited, of such partnership
shall be personally liable under any term, condition, covenant, obligation or
agreement expressed herein or implied hereunder or for any claim or damage or
cause at law or in equity arising out of the occupancy of the Premises or the
use or maintenance of the Property and Tenant specifically agrees to look solely
to Landlord's interest in the Property for the recovery of any judgment against
Landlord.
26.3 LANDLORD/TENANT REPRESENTATION If Landlord and Tenant are business
entities, then the person or persons executing this Lease on behalf of such
entity jointly and severally warrant and represent in their individual
capacities that: (i) each is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which such entity was organized;
(ii) each is duly authorized in, and in good standing under the laws of the
Commonwealth of Massachusetts; (iii) each has the authority to own its property
and to carry on its business as contemplated under this Lease; and (iv) the
execution, delivery and performance by Landlord and Tenant, respectively, under
this Lease (1) are within the powers of Landlord and Tenant respectively, and
(2) have been duly authorized by all requisite action.
26.4 VALIDITY AND BINDING AFFECT This Lease is a valid and binding
obligation of both Tenant and Landlord in accordance with its terms. Landlord
and Tenant agree that breach of the foregoing warranty and representation shall,
at the other party's election, be a default under this Lease. This warranty and
representation shall survive the expiration or earlier termination of this
Lease.
26.5 CONSTRUCTION The parties acknowledge and agree that this Agreement
shall not be construed more strictly against either party by virtue of the
preparation of this Agreement.
26.6 PERIOD OF OWNERSHIP In no event shall Landlord be liable for any
breach of any term, condition or covenant during the Initial Term or any
extension thereof unless the same shall occur during and within the period of
time that it is the owner of and in possession of the Building. In no event and
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under no circumstances shall Landlord be liable to Tenant for any consequential
or special damages in connection with any act of Landlord, its agents,
employees, invitees or independent contractors, or other wise.
26.7 RIGHT TO SELF-HELP If an Event of Default shall occur and be
continuing, Landlord shall have the right, but shall not be obligated, to enter
upon the Premises and 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 Event of Default. In performing such obligation,
Landlord may make any payment of money or perform any other act. The total of
(i) all sums paid by Landlord pursuant to this ss. 26.7, (ii) interest on such
sums at the rate specified in ARTICLE 18, and (iii) all reasonably necessary
incidental costs and expenses in connection with the performance of any such act
of Landlord shall be deemed to be Rent under this Lease and shall be payable to
Landlord immediately upon 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. In the event Landlord fails to Tenant gives
written notice to Landlord
ARTICLE 27.
MISCELLANEOUS.
27.1 MASSACHUSETTS LAW This Lease is made pursuant to and shall be governed
by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
27.2 SEVERABILITY If any provision of this Lease or portion of such
provision or the application thereof to any person or circumstance is for any
reason held invalid or unenforceable, the remainder of this Lease (including the
remainder of such provisions) and the application thereof to the persons or
circumstances shall not be affected thereby.
27.3 WAIVER A waiver, express or implied, by Landlord or Tenant of any
default by the other in the observance and performance of any of the conditions
or covenants or duties hereof shall not constitute or be construed as a waiver
of any subsequent or other default.
27.4 SUCCESSORS AND ASSIGNS The covenants, agreements and conditions
contained in this Lease to be performed and observed by either party shall be
binding upon said party and its successors and assigns and shall inure to the
benefit of the other party and its successors and assigns. The obligations of
Tenant and any guarantors with respect to this Lease shall be joint and several,
and any reference to Tenant contained herein shall be deemed to include and
apply to any guarantor of this Lease.
27.5 INTEGRATION This Lease sets forth all of the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises and there are no warranties, representations, covenants, promises,
agreements, conditions or understandings, either oral or written, between them
other than are herein set forth (if none insert "NONE" hereafter). This Lease
shall not be modified or amended in any manner except by an instrument in
writing executed by the Parties hereto. "NONE"
27.6 HOLDOVER If Tenant remains in possession of the Premises after the
expiration or earlier termination of this Lease, Tenant shall be a
tenant-at-sufferance, and pay to Landlord rent for each month or part thereof
during which Tenant so holds over at a rate equal to the greater of (i) one and
one half times (1.5) the Base Rent and additional rent reserved herein (making
reasonable assumptions with respect to additional rent) or (ii) one and one-half
(1.5) times the fair market rental value of the Premises, reasonably determined
by Landlord; together with any damages suffered by Landlord on account of
Tenant's so holding-over not to exceed two (2) times the Base Rent and
Additional Rent during the final Lease-Year.
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27.7 USURY If any rate of interest reserved herein shall prove to be in
excess of the maximum rate of interest permitted by applicable laws, the rate of
interest so reserved shall be automatically be reduced to the rate so permitted
from time to time by applicable laws.
27.8 LANDLORD'S RIGHT TO MAINTAIN PIPES Landlord may erect, maintain and
use pipes, ducts and conduits in and through the Premises, all as it may
reasonably deem, necessary or desirable; PROVIDED, HOWEVER, that there shall be
no permanent damage to the appearance of the Premises, obstruction of access or
adverse effect upon layout or finish or the ability of Tenant to carry on the
normal conduct of its business in the Premises except with the prior consent of
Tenant (which shall not be unreasonably withheld or delayed), and except as may
be required in order to comply with any rule, order or regulation of any
governmental authority. Any actual and verifiable loss in Tenant's usable space
in the Premises shall result in a corresponding decrease in Tenant's Base Rent.
27.9 PEACEFUL ENJOYMENT Tenant, upon paying the rent reserved and
performing and observing the agreements and conditions herein on its part to be
performed and observed, shall and may peaceably and quietly have, hold and enjoy
the Premises during the term hereof without any manner of hindrance or
molestation from anyone claiming by, through or under Landlord, subject,
however, to the provisions of this Lease, and to mortgages, easements and other
matters of record existing as of the date of this Lease or arising any time
hereafter.
27.10 ASSIGNMENT OF RENTS With reference to any assignment by Landlord of
Landlord's interest in this Lease, or the rents payable hereunder, conditional
in nature or otherwise which assignment is made to the holder of a mortgage or
ground lease on property which includes the Premises, Tenant agrees:
(a) that, except as provided in Subsection (b) below, the execution
thereof by Landlord, and the acceptance thereof by the holder of such
mortgage or the ground lessor, shall never be treated as an assumption by
such holder or ground lessor of any of the obligations of Landlord
hereunder, unless such holder, or ground lessor, shall, by notice sent to
Tenant, specifically otherwise elect; and
(b) that, except as aforesaid, such holder shall be treated as having
assumed Landlord's obligations hereunder only upon foreclosure of such
holder's mortgage and the taking of possession of the Premises. In no event
shall the acquisition of title to the Building and the land on which same
is located be a purchaser which, simultaneously therewith, leases the
entire Building or such land back to the seller hereof be treated as an
assumption, by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord's
obligations hereunder. In any such event, this Lease shall be subject and
subordinate to the interest of such purchaser-lessor under the lease to
such seller-lessee. For all purposes such seller-lessee, and its successors
in title, shall be the Landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
27.11 LANDLORD'S LIMITED GUARANTEEIn the event Landlord fails to
Substantially Complete the Premises within thirty (30) days after the Target
Commencement Date, provided that such Substantial Completion shall not have been
caused directly or indirectly by Tenant, Landlord agrees to reimburse to Tenant
up to six (6) months of Tenant's verifiable "Holdover Rent" (up to a maximum of
150% of the stated monthly base rent under Tenant's current lease agreement)
("Landlord's Limited Guarantee"). Provided Tenant shall not be defaulted under
the Lease, Landlord's Limited Guarantee shall be paid to Tenant as a credit
against Tenant's then due Base Rent obligation hereunder until fully recovered
by Tenant.
EXECUTED as a sealed instrument this 23rd day of January, 2001.
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Landlord: Tenant:
WESTBOROUGH LAND REALTY TRUST APPLIX, INC.
By: /s/ Xxxxxx X. Xxxxx, TTEE By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------- --------------------------
XXXXXX XXXXX, TRUSTEE , its duly authorized
and not individually President
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EXHIBIT A
(PLAN OF PREMISES)
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EXHIBIT B
WORK LETTER
THIS WORK LETTER ("Work Letter") is entered into as of this 23rd day of
January, 2001, by and between WESTBOROUGH LAND REALTY TRUST ("Landlord"), and
APPLIX, INC., a Massachusetts corporation ("Tenant").
RECITALS:
A. Landlord and Tenant have entered into that certain Single Tenant
Commercial Lease (the "Lease") dated as of the date hereof, covering certain
premises (the "Premises") more particularly described in the Lease. This Work
Letter is attached to the Lease as Exhibit B. The Lease is hereby incorporated
into this Work Letter by this reference. Capitalized terms not defined in this
Work Letter shall have the meanings given to such terms in the Lease.
B. In consideration of the mutual covenants contained in the Lease and
this Work Letter, Landlord and Tenant hereby agree as follows:
AGREEMENT:
1. Definitions. As used in this Work Letter and in the Lease, the term
"Base Building" shall mean the Building as shown and described in Xxxxxxxx
Associates drawings set dates 8/21/00, "Issued for Permit", for Xxxxxxxx Xxxxx
Xxxxxx Xxxxxxxx, Xxxxxxxxxxx, XX, excluding the Tenant Improvements (as
hereinafter defined). As used in this Work Letter and in the Lease, the term
"Tenant Improvements" shall mean those improvements set forth on the "Final
Tenant Plans" (defined in Section 6(c) of this Work Letter). The construction
and installation of the Tenant Improvements is sometimes referred to herein as
the "Work".
2. Base Building. Landlord shall complete the construction, installation,
and erection of the following fixtures, equipment and /or improvements in and
upon the Building.
(a) Building Shell:
(i) Construct structural building and roofing system, with columns,
beams, joists (exposed construction), and all required
fireproofing, as shown on structural drawings S100 through S502
dated 10/9/00, Issued for Construction"
(ii) Waterproof roof and drainage systems;
(iii) Finished Building exterior;
(iv) Install exterior doors as specified by Landlord's architect and
required by code;
(v) A smooth, steel-troweled finished concrete floor located
throughout the Premises and which floor shall be clean, , level,
with vertical penetrations as indicated;
(vi) Install insulation to meet the applicable code required R-Value
in the roof and exterior walls.
(b) Perimeter Walls:
(i) The inside face of all exterior walls shall be constructed of 6"
metal studs with one layer of 5/8" dry wall with 6" fiberglass
between the studs, taped, sanded and ready for primer paint;
(ii) One (1) duplex wall outlet will be provided every 12 linear feet
on perimeter walls with whips pulled up columns and walls as
applicable;
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(c) Plumbing:
(i) Furnish and install Building plumbing system as shown on Xxxxxx
Engineering P1 through P9 dated 8/24/00.
(ii) Cold and hot water connections and drains are available at the
building's core and at all bathrooms, the cafeteria and fitness
center showers and sinks and cold water connections on one
interior column/floor for connection to Tenant facilities;
(iii) A men's and women's bathroom will be installed on each floor.
Bathrooms will be designed for handicapped accessibility;
(d) Electricity:
(i) Furnish and install a base building electrical system as shown
on Xxxxxx Engineering electrical drawings E1 though E6, dated
8/24/00;
(ii) The main panel (800 AMPS) will be located on the ground floor
and conduit will be brought to sub-panels on each floor;
(iii) Capacity for six (6) xxxxx per rentable square foot shall be
provided with nine (9) xxxxx per RSF capacity available in the
Building riser;
(iv) Landlord and Tenant shall split evenly the cost to furnish and
install necessary transformers, power and lighting panels,
including circuit breakers, in all three floor electrical
closets for base building HVAC equipment and single tenant use;
(e) Sprinkler:
(i) Furnish and install a base building sprinkler system to meet
building code requirements;
(ii) Provide sprinkler distribution lines on each floor with standard
branch sprinklers and sprinkler head layout according to Mass.
And NFPA codes and standards;
(iii) Fire extinguishers shall be provided and installed in core areas
as required by code;
(f) Heating, Venting and Air Conditioning (HVAC):
(i) Furnish and install an HVAC system as shown on Xxxxxx
Engineering mechanical drawings M1 though M6, dated 8/24/00;
(ii) Install an HVAC system for Building in sufficient quantity and
size to comply with ASHRAE design standards;
(iii) HVAC system will incorporate an economizer cycle for use of
outside air for cooling;
(g) Parking and Landscaped Arms:
(i) A passenger vehicle parking area will be provided with
designated parking areas for the handicapped, visitors and
reserved spaces. The cost of sign installation for such reserved
spaces shall be paid by Tenant. Such parking layout will be
reasonably approved by Tenant except for handicap parking. The
grounds and parking areas will be landscaped by Landlord as
shown on the approved landscape plan. Tenant's backup generator
will be appropriately screened;
(h) Lobby, Common Lavatories, Cafeteria and Health Club:
(i) Base Building includes Landlord's fit-up of the first floor
lobby, all common lavatories per code requirements, the
cafeteria and health club.
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(ii) The cafeteria will include a refrigerator, dishwasher, stovetop,
microwave, disposal, TV set and of sufficient size to fit 120
people and tables and chairs to accommodate fifty (50) people.
Walls and floors will be finished with Building Standard
materials. All associated mechanical, electrical, plumbing and
finish work (walls, ceilings, lights and floor covering) will be
included;
(iii) The health club will be furnished with men's and women's showers
(including two shower stalls per each), sinks and lockers, two
(2) Bodyguard Stairmasters (Quantum 11f2), two (2) Bodyguard
treadmills (Odyssey 1f2), two (2) Bodyguard exercise bicycles
(Organic 152), one (1) incline bench (Hoist H500), one (1) rack
of assorted free weights, one (1) TV set, one (1) multi-station
Universal exercise system (collectively, the "Equipment"), or
their substantial equals. All associated mechanical, electrical,
plumbing and finish work (walls, ceilings, lights and floor
covering) will be included;
(iv) Standard solid vertical vinyl window blinds will be provided and
installed by Landlord as part of Base Building.
3. Completion of Improvements. Subject to the terms of the Lease and this
Work Letter and any "Tenant Delay" or "Force Majeure Delay" as provided herein,
Landlord shall use its commercially reasonable and diligent efforts to cause the
"Contractor" (defined in Section 8 of this Work Letter) to complete the
construction and installation of the Tenant Improvements in accordance with the
terms of this Work Letter and by the Target Completion Date.
4. Designation of Representatives. With respect to the planning, design and
construction of the Tenant Improvements, Landlord hereby designates Xxxxx Xxxxx
as "Landlord's Representative" and Tenant hereby designates Xxx Xxxxxxx as
"Tenant's Representative." Tenant hereby confirms that Tenant's Representative
has limited authority to act on behalf of and to bind Tenant with respect to all
matters pertaining to the planning, design and construction of the Tenant
Improvements. Landlord hereby confirms that Landlord's Representative has
limited authority to act on behalf of Landlord with respect to matters
pertaining to the planning, design and construction of the Tenant Improvements.
Either party may change its designated representative upon five (5) days prior
written notice to the other party.
5. Architect. An architectural firm selected by Tenant ("Architect"), shall
act as the architect with respect to the design and construction of the Tenant
Improvements. Tenant shall enter into a contract with Architect for such
services (the "Architect Contract"). The parties acknowledge and agree that the
Architect Contract entered into with the Architect will obligate the Architect
to issue to both Landlord and Tenant an architect's certificate ("Architect's
Certificate") upon Substantial Completion (as hereinafter defined) of the Tenant
Improvements certifying the Substantial Completion of the Tenant Improvements in
accordance with the Final Plans (as hereinafter defined). Landlord, at its cost,
reserves the right to retain a development consultant to assist Landlord in
performing its obligations under this Work Letter and under the Lease
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6. Improvement Plans
(a) Preliminary Plans. See Final Plans hereinbelow.
(b) Final Plans. Final plans are to be completed and available for
review by March 31, 2001 ("Final Plans"). Included in the Final Plans are the
civil, architectural and structural plans for the Tenant Improvements. Any
disagreements between Landlord and Tenant arising in connection with completing
the Final Plans shall be conclusively resolved or determined by the Architect.
Promptly upon approval of the Final Plans, Contractor shall submit the Final
Plans to the appropriate governmental agency for plan checking and the issuance
of a building permit for the Tenant Improvements. Architect shall make any and
all changes to the Final Plans required by any applicable governmental entity to
obtain a building permit for the Improvements.
(c) Work Cost Estimate. Prior to the commencement of construction of
any of the Tenant Improvements, Landlord shall submit to Tenant a written
estimate of the cost to complete the Tenant Improvements, which written estimate
will be based upon the Final Tenant Plans taking into account any modifications
which may be required to reflect changes in the Final Tenant Plans required by
the appropriate governmental authorities in connection with the issuance of a
building permit (the "Work Cost Estimate"). Tenant will either approve in
writing the Work Cost Estimate, or disapprove specific items, and submit to
Landlord revisions to the Final Tenant Plans.. Submission and approval of the
Work Cost Estimate will proceed in accordance with the work schedule provided by
Landlord. Upon Tenant's approval of the Work Cost Estimate (the "Work Cost
Statement"), Landlord will have the right to purchase materials and to commence
the construction of the items included in the Work Cost Statement. If the total
costs reflected in the Work Cost Statement exceed the Allowance (as defined in
Section 10 below), Tenant shall pay such excess to Landlord in cash or by wire
transfer of funds, within 10 business days of invoicing at fifty percent (50%)
of such costs upon Tenants approvals of the Work Cost Statement and the
remainder upon completion of the work, only to the amount in excess of the
allowance set forth in Section 10 of this Work Letter.
(d) No Representations. Notwithstanding anything to the contrary
contained in the Lease or herein, Landlord's participation in the preparation of
the Preliminary Plans, the Final Plans, the cost estimates for the Improvements
and the construction thereof shall not constitute any representation or
warranty, express or implied, that the Tenant Improvements, if built in
accordance with the Preliminary Plans and/or the Final Plans, will be suitable
for Tenant's intended purpose. Tenant acknowledges and agrees that the Tenant
Improvements are intended for use by Tenant and the specifications and design
requirements for such Tenant Improvements are not within the special knowledge
or experience of Landlord. Landlord's sole obligation shall be to arrange the
construction of the Tenant Improvements in accordance with the requirements of
the Final Plans; and any additional costs or expense required for the
modification thereof to more adequately meet Tenant's use, whether during or
after Landlord's construction thereof, shall be borne entirely by Tenant except
as otherwise provided in this Work Letter. Notwithstanding the foregoing,
Landlord agrees to assign to Tenant the benefit of all construction warranties
pertaining to the Tenant Improvements to the extent that they do not relate to
structural or other portions of the Building that Landlord is required to
maintain and repair under the Lease.
7. Change Orders. After the parties approve the Final Plans and the Work
Cost Estimate, any further changes to the Final Plans shall require the prior
written approval of Tenant and Landlord (not to be unreasonably withheld or
delayed). If Tenant desires any change in the Final Plans relative to the Tenant
Improvements which is reasonable and practical (which shall be conclusively
determined by the Architect), such changes may only be requested by the delivery
to Landlord by Tenant of a proposed written "Change Order" specifically setting
forth the requested change. Landlord shall have five (5) business days from the
receipt of the proposed Change Order to provide Tenant with the Architect's
disapproval of the proposed change stating the reason(s) for such disapproval,
or if the Architect approves the proposed change, the following items: (i) a
summary of any increase or decrease in the cost caused by such change (the
"Change Order Cost"), (ii) a statement of the number of days of any delay caused
by such proposed change (the "Change Order Delay"), and (iii) a statement of the
cost of the Change Order Delay (the
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"Change Order Delay Expense"), which Change Order Delay Expense shall be the
product of the number of days of delay multiplied by the estimated daily Base
Rent rate. Tenant shall then have five (5) business days to approve the Change
Order Cost, the Change Order Delay and the Change Order Delay Expense. If Tenant
approves these items, Tenant shall pay to Landlord, as to the cost of the Change
Order, within ten (10) business days of invoicing, as follows: fifty percent
(50%) upon such Tenant Approval and the remainder upon completion of the Change
Order, only to the extent such Change Order exceeds the allowance as defined in
Section 10 of this Work Letter, and as to the cost of the Change Order Delay
Expense, if applicable, upon the date that such rent payments would have been
due if not for the Change Order Delay. Landlord shall promptly following receipt
of the first payment for the Change Order, execute the Change Order and cause
the appropriate changes to the Final Plans to be made. If Tenant fails to
respond to Landlord within said five (5) business day period, the Change Order
Cost, the Change Order Delay and the Change Order Delay Expense shall be deemed
disapproved by Tenant and Landlord shall have no further obligation to perform
any Work set forth in the proposed Change Order. The Change Order Cost shall
include all costs associated with the Change Order, including, without
limitation, architectural fees, engineering fees and construction costs, as
conclusively determined by the Architect and the Contractor (defined in Section
7). The Change Order Delay shall include all delays caused by the Change Order,
including, without limitation, all design and construction delays, as
conclusively determined by the Architect and the Contractor (defined in Section
7), respectively.
8. Selection of Contractor. Landlord shall select a General Contractor
for the construction of the Tenant Improvements. The selected contractor shall
be referred to herein as the "Contractor." Landlord shall cause the Contractor
to obtain at least three (3) bids for major subcontracts and for any work
specifically requested by Tenant. Contractor shall also be required to include
as a bidder any subcontractor requested by Tenant although such subcontractor
need not be awarded the subcontract. Contractor shall be required to keep
separate accounts for the Base Building and Tenant Improvement portion of the
work. Contractor shall be required to share with Landlord and Tenant the
contents of all bids before an award is made. As to the Tenant Improvement
portion, Tenant shall have the right to select and award the bid to the lowest
qualified bidder, subject to Landlord's consent, such consent not to be
unreasonably withheld, conditioned or delayed.
9. Construction of the Improvements. Landlord shall enter into a
construction contract with the Contractor on a form reasonably acceptable to
Landlord and Tenant ("Construction Contract") for the construction and
installation of the Tenant Improvements in accordance with the Final Tenant
Plans. The Construction Contract shall be a so-called "Guaranteed Maximum Price"
contract with any realized savings on the Tenant Improvement portion passed
through to Tenant
10. Payment for Cost of the Tenant Improvements
(a) Allowance. Landlord hereby grants to Tenant a tenant improvement
allowance over the Base Building, as described herein, provided by Landlord for
the work described on the Final Tenant Plans of a total of one million and fifty
thousand dollars ($1,050,000.00) (the "Allowance"). The Allowance is to be used
only for the following costs approved by Landlord:
(i) Unless paid directly by Tenant to the Architect, the payment
of the cost of preparing the Preliminary Tenant Plans relative to the Tenant
Improvements (including, without limitation, Architect's costs under the
Architect Contract) and the Final Tenant Plans, including mechanical,
electrical, plumbing and structural drawings and of all other aspects necessary
to complete the Final Tenant Plans.
(ii) The payment of plan check, permit and license fees relating
to construction of the Tenant Improvements.
(iii) Construction of the Tenant Improvements as provided in the
Final Tenant Plans, including without limitation, the following:
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(aa) Installation within the Premises of all partitioning,
doors, floor coverings, ceilings, wall coverings and painting and similar items;
(bb) All electrical wiring over the Base Building standard,
lighting fixtures, outlets and switches, and other electrical work necessary for
the Premises;
(cc) The furnishing, installation and screening of all HVAC
units over the Base Building standard, including duct work, terminal boxes,
diffusers and accessories necessary for the heating, ventilation and air
conditioning systems within the office portions of the Premises;
(dd) Any additional improvements to the Premises required
for Tenant's use of the Premises including, but not limited to, odor control,
special heating, ventilation and air conditioning, noise or vibration control or
other special systems or improvements;
(ee) All additional fire and life safety control systems in
excess of Base Building such as fire walls, sprinklers, halon, fire alarms,
including piping, wiring and accessories, necessary for the Premises;
(ff) All additional plumbing, fixtures, pipes and
accessories in excess of Base Building necessary for the Premises, but excluding
the health club and cafeteria;
(gg) Testing and inspection costs; and
(hh) The Contractor fees, including, but not limited to,
fees and costs attributable to general conditions associated with the
construction of the tenant improvements, such fees shall be at a maximum ten
(10%) percent for overhead and profit and six (6%) percent for general
conditions.
In no event will the Allowance be used to pay for Tenant's moving expenses
or for furniture, artifacts, equipment, telephone systems or any other item of
personal property which is not affixed to the Premises.
(b) Costs in Excess of Allowance. The cost of each item referenced in
Section 10(a) above shall be charged against the Allowance. If the cost of
constructing the Tenant Improvements will exceeds the Allowance, such costs
shall be paid for by Tenant promptly upon Landlord's notifying Tenant of the
amount of such excess prior to the installation of such portion of the Tenant
Improvements as described in 6(c) above.
(c) Landlord and Tenant that this project shall be done on a
so-called "open-book" basis with Landlord's and Tenant's books pertaining to
this project only available for inspection by the other party. Landlord and
Tenant shall cooperate to minimize costs for both the Base Building and Tenant
Improvements.
11. Financing of Construction of Improvements. Landlord may elect to
finance the construction of the Tenant Improvements with the proceeds of a loan
("Project Loan") from a third party lender ("Lender") at the then prevailing
market rate and market terms for similar projects. The documents securing or
given in connection with the Project Loan, if any, are herein collectively
called "Loan Documents." Any Project Loan may be secured by the lien of a deed
of trust encumbering the Land and Improvements. Tenant agrees to execute and/or
provide all documents reasonably required by any Lender in connection with any
Project Loan, including, without limitation, estoppel certificates,
subordination agreements (subject to a commercially reasonable non-disturbance
agreement), consents to the assignment of this Agreement, written confirmation
of the satisfaction of closing conditions, and evidence of the due execution,
validity and enforceability of this Agreement.
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12. Substantial Completion; Target Completion Date; Outside Target
Completion Date. The parties estimate that Substantial Completion (as defined
under the Lease) will be achieved on or before the later of (i) the date that is
one hundred eighty (180) days after the Effective Date of this Lease, or (ii)
November 1, 2001 (the "Target Completion Date"). Landlord agrees to use its
commercially reasonable efforts to cause the Tenant Improvements to be
substantially completed and to remove all construction debris on or before the
Target Completion Date.
B. If Landlord shall fail to substantially complete any part of
Landlord's work by the Target Completion Date, the Target Completion Date shall
be extended for up to a maximum of sixty (60) days thereafter (the "Outside
Target Completion Date"). In addition to any other rights and remedies available
to Tenant, if Landlord shall fail to complete any part of Landlord's Work by the
Outside Target Completion Date, and not withstanding any Force Majeure delays,
then Tenant may either (i) take over and complete Landlord's Work in accordance
with the Final Plans, whereupon Landlord shall reimburse Tenant for all
reasonable costs and expense incurred by Tenant in rectifying such default as
aforesaid within thirty (30) days after receipt of Tenant's statement therefore,
or (ii) terminate the Lease. Landlord also agrees to reimburse Tenant for those
holdover rental costs incurred in its current premises pursuant to ss.27.11
hereinabove.
C. In the event Substantial Completion occurs after the Target Completion
Date, the Commencement Date of the Lease shall become the date the Landlord
delivers possession to the Premises to Tenant.
13. Tenant Delays; Force Majeure Delays. As used herein, "Tenant Delays"
means any delay in the completion of the Tenant Improvements resulting from any
or all of the following: (1) Tenant's failure to timely perform any of its
obligations pursuant to this Work Letter, including Tenant's failure to grant
approvals and/or make payments within the time frames described herein; (2) Any
Tenant-initiated Change Orders; (3) Tenant's request for materials, finishes, or
installations which are not readily available, (4) any delay in any way
whatsoever arising from Tenant's right to conduct "Inspections" under Section 15
below, (5) Change Order Delays, or (6) any other act or failure to act by
Tenant, Tenant's Representative, Tenant's employees, agents, independent
contractors, consultants and/or any other person performing or required to
perform services on behalf of Tenant, including interference with Landlord, or
its contractors, during Tenant's early entry under the Lease. "Force Majeure
Delays" as used herein means delays resulting from causes beyond the reasonable
control of Landlord, Tenant or the Contractor, including, without limitation,
any delay caused by any action, inaction, order, ruling, moratorium, regulation,
statute, condition or other decision of any private party or governmental agency
having jurisdiction over any portion of the project, over the construction of
the Improvements or over any uses thereof, or by delays in inspections or in
issuing approvals by private parties or permits by governmental agencies, or by
fire, flood, inclement weather, strikes, lockouts or other labor or industrial
disturbance (whether or not on the part of agents or employees of either party
hereto engaged in the construction of the Improvements), civil disturbance,
order of any government, court or regulatory body claiming jurisdiction or
otherwise, act of public enemy, war, riot, sabotage, blockage, embargo, failure
or inability to secure materials, supplies or labor through ordinary sources by
reason of shortages or priority, discovery of hazardous or toxic materials,
earthquake, or other natural disaster, delays caused by any dispute resolution
process, or any cause whatsoever beyond the reasonable control (excluding
financial inability) of the party whose performance is required, or any of its
contractors or other representatives, whether or not similar to any of the
causes hereinabove stated. Landlord agrees to notify Tenant of any such claimed
delays within five (5) business days of the event.
14. Tenant's Inspection Rights. Landlord shall schedule and Tenant may
attend monthly (and/or weekly as necessary as determined in good faith by
Landlord, Tenant, Architect or Contractor) progress meetings, walk-throughs and
any other meetings with the Architect, the Contractor and Tenant to discuss the
progress of the construction of the Improvements ("Meetings"). Tenant shall
designate in writing the person or persons appointed by Tenant to attend the
Meetings and such designated party shall be entitled to be present at and to
participate in the discussions during all Meetings; but Landlord may conduct
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the Meetings even if Tenant's appointees are not present. In addition to the
foregoing and to Tenant's early entry rights as provided under the Lease, Tenant
or its agents shall have the right at any and all reasonable times to conduct
inspections, tests, surveys and reports of work in progress ("Inspections") for
the purpose of reviewing whether the Tenant Improvements are being constructed
in accordance with the Final Plans, as amended by any approved Change Orders or
other agreed upon changes. Tenant agrees to protect, hold harmless and indemnify
Landlord from all claims, demands, costs and liabilities (including reasonable
attorneys' fees) arising from Tenant's or Tenant's agents entry onto the Land
for the purpose of conducting Inspections.
15. Walk-Through and Punch List. Upon Substantial Completion of the Tenant
Improvements, Tenant, Landlord, the Architect shall jointly conduct a
walk-through of the Improvements and shall jointly prepare a punch list ("Punch
List") of items needing additional work ("Punch List Items"); provided, however,
the Punch List shall be limited to items which are required by the Construction
Contract, the Final Plans, Change Orders and any other changes agreed to by the
parties.
16. Miscellaneous Construction Covenants
(a) Coordination with Lease. Nothing herein contained shall be
construed as (i) constituting Tenant as Landlord's agent for any purpose
whatsoever, or (ii) a waiver by Landlord or Tenant of any of the terms or
provisions of the Lease. Any default by either party with respect to any portion
of this Work Letter, shall be deemed a breach of the Lease for which Landlord
and Tenant shall have all the rights and remedies as in the case of a breach of
the Lease by the other party.
(b) Cooperation. Landlord and Tenant agree to cooperate with one
another and to cause their respective employees, agents and contractors to
cooperate with one another to coordinate any work being performed by Landlord
and/or Tenant under this Work Letter, and their respective employees, agents and
contractors so as to avoid unnecessary interference and delays with the
completion of the Work. Tenant's contractors (for cabling, furniture and other
Tenant installations) shall be granted access to the Premises a minimum of five
(5) weeks prior to Substantial Completion with mutually agreeable dates to be
identified. Notwithstanding the above, as regards furniture installation, Tenant
agrees to follow carpet installation schedule and will not interfere with
Landlord's Substantial Completion of the Premises. Granting of this right shall
not be construed as Tenant's beneficial occupancy of the Premises for the
purpose of rent commencement. Landlords' Contractor agrees to work in harmony
with any Tenant contractor. Tenant will cause such contractors to maintain all
required insurance as defined in the lease.
17. No Representations. Landlord does not warrant that the Building,
including, without limitation, the Tenant Improvements, or any component thereof
will be free of latent defects or that it will not require maintenance and/or
repair within any particular period of time, except as expressly provided
herein. Tenant acknowledges and agrees that it shall rely solely on the warranty
or guaranty, if any, from Landlord's Contractor, Architect or other material
and/or service providers relative to the proper design and construction of the
Improvements or any component thereof.
18. Tenant Roof Antenna. Tenant may, with Landlord's prior written
reasonable consent, install communications antenna and support equipment on a
location on the roof of the Building reasonably agreeable to Landlord ("Tenant's
Antenna"), at Tenant's sole cost and expense and for Tenant's sole internal use.
Tenant's Antenna shall be installed using the roofing contractor which installed
the Building's roof so as not to void the roof warranty, and which equipment
shall be maintained solely by Tenant's at Tenant's cost and expense.
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"Landlord" "Tenant"
WESTBOROUGH LAND REALTY TRUST, APPLIX, INC.,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx, TTEE By: /s/ Xxxxxx Xxxxxx
------------------------------------ --------------------------
Name: Xxxxxx X. Xxxxx, Trustee Name: Xxxxxx Xxxxxx
---------------------------------- ------------------------
Its: Trustee Its: CFO
----------------------------------- -------------------------
Date: 1/23/01 Date: 1/18/01
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EXHIBIT C
CLERK'S SECRETARY'S CERTIFICATE
The undersigned, being the duly elected and acting Clerk of APPLIX, INC., a
Massachusetts corporation (the "Corporation"), hereby certifies that the
following is a true, correct and complete copy of a vote duly adopted by the
Board of Directors of the Corporation at its meeting held on December 15, 2000,
at which meeting a quorum was present and acting throughout, which vote has not
been rescinded or amended or modified in any way and remains in full force and
effect on the date hereof:
VOTED: That the Corporation is hereby authorized to enter into a lease
covering approximately 50,000 square feet at 000-000 Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx, upon substantially the terms
presented to the directors at this meeting (a copy of which terms
is ordered to be attached to the minutes of this meeting as
EXHIBIT A) or any terms more favorable to the Corporation; and
that each of the Chief Executive Officer and the Chief Financial
Officer is hereby authorized to execute on behalf of the
Corporation a lease for such facility, upon the terms described
above, such lease to be in such form as either such officer may
approve, such approval to be conclusively evidenced by his
execution thereof; and that the Chief Executive Officer and the
Chief Financial Officer are each hereby authorized to take any
other actions and execute any other instruments as they deem
necessary or advisable in connection with such lease.
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand and seal
of the Corporation this 22nd day of January, 2001.
Attest:
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx, Clerk
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APPLIX, INC.
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EXHIBIT D
INSERT CERTIFICATE OF GOOD STANDING
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EXHIBIT E
COMMENCEMENT DATE MEMORANDUM
With respect to that certain lease ("Lease") dated January __, 2001,
between Applix, Inc., a Massachusetts corporation ("Tenant"), and Westborough
Land Realty Trust ("Landlord"), whereby Landlord leased to Tenant and Tenant
leased from Landlord approximately 49,920+/- rentable square feet of the
building located at Great Way Place ("Premises"), Tenant hereby acknowledges and
certifies to Landlord as follows:
(1) Landlord delivered possession of the Premises to Tenant Substantially
Complete on ___________ ("Possession Date");
(2) The Lease commenced on November 1, 2001 ("Commencement Date");
(3) The Premises contain _________ square feet of space; and
(4) Tenant has accepted and is currently in possession of the Premises and
the Premises are acceptable for Tenant's use.
IN WITNESS WHEREOF, this Commencement Date Memorandum is executed this ___
day of ______________________.
"Tenant"
APPLIX, INC.,
a Massachusetts corporation
By: _______________________________
Its: __________________________
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EXHIBIT F
RULES AND REGULATIONS
1. All vehicle parking shall be restricted to areas designated and marked for
vehicle parking. The foregoing restrictions shall not be deemed to prevent
temporary parking for loading or unloading of vehicles in designated areas.
2. Except as provided in Article 11 of the Lease, signs will conform to sign
standards and criteria established from time to time by Landlord. No other
signs, placards, pictures, advertisements, names or notices shall be
inscribed, displayed or printed or affixed on or to any part of the outside
or inside of the building without the written consent of Landlord and
Landlord shall have the right, after written notice thereof, to remove any
such non-conforming signs, placards, pictures, advertisements, names or
notices without notice to and at the expense of Tenant.
3. Tenant may install, for its sole internal use, in a location reasonably
acceptable to Landlord, antenna, aerial, discs, dishes or other such device
on the roof or exterior walls of the Premises, or on the grounds, with the
prior written reasonable consent of the Landlord in each instance. Any
device so installed without such written consent shall be subject to
removal without notice at any time. Tenant shall indemnify and hold
Landlord harmless for any damage associated with the installation and/or
maintenance of such equipment, and Tenant may not void any Building
warranties as a result of such installation.
4. No loud speakers, televisions, phonographs, radios or other devices shall
be used in a manner so as to be heard or seen outside of the Premises
without the prior written consent of the Landlord.
5. The outside areas immediately adjoining the Premises shall be kept clean
and free from dirt and rubbish by the Tenant to the satisfaction of
Landlord and Tenant shall not place or permit any obstruction or materials
in such areas or permit any work to be performed outside the Premises.
6. No open storage shall be permitted in the Project.
7. All garbage and refuse shall be placed in containers supplied by Landlord
placed at the location designated for refuse collection, in the manner
specified by Landlord.
8. Tenant shall not disturb, solicit, or canvass any occupant of the building
and shall cooperate to prevent same.
9. No noxious or offensive trade or activity shall be carried on nor shall
anything be done thereon which would in any way interfere with the quiet
enjoyment of each of the other tenants of the Project or which would
increase the rate of insurance or overburden utility facilities from time
to time existing in the Project.
10. Landlord reserves the right to make such amendments to these rules and
regulations from time to time as are nondiscriminatory and not inconsistent
with the Lease.
12. In the event of any conflict between the terms of this EXHIBIT D and the
terms of the Lease, the terms of the Lease shall control.
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EXHIBIT G
Tenant's Estoppel Letter
Attached to and incorporated by reference into a Lease (the "Lease")
between XXXXXX XXXXX, trustee of the WESTBOROUGH LAND REALTY TRUST ("Landlord")
and APPLIX, INC., ("Tenant"). Terms defined in or by reference in the Lease not
otherwise defined herein shall have the same meanings herein as therein.
Gentlemen:
It is our understanding that you have committed to place a mortgage upon
the subject premises and as a condition precedent thereof have required this
certification by the undersigned.
Reference is made to our Lease dated January __, 2001, made with
WESTBOROUGH LAND REALTY TRUST, (the Lease). Terms defined in or by reference the
Lease used herein but not otherwise defined herein shall have the same meanings
herein as therein.
The undersigned, as Tenant, hereby ratifies the Lease and certifies that:
1. the Term Commencement Date is _________________.
2. the undersigned presently does/does not occupy the Premises;
3. the Basic Rent of $116,480.00 PER MONTH is payable;
4. the Lease is in full force and effect and has not been assigned by us,
modified, supplemented or amended in any way (except by agreements)
dated ( ) and neither party thereto is in Default thereunder
except as specified herein;
5. the lease represents the entire agreement between Landlord and Tenant;
6. the Stated Expiration Date is OCTOBER 31, 2013.
7. all conditions under said Lease to be performed by the Landlord have /
have not been performed satisfactory;
8. on this date there are no existing defenses or offsets which the
undersigned has against the enforcement of said Lease by the Landlord;
9. no Rent has been paid in advance other than the Security deposit; and
10. Basic Rent for NOVEMBER, 2001 has/has not been paid.
Very truly yours,
APPLIX, INC.
By: _________________________________
, President
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EXHIBIT H
[TO BE PRINTED ON BANK'S LETTERHEAD]
Irrevocable Standby
Letter of Credit No. __
APPLICANT/ACCOUNT PARTY: BENEFICIARY:
__________, a ______________ Westborough Land Realty Trust,
[insert Tenant's address] 000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Asset Management
AMOUNT: EXPIRATION DATE:
U.S. Dollars ________________, 200__
One Million Fifty Thousand Dollars ($1,050,000.00)
Gentlemen:
We hereby establish and issue our Irrevocable Standby Letter of Credit No. __
(the "Credit") in your favor. This Credit is available upon draft or demand
presented to us on sight over our counters at any of our offices in the
Commonwealth of Massachusetts located at [INSERT ADDRESS], ___________,
Massachusetts. We hereby irrevocably authorize you to draw upon us in one or
more sight drafts up to the aggregate amount of One Million Fifty Thousand
Dollars ($1,050,000.00).
Your draft must be accompanied by a written certificate stating that:
"Applix, Inc., a Massachusetts corporation, or its successors or
assigns (collectively, "Tenant"), has failed to pay rent or perform
one or more of its obligations under that certain [describe name of
lease] (the "Lease") executed by and between Tenant and Westborough
Land Realty Trust, and such failure has continued beyond the
expiration of any grace or cure period provided in the Lease, or
Tenant has failed to replace this Letter of Credit as required under
the terms of the Lease. The amount of the sight draft represents
monies due and owing by Tenant under the Lease."
Partial drawings will be permitted under this Credit and all drafts hereon must
bear the date and number of this Credit. This Credit is effective immediately
and we hereby engage with you that so long as such drafts are presented on or
before 5:00 P.M. (Eastern time) on the Expiration Date stated on the face of
this Credit (subject to the automatic extensions provided below) and in
conformity with the terms of this Credit, such drafts will be duly honored upon
presentation.
You shall not be required to give notice or make any prior demand or presentment
to Tenant with respect to the payment of any sum as to which a draw is made
hereunder.
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APPLIX, INC.
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Notwithstanding the stated Expiration Date of this Credit, this Credit shall be
automatically extended for successive, additional one (1) year periods from the
present or any future Expiration Date unless we give you written notice of our
election not to extend the Expiration Date ("Notice of Non-Renewal") not later
than ninety (90) days prior to the then applicable Expiration Date. A notice of
Non-Renewal shall be effective when actually delivered to your address set forth
above (or such other address as you shall specify to us for such purpose by
written notice received by us prior to the time the Notice of Non-Renewal is
sent). All such notices shall be given by certified mail, return receipt
requested.
Our obligation under this Credit shall not be affected by any circumstances,
claim or defense, real or personal, of any party as to the enforceability of the
Lease between you and Tenant, it being understood that our obligation shall be
that of a primary obligor and not that of a surety, guarantor or accommodation
maker. If you deliver the written Certificate referenced above to us, (i) we
shall have no obligation to determine whether any of the statements set forth
therein are true, (ii) our obligations hereunder shall not be affected in any
manner whatsoever if the statements made in such Certificate are untrue in whole
or in part, and (iii) our obligations hereunder shall not be affected in any
manner whatsoever if Tenant delivers instructions or correspondence to us which
either (a) denies the truth of the statement set forth in the Certificate
referred to above, or (b) instructs us not to pay Beneficiary on this Credit for
any reason whatsoever.
This Credit is governed by the general laws of the Commonwealth of
Massachusetts.
This Credit may be transferred or assigned by you. Upon receiving written notice
that you have transferred all of your rights in this Credit, and upon
presentation to us of this original Credit, we will reissue this Credit naming
such transferee as the beneficiary.
[Insert name of bank]
By: ______________________
Print Name: __________________
Print Title: _________________
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EXHIBIT I
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of January 23, 2001, between Framingham
Cooperative Bank (hereinafter called "Bank") of 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx and Applix, Inc. (hereinafter called "Tenant"), a Massachusetts
Corporation with a principal place of business at 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Tenant has entered into a certain lease dated (the "Lease") with
Xxxxxx X. Xxxxx, Trustee of Westborough Land Realty Trust (hereinafter, together
with his successors and assigns other than or those claiming under Bank called
"Landlord's covering the real property located at 000-000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx (the "Property");
WHEREAS, Bank is the holder of a First Mortgage dated December 20, 2000 and
recorded with Worcester District Registry of Deeds in Book ______, Page ____
(the "Mortgage") on the Property; and
WHEREAS, Bank believes it to be in its best interest that Tenant's
leasehold interest not be disturbed in the event of foreclosure of the Mortgage
and Tenant believes it to be Tenant's best interest to attorn to Bank.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth, and other good legal and valuable consideration, the
receipt of which is hereby acknowledged it is hereby agreed as follows:
1. Tenant agrees that the Lease and all covenants, terms and conditions
therein are and shall be subject and subordinate to the Mortgage and
all renewals, modifications, consolidations, replacements and
extensions thereof.
2. Tenant agrees that it will attorn to and recognize Bank or any other
purchaser at a foreclosure sale under the Mortgage or any transferee
who acquires said real property by deed in lieu of foreclosure, and
their respective successors and assigns, as landlord under
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APPLIX, INC.
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and for the unexpired balance (and any extensions, if exercised) of
the term of the lease upon the same terms and conditions set forth in
the Lease.
3. Bank agrees that in the event that Bank forecloses the Mortgage or
takes possession of the Property pursuant to the Mortgage, Bank will
not terminate said lease nor disturb Tenant's possession or enjoyment
of the Premises, nor affect the leasehold estate granted by the Lease
in any other manner, and recognize Tenant as its Lessee pursuant to
the Lease, so long as Tenant duly and promptly keeps and performs all
of its obligations under terms, covenants or conditions of the Lease.
4. Tenant agrees that in the event Bank succeeds to the interest of the
Landlord under the Lease, Bank shall not be:
(a) liable for any act or omission of Landlord; or
(b) subject to any offsets or defenses which Tenant might have
against Landlord; or
(c) bound by any rent or additional rent which Tenant might have
prepaid for more than the current month under the lease; or
(d) bound by any amendment or modification of the Lease made
without its consent.
5. All applicable hazard insurance set forth in the Lease shall name the
Bank as loss payee and be in amounts acceptable to the Bank.
IN WITNESS WHEREOF, the parties hereto have executed these presents, which
shall be binding upon and inure to the benefit of their respective successors
and assigns, as of the day and year first above written.
Applix, Inc. Framingham Cooperative Bank
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------ ----------------------------
Xxxxxxxx X. Xxxxxxxx, Vice
President
Westborough Land Realty Trust
By: /s/ Xxxxxx X. Xxxxx, TTEE
------------------------------
Xxxxxx X. Xxxxx, Trustee
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THE COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss January 26, 2000
The personally appeared above-named Xxxxxxxx X. Xxxxxxxx, the Vice
President of Framingham Cooperative Bank and acknowledged the foregoing
instrument to be the free act and deed of said Framingham Cooperative Bank,
before me,
--------------------------------
Notary Public:
My Commission Expires:
THE COMMONWEALTH OF MASSACHUSETTS
Worcester, ss January 23, 2000
The personally appeared above-named Xx Xxxxxx the CFO of Applix, Inc. and
acknowledged the foregoing instrument to be the free act and deed of said
Applix, Inc., before me,
/s/ Xxxxxx X. Xxxxx
--------------------------------
Notary Public: Xxxxxx X. Xxxxx
My Commission Expires: 11/9/2001
THE COMMONWEALTH OF MASSACHUSETTS
Worcester, ss January 23, 2000
The personally appeared above-named Xxxxxx X. Xxxxx, Trustee of the
Westborough Land Realty Trust and acknowledged the foregoing instrument to be
the free act and deed of said Trust, before me,
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Notary Public: Xxxxx X. Xxxxxxx
My Commission Expires: 4-4-06
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EXHIBIT J
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