EXHIBIT 10.37
LEASE
THIS INDENTURE OF LEASE made as of this 3rd day of March, 2000 by and
between XXXXXXX X. XXXXXX, TRUSTEE OF 000 XXXXXXXXXX XXXXXX NOMINEE TRUST under
Declaration of Trust dated February 1, 1984, as amended ("Landlord"), having a
mailing address of 00 Xxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxxxxx 00000, and
XXXXXXXXXX.XXX, INC., a Delaware corporation ("Tenant"), having a mailing
address of 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
BACKGROUND AND PURPOSE
Landlord is the fee owner of a certain parcel of land (the "Site") in
Norwood, Massachusetts, shown on EXHIBIT A attached hereto, together with a
building (the "Building") thereon having an aggregate of One Hundred Forty-Seven
Thousand (147,000) square feet of rentable area (the "Leased Premises") and
other improvements thereon (the Site and all said improvements being herein
described as the "Premises").
Landlord and Tenant desire to enter into a lease of the Leased
Premises.
W I T N E S S E T H:
ARTICLE 1
PREMISES
SECTION 1.1. PREMISES. Landlord, for and in consideration of the rents
to be paid and the obligations to be performed by Tenant, as hereinafter
provided, does hereby demise and lease unto Tenant, and Tenant does hereby take
and hire from Landlord, upon and subject to the conditions hereinafter
expressed, the Leased Premises. Tenant shall also have (a) the exclusive right
to use the surface of the areas shown on Exhibit A as Existing Tenant Parking
Area and New Tenant Parking Area (together the "Tenant Parking Area") for
parking motor vehicles used
by it in connection with the operation of its business and motor vehicles of its
employees and invitees; (b) the right to use in common with Landlord and others
authorized by Landlord the entrance driveway providing vehicular access to the
Leased Premises, as it now exists or as it may subsequently be relocated by
Landlord without having a material adverse affect on Tenant's business
operations (the "Entrance Driveway"), for vehicular access to and egress from
the Leased Premises and Tenant Parking Area from and to University Avenue
twenty-four (24) hours per day; and (c) the right to use any portions of the
Site which Landlord may from time to time designate as areas for common use by
tenants of the Premises in common with Landlord and others authorized by
Landlord to use said areas, subject to such regulations governing the use of
said areas which are not inconsistent with the terms of this Lease as Landlord
may from time to time establish.
SECTION 1.2. TENANT PARKING. Landlord warrants that the Existing Tenant
Parking Area is suitable for the parking of two hundred nineteen (219)
automobiles. Landlord shall, on or before September 30, 2000, (a) perform such
work, including paving, as shall be necessary to make the New Tenant Parking
Area suitable for use for the parking of motor vehicles and capable of allowing
one hundred sixty-seven (167) automobiles and thirty-two (32) delivery vans to
be parked therein, and (b) restripe the Existing Tenant Parking Area so as to
designate two hundred nineteen (219) automobile parking spaces therein. After
completion of construction of the New Tenant Parking Area, Tenant shall
reimburse Landlord for that portion of Landlord's cost of constructing the New
Tenant Parking Area as is attributable to the construction of parking capacity
for Tenant's delivery vans as shown on a statement delivered to tenant by
Landlord; provided, however, that Tenant shall in no event be required to pay
more than Seventy-Five Thousand Dollars ($75,000.00) to Landlord. Tenant's
payment hereunder shall be due within ten (10) days after delivery by Landlord
of said statement. In the event that Landlord fails to
-2-
complete the work necessary to make the New Tenant Parking Area suitable for
parking as aforesaid by September 30, 2000, the Base Rent payable by Tenant
shall be reduced by fifty percent (50%) until such time as said work has been
completed.
Landlord shall have the right to relocate the Tenant Parking Area to
another location on the Site in connection with the further development of the
Site; provided that the relocated Tenant Parking Area shall accommodate the
parking of at least three hundred eighty-six (386) motor vehicles and shall not
be located materially farther from the Leased Premises than the Tenant Parking
Area as shown on Exhibit A.
SECTION 1.3. FURTHER DEVELOPMENT. Tenant hereby acknowledges that
Landlord may further develop the Site and construct additional buildings and
improvements on the Site for use or rental by Landlord. Before committing to
undertake any further development of the Site, Landlord shall notify Tenant of
its intention to do so and describe the nature of the intended development (the
"Development Plan") in as much detail as is available at the time. In no event
shall Landlord be required to identify possible tenants or users. Within five
(5) days after Tenant receives Landlord's notice and description of the intended
development, Tenant may deliver to Landlord, in writing, any comments on or
objections to the Development Plan which it may have. If Tenant objects to the
Development Plan, its notice of objections may also include a request that
Landlord meet with Tenant to discuss its objections. Landlord and Tenant shall
meet within three (3) business days after delivery of Tenant's request and
discuss Tenant's objections and suggestions which Tenant may have to eliminate
them. Landlord shall give full consideration to Tenant's objections and
suggestions, but Landlord shall not be required to modify the Development Plan.
Notwithstanding anything contained herein to the contrary, in no event shall
Landlord undertake any proposed development if the construction of the same or
the completed development would, or would reasonably be expected to, have a
material adverse
-3-
effect on Tenant's access to the Site, Tenant's parking rights set forth in this
Lease, or the conduct of Tenant's business on the Premises.
ARTICLE 2
TERM
SECTION 2.1. INITIAL TERM. To have and to hold the Premises unto
Tenant, for an original term commencing on February 14, 2000 (the "Commencement
Date") and expiring at midnight on July 31, 2010 (the "Initial Term").
SECTION 2.2. EXTENDED TERM. Provided that this Lease is then in full
force and effect and there then exists no Event of Default (as hereinafter
defined), Tenant may elect to extend the term of this Lease for two (2)
successive periods of five (5) years each as follows:
First Extended Term: August 1, 2010 to July 31, 2015
Second Extended Term: August 1, 2015 to July 31, 2020
The extension may be exercised by Tenant by giving written notice to Landlord at
least twelve (12) months prior to the expiration of the then current term, upon
which exercise this Lease shall be deemed to be extended without the execution
of any further instrument. Each Extended Term shall be upon and subject to all
the terms and conditions of this Lease, provided, however, that the rent payable
with respect to each Extended Term shall be calculated in the manner hereinafter
set forth in Article 4 and Tenant shall have no right to extend the term of this
Lease beyond the Second Extended Term.
ARTICLE 3
USE OF LEASED PREMISES
SECTION 3.1. PERMITTED USE. Tenant may use the Leased Premises only for
the distribution, warehousing and storage of food and grocery products and
related administrative and office uses (the "Permitted Use"), and for no other
purpose or purposes whatsoever. Tenant shall have access to and, subject to
applicable laws, the right to conduct its business at the
-4-
Leased Premises twenty-four (24) hours per day seven (7) days per week. The
Leased Premises shall be used only in compliance with applicable laws and only
if and to the extent Tenant has obtained and maintained all licenses and permits
which may be necessary for such use. Landlord warrants and represents to Tenant
that the Permitted Use is permitted as of right under the Zoning Bylaws of the
Town of Norwood.
Tenant shall also have the right to erect a satellite antenna for its
exclusive use on the roof of the Building. Tenant shall be responsible for
obtaining all permits, approvals, and licenses necessary for the erection,
maintenance, and operation of said satellite antenna. Notwithstanding anything
to the contrary considered in this Lease, Landlord makes no warranty or
representation as to the nature of such permits, approvals, and licenses
required for said satellite antenna or whether the same are obtainable. Tenant
shall perform any repairs to the roof or other portions of the Building required
as a result of the erection of said satellite antenna.
Tenant shall not use or occupy or permit the Leased Premises to be used
or occupied, nor do or permit anything to be done in or on the Premises or any
part thereof, in a manner that would in any way violate any certificate of
occupancy affecting the Premises or make void or voidable any insurance then in
force with respect thereto, or that may limit the availability of fire or other
insurance thereon required to be furnished hereunder by Tenant, or that will
cause or be likely to cause structural injury to any of the Improvements, or
that will constitute a public or private nuisance or waste.
ARTICLE 4
BASE RENT
SECTION 4.1. INITIAL TERM. Tenant shall pay to Landlord Base Rent for
the Leased Premises from July 1, 2000 (the "Rent Commencement Date") through the
balance of the Initial Term at the following rates:
-5-
A. For and with respect to the period beginning on the Rent
Commencement Date and ending on January 31, 2001, Eight Hundred
Fourteen Thousand Six Hundred Twenty-Five Dollars ($814,625.00) payable
in equal monthly installments of One Hundred Sixteen Thousand Three
Hundred Seventy-Five Dollars ($116,375.00) commencing on the Rent
Commencement Date.
B. For and with respect to the next four (4) years of the
Initial Term, an annual Base Rent of One Million Three Hundred
Ninety-Six Thousand Five Hundred Dollars ($1,396,500.00) per year
payable in equal monthly installments of One Hundred Sixteen Thousand
Three Hundred Seventy-Five Dollars ($116,375.00).
C. For and with respect to the last six and one-half (6 1/2)
years of the Initial Term, at the rate of One Million Six Hundred
Seventeen Thousand Dollars ($1,617,000.00) per year payable in equal
monthly installments of One Hundred Thirty-Four Thousand Seven Hundred
Fifty Dollars ($134,750.00).
SECTION 4.2. EXTENDED TERMS. Tenant shall pay to Landlord Base Rent for
the Leased Premises during the Extended Terms at the following rates:
A. For and respect to each year of the First Extended Term, an
annual rent equal to the greater of (1) One Million Six Hundred
Seventeen Thousand Dollars ($1,617,000.00), or (2) ninety-five percent
(95%) of an amount equal to One Million Six Hundred Seventeen Thousand
Dollars ($1,617,000.00) multiplied by a fraction the numerator of which
is the Consumer Price Index (as that term is hereinafter defined) for
the month of July, 2010 and the denominator of which is the Consumer
Price Index for the month of January, 2005.
B. For and with respect to each year of the Second Extended
Term, an annual rent equal to the greater of (1) the annual Base Rent
for the First Extended Term, or (2)
-6-
ninety-five percent (95%) of an amount equal to the annual Base Rent
for the First Extended Term multiplied by a fraction the numerator of
which is the Consumer Price Index for the month of July, 2015 and the
denominator of which is the Consumer Price Index for the month of July,
2010.
For the purposes hereof, the Consumer Price Index shall be Consumer
Price Index for All Urban Consumers: U.S. City Average published by the Bureau
of Labor Statistics of the United States Department of Labor. If publication of
the Consumer Price Index is discontinued, the computation of Base Rent hereunder
shall be based on comparable statistics on the cost of living for the United
States as computed by a federal agency or by a recognized financial publication.
Landlord shall give Tenant written notice of the annual Base Rent
determined as herein provided and the manner of its determination within a
reasonable time after obtaining the data necessary to compute it.
SECTION 4.3. PAYMENT OF BASE RENT. Except as hereinbefore provided,
annual Base Rent shall be payable in equal monthly installments in advance on
the first (1st) day of each calendar month occurring during the term of this
Lease commencing on the Rent Commencement Date. Base Rent shall be prorated for
any partial month occurring at the commencement or termination of this Lease.
Landlord may, at its option, direct Tenant to pay all or any portion of the Base
Rent directly to the holder of any mortgage on the Leased Premises and to pay
the balance of the Base Rent, if any, to Landlord.
In the event there is any delay in calculating the amount of the new
Base Rent payable hereunder, Tenant shall continue to pay Landlord Base Rent at
the then current rate and shall pay any additional amount due as soon as the new
Base Rent is determined.
Said Base Rent shall, except as herein otherwise specifically provided,
be paid without offset, deduction or demand therefor, and said Base Rent shall
be "net" and shall be in addition
-7-
to the additional rent hereinafter provided to be paid by Tenant, and in no case
shall Landlord be liable for, or be obliged to incur any expense, liability or
charge with respect to the Leased Premises, except as in this Lease expressly
provided.
Rent shall be paid to Landlord at the address set forth on the first
page of this Lease or to such person or entity and sent to such address within
the continental United States as Landlord shall from time to time designate in
writing to Tenant.
ARTICLE 5
ADDITIONAL RENT: REAL ESTATE TAXES
SECTION 5.1. PAYMENT OF IMPOSITIONS. Tenant shall pay to Landlord
during the term of this Lease, as additional rent, Tenant's Share (as
hereinafter defined) of all Impositions (as hereinafter defined) in the manner
hereinafter provided. For the purposes hereof, the term "Impositions" shall
mean:
(i) all taxes, assessments (including assessments for benefits
from public works or improvements, whether or not begun or
completed prior to the commencement of the Term and whether or
not to be completed within said Term, but, in the case of
assessments payable in installments, only the installments
payable with respect to periods included in the term of this
Lease), levies, fees, water and sewer rents and charges and
all other governmental charges, general and special, ordinary
and extraordinary, whether or not the same shall have been
within the express contemplation of the parties hereto,
together with any interest and penalties thereon, which are,
at any time, imposed or levied upon or assessed against (A)
the Premises, including any improvement on personal property
located thereon, (B) any fixed rent, any additional rent
reserved or payable hereunder or any other sums payable by
Tenant hereunder, or (C) this Lease or the leasehold estate
hereby created, or which arise in respect of the operation,
possession, occupancy or use of the Premises;
(ii) any gross receipts or similar taxes imposed or levied upon,
assessed against or measured by the fixed rent, additional
rent or such other sums payable by Tenant hereunder; and
-8-
(iii) all sales and use taxes which may be levied or assessed
against or payable by Landlord or Tenant on account of the
acquisition, leasing or use of the Premises.
SECTION 5.2. OTHER TAXES. Nothing herein contained shall require Tenant
to pay income taxes assessed against Landlord, or any capital levy, corporation
franchise, excess profits, estate, succession, inheritance or transfer taxes of
Landlord, unless such taxes are imposed or levied upon or assessed as a total or
partial substitute for, or in lieu of, any other Imposition required to be paid
by Tenant pursuant to this Article 5, in which event, the same shall be deemed
Impositions and shall be paid by Tenant.
SECTION 5.3. TENANT'S SHARE. The Premises are currently made up of two
separate lots for the purpose of the assessment of real estate taxes by the Town
of Norwood--namely, Lots 1 and 6 of Block 12 as shown on Town of Xxxxxxx
Assessor's Map 22. The Leased Premises are located on said Lot 1 (the "Tax
Lot").
For the purposes hereof, "Tenant's Share" shall mean that portion of
the Impositions payable with respect to the Tax Lot equal to the sum of (i) one
hundred percent (100%) of the amount of Impositions attributable to the
assessment by the Town of Norwood of the Building, and (ii) fifty percent (50%)
of the amount of Impositions attributable to the assessment by the Town of
Norwood of the land constituting the Tax Lot. In the event that it is not
possible to determine the amount of said assessments from the tax xxxx issued by
the Town of Norwood because the tax xxxx does not show separate assessments for
the Building and said land, the computation to be made hereunder shall be based
on the valuations by the Town of Norwood Assessors as shown on the records of
said Assessors.
SECTION 5.4. PAYMENT OF TENANT'S SHARE. Landlord shall submit to Tenant
a statement showing the amount of additional rent payable by Tenant hereunder
and the calculation thereof, together with a tax xxxx or other evidence of the
amount of Impositions on account of which such
-9-
additional rent is payable, and Tenant shall pay such additional rent within ten
(10) days after receipt of Landlord's statement. So long as Impositions are
payable in installments under applicable law, Landlord shall submit its
statements for additional rent payable hereunder at the times that such
installments of Impositions are payable. The failure of Landlord to submit any
statement of additional rent required hereunder shall not constitute a waiver of
Landlord's right to receive such additional rent.
ARTICLE 6
INSURANCE AND INDEMNITY
SECTION 6.1. TENANT'S REQUIRED INSURANCE. Tenant shall maintain, at its
own expense, the following insurance ("Tenant's Required Insurance") for the
benefit of Landlord:
A. General public liability insurance against claims for
bodily injury, death or property damage occurring on, in or about the
Leased Premises, the Premises, and the adjoining streets, sidewalks and
passageways, such insurance to afford protection to Landlord of not
less than $2,000,000 with respect to bodily injury or death to any one
person, not less than $5,000,000 with respect to any one accident, and
not less than $1,000,000 with respect to property damage.
B. Workmen's Compensation and Employers Liability insurance
covering all persons employed by Tenant in connection with any work
done on or about the Premises with respect to which claims for death or
bodily injury could be asserted against Landlord, Tenant or the
Premises.
C. Boiler and pressure vessel insurance on all equipment,
parts thereof and appurtenances attached or connected to the Leased
Premises which by reason of their use or existence are capable of
bursting, erupting, collapsing or exploding, in the minimum amount of
$1,000,000 for damage to property resulting from such perils.
-10-
D. At any time which improvements are being constructed on the
Leased Premises, completed value builder's risk insurance (or
equivalent coverage), which insurance shall cover the Leased Premises,
including building materials thereon, against loss or damage from fire,
lightning, extended coverage perils, sprinkler leakage, vandalism, and
malicious mischief, in an amount not less than the final cost, as
estimated by Tenant, of such improvements.
E. Such other insurance on the Premises in such amounts and
against such other hazards which at the time are commonly obtained in
the case of property similar to the Premises.
All Tenant's Required Insurance shall be written in companies
reasonably satisfactory to Landlord and Tenant and in the forms customarily in
use from time to time in the locality of the Premises; and shall name as the
insured parties thereunder Landlord and Tenant, as their interests may appear.
Every policy of Tenant's Required Insurance shall contain an agreement
that the insurer will not cancel such policy except after ten (10) days' written
notice to Landlord and that any loss otherwise payable thereunder shall be
payable notwithstanding any act or negligence of Landlord or Tenant which might,
absent such agreement, result in a forfeiture of all or a part of such insurance
payment and notwithstanding (i) the occupation or use of the Premises for
purposes more hazardous than permitted by the terms of such policy, (ii) any
foreclosure or other action taken by any mortgagee pursuant to any provision of
any of mortgage on the Premises upon the happening of a default or event of
default thereunder, or (iii) any change in ownership of the Premises.
Tenant shall deliver to Landlord promptly after execution of this Lease
the original or duplicate policies or certificates of insurers, evidencing all
the insurance which is required to be
-11-
maintained hereunder. Tenant shall, at least ten (10) days prior to the
expiration of any such policy, deliver either original or duplicate renewal
policies or certificates evidencing the renewal of such policy. Should Tenant
fail to maintain or renew any Tenant's Required Insurance, or to pay the premium
therefor, or to deliver to Landlord any such policy or certificate within the
time required hereunder, then Landlord, at its option, but without obligation to
do so, may, upon five (5) days' notice to Lessee, procure such insurance and the
cost of such insurance shall be repaid by Tenant as additional rent hereunder
within five (5) days after Landlord has given notice of such expenditure.
SECTION 6.2. LANDLORD'S REQUIRED INSURANCE. Landlord shall maintain
insurance against loss or damage to the Leased Premises, including improvements
thereto made by Tenant, but not Tenant's personal property or fixtures therein,
by fire, lightning and other risks from time to time included under "extended
coverage" policies, in amounts not less than the full insurable value of the
Premises ("Landlord's Required Insurance"). The term "full insurable value," as
used herein, means actual replacement cost without deduction for physical
depreciation as shall from time to time be determined by Landlord or by
appraisal made from time to time (but not more than annually) at the expense of
Tenant by an accredited insurance appraiser selected by Landlord.
Tenant shall pay to Landlord, as additional rent, all premiums or other
costs payable by Landlord in order to maintain Landlord's Required Insurance
within ten (10) days after receipt by Tenant of a statement from Landlord
showing the amount thereof. The failure of Landlord to submit any such statement
shall not constitute a waiver of Landlord's right to receive such additional
rent.
Landlord shall deliver to Tenant promptly after execution of this Lease
duplicate policies or certificates of insurers evidencing Landlord's Required
Insurance. Landlord shall, at least ten (10) days prior to the expiration of any
policy of Landlord's Required Insurance deliver either
-12-
duplicate renewal policies or certificates evidencing the renewal of Landlord's
Required Insurance. Every policy under which Landlord's Required Insurance is
maintained shall contain an agreement that the insurer will not cancel such
policy except after ten (10) days written notice to Tenant.
SECTION 6.3. WAIVERS. Tenant and Landlord agree that with respect to
any insurance coverage carried by either Tenant or Landlord in connection with
the Premises or the Leased Premises, whether or not such insurance is required
by the terms of the Lease, such insurance shall provide for the waiver by the
insurance carrier of any subrogation rights against the Landlord, its agents,
servants, and employees under the Tenant's insurance policies or against the
Tenant, its agents, servants, and employees under the Landlord's insurance
policies, where such waiver of subrogation rights either does not require the
payment of an additional premium, or, if an additional premium is required to be
paid, the party to be benefited by the waiver offers to pay such premium after
being notified by the other party of such additional premium.
Notwithstanding any other provision of this Lease and without limiting
the effect of any such provision, Landlord shall not be liable to Tenant, and
Tenant hereby waives any right of recovery against Landlord, for any loss or
damage, whether or not such loss or damage is caused by the negligence of
Landlord, its agents, servants, or employees, but only to the extent that such
loss or damage is actually recovered under insurance carried by Tenant.
Likewise, notwithstanding any other provisions of this Lease and without
limiting the effect of any such provision, Tenant shall not be liable to
Landlord and Landlord hereby waives any right of recovery against Tenant for any
loss or damage whether or not such loss or damage is caused by the negligence of
the Lessee or its agents, servants, or employees, but only to the extent that
such loss or damage is actually recovered under insurance carried by Landlord.
-13-
SECTION 6.4. INDEMNIFICATION BY TENANT. Tenant agrees to indemnify,
defend and save harmless Landlord from and against all claims of whatever nature
arising, from any act, omission or negligence of Tenant, or Tenant's
contractors, licensees, agents, servants, or employees, or arising from any
accident, injury, or damage whatsoever caused to any person, or to the property
of any person occurring from and after the Commencement Date of this Lease and
until the end of the term hereof on the Premises where such accident, damage or
injury results or is claimed to have resulted from an act or omission on the
part of Tenant or its agents or employees. This indemnity and hold harmless
agreement shall include indemnity against all costs, expenses and liabilities
incurred in or in connection with any such claim or proceeding brought thereon,
and the reasonable cost of defense thereof and shall expressly survive the
termination of this Lease.
SECTION 6.5. INDEMNIFICATION BY LANDLORD. Landlord agrees to indemnify,
defend and save harmless Tenant from and against all claims of whatever nature
arising, from any act, omission or negligence of Landlord, or Landlord's
contractors, licensees, agents, servants, or employees, or arising from any
accident, injury, or damage whatsoever caused to any person, or to the property
of any person occurring on the Premises where such accident, damage or injury
results or is claimed to have resulted from an act or omission on the part of
Landlord or its agents, employees, invitees, and tenants other than Tenant. This
indemnity and hold harmless agreement shall include indemnity against all costs,
expenses and liabilities incurred in or in connection with any such claim or
proceeding brought thereon, and the reasonable costs of defense thereof and
shall expressly survive the termination of this Lease.
ARTICLE 7
REPAIRS, MAINTENANCE AND ALTERATIONS
SECTION 7.1. CONDITION OF PREMISES. Tenant hereby acknowledges: (a)
that it has satisfied itself with respect to the condition of the Leased
Premises and the present and future
-14-
suitability of the Leased Premises for Tenant's intended use; (b) that Tenant
has made such investigation as it deems necessary with reference to such matters
and is satisfied with reference thereto and assumes all responsibility therefore
as the same relate to Tenant's occupancy of the Leased Premises and/or the terms
of this Lease; (c) that neither Landlord, nor any of Landlord's agents, has made
any oral or written representations or warranties with respect to said matters
other than as set forth in this Lease and (d) that Tenant accepts the Leased
Premises in "as is" condition.
Except as hereinafter provided in Section 7.2 and Section 7.3, Tenant
agrees to be solely responsible for maintaining the Leased Premises, the Tenant
Parking Area, the Entrance Driveway, and the landscaped area of the Site located
around the Leased Premises and between the Leased Premises and University Avenue
and each and every part thereof, in good repair and condition and in full
compliance with applicable laws throughout the term of this Lease, reasonable
wear and use only excepted and agrees, without limitation, to: (i) maintain,
repair and replace the systems serving the Leased Premises including but not
limited to the HVAC, gas, electric water, sewer, security alarm system and
sprinkler system, telephone and all other utilities serving the Leased Premises,
and all pipes, conduits and the like, (ii) maintain the grounds, landscaping and
other natural features, (iii) maintain, repair, resurface and promptly remove
snow and ice from all utilized parking areas, driveways and walkways, (iv)
repair or replace any cracked or broken glass, and (v) maintain, repair and
replace the interior portions of the Leased Premises. All work performed by
Tenant shall be done in a good and workmanlike manner consistent with the
quality of the original construction and in compliance with all applicable laws,
ordinances and regulations relating thereto. Tenant further agrees that the
Leased Premises shall be kept and maintained throughout the term of this Lease
in compliance with all laws,
-15-
ordinances, rules and regulations of any duly constituted governmental authority
having jurisdiction over the Premises. Tenant shall not permit or commit any
waste.
SECTION 7.2. LANDLORD'S OBLIGATIONS. Notwithstanding anything to the
contrary contained herein, Landlord shall (a) on or before July 1, 2000 fill
cracks in the paving of the Entrance Driveway and Existing Tenant Parking Area
as required, and (b) be responsible for maintaining and keeping in good repair
the roofs, foundations, exterior walls, and other structural components of the
Building.
SECTION 7.3. LANDLORD AND TENANT OBLIGATIONS AFTER FURTHER DEVELOPMENT
OF SITE.
A. In the event that Landlord constructs any additional
buildings on the Site for rental to tenants, from and after the earlier
of (i) the completion of construction of the first of such buildings or
(ii) the date on which the obligation of a tenant thereof to pay rent
commences, Landlord shall be responsible for maintaining and keeping in
good repair and condition the Tenant Parking Area, other parking areas
on the Site, including those reserved for the exclusive use of
particular tenants, the Entrance Driveway, all landscaped portions of
the Site, and all improvements on the Site and improved portions of the
Site not exclusively occupied by tenants, including, without
limitation, parking areas, driveways, walkways, drainage facilities,
and lighting. The expenses and costs of every kind and nature paid or
incurred by Landlord in performing such maintenance and repairs are
hereinafter called "Landlord's Maintenance Costs." In no event shall
development costs of Landlord constitute Landlord's Maintenance Costs.
B. After the expiration of each Operating Year (as that term
is hereinafter defined), Landlord shall furnish to Tenant a statement
setting forth Tenant's Pro-Rata Share (as that term is hereinafter
defined) of Landlord's Maintenance Costs. Tenant shall pay to Landlord,
as additional rent, Tenant's Pro-Rata Share of Landlord's Maintenance
-16-
Costs for each Operating Year within thirty (30) days after receipt of
Landlord's statement.
Said additional rent shall, with respect to the
Operating Year during which the term of this Lease is to expire, be
apportioned such that Tenant shall pay that proportion of Landlord's
Maintenance Costs as shall be equal to the portion of the term of this
Lease falling within the Operating Year bears to the full Operating
Year.
C. For the purposes hereof, "Operating Year" shall main each
calendar year in which any part of the term of this Lease shall fall.
D. For the purposes hereof, "Tenant's Pro-Rata Share" shall
mean the fraction the numerator of which is One Hundred Forty-Seven
Thousand and the denominator of which is the total gross leaseable
floor area contained in buildings located on the Site as of the first
day of the Operating Year with respect to which the computation is to
be made.
E. Commencing with the Operating Year following the first
Operating Year with respect to which Tenant is required to pay
additional rent pursuant to this Section 7.3, Tenant shall pay to
Landlord, as additional rent, on the first day of each month an amount
reasonably estimated by Landlord from time to time to be sufficient to
cover, in the aggregate, Tenant's Pro-Rata Share of
-17-
Landlord's Maintenance Costs for the Operating Year in question.
Landlord shall notify Tenant in writing of the estimated monthly
payment required to be made with respect to each Operating Year. If
Landlord's notice is delivered after the commencement of the Operating
Year in question, Tenant's first monthly payment shall include payment
of the estimated monthly payment retroactive to the first day of the
Operating Year in question. If the estimated monthly payments made by
Tenant during any Operating Year exceed Tenant's Pro-Rata Share of
Landlord's Maintenance Costs for the Operating Year as shown on the
statement delivered by Landlord pursuant to Paragraph B of this Section
7.3, Landlord shall credit the amount of such overpayment against
subsequent obligations of Tenant to pay additional rent (or refund such
overpayment if the term of this Lease has ended and Tenant has no
further obligations to Landlord). If the estimated monthly payments so
made by Tenant are less than Tenant's Pro-Rata Share of Landlord's
Maintenance Costs for the Operating Year as shown on said statement
delivered by Landlord, Tenant shall pay the additional amount payable
within thirty (30) days after delivery of Landlord's said statement.
F. Any statement furnished by Landlord to Tenant hereunder
shall be final and binding on Tenant unless Tenant disputes the
statement by giving written notice to Landlord within thirty (30) days
after receiving the same. Landlord shall, upon written request by
Tenant, make available to Tenant for its examination all books and
records of Landlord with respect to Landlord's Maintenance Costs. If
Tenant disputes any such statement and the parties are unable to
resolve said dispute within thirty (30) days after Tenant's notice
thereof, Landlord's statement shall become final and binding on Tenant
unless within such thirty (30) day period either party notifies the
other in writing of its election to have the dispute determined by
arbitration.
The party electing arbitration shall designate a certified
public accountant to serve as arbitrator. Within seven (7) days after
such designation, the other party shall designate a second certified
public accountant to serve as arbitrator. Within ten (10) days after
the designation of the second arbitrator, the two arbitrators so
designated shall jointly select a third certified public accountant to
serve as arbitrator. The three arbitrators so selected shall issue a
decision within thirty (30) days after the selection of
-18-
the third arbitrator. The decision of a majority of the arbitrators
shall be conclusive and binding on Landlord and Tenant. Each party
shall pay one-half the costs and expenses of the arbitrators, unless
the arbitrators decide that Landlord's statement overstated the amount
of additional rent payable by Tenant by more than five percent (5%), in
which case Landlord shall pay all of the costs and expenses of the
arbitrators.
SECTION 7.4. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS. Except for
nonstructural alterations which do not affect the electrical or mechanical
systems of the Building, Tenant shall not make any alterations of, additions, or
improvements to the Leased Premises without first obtaining the express written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned, or delayed. Unless otherwise provided by the terms of Landlord's
consent to the making thereof, all alterations shall be part of the Leased
Premises and shall remain upon the Leased Premises upon termination of this
Lease or any portion thereof. No additional buildings or structures may be built
by Tenant on any portion of the Premises.
Upon any request for approval of alterations or additions, Tenant shall
submit to Landlord complete plans and specifications and such other information
as Landlord may reasonably require to evaluate Tenant's proposed changes;
provided, however, that if Tenant's proposed work is to be performed without the
preparation of plans and specifications, Tenant may submit a written description
of the proposed work adequate to allow Landlord to evaluate Tenant's request for
approval. Landlord agrees to approve or deny Tenant's request within twenty-one
(21) days from the date all required plans and other information are submitted
to Landlord. If Landlord fails to respond within said twenty-one (21) day
period, such failure shall be deemed to be approval of Tenant's request. If
Landlord denies Tenant's request, Landlord agrees to state its reasons for such
denial, to meet and confer with Tenant within five (5) days after its denial for
the purpose of attempting to resolve Landlord's objections which caused it to
-19-
deny approval, and to grant Tenant the opportunity to resubmit revised plans and
specifications accordingly. In the event of such resubmission, Landlord shall
respond within seven (7) days after the resubmission, and its failure to do so
shall constitute approval.
Any and all improvements constructed on the Leased Premises shall at
all times comply, when constructed, with all laws of any governmental authority
having jurisdiction over the Leased Premises and any condition, restriction or
other matter of record title to which the Leased Premises are subject.
Any and all alterations, additions and/or improvements hereafter to be
erected on the Leased Premises by Tenant shall be constructed in a good and
workmanlike manner, and in compliance with all applicable building laws,
environmental requirements, and the like, and in accordance with zoning as
aforesaid and in full compliance with the terms and conditions of this Lease.
Tenant shall, at its own cost and expense, obtain all permits and
licenses which may be required for its occupancy and use of the Leased Premises
and for any alterations, additions or improvements. In the event that any
building permits or the like shall require joinder therein by Landlord, Landlord
agrees to execute such instruments as may be reasonably required for said
purpose; but any and all proceedings shall be solely at the cost and expense of
Tenant, without Landlord being required to respond thereto in any manner
whatsoever.
SECTION 7.5. TENANT TO KEEP PREMISES FREE OF LIENS. Subject to the
contest rights of Tenant set forth in Section 7.5 hereof, Tenant shall keep all
of the Leased Premises and every part thereof free and clear of and from any and
all mechanic's, materialmen's and other liens for work or labor done, services
performed, materials, appliances, transportation or power contributed, used or
furnished to be used in or about the Leased Premises for or in connection with
any operations of Tenant, any alterations, improvements, repairs or additions,
which Tenant
-20-
may make or permit or cause to be made, or any work or construction by, for or
permitted by Tenant on or about the Leased Premises, and at all times Tenant
shall promptly and fully pay and discharge any and all claims upon which any
such lien may or could be based; and Tenant shall save and hold Landlord and all
of the Premises free and harmless of and from any and all such liens and claims
of liens and suits or other proceedings pertaining thereto. In lieu of paying
any claims in accordance with the foregoing, Tenant may provide to Landlord a
bond satisfactory to Landlord covering all such claims.
SECTION 7.6. CONTEST. Tenant shall have the right to contest any
mechanic's lien or other lien claim filed against the Premises, provided that
Tenant shall diligently prosecute any such contest, such contest shall at all
times effectually stay or prevent any official or judicial sale of the Premises
or Leased Premises under execution or otherwise, and Tenant shall pay or
otherwise satisfy any final judgment adjudging or enforcing such contested lien
and thereafter procure record satisfaction or release thereon.
SECTION 7.7. TENANT'S PROPERTY.
A. All Tenant's machinery, equipment, computer and other
equipment, including computer and telephone equipment and all cables
and wires, furniture, removable partitions, and all other property of
Tenant installed or located in the Leased Premises from time to time
("Tenant's Property") shall be and remain the property of Tenant. Upon
the termination or any partial termination of this Lease, Tenant shall
remove all Tenant's Property from the Leased Premises or the portion of
the
-21-
Leased Premises so affected, at Tenant's sole cost and expense, except
alterations and additions made by Tenant to the extent they are
required to remain in the Leased Premises under the terms of Article 7
hereof. If within ten (10) days after the termination of this Lease
Tenant has not removed all Tenant's Property from the Leased Premises
or portion of the Leased Premises, and Landlord desires to dispose of
such remaining Tenant's Property, Landlord may notify Tenant that the
remaining Tenant's Property must be removed whereupon Tenant shall
remove the same forthwith, failing which Landlord may do so at Tenant's
expense.
B. Tenant's Property and all furnishings, fixtures, equipment,
affects and property of those claiming by, through or under Tenant
located in the Leased Premises shall be at the sole risk and hazard of
Tenant, and if the whole or any part hereof shall be damaged or
destroyed by fire, flood, the leakage or bursting of pipes, or by theft
or by any other cause, no part of such damage shall be borne by
Landlord unless the same is caused by the gross negligence or willful
misconduct of Landlord.
SECTION 7.8. EXTERIOR SIGNS. Tenant shall have the exclusive right to
erect, maintain, repair and replace a sign on the Building following the
Commencement Date, provided the same shall comply with applicable zoning codes
and sign ordinances. Tenant shall also have the right, subject to applicable
zoning codes and sign ordinances, to erect an identifying sign at the entrance
to the Site from University Avenue on a pylon or similar structure furnished by
the Landlord for use by all tenants of the Premises. The size, design, and
illumination of said sign shall be subject to the prior approval of Landlord,
which shall not be unreasonably withheld, conditioned, or delayed. Upon the
termination of this Lease, Tenant shall remove any sign it has placed on the
Building or elsewhere on the Premises and repair any damage caused as a result
of such removal all at Tenant's sole cost and expense. Tenant's obligation as
herein stated shall survive the termination of the Lease.
-22-
ARTICLE 8
HAZARDOUS MATERIALS
SECTION 8.1. USE OF HAZARDOUS MATERIALS. Tenant shall not cause or
permit any Hazardous Materials (as hereinafter defined) to be used, generated,
stored, or disposed of on, under or about the Premises, or to be transported to,
from, or across the Premises. Notwithstanding the foregoing, Tenant may use and
allow in the Leased Premises the Hazardous Materials which are necessary for the
conduct of Tenant's business, provided that the use, storage, and disposal
thereof by Tenant is at all times in compliance with all applicable laws, rules,
regulations, permits, requirements, and restrictions, of all governmental
authorities now or hereafter in effect.
SECTION 8.2. RELEASE OF HAZARDOUS MATERIALS. In the event Tenant, its
employees, agents, contractors, or invitees cause the release of Hazardous
Materials on or from the Premises, Tenant shall promptly notify Landlord and
take such action, at Tenant's sole expense, as may be necessary to assess,
remediate, or remove such Hazardous Materials as and to the extent required by
all applicable laws, rules, regulations, and requirements of governmental
authorities.
SECTION 8.3. INDEMNIFICATION BY TENANT. Tenant shall indemnify, defend,
and hold harmless Landlord, its agents, employees, and lenders, and the Leased
Premises, from and against any and all damages, liabilities, judgments, costs,
claims, liens, expenses, penalties, loss of permits and attorneys' and
consultants' fees arising out of any release by Tenant, its employees, agents,
contractors, or invitees of Hazardous Materials on or from the Premises on or
after the Commencement Date or the use, generation, storage, or disposal of
Hazardous Materials by Tenant in violation of the provisions hereof. Tenant's
obligations under this Article 8 shall include, but not be limited to, the
effects of any contamination or injury to person, property or the environment
created or suffered by Tenant, and the cost of investigation (including
-23-
consultants' and attorneys' fees and testing), removal, remediation, restoration
and/or abatement thereof, or of any contamination therein involved, and shall
survive the expiration or earlier termination of this Lease; provided, however,
that Tenant shall not be required to pay consequential damages. No termination,
cancellation or release agreement entered into by Landlord and Tenant shall
release Tenant from its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Landlord in writing at the time of
such agreement.
SECTION 8.4. LANDLORD'S OBLIGATIONS. Landlord warrants and represents
to Tenant that, to the best of Landlord's knowledge, no Hazardous Materials have
been released on or from the Premises prior to the Commencement Date, except for
releases assessed, remediated, and removed as and to the extent required by
applicable laws, rules, regulations, and requirements of governmental
authorities.
SECTION 8.5. INDEMNIFICATION. Landlord shall indemnify, defend, and
hold harmless Tenant from and against any and all damages, liabilities,
judgments, costs, claims, liens, expenses, penalties, loss of permits and
attorneys' and consultants' fees arising out of any release of Hazardous
Materials on or from the Premises or the use, generation, storage, or disposal
of Hazardous Materials on the Premises by any party other than Tenant, its
agents, employees, contractors, and invitees. Landlord's obligations under this
Article 8 shall include, but not be limited to, the effects of any contamination
or injury to person, property or the environment created or suffered by
Landlord, and the cost of investigation (including consultants' and attorneys'
fees and testing), removal, remediation, restoration and/or abatement thereof,
or of any contamination therein involved, and shall survive the expiration or
earlier termination of this Lease; provided, however, that Landlord shall not be
required to pay consequential damages. No termination, cancellation or release
agreement entered into by Landlord and Tenant shall release
-24-
Landlord from its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Tenant in writing at the time of
such agreement.
SECTION 8.6. DEFINITION OF HAZARDOUS MATERIALS. For the purposes
hereof, the term "Hazardous Materials" shall mean all substances and materials
constituting "hazardous substances," "hazardous materials," or "toxic
substances" or otherwise regulated now or hereafter under any local, state, or
federal law, rule, or regulation governing health, safety, natural resources, or
the environment.
ARTICLE 9
UTILITIES
SECTION 9.1. UTILITIES. Tenant shall provide and pay for all of its
requirements for utilities, including, but not limited to, gas, steam, water,
electricity, telephone and sewer. Electricity is currently supplied to the
Leased Premises by the Town of Xxxxxxx. Tenant shall have the right to contract
with other suppliers of electricity, subject to the prior consent of Landlord,
which consent shall not be unreasonably withheld, qualified, or delayed. Any
costs or liabilities incurred or required to be incurred as a result of a change
in the supplier of electricity shall be borne by Tenant, and Tenant shall
indemnify and hold harmless Landlord from and against any and all such costs and
liabilities.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
SECTION 10.1. LANDLORD'S APPROVAL REQUIRED. Tenant shall not assign,
sublet, transfer, or encumber all or any part of this Lease or the Leased
Premises or allow the Leased Premises to be occupied by another party without
Landlord's prior written consent, which consent Landlord shall not unreasonably
withhold or condition. Landlord shall not withhold its consent to a proposed
assignment or subletting if the proposed assignee's or sublessee's financial
standing and responsibility at the time of the proposed assignment or subleasing
is sufficient to give
-25-
Landlord reasonable assurance of the payment of all rent and other charges
payable under this Lease, and of compliance with all other terms, covenants,
conditions, and provisions of this Lease. Any request for approval of a proposed
assignment or subletting shall be in writing and shall set forth in detail
satisfactory to landlord the identity of the proposed assignee or sublessee, its
financial condition, and the terms on which the proposed assignment or
subletting is to be made, including, without limitation, the rent and any other
consideration to be paid by the proposed assignee or sublessee. Any assignment
of this Lease or subletting of the whole or any part of the Leased Premises
without Landlord's express prior written consent shall be void and of no force
and effect. For the purposes hereof, a merger or reorganization of Tenant shall
be deemed to be an assignment of this Lease, but the sale or transfer of all or
any part of the stock of Tenant shall not be deemed an assignment of this Lease.
SECTION 10.2. ADDITIONAL RENT. Without limitation of the rights of
Landlord hereunder, if there is a permitted subletting of the whole of the
Leased Premises by Tenant at a rent or other consideration which exceeds the
rent payable by Tenant under this Lease, or if there is a permitted subletting
of a portion of the Leased Premises by Tenant at a rent in excess of the
subleased portion's pro rata share of the rent payable by Tenant under this
Lease, then Tenant shall pay to Landlord, as additional rent, forthwith upon
Tenant's receipt of the excess rent or consideration, fifty percent (50%) of the
excess rent or consideration received after recovery by Tenant of its costs
incurred in connection with such subletting, including, without limitation,
brokerage costs, attorney's fees, and the cost of tenant improvements made by
Tenant or at its expense.
SECTION 10.3. RECAPTURE. In the event that Tenant proposes to assign
this Lease or sublet more than fifty percent (50%) of the area of the Leased
Premises, Landlord shall have the option to terminate this Lease as of the
effective date of the proposed assignment or subletting and
-26-
relieve Tenant of all of its future obligations hereunder. Landlord may exercise
its right to terminate hereunder by giving written notice to Tenant within
thirty (30) days after Tenant's request for approval of the proposed assignment
or subletting. In the event that Landlord elects to terminate this Lease in the
aforesaid circumstances, Landlord shall be free to enter into a new lease with
the proposed assignee or sublessee on whatever terms and conditions it
determines.
SECTION 10.4. CONTINUED LIABILITY. In any case where Landlord shall
consent to an assignment of this Lease or a subletting of the Leased Premises,
the Tenant named herein shall remain fully liable for the performance of the
obligations of Tenant under this Lease.
ARTICLE 11
CASUALTY DAMAGE
SECTION 11.1. DEFINITIONS.
(a) "Partial Damage" shall mean damage which can reasonably be expected
to be substantially repaired in less than six (6) months after the repair work
is commenced.
(b) "Substantial Damage" shall mean damage to the Leased Premises which
cannot be reasonably expected to be substantially repaired in less than six (6)
months after the repair work is commenced.
SECTION 11.2. PARTIAL DAMAGE. If during the term of this Lease the
Leased Premises shall be damaged by fire or other casualty and such damage shall
fall into the classification of Partial Damage, this Lease shall continue in
full force and effect and Landlord shall promptly proceed to repair said damage
and restore the Leased Premises, including alterations and improvements made by
Tenant with the approval of Landlord, but not Tenant's fixtures and equipment,
to substantially their condition at the time of such damage. Landlord shall not
be responsible for any delay in the completion of such repair and restoration
which may result from any cause beyond Landlord's reasonable control.
-27-
SECTION 11.3. SUBSTANTIAL DAMAGE. If during the term of this Lease the
Leased Premises shall be damaged by fire or other casualty and such damage falls
into the classification of Substantial Damage, this Lease shall, except as
hereinafter provided, continue in full force and effect and Landlord shall
promptly proceed to repair such damage and restore the Leased Premises,
including alterations and improvements made by Tenant with the approval of
Landlord, but not Tenant's fixtures and equipment. Landlord shall not be
responsible for any delay in the completion of such repair and restoration which
may result from any cause beyond Landlord's reasonable control. Notwithstanding
the foregoing, if such damage is caused by a risk which is not covered by the
insurance required to be maintained by Landlord pursuant to Section 6.2 of this
Lease, Landlord may terminate this Lease by giving written notice of termination
to Tenant and shall thereafter have no obligation to repair or restore the
Leased Premises. Any such notice of termination shall be given within sixty (60)
days after the occurrence of the damage.
SECTION 11.4. DAMAGE NEAR END OF TERM. If at the time of damage to the
Leased Premises by fire or other casualty the date on which the term is
scheduled to expire is less than twelve (12) months in the future and Tenant
shall not have exercised any option to extend the term pursuant to this Lease,
either party shall have the right to terminate this Lease by giving written
notice of termination to the other party within thirty (30) days after the
occurrence of the damage. If said right of termination is exercised by either
party, this Lease shall terminate as of the date of the occurrence of such
damage, and Landlord shall have no obligation to repair or restore the Leased
Premises.
SECTION 11.5. TENANT'S RIGHT TO TERMINATE. In the event that Landlord
fails to repair any damage to the Leased Premises which it is required to repair
hereunder within twelve (12) months after the occurrence of such damage, Tenant
shall have the right to terminate this Lease
-28-
by giving written notice of termination to Landlord within fifteen (15) days
after the expiration of said twelve (12) month period. If Tenant exercises its
right to terminate, this Lease shall terminate as of the date on which Tenant's
notice of termination is given, and Landlord shall have no further obligation to
repair or restore the Leased Premises.
SECTION 11.6. ABATEMENT OF RENT. In the event that the Leased Premises
are damaged as hereinbefore provided, the Base Rent shall be abated or reduced
proportionately during any period in which, by reason of such damage, there is
any interference with the operation of the business of Tenant in the Leased
Premises, having regard to the extent to which Tenant may be required to
discontinue its business in the Leased Premises. Such abatement or reduction
shall continue for the period commencing with the occurrence of such damage and
ending when Landlord completes the repairs and restoration to be performed by it
pursuant to this Article 11.
ARTICLE 12
EMINENT DOMAIN AND PUBLIC DEDICATION
SECTION 12.1. TERMINATION. If at any time during the Term more than
fifty percent (50%) of the total floor area of the Leased Premises shall be
condemned or taken for public or quasi public use and the same would materially
affect Tenant's ability to conduct normal business operations in the Leased
Premises, this Lease shall automatically terminate as of the earlier of the date
of the vesting of title or the date of dispossession of Tenant as a result of
such condemnation or taking.
SECTION 12.2. PARTIAL TAKING. In the event of a partial condemnation or
taking that does not result in a termination of this Lease in accordance with
the provisions of Section 12.1 above, the Base Rent shall xxxxx in proportion to
the portion of the Leased Premises affected by such condemnation or taking.
-29-
SECTION 12.3. TEMPORARY TAKING. If at any time during the Term a
substantial portion of the Leased Premises are condemned or taken for a public
or quasi-public use for a limited period of taking time, this Lease shall remain
in full force and effect, provided, however, that Base Rent shall xxxxx during
such limited period in proportion to the portion of the Leased Premises that is
rendered untenantable or unusable as a result of such condemnation or taking,
and provided further that if the period of such condemnation or taking shall be
for greater than ninety (90) days, Tenant may by thirty (30) days advance notice
to Landlord elect to terminate this Lease.
SECTION 12.4. AWARD. Landlord shall be entitled to the entire award
resulting from any such condemnation or taking, including, without limitation,
any portion of the award attributable to the value of the leasehold estate
created by this Lease; provided, however, that Tenant shall be entitled to any
portion of any award attributable to Tenant's personal property or fixtures, or
specifically attributable to its relocation expenses or the interruption or
damage to its business.
ARTICLE 13
DEFAULTS; REMEDIES
SECTION 13.1. DEFAULTS BY TENANT. The occurrence of any one or more of
the following events shall constitute a material default and breach of this
Lease by Tenant ("Event of Default"):
A. The failure by Tenant to make any Base Rent payment,
additional rent payment, or any other payment required to be made by
Tenant, as and when due, where such failure shall continue for a period
of five (5) days after written notice of the failure from Landlord to
Tenant.
B. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or
performed by Tenant, other than described in Subparagraph A where such
failure shall continue for a period of fifteen (15)
-30-
days after written notice from Landlord to Tenant; provided, however,
that if the default is capable of being cured, but is not capable of
being cured within said fifteen (15) day period, Tenant shall not be
deemed to be in default if such cure is commenced within said fifteen
(15) day period and Tenant diligently pursues the cure to completion.
C. The making by Tenant of any general assignment for the
benefit of creditors; the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case
of the petition filed against Tenant, the same is dismissed within
sixty (60) days); the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the
Leased Premises or of Tenant's interest in this Lease, where such
appointment is not discharged within sixty (60) days.
D. Execution by Tenant of an instrument purporting to assign
Tenant's interest under this Lease or to sublet the whole or any
portion of the Leased Premises to a third party except as permitted
under Article 10 of this Lease.
SECTION 13.2. REMEDIES OF LANDLORD.
A. Should any Event of Default occur then, notwithstanding any
license of any former breach of covenant or waiver of the benefit
hereof or consent in a former instance, Landlord lawfully may, in
addition to any remedies otherwise available to Landlord, immediately
or at any time thereafter and without demand or notice, in accordance
with applicable laws, enter into and upon the Leased Premises or any
part thereof in the name of the whole and repossess the same as of
Landlord's former estate, and expel Tenant and those claiming by,
through or under it and remove its or their effects (forcibly if
necessary) without being deemed guilty of any manner of trespass, and
without prejudice to any remedies which might otherwise be used for
arrears of rent or
-31-
preceding breach of covenant and/or Landlord may send notice to Tenant
terminating the Term of this Lease; and upon the first to occur of: (i)
entry as aforesaid; or (ii) the fifth (5th) day following the mailing
of such notice of termination, the term of this Lease shall terminate,
but Tenant shall remain liable for all damages as provided for herein.
Tenant covenants and agrees, notwithstanding any
termination of this Lease as aforesaid or any entry or re-entry by
Landlord, whether by summary proceedings, termination, or otherwise, to
pay and be liable for on the days originally fixed herein for the
payment thereof, amounts equal to the several installments of Base
Rent, additional rent, and other charges reserved as they would become
due under the terms of this Lease if this Lease had not been terminated
or if Landlord had not entered or re-entered, as aforesaid, and whether
the Leased Premises be re-let or remain vacant, in whole or in part, or
for a period less than the remainder of the term or for the whole
thereof; but in the event the Leased Premises be re-let by Landlord,
Tenant shall be entitled to a credit in the net amount of rent received
by Landlord in re-letting, after deduction of all expenses incurred in
re-letting the Leased Premises (including, without limitation,
remodeling costs, brokerage fees, attorneys' fees, and the like), and
in collecting the rent in connection therewith. It is specifically
understood and agreed that Landlord shall be entitled to take into
account in connection with any re-letting of the Leased Premises all
relevant factors which would be taken into account by a sophisticated
developer in securing a replacement tenant for the Leased Premises. As
an alternative, at the election of Landlord, Tenant will upon such
termination pay to Landlord, as damages, such a sum as at the time of
such termination represents the amount of the excess, if any of the
then value of the total rent and other benefits which would have
accrued to Landlord under this Lease for the remainder of the term if
the
-32-
Lease terms had been fully complied with by Tenant over and above the
then cash rental value (in advance) of the Leased Premises for the
balance of the Term.
B. If Tenant defaults in the payment of any amount payable by
it under this Lease or in the performance of any of its other
obligations under this Lease and such default continues beyond any
applicable grace period, Landlord may pay or perform Tenant's
obligations in the manner and to the extent Landlord determines. Upon
demand by Landlord, Tenant shall pay to Landlord, as additional rent,
all sums paid by Landlord and all costs and expenses incurred by
Landlord hereunder, together with interest thereon at a rate equal to
the prime rate of interest announced from time to time by Fleet Bank
plus five percent (5%), but not exceeding the maximum rate allowable by
law (the "Default Rate"), from the date the sum is paid or the cost or
expense is incurred by Landlord until Landlord is reimbursed by Tenant.
No action taken by Landlord hereunder to cure Tenant's default shall be
deemed to waive Tenant's default or affect the right of Landlord to
pursue any other remedy it may have on account of the occurrence of an
Event of Default.
C. Landlord shall have the right to pursue any other remedy
now or hereafter available to Landlord under the laws or judicial
decisions of The Commonwealth of Massachusetts.
SECTION 13.3. INTEREST ON LATE PAYMENT. Tenant hereby agrees to pay to
Landlord interest on all delinquent amounts of Base Rent and additional rental
at the Default Rate on the delinquent amount from the date that such delinquent
amount was due until the date it is paid.
SECTION 13.4. FAILURE OF TENANT TO PAY CLAIMS. Should Tenant fail to
pay or discharge or cause to be paid and discharged, at the time or times called
for in this Lease, any claim, or charge required to be paid by Tenant under this
Lease, or any claim for damages arising out of the
-33-
repair, maintenance or use of the Leased Premises, or to satisfy any final
judgment rendered on any contested lien or claim, then Landlord may, at its
option, but only after ten (10) days written notice to Tenant, pay such claim,
charge, or settle or discharge any action, or satisfy any judgment. All costs,
expenses, penalties and other sums incurred or paid by Landlord in connection
therewith shall be paid to Landlord by Tenant upon demand, together with
interest thereon at the Default Rate from the date incurred or paid by Landlord
until repaid by Tenant. Any default in such repayment shall constitute a
Tenant's Default. If Tenant desires in good faith to contest any such lien or
claim, and it so notifies Landlord of its intention to do so and, if such lien
or claim will result in an encumbrance on Landlord's interest in or title to the
Premises, furnishes to Landlord a surety bond in an amount equal to one and
one-half the amount of such contested lien or claim indemnifying Landlord
against liability for same within ten (10) days after such lien comes into
existence or such claim is first made, as the case may be, Tenant shall not be
in default and Landlord shall not satisfy such lien or claim until five (5) days
after the determination of the validity thereof.
SECTION 13.5. WAIVERS AND ACCORD AND SATISFACTION. If Landlord fails to
take advantage of any of the terms providing for the termination of this Lease,
or if Landlord, having the right to declare this Lease terminated, shall fail so
to do, any such failure of Landlord shall not be construed to be a waiver of any
provision for the termination of this Lease, or as a waiver of any of the
covenants, terms or conditions of this Lease or of the prompt performance
thereof by Tenant.
None of the covenants, terms or conditions of this Lease can be waived
except by the written consent of the party entitled to the benefits thereof.
No waiver by either party of any provision shall be deemed a waiver of
any other provision or of any subsequent breach by the other party of the same
or any other provision.
-34-
Consent to or approval of any act by either party shall not render unnecessary
the obtaining of subsequent consent to or approval of any subsequent act. The
acceptance of rent by Landlord shall not be a waiver of any preceding breach by
Tenant of any provisions hereof, other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent. No payment by Tenant or
receipt by Landlord of a lesser amount than any rent payment specified herein
shall be deemed to be other than on account of rent, nor shall any endorsement
or statement on any check or any letter accompanying any check or statement as
rent be deemed an accord and satisfaction. Landlord's right to recover the
balance of rent or pursue any other remedy provided for in this Lease.
SECTION 13.6. DEFAULT BY LANDLORD. Landlord shall be in default of this
Lease if it fails or refuses to perform any provision of this Lease it is
obligated to perform, if such failure or refusal is not cured within thirty (30)
day after written notice thereof is given by Tenant to Landlord ("Landlord's
Default"); provided, however, that if the default cannot reasonably be cured
within thirty (30) days, Landlord shall not be in default of this Lease if
Landlord commences to cure the default within the thirty (30) day period and
diligently continues to cure the default to completion.
If Landlord fails to perform any of its obligations under this Lease
and such failure is not cured after notice to Landlord and the expiration of the
applicable grace period, Tenant may perform Landlord's obligations and Landlord
shall upon demand by Tenant reimburse Tenant for all sums paid and costs and
expenses incurred by Tenant in performing Landlord's obligations. Landlord shall
also pay Tenant interest on said sums paid by Tenant at the Default Rate from
the date the sum is paid by Tenant until Tenant is reimbursed. In no event shall
the Tenant have the right to setoff the amounts payable by Landlord hereunder
against or deduct the same from the Base Rent, additional rent, or other sums
payable by Tenant under this Lease.
-35-
ARTICLE 14
MISCELLANEOUS PROVISIONS
SECTION 14.1. ADDITIONAL RENT. Without limiting any other provision of
this Lease, it is expressly understood and agreed that all amounts and charges
which Tenant is required to pay under this Lease shall be deemed to be
additional rent, and in the event of nonpayment thereof by Tenant, Landlord
shall have all of the rights and remedies with respect thereto as would accrue
to Landlord for nonpayment of Base Rent.
SECTION 14.2. PROVISIONS BINDING. The term "Landlord" wherever used in
this Lease shall be deemed to mean the corporation, person or other legal entity
holding the rights of Landlord under this Lease at the time in question.
Except as set forth above, all of the covenants, agreements,
stipulations, provisions, conditions, options and obligations herein expressed
and set forth shall be considered as running with the land and shall (unless
herein otherwise specifically provided) extend to, bind and inure to the benefit
of, as the case may require, the successors and assigns of the Landlord and the
Tenant, respectively, as fully as if such words were written whenever reference
to the Landlord and the Tenant occur in this Lease. The reference contained to
successors and assigns of Tenant is not intended to constitute a consent to an
assignment by Tenant, but has reference only to those instances specifically
permitted by the provisions of Article 10 hereof or to those instances in which
Landlord may later give written consent to a particular assignment as required
by the provisions of said Article 10.
SECTION 14.3. NOTICES. Any and all notices, requests, designations,
demands and the like, required or permitted to be given or served by the terms
and provisions of this Lease, either by Landlord to Tenant, or by Tenant to
Landlord, shall be in writing, and shall be sent by recognized overnight carrier
or registered or certified mail, return receipt requested, addressed to
-36-
the party intended to be notified at the addresses set forth on the first page
of this Lease or to such other address as may be designated by the party
entitled to receive notice by notice given in accordance with the provisions
hereof. Notices shall be deemed to be effective upon delivery or tender of
delivery.
SECTION 14.4. INVALIDITY OF PARTICULAR PROVISIONS. If any term or
provision of this Lease or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this Lease, or
the application of such term or provision to persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Lease shall be valid and shall be
enforceable to the fullest extent permitted by law.
SECTION 14.5. RECORDING. Each party hereto, on the request of the
other, agrees to execute a so-called Notice of Lease in recordable form
complying with applicable law and reasonably satisfactory to Landlord's and
Tenant's attorneys. In no event shall such document set forth the rent or other
charges payable by Tenant hereunder; and any such document shall expressly state
that it is executed and recorded pursuant to the provisions of this Lease and is
not intended to vary the terms and conditions of this Lease.
SECTION 14.6. SUBORDINATION TO MORTGAGES. Tenant agrees that upon the
request of the Landlord it will subordinate this Lease to the lien of any
mortgage or deed of trust affecting the Premises, provided that the mortgagee or
beneficiary named in such mortgages or deeds of trust agree in writing to
recognize the interest and rights of Tenant under this Lease, agree that so long
as Tenant shall perform its obligations under this Lease the rights of Tenant
hereunder shall remain in full force and effect, and agree that they will not
disturb Tenant's occupancy of the Leased Premises under this Lease in the event
of foreclosure or other action taken under the mortgage or deed of trust if
Tenant is not then in default beyond any applicable grace or cure
-37-
period. Tenant shall execute and deliver to Landlord's all instruments Landlord
reasonably deems necessary to evidence and give effect to any such subordination
within fifteen (15) days of notice of the same from Landlord to Tenant, provided
that no such instrument shall alter any of the terms, covenants or conditions of
this Lease.
SECTION 14.7. PROTECTION OF MORTGAGEE. If in connection with any
mortgage or deed of trust by Landlord of the Premises there shall be executed an
assignment by Landlord of Landlord's interest in this Lease, or the rents
payable hereunder, conditional in nature or otherwise, Tenant agrees:
(a) that the execution thereof by Landlord and the acceptance
thereof by the mortgagee or assignee (herein referred to as the
"Holder"), shall never be deemed an assumption by the Holder of any of
the obligations of the Landlord hereunder, unless the Holder shall, by
written notice sent to Tenant, specifically otherwise elect;
(b) that except as aforesaid, the Holder shall be treated as
having assumed Landlord's obligations hereunder only upon foreclosure
of the Holder's mortgage or assignment and the taking possession of the
demised premises or such portion thereof as may be covered thereby;
(c) that Tenant shall execute such instruments as may be
reasonably required to assure the Holder that without written consent
of the Holder: (i) no rent shall be prepaid hereunder other than for
the current and next ensuing month or as expressly set forth in this
Lease; and (ii) no modification shall be made in the provisions of this
Lease; and
(d) that Tenant shall provide to the Holder copies of all
notices alleging Landlord defaults hereunder, and shall allow the
Holder to cure any such defaults within
-38-
any cure or grace period provided by this Lease prior to exercising any
rights or remedies available to Tenant.
SECTION 14.8. WAIVER. No failure by Landlord or Tenant to insist upon
the strict performance of any provision, condition or agreement contained in
this Lease to be performed by the other shall ever be deemed to be a waiver of
such provision as to any subsequent event constituting nonperformance or
observance by such party.
SECTION 14.9. EXCULPATION. Tenant shall neither assert nor seek to
enforce any claim for breach of this Lease against any of Landlord's assets
other than Landlord's interest in the Leased Premises and in the rents, issues,
profits, and proceeds thereof, and Tenant agrees to look solely to such interest
for the satisfaction of any liability of Landlord under this Lease, it being
specifically agreed that in no event shall Landlord (which term shall include,
without limitation any of the officers trustees, directors, partners,
beneficiaries, joint venturers, members, stockholders or other principals or
representatives, disclosed of undisclosed, of Landlord or any managing agent)
ever be personally liable for any such liability.
SECTION 14.10. SECURITY. Tenant shall deposit with Landlord upon
execution of this Lease an irrevocable standby letter of credit in a form, on
terms, and issued by a bank acceptable to Landlord and in an amount equal to One
Million Three Hundred Ninety-Six Thousand Five Hundred Dollars ($1,396,500.00).
Landlord agrees that upon refinancing of the Site, Landlord shall request the
refinancing lender to accept a surety bond as security for the Tenant's
obligations under this Lease in substitution for the letter of credit. Such
surety bond shall be in an amount equal to One Million Three Hundred Ninety-Six
Thousand Five Hundred Dollars ($1,396,500.00), shall be in a form satisfactory
to Landlord and such refinancing lender, and shall be issued by a bonding
company acceptable to Landlord and such refinancing lender. In the event that
the refinancing lender agrees to such substitution, Tenant shall provide such
surety
-39-
bond to Landlord in replacement of the letter of credit, and Landlord shall
return the letter of credit to Tenant. In the event that the refinancing lender
does not approve such substitution, the letter of credit will remain security
for the Tenant's obligations under this Lease, subject to and in accordance with
the provisions of this Section 14.10.
Provided that there is not a substitution of a surety bond for Tenant's
letter of credit in accordance with the foregoing provisions, Tenant's letter of
credit shall remain in effect until March 25, 2010 (the "LC Expiration Date").
In the event that any letter of credit provided by Tenant hereunder has an
expiration date earlier than the LC Expiration Date or if the issuer of any
letter of credit provided by Tenant hereunder which is by its terms renewable
fails to renew the letter of credit takes any action to prevent the renewal of
the letter of credit with the result that the letter of credit will expire
before the LC Expiration Date, Tenant shall deliver a substitute letter of
credit to Landlord not later than thirty (30) days prior to the expiration date
of the expiring letter of credit. Any substitute letter of credit shall be in a
form, on terms, and issued by a bank acceptable to Landlord; shall be in the
amount required by the terms of this Section 14.10; and shall in all respects be
subject to the provisions of this Section 14.10. If Tenant fails to deliver a
substitute letter of credit as hereinbefore provided, Landlord shall have the
right to draw against the expiring letter of credit to the extent of the full
amount available thereunder. Landlord shall hold the amount received as a result
thereof as a security deposit to secure the prompt and full performance by
Tenant of its obligations under this Lease.
Tenant shall have the right to reduce the amount of said letter of
credit, surety bond or security deposit, as the case may be (the "Security"), by
twenty percent (20%) of its original amount annually commencing on the sixth
(6th) anniversary of the Commencement Date. Tenant may also, not more frequently
than annually, submit to Landlord a request that Landlord agree to allow a
reduction of the Security prior to the sixth anniversary of the Commencement
Date. Any
-40-
such request by Tenant shall be accompanied by a copy of Tenant's most recent
financial statement prepared by its independent accountants and dated not more
than thirty (30) days prior to the making of such request. If Landlord is
willing to grant Tenant's request, it shall seek the approval of the holder of
any mortgage on the Premises and, if such mortgage holder also approves Tenant's
request, Tenant shall have the right to reduce the Security by the amount
requested or such other amount as is acceptable to Landlord and its mortgagee.
In the event that Tenant defaults in the performance of any of its obligations
under this Lease, Landlord may forthwith draw or proceed against or apply the
Security to the extent of the amount recoverable by Landlord as a result of
Tenant's default and apply the amounts received to the payment of any Base Rent
or additional rent not paid when due or to the satisfaction of the obligations
of Tenant resulting from Tenant's default.
SECTION 14.11. BROKERAGE. Each party warrants and represents to the
other that it has dealt with no broker in connection with the negotiation and
execution of this Lease other than The Tarkinow Group and Xxxxxxxx Xxxx Company,
to whom Landlord shall pay a commission. Each party hereby agrees to indemnify
and hold the other party harmless from any loss, cost, or damage sustained as a
result of the inaccuracy of the foregoing warranty and representation.
SECTION 14.12. QUIET ENJOYMENT. Landlord covenants that upon paying the
Base Rent and additional rent and observing and keeping all covenants,
agreements and conditions applicable to it under this Lease, Tenant shall
peaceably and quietly have, hold and enjoy the Leased Premises, without
hindrance or molestation from Landlord or anyone claiming by, through or under
Landlord.
SECTION 14.13. YIELD UP. Tenant covenants to peacefully yield up and
surrender the Leased Premises upon the termination of this Lease in as good
condition and repair as they were at the Commencement Date or may have been put
by Landlord during the term, reasonable wear
-41-
and tear excepted, and to remove all Tenant's Property therefrom and all
alterations and additions required to be removed under the provisions hereof.
SECTION 14.14. HOLDING OVER. Any holding over by Tenant after the
expiration of the term shall be treated as a tenancy at sufferance at one
hundred fifty percent (150%) of the Base Rent plus the Additional Rent herein
provided to be paid during the last twelve (12) months of the term (prorated on
a daily basis) and shall otherwise be on the terms and conditions set forth in
this Lease, as far as applicable. Landlord shall not be entitled to collect
consequential damages as a result of Tenant's holding over.
SECTION 14.15. LANDLORD'S ENTRY. Tenant covenants to permit the
Landlord or its agents to enter the Leased Premises upon reasonable advance
notice or at any time in the event of an emergency, for the purpose of
inspections and exercising any rights in carrying out any obligations Landlord
may have under this Lease, correcting or repairing damage to the Leased
Premises, and to show the Leased Premises to prospective tenants during the
twelve (12) months prior to the expiration of the term and during other periods
of time as Tenant and Landlord may agree.
SECTION 14.16. ESTOPPEL CERTIFICATE.
A. Tenant shall, upon not less than fifteen (15) days prior
written notice from Landlord to Tenant, execute and deliver to Landlord
a statement in writing in recordable form (i) certifying that this
Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease,
as so modified, is in full force and effect) and the date to which the
rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not to Tenant's knowledge, any uncured
defaults, or, if there are, those which are claimed. Any such statement
may be conclusively relied upon by any prospective purchaser or
mortgagee of the Leased
-42-
Premises. Tenant's failure to deliver such statement within such time
shall be considered an Event of Default.
B. Landlord shall, upon not less than thirty (30) days prior
written notice from Tenant, execute and deliver to Tenant a statement
in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified is in full
force and effect) and the date to which the rent and other charges are
paid in advance, if any, and (ii) acknowledging that there are not to
Landlord's knowledge, any uncured defaults on the part of the Tenant
hereunder, or specifying such defaults, if any are claimed. Any such
statement may be conclusively relied upon by any party to whom it is
delivered by Tenant. Landlord's failure to deliver such statement
within such time shall be considered a default by Landlord.
SECTION 14.17. Intentionally omitted.
SECTION 14.18. ATTORNMENT. Tenant agrees, upon demand by Landlord, to
attorn to any purchaser at any foreclosure sale, or to any grantee or transferee
designated in any deed given in lieu of foreclosure. Tenant also agrees to cause
any sublessee or assignee of Tenant to agree to attorn to Landlord or to any
purchaser at any foreclosure sale, or to any grantee or transferee designated in
any deed given in lieu of foreclosure.
SECTION 14.19. ATTORNEYS' FEES. If either Landlord or Tenant commences
or engages in an action (the "Action") by or against any other party arising out
of or in connection with this Lease or the Leased Premises, including but not
limited to any Action for recovery of rental due and unpaid, to recover
possession or for damages for breach of this Lease, the prevailing party shall
be entitled to have and recover from the losing party reasonable attorneys' fees
and other costs incurred in the Action and in preparation for said Action. If
Landlord becomes a party to
-43-
any litigation by or against anyone not a party to this Lease, but arising by
reason of or related to any act or omission of Tenant or its representatives,
agents, employees, licensees or invitees, Tenant agrees to pay Landlord's
reasonable attorneys' fees and other costs incurred in the litigation and in
preparation for said litigation. If Tenant becomes a party to any litigation by
or against anyone not a party to this Lease, but arising by reason of or related
to any act or omission of Landlord or its representatives, agents, employees,
licensees or invitees, Landlord agrees to pay Tenant's reasonable attorneys'
fees and other costs incurred in the litigation and in preparation for said
litigation.
SECTION 14.20. AMENDMENTS. This document shall become effective and
binding only upon the execution and delivery hereof by both Landlord and Tenant.
All negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and in the documents incorporated
herein by reference. This Lease may be modified or altered only by agreement in
writing between Landlord and Tenant.
SECTION 14.21. PARAGRAPH HEADINGS. The paragraph headings throughout
this instrument are for convenience only, and the words contained therein shall
in no way be held to explain, modify, amplify or aid in the interpretation or
construction of meaning of the provisions of this Lease.
SECTION 14.22. GOVERNING LAW. This Lease shall be governed exclusively
by the laws of The Commonwealth of Massachusetts, as the same may from time to
time exist.
SECTION 14.23. CONSENTS. Wherever in this Lease the consent of one
party is required to an act of the other party, such consent may be made subject
to such reasonable conditions as the consenting party deems appropriate.
SECTION 14.24. COMPUTATION OF TIME. The time in which any act provided
by this Lease is to be done is computed by excluding the first day and including
the last, unless the last day is a
-44-
Saturday, Sunday or holiday, and in such event, the last day in which the act is
to be done shall be the next following business day.
SECTION 14.25. INTERPRETATION. The language in all parts of this Lease
shall be in all cases simply construed according to its fair meaning and not
strictly for or against Landlord or Tenant. Unless otherwise provided in this
Lease, or unless the context otherwise requires, the following rules of
construction shall also apply to this Lease:
A. NUMBER AND GENDER: In this Lease the neuter gender includes
the feminine and masculine, and the singular number includes plural and
the word "person" includes corporation, partnership, firm or
association wherever the context so requires.
B. MANDATORY AND PERMISSIVE: "Shall," "will", and "agree" are
mandatory; "may" is permissive.
SECTION 14.26. CORPORATE ORGANIZATION AND AUTHORITY.
A. On or prior to the execution of this Lease, the parties
hereto shall provide evidence satisfactory in form and substance to the
other party of the authority of the person executing the Agreement and
evidence that the Lease represents the binding obligation of the
parties thereto enforceable in accordance with its terms.
B. Each party represents and warrants to the other as follows:
(i) it is an entity of the form described on the
first page hereof duly organized and existing
in good standing under the laws of the state of
its formation, and is duly qualified and
authorized to do business wherever necessary to
carry on its present business operations and to
own or hold under the Lease its properties and
to perform its obligations under this Lease. It
has the full power and authority to enter into
and perform this Lease, and the execution,
delivery and performance of this Lease have
been duly authorized by all necessary corporate
or other actions, do not require any
stockholder or certificate holder approval or
approval or consent of any
-45-
trustee or holders of any indebtedness or
obligations, and do not contravene any law,
governmental rule, regulation or order or
contravene the charter or bylaws or any
indenture, mortgage, contract or other
agreement to which it is a party or by which it
is or may be so bound.
(ii) There are no pending or certain actions or
proceedings to which it is a party or of which
it has knowledge, before any court,
governmental body or arbitrator which might
materially adversely affect the condition,
business or operations of it or its ability to
perform its obligations under this Lease.
SECTION 14.27. PROHIBITED TENANTS. Provided that there exists no Event
of Default under this Lease and that the Tenant named herein occupies the Leased
Premises, Landlord shall not lease any portion of the Premises to or allow the
same to be occupied by any of the following: Stop and Shop; Homegrocer;
Homeruns; Peapod; Xxxx'x; Shoplink; Hannaford's; Life Simple; and WebVan.
SECTION 14.28. NEPONSET VALLEY TRANSPORTATION MANAGEMENT ASSOCIATION.
Prior to commencing its business operations at the Leased Premises, Tenant shall
take such steps, including the payment of the applicable membership fee, as
shall be necessary for it to become a member of the Neponset Valley
Transportation Management Association. Tenant shall maintain its membership in
said Association at its sole cost during the entire term of this Lease.
WITNESS the execution hereof, under seal, in any number of counterpart
copies, each of which counterpart copies shall be deemed an original for all
purposes, as of the day and year first above written.
000 XXXXXXXXXX XXXXXX NOMINEE TRUST
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Trustee as aforesaid
XXXXXXXXXX.XXX, INC.
By: /s/ J. Xxxxxxx Xxxxx
-----------------------------------------
J. Xxxxxxx Xxxxx, Chief Financial Officer
-46-
