EXHIBIT 10.5
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") is entered into by and between
PREVISION MARKETING, INC., a Delaware corporation ("Sublessor"), and MOTHER
XXXXXX.XXX, INC., a Delaware corporation ("Sublessee"),
WITNESSETH
On October 25, 1996, the Sublessor and New England Farms Limited
Partnership ("Landlord") entered into that certain Lease Agreement (the "Base
Lease"), a copy of which is attached hereto as Exhibit A, wherein Landlord
leased to Sublessor and Sublessor leased from Landlord certain premises in the
office building located at One Concord Farms, 000 Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx (the "Building").
Sublessee desires to sublease from Sublessor and Sublessor desires to
sublease to Sublessee the Subleased Premises (as hereinafter defined) subject to
the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration paid by each
party hereto to the other, Sublessor and Sublessee agree as follows:
1. Terms. Capitalized terms used herein but not defined herein shall have
-----
the meanings specified in the Base Lease.
2. Agreement to Sublease. Sublessor subleases to Sublessee, and Sublessee
---------------------
sublease from Sublessor, approximately 10,340 square feet of Premises Rentable
Area as measured in accordance with the Measurement Method (the "Subleased
Premises Rentable Area") located on the second (2nd ) and third (3rd ) floor of
the Building (the "Subleased Premises") in accordance with the terms, conditions
and provisions of this Sublease. A floor plan depicting the Subleased Premises
is attached hereto as Exhibit "B."
3. Term. The term (the "Term") of this Sublease shall commence (the
----
"Commencement Date") on the earlier of (a) April 12, 1999 or (b) the date
Sublessee actually occupies the Subleased Premises, and shall expire on February
28, 2002 (the "Expiration Date"), unless earlier terminated pursuant to the
terms of this Sublease. Sublessor represents and warrants that the term under
the Base Lease does not expire before the Expiration Date.
4. Rent.
----
a) Commencing on the Commencement Date (the "Rent Commencement Date")
and continuing thereafter through the day before the first anniversary of
the Commencement Date, Sublessee shall pay to Sublessor, as rent (the
"Basic Rent") for the Subleased Premises, the sum of Two Hundred Fifty
Three Thousand Three Hundred And
Thirty Dollars ($253,330.00) per annum payable on the first day of each
month in equal monthly installments of $21,110.83.
b) Commencing on the first anniversary of the Rent Commencement Date
and continuing until the day before the second anniversary of the Rent
Commencement Date, Sublessee shall pay to Sublessor as rent (the "Basic
Rent") for the Subleased Premises, the sum of Two Hundred Fifty Eight
Thousand, Five Hundred Dollars ($258,500.00) per annum payable on the first
day of each month in equal monthly installments of $21,541.67.
c) Commencing on the second anniversary of the Rent Commencement Date
and continuing throughout the balance of the Term, Sublessee shall pay to
Sublessor as Rent (the "Basic Rent") for the Subleased Premises, the sum of
Two Hundred Sixty Three Thousand, Six Hundred Seventy Dollars ($263,670)
per annum payable on the first day of each month in equal monthly
installments of $21,972.50.
d) Sublessee shall pay all amounts that become payable by Sublessee
under this Sublease to Sublessor at the times and in the manner provided in
this Sublease, without demand, deduction, setoff or counterclaim, except as
set forth herein at 00 Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxx (or such other address as Sublessor may
designate in writing). In the event any amounts payable under this
Sublease shall not be paid within five (5) days of the date when due, a
"late charge" of five cents ($.05) per each dollar so overdue may be
charged by Sublessor for the purpose of defraying Sublessor's
administrative expenses incident to the handling of such overdue payments;
and Sublessee agrees to pay such late charges to Sublessor on demand as
additional rent.
5. Additional Charges. Sublessee shall pay to Sublessor within thirty
------------------
(30) days of demand (i) during the first calendar year of the Term, seventy-five
percent (75%) of the amount by which Operating Expenses for any calendar year
subsequent to calendar year 1998 exceed the actual Operating Expenses payable
under Section 6 of the Base Lease during calendar year 1998, and (ii) during the
subsequent calendar years of the Term, one hundred percent (100%) of the amount
by which Operating Expenses for any calendar year subsequent to calendar year
1998 exceed the actual Operating Expenses payable under Section 6 of the Base
Lease during calendar year 1998. Sublessor estimates that the Operating
Expenses due under Section 6 of the Base Lease for calendar year 1998 will be
$7.50 per square foot on an annualized basis. Sublessor shall have the right to
require that Sublessee make estimated monthly payments of such increases in
Operating Expenses to the extent Sublessor is required to do the same as tenant
under the Base Lease. In the event such estimated amounts are insufficient to
pay the Sublessee's share of Operating Expenses due hereunder (a "Deficiency"),
Sublessee shall pay the Deficiency within thirty (30) days of receipt of an
invoice therefore by Sublessor. If the estimated amounts exceed the Operating
Expenses due hereunder (a "Surplus"), Sublessor shall immediately refund the
amount of the Surplus to Sublessee. Sublessor shall supply Sublessee with
copies of any documents delivered to Sublessor as tenant under the Base Lease by
Landlord, including the statement of Operating Expenses due under Section 6.b.
of the Base Lease. In any year
subsequent to calendar year 1998, Sublessor may, at Sublessor's option, conduct
an audit of Operating Expenses pursuant to Section 6.d. of the Base Lease.
6. Electricity. The electricity supplied to the Subleased Premises shall
-----------
be separately measured by meters. Sublessee shall pay the electric charges for
the Subleased Premises.
7. Parking. Sublessor assigns to Sublessee the exclusive use of the
-------
eleven (11) designated parking spaces in the parking area adjacent to the
Building for the use of Sublessee's employees and visitors. Sublessor also
assigns to Sublessee the right to use all other parking spaces in the parking
lot on Landlord's property as provided in the Lease, in common with all others
entitled thereto, not designated for the exclusive use of other tenants in the
Building.
8. Use of Subleased Premises. Sublessee may use and occupy the Subleased
-------------------------
Premises only for the Permitted Uses, and for no other purpose whatsoever.
9. Acceptance of and Improvements to the Subleased Premises. Upon the
--------------------------------------------------------
Commencement Date, Sublessor shall tender, and Sublessee shall accept,
possession of the Subleased Premises in it "AS-IS," "WHERE-IS" and "WITH ALL
FAULTS" condition, without the benefit of any further improvement, and Sublessor
shall not be obligated to incur (or to cause Landlord to incur) any cost or
obligation whatsoever for the installation, renovation or demolition of any
improvements to the Subleased Premises. Premises shall be delivered in broom
clean condition, free of all occupants and their personal property on the
Commencement Date. In the event Sublessor fails to deliver possession of the
Subleased Premises to Sublessee in the condition required hereunder on the
Commencement Date, the Basic Rent shall xxxxx until the Subleased Premises are
delivered to Sublessee in such condition and Sublessee shall be entitled to
enter and occupy the Premises on the Commencement Date even if Sublessor (or
anyone claiming by through or under continues to occupy the same.
Notwithstanding the foregoing or any other terms of this Sublease, Sublessee
shall have no obligation to (i) bring the Subleased Premises into compliance
with any laws, ordinances or regulations existing as of the date of this
Sublease unless arising out of Sublessee's particular use of the Subleased
Premises, or (ii) remove from the Subleased Premises any improvements which
Sublessor may have installed upon the Subleased Premises.
10. Indemnification. Subject to the provisions of Paragraph 15 below, and
---------------
except to the extent, if any, of the negligence or willful misconduct of
Sublessor, Sublessee shall indemnify and hold Sublessor harmless from and
against claims by third parties for any loss or damage to property or person,
and all costs (including reasonable attorney's fees) incurred in connection with
the defense of any such claims, to the extent caused by the negligence or
willful misconduct of Sublessee, its agents, employees, and contractors in the
Building, or arising from the conduct or management of Sublessee's business in
the Building or Sublessee's use of the Subleased Premises. Subject to the
provisions of Paragraph 15 below, and except to the extent, if any, of the
negligence or willful misconduct of Sublessee, Sublessor shall indemnify and
hold Sublessee harmless from any claims by third parties for any loss or damage
to person or property and all costs (including reasonable attorneys' fees)
incurred in connection with the defense of any such claims, to the extent caused
by the negligence or willful misconduct of Sublessor, its agents, employees and
contractors in the Building, or arising from the conduct or management of
Sublessor's business in the Building or Sublessor's use of the Subleased
Premises prior to the Commencement Date.
11. Assignment and Subletting. In no event shall Sublessee assign this
-------------------------
Sublease or sublease the Subleased Premises or any part thereof without first
obtaining the prior written consent (which consent shall not be unreasonably
withheld, conditioned or delayed) of Sublessor. Any such assignment or sublease
shall also be in accordance with and subject to the terms of Section 16 of the
Base Lease with respect to any consent required by Lessor. Notwithstanding any
such assignment or sublease, Sublessee shall remain primarily liable and shall
continue to make all rental payments and all other payments that may become due
and payable hereunder to Sublessor in a timely manner. Any violation of this
Paragraph by Sublessee shall constitute an Event of Default under this Sublease,
entitling Sublessor to exercise any and all of the remedies herein provided for
an Event of Default by Sublessee, including, but not limited to, termination of
this Sublease. Notwithstanding the foregoing, Sublessee shall have the right,
without Landlord's or Sublessor's approval, to assign this Sublease or sublet
the Subleased Premises or any portion thereof, to any successor of Sublessee
resulting from a merger of consolidation of Sublessee or to any entity which is
a parent, subsidiary or affiliate of Sublessor or to any successor to Sublessor
due to a sale of its business (whether stock or asset sale).
12. Sublessee Default. Any one or more of the following events will
-----------------
constitute an event of default ("Event of Default") by Sublessee under this
Sublease:
i) failure or refusal by Sublessee to timely pay any installment of
Basic Rent, any adjustments thereto, or any other amount herein provided to
be paid by Sublessee to Sublessor, where such failure shall continue for
ten (10) days after the receipt of written notice from Sublessor or
designating such failure; or
ii) failure or refusal by Sublessee to perform or observe any other
term, covenant or provision of this Sublease required to be performed or
observed by Sublessee, where such failure continues for thirty (30) days
after written notice to Sublessee from Sublessor (or if such default of
Sublessee is of such a nature that Sublessee cannot reasonably remedy the
same within a thirty (30) day period, Sublessee shall additional time as is
necessary, provided Sublessee promptly commences and diligently pursues
care of the same); or
iii) the institution in a court of competent jurisdiction of
proceedings for reorganization, liquidation, or involuntary dissolution by
Sublessee, or for its adjudication as a bankrupt or insolvent, or for the
appointment of a receiver of the property of Sublessee, provided that
proceedings are not dismissed, and any receiver, trustee, or liquidator
appointed therein is not discharged within ninety (90) days after the
institution of said proceedings.
At any time after such an Event of Default has occurred, Sublessor may
exercise all rights and remedies provided under Section 21 of the Base Lease to
the extent incorporated herein, including, but not limited to, declaring this
Sublease terminated, and Sublessor may immediately
or at any time thereafter reenter the Subleased Premises and remove all persons
therefrom in accordance with all applicable laws and without prejudice to any of
its other legal rights . In addition, without limiting the foregoing, in the
event Sublessor reasonably believes that Sublessee's failure to cure a breach
under subparagraph (ii) above shall cause a default by Sublessor to occur under
the Base Lease, Sublessor shall specifically have the right, upon giving
Sublessee not less than ten (10) days prior written notice thereof, to cure such
breach or default and be reimbursed by Sublessee for all expenses incurred by
Sublessor in connection therewith upon demand and presentation of invoices
therefor. All rights and remedies of Sublessor herein enumerated shall be
cumulative and none shall exclude any other right or remedy allowed by law or in
equity, and said rights and remedies may be exercised and enforced concurrently
and whenever and as often as occasion therefore arises. Sublessor agrees to use
reasonable efforts to mitigate damages in the event this Sublease is terminated
but Sublessor shall have no liability for its failure to obtain a replacement
occupant for the Subleased Premises after an Event of Default provided it has
used such reasonable efforts.
13. Relationship of Parties. Sublessee recognizes that Sublessor is not
-----------------------
the owner of the Subleased Premises, and that the Landlord is the party with
whom Sublessee would normally deal regarding matters concerning the Subleased
Premises and the Building, and that the Sublessor shall have no obligation to
deliver or provide any services to the Tenant or the Subleased Premises except
to the extent and only to the extent Landlord delivers such services to
Sublessor. Accordingly, in the event Sublessee desires any extra services (for
example, additional air-conditioning services) other than those provided to the
Subleased Premises under the Base Lease, has any complaints concerning services
required to be provided by Landlord under the Base Lease to the Subleased
Premises, or the improvements thereto, or has any other matters which would
normally be discussed with a landlord, Sublessee agrees to contact Landlord
directly to handle such matters; it being the intention of the parties hereto
that, as to such matters, the only connection between Sublessee and Sublessor
shall be (a) the flow-through of rights and obligations of Sublessor under the
Base Lease, and (b) the payment of all amounts payable hereunder by Sublessee to
Sublessor as herein provided. Notwithstanding the foregoing, Sublessor agrees
to use reasonable efforts to enforce Landlord's obligations under the Base Lease
in the event Landlord fails to perform such obligations, and Sublessor shall
contact Landlord, on behalf of Sublessee, regarding any matter set forth in the
previous sentence if Landlord refuses to deal with Sublessee regarding the same.
In the event Sublessee acquires any additional services from Landlord for which
additional costs are incurred and Sublessee does not pay Landlord directly for
such services, then Sublessee shall pay Sublessor such amounts incurred by
Sublessee within ten (10) days following receipt from Sublessor of Landlord's
invoice for such services. In the event the Base Lease allows Sublessor to
terminate the Base Lease in the event of fire or other casualty or taking by
eminent domain, Sublessor shall only exercise such right if Sublessee consents
to the same.
14. Waiver of Subrogation. Anything in this Sublease to the contrary
---------------------
notwithstanding, Sublessor and Sublessee each hereby waive any and all rights of
recovery, claim, action or cause of action against the other, its officers,
directors, employees or agents for any damage to their respective property
located in the Subleased Premises, regardless of cause or origin, including the
negligence of Sublessor, Sublessee and such parties' respective officers,
directors, employees or agents, and each covenants that no insurer or other
third party shall hold
any right of subrogation against such other party on account thereof. The
provisions of this Paragraph 15 shall survive the expiration or termination of
this release.
15. Holding Over. In the event Sublessee remains in possession of the
------------
Subleased Premises after the Expiration Date, then Sublessee, at Sublessor's
option, shall be deemed to be occupying the Subleased Premises as a tenant at
will at a base rental equal to one hundred fifty percent (150%) of the Basic
Rent, and shall otherwise remain subject to all the conditions, provisions and
obligations of this Sublease insofar as the same are applicable to a tenancy at
will, including without limitation, the payment of all additions to Basic Rent
provided and all other sums payable hereunder. No holding over by Sublessee
after the expiration or termination of this Sublease shall be construed to
extend or renew the Term or in any other manner be construed as permission by
Sublessor to hold over. Sublessee shall indemnify and hold Sublessor harmless
from and against any and all damages (except indirect or consequential damages),
losses, costs and expenses, including reasonable attorneys' fees; incurred by
Sublessor reason of such holding over.
16. Care of the Subleased Premises by Sublessee. Sublessee shall maintain
-------------------------------------------
and repair the Subleased Premises in the manner required by Section 10 of the
Base Lease and shall not commit or allow any waste to be committed on any
portion of the Subleased Premises. At the expiration or earlier termination of
this Sublease, Sublessee shall deliver up the Subleased Premises to Sublessor in
at least the same condition as of the date of this Sublease, excepting only (i)
ordinary wear and tear, (ii) any casualty damage, and/or (iii) repairs which
are the obligation of the Landlord under the Base Lease.
17. Incorporation of Base Lease Terms: Except for Sections 1, 2.a., 3, 4,
----------------------------------
5, 6.a. (except for the definition of "Operating Expenses"), 6.b. (except for
the third paragraph thereof), 6.c., 8, 9.a., 9.b., 9.c., 9.d., 11.a., 11.e., 16,
20, 21.a., 21.f., 21.g., 23, 27, 28, 29, 30, 31, 32, 33, and Exhibits A-E to the
Base Lease, the terms, provisions, covenants and conditions of the Base Lease
are hereby incorporated into this Sublease by reference as fully as if
completely reproduced herein, and to the extent not otherwise inconsistent with
the agreements and understandings expressed in this Sublease or applicable only
to the original parties to the Base Lease, Sublessee assumes the same, subject
to the following:
a) The term "Landlord" as used therein shall refer to Sublessor
hereunder and its successors and assigns; the term "Tenant" as used therein
shall refer to Sublessee hereunder and its successors and permitted
assigns; the term "Term" as used therein shall refer to the Term hereunder;
and the term "Premises" as used therein shall refer to Subleased Premises
herein; and the term "Fixed Rent" as used therein shall refer to Basic Rent
hereunder; the term "Lease" as used therein shall refer to this Sublease;
and the term "Annual Rental" shall refer to the Basic Rent and Operating
Expenses due hereunder in each operating year;
b) In any case where Landlord reserves the right to enter the
Subleased Premises, said right shall inure to the benefit of Sublessor as
well as to Landlord;
c) Sublessee hereby expressly assumes and agrees (i) to perform all
of the terms, obligations, covenants and conditions to be performed by
Sublessor pursuant to the Base Lease to the extent incorporated into this
Sublease, and (ii) Sublessee shall be entitled to all of the rights and
benefits of Sublessor as Tenant under the Base Lease with respect to the
Subleased Premises;
d) Sublessor hereby expressly agrees not to do, suffer or permit
anything to be done which would result in a default under the Base Lease or
cause the Base Lease to be terminated or forfeited, except pursuant to a
right specifically provided to Sublessor therein. In addition, in no event
shall there be any modification or amendment to the Base Lease without the
prior written consent of Sublessee, which consent may be given or withheld
in Sublessee's sole and absolute discretion;
e) To the extent that any notice or consent is required under this
Sublease, Sublessee shall provide copies of all such notices to Landlord;
and
f) Sublessee agrees to promptly provide Sublessor with any notices
received from Landlord alleging a default under the Base Lease.
18. Security Deposit. Upon the execution of this Sublease, Sublessee
----------------
shall deposit with Sublessor $63,332.49 (the "Security Deposit"), as security
----------------
for the faithful performance and observance by Sublessee of the terms,
provisions, agreements, covenants and conditions of this Sublease. The Security
Deposit shall not be considered an advance payment of Basic Rent or Additional
Charges, and the Security Deposit shall not be considered a measure of
Sublessor's damages in case of the occurrence of any default under this
Sublease. Sublessor shall place the Security Deposit in a separate interest
bearing account (with interest to Sublessor) with the name of the bank and the
account number provided to Sublessee. In the event Sublessee defaults beyond
applicable notice and owe periods in respect to any of the terms, provisions,
agreements, covenants and conditions of this Sublease including, but not limited
to, the payment of Basic Rent or Additional Charges, Sublessor may, at
Sublessor's option, from time to time, without prejudice to any other remedy,
use, apply or retain the whole or any part of the Security Deposit not
theretofore applied to Basic Rent or Additional Charges to the extent necessary
to make good any arrears of Basic Rent or Additional Charges or any damage,
injury, expense or liability caused by such default. If Sublessor shall ever
use the Security Deposit not theretofore applied to Basic Rent to pay the sums
described above, and if this Sublease has not terminated, Sublessee shall
deposit with Sublessor additional monies equal to the amount so used within ten
(10) days after request therefore. The Security Deposit (less any amounts
properly retained by Sublessor) shall be returned to Sublessee within thirty
(30) days after the termination or expiration of this Sublease.
19. Notices. All notices or requests provided for hereunder shall be in
-------
writing and shall be either delivered by hand or sent by United States
Registered or Certified Mail, return receipt requested, postage prepaid, if to
Sublessor, to 00 Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000; or if for
Sublessee at the Subleased Premises or, if prior to the commencement hereof, to
000 Xxxx Xxx., #000, Xxxxx, XX 00000, Attention: Xxxxxxx Xxxxx, with a copy to
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxxx, XX 00000, Attention:
Real Estate Department. All such notices shall be deemed received either when
hand delivered or two (2) business days after being placed in the United States
Mail in the manner set forth above. The parties hereto shall have the right
from time to time to change their respective address by at least five (5) days
prior written notice to the other party.
20. Governing Law. THIS SUBLEASE SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
21. Interest on Sublessee's Obligations. All amounts owed by Sublessee to
-----------------------------------
Sublessor under this Sublease shall bear interest from the date due until paid
at the lesser of (i) the maximum, nonusurious rate permitted by law or (ii)
eighteen percent (18%) per annum, but the payment of such interest shall not
excuse or cure the Event of Default.
22. Severability. In the event that any one or more of the provisions
------------
contained in this Sublease shall be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof; and this Sublease shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
23. Attorneys' Fees. If any action at law or in equity, including an
---------------
action for declaratory relief, is brought to enforce or interpret the provision
of this Sublease, the prevailing party shall be entitled to recover reasonable
attorneys' fees from the other party.
24. Amendments. This sublease may not be altered, changed or amended,
----------
except by an instrument in writing executed by all parties hereto.
25. NO REPRESENTATIONS OR WARRANTIES. SUBLESSEE HEREBY EXPRESSLY
--------------------------------
ACKNOWLEDGES AND AGREES THAT SUBLESSOR HAS MADE NO REPRESENTATIONS OR WARRANTIES
TO SUBLESSEE AS TO THE USE OR CONDITION OF THE SUBLEASED PREMISES OR THE
BUILDING OR AS TO THE ADEQUACY OF ANY EQUIPMENT (INCLUDING THE HEATING,
VENTILATING OR AIR CONDITIONING EQUIPMENT), EITHER EXPRESS OR IMPLIED, AND
SUBLESSOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT THE SUBLEASED PREMISES
ARE SUITABLE FOR SUBLESSEE'S INTENDED COMMERCIAL PURPOSE OR ANY OTHER IMPLIED
WARRANTY REGARDING THE SUBLEASED PREMISES. IN ADDITION, EXCEPT AS HEREIN
EXPRESSLY PROVIDED, SUBLESSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT SUBLESSEE'S
OBLIGATION TO PAY BASIC RENT OR ANY OTHER SUMS DUE HEREUNDER IS NOT DEPENDENT
UPON THE CONDITION OF THE SUBLEASED PREMISES OR THE PERFORMANCE BY SUBLESSOR OF
ITS DUTIES OR OBLIGATIONS HEREUNDER (OR BY LANDLORD OR ITS DUTIES UNDER THE
LEASE), AND THAT SUBLESSEE WILL CONTINUE TO PAY BASIC RENT AND ALL OTHER SUMS
PROVIDED FOR HEREIN TO BE PAID BY SUBLESSEE WITHOUT ABATEMENT, SETOFF, OR
DEDUCTION, (EXCEPT AS ALLOWED HEREUNDER) NOTWITHSTANDING BREACH BY SUBLESSOR OF
ITS DUTIES OR OBLIGATIONS HEREUNDER (OR BY LANDLORD OF ITS DUTIES UNDER
THE BASE LEASE), EXPRESS OR IMPLIED. SUBLESSOR AND SUBLESSEE EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND ARISING OUT OF
THIS SUBLEASE AND THAT ALL EXPRESS OR IMPLIED WARRANTIES IN CONNECTION HEREWITH
ARE EXPRESSLY DISCLAIMED.
26. Quiet Enjoyment. Provided Sublessee has performed all of the terms,
---------------
covenants, agreements and conditions of this Sublease Agreement, Sublessee shall
peaceably and quietly hold and enjoy the Subleased Premises against Sublessor
and all persons claiming by, through or under Sublessor or Landlord, for the
Term herein described, subject to the provisions and conditions of this Sublease
and of the Base Lease.
27. Entire Agreement. This Sublease constitutes the entire agreement
----------------
between Sublessee and Sublessor and supersedes all prior agreements (whether
written or otherwise) which may exist between the parties with regard to the
lease and use of the Subleased Premises by Sublessee.
28. Brokers. Sublessee acknowledges that Xxxxxx Xxxxx & X'Xxxxxx and CB
-------
Xxxxxxx Xxxxx, Whittier Partners are the brokers on this transaction (the
"Brokers"). Additionally, Sublessee and Sublessor each warrant and represent to
the other that it has not dealt with any real estate brokers and/or salesman in
connection with the negotiation or execution of this Sublease other than Brokers
and no such broker or salesman has been involved in connection with this
Sublease. Brokers are being compensated pursuant to a separate agreement with
Sublessor. Sublessee and Sublessor each agree to defend, indemnify and hold
harmless the other from and against any and all costs, expenses, attorneys' fees
or liability for any compensation, commission and charges claimed by any real
estate broker and/or salesman (other than Brokers), arising out of its breach of
the foregoing representation and warranty.
29. Sublessor's Representations and Warranties. Sublessor warrants and
------------------------------------------
represents that:
(i) the copy of the Base Lease attached to this Sublease as Exhibit
A is a complete and accurate copy of the Base Lease, which is in effect and
has not been amended except as set forth in Exhibit A;
(ii) To the best of Sublessor's knowledge, Lessor is not in material
default under the Base Lease, nor has any event occurred which, after any
applicable notice and/or the expiration of any grace period, shall
constitute a material default by Lessor under the Base Lease;
(iii) Sublessor is not in default under the Base Lease, nor has any
event occurred which, after any applicable notice and/or the expiration of
any grace period, shall constitute a material default by Sublessor under
the Base Lease; and
(iv) Sublessor shall not agree to any amendment or voluntary
termination of the Base Lease without the prior written consent of
Sublessee which may be withheld in its sole discretion, and in the event of
a termination of the Base Lease due to a default of Sublessor, as tenant
thereunder, shall hold harmless, defend and indemnify Sublessee from all
loss, costs, damages and liabilities to Sublessee arising out of the
termination of the Base Lease and the corresponding termination of this
Sublease;
(v) All rent, additional rent and other charges due under the Base
Lease have been paid as billed or required in the normal course through
March 31, 1999.
The provisions of this Section 29 shall survive the expiration or earlier
termination of this Sublease.
30. Consent of Landlord. This Sublease shall be effective only upon
--------------------
Landlord's consent hereto evidenced by a separate document executed by Landlord.
31. Insurance. Sublessee agrees to maintain insurance throughout the Term
---------
as required under Section 11.b and 11.c of the Base Lease.
EXECUTED in multiple counterparts, each of which shall have the force and
effect of an original, as of this 26th day of March, 1999.
SUBLESSOR: SUBLESSEE:
PREVISION MARKETING, INC., MOTHER XXXXXX.XXX, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxxx Xxxxxx
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
BASE LEASE
LEASE
-----
ONE CONCORD FARMS
000 XXXXXXXX XXXX, XXXXXXX, XX
Tenant: PreVision Marketing, Inc.
TABLE OF CONTENTS
-----------------
1. LEASE OF PREMISES.......................................... 1
2. DEMISE OF PREMISES......................................... 1
3. TERM....................................................... 2
4. RENT....................................................... 4
5. TIME AND PLACE OF PAYMENTS/LATE FEE/SECURITY DEPOSIT....... 5
6. TENANT'S SHARE OF OPERATING EXPENSES; UTILITY OBLIGATIONS.. 6
7. SERVICES................................................... 9
8. QUIET ENJOYMENT............................................ 13
9. CONDITION/PREPARATION OF PREMISES/ALTERATIONS.............. 13
10. MAINTENANCE AND REPAIRS.................................... 17
11. INSURANCE.................................................. 17
12. FIRE AND CASUALTY DAMAGE................................... 18
13. EMINENT DOMAIN............................................. 19
14. SIGNS...................................................... 20
15. ACCESS..................................................... 21
16. SUBLEASE AND ASSIGNMENT.................................... 21
17. [INTENTIONALLY DELETED].................................... 22
18. SUBORDINATION.............................................. 22
19. TENANT'S COVENANTS......................................... 23
20. TENANT'S DEFAULTS.......................................... 25
-i-
21. RIGHTS OF LANDLORD UPON TENANT'S DEFAULT................... 26
22. RECORDING.................................................. 28
23. LIABILITY.................................................. 28
24. FORCE MAJEURE.............................................. 29
25. MECHANICS' LIENS........................................... 29
26. WAIVER; ACCORD AND SATISFACTION............................ 29
27. DEFINITIONS................................................ 29
28. SEPARABILITY CLAUSE........................................ 29
29. EXECUTION.................................................. 30
30. NOTICES.................................................... 30
31. BROKER'S INDEMNITY......................................... 30
32. HOLDING OVER............................................... 30
33. LANDLORD'S MORTGAGES....................................... 30
EXHIBITS:
Exhibit A - Plan of Premises
---------
Exhibit B - Plan of Expansion Premises
---------
Exhibit C-1 - Preliminary Plans of Third Floor Improvements
-----------
Exhibit C-2 - Preliminary Plans of Second Floor Improvements
-----------
Exhibit C-3 - Narrative Summary of Leasehold Improvements
-----------
Exhibit D - Landlord's Building Standards
---------
Exhibit E - Landlord's Building Plans
---------
Exhibit F - Rules and Regulations
---------
-ii-
LEASE
-----
This lease (the "Lease") entered into by and between:
NEW ENGLAND FARMS LIMITED PARTNERSHIP, a Massachusetts limited partnership
("Landlord"),
and
PREVISION MARKETING, INC., a Delaware corporation ("Tenant").
1. LEASE OF PREMISES
In consideration of the rents and covenants contained herein to be paid,
performed and observed by Tenant, the Landlord hereby leases to the Tenant and
the Tenant hereby leases from the Landlord, subject to the terms and conditions
hereinafter set forth, the Premises (as defined in Section 2 below).
2. DEMISE OF PREMISES
2.a. Premises. The premises demised hereby (the "Premises") are located in
--------
the building known as One Concord Farms, located at 000 Xxxxxxxx Xxxx in
Concord, Massachusetts (the "Building"). The Building together with the land
upon which it is located are referred to as "Landlord's Property". The Premises
consist of certain rentable space in the Building designated as Suites 30, 31
and 32 on the Third Floor (Suites 30 and 31 also include mezzanine space) the
"Third Floor Premises"), and as Suites 20, 21 and 22 on the Second Floor (the
"Second Floor Premises"), which spaces are shown on Exhibit A, attached hereto.
---------
The Third Floor Premises and the Second Floor Premises together constitute the
Premises.
Notwithstanding the foregoing, from the Term Commencement Date (as defined in
Section 3) until the Second Floor Completion Date (as defined in Section 9),
Tenant may only use and occupy the Third Floor Premises; and Tenant may not use
or occupy any portion of the Second Floor Premises until after the Second Floor
Completion Date.
2.b. Exceptions and Reservations. Excepted and reserved to the Landlord,
---------------------------
however, from the Premises, is the space in utility closets, pipes, ducts,
shafts, conduits, chases and cable runs necessary to install, maintain and
operate, by means of pipes, ducts, wires or otherwise those utilities and
services required for the Building and common facilities thereof (including the
Premises), and the right of access and entry to the Premises by the Landlord and
its agents for the purpose of making repairs, alterations and additions to the
Premises and to the Building and other tenant space therein. Landlord agrees to
perform such installation, maintenance and repair so as to minimize interference
with Tenant's use and occupancy of the Premises.
2.c. Expansion Rights. Landlord agrees that if, during the original Term,
----------------
Suits 10, 11 or 12, on the First Floor of the Building, which spaces are shown
on Exhibit B, attached hereto (the "Expansion Premises"), shall become available
---------
for rent, prior to marketing the Expansion Premises to the general public,
Landlord shall notify Tenant of the availability of the Expansion Space, and for
a period of 30 days following such notice, Tenant shall have the exclusive right
to
-1-
negotiate with Landlord regarding the leasing of such space; and Landlord
agrees, if Tenant informs Landlord that it is interested in leasing the
Expansion Space, to negotiate in good faith with Tenant regarding the terms of
such a lease. After the expiration of said 30-day period, the rights of Tenant
under this Subsection shall expire and be of no further force and effect. the
foregoing right shall not be applicable to the initial leasing of the Expansion
Premises.
3. TERM
3.a. Term. Subject to the conditions herein stated, the Tenant shall hold
----
the Premises for a term of 5 years (the "Term" or the "original Term")
commencing on the Third Floor Completion Date (the "Term Commencement Date"),
and terminating on the last day of the calendar month in which the fifth
anniversary of the Term Commencement Date occurs. Landlord and Tenant agree to
execute a written confirmation of the Term Commencement Date, once it is
established.
As used herein, the term "lease year" shall mean each successive 12-month period
included in whole or in part in the Term, the first lease year beginning on the
Term Commencement Date and ending on the last day of the calendar month in which
the first anniversary of the Term Commencement Date, once it is established.
As used herein, the term "lease year" shall mean each successive 12-month period
included in whole or in part in the Term, the first lease year beginning on the
Term Commencement Date and ending on the last day of the calendar month in which
the first anniversary of the Term Commencement Date occurs.
3.b. Option to Extend the Term.
-------------------------
(1) Option. The Tenant shall, subject to the provisions of this
------
Section, have the option to extend the Term of this Lease for either (a) two (2)
additional 3-year terms (the "3-Year Extensions") or (b) one (1) additional 5-
year term (the "5-Year Extension"). The option to extend (and the further option
to extend, if Tenant exercises the 3-Year Extensions) shall be conditioned on:
(i) Tenant not having sublet more than 50% of the Premises or assigned this
Lease to any party, and (ii) Tenant providing Landlord with written notice of
such election to extend the Term, at least 9 months (but not more than 12
months) prior to the expiration of the Term or the extension term then in
effect. At the time of the exercise of the option to extend, and as a condition
of the validity off such exercise, Tenant shall irrevocably select either the 3-
Year Extensions or the 5-Year Extension. If Tenant shall be in default under the
terms of this Lease beyond all applicable notice and cure periods (whether or
not the same is subsequently cured) at the time of the exercise of such option
or at any time thereafter until the expiration of the original Term or the then
current extension term, as applicable, Tenant's options to extend the Term
hereunder shall automatically become null and void and of no further force and
effect.
In the event that Tenant shall exercise this 3-Year Extensions, each such
extension shall be on the same terms and conditions as set forth in this Lease,
except: (i) after the second of the 3-Year Extensions is exercised, there shall
be no further right to extend the Term of this Lease; and (ii) the annual Fixed
Rent during each of the extension terms shall be as follows:
-2-
The annual Fixed Rent due hereunder during the first 3-year extension
term and during the second 3-year extension term shall equal the
greater of (i) the annual Fixed Rent payable during the last lease
year of the original Term, or the last lease year of the first
extension term, including any prior CPI Increase (as defined in
Section 4 below), or (ii) the fair market rental value of the
Premises.
In the event that Tenant shall exercise the 5-Year Extension, such extension
shall be on the same terms and conditions as set forth in this Lease, except:
(i) there shall be no further right to extend the Term of this Lease; and (ii)
the annual Fixed Rent during the extension term shall be as follows:
The annual Fixed Rent due hereunder during the 5-year extension term
shall equal the greater of (i) the annual Fixed Rent payable during
the last lease year of the original Term, including any prior CPI
Increase, or (ii) the fair market rental value of the Premises.
During the extension terms, Tenant shall continue to pay all additional rent and
other charges as provided hereunder, including without limitation Tenant's share
of the Operating Expenses (as provided in Section 6). The CPI Increase shall be
fully applicable to the annual Fixed Rent during the extension terms, to the
extent provided in Section 4 below.
Should Tenant extend the Term as provided herein, the term "Term", as used
herein shall refer to the original Term together with the extension term or
terms.
If the Fixed Rent to be paid during any extension term has not been fully
determined as of the first day of the extension term, Tenant shall make payments
of Fixed Rent hereunder in the amount of 115% of the annual Fixed Rent payable
during the last lease year period to such extension term, including any CPI
Increase, if applicable; and upon such Fixed Rent amount being determined, an
appropriate retroactive Fixed Rent adjustment payment or credit shall be made,
if necessary.
(2) Determination of Rent. The fair market rental value of the
---------------------
Premises shall be initially established by Landlord by written notice to the
Tenant within 30 days after Landlord's receipt of Tenant's notice exercising the
applicable extension option. Such determination shall be deemed the fair market
rental value hereunder unless Tenant objects in writing within 7 days of
receiving such notice. If Tenant does so object, and the parties are unable to
agree on such value within 30 days, the fair market rental value shall be
determined by arbitration as follows: Landlord and Tenant shall each promptly
designate a fit and impartial person knowledgeable in the field of real estate
as arbitrator and the two arbitrators so designated shall designate a third
arbitrator with similar qualifications. The three arbitrators, so designated,
shall make a determination of the fair market rental value of the Premises in
accordance with generally accepted real estate appraisal practice. Their
determination shall be conclusive, final and binding on the parties and
enforceable in any court having jurisdiction over the parties, and the costs of
the arbitration shall be shared equally by the parties.
-3-
4. RENT
4.a. Fixed Rent. The annual fixed rent ("Fixed Rent") payable by the
----------
Tenant to the Landlord shall be payable as follows (subject to increases
pursuant to the last paragraph of this Section):
--------------------------------------------------------------------------------------
Premises Annual Fixed Rent Monthly Installments
-------- ----------------- --------------------
--------------------------------------------------------------------------------------
Third Floor Premises $102,846 $ 8,570.50
--------------------------------------------------------------------------------------
Second Floor Premises $ 54,839 $ 4,569.92
-------- ----------
--------------------------------------------------------------------------------------
TOTAL: $157,685 $13,140.42
--------------------------------------------------------------------------------------
All Fixed Rent shall be payable in monthly installments due on the first day of
every month during the Term. All rent payments are due in advance without
notice, demand, deduction or set-off (except only as expressly provided
otherwise herein). The obligation to pay the Fixed Rent shall commence on the
Term Commencement Date. Fixed Rent for the first month of the Term, together
with the installment payment on account of Tenant's share of the Operating
Expenses for such month, as provided in Section 6 below, shall be payable at the
time of the execution of this Lease. If the first lease year is longer than one
12-month calendar year, the annual Fixed Rent for such lease year shall be
increased proportionately to the greater length of such lease year.
Notwithstanding the foregoing, from the Term Commencement Date until the Second
Floor Commencement Date (as defined in Section 9 below), the Fixed Rent
hereunder shall be payable in the amount of $8,570.50 per month.
In order to reflect increases in the cost of living over the Term of this Lease
(as it may be extended), the Fixed Rent to be paid by Tenant hereunder (as set
forth above) shall be increased every three years during the Term (and any
extensions thereof), on a cumulative basis, commencing on the third anniversary
of the Term Commencement Date, by a percentage equal to 1/2 of the percentage
increase in the Consumer Price Index during the same three-year period (the "CPI
Increase"). The CPI Increase shall be determined by utilizing the Consumer
Price Index for all Urban Consumers (CPI-U): Boston, Massachusetts Area, All
Items (1982-84=100), as published by the Bureau of Labor Statistics, Department
of Labor, based on the index published next prior to the date of the last CPI
Increase (or the Term Commencement Date, if it is the first increase) and the
index published next prior to the effective date of the increase, provided that
the CPI Increase hereunder shall never be less than $0. If such index shall be
altered or updated or discontinued, the landlord shall appropriately adjust the
index to used hereunder or designate a comparable index. Notwithstanding the
foregoing, (i) if Tenant exercises the 3-Year Extensions (as provided in Section
3.b. above), there shall be no CPI Increase during said extension terms, and
(ii) if Tenant exercises the 5-Year Extension (as provided in Section 3.b.
above), the CPI Increase during the extension term shall occur on the
-4-
third anniversary of the commencement date of the 5-Year Extension, and shall
relate to the three-year period commencing on the commencement date of the 5-
Year Extension.
4.b. Additional Rent. Tenant shall also pay, in addition to the Fixed Rent,
---------------
as additional rent hereunder, without notice, abatement, deduction or set-off
(except as expressly provided otherwise herein), all sums, impositions, costs,
expenses and other payments which Tenant in any of the provisions of this Lease
assumes or agrees to pay (including without limitation, Tenant's share of the
Operating Expenses as provided in Section 6 below), and, in case of any
nonpayment thereof, Landlord shall have all of the rights and remedies provided
by law or provided for in the Lease for the nonpayment of Fixed Rent.
5. TIME AND PLACE OF PAYMENTS/LATE FEE/SECURITY DEPOSIT
5.a. Payment of Rent. All payments of rent and other amounts due hereunder
---------------
shall be made by the Tenant to the Landlord without notice or demand at such
place as the Landlord may from time to time designate in writing. The extension
of time for the payment of any amount due hereunder, or the acceptance thereof
after the time at which it is payable shall not be a waiver of the rights of the
Landlord to insist on having all other payments made in the manner at the times
herein specified.
5.b. Late Fee. In the event any Fixed Rent, additional rent or any other
--------
payments are not paid within 10 days of the due date thereof, Tenant shall be
charged a late fee of $150.00 for each late payment for each month or portion
thereof that said payment remains outstanding. Said late fee shall be payable
in addition to and not in exclusion of additional remedies herein provided to
Landlord.
5.c. Security Deposit. Simultaneously with the execution of this Lease,
----------------
Tenant shall deliver to Landlord the sum of $19,387.50 (the "Security Deposit"),
as security for the payment of the rents and the performance and observance of
the agreements and conditions in this Lease contained on the part of the Tenant
to be performed and observed.
In the event of any default or defaults in such payment, performance or
observance, Landlord may apply the Security Deposit or any part thereof toward
the curing of any such default or defaults and/or toward compensating Landlord
for any loss or damage arising from any such defaults or defaults, including any
damages or deficiencies in the reletting of the Premises, whether such damage or
deficiency occurs before or after a repossession proceeding or other reentry by
Landlord. Tenant shall not be entitled to any interest on the Security Deposit.
It is understood and agreed that Landlord shall always have the right to apply
the Security Deposit, or any part thereof, as aforesaid in the event of any such
default or defaults, without prejudice to any other remedy or remedies which
Landlord may have or Landlord may pursue any other such remedy or remedies in
lieu of applying the Security Deposit or any part thereof. If Landlord shall
apply the Security Deposit or any part thereof as aforesaid, Tenant shall upon
demand pay to Landlord the amount so applied by Landlord, to restore the
Security Deposit to its original amount. Upon yielding up of the Premises at
the expiration or other termination of the Term, if Tenant shall not then be in
default or otherwise liable to Landlord, the security Deposit or the unapplied
balance thereof shall be returned to Tenant. Whenever the holder of Landlord's
interest in this Lease shall transfer its interest in this Lease, said holder
shall turn over to its
-5-
transferee the Security Deposit or the unapplied balance thereof, and thereafter
such holder shall be released from any and all liability to Tenant with respect
to the security Deposit or its application or return. The holder of any mortgage
upon Landlord's Property shall never be responsible to Tenant for the Security
Deposit or its application or return unless the Security Deposit shall actually
have been received by such holder.
Notwithstanding anything to the contrary contained herein, if Tenant shall
fully, promptly and punctually perform all of its obligations under this Lease
during the original Term and shall exercise the option to extend the Term, as
provided in Section 3.b., Landlord shall promptly return the Security Deposit to
Tenant upon the commencement of such extension term.
6. TENANT'S SHARE OF OPERATING EXPENSES; UTILITY OBLIGATIONS
6.a. Tenant's Operating Expense Obligation. Tenant shall pay to the
-------------------------------------
Landlord, as additional rent hereunder, the greater of (i) 57.67% of the
Landlord's Operating Expenses (as defined below), for each operating year, or
(ii) Landlord's Operating Expenses Base (as defined below). Should Landlord make
additions to the Building during the Term, Tenant's percentage share of the
Operating Expenses shall be appropriately adjusted by Landlord. In addition,
Tenant shall also pay to Landlord 100% of any Operating Expenses which are
incurred by Landlord and either are caused solely by any default or any
negligent act or omission by the Tenant or its employees, agents, contractors or
invitees, are due to services performed as special services exclusively for the
Tenant which services are not provided generally to other tenants of the
Building, or are otherwise directly allocable to the Premises pursuant to the
terms hereof.
The term "Landlord's Operating Expenses Base" shall mean the following:
------------------------------------------------------------------------------------------
Landlord's Operating
Premises Expenses Base Monthly Installments
-------- ------------- --------------------
------------------------------------------------------------------------------------------
Third Floor Premises $48,894 $4,074.50
Second Floor Premises $26,071 $2,172.58
------- ---------
TOTAL: $74,965 $6,247.08
------------------------------------------------------------------------------------------
If the first lease year is longer than one 12-month calendar year, the
Landlord's Operating Expenses Base for the first lease year shall be increased
proportionately to the greater length of such lease year.
Notwithstanding the foregoing (except for Tenant's obligation to pay 100% of
certain Operating Expenses, as provided in the last sentence of the first
paragraph of this Section, which shall be unaffected):
(1) If, with respect to any lease year, Tenant's percentage share of
Landlord's Operating Expenses shall be less than Landlord's
Operating Expenses Base, Tenant's additional rent obligation on
account of Landlord's Operating Expenses, as determined
hereunder, shall be reduced by an amount equal to 75% of such
difference.
-6-
(2) For the first lease year of the Term, Tenant's additional rent
obligation on account of Landlord's Operating Expenses shall not
exceed Landlord's Operating Expense Base.
(3) From the date that Tenant gives the Notice to Proceed (as defined
in Section 9) until the Second Floor Commencement Date (as
defined in Section 9), the additional rent due hereunder on
account of Landlord's Operating Expenses shall be in the amount
of $4,075 per month.
For the purpose of this Lease the term "Operating Expenses" shall mean those
costs incurred by Landlord with respect to the operating, administration,
cleaning, repair, management and maintenance of Landlord's Property (including
both the Building and the land on which the Building is located and specifically
including the Landlord's Property's share of certain common costs and expenses
of the Concord Farms office park, including all costs relating to the Health
Club), including but not limited to the following: Salaries, wages, medical,
surgical and general welfare benefits (including group life insurance), pension
payments, payroll taxes and workmen's compensation insurance of employees of
Landlord engaged in the operation and maintenance of Landlord's Property, such
expenses shall be reasonably allocated and apportioned to Landlord's Property);
electricity, air conditioning, steam, gas, heating fuel and utility charges and
taxes; real estate taxes and assessments of every kind and nature imposed,
assessed or levied by a governmental authority on Landlord's Property, including
without limitation all taxes, betterments, and assessments (ordinary and
extraordinary), and all installments thereof (provided, with respect to any
betterment assessments which may be paid in installments, same, together with
any interest or other charges associated with the payment in installments, shall
be deemed paid over the longest period permitted and included only to the extent
of installments payable during the Term); water and sewer rents, taxes and
charges; casualty, liability and other insurance premiums (or the portions
thereof applicable to the Building or Landlord's Property); repairs and
maintenance, rubbish removal, window cleaning (interior and exterior), snow
removal and care of landscaping; costs and expenses of inspection, use and
maintenance of machinery and equipment used in connection with the operation
and maintenance of Landlord's Property; costs of heating both rentable spaces
of the Building and the common areas of the Building; costs of providing
cleaning services for the common facilities and for tenants of the Building;
building and cleaning supplies, uniforms and dry cleaning, accounting and legal
fees and charges related to the operation and administration of Landlord's
Property (exclusive of any fees and disbursements incurred in the preparation of
leases or in disputes with other tenants of the Building); management fees of 4%
of the aggregate of all rent and other revenue (including without limitation all
Fixed Rent, additional rent and other amounts received from operations at
Landlord's Property); service contracts with independent contractors; telephone,
telegraph and stationery; and all other expenses paid in connection with the
operation of Landlord's Property which are properly chargeable against income.
Operating Expenses shall not include: (i) franchise, estate, inheritance,
succession, capital levy, income or excess profit taxes assessed against the net
income of Landlord; (ii) costs incurred in performing work or furnishing
services for individual tenants which work or services are substantially in
excess of the work or services required to be provided to Tenant; (iii)
depreciation of the Building or any other improvements on Landlord's Property;
(iv) interest or any increase in the rate of interest payable by Landlord with
respect to any debts secured by a mortgage on the Building and/or Landlord's
Property; (v) leasing or brokerage commissions; (vi) costs incurred for which
-7-
Landlord to the extent reimbursed by tenants of the Building (including Tenant)
or by third parties (including insurers); (vii) expenses for repair or
replacement to the extent paid by proceeds of condemnation awards or property
insurance policies; (viii)charitable or political contributions; (ix)
improvements to the Building or Landlord's Property which are capitalized; (x)
the costs of services provided by entities affiliated with Landlord, but only to
the extent such contracts provide for excessive fees when compared to those then
charged for similar services by third-party vendors, and (xi) home office
expenses which relate to matters other than the maintenance and operation of
Landlord's Property.
6.b. Payment of Share of Operating Expenses. For the first lease year,
--------------------------------------
Tenant shall pay such additional rent for its share of the Operating Expenses in
monthly installments equal to the monthly installment of Landlord's Operating
Expenses Base ($6,247.08 per month), except as provided in the clause (3) of the
fourth paragraph of Section 6.a. Following the first lease year, Tenant shall
pay such additional rent in estimated monthly installments, as determined by the
Landlord from time to time, as provided below. Such monthly installment
payments from Tenant to Landlord for Operating Expenses shall begin as of the
Term Commencement Date and shall be due on the Term Commencement Date and on the
first day of each month thereafter during the Term, such payments to be made
together with the payments of Fixed Rent hereunder.
At the beginning of each operating year, Landlord shall determine the estimated
monthly installment payments for the operating year, which amount shall remain
in effect until the last day of that operating year, unless further adjusted by
Landlord from time to time. Such estimated monthly amount shall never be less
than the monthly installment of the Landlord's Operating Expenses Bases.
After the end of each operating year, Landlord shall provide Tenant with a
statement setting forth in reasonable detail the actual Operating Expenses for
that operating year, Tenant's share thereof, and any additional rent owed by
Tenant or overpayment by Tenant with respect to that operating year. Within 30
days thereafter, Tenant shall pay Landlord any balance due. If Tenant overpaid
the additional rent for such operating year, such overpayment shall be credited
to the next installment of rent due hereunder, or promptly shall be paid to
Tenant if the Term hereof shall have expired.
The term "operating year" shall mean a period of 12 months as designated from
time to time by the Landlord, the operating year currently being the fiscal year
beginning July 1 and ending June 30. If the Term shall contain only a partial
operating year, at the beginning or end of the Term, the Landlord's Operating
Expenses for such operating year shall be pro rated.
Tenant's obligation to pay additional rent under this Section shall survive the
expiration or early termination of the Term.
6.c. Tenant's Utility Obligations. The Tenant shall promptly pay for all
----------------------------
utilities furnished to the Premises which are separately metered or measured.
Operating Expenses do not include utilities supplied to tenants of the Building
that are separately billed to the tenants receiving the same. Operating
Expenses do include all utilities furnished to the Premises and to all other
tenants of the Building which are not separately metered or measured. If any
utility is furnished to the Premises and to other tenants, but not all other
tenants, of Building, and such
-8-
utilities are not separately metered or measured, Tenant shall pay, as
additional rent hereunder, upon demand, its pro rata share of such utility
charges based upon the aggregate rentable square footage of all the premises
receiving such utility service.
6.d. Tenant's Audit Rights. Landlord shall permit Tenant, at Tenant's
---------------------
expense and during normal business hours but only one time with respect to any
operating year, to review Landlord's invoices and statements relating to
Operating Expenses for the applicable operating year for the purpose of
verifying the statement which Landlord is required to deliver to Tenant
hereunder, provided that notice of Tenant's desire to so review is given to
Landlord not later than three months after Tenant receives such statement from
Landlord, and provided that such review is thereafter commenced and prosecuted
by Tenant with due diligence. Any such accounting by Landlord shall be binding
and conclusive upon Tenant unless (i) Tenant duly requests such audit within
such three month period, and (ii) within three months after such audit request,
Tenant shall notify Landlord in writing that Tenant disputes the correctness of
such statement, specifying the particular respects in which the statement is
claimed to be incorrect. If such dispute has not been settled by agreement
within two months thereafter, either party may submit the dispute to arbitration
in accordance with the commercial arbitration rules of the American Arbitration
Association with 30 days after the expiration of the aforementioned two month
period. The decision of the arbitrators shall be final and binding on Landlord
and Tenant and judgment thereon may be entered in any court of competent
jurisdiction. If Tenant's audit shows a discrepancy of more than five percent
(5%) between Landlord's accounting of the Operating Expenses and the actual
Operating Expenses for the applicable period, Landlord shall pay the cost of
such audit.
7. SERVICES
7.a. Electric Current. With respect to electrical service, it is agreed as
----------------
follows:
(1) The Premises will contain separate electric meters for measuring
electricity furnished to the Premises. Tenant shall contract with the company
supplying electrical current for the purchase and obtaining of electrical
current directly from such company, which shall be billed directly to and paid
for by Tenant. This shall include all current used in the Premises, including
but not limited to all electricity used for heating, air conditioning and
ventilation, lighting, equipment and machines.
Notwithstanding the foregoing, and so long as electricity is consumed at the
Premises solely for lights, convenience receptacles and air conditioning in
connection with ordinary office use, if the charges for electrical service to
the Premises exceed $15,510 during the first lease year, Landlord agrees to
reimburse Tenant for the amount of such excess. Tenant shall provide Landlord
with copies of paid bills evidencing such electrical charges and such excess
amount shall be credited to the next installment of rent due hereunder. The
foregoing shall apply only to electrical charges for the first lease year.
(2) If tenant shall require electrical current for use in the Premises
in excess of the capacities provided after the completion of the Leasehold
Improvements, and if in Landlord's reasonable judgment, Landlord's facilities
are inadequate for such excess requirements or such excess requirements will
result in an additional burden on the Building systems and additional
-9-
costs to Landlord on account thereof, then Landlord shall upon written request
and at the sole cost and expense of Tenant, furnish and install such additional
wires, conduits, feeders, switchboards and appurtenances as reasonably may be
required to supply such additional requirements of Tenant, provided current
therefor is available to Landlord, and provided further that the same shall be
permitted by applicable laws and insurance regulations and shall not cause
permanent damage to the Building or the Premises, cause or create a dangerous or
hazardous condition, entail excessive or unreasonable alterations or repairs, or
interfere with or disturb other tenants or occupants of the Building. Tenant
shall reimburse Landlord on demand for all costs incurred by Landlord on account
thereof.
(3) Tenant shall be responsible, at Tenant's expense, for keeping all
light fixtures properly lamped at all times and for purchasing and installing
all lamps and replacement lamps (including without limitation both incandescent
and fluorescent) used in the Premises.
(4) Landlord shall not in any way be liable or responsible to Tenant
for any loss, damage or expense which Tenant may sustain or incur if the
quantity, character or supply of electrical energy is changed or is no longer
available or suitable for Tenant's requirements, except as expressly provided
otherwise herein.
(5) Tenant agrees that it shall not make any material alteration or
material addition to the electrical equipment or appliances in the Premises
without obtaining the prior written consent of Landlord in each instance, which
consent will not be unreasonably withheld, conditioned or delayed, and Tenant
shall promptly advise Landlord of any other alteration or addition to such
electrical equipment appliances.
7.b. Water. Landlord shall furnish hot and cold water to common area
-----
restrooms for ordinary office-type cleaning, toilet, lavatory and drinking
purposes, and, if the Premises contains any lavatories or other similar
facilities with utilize water for such purposes, Landlord shall also furnish hot
and cold water to such lavatories and facilities for such purposes. If Tenant
requires, uses or consumes water for any purpose other than for the
aforementioned purposes or otherwise in excessive quantities, Landlord may (i)
assess a reasonable charge for the additional water used or consumed by Tenant,
or (ii) install a water meter and thereby measure Tenant's water consumption for
all purposes. In the latter event, Landlord shall pay the cost of the meter and
the cost of installation thereof and shall keep said meter and installation
equipment in good working order and repair. Tenant agrees to pay for water
consumed, as shown on said meter, together with the sewer use charge based on
said meter charges as and when bills are rendered. On default in making such
payment, Landlord may pay such charges and collect the same from Tenant as
additional rent hereunder. Any piping and other equipment and facilities
installed by, or for, Tenant (including the Leasehold Improvements) for use of
water within the Premises (if any) will be maintained by Tenant at Tenant's sole
cost and expense.
7.c. Heat. Landlord shall furnish heat to the Premises and to the Common
----
Areas of the Building during the normal heating season. The heat for the
Premises is separately controlled from within the Premises. Tenant covenants
and agrees to keep the Premises heated to no more than usual and customary
levels for office occupancy during Business Hours, to keep the Premises heated
to minimum levels to protect the Premises and building systems during all hours
when the Premises are not occupied, to keep all windows shut while the Premises
are being
-10-
supplied with heat, and to otherwise cooperate with Landlord in reducing the
costs of heating the Premises and the Building.
The costs of all heat furnished to the Premises (and to other rentable areas of
the Building) and the Building shall be included as part of the Operating
Expenses.
7.d. Elevators. Landlord shall provide elevator facilities (which may be
---------
manually or automatically operated, either or both, as Landlord may from time to
time elect) for the Building, and shall maintain (subject to the provisions of
Section 7.e. and Section 24 hereof) at least one elevator in operation at all
times for Tenant's use, non-exclusively, together with others having business in
the Building; Landlord shall equip any elevator serving the Third Floor Premises
with a security device which Tenant may utilize to prevent other tenants or
occupants of the Building or their invitees from accessing the Third Floor
Premises.
7.e. Interruption or Curtailment of Services. Landlord reserves the right
---------------------------------------
to interrupt, curtail, stop or suspend the furnishing of services (including the
elevator) and the operation of the plumbing, mechanical, heating and electric
systems whenever necessary for repairs, alterations, replacements or
improvements desirable or necessary to be made in the reasonable judgment of
Landlord or whenever necessary due to accident or emergency, difficulty or
inability in securing supplies or labor strikes, or any other cause beyond the
reasonable control of Landlord, whether such other cause be similar or
dissimilar to those hereinabove specifically mentioned, until said cause has
been removed. Except when caused by the gross negligence of Landlord, there
shall be no diminution or abatement of rent or other compensation due from
Tenant to Landlord hereunder, nor shall this Lease be affected or any of
Tenant's obligations hereunder reduced, and Landlord shall have no
responsibility or liability for any such interruption, curtailment, stoppage or
suspension of services or systems, except that Landlord shall exercise all due
diligence to eliminate the cause of same. Landlord agrees to provide reasonable
prior written notice of any scheduled interruption, curtailment, stoppage or
suspension, and in the case of an emergency or unscheduled interruption, to
provide notice as is reasonable under the circumstances (including oral or
telephonic notice). Landlord shall use diligent efforts to minimize the
duration of any interruption of services, and where reasonably practicable,
attempt to schedule work causing such interruption after Business Hours.
Notwithstanding the foregoing, if due to events arising or causes originating
solely within the Building or only affecting the Building and no other
buildings, and if not due to the default or the acts or negligence of the Tenant
or any of Tenant's employees, agents, contractors or invitees, (i) the Premises
lack sufficient heat, water, electricity or access, and (ii) not less than one
entire floor of the Premises shall be rendered unusable for the Permitted Uses
as a result thereof, and (iii) such untenantability continues for 5 consecutive
business days after Tenant provides Landlord with written notice of same, the
ratable portion of Fixed Rent and additional rent on account of Operating
Expenses shall be abated for such portion of the Premises rendered untenantable
thereby, commencing on the day immediately succeeding the expiration of such 5
business day period and ending on the date that the Premises (or such portion)
are rendered tenantable. If the conditions set forth in clauses (i), (ii) and
(iii) of the immediately preceding sentence shall continue for a period in
excess of 30 consecutive days, Tenant shall have the right to terminate this
Lease by giving written notice thereof to Landlord, and this Lease shall
terminate 7 days after the date of receipt of said notice as if such date were
the expiration date of
-11-
this Lease; provided, however, if the Premises (or such portion thereof) shall
be rendered tenantable prior to the expiration of such 7 day period, such notice
of termination shall be null and void and of no further force and effect.
7.f. Energy Conservation. Notwithstanding anything to the contrary
-------------------
contained in this Lease, Landlord may institute such reasonable policies,
programs or measures as may be necessary, required or expedient for the
conservation and/or preservation of energy or energy services, provided either
the majority of similar buildings in the area in which the Building is located
are subject to similar policies, programs or measures, or such are necessary or
required to comply with applicable governmental codes, rules, regulations or
standards.
7.g. Health Club. Landlord has made arrangements for an unattended fitness
-----------
and recreational facility (the "Health Club") to be operated at the Building.
The Health Club will be available during the Term for the non-exclusive use of
Tenant and Tenant's employees during its hours of operation, which are currently
6:00 AM to 9:00 PM Monday through Friday. Such use shall be subject to the rules
and regulations established from time to time by the Health Club, and any use of
the Health Club and its facilities shall be in accordance with the rules and
regulations. There shall be no charge imposed for the use of the Health Club by
Tenant or Tenant's employees; however, the costs of operation of the Health Club
are included in the Landlord's Operating Expenses.
No person may use the Health Club unless he or she has first (i) signed a copy
of the Health Club's rules and regulations, (ii) signed a copy of the Health
Club's form of release and hold harmless agreement and (iii) received an entry
card from the Landlord. Landlord will issue individual entry cards to Tenant's
employees without charge; however, a charge will be made for the replacement of
lost cards.
It is understood and agreed that all use of the Health Club and its facilities
shall be at the sole risk of Tenant and the employees using same. The Tenant
hereby releases Landlord, and the owner and operator of the Health Club, and
their successors and assigns, from any liability in connection with Tenant's and
Tenant's employees use of the Health Club and its facilities, and indemnifies
and holds the Landlord, and the owner and operator of the Health Club; and their
successors and assigns, jointly and severally harmless from and against any
loss, cost, liability, damage or expense (including attorneys fees) occasioned
by or in any way relating to arising from the use of the Health Club or its
facilities by Tenant or Tenant's employees, or from the use of the Health Club
or its facilities by any unauthorized party allowed to use same by Tenant or any
of its employees. This paragraph shall survive any termination of this Lease.
Landlord reserves the right at any time and from time to time to discontinue the
Health Club or to alter any of the services provided or to relocate the Health
Club within the Concord Farms office park. Tenant understands that the Health
Club is not owned or operated by Landlord, and that Landlord may, at its
election, operate the Health Club directly or contract with any third party to
operate same.
7.h. Cleaning. Landlord agrees to perform daily cleaning of the Premises
--------
and the common areas serving the Premises on business days and such other
cleaning and janitorial services as are provided by Landlord to other tenants of
the building and/or by landlords of
buildings of similar class and quality as the Building in the Lexington/Concord
area, including, without limitation, periodic interior and exterior window
cleaning and rubbish removal. The cost of such cleaning shall be included in
Operating Expenses.
7.i. Parking. Landlord shall designate with signage 11 parking spaces in
-------
the parking area adjacent to the Building for the exclusive use of Tenant's
employees and visitors. Tenant shall have the right to use all other parking
spaces in the parking lot on Landlord's Property, in common with all others
entitled thereto, not designated for the exclusive use of other tenants in the
Building. Landlord agrees that it shall not designate more than 1 parking space
in such parking area per 1,000 square feet of rentable square footage of any
other Building tenant's premises for such tenant's exclusive use and that
Landlord shall not designate any parking spaces in such parking lot for the
exclusive use of any other tenant of Landlord in the Concord Farms office park.
8. QUIET ENJOYMENT
The Tenant, upon prompt payment of the rent and other amounts herein
reserved, and upon the performance of all of its obligations under this Lease,
shall at all times during the Term and during any extension or renewal thereof,
peaceably and quietly enjoy the Premises without any disturbance from the
Landlord or from any other person claiming through the Landlord, subject,
however, to the rights of holders of senior mortgages and to the terms and
provisions of this Lease.
9. CONDITION/PREPARATION OF PREMISES/ALTERATIONS
9.a. Third Floor Improvements. Landlord has had preliminary plans
------------------------
prepared for the layout of Tenant's leasehold improvements for the Third Floor
Premises, which are to be constructed using, and in accordance with, Landlord's
building standards for tenant improvements, in accordance with the narrative
summary of the improvements and in substantial compliance with all applicable
governmental laws, bylaws, rules, regulations, ordinances and codes (the "Third
Floor Improvements"). The preliminary plans have been approved of by the Tenant
and are attached hereto as Exhibit C-1, the narrative summary of the
-----------
improvements has been approved of by the Tenant and is attached hereto as
Exhibit C-3 and the building standards are attached hereto as Exhibit D
----------- ---------
(together, the "Third Floor Preliminary Plans"). The Third Floor Improvements
shall not include Tenant's furniture, trade fixtures, equipment and personal
property, including without limitation any office systems or bullpen separations
in the cubicle and work area portions of the Third Floor Premises, and the Third
Floor Improvements are limited to the work specifically depicted on the Third
Floor Preliminary Plans.
Landlord shall cause construction plans in sufficient detail to permit
Landlord's contractor to construct the Third Floor Improvements, to be prepared
in substantial conformity with the Third Floor Preliminary Plans, and upon their
completion, shall submit same to Tenant for approval. Tenant shall promptly
review same and advise Landlord in writing within 5 business days as to whether
same are approved of by Tenant, or, if not, specifically detailing the
deficiencies claimed by Tenant; and Tenant's failure to respond within 5
business days shall be deemed Tenant's approval of such plans. Tenant's
approval right shall be limited to confirmation that such plans substantially
conform to the Third Floor Preliminary Plans, and approval (not to be
unreasonably withheld) to any changes or variations from the Third Floor
Preliminary Plans, and such approvals shall be consistent with all previous
approvals given. Such plans, when approved (or deemed approved) of by Tenant,
are referred to as the "Third Floor Plans."
Following Tenant's approval of the Third Floor Plans, Landlord shall proceed
diligently, and at its sole cost and expense, to obtain all necessary permits
and approvals for the construction of the Third Floor Improvements, to engage a
contractor to perform the construction, to cause the contractor to proceed
diligently with the construction of the Third Floor Improvements and to use
reasonable efforts to Substantially Complete the Third Floor Improvements in
substantial conformance with Third Floor Plans by the date 90 days following
Tenant's written approval (or following the date such plans are deemed approved)
of the Third Floor Plans. Landlord shall endeavor to provide Tenant with 30
days advance notification of the date by which it expects the Third Floor
Improvements to be Substantially Completed.
The date that the Third Floor Improvements have been Substantially Completed
shall be the "Third Floor Completion Date."
9.b. Second Floor Improvements. Landlord has had preliminary plans prepared
-------------------------
for the layout of Tenant's leasehold improvements for the Second Floor Premises,
which are to be constructed using, and in accordance with, Landlord's building
standards for tenant improvements, in accordance with the narrative summary of
the improvements and in substantial compliance with all applicable governmental
laws, bylaws, rules, regulations, ordinances and codes (the "Second Floor
Improvements"). The preliminary plans have been approved of by the Tenant and
area attached hereto as Exhibit C-2, the narrative summary of the improvements
-----------
have been approved of by the Tenant and is attached hereto as Exhibit C-3 and
-----------
the building standards are attached hereto as Exhibit D (together, the "Second
---------
Floor Preliminary Plans"). The Second Floor Improvements shall not include
Tenant's furniture, trade fixtures, equipment and personal property, including
without limitation any office systems or bullpen separations in the cubicle and
work area portions of the Second Floor Premises, and the Second Floor
Improvements are limited to the work specifically depicted on the Second Floor
Preliminary Plans.
Prior to the date 90 days after the Third Floor Completion Date, Tenant shall
provide Landlord with a written notice to proceed (the "Notice to Proceed") with
the Second Floor Improvements. Following Landlord's receipt of the Notice to
Proceed, Landlord shall cause construction plans, in sufficient detail to permit
Landlord's contractor to construct the Second Floor Improvements, to be prepared
in substantial conformity with the Second Floor Preliminary Plans, and upon
their completion, shall submit same to Tenant for approval. Tenant shall
promptly review same and advise Landlord in writing within 5 business days as to
whether same are approved of by Tenant, or, if not, specifically detailing the
deficiencies claimed by Tenant; and Tenant's failure to respond within 5
business days shall be deemed Tenant's approval of such plans. Tenant's
approval right shall be limited to confirmation that such plans substantially
conform to the Second Floor Preliminary Plans, and approval (not to be
unreasonably withheld) to any changes or variations from the Second Floor
Preliminary Plans, and such approvals shall be consistent with all previous
approvals given. Such plans, when approved (or deemed approved) of by Tenant,
are referred to as the "Second Floor Plans."
-14-
Following Tenant's approval of the Second Floor Plans, Landlord shall proceed
diligently, and at its sole cost and expense, to obtain all necessary permits
and approvals for the construction of the Second Floor Improvements, to engage a
contractor to perform the construction, to cause the contractor to proceed
diligently with the construction of the Second Floor Improvements and to use
reasonable efforts to Substantially Complete the Second Floor Improvements in
substantial conformance with the Second Floor Plans by the date 90 days
following Tenant's written approval (or following the date such plans are deemed
approved) of the Second Floor Plans.
The date that the Second Floor Improvements have been Substantially Completed
shall be the "Second Floor Completion Date."
The earlier to occur of (i) the Second Floor Completion Date, or (ii) the date
180 days after the Third Floor Completion Date shall be the "Second Floor
Commencement Date." Notwithstanding the foregoing (and notwithstanding Tenant's
obligation to pay rent hereunder with respect thereto), in no event shall Tenant
use or occupy the Second Floor Premises prior to the Second Floor Completion
Date.
9.c. Leasehold Improvements. The following shall be applicable to the Third
----------------------
Floor Improvements and the Second Floor Improvements (together, the "Leasehold
Improvements"):
(1) The term "Substantial Completion" or "Substantially Completed"
shall mean that the work is sufficiently advanced so that Landlord has obtained
a Certificate of Occupancy from the Town of Concord permitting the applicable
portion of the Premises to be occupied (subject to the completion by Tenant of
any of fit-out work which is not Landlord's responsibility hereunder) for the
Permitted Use (as defined in Section 19). Landlord shall complete any
unfinished items as soon as reasonably practicable, Landlord shall take all
reasonable steps necessary to minimize any interference with Tenant's use and
occupancy of the Premises which may result therefrom, and Tenant shall afford
Landlord reasonable access to the Premises for such purposes.
(2) Landlord shall use good faith efforts to accommodate requests by
Tenant for modifications of the approved plans ("Changes"), provided: (i) the
Changes do not modify the scope of the work or any major components thereof;
(ii) the Changes are approved of by Landlord's lender; (iii) any additional cost
(including without limitation, architects and engineering fees and supervision
and management costs charged by Landlord or its affiliates) resulting from the
Changes is paid by Tenant in full prior to Landlord commencing such
construction, and (iv) the Changes, individually or in the aggregate, will not,
in Landlord's opinion, cause any delay in the completion of the work according
to Landlord's then current schedule.
Landlord shall also use good faith efforts to accommodate requests by Tenant for
Changes which do not meet the requirements of clauses (i) or (iv) above,
provided: (a) clauses (ii) and (iii) above shall be fully applicable and (b)
if, in Landlord's opinion, the Changes will cause any delay in the completion of
the work according to Landlord's then current schedule, Tenant shall take such
steps as Landlord may require to ensure that Landlord does not sustain any loss
resulting therefrom, including the commencement of payments of rent hereunder as
of the date work would have been Substantially Completed, in Landlord's opinion,
absent such Changes.
-15-
It is agreed that Changes shall, without limitation, include modifications to
the preliminary plans requested by Tenant, including the use of quantities or
qualities of materials or items in excess of the building standards, unless
specifically included and depicted in the preliminary plans.
(3) Tenant shall give Landlord prompt written notice of any specific
defects or incomplete remaining items of work with respect to the Leasehold
Improvements. Except with respect to the items contained in any such notice
given prior to the first anniversary of the Term Commencement Date, Tenant shall
be deemed satisfied with the Leasehold Improvements, Landlord shall be deemed to
have completed all of its obligations under this Section 9, and Tenant shall
have no claim that Landlord has failed to perform in full its obligations
hereunder.
(4) It is agreed and understood that, except only for the Leasehold
Improvements, any and all work to be done in or on the Premises to prepare same
for Tenant's occupancy shall be performed by Tenant, at Tenant's sole cost and
expense, in accordance with the terms of this Lease.
9.d. Condition of Building and Premises. Tenant agrees as follows:
----------------------------------
(1) Except only for the construction of the Leasehold Improvements,
the Tenant accepts the Premises in its "as is" condition, without representation
or warranty, express or implied, in fact or in law, by Landlord and without
recourse to Landlord as to the condition thereof.
(2) Tenant has examined the plans and specifications for the
renovation of the Building (the "Renovation"), which plans are listed on Exhibit
-------
E attached hereto (the "Renovation Plans"), and Tenant hereby approves of such
-
renovations. Except only for the construction of the renovations indicated
thereon, Tenant accepts the Building in its "as is" condition, without
representation or warranty, express or implied, in fact or in law, by Landlord
and without recourse to Landlord as to the nature, condition or usability
thereof. Landlord agrees to proceed diligently, and at its sole cost and
expense, to complete the Renovations in substantial conformity with the
Renovation Plans and all applicable governmental laws, bylaws, rules,
regulation, ordinances and codes, and Landlord agrees that if any such work
occurs after the Term Commencement Date, Landlord shall use reasonable efforts
to minimize interference with the Tenant's use and occupancy of the Premises
which may result therefrom.
9.e. Alterations. No alterations, additions or improvements (hereinafter
-----------
"Alterations") to the Premises shall be made by the Tenant without written
consent of the Landlord, and with respect to nonstructural Alterations Landlord
agrees not to unreasonably withhold, condition or delay such consent. All work
done in connection with any Alterations, following Landlord's approval thereof,
shall be done in a good and workmanlike manner, in accordance with all
applicable laws, with all permits and approvals therefor obtained by Tenant and
performed by contractors approved by Landlord. Any such contractor shall be
required to provide a certificate of comprehensive general liability and
property damage insurance in the amount of $1,000,000.00, naming Landlord as an
additional insured. Any Alterations made by the Tenant after such consent shall
have been given, and any non-trade fixtures installed as part thereof shall
become the property of the Landlord upon the expiration or other sooner
termination of this Lease, unless, at the time of Landlord's consent to such
Alterations, Landlord shall require the
-16-
removal of some or all of same, in which event the Tenant shall have the
obligation to remove such Alterations or fixtures, (or the portion thereof
designated by Landlord) at the Tenant's cost upon the termination of this Lease,
in all events, leaving the Premises in good order and repair, reasonable wear
and tear and damage by fire or other casualty only excepted. It is agreed that
(unless otherwise required by Landlord at the time of its consent) all wiring
and cabling installed in the Premises shall remain upon the termination of the
Lease and shall become Landlord's property.
10. MAINTENANCE AND REPAIRS
Tenant shall maintain all portions of the Premises in good order and repair
and shall keep the Premises and immediate adjoining areas free of obstructions.
The Tenant shall make all nonstructural repairs necessary to maintain the
Premises in good order and repair, except such repairs related to common
facilities or utility installations for the common use of the Building, or
exterior glass (but if such repairs are required as a result of Tenant's acts,
negligence or default, Tenant shall be responsible for the costs thereof), and
shall return the Premises to Landlord at the end of the Term in good condition,
reasonable wear and tear, damage by fire or other casualty only excepted.
Landlord shall perform all necessary maintenance, repairs and replacements to
the structural elements of the Building and all common areas and facilities
serving the Premises, including, without limitation, the roof and structural
elements of the Building, all building systems and building service equipment,
including, without limitation, electrical, plumbing, sprinkler and heating,
ventilating and air conditioning systems ("HVAC") the Building exterior and all
landscaping and snow removal in order to keep the same in good condition and
repair, reasonable wear and tear, damage by fire or other casualty or taking by
eminent domain only excepted. All such maintenance, repairs and replacements
shall be paid by Landlord and (except only to the extent provided otherwise in
Section 6.a.) shall be included in the Operating Expenses, unless such
maintenance, repairs and replacements are due to the neglect or fault of Tenant
or its agents, employees or contractors, in which event Tenant shall promptly
reimburse Landlord for the cost thereof upon receipt of Landlord's invoice
therefor.
11. INSURANCE
11.a. Indemnification. Subject to the provisions of Section 11.e., the
---------------
Tenant shall save the Landlord harmless and indemnified from and against all
injury, loss, claim or damage to any person or property while on the Premises or
Landlord's Property arising out of the use or occupancy of the Premises by the
Tenant (unless caused by the gross negligence or default of the Landlord, its
employees, agents, licensees or contractors) and from and against all injury,
loss, claim or damage to any person or property occasioned by any wrongful act,
negligence or default of the Tenant or any of Tenant's agents, employees or
contractors. The provisions of this Section shall be deemed modified by the
provisions M.G.L. Chapter 186, Section 15, to the extent applicable.
11.b. Liability Insurance. The Tenant shall maintain with respect to the
-------------------
Premises and appurtenances thereto comprehensive general liability and property
damage including the broad form comprehensive general liability endorsement and
a contractual liability coverage
-17-
endorsement, in limits of not less than $2,000,000.00 per occurrence, or such
greater amount as shall be reasonably required by Landlord from time to time,
for combined single limit bodily injury and property damage liability, in
companies qualified to do business in Massachusetts and acceptable to Landlord,
insuring the Landlord as well as the Tenant against injury to persons or damage
to property as herein provided.
11.c. Property Insurance. The Tenant shall maintain, at its sole cost and
------------------
expense, fire and extended coverage insurance for all of its contents,
furniture, furnishings, equipment, improvements, funds, personal property and
fixtures located within or about the Premises, providing protection in an amount
equal to 100% of the full replacement value of said items (replacement value
meaning the cost of repairing or replacing the damaged property without
deduction for depreciation). Upon the request of Landlord, Tenant shall provide
Landlord with evidence of such insurance coverage.
Landlord shall maintain property insurance covering the Building in amounts and
with such coverages as Landlord shall reasonably deem adequate, and the costs of
same shall be included as part of the Operating Expenses hereunder. Upon the
request of Tenant, Landlord shall provide Tenant with evidence of such insurance
coverage.
11.d. Insurance Policies. The Tenant shall deposit with the Landlord
------------------
certificates of insurance that it is required to maintain under this Section, at
or prior to the commencement date of this Lease, and thereafter, within 30 days
prior to the expiration of each such policy. Such policies shall to the extent
obtainable, provide that the policies may not be changed or canceled without at
least 30 days prior written notice to the Landlord. Such insurance may be
maintained by the Tenant under a blanket policy or policies so-called.
11.e. Waiver of Subrogation. Landlord and Tenant and all parties claiming
---------------------
under them mutually release and discharge each other from all claims and
liabilities arising from or caused by any casualty or hazard covered or required
hereunder to be covered by insurance on the Premises or Landlord's Property or
in connection with property on or activities conducted on the Premises or
Landlord's Property, and waive any right of subrogation which might otherwise
exist in or accrue to any person on account thereof, provided that such release
shall not operate in any case where the effect is to invalidate or increase the
cost of such insurance coverage (provided, that in the case of increased cost,
the other party shall have the right, within 30 days following written notice,
to pay such increased cost, thereby keeping such release and waiver in full
force and effect).
12. FIRE AND CASUALTY DAMAGE
12.a. Termination. Should all or a portion of the Premises, or of the
-----------
Building, be substantially damaged (as defined below) by fire or other casualty,
the Landlord at its option may elect to terminate this Lease. Should all or a
portion of the Premises, or the common areas and facilities of the Building
necessary for the use and occupancy of the Premises, be substantially damaged
(as defined below) by fire or other casualty, the Tenant may elect to terminate
this Lease if:
-18-
(1) The Landlord fails to give written notice within 60 days after
such damage of its intention to restore the Premises and such
appurtenant common areas and facilities, and
(2) Such damage causes the Premises to be rendered untenantable for
Tenant's use thereof for more than 120 days, or has not been
substantially restored as nearly as reasonably practicable to
the same condition as they were prior to such damage within 180
days.
Tenant shall exercise its option to terminate by giving written notice to
Landlord, as applicable, within 30 days after Landlord's failure to notify or
within 30 days after such 120-day or 180-day period.
The term "substantial damage" as used herein shall refer to damage of such a
character that the same cannot, in ordinary course, be reasonably expected to be
repaired within 120 days from the time that such work commences, as reasonably
determined by Landlord.
12.b. Restoration and Abatement. If the Term of this Lease is not so
-------------------------
terminated, Landlord will, with reasonable diligence and at its expense, repair
and rebuild the Premises, and the common areas and facilities of the Building
necessary for the use and occupancy of the Premises, as nearly as reasonably
practicable to the same condition as they were in prior to such damage.
Landlord's obligations to repair and rebuild shall in all events be limited to
the insurance proceeds made available to Landlord. Landlord shall not be
obligated to repair or restore Tenant's personal property, fixtures, furniture,
equipment or floor coverings or any Alterations performed by Tenant.
If the Term of this Lease is not so terminated, for so long as such fire or
casualty renders the Premises substantially unsuitable for their Tenant's use, a
just and proportionate abatement of rent shall be made until Landlord's repairs
have been completed.
It is expressly understood and agreed that nothing in this Lease contained shall
be deemed to create in Tenant any interest in any hazard insurance policies or
the proceeds thereof.
13. EMINENT DOMAIN
13.a. Termination. In the event that the whole of the Premises or
-----------
Landlord's Property shall be lawfully condemned or taken in any manner for any
public or quasi-public use, this Lease and the Term hereby granted shall
forthwith terminate as of the date of the divesting of Landlord's title. Should
a portion of the Premises, or of the Building, or of Landlord's Property, be so
condemned or taken, and such taking is substantial (as defined below), the
Landlord at its option may elect to terminate this Lease. Should a portion of
the Premises, or the common areas and facilities of the Building necessary for
the use and occupancy of the Premises, be so condemned or taken, and such taking
is substantial (as defined below), the Tenant may elect to terminate this Lease
if:
(1) Such taking or condemnation results in the permanent loss of
reasonable access to the Premises, or 10% or more of the
Premises, or facilities that
-19-
supply heat, air conditioning, water, drainage, plumbing,
electricity or other utilities or services to the Premises; or
(2) Such taking or condemnation renders the Premises untenantable
for Tenant's use thereof for more than 120 days, or has not been
substantially restored as nearly as reasonably practicable to
the same condition as they were prior to such taking within 180
days.
Tenant shall exercise its option to terminate by giving written notice to
Landlord within 60 days following the date on which Landlord's title has bee
divested by such authority or within 60 days after such 120-day or 180-day
period.
The term "substantial" as used herein shall refer to a condemnation or taking
which: reduces the floors area of the Building, or reduces the total area of
Landlord's Property by more than 5%, or affects parking and/or access to
Landlord's Property and the Building, or will require, in Landlord's judgment,
more than 120 days to restore.
13.b. Restoration and Abatement. If neither the Landlord or Tenant elects
-------------------------
to terminate this Lease as aforesaid, this Lease shall be unaffected by such
taking, except that the Fixed Rent shall be abated equitably. In the event that
only a part of the Premises shall be so condemned or taken and this Lease is not
terminated as hereinbefore provided, Landlord will, with reasonable diligence
and at its expense, restore the remaining portion of the Premises as nearly as
reasonably practicable to the same condition as it was prior to such
condemnation or taking. Landlord's obligations to restore shall in all events be
limited to the condemnation proceeds made available to Landlord.
13.c. Award. In the event of any condemnation or taking hereinbefore
-----
mentioned of all or part of Landlord's Property, Landlord shall be entitled to
receive the entire award in the condemnation proceedings, including any award
made for the value of the estate vested by this Lease in the Tenant, and Tenant
hereby expressly assigns to the Landlord any and all right, title and interest
of Tenant now or hereafter arising in or to any such award or any part thereof.
Notwithstanding the foregoing, Tenant shall have the right to bring a separate
condemnation proceeding for relocation expenses and the unamortized value of
trade fixtures payable in the manner and extent as, and if, provided by law.
14. SIGNS
Landlord shall install, at its expense, an exterior sign on Landlord's
Property near the driveway entrance to Landlord's Property from Virginia Road,
identifying the Building and including Tenant's trade name, PreVision Marketing.
The entrance sign shall be similar to the entrance signage of other buildings at
Concord Farms, but smaller in scale reflecting the smaller size of the Building.
Tenant may, at its sole cost and expense, install a sign on or adjacent to the
interior entrance door to the Premises identifying Tenant by its trade name,
which sign shall be of a size, design and location in accordance with the
Building's signage standards, as established from time to time by Landlord, and
subject to the prior approval of the Landlord. Tenant shall not place any other
signs or other forms of advertising on or about the exterior of the Premises,
the exterior or interior of the Building or elsewhere on Landlord's Property;
and the foregoing
-20-
prohibition shall also prohibit any signs or other advertising on the windows of
the Premises or located within the interior of the Premises that are visible
from the exterior of the Building, without Landlord's prior written consent,
which may be withheld at Landlord's sole discretion.
Tenant shall be identified on the building directory in the entrance lobby to
the Building. Landlord also agrees to provide signage identifying the parking
spaces reserved for Tenant's exclusive use (pursuant to Section 7.i. hereof).
15. ACCESS
Tenant shall have access to the Premises (subject to the provisions of
Section 7.e. and Section 24 hereof), on a 24 hour a day, 7 days a week basis,
provided, during non-business hours and on non-business days, Landlord may
impose security requirements on access to the Building (such as card controlled
access) and such access shall be subject to the Landlord's rules and
regulations.
The Landlord shall have access to the Premises at all reasonable times upon
reasonable prior written or oral notice, except in the case of emergency, when
Landlord shall have the right to enter the Premises at any time, provided
Landlord uses reasonable efforts to provide notice if and to the extent same is
practicable under the circumstances.
16. SUBLEASE AND ASSIGNMENT
The Tenant shall not assign the Lease or sublet the Premises for the
remainder of the Term except with the prior written approval of the Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed.
Without limitation, Landlord's consent shall be deemed reasonably withheld
unless Tenant is able to demonstrate to the reasonable satisfaction of Landlord
that:
(1) The financial strength of the proposed subtenant/assignee is
reasonably acceptable to the Landlord, and in any event is
sufficient to provide reasonable assurance of its ability to
comply with the provisions of this Lease;
(2) The business reputation of the proposed subtenant/assignee is in
accordance with generally acceptable commercial standards;
(3) The use of the Premises by the proposed subtenant/assignee is in
accordance with the requirements of this Lease; and
(4) The use of the Premises by the proposed subtenant/assignee will
not be competitive, directly or indirectly, with that of any
other tenant of the Building, including without limitation
Xxxxxxxxx Management Corporation and its affiliates, and the
proposed use of the premises (if different than Tenant's use)
will not violate any other agreements affecting the Building, the
Landlord or other tenants.
-21-
For the purposes hereof, any transfer of the stock of Tenant or any merger or
consolidation of Tenant with another entity shall be deemed an assignment
hereunder; provided transfers of stock among existing shareholders or between
existing shareholders and their family members and transfers of stock or merger
or consolidation with any parent or subsidiary shall not require the consent of
Landlord; and provided transfers of stock to third parties totaling less than
50% in the aggregate which do not result in a change in control of the Tenant
shall not require the consent of Landlord.
Notwithstanding any such assignment or subletting, it is understood and agreed
that the original Tenant named herein shall always remain primarily and
unconditionally liable to Landlord for the observance and performance of the
obligations and agreements of Tenant in this Lease contained.
It shall be a condition precedent to the granting of any consent by Landlord
hereunder that any such assignee or subtenant shall enter into an agreement with
Landlord, in form satisfactory to counsel to Landlord, pursuant to which such
assignee or subtenant agrees directly with Landlord to assume and perform all of
the obligations and agreements of Tenant contained in this Lease. Tenant agrees
to pay Landlord's reasonable out-of-pocket costs and expenses in connection with
the consideration of any such proposed assignment or subletting, including
reasonable attorney's fees.
Tenant shall pay to Landlord monthly one-half of the excess of the rents and
other charges received by Tenant pursuant to the assignment or sublease (after
deduction of the reasonable out-of-pocket costs and expenses incurred by Tenant
in connection with such assignment or sublease, including without limitation,
brokerage commissions, reasonable attorney's fees and alterations to the
Premises) over the rents and other charges reserved to Landlord under this Lease
attributable to the space assigned or sublet.
17. [INTENTIONALLY DELETED]
18. SUBORDINATION
Subject to the provisions of this Section 18, this Lease is subject and
subordinate to all ground leases and to all real estate mortgages prior to or
subsequent to the date or execution and delivery of this lease and to all
renewals, modifications, consolidations, replacements or extensions thereof.
Upon the request of Landlord, the Tenant shall promptly execute and deliver all
such instruments as may be appropriate to subordinate this Lease to any ground
leases and/or mortgages, and to all advances made thereunder and to the interest
thereon, and all renewals, replacements and extensions thereof, provided that,
in the case of ground leases or mortgages entered into subsequent to the date of
execution and delivery of this Lease, at the Tenant's request, Landlord shall
obtain from a ground lessor under any ground lease or the holder of any mortgage
encumbering Landlord's Property a so-called nondisturbance agreement in any
commercially reasonable form customarily used by such ground lessor or
mortgagee, pursuant to which such party agrees not to disturb the occupancy of
Tenant under the Lease in the event of termination of any such ground lease or
foreclosure of any such mortgage if Tenant is not in default of any of the terms
and conditions of this Lease.
-22-
19. TENANT'S COVENANTS
The Tenant covenants and agrees as follows:
(a) Tenant shall perform promptly all of the obligations of the Tenant set
forth in this Lease and shall pay when due all rent (including all Fixed
Rent and additional rent) and all other charges which by the terms of this
Lease are to be paid by the Tenant.
(b) Tenant shall obtain all necessary governmental licenses and permits
required for the proper and lawful conduct of Tenant's business and
Tenant's use of the Premises. Tenant, at Tenant's expense, shall comply
with all health, safety and police requirements affecting or applicable to
the Premises or the cleanliness, safety, occupancy and use thereof, whether
or not same are substantial, foreseen or unforeseen, ordinary or
extraordinary. Tenant shall at all times conduct its business in a
reputable manner.
(c) Tenant shall (subject to the provisions of Section 11.e.) pay all
costs on demand for all damages to the Premises and Landlord's Property
suffered or incurred by Landlord and caused by the wrongful act or
negligence or default of Tenant, its agents, employees, invitees or
assigns.
(d) Tenant shall (subject to the cleaning services to be provided by
Landlord pursuant to Section 7.h hereof) keep the interior of the Premises
in a clean, neat and orderly condition. Tenant shall keep all refuse,
rubbish and debris in covered containers located only in areas approved by
Landlord. If additional rubbish pick-up is required, or if the dumpster
needs to be emptied due to Tenant's usage, then such additional cost shall
be paid by Tenant, as additional rent hereunder, promptly upon demand from
Landlord.
(e) Tenant shall permit Landlord and its agents to examine the Premises at
reasonable times after reasonable notice, and to show the premises to
prospective tenants commencing 6 months prior to the expiration of this
Lease. The Landlord may enter the Premises to make any replacements and
repairs desired by Landlord, provided same does not unreasonably interfere
with Tenant's use and occupancy of the Premises.
(f) Tenant shall use the Premises only for office (the "Permitted Use")
and for no other purpose.
(g) Tenant shall not injure, overload, deface or otherwise harm the
Premises, commit any nuisance or permit the emission of any objectionable
odor, or make any use of the Premises which will increase the cost of the
Landlord's insurance (unless Tenant pays for such increased cost). Tenant
shall not sell or display merchandise in or store or dispose of trash or
refuse in or otherwise obstruct the driveways, walks, halls, parking area,
or other common areas. The sidewalks, entrances and stairways shall not be
obstructed or encumbered by the Tenant or used for any purpose other than
egress to and from the Premises.
(h) Tenant shall not suffer or permit strip or waste of the Premises.
-23-
(i) Tenant shall not permit any use of the premises that unreasonably
interferes with or affects any other tenants in the Building or creates a
public or private nuisance or fire hazard.
(j) Tenant shall not conduct any auction, fire, bankruptcy or going-out-
of-business sale, nor use or permit any sound apparatus for reproduction or
transmission of music or sound which shall be audible beyond the physical
interior of the Premises.
(k) Tenant shall comply with Landlord's Rules and Regulations as are
currently in effect and such reasonable rules and regulations as shall from
time to time hereafter be established by the Landlord for the safety, care,
cleanliness or orderly conduct of the Premises and landlord's Property, and
for the benefit, comfort and convenience of all of the occupants of the
Building, provided such rules and regulations hereafter established shall
not unreasonably interfere with Tenant's use and occupancy of the Premises.
The Rules and Regulations as currently in effect are as set forth in
Exhibit F attached hereto.
---------
(l) If during the Term and any extension thereof, the fire insurance rate
of the Building or the Premises is increased due to the nature of the
Tenant's occupancy, Tenant shall pay to the Landlord any additional
insurance premiums resulting from such rate increase. Any such additional
premiums payable by the Tenant shall be additional rent and shall be paid
to the Landlord within 10 days after written demand accompanied by the
insurance premium notice or other satisfactory evidence of the amount due.
(m) Tenant shall not at any time use or occupy the Premises in violation
of the certificate of occupancy or building permit issued for the Building
or any applicable zoning ordinance. The statement in the Lease of the
nature of the business to be conducted by the Tenant in the Premises does
not constitute a representation or guaranty by the Landlord that any
particular business or use may be conducted on the Premises or is lawful
under the certificate of occupancy or building permit or is otherwise
permitted by law.
(n) Tenant shall not abandon the Premises (temporary closures for
Alterations or in connection with a sublease or assignment shall not be
deemed abandonment). Tenant shall operate and conduct its business within
the Premises in a first class and reputable manner and in such a manner
both as regards noise and other nuisances, as will not unreasonably
interfere with or disturb any other tenant's use and occupancy of its
premises in the Building, or the Landlord in the management of the
Building.
(o) Tenant, and Tenant's employees, agents, contractors, licensees,
invitees, guests or customers, shall not generate, store or spill upon,
dispose of or transfer to or from the Premises or Landlord's Property any
hazardous waste materials (as defined below), except only for such
materials as are commonly found in office products and supplies, and Tenant
shall strictly comply with all applicable laws relating to hazardous waste
materials. Tenant shall save Landlord (together with its partners,
beneficial owners, trustees, employees, agents, contractors, attorneys and
mortgagees) harmless and indemnified from and against any and all damages
(including without limitation clean-up and remediation costs) which may be
asserted on account of the presence or release of
-24-
hazardous waste materials on, in or from the Premises during the Term and
any period when Tenant (or those claiming by or through Tenant) occupies
the Premises, on account of the activities of Tenant (or those claiming by
or through Tenant) in violation of any applicable laws relating to
hazardous waster materials, or on account of the breach of any of the
covenants contained in the previous sentence. Tenant agrees that if it or
anyone claiming under it violates this provision, Tenant shall forthwith
remove the hazardous waste materials in the manner provided by applicable
law, regardless of when such hazardous waste materials shall be discovered,
and Tenant shall forthwith repair and restore any portion of the Premises
or Landlord's Property which it shall disturb in so removing said hazardous
waste materials to the condition which existed prior to Tenant's
disturbance thereof. The provisions of this subparagraph shall be in
addition to any other obligations or liabilities of Tenant under this Lease
or under applicable law, and in addition to any other remedies of Landlord
under this Lease or under applicable law, and the obligations of Tenant
under this subparagraph shall survive the termination of this Lease.
For purposes of this subparagraph, "hazardous waste materials" shall mean
any substance which is or becomes defined as hazardous waste, hazardous
material or oil under any Federal, State or local laws, or which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic or
otherwise hazardous to health and which is or becomes regulated under any
applicable law.
(p) Tenant hereby represents to the Landlord that it has the authority to
enter into this Lease, that the execution and delivery of this Lease is not
in contravention of its charter or by-laws or applicable state laws, and
has been duly authorized by, as appropriate, its Board of Directors and
Shareholders, its Partners, or its Beneficiaries.
20. TENANT'S DEFAULTS
The following shall be deemed to be defaults hereunder:
(a) If Tenant shall fail to pay the Fixed Rent or any monthly
estimated installments of its share of the Operating Expenses when due
hereunder and such failure continues for more than 7 days after
written notice from Landlord designating such failure (provided if
Landlord gives such written notice more than 2 times in any 12-month
period, no such written notice shall thereafter be required, and
thereafter the failure to make such payment within seven days of the
due date, without notice, shall constitute a default hereunder); or if
Tenant fails to pay any other additional rent or other charges
provided for hereunder and such failure continues for more than 7 days
after written notice form Landlord designated such failure; or
(b) If Tenant shall fail to comply with any other obligation or
covenant hereunder and such failure continues for more than 30 days
after written notice from Landlord to Tenant specifying such failure;
provided, if such failure by its nature cannot be cured within 30
days, Tenant shall be given such additional time as is reasonably
necessary, not to exceed 60 days, provided Tenant has
-25-
commenced diligently to correct said failure and thereafter diligently
pursued such correction to completion; or
(c) If Tenant makes any assignment for the benefit of creditors,
commits any act of bankruptcy or files a petition under any bankruptcy
or insolvency law; if a petition is filed against Tenant or any
guarantor and is not dismissed within 60 days; if a receiver or
similar officer becomes entitled to Tenant's leasehold hereunder and
is not returned to Tenant within 60 days; or if such leasehold is
taken from Tenant on execution or other process of law in any action;
or
(d) If Tenant is a corporation, its failure to remain a corporation
in good standing and qualified to do business in Massachusetts.
21. RIGHTS OF LANDLORD UPON TENANT'S DEFAULT
21.a. Landlord's Remedies. In the event any default shall occur, Landlord
-------------------
shall have the right, then or at any time thereafter, at its sole
election either:
(1) To terminate this Lease by written notice to Tenant, which
termination shall take effect on the date of Landlord's giving of
said notice or on any later date specified in Landlord's
termination notice; or
(2) To enter upon and take possession of the Premises (or any part
thereof in the name of the whole) without demand or notice, and
repossess the same as of the Landlord's former estate, expelling
Tenant and those claiming under Tenant, forcibly if necessary,
without being deemed guilty of any manner of trespass and without
prejudice to any other remedy for any default hereunder.
Landlord's repossession of the Premises under this Section shall not be
construed to effect a termination of this Lease, unless Landlord sends Tenant a
written notice of termination as required hereunder. Tenant hereby waives any
rights of redemption under Massachusetts General Laws chapter 186.
21.b. Reletting. Landlord shall have the right (at its sole election and
---------
whether or not this Lease shall be terminated under Section 20.a) to
relet the Premises or any part thereof for such period or periods
(which may extend beyond the term) and at such rent or rents and upon
such other terms and conditions as Landlord may deem advisable, and in
connection with any such reletting, Landlord may make or cause to be
made such additions, alterations and improvements to the Premises as
Landlord may deem advisable.
21.c. Removal of Goods. If Landlord shall terminate this Lease or take
----------------
possession of the Premises by reason of a default, Tenant, and those
claiming under Tenant, shall forthwith remove their goods and effects
from the Premises. If Tenant or any such claimant shall fail so to
remove forthwith, Landlord, without liability to Tenant or to those
claiming under Tenant, may remove such goods and effects and may store
the same for the account of Tenant or of the owner thereof in any
-26-
place selected by Landlord or, at Landlord's sole election, Landlord
may sell the same at public auction or at private sale on such terms
and conditions as to price, payment and otherwise as Landlord, in its
sole judgment, may deem advisable. Tenant shall be responsible for
all costs of removal, storage and sale, and Landlord shall have the
right to reimburse itself from the proceeds of any such sale for all
such costs paid or incurred by Landlord. If any surplus sale proceeds
shall remain after such reimbursement, Landlord may deduct from such
surplus any other sum due to Landlord hereunder and shall pay over to
Tenant the remaining balance of such surplus sale proceeds, if any.
21.d. Current Damages. No termination or repossessions provided for in this
---------------
Section shall relieve Tenant of its liabilities and obligations
hereunder, all of which shall survive such termination or
repossession. In the event of any such termination or repossession,
Tenant shall pay Landlord, in advance, o the first day of each month
(and pro rata for the fraction of any month) for what would have been
the entire balance of the term, one-twelfth of the Annual Rental for
the Premises, as defined in Section 20.e. hereof), less the proceeds
(if any) of any reletting of the Premises which remain after deducting
Landlord's expenses in connection with such reletting. Such expenses
shall include, without limitation, removal, storage and remodeling
costs, the cost of painting and refurbishing the Premises, and
attorneys' and brokers' fees.
21.e. Annual Rental. The Annual Rental for the Premises shall be the total
-------------
of the Fixed Rent and Tenant's share of Operating Expenses, and all
other charges payable by Tenant (whether or not to Landlord) for the
operating year ending next prior to such termination or repossession.
21.f. Remedies Cumulative. Any and all rights and remedies which Landlord
-------------------
may have under this Lease and at law and equity, shall be cumulative
and shall not be deemed inconsistent with each other, and any two or
more of all such rights and remedies may be exercised at the same time
insofar as permitted by law.
21.g. Landlord's Right to Cure Defaults. Landlord shall have the right but
---------------------------------
not the obligation, to cure at any time and without notice, any
default by Tenant under this Lease. Whenever Landlord so elects, all
costs and expenses incurred by Landlord, including reasonable
attorney's fees, in curing a default shall be paid by Tenant to
Landlord on demand, as additional rent hereunder, together with lawful
interest thereon from the date of payment by Landlord to the date of
payment by Tenant.
21.h. Costs of Enforcement. Tenant shall pay, within 7 days after receipt of
--------------------
Landlord's xxxx therefor, all costs and expenses (including without
limitation reasonable attorneys' fees) incurred by Landlord in
enforcing Tenant's obligations or Landlord's rights under this Lease.
-27-
22. RECORDING
The parties agree not to record this Lease. However, if this Lease is for a
term (including any options) of more than 7 years, Tenant may record a Notice of
Lease in the form suggested by the applicable statute, with such recording to be
at Tenant's expense.
23. LIABILITY
In no event shall Landlord be liable for any breach of covenant during the Term
unless the same shall occur during and within the period of the time that it is
the record owner of and in possession of Landlord's Property. It is
specifically understood and agreed that there shall be no personal liability
under this Lease for any of the obligations of the Landlord hereunder, and no
trustee, beneficiary, holder of a beneficial interest, joint venturer, tenant in
common or partner (general or limited) of Landlord shall have any personal
liability hereunder. Tenant agrees to look only to Landlord's interest in
Landlord's Property for satisfaction of any claim against Landlord hereunder.
So long as Tenant is a corporation, no shareholder, director or officer of
Tenant shall have any personal liability under this Lease for any obligations of
the Tenant hereunder.
The Landlord's failure to provide any service to the Premises to any specific
degree, quantity, quality or character shall not form a basis of claim for
damages or breach of covenant against Landlord, or any offset of rent, except
only as specifically otherwise provided herein. The placement by Tenant of any
goods, wares and merchandise in the Premises or any areas within Landlord's
Property shall be at the sole risk and hazard of the Tenant.
In no event and under no circumstances whatsoever shall Landlord be liable to
Tenant for any consequential damages in connection with any act of Landlord, its
agents or servants. In no event and under no circumstances whatsoever shall
Tenant be liable to Landlord for any consequential damages in connection with
any act of Tenant, its agents or servants; provided, however, the foregoing
shall not limit in any way the damages to which Landlord shall be entitled
(which may include all consequential damages resulting therefrom) in the event
of: (i) the failure of Tenant to vacate the Premises as and when required
hereunder, (ii) the failure of Tenant to strictly comply with Section 19.o.
hereof, (iii) with respect to any indemnifications contained herein, or (iv) the
gross negligence or willful misconduct of Tenant, its agents or servants.
Landlord shall not be deemed to be in default in the performance of any of its
obligations or covenants hereunder unless Landlord shall fail to perform any
such obligations or covenants and such failure continues for a period of 30 days
after written notice has been given by Tenant to Landlord specifying such
failure; provided, if such failure by its nature cannot be cured within 30 days,
Landlord shall be given such additional time as is reasonably necessary, not to
exceed 60 days, provided Landlord has commenced diligently to correct said
failure and thereafter diligently pursues such cure to completion.
-28-
24. FORCE MAJEURE
In any case where Landlord or Tenant is required to do any act (other than the
payment of any monetary obligation under this Lease), the time for the
performance thereof shall be extended by a period equal to any delay caused by
or resulting from Act of God, war, civil commotion, fire or other casualty,
labor difficulties, shortages of labor, materials or equipment, government
regulations or other causes beyond such party's reasonable control, whether such
time be designated by a fixed time or "reasonable time."
25. MECHANICS' LIENS
The Tenant will not permit any mechanic's or materialmen's or other liens to
stand against the Premises or Landlord's Property for any labor or materials
furnished the Tenant in connection with work of any character performed on the
Premises by or at the direction of the Tenant. Any such lien shall be
discharged within ten days. If Tenant fails to discharge such lien, Landlord
may do so at Tenant's sole cost and expense.
26. WAIVER; ACCORD AND SATISFACTION
The waiver of one failure to comply with any term, condition, covenant,
obligation or agreement of this Lease shall not be considered to be a waiver of
that or any other term, condition, obligation or agreement or of any subsequent
failure.
No acceptance by Landlord of a lesser sum than any sum due under any provisions
of this Lease shall be deemed to be other than on account of the earliest
installment of such sum doe, nor shall any endorsement or statement on any check
or letter accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
any rights to recover the balance of such installment or pursue any other remedy
in this Lease provided.
27. DEFINITIONS
The words "Landlord" and "Tenant" as used herein shall include their respective
heirs, executors, administrators, successors, representatives, assigns,
invitees, agents and servants. The words "it", "he" and "him" where applicable
shall apply to the Landlord or Tenant regardless of gender, number, corporate
entity, trust or other body. If more than one party signs this Lease as Tenant,
the covenants, conditions and agreements of the Tenant shall be joint and
several obligations of each party.
28. SEPARABILITY CLAUSE
If any provision in this Lease (or portion of such provision) or the application
thereof to any person or circumstance is held invalid, the remainder of the
Lease (or the remainder of such provision) and the application thereof to other
persons or circumstances shall not be affected thereby.
-29-
29. EXECUTION
This Lease may be executed in any number of counterparts and each fully executed
counterpart shall be deemed an original.
30. NOTICES
Any notices required under this Lease shall be in writing and delivered by hand
or mailed by registered or certified mail: if to Tenant, to the Premises, to
the attention of Xxxxxxx Xxxx, with a copy to Xxxxxx Xxxxxxx Xxxxxx, Esquire,
Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or
to such other additional addresses (not exceeding 2 addresses in total) as
Tenant may designate by like notice to Landlord from time to time; and if to
Landlord, care of its management agent, Xxxxxxxxx Management Corporation, 0000
Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx 00000, or to such other or
additional addresses (not exceeding 2 addresses in total) as Landlord may
designate by like notice to Tenant from time to time. Time is of the essence
with respect to all notices and periods for giving notices or taking any action
thereto under this Lease.
31. BROKER'S INDEMNITY
Landlord and Tenant each hereby represent and warrant to the other that, except
to the extent, if any, hereinafter set forth, it has dealt with no broker in
connection with this Lease and there are no brokerage commissions or other
finders' fees due in connection herewith. Landlord and Tenant each hereby agree
to hold the other harmless from, and indemnified against, all loss or damage
(including, without limitation, the cost of defending same) arising from any
claim by any broker or finder claiming to have dealt with such party. The
parties acknowledge that Cranberry Hill Associates, Inc., acted as broker in
connection with this lease, and that Landlord shall pay a commission on account
thereof as agreed between Landlord and said broker.
32. HOLDING OVER
If for any reason Tenant holds over or occupies the Premises beyond the Term,
then Tenant shall have no more rights than a tenant by sufferance (or, at
Landlord's sole option, such holding over shall constitute a tenancy from month
to month, terminable by either party upon 30 days prior written notice to the
other), and, in any case, Tenant shall be liable for payment of rent during such
period in an amount equal to one and one-half times the rent (including Fixed
Rent and all additional rent) payable hereunder for the final year of the Term
prior to such holding over. Such tenancy shall otherwise be on the same terms
and conditions as set forth in the Lease, as far as applicable. Nothing in this
Section shall be construed to permit such holding over, or to limit Landlord's
other rights and remedies on account thereof.
33. LANDLORD'S MORTGAGES
After receiving notice from Landlord or from any person, firm or other entity
that such person, firm or other entity holds a mortgage, which includes the
Premises as part of the mortgaged premises, no notice from Tenant to Landlord
shall be effective unless and until a copy of the same is given by certified or
registered mail to such holder, and the curing of any of Landlord's defaults by
such holder shall be treated as performance by Landlord, it being understood and
-30-
agreed that such holder shall be afforded a reasonable period of time after the
receipt of such notice in which to effect such cure.
Tenant shall cooperate with Landlord so that Landlord will be able to procure
mortgage financing for any and all of Landlord's properties. Upon request,
Tenant agrees to execute and deliver to Landlord estoppel or offset letters as
reasonably required by Landlord's mortgage lenders.
Executed under seal on October 25, 1996.
TENANT:
PREVISION MARKETING, INC.
By: /s/ Xxxxxxx Xxxx
-------------------------------------------
Name:
Title: President
By: /s/ Xxxxxxx Xxxx
-------------------------------------------
Name:
Title: Treasurer
[Tenant shall deliver a Certificate of Legal Existence from the Massachusetts
Secretary of State Office for the Tenant and a Certificate of Vote authorizing
this Lease and authorizing the signatories on behalf of Tenant]
-31-
LANDLORD:
NEW ENGLAND FARMS LIMITED PARTNERSHIP
By its General Partner
NEW ENGLAND CENTER, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
-32-
AMENDMENT TO LEASE AND CONSENT TO SUBLEASE
------------------------------------------
This Amendment to Lease and Agreement ("Agreement") is entered into this 30th
day of March, 1999.
Reference is hereby made to that certain lease dated October 25, 1996 (the
"Lease") by and between New England Farm Limited Partnership ("Lessor") and
PreVision Marketing, Inc., a Delaware corporation ("Sublessor"). The premises
demised thereby (the "Premises") are located in the building known a One Concord
Farms, located at 000 Xxxxxxxx Xxxx in Concord, Massachusetts (the "Building").
The Premises consist of Suite 30, 31, and 32 on the Third Floor (Suite 30 and 21
also include mezzanine space) and Suites 20, 21 and 22 on the Second Floor of
the Building.
Reference is also made to a Sublease dated as of April 1, 1999 (the "Sublease"),
by and between Sublessor and Xxxxxxxxxxxx.xxx, Inc., a Delaware corporation, as
sublessee ("Sublessee"), with respect to the Premises.
Pursuant to the Lease, Sublessor, as the tenant thereunder, may not sublet the
Premises without first obtaining Lessor's written approval.
Lessor hereby grants its consent to the Sublease on and subject to each of the
following terms and conditions, which are hereby agreed to by Sublessor and
Sublessee:
1. Sublessor and Sublessee hereby represent and warrant that attached hereto
as Exhibit A is a true, correct and complete copy of the Sublease, and that
---------
the Sublease constitutes the entire agreement of Sublessor and Sublessee
with respect to the matters therein described. The sublease shall not be
amended or modified without the prior written consent of Lessor.
2. Sublessee understands and agrees that the Sublease is in fact a sublease of
Sublessor's interest in the Lease; and the Sublease is subject to the
provisions of the Lease and is subordinate thereto. In the event the Lease
shall be canceled or terminated for any reason, the term of the Sublease
shall automatically terminate as of the date of such cancellation or
termination.
3. Sublessee covenants that, notwithstanding any provisions of the Sublease to
the contrary, Sublessee shall not commit, or suffer to be committed, any
act or omission in violation of the provisions of the Lease, and Sublessee
agrees directly with Lessor to be bound by all the obligations of the
Sublessor thereunder, to the extent that same are the obligation or
responsibility of the Sublessee under the Sublease.
4. The consent given by Lessor in this Agreement shall not be deemed to create
any obligations on the part of Lessor with respect to Sublessee or with
respect to the Sublease or the Premises, or constitute any consent to any
further sublease or assignment, or relieve Sublessor of its obligations
under the Lease; and Sublessor shall remain fully and primarily liable for
the prompt and timely payment of all rent, additional rent and other
-33-
charges under the Lease and for the timely performance of all of the
tenant's obligations under the Lease. This Agreement shall in no way
release Sublessor from any of its covenants, agreements, liabilities and
duties under the Lease, all of which Sublessor agrees it remains
responsible for paying or performing as the case may be.
5. Sublessor and Sublessee agree that Lessor is not responsible for the
payment of any commission or fees in connection with the Sublease and they
each jointly and severally agree to indemnify and hold harmless Lessor from
and against any claims, liabilities, losses or expenses, including
reasonable attorney's fees, incurred by Lessor in connection with any
claims for commissions or fees by any broker or agent in connection with
the Sublease.
6. As a condition of Lessor's consent, Sublessor shall reimburse Lessor on
demand for any reasonable costs (including all attorney's fees) that Lessor
incurred in connection with the consideration of the consent contained
herein.
7. Simultaneously with the execution of this Agreement, Sublessee shall
deliver to Lessor a certificate or certificate of insurance confirming that
the required insurance is in force (including $2,000,000 in liability
insurance, full replacement cost coverage for all equipment and personal
property and xxxxxxx'x compensation coverage) and all premiums are current,
and naming Lessor and Lessor's agent, Xxxxxxxxx Management Corporation, as
additional insureds.
8. This Agreement shall not be deemed Lessor's consent to any Alterations of
the Premises, all of which require the Lessor's prior written consent
pursuant to the terms of the Lease. Notwithstanding any approvals that may
be given for any Alternations, the Premises shall be returned to Lessor at
the end of the Term in its condition as of the date hereof, with all
improvements, work and Alterations that may be performed by or for
Sublessee being removed and all damage caused thereby being repaired. It
is agreed that Lessor may condition its approval of any Alterations on
Lessor designating the contractors to be used in connection therewith and
that all costs of Lessor's review and supervision of the construction of
the Alterations (including in-house staff costs) shall be paid for by
Sublessor promptly upon billing therefor by Lessor.
9. Lessor shall promptly be provided with copies of all written notices given
or received by either Sublessor or Sublessee under the Sublease. Lessor
shall endeavor to provide Sublessee with copies of all notices of default
sent by Lessor to Sublessee.
10. Sublessee shall not subsublet its interest in the Premises or to assign its
rights under the Sublease without, in each such instance, first obtaining
the Lessor's prior written consent, which consent may be withheld at the
Lessor's sole and absolute discretion. Notwithstanding the foregoing,
Lessor's consent shall not be required for any assignment to a parent,
subsidiary or affiliate of Sublessee, or for any merger of Sublessee with
another entity or the sale of all or substantially all of the assets of
Sublessee on an ongoing business, provided reasonable evidence thereof is
provided to Lessor, and provided such assignee (if a different entity than
the named Sublessee) enters into a written assumption agreement
satisfactory to Lessor with respect to the Sublease.
-34-
11. Following the occurrence of a default under the Lease, Lessor, in addition
to any other remedies provided hereunder or at law, may at its option, by
giving written notice thereof to Sublessee, collect directly from Sublessee
all rents becoming due to the Sublessor under the Sublease and apply such
rent against any amounts due Lessor by Sublessor under the Lease; and it is
understood that no such election or collection or payment shall be
construed to constitute a novation of the Lease or a release of Sublessor
hereunder, or to create any lease or occupancy agreement between the Lessor
and Sublessee or impose any obligations on Lessor, or otherwise constitute
the recognition of the Sublease by Lessor for any purpose. Sublessor
agrees that Sublessee may rely on any notice from Lessor that a default has
occurred under the Lease and all rents paid to Lessor after receipt of such
notice shall be credited to the sums due under the Sublease.
12. Sublessee may not use any photos, drawings or other imagery of the Building
in any way, form or media unless each such use has first been consented to
in writing by the Lessor in its sole discretion.
13. Lessor consents to the provision of the Sublease which permits Sublessee to
use the designated parking spaces provided for in the Lease, provided all
costs incurred by Lessor in connection therewith (including without
limitation any new signage and labeling) shall be paid to Lessor by
Sublessor promptly upon billing therefor.
14. Sublessee agrees to maintain a fire extinguisher in any kitchen areas at
all times.
15. The provisions of Section 14 of the Lease shall be inapplicable to
Sublessee, and Sublessee shall have the following signage rights: (i)
Lessor shall, upon request of Sublessee, at Sublessor's sole expense (all
such costs to be paid by Sublessor within 15 days of billing therefor),
modify the existing free-standing exterior sign on the Property currently
identifying the Sublessor, so as to identify Sublessee by its trade name,
XxxxxxXxxxxx.xxx; and (ii) Sublessee may, at its sole cost and expense,
install a sign on the glass window adjacent to the interior entrance door
to the Premises identifying Sublessee by its trade name. Such signs shall
be of a size, design, quality and location in accordance with the
Building's signage standards, as established from time to time by Lessor,
and subject to the prior written approval of the Lessor. Sublessee shall
also be identified on the Building directory in the entrance lobby to the
Building, at Sublessor's sole cost and expense, it being understood that in
order to accommodate this change, Lessor will be replacing the current
Building directory with a new one, at Sublessor's expense.
Sublessee shall not place any other signs or other forms of advertising on
or about the exterior of the Premises, the exterior or interior of the
Building or elsewhere on the Property; and the foregoing prohibition shall
also prohibit any signs or other advertising on the windows of the Premises
or located within the interior of the Premises that are visible from the
exterior of the Building.
16. Any and all costs incurred by Lessor incident to the change in occupancy
contemplated by the Sublease, including without limitation the issuance of
new access cards and re-working of access needs, the issuance of keys, and
issuance of new parking tags will
-35-
be the sole cost of Sublessor, which shall be paid by Sublessor the Lessor
promptly following billing therefor. Sublessor must return all keys to
Lessor prior to the commencement of the Sublease and, in turn, keys will be
issued by Lessor to Sublessee.
17. Sublessor confirms that, pursuant to Section 16 of the Lease, Sublessor
shall pay to Lessor on a monthly basis, as additional rent under the Lease,
one-half of all rent paid by Sublessee under the Sublease in excess of the
rent payable by Sublessor under the Lease, as provided in Section 16 of the
Lease. It is agreed that any deductions Sublessee wishes to utilize in
calculating such excess shall have been communicated in writing to Lessor
(along with documentation of same reasonably satisfactory to Lessor) on or
prior to the date of this Agreement.
18. Sublessor and Lessor hereby certify that attached hereto as Exhibit B is a
---------
true, correct and complete copy of the Lease, the Lease is in full force
and effect, that there have been no modifications or amendments thereto,
that all rent, additional rent and other payments due under the Lease as of
the date hereof have been paid by Sublessor, and, as of the date hereof, to
the Sublessor's and Lessor's knowledge, there exists no default under the
Lease.
19. This Agreement may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any change is
sought.
20. Lessor and Sublessor hereby agree that the Lease shall be amended as
follows:
(a) The provisions of Section 2.c of the Lease (Expansion Rights) is
hereby deleted and of no further force and effect.
(b) The provisions of Section 3.b of the Lease (Option to Extend the Term)
is hereby deleted and of no further force and effect.
(c) Section 5.b of the Lease (Late Fee) is hereby amended to provide that
the late fee shall be in the amount of $300.00.
(d) The provisions of Section 7.g of the Lease (Health Club) is hereby
deleted and of no further force and effect.
(e) Simultaneously with the execution of this Agreement, Sublessor shall
deliver to Lessor the sum of $19,388 which shall be held as an
additional security desposit in accordance with Section 5.c of the
Lease as security for the payment of rents and the performance and
observation of the agreements and conditions contained in the Lease.
-36-
The term "Lease" as used herein, shall refer to the Lease as amended by this
Agreement.
Executed under seal as of the above date.
Sublessee:
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name:
Title:
Sublessor:
PREVISION MARKETING, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name:
Title:
Lessor:
NEW ENGLAND FARM LIMITED PARTNERSHIP
By its General Partner
XXXXXXXXX MANAGEMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name:
Title:
-37
