EXHIBIT 10(u)
LEASE
THIS LEASE, made this 8th day of November, 1996, by and
between AETNA REAL ESTATE ASSOCIATES, L.P., a Delaware limited
partnership, ("LANDLORD") C/O Allegis Realty Investors LLC, 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, XX, 00000, and NATIONAL TRANSACTION
NETWORK, INC., a Delaware corporation, ("Tenant").
WITNESSETH:
That Landlord, for and in consideration of the rents and all
other charges and payments hereinafter reserved and payable by
Tenant, and of the covenants, agreements, terms, provisions and
conditions to be kept and performed hereunder by Tenant, does
hereby demise and lease to Tenant, and Tenant does hereby hire and
take from Landlord, the premises described below ("Premises"),
subject to all matters hereinafter set forth and upon and subject
to the covenants, agreements, terms, provisions and conditions of
this Lease for the term hereinafter stated.
1. TERMS. Landlord and Tenant agree to the following, unless
otherwise specifically modified by provisions of this Lease:
1.1 Premises. The Premises demised by this Lease consist of
approximately 17,436 rentable square feet on the first (1st) floor
of the 2-Story Building (hereinafter defined) and are part of that
certain real property upon which is constructed a certain building
(the "Building") consisting of two parts: a two story portion of
which the Premises demised hereby is a part, containing
approximately thirty-five thousand four hundred ninety three
(35,493) rentable square feet (the "2 Story Building") commonly
known as 000 Xxxxxxxx Xxxx, xx xxx Xxxx xx Xxxxxxxxxxx, Xxxxxx of
Worcester, Massachusetts; and a second one story portion (the "1
Story Building") which adjoins the 2 Story portion of the
Building. The location and dimensions of the Premises are shown on
EXHIBIT A. The total rentable square feet in the Building is
approximately fifty thousand six hundred seventy-five (50,675),
15,182 rentable square feet of which is the 1 Story Building. No
easement for light or air is incorporated in the Premises. The
land upon which the Building sits, the Building and the Common
Areas are sometimes collectively referred to as the "Property".
1.1.1 Appurtenant Rights and Reservations. (a) Tenant shall
have, as appurtenant to the Premises, the non-exclusive right to
use, and permit its invitees to use, in common with others, the
common walkways necessary for access to the Building; parking
spaces in the Building parking lot as set forth in Section 45
hereof; and the common toilets, corridors and wash room facilities
on Tenant's floor and any other common area provided by Landlord
on such floor; Building entrances; the ground floor lobby,
passenger and freight elevators; and loading docks serving the
Building
("Common Areas"); but such rights shall always be subject to
Landlord rights to modify the size and location of such facilities
and to reasonable rules and regulations from time to time
established by Landlord for the proper and efficient operation of
the Building pursuant to Section 47.
(b) Excepted and excluded from the Premises are the
ceiling, floor, perimeter walls and exterior windows (except the
inner surfaces of each thereto), and any space in the Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, janitorial closets, sinks or other
Building facilities. Landlord shall have the right to place in the
Premises (but in such manner as to reduce to a minimum any
interference with Tenant's use of the Premises) utility lines,
equipment, stacks, pipes, conduits, ducts and the like, provided
that any such installation shall be boxed and decorated in a
manner consistent to the remainder of the area in which it is
located, and provided installations shall not materially interfere
with Tenant's use of the Premises for the ordinary conduct of its
business. To the extent reasonably practicable, any such
installation shall be located above hung ceilings, beneath the
floor or behind walls.
1.2 Lease Term:
Five (5) years plus any portion of a calendar month
as may be included at the beginning of the Term.
1.3 Rent. The basic rent ("Rent") shall commence on the
Commencement Date and is as follows:
a) Month 1-24 $108,975 annually or $9,081.25 per month;
b) Month 25-48 $113,334 annually or $9,444.50 per month;
c) Month 49-60 $117,693 annually or $9,807.75 per month.
In addition to the Rent, Tenant shall pay the Additional Rent
described in Article 10 and Article 17.
1.4 Notices and Payments Addresses:
If to Landlord:
Aetna Real Estate Associates, L.P.
c/o Xxxxxxxx Xxxx NE, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Property Management
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With a required copy to:
Xxxxxxx & Xxxxx, P.C.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
If to Tenant:
National Transaction Network, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attn: Vice President, Finance
With a required copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Real Estate Department
1.5 Tenant's Proportionate Share. The Tenant's Proportionate
Share of the 2-Story Building is 49.13%; Tenant's Proportionate
Share of the entire Building is 34.41%. Expenses allocable to the
2-Story Building exclusively will be allocated on the basis of the
2-Story Building Tenant Proportionate Share; expenses incurred on
the basis of the Building will be allocated on the basis of the
Tenant Proportionate Share for the Building.
2. COMMENCEMENT AND EXPIRATION DATES.
2.1 Lease Term. The term of this Lease shall be as set forth
in Section 1.2.
2.2 Commencement Date.
2.2.1 The Commencement Date shall be upon Tenant's occupancy
of the Premises for the purpose of conducting its business
operations but not later than 60 days after the execution date of
this Lease, provided that Landlord's Work has been substantially
completed.
2.3 Delivery of Possession. Should Landlord tender possession
of the Premises to Tenant prior to the date specified as the Lease
Commencement Date, and Tenant elects to accept such prior tender,
such prior occupancy shall be subject to all the terms, covenants
and conditions of this Lease, including the payment of Rent and
Additional Rent; provided, however that, if the Landlord, in its
sole discretion, considers the Premises to be in suitable
condition for entry by Tenant, Tenant may enter the Premises prior
to the Commencement Date without the payment of Rent
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and Additional Rent (except for electricity costs specifically
incurred due to Tenant's activities in the Premises, which costs
will be charged to Tenant) for purposes of tenant fit-up, phone
and computer installation, and the like, and for no other
purposes. The Commencement Date shall be deemed to commence
immediately at such time as Tenant shall use the Premises for the
operation of Tenant's business.
2.4 Tenant's Option to Extend. Provided that, at the time of
such exercise, this Lease is still in full force and effect
without default by Tenant beyond applicable grace periods and
Tenant occupies at least seventy-five percent (75%) of the
Premises Rentable Area for its own business purposes, Tenant shall
have the right and option (the "Extension Option") to extend the
Term of this Lease for one (1) extended term of five (5) years
(the "Extended Term") (or such shorter period as Landlord and
Tenant shall mutually agree). The Extended Term shall commence on
the day immediately succeeding the expiration date of the Initial
Term and shall end on the day immediately preceding the fifth
anniversary of the first day of such Extended Term. Tenant shall
exercise its Extension Option for the Extended Term by giving
written notice to Landlord of its desire to do so not later than
twelve (12) months prior to the expiration date of the Initial
Term. The giving of such notice by Tenant shall automatically
extend the Term of this Lease for the applicable Extended Term,
and no instrument of renewal need be executed. In the event that
Tenant fails to give such notice to Landlord this Lease shall
automatically terminate at the end of the Initial Term and Tenant
shall have no further option to extend the Term of this Lease. The
Extended Term shall be on all the terms and conditions of this
Lease, except (i) during any Extended Term, the extension
provisions of this Section shall not be effective, and (ii) the
Base Rent for the Extended Term shall be the prevailing base
rental rate projected to the time of commencement of the Extended
Term for comparable space in the Building or comparable space in
the market, but in any event not less than the Base Rent in effect
immediately prior to the Extended Term. Landlord and Tenant shall
attempt to agree upon the applicable Base Rent but, if agreement
is not reached by that date which is eleven (11) months prior to
the commencement date of the Extended Term, either Landlord or
Tenant may elect to follow the Appraisal Process for determination
of such Base Rent. The Appraisal Process shall be a determination
of the market rate by three (3) appraisers, one selected by the
Landlord, one by the Tenant and the third by the two appraisers so
selected, each of whom shall have had at least ten (10) years
experience in appraising commercial real estate in the Route
495/Route 9 Area. Each appraiser shall independently determine the
projected market rate of the Premises as of the commencement date
of the Extended Term, taking into account all of the terms and
conditions of this Lease. The market rate of the Premises shall be
deemed to be the appraisal, if any, which is the average of the
other two, or, if there is no such appraisal, the average of the
two appraisals
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arithmetically closest in amount. The cost of the third appraiser
shall be borne equally by the Landlord and Tenant, and the cost of
each of the other two appraisers shall be borne by the party
selecting them. Upon determination of the Base Rent for the
Extended Term pursuant to the foregoing, the parties agree to
execute an amendment to the Lease acknowledging the same.
3. PAYMENT OF RENT. Tenant shall pay Landlord the Rent and
Additional Rent (as defined in Article 10, Article 17, and
elsewhere in this Lease) and any other payments due under this
Lease without prior notice, deduction or offset, in lawful money
of the United Sates in advance on or before the first day of each
month, except that the first month's Rent shall be paid upon the
execution hereof, at the address noted in Section 1.4, or to such
other party or at such other place as Landlord may hereafter from
time to time designate in writing. Rent and other amounts due
under this Lease for any partial month at the beginning or end of
the Lease term shall be prorated.
4. [INTENTIONALLY DELETED].
5. SECURITY DEPOSIT. As security for its full and faithful
performance of this Lease, Tenant shall pay Landlord a security
deposit of Nine Thousand Three Hundred Seventy One and 85/100
Dollars ($9,371.85) upon execution of this Lease. If Tenant
defaults with respect to any covenant or condition of this Lease,
including but not limited to the payment of Rent, Additional Rent
or any other payment due under this Lease, Landlord may apply all
or any part of the security deposit to the payment of any sum in
default or any other sum which Landlord may be required or deem
necessary to spend or incur by reason of Tenant's default. In such
event, Tenant shall, upon demand, deposit with Landlord the amount
so applied to replenish the security deposit within ten (10) days
of Landlord's demand therefor. If Tenant shall have fully complied
with all of the covenants and conditions of this Lease, (or if
otherwise, promptly following determination of Tenant's liability
for such failures to comply), the amount of the security deposit
or any remaining balance thereof, then held by Landlord shall be
repaid to Tenant within thirty (30) days after the expiration or
sooner termination of this Lease. Landlord may, in the event the
security deposit is depleted, at Landlord's election, apply any
Rent or Additional Rent prepaid by Tenant to replenish the
deposit. Landlord shall not be required to keep this security
deposit separate from its other funds unless required by law, and
Tenant shall not be entitled to interest on such deposit. As
additional security for Tenant improvement dollars spent by
Landlord, and as a precondition to this Lease becoming effective,
Tenant shall provide to Landlord on the date of execution of this
Lease, a clean, irrevocable letter of credit as security for the
performance of the obligations of Tenant hereunder, subject to the
terms and conditions set forth in this Section 5, in an amount
equal to Twenty Six Thousand One Hundred Fifty Four and 00/100
Dollars
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($26,154.00) ("Initial Amount"). Because the exact amount of the
Tenant improvement dollars to be spent by Landlord has not been
determined as of the execution of this Lease, upon such
determination, Tenant may, at Tenant's sole cost, replace the
existing Letter of Credit with a Letter of Credit otherwise
meeting the requirements hereof in an amount based on the actual
initial amount ($3.00 per square foot x 50%). Any letter of credit
delivered hereunder shall be issued in favor of Landlord by a
Massachusetts bank (and otherwise be in form and substance)
acceptable to Landlord. For so long as no default beyond
applicable notice and grace periods, if any, has occurred under
the Lease (and no event has occurred or condition exists which
with notice and/or the passage of time would give rise to such a
default), on each anniversary of the delivery of the initial
letter of credit Tenant may replace the then existing letter of
credit with a new letter of credit in substantially the same form
in accordance with the following schedule:
Replacement Date Amount
First Anniversary 60% x Initial Amount
Second Anniversary 30% x Initial Amount
Third Anniversary Zero
It shall constitute an immediate event of default if
(i) Landlord shall not have at all required times a valid letter
of credit in the form and amounts set forth above or (ii) if less
than five (5) Business Days remain before any letter of credit
held by Landlord expires. If Tenant shall fail to perform any of
its obligations under the Lease beyond applicable notice and grace
periods, if any, Landlord may, but shall not be obliged to, draw
the entire amount of the letter of credit and apply the amount
necessary to cure the default. The balance shall be held by
Landlord as a security deposit for the performance of Tenant's
remaining obligations hereunder, and Tenant shall be obligated
upon demand to restore the cash security deposit from time to time
to the amount of the letter of credit required hereunder prior to
the original default by Tenant. Any cash security deposit
hereunder may be mingled with other funds of Landlord and no
fiduciary relationship shall be created with respect to such
deposit, nor shall Landlord be liable to pay Tenant any interest
thereon. Within thirty (30) days after the expiration of the third
year of the Term, the letter of credit, to the extent not drawn or
applied, shall be returned to Tenant, without interest.
6. USES.
6.1 Permitted Uses. The Premises are to be used only for
first-class office uses and storing, warehousing, and distribution
of electronic payment systems and software, and ancillary uses
related thereto ("Permitted Uses") and for no other business or
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purpose without the prior written consent of Landlord. Tenant
agrees not to overload the floors of the Building. No act shall be
done in or about the Premises that is unlawful or that will
increase the existing rate of insurance on the Building. In the
event of a breach of this covenant, Tenant shall pay to Landlord
any and all increases in insurance premiums resulting from such
breach. Tenant shall not commit or allow to be committed any waste
upon the Premises, or any public or private nuisance or other act
or thing which disturbs the quiet enjoyment of the occupancy of
any adjacent property. Tenant, at its expense, shall comply with
all laws relating to its use or occupancy of the Premises and
shall observe such reasonable rules and regulations as may be
adopted and made available to Tenant by Landlord from time to time
for the safety, care and cleanliness of the Premises or the
Building and for the preservation of good order therein. Tenant
shall be exclusively responsible for determining that its use of
the Premises complies with applicable zoning and other laws.
6.2 Hazardous Materials.
6.2.1 As used herein, the term "Hazardous Material" shall mean
any substance or material which has been determined by any state,
federal or local governmental authority to be capable of posing a
risk of injury to health, safety or property, including all of
those materials and substances designated as hazardous or toxic by
the city in which the Premises are located, the U.S. Environmental
Protection Agency, the Consumer Product Safety Commission, the
Food and Drug Administration, and any federal agencies that have
overlapping jurisdiction with such state agencies, or any other
governmental agency now or hereafter authorized to regulate
materials and substances in the environment.
6.2.2 Tenant agrees not to introduce any Hazardous Material
in, on or adjacent to the Premises without complying with all
applicable federal, state and local laws, rules, regulations,
policies and authorities relating to the storage, use or disposal,
and clean-up of Hazardous Materials, including, but not limited
to, the obtaining of proper permits.
6.2.3 Tenant shall immediately notify Landlord of any inquiry,
test, investigation, or enforcement proceeding by or against
Landlord or the Premises concerning a Hazardous Material. Tenant
acknowledges that Landlord, as the owner of the Premises, shall
have the right, at its election, in its own name or as Tenant's
agent, to negotiate, defend, approve, and appeal, at Tenant's
expense, any action taken or order issued with regard to a
Hazardous Material by an applicable governmental authority which
Hazardous Material has been introduced in, on or near to the
Building by Tenant or those claiming by or through Tenant.
6.2.4 If Tenant's storage, use or disposal of any Hazardous
Material in, on or adjacent to the Premises results in any
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contamination of the Premises, the soil or surface or groundwater
(i) requiring remediation under federal, state or local statutes,
ordinances, regulations or policies, or (ii) at levels which are
unacceptable to Landlord, in Landlord's reasonable judgment,
Tenant agrees to clean-up the contamination. Tenant further agrees
to indemnify, defend and hold Landlord harmless from and against
any claims, suits, causes of action, costs, fees, including
attorneys' fees and costs, arising out of or in connection with
any clean-up work, inquiry or enforcement proceeding in connection
therewith, and any Hazardous Materials currently or hereafter
used, stored or disposed of by Tenant or its agents, employees,
contractors or invitees on or about the Premises. Tenant shall not
be responsible for Hazardous Materials existing at the Building or
in the Premises prior to the Commencement Date.
6.2.5 Notwithstanding any other right of entry granted to
Landlord under this Lease, Landlord shall have the right to enter
the Premises or to have consultants enter the Premises throughout
the term of this Lease for the purpose of determining: (1) whether
the Premises are in conformity with federal, state and local
statutes, regulations, ordinances, and policies including those
pertaining to the environmental condition of the Premises, (2)
whether Tenant has complied with this Section 6, and (3) the
corrective measures, if any, required of Tenant to ensure the safe
use, storage and disposal of Hazardous Materials, or to remove
Hazardous Materials. Tenant agrees to provide access and
reasonable assistance for such inspections. Such inspections may
include, but are not limited to, entering the Premises or adjacent
property with drill rigs or other machinery for the purpose of
obtaining laboratory samples. Landlord shall not be limited in the
number of such inspections during the term of this Lease. If
Hazardous Materials are determined to be on or about the Premises
in a manner inconsistent with this Article 6 due to Tenant's acts
or omissions or due to the acts or omissions those claiming by or
though Tenant, Tenant shall reimburse Landlord for the cost of
such inspections within ten (10) days of receipt of a written
statement therefor. If such consultants determine that the
Premises are contaminated with Hazardous Materials introduced in,
on or near to the Building by Tenant or those claiming by or
through Tenant, Tenant shall, in a timely manner, at its expense,
remove such Hazardous Materials or otherwise comply with the
recommendations of such consultants to the reasonable satisfaction
of Landlord and any applicable governmental agencies. The right
granted to Landlord herein to inspect the Premises shall not
create a duty on Landlord's part to inspect the Premises, or
liability of Landlord for Tenant's use, storage or disposal of
Hazardous Materials, it being understood that Tenant shall be
solely responsible for all liability in connection therewith.
6.2.6 Tenant shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease free of Hazardous
Materials introduced in, on or near to the Building by
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Tenant or those claiming by or through Tenant, and in a condition
which complies with all governmental statutes, ordinances,
regulations and policies, recommendations of consultants hired by
Landlord, and such other reasonable requirements as may be imposed
by Landlord.
6.2.7 Tenant's obligations under this Article 6 shall survive
termination of this Lease.
7. LATE CHARGES. Tenant hereby acknowledges that late payment
to Landlord of Rent, Additional Rent or other sums due hereunder
will cause Landlord to incur costs not contemplated by this Lease,
the exact amount of which will be extremely difficult to
ascertain. If any Rent, Additional Rent or other sum due from
Tenant is not received by Landlord or Landlord's designated agent
within five (5) days of the date when due, then Tenant shall pay
to Landlord a late charge equal to five percent (5%) of such
overdue amount, plus any reasonable attorneys' fees incurred by
Landlord by reason of Tenant's failure to pay Rent and other
charges when due hereunder. The parties hereby agree that such
late charges represent a fair and reasonable estimate of the cost
that Landlord will incur by reason of Tenant's late payment.
Landlord's acceptance of such late charges shall not constitute a
waiver of Tenant's default with respect to such overdue amount or
estop Landlord from exercising any of the other rights and
remedies granted hereunder.
8. REPAIRS AND MAINTENANCE.
8.1 Landlord's Obligation. Landlord agrees to keep in good
repair, at its expense, the structural portions of the roof,
foundations, and exterior walls of the Building and underground
utility and sewer pipes outside the exterior walls of the
Building, if any, except repairs rendered necessary by the
negligence of Tenant, or Tenant's employees, guests, agents,
customers, independent contractors or invitees, the repair of
which shall be paid for by Tenant within ten (10) days of
Landlord's written demand, except as covered by the waiver of
subrogation referenced in Section 19 hereof. Landlord also agrees
to keep in good condition and repair and perform the periodic
maintenance of the Common Areas, the Outside Area, as defined in
Section 10.1.3, the Building systems (including, without
limitation, the HVAC, electrical and plumbing systems), glass and
exterior doors, and the roof membrane, at a cost to be paid by
Tenant pursuant to Article 10. Landlord shall be under no
obligation to inspect the interior of the Building. Tenant shall
promptly report in writing to Landlord any defective condition
known to it which Landlord is required to repair.
8.2 Tenant's Obligations. Tenant accepts the Premises in
their present condition subject to the completion of Landlord's
Work and as suited for the uses intended by Tenant. Tenant shall,
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throughout the initial term of this Lease and any renewals
thereof, at its expense, maintain the Premises in substantially
the same condition they were in on the Commencement Date, except
those repairs expressly required to be made by Landlord. Tenant
agrees to return the Premises to Landlord at the expiration or
prior termination of this Lease in as good condition and repair as
when first received, normal wear and tear, damage by storm, fire,
lightning, earthquake or other casualty and eminent domain
excepted. Tenant hereby waives any law regarding Tenant's right to
make repairs and deduct the expenses of such repairs from the Rent
due under the Lease.
9. UTILITIES AND SERVICES.
9.1 Utility Bills. Tenant shall promptly pay to the supplying
utility all electricity, fuel, phone, light, heat, electric power
and other utility bills for the Premises which are currently
separately metered. If Tenant does not pay these bills, Landlord
may pay them and such payment shall be added to the Rent. Tenant
will be billed its Proportionate Share for Common Area electric
and HVAC. Tenant will also pay its Proportionate Share for all
water, sewer and gas supplied to the Property.
9.2 Disclaimer. Except in the case of Landlord's gross
negligence, Landlord shall not be liable for any loss, injury or
damage to property caused by or resulting from any variation,
interruption, or failure of such services due to any cause
whatsoever, or from failure to make any repairs or perform any
maintenance. No temporary interruption or failure of such services
incident to the making of repairs, alterations, or improvements,
or due to accident, strike, or conditions or events beyond
Landlord's reasonable control shall be deemed an eviction of
Tenant or relieve Tenant from any of Tenant's obligations
hereunder. In no event shall Landlord be liable to Tenant for any
damage to the Premises or for any loss, damage or injury to any
property therein or thereon occasioned by bursting, rupture,
leakage or overflow of any plumbing or other pipes (including,
without limitation, water, steam, and/or refrigerant lines),
sprinklers, tanks, drains, drinking fountains or washstands, or
other similar cause in, above, upon or about the Premises or the
Building.
9.3 Heat Producing Equipment. Before installing any equipment
or lights which generate an undue amount of heat in the Premises
or if Tenant plans to use any high-power usage equipment in the
Premises, Tenant shall obtain the written permission of Landlord.
Landlord may refuse to grant such permission unless Tenant agrees
to pay the costs to Landlord for installation of supplementary air
conditioning capacity or electrical systems necessitated by such
equipment. In addition, Tenant shall, in advance, on the first day
of each month during the Lease term, pay Landlord the reasonable
amount estimated by Landlord as the cost of furnishing electricity
for the operation of such high-power usage
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equipment and the cost of operation and maintenance of
supplementary air conditioning units necessitated by Tenant's use
of any equipment which generates an undue amount of heat. Landlord
shall be entitled to install and operate at Tenant's cost, a
monitoring/metering system in the Premises to measure the added
demands on electricity, heating, ventilation, and air conditioning
systems resulting from Tenant's heat generating or high-power
equipment usage, and after-hours service requirements. At
Landlord's option, Landlord may require Tenant to remove, at
Tenant's expense, any such electrical systems or supplementary air
conditioning system upon termination of the Lease, and Tenant
shall repair any damage to the Premises or the Building caused by
such removal.
10. ADJUSTMENTS.
10.1 Definition. In addition to the rent, and as additional
rent ("Additional Rent"), Tenant shall pay to Landlord the
applicable Tenant's Proportionate Share of the total cost of the
following items, it being the parties intention that Tenant's
occupancy hereunder be on an absolutely net basis to Landlord:
10.1.1 All Property Taxes. "Property Taxes" shall be defined
to include any form of assessment, license, fee, rent, tax, levy,
penalty (if a result of Tenant's delinquency), or tax (other than
net income, estate, succession, inheritance, transfer or franchise
taxes), imposed by an authority having the direct or indirect
power to tax, or by any city, county, state or federal government
or any improvement or other district or division thereof, whether
such tax is: (i) determined by the area of the Premises or the
Building or any part thereof or the Rent and other sums payable
hereunder by Tenant, including, but not limited to, any gross
income or excise tax levied by any of the foregoing authorities
with respect to receipt of such rent or other sums due under this
Lease; (ii) upon any legal or equitable interest of Landlord in
the Premises or the Building or any part thereof; (iii) upon this
transaction or any document to which Tenant is a party creating or
transferring any interest in the Premises or the Building; (iv)
levied or assessed in lieu of, in substitution for, or in addition
to, existing or additional taxes against the Premises or the
Building whether or not now customary or within the contemplation
of the parties; or (v) surcharged against the parking area.
10.1.2 All insurance premiums for the Property. Such insurance
premiums shall include all insurance premiums for fire
("All-Risk"), extended coverage, public liability, and other
insurance which Landlord reasonably deems necessary;
10.1.3 All reasonable costs to operate, maintain, clean,
repair, replace, supervise, insure and administer the Property
including, without limitation, the Building, the Common Areas and
the areas outside the Building including, but not limited to,
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parking areas, landscaping, sidewalks, signage, and the Building
roof membrane("Outside Areas"), and the Building systems
(including HVAC, electrical and plumbing). Provided, however, that
any of such expenses and costs which would be deemed capital
improvements in accordance with GAAP shall be amortized over their
useful life in accordance with 10.1.7.
10.1.4 Any parking charges or other costs levied, assessed or
imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations thereof, promulgated by any
governmental authority or insurer in connection with the use or
occupancy of the Premises or the common areas of the Building;
10.1.5 Cost incurred by Landlord for electricity, fuel, water
and sewer use charges, and all other utilities supplied to the
Property, and fees for any public services rendered to the
Property, except for those actually paid or reimbursed to Landlord
by tenants of the Property.
10.1.6 Any reasonable property management fees not to exceed
fees charged typically in other similar office buildings in the
Westborough, Massachusetts area, and reasonable administrative
costs, including, but not limited to, the cost of compensation
(including employment taxes and fringe benefits) of all persons
who perform regular and recurring duties connected with the
Property and the Building, and any reasonable costs incurred in
connection with employing a tax advisory service to obtain an
abatement of Property Taxes or to appeal the valuation of the
Building and/or real property on which it is situated; and
10.1.7 Amortization over its useful life of any energy
management system or other capital improvements installed by
Landlord, adding thereto a reasonable interest factor (taking into
account the rate then being charged by institutional lenders for
loans to finance the item over its useful life) on the unamortized
portion of the improvement.
Notwithstanding the foregoing, the following items shall be
excluded from those items which Landlord shall be entitled to
charge Tenant its Proportionate Share under this Article 10:
Salaries, wages, benefits and other expenses of administrative
employees and other persons not involved in the daily operations
of the Building (but charges for periodic, not daily, maintenance
personnel shall be included as chargeable expenses); principal,
interest or other charges relating to indebtedness secured by a
mortgage covering any portion of the Building or the Land; capital
expenditures for effecting any expansion of the rentable area of
the Building; expenses relative to any utility or other service
used or consumed in the premises leased to any tenant or occupant,
but only if Tenant's use or consumption of such utility or other
services is separately metered or submetered at the Premises;
12
expenses relative to efforts to lease portions of the Building or
to procure new tenants for the Building, including advertising
expenses, leasing commissions and attorney's fees; negotiations or
disputes with any tenant of the Building; Landlord's general
overhead costs not directly related to the management or
operations of the Building; depreciation of the Building; repairs
and replacements arising out of a fire or other casualty or an
exercise of the eminent domain of the Building except that
insurance deductibles payable shall be properly chargeable;
Landlord's breach or violation of a law, lease or other obligation
(unless resulting from a Tenant breach of this Lease), including
fines, penalties and attorneys' fees, compensation paid to
employees or other persons in connection with commercial
concessions operated by Landlord; fees for licenses, permits or
inspections that are not part of routine maintenance of the
Building or result from the act or negligence of Landlord or any
other tenant of the Building; environmental testing, remediation
and compliance relating to Hazardous Materials existing at the
Building prior to the Commencement Date hereof; compliance by
Landlord with laws existing as of the date of this Lease,
including without limitation the Americans with Disabilities Act
and the regulations and standards thereunder, except to the extent
provided due to the specific nature of Tenant's occupancy (as
opposed to general office use); sculptures, paintings and other
works of art; repairs necessary to cure defects in the
construction of any structural portion or component of the
Building; any items with respect to which Landlord actually
receives reimbursement from insurance proceeds or from a third
party.
10.2 Monthly Payments. Upon the commencement of this Lease,
Landlord shall submit to Tenant a good faith estimate of monthly
Adjustments for the period between the Commencement Date and the
following January 1, and Tenant shall pay these estimated
Adjustments as additional rent ("Additional Rent") on a monthly
basis concurrently with the payment of the Rent. Tenant shall
continue to make such monthly payments for every month of the term
until notified by Landlord of any change therein. By March 1 of
each year, Landlord shall provide to Tenant a statement showing
the total Adjustments for the prior calendar year, prorated from
the Commencement Date of this Lease during the first year. If the
total monthly payments which Tenant has made for the prior
calendar year (or portion thereof during which this Lease was in
effect) is less than the actual Adjustments chargeable to Tenant,
then Tenant shall pay the difference in a lump sum within fifteen
(15) days after receipt of such statement from Landlord. Any
overpayment by Tenant shall be credited towards the Adjustments
next due. The actual Adjustments for the prior year shall be used
for purposes of calculating the estimated monthly Adjustments for
the current year with actual determination of such Adjustments
occurring after the end of each calendar year, except that in any
year in which resurfacing of the common parking area or major roof
repairs are planned, Landlord may include in the manner specified
in Section 10.1 hereof the estimated cost of such work in the
estimated
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monthly Adjustments. Even though the term of this Lease has
expired and Tenant has vacated the Premises, when the final
determination is made of Adjustments for the year in which this
Lease terminates, Tenant shall immediately pay any increase over
the estimated Adjustments previously paid and, conversely, any
overpayment shall be immediately returned by Landlord to Tenant.
Failure of Landlord to submit statements as called for herein
shall not be deemed a waiver of Tenant's obligation to pay
Adjustments as herein provided; however, Landlord shall not
enforce its remedies against Tenant for nonpayment of Adjustments
unless statements as called for herein have been supplied to
Tenant.
11. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be
paid, before delinquency any and all taxes levied or assessed and
which become payable during the term of this Lease upon all
Tenant's leasehold improvements, equipment, furniture, fixtures,
and any other trade fixtures and personal property located on the
Premises. In the event any or all of Tenant's leasehold
improvements, equipment, furniture, fixture, and any other
personal property and trade fixtures shall be assessed and taxed
with Property Taxes, Tenant shall pay to Landlord its share of
such taxes within ten (10) days after delivery to Tenant by
Landlord of a statement in writing setting forth the amount of
such taxes applicable to Tenant's property but such taxes
attributable to Tenant's property shall not be included in the
Adjustment under Section 10.1.1.
12. LIABILITY INSURANCE. Tenant shall, at Tenant's expense,
obtain and keep in force during the term of this Lease a policy of
comprehensive general liability insurance including personal
injury liability, contractual liability, products and completed
operations liability and liquor liability (if applicable),
insuring Tenant against liability arising out of the use and
occupancy of the Premises and naming Landlord as an additional
insured. Such insurance shall be in the amount of not less than
Two Million and no/100ths Dollars ($2,000,000.00) for bodily
injury and property damage for any one accident or occurrence or
in the aggregate. Fire legal liability insurance in an amount of
not less than Fifty Thousand and no/100ths Dollars ($50,000.00)
shall also be obtained and kept in force during the term of this
Lease at Tenant's expense. The limit of any of such insurance
shall not limit the liability of Tenant hereunder. Tenant may
provide this insurance under a blanket policy, provided that
Landlord is named as an additional insured. If Tenant fails to
procure and maintain such insurance, Landlord may, but shall not
be required to, procure and maintain the same, at Tenant's expense
to be reimbursed by Tenant within ten (10) days of written demand.
All insurance required to be obtained by Tenant hereunder shall be
issued by companies reasonably acceptable to Landlord. Tenant
shall deliver to Landlord certified copies of policies or, at
Landlord's discretion, certificates of liability insurance
required herein with loss payable clauses satisfactory to Landlord
prior to the Commencement
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Date. Any deductible under such insurance policy in excess of Two
Thousand Five Hundred and no/100ths Dollars ($2,500.00) must be
approved by Landlord in writing prior to issuance of such policy.
No policy shall be cancellable or subject to reduction of coverage
except upon twenty (20) days' prior written notice to Landlord.
All such policies shall name Landlord and its agents as additional
insureds (except with respect to loss of rents for which Landlord
shall be named as "loss payee"), shall be written as primary
policies not contributing with and not in excess of coverage which
Landlord may carry, and shall be written with an insurance carrier
satisfactory to Landlord. From time to time, as Landlord deems
necessary, the insurance coverage and limits of such coverage
required hereunder will be reviewed by Landlord, and Tenant will
be notified of any revisions or increases thereto reasonably
required by Landlord. Tenant shall obtain any revised or increased
coverage required by Landlord within thirty (30) days of any such
notification from Landlord.
13. FIRE INSURANCE - FIXTURES AND EQUIPMENT. Tenant shall
maintain in full force and effect on all trade fixtures and
equipment and other personal property on the Premises, a policy of
all risk property insurance covering the full replacement value of
such property. During the term of this Lease, the proceeds from
any such policy of insurance shall be used for the repair or
replacement of the fixtures and equipment so insured. Landlord
shall have no interest in the insurance upon Tenant's equipment
and fixtures and will sign all documents reasonably necessary or
proper in connection with the settlement of any claim or loss by
Tenant. Landlord will not carry insurance on Tenant's possessions.
Tenant shall furnish Landlord with certificate of insurance
evidencing that the requirements set forth herein are in full
force and effect. Any deductible in excess of Two Thousand Five
Hundred and no/100ths Dollars ($2,500.00) under such insurance
must be approved in writing by Landlord prior to issuance of such
policy. Tenant shall provide Landlord with notice of loss or
damage to property within forty-eight (48) hours after such loss
or damage occurs. Tenant shall provide and keep in force with
companies satisfactory to Landlord, business interruption and/or
loss of rental insurance in an amount equivalent to twelve (12)
months Rent and Additional Rent which shall not contain a
deductible greater than One Thousand Dollars ($1,000.00). Tenant
shall furnish Landlord with certificate of such insurance naming
Landlord as an additional insured. No policy shall be cancelable
or subject to reduction of coverage except upon twenty (20) days'
prior written notice to Landlord. Landlord agrees during the Term
of this Lease to maintain fire and extended casualty insurance,
insuring 100% of the insurable replacement value of the Building
(exclusive of land and foundations).
14. DESTRUCTION AND DAMAGE.
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14.1 Casualty Damage - Insured. If the Building is damaged by
fire or other perils the following provisions shall apply:
14.1.1 Total Destruction. In the event of total destruction of
the Building, Landlord shall elect either to promptly commence
repair and restoration of the Building and prosecute the same
diligently to completion, in which event this Lease shall remain
in full force and effect, or not to repair or restore the
Building, in which event this Lease shall terminate. In either
case, Landlord shall give Tenant written notice of its intention
within sixty (60) days after the occurrence of such destruction.
If Landlord elects not to restore the Building, this Lease shall
be deemed to have terminated as of the date of such total
destruction. In the event (i) such total destruction occurs during
the final year of the Lease Term or (ii) such repair or
restoration is not completed within 180 days of the destruction,
Tenant shall have the option to terminate this Lease by written
notice to Landlord in which event this Lease shall terminate
unless Landlord substantially completes the restoration within
thirty (30) days of such notice in which event this Lease shall
continue in full force and effect.
14.1.2 Partial Destruction. In the event of a partial
destruction of the Building to an extent not exceeding twenty-five
percent (25%) of the full insurable value thereof and if the
damage thereto is such that the Building may be repaired or
restored within one hundred eighty (180) days from the date of
such destruction and Landlord will receive insurance proceeds
sufficient to cover the cost of such repairs, Landlord shall
commence and proceed diligently with the work of repair and
restoration, in which event the Lease shall continue in full force
and effect; or if such repair and restoration requires longer than
one hundred eighty (180) days or the cost thereof exceeds
twenty-five percent (25%) of the full insurable value thereof or
if the insurance proceeds payable to Landlord will not be
sufficient to cover such cost, Landlord may elect either to so
repair and restore, in which event the Lease shall continue in
full force and effect, or not to repair, reconstruct or restore,
in which event the Lease shall terminate. In either case, Landlord
shall give written notice to Tenant of its intention within sixty
(60) days after the destruction occurs. If Landlord elects not to
restore the Building, this Lease shall be deemed to have
terminated as of the date of such partial destruction. If Landlord
elects to restore the Building but fails to substantially complete
the Building within one hundred eighty (180) days of such partial
destruction, Tenant shall have the right to terminate this Lease
by written notice to Landlord in which event this Lease shall
terminate thirty (30) days thereafter unless the Building is
substantially completed within such thirty (30) days in which
event the Lease shall continue in full force and effect.
14.2 Release. Upon any termination of this Lease under any
of the provisions of this article, the parties shall be released
16
thereby without further obligation to the other from the date of
the damage or destruction, except for items which accrued prior to
the date of such fire or other casualty and are then unpaid.
14.3 Rent Abatement. In the event of total or partial
destruction as herein provided, the monthly installments of Rent,
Additional Rent and all other charges due hereunder shall be
abated proportionately in the ratio which the Tenant's use of the
Premises is impaired from the date of such destruction until such
repair, reconstruction or restoration is completed or the lease
terminated as allowed hereunder; provided, however, if the damage
is due, directly or indirectly, to the fault or neglect of Tenant,
or its officers, contractors, licensees, agents, servants,
employees, guests, invitees or visitors, there shall be no
abatement of Rent, except to the extent Landlord receives proceeds
from any applicable insurance policy of Tenant to compensate
Landlord for loss of Rent. Tenant shall not be entitled to any
compensation or damages for loss of use of the whole or any part
of said Premises and/or any inconvenience or annoyance occasioned
by such damage, repair, reconstruction or restoration.
14.4 Delay. Tenant shall not be released from any of its
obligations under this Lease except to the extent and upon the
conditions expressly stated in this article. Notwithstanding
anything to the contrary contained in this article, if Landlord
has elected to repair and restore the Premises and is thereafter
delayed or prevented from repairing or restoring the Premises
within nine (9) months after the occurrence of such damage or
destruction by reason of acts of God, war, governmental
restrictions, inability to procure the necessary labor or
materials, or other cause beyond the control of Landlord, Landlord
shall be relieved of its obligation to make such repairs or
restoration and, Tenant shall be released from its obligations
under this Lease if Tenant notifies Landlord at the end of such
nine(9) month period of Tenant's desire to terminate this Lease
and if Landlord fails to substantially complete the repairs, or
restoration within sixty (60) days thereafter, this Lease shall
terminate at the expiration of such sixty (60) day period. If such
repairs and restoration are substantially completed within such
sixty (60) day period, this Lease shall continue in full force and
effect.
14.5 Uninsured Damage. If damage in excess of 25% of the
insurable value of the Building is due to any cause other than
fire or other peril covered by extended coverage insurance,
Landlord may elect to terminate this Lease.
14.6 Repair Obligation. If Landlord is obligated to or elects
to repair or restore as herein provided, Landlord shall repair or
restore only those portions of the Building and Premises which
were originally provided at Landlord's expense; and the
17
repair and restoration of areas or items not provided at
Landlord's expense shall be the obligation of Tenant.
14.7 End of Term. Notwithstanding anything to the contrary
contained in this article, Landlord may elect to terminate this
Lease in the event of damage in excess of ten percent (10%) of the
insurable value of the Building to the Building or the Premises
occurring during the last (12) months of the Lease or any
extension thereof; and Landlord shall not have any obligation to
repair or restore the Premises or the Building during the last
twelve (12) months of this Lease or any extension thereof.
14.8 Waiver. Any provisions of any state law which permit
termination of a lease upon destruction of the leased premises,
are hereby waived by Tenant; and the provisions of this article
shall govern in case of such destruction.
15. ALTERATIONS AND ADDITIONS: REMOVAL OF FIXTURES. Tenant
shall not make or allow to be made any alterations, additions or
improvements to or on the Premises without first obtaining the
written consent of Landlord which consent shall not be
unreasonably withheld, conditioned or delayed. Any such
alterations, additions or improvements made, including, but not
limited to, wall covering, paneling and built-in cabinet work, but
excepting furniture and trade fixtures, shall be made at Tenant's
sole expense, according to plans and specifications approved in
writing by Landlord, in compliance with all applicable laws, by a
licensed contractor, and in a good and workmanlike manner
conforming in quality and design with the Premises existing as of
the Lease Commencement Date, shall not diminish the value of the
Building or the Premises and shall at once become a part of the
realty and shall be surrendered with the Premises unless otherwise
agreed in writing with Landlord at the time consent is given. Upon
the expiration or sooner termination of the term hereof, Tenant
shall, at Tenant's sole expense, with due diligence, remove any
alterations, additions, or improvements made by Tenant, designated
by Landlord to be removed at the time Landlord consented to the
installation of the alterations, additions or improvements, and
repair any damage to the Premises caused by such removal. Tenant
shall remove all of its property and trade fixtures at the
termination of this Lease, either by expiration of the term or
other cause, and shall repair any damage to the Premises or
Building resulting from such removal. If Tenant shall fail to
remove any of its property of any nature whatsoever from the
Premises or the Building at the termination of this Lease or when
Landlord has the right of re-entry, Landlord may, in accordance
with the provisions of applicable statutes governing commercial
landlord and tenant matters (including requirements of notice to
Tenant), remove and store such property without liability for loss
thereof or damage thereto, such storage to be for the account and
at the expense of Tenant. If Tenant shall not pay the cost of
storing any such property after it has been stored for a period of
thirty (30) days or more, Landlord may, at its option,
18
sell, or permit to be sold, any or all such property at public or
private sale, in such manner and at such times and places as
Landlord, in its sole discretion, may deem proper, without notice
to Tenant, unless notice is required under applicable statutes,
and shall apply the proceeds of such sale: first, to the cost and
expense of such sale, including reasonable attorneys' fees
actually incurred; second, to the payment of the costs or charges
for storing any such property; third, to the payment of any other
sums of money which may then be or thereafter become due Landlord
from Tenant under any of the terms hereof; and fourth, the
balance, if any, to Tenant.
16. ACCEPTANCE OF PREMISES. Unless Landlord has expressly
agreed in this Lease to perform certain tenant improvement work in
the Premises, Tenant shall be deemed to have accepted the Premises
on the Lease Commencement Date in their "as is" condition. If this
Lease is entered into prior to the completion of construction of
the Building, or if tenant improvements are to be constructed by
Landlord in the premises, the acceptance of the Premises by Tenant
shall be deferred until receipt by the Tenant of an architect's
certificate of readiness certifying that the Premises are ready
for occupancy. Within five (5) days after the architect gives such
notice, Tenant shall make such inspection of the Premises as
Tenant deems appropriate, and, except as otherwise notified by
Tenant in writing to Landlord within such period, Tenant shall be
deemed to have accepted the Premises in their then condition. If,
as a result of such inspection, Tenant discovers minor deviations
or variations from the plans and specifications for Tenant's
improvements of a nature commonly found on a "punch list" (as that
term is used in the construction industry), Tenant shall promptly
notify Landlord of such deviations. The existence of such punch
list items shall not postpone the Lease Commencement Date of this
Lease nor the obligation of Tenant to pay Rent, Additional Rent or
any other charges due under this Lease but Landlord shall repair
or complete such items within thirty (30) days of receipt of
Tenant's "punch list" or such longer time as is reasonably needed
to complete the same with due diligence.
17. TENANT IMPROVEMENTS. Except for the Landlord's Work, as
hereinafter defined, the Premises are being leased on an "as is"
basis. Landlord agrees to provide an allowance of up to $52,308.00
($3.00 per rentable square feet of space in the Premises (the
"Allowance") for the acquisition and installation of the Leasehold
Improvements to the Premises all as more specifically described in
Exhibit LI attached hereto. Landlord agrees to construct at
Tenant's expense (subject to Landlord's payment of the Allowance),
the improvements to the Premises set forth in EXHIBIT B, attached
hereto and incorporated herein by this reference. Disbursements of
the Allowance will occur in the manner set forth in Exhibit LI
attached hereto.
19
Tenant agrees to reimburse Landlord for the Allowance actually
expended by paying to Landlord on the first day of each month
during the Term, as Additional Rent, the amount necessary to
amortize fully the Allowance over the initial five (5) year Term
plus annual interest thereon of ten percent (10.0%) per annum. In
addition to the Allowance, Landlord agrees to build any demising
walls which may be required and to make certain carpeting and wall
finish/painting improvements to the Common Area (all finish work,
materials selection and scope of work shall be at Landlord's sole
discretion) (as defined in Exhibit LI, the "Landlord's Work"), as
Landlord and Tenant mutually agree, prior to the commencement of
the Term, at Landlord's cost. The Landlord's Work is included in
the Base Rent and is not to be reimbursed by Tenant or included in
the Adjustments due under Section 10.
18. ACCESS. Tenant shall permit Landlord and its agents to
enter the Premises at all reasonable times and after reasonable
notice to inspect the same; to show the Premises to prospective
tenants (during the last nine months of the Term), or interested
parties such as prospective lenders and purchasers; to clean,
repair, alter or improve the Premises or the Building; to
discharge Tenant's obligations when Tenant has failed to do so
within a reasonable time after written notice from Landlord; to
post notices of nonresponsibility and similar notices and "For
Sale" signs; and to place "For Lease" signs upon or adjacent to
the Building or the Premises at any time within twelve (12) months
of the expiration of the term of this Lease. In entering Tenant's
Premises for the above-described purposes, Landlord agrees not to
unreasonably interfere with Tenant's business activities in the
Premises. Tenant shall permit Landlord and its agents to enter the
Premises at any time in the event of an emergency. When reasonably
necessary, Landlord may temporarily close entrances, doors,
corridors, elevators or other facilities without liability to
Tenant by reason of such closure and without such action by
Landlord being construed as an eviction of Tenant or a release of
Tenant from the duty of observing and performing any of the
provisions of this Lease. In exercising its right to enter the
Premises under this Section, Landlord agrees to consider Tenant's
reasonable business and security concerns.
19. WAIVER OF SUBROGATION. Landlord and Tenant each hereby
release the other from any and all liability or responsibility to
the other (or any one claiming through or under them by way of
subrogation or otherwise) for any loss or damage to the Building,
the Premises, or property therein or for any business interruption
or loss of rental income against which the waiving party is
protected by insurance or required to be protected by insurance
under this Lease, even if such loss or damage is caused by the
fault or negligence of the other party, or any one for whom such
party is responsible. Landlord and Tenant shall cause its
insurance carrier(s) to consent to such waiver of all rights of
subrogation against the other party. Upon either party's request
20
the other party shall provide a copy of any such insurance
policies evidencing such a waiver of subrogation rights against
the other party.
20. INDEMNIFICATION. To the extent not reimbursable by
insurance, Tenant shall indemnify and hold harmless Landlord, its
agents, employees, officers, directors, partners and shareholders
from and against any and all liabilities, judgments, demands,
causes of action, claims, losses, damages, costs and expenses,
including reasonable attorneys' fees and costs, arising out of the
use, occupancy, conduct, operation, or management of the Premises,
or the willful misconduct or negligence of, Tenant, its officers,
contractors, licensees, agents, servants, employees, guests,
invitees, or visitors in or about the Building or arising from any
breach or default under this Lease by Tenant, or arising from any
accident, injury, or damage, howsoever and by whomsoever caused,
to any person or property, occurring in or about the Premises
except to the extent caused by the gross negligence or willful
misconduct of Landlord, its agents, employees or contractors or in
or about the Building to the extent caused by Tenant's (or
Tenant's agent, employees, or contractors) negligence or willful
misconduct. This indemnification shall survive termination of this
Lease. This provision shall not be construed to make Tenant
responsible for loss, damage, liability or expense resulting from
injuries to third parties caused by the sole negligence of
Landlord, or its officers, contractors, licensees, agents,
employees, or invitees.
21. ASSIGNMENT AND SUBLETTING.
21.1 Landlord's Consent. Tenant shall not assign this Lease,
or sublease all or any part of the Premises, or permit the use of
the Premises by any party other than Tenant, without the prior
written consent of Landlord. When Tenant requests Landlord's
consent to such assignment or sublease, it shall notify Landlord
in writing of the name and address of the proposed assignee or
subtenant and the nature and character of the business of the
proposed assignee or subtenant and shall provide financial
information including financial statements of the proposed
assignee or subtenant. Tenant shall also provide Landlord with a
copy of the proposed sublet or assignment agreement. Landlord
shall have the option (to be exercised within thirty (30) days
from the submission of Tenant's request) to cancel this Lease as
of the commencement date stated in the proposed sublease (with
respect to such portion of the Premises to be affected by such
sublease) or assignment. If Landlord shall not exercise its option
to cancel the Lease within the time set forth above, its consent
to any proposed assignment or sublease shall not be unreasonably
withheld, conditioned or delayed.
21.2 Criteria. In determining whether or not to grant its
consent to a proposed sublet or assignment, Landlord shall be
entitled to consider all reasonable criteria including, but not
21
limited to, the following: (i) whether or not the proposed
subtenant or assignee is engaged in a business which, and the use
of the Premises will be in a manner which, is in keeping with the
then character and nature of all other tenancies in the Building,
(ii) the use to be made of the Premises by the proposed subtenant
or assignee does not conflict with any so-called "exclusive" use
then in favor of any other tenant of the Building, and that such
use would not be prohibited by any other portion of this Lease,
including, but not limited to, any rules and regulations then in
effect, or under applicable law, (iii) that the proposed subtenant
or assignee is of at least equal or better financial worth and
creditworthiness than Tenant as of the date of the request for
sublease or assignment and that such assignee or subtenant does
not impose a greater load upon the Premises and the Building
services (such as elevator, janitorial and security services),
than imposed by Tenant, (iv) that the sublease or assignment
agreement requires payment of the rent and other amounts as
required of Tenant hereunder with respect to the space being
subleased or assigned which are in no event less than that being
offered by Landlord for similar space in the Building under leases
then being negotiated, and (v) that Tenant shall provide Landlord
with reasonable proof of (i), (ii), (iii), and (iv), and (vi)
Tenant is not in default hereunder beyond applicable cure periods,
if any at the time it makes its request for such consent or at the
time the assignment or sublet is to take effect.
21.3 Approved Subleases and Assignments. If Landlord approves
an assignment or sublease as herein provided, Tenant shall pay to
Landlord, as additional rent due under this Lease, seventy five
percent (75%) of the difference, if any, between the Rent plus
Additional Rent allocable to that part of the Premises affected by
such assignment or sublease pursuant to the provisions of this
Lease, and the rent and any additional rent payable by the
assignee or subtenant to Tenant less reasonable costs incurred by
Tenant in connection with reletting the portion of the Premises
affected by such assignment or sublease including broker's
commissions, attorney's fees, and Landlord's fees to be paid by
Tenant incurred in connection with the giving of Landlord's
consent as set forth below. No consent to any assignment or
sublease shall constitute a further waiver of the provisions of
this section, and all subsequent assignments or subleases may be
made only with the prior written consent of Landlord. An assignee
of Tenant, at the option of Landlord, shall become directly liable
to Landlord for all obligations of Tenant hereunder, but no
sublease or assignment by Tenant shall relieve Tenant of any
liability hereunder. Any assignment or sublease without Landlord's
consent shall be void, and shall, at the option of the Landlord,
constitute a default under this Lease. In the event that Landlord
shall consent to a sublease or assignment hereunder, Tenant shall
pay Landlord's reasonable fees incurred in connection with the
processing of documents necessary to the giving of such consent.
22
Notwithstanding any provision of this Lease to the contrary,
Tenant shall have the right without the requirement of obtaining
Landlord's consent but with the requirement of providing notice to
Landlord of all facts reasonably requested Landlord for the
purpose of determining the applicability of this Section, to (i)
assign or transfer any or all interest of Tenant in this Lease or
sublet all or any portion of the Premises to (1) any parent
corporation of Tenant, (2) any subsidiary corporation of Tenant or
of Tenant's parent corporation, but only for so long as such
subsidiary corporation remains a consolidation or reorganization
of Tenant or of Tenant's parent corporation with another
corporation; provided in each case that the net worth of the
resulting corporation equals or exceeds that of Tenant as of the
date hereof; or (ii) transfer or issues share of stock in Tenant
on any national securities exchange; or (iii) assign or transfer
its interest in this Lease to any entity (the "Acquiring Entity")
which purchases as a going concern, the business operations of
Tenant which occupy the Premises, provided that the net worth of
the Acquiring Entity equals or exceeds that of Tenant as of the
date hereof.
22. ADVERTISING. Tenant shall not display any sign, graphics,
notice, picture, or poster, or any advertising matter whatsoever,
anywhere in or about the Premises or the Building at places
visible from anywhere outside the Building or at the entrance to
the Premises without first obtaining Landlord's written consent
hereto, such consent to be at Landlord's sole discretion. Any such
consent by Landlord shall be upon the understanding and condition
that Tenant will maintain the sign in good condition and remove
the same at Tenant's expense upon the expiration or sooner
termination of this Lease. Tenant shall repair any damage to the
Premises or the Building caused by such removal. Landlord will
place, at Landlord's sole cost and expense, Tenant's name on the
existing free standing road directional sign for the Building. Any
additional monument signage will be at Tenant's sole cost and
expense and only after Landlord consents thereto.
23. LIENS. Tenant shall keep the Premises free from any liens
arising out of any work performed, materials ordered or
obligations incurred by or on behalf of Tenant, and Tenant hereby
agrees to indemnify and hold Landlord, its agents, employees,
independent contractors, officers, directors, partners, and
shareholders harmless from any liability, cost or expense for such
liens. Tenant shall cause any such lien imposed to be released or
record by payment or posting of the proper bond acceptable to
Landlord within twenty (20) days after the earlier of receipt of
notice of imposition of the lien or written request by Landlord.
Tenant shall give Landlord written notice of Tenant's intention to
perform work on the Premises which might result in any claim of
lien, at least ten (10) days prior to the commencement of such
work to enable Landlord to post and record a Notice of
Nonresponsibility or other notice deemed proper before
commencement of any such work.
23
If Tenant fails to remove any lien within the prescribed twenty
(20) day period, then Landlord may do so at Tenant's expense and
Tenant's reimbursement to Landlord for such amount shall be deemed
Additional Rent. Such reimbursement shall include all sums
disbursed, incurred or deposited by Landlord, including Landlord's
costs, expenses and reasonable attorneys' fees with interest
thereon at the maximum rate of interest permitted by law.
24. DEFAULT.
24.1 Tenant's Default. A default under this Lease by Tenant
shall exist if any of the following occurs:
24.1.1 If Tenant fails to pay Rent, Additional Rent or any
other sum required to be paid hereunder after written notice from
Landlord that such sums are due and Tenant fails to cure such
breach within ten (10) days of receipt of such notice; or
24.1.2 If Tenant fails to perform any term, covenant or
condition of this Lease except those requiring the payment of
money, and Tenant fails to cure such breach within thirty (30)
days after written notice from Landlord where such breach could
reasonably be cured within such thirty (30) day period; provided,
however, that where such failure could not reasonably be cured
within the thirty (30) day period, that Tenant shall not be in
default if it commences such performance within the thirty (30)
day period and diligently thereafter prosecutes the same to
completion; and
24.1.3 If Tenant assigns its assets for the benefit of its
creditors; or
24.1.4 If the sequestration or attachment of or execution on
any material part of Tenant's personal property essential to the
conduct of Tenant's business occurs, and Tenant fails to obtain a
return or release of such personal property within thirty (30)
days thereafter, or prior to sale pursuant to such sequestration,
attachment or levy, whichever is earlier; or
24.1.5 If a court makes or enters any decree or order other
than under the bankruptcy laws of the United States adjudging
Tenant to be insolvent, or approving as properly filed a petition
seeking reorganization of Tenant, or directing the winding up or
liquidation of Tenant, and such decree or order shall have
continued for a period of thirty (30) days.
24.1.6 The chronic delinquency by Tenant in the payment of
monthly Rent, or any other periodic payments required to be paid
by Tenant under this Lease, shall constitute a default. "Chronic
delinquency" shall mean failure by Tenant to pay Rent, or any
other periodic payments required to be paid by Tenant under this
Lease within five (5) days after written notice thereof for any
three (3)
24
months (consecutive or nonconsecutive) during any twelve (12)
month period. In the event of a chronic delinquency, at Landlord's
option, Landlord shall have the additional right to require that
monthly Rent be paid by Tenant quarter-annually, in advance.
24.2 Remedies. Upon a default, Landlord shall have the
following remedies, in addition to all other rights and remedies
provided by law or otherwise provided in this Lease, to which
Landlord may resort cumulatively or in the alternative:
24.2.1 Landlord may continue this Lease in full force and
effect, and this Lease shall continue in full force and effect as
long as Landlord does not terminate this Lease, and Landlord shall
have the right to collect Rent, Additional Rent and other charges
when due.
24.2.2 Landlord may terminate Tenant's right to possession of
the Premises at any time by giving written notice to that effect,
and relet the Premises or any part thereof. On the giving of the
notice, all of Tenant's rights in the Premises, shall terminate.
Upon such termination, Tenant shall surrender and vacate the
Premises in the condition required by Section 26, and Landlord may
re-enter and take possession of the Premises in accordance with
Massachusetts law and all the remaining improvements or property
and eject Tenant or any of Tenant's subtenants, assignees or other
person or persons claiming any right under or through Tenant or
eject some and not others or eject none. This Lease may also be
terminated by a judgment specifically providing for termination.
Any termination under this section shall not release Tenant from
the payment of any sum then due Landlord or from any claim for
damages or Rent, Additional Rent or other sum previously accrued
or then accruing against Tenant. Upon such termination Tenant
shall be liable immediately to Landlord for all reasonable costs
Landlord incurs in reletting the Premises or any part thereof,
including, without limitation, broker's commissions, expenses of
cleaning and redecorating the Premises required by the reletting
and like costs. Reletting may be for a period shorter or longer
than the remaining term of this Lease. No act by Landlord other
than giving written notice to Tenant shall terminate this Lease.
Acts of maintenance, efforts to relet the Premises or the
appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease shall not constitute a
termination of Tenant's right to possession. On termination,
Landlord has the right to remove all Tenant's personal property
and store same at Tenant's cost and to recover from Tenant as
damages:
(a) The worth at the time of award of unpaid Rent,
Additional Rent and other sums due and payable which had been
earned at the time of termination; plus
(b) The worth at the time of award of the amount by
which the unpaid Rent, Additional Rent and other sums due and
25
payable which would have been payable after termination until the
time of award exceeds the amount of such rent loss that Tenant
proves could have been reasonably avoided; plus
(c) The worth at the time of award of the amount by
which the unpaid Rent, Additional Rent and other sums due and
payable for the balance or the term after the time of award
exceeds the amount of such rent loss that Tenant proves could be
reasonably avoided; plus
(d) Any other amount necessary which is to compensate
Landlord for all the detriment proximately caused by Tenant's
failure to perform Tenant's obligations under this Lease, or
which, in the ordinary course of things, would be likely to result
therefrom including, without limitation, any reasonable costs or
expenses incurred by Landlord: (i) in retaking possession of the
Premises; (ii) in maintaining, repairing, preserving, restoring,
replacing, cleaning, altering or rehabilitating the Premises or
any portion thereof, including such acts for reletting to a new
tenant or tenants; (iii) for leasing commissions; or (iv) for any
other costs necessary or appropriate to relet the Premises; plus
(e) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from
time to time by the laws of the State in which the Premises is
located.
The "worth at the time of award" of the amounts
referred to in Sections 24.2.2(a) and (b) is computed by allowing
interest at the maximum interest rate allowed by law on the unpaid
rent and other sums due and payable from the termination date
through the date of award. The "worth at the time of award" of the
amount referred to in Section 24.2.2(c) is computed by discounting
such amount at the discount rate of the Federal Reserve Bank at
the time of award plus one percent (1%). Tenant waives redemption
or relief from forfeiture under any present or future law, in the
event Tenant is evicted or Landlord takes possession of the
Premises by reason of any default of Tenant hereunder.
24.2.3 Landlord may, with or without terminating this Lease
but in accordance with all applicable laws, re-enter the Premises
and remove all persons and property from the Premises; such
property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. No
re-entry or taking possession of the Premises by Landlord pursuant
to this section shall be construed as an election to terminate
this Lease unless a written notice of such intention is given to
Tenant.
25. SUBORDINATION. Subject to the nondisturbance language in
the following paragraph, Tenant will, upon request of Landlord in
writing, subordinate its rights hereunder to the lien of any
mortgage, deed of trust, ground lease or underlying lease now or
26
hereafter in force against the Premises, and to all advances made
or hereafter to be made upon the security thereof. Tenant shall
execute and return to Landlord any such subordination documents
within fifteen (15) days of Landlord's written request provided
such lender or lessor agrees, using their standard form therefor,
to recognize Tenant under this Lease and not to disturb Tenant's
possession, provided Tenant is not in default beyond applicable
grace periods, if any, under this Lease. The Landlord represents
that there is no mortgage presently encumbering the Property.
In the event any proceedings are brought for
foreclosure, or in the event of the exercise of the power of sale
under any mortgage or deed of trust made by the Landlord covering
the Premises, Tenant shall attorn to the purchaser at any such
foreclosure, or to the grantee of a deed in lieu of foreclosure,
and recognize such purchaser or grantee as the Landlord under this
Lease provided such purchaser or grantee agrees to recognize
Tenant under this Lease and not to disturb Tenant's possession,
provided Tenant is not in default beyond applicable grace periods,
if any, under this Lease.
The provisions of this article to the contrary
notwithstanding, and so long as Tenant is not in default
hereunder, this Lease shall remain in full force and effect for
the full term hereof.
26. SURRENDER OF POSSESSION. Upon expiration of the term of
this Lease, Tenant shall promptly and peacefully surrender the
Premises to Landlord in substantially the same condition as when
received by Tenant from Landlord or as thereafter improved,
reasonable use and wear and tear, damage by fire or other casualty
and eminent domain excepted. If the Premises are not surrendered
in accordance with the terms of this Lease, Tenant shall indemnify
Landlord and its agents, employees, independent contractors,
officers, directors, partners, and shareholders against any loss
or liability including reasonable attorneys' fees and costs, and
including liability to succeeding tenants, resulting from delay by
Tenant in so surrendering the Premises. This indemnification shall
survive termination of this Lease.
27. NON-WAIVER. Waiver by either party of any breach of any
term, covenant or condition herein contained shall not be deemed
to be a waiver of such term, covenant, or condition(s); or any
subsequent breach of the same or any other term, covenant or
condition of this Lease, other than the failure of Tenant to pay
the particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of
such Rent.
28. HOLDOVER. If Tenant shall, without the written consent of
Landlord, hold over after the expiration of the term of this
Lease, such tenancy shall be deemed a month-to-month tenancy,
which
27
tenancy may be terminated as provided by applicable state law.
During such tenancy, Tenant agrees to (a) pay to Landlord, each
month, the greater of the fair market rental value for the
Premises or one hundred fifty percent (150%) of the Rent and
Additional Rent payable by Tenant for the last month of the term
of this Lease and (b) be bound by all of the terms, covenants and
conditions herein specified, so far as applicable.
29. CONDEMNATION.
29.1 Substantial Taking. If twenty (20) percent or more of the
Premises or of such portions of the Building as may be required
for the reasonable use of the Premises, are taken by eminent
domain or sale under threat of condemnation by eminent domain,
this Lease shall automatically terminate as of the date title
vests in the condemning authority, and all Rent, Additional Rent,
and other payments shall be paid to that date.
29.2 Partial Taking. In case of a taking of less than twenty
percent (20%) of the Premises, or a portion of the Building not
required for the reasonable use of the Premises, this Lease shall
continue in full force and effect, and the Rent shall be equitably
reduced based on the proportion by which the floor area of the
Premises is reduced, such reduction to be effective as of the date
title to such portion vests in the condemning authority.
29.3 Awards and Damages. Landlord reserves all rights to
damages to the Premises for any partial or entire taking by
eminent domain, and Tenant hereby assigns to Landlord any right
Tenant may have to such damages or award, and Tenant shall make no
claim against Landlord or the condemning authority for damages for
termination of the leasehold interest or interference with
Tenant's business. Tenant shall have the right to claim and
recover from the condemning authority compensation for any loss
which Tenant may incur for Tenant's moving expenses, business
interruption or taking of Tenant's personal property (not
including Tenant's leasehold interest), provided that such damages
may be claimed only if they are awarded separately in the eminent
domain proceedings and not out of or as part of the damages
recoverable by Landlord.
30. NOTICES. All notices and demands which may be required or
permitted to be given to either party hereunder shall be in
writing, and shall be sent by United States mail, postage prepaid
to the addresses set out in Section 1.5, and to such other person
or place as each party may from time to time designate in a notice
to the other. Notice shall be deemed given upon the earlier of
actual receipt or seventy-two (72) hours after deposit in the
United States mail, postage prepaid.
31. MORTGAGEE PROTECTION. Tenant agrees to give any
mortgagee(s) and/or trust deed holder(s), by registered mail, a
copy of any notice of default served upon the Landlord, provided
28
that prior to such notice Tenant has been notified in writing (by
way of notice of assignment of rents and leases, or otherwise) of
the addresses of such mortgagee(s) and/or trust deed holder(s).
Tenant further agrees that if Landlord shall have failed to cure
such default within the time provided for in this Lease, then the
mortgagee(s) and/or trust deed holder(s) shall have an additional
thirty (30) days within which to cure such default or if such
default cannot be cured within that time, then such additional
time as may be necessary if within such thirty (30) days any
mortgagee and/or trust deed holder(s) has commenced and is
diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event
this Lease shall not be terminated while such remedies are being
so diligently pursued.
32. COSTS AND ATTORNEYS' FEES. If Tenant or Landlord shall
bring any action for any relief against the other, declaratory or
otherwise, arising out of this Lease, including any suit by
Landlord for the recovery of Rent, Additional Rent or other
payments hereunder, or possession of the Premises, the losing
party shall pay the prevailing party a reasonable sum for
attorneys' fees in such suit, at trial and on appeal, and such
attorneys' fees shall be deemed to have accrued on the
commencement of such action.
33. BROKERS. Tenant represents and warrants to Landlord that
neither it nor its officers or agents nor anyone acting on its
behalf has dealt with any real estate broker other than Fallon,
Xxxxx & X'Xxxxxx in the negotiating or making of this Lease, and
Tenant agrees to indemnify and hold Landlord, its agents,
employees, partners, directors, shareholders and independent
contractors harmless from all liabilities, costs, demands,
judgments, settlements, claims, and losses, including reasonable
attorneys' fees and costs, incurred by Landlord in conjunction
with any such claim or claims of any other broker or brokers
claiming to have interested Tenant in the Building or Premises or
claiming to have caused Tenant to enter into this Lease. Landlord
shall be responsible for paying any brokerage commission due to
Fallon, Xxxxx & X'Xxxxxx.
34. LANDLORD'S LIABILITY. Anything in this Lease to the
contrary notwithstanding, covenants, undertakings and agreements
herein made on the part of Landlord are made and intended not for
the purpose of binding Landlord personally or the assets of
Landlord but are made and intended to bind only the Landlord's
interest in the Premises and Building, as the same may, from time
to time, be encumbered and no personal liability shall at any time
be asserted or enforceable against Landlord or its stockholders,
officers or partners or their respective heirs, legal
representatives, successors and assigns on account of the Lease or
on account of any covenant, undertaking or agreement of Landlord
in this Lease contained.
29
35. ESTOPPEL CERTIFICATES. Tenant shall, from time to time,
within fifteen (15) days of Landlord's written request, execute,
acknowledge and deliver to Landlord or its designee a written
statement stating: the date this Lease was executed and the date
it expires; the date Tenant entered into occupancy of the
Premises; the amount of Rent, Additional Rent and other charges
due hereunder and the date to which such amounts have been paid;
that this Lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any way (or
specifying the date and terms of any agreement so affecting this
Lease); that this Lease represents the entire agreement between
the parties as to this leasing; that all conditions under this
Lease to be performed by the Landlord have been satisfied (or
specifying any such conditions that have not been satisfied); that
all required contributions by Landlord to Tenant on account of
Tenant's improvements have been received (or specifying any such
contributions that have not been received); that on this date
there are no existing defenses or offsets which the Tenant has
against the enforcement of this Lease by the Landlord; that no
Rent has been paid more than one (1) month in advance; that no
security has been deposited with Landlord (or, if so, the amount
thereof); or any other matters evidencing the status of the Lease,
as may be reasonably required either by a lender making a loan to
Landlord to be secured by a deed of trust or mortgage against the
Building, or a purchaser of the Building. It is intended that any
such statement delivered pursuant to this paragraph may be relied
upon by a prospective purchaser of Landlord's interest or a
mortgagee of Landlord's interest or assignee of any mortgage upon
Landlord's interest in the Building. If Tenant fails to respond
within fifteen (15) days of receipt by Tenant of a written request
by Landlord as herein provided, Tenant shall be deemed to have
given such certificate as above provided without modification and
shall be deemed to have admitted the accuracy of any information
supplied by Landlord to a prospective purchaser or mortgagee.
36. FINANCIAL STATEMENTS. Within five (5) days after
Landlord's request, Tenant shall deliver to Landlord the most
recently publicly reported quarterly statements of Tenant, and
financial statements of the two (2) years prior to the most
recently publicly reported quarterly financial statements year,
with an opinion of a certified public accountant, including a
balance sheet and profit and loss statement for the most recent
prior year, all prepared in accordance with generally accepted
accounting principles consistently applied.
37. TRANSFER OF LANDLORDS INTEREST. In the event of any
transfer(s) of Landlord's interest in the Premises or the
Building, other than a transfer for security purposes only, the
transferor shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from
and after the date of such transfer (except the obligation to
return the security
30
deposit unless actually delivered to the transferee), and Tenant
agrees to attorn to the transferee.
38. RIGHT TO PERFORM. If Tenant shall fail to pay any sum of
money, other than Rent and Additional Rent, required to be paid by
it hereunder or shall fail to perform any other act on its part to
be performed hereunder, and such failure shall continue for ten
(10) days after receipt of written notice, Landlord may, but shall
not be obligated so to do, and without waiving or releasing Tenant
from any obligations of Tenant, make any such payment or perform
any such other act on Tenant's part to be made or performed as
provided in this Lease. Landlord shall have (in addition to any
other right or remedy of Landlord) the same rights and remedies in
the event of the nonpayment of sums due under this Section as in
the case of default by Tenant in the payment of Rent. All sums
paid by Landlord and all penalties, interest and costs in
connection therewith, shall be due and payable by Tenant on the
next day after such payment by Landlord, together with interest
thereon at the maximum rate of interest permitted by law from such
date to the date of payment thereof, by Tenant to Landlord, plus
collection costs and attorneys' fees.
39. SALES AND AUCTIONS. Tenant may not display or sell
merchandise outside the exterior walls of the Building and may not
use such areas for storage. Tenant further agrees not to install
any exterior lighting, amplifiers or similar devices or use in or
about the Premises an advertising medium which may be heard or
seen outside the Premises, such as flashing lights, searchlights,
loudspeakers, phonographs or radio broadcasts. Tenant shall not
conduct or permit to be conducted any sale by auction in, upon or
from the Premises whether said auction be voluntary, involuntary,
pursuant to any assignment for the payment of creditors or
pursuant to any bankruptcy or other insolvency proceeding.
40. NO ACCESS TO ROOF. Tenant shall have no right of access to
the roof of the Building and shall not install, repair or replace
any aerial, fan, air conditioner or other device on the roof of
the Building without the prior written consent of Landlord. Any
aerial, fan, air conditioner or device installed with such written
consent shall be maintained by Tenant in good condition and shall
be subject to removal by Landlord, at Tenant's expense, without
notice, at any time. Tenant shall also be responsible for
reimbursing Landlord for any repairs and restoration to the roof
or Building resulting from the installation or removal of such
items on the roof.
41. SECURITY. Tenant hereby agrees to the exercise by Landlord
and its agents and employees, within their sole but reasonable
discretion, of such security measures as, but not limited to, the
search of all persons entering or leaving the Building, the
evacuation of the Building for cause, suspected cause or for drill
purposes, the denial of any access to the Building and
31
other similarly related actions that it deems reasonably necessary
to prevent any threat of property damage or bodily injury. The
exercise of such reasonable security measures by Landlord, its
beneficiaries and their agents and employees, and the resulting
interruption of service and cessation of Tenant's business, if
any, shall not be deemed an eviction or disturbance of Tenant's
use and possession of the Premises, or any part thereof, or render
Landlord, its beneficiaries and their agents and employees, liable
to Tenant for any resulting damages or relieve Tenant from
Tenant's obligations under this Lease.
42. AUTHORITY OF TENANT. If Tenant is a corporation or
partnership, the corporation warrants and represents that each
individual executing this Lease on behalf of said corporation or
partnership is duly authorized to execute and deliver this Lease
on behalf of said corporation or partnership, and that this Lease
is binding upon said corporation or partnership.
43. NO ACCORD OR SATISFACTION. No payment by Tenant or receipt
by Landlord of a lesser amount than the monthly rent and other
sums due hereunder shall be deemed to be other than on account of
the earliest rent or other sums due, nor shall any endorsement or
statement on any check or accompanying any check or payment be
deemed an accord and satisfaction; and Landlord may accept such
check or payment without prejudice to Landlord's right to recover
the balance of such rent or other sum or pursue any other remedy
provided in this Lease.
44. MODIFICATIONS FOR LENDER. If in connection with obtaining
financing for the Building or any portion thereof, Landlord's
lender shall request reasonable modifications to this Lease as a
condition to such financing, Tenant shall not unreasonably
withhold, delay, or defer its consent to such modification
provided such modifications do not materially adversely affect
Tenant's rights hereunder or materially reduce the obligations of
Landlord hereunder.
45. PARKING. Tenant shall have the right to use, in common
with others entitled to the use thereof, at least 70 parking
spaces in the parking facilities on the Premises upon such terms
and conditions as are reasonably established by Landlord at any
time during the term of this Lease. Landlord shall have the right,
in its sole discretion, to reconfigure the parking area and modify
the existing ingress to and egress from the parking area as
Landlord shall deem appropriate; provided only that such
reconfiguration or modification shall not prevent on a permanent
basis the practical use of parking available to Tenant and
Tenant's guests.
46. EXTERIOR SIGNS. Tenant shall place no signs upon the
outside walls or roof of the Building or elsewhere on the Premises
except with the prior written consent of the Landlord. Any and all
signs placed on or about the Premises or the Building by Tenant
32
shall comply with Landlord's rules and regulations governing such
signs, and all governmental laws and Tenant shall be responsible
to Landlord for any damage caused by installation, use, or
maintenance of such signs. Tenant shall remove any of its signs
upon the termination of this Lease and repair any damage caused by
the sign installation or removal and, if Tenant fails to do so,
Landlord shall have the right to remove the signs and make such
repairs at Tenant's expense. Notwithstanding the foregoing,
signage will be provided at the entrance of the 000 Xxxxxxxx Xxxx
property at the location where other Building tenants have
directional signage. Such signage is to be consistent with the
other signage at the Metrowest Business Park. Landlord will
provide nonexclusive signage for Tenant, in a design suitable to
Landlord in its sole discretion, on the monument signage now
existing outside the Building.
47. RULES AND REGULATIONS. Tenant agrees to comply with such
reasonable rules and regulations as Landlord may adopt from time
to time for the orderly and proper operation of the Building and
parking and other common areas. The rules and regulations shall be
binding upon Tenant upon delivery of a copy of them to Tenant.
48. GENERAL PROVISIONS.
48.1 Acceptance. This Lease shall only become effective and
binding upon full execution hereof by Landlord and delivery of a
signed copy to Tenant.
48.2 Joint Obligation. If there be more than one Tenant, the
obligations hereunder imposed shall be joint and several.
48.3 Marginal Headings, Etc. The marginal headings, Table of
Contents, lease summary sheet and titles to the articles of this
Lease are not a part of the Lease and shall have no effect upon
the construction or interpretation of any part hereof.
48.4 Choice of Law. This Lease shall be governed by and
construed in accordance with the laws of the state in which the
Premises are located.
48.5 Successors and Assigns. The covenants and conditions
herein contained, subject to the provisions as to assignment,
inure to and bind the heirs, successors, executors, administrators
and assigns of the parties hereto.
48.6 Recordation. Neither Landlord nor Tenant shall record
this Lease, but Landlord and Tenant agree to execute a short-form
memorandum hereof which may be recorded at the request of either
party.
48.7 Quiet Possession. Upon Tenant's paying the rent reserved
hereunder and observing and performing all of the
33
covenants, conditions and provisions on Tenant's part to be
observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to
all the provisions of this Lease.
48.8 Inability to Perform. This Lease and the obligations of
the Tenant hereunder shall not be affected or impaired because the
Landlord is unable to fulfill any of its obligations hereunder or
is delayed in doing so, if such inability or delay is caused by
reason of strike, labor troubles, acts of God, or any other cause
beyond the reasonable control of the Landlord.
48.9 Partial Invalidity. Any provision of this Lease which
shall prove to be invalid, void, or illegal shall in no way
affect, impair or invalidate any other provision hereof and such
other provision(s) shall remain in full force and effect.
48.10 Cumulative Remedies. No remedy or election hereunder
shall be deemed exclusive but shall, whenever possible, be
cumulative with all other remedies at law or in equity.
48.11 Entire Agreement. This Lease contains the entire
agreement of the parties hereto and no representations,
inducements, promises or agreements, oral or otherwise, between
the parties, not embodied herein, shall be of any force or effect.
48.12 Exhibits. All exhibits and addenda attached hereto are
incorporated herein by this reference.
IN WITNESS WHEREOF, the parties herein have hereunto set their
hands and seals, in triplicate, the day and year first above
written.
LANDLORD:
Witness: AETNA REAL ESTATE ASSOCIATES, L.P.,
a Delaware limited partnership
By: Aetna/AREA Corp., its
general partner
/s/ Xxxxxx Xxxxxxxx By: /s/ Illegible
-------------------- -------------------------
Its Vice President
-------------------------
34
TENANT:
Attest: NATIONAL TRANSACTION NETWORK, INC.,
a Delaware corporation
/s/ Illegible By: /s/ Xxxxxx X. Xxxxxx
------------------ ---------------------------
Its Xxxxxx X. Xxxxxx
Vice President of Finance
35
EXHIBIT A
THE PREMISES
(to be attached)
36
EXHIBIT B
(Attach Approved Plans)
37
EXHIBIT C
COMMENCEMENT DATE MEMORANDUM
LANDLORD: Aetna Real Estate Associates, L.P.
TENANT: National Transaction Network, Inc.
LEASE DATE: November 8, 1996
PREMISES: Approximately 17,436 rentable square feet on the first (1st)
floor of the Building commonly known as 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx, as more particularly described in
Section 1.1 of the Lease.
The Commencement Date of the above referenced lease is hereby established
as ________________, 1997.
LANDLORD:
Witness: AETNA REAL ESTATE ASSOCIATES, L.P.,
a Delaware limited partnership
By: Aetna/AREA Corp., its
general partner
/s/ Illegible /s/ Illegible
_________________________ By:______________________________
Its Vice President
TENANT;
Attest: NATIONAL TRANSACTION NETWORK, INC.
a Delaware corporation
/s/ Illegible
_________________________ By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Its Vice President of Finance
38
State: Connecticut
County: Hartford_ February 19, 1997
Then personally appeared before me the above namedJames X.
Xxxxxxx, of Aetna/AREA Corp., as General Partner of AETNA REAL
ESTATE ASSOCIATES, L.P., a Delaware limited partnership, and
acknowledged the foregoing instrument to be his free act and deed
and the free act and deed of Aetna/Area Corp.
/s/ Xxxxxx X. XxXxxxxxxx
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Notary Public
My commission expires: April 30, 2000
State: Massachusetts
County: Worcester Feburary 12, 1997
Then personally appeared before me the above named Xxxxxx X. Xxxxxx
________________, of NATIONAL TRANSACTION NETWORK, INC., a
Delaware corporation, and acknowledged the foregoing instrument to
be his free act and deed and the free act and deed of National
Transaction Network, Inc.
/s/ Illegible
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Notary Public
My commission expires: March 11, 1999
