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EXHIBIT 10.7
BRICKSTONE SQUARE
ANDOVER, MASSACHUSETTS
LEASE
LANDLORD: ANDOVER XXXXX REALTY LIMITED PARTNERSHIP, a
Massachusetts Limited Partnership
TENANT: CASCADE SYSTEMS, INC., a Massachusetts Corporation
DATE: 2/27, 1996
BUILDING NO.: 300
LEASE NO.: 3001A
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TABLE OF CONTENTS
1. BASIC LEASE PROVISIONS .............................................. 1
2. CONSTRUCTION OF PREMISES ............................................ 2
3. POSSESSION AND SURRENDER OF PREMISES ................................ 3
4. TERM ................................................................ 3
5. RENT ................................................................ 3
6. TAXES ............................................................... 4
7. OPERATING COSTS ..................................................... 4
8. INSURANCE ........................................................... 6
9. MONTHLY PAYMENT OF TAXES, OPERATING COSTS AND INSURANCE
PREMIUMS ............................................................ 7
10. UTILITIES ........................................................... 8
11. USE OF PREMISES ..................................................... 8
12. MAINTENANCE AND REPAIRS ............................................. 10
13. ALTERATIONS ......................................................... 10
14. INDEMNITY; SATISFACTION OF REMEDIES ................................. 11
15. COMMON AREA AND PARKING ............................................. 13
16. DAMAGE OR DESTRUCTION ............................................... 13
17. CONDEMNATION ........................................................ 15
18. ASSIGNMENT AND SUBLETTING ........................................... 16
19. MORTGAGEE PROTECTION ................................................ 19
20. ESTOPPEL CERTIFICATES ............................................... 20
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21. DEFAULT ............................................................. 20
22. REMEDIES FOR DEFAULT ................................................ 21
23. BANKRUPTCY. [SEE EXHIBIT "F"] ...................................... 24
24. GENERAL PROVISIONS .................................................. 24
25. HAZARDOUS SUBSTANCES ................................................ 30
EXHIBIT LIST
"A" Project Site Plan
"B" Premises
"C" Workletter
"D" Base Rent
"E" Current Rules and Regulations
"F" Bankruptcy Provisions (Article 23)
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INDEX TO DEFINED TERMS
Term Section Page
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Affiliates 24.18(a) 29
Alterations 13 10
Bankruptcy Code Exhibit "F"
Building 1.1(d) 1
Common Area 15 13
Condemnation 17 15
Default Rate 22.4 23
Guarantor 1.1(k) 2
Hazardous Substances 25 30
Landlord's Mortgagee 24.18(b) 29
Landlord's Work 2 2
Laws 24.18(c) 29
Lease Year 4 3
Liabilities 24.18(d) 29
Liens 13.4 11
Base Rent 1.1(e) 1
Operating Costs 7.1 4
Premises 1.1(c) 1
Project 1.2 2
Rent 5 3
Rent Commencement Date 1.1(a) 1
Security Deposit 1.1(g) 1
Systems and Equipment 24.18(f) 30
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Term Section Page
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Superior Leases and Mortgages 24.18(e) 30
Taxes 6.2 4
Tenant's Broker 1.1(l) 2
Tenant's Percentage 1.1(f) 1
Tenant's Property 3 3
Transfer 18.1 16
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LEASE
THIS LEASE, dated as of 2/27, 1996, is between ANDOVER XXXXX REALTY
LIMITED PARTNERSHIP, a Massachusetts Limited Partnership ("Landlord"), and
CASCADE SYSTEMS, INC., a Massachusetts corporation ("Tenant").
Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord on the following terms and conditions:
1. BASIC LEASE PROVISIONS.
1.1 Summary.
(a) Rent Commencement Date: When Landlord's Work is
substantially completed or Tenant occupies the Premises to conduct business,
whichever is earlier. Subject to cooperation from Tenant, Landlord will
diligently attempt to substantially complete Landlord's Work within three (3)
months after the full execution and delivery of this Lease. (But, Tenant
acknowledges that although Landlord will attempt to complete within this period,
completion within this period is not an obligation or a condition in this
Lease.)
(b) Term: Five (5) Lease Years after the Rent Commencement
Date.
(c) Premises: Space on the first (1st) floor of the Building
(as shown in Exhibit "B"), with an agreed rentable area of 19,492 square feet. A
portion of the Premises is designated on Exhibit "B" as the "Initial Storage
Space."
(d) Building: Building No. 300 (as shown in Exhibit "A") in
which the Premises are located.
(e) Base Rent: (see Exhibit "D").
(f) Tenant's Percentage: 2.07%. (Refer to Section 7.3 for
Tenant's share of Building 300 Operating Costs).
(g) Security Deposit: $120,000 (See Section 24.17).
(h) Use of Premises: As offices, primarily for the business of
developing and integrating computer software, and for general office use and
uses incidental thereto.
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(i) Notice to Tenant Before Possession of Premises:
Cascade Systems, Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
(j) Notice to Landlord:
Andover Xxxxx Realty Limited Partnership
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
With a Copy to:
Brickstone Properties, Inc.
Xxx Xxxxx xx Xxxxxxxxxxx Xxxx
Xxxxx 0000
0000 Xxxxxxxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
(k) Guarantor: N/A.
(l) Tenant's Broker: Xxx Xxxx.
(m) Certain Other Defined Terms: [See Section 24.18]
If there is a conflict between this summary and the rest of this Lease, the rest
of this Lease will control.
1.2 Project. Exhibit "A" is the general site plan of the principal
buildings, improvements and areas that are now part of the project commonly
known as Brickstone Square, Andover, Massachusetts (the "Project").
2. CONSTRUCTION OF PREMISES.
Landlord will diligently perform "Landlord's Work" and Tenant will
diligently perform "Tenant's Work" (if any) as described in the Workletter
attached as Exhibit "C" and in accordance with the Workletter and the rest of
this Lease. Landlord's Work will be deemed substantially completed even if
Landlord has not completed "punch list" or other minor items, as long as the
Premises can be occupied by Tenant without unreasonable interference and
interruption and Landlord agrees to
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complete these items diligently. Tenant's final punch list will be submitted to
Landlord within fifteen (15) days after Landlord notifies Tenant that Landlord's
Work is substantially completed. Certification in good faith by Landlord's
architect of the substantial completion of Landlord's Work, or the issuance of a
temporary or final certificate of occupancy, whichever is earlier, will be
binding on the parties as to the date of substantial completion.
3. POSSESSION AND SURRENDER OF PREMISES.
When this Lease terminates, Tenant will remove all of its signs,
movable trade fixtures and equipment inventory and other personal property,
whether owned by Tenant or its Affiliates ("Tenant's Property"). Tenant's
Property remaining after termination will be deemed abandoned and Landlord may
keep, sell, destroy or dispose of it without incurring any Liabilities to Tenant
or its Affiliates. Tenant will repair all damage and surrender the Premises
broom clean and in good order, condition and repair (reasonable wear and tear
and unavoidable casualty excepted), and otherwise in the same condition as on
the Rent Commencement Date, unless otherwise specifically requested in writing
by Landlord.
4. TERM.
The terms of this Lease are effective as of the date that this Lease is
executed and delivered by both parties, but except as otherwise specifically set
forth in this Lease, Tenant's obligation to pay base rent, Operating Costs and
Taxes begins as of the Rent Commencement Date. The Lease term ends five (5)
Lease Years after the Rent Commencement Date, unless terminated earlier in
accordance with this Lease or extended by mutual written agreement of the
parties. A "Lease Year" is a period of twelve (12) consecutive calendar months
during the Lease term, starting with the Rent Commencement Date. However, the
first Lease Year is the first twelve (12) full calendar months plus the partial
month (if any) after the Rent Commencement Date if the Rent Commencement Date is
not the first day of the month, and the last Lease Year may be less than twelve
(12) months if the expiration or termination date of this Lease is not the last
day of a Lease Year.
5. RENT.
(a) Subject to Subsection (b) below, Tenant shall pay the base rent as
shown in Exhibit "D" in equal monthly installments in advance beginning on the
Rent Commencement Date and thereafter on the first day of each month during the
term, prorated for any portion of a month. The term "rent" includes base rent,
additional rent and all other amounts to be paid by Tenant under this Lease,
whether or not specifically described as rent. All rent shall be paid to
Landlord without demand, deduction, counterclaim or offset of any type in good
funds and lawful U.S. legal tender at The Plaza at Continental Park, Suite 5252,
2101 Rosecrans Avenue, El
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Xxxxxxx, Xxxxxxxxxx 00000, Attn: Accounting Dept., or to such other person or
place as Landlord may from time to time designate. Tenant will pay the first
month's base rent when it executes this Lease.
(b) Provided that Tenant does not default under this Lease and uses the
Initial Storage Space for storage purposes only during the first eight (8)
calendar months of the term, the monthly installments of base rent due for the
first eight (8) full calendar months of the term will be abated by $6,497 per
month (for a total of $51,976).
6. TAXES.
6.1 Definition of Taxes. "Taxes" means all taxes, assessments, levies,
charges and fees imposed against, for or in connection with all or any portion
of: the Project; the use, ownership, leasing, occupancy, operation, management,
repair, maintenance, demolition or improvement of the Project; Landlord's right
to receive, or the receipt of, rent, profit or income from the Project;
improvements, utilities and services, whether because of special assessment
districts or otherwise; the value of Landlord's interest in the Project; a
reassessment due to any change in ownership or other transfer of all or any
portion of the Project; and fixtures, equipment and other real or personal
property used in connection with the Project. Taxes also include, without
limitation, license fees, sales, use, capital and value-added taxes, penalties,
interest and costs incurred in contesting taxes, and any charges or taxes in
addition to, in substitution or in lieu of, partially or totally, any taxes or
charges previously included within this definition, including taxes or charges
completely unforeseen by the parties and collected from whatever source. Taxes
do not include: Landlord's federal or state net income, franchise, excise,
inheritance, gift or estate taxes.
6.2 Payment of Taxes. Subject to Article 9, as of the Rent Commencement
Date Tenant will pay its Tenant's Percentage of all Taxes directly to Landlord
as additional rent within fifteen (15) days after receipt of Landlord's xxxx.
6.3 Tenant's Taxes. Tenant will pay before delinquency all taxes
assessments, license fees and charges levied, assessed or imposed on Tenant,
Tenant's business operations and Tenant's Property.
7. OPERATING COSTS.
7.1 Definition of Operating Costs. "Operating Costs" are all costs and
expenses incurred in connection with the Project and its ownership, operation,
management, maintenance, repair, replacement and improvement, including, without
limitation costs for services: costs and utilities not otherwise directly paid
or reimbursed by tenants; materials, supplies and equipment; insurance costs;
wages and payroll, including bonuses, fringe benefits, workers compensation and
payroll
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taxes; professional and consulting fees; management fees at prevailing rates or,
if no managing agent is retained, an amount in lieu thereof not in excess of
prevailing rates; complying with any Laws and insurance requirements; and the
Common Area (including the parking area). Operating Costs do not include: Taxes;
depreciation of the Project structures and Improvements; Landlord's loan or
ground lease payments; brokerage commissions; tenant allowances or workletter
costs; costs of negotiating or enforcing leases; free rent, rent abatements or
similar inducements offered by Landlord to obtain tenants; expenses for repairs
or maintenance to the extent reimbursed warranties, guaranties, service
contracts or insurance proceeds; and costs directly paid or specifically
reimbursed by tenants in the Project (other than by an allocation of Operating
Costs).
7.2 Payment of Operating Costs. Subject to Article 9, as of the Rent
Commencement Date Tenant will pay its Tenant's Percentage of Operating Costs to
Landlord as additional rent within thirty (30) days after receipt of Landlord's
xxxx.
7.3 Building Operating Costs. From time to time, Landlord may determine
that certain costs otherwise included within the definition of Operating Costs
more properly relate solely or primarily to the Building or to some but not all
of the buildings in the Project (as a hypothetical example, elevator
maintenance). If Landlord so elects, these costs will be deducted from Operating
Costs and allocated only to tenants of the building(s) to which those costs
solely or primarily relate, Tenant's share of these costs will be calculated by
dividing Tenant's rentable square footage by the rentable square footage leased
to all tenants in the building(s), and otherwise Tenant will pay its share of
these costs in the manner described in Section 7.2.
7.4 Determining Operating Costs. Notwithstanding anything to the
contrary, in determining Operating Costs for any calendar year, Lease Year or
other relevant year, if during that period less than 95% of the area held for
lease by Landlord in the Project is leased and occupied by tenants, then the
Operating Costs for that period will be deemed to be equal to the Operating
Costs which Landlord would expect to have incurred if the Project had been fully
leased and occupied for such period, as reasonably determined by Landlord.
7.5 Tenant's Audit. Once during each 12-month period during the term,
Tenant may audit Landlord's records of Operating Costs for the current and/or
prior Lease Year at the Project during Landlord's normal business hours on at
least one week's prior written notice, and at Tenant's cost. Tenant agrees to
keep strictly confidential the results of such audit and any claims,
negotiations, proceedings or settlements with Landlord in connection therewith
or in connection with Operating Costs, and shall cause its Affiliates to comply
with the same requirements.
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8. INSURANCE.
8.1 Tenant's Insurance.
(a) Tenant will maintain during the term:
(i) Commercial general public liability insurance
(Broad Form), with contractual liability, cross-liability and fire legal
liability endorsements, protecting against all claims and liabilities for
personal, bodily and other injuries, death and property damage including,
without limitation, broad form property damage insurance, automobile and
personal injury coverage. This insurance also will insure Tenant's indemnities.
The amount of this insurance will not be less than Three Million Dollars
($3,000,000) combined single limit for each occurrence. If this policy includes
a "general aggregate" limit, the limit will be at least Four Million Dollars
($4,000,000).
(ii) "All risk" casualty insurance, covering all of
Tenant's Work, Tenant's Property and all Alterations made by or for the benefit
of Tenant. This insurance will be for full replacement value.
(iii) Loss of income and business interruption
insurance in an amount that will reimburse Tenant for direct and indirect loss
of three (3) months of earnings and other costs attributable to all perils
commonly insured against by prudent Tenants or attributable to prevention of
access to the Premises or to the Building as a result of such perils.
(iv) Employer's liability insurance of not less than
One Million Dollars ($1,000,000) and worker's compensation insurance in
statutory limits.
(v) Builder's risk insurance (completed value form)
for work required of or permitted to be made by Tenant. The amount of this
insurance will be reasonably satisfactory to Landlord and must be obtained
before any work is begun.
(b) The initial amounts of insurance described above shall be
subject to reasonable periodic increase (but not more often than annually) based
on inflation, increased liability awards and other relevant factors, as
reasonably determined by Landlord.
(c) All policies of insurance carried by Tenant must: name
Landlord and its designees as additional insureds; contain a waiver by the
insurer of any right to subrogation against Landlord and its Affiliates; be
written on an "occurrence" basis; be from insurers in good standing and licensed
to do business in Massachusetts with a Best's rating of at least A-X; and state
that the insurers will not cancel, fail to
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renew or modify the coverage without first giving Landlord and any other
additional insureds at least thirty (30) days prior written notice.
(d) Tenant will supply copies of each paid-up policy or a
certificate from the insurer certifying that the policy has been issued and
complies with all of the terms of this Article. The policies or certificates
will be delivered to Landlord when the Lease is signed and renewals provided not
less than thirty (30) days before the expiration of the coverage. Landlord
always may inspect and copy any of the policies. Tenant waives subrogation and
any right to claim or recover against Landlord or its Affiliates for Liabilities
in connection with any type of cause or peril which is supposed to be insured
against under the insurance policies required to be maintained by Tenant.
(e) Tenant and its Affiliates will not undertake, fail to
undertake or permit any acts or omissions which will in any way increase the
cost of, violate, void or make voidable all or any portion of any insurance
policies maintained by Landlord, unless Landlord gives its specific written
consent and Tenant pays all increased costs directly to Landlord on demand.
8.2 Landlord's Insurance; Waiver of Subrogation. Landlord will maintain
casualty insurance of at least 90% of the full replacement cost of the Project
(excluding foundations, footings, below-grade space and any historic items or
structures), commercial general public liability insurance (Broad Form or the
functional equivalent) of at least Five Million Dollars ($5,000,000), and other
insurance policies (including, without limitation, rental loss insurance
policies), all in such amounts (except as may be specified above), with such
deductibles and providing protection against such perils as Landlord determines
to be necessary in its sole discretion. All losses on all policies maintained
pursuant to this Article will be settled in Landlord's name (or as otherwise
designated by Landlord) and proceeds will belong and be paid to or at the
direction of Landlord. Landlord hereby waives subrogation. Landlord makes no
representations or warranties as to the adequacy of any insurance to protect
Landlord's or Tenant's interests.
9. MONTHLY PAYMENT OF TAXES, OPERATING COSTS AND INSURANCE
PREMIUMS.
At any time and from time to time, and subject to later change,
Landlord may elect to have Tenant pay Tenant's share of Taxes, Operating Costs
and Landlord's insurance premiums (or any of them) in monthly installments in
advance on the first of each month, based on amounts estimated by Landlord (as
revised from time to time). If these estimated monthly payments are required,
after the end of each tax fiscal year, Lease Year or other relevant periods
selected by Landlord, Landlord will deliver to Tenant a statement of the actual
amounts due for the period. Any additional amounts due from Tenant will be
payable as additional rent within thirty
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(30) days after receipt of Landlord's statement, and any overpayment by Tenant
will be refunded by Landlord or deducted from the next monthly installments of
rent. At any time or from time to time, Landlord may deliver a xxxx to Tenant
for Tenant's share of Taxes, Operating Costs or insurance premiums, and Tenant
will pay the amount due to Landlord as additional rent within thirty (30) days
(fifteen [15] days for Taxes) after receipt of Landlord's xxxx. Tenant will
receive a credit for any estimated monthly payments already paid by Tenant for
the period covered by that xxxx.
10. UTILITIES.
Landlord will be solely responsible for bringing utility services to
the Premises to the extent now existing and/or as provided as part of Landlord's
Work in Exhibit "C." Tenant will pay when due to the furnishing parties all fees
and costs for utility services, meters and equipment furnished to the Premises,
including, without limitation, telephone, electricity, sewer, water and gas (if
furnished). If utilities and services are not separately metered, submetered,
"intellimetered" or otherwise tracked or charged, Tenant will pay its share (as
reasonably determined by Landlord) of such costs directly to Landlord as
additional rent, either monthly when base rent is due, or within thirty (30)
days after receipt of Landlord's xxxx, at Landlord's option. Landlord will
diligently attempt to restore malfunctioning or interrupted utility service as
soon as reasonably possible, but Landlord is not responsible for any Liabilities
incurred by Tenant or Tenant's Affiliates nor may Tenant xxxxx rent, terminate
this Lease or pursue any other right or remedy against Landlord or Landlord's
Affiliates, as a result of any malfunction, interruption or suspension of any
utilities, services or associated Systems and Equipment.
11. USE OF PREMISES.
Tenant will use the Premises for the purposes described in Section
1.1(h), but for no other purpose. Tenant will:
(a) Operate its business in an attractive and first class
manner and will not permit any objectionable or unreasonable noises, vibrations,
odors or fumes in or to emanate from the Premises, nor commit or permit any
waste, improper, immoral or offensive use of the Premises, any public or private
nuisance or anything that disturbs the quiet enjoyment of the other tenants,
licensees, occupants or customers of the Project. All deliveries and pickups
must be conducted at times and in the manner prescribed by Landlord, and only in
those loading docks or areas specified by Landlord. All trash and waste products
must be stored, discharged, processed and removed in the manner prescribed by
Landlord, and so as not to be visible to other tenants or create any health or
fire hazard.
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(b) Install only window coverings and treatments approved by
Landlord and, once installed, keep them sufficiently closed to shield from
outside view any machinery or other equipment that Landlord determines is
unsightly or inconsistent with that portion of the Project. Tenant will vent
only through louvers in the windows of the Premises, but Tenant may not detach
those louvers.
(c) Not permit any coin or token operated vending, video,
pinball, gaming or other mechanical devices on the Premises, except for
telephones and vending machines solely for use by Tenant's employees; conduct
retail sales; permit diplomatic, governmental or quasi-governmental agencies to
occupy the Premises; use the Premises for retail sales to the general public or
as doctors' offices, a school or educational institution (but training of
tenants sales personnel will be permitted), living or sleeping quarters; store,
sell or distribute obscene, graphic, sexually-explicit, lewd or pornographic
materials (as determined in Landlord's judgment) or engage in related businesses
in or from the Premises; or conduct any auction, distress, fire, bankruptcy or
going-out-of-business sale.
(d) Comply with: Laws and insurance requirements affecting the
Premises, the Project or any use and occupancy thereof (including, without
limitation, making required improvements to the Premises, but not structural
modifications or improvements or modifications or improvements to the
base-building life-safety system unless required because of Tenant's specific
use or manner of use of the Premises); and Landlord's rules and regulations and
reasonable changes thereto. Tenant will, at its expense, obtain and maintain all
licenses, approvals and variances necessary to conduct its business and occupy
the Premises, but none of those licenses, permits or variances will be binding
on or in any way affect or restrict Landlord, any other tenants in the Project
or the Project itself.
(e) If it wishes, install signs or lettering on the entry
doors to the Premises identifying its tenancy in the manner customary to
first-class office buildings. Tenant will conform to standards established by
Landlord from time to time for these signs or lettering and submit for
Landlord's prior approval a plan or sketch of Tenant's proposed sign or
lettering. Landlord will place Tenant's name on an indoor and outdoor Building
directory or sign at no cost to Tenant, and all other signs, lettering, awnings,
canopies or other decorations require Landlord's prior approval.
(f) Not use any advertising or other media or other device
which can be heard or experienced outside the Premises (except as permitted in
subparagraph (e) above), including without limitation, lights or audio or visual
devices. Tenant will not distribute handbills or advertising, promotional or
other materials anywhere in the Project or solicit business in the Project other
than within its own Premises.
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12. MAINTENANCE AND REPAIRS.
12.1 Landlord's Obligations. Landlord will repair and maintain the
elevators, the structural parts of the roof, floor and load-bearing walls of the
Premises (but not the interior surfaces), the common base-building life-safety
system, the common base-building electrical Systems and Equipment, the common
base-building plumbing Systems and Equipment, and the Common Areas, but
specifically excluding any supplemental or additional electrical, plumbing or
other Systems and Equipment that are above base-building standard or involve
special Tenant requirements or equipment, which will be Tenant's responsibility
to repair and maintain (e.g., computer-room electrical or HVAC systems,
audio/visual, computer, data or telephone systems, special security systems,
interior bathrooms, kitchens and kitchen appliances, etc.), ordinary wear and
tear and casualty excepted. However Tenant will be responsible for all repairs
and maintenance resulting from Tenant's Alterations or the negligent or
intentional acts or omissions of Tenant or its Affiliates. Landlord will make
its repairs within a reasonable time following Tenant's notification that the
repairs are required. Landlord's obligations are subject to the provisions of
Articles 16 and 17 and the rest of this Lease.
12.2 Tenant's Obligations. Except for Landlord's obligations in Section
12.1, Tenant will clean, maintain and repair the Premises and the Systems and
Equipment serving the Premises in a first-class manner, and keep the Premises in
good order and condition, including, without limitation, Tenant's Property, all
doors, windows, window treatments, wall coverings, floor coverings,
non-structural portions of the ceiling, floor and walls, and Tenant's
Alterations (unless otherwise requested by Landlord). Tenant also will be
responsible for repairing and maintaining any HVAC Systems and Equipment that
specifically serve the Premises and will maintain a maintenance contract with a
licensed HVAC contractor reasonably approved by Landlord to provide for the
periodic maintenance and repair of those HVAC Systems and Equipment. At
Landlord's election, Landlord may engage the HVAC contractor and xxxx and
collect from Tenant the cost thereof.
13. ALTERATIONS.
13.1 Landlord's Consent. "Alterations" means Tenant's alterations,
additions, improvements, remodeling, repainting, decorations or other changes.
Tenant may make nonstructural Alterations to the interior of the Premises
without Landlord's consent as long as the Alterations do not: affect the
windows, the exterior of the Building, or any portion of the Building or the
rest of the Project outside of the Premises; affect the strength, structural
integrity or load-bearing capacity of any portion of the Building; affect the
Systems and Equipment in the Premises or the rest of the Building or increase
Tenant's usage; or, in Landlord's reasonable judgment, cost more than a total of
$75,000 in any Lease Year when combined with the cost of other Alterations made
in that Lease Year. All other Alterations require Landlord's
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prior written consent. Whether or not Landlord's consent is required,
Alterations are subject to the rest of this Article.
13.2 Notice. Tenant will notify Landlord not less than fifteen (15)
days before beginning any Alterations. Together with Tenant's notice, Tenant
will give Landlord copies of the necessary permits and approvals and, if
Landlord deems it necessary, plans and specifications for the Alterations (but
not for minor, non-structural Alterations, such as wall coverings, wall hanging,
built-in cabinetry, movable partitions and painting). Landlord's review or
approval of Tenant's plans and specifications is solely for Landlord's benefit
and will not be considered a representation or warranty to Tenant as to safety,
adequacy, efficiency, compliance with Laws or any other matter, or a waiver of
any of Tenant's obligations. Except for items of Tenant's Property, all
Alterations will be deemed Landlord's property and part of the realty, and will
be surrendered with the Premises at the end of this Lease, unless otherwise
requested by Landlord.
13.3 Compliance with Laws. Alterations will comply in all respects with
this Lease and applicable Laws and insurance requirements. Alterations will be
done in a first-class manner, using first quality materials, and so as not to
interfere in any way with Landlord or any other tenant in the Project, cause
labor disputes, disharmony or delay, or impose any Liabilities on Landlord.
Alterations will be performed only by experienced, licensed and bonded
contractors and subcontractors approved in writing by Landlord. At Landlord's
request, Tenant will cause its contractors and subcontractors to carry workmen's
compensation insurance.
13.4 Liens. Tenant will pay when due, all claims for labor, materials
and services claimed to be furnished for Tenant or Tenant's Affiliates or for
their benefit and keep the Premises and the Project free from all liens,
security interests and encumbrances ("Liens"). Tenant will indemnify Landlord
for, and hold Landlord harmless from, all Liens, the removal of all Liens and
any related actions or proceedings, and all Liabilities incurred by Landlord in
connection therewith.
NOTICE IS HEREBY GIVEN TO ALL PERSONS FURNISHING LABOR OR MATERIALS TO TENANT
THAT NO MECHANICS', MATERIALMENS' OR OTHER LIENS SOUGHT ON THE PREMISES WILL IN
ANY MANNER AFFECT LANDLORD'S RIGHT, TITLE OR INTEREST.
14. INDEMNITY; SATISFACTION OF REMEDIES.
14.1 Indemnification. In addition to any other indemnities in this
Lease, Tenant will indemnify Landlord for and hold Landlord harmless from
Liabilities arising from or in connection with: acts or omissions of Tenant or
its Affiliates or the conduct of Tenant's business and injuries, death or damage
occurring in or on the Premises; Tenant's breach of or default under this Lease;
claims made by Tenant's Affiliates against Landlord if Tenant has waived those
claims in this Lease or
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Landlord would not be responsible to Tenant for such claims if such claims were
made by Tenant in accordance with this Lease; [(carat)(carat)(carat)] and claims
by Tenant's Affiliates or other persons if Landlord declines to consent to any
act, event or document requiring Landlord's consent under this Lease (although,
subject to the terms of this Lease, this will not prevent Tenant from making its
own claim on its own behalf if Landlord declines to consent where Landlord is
required to consent under the terms of this Lease).
14.2 Damage to Persons or Property. Subject to the rest of this Section
and the rest of this Lease, Landlord will be liable for damages caused solely by
its own negligence or willful misconduct in breach of this Lease, but Landlord
will not be liable for any special, indirect, consequential, punitive or similar
damages (including, without limitation, any loss of use or revenue by Tenant or
any other person) under any circumstances, or for any Liabilities arising from
or in connection with: acts or omissions of Tenant, any other tenants of the
Project, any third parties, or their Affiliates, including, without limitation,
burglary, vandalism, theft, or criminal or illegal activity; explosion, fire,
steam, electricity, water, gas, rain, pollution, contamination, hazardous
substances, motor vehicles or any casualties; breakage, cracking, leakage,
malfunction, obstruction or other defects in Systems and Equipment or the roof,
walls, floors, surfaces or structure, or of any services or utilities; any work,
demolition, maintenance or repairs permitted under this Lease; any exercise of
Landlord's rights under any Laws or under this Lease, including any entry by
Landlord or its Affiliates on the Premises in accordance with this Lease; or any
of the matters described in Section 24.5. Tenant and Tenant's Affiliates assume
the risk of all of these Liabilities and waive all claims against Landlord in
connection therewith. Tenant also waives any Laws or rights that would permit
Tenant to terminate this Lease, perform repairs or maintenance in lieu of
Landlord (or on Landlord's behalf), or offset or withhold any amounts due
because of damage to or destruction of the Premises, any repairs or maintenance,
or for any other reason except to the extent otherwise specifically set forth in
this Lease. Tenant immediately will notify Landlord of any damage or injury to
persons or property and any events which could be anticipated to give rise to
any of the foregoing Liabilities. This exculpation of Landlord and all of
Tenant's waivers in this Lease will apply to all of Tenant's Affiliates to the
greatest extent possible. If and to the extent that this exculpation and these
waivers do not so apply, Tenant will indemnify Landlord for and hold Landlord
free and harmless from all Liabilities incurred by Landlord to or in connection
with Tenant's Affiliates.
14.3 Satisfaction of Remedies. Notwithstanding anything in this Lease
or elsewhere to the contrary: Tenant and its Affiliates will look solely to
Landlord's interest in the Project to satisfy any claims, rights or remedies,
and Landlord and its Affiliates (and any property managers), at every level of
ownership and interest, have no personal or individual liability of any type,
whether for breach of this Lease or
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otherwise, their assets will not be subject to lien or levy of any type, nor
will they be named individually in any suits, actions or proceedings of any
type.
15. COMMON AREA AND PARKING.
15.1 Common Area. "Common Area" means all areas and improvements within
the Project, as it now exists or as it exists in the future, not held or
designated for the exclusive use or occupancy of Landlord, Tenant, or other
tenants. Tenant may use the Common Area on a nonexclusive basis during this
Lease. Landlord reserves all rights in connection with the Common Area and the
rest of the Project, including, without limitation, the right to change,
relocate, add to, improve or demolish portions and promulgate rules and
regulations with respect thereto, limit the use of any portion of the Common
Area by Tenant or its Affiliates, and place certain portions of the Common Area
off limits to Tenant and its Affiliates, including, without limitation,
janitorial, maintenance, equipment and storage areas, and entrances, loading
docks, corridors, elevators and parking areas. Landlord reserves the space above
hung ceilings, below the floor and within the walls of the Premises, and the
right to install, relocate, remove, use, maintain, repair and replace Systems
and Equipment within or serving the Premises or other parts of the Building or
the Project. Except during emergencies or by reason of force majeure or
necessary maintenance, repair or construction, Landlord's exercise of the rights
in this Article will not ever prevent Tenant from having access to the Premises,
but will not require Landlord to compensate Tenant in any way, result in any
Liabilities to Landlord, entitle Tenant to xxxxx rent, or reduce Tenant's Lease
obligations.
15.2 Parking. Tenant may park fifty-nine (59) passenger cars (19
assigned spaces and 40 unassigned spaces) in the areas designated by Landlord
from time to time for Tenant's parking (Tenant's assigned and unassigned parking
areas are shown in Exhibit "A"). Tenant may not park in spaces assigned to other
tenants. If Tenant does not use all of its parking spaces, Landlord may allow
others to use those spaces at no charge, subject to Tenant's right to reclaim
those spaces when needed. As permitted by Section 15.1, Landlord may: limit
access to portions of the parking areas; change signs, lanes and the direction
of traffic within the parking areas; change, eliminate or add parking spaces or
areas devoted to parking; allow free parking or parking with a validation,
valet, sticker or other system; promulgate rules and regulations; and take any
other actions deemed necessary by Landlord.
16. DAMAGE OR DESTRUCTION.
16.1 Repairs. Subject to the rest of this Article and the rest of this
Lease, Landlord will repair damage to the Premises caused by casualties insured
against under the casualty policies that Landlord is required to maintain
hereunder. However, Landlord is not obligated to repair damage for which
Landlord has no liability under other provisions of this Lease. Except as may
otherwise be required
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by then-applicable Laws, Landlord will attempt to restore the damaged portions
to their prior condition, but Landlord is not required to undertake repairs
unless insurance proceeds are available, spend more than the net insurance
proceeds it actually receives and is permitted to retain for any repair or
replacement, or repair or replace any damage to Tenant's Work, Tenant's Property
or any Alterations. Landlord will begin repairs within a reasonable time after
receiving notice of the damage, required building permits or licenses and the
insurance proceeds payable on account of the damage.
16.2 Election to Terminate.
(a) Landlord has the option either to repair the casualty
damage, or terminate this Lease by delivering written notice within sixty (60)
days after the damage occurs, if: the damage occurs during the last year of the
term; or Tenant is in default; or the repairs would take more than one hundred
twenty (120) days to complete or cost more than fifty percent (50%) of the cost
of Landlord's Work; or the damage was caused primarily by the intentional act or
omission of Tenant or its Affiliates; or the casualty damages more than
twenty-five percent (25%) of either: the leasable space in the rest of the
Building, or the leasable space in the rest of the Project (other than the
Building), or the Common Area of the Building, or the parking area.
(b) Tenant also has the option to terminate this Lease by
delivering written notice to Landlord if: the casualty damages the Premises and
renders it untenantable, Landlord is required or elects to repair and the
repairs which Landlord is required to make are not substantially completed
within nine (9) months after the damage occurs (subject to extension of this
period for up to an additional two (2) months for delays caused by strikes,
labor troubles, war, sabotage, governmental regulations, controls or guidelines,
inability to obtain materials, acts of God or other causes beyond Landlord's
reasonable control); the damage was not caused by the acts or omissions of
Tenant or its Affiliates and Tenant is not in default; and Tenant delivers its
written termination notice to Landlord within fifteen (15) days after the end of
Landlord's repair period and Landlord fails to substantially complete within
sixty (60) day after receiving this notice. Under these circumstances, this
Lease will terminate at the end of this sixty (60)-day period.
16.3 Abatement of Rent. If the Premises are damaged so as to be
untenantable for more than three (3) consecutive business days and Landlord is
required or elects to repair the damage, base rent and Tenant's share of Taxes
and Operating Costs will xxxxx until Landlord has substantially completed the
repairs and given Tenant access to the Premises, or Tenant reoccupies part of
the Premises, whichever is earlier. If Tenant continues to occupy or reoccupies
the Premises before substantial completion of these repairs but cannot occupy
substantially all of the Premises because of these ongoing repairs, base rent
and Tenant's share of Taxes and
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Operating Costs will xxxxx in proportion to the degree to which Tenant's use of
the Premises is impaired, as reasonably determined by Landlord. The base rent
abatement will not exceed the annual base rent for the Lease Year in which the
damage occurs. Base rent and Tenant's share of Taxes and Operating Costs will
not be abated if the acts or omissions of Tenant or its Affiliates render
Landlord unable to collect the rental loss insurance proceeds that otherwise
would have been payable to Landlord. The abatement of base rent and Tenant's
share of Taxes and Operating Costs described above is Tenant's sole remedy and
compensation in connection with any damage, destruction or repairs.
17. CONDEMNATION
If all or substantially all of the Premises are condemned, taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, police power or otherwise, or if there is a sale in lieu thereof
("Condemned"), this Lease will terminate when title or possession is taken by
the condemning authority or its designee. If:
(a) More than twenty-five percent (25%) of the usable area of
the Premises is Condemned, either Landlord or Tenant may terminate this Lease
when title or possession is taken by the condemning authority or its designee by
delivering written notice to the other within fifteen (15) days thereafter.
Landlord also may terminate this Lease above if more than twenty-five percent
(25%) of any of the following are Condemned: the leasable area of the rest of
the Building; the leasable area of the Project (other than the Building); the
Common Area of the Building; or the parking area.
(b) Part of the Premises is Condemned and this Lease is not
terminated, Landlord will make the necessary repairs so that, to the extent
reasonably possible, the remaining part of the Premises will be a complete
architectural unit. Otherwise, Landlord's restoration will be conducted as
described in Section 16.1, except that Landlord will not be required to begin
repairs until a reasonable time after it receives any necessary building permits
and substantially all of the proceeds of any awards granted for the
Condemnation. After the date title or possession is taken by the condemning
authority or its designees, base rent will xxxxx in proportion to the area of
the Premises Condemned.
All proceeds, income, rent, awards and interest in connection with any
Condemnation will belong to Landlord, whether awarded as compensation for
diminution of value to the leasehold improvements, or the unexpired portion of
this Lease, or otherwise. Tenant waives all claims against Landlord and the
condemning authority with respect thereto, but nothing in this Section prevents
Tenant from bringing a separate action against the condemning authority for
moving costs or for lost goodwill (as long as this separate action does not
diminish Landlord's recovery).
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18. ASSIGNMENT AND SUBLETTING.
18.1 Landlord's Consent Required. Tenant will not, and does not have
the right or power to, voluntarily, involuntarily or by operation of any Laws,
sell, convey, mortgage, subject to a security interest, license, assign, sublet
or otherwise transfer or encumber all or any part of Tenant's interest in this
Lease or the Premises, or allow anyone other than Tenant's employees to occupy
the Premises (singularly or collectively, "Transfer"), without first obtaining
Landlord's prior written consent in each case and complying with this Article
and any attempt to do so without this consent and compliance will be null and
void and a default, unless otherwise specifically elected by Landlord in writing
18.2 Notice. Tenant will notify Landlord in writing at least thirty
(30) days before any proposed or pending Transfer and will deliver to Landlord
such information as Landlord may reasonably request in connection with the
proposed or pending Transfer and the proposed Transferee, including, without
limitation, a copy of the final executed Transfer documents, certified current
financial statements and balance sheets, a current Dun & Bradstreet report,
banking and accounting references and other relevant financial information for
the proposed Transferee, and information as to the type of business and business
experience of the propose Transferee. All of this information must be suitably
authenticated.
18.3 Reasonable Consent. Landlord will not unreasonably withhold its
consent to an assignment or sublease by Tenant, but Landlord may withhold its
consent arbitrarily and in its sole discretion to any hypothecation, assignment
for security purposes or other Transfer or to any requested assignment or
sublease before the end of the first full Lease Year. Tenant agrees that
Landlord's withholding of consent to a proposed sublease or assignment will be
deemed reasonable if Tenant is in default or any of the other terms and
conditions of this Article have not been complied with, or if any of the
following conditions are not satisfied: (a) the subtenant or assignee will use
the Premises only for the uses permitted in Section 1.1(h) and otherwise in
accordance with this Lease, and the business and reputation of the subtenant or
assignee are consistent with the other tenancies and standards of the Project in
Landlord's reasonable judgement; (b) the subtenant or assignee is reputable and
creditworthy and has the independent financial ability to perform the
obligations of Tenant under this Lease without undue financial burden in
Landlord's reasonable judgement, and neither it nor its predecessors in interest
has been subject to a bankruptcy or reorganization, or had a receiver appointed
to manage its affairs or in connection with any of its assets, been subject to
criminal judgments, sanctions, consent decrees or similar actions by the SEC or
other governmental or quasi-governmental authorities; (c) Landlord's Mortgagees
consent (if their consent is required); and (d) there will be no more than an
aggregate of two (2) subleases of the Premises. These conditions are not
exclusive and Landlord may
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consider other factors deemed to be relevant in determining if Landlord should
grant or reasonably withhold its consent.
18.4 No Release of Tenant. Whether or not Landlord consents, no
Transfer will release or alter the liability of Tenant to pay rent and perform
all of Tenant's other obligations under this Lease. The acceptance of rent by
Landlord from any person other than Tenant is not a waiver by Landlord. Consent
to one Transfer will not be deemed to be consent to any subsequent Transfer. If
Tenant or any Transferee defaults under this Lease, Landlord may proceed
directly against the Transferee and/or against Tenant without proceeding or
exhausting its remedies against the other. After any Transfer, Landlord may
consent to subsequent Transfers of or amendments to or waivers under this Lease
without notifying Tenant or any other person, without obtaining consent thereto,
and without relieving Tenant of its Liabilities under this Lease (as it may be
modified).
18.5 Additional Terms.
(a) This Article is binding on and will apply to every
Transferee, at every level. The surrender of this Lease or its termination will
not be a merger, but Landlord will have the right to terminate all subleases and
the occupancy rights of all Transferees. Tenant will pay to Landlord as
additional rent: (i) fifty percent (50%) of all consideration paid or payable
for or by reason of any assignment of this Lease; or (ii) in the case of
sublease, fifty percent (50%) of the amount by which the sublease rent and other
consideration paid or payable exceeds the base rent for the sublease term
(prorated if the area subleased is less than the entire area of the Premises),
in each case after Tenant first recovers its bona fide, reasonable,
out-of-pocket costs paid to unaffiliated third parties to obtain the subtenant
or assignee, including without limitation, attorneys fees, brokerage
commissions, new tenant improvements made solely for the subtenant or assignee
and free rent. At Landlord's option, Landlord may collect all or any part of
this additional rent directly from the payor, and consideration paid or payable
will be defined in its broadest sense. Tenant will promptly deliver to Landlord
copies of all executed Transfer documents, all collateral agreements and all
later amendments. Tenant will pay Landlord's reasonable attorneys' fees and
other costs in connection with any request for Landlord's consent to a Transfer.
(b) An assignee will be deemed to have assumed all of Tenant's
obligations and Liabilities under this lease and will be deemed to be bound by
this Lease, and Tenant and the assignee will indemnify Landlord and hold it
harmless from all Liabilities in connection with the assignment. To confirm the
foregoing, a prospective assignee will be required to execute and deliver to
Landlord an unconditional written assumption of Tenant's Liabilities under this
Lease and the indemnity described above. Tenant and the assignee will be deemed
to be jointly and severally liable for all Liabilities of the tenant under this
Lease and any existing
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and future amendments thereto. A sublease will be deemed to be subject and
subordinate to this Lease in all respects. Tenant and the subtenant will
indemnify Landlord and hold it harmless from all Liabilities in connection with
the sublease. The subtenant will acquire no rights or claims against Landlord or
its Affiliates and will not have the right to enforce any of Tenant's rights and
remedies under this Lease against Landlord. If this Lease is terminated or
Landlord rightfully reenters or repossesses the Premises, Landlord may terminate
the sublease, or at its option, become the sublessor under the sublease and the
subtenant will attorn to Landlord, but Landlord will not be liable for Tenant's
acts or omissions, subject to any existing defenses or offsets against Tenant or
bound by any amendment to the sublease made without Landlord's prior written
consent. By entering into a sublease, Tenant and the sublessee agree that if the
sublessee breaches an obligation under its sublease which would also constitute
a default by Tenant under this Lease if not cured within applicable grace
periods, then Landlord will have all of the rights and remedies against the
subtenant that is also has against Tenant for such a default. Without limiting
the generality of the foregoing, Landlord will be permitted (by assignment of
the cause of action or otherwise) to join the Tenant in any action or proceeding
against subtenant or to proceed against the subtenant directly in the name of
Tenant to enforce these rights and remedies. Tenant will cooperate with Landlord
and execute such documents as may be reasonably necessary to implement these
rights granted to Landlord. The exercise of these rights and remedies will not
constitute an election of remedies and will not in any way impair Landlord's
right to pursue other or similar rights and remedies directly against Tenant,
nor will the grant or exercise of these rights or remedies result in the
subtenant acquiring any rights or claims against Landlord or its Affiliates.
Tenant and its Affiliates will not, directly or indirectly, assign, sublease or
otherwise Transfer to, take an assignment, sublease or other Transfer from, or
otherwise occupy premises leased to, any current or then-existing tenants (or
their Affiliates, assignees, sublessees or successors) in the Project nor to any
person (or any of his Affiliates) to whom Landlord has shown space in the
Project or with whom Landlord has negotiated to lease space in the Project
within the 6-month period prior to Tenant's request for approval, and any
attempt to do so will be null and void and a default. Transferees will not have
the right or power to make further Transfers, and any attempt to do so will be
null and void and a default unless otherwise specifically elected by Landlord in
writing. As a material inducement to Landlord to enter into this Lease, Tenant
agrees to make each prospective Transferee aware of the terms of this Article
and will deliver to each prospective Transferee a true and correct copy of this
Lease prior to any Transfer, and each document of assignment, sublease or other
Transfer, at every level, will include or explicitly incorporate the terms of
this Article. Landlord may require confirming and/or additional assurances and
agreements for its protection from Tenant and the assignee or subtenant, each of
whom agrees to give such assurances and execute such agreements.
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(c) If Tenant is a corporation, the Transfer of more than
twenty-five percent (25%) of Tenant's capital stock to any person or entity or
affiliated persons or entities, whether directly or indirectly or by one or more
transactions, or any dissolution, merger, consolidation or other reorganization
of Tenant, or the Transfer of all or substantially all of Tenant's assets, will
deemed to be an attempted assignment of this Lease and subject to all of the
terms of this Article and the rest of this Lease and the other party will be
deemed to be a prospective assignee. However, an assignment or sublease by
Tenant to its parent corporation or wholly-owned subsidiary, or to an entity
that acquires all or substantially all of Tenant's assets, will be deemed to be
a permitted assignment or sublease, as applicable, provided that the rest of
this Article is complied with, the Transferee has a net worth, credit rating and
financial capability at least equal to Tenant's when Tenant executed this Lease
or at the time of the proposed Transfer (whichever is greater), and Tenant
continues in existence. Tenant agrees that, despite anything to the contrary, a
Transferee of all or substantially all of Tenant's assets (and for these
purposes Tenant's assets will not include this Lease) will be deemed to have
assumed all of Tenant's Liabilities under this Lease, and Tenant will make such
Transferee aware of this provision.
19. MORTGAGEE PROTECTION.
19.1 Subordination and Attornment. This Lease is subordinate to all
Superior Leases and Mortgages, and Tenant will attorn to each person or entity
that succeeds to Landlord's interest under this Lease. This Section is
self-operative as to Superior Leases and Mortgages and Landlord's Mortgagees
existing when this Lease is executed, but if requested to confirm a
subordination and/or attornment, Tenant will execute the standard-form
subordination and attornment agreements furnished by the current Landlord's
Mortgagees within fifteen (15) days after request. These subordination and
attornment provisions will apply for the benefit of subsequent Landlord's
Mortgagees, provided that they agree not to disturb Tenant's rights under this
Lease if Tenant is not in default, and at the request of those Landlord's
Mortgagees, Tenant will execute their standard form subordination and attornment
agreements. However, if a Landlord's Mortgagee elects in writing, this Lease
will be superior to the Superior Leases and Mortgages specified, regardless of
the date of recording, and Tenant will execute an agreement confirming this
election on request.
19.2 Mortgagee's Liability. The obligations and Liabilities of
Landlord, Landlord's Mortgagees or their successors under this Lease will exist
only if and for so long as each of these respective parties owns fee title to
the Project or is the lessee under a ground lease of the Project. Tenant will be
liable to Landlord's Mortgagees or their successors if any of those parties
become the owner of the Project for any base rent paid more than thirty (30)
days in advance. Landlord's Mortgagees and their successors will not be liable
for: (a) acts or omissions of prior owners; (b) the return of any security
deposit not delivered to them; or (c) amendments to this Lease
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made without their consent (if their consent is required under a Superior Lease
or Mortgage).
19.3 Mortgagee's Right to Cure. No act or omission (if any) which
otherwise entitles Tenant under the terms of this Lease to be released from any
Lease obligations or to terminate this Lease will result in such a release or
termination unless Tenant first gives written notice of the act or omission to
Landlord and Landlord's Mortgagees and those parties then fail to correct or
cure the act or omission within a reasonable time thereafter (which will not be
less than ninety [90] days). Nothing in this Section or the rest of this Lease
obligates Landlord's Mortgagees to correct or cure any act or omission or is
meant to imply that Tenant has the right to terminate this Lease or be released
from its obligations unless that right is explicitly granted elsewhere in this
Lease.
20. ESTOPPEL CERTIFICATES.
Tenant will from time to time, within fifteen (15) days after request
by Landlord, execute and deliver an estoppel certificate in form satisfactory to
Landlord or its designees which will certify (except as may be truthfully and
accurately noted) such information concerning this Lease or Tenant or it's
Affiliates as Landlord or its designees may request. If Tenant fails to execute
and deliver estoppel certificates as required, Landlord's representations
concerning the matters covered by the estoppel certificate will conclusively be
presumed to be correct and binding on Tenant and its Affiliates. Within fifteen
(15) days after Tenant's request from time to time Landlord will execute and
deliver an estoppel certificate regarding this Lease to Tenant.
21. DEFAULT.
The occurrence of one or more of the following events will be a default
by Tenant under this Lease: (a) [INTENTIONALLY OMITTED]; (b) the failure to pay
rent or any other required amount within five (5) days after written notice that
the payment is due; (c) as provided in Articles 23 and 25; (d) a Transfer or
attempted Transfer in violation of Article 18; (e) the failure to maintain its
required insurance policies; or (f) the failure to observe or perform any other
obligation, term or condition within the time period specified in this Lease
and, if no time period is specified, it will be a default if this failure
continues for fifteen (15) days after written notice from Landlord to Tenant,
but if more than fifteen (15) days are reasonably required to cure, Tenant will
not be in default if Tenant begins to cure within the fifteen (15)-day period
and then diligently completes the cure as soon as possible but in any case
within sixty (60) days after the notice of default is given.
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22. REMEDIES FOR DEFAULT.
22.1 General. If Tenant defaults, Landlord may at any time thereafter,
with or without notice or demand, choose any or all of the following remedies or
pursue any other right or remedy now or hereafter available to Landlord under
this Lease or at law or in equity:
(a) At Landlord's written election the following amounts will
become immediately due and payable in advance:
(i) The unpaid rent which has accrued and would have
accrued up to the date of payment, plus late charges, plus interest from the
dates such rent was due to the date of payment at the Default Rate; plus
(ii) Rent as it becomes due from time to time, plus
late charges and interest from the dates such rent becomes due at the Default
Rate if rent is not paid when due, without the necessity of any further notices
or cure periods; plus
(iii) The reasonable costs of enforcing the terms of
this Lease, including, without limitation, costs for attorneys' fees,
investigations and performing Tenant's obligations as necessary, and/or
(b) Landlord may terminate this Lease by written notice to
Tenant. If Landlord elects to terminate this Lease under the provisions of this
Section, Landlord may recover from Tenant a judgment and Tenant will be liable
for damages computed in accordance with the following formula, in addition to
Landlord's other remedies:
(i) The unpaid rent which has accrued and would have
accrued up to the time of judgment, plus late charges, plus interest from the
dates such rent was due to the date of the judgment at the Default Rate; plus
(ii) The amount by which the whole balance of unpaid
rent which would have become due had this Lease continued for the balance of the
term after the date of judgment (discounted to the date of payment at the rate
of seven percent (7%) per annum) exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided (also discounted at the rate of
7% per annum). Tenant will have the burden of proving the amount of rental loss
that reasonably could have been avoided, which Tenant agrees will never be more
than the scheduled net rental to be received by Landlord until the expiration of
the term of this Lease from any reletting of the Premises entered into by
Landlord at the time (discounted at the rate of 7% per annum, and excluding from
such net rental utility charges and other charges, if any, that must be remitted
by Landlord to any governmental or quasi-governmental authority); plus
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(iii) The reasonable costs of enforcing the terms of
this Lease, repossessing, repairing, altering, performing tenant improvements to
and reletting the Premises, reasonable marketing, brokerage and attorneys' fees
and costs, and any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease and/or which in the ordinary course would be likely to result
therefrom; plus
(iv) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted by applicable Laws,
and/or
(c) Subject to the terms of this Lease, Landlord or its
designees may, without further notice or demand but otherwise subject to law,
enter the Premises without being guilty of trespass and without incurring (and
Tenant hereby waives) Liabilities for damages for such entry or for the manner
thereof, for the purpose of distraint or execution and/or to take possession of
the Premises, and/or to terminate Tenant's right of possession and/or to expel
Tenant and its Affiliates and remove their property, and/or
(d) Landlord may enforce this Lease in accordance with its
terms and Tenant will continue to be responsible for all charges as and when
they become due, and/or
(e) After reentry, retaking or recovering of the Premises,
with or without terminating this Lease, and without limiting Landlord's
acceleration right or other rights and remedies, Landlord may (but will not be
obligated to) relet the Premises or any part(s) thereof to such person(s) upon
such terms as may in Landlord's sole discretion seem best for a term within or
beyond the term of this Lease. Any such reletting by Landlord before termination
of this Lease will be for Tenant's account, and may be in Landlord's name or
Tenant's name, and Tenant will remain liable for all rent and additional rent
(including all charges and damages) due at the time of the reletting plus all of
such amounts that otherwise would have been due under this Lease for the balance
of the term absent any expiration, termination, repossession or reletting, plus
all costs of the type described in Sections 22.1(b)(iii) and (iv), as
accelerated or, if not accelerated, as they accrue. However, until this Lease
expires or is terminated, each month Tenant will receive a credit against its
obligations equal to the net rental proceeds (excluding utility charges or other
charges, if any, that must be remitted by Landlord to any governmental or
quasi-governmental authority), if any, actually paid to Landlord in that month
by the party or parties to whom the Premises were relet, but this credit will
never be more than the amounts owed by Tenant to Landlord for that month.
Further, Tenant, for itself and its successors and assigns, hereby irrevocably
constitutes and appoints Landlord as Tenant's agent to collect the rents due and
to become due from all sublessees and Transferees and apply the same to the rent
due hereunder without in
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any way affecting Tenant's obligation to pay any unpaid balance of rent due or
to become due hereunder.
Tenant waives the right under any Laws to any notice to remove or quit and any
and all rights of redemption or similar rights regardless of the circumstances.
For the purposes of computing any rent due hereunder, the amounts of additional
rent which would have been payable per year under this Lease will be such
amounts as were or would have been payable as specified in this Lease or, if not
specified, as reasonably estimated by Landlord (in either case without the
benefit of any abatement to which Tenant may have been entitled) for the
calendar year in which the default occurred, increasing annually on the first
day of each calendar year thereafter at the rate of seven percent (7%) per
annum, cumulative and compounded. As used in this Article, the "term" means the
initial term of this Lease and any renewals or extensions to which Tenant shall
have become bound prior to the default.
22.2 Remedies Cumulative. All remedies available to Landlord hereunder
and at law and in equity will be cumulative and concurrent. No termination of
this Lease nor taking or recovering possession of the Premises will deprive
Landlord of any remedies or actions against Tenant for rent, for charges or for
damages for the breach of any covenant, agreement or condition, nor will the
bringing of any such action for rent, charges or breach, nor the resort to any
other remedy or right for the recovery of rent, charges, or damages for such
breach be construed as a waiver or release of the right to insist upon the
forfeiture and to obtain possession. No reentering or taking possession of the
Premises, or making of repairs, alterations or improvements thereto, or
reletting thereof, will be construed as an election by Landlord to terminate
this Lease unless specific written notice of such election is given by Landlord
to Tenant.
22.3 Performance by Landlord. If Tenant defaults or fails to perform
any of its obligations under this Lease, Landlord, without waiving or curing the
default or failure, may, but will not be obligated to, perform Tenant's
obligations for the account and at the expense of Tenant. Notwithstanding
Article 21, in the case of an emergency or to prevent damage or injury or
protect health, safety or property, Landlord need not give any notice before
performing Tenant's obligations. Tenant will pay on demand all costs and
expenses incurred by Landlord in connection with Landlord's performance of
Tenant's obligations, and Tenant will indemnify Landlord for and hold Landlord
harmless from all Liabilities incurred by Landlord in connection therewith.
22.4 Post-Judgment Interest. The amount of any judgment obtained by
Landlord against Tenant in any legal proceeding arising out of Tenant's default
under this Lease will bear interest until paid at the Well's Fargo Bank prime
rate plus four percent (4%), or the maximum rate permitted by law, whichever is
less (the "Default Rate"). Notwithstanding anything to the contrary contained in
any Laws,
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with respect to any damages that are certain or ascertainable by calculation,
interest will accrue from the day that the right to the damages vests in
Landlord, and in the case of any unliquidated claim, interest will accrue from
the day the claim arose.
23. BANKRUPTCY. [SEE EXHIBIT "F"]
24. GENERAL PROVISIONS.
24.1 Holding Over. Tenant will not hold over in the Premises after the
end of the Lease term without the express prior written consent of Landlord.
Tenant will indemnify Landlord for, and hold Landlord harmless from, any and all
Liabilities arising out of or in connection with any holding over, including,
without limitation, any claims made by any succeeding tenant and any loss of
rent suffered by Landlord. If, despite this express agreement, any tenancy is
created by Tenant's holding over, except as specifically set forth in the next
sentence the tenancy will be a tenancy at will terminable immediately at
Landlord's sole option on written notice to Tenant, but otherwise subject to the
terms of this Lease, except that the most recent annual base rent will be
doubled and will be payable weekly in advance. Nothing in this Article or
elsewhere in this Lease permits Tenant to hold over or in any way limits
Landlord's other rights and remedies if Tenant holds over.
24.2 Entry By Landlord. Landlord and its Affiliates at all times have
the right to enter the Premises, and Landlord will retain (or be given by
Tenant) keys to unlock all the doors to or within the Premises, excluding doors
to Tenant's vaults and files. Landlord in good faith will attempt to give Tenant
oral or written notice before entering the Premises and to avoid disturbing the
conduct of Tenant's business by such entry more than is reasonably necessary
under these circumstances. But, Landlord need not give notice and will have the
right to use any means necessary to enter the Premises if Landlord believes
there is an emergency or that entry is necessary to prevent damage or injury or
protect health, safety or property. Entry to the Premises and the exercise of
Landlord's rights will not, under any circumstances, be deemed to be a default,
a forcible or unlawful entry into or a detainer of the Premises or an eviction
of Tenant from the Premises or any portion thereof, nor will it subject Landlord
to any Liabilities or entitle Tenant to any compensation, abatement of rent or
other rights and remedies.
24.3 Brokers. Tenant represents and warrants that it has had no
dealings with any agent, broker, finder or other person who is or might be
entitled to a commission or other fee from Landlord in connection with this or
any related transaction, except for Tenant's Broker.
24.4 Quiet Enjoyment. So long as Tenant pays all rent and performs its
other obligations as required. Tenant may quietly enjoy the Premises without
hindrance or molestation by Landlord or any person lawfully claiming through or
under Landlord,
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subject to the terms of this Lease and the terms of any Superior Leases and
Mortgages, and all other agreements or matters of record or to which this Lease
is subordinate.
24.5 Security. Tenant is solely responsible for providing security for
the Premises and Tenant's personnel. Without limiting the generality of this
Article, Tenant agrees that: (a) Landlord may, but will not be required to,
supply security personnel and systems for the Premises, the Common Area or the
rest of the Project and remove or restrain unauthorized persons and prevent
unauthorized acts; (b) Landlord will incur no Liabilities for failing to provide
security personnel or systems or, if provided, for acts, omissions or
malfunctions of the security personnel or systems; and (c) Landlord and its
Affiliates make no representations or warranties of any kind in connection with
the security or safety of the Premises, the Common Area or the rest of the
Project.
24.6 Obligations; Successors; Recordation. If Tenant consists of more
than one person or entity, the obligations and liabilities of those persons or
entities are joint and several. Time is of the essence of this Lease. Subject to
the restrictions in Article 18, this Lease inures to the benefit of and binds
Landlord, Tenant and their respective Affiliates. Tenant will not record this
Lease or a memorandum of lease.
24.7 Late Charges. If any rent or other amounts payable by Tenant are
not received within five (5) days after the due date, Tenant will pay to
Landlord on demand a late charge equal to seven percent (7%) of the overdue
amount, and if not received within ten (10) days after the due date, the amounts
also will bear interest from the due date until paid at the Default Rate.
Collection of these late charges and interest will not: be a waiver or cure of
Tenant's default or failure to perform; be deemed to be liquidated damages, an
invalid penalty or an election of remedies; or prevent Landlord from exercising
any other rights and remedies.
24.8 Accord and Satisfaction. Payment by Tenant or acceptance by
Landlord of less than the full amount of rent due is not a waiver, but will be
deemed to be on account of amounts next due, and no endorsements or statements
on any check or any letter accompanying any check or payment will be deemed an
accord and satisfaction or binding on Landlord. Landlord may accept the check or
payment without prejudice to any of Landlord's rights and remedies, including,
without limitation, the right to recover the full amount due.
24.9 Prior Agreements; Amendments; Waiver. This Lease is an integrated
document and contains all of the agreements of the parties with respect to any
matter covered or mentioned in this Lease, and supersedes all prior agreements
or understandings. This Lease may not be amended except by an agreement in
writing signed by the parties. All waivers must be in writing, specify the act
or omission waived and be signed by Landlord. No other alleged waivers will be
effective,
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including, without limitation, Landlord's acceptance of rent, collection of a
late charge or application of a security deposit. Landlord's waiver of any
specific act, omission, term or condition will not be a waiver of any other, or
subsequent, act, omission, term or condition.
24.10 Representations; Inability to Perform. Landlord and its
Affiliates have not made, and Tenant is not relying on, any representations or
warranties of any kind, express or implied, with respect to the Premises, the
Project or this transaction. Landlord will not be in default nor incur any
Liabilities if it can't fulfill any of its obligations, or is delayed in doing
so, because of accidents, breakage, strike, labor troubles, war, sabotage,
governmental regulations or controls, inability to obtain materials or services,
acts of God, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control (sometimes referred to as "force majeure").
24.11 Legal Proceedings. In any action or proceeding involving or
relating in any way to this Lease, the court or other person or entity having
jurisdiction in such action or proceeding will award to the party in whose favor
judgment is entered the actual attorneys' fees and costs incurred. Tenant also
will indemnify Landlord for, and hold Landlord harmless from and against, all
Liabilities incurred by Landlord if Landlord becomes or is made a party to any
proceeding or action: (a) by or against any person holding any interest
under or using the Premises by license of or agreement with Tenant; or (b)
necessary to protect Landlord's interest under this Lease in a proceeding under
the Bankruptcy Code. Unless prohibited by law, Tenant and Landlord each waives
the right to trial by jury in all actions involving or related to this Lease,
the Project or any collateral or subsequent agreements between the parties, and
Tenant waives any right to impose a counterclaim in any proceeding brought for
possession of the Premises as a result of Tenant's default (although Tenant will
retain whatever rights it may have to bring a separate claim against Landlord).
Tenant and Landlord each also submits to and agrees not to contest the sole and
exclusive jurisdiction of the state and federal courts located in Massachusetts
to adjudicate all matters in connection with this Lease and agrees that it will
bring all suits and actions only in such Massachusetts courts and not to seek a
change of venue. Service on any one or more of the individuals comprising Tenant
will conclusively be deemed service on all of those individuals. In any
circumstance where a party is obligated to indemnify or hold harmless the other
party under this Lease, that obligation also will run in favor of the other
party's Affiliates, and will include the obligation to protect the other party
and its Affiliates, and defend them with counsel acceptable to the other party
or, at the other party's election, the other party and its Affiliates may employ
their own counsel and the indemnifying party will pay when due all attorneys'
fees and costs. These obligations to indemnify, hold harmless, protect and
defend will survive the expiration or termination of this Lease.
24.12 Ownership; Invalidity; Remedies; Choice of Law. As used in this
Lease, the term "Landlord" means only the current owner or owners of the fee
title to the
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Premises. Upon each conveyance (whether voluntary or involuntary) of fee title,
the conveying party will be relieved of all Liabilities and obligations
contained in or derived from this Lease or arising out of any act, occurrence or
omission occurring after the date of such conveyance. Landlord may Transfer all
or any portion of its interests in this Lease, the Premises, or the Project
without affecting Tenant's obligations and Liabilities under this Lease. Tenant
has no right, title or interest in the name of the Building or the Project, and
may use these names only to identify its location. Any provision of this Lease
which is invalid, void or illegal will not affect, impair or invalidate any of
the other provisions and the other provisions will remain in full force and
effect. Landlord's rights and remedies are cumulative and not exclusive. This
Lease is governed by the laws of Massachusetts applicable to transactions to be
performed wholly therein.
24.13 Expense; Consent. Unless otherwise provided in this Lease, a
party's obligation will be performed at that party's sole cost and expense,
except when Landlord is performing Tenant's obligations because of Tenant's
default or failure to perform or as otherwise permitted in this Lease. Landlord
has agreed in a number of instances in this Lease to consent, approve or
exercise its judgment reasonably. Therefore, to avoid potential
misunderstandings, except where it is expressly provided that Landlord will not
unreasonably withhold its consent or approval or exercise its judgment
reasonably, Landlord may grant or withhold its consent or approval and exercise
its judgment arbitrarily and in its sole and absolute discretion. In any dispute
involving Landlord's withholding of consent or exercise of judgement, the sole
right and remedy of Tenant and its Affiliates is declaratory relief (i.e., that
such consent should be granted), and Tenant and its Affiliates waive all other
rights and remedies, including, without limitation, claims for damages.
24.14 Presumptions; Exhibits; Submission; Net Lease. This Lease will be
construed without regard to any presumption or other rule requiring construction
or interpretation against the party drafting the document. The titles to the
Articles and Sections of this Lease are not a part of this Lease and will have
no effect on its construction or interpretation. Whenever required by the
context of this Lease, the singular includes the plural and the plural includes
the singular, and the masculine, feminine and neuter genders each include the
others, and the word "person" includes individuals, corporations, partnerships
or other entities. All exhibits and riders attached to this Lease are
incorporated in this Lease by this reference. The submission of this Lease to
Tenant or its broker, agent or attorney for review or signature is not an offer
to Tenant to lease the Premises or the grant of an option to lease to Premises.
This Lease will not be binding unless and until it is executed and delivered by
both Landlord and Tenant. This Lease is intended to be a completely "triple net"
lease, unless specifically otherwise provided in this Lease.
24.15 Cooperation. Tenant will cooperate reasonably with Landlord in
connection with this Lease, Landlord's ownership, operation, management,
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improvement, maintenance and repair of the Premises and the rest of the Project,
and Landlord's exercise of its rights and obligations under this Lease. If
necessary, this cooperation will include, without limitation, moving machinery,
equipment or Alterations within the Premises and allowing Landlord sufficient
space within the Premises to enable Landlord to perform any work that Landlord
has the right or is required to perform under this Lease.
24.16 Notices. All notices, demands or communications required or
permitted under this Lease (the "Notices") will be in writing and personally or
electronically delivered, or sent by certified mail, return receipt requested,
postage prepaid. Notices to Tenant will be delivered to the address for Tenant
in Section 1.1, except that when Tenant takes possession of the Premises, the
address of the Premises will be used for the purpose of delivering notices to
Tenant. If Tenant is comprised of more than one entity or individual, Notices to
any one or more of the entities or individuals comprising Tenant will be deemed
valid Notices to Tenant and to all of those entities and/or individuals. Notices
to Landlord will be delivered to the addresses for Landlord in Section 1.1.
Notices will be effective on the earlier of: delivery; or, if mailed, three (3)
days after they are mailed in accordance with this Section.
24.17 Security Deposit.
(a) On Tenant's execution of this Lease, Tenant will deliver
to and deposit with Landlord an irrevocable, unconditional Standby Letter of
Credit in accordance with the terms of this Section (the "Letter of Credit").
The Letter of Credit will: have an initial face amount of One Hundred Twenty
Thousand Dollars ($120,000); be issued by a bank in Massachusetts reasonably
acceptable to Landlord; have an initial term of one (1) year and be renewed and
continuously maintained for a term expiring at least one (1) month after the end
of the last Lease Year; name Landlord (or, at Landlord's request, one or more of
Landlord's lenders) as the beneficiary thereof; and be acceptable in form and
substance to Landlord and its counsel. The Letter of Credit shall provide that:
(i) the Letter Credit shall automatically renew unless the issuer provides at
least fifteen (15) days' prior written notice of non-renewal to the beneficiary;
and (ii) the beneficiary thereof has the right to draw under the Letter of
Credit on one or more occasions from time to time during its terms imply upon
presentation to the issuer of a sight draft executed by the beneficiary or its
authorized representative, without further condition, and that the issuer shall
pay upon presentation of such sight draft without delay, deduction or offset of
any type.
(b) Provided that Letter of Credit is not drawn upon, starting
on the first day of the fourth (4th) month after the end of the second Lease
Year, and every three (3) months thereafter, the face amount of the Letter
Credit shall be reduced by Ten Thousand Dollars ($10,000).
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(c) The Letter of Credit is security for the timely payment
and performance of Tenant's Lease obligations. If Tenant fails to pay and
perform its Lease obligations as required, the beneficiary may, but will
not be obligated to, draw under the Letter of Credit on one or more occasions
and apply the amounts drawn against amounts owed Landlord under this Lease, and
the beneficiary's draw(s) under or failure to draw down all or any portion of
the Letter of Credit in any particular instance will not be deemed to be a
waiver or election of any rights and remedies of any type, a limitation on
damages, a payment of liquidated damages or an accord or satisfaction. If Tenant
fails to deliver to the beneficiary renewals of the Letter of Credit at least
fifteen (15) days before the expiration thereof, and whether or not Tenant has
timely paid and performed its Lease obligations, the beneficiary may, but will
not be obligated to, draw down the Letter of Credit and hold the amounts drawn
as a cash security deposit, or return the Letter of Credit to Tenant, in which
case Tenant will concurrently deposit with Landlord as a security deposit cash
in an amount equal to the then-required face amount of the Letter of Credit per
Section 24.17(b) above. The amount of the cash security deposit will reduce in
accordance with the schedule set forth in Section 24.17(b) above, and otherwise
such cash security deposit will be subject to the terms of this Section
24.17(c). If Tenant complies with all of the provisions of this Lease, the
Letter of Credit will be returned undrawn (or the cash security deposit will be
returned) to Tenant or its assignee after the end of this Lease and the
surrender of possession of the Premises to Landlord in the condition required.
24.18 Other Defined Terms.
(a) "Affiliates" means: partners, directors, officers,
shareholders, agents, employees, parents, subsidiaries, affiliated parties,
invitees, customers, licensees, concessionaires, contractors, subcontractors,
successors, assigns, subtenants, and representatives.
(b) "Landlord's Mortgagees" means the lessors or mortgagees
under the Superior Leases and Mortgagees and their successors and assigns. The
current Landlord's Mortgagee is The Bank of Nova Scotia, Xxx Xxxxxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(c) "Laws" means: laws, codes, decisions, ordinances, rules,
regulations, licenses, permits, and directives of governmental and
quasi-governmental officers, including, without limitation, those relating to
building and safety, fire prevention, health, energy conservation, Hazardous
Substances and environmental protection.
(d) "Liabilities" means: all costs, damages, claims, injuries,
liabilities and judgments, including, without limitation, attorneys' fees and
costs (whether or not suit is commenced or judgment entered).
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(e) "Superior Leases and Mortgages" means all present and
future ground leases, underlying leases, mortgages, deeds of trust or other
encumbrances, and all renewals, modifications, consolidations, replacements or
extensions thereof and advances made thereunder, affecting all or any portion of
the Premises or the Project.
(f) "Systems and Equipment" means: when used generally, all
HVAC, plumbing, mechanical, electrical, lighting, water, gas, sewer, safety,
sanitary and any other utility or service facilities, systems and equipment, and
all associated pipes, ducts, poles, stacks, chases, conduits, wires and
facilities, and when used specifically, a specified installation or type of
equipment or utility service and all associated pipes, ducts, poles, stacks,
chases, conduits, wires and facilities.
25. HAZARDOUS SUBSTANCES.
Without limiting the generality of any portion of this Lease, Tenant
and its Affiliates will:
(a) Not store, handle, transport, use, process, generate,
discharge or dispose of any hazardous, toxic, corrosive, dangerous, explosive,
flammable or noxious substances, gasses or waste, whether now or hereafter
defined under any Laws or otherwise (collectively, "hazardous substances"),
from, in or about the Premises or the rest of the Project, or create any release
or threat of release of any hazardous substances, nor permit any of the
foregoing to occur. If any of the foregoing occur, or if Landlord in good faith
believes that any of the foregoing have occurred or are like to occur or that
Tenant and its Affiliates are not complying fully with the requirements of this
Article, in addition to any other rights and remedies of Landlord, Tenant and
its Affiliates immediately will cease the acts or omissions and in addition to
any other rights and remedies (all of which are cumulative), at Landlord's
request Tenant will take such actions as may be required by Laws and as Landlord
may direct to cure or prevent the problem. Tenant and its Affiliates will comply
fully with all Laws and insurance requirements in connection with or related to
hazardous substances, whether now or hereafter existing, including, without
limitation, CERCLA, XXXX, RCRA, TSCA, CWA, Chapter 21E of Massachusetts General
Laws and any other Laws promulgated by the EPA, OSHA or Commonwealth of
Massachusetts.
(b) immediately pay, and indemnify Landlord for and hold
Landlord harmless from, all Liabilities in connection with or arising directly
or indirectly from any breach by Tenant or its Affiliates of their
obligations in this Article, including, without limitation, the costs of any of
the following, whether required by Landlord, applicable Laws or insurance
requirements or otherwise: any "response actions" or "responses"; any surveys,
"audits", inspections, tests, reports or procedures deemed necessary or
desirable by Landlord or governmental or quasi-governmental
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authorities to determine the existence or scope of any hazardous substances or
Tenant's compliance with this Article, and any actions recommended to be taken
in connection therewith; compliance with any applicable Laws and insurance
requirements; any requirements, directives or plans for the prevention,
containment, processing, storage, clean-up or disposal of hazardous substances;
the release and discharge of any resulting liens; and any other injury or
damage. On the expiration or earlier termination of this Lease, Tenant will
leave the Premises free of hazardous substances.
(c) Immediately deliver to Landlord copies of any notices,
information, reports, and communications of any type received or given in
connection with hazardous substances, including, without limitation, notices of
violation and settlement actions from or with governmental or quasi-governmental
authorities, reports from Tenant's engineers or consultants, and the results of
any analyses conducted by or for Tenant. Tenant specifically grants Landlord the
right to participate in all discussions and meetings regarding actual or
potential violations, settlements or abatements.
Tenant's failure to comply with the requirements of this Article will be a
material default under this Lease. All of Tenant's obligations under this
Article will survive the expiration or earlier termination of this Lease.
IN WlTNESS WHEREOF, intending to be legally bound, each party has
executed this Lease as a sealed instrument as of the date first set forth above
on the date specified below next to its signature.
"LANDLORD"
ANDOVER XXXXX REALTY LIMITED
PARTNERSHIP,
Executed: MARCH 1, 1996 a Massachusetts limited partnership
By: Niuna-Andover, Inc., a Massachusetts
WITNESS: corporation general partner
/s/ Xxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxxx
------------------------------ ------------------------------
Name Printed: XXXX X. XXXXX Name: XXXX XXXXXXXXXX
Its: PRESIDENT
Executed: 2/27, 1996 "TENANT"
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CASCADE SYSTEMS, INC.,
a Massachusetts corporation
WITNESS:
/s/ Xxxxxx X. Azuth By: /s/ Xxxxx Xxxxxxxxx
------------------------------ ------------------------------
Name Printed: Xxxxxx X. Azuth Name: Xxxxx Xxxxxxxxx
Vice President, Finance
Authorized Signature
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx, Clerk
Authorized Signature
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EXHIBIT "A"
PROJECT SITE PLAN
[Project Site Plan Schematic]
39
EXHIBIT "B"
PREMISES
BUILDING 300
FIRST FLOOR
[Premises Schematic, Building 300, First Floor]
40
EXHIBIT "C"
WORKLETTER
1. General Conditions.
1.1 Tenant and its contractors may have access to the Premises for the
purpose of preparing the Premises for Tenant's occupancy before Landlord's Work
has been substantially completed, but only with Landlord's prior written
approval. After any entry by Tenant or its contractors, all of Tenant's Lease
obligations will be immediately effective except for the obligation to pay base
rent, Taxes and Operating Costs. All construction, materials, services,
licenses, approvals, costs, installations and equipment to or for the Premises
other than Landlord's Work are called "Tenant's Work," and will be performed by
Tenant at Tenant's sole cost and in a good and workmanlike manner and subject to
the rest of the terms of this Lease. Tenant has inspected and accepts the
Premises as is, except for Landlord's Work to be performed. Tenant will not
interfere in any way with Landlord's Work, whether in connection with Tenant's
Work or otherwise. If Landlord's Work is delayed or made more expensive due to:
any act or omission of Tenant or its Affiliates (including, without limitation,
any delay of or failure to complete Tenant's Work, any requested or required
changes to Exhibit "C" agreed to by Landlord, or any failure or delay in
submitting plans, specifications, drawings, requirements, information or
approvals, or changes or inaccuracies in any of the foregoing); or the inclusion
in Exhibit "C" or other Tenant specifications of "long lead" items or services
that cannot reasonably be obtained in sufficient time to be incorporated in
Landlord's Work in the normal course of Landlord's construction schedule (and
Tenant's failure to delete or substitute for those items or services), then
Tenant will be responsible for the delays and additional cost, Landlord's Work
will be deemed substantially completed when it would have been completed but for
the delays (and at minimum any delays will be subtracted from the date of actual
substantial completion in determining when substantial completion will be deemed
to have occurred), and Tenant will pay any additional cost to Landlord as
additional rent within fifteen (15) days after receipt of Landlord's xxxx.
Within ten (10) days after Landlord's request, Tenant will execute and deliver
to Landlord a certificate confirming the date of substantial completion of
Landlord's Work. Tenant's certificate is for purposes of confirmation only and
will not affect the actual date of substantial completion.
1.2 The rest of this Workletter is attached and is incorporated herein
by this reference.
Page 1 of 1
41
B.1.0 GENERAL
The Workletter is intended to show the division between the Landlord's Work (the
"Base Building" described below) and Tenant work. Tenant's Work includes any
work not described under the "Base Building" heading below, and any changes,
additions or deletions to Landlord's Work requested by Tenant. All descriptions
of the split between the Landlord's versus the Tenant's responsibilities with
regard to HVAC, electrical, fire suppression, life safety and plumbing are for
the purpose of allocating cost and installation responsibilities. The Landlord
will specify, purchase, install and balance all installations listed under the
Base Building Heading. In order to ensure a coordinated system, the remaining
systems that are to be specified and installed by the Tenant must be approved by
the Landlord, as must any modifications or additions to the base building
systems. Tenant is solely responsible for paying and performing Tenant's Work.
However, Landlord reserves the right to install Tenant's Work (at Tenant's cost)
if it connects to or affects Landlord's Work or any code-related or life-safety
related work.
Tenant may request that Landlord contract for all or part of Tenant's Work. If
Landlord agrees, this work will be deemed to be part of Tenant's Work and not
part of Landlord's Work, and will be done at Tenant's sole cost, risk and
liability and Landlord will have no cost, risk or liability. Landlord will not
be required to advance any funds for this work and at Landlord's request Tenant
will advance, or pay to Landlord within seven days after receipt of bills, all
costs (whether "hard" of "soft" costs) incurred or which may be due in
connection with this work, including without limitation, costs for permits,
design, drawing, architectural, engineering and drafting services, contractors
overhead and profit, labor, materials and ten percent (10%) of hard and soft
costs to Landlord for Landlord's supervision, coordination and involvement.
Tenant will indemnify and hold Landlord harmless from all damages, claims and
liabilities in connection with this work.
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LANDLORD/BASE BUILDING TENANT
B.2.0 SITE IMPROVEMENTS
1. Landlord will identify parking
spaces.
Landlord will display Tenant's
name on existing brick and stone
building directory monument.
B.3.0 STRUCTURE Tenant is responsible for any
modifications to the base building
No work required. structural system as required by Tenant
equipment, floor loadings, or such
Tenant design features as
communicating stairs, Tenant shafts, etc.
B.4.0 DEMOLITION
Landlord will prepare the Tenant's Tenant is responsible for any demolition
space for the Landlord's work and for for work unrelated to the Landlord's
normal Tenant fit-up. work or to normal Tenant fit-up.
B.5.0 BUILDING EXTERIOR
No work required. Any provisions for Tenant requirements
such as through-wall ventilation,
exhaust, or other items that will
penetrate or affect the exterior facades
and are not being provided by the
Landlord will be the Tenant's
responsibility but must be approved by
the Landlord.
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LANDLORD/BASE BUILDING TENANT
B.6.0 HVAC
Landlord will provide HVAC system 1. All special Tenant HVAC
designed to meet the following criteria: equipment required for non-typical
Tenant cooling loads such as
- Cooling and ventilation capacity computer rooms, electronic
sufficient to meet accepted design equipment rooms, telephone rooms,
standards for the following: dark rooms, labs, etc.
a. A density of one occupant 2. All special ventilation and exhaust
per 150 gross usable square requirements related to Tenant
feet occupancy uses such as mentioned
in the previous paragraph, such as
b. Total Tenant electrical loads fume hoods, exhaust fans, etc.
of 4 xxxxx per square foot for
lighting and convenience
power.
c. One thermostat control per 3. Any special Tenant related systems
2,500 s.f. of Tenant usable or equipment such as special
floor area. Additional control controls, climate control
zones will be the Tenant's (humidification), etc.
responsibility.
- Comfort Conditions 4. All modifications to the Landlord
provided distribution to
a. Summer - maintain indoor accommodate special Tenant
condition 00X, 00 xxxxxxx xx requirements not covered by the
at 90(degree)F db/75(degree) outdoors. Landlord's work.
b. Winter - maintain indoor 5. All modifications to the system
temperature of 72(degree)F at 10(degree)F including ducted returns or other
outdoors. upgrades to the system to eliminate
the need for rated data/
communication cable above the
ceiling.
B.7.0 ELECTRICAL
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Landlord will provide sufficient code- All electrical provisions required to fit-up
compliant electrical capacity to the Tenant area other than that provided by
accommodate Tenant's space plan. the Landlord, including all data and
telephone distribution, all special or
dedicated power circuits, and any special
lighting not part of the Landlord's work.
Tenant is also responsible to make
arrangements with the Massachusetts Electric
Company for an electric service contract.
Electrical Notes
1. Landlord-provided electrical system will be designed sufficiently to
provide for all central equipment and common areas as described
elsewhere in this document and for the following Tenant loads:
- Four xxxxx/square foot total lighting and convenience power.
Any increase in the size of the electrical systems as required
by Tenant loads in excess of the design capacity will be the
Tenant's responsibility.
2. Lighting fixtures and Tenant power within the Tenant's demised premises
will be installed by the Landlord. The scope of this work will be
determined once Tenant has provided said plan for the Landlord's review
and approval.
3. The design intent is for the Tenant related power, telephone and data
distribution to be located in the return air ceiling plenum or
suspended from the underside of the exposed structure above and
distributed to the floor via the column and partition enclosures. All
Tenant designs and installations must conform to the code and must be
reviewed and approved by the Landlord.
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LANDLORD/BASE BUILDING TENANT
B.8.0 TELEPHONE
1. Landlord will provide main 1. Tenant is responsible for the. entire
telephone service conduit from telephone system other than that which is
the street into a telephone closet described in the base building column,
located on the first floor and will including a telephone closet located within
provide boards for the location of the Tenant's demised premises for all of the
central distribution equipment. Tenant's central and branch equipment,
distribution panels, wire, and instruments,
etc.
B.9.0 FIRE SUPPRESSION
All central equipment, piping and All modifications to the base building
controls, including standpipe riser, hose sprinkler system as necessary to
valves, annunciator, etc. accommodate Tenant fit-up and/or
ceiling configurations other than that
Sprinkler distribution piping. provided by the Landlord. These
modifications include those required for
Sprinkler heads in building common special areas, computer rooms,
areas including penthouse, MERs, ECs, cafeterias, kitchens, labs, dark rooms,
main lobby, toilet rooms, etc. etc., such as pre-action valves for a dry
pipe system, halon systems, etc.
Sprinkler heads in Tenant area in a
regular grid configuration located by
installing straight vertical drops from
the existing sprinkler tees.
NOTE: Drops will not be centered
in the ceiling tile or
room unless Tenant directs
so at his own cost.
Landlord will coordinate
sprinkler drops to avoid
interference with the
lighting pattern, HVAC
diffusers, and other
ceiling-mounted components
that are being provided by
the Landlord.
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LANDLORD/BASE BUILDING TENANT
B.10.0 LIFE SAFETY SYSTEMS
1. Landlord will provide all code required fire Tenant is responsible for all modifications
alarm systems and their associated risers, to the life-safety systems to accommodate
including the following: special areas or requirements such as
dark rooms, labs, computer rooms, etc.
- Central annunciator, distribution,
and control panels as required for
smoke and fire detection, alarms,
voice communication, etc., including
hook-up to local fire department as
required.
- All conduit, risers, and local
distribution panels as required to
extend the smoke, fire alarm, and
communication network to the
electrical closet on each floor.
- Installation of the smoke and fire
detection, alarm, and voice
communication systems into the
Tenant space as required by the
Tenant Space Plan exhibit to the
lease, subject to review and approval
of the Tenant's requirements once
the Tenant has submitted his space
plan to the Landlord.
B.11.0 PLUMBING
Landlord to provide common toilet rooms, one for Tenant is responsible for installation and
each sex. Each toilet room to be provided with hook-up of all Tenant plumbing fixtures.
number of fixtures as required by Code. Fixture
type to be new building standard porcelain.
Landlord to provide sink at employee kitchen
with provisions for "instant" hot water.
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LANDLORD/BASE BUILDING TENANT
B.12.0 FLOORING
Landlord will provide direct glue-down All special flooring in demised Tenant
carpet (or sheet vinyl or VCT of areas not requiring carpet such as
comparable value) with integral pad over computer floors, special kitchen and
repaired/existing floors in those areas food service flooring, executive carpet
requiring carpeting or floor covering within upgrades, wood flooring, poured floors,
the Tenant's demised premises. The etc.
Landlord allowance for Tenant floor
coverings is $15 per square yard including
taxes and installation. The allowance
applies to all demised areas.
Landlord will furnish and install vinyl or
rubber base for all partitions and columns.
Base is in addition to the above mentioned
floor covering allowance.
B.13.0 CEILINGS
Landlord will provide building standard Tenant is responsible for any
ceilings for the areas requiring ceilings modifications to the Landlord-installed
within the Tenant's demised space in a ceiling pattern as required to
regular grid "open-plan" configuration. accommodate special spaces, etc.
Tenant is to layout his partitions
accordingly. Ceilings to be as high as
feasible (minimum 8') throughout, except
for soffited areas required to accommodate
ductwork and/or utilities.
Landlord will provide 15/16" standard face
suspension system with regular edge tiles
throughout the Tenant space. Building
standard tiles to be Xxxxxxxxx Second
Look.
Landlord will leave all areas above the
ceiling open to the underside of the
structure above.
Landlord will construct bulkheads as
required to conceal distribution ductwork.
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LANDLORD/BASE BUILDING TENANT
B.14.0 WALLS AND PARTITIONS
Core walls on single Tenant floors will be All partitions within demised Tenant
taped, spackled, and prime painted. areas other than those provided by the
Tenant demising walls and interior Landlord under the Landlord's base
surface of exterior walls will be taped, building obligation. Tenant will also
spackled, and painted with one prime be responsible for all acoustical
coat and one finish coat. treatments within or above the
partitions provided by the Landlord.
Landlord will install all non-moveable
ceiling height partitions within the
Tenant's space as required by the Tenant
Space Plan.
B.15.0 DOORS
Landlord to furnish and install all main Tenant to furnish and install all
building entries and exit doors and interior door frames and hardware
building perimeter, all core areas doors within the demised Tenant area other
including stairway exit doors, and doors than those provided by the Landlord
to mechanical areas. as mentioned in the base building
provisions. Tenant doors, frames, and
hardware to be the same specification
as those provided by the Landlord
unless otherwise approved by the
Landlord.
Landlord to furnish and install 3'-0' x 7'-0'
high red oak veneer solid core wood
doors (with hardware Satin Chrome
Plated [US26D] finish) within the Tenant's
demised premises, as required by the
Tenant Space Plan, subject to submittal
and approval of Tenant's space plan by
the Landlord.
B.16.0 SPECIALTIES
Landlord to furnish and install core area Tenant is responsible for all Tenant
signage for all floors. specific identification signs, directories,
etc.
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B.17.0 SPECIAL LANDLORD
CONSTRUCTION
1. Landlord will provide (one) 1. Tenant to provide and install
transparent finished hardwood special lighting fixtures.
framed 2-leaf suite entrance door.
2. Landlord will provide 4' W x 4' H 2. Tenant to provide and install
glass sidelights at 31 locations. decorative gypsum board
bulkheads, soffits and facias.
3. Landlord will provide built-in 3. Tenant to provide and install all
casework for kitchen area. built in casework, counter work,
and millwork.
4. Landlord will provide building 4. Tenant to provide and install all
standard vertical blinds for all laboratory equipment, fixtures,
exterior windows within the worksurfaces, etc.
Tenant's demised premises.
5. Tenant to provide and install
Tenant specific security system.
6. Subject to Landlord approval as
to design, Tenant may install
their name and logo on the wall
immediately adjacent and
perpendicular to their entrance
door.
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EXHIBIT "D"
BASE RENT
Annual Base Rent
Per Square Foot of
Agreed Rentable Area in
Lease Year the Premises
---------- ------------
1-5 $11.85*
*Subject to abatement per Section 5(b) of the Lease.
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EXHIBIT "E"
RULES AND REGULATIONS
1. Fire exits and stairways are for emergency use only, and they shall
not be used for any other purposes. Tenant shall not encumber or obstruct, or
permit the encumbrance or obstruction of or store or place any materials on any
of the sidewalks, plazas, entrance, corridors, elevators, fire exits or
stairways of the Project. The Landlord reserves the right to control and operate
the public portions of the Project and the public facilities, as well a
facilities furnished for the common use of the tenants, and access thereto, in
such matter as it deems best.
2. The cost of repairing any damage to the public portions of the
Project or the public facilities or to any facilities used in common with other
tenants caused by Tenant or its Affiliates shall be paid by Tenant.
3. Any person whose presence in the Project at any time shall, in the
judgment of the Landlord, be prejudicial to the safety, character, reputation
and interests of the Project or its tenants may be denied access to the Project
or may be ejected therefrom. In case of invasion, riot, public excitement or
other commotion the Landlord may prevent all access to the Project or the
Building during the continuance of the same, by closing the doors or otherwise,
for the safety of the tenants and protection of property. The Landlord shall in
no way be liable to any tenant for damages or loss arising from the admission,
exclusion or ejection of any person to or from Tenant's premises or the Project
under the provisions of this rule.
4. No awnings or other projections over or around the windows shall be
installed by Tenant and only such window blinds as are permitted by the Landlord
shall be used in Tenant's premises.
5. Hand trucks shall not be used in any space, or in the public halls
of the Building in the delivery or receipt of merchandise, except those equipped
with rubber tires and side guards. Tenant shall repair all damage to floors both
in the Premises and the Common Area caused by its use of material-handling
equipment and, if requested by Landlord, Tenant shall install at its expense
suitable floor covering to protect the floors and shall remove such floor
covering (and repair any damage caused by the removal) at its expense at the
expiration or earlier termination of this Lease. All air compressors, electric
motors and other machinery and equipment shall be shock-mounted so as not to
transmit vibrations.
6. All entrance doors in Tenant's premises shall be kept locked when
Tenant's premises are not in use. Entrance doors shall not be left open at any
time. All windows in Tenant's premises shall be kept closed at all times and all
blinds therein above the ground floor shall be lowered when and as reasonably
required
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because of the position of the sun, during the operation of the air conditioning
system to cool or ventilate the tenant's premises.
7. Nothing shall be done or permitted in Tenant's premises which would
impair or interfere with any of the Systems or Equipment or the proper and
economic servicing of the Building or the Premises, or the use or enjoyment by
any other tenant of any other premises, nor shall there be installed by Tenant
any Systems or Equipment or other equipment of any kind which, in Landlord's
judgment, could result in such impairment or interference. If necessary in
Landlord's judgment, Landlord may install, relocate, remove, use, maintain,
repair and replace Systems and Equipment within or serving the Tenant's premises
or other parts of the Project, and perform other work and alterations within the
Tenant's premises. No dangerous, inflammable, combustible or explosive object or
material shall be brought into the Building by Tenant or with the permission of
Tenant.
8. Whenever Tenant shall submit to Landlord any plan, agreement or
other document for Landlord's consent or approval, such tenant agrees to pay
Landlord as additional rent, on demand, a processing fee in a sum equal to the
fees of any architect, contractor, engineer and attorney employed by Landlord to
review said plan, agreement or document. Within fifteen (15) days after
Landlord's request from time to time, Tenant shall deliver to Landlord Tenant's
financial statements, including a balance sheet, income statements and bank
references.
9. No acids, vapors hazardous or other materials shall be discharged or
permitted to be discharged into the waste lines, ducts, vents or flues which may
damage them or any other portions of the Building or the Project. The water and
wash closets and other plumbing fixtures in or serving any tenant's premises
shall not be used for any purpose other than the purpose for which they were
designed or constructed, and no sweepings, rubbish, rags, acids or other foreign
substances shall be deposited therein. All damage resulting from any misuse of
the fixtures shall be borne by the tenant who, or whose servants, employees,
agents, visitors or licensees, shall have caused the same.
10. No signs, advertisements, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside or
inside the premises or the Building without the prior written consent of
Landlord. The Tenant shall cause the exterior of any permitted sign to be kept
clean, properly maintained and in good order and repair throughout the term of
its lease. In the event of the violation of the foregoing by Tenant, Landlord
may remove the same without any liability, and may charge the expense incurred
by such removal to Tenant. Landlord shall have the right to prohibit any
advertising by Tenant which impairs the reputation of the Building or the
Project, and upon, written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
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11. Tenant's employees shall not loiter around the hallways, stairways,
elevators, front, roof or any other part of the Building used in common by the
occupants thereof.
12. If the premises become infested with vermin, Tenant, at its sole
cost and expense, shall cause its premises to be exterminated, from time to
time, to the satisfaction of Landlord, and shall employ such exterminators
therefor as shall be approved by Landlord.
13. All movers used by Tenant shall be appropriately licensed and shall
maintain adequate insurance coverage (proof of such coverage shall be delivered
to Landlord prior to movers providing service in and throughout the Building).
Tenant shall protect the premises and the rest of the Building from damage or
soiling by Tenant's movers and contractors and shall pay for extra cleaning or
replacement or repairs by reason of Tenant's failure to do so.
14. The premises shall not be used for lodging or sleeping or for any
immoral or illegal purposes.
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EXHIBIT "F"
BANKRUPTCY PROVISIONS
This Article is incorporated into the Lease as Article 23:
23. BANKRUPTCY OR INSOLVENCY.
23.1 Tenant's Interest Not Transferable. Neither Tenant's interest in
this Lease nor any estate hereby created in Tenant nor any interest herein or
therein will pass to any trustee or receiver or assignee for the benefit of
creditors or otherwise by operation of law except as may specifically be
provided pursuant to the Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the
"Bankruptcy Code").
23.2 Default and Termination. If:
(a) Tenant or Tenant's Guarantor, if any, or its executors,
administrators, or assigns, will generally not pay its debts as they become due
or will admit in writing its inability to pay its debts, or will make a general
assignment for the benefit of creditors; or
(b) Tenant or Tenant's Guarantor, if any, will commence any
case, proceeding or other action seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property; or
(c) Tenant or Tenant's Guarantor, if any, will take any
corporate, partnership or other action to authorize or in furtherance of any of
the actions set forth above in subsection (a) or (b); or
(d) Any case, proceeding or other action against Tenant or
Tenant's Guarantor, if any, will be commenced seeking to have an order for
relief entered against it as debtor, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, and such case,
proceeding or other action: results in the entry of an order for relief against
it which is not fully stayed within seven (7) business days after the entry
thereof; or remains undismissed for a period of forty-five (45) days, then it
will be a default hereunder and this Lease and all rights of Tenant hereunder
will automatically cease and terminate as if the date of such event were the
original
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expiration date of this Lease and Tenant will vacate and surrender the Premises
but will remain liable as herein provided.
23.3 Rights and Obligations Under the Bankruptcy Code.
(a) Upon the filing of a petition by or against Tenant under
the Bankruptcy Code, Tenant, as debtor and as debtor in possession, and any
trustee who may be appointed agree as follows: (i) to perform all obligations of
Tenant under this Lease, including, but not limited to, the covenants regarding
the operations and uses of the Premises until such time as this Lease is either
rejected or assumed by order of the United States Bankruptcy Court; (ii) to pay
monthly in advance on the first day of each month as reasonable compensation for
use and occupancy of the Premises an amount equal to all base rent and other
rent otherwise due pursuant to this Lease; (iii) to reject or assume this Lease
within sixty (60) days of the filing of a petition under any Chapter of the
Bankruptcy Code or under any Law relating to bankruptcy, insolvency,
reorganization or relief of debtors (any such rejection being deemed an
automatic termination of this Lease); (iv) to give Landlord at least thirty (30)
days prior written notice of any proceeding relating to any assumption of this
Lease; (v) to give at least thirty (30) days prior written notice of any
abandonment of the Premises (any such abandonment being deemed a rejection and
automatic termination of this Lease); (vi) to do all other things of benefit to
Landlord otherwise required under the Bankruptcy Code or under any Law relating
to bankruptcy, insolvency, reorganization or relief of debtors; (vii) to be
deemed to have rejected this Lease in the event of the failure to comply with
any of the above; and (viii) to have consented to the entry of an order by an
appropriate United States Bankruptcy Court providing all of the above, waiving
notice and hearing of the entry of same.
(b) No default under this Lease by Tenant, either prior to or
subsequent to the filing of such petition, will be deemed to have been waived
unless expressly done so in writing by Landlord.
(c) Included within and in addition to any other conditions or
obligations imposed upon Tenant or its successor in the event of assumption
and/or assignment are the following: (i) the cure of any monetary defaults and
the reimbursement of pecuniary loss by the time of the entry of the order
approving such assumption and/or assignment (pecuniary loss will include,
without limitation, any attorneys' fees and costs and expert witness fees
incurred by Landlord in protecting its rights under this Lease, including
representation of Landlord in any proceeding commenced under the Bankruptcy Code
or under any Law relating to bankruptcy, insolvency, reorganization or relief of
debtor); (ii) the deposit of an additional sum equal to three (3) months' base
rent; (iii) the use of the Premises only as set forth in this Lease; (iv) the
reorganized debtor or assignee of such debtor in possession or of Tenant's
trustee demonstrates in writing that it has sufficient background including, but
not limited to, substantial experience in operating businesses in the manner
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56
contemplated in this Lease and meet all other reasonable criteria of Landlord as
did Tenant upon execution of this Lease; (v) meet all other criteria of 11
U.S.C. Section 365(b)(3); and (v) the prior written consent of any mortgagee to
which this Lease has been assigned as collateral security; and (vi) the Premises
at all times remains a single unit and no Alterations or physical changes of any
kind may be made unless in compliance with the applicable provisions of this
Lease.
(d) Any person or entity to whom this Lease is assigned
pursuant to the provisions of the Bankruptcy Code will be deemed without further
act or deed to have assumed all of the obligations arising under this Lease on
or after the date of such assignment. Any such assignee will upon demand execute
and deliver to Landlord an instrument confirming such assumption.
23.4 Construction. The terms of this Article will be in addition to,
but not exclusive of, any rights or remedies of Landlord in Article 22 and
elsewhere in this Lease or otherwise available at law or in equity, and will not
be deemed to limit Landlord, except as may be required by law.
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AMENDMENT TO #1 LEASE
1 PARTIES.
This Amendment, dated as of April 30, 1996, is between Andover Xxxxx
Realty Limited Partnership ("Landlord") and Cascade Systems, Inc. ("Tenant").
2 RECITALS.
2.1 Landlord and Tenant have entered into a Lease, dated as of
February 27, 1996 (the "Lease"), with respect to space at Brickstone Square in
Andover, Massachusetts. Unless otherwise defined, terms used in this Amendment
have the same meanings as those used in the Lease.
2.2 The parties wish to add additional space as part of the
Premises leased by Tenant under the Lease and to change the Security Deposit to
cash instead of a letter of credit. To accomplish these and other matters, for
Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree and the
Lease is amended as follows, notwithstanding anything to the contrary:
3. AMENDMENTS.
3.1 Exhibit "B" attached to the Lease is deleted and of no force and
effect, and Exhibit "B" attached hereto and incorporated herein by this
reference is substituted in its place. The Premises are on the first floor of
Building 300 and will be as shown in Exhibit "B" attached hereto. The Premises
have an agreed retable area of 20,030 square feet. A portion of the Premises is
designated on Exhibit "B" attached hereto as the "Initial Storage Space."
3.2 In Section 1.1(f) of the Lease, Tenant's Percentage is changed
to 2.13%.
3.3 Tenant has delivered and Landlord is willing to accept a
$120,000 cash deposit as the Security Deposit, in lieu of the $120,000 Letter
of Credit originally called for in the Lease. Therefore, Section 24.17 of the
Lease is deleted and Section 24.17 set forth below is substituted in its place.
"24.17 SECURITIES DEPOSIT.
(a) Tenant has deposited the $120,000 Security Deposit with
Landlord as security for the performance of Tenant's obligations. If Tenant
fails to perform its Lease obligations as required, Landlord may, but will not
be obligated to, apply all or any part of the Security Deposit for the payment
of any amounts due or any other Liabilities which Landlord may incur. If any
part of the Security Deposit is so applied, Tenant will, within five (5) days
after written demand, deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its previous amount. Landlord need not keep the
Security Deposit separate from its general funds. If Tenant complies with all of
the provisions of this Lease, the unused portion of the Security Deposit will be
returned to Tenant or its assignee after the end of this Lease and the surrender
of possession of the Premises to Landlord in the condition required.
(b) Until and unless the Security Deposit is drawn upon,
starting on the first day of the forth month after the end of the second Lease
Year, and every three months thereafter, upon Tenant's written request in each
instance, Landlord shall refund $10,000 of the Security Deposit to Tenant."
58
4. NO OTHER CHANGES.
The Lease is in full force and effect, and except as otherwise set
forth above, the Lease remains unchanged.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Amendment under seal as of the date first set forth above.
ANDOVER XXXXX REALTY LIMITED PARTNERSHIP
WITNESS: By: Niuna-Andover, Inc., general partner
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
------------------------------ --------------------------------
Name Printed: Xxxxxx Xxxxxx, Vice President
Xxxxxxx Xxxxxx Authorized Signatory
WITNESS: CASCADE SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------ ------------------------------------
Name Printed: Name: Xxxxx Xxxxxxxxx
Title: Vice President, Finance
Authorized Signatory
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59
EXHIBIT "B"
-----------
PREMISES
BUILDING 300
FIRST FLOOR
[PICTURE]
EXHIBIT "B"
-----------
PREMISES
