EXHIBIT 10.15
LEASE
This instrument is an indenture of lease (this "Lease") by and between
____________________________, a _____________________ ("Landlord") and
____________________________, a _____________________ ("Tenant").
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
SUMMARY OF BASIC LEASE PROVISIONS
1.1 INTRODUCTION
As further supplemented in the balance of this instrument and its
Exhibits, the following sets forth the basic terms of this Lease, and, where
appropriate, constitutes definitions of certain terms used in this Lease.
1.2 BASIC DATA
Date:
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Landlord:
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Mailing Address
of Landlord:
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Payment Address:
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Tenant:
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Mailing Address of
Tenant:
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Premises: ______ square feet of rentable floor
area located on the ____ floor(s) of the
building (the "Building) located at
_____________________________, as shown
on a plan attached hereto as Exhibit A.
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Lease Term: The period of time from the Commencement
Date through the Expiration Date subject
to earlier termination as herein
provided.
Commencement Date:
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Expiration Date
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Base Rent: From the Commencement Date through
December 31, 2000, at the rate of
$________ per annum ($________ per
month). Thereafter, the Base Rent shall
be increased by 4% on and as of each
___________ during the Lease Term.
Permitted Use:
_______________________________________,
and for no other purpose or purposes.
Tenant's Proportionate
Share: ________________________ (_____%).
Tenant's Proportionate Share shall equal
a fraction, the numerator of which shall
be the square footage of rentable floor
area contained within the Premises, and
the denominator of which shall be the
square footage of rentable floor area
contained within the Building. Tenant's
Proportionate Share shall be adjusted in
the event of any increase or decrease in
the total square footage of rentable
floor area contained within the Premises
and/or the Building,
Additional Rent: Any and all charges which Tenant
is required to pay hereunder other than
Base Rent, together with all interest
and penalties that may accrue thereon
and on Base Rent.
1.3 ENUMERATION OF EXHIBITS
Exhibit A: Plan showing the Premises.
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ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT
RIGHTS
2.1 LOCATION OF PREMISES
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the premises (the "Premises").
2.2 APPURTENANT RIGHTS AND RESERVATIONS
Tenant shall have, as appurtenant to the Premises, rights to use in
common with others entitled thereto any common facilities included in the
Building or the land on which the Building is located (the "Lot"), including any
common walkways, parking areas, driveways, lobbies, hallways, ramps, and
stairways. Such rights shall always be subject to reasonable, non-discriminatory
rules and regulations from time to time established by Landlord by suitable
written notice.
Not included in the Premises are the roof or ceiling, the floor and all
perimeter walls of the space identified in Exhibit A, except the inner surfaces
thereof and the perimeter doors and windows.
ARTICLE III
TERM OF LEASE: CONDITION OF PREMISES
3.1 TERM OF LEASE
The term of this Lease shall be the period specified in Section 1.2
hereof as the "Lease Term."
3.2 CONDITION OF PREMISES AND LANDLORD'S WORK
The Premises shall be delivered to Tenant by Landlord in their "as is"
condition without any representation or warranty by Landlord with respect
thereto, or any obligation on the part of Landlord to prepare or construct the
Premises. Tenant shall be responsible, at its own cost and expense, for all work
necessary to outfit the Premises for its use including, without limitation, all
telephone, telecommunication and data line costs and installation expenses.
Tenant's work shall be performed in a good, workmanlike manner, using high
quality materials.
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ARTICLE IV
RENT
4.1 RENT PAYMENTS
The Base Rent (at the rates specified in Section 1.2 hereof) and
Additional Rent (sometimes referred to herein, collectively, as "Rent") shall be
payable by Tenant to Landlord at the Payment Address or such other place as
Landlord may from time to time designate by notice to Tenant without any demand
whatsoever except as otherwise specifically provided in this Lease.
(a) Beginning on the Commencement Date, Base Rent shall be payable in
advance on the first day of each and every calendar month during the Lease Term.
If the Commencement Date falls on a day other than the first day of a calendar
month, the first payment which Tenant shall make shall be made on the
Commencement Date and shall be equal to a proportionate part of such monthly
Base Rent for the partial month from the Commencement Date to the first day of
the succeeding calendar month.
(b) Base Rent for any partial month shall be paid by Tenant to Landlord
at the applicable rate on a pro rata basis. Any other charges, including
Additional Rent, payable by Tenant on a monthly basis, as hereinafter provided,
shall likewise be prorated.
(c) Rent not paid within five (5) days of receipt of notice from
Landlord that the same is delinquent shall bear interest at a rate (the "Lease
Interest Rate") equal to the lesser of (i) the so-called base rate of interest
charged from time to time by Fleet Bank, N.A., plus three percent (3%) per annum
or (ii) the maximum legally permissible rate, from the due date until paid.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE
Tenant agrees that the Premises shall be used and occupied by Tenant
only for the purposes specified as the Permitted Use thereof in Section 1.2 of
this Lease, and for no other purpose or purposes without the Landlord's consent,
which consent shall not be unreasonably withheld, delayed or conditioned.
The Tenant shall comply and shall cause its employees, agents, and
invitees to comply with such reasonable rules and regulations as Landlord shall
from time to time establish for the proper regulation of the Building and the
Lot, provided that Landlord gives Tenant reasonable advance notice thereof and
that such additional rules and regulations shall be of general application to
all the tenants in the Building.
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5.2 COMPLIANCE WITH LAWS
Tenant agrees that no trade or occupation shall be conducted in the
Premises or use made thereof which will be unlawful, improper, or contrary to
any law, ordinance, by-law, code, rule, regulation or order applicable in the
municipality in which the Premises are located or which will disturb the quiet
enjoyment of any other tenants of the Building. Tenant shall obtain any and all
approvals, permits, licenses, variances and the like from governmental or
quasi-governmental authorities, including without limitation any Architectural
Access Board and Board of Fire Underwriters (collectively, "Approvals") which
are required for Tenant's particular use of the Premises, including, without
limitation, any which may be required for any construction work and
installations, alterations, or additions made by Tenant to, in, on, or about the
Premises. Tenant shall not be responsible for compliance with any such laws,
regulations, or the like requiring (i) structural repairs or modifications, or
(ii) repairs or modifications to the utility or building service equipment
located outside of or not exclusively serving the Premises, or (iii)
installation of new building service equipment, such as fire detection or
suppression equipment, unless such repairs, modifications, or installations are
required (a) due to Tenant's work, alterations, or repairs in the Premises or
Tenant's particular manner of use of the Premises (as opposed to office use,
generally), or (b) due to the negligence or willful misconduct of Tenant or any
agent, employee, or contractor of Tenant. Tenant shall not place a load upon any
floor in the Premises exceeding the lesser of (a) the floor load per square foot
of area which such floor was designed to carry as certified by Landlord's
architect and (b) the floor load per square foot of area which is allowed by
law. Landlord reserves the right to prescribe the weight and position of all
business machines and mechanical equipment, including safes, which shall be
placed so as to distribute the weight.
5.3 INSURANCE RISKS
Tenant shall not permit any use of the Premises which will make
voidable or, unless Tenant pays the extra insurance premium attributable thereto
as provided below, increase the premiums for any insurance on the Building or on
the contents of said property or which shall be contrary to any law or
regulation from time to time established by the applicable Fire Insurance Rating
Association or which shall require any alteration or addition to the Building.
Landlord acknowledges that the use of the Premises for the Permitted Uses shall
not result in any violation by Tenant of the terms of this paragraph.
5.4 ELECTRICAL EQUIPMENT
The Tenant shall not, without Landlord's written consent in each
instance, connect to the electrical distribution system any fixtures,
appliances, or equipment which will operate individually or collectively at a
wattage in excess of the capacity of the electrical system serving the Premises
indicated to Tenant by Landlord.
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5.5 TENANT'S OPERATIONAL COVENANTS
(a) Affirmative Covenants
In regard to the use and occupancy of the Premises, Tenant
will at its expense: (1) keep the inside and outside of all glass in the doors
and windows of the Premises reasonably clean; (2) replace promptly any cracked
or broken glass of the Premises with glass of like kind and quality; (3)
maintain the Premises in a reasonably clean, orderly and sanitary condition and
free of insects, rodents, vermin and other pests; (4) keep any garbage, trash,
rubbish or other refuse in vermin-proof containers within the interior of the
Premises until removed; (5) keep all mechanical apparatus reasonably free of
vibration and loud noise which may be transmitted beyond the Premises; and (6)
comply with and observe all uniformly-applied rules and regulations reasonably
established by Landlord from time to time.
(b) Negative Covenants
In regard to the use and occupancy of the Premises and any
common areas, Tenant will not: (1) place or maintain any trash, refuse or other
articles in any vestibule or entry of the Premises, on the sidewalks or
corridors adjacent thereto or elsewhere on the exterior of the Premises so as to
obstruct any corridor, stairway, sidewalk or common area; (2) permit undue
accumulations of or burn garbage, trash, rubbish or other refuse within or
without the Premises; (3) cause or permit objectionable odors to emanate or to
be dispelled from the Premises; (4) commit, or suffer to be committed, any waste
upon the Premises or any public or private nuisance or other act or thing which
may disturb the quiet enjoyment of any other tenant or occupant of the Building,
or use or permit the use of any portion of the Premises for any unlawful
purpose; or (5) park trucks or other vehicles in a manner that will block access
to the loading docks serving the Building, except when Tenant is actively using
such loading docks.
5.6 SIGNS
Except as expressly permitted in this Section 5.6, Tenant shall not
place any signs, placards, or the like on the Building or in the Premises that
will be visible from outside the Premises (including without limitation both
interior and exterior surfaces of windows) without the approval of Landlord.
Tenant shall have signage rights in any building directory as well as
appropriate floor and door signage. Subject to Tenant obtaining all necessary
approvals and permits therefor, Tenant shall have exterior signage rights
consistent with the exterior signage existing at the Premises as of the
Commencement Date. Plans and specifications, including, without limitation,
artwork, for such signage must be submitted to Landlord for its written approval
before installation, which approval shall not be unreasonably withheld. In any
event, the total area of Tenant's exterior signage shall not exceed that
proportion of the total area of exterior signage allowed on the Building under
applicable zoning regulations that the floor area of the Premises bears to the
total floor area of the Building. The Tenant shall comply at its own expense
with the requirements of all laws and regulations affecting the maintenance of
Tenant's signage. Tenant shall remove all signs upon termination of this Lease
and shall return the Premises and the Building to their condition prior to the
placement or erection of said signs.
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5.7 HAZARDOUS MATERIALS
The Tenant shall not use, handle, store or dispose of any oil,
hazardous or toxic substances, materials or wastes (collectively "Hazardous
Materials") in, under, on or about the Property except for (a) such storage and
use consented to by Landlord in advance which consent may be withheld in
Landlord's sole and absolute discretion, and (b) reasonable quantities of
cleaning fluids and substances associated with normal office uses, all of which
shall be used, stored, handled, and disposed of strictly in accordance with all
applicable laws, regulations, and orders of public authorities. Any Hazardous
Materials in the Premises, and all containers therefor, shall be used, kept,
stored and disposed of in conformity with all applicable laws, ordinances,
codes, rules, regulations and orders of governmental authorities. If the
transportation, storage, use or disposal of Hazardous Materials anywhere on the
Property by Tenant results in (1) contamination of the soil or surface or ground
water, or (2) loss or damage to person(s) or property, then Tenant agrees (i) to
notify Landlord immediately of any contamination, claim of contamination, loss
or damage, (ii) after consultation with and approval by Landlord, to clean up
all contamination in full compliance with all applicable statutes, regulations
and standards, and (iii) to indemnify, defend and hold Landlord harmless from
and against any claims, suits, causes of action, costs and fees, including,
without limitation, attorneys' fees, arising from or connected with any such
contamination, claim of contamination, loss or damage. This provision shall
survive the termination of this Lease. No consent or approval of Landlord shall
in any way be construed as imposing upon Landlord any liability for the means,
methods, or manner of removal, containment or other compliance with applicable
law for and with respect to the foregoing. The terms of this Section 5.7 shall
apply to any transportation, storage, use or disposal of Hazardous Materials
irrespective of whether Tenant has obtained Landlord's consent therefor but
nothing in this Lease shall limit or otherwise modify the requirement of
obtaining Landlord's prior consent as set forth in the first sentence of this
Section 5.7.
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ARTICLE VI
INSTALLATIONS, ALTERATIONS, AND ADDITIONS
6.1 INSTALLATIONS, ALTERATIONS, AND ADDITIONS
Tenant shall not make structural installations, alterations, or
additions to the Premises, but may make nonstructural installations, alterations
or additions provided the materials and workmanship are of equivalent (or
better) quality than the existing improvements and will not affect the utility
or building service systems or equipment. Any installations, alterations, or
additions made by Tenant shall be at Tenant's sole cost and expense and shall be
done in a good and workmanlike manner and in compliance with the requirements of
Section 5.2. Prior to Tenant's use of the Premises after the performance of any
such work, Tenant shall procure certificates of occupancy and any other required
certificates. Tenant shall not suffer or permit any mechanics' or similar liens
to be placed upon the Premises for labor or materials furnished to Tenant or
claimed to have been furnished to Tenant in connection with work of any
character performed or claimed to have been performed at the direction of
Tenant, and shall cause any such lien to be released of record without cost to
Landlord. At all times when any installation, alteration, or addition by Tenant
is in progress, there shall be maintained, at Tenant's cost and expense,
insurance meeting the requirements of Section 11.3 below and certificates of
insurance evidencing such coverage shall be furnished to Landlord prior to the
commencement of any such work. Any installations, alterations or additions made
by Tenant (and permanently attached) to the Premises other than movable personal
property of Tenant, trade fixtures and equipment (which shall remain the
property of Tenant) shall become the property of Landlord at the termination or
expiration of this Lease.
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ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 PROHIBITION
Notwithstanding any other provision of this Lease, Tenant shall not,
directly or indirectly, assign, mortgage, pledge or otherwise transfer,
voluntarily or involuntarily, this Lease or any interest herein or sublet (which
term without limitation, shall include granting of concessions, licenses, and
the like) or allow any other person or entity to occupy the whole or any part of
the Premises, without, in each instance, having first received the express
consent of Landlord, which consent may be withheld in Landlord's sole
discretion. Any assignment of this Lease or subletting of the whole or any part
of the Premises (other than as permitted to a subsidiary or a controlling
corporation as set forth below) by Tenant without Landlord's express consent
shall be invalid, void and of no force or effect. This prohibition includes,
without limitation, any assignment, subletting, or other transfer which would
occur by operation of law, merger, consolidation, reorganization, acquisition,
transfer, or other change of Tenant's corporate or proprietary structure,
including a change in the partners of any partnership, and the sale, pledge, or
other transfer of any of the issued or outstanding capital stock of any
corporate Tenant (unless such stock is publicly traded on a recognized security
exchange or over-the-counter market).
The requirement of Landlord's prior consent shall not, however, be
applicable to an assignment of this Lease by Tenant to an entity controlling,
controlled by, or under common control with, Tenant provided (and it shall be a
condition of the validity of any such assignment) that such subsidiary or
controlling corporation agree directly with Landlord to be bound by all of the
obligations of Tenant hereunder, including, without limitation, the obligation
to pay the Rent and other amounts provided for under this Lease, the covenant to
use the Premises only for the purposes specifically permitted under this Lease
and the covenant against further assignment (except as otherwise permitted
hereby); but such assignment shall not relieve Tenant herein named of any of its
obligations hereunder, and Tenant shall remain fully liable therefor. Further,
Landlord's consent shall not be required for an assignment of this Lease in
connection with a transfer of substantially all operations of Tenant to another
entity by way of merger, consolidation or sale of substantially all of the stock
therein or assets thereof. The initial offering of stock in Tenant (or in
Tenant's parent) to the public or the subsequent sale of such stock on a
nationally recognized stock exchange shall not be deemed an assignment or
transfer under this Article VII.
7.2 ACCEPTANCE OF RENT FROM TRANSFEREE
The acceptance by Landlord of the payment of Rent, or other charges
following assignment, subletting, or other transfer prohibited by this Article
VII shall not be deemed to be a consent by Landlord to any such assignment,
subletting, or other transfer, nor shall the same constitute a waiver of any
right or remedy of Landlord.
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ARTICLE VIII
REPAIRS AND MAINTENANCE
8.1 TENANT OBLIGATIONS
From and after the date that possession of the Premises is delivered to
Tenant and until the end of the Lease Term, Tenant shall keep the interior,
non-structural portions of the Premises in good order, condition, and repair,
reasonable wear and tear and damage by casualty, as a result of condemnation, or
as a result of the negligence or willful misconduct of Landlord, its agents,
employees or contractors excepted; and shall return the Premises to Landlord at
the expiration or earlier termination of the Lease Term in such condition.
8.2 LANDLORD OBLIGATIONS
Except as may be provided in Articles XII and XIII, Landlord agrees to
keep in good order, condition, and repair the structural components (including
the exterior walls) of the Premises and the Building, and the roof of the
Building, any common utility and Building systems (including HVAC), any common
hallways, entrances, restrooms and elevators and the Lot (including all parking
areas and the prompt removal of ice and snow therefrom).
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ARTICLE IX
SERVICES TO BE FURNISHED BY LANDLORD;
UTILITIES
9.1 LANDLORD'S SERVICES
The Landlord shall provide all necessary utilities to the Building (to
the extent such service is provided to the Building as of the Commencement
Date). To the extent Tenant requires HVAC services after normal business hours
(as hereinafter defined), Landlord shall provide such services and Tenant shall
reimburse Landlord for the cost of such services at the prevailing market rate
as determined by Landlord from time to time in its reasonable discretion.
Business hours for the Building shall be _____ a.m. to ______ p.m., Monday
through Friday and _____ a.m. to _____ p.m. on Saturdays; provided, however,
Tenant shall have access to the Premises twenty-four (24) hours per day, seven
(7) days per week. Landlord shall provide hot and cold water, heating and
cooling and regular cleaning and maintenance of all common areas of the Building
and any parking and pedestrian areas outside the Building. Tenant shall be
responsible for providing janitorial services to the Premises at its sole cost
and expense.
9.2 FORCE MAJEURE
Neither Landlord nor Tenant shall be liable for its delay in performing
any of its respective obligations under this Lease (excluding any financial
obligations) to the extent such delay results from causes beyond its reasonable
control, including without limitation labor dispute, breakdown, accident, order
or regulation of or by any governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts, or
employees necessary to furnish services required under this Lease, or because of
war or other emergency, or for any cause due to any act, neglect, or default of
the other party, and in no event shall either Landlord or Tenant ever be liable
to the other for any indirect, special or consequential damages under the
provisions of this Section 9.2 or any other provision of this Lease. If there is
an interruption of utility service or other building services to the Premises
due to the negligence or willful misconduct of Landlord or its agents,
employees, or contractors that renders all or any portion of the Premises
untenantable for the Permitted Use hereunder, and such interference shall
continue following notice to Landlord, the Rent shall proportionately xxxxx
until such services are restored. The proportionate abatement of Rent set forth
in the immediately preceding sentence shall be Tenant's sole and exclusive
remedy and Landlord shall not be liable for any other loss or damage resulting
from an interruption of utility service or other building services unless such
interruption is due to the gross negligence or willful misconduct of Landlord.
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9.3 EXTRAORDINARY UTILITY USAGE
Tenant shall be responsible for and shall promptly and timely pay all
separately metered and directly billed utility costs and expenses pertaining to
extraordinary utility requirements of Tenant for portions of the Premises (e.g.,
a data room). To the extent any such extraordinary utility costs and expenses
cannot be separately metered, Tenant shall pay its reasonable allocable share of
such charges based upon the rentable square footage of that portion of the
Premises subject to such extraordinary usage (taking into account any
extraordinary usage by Landlord).
ARTICLE X
INDEMNITY
10.1 THE TENANT'S INDEMNITY
Tenant shall indemnify and save harmless Landlord, and the directors,
officers, agents and employees of Landlord, against and from all claims,
expenses or liabilities in connection with damage to property or injury to
person to the extent (a) arising directly or indirectly from any default or
breach by Tenant or Tenant's contractors, licensees, agents, servants, or
employees under any of the terms or covenants of this Lease; or (b) arising from
any accident, injury, or damage to any person or property, on or upon the
Premises; or (c) arising from any accident, injury, or damage to any person or
property occurring outside the Premises but within the Building or on the Lot,
where such accident, injury or damage results from any act, omission or
negligence on the part of Tenant or Tenant's contractors, licensees, agents,
servants or employees: provided, however, that in no event shall Tenant be
obligated under this Section 10.1 to indemnify Landlord, the directors,
officers, agents or employees of Landlord to the extent such claim, expense or
liability results from the negligence or willful misconduct of Landlord or the
officers, agents, contractors or employees of Landlord.
This indemnity and hold harmless agreement shall include, without
limitation, indemnity against all expenses, attorneys' fees and liabilities
incurred in connection with any such claim or proceeding brought thereon and the
defense thereof with counsel reasonably acceptable to Landlord. At the request
of Landlord, Tenant shall defend any such claim or proceeding directly on behalf
and for the benefit of Landlord.
10.2 THE LANDLORD'S INDEMNITY
Landlord shall indemnify and save harmless Tenant, and the directors,
officers, agents and employees of Tenant against and from all claims, expenses
or liabilities in connection with damage to property or injury to person to the
extent (a) arising directly or indirectly from any default or breach by Landlord
or Landlord's contractors, licensees, agents, servants or employees under any of
the terms or covenants of this Lease; or (b) arising from any accident, injury
or damage to any person or property, on or upon the Building or the Lot
(excluding the Premises); or (c) arising from any accident, injury or damage to
any person or property occurring within the Premises where such accident, injury
or damage results from any act, omission or negligence on the part of Landlord
or Landlord's contractors, licensees, agents, servants or employees; provided,
however, that in no event shall Landlord be obligated under this Section 10.2 to
indemnify Tenant, the directors, officers, agents or employees of Tenant to the
extent such claim, expense or liability results from the negligence or willful
misconduct of Tenant or the officers, agents, contractors or employees of
Tenant.
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This indemnity and hold harmless agreement shall include, without
limitation, indemnity against all expenses, attorneys' fees and liabilities
incurred in connection with any such claim or proceeding brought thereon and the
defense thereof with counsel reasonably acceptable to Tenant. At the request of
Tenant, Landlord shall defend any such claim or proceeding directly on behalf
and for the benefit of Tenant.
10.3 INJURY CAUSED BY THIRD PARTIES
Tenant agrees that Landlord shall not be responsible or liable to
Tenant, or to those claiming by, through, or under Tenant, for any loss or
damage resulting to Tenant or those claiming by, through, or under Tenant, or
its or their property, that may be occasioned by or through the acts or
omissions of persons other than Landlord, or for any loss or damage from the
breaking, bursting, crossing, stopping, or leaking of electric cables and wires,
and water, gas, sewer, or steam pipes, or like matters not resulting or arising
from the gross negligence or intentional acts of Landlord.
10.4 SECURITY
Tenant may, at its own expense, provide its own security to the
interior of the Premises, including its own locks to an area ("Secured Area")
within the Premises. Tenant need not furnish Landlord with a key but upon the
Termination Date, Tenant shall surrender all such keys to Landlord. If Landlord
must gain access to a Secured Area in a non-emergency situation, Landlord shall
contact Tenant and Landlord and Tenant shall arrange a mutually agreed upon time
for Landlord to do so. Landlord shall comply with all reasonable security
measures pertaining to the Secured Area. If Landlord determines in its sole
discretion that an emergency in the Building or the Premises, including, without
limitation, a suspected fire or flood, requires Landlord to gain access to the
Secured Area, Tenant hereby authorizes Landlord to forcibly enter the Secured
Area. In such event, Landlord shall have no liability whatsoever to Tenant, and
Tenant shall pay all reasonable expenses incurred by Landlord in repairing or
reconstructing any entrance, corridor, door or other portions of the Premises
damaged as a result of a forcible entry by Landlord. Landlord shall be
responsible for providing exterior security to the Building, and for maintaining
the card access system in and to the Building on the same basis as Landlord
provides these security services to its own premises in the immediate vicinity
of the Building; however, Landlord does not warrant security services against
intrusion, loss, property damage, vandalism or injury to employees, visitors or
contractors ("Damages"), and Landlord shall not be liable for any Damages based
on a claim of inadequate or ineffective security or breach of Landlord's
obligation to provide security services as set forth herein.
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ARTICLE XI
INSURANCE
11.1 PUBLIC LIABILITY INSURANCE
The Tenant agrees to maintain in full force from the date upon which
Tenant first enters the Premises for any reason, throughout the Lease Term, and
thereafter so long as Tenant is in occupancy of any part of the Premises, (a) a
policy of commercial general liability insurance, written on an occurrence basis
and including contractual liability coverage to cover any liabilities assumed
under this Lease, including products liability, and completed operations
liability, and (b) automobile liability insurance covering all owned vehicles,
hired vehicles, and all other non-owned vehicles. Each such policy shall
designate Tenant as a named insured and Landlord and any mortgagees (as may be
set forth in a notice given from time to time by Landlord) shall be named as
additional insureds, as their interests appear.
Each such policy shall expressly provide that it shall not expire or be
amended or canceled without at least thirty (30) days' prior written notice to
Landlord in each instance and that the interests of Landlord thereunder or
therein shall not be affected by any breach by Tenant of any policy provision,
and a duplicate original or certificate thereof shall be delivered to Landlord.
The minimum limits of liability of such insurance shall be bodily injury and
property damage combined single limit of $3,000,000 per occurrence.
Landlord shall carry liability insurance covering all common areas of
the Building and the Lot. The liability insurance shall include contractual
liability coverage so that Landlord's indemnity and other applicable obligations
will be passed on to the insurance company.
11.2 HAZARD INSURANCE
The Tenant agrees to maintain in full force from the date upon which
Tenant first enters the Premises for any reason, throughout the Lease Term, and
thereafter so long as Tenant is in occupancy of any part of the Premises, a
policy insuring any leasehold improvements paid for by Tenant and all fixtures,
equipment, and other personal property of Tenant against damage or destruction
by fire or other casualty in an amount equal to the full replacement cost of
such property. Any insurance policy required of the Tenant may be maintained by
means of a policy or policies of blanket insurance, covering additional items or
locations, and any such policy may provide for such commercially reasonable
deductible limits as Tenant deems appropriate.
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Notwithstanding the foregoing, Tenant shall be permitted to self-insure
its fixtures, equipment and other personal property from time to time located
in, on or about the Premises, and all leasehold improvements to the Premises
constructed or installed by Tenant, provided that at all times when Tenant so
self-insures the same or any portion thereof, Tenant's net worth shall be and
remain at least Fifty Million and 00/100 Dollars ($50,000,000.00). During all
periods in which Tenant so self-insures any of the same, the rights and
obligations of Landlord and Tenant shall remain the same as if Tenant shall have
purchased and kept in force thereon insurance from an independent, institutional
insurer of recognized responsibility, and, without limitation, the provisions of
Sections 10.2 and 11.5 of this Lease shall remain in full force and effect. The
Tenant represents, by so self-insuring, that Tenant then is financially able to
absorb any loss thereto without significant reduction of available capital or
any other material, adverse effect on Tenant or its business operations, and
that Tenant then is of at least such minimum net worth.
Landlord shall maintain in full force from the date upon which Tenant
first enters the Premises for any reason, throughout the Lease Term, and
thereafter so long as Tenant is in occupancy of any part of the Premises, a
policy of insurance upon the Building insuring against all risks of physical
loss or damage under an All Risk coverage endorsement in an amount at least
equal to the full replacement value of the property insured, with an Agreed
Amount endorsement to satisfy co-insurance requirements, as well as insurance
against breakdown of boilers and other machinery as customarily insured against.
Upon request of Tenant from time to time, a certificate of such insurance shall
be delivered to Tenant.
11.3 CONSTRUCTION PERIOD INSURANCE
At any time when demolition or construction work is being performed on
or about the Premises or Building by or on behalf of Tenant, the Tenant shall
keep in full force and effect the following insurance coverage:
(1) builder's risk completed value (non-reporting form) in such form
and affording such protections as required by Landlord, naming Landlord and its
mortgagees as additional insureds; and
(2) workers' compensation or similar insurance in form and amounts
required by law.
Tenant shall cause a certificate or certificates of such insurance to
be delivered to Landlord prior to the commencement of any work in or about the
Building or the Premises, in default of which Landlord shall have the right, but
not the obligation, to obtain any or all such insurance at the expense of
Tenant, in addition to any other right or remedy of Landlord. The provisions of
this Section 11.3 shall survive the expiration or earlier termination of this
Lease.
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11.4 WAIVER OF SUBROGATION
Insofar as, and to the extent, that the following provisions may be
effective without invalidating or making it impossible to secure insurance
coverage from responsible insurance companies doing business in the Commonwealth
of Massachusetts (even though extra premium may result therefrom): Landlord and
Tenant mutually agree that with respect to any loss which is covered by
insurance then being carried by them (or which is required to be carried
pursuant to this Lease), the one carrying or required to carry such insurance
and suffering said loss shall release the other of and from any and all claims
with respect to such loss; and they further mutually agree that their insurance
companies shall have no right of subrogation against the other on account
thereof. If, at the written request of one party, this release and
non-subrogation provision is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this Section 11.4 shall be deemed to modify or otherwise affect any
releases elsewhere contained in this Lease.
ARTICLE XII
CASUALTY
12.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE"
The term "substantial damage," as used herein, shall refer to damage
which results in damage to at least thirty percent (30%) of the replacement cost
of the Building. Any damage which is not "substantial damage" is "partial
damage."
12.2 PARTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be partial damage to the Building
by fire or other casualty, Landlord shall promptly proceed to restore the
Building to the condition in which it was immediately prior to the occurrence of
such damage.
12.3 SUBSTANTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be substantial damage to the
Building by fire or other casualty, Landlord shall promptly restore the Building
to the extent reasonably necessary to enable Tenant's use of the Premises,
unless Landlord, within ninety (90) days after the occurrence of such damage,
shall give notice to Tenant of Landlord's election to terminate this Lease. If
Landlord shall give such notice, then this Lease shall terminate as of the date
of such notice with the same force and effect as if such date were the date
originally established as the expiration date hereof.
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12.4 ABATEMENT OF RENT
If during the Lease Term the Building or the Premises shall be damaged
by fire or casualty and if such damage shall materially interfere with Tenant's
use of the Premises as contemplated by this Lease, a just proportion of the Rent
payable by Tenant hereunder shall xxxxx proportionately for the period in which,
by reason of such damage, there is such interference with Tenant's use of the
Premises, but such abatement or reduction shall end when Landlord shall have
substantially restored the Premises or so much thereof as shall have been
originally constructed by Landlord (exclusive of any of Tenant's fixtures,
furnishings, equipment and the like or work performed therein by Tenant) to the
condition in which the Premises were prior to such damage.
ARTICLE XIII
EMINENT DOMAIN
13.1 RIGHTS OF TERMINATION FOR TAKING
If the Premises, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable for Tenant's purposes, shall be taken (including a temporary taking
in excess of 180 days) by condemnation or right of eminent domain or sold in
lieu of condemnation, Landlord or Tenant may elect to terminate this Lease by
giving notice to the other of such election not later than thirty (30) days
after Tenant has been deprived of possession.
Further, if so much of the Building (which may include the Premises) or
the Lot shall be so taken, condemned or sold or shall receive any direct or
consequential damage by reason of anything done pursuant to public or
quasi-public authority such that continued operation of the same would, in
Landlord's opinion, be uneconomical, Landlord may elect to terminate this Lease
by giving notice to Tenant of such election not later than thirty (30) days
after the effective date of such taking. Landlord shall only have the right to
terminate this Lease if Landlord simultaneously terminates the leases of all
other tenants of the Building similarly affected by such condemnation or taking.
Should any part of the Premises be so taken or condemned or receive
such damage and should this Lease be not terminated in accordance with the
foregoing provisions, Landlord shall promptly restore the Premises to an
architectural unit that is reasonably suitable to the uses of Tenant permitted
hereunder.
13.2 PAYMENT OF AWARD
The Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to the
Building and the Lot and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking or damage,
as aforesaid. The Tenant covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request. Nothing contained
herein shall be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any of Tenant's trade fixtures installed in
the Premises by Tenant at Tenant's expense and for relocation expenses.
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13.3 ABATEMENT OF RENT
In the event of any such taking of the Premises, the Rent or a fair and
just proportion thereof, according to the nature and extent of the damage
sustained, shall be suspended or abated, as appropriate and equitable in the
circumstances.
ARTICLE XIV
14.1 TENANT'S DEFAULT
(a) If at any time any one or more of the following events (herein
referred to as a "Default of Tenant") shall occur:
(i) Tenant shall fail to make payment of rent or any other
monetary amount due under this lease within ten (10) days after Landlord has
sent to Tenant notice of such default; or
(ii) Tenant shall fail to perform or observe any other
covenant or provision herein contained on Tenant's part to be performed or
observed and Tenant shall fail to remedy the same within thirty (30) days after
notice to Tenant specifying such neglect or failure, or, if such failure is of
such a nature that Tenant cannot reasonably remedy the same within such thirty
(30) day period, Tenant shall fail to commence promptly to remedy the same and
to prosecute such remedy to completion with diligence and continuity; or
(iii) except as otherwise provided by applicable law, if the
estate hereby created shall be taken on execution or by other process of law, or
if Tenant shall be judicially declared bankrupt or insolvent according to law,
or if any assignment shall be made of the property of Tenant for the benefit of
creditors, or if a receiver, guardian, conservator, trustee in involuntary
bankruptcy or other similar officer shall be appointed to take charge of all or
any substantial part of Tenant's property by a court of competent jurisdiction,
or if a petition shall be filed for the reorganization of Tenant under any
provisions of law now or hereafter enacted, and such proceeding is not dismissed
within sixty (60) days after it is begun, or if Tenant shall file a petition for
such reorganization, or for arrangements under any provisions of such laws
providing a plan for a debtor to settle, satisfy, or extend the time for the
payment of debts.
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(b) Tenant covenants and agrees, notwithstanding any termination of
this Lease by summary proceedings, to pay and be liable for, on the days
originally fixed herein for the payment thereof, amounts equal to the several
installments of Rent reserved as they would have become due under the terms of
this Lease if this Lease had not been terminated, and whether the Premises be
relet or remain vacant, in whole or in part, for the remainder of the Lease Term
or for a period less than the remainder of the Lease Term; but in the event the
Premises are relet by Landlord, Tenant shall be entitled to a credit in the net
amount of rent received by Landlord in reletting, after deduction of all
reasonable expenses incurred in reletting the Premises (including, without
limitation, remodeling costs, brokerage fees, attorneys' fees and the like) and
in collecting the rent in connection therewith. As an alternative, at the
election of Landlord, Tenant shall, upon such termination, pay to Landlord, as
damages, such a sum as at the time of such termination represents the present
value of the amount of the excess, if any, of the total Rent which would have
accrued to Landlord under this Lease for the remainder of the Lease Term had the
Lease not been so terminated over and above the then fair market rental value
(in advance) of the Premises for what would be the then unexpired Lease Term for
the remainder of the Lease Term had the Lease not been so terminated.
(c) In case of any Default of Tenant and expiration and dispossession
by summary proceedings, Landlord shall use reasonable efforts to mitigate its
damages. It is specifically understood and agreed that Landlord shall be
entitled to take into account in connection with any reletting of the Premises
all relevant factors which would be taken into account by a sophisticated
developer in securing a replacement tenant for the Premises, such as, but not
limited to, the quality of the Building and the financial responsibility of any
such replacement tenant.
(d) If there is at any time a guarantor or assignee of this Lease or
any interest of Tenant herein or any sublessee, franchisee, concessionee, or
licensee of all or any portion of the Premises, the happening of any of the
events described in paragraph (a)(iii) of this Section with respect to such
guarantor, assignee, sublessee, franchisee, concessionee, or licensee shall
constitute a Default of Tenant hereunder.
(e) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses) in enforcing its
rights hereunder or occasioned by any Default of Tenant shall be paid by Tenant.
Nothing contained in this Lease shall limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy,
insolvency, or like proceedings by reason of the termination of this Lease, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater than, equal to, or less than the
amount of the loss or damages referred to above.
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ARTICLE XV
THE LANDLORD'S ACCESS TO PREMISES
15.1 THE LANDLORD'S RIGHT OF ACCESS
The Landlord and its agents, contractors, and employees shall have the
right to enter the Premises at all reasonable hours upon reasonable advance
notice and accompanied by a representative of Tenant, except in case of
emergency, for the purpose of inspecting or of making repairs or alterations
permitted or required to be made by Landlord hereunder, and Landlord shall also
have the right to make access to the Premises available at all reasonable hours
to prospective or existing mortgagees or purchasers of any part of the Building.
Notwithstanding the foregoing, except in emergency situations as determined by
Landlord, Landlord shall exercise reasonable efforts to perform any entry into
the Premises in a manner that is reasonably designed to minimize interference
with the operation of Tenant's business in the Premises.
For a period commencing three (3) months prior to the expiration of the
Lease Term, Landlord may have reasonable access to the Premises at all
reasonable hours for the purpose of exhibiting the same to prospective tenants.
ARTICLE XVI
RIGHTS OF MORTGAGEES
16.1 SUBORDINATION AND ATTORNMENT
(a) If any holder of a mortgage or holder of a ground lease of property
which includes the Premises shall so elect, the interest of Tenant hereunder
shall be subordinate to the rights of such holder, provided that such holder
shall agree to recognize in writing the rights of Tenant under this Lease upon
the terms and conditions set forth herein, and the performance by Tenant of
Tenant's obligations hereunder (but without any assumption by such holder of
Landlord's obligations under this Lease); or
(b) If any holder of a mortgage or holder of a ground lease of property
which includes the Premises shall so elect, this Lease, and the rights of Tenant
hereunder, shall be superior in right to the rights of such holder, with the
same force and effect as if this Lease had been executed and delivered, and
recorded, or a statutory notice hereof recorded, prior to the execution,
delivery and recording of any such mortgage.
(c) Within thirty (30) days of the date of this Lease, Tenant and the
holder of any mortgage or deed of trust affecting the Premises, or the lessor
under any ground lease affecting the Premises, shall execute and deliver to each
other an attornment agreement providing that Tenant shall attorn to such holder
or lessor in the event of a foreclosure of such mortgage or deed of trust or
transfer in lieu thereof or a termination of such ground lease and incorporating
such other terms and conditions as such party may reasonably require, provided
that such agreement includes an agreement by such other party to recognize the
rights of Tenant under this Lease and not disturb Tenant's rights hereunder.
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The Landlord agrees to use reasonable efforts to have the holder of any
such mortgage or deed of trust that may become prior to this Lease, and any such
ground lessor, as the case may be, enter into its usual nondisturbance agreement
with the Tenant, or in lieu thereof provide the Tenant with an agreement by the
terms of which such holder or ground lessor agrees to recognize the rights of
the Tenant under this Lease in the event of foreclosure of such mortgage or deed
of trust or termination of such ground lease, respectively, so long as the
Tenant is not in default hereunder.
(d) Tenant agrees on request of Landlord to execute and deliver from
time to time any instrument that Landlord may reasonably deem necessary to
implement the provisions of this Section 16.1.
16.2 NOTICE TO MORTGAGEE AND GROUND LESSOR; OPPORTUNITY
TO CURE
After receiving notice from any person, firm, or other entity (or from
Landlord on behalf of any such person, etc.) that it holds a mortgage which
includes the Premises as part of the mortgaged premises, or that it is the
ground lessor under a lease with Landlord as ground lessee, which includes the
Premises as a part of the demised premises, no notice from Tenant to Landlord
shall be effective, against such holder or ground lessor unless and until a copy
of the same is given to such holder or ground lessor, and the curing of any of
Landlord's defaults by such holder or ground lessor shall be treated as
performance by Landlord. Accordingly, no act or failure to act on the part of
Landlord which would entitle Tenant under the terms of this Lease, or by law, to
be relieved of Tenant's obligations hereunder shall have such an effect unless
and until:
(a) Tenant shall have first given written notice to such holder or
ground lessor, if any, specifying the act or failure to act on the part of
Landlord which could or would give basis to Tenant's rights; and
(b) such holder or ground lessor, after receipt of such notice, has
failed or refused to correct or cure the condition complained of within the cure
periods provided Tenant hereunder, but nothing contained in this Section 16 or
elsewhere in this Lease shall be deemed to impose any obligation on any such
holder or ground lessor to correct or cure any such condition.
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16.3 ASSIGNMENT OF RENTS.
With reference to any assignment by Landlord of Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage or ground lease on property
which includes the Premises, Tenant agrees:
(a) that the execution thereof by Landlord, and the acceptance thereof
by the holder of such mortgage, or the ground lessor, shall never
be treated as an assumption by such holder or ground lessor of any
of the obligations of Landlord hereunder, unless such holder or
ground lessor shall, by notice sent to Tenant, specifically
otherwise elect; and
(b) that, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only
upon foreclosure of such holder's mortgage or the taking of
possession of the Premises, or in the case of a ground lessor, the
assumption of Landlord's position hereunder by such ground lessor.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 CAPTIONS
The captions throughout this Lease are for convenience or reference
only and shall in no way be held or deemed to define, limit, explain, describe,
modify, or add to the interpretation, construction, or meaning of any provision
of this Lease.
17.2 BIND AND INURE
Except as herein otherwise expressly provided, the obligations of this
Lease shall run with the land, and this Lease shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
Neither the assignment by Landlord of its interest in this Lease as security to
a lender holding a mortgage on the Building, nor the acceptance thereof by such
lender, nor the exercise by such lender of any of its rights pursuant to said
assignment shall be deemed in any way an assumption by such lender of any of the
obligations of Landlord hereunder unless such lender shall specifically
otherwise elect in writing or unless such lender shall have completed
foreclosure proceedings under said mortgage. Whenever the Premises are owned by
a trustee or trustees, the obligations of Landlord shall be binding upon
Landlord's trust estate, but not upon any trustee, beneficiary or shareholder of
the trust individually.
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17.3 NO WAIVER
The failure of Landlord or of Tenant to seek redress for violation of,
or to insist upon the strict performance of any covenant or condition of this
Lease shall not be deemed to be a waiver of such violation or to prevent a
subsequent act, which would originally have constituted a violation, from having
all the force and effect of an original violation. The receipt by Landlord of
Rent or additional rent with knowledge of the breach of any covenant of this
Lease shall not be deemed to be a waiver of such breach by Landlord unless such
waiver be in writing signed by Landlord. No consent or waiver, express or
implied, by Landlord or Tenant to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty.
17.4 NO ACCORD AND SATISFACTION
No acceptance by Landlord of a lesser sum than the minimum and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed to
be an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such installment
or pursue any other remedy in this Lease or at law or in equity provided.
17.5 CUMULATIVE REMEDIES
The specific remedies to which Landlord or Tenant may resort under the
terms of this Lease are cumulative and not intended to be exclusive of any other
remedies or means of redress to which it may be lawfully entitled in case of any
breach or threatened breach by the other party of any provisions of this Lease.
In addition to the other remedies provided in this Lease, Landlord shall be
entitled to the restraint by injunction of the violation or attempted or
threatened violation of any of the covenants, conditions or provisions of this
Lease or to a decree compelling specific performance of any such covenants,
conditions or provisions. In the event of any litigation between the parties
hereto, the unsuccessful party as determined by a court of competent
jurisdiction shall reimburse the successful party for all reasonable costs and
expenses (including attorneys' fees) in connection therewith.
17.6 PARTIAL INVALIDITY
If any term or provision of this Lease or any portion thereof or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, then the remainder of this Lease and of such term or
provision and the application of this Lease and of such term and provision to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
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17.7 ESTOPPEL CERTIFICATES
Tenant agrees on the Commencement Date and from time to time
thereafter, within twenty (20) days' after written request by Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing, certifying
that this Lease is unmodified and in full force and effect, that Tenant has no
defenses, offsets or counterclaims against its obligations to pay rent and other
charges required under this Lease and to perform its other covenants under this
Lease and that there are no uncured defaults of Landlord or Tenant under this
Lease (or, if there have been any modifications, that this Lease is in full
force and effect, as modified, and stating the modifications, and, if there are
any defenses, offsets, counterclaims or defaults, setting them forth in
reasonable detail), and the dates to which the Rent and other charges have been
paid.
17.8 BROKERAGE
Each party hereto warrants and represents that it has dealt with no
real estate broker or agent in connection with this transaction and agrees to
defend, indemnify and save the other party harmless from and against any and all
claims for commissions or fees arising out of this Lease which, as to the
respective parties, are inconsistent with such party's warranties and
representations.
17.9 ENTIRE AGREEMENT
All negotiations, considerations, representations, and understandings
between Landlord and Tenant are incorporated herein and this Lease expressly
supersedes any proposals or other written documents relating hereto. This Lease
may be modified or altered only by written agreement between Landlord and
Tenant.
17.10 HOLDOVER
If Tenant remains in possession of the Premises after the termination
of this Lease without the consent of Landlord, such holding over shall not be
deemed to create any tenancy, but Tenant shall be a tenant at sufferance only,
at a daily rate equal to one hundred fifty percent (150%) of the Rent applicable
immediately prior to such termination.
17.11 COUNTERPARTS
This Lease is executed in any number of counterparts, each copy of
which is identical, and any one of which shall be deemed to be complete in
itself and may be introduced in evidence or used for any purpose without the
production of the other copies.
17.12 CONSTRUCTION AND GRAMMATICAL USAGE
This Lease shall be governed, construed and interpreted in accordance
with the laws of the Commonwealth of Massachusetts, and Tenant agrees to submit
to the personal jurisdiction of any court (federal or state) in Massachusetts
for any dispute, claim or proceeding arising out of or relating to this Lease.
In construing this Lease, feminine or neuter pronouns shall be substituted for
those masculine in form and vice versa, and plural terms shall be substituted
for singular and singular for plural in any place in which the context so admits
or requires. If there be more than one party tenant, the covenants of Tenant
shall be the joint and several obligations of each such party and, if Tenant is
a general partnership, the covenants of Tenant shall be the joint and several
obligations of each of the partners and the obligations of the firm.
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17.13 WHEN LEASE BECOMES BINDING
The submission of this document for examination and negotiation does
not constitute an offer to lease, or a reservation of, or option for, the
Premises, and this document shall become effective and binding only upon the
execution and delivery hereof by both Landlord and Tenant.
17.14 COVENANT OF QUIET ENJOYMENT
Subject to the terms and provisions of this Lease and on payment of the
Rent due hereunder and compliance with all of the terms and provisions of this
Lease, Tenant shall lawfully, peaceably, and quietly have, hold, occupy, and
enjoy the Premises during the term hereof, without hindrance or ejection by any
party.
17.15 NO PERSONAL LIABILITY OF THE LANDLORD
The Tenant agrees to look solely to Landlord's interest (including the
rents, issues and profits therefrom) in the Building and the Lot at the time
owned, or in which Landlord holds an interest as ground lessee, for recovery of
any judgment from Landlord; it being specifically agreed that neither Landlord
(whether Landlord be an individual, partnership, firm, corporation, trustee, or
other fiduciary) nor any partner, policyholder, officer, manager, member,
shareholder or director of Landlord, nor any trust of which any person holding
Landlord's interest is trustee nor any successor in interest to any of the
foregoing shall ever be personally liable for any such judgment. The covenants
of Landlord contained in this Lease shall be binding upon Landlord and
Landlord's successors only with respect to breaches occurring during Landlord's
and Landlord's successors' respective periods of ownership of Landlord's
interest hereunder.
17.16 NOTICES
Whenever, by the terms of this Lease, notice shall or may be given
either to Landlord or to Tenant, such notice shall be in writing and shall be
delivered by hand or sent by registered or certified mail, postage prepaid or by
so-called "express" mail (such as Federal Express or U.S. Postal Service Express
Mail):
If intended for Landlord, addressed to Landlord at the address set
forth in Section 1.2 or to such other address or addresses as may from time to
time hereafter be designated by Landlord by like notice.
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If intended for Tenant, addressed to Tenant at the address set forth on
the first page of this Lease or to such other address or addresses as may from
time to time hereafter be designated by Tenant by like notice.
All such notices shall be effective upon delivery, attempted delivery,
or refusal, whichever occurs first, at the address or addresses of the intended
recipient, as set forth above.
17.17 SPECIAL TENANT RIGHT OF TERMINATION [only for certain properties]
Provided that Tenant is not in default beyond the expiration of any
applicable notice and/or cure periods. Tenant may elect to terminate this Lease
at any time by giving Landlord written notice (the "Termination Notice") of such
election at least sixty (60) days before the effective date of such termination
(the "Termination Date"), which Termination Date shall be specified in the
Termination Notice. Such termination, at Tenant's option, shall apply to either:
(i) all of the Premises without the requirement for approval by the Landlord, or
(ii) a portion of the Premises (the "Designated Portion"), provided that the
Landlord approves the location of the Designated Portion, as more particularly
set forth in the following paragraph.
If the Tenant desires to terminate the Lease with respect to a
Designated Portion only, the Termination Notice shall describe the Designated
Portion with reasonable particularity and shall include plans depicting the
proposed separation of the Designated Portion from the remainder of the
Premises. Landlord shall respond to the Termination Notice within five (5)
business days of receipt thereof, by stating that it either approves Tenant's
plans or requests modifications thereto. If Landlord requests modifications to
Tenant's plans, it shall specify such modifications with reasonable
particularity. Tenant shall submit any revised plans so requested by Landlord
within five (5) business days after receipt of Landlord's response. If, despite
their good faith efforts, the parties cannot agree on the area of the Designated
Portion as depicted on Tenant's plans (as the same have been modified), Tenant's
Termination Notice shall be void and of no further force or effect. Landlord
shall not unreasonably withhold or condition its approval of Tenant's plans
provided that the Designated Portion as depicted by Tenant is, without
extraordinary expense, separable from the remainder of the Premises and not
unmarketable.
Tenant shall continue to be liable for all Rent payable under this
Lease up to the Termination Date. If Tenant has effectively exercised its right
to terminate this Lease with respect to a Designated Portion only, the Rent
payable hereunder shall be adjusted as of the Termination Date as provided
below, and this Lease shall terminate on the Termination Date specified in the
Termination Notice with respect to the Designated Portion with the same force
and effect as if such date were the last day of the Lease Term. If Tenant
exercises its right to terminate this Lease with respect to all of the Premises,
this Lease shall terminate on the Termination Date with the same force and
effect as if said date were the last day of the Lease Term. The term "Premises",
as used herein, shall refer to the Premises less any Designated Portion as to
which Tenant has effectively exercised its right of termination. In the event
Tenant effectively elects to terminate this Lease with respect to a Designated
Portion, it is understood and agreed that the Designated Portion shall be
separately demisable by Landlord. In the event that Tenant exercises its
termination option with respect to a Designated Portion only, Landlord and
Tenant hereby agree that they will cooperate in connection with any
reconfiguration of any common areas and elements of the Premises that such
partial termination may necessitate.
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In the event that Tenant effectively exercises its termination
option with respect to a Designated Portion of the Premises, any demising walls,
alterations and improvements necessary to reconfigure the premises for occupancy
by Landlord or by another occupant or tenant shall be constructed by Landlord.
Tenant shall cooperate with Landlord as necessary in connection with the
construction of any such demising walls, alterations or improvements. Within
thirty (30) days of receipt by Tenant of a xxxx therefor (accompanied by
reasonably detailed supporting documentation), Tenant shall pay to Landlord the
actual, out-of-pocket costs incurred by Landlord in constructing demising walls
between the Designated Portion of the Premises surrendered by Tenant and the
remainder of the Premises (as such demising walls are depicted on the plans
agreed to by Landlord and Tenant, as provided above). Tenant shall not be liable
for any incremental costs incurred by Landlord in constructing any other
improvements, additions or alterations to such surrendered space.
If Tenant effectively exercises its termination right with respect to a
Designated Portion of the Premises, the Base Rent as set forth in Section 1.2
hereof will be reduced by an amount equal to the product of (a) the applicable
Base Rent immediately prior to the Termination Date, and (b) a fraction, the
numerator of which is the rentable square footage of the Designated Portion, and
the denominator of which is the total rentable square footage of the Premises
immediately prior to said Termination Date.
27
IN WITNESS WHEREOF, the parties hereto have executed this instrument
under seal as of the date set forth in Section 1.2, above.
LANDLORD:
BY: _______________________________________
Its:
BY: _______________________________________
Its:
TENANT:
BY: _______________________________________
Its:
28
EXHIBIT A
Plan Showing the Premises
29
