Exhibit 10.29
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in the
building (the "Building") known as, and having an address at, 00-00 Xxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx.
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS AND ENUMERATIONS OF EXHIBITS
1.1 INTRODUCTION. The following sets forth the basic data and identifying
Exhibits elsewhere hereinafter referred to in this Lease, and, where
appropriate, constitute definitions of the terms hereinafter listed.
1.2 BASIC DATA.
Date: August 18, 1995
Landlord: XXXXXXXX X. XXXXXXXXX, TRUSTEE OF
BEE EM ZEE TRUST under Declaration
of Trust dated May 10, 1976 and filed
with the Norfolk County Registry
District of the Land Court as Document
No. 364271 but not individually.
Present Mailing Address c/o Boston Properties, Inc.
of Landlord: 0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Landlord's Construction Xxxxxxx X. Xxxxxxxxx
Representative:
Tenant: SKY ROCK SERVICES CORPORATION,
a Delaware corporation
Present Mailing Address: 000 Xxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Tenant's Construction Xxxxxxx X. XxXxxxx
Representative:
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Original Term: With respect to the Office Premises,
the Original Term shall commence on the
"Office Premises Commencement Date"
(hereinafter defined); and with respect
to the Warehouse Premises, the Original
Term shall commence on the "Warehouse
Premises Commencement Date" (also
hereinafter defined); and the Original
Term shall expire on the last day of
the [co]sixtieth (60th) full calendar
month following the Warehouse Premises
Commencement Date, unless extended
pursuant to Section 2.5 hereof or
unless extended or sooner terminated as
hereinafter provided.
Extension Option: One (1) period of five (5) years as
provided in and on the terms set forth
in Section 3.2 hereof.
Lease Term: The Original Term and if extended
pursuant to Section 3.2 hereof the
Extended Term.
Lease Year: A period of twelve (12) consecutive
calendar months, commencing on the
first day of January in each year,
except that the first Lease Year of the
Lease Term hereof shall be the period
commencing on the Commencement Date and
ending on the succeeding December 31,
and the last Lease Year of the Lease
Term hereof shall be the period
commencing on January 1 of the calendar
year in which the Lease Term ends, and
ending with the date on which the Lease
Term ends.
Office Premises
Commencement Date: September 11, 1995
Warehouse Premises
Commencement Date: October 2, 1995
Building: The single story Building located on the
"Site".
The Office Premises: The portion of the Building labeled as
"Office Space" on the floor plan annexed
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hereto as Exhibit B and incorporated
herein by reference as further defined
and limited in Section 2.1 hereof.
The Warehouse Premises: The portion of the Building labeled
as "Warehouse Space" on the floor plan
annexed hereto as Exhibit B and
incorporated herein by reference as
further defined and limited in Section
2.1 hereof.
The Initial Premises: The Office Premises and the Warehouse
Premises.
Premises: The Office Premises, the Warehouse
Premises and such other portion of the
Building that Tenant is leasing at
any time pursuant to the provisions
of this Lease.
Rentable Floor Area of
The Office Premises: 9,269 square feet.
Rentable Floor Area of
The Warehouse Premises: 27,367 square feet.
Rentable Floor Area of
The Initial Premises
(being the Total of the
Office Premises and the
Warehouse Premises): 36,636 square feet.
Rentable Floor Area of
the Premises: The Rentable Floor Area of the Office
Premises and the Rentable Floor Area of
the Warehouse Premises and the
rentable floor are of the space added
to the Premises by the Tenant pursuant to
its rights under this Lease.
Total Rentable Floor Area
of the Building: 78,045 square feet.
Annual Fixed Rent For
The Office Premises: During the Original Term of this Lease
at the annual rate of $60,248.50 being
the product of (i) $6.50 and (ii) the
"Rentable Floor Area of the Office
Premises."
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Annual Fixed Rent For
The Warehouse Premises: During the Original Term of this Lease at
the annual rate of $177,885.50 being the
product of (i) $6.50 and (ii) the
"'Rentable Floor Area of the Warehouse
Premises."
Annual Fixed Rent For
The Initial Premises: During the Original Term of this Lease
at the annual rate equal to the sum of
the Annual Fixed Rent for the Office
Premises and the Annual Fixed Rent for
the Warehouse Premises.
Annual Fixed Rent For
The Premises: During the Original Term, the sum of
the Annual Fixed Rent for the Initial
Premises and the Annual Fixed Rent for
any space added to the Premises by
Tenant pursuant to its rights under
this Lease.
Annual Fixed Rent
During Extended Term: As determined pursuant to Section 3.2
if the extension option is exercised
in accordance with Section 3.2.
Tenant Electricity: As provided in and subject to the
provisions of Section 5.2 and Section 7.5
hereof.
Additional Rent: All charges and other sums payable by
Tenant as set forth in this Lease, in
addition to Annual Fixed Rent.
Initial Minimum Limits
of Tenant's Commercial
General Liability Insurance: $2,000,000 combined single limit per
occurrence on a per location basis.
Lot or Site: All, and also any part of, the property
described in Exhibit A, plus any additions
or reductions thereto resulting from the
change of any abutting street line. The
terms Lot and Site are used
interchangeably in this instrument.
Property: The Building and Lot or Site.
Real Estate Taxes: As provided in Article VI hereof.
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Operating Expenses: As provided in Article VII hereof
Number of Parking Spaces: Ninety (90) spaces as provided in
Section 10.1 hereof.
Permitted Use: (i) For the storage warehousing and
distribution of prepackaged food,
nonalcoholic beverages and other
prepackaged household consumable
products (the "Pre-Packaged
Warehousing/Distribution Uses");
provided, however, that Tenant shall be
solely responsible (a) for conducting the
Warehousing/ Distribution Uses in
compliance with the provisions of the
Westwood Zoning By-Law from time to time
applicable to the Property (the
"Applicable Zoning By-Law") and (b) for
obtaining and maintaining in full force
and effect such permits, licenses and
approvals, if any, as shall be required
for the aforesaid use by any applicable
Legal Requirements (including, without
limitation, Westwood Board of Health
requirements) and the failure to do so
shall not affect this Lease and (ii) for
office uses ancillary to the aforesaid
use and other uses customarily
ancillary to the aforesaid uses to the
extent permitted pursuant to the
Applicable Zoning By-Law.
Additional Permitted Uses: The storage warehousing and distribution
of meat, fish, produce and alcoholic
beverages and other warehouse and
distribution uses only provided and on
the condition precedent in each case
that (i) (a) such use shall be
permitted as of right under the
provisions of the Applicable Zoning
By-Law or (b) if permitted under the
Applicable Zoning By-Law only upon the
issuance of a special permit, other
approval or permission (the "Use
Permit"), Tenant (at its sole cost and
expense) shall obtain such Use Permit,
shall maintain the Use Permit in full
force and effect and shall comply with
all of the terms and conditions of the
Use Permit; (ii) Tenant (at its sole
cost and
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expense) shall comply with all
"Insurance Requirements"; (iii) Tenant
(at its sole cost and expense) shall
comply with all other applicable "Legal
Requirements," shall obtain such
permits, approvals and licenses
(collectively "Other Permits") as may
from time to time be required by
applicable Legal Requirements, shall
maintain such Other Permits in full
force and effect and shall comply with
all of the terms and conditions set
forth in the Other Permits; and (iv)
shall not create, cause, suffer or
permit any nuisance, unsafe or
unsanitary conditions to exist which
affect the Premises, any other premises
in the Building or any portion of the
Property. Without limiting the
foregoing, Tenant shall not permit any
insects, rodents or vermin of any kind
to exist in, on or about the Property.
Insurance Requirements: The requirements of any insurer of the
Property and the requirements of any
organization or service board or rating
agency insofar as they pertain to the
Property or the use of the Premises or
the manner of use of the Premises.
Legal Requirements: All laws, statutes, by-laws and court
decisions and the orders, rules,
regulations and requirements of all
Federal State, County and municipal
governments and the appropriate
agencies, authorities, officers,
departments, boards and commissions
thereof (including, but not limited to,
the Town of Westwood Board of Health),
whether now or hereinafter in force,
which may be applicable to the Premises
or the Property or the use or manner of
use thereof or to the streets,
sidewalks and curbs adjacent thereto.
Recognized Brokers: Xxxxxxxx & Grew, Incorporated 000
Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx
00000 and Leggatt XxXxxx/Xxxxx & Xxxxx
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Xxx Xxxx Xxxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000
Security Deposit: $60,000.00, as provided in and subject
to Section 17.26 hereof.
1.3 ENUMERATION OF EXHIBITS. The following Exhibits attached hereto are a
part of this Lease, are incorporated herein by reference, and are to be
treated as a part of this Lease for all purposes. Undertakings
contained in such Exhibits are agreements on the part of Landlord and
Tenant, as the case may be, to perform the obligations stated therein
to be performed by Landlord and Tenant, as and where stipulated
therein.
Exhibit A -- Description of the Site.
Exhibit B -- Floor Plan of Initial Premises and
Offer Space.
Exhibit C -- Tenants Construction Plan.
Exhibit D -- Intentionally Omitted.
Exhibit E -- Broker Determination.
Exhibit F -- Title Matters.
ARTICLE II
PREMISES
2.1 DEMISE AND LEASE OF PREMISES. Landlord hereby demises and leases to
Tenant, and Tenant hereby hires and accepts from Landlord, the Premises
in the Building, excluding exterior faces of exterior walls, the common
stairways and stairwells, mechanical rooms, electric and telephone
closets, janitor closets, and pipes, ducts, shafts, conduits, wires and
appurtenant fixtures serving exclusively or in common other parts of
the Building, and if the Premises includes less than the entire
rentable area of any floor, excluding the common corridors located on
such floor.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. Tenant shall have, as appurtenant
to the Premises, the non-exclusive right to use in common with others,
but not in a manner or extent that would interfere with the normal
operation and use of the Building as a multi-tenant light industrial
and warehouse building and subject to reasonable rules of general
applicability to tenants of the Building from time to time made by
Landlord of which Tenant is given notice: (a) the common lobbies,
corridors and stairways of the Building, and the pipes, ducts, shafts,
conduits, wires and appurtenant meters and equipment serving the
Premises in common with others, (b) the
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common walkways and driveways necessary for access to the Building and
(c) if the Premises include less than the entire rentable floor area of
any floor, the common corridors of such floor.
Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair,
replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or the Building, and (b) to
alter or relocate any other common facility, provided that
substitutions are substantially equivalent or better. Installations,
replacements and relocations referred to in clause (a) above shall be
located so far as practicable in the central core area of the Building,
above ceiling surfaces, below floor surfaces or within perimeter walls
of the Premises. Except in the case of emergencies, Landlord agrees to
use its best efforts to give Tenant reasonable advance notice of any of
the foregoing activities which require work in the Premises.
2.3 SIGNAGE. Tenant shall have the right to one but only one of (a) a sign
located on the exterior of the Building or (b) a pylon sign location in
the lawn area of the Site fronting on Dartmouth Street ("Tenant's
Signage") provided that (i) such Tenant's signage as is selected by
Tenant is first approved by Landlord as to the size, location,
aesthetics, design and scheme thereof and (ii) such Tenant's signage as
selected by Tenant complies with all applicable Insurance Requirements
and all applicable Legal Requirements including, without limitation,
the requirements of the Town of Westwood Zoning By-Law (collectively
called "Governmental Requirements"). Tenant shall be solely responsible
for all costs and expenses regarding such Tenant's Signage including,
without limitation, design costs, installation costs, maintenance and
repair costs, and all applicable, permit and approval costs. Landlord
agrees to cooperate with Tenant regarding Tenant's obtaining approvals
of such Tenant's Signage provided that Landlord shall not be required
to expend any monies, assume any costs or expenses or undertake or
assume any liability. Tenant shall be solely responsible (at its sole
cost and expense) for the maintenance, repair and upkeep of such
Tenant's Signage. In addition, Landlord shall improve the existing
street signage along University Avenue (the "University Avenue Sign")
in a manner generally consistent with the white post, hanging shingle
type sign that exists at the property known as and numbered 00-00
Xxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxxxxxx owned by an affiliate of
Landlord and Tenant shall be entitled to one (1) identification panel
on the University Avenue Sign. The rights set forth in this Section 2.3
shall not be available to any assignee or subtenant except for an
assignee or subtenant under Section 12.2 hereof and in no event shall
any signage under this Section 2.3 identify more than one (1) occupant
of the Premises. The failure or inability of Tenant to obtain and/or
maintain any permits, approvals, consents or the like required by
Governmental Requirements or to obtain Landlord's cooperation shall not
affect in any way this Lease or Tenant's obligations under this Lease
and, without limitation, Tenant shall have no right to terminate this
Lease and shall have no right to any
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abatement, set off withholding or other reduction of Annual Fixed Rent
or Additional Rent.
2.4 TENANT'S RIGHT OF FIRST OFFER. (A) The portion of the Building shown on
Exhibit B as the "First Offer Space" contains 20,111 square feet of
rentable floor area (the "Rentable Floor Area of the First Offer
Space"). This Section 2.4 shall apply to the First Offer Space and to
the remaining space in the Building only under the limited circumstance
that a "Third Party Offer" (hereinafter defined) is received or
obtained covering all or a portion of the remaining space in the
Building and all or a portion of the First Offer Space. As of the Date
of this Lease, the First Offer Space is not leased to Tenant or any
other tenants. Subject to the provisions of this Section 2.4, Landlord
agrees that if at any time Landlord shall receive or obtain a bona fide
offer from a third party offeror (a "Third Party Offeror") which
Landlord wishes, in good faith, to accept or otherwise desires to enter
into a lease (a "Third Party Offer") to lease all or any portion of the
First Offer Space or any larger portion of the Building which includes
all or any portion of the First Offer Space then Landlord shall first
give notice thereof to Tenant, provided that, as of the date Landlord
receives such Third Party Offer, (i) there exists no "Event of Default"
(as defined in Section 15.1), (ii) this Lease is still in full force
and effect and (iii) except for an assignment or subletting permitted
under Section 12.2 hereof, Tenant has neither assigned this Lease nor
sublet more than twenty-five percent (25%) of the Rentable Floor Area
of the Premises in the aggregate at that time under lease, leases or
lease amendments between Landlord and Tenant. Said notice (herein
called "Landlord's Submitted Offer") shall consist of a copy of the
Third Party Offer and two counterpart originals of a commitment to
enter into an amendment to this Lease to incorporate all of the space
which is the subject of the Third Party Offer into the Premises demised
under this Lease upon the terms and conditions of the Third Party
Offer.
(B) Tenant shall have the right to accept Landlord's Submitted Offer by
executing such two (2) counterpart original commitments to enter into
such lease amendment and delivering to Landlord the same within seven
(7) days after Tenant's receipt of Landlord's Submitted Offer. Within
ten (10) business days after Landlord's receipt of such accepted
commitment, Landlord shall deliver to Tenant two (2) counterpart
originals of an amendment to this Lease to incorporate all of the space
which is the subject of the Third Party Offer into the Premises demised
under this Lease upon the terms and conditions of such accepted
commitment. Within ten (10) business days after Tenants receipt of such
amendment Tenant shall execute both counterpart originals of such
amendment and shall deliver the same to Landlord along with appropriate
evidence of the authority of Tenant to enter into the transaction. If
Tenant shall duly and timely comply with the foregoing, Landlord shall
execute the two (2) counterpart original amendments and shall promptly
return one (1) fully executed counterpart to Tenant.
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(C) (i) If at the expiration of seven (7) days after Tenant's receipt
of Landlord's Submitted Offer Tenant shall not have accepted Landlord's
Submitted Offer by entering into such commitment and delivering the
same to Landlord, or (ii) if Tenant shall so execute and deliver such
commitment but at the end of ten (10) business days after Tenant's
receipt of such lease amendment (consistent with the terms of the
executed commitment) Tenant has not entered into such lease amendment
and delivered the same to Landlord and/or has not complied with the
provisions of subparagraph (B) above, time being of the essence in
respect to all of the same, Landlord shall be free for a period of one
hundred eighty (180) days after the applicable of the events described
in items (i) and (ii) above, as the case may be, to enter into a lease
or leasing transaction of the space which is the subject of the Third
Party Offer with the prospective tenant identified in the Third Party
Offer upon terms and conditions substantially no less favorable to the
Landlord than contained in Landlord's Submitted Offer without again
offering such space to Tenant for lease, it being agreed that if
Landlord does not so lease such portion of the First Offer Space (which
was the subject of the Third Party Offer) during such one hundred
eighty (180) day period to such Third Party Offeror or if such Third
Party Offeror withdraws the Third Party Offer sooner than the
expiration of such 180 day period or if the terms of the proposed lease
with the tenant identified in said Third Party Offer become
substantially less favorable to Landlord than those set forth in said
Third Party Offer, then in any such event the terms of this Section
shall again apply to such the First Offer Space which was the subject
of the Third Party Offer. However, in the event that Landlord shall so
lease such portion of the First Offer Space (which was the subject of
and included in the Third Party Offer) during such one hundred and
eighty (180) days period to such Third Party Offeror, Tenant shall have
no further rights under this Section 2.4 to such portion of the First
Offer Space which was the subject of and included in the Third Party
Offer.
2.5 TENANT'S EXPANSION RIGHTS. (A) Subject to the provisions of this
Section 2.5, by notice given by Tenant to Landlord ("Tenant's Notice")
not later than ninety (90) days following the Office Premises
Commencement Date (time being of the essence), which Tenant's Notice
shall be accompanied by a payment to Landlord in the amount of the
product of (i) $200.00 and (ii) the number of days from the Office
Premises Commencement Date through the date Tenant gives Tenant's
Notice to Landlord ("Tenant's Payment"), Tenant shall have the right to
lease the First Offer Space; provided that, as of the date Landlord
receives Tenant's Notice (i) there exists no "Event of Default" (as
defined in Section 15.1), (ii) this Lease is still in full force and
effect and (iii) except for an assignment or subletting permitted under
Section 12.2 hereof, Tenant has neither assigned this Lease nor sublet
more than twenty-five percent (25%) of the Rentable Floor Area of the
Premises in the aggregate at that time under lease, leases or lease
amendments between Landlord and Tenant. The Tenant's Payment shall be
deemed earned for all purposes when received by Landlord and shall not
be credited against any Annual Fixed Rent or Additional Rent and shall
not be refunded to Tenant. If
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Tenant shall duly and timely give Tenant's Notice, the same shall
constitute an agreement to enter into an amendment to this Lease to
incorporate such space into the Premises upon all the same terms and
conditions contained in this Lease except that (i) the First Offer
Space shall be leased to Tenant in "as is" condition, there shall be no
Special Allowance (the provisions of Section 3.1.1 hereof not being
applicable to the First Offer Space), (ii) Tenant shall be responsible
for all improvements to the First Offer Space, at Tenant's sole cost
and expense; but subject to the provisions of Article IX hereof, (iii)
Tenant shall bear all costs for Landlord to demise the First Offer
Space from the remainder of the space in the Building not leased to
Tenant, (iv) the commencement date for the First Offer Space shall be
the date of Tenant's Notice (the "First Offer Space Commencement
Date"), (v) the "Original Term" (defined in Section 1.2 hereof) shall
be extended for all Premises then under lease, leases or amendments
thereto (including, without limitation, the Initial Premises and the
First Offer Space) for a period of two (2) years from the expiration
date of the Original Term and the Original Term shall be conterminous
as to all of the Premises, (vi) Sections 2.4.,and 2.5 shall, no longer
be applicable, (vii) the Annual Fixed Rent for the First Offer Space
for the period commencing on the First Offer Space Commencement Date
and ending on the day preceding the first anniversary of the Office
Premises Commencement Date shall be the product of (a) the Rentable
Floor Area of the First Offer Space and (b) $3.625, and (viii)
thereafter during the remainder of the Original Term (as so extended as
above provided) the Annual Fixed Rent for the First Offer Space shall
be the product of (a) the Rentable Floor Area of the First Offer Space
and (b) $7.25.
(B) Notwithstanding anything contained in this Section 2.5, in the
event that Landlord shall offer the First Offer Space (or any portion
thereof) to Tenant as provided in Section 2.4 within the ninety (90)
day period set forth in Section 2.5(A) above, the provisions of this
Section 2.5 shall automatically cease and terminate and Tenant's sole
right to the First Offer Space shall be as set forth in and on the
terms and conditions of Section 2.4 hereof.
ARTICLE III
LEASE TERM AND EXTENSION OPTION
3.1 TERM. The Term of this Lease shall be the period specified in Section
1.2 hereof as the "Lease Term", unless sooner terminated or extended as
herein provided. The Lease Term hereof shall commence as to the Office
Premises on the Office Premises Commencement Date defined in Section
1.2 hereof. The Lease Term hereof shall commence as to the Warehouse
Premises on the Warehouse Premises Commencement Date also defined in
Section 1.2 hereof.
3.1.1 TERMINATION OPTION. By written notice ("Tenant's Termination Notice")
given by Tenant to Landlord at any time prior to the 270th day prior to
the third (3rd) anniversary of the Warehouse Premises Commencement
Date, Tenant may elect to cancel and terminate this Lease effective on
the day
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immediately preceding the third (3rd) anniversary of the Warehouse
Premises Commencement Date (the "Early Termination Date") but not
before or after said date; provided, however, that as a condition
precedent to such cancellation and termination, Tenant must deliver to
Landlord together with Tenant's Termination Notice good funds in an
amount equal to the sum of (i) $238,134.00 plus (ii) an amount equal to
twelve (12) months annual fixed rent respecting space in the Building
(in addition to the Initial Premises) leased by Tenant pursuant to
Sections 2.4 or 2.5 or otherwise (collectively herein called "Tenant's
Termination Payment") and provided further that notwithstanding such
termination and as a further condition precedent thereto, (i) Tenant
shall pay to Landlord on a timely basis all Annual Fixed Rent, Tenant's
share of operating costs, taxes and electricity, and all Additional
Rent and, other amounts due from Tenant (including, but not limited to,
all past due amounts thereof) through the Early Termination Date, (it
being acknowledged and agreed that Tenant's Termination Payment is in
addition to such amounts and no credit shall be given towards the
payment of such amount on account of the payment of Tenant's
Termination Payment), (ii) there shall be no "Event of Default" (as
defined in Section 15.1) on either the date Tenant gives Tenant's
Termination Notice or on the Early Termination Date and (iii) Tenant
shall quit and vacate the Premises as of the Early Termination Date and
surrender the same in the condition required by the applicable
provisions of this Lease. In the event that Tenant's share of such
operating costs, taxes and electricity, and such other Additional Rent
and other amounts due through the Early Termination Date is not finally
determined as of the giving of Tenant's Termination Notice, Tenant
shall make payment on account as reasonably estimated by Landlord if so
requested by Landlord and in any event Tenant shall make final payment
of amounts due through the Early Termination Date within thirty (30)
days after final billing therefor by Landlord. In the event of
overpayment by Tenant, Landlord shall refund such overpayment to Tenant
within a reasonable period of time not to exceed thirty (30) days. The
obligations of Tenant and Landlord set forth in this Section 3.1.1
shall survive the termination of this Lease hereunder. If Tenant shall
not give to Landlord an Early Termination Notice as provided in this
Section 3.1.1 (time being of the essence), the provisions of this
Section 3.1.1 shall be deemed null and void.
3.2 EXTENSION OPTION. (A) Provided that at the time of exercise of the
herein described option to extend (i) there exists no "Event of
Default" (defined in Section 15.1) and (ii) this Lease is still in full
force and effect, and (iii) Tenant has neither assigned this Lease nor
sublet more than twenty-five percent (25%) of the Rentable Floor Area
of the Premises (except for an assignment or subletting permitted under
Section 12.2 hereof), Tenant shall have the right to extend the Term
hereof upon all the same terms, conditions, covenants and agreements
herein contained (except for the Annual Fixed Rent which shall be
adjusted during the option period as hereinbelow set forth and except
that there shall be no further option to extend) for one (1) period of
five (5) years as hereinafter set forth. The option period is sometimes
herein referred to as the "Extended Term".
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(B)(i) If Tenant desires to exercise the option to extend the Term,
then Tenant shall give notice to Landlord, not earlier than twelve (12)
months nor later than nine (9) months prior to the expiration of the
Original Term of Tenant's request for Landlord's quotation to Tenant of
a proposed annual rent for the Extended Term. Within ten (10) days
following Landlord's receipt of Tenant's request, Landlord shall
deliver to Tenant such quotation. If at the expiration of thirty (30)
days after the date when Landlord delivers such quotation to Tenant as
aforesaid (the "Negotiation Period"), Landlord and Tenant have not
reached agreement on a determination of an annual rental for the
Extended Term and executed a written instrument extending the Original
Term of this Lease pursuant to such agreement, then Tenant shall have
the right, for thirty (30) days following the expiration of the
Negotiation Period, to make a request to Landlord for a broker
determination (the "Broker Determination") of the Prevailing Market
Rent (as defined in Exhibit E) for the Extended Term, which Broker
Determination shall be made in the manner set forth in Exhibit E.
(B)(ii) If Tenant timely shall have requested the Broker Determination,
then in order to exercise its right to extend the Original Term of this
Lease for the Extended Term, Tenant, within thirty (30) days after
receipt of the Broker Determination, shall give written notice to
Landlord of Tenant's exercise of its right to extend the Lease Term for
the Extended Term pursuant to this subsection 3.2(B)(ii), in which case
the Annual Fixed Rent for the Extended Term shall be the greater of (a)
the Prevailing Market Rent as determined by the Broker Determination or
(b) the Annual Fixed Rent in effect during the last twelve (12) month
period of the Original Tenn. Upon the giving of notice by Tenant within
said thirty (30) day period as provided in this subsection (B)(ii) then
this Lease and Lease Term hereof shall be extended for an additional
term of five (5) years upon all of the same terms, conditions,
covenants and agreements contained in this Lease except that the Annual
Fixed Rent for the Extended Term shall be the rent determined as
described in this subparagraph.
(C) Upon the giving of notice by Tenant to Landlord exercising Tenant's
option to extend the Lease Term in accordance with the provisions of
either subsection B(i) or B(ii) above, then this Lease and the Lease
Term hereof shall be extended, for the Extended Term, without the
necessity for the execution of any additional documents, except that
Landlord and Tenant agree to enter into an instrument in writing
setting forth the Annual Fixed Rent for the Extended Term as determined
in the relevant manner set forth in this Section 3.2, and in such event
all references herein to the Lease Term or the term of this Lease shall
be construed as referring to the Lease Term, as so extended, unless the
context clearly otherwise requires, and except that there shall be no
further option to extend the Lease Term. Notwithstanding anything
contained herein to the contrary, in no event shall the Lease Term
hereof be extended for more than five (5) years after the expiration of
the Original Lease Term hereof.
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ARTICLE IV
CONSTRUCTION
4.1 CONSTRUCTION WORK. (A) Tenant shall give written notice to Landlord of
Tenant's authorization for Landlord to commence construction of the
work in the Initial Premises as described in Exhibit C ("Tenant's
Construction Start Notice"). Subject to delays due to governmental
regulation, unusual scarcity of or inability to obtain labor or
materials, labor difficulties, casualty or other causes reasonably
beyond Landlord's control (collectively "Landlord's Force Majeure") or
attributable to Tenant's action or inaction, Landlord shall commence
construction of said work in the Initial Premises within five (5)
business days after Landlord's receipt of Tenant's Construction Start
Notice and Landlord shall use reasonable speed and diligence in the
construction of the work to be undertaken by Landlord in the Initial
Premises as described in Exhibit C. Tenant shall have no claim against
Landlord for failure so to complete construction of the work in the
Initial Premises. Notwithstanding anything herein contained, the
failure of Tenant to give to Landlord a Tenant's Construction Start
Notice and/or the failure of Landlord to complete the aforesaid work
(i) shall not delay, postpone or otherwise alter either the Office
Premises Commencement Date or the Warehouse Premises Commencement Date,
(ii) shall not delay, postpone or otherwise alter the obligation of
Tenant to pay Annual Fixed Rent and Additional Rent and to perform
Tenant's other obligations under this Lease, (iii) shall not give
Tenant any right to terminate this Lease or to offset, withhold, xxxxx
or otherwise deduct from Annual Fixed Rent or Additional Rent and (iv)
shall not constitute a default of Landlord.
Landlord shall use due diligence to complete as soon as conditions
practically permit all punch list items and any work listed on
applicable Certificates of Occupancy as being incomplete, and Tenant
shall cooperate with Landlord in providing access as may be required to
complete such work in a normal manner.
Tenant agrees that no delay by it, or anyone employed by it, in
performing work to prepare the Initial Premises for occupancy shall
delay commencement of the Term or the obligation to pay rent,
regardless of the reason for such delay or whether or not it is within
the control of Tenant or any such employee.
4.1.1 TENANT'S PAYMENT OF COST OF WORK. As of August 18, 1995, the cost of
the work in the Initial Premises as described and/or shown on Exhibit C
is $140,000.00 (the "Cost Of The Work"); provided, however, that if
Tenant shall not give to Landlord a Tenant's Construction Start Notice
by October 15, 1995 (time being of the essence), Landlord shall have
the right to reprice the work described in Exhibit C and in such event
Tenant shall, at its option by written notice to Landlord, either (i)
have Landlord perform the work
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pursuant to the revised pricing and the Cost Of The Work to be paid to
Landlord shall be adjusted consistent with the repricing (and Tenant
shall together therewith give Landlord a Construction Start Notice) or
(ii) elect to perform the work (at Tenant's sole cost and expense) with
another contractor of Tenant's choosing which contractor shall be first
approved by Landlord. If Tenant shall not give to Landlord a notice
pursuant to the foregoing within ten (10) days after Tenant's receipt
of the repricing, Tenant shall be deemed to have elected item (ii)
above. Tenant covenants and agrees to pay for the entire cost of said
work. If Tenant shall elect for Landlord to perform said work
concurrently with Tenant's delivery of the Construction Start Notice to
Landlord Tenant shall deliver to Landlord good funds in the total
amount of the Cost Of The Work (as it may be adjusted as aforesaid).
Landlord shall hold said amount in escrow subject to the following
provisions of this Section 4.1.1. Not more frequently than once every
thirty (30) days during the performance of said work and, in addition,
upon substantial completion of said work, Landlord shall submit to
Tenant a written statement of the work completed to the date of such
statement (accompanied by xxxxxxxx or other reasonable evidence
relating thereto). Landlord shall have the right to charge the escrow
and to pay therefrom the cost of the work covered by the applicable
statement submitted by Landlord and upon substantial completion of the
work the escrow shall terminate and Landlord shall have the right to
withdraw the balance of the funds in said escrow.
4.2 INTENTIONALLY OMITTED.
4.3 QUALITY AND PERFORMANCE OF WORK. Landlord shall perform the work
described in Exhibit C and Tenant shall be obligated to pay for the
cost of the work, described in Exhibit C as set forth in Section 4.1.1
hereof. The work described in Exhibit C shall be performed in
substantial compliance with the requirements of the Americans with
Disabilities Act and its implementing regulations. All construction
work required or permitted by this Lease shall be done in a good and
workmanlike manner and in compliance with all applicable Legal
Requirements and Insurance Requirements. All of Tenant's work shall be
coordinated with any work being performed by or for Landlord and in
such manner as to maintain harmonious labor relations. Each party may
inspect the work of the other at reasonable times and shall promptly
give notice of observed defects. Each party authorizes the other to
rely in connection with design and construction upon approval and other
actions on the party's behalf by any Construction Representative of the
party named in Section 1.2 or any person hereafter designated in
substitution or addition by notice to the party relying. Only in the
event Landlord performs the work described in Exhibit C, except to the
extent to which Tenant shall have given Landlord notice of respects in
which Landlord has not performed Landlord's construction obligations
under this Article IV (i) not later than the end of the ninth (9th)
full calendar month next beginning after the Warehouse Premises
Commencement Date with respect to the heating, ventilating and air
conditioning systems servicing the Premises, and (ii) not later than
the sixth (6th) full calendar month next
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beginning after the Commencement Date with respect to Landlord's
construction obligations under this Article IV not referenced in (i)
above, Tenant shall be deemed conclusively to have approved Landlord's
construction and shall have no claim that Landlord has failed to
perform any of Landlord's obligations under this Article IV. Landlord
agrees to correct or repair at its expense items which are then
incomplete or do not conform to the work contemplated under Exhibit C
and as to which, in either case, Landlord performed the work described
in Exhibit C and Tenant shall have given notice to Landlord, as
aforesaid.
ARTICLE V
ANNUAL FIXED RENT AND ELECTRICITY
5.1 FIXED RENT. Tenant agrees to pay to Landlord, or as directed by
Landlord, at Landlord's Present Mailing Address specified in Section
1.2 hereof, or at such other place as Landlord shall from time to time
designate by notice, (1) on the applicable Commencement Date, and
thereafter monthly, in advance, on the first day of each and every
calendar month during the Original Lease Term, a sum equal to
one-twelfth (1/12) of the Annual Fixed Rent specified in Section 1.2
hereof and (2) on the first day of each and every calendar month during
each extension option period (if exercised), a sum equal to one-twelfth
of the applicable Annual Fixed Rent as determined in Section 3.2 for
the extension option period. Until notice of some other designation is
given, Annual Fixed Rent and all other charges for which provision is
herein made shall be paid by remittance to or to the order of BOSTON
PROPERTIES, INC., Agents at 0 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, and all remittances received by BOSTON PROPERTIES, INC., as
Agents as aforesaid, or by any subsequently designated recipient, shall
be treated as a payment to Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to
Landlord at such rate on a pro rata basis, and, if the applicable
Commencement Date shall be other than the first day of a calendar
month, the first payment which Tenant shall make to Landlord shall be a
payment equal to a proportionate part of such monthly Annual Fixed Rent
for the partial month from the applicable Commencement Date to the
first day of the succeeding calendar month.
Other charges payable by Tenant on a monthly basis, as elsewhere
provided in this Lease, likewise shall be prorated, and the first
payment on account thereof shall be determined in similar fashion and
shall commence on the applicable Commencement Date and other provisions
of this Lease calling for monthly payments shall be read as
incorporating this undertaking by Tenant.
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The Annual Fixed Rent and all other charges for which provision is made
in this Lease shall be paid by Tenant to Landlord without setoff,
deduction or abatement.
5.2 ELECTRICITY. Tenant covenants and agrees to take all steps required by
the appropriate utility company to provide for the direct billing to
Tenant of the electricity serving the Premises including, without
limitation, making application(s) to such utility company in connection
therewith and making any deposits (including, but not limited to, such
letters of credit) as such utility company shall require. Tenant
covenants and agrees to pay, punctually as and when due, all
electricity charges and rates for and relating to the Premises and from
time to time if requested by Landlord to provide Landlord with evidence
of payment to, and good standing with, such utility company as Landlord
may reasonably require. Tenant covenants and agrees to keep and
maintain sufficient heat in the Premises in order to keep the portions
of the pipes and other building systems located within the Premises
from freezing. Tenant covenants and agrees to defend, save harmless and
indemnify Landlord against all liability, cost and damage arising out
of or in any way connected to providing heat in the Premises, to the
payment, non-payment or late payment of any and all charges and rates
and deposits to such utility company and the foregoing shall survive
the expiration or early termination of this Lease.
5.3 NATURE OF LEASE. Except only as expressly provided in this Lease, it is
the purpose and intent of Landlord and Tenant that this Lease
constitute and be construed as, an absolutely net lease whereby, under
all circumstances and conditions (whether not or hereafter existing or
whether or not in the contemplation of the parties), this Lease shall
yield to Landlord the full amount of the applicable Annual Fixed Rent
and Additional Rent (collectively sometimes referred to as the "Rent")
throughout the Lease Term, and Tenant shall pay such Rent without
assertion of any counterclaim, set-off, deduction or defense and except
only as otherwise expressly provided in this Lease, without abatement,
suspension, deferment, diminution or reduction. Notwithstanding the
foregoing, (i) Landlord shall perform the obligations as set forth in
and subject to the provisions of Section 7.1 hereof and (ii) Landlord
shall otherwise comply with the provisions of Sections 7.2 and 7.3
hereof subject, however, to reimbursement by Tenant as contained in
Section 7.5 hereof.
ARTICLE VI
TAXES
6.1 DEFINITIONS. With reference to the real estate taxes referred to in
this Article VI, it is agreed that terms used herein are defined as
follows:
(a) "Tax Year" means the 12-month period beginning July 1
each year during the Lease Term or if the appropriate
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Governmental tax fiscal period shall begin on any
date other than July 1, such other date.
(b) "Landlord's Tax Expenses Allocable to the Premises"
means the same proportion of Landlord's Tax Expenses
as Rentable Floor Area of Tenants Premises bears to
95% of the Total Rentable Floor Area of the Building.
(c) "Landlord's Tax Expenses" with respect to any Tax
Year means the aggregate "real estate taxes"
(hereinafter defined) with respect to that Tax Year,
reduced by any net abatement receipts with respect to
that Tax Year; provided, however, that if in any Tax
Year an abatement has been obtained on account of
vacancies in the Building, or if the real estate
taxes had initially been assessed in an amount to
reflect such vacancies then Landlord's Tax Expenses
shall be determined to be an amount equal to the
taxes which would normally be expected to have been
assessed had occupancy been ninety-five percent (95%)
as of the reference date or period on which or in
relation to which such assessment was made.
(d) "Real estate taxes" means all taxes and special
assessments of every kind and nature assessed by any
Governmental authority on the Site or the Building or
the Property which the Landlord shall be obligated to
pay because of or in connection with the ownership,
leasing and operation of the Site and the Building
and reasonable expenses of any proceedings for
abatement of taxes. The amount of special taxes or
special assessments to be included shall be limited
to the amount of the installment (plus any interest
other than penalty interest payable thereon) of such
special tax or special assessment required to be paid
during the year in respect of which such taxes are
being determined. There shall be excluded from such
taxes all income, estate, succession, inheritance and
transfer taxes; provided, however, that if at any
time during the Lease Term the present system of ad
valorem taxation of real property shall be changed so
that in lieu of, or in addition to, the whole or any
part of the ad valorem tax on real property, there
shall be assessed on Landlord a capital levy or other
tax on the gross rents received with respect to the
Site or Building, or a Federal, State, County,
Municipal, or other local income, franchise, excise
or similar tax, assessment, levy or charge (distinct
from any now in effect in the jurisdiction in which
the Property is located) measured by or based, in
whole or in part, upon any such gross rents, then any
and all of such taxes, assessments, levies or
charges, to the extent so measured or based, shall be
deemed to be included within the term "real estate
taxes" but only to the extent that the same would be
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payable if the Site or Building were the only
property of Landlord.
6.2 TENANT'S SHARE OF REAL ESTATE TAXES. For each full Tax Year falling
within the Lease Term, Tenant shall pay to Landlord, as Additional
Rent, Landlord's Tax Expenses Allocable to the Premises and for each
fraction of a Tax Year falling within the Lease Term either at the
beginning or end thereof, Tenant shall pay to Landlord, as Additional
Rent, the product of such fraction and Landlord's Tax Expenses
Allocable to the Premises for the full Tax Year in which such fraction
of the Tax Year occurs. The payments required to be paid by Tenant as
provided in the preceding sentence are herein called "Tenant's Tax
Payments". Payments by Tenant on account of Tenant's Tax Payments shall
be made monthly at the time and in the fashion herein provided for the
payment of Annual Fixed Rent. The amount so to be paid to Landlord
shall be an amount form time to time reasonably estimated by Landlord
to be sufficient to provide Landlord, in the aggregate, a sum equal to
Tenant's Tax Payments, five (5) days at least before that day on which
tax payments by Landlord would become delinquent. Not later than ninety
(90) days after Landlord's Tax Expenses Allocable to the Premises are
determinable for the first such Tax Year or fraction thereof and for
each succeeding Tax Year or fraction thereof during the Lease Term,
Landlord shall render Tenant a statement in reasonable detail certified
by a representative of Landlord showing for the preceding year or
fraction thereof, as the case may be, real estate taxes on the Building
and Site, abatements and refunds, if any, of any such taxes and
assessments, expenditures incurred in obtaining such abatement or
refund, the amount of Tenant's Tax Payments, the amount thereof already
paid by Tenant and the amount thereof overpaid by, or remaining due
from Tenant for the period covered by such statement. Within thirty
(30) days after the receipt of such statement, Tenant shall pay any sum
remaining due. Any balance shown as due to Tenant shall be credited
against Annual Fixed Rent next due, or refunded to Tenant if the Lease
Term has then expired and Tenant has no further obligation to Landlord.
Expenditures for legal fees and for other expenses incurred in
obtaining an abatement or refund may be charged against the abatement
or refund before the adjustments are made for the Tax Year.
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax Year,
the statement to be furnished by Landlord shall be rendered and
payments made on account of such installments.
6.3 REAL ESTATE TAX ABATEMENT PROCEEDING. Provided that there shall not
then be existing an Event of Default (defined in Section 15.1 hereof)
and Tenant shall not have assigned this Lease nor sublet any portion of
the Premises (except for an assignment or subletting permitted under
Section 12.2 hereof), by written notice to Landlord received by
Landlord at least forty-five (45) days prior to the date a real estate
tax abatement application is
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required to be filed, Tenant shall have the right to request that
Landlord institute appropriate tax abatement proceedings and if
Landlord, in its sole judgement determines that it is desirable to do
so, Landlord shall institute (or cause to be instituted) a real estate
tax abatement proceeding. If Landlord shall so institute (or caused to
be instituted) a tax abatement proceeding, Landlord shall have the
right to compromise, negotiate or otherwise settle the proceeding
and/or to determine to discontinue or otherwise conclude such
proceeding.
ARTICLE VII
LANDLORD'S REPAIRS AND SERVICES AND TENANT'S ESCALATION
PAYMENTS
7.1 STRUCTURAL REPAIRS. Except for (a) normal and reasonable wear and use
and (b) damage caused by fire or other casualty and by eminent domain,
Landlord shall, throughout the Lease Term, at Landlord's sole cost and
expense, keep and maintain in good order, condition and repair the
following portions of the Building: the structural portions of the
roof, the exterior and load bearing walls, the foundation, the
structural columns and floor slabs and other structural elements of the
Building; provided, however, that Tenant shall pay to Landlord, as
Additional Rent, the cost of any and all such repairs which may be
required as a result of repairs, alterations, or installations made by
Tenant or any subtenant, assignee, licensee or concessionaire of Tenant
or any agent, servant, employee or contractor of any of them or to the
extent of any. loss, destruction or damage caused by the negligent acts
or omissions of Tenant, any assignee or subtenant or any agent,
servant, employee, customer, visitor or contractor of any of them.
7.2 OTHER REPAIRS TO BE MADE BY LANDLORD. Except as otherwise provided in
this Lease and subject to provisions for reimbursement by Tenant as
contained in Section 7.5, Landlord agrees to keep and maintain in good
order, condition and repair the common areas and facilities of the Site
and Building, including heating, ventilating, air conditioning,
plumbing and other Building systems equipment servicing the Premises,
except that Landlord shall in no event be responsible to Tenant for (a)
the condition of glass in and about the Premises (other than for glass
in exterior walls for which Landlord shall be responsible unless the
damage thereto is attributable to Tenant's negligence or misuse, in
which event the responsibility therefor shall be Tenant's), or (b) for
any condition in the Premises or the Building caused by any act or
neglect of Tenant or any agent, employee, contractor, assignee,
subtenant or invitee of Tenant. Without limitation, Landlord shall not
be responsible to make any improvements or repairs to the Building or
the Premises other than as expressly provided in Section 7.1 or in this
Section 7.2, unless expressly otherwise provided in this Lease or
unless the need for the same is caused by the acts or omissions of
Landlord, its contractors or agents.
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7.3 SERVICES TO BE PROVIDED BY LANDLORD. Except as otherwise provided in
this Lease and subject to provisions for reimbursement by Tenant as
contained in Section 7.5 and Tenant's responsibilities in regard to
electricity as provided in Section 5.2, Landlord agrees to furnish, at
Tenant's expense, reasonable additional Building operation services
which are usual and customary in similar buildings and such additional
special services as may be mutually agreed upon by Landlord and Tenant,
upon reasonable and equitable rates from time to time established by
Landlord. Landlord shall perform the work and/or services for which it
charges Tenant under Section 7.4 hereof.
7.4 OPERATING COSTS DEFINED. "Operating Expenses Allocable to the Premises"
means the same proportion of the Operating Expenses for the Property as
Rentable Floor Area of the Premises bears to 95% of the Total Rentable
Floor Area of the Building. "Operating Expenses for the Property" means
the reasonable cost of operation of the Property incurred by Landlord,
including those incurred in discharging Landlord's obligations under
Sections 7.2 and 7.3. Such costs shall exclude payments of debt service
and any other mortgage charges, brokerage commissions, salaries of
executives and owners not directly employed in the management or
operation of the Building, the general overhead and administrative
expenses of the home office of Landlord or Landlord's managing agent,
and costs of special services rendered to tenants (including Tenant)
for which a separate charge is made, advertising or promotional
expenses or other costs directly attributable to seeking and obtaining
new tenants or retaining existing tenants (including, without
limitation, legal costs and costs of lease negotiations), costs due to
Landlord's violations of law or Landlord's defaults under leases and
costs of remedying non-compliance with law existing prior to
performance of the work described in Exhibit C, but shall include,
without limitation:
(a) compensation, wages and all fringe benefits,
workmen's compensation insurance premiums and payroll
taxes paid to, for or with respect to all persons for
their services in the operating, maintaining or
cleaning of the Building or the Site;
(b) payments under service contracts with independent
contractors for operating, maintaining or cleaning of
the Building or the Site;
(c) steam, water, sewer, gas, oil, electricity and
telephone charges (excluding such utility charges
separately chargeable to tenants for additional or
separate services and electricity charges paid by
Tenant in the manner set forth in Section 5.2) and
costs of maintaining letters of credit or other
security as may be required by utility companies as a
condition of providing such services;
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(d) cost of maintenance, cleaning and repairs (other than
repairs not properly chargeable against income or
reimbursed from contractors under guarantees);
(e) cost of snow removal and care of landscaping;
(f) cost of building and cleaning supplies and equipment;
(g) premiums for insurance carried with respect to the
Property (including, without limitation, liability
insurance, insurance against loss in case of fire or
casualty and of monthly installments of Annual Fixed
Rent and any Additional Rent which may be due under
this Lease and other leases of space in the Building
for not more than twelve (12) months in the case of
both Annual Fixed Rent and Additional Rent and, if
there be any first mortgage on the Property,
including such insurance as may be required by the
holder of such first mortgage);
(h) management fees at reasonable rates consistent with
the type of occupancy and the services rendered;
(i) depreciation for capital expenditures made by
Landlord (x) to reduce operating expenses if Landlord
reasonably shall have determined that the annual
reduction in operating expenses shall exceed
depreciation therefor or (y) to comply with
applicable Legal Requirements hereafter enacted,
(plus, in the case of both (x) and (y), an interest
factor, reasonably determined by Landlord, as being
the interest rate then charged for long term
mortgages by institutional lenders on like properties
within the general locality in which the Building is
located), and in the case of both (x) and (y)
depreciation shall be determined by dividing the
original cost of such capital expenditure by the
number of years of useful life of the capital item
acquired, which useful life shall be determined
reasonably by Landlord in accordance with generally
accepted accounting principles and practices in
effect at the time of acquisition of the capital
item. Tenant shall not be obligated for any portion
of the amount hereunder for periods after the
expiration date of this Lease; and
(j) all other reasonable and necessary expenses paid in
connection with the operating, cleaning and
maintenance of the Building, the Site and said common
areas and facilities and properly chargeable against
income (including, without limitation, landscaping
and maintenance of the parking areas of the Site and
the repair and maintenance of the roof of the
Building).
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Notwithstanding the foregoing, in determining the amount of Operating
Expenses for the Property for any calendar year or portion thereof
falling within the Lease Term, no decrease in Operating Expenses
Allocable to the Property shall result in a reduction in the amount
otherwise payable by Tenant if and to the extent said decrease is
attributable to vacancy in the Building rather than to any other
causes.
7.5 TENANT'S SHARE OF OPERATING EXPENSES. (A) For each calendar year
falling within the Lease Term, Tenant shall pay to Landlord, as
Additional Rent, the Operating Expenses Allocable to the Premises (as
defined in Section 7.4) and for each fraction of a calendar year
falling within the Lease Term at the beginning or end thereof, Tenant
shall pay to Landlord, as Additional Rent, the product of such
fractions and the Operating Expenses Allocable to the Premises. The
payments required to be paid by Tenant as provided in the preceding
sentence are herein called "Tenant's Operating Costs Payments".
Tenant's Operating Cost Payments shall be paid to Landlord, as
Additional Rent, on or before the thirtieth (30th) day following
receipt by Tenant of the statement referred to below in this Section
7.5.
(B) Payments by Tenant on account of Tenant's Operating Cost Payments
shall be made monthly at the time and in the fashion herein provided
for the payment of Annual Fixed Rent. The amount so to be paid to
Landlord shall be an amount from time to time reasonably estimated by
Landlord to be sufficient to cover, in the aggregate, a sum equal to
Tenant's Operating Costs Payments for each calendar year during the
Lease Term.
(C) No later than ninety (90) days after the end of the first calendar
year or fraction thereof ending December 31 and of each succeeding
calendar year during the Lease Term or fraction thereof at the end of
the Lease Term, Landlord shall render Tenant a statement in reasonable
detail and according to usual accounting practices certified by a
representative of Landlord, showing for the preceding calendar year or
fraction thereof, as the case may be, the Operating Expenses for the
Property and the Operating Expenses Allocable to the Premises. Said
statement to be rendered to Tenant also shall show for the preceding
year or fraction thereof, as the case may be, the amounts already paid
by Tenant on account of Tenant's Operating Cost Payments and the amount
of Tenant's Operating Cost Payments remaining due from, or overpaid by,
Tenant for the year or other period covered by the statement.
If such statement shows a balance remaining due to Landlord, Tenant
shall pay same to Landlord on or before the thirtieth (30th) day
following receipt by Tenant of said statement. Any balance shown as due
to Tenant shall be credited against Annual Fixed Rent next due, or
refunded to Tenant if the Lease Term has then expired and Tenant has no
further obligation to Landlord.
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Notwithstanding the provisions of the immediately preceding paragraph,
if Tenant desires to contest such statement, Tenant shall give written
notice to Landlord thereof within sixty (60) days after Tenant's
receipt of such statement, time being of the essence. If the statement
rendered by Landlord to Tenant shows a balance remaining due to
Landlord, then as a condition precedent to Tenant contesting such
statement and in addition to giving such a notice of contest, Tenant
shall pay such balance under protest (with a written statement to
Landlord of such payment under protest) within said sixty (60) day
period. If Tenant shall fail to (i) give notice of such contest or (ii)
to pay any such balance (with a notice of protest) within said sixty
(60) day period, Tenant shall be deemed to have accepted such statement
as rendered by Landlord. Within thirty (30) days after such notice of
contest (together with payment under protest of any balance shown on
Landlord's statement and a written statement thereof) to Landlord, time
being of the essence, Tenant shall have the right during normal
business hours and at Landlord's place of business to examine
Landlord's books and records with respect to such statement on not less
than three (3) days' prior written notice to Landlord. If such
examination reveals that such statement is incorrect, the appropriate
adjustment in the amount due from Tenant to landlord promptly shall be
made and Tenant may make a demand on Landlord for payment of any refund
claimed by Tenant as a result of such examination and if Landlord shall
not pay such demand, Tenant shall have the right to bring and prosecute
suit to collect such demand for payment but Landlord's failure to pay
such demand for payment shall not entitle Tenant to offset against,
withhold or otherwise deduct from Annual Fixed Rent or any Additional
Rent nor shall Landlord's failure to pay Tenant's demand for payment be
a default of Landlord or give Tenant the right to terminate this Lease,
Tenant's sole right being to bring and prosecute such suit as
aforesaid.
ARTICLE VIII
TENANT'S REPAIRS
8.1 TENANTS REPAIRS AND MAINTENANCE. Tenant covenants and agrees that, from
and after the date that possession of the Premises is delivered to
Tenant and until the end of the Lease Term, Tenant will keep neat and
clean and maintain in good order, condition and repair the Premises and
every part thereof, excepting only for those repairs for which Landlord
is responsible under the terms of Article VII of this Lease, reasonable
use and damage by fire or other casualty and as a consequence of the
exercise of the power of eminent domain. Tenant shall not permit or
commit any waste, and Tenant shall be responsible for the cost of
repairs which may be made necessary by reason of damages to common
areas in the Building by Tenant, Tenant's agents, employees,
contractors, or invitees.
If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the
same with
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reasonable dispatch after such demand, Landlord may (but shall not be
required to do so) make or cause such repairs to be made and shall not
be responsible to Tenant for any loss or damage that may accrue to
Tenant's stock or business by reason thereof. If Landlord makes or
causes such repairs to be made, Tenant agrees that Tenant will
forthwith on demand, pay to Landlord as Additional Rent the cost
thereof, and if Tenant shall default in such payment, Landlord shall
have the remedies provided for non-payment of rent or other charges
payable hereunder.
ARTICLE IX
ALTERATIONS
9.1 LANDLORD'S APPROVAL. Tenant covenants and agrees not to make
alterations, additions or improvements to the Premises, whether before
or during the Lease Term, except in accordance with plans and
specifications therefor first approved by Landlord in writing, which
approval shall not be unreasonably withheld or delayed. Landlord shall
not be deemed unreasonable:
(a) for withholding approval of any alterations,
additions or improvements which (i) in Landlord's
opinion might adversely affect any structural or
exterior element of the Building, any area or element
outside of the Premises or any facility serving any
area of the Building outside of the Premises, or (ii)
involve or affect the exterior design, size, height
or other exterior dimensions of the Building, or
(iii) enlarge the Rentable Floor Area of the
Premises; or
(b) for making its approval conditional on Tenant's
agreement to restore the Premises to its condition
prior to such alteration, addition, or improvement at
the expiration or earlier termination of the Lease
Term.
Landlord's review and approval of any such plans and specifications and
consent to perform work described therein shall not be deemed an
agreement by Landlord that such plans, specifications and work conform
with applicable Legal Requirements and applicable Insurance
Requirements nor deemed a waiver of Tenant's obligations under this
Lease with respect to applicable Legal Requirements and Insurance
Requirements nor impose any liability or obligation upon Landlord with
respect to the completeness, design sufficiency or compliance of such
plans, specifications and work with applicable Legal Requirements and
Insurance Requirements.
9.2 CONFORMITY OF WORK. Tenant covenants and agrees that any alterations,
additions, improvements or installations made by it to or upon the
Premises shall be done in a good and workmanlike manner and in
compliance with all applicable Legal Requirements and Insurance
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Requirements now or hereafter in force, that materials of first and
otherwise good quality shall be employed therein, that the structure of
the Building shall not be endangered or impaired thereby and that the
Premises shall not be diminished in value thereby.
9.3 PERFORMANCE OF WORK. GOVERNMENTAL PERMITS AND INSURANCE. All of
Tenant's alterations and additions and installation of furnishings
shall be coordinated with any work being performed by or for Landlord
and in such manner as to maintain harmonious labor relations and not to
damage the Building or Site or interfere with Building construction or
operation and, except for installation of furnishings, shall be
performed by Landlord's general contractor or by contractors or workmen
first approved by Landlord. Except for work by Landlord's general
contractor, Tenant shall procure all necessary governmental permits
before making any repairs, alterations, other improvements or
installations. Tenant agrees to save harmless and indemnify Landlord
from any and all injury, loss, claims or damage to any person or
property occasioned by or arising out of the doing of any such work
whether the same be performed prior to or during the Term of this
Lease. In addition, Tenant shall cause each contractor to carry
workmen's compensation insurance in statutory amounts covering the
employees of all contractors and subcontractors, and commercial general
liability insurance or comprehensive general liability insurance with a
broad form comprehensive liability endorsement with such limits as
Landlord may require reasonably from time to time during the Term of
this Lease, but in no event less than the minimum amount of commercial
general liability insurance or comprehensive general liability
insurance Tenant is required to maintain as set forth in Section 1.2
hereof and as the same may be modified as provided in Section 13.2
hereof (all such insurance to be written in companies approved
reasonably by Landlord and insuring Landlord, Landlord's managing agent
and Tenant as well as contractors) and to deliver to Landlord
certificates of all such insurance.
9.4 LIENS. Tenant covenants and agrees to pay promptly when due the entire
cost of any work done on the Premises by Tenant, its agents, employees
or contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to attach to
the Premises or the Building or the Site and immediately to discharge
any such liens which may so attach.
9.5 NATURE OF ALTERATIONS. All work, construction, repairs, alterations,
other improvements or installations made to or upon the Premises
(including, but not limited to, the construction performed by Landlord
under Article IV), shall become part of the Premises and shall become
the property of Landlord and remain upon and be surrendered with the
Premises as a part thereof upon the expiration or earlier termination
of the Lease Term, except as follows:
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(a) All trade fixtures whether by law deemed to be a part
of the realty or not, installed at any time or times
by Tenant or any person claiming under Tenant shall
remain the property of Tenant or persons claiming
under Tenant and may be removed by Tenant or any
person claiming under Tenant at any time or times
during the Lease Term or any occupancy by Tenant
thereafter and shall be removed by Tenant at the
expiration or earlier termination of the Lease Term
if so requested by Landlord. Tenant shall repair any
damage to the Premises occasioned by the removal by
Tenant or any person claiming under Tenant of any
such property from the Premises.
(b) At the expiration or earlier termination of the Lease
Term, unless otherwise agreed in writing by Landlord,
Tenant shall remove any wiring for Tenant's computer,
telephone and other communication systems and
equipment and any alterations, additions and
improvements made with Landlord's consent during the
Lease Term for which such removal was made a
condition of such consent under Section 9.1(b). Upon
such removal Tenant shall restore the Premises to
their condition prior to such alterations, additions
and improvements and repair any damage occasioned by
such removal and restoration.
(c) If Tenant shall make any alterations, additions or
improvements to the Premises for which Landlord's
approval is required under Section 9.1 without
obtaining such approval, then at Landlord's request
at any time during the Lease Term, and at any event
at the expiration or earlier termination of the Lease
Term, Tenant shall remove such alterations, additions
and improvements and restore the Premises to their
condition prior to same and repair any damage
occasioned by such removal and restoration. Nothing
herein shall be deemed to be a consent to Tenant to
make any such alterations, additions or improvements,
the provisions of Section 9.1 being applicable to any
such work.
9.6 INCREASES IN TAXES. Tenant shall pay, as additional rent, one hundred
percent (100%) of any increase in real estate taxes on the Property
which shall, at any time after the Commencement Date, result from
alterations, additions or improvements to the Premises made by Tenant
if the taxing authority specifically determines such increase results
from such alterations, additions or improvements made by Tenant. Tenant
shall not be obligated to pay any portion of any increase in real
estate taxes on the Property resulting from alterations, additions or
improvements to other tenant premises made by such other tenants
("Other Tenant Alterations") where the taxing authority specifically
determine such increase results from Other Tenant Alterations.
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ARTICLE X
PARKING AND LOADING
10.1 PARKING SPACES. Tenant shall have the right to use the Number of
Parking Spaces (referred to in Section 1.2), in common with use by
other tenants from time to time of the Building, of the parking area on
the Site; provided, however, that Landlord shall not be obligated to
furnish stalls or spaces in any parking area specifically designated
for Tenant's use. Twenty (20) of the Total Number of Parking Spaces
will be reserved for Tenant's use of its "step van vehicles"
(so-called) and said twenty (20) spaces will be located at the southern
most portion of the parking area. In addition, Tenant shall have the
use of three (3) loading docks which are shown on the floor plan
attached hereto as Exhibit B. Tenant covenants and agrees that it and
all persons claiming by, through and under it, shall at all times abide
by all reasonable rules and regulations promulgated by Landlord with
respect to the use of the parking areas on the Site. The parking
privileges granted herein are non-transferrable except to a permitted
assignee or subtenant as provided in Section 12.1 through Section 12.7.
Further, Landlord assumes no responsibility whatsoever for loss or
damage due to fire, theft or otherwise to any automobile(s) parked on
the Site or to any personal property therein, however caused except to
the extent of the gross negligence or willful misconduct of Landlord,
and Tenant covenants and agrees, upon request from Landlord from time
to time, to notify its officers, employees, agents and invitees of such
limitation of liability. Tenant acknowledges and agrees that a license
only is hereby granted, and no bailment is intended or shall be
created.
ARTICLE XI
CERTAIN TENANT COVENANTS
Tenant covenants during the Lease Term and for such further time as
Tenant occupies any part of the Premises:
11.1 To pay when due all Annual Fixed Rent and Additional Rent and all
charges for utility services rendered to the Premises and service
inspections therefor and, as further Additional Rent, all charges for
additional and special services rendered pursuant to Section 7.3.
11.2 To use and occupy the Premises for only the Permitted Use and the
Additional Permitted Uses but only in conformity with and subject to
(i) applicable Insurance Requirements, (ii) applicable Legal
Requirements and (iii) the terms, conditions and requirements set forth
in the definition of Additional Permitted Uses in Section 1.2 hereof,
and not to injure or deface the Premises or the Property, not to permit
in the Premises any auction sale, vending machines (other than vending
machines which dispense food, candy, nonalcoholic beverages, toiletries
and similar grooming products) or
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flammable fluids or chemicals, or nuisance, or the emission from the
Premises of any objectionable noise or odor, nor to use or devote the
Premises or any part thereof for any purpose other than the Permitted
Uses, nor any use thereof which is inconsistent with the maintenance of
the Building as an warehouse and distribution building of the
first-class in the quality of its maintenance, use and occupancy, or
which is improper, offensive, contrary to law or ordinance or liable to
invalidate or increase the premiums for any insurance on the Building
or its contents or liable to render necessary any alteration or
addition to the Building. Further, Tenant shall not nor shall Tenant
permit its employees, invitees or contractors to engage in any activity
which may produce a hazardous material, waste or substance, or keep or
maintain any substance which is or may hereafter be classified as a
hazardous material, waste or substance, under federal, state or local
laws, rules and regulations, including, without limitation, 42 U.S.C.
Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C. Section
2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts General
Laws, Chapter 21E, and the rules and regulations promulgated under any
of the foregoing, as such laws, rules and regulations may be amended
from time to time (collectively "Hazardous Waste Laws") and, further,
Tenant shall comply and shall cause its employees, invitees, agents and
contractors to comply with each of the foregoing. In the conduct of the
Permitted Uses, Tenant shall have the right to use fluids or materials
which would otherwise be classified as hazardous materials or
substances under applicable Hazardous Waste Laws provided and on the
condition that (i) such fluids or materials are customarily used in
Tenant's business operations and are used in small quantities, (ii)
Tenant shall comply with all requirements of Hazardous Waste Laws
(including, but not limited to, all requirements thereof relating to
(a) the use, storage, handling, keeping, disposal and transporting of
such fluids and materials and (b) record keeping with respect thereto)
and (ii) Tenant shall obtain all licenses, permits, special permits,
approvals, consents and other permissions from all applicable
governmental authorities necessary or required under all Legal
Requirements and Hazardous Waste Laws from time to time in effect for
and relating to the use, storage, handling, keeping, disposal and
transporting of such fluids and materials (as, for example but not in
limitation, flammable fuel or flammable substance licenses and
registrations) and (iii) Tenant's use, storage, handling, keeping,
disposal and transporting of such fluids and materials shall comply
with and be permitted under all applicable Legal Requirements
including, but not limited to, the provisions of the Town of Westwood
Zoning By-Law from time to time in effect. In addition and
notwithstanding the foregoing, Tenant shall indemnify and hold Landlord
harmless from, against and on account of any violation or alleged
violation of any Hazardous Waste Law, any applicable Legal Requirements
and/or any applicable Insurance Requirement related to, regulating or
covering the use, storage, handling, keeping, disposal and/or
transporting of such fluids and materials caused (or alleged to be
caused) by Tenant, its employees, officers,
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directors, invitees, agents or contractors and the provisions of this
Section shall survive the expiration or termination of this Lease
except to the extent caused by Landlord, its employees, officers,
directors, invitees, agents and contractors. Further, Tenant assumes
the obligation to pay any increase in Landlord's insurance premiums
resulting from any of the foregoing and Tenant shall make such
alterations as shall be required under or by applicable Legal
Requirements (including applicable Hazardous Waste Laws) and applicable
Insurance Requirements in order to keep, use, store, handle, dispose of
and transport such fluids and materials, such alterations to be subject
to the requirements of Article IX hereof.
11.3 Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the Site used by Tenant in common
with others; not without prior consent of Landlord to permit the
painting or placing of any signs, curtains, blinds, shades, awnings,
aerials or flagpoles, or the like, visible from outside the Premises;
and to comply with all reasonable rules and regulations now or
hereafter made by Landlord, of which Tenant has been given notice, for
the care and use of the Building and the Site and their facilities and
approaches, but Landlord shall not be liable to Tenant for the failure
of other occupants of the Building to conform to such rules and
regulations.
11.4 To keep the Premises equipped with all safety appliances required by
law or ordinance or any other regulation of any public authority
because of any use made by Tenant other than normal warehouse and
distribution use, and to procure all licenses and permits so required
because of any use made by Tenant other than normal warehouse and
distribution use, and to procure all licenses and permits so required
because of such use and, if requested by Landlord, to do any work so
required because of such use, it being understood that the foregoing
provisions shall not be construed to broaden in any way Tenant's
Permitted Uses.
11.5 Not to place a load upon any floor in the Premises exceeding an average
rate of 250 pounds of live load (including partitions) per square foot
of floor area in the warehouse portion of the Building and 70 pounds of
live load (including partitions) per square foot of floor area in the
office portion of the Building; and not to move any safe, vault or
other heavy equipment in, about or out of the Premises except in such
manner and at such time as Landlord shall in each instance authorize.
Tenant's business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient to
absorb and prevent vibration or noise that may be transmitted to the
Building structure or to any other space in the Building.
11.6 To pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
11.7 Intentionally Omitted.
11.8 Not to do or permit anything to be done in or upon the Premises, or
bring in anything or keep anything therein, which shall increase the
rate of insurance on the Premises or on the Building above the standard
rate applicable to
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premises being occupied for the use to which Tenant has agreed to
devote the Premises; and Tenant further agrees that, in the event that
Tenant shall do any of the foregoing, Tenant will promptly pay to
Landlord, on demand, any such increase resulting therefrom, which shall
be due and payable as Additional Rent hereunder.
11.9 Without limiting the provisions of Section 11.2 hereof, to comply with
all applicable Legal Requirements now or hereafter in force which shall
impose a duty on Landlord or Tenant relating to or as a result of the
use or occupancy of the Premises; provided that Tenant shall not be
required to make any alterations or additions to the structure, roof,
exterior and load bearing walls, foundation, structural floor slabs and
other structural elements of the Building unless the same are required
by such Legal Requirements as a result of or in connection with
Tenant's particular use or occupancy of the Premises beyond normal use
of space of this kind or are required pursuant to the provisions of
Section 11.2 hereof. Tenant shall promptly pay all fines, penalties and
damages that may arise out of or be imposed because of its failure to
comply with the provisions of this Section 11.9.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
12.1 RESTRICTIONS ON TRANSFER. Except as otherwise expressly provided
herein, Tenant covenants and agrees that it shall not assign, mortgage,
pledge, hypothecate or otherwise transfer this Lease and/or Tenant's
interest in this Lease or sublet (which term, without limitation, shall
include granting of concessions, licenses or the like) the whole or any
part of the Premises. Any assignment, mortgage, pledge, hypothecation,
transfer or subletting not expressly permitted in or consented to by
Landlord under this Article XII shall be void, ab initio; shall be of
no force and effect; and shall confer no rights on or in favor of third
parties. In addition, Landlord shall be entitled to seek specific
performance of or other equitable relief with respect to the provisions
hereof.
12.2 EXCEPTIONS FOR PARENT OR SUBSIDIARY. Notwithstanding the foregoing
provisions of Section 12.1 above and the provisions of Section 12.4
below, BUT subject to the provisions of Sections 12.5, 12.6 and 12.7
below, Tenant shall have the right to assign this Lease or to sublet
the Premises (in whole or in part) to any parent or subsidiary
corporation of Tenant or to any corporation into which Tenant may be
converted or with which it may merge.
12.3 LANDLORD'S TERMINATION RIGHT. Notwithstanding the provisions of Section
12.1 above, in the event Tenant desires to assign this Lease or to
sublet the whole (but not part) of the Premises (no partial subletting
being permitted other than as provided in Section 12.2), Tenant shall
notify Landlord thereof in writing and Landlord shall have the right at
its sole option, to be exercised within thirty (30) days after receipt
of Tenant's notice,
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to terminate this Lease as of a date specified in a notice to Tenant,
which date shall not be earlier than sixty (60) days nor later than one
hundred and twenty (120) days after Landlord's notice to Tenant;
provided, however, that upon the termination date as set forth in
Landlord's notice, all obligations relating to the period after such
termination date (but not those relating to the period before such
termination date) shall cease and promptly upon being billed therefor
by Landlord, Tenant shall make final payment of all rent and additional
rent due from Tenant through the termination date. In the event that
Landlord shall not exercise its termination rights as aforesaid, or
shall fail to give any or timely notice pursuant to this Section the
provisions of Sections 12.4-12.7 shall be applicable. This Section 12.3
shall not be applicable to an assignment or sublease pursuant to
Section 12.2. Notwithstanding the foregoing, Tenant may, by written
notice to Landlord given within fifteen (15) days after Tenant's
receipt of Landlord's notice of termination as aforesaid, avoid such
termination by giving written notice that Tenant has validly canceled
any agreement to enter into such assignment or subletting and agreeing
to remain as Tenant in the Premises pursuant to this Lease, provided
that Tenant includes with its notice evidence reasonably satisfactory
to Landlord evidencing such valid cancellation of such agreement to
enter into such assignment or subletting. In the event Tenant so avoids
Landlord's termination, this Lease shall remain in full force and
effect in accordance with its terms as if such assignment or subletting
had not been proposed and as if such termination had not been
exercised.
12.4 CONSENT OF LANDLORD. Notwithstanding the provisions of Section 12.1
above, BUT subject to the provisions of this Section 12.4 and the
provisions of Sections 12.5, 12.6 and 12.7 below, in the event that
Landlord shall not have exercised the termination right as set forth in
Section 12.3, or shall have failed to give any or timely notice under
Section 12.3, then for a period of ninety (90) days (i) after the
receipt of Landlord's notice stating that Landlord does not elect the
termination right, or (ii) after the expiration of the thirty (30) day
period referred to in Section 12.3, in the event Landlord shall not
give any or timely notice under Section 12.3 as the case may be, Tenant
shall have the right to assign this Lease or sublet the whole (but not
part) of the Premises in accordance with Tenant's notice to Landlord
given as provided in Section 12.5 provided that, in each instance,
Tenant first obtains the express prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Landlord
shall not be deemed to be unreasonably withholding its consent to such
a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is not of a
character consistent with the operation of a first
class warehouse/distribution building (by way of
example Landlord shall not be deemed to be
unreasonably withholding its consent to an assignment
or subleasing to any governmental agency), or
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(b) the proposed assignee or subtenant is not of good
character and reputation, or
(c) the proposed assignee or subtenant does not possess
adequate financial capability to perform the Tenant
obligations as and when due or required, or
(d) the assignee or subtenant proposes to use the
Premises (or part thereof) for a purpose other than
the purpose for which the Premises may be used as
stated in Section 1.2 hereof, or
(e) the character of the business to be conducted or the
proposed use of the Premises by the proposed
subtenant or assignee shall (i) be likely to increase
Operating Expenses for the Property beyond that which
Landlord now incurs for use by Tenant; (ii) be likely
to increase the burden on Building systems or
equipment over the burden prior to such proposed
subletting or assignment; or (iii) violate or be
likely to violate any provisions or restrictions
contained herein relating to the use or occupancy of
the Premises, or
(f) there shall be existing an Event of Default (defined
in Section 15.1).
12.5 TENANT'S NOTICE. Tenant shall give Landlord notice of any proposed
sublease or assignment, and said notice shall specify the provisions of
the proposed assignment or subletting, including (a) the name and
address of the proposed assignee or subtenant, (b) in the case of a
proposed assignment or subletting pursuant to Section 12.4, such
information as to the proposed assignee's or proposed subtenant's net
worth and financial capability and standing as may reasonably be
required for Landlord to make the determination referred to in Section
12.4 above (provided, however, that Landlord shall hold such
information confidential having the right to release same to its
officers, accountants, attorneys and mortgage lenders on a confidential
basis), (c) all of the terms and provisions upon which the proposed
assignment or subletting is to be made, (d) in the case of a proposed
assignment or subletting pursuant to Section 12.4, all other
information necessary to make the determination referred to in Section
12.4 above and (e) in the case of a proposed assignment or subletting
pursuant to Section 12.2 above, such information as may be reasonably
required by Landlord to determine that such proposed assignment or
subletting complies with the requirements of said Section 12.2. No
partial subletting shall be permitted.
If Landlord shall consent to the proposed assignment or subletting, as
the case may be, then, in such event, Tenant may thereafter sublease
(the whole but not part of the Premises) or assign pursuant to Tenant's
notice, as given hereunder; provided, however, that if such assignment
or sublease shall not
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be executed and delivered to Landlord within ninety (90) days after the
date of Landlord's consent, the consent shall be deemed null and void
and the provisions of Section 12.3 shall be applicable.
12.6 PROFIT ON SUBLEASING OR ASSIGNMENT. In addition, in the case of any
assignment or subleasing as to which Landlord may consent (other than
an assignment or subletting permitted under Section 12.2 hereof) such
consent shall be upon the express and further condition, covenant and
agreement, and Tenant hereby covenants and agrees that, in addition to
the Annual Fixed Rent, Additional Rent and other charges to be paid
pursuant to this Lease, fifty percent (50%) of the "Assignment/Sublease
Profits" (hereinafter defined), if any shall be paid to Landlord.
The "Assignment/Sublease Profits" shall be the excess, if any, of (a)
the "Assignment/Sublease Net Revenues" as hereinafter defined over (b)
the Annual Fixed Rent, Additional Rent and other charges provided in
this Lease (provided, however, that for the purpose of calculating the
Assignment/Sublease Profits in the case of a sublease, appropriate
proportions in the applicable Annual Fixed Rent, Additional Rent and
other charges under this Lease shall be made based on the percentage of
the Premises subleased and on the terms of the sublease). The
"Assignment/Sublease Net Revenues" shall be the fixed rent, Additional
Rent and all other charges and sums payable either initially or over
the term of the sublease or assignment PLUS all other profits and
increases to be derived by Tenant as a result of such subletting or
assignment, less the reasonable costs of Tenant incurred in such
subleasing or assignment (the definition of which shall include but not
necessarily be LIMITED to rent concessions, brokerage commissions
reasonable out of pocket attorneys fees of Tenant's outside counsel and
alteration allowances) amortized over the term of the sublease or
assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be
made within ten (10) days of receipt of same by Tenant.
12.7 ADDITIONAL CONDITIONS. (A) It shall be a condition of the validity of
any assignment or subletting of right under Section 12.2 above, or
consented to under Section 12.4 above, that the assignee or sublessee
agrees directly with Landlord, in form reasonably satisfactory to
Landlord, to be bound by all the obligations of the Tenant hereunder,
including, without limitation, the obligation to pay the Annual Fixed
Rent, Additional Rent, and other amounts provided for under this Lease
(but in the case of a partial subletting pursuant to Section 12.2, such
subtenant shall agree on a pro rata basis to be so bound) including the
provisions of Sections 12.1 through 12.7 hereof, but such assignment or
subletting shall not relieve the Tenant named herein of any of the
obligations of the Tenant hereunder, Tenant shall remain fully and
primarily liable therefor and the liability of Tenant and such assignee
(or subtenant, as the case may be) shall be joint and several. Further,
and notwithstanding the foregoing, the provisions hereof shall not
constitute a
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recognition of the assignment or the assignee thereunder or the
sublease or the subtenant thereunder, as the case may be, and at
Landlord's option, upon the termination of the Lease, the assignment or
sublease shall be terminated.
(B) As Additional Rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by Landlord
in connection with any request by Tenant for consent to assignment or
subletting.
(C) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant, Landlord may upon
prior notice to Tenant, at any time and from time to time, collect
Annual Fixed Rent, Additional Rent, and other charges from the
assignee, sublessee or occupant and apply the net amount collected to
the Annual Fixed Rent, Additional Rent and other charges herein
reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or a waiver of the
provisions of Sections 12.1 through 12.7 hereof, or the acceptance of
the assignee, sublessee or occupant as a tenant or a release of Tenant
from the further performance by Tenant of covenants on the part of
Tenant herein contained, the Tenant herein named to remain primarily
liable under this Lease.
(D) The consent by Landlord to an assignment or subletting under any of
the provisions of Sections 12.2 or 12.4 shall in no wise be construed
to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or subletting.
ARTICLE XIII
INDEMNITY AND COMMERCIAL GENERAL LIABILITY INSURANCE
13.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to indemnify and save
harmless Landlord from and against all claims of whatever nature
arising from or claimed to have arisen from any act, omission or
negligence of Tenant, or Tenant's contractors, licensees, invitees,
agents, servants, independent contractors or employees, or arising from
any accident, injury or damage whatsoever caused to any person, or to
the property of any person, occurring after the date that possession of
the Premises is first delivered to Tenant and until the end of the
Lease Term and thereafter, so long as Tenant is in occupancy of any
part of the Premises, in or about the Premises or arising from any
accident, injury or damage occurring outside the Premises but within
the Building or on the Site, where and to the extent such accident,
injury or damage results, or is claimed to have resulted, from an act
or omission on the part of Tenant or Tenant's contractors, licensees,
invitees, agents, servants, independent contractors or employees.
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This indemnity and hold harmless agreement shall include indemnity
against all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon, and the
defense thereof.
13.2 COMMERCIAL GENERAL LIABILITY INSURANCE. Tenant agrees to maintain in
full force from the date upon which Tenant first enters the Premises
for any reason, throughout the Lease Term of this Lease, and
thereafter, so long as Tenant is in occupancy of any part of the
Premises, a policy of commercial general liability or comprehensive
general liability insurance with a broad form comprehensive liability
endorsement under which Landlord and Landlord's managing agent (and
such other persons as are in privity of estate with Landlord and
Landlord's managing agent as may be set out in notice from time to
time) and Tenant are named as insureds, and under which the insurer
agrees to indemnify and hold Landlord, and those in privity of estate
with Landlord and Landlord's managing agent, harmless from and against
all cost, expense and/or liability arising out of or based upon any and
all claims, accidents, injuries and damages mentioned in Section 13.1
of this Article XIII, in the broadest form of such coverage from time
to time available in the jurisdiction in which the Premises are
located. Each such policy shall be non-cancelable and non-amendable
with respect to Landlord and Landlord's said designees without thirty
(30) days' prior notice to Landlord and to the holder of a mortgage on
the Property, and a duplicate original or certificate thereof shall be
delivered to Landlord. As of the Commencement Date hereof, the minimum
limits of liability of such insurance shall be as specified in Section
1.2 and from time to time during the Lease Term for such higher limits,
if any, as are carried customarily in the Greater Boston Area with
respect to similar properties.
13.3 NON-SUBROGATION. Any insurance carried by either party with respect to
the Premises or property therein or occurrences thereon shall, if it
can be so written without additional premium or with an additional
premium which the other party agrees to pay, include a clause or
endorsement denying to the insurer rights of subrogation against the
other party to the extent rights have been waived by the insured prior
to occurrence of injury or loss. Each party, notwithstanding any
provisions of this Lease to the contrary, hereby waives any rights of
recovery against the other for injury or loss due to hazards covered by
such insurance to the extent of the indemnification received
thereunder.
13.4 TENANT'S RISK. To the maximum extent that this agreement may be made
effective according to law, Tenant agrees to use and occupy the
Premises and to use such other portions of the Building and the Site as
Tenant is herein given the right to use at Tenant's own risk; and
Landlord shall have no responsibility or liability for any loss of or
damage to fixtures or other personal property of Tenant unless the same
is caused by the gross negligence or wilful misconduct of Landlord, its
contractors or agents.
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13.5 LANDLORD'S INDEMNITY. Landlord agrees to indemnify and save Tenant
harmless from and against injuries arising from or claimed to have
arisen from the negligence of Landlord, its agents or employees
occurring after the date that possession of the Premises is first
delivered to Tenant and until the expiration or earlier termination of
the Lease Term, provided, however that in no event shall the aforesaid
indemnity render Landlord responsible or liable for any loss or damage
to fixtures or personal property of Tenant and Landlord shall in no
event be liable for any indirect or consequential damages; and
provided, further, that the provisions of this Section shall not be
applicable (i) to the holder of any mortgage now or hereafter on the
Site or the Building (whether or not such holder shall be a mortgagee
in possession of or shall have exercised any rights under a
conditional, collateral or other assignment of leases and/or rents
respecting, the Site and/or Building or (ii) any person acquiring title
as a result of, of subsequent to, a foreclosure of any such mortgage or
a deed in lieu of foreclosure.
ARTICLE XIV
FIRE CASUALTY AND TAKING
14.0 CASUALTY INSURANCE. Landlord shall carry at all times during the Term
of this Lease with respect to the Building insurance against loss or
damage covered by the so-called "all risk" type insurance coverage.
Such insurance shall be in an amount equal to at least the replacement
value of the Building, as reasonably estimated by Landlord from time to
time, and such insurance may be written with a deductible as determined
by landlord. Notwithstanding the foregoing provisions of this Section
14.0, if at any time or from time to time during the Term of this Lease
(as it may be extended) "all risk" type insurance coverage shall not be
available and/or if replacement value coverage shall not be available,
then the type of fire and casualty insurance and the amount of such
coverage shall be as determined by Landlord. Landlord may also maintain
such other insurance as may from time to time be required by any
mortgagee holding a first mortgage lien on the Building. Further,
Landlord may also maintain such liability insurance and insurance
against loss of Annual Fixed Rent and Additional Rent and such other
risks and perils as Landlord deems proper. Any and all such insurance
together with the liability insurance required or permitted to be
carried under this Lease may be maintained under a blanket policy
affecting other premises of Landlord and/or its affiliated business
organizations.
14.1 DAMAGE RESULTING FROM CASUALTY. In case during the Lease Term the
Building or the Site are damaged by fire or other casualty, and such
fire or casualty damage cannot, in the ordinary course, reasonably be
expected to be repaired within one hundred eighty (180) days from the
time that repair work would commence, Landlord may, at its election,
terminate this Lease by notice given to Tenant within sixty (60) days
after the date of such fire or other casualty, specifying the effective
date of termination. The effective date of termination specified by
Landlord shall not be less than thirty (30) days
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nor more than forty-five (45) days after the date of notice of such
termination. Unless terminated pursuant to the foregoing provisions,
this Lease shall remain in full force and effect following any such
damage subject, however, to the following provisions.
If during the last two (2) Lease Years of the Lease Term (AS IT MAY
HAVE BEEN EXTENDED), the Building shall be damaged by fire or casualty
and such fire or casualty damage to the Premises cannot reasonably be
expected to be repaired or restored within one hundred eighty (180)
days from the time that repair or restoration work would commence, then
Tenant shall have the right, by giving notice to Landlord not later
than thirty (30) days after such damage, to terminate this Lease,
whereupon 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.
If the Building or the Site or any part thereof are damaged by fire or
other casualty and this Lease is not so terminated, or Landlord has no
right to terminate this Lease, and in either such case the holder of
any mortgage which includes the Building as a part of the mortgaged
premises or any ground lessor of any ground lease which includes the
Site as part of the demised premises allows the net insurance proceeds
to be applied to the restoration of the Building (and/or the Site),
Landlord, promptly after such damage and the determination of the net
amount of insurance proceeds available shall use due diligence to
restore the Premises and the Building in the event of damage thereto
(excluding Tenant's Property) into proper condition for use and
occupation and a just proportion of the Annual Fixed Rent, Tenant's
Operating Cost Payments and Tenant's share of real estate taxes
according to the nature and extent of the injury to the Premises shall
be abated from the date of casualty until the Premises shall have been
put by Landlord substantially into such condition. Notwithstanding the
foregoing but provided Landlord has maintained the insurance required
by Section 14.0 hereof, Landlord shall not be obligated to expend for
such repairs and restoration any amount in excess of the net insurance
proceeds plus the amount of Landlord's deductible with respect to the
Property.
Where Landlord is obligated or otherwise elects to effect restoration
of the Premises, unless such restoration is completed within ten (10)
months from the date of the casualty or taking, such period to be
subject, however, to extension where the delay in completion of such
work is due to causes beyond Landlord's reasonable control (but in no
event beyond thirteen (13) months from the date of the casualty or
taking), Tenant shall have the right to terminate this Lease at anytime
after the expiration of such ten (10) month (as extended) period until
the restoration is substantially completed, such termination to take
effect as of the thirtieth (30th) day after the date of receipt by
Landlord of Tenant's notice, with the same force and effect as if such
date were the date originally established as the expiration date hereof
unless, within such thirty (30) day period such restoration is
substantially completed, in which case Tenant's notice of termination
shall be of no force
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and effect and this Lease and the Lease Term shall continue in full
force and effect.
14.2 UNINSURED CASUALTY. Notwithstanding anything to the contrary contained
in this Lease, if the Building or the Premises shall be substantially
damaged by fire or casualty as the result of a risk not covered by the
forms of casualty insurance at the time maintained or required to be
maintained by Landlord and such fire or casualty damage cannot, in the
ordinary course, reasonably be expected to be repaired within ninety
(90) days from the time that repair work would commence, Landlord may,
at its election, terminate the Term of this Lease by notice to Tenant
given within thirty (30) days after such loss. 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.
14.3 RIGHTS OF TERMINATION FOR TAKING. Except as hereinafter provided in
Section 14.4 hereof, if the Premises or such portion thereof as to
render the balance (if reconstructed to the maximum extent practicable
in the circumstances) unsuitable for Tenant's purposes as determined by
Tenant acting reasonably and in good faith, shall be taken by
condemnation or right of eminent domain, Tenant shall have the right to
terminate this Lease by notice to Landlord of its desire to do so,
provided that such notice is given not later than thirty (30) days
after Tenant has been deprived of possession. If Tenant 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.
Further, if so much of the Building shall be so taken that continued
operation of the Building would be uneconomic or if the entire Building
is so taken, Landlord shall have the right to terminate this Lease by
giving notice to Tenant of Landlord's desire to do so not later than
thirty (30) days after Tenant has been deprived of possession of the
Premises (or such portion thereof as may be taken). 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.
Should any part of the Premises be so taken or condemned during the
Lease Term hereof, and should this Lease not be terminated in
accordance with the foregoing provisions, and the holder of any
mortgage which includes the Premises as part of the mortgaged premises
or any ground lessor of any ground lease which includes the Site as
part of the demised premises allows the net condemnation proceeds to be
applied to the restoration of the Building, Landlord agrees that after
the determination of the net amount of condemnation proceeds available
to Landlord, Landlord shall use due diligence to put what may remain of
the Premises into proper condition for use and occupation as nearly
like the condition of the Premises prior to such taking as shall be
practicable (excluding Tenant's Property). Unless such
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work is completed within ten (10) months from the date of such
determination, such period to be subject, however, to extension where
the delay in completion of such work is due to causes beyond Landlord's
reasonable control (but in no event beyond thirteen (13) months from
the date of the taking), Tenant shall have the right to terminate this
Lease at any time after the expiration of such ten (10) month (as
extended) period until such work is substantially completed, such
termination to take effect as of the thirtieth (30th) day after the
date of receipt by Landlord of Tenant's notice, with the same force and
effect as if such date were the date originally established as the
expiration date hereof unless, within such thirty (30) day period such
work is substantially completed, in which case Tenant's notice of
termination shall be of no force and effect and this Lease and the
Lease Term shall continue in full force and effect. Notwithstanding the
foregoing, Landlord shall not be obligated to expend for such repair
and restoration any amount in excess of the net condemnation proceeds.
If the Premises shall be affected by any exercise of the power of
eminent domain and neither Landlord nor Tenant shall terminate this
Lease as provided above, then the Annual Fixed Rent, the Tenants
Operating Cost Payments and Tenant's share of real estate taxes shall
be justly and equitably abated and reduced according to the nature and
extent of the loss of use thereof suffered by Tenant; and in case of a
taking which permanently reduces the Rentable Floor Area of the
Premises, a just proportion of the Annual Fixed Rent, Tenant's
Operating Cost Payments and Tenants share of real estate taxes shall be
abated for the remainder of the Lease Term.
14.4 AWARD. Except as otherwise provided in this Section 14.4, 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 Site and the leasehold interest hereby created, and
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, as aforesaid, and by way of confirming the
foregoing, Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign to Landlord, all rights to such damages or
compensation.
However, nothing contained herein shall be construed to prevent Tenant
from prosecuting in any such proceedings a claim for its trade fixtures
so taken or relocation, moving and other dislocation expenses, provided
that such action shall not affect the amount of compensation otherwise
recoverable by Landlord from the taking authority.
ARTICLE XV
DEFAULT
15.1 TENANT'S DEFAULT. This Lease and the term of this Lease are subject to
the limitation that Tenant shall be in default if, at any time during
the Lease Term, any one or more of the following events (herein called
an "Event of
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Default" a "default of Tenant" or similar reference) shall occur and
not be cured prior to the expiration of the grace period (if any)
herein provided, as follows:
(a) Tenant shall fail to pay any installment of the
Annual Fixed Rent, or any Additional Rent or any
other monetary amount due under this Lease on or
before the date on which the same becomes due and
payable, and such failure continues for seven (7)
days after notice from Landlord thereof; or
(b) Landlord having rightfully given the notice specified
in (a) above to Tenant three (3) times in any twelve
(12) month period, Tenant shall fail thereafter to
pay the Annual Fixed Rent, Additional Rent or any
other monetary amount due under this Lease on or
before the date on which the same becomes due and
payable; or
(c) Tenant shall fail to perform or observe some term or
condition of this Lease which, because of its
character, would immediately jeopardize Landlord's
interest (such as, but without limitation, failure to
maintain general liability insurance, or the
employment of labor and contractors within the
Premises which interfere with Landlord's work, in
violation of Section 4.3 or Section 9.3), and such
failure continues for three (3) days after notice
from Landlord to Tenant thereof; or
(d) Tenant shall fail to perform or observe any other
requirement, term, covenant or condition of this
Lease (not hereinabove in this Section 15.1
specifically referred to) on the part of Tenant to be
performed or observed and such failure shall continue
for thirty (30) days after notice thereof from
Landlord to Tenant, or if said default shall
reasonably require longer than thirty (30) days to
cure, if Tenant shall fail to commence to cure said
default within thirty (30) days after notice thereof
and/or fail to continuously prosecute the curing of
the same to completion with due diligence; or
(e) The estate hereby created shall be taken on execution
or by other process of law; or
(f) Tenant shall make an assignment or trust mortgage
arrangement, so-called, for the benefit of its
creditors; or
(g) Tenant shall judicially be declared bankrupt or
insolvent according to law; or
(h) a receiver, guardian, conservator, trustee in
involuntary bankruptcy or other similar officer is
appointed to take charge
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of all or any substantial part of Tenant's property
by a court of competent jurisdiction; or
(i) any petition shall be filed against. Tenant in any
court, whether or not pursuant to any statute of the
United States or of any State, in any bankruptcy,
reorganization, composition, extension, arrangement
or insolvency proceeding, and such proceedings shall
not be fully and finally dismissed within sixty (60)
days after the institution of the same; or
(j) Tenant shall file any petition in any court, whether
or not pursuant to any statute of the United States
or any State, in any bankruptcy, reorganization,
composition, extension, arrangement or insolvency
proceeding; or
(k) Tenant otherwise abandons the Premises.
15.2 TERMINATION; RE-ENTRY. Upon the happening of any one or more of the
aforementioned Events of Default (notwithstanding any license of a
former breach of covenant or waiver of the benefit hereof or consent in
a former instance), Landlord or Landlord's agents or servants may give
to Tenant a notice (hereinafter called "notice of termination")
terminating this Lease on a date specified in such notice of
termination (which shall be not less than five (5) days after the date
of the mailing of such notice of termination), and this Lease and the
Lease Term, as well as any and all of the right, title and interest of
the Tenant hereunder, shall wholly cease and expire on the date set
forth in such notice of termination in the same manner and with the
same force and effect as if such date were the date originally
specified herein for the expiration of the Lease Term, and Tenant shall
then quit and surrender the Premises to Landlord.
In addition or as an alternative to the giving of such notice of
termination, Landlord or Landlord's agents or servants may, by any
suitable action or proceeding at law, immediately or at any time
thereafter re-enter the Premises and remove therefrom Tenant, its
agents, employees, servants, licensees, and any subtenants and other
persons, and all or any of its or their property therefrom, and
repossess and enjoy the Premises, together with all additions,
alterations and improvements thereto; but, in any event under this
Section 15.2, Tenant shall remain liable as hereinafter provided.
The words "re-enter" and "re-entry" as used throughout this Article XV
are not restricted to their technical legal meanings.
15.3 CONTINUED LIABILITY; RE-LETTING. If this Lease is terminated or if
Landlord shall re-enter the Premises as aforesaid, or in the event of
the termination of this Lease, or of re-entry, by or under any
proceeding or action or any provision of law by reason of an Event of
Default hereunder on the part of Tenant, Tenant covenants and agrees
forthwith to pay and be liable
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for, on the days originally fixed herein for the payment thereof,
amounts equal to the several installments of Annual Fixed Rent, all
Additional Rent and other charges reserved as they would, under the
terms of this Lease, become due if this Lease had not been terminated
or if Landlord had not entered or re-entered, as aforesaid, arid
whether the Premises be relet or remain vacant, in whole or in part, or
for a period less than the remainder of the Lease Term, or for the
whole thereof, but, in the event the Premises be relet by Landlord,
Tenant shall be entitled to a credit in the net amount of rent and
other charges received by Landlord in reletting, after deduction of all
reasonable expenses incurred in reletting the Premises (including,
without limitation, remodeling costs, brokerage fees and the like), and
in collecting the rent in connection. therewith, in the following
manner:
Amounts received by Landlord after reletting shall first be applied
against such Landlord's expenses, until the same are recovered, and
until such recovery, Tenant shall pay, as of each day when a payment
would fall due under this Lease, the amount which Tenant is obligated
to pay under the terms of this Lease (Tenants liability prior to any
such reletting and such recovery not in any way to be diminished as a
result of the fact that such reletting might be for a rent higher than
the rent provided for in this Lease); when and if such expenses have
been completely recovered, the amounts received from reletting by
Landlord as have not previously been applied shall be credited against
Tenant's obligations as of each day when a payment would fall due under
this Lease, and only the net amount thereof shall be payable by Tenant.
Further, Tenant shall not be entitled to any credit of any kind for any
period after the date when the term of this Lease is scheduled to
expire according to its terms.
15.4 LIQUIDATED DAMAGES. Landlord may elect, as an alternative, to have
Tenant pay liquidated damages, which election may be made by notice
given to Tenant at any time after the termination of this Lease under
Section 15.2, above, and whether or not Landlord shall have collected
any damages as hereinbefore provided in this Article XV, and in lieu of
all other such damages beyond the date of such notice. Upon such
notice, Tenant shall promptly pay to Landlord, as liquidated damages,
in addition to any damages collected or due from Tenant from any period
prior to such notice, such a sum as at the time of such notice
represents the amount of the excess, if any, of (a) the discounted
present value, at a discount rate of 6%, of the Annual Fixed Rent,
Additional Rent and other charges which would have been payable by
Tenant under this Lease for the remainder of the Lease Term if the
Lease terms had been fully complied with by Tenant, over and above (b)
the discounted present value, at a discount rate of 6%, of the Annual
Fixed Rent, Additional Rent and other charges that would be received by
Landlord if the Premises were re-leased at the time of such notice for
the remainder of the Lease Term at the fair market value (including
provisions regarding periodic increases in Annual Fixed Rent if such
are applicable) prevailing at the time of such notice.
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For the purposes of this Article, if Landlord elects to require Tenant
to Pay liquidated damages in accordance with this Section 15.4, the
total rent shall be computed by assuming Tenants share of real estate
taxes under Section 6.1 and Tenant's Operating Cost Payments under
Section 7.4 to be the same as were payable for the twelve (12) calendar
months (or if less than twelve (12) calendar months have been elapsed
since the date hereof, the partial year) immediately preceding such
termination of re-entry.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency 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 proceeds in which, the damages are to be
proved, whether or not the amount be greater, equal to, or less than
the amount of the loss or damages referred to above.
15.5 WAIVER OF REDEMPTION. Tenant, for itself and any and all persons
claiming through or under Tenant, including its creditors, upon the
termination of this Lease and of the term of this Lease in accordance
with the terms hereof, after the expiration of applicable notice and
cure periods, or in the event of entry of judgment for the recovery of
the possession of the Premises in any action or proceeding, or if
Landlord shall enter the Premises by process of law or otherwise,
hereby waives any right of redemption provided or permitted by any
statute, law or decision now or hereafter in force, and does hereby
waive, surrender and give up all rights or privileges which it or they
may or might have under and by reason of any present or future law or
decision, to redeem the Premises or for a continuation of this Lease
for the term of this Lease hereby demised after having been
dispossessed or ejected therefrom by process of law, or otherwise.
15.6 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty
(30) days, or such additional time as is reasonably required to correct
any such default, after notice by Tenant to Landlord properly
specifying wherein Landlord has failed to perform any such obligation.
ARTICLE XVI
BANKRUPTCY OR INSOLVENCY
16.1 CHAPTER 7 PROCEEDINGS. If the Tenant shall become a debtor under
Chapter 7 of the Bankruptcy Code and Tenant's trustee or Tenant shall
elect to assume this Lease for the purpose of assigning the same or
otherwise, such election and assignment may be made only if all of the
provisions of Sections 16.2 and 16.4 of this Article XVI are satisfied.
If Tenant or Tenant's trustee shall fail to elect to assume this Lease
within sixty (60) days after the filing of a petition, or such
additional time as provided by the court within
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such 60-day period, this Lease shall be deemed to have been rejected.
Immediately thereupon, Landlord shall be entitled to possession of the
Premises without further obligation to Tenant or Tenant's trustee and
this Lease shall terminate, but Landlord's right to be compensated for
damages (including, without limitation, damages pursuant to Article
XV), in any such proceeding shall survive.
16.2 CHAPTER 11 PROCEEDINGS. If a petition for reorganization or adjustment
of debts is filed concerning Tenant under Chapter 11 of the Bankruptcy
Code, or a proceeding is filed under Chapter 7 of the Bankruptcy Code
and is transferred to Chapter 11, Tenant's trustee or Tenant, as
debtor-in-possession, must elect to assume this Lease within the
earlier of (i) confirmation of the plan and (ii) one hundred twenty
(120) days from the date of the filing of the petition under Chapter 11
or such transfer thereto or Tenants trustee or Tenant, as
debtor-in-possession, shall be deemed to have rejected this Lease. If
Tenant's trustee or Tenant, as debtor-in-possession, has failed to
perform all of Tenant's obligations under this Lease within the time
periods (excluding grace periods) required for such performance, no
election by Tenant's trustee or by Tenant, as debtor-in-possession, to
assume this Lease, whether under Chapter 7 or Chapter 11, shall be
effective unless each of the following conditions has been satisfied:
(a) Tenants trustee or Tenant, as debtor-in-possession,
has cured, or has provided Landlord with Assurance
(hereinafter defined) that it will cure (i) all
monetary defaults under this lease within ten (10)
days from the date of such assumption, and (ii) all
nonmonetary defaults under this lease within thirty
(30) days from the date of such assumption; and
(b) Tenants trustee or Tenant, as debtor-in-possession,
has provided Landlord with Assurance of the future
performance of each of the obligations under this
Lease of Tenant, Tenant's trustee or Tenant, as
debtor-in-possession, and has (i) deposited with
Landlord, as security for the timely payment of rent
hereunder, an amount equal to one annual installment
of Annual Fixed Rent which Tenant was obligated to
pay to Landlord under this Lease during the Lease
Year in which such default occurred, and (ii) paid in
advance to Landlord Tenant's annual obligations for
Additional Rent and all other monetary charges
payable by Tenant under this Lease. The obligations
imposed upon Tenant's trustee or Tenant, as debtor-in
possession, shall continue with respect to Tenant or
any assignee of Tenant's interests in this Lease
after the completion of bankruptcy proceedings.
For purposes of this Section 16.2, Landlord and Tenant acknowledge that
"Assurance" shall mean no less than: (i) Tenant's trustee or Tenant, as
debtor-in-possession, has and will continue to have sufficient
unencumbered
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assets after the payment of all secured obligations and administration
expenses to assure Landlord that sufficient funds will be available to
fulfill the obligations of Tenant under this Lease, and (ii) the
Bankruptcy Court shall have entered an order segregating sufficient
cash payment to Landlord, or Tenant's trustee or Tenant, as
debtor-in-possession, or shall have granted a valid and perfected first
lien and security interest and mortgage in property of Tenant,
acceptable as to value and kind to Landlord, to secure to Landlord the
obligation of Tenant's trustee or Tenant, as debtor-in-possession, to
cure defaults under this Lease, both monetary and nonmonetary, within
the time period set forth above.
16.3 BANKRUPTCY EVENT FOLLOWING LEASE ASSUMPTION. If this Lease is assumed
in accordance with the provisions of Section 16.2 and thereafter Tenant
is liquidated or files or has filed against it a subsequent petition
for reorganization or adjustment of debts under Chapter 11 of the
Bankruptcy Code, Landlord may, at its option, terminate this Lease and
all rights of Tenant hereunder, by giving Tenant notice of its election
to so terminate within thirty (30) days after the occurrence of either
of such events.
16.4 LEASE ASSIGNMENT FOLLOWING LEASE ASSUMPTION. If Tenant's trustee or
Tenant, as debtor-in-possession, has assumed this Lease pursuant to the
terms and provisions of Sections 16.1 and 16.2 of this Article for the
purpose of assigning (or elects to assign) this Lease, this Lease may
be so assigned only if the proposed assignee has provided adequate
assurance of future performance of all of the terms, covenants and
conditions of this Lease to be performed by Tenant. Landlord shall be
entitled to receive all cash proceeds of any such assignment. As used
herein, "adequate assurance of future performance" shall mean that all
of the following conditions have been satisfied:
(a) the proposed assignee has furnished Landlord with
either (i) a current financial statement audited by a
certified public accountant indicating a net worth
and working capital in amounts which Landlord
reasonably determines to be sufficient to assure the
future performance by such assignee of Tenants
obligations under this Lease, or (ii) a guaranty or
guaranties in form and substance satisfactory to
Landlord from one or more persons or entities with
aggregate net worth which Landlord reasonably
determines to be sufficient to assure the future
performance by such assignee of Tenant's obligations
under this Lease; and
(b) Landlord has obtained all consents or waivers from
others required under any lease, mortgage, financing
agreement or other agreement by which Landlord is
bound to permit Landlord to consent to such
assignment.
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16.5 USE AND OCCUPANCY CHARGES. When, pursuant to the Bankruptcy Code,
Tenant's trustee or Tenant, as debtor-in-possession, shall be obliged
to pay reasonable use and occupancy charges for the use of the
Premises, such charges shall not be less than the Annual Fixed Rent
which Tenant is obligated to pay to Landlord under this Lease, plus all
Additional Rent and all other monetary charges payable by Tenant under
this Lease.
16.6 FURTHER PROVISIONS. Neither the whole nor any portion of Tenant's
interest in this Lease or its estate in the Premises shall pass to any
United States trustee, receiver, assignee for the benefit of creditors,
or any other person or entity, or otherwise by operation of law under
the laws of any state having jurisdiction of the person of property of
Tenant, unless Landlord shall have consented to such transfer in
writing. No acceptance by Landlord of rent or any other payments from
any United States trustee, receiver, assignee, person or other entity
shall be deemed to constitute such consent by Landlord, nor shall it be
deemed a waiver of Landlord's right to terminate this Lease for any
transfer of Tenant's interest under this Lease without such consent.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 WAIVER. Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long the
same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of its rights hereunder.
Further, no waiver at any time of any of the provisions hereof by
Landlord or Tenant shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver at any subsequent time of the
same provisions. The consent or approval of Landlord or Tenant to or of
any action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's or Tenant's consent
or approval to or of any subsequent similar act by the other. .
No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due .from Tenant to Landlord shall be treated otherwise
than as a payment on account. The acceptance by Landlord of a check for
a lesser amount with an endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in
full, shall be given no effect, and Landlord may accept such check
without prejudice to any other rights or remedies which Landlord may
have against Tenant. Further, the acceptance by Landlord of Annual
Fixed Rent, Additional Rent or any other charges paid by Tenant under
this Lease shall not be or be deemed to be a waiver by Landlord of any
default by Tenant, whether or not
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Landlord knows of such default, except for such defaults as to which
such payment relates.
17.2 CUMULATIVE REMEDIES. The specific remedies to which Landlord and Tenant
may resort under the terms of this Lease are cumulative and are not
intended to be exclusive of any other remedies or means of redress
which they may be lawfully entitled to seek in case of any breach or
threatened breach 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 seek specific performance of any such covenants, conditions
or provisions, provided, however, that the foregoing shall not be
construed as a confession of judgment by Tenant.
17.3 QUIET ENJOYMENT. Landlord agrees that, upon Tenant's paying the Annual
Fixed Rent, Additional Rent and other charges herein reserved, and
performing and observing the covenants, conditions and agreements
hereof upon the part of Tenant to be performed and observed, Tenant
shall and may peaceably hold and enjoy the Premises during the term of
this Lease, without interruption or disturbance from Landlord or
persons claiming through or under Landlord, subject, however, to the
terms of this Lease. This covenant shall be construed as running with
the land to and against subsequent owners and successors in interest,
and is not, nor shall it operate or be construed as, a personal
covenant of Landlord, except to the extent of the Landlord's interest
in the Premises, and this covenant and any and all other covenants of
Landlord contained in this Lease shall be binding upon Landlord and
upon such subsequent owners and successors in interest of Landlord's
interest under this Lease, to the extent of their respective interests,
as and when they shall acquire same and then only for so long as they
shall retain such interest.
17.4 SURRENDER. (A) No act or thing done by Landlord during the Lease Term
shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such surrender shall be valid, unless in writing
signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Premises as an
acceptance of a surrender of the Premises prior to the termination of
this Lease; provided, however, that the foregoing shall not apply to
the delivery of keys to Landlord or its agents in its (or their)
capacity as managing agent or for purpose of emergency access. In any
event, however, the delivery of keys to any employee of Landlord or of
Landlord's agents shall not operate as a termination of the lease or a
surrender of the Premises.
(B) Upon the expiration or earlier termination of the Lease Term,
Tenant shall surrender the Premises to Landlord in the condition as
required by Sections 8.1 and 9.5, first removing all goods and effects
of Tenant and completing such other removals as may be permitted or
required pursuant to Section 9.5.
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17.5 BROKERAGE. (A) Tenant warrants and represents that Tenant has not dealt
with any broker in connection with the consummation of this Lease other
than the Recognized Brokers designated in Section 1.2 hereof; and in
the event any claim is made against the Landlord relative to dealings
with brokers other than the Recognized Brokers designated in Section
1.2 hereof, Tenant shall defend the claim against Landlord with counsel
of Landlord's selection and save harmless and indemnify Landlord on
account of loss, cost or damage which may arise by reason of such
claim.
(B) Landlord warrants and represents that Landlord has not dealt with
any broker in connection with the consummation of this Lease other than
the Recognized Brokers designated in Section 1.2 hereof; and in the
event any claim is made against the Tenant relative to dealings by
Landlord with parties other than the Recognized Brokers designated in
Section 1.2 hereof, Landlord shall defend the claim against Tenant with
counsel of Landlord's selection, subject to approval by Tenant which
shall not be unreasonably withheld, and save harmless and indemnify
Tenant on account of loss, cost or damage which may arise by reason of
such claim. Landlord agrees that it shall be solely responsible for the
payment of brokerage commissions to the Recognized Brokers designated
in Section 1.2 hereof.
17.6 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
17.7 PROVISIONS BINDING, ETC. The obligations of this Lease shall run with
the land, and except as herein otherwise provided, the terms hereof
shall be binding upon and shall inure to the benefit of the successors
and assigns, respectively, of Landlord and Tenant and, if Tenant shall
be an individual, upon and to his heirs, executors, administrators,
successors and assigns. Each term and each provision of this Lease to
be performed by Tenant shall be construed to be both a covenant and a
condition. The reference contained to successors and assigns of Tenant
is not intended to constitute a consent to assignment by Tenant, but
has reference only to those instances in which Landlord may have later
given consent to a particular assignment as required by the provisions
of Article XII hereof.
17.8 RECORDING. Each of Landlord and Tenant agree not to record the within
Lease, but each party hereto agrees, on the request of the other, to
execute a so-called Notice of Lease or short form lease in form
recordable and complying with applicable law and reasonably
satisfactory to Landlord's and Tenant's attorneys. In no event shall
such document set forth the rent or other charges payable by Tenant
under this Lease; and any such document
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shall expressly state that it is executed pursuant to the provisions
contained in this Lease, and is not intended to vary the terms and
conditions of this Lease.
17.9 NOTICES AND TIME FOR ACTION. Whenever, by the terms of this Lease,
notice shall or may be given either to Landlord or to Tenant, such
notices shall be in writing and shall be sent by hand, registered or
certified mail, or overnight or other commercial courier, postage or
delivery charges, as the case may be, prepaid as follows:
If intended for Landlord, addressed to Landlord 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 Landlord by like notice).
If intended for Tenant, addressed to Tenant at the address set
forth on the first page of this Lease except that from and
after the Commencement Date the address of Tenant shall be the
Premises (or to such other address or addresses as may from
time to time hereafter be designated by Tenant by like
notice).
Except as otherwise provided herein, all such notices shall be
effective when received; provided, that (i) if receipt is refused,
notice shall be effective upon the first occasion that such receipt is
refused or (ii) if the notice is unable to be delivered due to a change
of address of which no notice was given, notice shall be effective upon
the date such delivery was attempted.
Where provision is made for the attention of an individual or
department, the notice shall be effective only if the wrapper in which
such notice is sent is addressed to the attention of such individual or
department.
Time is of the essence with respect to any and all notices and periods
for giving of notice or taking any action thereto under this Lease.
17.10 WHEN LEASE BECOMES BINDING. Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or
undertaking in connection herewith. 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. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and may be modified or altered only by written
agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
17.11 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained
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therein shall in no way be held to explain, modify, amplify or aid in
the interpretation, construction or meaning of the provisions of this
Lease.
17.12 RIGHTS OF MORTGAGEE. This Lease shall be subject and subordinate to any
mortgage now or hereafter on the Site or the Building, or both, and to
all renewals, modifications, consolidations, replacements and
extensions thereof and all substitutions therefor, provided that the
holder of such mortgage agrees to recognize the right of Tenant to use
and occupy the Premises upon the payment of rent and other charges
payable by Tenant under this Lease and the performance by Tenant of
Tenant's obligations hereunder. In confirmation of such subordination
and recognition, Tenant shall execute and deliver promptly such
instruments of subordination as such mortgagee may reasonably request,
subject to receipt of such instruments of recognition from such
mortgagee as Tenant may reasonably request. In the event that any
mortgagee or its respective successor in title shall succeed to the
interest of Landlord, then this Lease shall nevertheless continue in
full force and effect and Tenant shall and does hereby agree to attorn
to such mortgagee or successor and to recognize such mortgagee or
successor as its landlord. If any holder of a mortgage which includes
the Premises, executed and recorded prior to the Date of this Lease,
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, delivered and recorded, or a
statutory Notice hereof recorded, prior to the execution, delivery and
recording of any such mortgage. The election of any such holder shall
become effective upon either notice from such holder to Tenant in the
same fashion as notices from Landlord to Tenant are to be given
hereunder or by the recording in the appropriate registry or recorder's
office of an instrument in which such holder subordinates its rights
under such mortgage to this Lease.
If in connection with obtaining financing for the Demised Premises a
bank, insurance company, pension trust or other institutional lender
shall request reasonable modifications in this Lease as a condition to
such financing, Tenant will not unreasonably withhold, delay or
condition its consent thereto, provided that such modifications do not
increase the monetary obligations of Tenant hereunder or materially
adversely affect the leasehold interest hereby created or Tenant's
rights hereunder.
17.13 RIGHTS OF GROUND LESSOR. If Landlord's interest in property (whether
land only or land and buildings) which includes the Premises is
acquired by another party and simultaneously leased back to Landlord
herein, the holder of the ground lessor's interest in such lease shall
enter into a recognition agreement with Tenant simultaneously with the
sale and leaseback, wherein the ground lessor will agree to recognize
the right of Tenant to use and occupy the Premises upon the payment of
Annual Fixed Rent, Additional Rent and other charges payable by Tenant
under this Lease and the performance by Tenant of Tenant's obligations
hereunder, and wherein Tenant shall agree to attorn to such ground
lessor as its Landlord and to
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perform and observe all of the tenant obligations hereunder, in the
event such ground lessor succeeds to the interest of Landlord hereunder
under such ground lease.
17.14 NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving notice from any
person, firm or other entity 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 Premises, no notice from Tenant
to Landlord shall be effective unless and until a copy of the same is
given to such holder or ground lessor at the address as specified in
said notice (as it may from time to time be changed), and the curing of
any of Landlord's defaults by such holder or ground lessor within a
reasonable time after such notice (including a reasonable time to
obtain possession of the premises if the mortgagee or ground lessor
elects to do so) shall be treated as performance by Landlord. For the
purposes of this Section 17.14, the term "mortgage" includes a mortgage
on a leasehold interest of Landlord (but not one on Tenant's leasehold
interest).
17.15 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 and 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. In no event shall the acquisition of
title to the Building and the land on which the same
is located by a purchaser which, simultaneously
therewith, leases the entire Building or such land
back to the Seller thereof be treated as an
assumption, by operation of law or otherwise, of
Landlord's obligations hereunder, but Tenant shall
look solely to such seller-lessee, and its successors
from time to time in title, for performance of
Landlord's obligations hereunder. In any such event,
this Lease shall be subject and subordinate to the
lease to such purchaser provided that such
purchaser-lessor agrees to recognize the right of
Tenant to use and occupy the Demised Premises upon
the payment of rent and all other charges
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payable by Tenant under this Lease and the
performance by Tenant of Tenant's obligations under
this Lease. For all purposes, such seller-lessee, and
its successors in title, shall be the landlord
hereunder unless and until Landlord's position shall
have been assumed by such purchaser-lessor.
17.16 STATUS REPORT. Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees or
the like, the then current status of performance hereunder, either
party, on the request of the other made from time to time, will
promptly furnish to Landlord, or the holder of any mortgage encumbering
the Premises, or to Tenant, as the case may be, a statement of the
status of any matter pertaining to this Lease, including, without
limitation, acknowledgments that (or the extent to which) each party is
in compliance with its obligations under the terms of this Lease. Any
such statement delivered by Tenant or Landlord pursuant to this Section
17.16 may be relied upon by any prospective purchaser or mortgagee of
the Premises or any prospective assignee of any mortgagee of the
Premises or by any other party f6r whom Landlord or Tenant may require
such statement.
17.17 LANDLORD'S SELF-HELP. (A) If Tenant shall at any time fail to make any
payment or perform any act which Tenant is obligated to make or perform
under this Lease and (except in the case of emergency) if the same
continues unpaid or unperformed beyond applicable grace periods, then
Landlord may, but shall not be obligated so to do, after ten (10) days'
notice to and demand upon Tenant, or without notice to or demand upon
Tenant in the case of any emergency, and without waiving, or releasing
Tenant from, any obligations of Tenant in this Lease contained, make
such payment or perform such act which Tenant is obligated to perform
under this Lease in such manner and to such extent as may be reasonably
necessary, and, in exercising any such rights, pay any costs and
expenses, employ counsel and incur and pay reasonable attorneys' fees.
All sums so paid by Landlord and all reasonable and necessary costs and
expenses of Landlord incidental thereto, together with interest thereon
at the annual rate equal to the sum of (a) the Base Rate from time to
time announced by Bank of Boston as its Base Rate and (b) two percent
(2%), from the date of the making of such expenditures by Landlord,
shall be deemed to be Additional Rent and, except as otherwise in this
Lease expressly provided, shall be payable to the Landlord on demand,
and if not promptly paid shall be added to any rent then due or
thereafter becoming due under this Lease, and Tenant covenants to pay
any such sum or sums with interest as aforesaid, and Landlord shall
have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of the non-payment thereof by Tenant
as in the case of default by Tenant in the payment of Annual Fixed
Rent.
(B) TENANT'S SELF-HELP. In the event Landlord fails to make such
repairs as are required of Landlord under Sections 7.1 or 7.2 or to
perform any other obligations of Landlord hereunder within thirty (30)
days after
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written notice from Tenant to Landlord and to the holder of any
mortgage on the Property of which Tenant has been given written notice
by Landlord specifying the nature of such repairs or other obligations
or if such repairs or other obligations are of the type which cannot be
made or performed within such thirty (30) days, then if Landlord or the
holder of any such mortgage (at the option of such mortgagee) fails to
(i) commence making such repairs within thirty (30) days after such
written notice from Tenant and (ii) thereafter prosecute such repairs
or other obligations to completion with due diligence given the nature
of such repairs or other obligations, then thereafter at any time prior
to Landlord's commencing such repairs or other obligations, Tenant may,
but need not, make such repairs or perform such other obligations and
may make a demand on Landlord for payment of the reasonable cost
thereof. If within thirty (30) days after receipt of such demand,
Landlord shall not have paid same, then Tenant shall have the right to
bring suit in a court of competent jurisdiction in the Commonwealth of
Massachusetts seeking payment of the sum so claimed in Tenant's demand.
However, in no event shall Tenant have the right to offset against,
withhold or deduct from Annual Fixed Rent, or any Additional Rent or
other charges payable under this Lease nor shall Landlord's failure to
pay Tenant's demand be a default of Landlord or give Tenant the right
to terminate this Lease, Tenant's right being to bring suit as
aforesaid.
17.18 HOLDING OVER. Any holding over by Tenant after the expiration of the
term of this Lease shall be treated as a tenancy at sufferance at one
hundred fifty percent (150%) of the rents and other charges herein
(prorated on a daily basis) and shall otherwise be on the terms and
conditions set forth in this Lease, as far as applicable; provided,
however, that neither the foregoing nor any other term or provision of
this Lease shall be deemed to permit Tenant to retain possession of the
Premises or hold over in the Premises after the expiration or earlier
termination of the Lease Term.
17.19 ENTRY BY LANDLORD. Landlord, and its duly authorized representatives,
shall, upon reasonable prior notice (except in the case of emergency),
have the right to enter the Premises at all reasonable times (except at
any time in the case of emergency) for the purposes of inspecting the
condition of same and making such repairs, alterations, additions or
improvements thereto as may be necessary if Tenant fails to do so as
required hereunder (but the Landlord shall have no duty whatsoever to
make any such inspections, repairs, alterations, additions or
improvements except as otherwise provided in Sections 4.2, 4.3, 7.1 and
7.2), and to show the Premises to prospective tenants during the twelve
(12) months preceding expiration of the term of this Lease as it may
have been extended and at any reasonable time during the Lease Term to
show the Premises to prospective purchasers and mortgagees.
17.20 TENANT'S PAYMENTS. Each and every payment and expenditure, other than
Annual Fixed Rent, shall be deemed to be Additional Rent hereunder,
whether or not the provisions requiring payment of such amounts
specifically
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so state, and shall be payable, unless otherwise provided in this
Lease, within ten (10) days after written demand by Landlord, and in
the case of the non-payment of any such amount, Landlord shall have, in
addition to all of its other rights and remedies, all the rights and
remedies available to Landlord hereunder or by law in the case of
non-payment of Annual Fixed Rent. Unless expressly otherwise provided
in this Lease, the performance and observance by Tenant of all the
terms, covenants and conditions of this Lease to be performed and
observed by Tenant shall be at Tenant's sole cost and expense.
17.21 LATE PAYMENT. If Landlord shall not have received any payment or
installment of rent on or before that date which is five (5) days
following the date on which the same first becomes payable under this
Lease (the "Due Date"), the amount of such payment or installment shall
bear interest from the Due Date through and including the date such
payment or installment is received by Landlord, at a rate equal to the
lesser of (i) the rate announced by The First National Bank of Boston
from time to time as its prime or base rate (or if such rate is no
longer available, a comparable rate reasonably selected by Landlord),
plus two percent (20/o), or (ii) the maximum applicable legal rate, if
any. Such interest shall be deemed Additional Rent and shall be paid by
Tenant to Landlord upon demand.
17.22 COUNTERPARTS. This Lease may be executed in several counterparts, each
of which shall be deemed an original, and such counterparts shall
constitute but one and the same instrument.
17.23 ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
the parties hereto and affiliates of Landlord with respect to the
subject matter hereof and thereof and supersedes all prior dealings
between them with respect to such subject matter, and there are no
verbal or collateral understandings, agreements, representations or
warranties not expressly set forth in this Lease and such Agreement to
Lease. No subsequent alteration, amendment, change or addition to this
Lease shall be binding upon Landlord or Tenant, unless reduced to
writing and signed by the party or parties to be charged therewith.
17.24 LANDLORD LIABILITY. Tenant shall neither assert nor seek to enforce any
claim for breach of this Lease against any of Landlord's assets or the
assets of Landlord's beneficiary other than Landlord's interest in the
Property, and Tenant agrees to look solely to such interest in the
Property for the satisfaction of any liability of Landlord (or
Landlord's beneficiary) under this Lease, it being specifically agreed
that neither Landlord, nor any successor holder of Landlord's interest
hereunder, nor any beneficiary of any Trust of which any person from
time to time holding Landlord's interest is Trustee, nor any such
Trustee, shall ever be personally liable for any such liability. This
paragraph shall not limit any right that Tenant might otherwise have to
obtain injunctive relief against Landlord or Landlord's
successors-in-interest, or to take any other action which shall not
involve the personal liability of
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Landlord, or of any successor holder of Landlord's interest hereunder,
or of any beneficiary of any trust of which any person from time to
time holding Landlord's interest is Trustee, or of any such Trustee, to
respond in monetary damages from Landlord's assets other than
Landlord's interest in said Building, as aforesaid. In no event shall
Landlord ever be liable for any indirect or consequential damages.
17.25 NO PARTNERSHIP. The relationship of the parties hereto is that of
landlord and tenant and no partnership, joint venture or participation
is hereby created.
17.26 SECURITY DEPOSIT. Tenant shall deposit with Landlord upon the execution
of this Lease a total security deposit (herein sometimes called the
"Security Deposit") in the amount of Sixty Thousand Dollars
($60,000.00). The Security Deposit shall be paid (i) in cash or by wire
transfer to the account of Landlord (herein sometimes called the "Cash
Security Deposit") and/or (ii) by an irrevocable, unconditional
negotiable letter of credit (the "Letter of Credit") issued by and
drawn on a bank, and in a form acceptable to Landlord, for the account
of and payable to Landlord in such amount, which Letter of Credit shall
permit one or more draws thereunder to be made accompanied only by
certification by Landlord that pursuant to the terms of this Lease,
Landlord is entitled to apply such Letter of Credit and the proceeds
thereof to a default of Tenant or is otherwise entitled to the proceeds
thereof pursuant to the provisions of this Lease (herein sometimes
called the "Letter of Credit Security Deposit"). If the Letter of
Credit Security Deposit shall be utilized, the Letter of Credit shall
be for a term of two (2) years (or for one (1) year if the issuer
thereof regularly and customarily only issues letters of credit for a
maximum term of one (1) year) and shall in either case be renewed by
Tenant each year thereafter and each renewal shall be delivered to and
received by Landlord not later than thirty (30) days before the
expiration of the then current Letter of Credit (herein called a
"Renewal Presentation Date"). In the event of a failure to so deliver
such renewal Letter of Credit on or before the applicable Renewal
Presentation Date, Landlord shall be entitled to present the then
existing Letter of Credit for payment and to receive the proceeds
thereof. In the event of such a drawing under the Letter of Credit, the
proceeds thereof shall be added to and shall become a part of the Cash
Security Deposit.
The Cash Security Deposit (as it may be increased by the proceeds of
the Letter of Credit if drawn on as provided in the preceding
paragraph) and the Letter of Credit Security Deposit shall be held by
Landlord throughout the Term of this Lease (as it may be extended) as
security for the performance by Tenant of all obligations on the part
of Tenant to be performed under this Lease (which remain uncured
following applicable notice and cure periods) and may be applied by
Landlord on account of any defaults of Tenant under this Lease.
Landlord shall have the right from time to time without prejudice to
any other remedy Landlord may have on account thereof, to apply the
Cash Security Deposit and to draw upon and apply the proceeds of the
Letter
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of Credit Security Deposit (or any part thereof) to Landlord's damages
arising from any default on the part of Tenant.
Provided that Tenant is not then in default (without benefit of any
grace periods), on the expiration or earlier termination of the Lease
Term and on the surrender of possession of the Premises by Tenant to
Landlord at such time in the condition and manner provided for in this
Lease and by law, Landlord shall return to Tenant the Security Deposit
or so much thereof as shall not have theretofore been applied in
accordance with the terms of this Section 17.26.
While Landlord holds the Cash Security Deposit (or any other form or
type of the Security Deposit), Landlord shall have no obligation to pay
interest on the same and shall have the right to commingle the same
with Landlord's other funds. If Landlord conveys Landlord's interest
under this Lease, the Security Deposit, or any part thereof not
previously applied, shall be turned over by Landlord to Landlord's
grantee for proper application of the Security Deposit in accordance
with the terms of this Section 17.26 and the return thereof in
accordance herewith and said transferee shall acknowledge receipt of
the same in a writing delivered to Tenant.
Neither the holder of a mortgage nor the landlord in a ground lease on
property which includes the Premises shall ever be responsible to
Tenant for the return or application of any Security Deposit, whether
or not it succeeds to the position of Landlord hereunder, unless the
Security Deposit shall have been received in hand by such holder or
ground lessor.
If the Landlord uses or applies all or any portion of the Security
Deposit, Tenant shall within ten (10) days after written demand
therefor deposit cash with Landlord in an amount sufficient to restore
the Security. Deposit to the full amount required to be maintained by
Tenant under this Section 17.26.
17.27 Based on and except as set forth in the "Report" (hereinafter defined),
Landlord represents to Tenant that to the best of Landlord's actual
knowledge, as of the date of the Report there were no "Hazardous
Substances" (as defined in Section 11.2) on the Site which were
required to be removed therefrom or otherwise abated by "Hazardous
Substances Laws" (as defined in Section 11.2). The Report is that
certain "Report On Oil And Hazardous Material Site Evaluation, Cullinet
Software Inc., 25 to 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx" by
Xxxxx & Xxxxxxx, Inc., dated May, 1990 (File No. 10532-40). Landlord
has received no notices of violations of any Hazardous Substances Laws
from any governmental authority and Landlord has no actual knowledge of
any such violations.
17.28 Landlord warrants that Tenant's Premises in the Building and the
appurtenances thereto are subject to and with the benefit of the title
matters set forth in Exhibit F attached hereto. Further, Landlord
represents that the
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building systems serving the Premises are in good working order and
condition on the date of this Lease.
17.29 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the law of The Commonwealth of Massachusetts,
as the same may from time to time exist.
EXECUTED as a sealed instrument in two or more counterparts by persons
or officers hereunto duly authorized on the Date set forth in Section 1.2 above.
WITNESS: LANDLORD:
/s/ C.W. PROBET /s/ XXXXXXXX X. XXXXXXXXX
-------------------------------- -------------------------------------------
XXXXXXXX X. XXXXXXXXX, AS
TRUSTEE OF BEE EM ZEE TRUST,
BUT
NOT INDIVIDUALLY
TENANT:
SKY ROCK SERVICES CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: PRESIDENT (OR VICE PRESIDENT
ATTEST:
By. /s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------------- -------------------------------------------
Name: Xxxxxxx X. XxXxxxx Name: Xxxxxxx X. XxXxxxx
Title: SECRETARY(OR ASSISTANT Title: TREASURER (OR ASSISTANT
SECRETARY TREASURER
HEREUNTO DULY AUTHORIZED
(CORPORATE SEAL)
EXHIBIT A
That certain parcel of land situate in Westwood in the County of Norfolk and
said Commonwealth (with the building and improvements thereon) bounded and
described as follows:
SOUTHWESTERLY by Dartmouth Street, as shown on plan hereinafter referred to,
one hundred thirty (130) feet;
NORTHWESTERLY two hundred thirty four and 59/100 (234.59) feet, and
SOUTHWESTERLY ten (10) feet, by lot numbered 40, as indicated on said plan;
NORTHWESTERLY by lot numbered 36, as indicated on said plan, five hundred
twenty 520) feet;
NORTHEASTERLY by lot numbered 47, as indicated on said plan, three hundred
sixty (360) feet;
SOUTHEASTERLY by land now or formerly of Boston & Providence Railroad
Corporation, eight hundred sixteen and 65/100 (816.65) feet;
SOUTHWESTERLY by lot numbered 57, as shown on said plan, twenty (20) feet; and
NORTHWESTERLY two hundred (200) feet,
SOUTHWESTERLY two hundred (200) feet, and
SOUTHERLY one hundred thirty seven and 94/100 (137.94) feet, by land now or
formerly of Dedham Water Company.
Said parcel is shown as lot numbered 58 on a plan drawn by Pilling Engineering
Company Inc., surveyors, dated April 1, 1966, as approved by the Land Court,
filed in the Land Registration Office as No. 262940, a copy of a portion of
which is filed in Norfolk Registry District with Certificate No. 80244,
Book 402.
EXHIBIT E
BROKER DETERMINATION OF PREVAILING MARKET RENT
Where in the Lease to which this Exhibit is attached provision is made for
a Broker Determination of Prevailing Market Rent, the following procedures and
requirements shall apply:
1 TENANT'S REQUEST. Tenant shall send a notice to Landlord by the time set
for such notice in the applicable section of the Lease, requesting a Broker
Determination of the Prevailing Market Rent, which notice to be effective
must (i) make explicit reference to the Lease and to the specific section
of the Lease pursuant to which said request is being made, (ii) include the
name of a broker selected by Tenant to act for Tenant, which broker shall
be affiliated with a major Boston commercial real estate brokerage firm
selected by Tenant and which broker shall have at least ten (10) years
experience dealing in properties of a nature and type generally similar to
the Building located in the Boston West Suburban Market, and (iii)
explicitly state that Landlord is required to notify Tenant within thirty
(30) days of an additional broker selected by Landlord.
2. LANDLORD'S RESPONSE. Within thirty (30) days after Landlord's receipt of
Tenant's notice requesting the Broker Determination and stating the name of
the broker selected by Tenant, Landlord shall give written notice to Tenant
of Landlord's selection of a broker having at least the affiliation and
experience referred to above.
3. SELECTION OF THIRD BROKER. Within ten (10) days thereafter the two (2)
brokers so selected shall select a third such broker also having at least
the affiliation and experience referred to above.
4. RENTAL VALUE DETERMINATION. Within thirty (30) days after the selection of
the third broker, the three (3) brokers so selected, by majority opinion,
shall make a determination of the annual fair market rental value of the
Premises for the period referred to in the Lease. Such annual fair market
rental value determination (x) may include provision for annual increases
in rent during said term if so determined, (y) shall take into account the
as-is condition of the Premises and (z) shall take account of, and be
expressed in relation to, the tax and operating cost provisions of the
Lease and provisions for paying electricity as contained in the Lease. The
brokers shall advise Landlord and Tenant in writing by the expiration of
said thirty (30) day period of the annual fair market rental value which as
so determined shall be referred to as the Prevailing Market Rent.
5. RESOLUTION OF BROKER DEADLOCK. If the Brokers are unable to agree at least
by majority on a determination of annual fair market rental value, then the
brokers shall send a notice to Landlord and Tenant by the end of the thirty
(30) day period for making said determination setting forth their
individual
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determinations of annual fair market rental value, and the highest such
determination and the lowest such determination shall be disregarded and
the remaining determination shall be deemed to be the determination of
annual fair market rental value and shall be referred to as the Prevailing
Market Rent.
6. COSTS. Each party shall pay the costs and expenses of the broker selected
by it and each shall pay one half (1/2) of the costs and expenses of the
Third Broker.
7. FAILURE TO SELECT BROKER OR FAILURE OF BROKER TO SERVE. If Tenant shall
have requested a Broker Determination and Landlord shall not have
designated a broker within the time period provided therefor above, then
Tenant's Broker shall alone make the determination of Prevailing Market
Rent in writing to Landlord and Tenant within thirty (30) days after the
expiration of Landlord's right to designate a broker hereunder. If Tenant
and Landlord have both designated brokers but the two brokers so designated
do not, within a period of fifteen (15) days after the appointment of the
second broker, agree upon and designate the Third Broker willing so to act,
the Tenant, the Landlord or either broker previously designated may request
the Greater Boston Real Estate Board, Inc. to designate the Third Broker
willing so to act and a broker so appointed shall, for all purposes, have
the same standing and powers as though he had been seasonably appointed by
the brokers first appointed. In case of the inability or refusal to serve
of any person designated as a broker, or in case any broker for any reason
ceases to be such, a broker to fill such vacancy shall be appointed by the
Tenant, the Landlord, the brokers first appointed or the said Greater
Boston Real Estate Board, Inc., as the case may be, whichever made the
original appointment, or if the person who made the original appointment
fails to fill such vacancy, upon application of any broker who continues to
act or by the Landlord or Tenant such vacancy may be filled by the said
Greater Boston Real Estate Board, Inc. Any broker appointed by the Greater
Boston Real Estate Board, Inc., pursuant to the provisions hereof shall,
for all purposes, have the same standing and powers as though originally
appointed by the party originally designated to make such appointment by
the terms hereof.
EXHIBIT F
The title matters are those matters (and the terms and conditions thereof)
to which the Site is subject to and have the benefit of asset forth or referred
to in the Owner's Certificate of Title, a copy of which is attached hereto.
FIRST AMENDMENT TO LEASE
FIRSTAMENDMENT TO LEASE dated as of the 8th day of May, 1996, by and
between 00-00 XXXXXXXXX XXXXXX ASSOCIATES LIMITED PARTNERSHIP ("Landlord") and
STREAMLINE, INC. (formerly known as Sky Rock Services Corporation) ("Tenant").
RECITALS
By Lease dated August 18,1995 (the "Lease"), XXXXXXXX X. XXXXXXXXX, TRUSTEE
OF BEE EM ZEE TRUST u/d/t dated May 10, 1976 (the "Trust"), being a predecessor
in title to Landlord, did lease to Tenant and Tenant did lease from said
landlord 36,636 square feet of rentable floor area in the building (the
"Building") known as and numbered 00-00 Xxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxxxx (referred to in the Lease as the "Initial Premises") and
hereinafter sometimes referred to as the "Initial Premises". Landlord is a
successor in tide to the Trust and the beneficiary under the Trust.
Tenant has determined to lease from Landlord an additional 20,111 square
feet of rentable floor area (the "Rentable Floor Area of the Additional
Premises") in the Building, which space is shown on Exhibit A attached hereto
(hereinafter sometimes referred to as the "Additional Premises").
Landlord and Tenant are entering into this instrument to set forth said
leasing of the Additional Premises, to integrate the Additional Premises into
the Lease, and to amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration in hand this date paid by each of the parties to the
other, the receipt and sufficiency of which are hereby severally acknowledged,
and in further consideration of the mutual promises herein contained, Landlord
and Tenant hereby agree to and with each other as follows:
1. Effective May 1, 1996 (the "Additional Premises Commencement Date") the
Additional Premises shall constitute a part of the "Premises" demised to
Tenant under the Lease, so that the "Premises" (as defined and used in the
Lease), shall include both the Initial Premises and the Additional
Premises. Except only as specifically set forth in this Amendment, all
references in the Lease (as herein
-2-
amended) to the "Premises" shall mean all of the Initial Premises and the
Additional Premises.
2. (A) Landlord and Tenant acknowledge and agree that the Original Term of the
Lease for the Initial Premises commenced as set forth in Section 1.2 of the
Lease and expires on October 31, 2000 (being the last day of the sixtieth
(60th) full calendar month following the October 2, 1995 "Warehouse
Premises Commencement Date" as defined in said Section 1.2) unless extended
or sooner terminated as provided in the Lease as herein amended.
(B) The Original Term of the Lease for both the Initial Premises and the
Additional Premises shall be coterminous. Accordingly, the definition of
the "Original Term" of the Lease as set forth in Section 1.2 of the Lease
is hereby amended by adding thereto the following:
As to the Additional Premises, a period be inning on the Additional
Premises Commencement Date and ending on October 31, 2000 (being the
last day of the sixtieth (60th) full calendar month following the
October 2, 1995 "Warehouse Premises Commencement Date", as defined in
Section 1.2 of the Lease) unless extended or sooner terminated as
provided in the Lease as herein amended.
3. The extension option set forth in Section 3.2 of the Lease must be
exercised as to the entire Premises but not as to either the Initial
Premises or the Additional Premises separately.
4. The "Rentable Floor Area of the Premises" as defined and used in the Lease
as herein amended shall be 56,747 square feet (being the sum of the 36,636
square feet of Rentable Floor Area of the Initial Premises and the 20,111
square feet of Rentable Floor Area of the Additional Premises). In the
definition of "Rentable Floor Area of the Premises" and the definition of
"Premises", the words "or otherwise" shall be added at the end of each such
definition.
5. (a) Annual Fixed Rent for the Initial Premises at the annual rates set
forth in Section 1.2 of the Lease shall continue to be paid during the
Original Lease Term.
(b) Annual Fixed Rent for the Additional Premises during the Original
Term shall be payable as follows:
(i) for the calendar month of May, 1996, the monthly fixed rent shall
be $3,631.15; and
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(ii) for the calendar month of June, 1996, the monthly fixed rent
shall be $7,262.30; and
(iii) for the period beginning on July 1, 1996 and continuing for the
balance of the Original Term, Annual Fixed Rent shall be payable
at the annual rate of $130,721.50 (being the product of (x) $6.50
and (y) the 20,111 square feet of rentable floor area of the
Additional Premises), Such Annual Fixed Rent shall be payable in
the manner and at the times provided in the Lease.
(c) Annual Fixed Rent for the entire Premises (consisting of both the
Initial Premises and the Additional Premises) during the Extended Term
shall be payable as determined pursuant to Section 3.2 of the Lease (as
amended by this Amendment).
6. For the purposes of computing Tenants payments for Operating Expenses
pursuant to Sections 7.4 and 7.5 of the Lease and Tenant's payments for
real estate taxes pursuant to Article VI of the Lease, for the portion of
the Lease Term on and after the Additional Premises Commencement Date, the
"Rentable Floor Area of the Premises" shall comprise a total of 56,747
square feet (being the sum of the 36,636 square feet of Rentable Floor Area
of the Initial Premises and the 20,111 square feet of Rentable Floor Area
of the Additional Premises). For the portion of the Lease Term prior to the
Additional Premises Commencement Date, the Rentable Floor Area of the
Premises shall be the Rentable Floor Area of the Initial Premises for such
purposes.
7. The provisions of Article IV shall not apply to the Additional Premises.
Landlord shall replace the existing windows in the Building with new
thermopane, insulating glass windows as selected by Landlord. Landlord
agrees to use reasonable efforts to complete such work. The failure of
Landlord to complete such work on or prior to any particular date shall not
postpone, defer or otherwise affect the Additional Premises Commencement
Date or the Lease Term and shall not entitle Tenant to any abatement or
reduction of Annual Fixed Rent or additional rent or the right to withhold
or set off against Annual Fixed Rent or additional rent nor give rise to
any right to terminate the Lease.
8. (A) Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this First Amendment other
than the "Recognized Brokers" (defined in Section 1.2 of the Lease) and in
the event any claim is made against Landlord
-4-
relative to dealings by Tenant with brokers (other than the "Recognized
Brokers"), Tenant shall defend the claim against Landlord with counsel of
Tenant's selection first approved by Landlord (which approval will not be
unreasonably withheld) and save harmless and indemnify Landlord on account
of loss, cost or damage which may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any
broker in connection with the consummation of this First Amendment other
than the Recognized Brokers and in the event any claim is made against
Tenant relative to dealings by Landlord with brokers (other than the
"Recognized Brokers"), Landlord shall defend the claim against Tenant with
counsel of Landlord's selection and save harmless and indemnify Tenant on
account of loss, cost or damage which may arise by reason of such claim.
Landlord shall be responsible for such commission, if any, as may be due to
the Recognized Brokers.
(c) The provisions of this Section 8 shall survive the expiration or
termination of the Lease as herein amended.
9. Except as otherwise expressly provided herein, all capitalized terms used
herein without definition shall have the same meanings as are set forth in
the Lease.
10. Landlord and Tenant ratify and confirm the Lease (as herein amended) in all
respects and covenant and agree that except as herein amended the Lease is
and shall remain unchanged and in full force and effect. All references to
the "Lease" shall be deemed to be references to the Lease as herein
amended.
-5-
EXECUTED as a sealed instrument as of the date and year first above
written.
LANDLORD:
00-00 XXXXXXXXX XXXXXX
ASSOCIATES LIMITED
PARTNERSHIP
BY: BP DARTMOUTH STREET, INC.
WITNESS:
By: /s/ XXXXXX X. XXXXX
------------------------------
Name: XXXXXX X. XXXXX
----------------------------
/s/ [WITNESS] Title: PRESIDENT
-------------------- ---------------------------
HEREUNTO DULY AUTHORIZED
ATTEST: TENANT:
STREAMLINE, INC.
By: XXXXX X. XXXXXXXXX
--------------------
Name: XXXXX X. XXXXXXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------- ------------------------------
Title: SECRETARY-ASSISTANT Name: XXXXXXX X. XXXXXXX
---------------------- -----------------------------
Title: PRESIDENT & TREASURER
-----------------------------
HEREUNTO DULY AUTHORIZED
(CORPPRATE SEAL)
-1-
SECOND AMENDMENT TO LEASE
SECOND AMENDMENT TO LEASE dated as of the 14th day of May, 1997, by and
between 00-00 XXXXXXXXX XXXXXX ASSOCIATES LIMITED PARTNERSHIP ("Landlord") and
STREAMLINE, INC. (formerly known as Sky Rock Services Corporation) ("Tenant").
RECITALS
By Lease dated August 18, 1995 (the "Lease"), XXXXXXXX X. XXXXXXXXX,
TRUSTEE OF BEE EM ZEE TRUST u/d/t dated May 10, 1976 (the
"Trust"), being a predecessor in title to Landlord, did lease to
Tenant and Tenant did lease from said landlord 36,636 square feet
of rentable floor area in the building (the "Building") known as
and numbered 00-00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
(referred to in the Lease as the "Initial Premises") and
hereinafter sometimes referred to as the "Initial Premises."
Landlord is a successor in title to the Trust and the beneficiary
under the Trust.
By First Amendment to Lease dated May 8, 1996 (the "First Amendment")
Tenant leased from Landlord an additional 20,111 square feet of rentable floor
area (the "Rentable Floor Area of the Additional Premises") in the Building,
which space is shown on Exhibit A attached to such First Amendment (hereinafter
sometimes referred to as the "Additional Premises").
Tenant has determined to lease from Landlord an additional 10,469
square feet of rentable floor area (the "Rentable Floor Area of the
Second Additional Premises") in the Building, which space is shown on
Exhibit A attached hereto (hereinafter sometimes referred to as the
"Second Additional Premises").
Landlord and Tenant are entering into this instrument to set forth said
leasing of the Second Additional Premises, to integrate the Second
Additional Premises into the Lease, and to amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration in hand this date paid by each of the parties to the
other, the receipt and sufficiency of which are hereby severally acknowledged,
and in further consideration of the mutual promises herein contained, Landlord
and Tenant hereby agree to and with each other as follows:
1. Effective May 1, 1997 (the "Second Additional Premises Commencement Date")
the Second Additional Premises shall constitute a part of the "Premises"
demised to Tenant under the Lease, so that the "Premises" (as defined and
used in the Lease), shall include the Initial Premises, the Additional
Premises and the Second Additional Premises. Except only as
-2-
specifically set forth in this Second Amendment to Lease (the "Second
Amendment"), all references in the Lease to the "Premises" shall mean all
of the Initial Premises, the Additional Premises and the Second Additional
Premises.
2. The Original Term of the Lease for the Initial Premises, the Additional
Premises and the Second Additional Premises shall be coterminous.
Accordingly, the definition of the "Original Term" of the Lease as set
forth in Section 1.2 of the Lease as amended by Section 2 of the First
Amendment is hereby further amended by adding thereto the following:
As to the Second Additional Premises, a period beginning on the Second
Additional Premises Commencement Date and ending on October 31, 2000 unless
extended or sooner terminated as provided in the Lease as herein amended.
3. The extension option set forth in Section 3.2 of the Lease must be
exercised as to the Initial Premises, the Additional Premises and the
Second Additional Premises collectively but not as to any of such spaces
independently.
4. On and after the Second Additional Premises Commencement Date, the
"Rentable Floor Area of the Premises" as defined and used in the Lease
shall be 67,216 square feet (being the sum of the 36,636 square feet of
Rentable Floor Area of the Initial Premises, the 20,111 square feet of
Rentable Floor Area of the Additional Premises and the 10,469 square feet
of Rentable Floor Area of the Second Additional Premises).
5. (A) Annual Fixed Rent for the Initial Premises at the annual rates set
forth in Section 1.2 of the Lease shall continue to be paid during the
Original Lease Term.
(B) Annual Fixed Rent for the Additional Premises at the annual rates set
forth in Section 5 of the First Amendment, shall continue to be paid during
the Original Lease Term.
(C) Annual Fixed Rent for the Second Additional Premises during the
Original Term shall be payable at the annual rate of $68,049.00 (being the
product of (x) $6.50 and (y) the 10,469 square feet of rentable floor area
of the Second Additional Premises); provided, however, that Tenant shall
not be required to make payments of Annual Fixed Rent for the period from
the Second Additional Premises Commencement Date through August 31, 1997.
Notwithstanding that the payment of Annual Fixed Rent payable by Tenant for
the Second Additional Premises shall not commence until September 1, 1997
Tenant shall be
-3-
subject to and shall comply with, all other provisions of the Lease (as
amended) with respect to the Second Additional Premises as and of the times
provided in the Lease as amended.
(D) Annual Fixed Rent for the entire Premises (consisting of the Initial
Premises, the Additional Premises and the Second Additional Premises)
during the Extended Term shall be payable as determined pursuant to Section
3.2 of the Lease.
6. For the purposes of computing Tenant's payments for Operating Expenses
pursuant to Sections 7.4 and 7.5 of the Lease as amended by Section 6 of
the First Amendment and Tenant's payments for real estate taxes pursuant to
Article VI of the Lease as amended by Section 6 of the First Amendment, for
the portion of the Lease Term on and after the Second Additional Premises
Commencement Date, the "Rentable Floor Area of the Premises" shall comprise
a total of 67,216 square feet (being the sum of the 36,636 square feet of
Rentable Floor Area of the Initial Premises, the 20,111 square feet of
Rentable Floor Area of the Additional Premises and the 10,469 square feet
of Rentable Floor Area of the Second Additional Premises). For the portion
of the Lease Term prior to the Second Additional Premises Commencement
Date, the Rentable Floor Area of the Premises shall be as provided in the
Lease as amended by the First Amendment.
7. The provisions of Article IV shall not apply to the Second Additional
Premises. Landlord shall provide a handicap accessible bathroom and a
handicap accessible ramp to the main entrance of the Premises as more
particularly described on Exhibit B attached hereto. Landlord agrees to use
due diligence to complete such work on or before June 15, 1997, however,
the failure of Landlord to complete such work on or prior to June 15, 1997
shall not affect the Second Additional Premises Commencement Date or the
Lease Term and shall not entitle Tenant to any abatement or reduction of
Annual Fixed Rent or additional rent or the right to withhold or set off
against Annual Fixed Rent or additional rent nor give rise to any right to
terminate the Lease.
8. The Termination Option contained in Section 3.1.1 the Lease shall apply to
the Initial Premises, the Additional Premises and the Second Additional
Premises collectively and not to any of such spaces independently. Landlord
and Tenant hereby acknowledge and agree that the amount of "Tenant's
Termination Payment" (as defined in Section 3.1.1 of the Lease) shall be
$436,904.00 (being the product of (x) $6.50 and (y) the Rentable Floor Area
of the Premises (being 67,216 square feet)).
-4-
9. Sections 2.4 and 2.5 of the Lease are hereby deleted in their entirety and
Landlord and Tenant acknowledge and agree that Tenant has no further rights
thereunder.
10. (A) Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this Second Amendment other
than Xxxxxxxx & Grew, Incorporated (the "Broker") and in the event any
claim is made against Landlord relative to dealings by Tenant with brokers
(other than the Broker), Tenant shall defend the claim against Landlord
with counsel of Tenant's selection first approved by Landlord (which
approval will not be unreasonably withheld) and save harmless and indemnify
Landlord on account of loss, cost or damage which may arise by reason of
such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any
broker in connection with the consummation of this Second Amendment other
than the Broker and in the event any claim is made against Tenant relative
to dealings by Landlord with brokers (other than the Broker), Landlord
shall defend the claim against Tenant with counsel of Landlord's selection
and save harmless and indemnify Tenant on account of loss, cost or damage
which may arise by reason of such claim. Landlord shall be responsible for
such commission, if any, as may be due to the Broker.
(C) The provisions of this Section 10 shall survive the expiration or
termination of the Lease as herein amended.
11. Except as otherwise expressly provided herein, all capitalized terms used
herein without definition shall have the same meanings as are set forth in
the Lease.
12. Landlord and Tenant ratify and confirm the Lease (as herein amended) in all
respects and covenant and agree that except as herein amended the Lease is
and shall remain unchanged and in full force and effect. All references to
the "Lease" shall be deemed to be references to the Lease as amended by the
First Amendment and as herein amended.
EXECUTED as a sealed instrument as of the date and year first above
written.
LANDLORD:
00-00 XXXXXXXXX XXXXXX ASSOCIATES
LIMITED PARTNERSHIP
BY: BP DARTMOUTH STREET, INC.
WITNESS: By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: XXXXXX X. XXXXX
------------------------------------
/s/ [WITNESS] Title: PRESIDENT
------------------------ -----------------------------------
HEREUNTO DULY AUTHORIZED
[SIGNATURES CONTINUED ON NEXT PAGE]
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ATTEST: TENANT:
STREAMLINE, INC.
By: /s/ XXXXX X. XXXXXXXXX By: XXXXXXX X. XXXXXXX
---------------------- ---------------------
Name: XXXXX X. XXXXXXXXX Name: XXXXXXX X. XXXXXXX
---------------------- ---------------------
Title: SECRETARY Title: PRESIDENT AND TREASURER
---------------------- -----------------------
HEREUNTO DULY AUTHORIZED
(Corporate Seal)
