Revised 12/14/95
TENANT: CacheLink Corp.
LEASE OF
WESTBOROUGH OFFICE PARK
BUILDING FIVE
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx
TABLE OF CONTENTS
ARTICLE
NUMBER TITLE PAGE
I. DEFINITIONS 1
II. PREMISES AND APPURTENANT RIGHTS 3
III. BASIC RENT 5
IV. COMMENCEMENT AND CONDITION 7
V. USE OF PREMISES 10
VI. ASSIGNMENT AND SUBLETTING 12
VII. RESPONSIBILITY FOR REPAIRS AND CONDITION OF
PREMISES; SERVICES TO BE FURNISHED BY LANDLORD 14
VIII. REAL ESTATE TAXES 16
IX. OPERATING EXPENSES 18
X. INDEMNITY AND PUBLIC LIABILITY INSURANCE 19
XI. LANDLORD'S ACCESS TO PREMISES 22
XII. FIRE, EMINENT DOMAIN, ETC. 22
XIII. DEFAULT 24
XIV. MISCELLANEOUS PROVISIONS 27
14.1 Extra Hazardous Use 27
14.2 Waiver 27
14.3 Covenant of Quiet Enjoyment 28
14.4 Landlord's Liability 28
14.5 Transfer of Title 29
14.6 Rules and Regulations 29
14.7 Additional Charges 30
14.8 Invalidity of Particular Provisions 30
14.9 Provisions Binding, Etc. 30
14.10 Notices 30
14.11 When Lease Becomes Binding 31
14.12 Paragraph Headings 31
14.13 Rights of Mortgagee or Ground Lessor 31
14.14 Status Report 33
14.15 Remedying Defaults 33
14.16 Holding Over 33
14.17 Waiver of Subrogation 33
14.18 Surrender of Premises 34
14.19 Brokerage 34
14.20 Governing Law 34
EXHIBIT OC (Operating Costs)
EXHIBIT FP (Floor Plan)
EXHIBIT LP (Tenant's Layout Plan)
EXHIBIT LC (Letter of Credit)
EXHIBIT DC (Landlord's Draft and Certificate)
EXHIBIT B (Building Interior Finish Standards)
EXHIBIT C (Building Services)
EXHIBIT A (Description of Land Parcel)
EXHIBIT GL (Ground Lease)
EXHIBIT I (Payment Schedule for $173,500 Loan -
3-Year Term @ 10% Interest)
LEASE
THIS INSTRUMENT IS A LEASE, dated as of November 10, 1995 in which
the Landlord and the Tenant are the parties hereinafter named, and which
relates to space in the building (the "Building") known as Building Five
in the Westborough Office Park located at 0000 Xxxx Xxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx. The parties to this instrument hereby agree with each other as
follows:
ARTICLE I
DEFINITIONS
1.1 INTRODUCTION. The capitalized terms used in this Lease and listed in
this Article I shall have the definitions set forth in Section 1.2 and
1.3 below.
1.2 BASIC DATA.
Landlord: Westborough Associates Building Five Limited
Partnership, a Massachusetts limited partnership
Landlord's Original Address: c/o Xxxxxx Xxxxx Associates, 00
Xxxx Xxxxxx, Xxxxxx, XX 00000
Tenant: CacheLink Corp.
Tenant's Original Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Basic Rent: $209,745.00 ($15.33 per square foot of Premises
Rentable Area per annum) plus $42,551 ($3.11/s.f./yr) for amortization
of special leasehold improvements. Both of the above rates may be
adjusted and/or abated pursuant to Section 2.1.
Premises Rentable Area: Agreed to be 13,682 square feet.
Permitted Uses: General Office
Escalation Factor: 18.02%, as computed in accordance with the
Escalation Factor Computation.
Construction Completion Date: January 31, 1996
Tenant's Layout Plan: A plan dated November 27, 1995 and
attached to this Lease as Exhibit LP.
Intial Term: Three (3) years commencing on the Commencement Date and
expiring at the close of the day immediately preceding the third anniversary of
the Commencement Date, except that if the Commencement Date shall be other than
the first day of the calendar month, the expiration of the Initial Term shall be
at the close of the day on the last day of the calendar month in which such
anniversary shall fall.
Base Operating Expenses: Actual Operating Expenses
for calendar year 1995
Base Taxes: $81,000
Broker: Leggat XxXxxx/Xxxxx & Xxxxx, Inc.
The Codman Company, Inc.
1.3 ADDITIONAL DEFINITIONS.
Agent: Leggat XxXxxx Properties Management, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Building Rentable Area: Agreed to be 79,912 s.f.
Business Days: All days except Saturday, Sunday, New Year's Day,
President's Birthday, Patriot's Day, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day (and the following
day when any such day occurs on Sunday) and such other days that Tenant
presently or in the future recognizes as holidays for Tenant's general office
staff.
Commencement Date: As defined in Section 4.1.
Default of Tenant: As defined in Section 13.1.
Escalation Charges: The amounts payable by Tenant under Section 8.1 and
9.2 on account of Taxes and Operating Expenses.
Escalation Factor Computation: Premises Rentable Area divided by 95% of
Building Rentable Area.
Force Majeure: Collectively and individually, strike or other labor
trouble, fire and other casualty, governmental pre-emption of priorities or
other controls in connection with a national or other public emergency or
shortages of fuel, supplies of labor resulting therefrom, or any other cause,
whether similar or dissimilar, beyond Landlord's reasonable control.
Initial Public Liability Insurance: $1,000,000 per occurrence (combined
single limit) for property damage, bodily injury or death.
-2-
Land Parcel: The parcel of land in Westborough, Massachusetts, upon
which the Building is situated, shown as Lot 6 and Lot 6.1 on a certain plan
entitled "Compiled Plan of Land in Westborough, Massachusetts, (Worcester
County), Scale 1" = 50', dated April 19, 1988, by The BSC Group - Worcester,
Inc., 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx," which parcel is more
particularly described on Exhibit A attached to this Lease.
Landlord's Work: As defined in Section 4.2.
Office Park: The entire development known as Westborough Office Park in
which the Building is located and situated on approximately 137.9 acres of land
located at West Park Drive and Streets, Westborough, Massachusetts.
Operating Expenses: As defined in Section 9.1 and Exhibit OC.
Operating Year: As defined in Section 9.1.
Premises: A portion of the first floor of the Building as shown on
Exhibit FP annexed hereto.
Premises Useable Area: The carpetable area within the Premises.
Property: The Building and the Land Parcel (including all driveways,
parking areas and sidewalks).
Substantial Completion Date: As defined in Section 4.2(b).
Tax Year: As defined in Section 8.1.
Taxes: As defined in Section 8.1.
Tenant's Delay: As defined in Section 4.4.
Tenant's Removable Property: As defined in Section 5.2.
Term of this Lease: The Initial Term and any extension thereof in
accordance with the provisions hereof.
ARTICLE II
PREMISES AND APPURTENANT RIGHTS
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant, and
Tenant hereby accepts from Landlord, the Premises for the Term of this
Lease and upon the terms and conditions set forth in this Lease.
-3-
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
appurtenant to the Premises, the non-exclusive right to use, and permit
its employees, agents, contractors and invitees to use in common with
others entitled thereto; the entrances, exits, roads and walkways of
the Office Park necessary for access to the Building, the parking areas
and walkways on the Land Parcel, the loading facilities serving the
Building, the lobbies, hallways, stairways, elevators and walkways
necessary for access to the Premises, and if the portion of the
Premises on any floor includes less than the entire floor, the common
toilets, corridors and elevator lobby of such floor (collectively, the
"Common Areas"); but such rights shall always be subject to reasonable
rules and regulations from time to time established by Landlord
pursuant to Section 14.6 and to the right of Landlord to designate and
change from time to time areas and facilities so to be used; provided,
however, Landlord shall not (i) reduce the number of parking spaces on
the Property below the number existing as of the date of this Lease,
(ii) eliminate any common restroom located on the same floor as any
portion of the Premises, or (iii) materially interfere with access to
such parking areas, the Building or the Premises. Tenant and its
employees, agents, contractors and invitees shall have the right to use
(on a non-exclusive basis) parking spaces in the parking areas
immediately adjacent to the Building totaling at least four parking
spaces per 1,000 square feet of Premises Rentable Area.
(b) Excepted and excluded from the Premises are the ceiling, floor,
perimeter walls and exterior windows, except the inner sufaces of each
thereof, and any space in the Premises used (as of the date of this
Lease) for shafts, stacks, conduits, fan rooms, ducts, electric or
other utilities, but the entry doors (and related glass and finish
work) to the Premises are a part thereof. Tenant agrees that Landlord
shall have the right to place in the Premises (but in such location and
manner as to avoid interference with Xxxxxx's use of the Premises)
interior storm windows, sub control devices, utility lines, equipment,
stacks, pipes, conduits, ducts and the like. Tenant shall install and
maintain, as Landlord may require, proper access panels in any hung
ceilings or walls as may be installed by Tenant in the Premises to
afford access to any facilities above the ceiling or within or behind
the walls.
2.3 EXPANSION RIGHT. If at any time during the term of this Lease, rental
space in the Building becomes available for lease, Landlord covenants
to first offer such space to Tenant at the then prevailing market
rental rate in Westborough Office Park. Before offering such available
space to any other tenant, Landlord shall give to Tenant a written
offer stating the date on which such space will become available for
lease by Tenant and the
-4-
Landlord's calculation of the then prevailing market rental rate.
Tenant shall have ten (10) days from receipt of such offer to respond
to Landlord's notice. If Xxxxxx fails to respond within the ten (10)
day period, the right of Tenant to take such space becomes void.
2.4 LETTER OF CREDIT. Xxxxxx agrees to provide to Landlord at the time of
execution of this Lease a Letter of Credit from a bank acceptable to
Landlord (Landlord hereby acknowledging that Fleet Bank is acceptable)
in the initial amount of $173,500 in a form substantially similar to
the form attached to this Lease as Exhibit LC. The Landlord shall be
the sole beneficiary of the Letter of Credit. The amount of the Letter
of Credit will be reduced to $120,319 on the first anniversary of the
Commencement Date and to $63,152 on the second anniversary of the
Commencement Date.
Landlord shall be permitted to draw on the Letter of Credit in the
amounts hereinafter provided if (i) there shall occur a Default of
Tenant relating to the failure of Tenant to pay Basic Rent due under
this Lease and such Default of Tenant shall continue uncured after the
giving of any applicable notice and the expiration of any applicable
grace period and (ii) Landlord shall deliver to the bank issuing the
Letter of Credit a certificate, in the form attached to this Lease as
Exhibit DC (or a substantially similar form used by the issuing bank),
certifying to the occurrence of a Default of Tenant relating to the
failure of Tenant to pay Basic Rent due under this Lease, which Default
of Tenant continued uncured after the giving of any applicable notice
and the expiration of any applicable grace period.
If there shall occur a Default of Tenant relating to the failure of
Tenant to pay basic rent due under this Lease and such Default of
Tenant shall continue uncured after the giving of notice and the
expiration of any applicable grace period, and Landlord does not act to
terminate the Lease, Landlord shall have the right to apply all or any
portion of the Security Deposit as necessary to cure such Default of
Tenant. Landlord shall also be permitted to draw the entire amount
payable under the Letter of Credit if Tenant fails to provide to
Landlord a substitute Letter of Credit, satisfying the conditions of
this Section 2.4, within 30 days after receiving from Fleet Bank of
Massachusetts, N.A. notice of its intention not to renew the Letter
of Credit issued by Fleet Bank of Massachusetts, N.A. in connection
with this Lease. If Landlord so draws the amount payable under the
Letter of Credit on account of such non-renewal, Landlord shall
deposit the amount so drawn (the "Security Deposit") in a segregated
interest-bearing escrow account. On the first anniversary of the
Commencement Date, Landlord shall return to Tenant any balance of the
Security
-5-
Deposit in excess of $120,319; on the second anniversary of the
Commencement Date, Landlord shall return to Tenant any balance of the
Security Deposit in excess of $63,152. If any balance of the Security
Deposit remains at the end of the Term of this Lease, Landlord shall
return such balance to Tenant within 30 days after the end of the Term
of this Lease.
ARTICLE III
BASIC RENT
3.1 PAYMENT. (a) Xxxxxx agrees to pay to Landlord, or as directed by
Xxxxxxxx, commencing on the Commencement Date without offset, abatement
(except as provided in Section 12.1), deduction or demand, except as
otherwise specified in this Lease, rent at an annual rate equal to the
Basic Rent. Such Basic Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every calendar
month during the Term of this Lease, at Landlord's Original Address, or
at such other place as Landlord shall from time to time designate by
notice, in lawful money of the United States. Until notice of some other
designation is given, Basic Rent and all other charges for which
provision is herein made shall be paid by remittance payable to the
Landlord, and all remittance so received as aforesaid, or by any
susequently designated recipient, shall be treated as a payment to
Landlord. In the event that any installment of Basic Rent is not paid
when due, and such failure shall continue for five Business Days afer
written notice to Tenant from Landlord, Tenant shall pay, in addition to
any Escalation Charges or other additional charges due under this Lease,
at Xxxxxxxx's request an administrative fee equal to 1% of the overdue
payment.
(b) The monthly installment of Basic Rent for any partial month shall be
prorated on a daily basis. If the Commencement Date shall be other than
the first day of a calendar month, the first payment which Tenant shall
make to Landlord shall be equal to such prorated amount of the monthly
installment of Basic Rent for the partial month from the first day on
which Tenant must pay Basic Rent to the last day of the month in which
such date occurs plus the installment of Basic Rent for the succeeding
calendar month. If the last day of the Term of this Lease shall be other
than the last day of a calendar month, the last monthly payment of Basic
Rent shall be equal to such prorated amount of the monthly installment
of Basic Rent for such partial calendar month at the end of the Term of
this Lease.
-6-
ARTICLE IV
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. The Commencement Date shall be the last to occur of:
(a) the Construction Completion Date without giving effect to any
extension of same arising solely out of a Tenant's Delay, or
(b) the day following the Substantial Completion Date.
4.2 PREPARATION OF THE PREMISES. (a) Landlord shall exercise all reasonable
effort to complete Landlord's Work (as hereinafter defined) before the
Construction Completion Date. "Landlord's Work" shall include the
construction, installations and other work necessary to prepare the
Premises for Tenant's occupancy according to Tenant's Layout Plan
attached to this Lease as Exhibit LP, and the Building Interior Finish
Standards attached to this Lease as Exhibit B, including without
limitation the installation of building standard carpeting chosen by
Tenant in the area delineated on the Floor Plan attached to this Lease
as Exhibit FP and the installation of thirty-three new office doors and
sidelights. Landlord shall perform Landlord's Work in a good and
workmanlike manner and in compliance with all laws. Landlord represents
and warrants to Tenant that, as of the Substantial Completion Date, the
Premises and the Building shall comply with all applicable laws,
including without limitation the Americans with Disabilities Act of
1990, as amended, and that Tenant may lawfully occupy the Premises for
the conduct of its business. Tenant shall have no claim against
Landlord for failure so to complete Landlord's Work except the right to
terminate this Lease in accordance with Section 4.2(c).
(b) The Premises shall be deemed ready for occupancy on the first day
(the "Substantial Completion Date") as of which (i) a final Certificate
of Occupancy has been issued with respect to the Premises and (ii)
Landlord's Work has been completed except for Punch List Items. "Punch
List Items" shall include only those items of work (and, if applicable,
adjustment of equipment and fixtures) which (x) can be completed after
Xxxxxx's occupancy of the Premises without causing material
interference with Xxxxxx's use of the Premises or the conduct of
Tenant's business in the Premises, and (y) are capable of being
completed within 30 days after the Substantial Completion Date.
Landlord shall complete all Punch List Items within 30 days after the
Substantial Completion Date. Tenant shall give Landlord reasonable
access to the Premises at reasonable times for the purpose of
completing the Punch List Items;
-7-
provided, however, Landlord shall not cause or permit a material
interference with Xxxxxx's use of the Premises or the conduct of
Xxxxxx's business on the Premises.
(c) If the Substantial Completion Date has not occurred by February 15,
1996, (as it may be extended pursuant to Section 4.4), Tenant shall
have the right to terminate this Lease by giving notice to Landlord of
Tenant's desire so to do; and this Lease shall cease and come to an end
without further liability or obligation on the part of either party
thirty (30) days after the giving of such notice, unless, within such
30-day period, the Substantial Completion Date shall occur in which
case Tenant's election to terminate shall be void; and such right of
termination shall be Tenant's sole and exclusive remedy at law or in
equity for Landlord's failure so to complete such Work within such
time.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Except for latent defects in
Landlord's Work and any defects of which Tenant shall have given
Landlord notice, not later than the end of the second full calendar
month next beginning after the Commencement Date, Tenant shall have no
claim that Xxxxxxxx has failed to perform any of Landlord's Work.
Except for Landlord's Work and except as otherwise set forth in this
Lease, the Premises are being leased in their condition "as-is" without
representation or warranty by Landlord. Tenant acknowledges that it has
inspected the Premises and Common Areas of the Building and, except for
Landlord's Work and except as otherwise set forth in this Lease, has
found the same satisfactory.
4.4 TENANT'S DELAYS. (a) If a delay shall occur in the Substantial
Completion Date solely as the result of:
(i) any request by Tenant that Landlord delay in the
commencement or completion of Landlord's Work for any reason;
(ii) any material change by Tenant in any of Tenant's Layout
Plan; or
(iii) any other act or omission of Tenant or its officers,
agents, servants or contractors outside of the ordinary scope
of Tenant's performance of its obligations under this Lease;
then the Substantial Completion Date shall be deemed to occur
on the date it would otherwise have occurred but for such
delay.
(b) The delays referred to in paragraph (a) are herein referred to
collectively and individually as "Tenant's Delay".
(c) The Construction Completion Date shall automatically be extended
for the period of any delays
-8-
caused by Xxxxxx's Delay(s) or Force Majeure.
4.5 RENEWAL OPTION. Provided, that Tenant is not then in default of any of
the Tenant's obligations stated in this Lease, Tenant may renew the
Lease for one (1) additional period of three (3) years (the "Renewal
Term") by giving written notice to Landlord not later than six (6)
months prior to the end of the Initial Term. During the Renewal Term,
the terms and conditions of this Lease shall remain in effect, except
that the Basic Rent will be at 95% of the then fair market rental rate
prevailing in Westborough Office Park at the time that Tenant gives
notice to Landlord. Upon written request by Tenant not more than twelve
months before the end of the Initial Term, Landlord shall, within ten
days of such request, give Tenant a written statement of the Basic Rent
for the renewal term, as calculated by Landlord. The deadline for
Tenant to exercise its renewal rights under this Section 4.5 shall be
extended by one day for each day after such ten-day period that
Landlord shall fail to deliver such statement of the Basic Rent to
Tenant.
4.6 EARLY TERMINATION RIGHT. In the event that Tenant requires expansion
space and Landlord cannot provide such space in the Building, Tenant
may terminate the Lease at the end of the 18th calendar month of the
Initial Term by giving written notice to Landlord not later than the
end of the 12th calendar month of the Initial Term along with a payment
of $131,750. The payment shall accompany Xxxxxx's notice of
termination. If Tenant exercises its right to terminate this Lease, all
payments of Basic Rent, additional rent and other charges due under
this Lease shall be prorated as of the effective date of such
termination, and all other obligations of Landlord and Tenant shall
cease as though the Termination date were the date of the ordinary
expiration of the Term of this Lease.
4.7 EARLY OCCUPANCY. Notwithstanding any contrary provision of this Lease,
on December 15, 1995, Landlord shall deliver to Tenant possession of
those portions of the Premises shown as the cross-hatched area of
"Existing carpet" on the floor plan attached to this Lease as Exhibit
FP, and Tenant shall have the right to use and occupy such
cross-hatched area for all Permitted Uses. If Tenant chooses to occupy
all or any protion of such space on December 15, 1995 or any date
thereafter up until the Substantial Completion Date, Tenant shall pay
rent at a rate of $1.50/s.f. of rentable area in those portions of such
cross-hatched space actually occupied by Tenant per month of occupancy
prior to substantial Completion Date. In the event that a partial month
is involved, the rental rate of $1.50/s.f./month shall be prorated.
Landlord shall permit Tenant and its employees, agents and contractors
to enter the Premises before the Commencement Date to install Tenant's
-9-
electrical, wiring and telecommunications systems and other trade
fixtures and equipment in the Premises in preparation of Tenant's use
and occupancy of the Premises under this Lease.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE. (a) Xxxxxx agrees that the Premises shall be used and
occupied by Tenant only for Permitted Uses.
(b) Xxxxxx agrees to conform to the following provisions during the
Term of this Lease:
(i) Tenant shall cause all freight to be delivered to or
removed from the Building and the premises in accordance with
reasonable rules and regulations established by Landlord under
Section 14.6 of this Lease;
(ii) Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of doors and
interior surfaces of windows) or on any part of the Building
outside the Premises or at any location in the Office Park,
any signs, symbol, advertisement or the like visible to public
view outside of the Premises. Landlord will not unreasonably
withhold consent for signs or lettering on the entry doors to
the Premises provided such signs conform to building standards
adopted by Landlord and Tenant has submitted to Landlord a
plan or sketch of the sign to be placed on such entry doors.
Landlord agrees, however, to maintain a tenant directory in
the lobby of the Building in which Tenant shall be entitled to
have one (1) insertion identifying Tenant's name and the
location of the Premises in the Building. If space is
available on the tenant directory, Tenant may request that
Landlord place additional insertions naming Tenant's personnel
on such tenant directory, provided that Tenant shall pay a fee
assessed by Landlord for each such additional insertion.
(iii) Tenant shall not perform any act or carry on any
practice which may injure the Premises, or any other part of
the Building or Office Park, or cause any offensive odors or
loud noises or constitute a nuisance or a menace to any other
tenant or tenants or other persons in the Building or Office
Park;
(iv) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and
regulations;
-10-
(V) Tenant shall continuously throughout the Term of this
Lease occupy the Premises for Permitted Uses.
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT. (a) Tenant may make
non-structural alterations, additions or improvements in or to the
Premises provided that, with respect to any alterations, additions or
improvements costing more than $5,000 in any one instance ("Significant
Alterations"), Tenant has first obtained Landlord's prior written
consent, which shall not be unreasonably withheld, delayed or
conditioned. Any such alterations, additions or improvements shall (i)
with respect to Significant Alterations, be in accordance with complete
plans and specifications approved by Landlord, which approval shall not
be unreasonably withheld, delayed or conditioned, (ii) be performed in
a good and workmanlike manner and in compliance with all applicable
laws, (iii) with respect to Significant Alterations, be made only by
contractors or mechanics approved by Landlord, which approval shall not
be unreasonably withheld, delayed or conditioned, (iv) be at Tenant's
sole expense, and (v) except for Tenant's Removable Property (as
hereinafter defined) and as otherwise agreed by Landlord and Tenant,
become part of the Premises and the property of Landlord.
Tenant may request the agreement of Landlord if at any time during the
Term Tenant wishes to make an alteration that Xxxxxx believes to be a
part of Tenant's Removable Property, Landlord shall respond within five
(5) business days to Xxxxxx's request.
Under no circumstances shall Tenant make any structural alterations to
the Premises.
(b) All articles of personal property and all trade and business
fixtures, machinery and equipment and furniture owned or installed by
Tenant in the Premises ("Tenant's Removable Property") shall remain the
Property of Tenant and may be removed by Tenant at any time prior to
the expiration of this Lease, provided that Tenant, at its expense,
shall repair any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit,
and that no mechanic's or other lien for any such labor or materials
shall attach to or affect the reversion or other estate or interest of
Landlord in and to the Premises. Whenever and as often as any
mechanic's lien shall have been filed against the Property or the
Office Park based upon any act or interest of Tenant or of anyone
claiming through Tenant, Tenant shall take such action by bonding,
deposit or payment as will remove or satisfy the lien within ten days
after Xxxxxx receives notice of such lien.
-11-
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise, except as expressly
permitted by paragraphs (b) and (c) of this Section, neither this Lease
nor the term and estate hereby granted, nor any interest herein or
therein, will be assigned, mortgaged, pledged, encumbered or otherwise
transferred and that neither the Premises nor any part thereof will be
encumbered in any manner by reason of any act or omission on the part
of Tenant, or use or occupied or permitted to be used or occupied, by
anyone other than Tenant, or for any use or purpose other than a
Permitted Use, or the subject (which term, without limitation, shall
include granting of concessions, licenses and the like) in whole or in
part, or be offered or advertised for assignment or subletting.
(b) Tenant shall be allowed to sublet during the Term of this Lease any
portion of the Premises provided Landlord consents in writing in
advance to such subletting. Landlord agrees not to withhold its consent
to any subletting during the Term, provided that Tenant requests such
consent in a writing which shall include the particular terms of the
proposed sublet, and provided that (i) during the term of the sublet
Tenant shall continue to occupy a portion of the Premises; (ii) at the
time of Tenant's request Tenant is not in default under this Lease;
(iii) Landlord, in its reasonable discretion, determines that the
reputation, business, proposed use of the Premises by, and financial
responsibility of, the proposed sublessee is satisfactory to
Landlord; (iv) such sublease shall be in writing and its form shall be
subject to the reasonable approval of the Landlord; (v) such sublease
shall be subject and subordinate to this Lease, any ground lease of the
Land Parcel or Building or both, and any first mortgage of the Land
Parcel or Building or both; (vi) anything contained in the foregoing
provisions of this section to the contrary notwithstanding, neither
Tenant nor any other person having an interest in the possession, use
occupancy or utilization of the Premises shall enter into any lease,
sublease, license, concession or other agreement for use, occupancy or
utilization of space in the Premises which provides for rental or other
payment for such use, occupancy or utilization based, in whole or in
part, on the net income or profits derived by any person from the
premises leased, used, occupied, or utilized (other than an amount
based on a fixed percentage or percentages of receipts or sales), and
any such purported lease, sublease, license, concession or other
agreement shall be absolutely void and ineffective as a conveyance of
-12-
any right or interest in the possession, use occupancy or utilization
of any part of the Premises; (vii) no right shall exist on the part of
the sublessee to sublet further the sublet premises; (viii) such
sublessee shall expressly assume all the obligations of this Lease on
Tenant's part to be performed as to the sublet space; (ix) such
consent, if given, shall not release Tenant of any of its obligations
(including, without limitation, its obligations to pay rent) under this
Lease and Xxxxxx's liability after any such subletting shall be as to
the subject space joint and several with the sublessee; and (x) Tenant
shall reimburse Landlord promptly as additional rent for reasonable
legal and other expenses incurred by Landlord in connection with any
request by Tenant for consent to any such sublet. A consent to one
subletting to any person or entity shall not be deemed to be a consent
to any subsequent subletting.
In the event that Tenant shall during the Term desire to sublet all or
any portion of the Premises such that after the commencement of such
sublet Tenant or any Affiliate (as hereinafter defined) shall no longer
be occupying any portion of the Premises, Tenant shall by advance
notice to Landlord disclose all of the material terms of such proposed
sublet and in such notice also offer the entire Premises back to
Landlord, subject to any sublets previously in effect and approved by
Landlord as provided in this paragraph (b). If Landlord elects to
accept such offer, Landlord shall so notify Tenant within fifteen (15)
days of the date of the aforesaid notice by Xxxxxx, and this Lease
shall end on that date selected by Landlord which shall be not less
than thirty (30) nor more than ninety (90) days after the date of said
notice by Landlord to Tenant. On or prior to such termination date
Tenant shall pay to Landlord the Basic Rent and all other charges
accrued under this Lease through such termination date. In the event
that Landlord does not exercise such election within the time period
above provided for, Tenant shall be permitted to enter into the
proposed sublease provided that Tenant is not then in default under
this Lease and provided that the conditions set forth in clauses (iii)
through (x) of the next preceding paragraph are satisfied.
(c) Notwithstanding any contrary provision of this Article VI, Tenant
shall have the right, without prior notice to Landlord and without
Landlord's consent or approval, to assign this Lease or sublet any
portion of the Premises to any corporation, partnership or other
business organization controlling, controlled by, or under common
control with, Tenant, or in connection with the merger or consolidation
of Tenant or the sale of all or substantially all of Tenant's assets
(any such assignee or sublessee being an "Affiliate"); provided that
(i) after the consummation of any such assignment
-13-
or Sublease, the Affiliate agrees directly with Landlord, by written
instrument in form reasonably satisfactory to Landlord, to be bound by
all the obligations of Tenant hereunder including, without limitation,
the covenant against further assignment and subletting except as
expressly permitted hereunder, and (ii) no such transfer shall relieve
Tenant or in the event of a transfer of partnership interests, any of
the transferring partners from its or their obligations hereunder and
Tenant shall remain fully and primarily liable to Landlord therefor.
(d) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant or an Affiliate,
Landlord may, at any time after a Default of Tenant, collect rent and
other charges from the assignee, subtenant, or occupant, and apply the
net amount collected to the rent and other charges due under this
Lease, but no such assignment, subletting, occupancy or collection
shall be deemed the acceptance of the assignee, subtenant or occupant
as a tenant or a release of the original named Xxxxxx from the further
performance by the original named Tenant hereunder. No assignment or
subletting, or occupancy shall affect Permitted Uses. No assignment or
subletting hereunder shall relieve Tenant from its obligations
hereunder and Xxxxxx shall remain fully and primarily liable therefor.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
Landlord agrees to keep in good order, condition and repair and in
compliance with all laws the roof, public areas, Common Areas, exterior
walls (including interior glass) and structure and systems of the
Building (including all plumbing, mechanical and electrical systems
installed by Landlord), except that Landlord shall in no event be
responsible to Tenant for the repair of glass in the Premises, the
doors (or related glass and finish work) leading to the Premises, or
any condition in the Premises or the Building caused by any act or
neglect of Tenant, its invitees or contractors. The fact that Landlord
is repsonsible for the foregoing repairs shall not be construed so as
to prohibit the cost thereof from being included in Operating Expenses
to the extent provided on Exhibit OC. Landlord shall not be responsible
to make any improvements or repairs to the Building other than as
expressed in this Section 7.1 provided, unless expressly provided
otherwise in this Lease.
-14-
(b) Landlord shall never be liable for any failure to make repairs
which Landlord has undertaken to make under the provisions of this
Section 7.1 or elsewhere in this Lease, unless Tenant has given notice
to Landlord of the need to make such repairs, and Landlord has failed
to commence to make such repairs within a reasonable time after receipt
of such notice, or fails to proceed with reasonable diligence to
complete such repairs.
7.2 TENANT'S AGREEMENT. (a) Tenant will keep neat and clean and maintain
the Premises in as good order, condition and repair as exists as of the
Commencement Date, excepting only those repairs for which Landlord is
responsible under the terms of this Lease, reasonable wear and tear of
the Premises, and damage by fire or other casualty and as a consequence
of the exercise of the power of eminent domain. Without limitation,
Tenant shall continually during the Term of this Lease maintain the
Premises in accordance with all laws, codes and ordinances from time to
time in effect and all directives, rules and regulations of the proper
officers of governmental agencies having jurisdiction, and of the
applicable board of fire underwriters, to the extent such laws, codes,
ordinances, rules and regulations relate to Tenant's use and occupancy
of the Premises, and shall, at Tenant's own expense, obtain all
permits, licenses and the like required by applicable law in connection
with Xxxxxx's use of the Premises. Subject to the waiver of subrogation
under Section 14.18, Tenant shall be responsible for the cost of
repairs which may be made necessary by reason of damage to the Property
or the Office Park caused by any act or negligence of Tenant, or its
contractors or invitees (including any damage by fire or any other
casualty arising therefrom).
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may give Tenant written notice of such repairs, and if
Tenant refuses or neglects to commence such repairs and complete the
same within 30 days of receiving such notice, Landlord may (but shall
not be required to do so) make or cause such repairs to be made (the
provisions of Section 14.19 being applicable to the costs thereof).
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon
any floor in the Premises exceeding a live load of 100 pounds per
square foot of floor area. Business machines and mechanical equipment
shall be placed and maintained by Tenant at Tenant's expense in
settings sufficient, in Landlord's reasonable judgment, to absorb and
prevent vibration, noise and annoyance. Tenant shall not move any safe,
heavy machinery, heavy
-15-
equipment, freight, bulky matter or fixtures into or out of the
Building without Landlord's prior consent, which consent may include a
requirement to provide insurance, naming Landlord as an insured, in
such amounts as Landlord may deem reasonable.
(b) If any such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Xxxxxx agrees to employ only
persons holding a Master Xxxxxx's License to do such work, and that all
work in connection therewith shall comply with applicable laws and
regulations. Any such moving shall be at the sole risk and hazard of
Tenant, and Xxxxxx will exonerate, indemnify and save Landlord harmless
against and from any liability, loss, injury, claim or suit resulting
directly or indirectly from such moving.
7.4 BUILDING SERVICES. Landlord shall provide the building services set
forth in Exhibit C.
ARTICLE VIII
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this
Article, the term "Tax Year" shall mean the twelve-month period
commencing on the July 1 immediately preceding the Commencement Date
and each twelve-month period thereafter commencing during the Term of
this Lease; and the term "Taxes" shall mean real estate taxes assessed
with respect to the Property for any Tax Year.
(b) In the event that for any reason, Taxes during any Tax Year shall
exceed Base Taxes, Tenant shall pay to Landlord, as an Escalation
Charge, an amount equal to (i) the excess of Taxes over Base Taxes for
such year, multiplied by (ii) the Escalation Factor; provided, however,
with respect to any Tax Year in which the Commencement Date falls or
the Term of this Lease ends, Taxes shall be prorated on a daily basis
for the number of days in such Tax Year within the Term of this Lease.
(c) Estimated payments by Tenant on account of Taxes shall be made
monthly and at the time and in the fashion provided in Article III for
the payment of Basic Rent. The monthly amount so to be paid to Landlord
shall be sufficient to provide Landlord by the time real estate tax
payments are due a sum equal to Tenant's required payments, as
reasonably estimated by Landlord from time to time based on the then
most current tax bills, on account of Taxes for the then current Tax
Year. Promptly after receipt by Landlord of bills for such Taxes,
Landlord shall advise Tenant of the amount of the current Taxes and the
computation of Tenant's payment on account thereof.
-16-
If estimated payments theretofor made by Tenant for the Tax Year
covered by such bills exceed the required payments on account thereof
for such Year, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant on account of Taxes (or refund such
overpayment if the Term of this Lease has ended and Tenant has no
further obligation to Landlord); but if the required payments on
account thereof for such Year are greater than estimated payments
theretofor made on account thereof for such Year, Tenant shall make
payment to Landlord within thirty (30) days after being so advised by
Landlord.
8.2 ABATEMENT. If Landlord shall receive any tax refund or reimbursement of
Taxes or sum in lieu thereof with respect to any Tax Year, then out of
any balance remaining thereof after deducting Landlord's expenses
reasonably incurred in obtaining such refund, Landlord shall pay to
Tenant, an amount equal to such refund or reimbursement or sum in lieu
thereof (exclusive of any interest) multiplied by the Escalation
Factor; provided, that in no event, shall Tenant be entitled to receive
more than the payments made by Tenant on account of Taxes for such Tax
Year pursuant to paragraph (b) of Section 8.1 or to receive any
payments or abatement of Basic Rent if Taxes for any year are less than
Base Taxes or Base Taxes are abated.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall replace
the current method of assessment of real estate taxes in whole or part,
or the type thereof, or if additional types of taxes are imposed upon
the Property, or Xxxxxxxx's interest in the Property to supplement real
estate taxes due to legal limits imposed thereon, Xxxxxx agrees that
Tenant shall pay its proportionate share of the same as an additional
charge computed in a fashion consistent with the method of computation
herein provided, to the end that Tenant's share thereof shall be, to
the maximum extent practicable, comparable to that which Tenant would
bear under the foregoing provisions.
(b) If a tax (other than a Federal or State net income tax) is assessed
on account of the rents or other charges payable by Tenant to Landlord
under this Lease, Xxxxxx agrees to pay the same as an additional charge
within ten (10) days after the billing therefor, unless applicable law
prohibits the payment of such tax by Tenant.
-17-
ARTICLE IX
OPERATING EXPENSES
9.1 DEFINITIONS. For the purpose of this Article, the following terms shall
have the following respective meanings:
Operating Year: Each calendar year in which any part of the Term of
this Lease shall fall.
Operating Expenses: The aggregate costs or expenses reasonably incurred
by Landlord with respect to the operation, administration, cleaning,
repair, maintenance and management of the Property (including a
proportionate share of any common area expenses of the Office Park)
including, without limitation, those items enumerated in Exhibit OC
annexed hereto, and subject to the exclusions and limitation set forth
in Exhibit OC, provided that, if during any portion of the Operating
Year for which Operating Expenses are being computed, the Building was
not operated, or less than all of Building Rentable Area was occupied
by tenants or if Landlord is not supplying all tenants with the
services being supplied hereunder, actual Operating Expenses incurred
shall be reasonably extrapolated by Landlord on an item by item basis
to the estimated Operating Expenses that would have been incurred if
the Building were 95% occupied for such Year and such services were
being supplied to all tenants, and such extrapolated amount shall, for
the purposes hereof, be deemed to be the Operating Expenses for such
Year.
9.2 TENANT'S PAYMENTS. (a) In the event that Operating Expenses for any
Operating Year shall exceed Base Operating Expenses, Tenant shall pay
to Landlord, as an Escalation Charge, an amount equal to (i) the excess
of the Operating Expenses for such Operating Year over and above Base
Operating Expenses, multiplied by (ii) the Escalation Factor; provided,
however, with respect to any Operating Year in which the Commencement
Date falls or the Term of this Lease ends, such amount shall be
prorated on a daily basis for the number of days in such Operating Year
within the Term of this Lease.
(b) Estimated payments by Tenant on account of Operating Expenses shall
be made monthly and at the time and in the fashion provided in Article
III for the payment of Basic Rent. The monthly amount so to be paid to
Landlord shall be sufficient to provide Landlord by the end of each
Operating Year a sum equal to Xxxxxx's required payments, as reasonably
estimated by Landlord from time to time during each Operating Year, on
account of Operating Expenses for such Operating Year. Within ninety
(90) days after the end of each Operating Year, Landlord shall submit
to Tenant a reasonably detailed accounting of Operating Expenses for
such Year and an
-18-
updated estimate for the current Operating Year, together with
reasonable supporting documentation, and Landlord shall certify to the
accuracy thereof. If estimated payments theretofor made for such Year
by Tenant exceed Tenant's required payment on account thereof for such
Year, according to such statement, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant with respect to
Operating Expenses (or refund such overpayment if the Term of this
Lease has ended and Tenant has no further obligation to Landlord); but,
if the required payments on account thereof for such Year are greater
than the estimated payments (if any) theretofor made on account thereof
for such Year, Tenant shall make payment to Landlord within thirty (30)
days after being so advised by Landlord.
(c) Tenant and its employees, attorneys, accountants and consultants
shall have the right, from time to time, to review and investigate
Landlord's books and records concerning Taxes and Operating Expenses.
Any such accounting by Landlord shall be binding and conclusive upon
Tenant unless within ninety (90) days after the giving by Landlord of
such accounting Tenant shall notify Landlord that Tenant disputes the
correctness of such accounting, specifying the particular respects in
which the accounting is claimed to be incorrect. If such dispute has
not been settled by agreement, either party may submit the dispute to
arbitration in accordance with the commercial arbitration rules of the
American Arbitration Association within one-hundred eighty (180) days
after giving of such accounting. The decision of the arbitrators shall
be final and binding on Landlord and Xxxxxx and judgment thereon may be
entered in any court of competent jurisdiction. Pending resolution by
agreement or arbitrators, Tenant shall make any payment shown to be due
by such accounting without prejudice to Xxxxxx's position. If the
dispute shall be resolved in Tenant's favor, Landlord shall forthwith
pay to Tenant the amount of Xxxxxx's overpayment.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Xxxxxx agrees to indemnify and save
harmless Landlord from and against all claims of whatever nature
arising: (i) from any accident, injury or damage whatsoever caused to
any person, or to the property of any person, in the Premises; or (ii)
from any accident, injury or damage occurring outside of the Premises
but in the Office Park, where such accident, damage or injury results
from
-19-
the negligence or willful misconduct of Tenant or Tenant's agents or
employees or independent contractors and, in either case, occurring
after the date of this Lease, until the end of the Term of this Lease,
and for so long thereafter as Tenant may occupy the Premises or any
part thereof. 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, including, without limitation, reasonable
attorneys' fees, at both the trial and appellate levels.
10.2 PUBLIC LIABILITY INSURANCE. Xxxxxx agrees to maintain in full force
from the date upon which Xxxxxx first enters the Premises for any
reason, throughout the 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 and property damage insurance (including
broad form contractual liability, independent contractor's hazard and
completed operations coverage) under which Landlord, and Tenant are
named as insureds, and under which the insurer agrees to indemnify and
hold Landlord harmless from and against all cost, expense and/or
liability arising out of or based upon any and all claims, accidents,
injuries and damages set forth in Section 10.1. Each such policy shall
be non-cancellable and non-amendable with respect to Landlord, without
thirty (30) days prior notice to Landlord and shall be in at least the
amounts of the Initial Public Liability Insurance specified in Section
1.3 and a duplicate original or certificate thereof shall be delivered
to Landlord.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Xxxxxx agrees to use and occupy the
Premises and to use such other portions of the Property and the Office
Park 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 Tenant's Removable Property or for any inconvenience,
annoyance, interruption or injury to business arising from Landlord's
making any repairs or changes which Landlord is permitted by this
Lease, or required by law, to make in or to any portion of the Premises
or other sections of the Property, or the Office Park, or in or to the
fixtures, equipment or appurtenances thereof; provided, however, (i)
Landlord and its agents, employees and contractors shall not materially
interfere with Tenant's use of, and business operations at, the
Premises, and (ii) Landlord shall have responsibility and liability for
any such loss, damage, inconvenience, annoyance, interruption or injury
arising out of negligence or willful misconduct of Landlord or its
employees, agents or contractors. The provisions of this Section shall
be applicable from and after the execution of this Lease and until the
end of
-20-
the negligence or willful misconduct of Tenant or Tenant's agents or
employees or independent contractors and, in either case, occurring
after the date of this Lease, until the end of the Term of this Lease,
and for so long thereafter as Tenant may occupy the Premises or any
part thereof. 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, including, without limitation, reasonable
attorneys' fees, at both the trial and appellate levels.
10.2 PUBLIC LIABILITY INSURANCE. Xxxxxx agrees to maintain in full force
from the date upon which Xxxxxx first enters the Premises for any
reason, throughout the 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 and property damage insurance (including
broad form contractual liability, independent contractor's hazard and
completed operations coverage) under which Landlord, and Tenant are
named as insureds, and under which the insurer agrees to indemnify and
hold Landlord harmless from and against all cost, expense and/or
liability arising out of or based upon any and all claims, accidents,
injuries and damages set forth in Section 10.1. Each such policy shall
be non-cancellable and non-amendable with respect to Landlord, without
thirty (30) days prior notice to Landlord and shall be in at least the
amounts of the Initial Public Liability Insurance specified in Section
1.3 and a duplicate original or certificate thereof shall be delivered
to Landlord.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Xxxxxx agrees to use and occupy the
Premises and to use such other portions of the Property and the Office
Park 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 Tenant's Removable Property or for any inconvenience,
annoyance, interruption or injury to business arising from Landlord's
making any repairs or changes which Landlord is permitted by this
Lease, or required by law, to make in or to any portion of the Premises
or other sections of the Property, or the Office Park, or in or to the
fixtures, equipment or appurtenances thereof; provided, however, (i)
Landlord and its agents, employees and contractors shall not materially
interfere with Tenant's use of, and business operations at, the
Premises, and (ii) Landlord shall have responsibility and liability for
any such loss, damage, inconvenience, annoyance, interruption or injury
arising out of negligence or willful misconduct of Landlord or its
employees, agents or contractors. The provisions of this Section shall
be applicable from and after the execution of this Lease and until the
end of
-20-
the Term of this Lease, and during such further period as Tenant may
use or be in occupancy of any part of the Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement
may be made effective according to law, Xxxxxx agrees that Landlord
shall not be responsible or liable to Tenant, or to those claiming by,
through or under Tenant, for any loss or damage that may be occasioned
by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with the
Premises or any part of the Property or Office Park or otherwise.
10.5 LANDLORD'S INSURANCE. Landlord shall (i) keep the Property insured
against loss or damage by fire or other casualty on an "All Risk"
basis, with extended coverage endorsements customary for office
buildings in the area of the Property, and meeting all co-insurance
requirements, and such other insurance as the then holder of any
mortgage or ground lease encumbering the Property shall require, in
amounts not less than the full replacement value of the Property, and
(ii) obtain and maintain in force and effect commercial general
liability insurance in an amount not less than $3,000,000 per
occurrence and in the general aggregate, or such greater amount as is
required by the holder of any mortgage or ground lease encumbering the
Property, and (iii) provide a waiver of subrogation as provided in
Section 14.18.
-21-
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. Landlord shall have the right, upon reasonable
advance notice to Tenant (except in an emergency), to enter the
Premises at all reasonable business hours for the purpose of
inspections or making repairs to the same, and Landlord shall also have
the right, upon reasonable advance notice to make access available at
all reasonable business hours to prospective or existing mortgagees,
purchasers or, during the last six months of the Term of this Lease,
tenants of any part of the Property. In exercising such right of access
under this Section 11.1, Landlord shall not materially interfere with
Tenants use of the Premises and shall comply with Tenant's reasonable
security requirements.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
casualty, Basic Rent and Escalaton Charges payable by Tenant shall
xxxxx equitably for the period in which, by reason of such damage,
there is substantial interference with Xxxxxx's use of the Premises,
having regard to the extent to which Tenant may be required to
discontinue Tenant's use of all or a portion of the Premises, but such
abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises (excluding any Tenant's Removal
Property) to the condition in which they were prior to such damage. If
the Premises shall be affected by any exercise of the power of eminent
domain, Basic Rent and Escalation Charges payable by Tenant shall be
justly and equitably abated and reduced according to the nature and
extent of the loss of use thereof suffered by Xxxxxx.
12.2 RIGHT OF TERMINATION. If the Premises or the Building are substantially
damaged by fire or casualty (the term "substantially damaged" meaning
damage of such a character that the same cannot, in ordinary course,
reasonably be expected to be repaired within ninety (90) days from the
time that repair work would commence), or if any part of the Building
or of the access thereto is taken by any exercise of the right of
eminent domain, then Landlord shall have the right to terminate this
Lease (even if Xxxxxxxx's entire interest in the Premises may have been
divested) by giving notice of Xxxxxxxx's election so to do within
thirty (30) days after the occurrence of such casualty or the effective
-22-
date of such taking, whereupon this Lease shall terminate thirty (30)
days after 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 (i) the Premises are substantially damaged by fire or
casualty or (ii) any part of the Premises or access thereto is taken by
eminent domain, then Tenant shall have the right to terminate this
Lease by giving written notice to Landlord, whereupon this Lease shall
terminate on the date set forth in such notice, which date shall not be
less than 30 or more than 90 days after the date of such notice. The
term "substantially damaged" as used above means damage of such a
character that the same cannot, in ordinary course, reasonably be
expected to be repaired within ninety (90) days from the time that
repair work would commence.
12.3 RESTORATION. If this Lease shall not be terminated pursuant to Section
12.2, Landlord shall thereafter use due diligence to restore the
Premises (excluding any Tenant's Removal Property) to proper condition
for Tenant's use and occupation, provided that Landlord's obligation
shall be limited to the amount of insurance proceeds available therfor.
If, for any reason, such restoration shall not be substantially
completed within six months after the date of casualty. Tenant shall
have the right to terminate this Lease by giving notice to Landlord
thereof within thirty (30) days after the expiration of such period.
Upon the giving of such notice, this Lease shall cease and come to an
end without further liability or obligation on the part of either party
unless, with such 30-day period, Landlord substantially completes such
restoration. Such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to
complete such restoration.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord all rights to recover for damages
to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, 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, and
covenants to deliver such further assignments and assurances therof as
Landlord may from time to time request. Nothing contained herein shall
be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the vlaue of any of Tenant's Removable Property
installed in the Premises by Tenant at Tenant's expense and for
relocation expenses, provided that such action shall not affect the
amount of compensation otherwise recoverable by Landlord from the
taking authority.
-23-
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this
Lease any one or more of the following events (herein referred to as a
"Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation
Charges or other charges hereunder when due and such failure
shall continue for five (5) full Business Days after written
notice to Tenant from Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be
performed or observed and Tenant shall fail to remedy the same
within thirty (30) days after notice to Tenant satisfying such
neglect or failure, or if such failure is of such a nature
that Tenant cannot reasonably remedy the same within such
thirty (30) day period, Tenant shall fail to commence promptly
to remedy the same and to prosecute such remedy to completion
with diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be
taken on execution of by other process of law directed against
Xxxxxx; or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in bankruptcy or
shall be adjudicated bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief for itself under any present or future Federal, State
or other statute, law or regulation for the relief of debtors,
or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit in writing
its inability to pay its debts generally as they become due;
or
(v) A petition shall be filed against Tenant in bankruptcy or
under any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or
similar relief under any present or future Federal, State or
other statute, law or regulation and shall remain undismissed
or unstayed for an aggregate of sixty (60) days (whether or
not consecutive), or if any debtor in possession (whether or
not Tenant)
-24-
trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties or of the Premises shall be
appointed without the consent or acquiescence of Tenant and
such appointment shall remain unvacated or unstayed for an
aggregate of sixty (60) days (whether or not consecutive); or
then in any such case Landlord may terminate this Lease by notice to
Tenant, specifying a date not less than ten (10) days after the giving
of such notice on which this Lease shall terminate and this Lease shall
come to an end on the date specified therein as fully and completely as
if such date were the date herein originally fixed for the expiration
of the Term of this Lease and Tenant will then quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
(b) If this Lease shall have been terminated as provided in this
Article, or if any execution or attachment shall be issued against
Tenant or any of Tenant's property whereupon the Premises shall be
taken or occupied by someone other than Tenant, than Landlord may,
without notice, re-enter the Premises, by summary proceedings, and
remove and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made.
(c) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of
such termination, and thereafter Tenant, until the end of what would
have been the Term of this Lease in the absence of such termination,
and whether or not the Premises shall have been relet, shall be liable
to Landlord for, and shall pay to Landlord, as current damages, the
Basic Rent, Escalation Charges and other sums which would be payable
hereunder if such termination had not occurred, less the net proceeds,
if any, of any reletting of the Premises, after deducting all
reasonable out-of-pocket expenses in connection with such reletting,
including, without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, advertising, alteration
costs and expenses of preparation for such reletting. Tenant shall pay
such current damages to Landlord monthly on the days which the Basic
Rent would have been payable hereunder as if this Lease had not been
terminated.
-25-
In lieu of receiving any damages under the preceding paragraph, in the
event of a termination of this Lease due to a Default of Tenant,
Landlord may elect (by written notice to Tenant at any time after such
termination) to recover, as liquidated damages the Final Payment (as
hereinafter defined). As of the Commencement Date, the "Final Payment"
shall be $173,500, but as of the first day of each calendar month after
the Commencement Date, the Final Payment shall be the amount shown in
attached Exhibit I for the month in which Landlord gives such notice to
Tenant. Landlord and Xxxxxx agree that the calculation of Landlord's
actual damages would be difficult, and thus have agreed on the
aforesaid liquidated damages as reasonable liquidated damages and not
as a penalty.
(d) In case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord (i) shall
use reasonable efforts to relet the Premises or any part or parts
thereof, either in the name of Landlord or otherwise, for a term or
terms which may at Landlord's option be equal to or less than or exceed
the period which would otherwise have constituted the balance of the
Term of this Lease and may grant reasonable concessions or free rent to
the extent that Xxxxxxxx considers advisable and necessary to relet the
same and (ii) may make such reasonable alterations, repairs and
decorations in the Premises as Landlord in its reasonable judgment
considers advisable and necessary for the purpose of reletting the
Premises; and the making of such alterations, repairs and decorations
shall not operate or be construed to release Tenant from liability
hereunder as aforesaid.
-26-
(e) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to
which Landlord may at any time be entitled lawfully, and Landlord may
invoke any remedy (including the remedy of specific performance)
allowed at law or in equity as if specific remedies were not herein
provided for.
(f) All reasonable, out-of-pocket costs and expenses incurred by or on
behalf of Landlord (including, without limitation, attorneys' fees and
expenses) in enforcing its rights hereunder or occasioned by any
Default of Tenant shall be paid by Xxxxxx.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
performance of any of the 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 specifying
wherein Landlord has failed to perform any such obligations.
-27-
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 HAZARDOUS MATERIALS. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any
biologically or chemically active or other hazardous substances, or
materials. Tenant shall not allow the storage or use of such substances
or materials in any manner not sanctioned by law or by the highest
standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Project any
such materials of substances except to use in the ordinary course of
Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without
limitation, hazardous substances and materials shall include those
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section
6901 et seq., any applicable state or local laws and the regulations
adopted under these acts. If any lender or governmental agency shall
ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall
be reimbursed by Tenant to Landlord upon demand as additional charges
if such requirement applies to the Premises. In addition, Xxxxxx shall
execute affidavits, representations and the like from time to time at
Landlord's request concerning Xxxxxx's best knowledge and belief
regarding the presence of hazardous substances of materials on the
Premises. In all events, Xxxxxx shall indemnify Landlord in the manner
elsewhere provided in this lease from any release of hazardous
materials on the Premises occurring while Tenant is in possession, or
elsewhere if caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination of
the Lease term.
14.2 WAIVER. (a) 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 the other's 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.
-28-
(b) 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 of the earliest installment of any payment
due from Tenant under the provisions hereof. 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.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant,subject to the terms and provisions
of this Lease, on payment of the basic Rent and Escalation Charges and
observing, keeping and performing all of the other terms and provisions
of this Lease on Tenant's part to be observed, kept and performed,
shall lawfully, peaceably and quietly have, hold, occupy and enjoy the
Premises during the term hereof, without hindrance or ejection by any
persons lawfully claiming under Landlord to have title to the Premises
superior to Tenant; the foregoing covenant of quiet enjoyment is in
lieu of any other covenant, express or implied.
14.4 LANDLORD'S LIABILITY. (a) Xxxxxx specifically agrees to look solely to
Xxxxxxxx's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically agreed
that Landlord (original or successor) shall never be personally liable
for any such judgment, or for the payment of any monetary obligation to
Tenant. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise
have to obtain injunction relief against Landlord or Landlord's
successors in interest, or to take any action not involving the
personal liability of Landlord (original or successor) to respond in
monetary damages from Xxxxxxxx's assets other than Landlord's equity
interest in the Property.
(b) With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to
furnish the same when prevented from doing so by strike, lockout,
breakdown, accident, order or regulation of or any governmental
authority, or failure of supply, or failure whenever and for so long as
may be necessary by reason of the making of repairs or changes which
Landlord is required or is permitted by this Lease or by law to make or
in good xxxxx xxxxx necessary (provided Landlord shall not materially
disturb Tenant's use of the Premises or the operation of the Tenant's
business) or inability by the
-29-
exercise of reasonable diligence to obtain supplies, parts or employees
necessary to furnish such services, or because of war or other
emergency, or for any other cause beyond Landlord's reasonable control,
or for any cause due to any act or neglect of Tenant or Tenant's
servants, agents, employees, licensees or any person claiming by,
through or under Tenant, nor shall any such failure give rise to any
claim in Tenant's favor that Tenant has been evicted, either
constructively or actually, partially or wholly; provided, however,
Landlord shall use reasonable efforts to restore any interrupted
services or utilities as quickly as possible; and provided, further,
that Landlord shall be liable for the negligence or willful misconduct
of Landlord or its employees, agents or contractors.
(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by
Tenant from whatever cause.
(d) With respect to any repairs, installations, or restoration which
are required or permitted to be made by Landlord, the same may be made
during normal business hours and Landlord shall have no liability for
damages to Tenant for inconvenience, annoyance, interruption, or loss
or damage to Tenant's business arising therefrom; provided, however,
Landlord shall not materially disturb Tenant's use of the Premises or
the operation of Tenant's business; provided, further, Landlord shall
in any event be liable for the negligence or willful misconduct of
Landlord or its agents, employees or contractors.
14.5 TRANSFER OF TITLE. In the event of any transfer of title to the
property by Landlord, Landlord shall thereafter be entirely freed and
relieved from the performance and observance of all future covenants
and obligations under this Lease, from and after such time of the
transfer of title, except for the claims of Tenant against Landlord
arising out of the events occurring prior to such transfer. Such
successor Landlord shall not be liable or responsible for any acts or
omissions of Landlord occurring prior to such transfer. The successor
Landlord shall be responsible from and after the date of such transfer
for the performance of all future covenants and obligations under this
Lease.
14.6 RULES AND REGULATIONS. Tenant shall abide by rules and regulations from
time to time established by Landlord, it being agreed that such rules
and regulations will be established and applied by Landlord in a
non-discriminatory fashion, such that all rules and
-30-
regulations shall be generally applicable to other tenants of the
Building. Xxxxxxxx agrees to use reasonable efforts to insure that any
such rules and regulations are uniformly enforced. In the event that
there shall be a conflict between such rules and regulations and the
provisions of this Lease, the provisions of this Lease shall control.
Such rules and regulations shall not require Tenant to incur greater
financial obligations with respect to the occupancy of the Premises.
14.7 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums under
this Lease designated as an Escalation Charge or additional charge,
Landlord shall have the same rights and remedies as Landlord has
hereunder for failure to pay Basic Rent.
14.8 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.
14.9 PROVISIONS BINDING, ETC. 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 Xxxxxx, but has reference only to those instances in which Landlord
may later give consent to a particular assignment if required by
Article VI hereof.
14.10 NOTICES. Whenever, by the terms of this Lease, notices shall or may be
given either to Landlord or to Tenant, such notice shall be in writing
and shall be sent by registered or certified mail, postage prepaid:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address (or to such other address or addresses as may from time to time
hereafter be designated by Landlord by like notice).
-31-
If intended for Tenant, addressed to Tenant at Tenant's Original
Address until the Commencement Date and thereafter to the Premises,
with a copy to Xxxxx, Xxxxxxx & Xxxxxxxxx, 000 Xxxx Xxxxxx, Xxxxxx, XX
00000 Attention: Real Estate Department (or to such other address or
addresses as may from time to time hereafter be designated by Tenant by
like notice).
All such notices shall be effective three days after being deposited in
the United States Mail within the continental United States, provided
that the same are received in ordinary course at the address to which
the same were sent.
14.11 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery
hereof by both Landlord and Xxxxxx. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and this Lease expressly supercedes any proposals
or other written documents relating hereto. This Lease 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.
14.12 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein
shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meanings of the provisions of this
Lease.
14.13 RIGHTS OF MORTGAGEE OR GROUND LESSOR. Landlord shall provide Tenant
with a written agreement (a "Non-Disturbance Agreement") from the
holder of any mortgage and the lessor under any ground lease affecting
the Premises to the effect that, if such holder forecloses such
mortgage, or such ground lessor terminates such ground lease, or either
such holder or such ground lessor otherwise exercises their respective
rights, such holder or ground lessor shall recognize Tenant's rights
under this Lease and shall not disturb Tenant's occupancy of the
Premises. Provided Tenant receives a Non-Disturbance Agreement from
each such holder or lessor, this Lease shall be subordinate to the
first mortgage or ground lease from time to time encumbering the
Premises, whether executed and delivered prior to or subsequent to the
date of this Lease, if the holder of such mortgage or ground lease
shall so elect. If this Lease is subordinate to the first mortgage or
ground lease and the holder thereof (or successor) shall
-32-
succeed to the interest of Landlord, Tenant shall attorn to such holder
and this Lease shall continue in full force and effect between such
holder under the terms of Tenant's Non-Disturbance Agreement with such
holder, (or successor) and Tenant. Xxxxxx further agrees to execute
such instruments which would cause the first mortgage to be subordinate
to the Lease, as such holder of the mortgage may request.
Landlord represents and warrants to Tenant that:
(i) Landlord is the holder of the lessee's interest under the
Lease Agreement (the "Ground Lease") between WRC Properties,
Inc., a Delaware corporation ("Ground Lessor"), and Landlord,
dated April 29, 1988, a short form of which has been recorded
with the Worcester County Worcester District of Deeds (the
"Registry") at Book 11630, Page 21.
(ii) To the best of Xxxxxxxx's knowledge, Ground Lessor is the
present holder of the lessor's interest under the Ground
Lease.
(iii) The Ground Lease is in full force and has not been amended,
modified, revoked or terminated, except by instruments
attached to this Lease as Exhibit GL.
(iv) The copy of the Ground Lease attached to this Lease as Exhibit
GL is a complete and accurate copy of the Ground Lease, which
represents the entire agreement between Landlord and Ground
Lessor with respect to the Property.
(v) Neither Landlord nor, to the best of Landlord's knowledge,
Ground Lessor as Exhibit GL is in default under the Ground
Lease, nor has any event occurred which, after any applicable
notice or the expiration of any applicable grace period, would
become a default under the Ground Lease by Landlord or, to the
best of Landlord's knowledge, Ground Lessor.
(vi) All rent, additional rent, and other charges due under the
Ground Lease have been paid through November, 1995.
(vii) To the best of Xxxxxxxx's knowledge, the only mortgage
encumbering the Property is a Security Agreement and Leasehold
Mortgage Deed from Landlord to Teachers Insurance and Annuity
Association of America, a New York corporation ("Teachers"),
dated May 24, 1989, and recorded with the Registry at Book
12116, page 158, as amended by a Mortgage Supplement,
Modification and
-33-
Amendment and Supplement, Amendment and Modification of
Assignment of Lessor's Interest in Lease(s) Agreement dated as
of June 1, 1991, and recorded with the Registry at Book 13627.
Page 47 (collectively, the "Mortgagee").
(viii) To the best of Xxxxxxxx's knowledge, Teachers is the present
holder of the Mortgage.
(ix) Landlord is not in default under the Mortgage, nor has any
event occurred which, after any applicable notice or the
expiration of any applicable grace period, would become a
default under the Mortgage.
14.14 STATUS REPORT. Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees,
ground lessors, or the like, the then current status of performance
hereunder, either party, on the request of the other made from time to
time, will within ten (10) days furnish to Landlord, or the holder of
any mortgage or ground lease encumbering the Premises, or to Tenant, as
the case may be, a statement (to the best of such party's knowledge) of
the status of any matter pertaining to this Lease, including, without
limitation, acknowledgements that (or the extent to which) each party
is in compliance with its obligations under the terms of this Lease.
14.15 REMEDYING DEFAULTS. Landlord shall have the right (after written notice
to Tenant and the expiration of any applicable grace period), but shall
not be required, to pay such reasonable sums or do any reasonable act
which requires the expenditure of monies which may be necessary or
appropriate by reason of a Default of Tenant and in the event of the
exercise of such right by Landlord, Xxxxxx agrees to pay to Landlord
forthwith upon demand all such sums, together with interest thereon at
a rate equal to 3% over the prime rate in effect from time to time at
the First National Bank of Boston as an additional charge. Any payment
of Basic Rent, Escalation Charges or other sums payable hereunder not
paid when due (after written notice to Tenant and the expiration of any
applicable grace period) shall, at the option of Landlord, bear
interest at a rate equal to 3% over the prime rate in effect at the
First National Bank of Boston from the due date thereof and shall be
payable forthwith on demand by Landlord, as an additional charge.
14.16 HOLDING OVER. Any holding over by Tenant after the expiration of the
Term of this Lease shall be treated as a daily tenancy at sufferance at
a rate equal to 1-1/2 times the Basic Rent in effect at the expiration
of the Term of this Lease plus Escalation Charges and other charges
herein provided (prorated on a daily basis). Tenant shall also pay to
Landlord all damages, direct
-34-
and/or indirect, sustained by reason of any such holding over.
Otherwise, such holding over shall be on the terms and conditions set
forth in this Lease as far as applicable.
14.17 WAIVER OF SUBBROGATION. Insofar as, and to the extent that, the
following provision may be effective without invalidating or making it
impossibe to secure insurance coverage obtainable from responsible
insurance companies doing business in the locality in which the
Property is located (even though extra premium may result therefrom),
Landlord and Tenant mutually agree that any property damage insurance
carried by either shall provide for the waiver by the insurance carrier
of any right of subrogation against the other, and they further
mutually agree that, with respect to any damage to property, the loss
from which is covered by insurance then being carried by them,
respectively, the one carrying such insurance and suffering such loss
releases the other of and from any and all liability with respect to
such loss to the extent of the insurance proceeds paid with respect
thereto.
14.18 SURRENDER OF PREMISES. Upon the expiration or earlier termination of
the Term of this Lease, Tenant shall peaceably quit and surrender to
Landlord the Premises in neat and clean condition and in as good order,
condition and repair as existed as of the Commencement Date, together
with all alterations, additions and improvements (other than Tenant's
Removable Property), which may have been made or installed in, on or to
the Premises prior to or during the Term of this Lease, excepting only
ordinary wear and use, eminent domain and damage by fire or other
casualty for which, under other provisions of this Lease, Tenant has no
responsibility of repair or restoration. Tenant shall remove all of
Tenant's Removable Property and shall repair any damages to the
Premises or the Building caused by such removal. Any Tenant's Removable
Property which shall remain in the Building or on the Premises after
the expiration or termination of the Term of this Lease shall be deemed
conclusively to have been abandoned, and either may be retained by
Landlord as its property or may be disposed of in such manner as
Landlord may see fit, at Tenant's sole cost and expense.
14.19 BROKERAGE. Tenant and Landlord warrant and represent that neither party
has dealt with any broker in connection with the consummation of this
Lease other than Xxxxxx, and, in the event of any brokerage claims
against Landlord predicated upon prior dealings with Xxxxxx, Xxxxxx
agrees to defend same and indemnify Landlord against any such claim
(except any claim by Xxxxxx). In the event of any brokerage claims
against the Tenant predicated upon prior dealings with Landlord,
Xxxxxxxx agrees to defend same and indemnify Tenant against any such
claim (except any claim by Xxxxxx).
-35-
14.20 GOVERNING LAW: This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts,
as the same may from time to time exist.
IN WITNESS WHEREOF, Xxxxxxxx and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in multiple
copies, each to be considered an original hereof, as of the date first set forth
above.
LANDLORD: Westborough Associates
Building Five Limited Partnership,
a Massachusetts limited partnership
By: Xxxxxx X. Xxxxx d/b/a Xxxxxx
Xxxxx Associates, its general
partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
TENANT: CacheLink Corp.
Attest: By: /s/ Xxxxxxx X. Xxxxx
------------------------ ------------------------------
Clerk Xxxxxxx X. Xxxxx, VP Finance
-36-
