LEASE
PARTIES:
THIS LEASE, made the 4th day of November, 1993, by and between X. XXXXXXX
XXXXXX and XXXXXX X. XXXXXXXX, XX., as TRUSTEES OF NEEDHAM 000 XXXXX XXXXXX
TRUST under Declaration of Trust dated October 1, 1982, registered with
Norfolk Registry District of the Land Court on Certificate of Title No.
115226 as Document No. 426829, having an office c/o Blakeley Investment Co.,
00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 (hereinafter, the "Landlord") and THE
MEDIPLEX GROUP, INC., a Massachusetts corporation having an office at 00
Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000 (hereinafter, the "Tenant").
W I T N E S S E T H:
PREMISES:
LANDLORD hereby leases to Tenant and Tenant hereby hires and takes from
Landlord all of the gross floor area in the building (the "Building") known
and numbered as 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx (consisting of
approximately 45,948 rentable square feet), and the land upon which the
Building is located described in Exhibit A annexed hereto, together with the
appurtenances including but not limited to all fixtures and equipment therein
and all common walkways and driveways necessary for access to the Building
and 154 parking spaces located in the open parking area adjacent to the
Building (which spaces shall be for Tenant's exclusive use), and any
replacements thereof (hereinafter, collectively, the "Premises"). The term
"Lot" shall mean all right, title and interest of the Landlord in and to the
land described in Exhibit A plus any
additions or deletions thereto resulting from the involuntary change of any
abutting street line. The term "Property" shall mean the Building and the
Lot.
USE:
To be used and occupied by Tenant for general business, administrative and
clerical office uses (but not retail sales), and all other uses incidental
and related thereto (the "Permitted Uses"). Tenant shall have access to the
Premises twenty-four (24) hours per day, seven (7) days per week.
TERM:
For a term (the "Term") of seven (7) years, commencing on February 1, 1994
(the "Commencement Date", as it may be extended pursuant to Section 2.2
hereof) and expiring at the close of the day on January 31, 2001, subject to
extension as hereafter provided. In the event that the existing tenant in the
Premises surrenders the Premises earlier than February 1, 1994, Landlord
agrees to allow Tenant to occupy the Premises within ten (10) days after such
surrender, and such date of occupancy by Tenant shall be deemed to be the
Commencement Date for all purposes under this Lease.
As used herein, the term "Lease Year" shall mean the period commencing on
the Commencement Date through and including the close of the day on the
twelve (12) month anniversary of the Commencement Date, and each successive
twelve (12) month period during the Term of this Lease.
Tenant shall have the option to extend the initial Term as to the entire
Premises for one (1) period of five (5) years, upon the same terms and
conditions then in effect with respect to the Premises, except for Annual
Fixed Rent, which shall be determined as provided hereinbelow, provided that
at the time such option to extend is exercised and at the expiration of the
initial Term Tenant shall not be in default under this Lease beyond any
applicable cure period.
The Annual Fixed Rent for such extension period payable with respect to
the Premises shall be the greater of (i) the prevailing fair market rental
rate for the Premises as of the date of commencement of the extension period,
as determined as hereinafter set forth, or (ii) the Annual
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Fixed Rate payable by Tenant with respect to the Premises for the last Lease
Year during the initial Term.
At any time within the last four (4) months of the sixth Lease Year,
Tenant may request Landlord to inform Tenant of the prevailing fair market
rental rate for the Premises which will be in effect for the extension
period, and in such event Landlord shall within thirty (30) days thereafter
notify Tenant in writing as to the prevailing fair market rental rate for the
extension period as of the commencement of the extension period, as
determined by Landlord.
If Tenant elects to exercise the option to extend the initial Term of this
Lease for the extension period, Tenant shall do so by written notice to
Landlord ("Tenant's Exercise") given not later than twelve (12) months prior
to the expiration of the seventh Lease Year. If Tenant fails to exercise the
extension option within the aforesaid time period, Landlord shall notify
Tenant in writing and if Tenant fails to exercise the extension option within
fifteen (15) days after Tenant's receipt of Landlord's notice Tenant's right
to such extension of the Term of this Lease shall expire. Tenant's Exercise
shall contain a statement from Tenant that it either accepts or rejects
Landlord's determination of the prevailing fair market rental rate for the
Premises. If Tenant rejects Landlord's determination of the prevailing fair
market rental rate for the Premises, then Tenant's Exercise shall also
contain the name of one appraiser. In such event Landlord shall, within
thirty (30) days of Landlord's receipt of Tenant's Exercise, provide Tenant
with written notice of a second appraiser, and these two appraisers shall
name a third within ten (10) days of the appointment of the second appraiser.
It shall then be the duty of the appraisers to ascertain the prevailing fair
market rental rate for the Premises, and if any appraiser shall neglect or
refuse to appear at any meeting appointed by the appraisers, a majority may
act in the absence of such appraiser. The appraisers' determination of the
prevailing fair market rental rate for the Premises shall be conclusive and
shall be binding upon Landlord and Tenant. Landlord and Tenant shall each be
responsible for the costs of their respective appraiser, and Landlord and
Tenant shall each be responsible for fifty percent (50%) of the costs of the
third appraiser. Any determination of far market rental rate of the Premises
shall take into account the then level of finish of the Premises.
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THIS LEASE is made upon the following additional terms and conditions,
which Landlord and Tenant covenant and agree to keep and perform:
ARTICLE I
RENT
1.1 Tenant shall pay, promptly when due, without notice or demand, the
Annual Fixed Rent calculated as follows:
Lease Year Annual Fixed Rent
1 $483,372.96
2 $490,265.16
3 $497,157.36
4 $504,049.56
5 $510,941.76
6 $517,833.96
7 $524,726.16
Annual Fixed Rent (sometimes hereinafter referred to as "Rent") shall be
paid in equal monthly installments in advance on the first day of each full
calendar month during the Term, and the corresponding fraction of said 1/12
for any period of less than one month at the beginning or end of the Term.
1.2 Additional Rent--Operating Expenses
1.2.1 Tenant shall be responsible for contracting and paying for all
services, including but not limited to utilities, necessary for
the operation of the Building, and Tenant agrees to pay, or
cause to be paid, all Operating Expenses for the Property.
Operating Expenses for the Property shall include, without
limitation, the following: (a) premiums for insurance
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carried with respect to the Property as set forth in Article XI
hereinbelow, (b) reasonable compensation and fringe benefits,
workmen's compensation insurance premiums and payroll taxes paid
to, or with respect to all persons actually engaged in the
operating, maintaining, or cleaning of the Building or Lot, (c)
steam, water, sewer, electric, gas, oil, and telephone charges,
(d) costs of building and cleaning supplies and equipment, (e)
cost of all maintenance, cleaning and repairs, except as set
forth in Article V below, (f) cost of snow removal and care of
landscaping, (g) payments under service contracts with
independent contractors, and (h) Building management fees, if
any, and all other ordinary and necessary expenses paid or
incurred in connection with the operation, cleaning and
maintenance of the Building and Lot.
1.2.2 If any Operating Expense for the Property shall not have been
paid as required hereinabove, then Landlord, after ten (10) days
written notice thereof to Tenant, may, but shall not be required
to, pay the same, and shall thereupon become entitled to
repayment of the substantiated amount thereof by Tenant as
Additional Rent.
1.2.3 Except as otherwise specifically provided herein, any sum,
amount, item or charge designated or considered as Additional
Rent in this Lease shall be paid by Tenant to Landlord on the
first day of the month following the date on which Landlord
notifies Tenant in writing of the amount payable (or on the
fifteenth day after the giving of such notice, whichever shall
be later). Any such notice shall specify in reasonable detail
the basis of such Additional Rent.
1.3 Tenant will pay the Rent or Additional Rent due to Landlord, or to
such other person as Landlord may from time to time designate in writing.
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ARTICLE II
CONDITION OF PREMISES:
DELIVERY OF PREMISES TO TENANT
2.1 Subject to the provisions of this Section, the Premises are being
leased in their condition as of the Commencement Date "as is", without
representation or warranty of any kind (except as contained in Section 5.1
hereof). Tenant specifically acknowledges that it has inspected the Building
and Lot and has found same to be satisfactory. The Premises shall be
delivered on the Commencement Date in the same condition as they are in as of
the date of execution of this Lease.
2.2 If Landlord is prevented from delivering possession of the Premises to
Tenant on February 1, 1994 (the "Commencement Date") because of delays caused
by strikes, riots, fire, acts of God, governmental intervention, refusal of
current occupant to vacate, acts or omissions of Tenant, or other causes
which are not within the reasonable control of Landlord (hereinafter,
individually or collectively, "Excusable Delay"), then the Commencement Date
shall be extended by one day for each day of an Excusable Delay.
Notwithstanding the foregoing, in the event such Excusable Delay shall exceed
an aggregate of 75 days, Tenant may, at its option, terminate this Lease by
notice delivered to Landlord not later than twenty (20) days after the
aggregate 75-day period (such right of termination being Tenant's sole and
exclusive remedy at law or in equity against Landlord for Landlord's failure
to so deliver possession of the Premises). Landlord acknowledges that Tenant
may have other rights and remedies against third parties such as any current
occupant, in the event possession cannot be delivered, none of which rights
and remedies are or shall be waived or relinquished by Tenant and are
expressly reserved herby. Landlord represents that the lease of the current
occupant of the Premises expires on January 31, 1994 and Landlord covenants
to use reasonable efforts to enforce the provisions of the lease of the
current tenant of the Premises in order to obtain possession for Tenant
hereunder in a timely manner.
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ARTICLE III
LANDLORD'S INTEREST AND ASSIGNMENT OF WARRANTIES
3.1 Landlord represents that it holds its interest in the Premises
pursuant to a duly registered deed, and that it has the right to make this
Lease for the Term aforesaid; that the provisions of this Lease do not
conflict with or violate the provisions of existing agreements between
Landlord and third parties.
3.2 Landlord shall assign to Tenant the benefit of any vendor's or
contractor's warranties received by Landlord on the Building or any component
thereof or equipment located or installed therein.
ARTICLE IV
TENANT'S COVENANTS
Tenant covenants during the Term and such further time as Tenant occupies
any part of the Premises:
4.1 to pay when due all Annual Fixed Rent and Additional Rent and all
other amounts due hereunder;
4.2 except as otherwise provided in Article V hereof, to keep the Premises
in good order, repair and condition, reasonable wear and tear, damage by fire
and other insured casualty and eminent domain only excepted, and all glass
windows (except glass in exterior walls unless the damage thereto is
attributable to Tenant's negligence or misuse) and doors of the Premises
whole and in good condition with glass of the same quality as that injured or
broken, damage by fire and other insured casualty and eminent domain only
excepted, and at the expiration or termination of this Lease peaceably to
yield up the Premises and all alterations and additions thereto in good
order, repair and condition, reasonable wear and tear, damage by fire,
insured casualty and eminent domain only excepted, first removing all goods
and effects of Tenant and, to the extent specified by Landlord by notice to
Tenant at least thirty (30) days before such expiration or termination, all
alterations and additions made by Tenant or on behalf of Tenant and all
partitions,
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and repairing any damage caused by such removal and restoring the Premises
and leaving them clean and neat. Tenant will furnish to Landlord, not later
than the termination of this Lease, a report, prepared at Tenant's expense by
an engineering firm qualified to make reports under Massachusetts General
Laws Chapter 21E and reasonably acceptable to Landlord, stating that the
Building and Lot have been examined for oil and hazardous waste contamination
and that no such contamination was found on the Building or Lot (or that such
contamination was found, but cleaned up and disposed of by Tenant and that
the Building and Lot are now free of such substances). Landlord shall present
Tenant with a similar report indicating the status of the Premises prior to
the Commencement Date;
4.3 continuously from the Commencement Date to use and occupy the Premises
for the Permitted Uses, and not to injure or deface the Premises, Building or
Lot, not permit in the Premises any inflammable fluids or chemicals (except
in accordance with law and with prior written notice to Landlord of Tenant's
intention to use same), or nuisance, or the emission from the Premises of any
objectionable noise, or odor, nor 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 office
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
which would invalidate or increase the premiums for any insurance on the
Building or its contents or which would render necessary any alteration or
addition to the Building;
4.4 to comply with all reasonable rules and regulations now or hereafter
made by Landlord of which Tenant has been given advance written notice, for
the care and use of the Building and Lot and their facilities and approaches;
4.5 in its use of the Premises, to comply with the requirements of all
applicable governmental laws, rules and regulations and to keep the Premises
equipped with all safety appliances required by law or ordinance or any other
regulation of any public authority, and to procure all required licenses and
permits and to comply with such licenses and permits. Landlord represents
that the Premises will comply with all applicable governmental laws, rules
and
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regulations on the Commencement Date (but this representation does not extend
to any permits or approvals that may be required with respect to Tenant's use
of the Premises other than for general office purposes). Without limiting the
generality of the foregoing, Tenant shall be responsible, in connection with
Tenant's use of the Premises, for compliance with the Americans with
Disabilities Act of 1990 (42 U.S.C. S.12101 et seq.) and the regulations and
Accessibility Guidelines for Buildings and Facilities issued pursuant thereto
(collectively, the "ADA Requirements");
4.6 not to place a load upon the Premises exceeding an average rate of 75
pounds of live load per square foot of floor area (partitions shall be
considered as part of the live load); and not to move any safe, vault of
other heavy equipment in, abut or out of the Premises except in such manner
and at such time as Landlord shall in each instance authorize, such
authorization not to be unreasonably withheld or delayed;
4.7 to pay promptly when due all taxes which may be imposed upon personal
property (including, without limitation, fixtures and equipment) in the
Premises to whomever assessed; and,
4.8 to vacate the Premises upon the end of the Term; should Tenant hold
over after the termination of this Lease, by lapse of time or otherwise,
Tenant shall become a daily tenant at sufferance at a rate equal to the then
fair market rental rate of the Premises but in no event less than 1-1/2 times
the Annual Fixed Rate in effect on the expiration or termination date. Tenant
shall also pay Landlord all direct and foreseeable damages (including any
loss of a tenant or rental income), 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.
ARTICLE V
MAINTENANCE AND REPAIRS
5.1 Landlord covenants and agrees that on the Commencement Date, the
Building interior will be reasonably clean, and the Building service systems
will be in good electrical, mechanical and operating condition.
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5.2 During the Term of this Lease Tenant shall take reasonable care of the
Premises and Landlord's fixtures and appurtenances therein and thereon and
shall perform all maintenance and make all repairs and replacements to the
Premises not specifically imposed upon Landlord by the express provisions
hereof. All repairs and replacements made by Tenant shall be equal in quality
to that in place on the Commencement Date.
5.3 Landlord's obligations under this Article shall consist of making all
structural repairs, replacements and alterations (but excluding general
maintenance and repairs of a non-structural nature) to the exterior and
bearing walls of the Building and support beams, and columns and lateral
support thereto, and to perform all repairs and restoration required by
Article X. Landlord's obligations do not include, without limitation, repairs
to or maintenance or replacement of plumbing or sewer lines, or the repair or
replacement of the roof membrane and deck, the HVAC systems or the primary
distribution electrical service equuipment, all of which shall be Tenant's
responsibility at Tenant's expense during the Term of this Lease or any
extension thereof, provided, however, that Tenant shall only be liable for
any such repairs, maintenance or replacement during the Term and Landlord
shall reimburse Tenant to the extent that the useful life of any such
repairs, maintenance or replacement exceed the Term.
5.4 Landlord reserves the right to stop any service or utility system,
when necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause thereof.
Except in case of emergency repairs, Landlord will give Tenant reasonable
advance notice of any contemplated stoppage and will use reasonable efforts
to avoid unnecessary inconvenience to Tenant by reason thereof.
Landlord shall not be liable to Tenant for any compensation or reduction
of rent by reason of inconvenience or annoyance or for loss of business
arising from the necessity of Landlord or its agents entering the Premises
for any of the purposes in this Lease authorized, or for repairing the
Premises or any portion of the Building however the necessity may occur. In
case Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any
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services or performing any other covenant or duty to be performed on
Landlord's part, by reason of any cause reasonably beyond Landlord's control,
Landlord shall not be liable to Tenant therefor, nor, except as expressly
otherwise provided in Section 10.1, shall Tenant be entitled to any abatement
or reduction of rent by reason thereof, nor shall the same give rise to a
claim in Tenant's favor that such failure constitutes actual or constructive,
total or partial, eviction from the Premises.
ARTICLE VI
SERVICES
Landlord shall not be required to furnish any services or utilities to the
Premises during the Term of this Lease, the Tenant hereby assuming full and
sole responsibility for the supply of and payment for such services and
utilities.
ARTICLE VII
IMPROVEMENTS
Subject to compliance with Articles IV and VIII hereof, Tenant may place
partitions, trade or other fixtures (including lighting fixtures), personal
property, machinery, equipment and the like in the Premises (collectively,
hereinafter "FF&E") and may make such improvements and alterations therein
and thereon as it may desire at its own expense. All such things heretofore
or hereafter made or installed by or for Tenant and paid for by Tenant shall
remain the property of Tenant and in case of damage or destruction thereto by
fire or other causes, Tenant shall have the right to recover the value
thereof as its own loss from any insurance company with which it has insured
the same, notwithstanding that any of such things might be considered a part
of the Premises. At the expiration or earlier termination of the Term, Tenant
shall remove all of FF&E and, to the extent specified by Landlord in advance
at the time of installation, all alterations and additions made by Tenant and
all partitions, and shall repair any damage to the Premises caused by such
removal. Any of such things which remain in the Premises after the expiration
or termination of this Lease shall be deemed conclusively to have been
abandoned, and either may be retained by
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Landlord as its property or may be disposed of in such manner as Landlord may
see fit, at Tenant's sole cost and expense. Notwithstanding the foregoing,
Tenant shall not be required to remove pipes, wires and the like from walls,
ceilings, or floors, provided Tenant properly cuts, disconnects and caps such
pipes and wires and seals them off, if necessary, in a safe and lawful
manner.
ARTICLE VIII
ALTERATIONS
8.1 Non-structural Changes. Tenant shall have the right, without the
consent of Landlord, at Tenant's sole cost and expense, to make
non-structural changes, alterations, additions, or improvements to or upon
the Premises which do not interfere with any heating, air-conditioning,
electrical or plumbing systems or structural element or the exterior of the
Building, provided Landlord is furnished copies of all working drawings
prepared in connection with such changes at least fifteen (15) days prior to
the commencement of such work (except as to changes which involve primarily
the movement of unfixed partitions, the configuration of Tenant space,
painting, flooring, relocation of doors, and replacement of hung ceiling
panels, in which event Landlord need not be furnished with copies of working
drawings). Non-structural changes, alterations, additions and improvements
shall include, without limitation, the installation, removal or relocation of
light fixtures, trade fixtures and partitions that are not bearing walls. If
any such non-structural changes, alterations, additions or improvements are
unusual in nature or not readily adaptable to normal office use at reasonable
expense, Landlord may, by notice delivered within fifteen (15) days of
Landlord's receipt of plans with respect thereto, require Tenant, upon
expiration of the Lease, to restore those portions of the Premises containing
such unusual modifications to the condition existing prior to the making of
such modifications.
8.2 Structural Changes. Tenant shall have the right, at Tenant's sole cost
and expense, to make structural changes, alterations, additions or
improvements to or upon the Premises, provided that Tenant obtains the prior
written consent of Landlord, which consent shall
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not be unreasonably withheld or delayed. Landlord shall not be deemed
unreasonable for withholding approval of any alterations or additions which
(a) involve or might affect any structural or exterior element of the
Building, or (b) will require unusual expense to re-adapt the Premises to
normal office use upon termination of the Lease or increase the cost of
insurance or taxes on the Building unless Tenant first gives assurance
acceptable to Landlord for payment of such increased cost and that such
re-adaptation will be made prior to such termination without expense to
Landlord.
8.2.1 At least thirty (30) days prior to commencing such work, Tenant
shall furnish Landlord with copies of he plans and
specifications for such work. Landlord agrees to review such
plans and specifications promptly upon receipt thereof, and to
notify Tenant of its approval or any comments within thirty (30)
days for such receipt.
8.2.2 As a condition of its consent, and simultaneously with the grant
thereof, Landlord may, in its reasonable discretion: (i) require
Tenant, at Tenant's sole cost and expense, to perform certain
additional work if such work is necessary to correct impairments
to the structure of the Building or to mechanical systems which
would be caused by the proposed changes; and/or (ii) notify
Tenant that Landlord will require Tenant, upon expiration of the
Lease, to restore portions or all of the Premises to the
condition existing prior to the making of such modifications if
(but only if) such structural changes, alterations, additions or
improvements are unusual in nature or not readily adaptable to
normal office use at a reasonable expense.
8.3 With respect to all work by Tenant pursuant to Section 8.1 or 8.2
hereof, Tenant shall secure all licenses and permits necessary therefor, and,
if requested by Landlord, deliver to Landlord a statement of the names of all
Tenant's contractors and subcontractors and the estimated cost of all labor
and material to be furnished by them. In the course of such work, Tenant
agrees (i) to use labor compatible with that being employed by Landlord for
work in or to the Building or
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other buildings within the New England Industrial Center owned by Landlord or
its affiliates, and not to employ or permit the use of any labor or otherwise
take any action which might result in a labor dispute involving personnel
providing services in the Building or other properties owned or managed by
Landlord or its affiliates. Tenant's contractors shall (i) carry general
liability insurance with limits of at least $1,000,000/$3,000,000, and
property damage insurance with limits of a least $1,000,000 (all insurance to
be written in companies reasonably approved by Landlord and insuring Landlord
and Tenant as well as the contractors), and deliver to Landlord certificates
of all such insurance, and (ii) in the event that the cost of such work
exceeds $50,000.00, have filed with Landlord xxxx xxxxx and the like in form
acceptable to Landlord.
8.4 Tenant agrees to pay promptly when due the entire cost of work to be
done on the Premises by Tenant, its agents, employees, or independent
contractors, and not to cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach to the Premises and
immediately to discharge any such liens which may so attach.
8.5 All construction work required or permitted by this Lease shall be
done in a good and workmanlike manner and in compliance with all applicable
laws and ordinances regulations and orders of governmental authority and
insurers of the Building, and shall be coordinated with any work being
performed by Landlord.
ARTICLE IX
INSPECTION
The Landlord shall, upon advance oral notice to Tenant (except in the case
of emergency), have the right at all reasonable times during business hours
to inspect the Premises and show the same to prospective mortgagees,
purchasers and/or tenants, and at all times to make repairs or replacements
as required by this Lease or as may be necessary, provided, however, that
Landlord shall use all reasonable efforts not to disturb Tenant's use and
occupancy of the Premises.
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ARTICLE X
FIRE, EMINENT DOMAIN, ETC.
10.1 Abatement of Rent. If the Premises shall be damaged by fire or
casualty, Annual Fixed Rent and other charges payable by Tenant shall xxxxx
proportionately for the period in which, by reason of such damage, there is
substantial interference with Tenant'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 upon
the earlier of (i) thirty (30) days after the date on which Landlord shall
have substantially restored the Premises (excluding any alterations,
additions or improvements made by Tenant) to the condition in which they were
prior to such damage, or (ii) the date on which Tenant moves back into the
affected space. If the Premises or access thereto shall be affected by any
exercise of the power of eminent domain, Annual Fixed Rent and other 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 Tenant. In no
event shall Landlord have any liability for damages to Tenant for
inconvenience, annoyance, or interruption of business arising from such fire,
casualty or eminent domain.
10.2 Landlord's Right of Termination. If the Premises 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 one hundred twenty (120) days from the time
the repair work would commence), or if any part of the Building is taken by
any exercise of the right of eminent domain, then Landlord shall have the
right to terminate this Lease (even if Landlord's entire interest in the
Premises may have been divested) by giving notice of Landlord's election so
to do within 60 days after the occurrence of such casualty or the effective
date of such taking, whereupon this Lease shall terminate thirty (30) days
after the date of such notice with the same force and effect at if such date
were the date originally established as the
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expiration date hereof. In the event that any such repairs are estimated to
take more than six (6) months to complete, Tenant may terminate this Lease by
giving Landlord written notice not later than fifteen (15) days after
Tenant's receipt of Landlord's estimate of such work period.
10.3 Restoration. If this Lease shall not be terminated pursuant to
Section 10.2, Landlord shall thereafter use due diligence to restore the
Premises (excluding any alterations, additions or improvements made by
Tenant) to proper condition for Tenant's use and occupation, provided that
Landlord's obligation shall be limited to the amount of insurance proceeds or
eminent domain award available therefor. If, for any reason, such restoration
shall not be substantially completed within four months after the expiration
of the 60-day period referred to in Section 10.2 (which four-month period may
be extended for such periods of time as Landlord is prevented from proceeding
with or completing such restoration for any cause beyond Landlord's
reasonable control), 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 (as so extended). 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, within such 30-day period,
Landlord substantially completes such restoration. Such right of termination
shall be Tenant's sole and exclusively remedy at law or in equity for
Landlord's failure so to complete such restoration.
10.4 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 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. Nothing contained herein shall be
construed to prevent Tenant from prosecuting in any condemnation proceedings
a claim for the value of any of Tenant's removable property, leasehold
improvements or FF&E 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.
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ARTICLE XI
INSURANCE
11.1 Tenant shall, from and after the Commencement Date hereof, maintain
insurance covering the Building against loss, damage or destruction caused by
boiler explosion, fire and the perils specified in the standard extended
coverage endorsement, and by vandalism and malicious mischief, and by
earthquake and flood, and for other risks customarily insured against by
owners of similar buildings in the vicinity of the Building. Coverage shall
equal one hundred percent (100%) of the replacement costs of the Building.
Tenant shall also maintain (i) liability insurance in the amount of at least
$1,000,000/$3,000,000, (ii) property damage insurance in the amount of at
least $3,000,000, or such greater amounts as Landlord shall from time to time
reasonably request, and (iii) if required by Landlord's lender, rent loss
insurance covering at least (12) months of rent. All such policies shall be
in form and substance reasonably acceptable to Landlord and shall name
Landlord (and those in privity of estate with Landlord) and Tenant as a loss
payee, and shall bear the endorsement that such policies shall not be
cancelled until after thirty (30) days written notice to Landlord. Tenant
shall deposit promptly with Landlord certificates evidencing such coverage.
11.2 Notwithstanding anything else to the contrary in this Lease
contained, the parties hereto agree that neither party, nor its agents,
employees, contractors or invitees, shall be liable to the other for loss or
damage caused by any risk covered by any of the insurance coverages herein
described, and in implementation hereof, the parties hereby agree as follows:
(a) If Landlord shall suffer any loss, damage, liability or expense for
which Tenant shall be obligated to pay Landlord, Tenant shall have as an
offset against said obligation the greater of (i) the net proceeds of any
insurance that Landlord receives with respect to such loss, damage, liability
or expense or (ii) the amount of insurance coverage Landlord has agreed to
obtain, regardless of whether Landlord actually has obtained it, if such
loss, damage, liability or expense shall have resulted from a risk or peril
required hereunder to have been covered by such insurance.
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(b) If Tenant shall suffer any loss, damage, liability or expense for
which Landlord shall be obligated to pay Tenant, Landlord shall have as an
offset against said obligation the greater of (i) the net proceeds of any
insurance that Tenant receives with respect to such loss, damage, liability
or expense or (ii) the amount of insurance coverage Tenant has agreed to
obtain, regardless of whether Tenant actually has obtained it, if such loss,
damage, liability or expense shall have resulted from a risk or peril
required hereunder to have been covered by such insurance.
(c) Notwithstanding the foregoing with respect to the offset in the amount
of insurance proceeds received, the parties acknowledge that such offset
shall not cause the insurer which has paid the proceeds to declare the
governing policy invalid. The parties therefore mutually agree that each
shall obtain a rider to, endorsement on, or clause in, any insurance policy
covering the Premises and the Building and personal property, fixtures and
equipment located therein by which their insurers shall waive subrogation. By
virtue of such rider, endorsement, or clause, the parties hereby agree that
they will not make any claim against or seek to recover from each other for
any loss or damage to their own property or to the property of others by
reason of a risk or peril covered by such insurance.
11.3 Tenant agrees and acknowledges that all of the furnishings, fixtures,
equipment, effects and property of every kind, nature and description of
Tenant and of all persons claiming by, through or under Tenant which, during
the continuance of this Lease or any occupancy of the Premises by Tenant or
anyone claiming under Tenant, may be on the Premises or elsewhere in the
Building or on the Lot, shall be at the sole risk and hazard of Tenant, and
if the whole or any part thereof shall be destroyed or damaged by fire water
or otherwise, or by the leakage or bursting of water pipes, steam pipes, or
other pipes, by theft or from any other cause, no part of said loss or damage
is to be charged to or be borne by Landlord.
11.4 Tenant hereby covenants that in the event of any loss, damage or
destruction of the Building and improvements on the Premises which Landlord
is required by the operation of Article X to repair and restore, the proceeds
which are payable under policies of insurance carried by Tenant, together
with the amount of any deductible limits established by Tenant, shall upon
request
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of Landlord, first be paid over to Landlord to repair and reconstruct the
Building and improvements on the Premises to the extent required by this
Lease, before such proceeds are applied in any other manner including,
without limitation, the satisfaction of Tenant's debts secured by a mortgage
or other lien instrument, or interest thereon.
ARTICLE XII
TAXES
12.1 (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. The term "Taxes" shall mean real estate taxes and
other taxes, levies and assessments imposed upon the Property; charges, fees,
assessments and payments for transit, housing, police, fire or other
governmental services or purported benefits to the Property; and service or
user payments in lieu of taxes. Betterment assessments and interest thereon
shall be apportioned equally over the longest period permitted by law. Taxes
for the years in which this Lease commences and terminates shall be prorated.
(b) Tenant shall pay all Taxes assessed on the Property during the Term of
this Lease on or before the date upon which they are due to be paid without
interest. Promptly after receipt by Landlord of bills for such Taxes,
Landlord shall advise Tenant of the amount thereof (and shall provide Tenant
with a copy of same) and the computation of Tenant's payment on account
thereof. Landlord shall have the same rights and remedies for the non-
payment by Tenant of any payments due on account of Taxes as Landlord has
hereunder for the failure of Tenant to pay Annual Fixed Rent.
12.2 (a) If some method or type of taxation shall replace the current
method of assessment of real estate taxes in whole or in part, or the type
thereof, or if additional types of taxes are imposed upon the Property or
Landlord relating to the Property, Tenant agrees that Tenant shall pay the
same as an additional charge.
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(b) If a tax (other than Federal or State income tax) is assessed on
account of the rents or other charges payable by Tenant to Landlord under
this Lease, Tenant agrees to pay the same as an additional charge within ten
(10) days after billing therefor, unless applicable law prohibits the payment
of such tax by Tenant.
12.3 Tenant shall have the right, by appropriate proceedings, to protest
or contest any assessment or re-assessment for Taxes, or any special
assessment, or the validity of either, or of any change in assessments or the
tax rate.
12.4 In any such contest or proceedings, Tenant may act in its own name
and/or the name of Landlord and Landlord will, at Tenant's request, cooperate
with Tenant in any way Tenant may reasonably require in connection with such
contest or proceedings. Landlord shall sign such consents or other documents
as Tenant may reasonably request. Any contest or proceedings conducted by
Tenant shall be at Tenant's expense and, in the event any penalties, interest
or late charges become payable with respect to the Taxes as a result of such
contest, Tenant shall pay the same. Landlord shall be solely responsible for
the payment of any penalties, interest or late charges which are imposed
through no fault of Tenant.
12.5 Tenant shall be entitled to receive any tax refunds properly
allocable to the Term of this Lease, as it may be extended, and relating to
Taxes paid by Tenant, as a result of any such contests or proceedings.
ARTICLE XIII
SIGNS
Tenant shall have the exclusive right to place its signs anywhere in, on
and about the Building, the Lot and land, provided the same are in compliance
with law, are first approved by Landlord which approval shall not be
unreasonably withheld or delayed, are purchased and installed at the sole
cost and expense of Tenant and are removed from the Premises at the
expiration or earlier termination of the Term hereof.
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ARTICLE XIV
DEFAULT
14.1 (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 Annual Fixed Rent 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 written notice to Tenant specifying such neglect
or failure, or if such failure is of such a nature that Tenant
cannot reasonably remedy the same within such thirty (30) day
period, Tenant shall fail to commence promptly to remedy the same
and to prosecute such remedy to completion with diligence and
continuity; or
(iii) Tenant's leasehold interest in the Premises shall be taken
on execution or by other process of law directed against Tenant;
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,
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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) 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);
then in any such case (1) if such Default of Tenant shall occur prior to
the Commencement Date, this Lease shall ipso facto, and without further act
on the part of Landlord, terminate, and (2) if such Default of Tenant shall
occur after the Commencement Date, Landlord may terminate this Lease by
notice to Tenant, and thereupon this Lease shall come to an end 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 be 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, then Landlord may, without notice, re-enter the Premises, either
by summary proceedings, ejectment or otherwise, 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, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end.
(c) In the event of any termination, Tenant shall pay the Annual Rent 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 liquidated current damages, the Annual Fixed Rent 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
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Premises, after deducting all reasonable expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, advertising, expenses of
employees, alteration costs and expenses of preparation for such reletting.
Tenant shall pay such current damages to Landlord monthly on the days which
the Annual Rent would have been payable hereunder if this Lease had not been
terminated.
(d) At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in lieu
of all such current damages beyond the date of such demand, at Landlord's
election Tenant shall pay to Landlord an amount equal to the aggregate of the
Annual Fixed Rent and other charges accrued under the Lease in the twelve
(12) months ended next prior to such termination plus the amount of Annual
Fixed Rent and other charges of any kind accrued and unpaid at the time of
termination.
(e) In the case of any Default of Tenant, re-entry, expiration and
dispossession by summary proceeding or otherwise, Landlord may (i) re-let 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 Landlord reasonably considers advisable and
necessary to re-let the same and (ii) may make such reasonable alterations,
repairs and decorations in the Premises as Landlord in its sole judgment
considers advisable and necessary for the purpose of re-letting 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.
Landlord shall in no event be liable in any way whatsoever for failure to
re-let the Premises provided that Landlord agrees to use commercially
reasonable efforts to re-let the Premises, or, in the event that the Premises
are re-let, for inability reasonably to collect the rent under such
re-letting. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed, or in the event of Landlord obtaining possession of
the Premises, by reason of the violation by Tenant of any of the covenants
and conditions of this Lease.
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(f) 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 to 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.
(g) All reasonable costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses) in enforcing
its rights hereunder or occasioned by any Default of Tenant shall be paid by
Tenant.
14.2 Landlord shall in no event be in default of 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 specifying wherein Landlord has failed to perform any such
obligations.
ARTICLE XV
NOTICES
Whenever, by the terms of this Lease, notices, consents or approvals shall
or may by given either to Landlord or to Tenant, such notices, consents or
approvals shall be in writing and shall be sent by registered or certified
mail, postage prepaid, or by a recognized national courier service
("Courier"):
If intended for Landlord, addressed to Landlord at Landlord's address
first set forth above (or to such other address as may from time to time
hereafter be designated by Landlord by like notice), with a copy to
Xxxxxxx X. Xxxxxx, Esq., 00 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX
00000.
If intended for Tenant, addressed to Tenant at Tenant's address first
set forth above until the Commencement Date and thereafter to the
Premises (or to such other address or addresses as may from time to time
hereafter be designated by Tenant by like notice.)
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All such notices shall be effective when deposited in the United States Mail
within the Continental United States, or the next day if sent by Courier,
provided that the same are received in ordinary course at the address to
which the same were sent.
ARTICLE XVI
ASSIGNMENT AND SUBLETTING
16.1 Tenant may assign this Lease or sublet the Premises or any portion
thereof with the prior written consent of Landlord, which consent may be
withheld at Landlord's sole discretion except as hereinafter expressly
otherwise provided. Landlord agrees not to withhold its consent to any
assignment of this Lease or subletting of all or any portion of the Premises,
provided Tenant requests same in writing ("Tenant's Request"), and provided
(i) at the time thereof Tenant is not in default under this Lease beyond any
applicable cure period; (ii) Landlord, in its discretion reasonably
exercised, determines that the reputation, business, proposed use of the
Premises by, and financial responsibility of, the proposed assignee or
sublessee, as the case may be, are satisfactory to Landlord; (iii) any
assignee or sublessee shall expressly assume all obligations of this Lease on
Tenant's part to be performed; (iv) such consent, if given, shall not release
Tenant of any of its obligations under this Lease (including, without
limitation, its obligation to pay rent) and Tenant's liability after any
assignment or subletting shall be joint and several with the assignee or
sublessee; (v) Tenant shall reimburse Landlord promptly for reasonable legal
and other expenses incurred by Landlord in connection with Tenant's Request;
(vi) Tenant agrees specifically to pay over to Landlord, as additional rent,
fifty percent (50%) of all sums provided to be paid under the terms and
conditions of such assignment or sublease which are in excess of the amounts
otherwise required to be paid pursuant to this Lease; and (vii) a consent to
one assignment or subletting to any other person shall not be deemed to be a
consent to any subsequent assignment or subletting. Any assignment,
subletting or occupancy without Landlord's prior consent shall be void and
shall, at the option of Landlord, constitute a default under this Lease.
Neither this Lease nor any interest
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therein shall be assignable as to the interest of Tenant by operation of law
without the prior written consent of Landlord, which consent may be
arbitrarily withheld. Tenant agrees that in the event that Landlord withholds
its consent to Tenant's Request contrary to the provisions of this paragraph,
Tenant's sole remedy shall be to seek an injunction in equity to compel
performance by Landlord to give its consent to Tenant's Request, and Tenant
expressly waives any right to damages in the event of such withholding of
consent by Landlord to Tenant's Request.
16.2 The provisions of Section 16.1 shall apply to a transfer (by one or
more transfers) of a majority of the stock or partnership interests, or other
evidences of ownership of Tenant as if such transfer were an assignment of
this Lease; but such provisions shall not apply to transactions with an
entity into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets are transferred or to any entity which
controls or is controlled by Tenant or is under common control with Tenant,
provided that in any of such events (i) the successor to Tenant has a net
worth computed in accordance with generally accepted accounting principles at
least equal to the net worth of Tenant immediately prior to such merger,
consolidation or transfer, (ii) proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least 10 days prior to the
effective date of any such transaction, and (iii) the assignee agrees
directly with Landlord, by written instrument in form satisfactory to
Landlord, to be bound by all the obligations of Tenant hereunder including,
without limitation, the covenant against further assignment or subletting;
and provided further that this Section 16.2 shall not apply to the transfer
of stock of Tenant so long as the stock of Tenant is publicly traded on a
nationally recognized stock exchange.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 Extra Hazardous Use. Tenant covenants and agrees that Tenant will not
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 property
or liability insurance on the Premises or of the Building
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above the standard rate applicable to premises being occupied for Permitted
Uses unless Tenant notifies Landlord in advance of such event and then
promptly pays to Landlord, on demand, any such increase resulting therefrom
which shall be due and payable as an additional charge hereunder, or provides
to Landlord insurance certificates indicating coverage for same at Tenant's
sole expense protecting Landlord and Tenant.
17.2 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.
(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.
17.3 Covenant of Quiet Enjoyment. Tenant, subject to the terms and
provisions of this Lease, on payment of the Annual Fixed Rent and all other
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
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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.
17.4 Landlord's Liability. (a) Tenant specifically agrees to look solely
to Landlord'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 injunctive
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 Landlord's assets other than
Landlord's equity interest in the Property.
(b) With respect to any services 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 by any governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts
or employees necessary to furnish such services, or because of war or other
emergency, or for any 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.
(c) In no event shall Landlord ever be liable to Tenant for any indirect
or consequential damages suffered by Tenant from whatever cause.
(d) With respect to any repairs 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 or interruption of business arising therefrom;
provided that Landlord agrees to use reasonable efforts to minimize
interference with Tenant's business.
17.5 Notice to Mortgagee or Ground Lessor. After receiving notice from any
person, firm or other entity that it holds a mortgage or a ground lease which
includes the Premises,
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no notice from Tenant to Landlord alleging any default by Landlord shall be
effective unless and until a copy of the same is given to such holder or
ground lessor (provided Tenant shall have been furnished with the name and
address of such holder or ground lessor), and the curing of any of Landlord's
defaults by such holder or ground lessor shall be treated as performance by
Landlord.
17.6 Assignment of Rents and Transfer of Title. (a) 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 on property which includes the Premises,
Tenant agrees that the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage, shall never be treated as an
assumption by such holder of any of the obligations of Landlord hereunder
unless such holder shall, by notice sent to Tenant, specifically otherwise
elect and that, except as aforesaid, such holder 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.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases Landlord's
entire interest in the Property 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. 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. In the event of a sale or leaseback, the purchaser shall
provide to Tenant a non-disturbance and attornment agreement whereby such
purchaser agrees to recognize the Lease (and Tenant agrees to attorn in such
event) in the event that the seller/lessee defaults.
(c) Except as provided in paragraph (b) of this Section, in the event of
any transfer of title to the Property by Landlord, Landlord shall thereafter
be entirely freed and relieved from the
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performance and observance of all covenants and obligations hereunder arising
after the date of such transfer.
17.7 Tenant's Indemnity. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to defend, indemnify and save
harmless Landlord from and against all claims, loss, liability, costs and
damages of whatever nature arising from any default by Tenant under this
Lease or from the following: (i) from any accident, injury or damage
whatsoever to any person, or to the property of any person, occurring in or
about the Building or Lot (except those due to Landlord's gross negligence or
willful misconduct); or (ii) in connection with the conduct or management of
the Premises or of any business therein, or any thing or work whatsoever
done, or any condition created (other than by Landlord) in or about the
Premises; and, in any case, occurring after the date of this Lease, until the
end of the Term of this Lease, and thereafter so long as Tenant is in
occupancy of the Premises. This indemnity and hold harmless agreement shall
include indemnity against all reasonable 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 and costs at both the trial and appellate levels.
Landlord agrees to defend, indemnify and save harmless Tenant from and
against all claims, loss, liability, costs and damages of whatever nature
arising from any accident, injury or damage whatsoever to any person, or to
the property of any person, occurring in or about the Building or Lot, where
such accident, injury or damage is due solely to Landlord's gross negligence
or willful misconduct.
17.8 Additional Charges. If Tenant shall fail to pay when due any sums
under this Lease as an additional charge, Landlord shall have the same rights
and remedies as Landlord has hereunder for failure to pay Annual Fixed Rent.
17.9 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
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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.
17.10 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 or Landlord 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 later give consent to
a particular assignment as provided elsewhere in this Lease.
17.11 Recording. Tenant agrees not to record this Lease, but each party
hereto agrees, on the request of the other, to execute a so-called notice of
lease in form recordable and complying with applicable law and reasonably
satisfactory to Landlord'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 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.
17.12 When Lease Becomes Binding. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall become
effective and binding only upon the execution and delivery hereof by both
Landlord and Tenant. All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein and this
Lease expressly supersedes any proposals or other written documents relating
hereto. This Lease may be modified or altered only by written agreement
between Landlord and Tenant, and no act or omission of any employee or agent
of Landlord shall alter, change or modify any of the provisions hereof.
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17.13 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 meaning of the provisions of this Lease.
17.14 Rights of Mortgagee or Ground Lessor. This Lease shall be
subordinate to any 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
provided that the holder of such mortgage or ground lease shall provide
Tenant with such holder's standard form of subordination, non-disturbance and
attornment agreement (the "Agreement"). With respect to the mortgage in
existence at the date of this Lease, it shall be a condition to Tenant's
obligations under this Lease that Tenant be provided with a subordination,
non-disturbance and attornment agreement, in the form attached hereto as
Exhibit ND, signed by the holder of such mortgage. If this Lease is
subordinate to any mortgage or ground lease and the holder thereof (or
successor) shall succeed to the interest of Landlord, Tenant shall attorn to
such holder (or successor) and this Lease shall continue in full force and
effect between such holder (or successor) and Tenant in accordance with the
Agreement. Tenant agrees to execute such Agreement in confirmation of the
foregoing provisions as such holder may request, and Tenant hereby appoints
such holder (or successor) as Tenant's attorney-in-fact to execute such
Agreement upon default of Tenant in complying with such holder's (or
successor's) request.
17.15 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
promptly furnish to the Landlord, or the holder of any mortgage or ground
lease encumbering the Premises, or to Tenant, as the case may be, a statement
of the status of any matter
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pertaining to this Lease, including, without limitation, acknowledgement that
(or the extent to which) each party is in compliance with its obligations
under the terms of this Lease.
17.16 Remedying Defaults. Landlord shall have the right, but shall not be
required, to pay such sums or to do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or
neglect of Tenant to perform any of the provisions of this Lease, and in the
event of the exercise of such right by Landlord, Tenant agrees to pay to
Landlord forthwith upon demand all such sums, together with interest thereon
at a rate equal to 4% over the prime rate in effect from time to time at the
First National Bank of Boston as an additional charge. Any payment of Annual
Fixed Rent or other sums payable hereunder not paid when due shall, at the
option of Landlord, bear interest at a rate equal to 4% over the prime rate
in effect from time to time 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.
17.17 Brokerage. Tenant warrants and represents that Tenant has dealt with
no broker in connection with the consummation of this Lease other than
Whittier Partners (the "Broker"), whose commission Landlord shall pay, and,
in the event of any brokerage claims against Landlord predicated upon prior
dealings with Tenant, Tenant agrees to defend the same and indemnify Landlord
against any such claim (except any claim by the Broker).
Landlord warrants and represents that Landlord has dealt with no broker in
connection with the consummation of this Lease other than the Broker, whose
commission Landlord shall pay, and, in the event of any brokerage claims
against Tenant predicated upon prior dealings with Landlord, Landlord agrees
to defend the same and indemnify Tenant against any such claim.
17.18 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.
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IN WITNESS WHEREOF, Landlord 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.
NEEDHAM 000 XXXXX XXXXXX TRUST
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------------
Xxxxxx X. Xxxxxxxx, Xx., as Trustee but
not individually
By: /s/ X. Xxxxxxx Forbes
----------------------------------------
X. Xxxxxxx Xxxxxx, as Trustee but not
individually
THE MEDIPLEX GROUP, INC.
By: /s/ Xxxxx X. Xxxx
------------------------
Title: Vice Pres, COO
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EXHIBIT C
TO SUBLEASE
SUBLESSOR'S SERVICES
I. CLEANING
A. Lobby and Common Areas (nightly)
1. Empty all trash receptacles; clean receptacles as needed.
2. Vacuum all floors and carpets.
3. Vacuum all floor mats; wash as required.
4. Clean all entrance doors.
5. Dust all picture frames.
6. Dust all architectural or sculpted works or art.
7. Dust all furniture.
8. Remove stains and fingerprints from walls, doors, light switches, etc.
9. Clean building directory.
10. Clean and disinfect all telephones.
11. Clean and disinfect all water fountains.
12. Clean all baseboards.
13. Vacuum elevator carpets; remove stains as needed.
14. Vacuum and wash all elevator tracks.
15. Clean, wash and shine all doors, walls, and metal work in elevators.
16. Clean all exit signs, and hanging fixtures.
B. Office Areas (nightly)
17. Remove trash; replace liners as needed.
18. Wash out trash basket as needed.
19. Dust all clothing closets, shelving and coat racks.
20. Clean all glass furniture tops, and display cases.
21. Remove fingerprints from doors, walls, light switches.
22. Vacuum all floors and carpeting.
23. Vacuum all floor mats.
24. Dry mop all tile floors.
25. Remove waste to designated area.
26. Upon completion of work shut off lights and secure doors.
C. Office Areas (weekly)
27. Dust all desk tops, office furniture, picture frames, window xxxxx,
horizontal surfaces.
28. Clean and polish wood flooring.
D. Offices Areas (monthly)
29. Dust all light fixture grids.
E. Lavatories (nightly)
30. Sweep and wash floors using a disinfectant cleaner.
31. Wash and polish all mirrors, shelves, brightwork, and enameled surfaces.
32. Wash and shine all flushometers, piping, and toilet seat hinges.
33. Wash and wipe dry both sides of all toilet seats.
34. Wash and disinfect all basins, bowls, and urinals.
35. Wipe down all tile walls, partitions, dispensers and receptacles.
36. Dust and clean all powder room fixtures.
37. Empty and clean paper towel and sanitary napkin receptacles.
38. Remove waste paper and refuse from the premises.
39. Refill all toilet paper, paper towel, soap and sanitary napkin
dispensers, materials to be supplied by Sublessor.
II. HEATING, VENTILATING, AND AIR CONDITIONING AND LIGHTING
40. Heating, ventilating, and air conditioning ("HVAC") as required to
provide reasonably comfortable temperatures for normal occupancy to
Premises and Common Areas on Business Days (excepting holidays); Monday
through Friday from 8:00 a.m. to 6:00 p.m. and Saturday from 8:00 a.m.
to 1:00 p.m., provided, however, that the hours of such services shall
not be less than the hours provided to any other tenant of the Building.
41. Maintenance of any additional or special air conditioning equipment and
the associated operating cost will be at Sublessee's expense.
42. Sublessor has the general obligation to keep the exterior portion of the
Building properly lighted at all reasonable times.
III. SECURITY
43. Sublessor shall maintain the card-key door security system in proper
working order.
IV. MISCELLANEOUS
44. Sublessor shall provide all other basic services as reasonably requested
by Sublessee.
