Exhibit 10.28
NORTHWEST PARK
L E A S E
ARTICLE 1
REFERENCE DATA
1.1 SUBJECT REFERRED TO.
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Section 1.1.
DATE OF THIS LEASE: October 22, 1999
BUILDING: The single-story Building located in
Northwest Park in Burlington,
Massachusetts (hereinafter referred
to as the "Park") on a parcel of
land known as 00 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx (the
Building and such parcel of land
hereinafter being collectively
referred to as the "Property").
PREMISES: A portion of the Building,
substantially as shown on Exhibit A
attached hereto.
RENTABLE FLOOR
AREA OF PREMISES: Approximately 14,462 square feet
LANDLORD: Xxxxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxxx, as Trustees of N.W.
Building 1 Associates under
Declaration of Trust dated November
11, 1984 and filed with the
Middlesex South Registry District
of the Land Court as Document
#674807.
ORIGINAL NOTICE
ADDRESS OF LANDLORD: c/x Xxxxxxxx Management Company,
Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
TENANT: iBasis, Inc., a ________ corporation
ORIGINAL NOTICE
ADDRESS OF TENANT: 00 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
EXPIRATION DATE: April 30, 2005
DELIVERY DATE: January 1, 2000
RENT COMMENCEMENT
DATE: The earlier of (i) January 1, 2000
or (ii) the Commencement Date
(defined in Section 2.2)
ANNUAL FIXED RENT RATE: $231,392.00 through March 31, 2002;
and $260,316.00 thereafter.
MONTHLY FIXED RENT RATE: $19,282.67 through March 31, 2002;
and $21,693.00 thereafter.
LETTER OF CREDIT AMOUNT: $100,000.00, subject to reduction
pursuant to Section 4.4.
TENANT'S PERCENTAGE: The ratio of the Rentable Floor
Area of the Premises to the total
rentable area of the Building,
which shall initially be deemed to
be 53.16%.
INITIAL ESTIMATE OF
TENANT'S PERCENTAGE OF
TAXES FOR THE TAX YEAR:
INITIAL ESTIMATE OF
TENANT'S PERCENTAGE OF
OPERATING COSTS FOR THE
CALENDAR YEAR:
PERMITTED USES: Offices, and uses incidental
thereto.
PUBLIC LIABILITY INSURANCE LIMITS:
COMPREHENSIVE GENERAL LIABILITY: $2,000,000 per
occurrence
$4,000,000 general
aggregate
1.2 EXHIBITS.
The Exhibits listed below in this section are incorporated in this
Lease by reference and are to be construed as a part of this Lease.
EXHIBIT A Plan showing the Premises.
EXHIBIT B Commencement Date Notification
EXHIBIT C Work Letter
EXHIBIT D Work Change Order
EXHIBIT E Rules and Regulations
EXHIBIT F Form Tenant Estoppel Certificate
EXHIBIT G Form of Letter of Credit
1.3 TABLE OF ARTICLES AND SECTIONS.
ARTICLE 1 -- REFERENCE DATA
1.1 Subjects Referred To............................................................................1
1.2 Exhibits........................................................................................1
1.3 Table of Articles and Sections..................................................................2
ARTICLE 2 -- PREMISES AND TERM
2.1 Premises........................................................................................3
2.2 Term............................................................................................3
2.3 Extension Option................................................................................3
ARTICLE 3 -- IMPROVEMENTS
3.1 Performance of Work and Approval of Landlord's Work............................................4
3.2 Acceptance of the Premises......................................................................4
3.3 Sidewalk Construction...........................................................................4
ARTICLE 4 -- RENT
4.1 The Fixed Rent..................................................................................4
4.2 Additional Rent.................................................................................4
4.2.1 Real Estate Taxes......................................................................4
4.2.2 Personal Property Taxes................................................................5
4.2.3 Operating Costs........................................................................5
4.2.4 Insurance..............................................................................5
4.2.5 Utilities..............................................................................6
4.3 Late Payment of Rent..............................................................................6
4.4 Letter of Credit..................................................................................6
4.4.1 Amount of Letter of Credit.............................................................6
4.4.2 Renewal of Letter of Credit............................................................6
4.4.3 Draws to Cure Defaults.................................................................6
4.4.4 Draws to Pay Damages...................................................................6
4.4.5 Draws for Failure to Deliver Substitute Letter of Credit...............................6
4.4.6 Return of Letter of Credit at End of Term..............................................7
ARTICLE 5 -- LANDLORD'S COVENANTS
5.1 Affirmative Covenants...........................................................................7
5.1.1 Heat and Air Conditioning..............................................................7
5.1.2 Electricity............................................................................7
5.1.3 Cleaning; Water........................................................................7
5.1.4 Fire Alarm; Security...................................................................7
5.1.5 Repairs................................................................................7
5.1.6 Landscaping; Grounds Maintenance.......................................................7
5.1.7 Access.................................................................................7
5.2 Interruption....................................................................................7
5.3 Outside Services................................................................................7
5.4 Landlord's Insurance............................................................................7
ARTICLE 6 -- TENANT'S ADDITIONAL COVENANTS
6.1 Affirmative Covenants...........................................................................7
6.1.1 Perform Obligations....................................................................7
6.1.2 Use....................................................................................7
6.1.3 Repair and Maintenance.................................................................7
6.1.4 Compliance with Law....................................................................8
6.1.5 Indemnification........................................................................8
6.1.6 Landlord's Right to Enter..............................................................8
6.1.7 Personal Property at Tenant's Risk.....................................................8
6.1.8 Payment of Landlord's Cost of Enforcement..............................................8
6.1.9 Xxxxx Up...............................................................................8
6.1.10 Rules and Regulations..................................................................8
6.1.11 Estoppel Certificate...................................................................8
6.1.12 Landlord's Expenses Re: Consents......................................................8
6.2 Negative Covenants..............................................................................9
6.2.1 Assignment and Subletting..............................................................9
6.2.2 Nuisance...............................................................................9
6.2.3 Hazardous Wastes and Materials.........................................................9
6.2.4 Floor Load; Heavy Equipment...........................................................10
6.2.5 Installation, Alterations or Additions................................................10
6.2.6 Abandonment...........................................................................10
6.2.7 Signs.................................................................................10
6.2.8 Parking and Storage...................................................................10
ARTICLE 7 -- CASUALTY OR TAKING
7.1 Termination....................................................................................10
7.2 Restoration....................................................................................10
7.3 Award..........................................................................................10
ARTICLE 8 -- DEFAULTS
8.1 Events of Default..............................................................................10
8.2 Remedies.......................................................................................11
8.3 Remedies Cumulative............................................................................11
8.4 Landlord's Right to Cure Defaults..............................................................11
8.5 Effect of Waivers of Default...................................................................11
8.6 No Waiver, etc.................................................................................11
8.7 No Accord and Xxxxxxxxxxxx.....................................................................11
ARTICLE 9 -- RIGHTS OF MORTGAGE HOLDERS
9.1 Rights of Mortgage Holders.....................................................................11
9.2 Lease Superior or Subordinate to Mortgages.....................................................12
ARTICLE 10 -- MISCELLANEOUS PROVISIONS
10.1 Notices From One Party to the Other............................................................12
10.2 Quiet Enjoyment................................................................................12
10.3 Lease Not to be Recorded.......................................................................12
10.4 Limitation of Landlord's Liability.............................................................12
10.5 Acts of God....................................................................................12
10.6 Landlord's Default.............................................................................12
10.7 Brokerage......................................................................................12
10.8 Applicable Law and Construction................................................................12
10.9 Right of First Offer...........................................................................12
10.10 Expansion......................................................................................12
ARTICLE 2
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, excluding the
roof, exterior faces of exterior walls, the common stairways, and
pipes, ducts, conduits, wires, and appurtenant fixtures serving
exclusively or in common other parts of the Building (and any areas,
such as the space above the ceiling or in the walls, that may contain
such pipes, ducts, conduits, wires or appurtenant fixtures), and if
Tenant's space includes less than entire rentable area of any floor,
excluding the central core area of such floor.
Tenant shall have, as appurtenant to the Premises, rights to use in
common, subject to reasonable rules of general applicability to tenants
of the Building from time to time made by Landlord of which Tenant is
given notice: (a) the common lobbies, hallways and stairways of the
Building, (b) common walkways and driveways necessary for access to the
Building, (c) the common parking areas serving the Building, and (d) if
the Premises include less than the entire rentable area of any floor,
the common toilets and other common facilities in the central core area
of such floor.
Tenant shall be permitted to use up to 58 parking spaces in the parking
area serving the Building.
Landlord reserves the right from time to time, without unreasonable
interference with use of the Premises: (a) to install, use, maintain,
repair, replace and relocate for service to the Premises and other
parts of the Building, or either, pipes, ducts, conduits, wires and
appurtenant fixtures, wherever located in the Premises or Building, (b)
to alter or relocate any other common facility, (c) to make any repairs
and replacements to the Premises which Landlord may deem reasonably
necessary, and (d) in connection with any excavation made upon adjacent
land of Landlord or others, to enter, and to license others to enter,
upon the Premises to do such work as the person causing such excavation
deems necessary to preserve the wall of the Building from injury or
damage and to support the same, provided that at least 24 hours' notice
is given to Tenant (except in emergencies, where no notice shall be
required).
2.2 TERM. TO HAVE AND TO HOLD for a term beginning on the Commencement
Date, which shall be the earlier of (a) the date on which the work to
be performed by Landlord pursuant to Exhibit C and the Final Plans has
been substantially completed or (b) the opening by Tenant of its
business in the Premises, and ending on the Expiration Date, unless
sooner terminated as hereinafter provided. The term "substantially
completed" as used herein shall mean that (a) the work to be performed
by Landlord pursuant to Exhibit C and the Final Plans has been
completed with the exception of minor items which can be fully
completed without material interference with Tenant and other items
which because of the season or weather or the nature of the item are
not practicable to do at the time, provided that none of said items is
necessary to make the Premises tenantable for the Permitted Uses, and
(b) a temporary certificate of occupancy has issued. When the dates of
the beginning and end of the term have been determined, such dates
shall be evidenced by a document, in the form attached hereto as
Exhibit B, which Landlord shall complete and deliver to Tenant, and
which shall be deemed conclusive unless Tenant shall notify Landlord of
any disagreement therewith within ten (10) days of receipt.
The term "lease year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first lease year shall begin on
the Commencement Date if the Commencement Date is the first day of a
calendar month; if not, then the first lease year shall commence upon
the first day of the calendar month next following the Commencement
Date. Each succeeding lease year shall commence upon the anniversary
date of the first lease year.
2.3 EXTENSION OPTION. Provided that as of the date of the notice specified
below, Tenant is not in default and has not previously been in default
of its obligations under this Lease beyond any applicable grace period
more than once, Tenant shall have the right to extend the term of this
Lease for one additional period of five (5) years, to begin immediately
upon the expiration of the original term of this Lease (the "extended
term"). All of the terms, covenants and provisions of this Lease shall
apply to such extended term except that the Annual Fixed Rent Rate for
such extension period shall be the fair market rate at the commencement
of such extended term, as designated by Landlord for comparable
buildings in the greater Burlington area. If Tenant shall elect to
exercise the aforesaid option, it shall do so by giving Landlord notice
in writing of its intention to do so not later than one (1) year prior
to the expiration of the original term of this Lease. If Tenant gives
such notice, the extension of this Lease shall be automatically
effected without the execution of any additional documents. The
original term and the extended term are hereinafter collectively called
the "term".
If the Tenant disagrees with Landlord's designation of the market rate,
and the parties cannot agree upon the market rate, then the market rate
shall be submitted to arbitration as follows: market rate shall be
determined by impartial arbitrators, one to be chosen by the Landlord,
one to be chosen by Xxxxxx, and a third to be selected, if necessary,
as below provided. The unanimous written decision of the two first
chosen, without selection and participation of a third arbitrator, or
otherwise, the written decision of a majority of three arbitrators
chosen and selected as aforesaid, shall be conclusive and binding upon
Landlord and Tenant. Landlord and Tenant shall each notify the other of
its chosen arbitrator within ten (10) days following the call for
arbitration and, unless such two arbitrators shall have reached a
unanimous decision within thirty (30) days after their designation,
they shall so notify the then President of the Boston Bar Association
and request him to select an impartial third arbitrator, who shall be
another office building owner, a real estate counselor or a broker
dealing with like types of properties, to determine market rate as
herein defined. Such third arbitrator and the first two chosen shall
hear the parties and their evidence and render their decision within
thirty (30) days following the conclusion of such hearing and notify
Landlord and Tenant thereof. Landlord and Tenant shall share equally
the expense of the third arbitrator (if any). If the dispute between
the parties as to a market rate has not been resolved before the
commencement of Tenant's obligation to pay Fixed Rent based upon such
market rate, then Tenant shall pay Fixed Rent under the Lease based
upon the
market rate designated by Landlord until either the agreement of the
parties as to the market rate, or the decision of the arbitrators, as
the case may be, at which time Tenant shall pay any underpayment of
Fixed Rent to Landlord, or Landlord shall refund any overpayment of
Fixed Rent to Tenant.
In any event, the Annual Fixed Rent Rate for the extended term shall
not be less than the Annual Fixed Rent Rate in effect immediately prior
to such extended term.
ARTICLE 3
IMPROVEMENTS
3.1 PERFORMANCE OF WORK AND APPROVAL OF XXXXXXXX'S WORK. Landlord shall
cause to be performed the work (the "Landlord's Work") substantially as
shown on the preliminary plan attached hereto as Exhibit C. The final
approved construction plans and specifications for the Landlord's Work
(called, the "Final Plans"), which have not been completed as of the
date of this Lease, shall be prepared by Tenant and approved by
Landlord, and shall emanate from and be consistent with said Exhibit C.
All Landlord's Work shall be done in a good and workmanlike manner
employing new and first quality materials. Landlord covenants and
warrants for the benefit of Tenant that Landlord's Work shall be
performed so as to conform to all applicable local, state and federal
laws, regulations and ordinances promulgated by governmental
authorities with competent jurisdiction which are in effect on or
before the Commencement Date, including, without limitation, all
applicable laws relating to the removal of architectural barriers to
accommodate disabled persons. Xxxxxx agrees that Landlord may make any
changes in such work which may become reasonably necessary or
advisable, other than substantial changes, without approval of Tenant,
provided written notice is promptly given to Tenant; and Landlord may
make substantial changes in such work, with the written approval of
Tenant, which shall not be unreasonably withheld or delayed. Tenant
acknowledges that the Delivery Date is based on the assumption that the
Final Plans will be provided to Landlord on or before November 8, 1999.
So long as the Final Plans are delivered to Landlord on or before
November 8, 1999, Landlord shall use diligence to cause Landlord's Work
to be substantially completed by the Delivery Date, subject to the
provisions of Section 10.5 hereof. Xxxxxxxx agrees that Tenant may make
changes in such work with the approval of Landlord and the execution by
Xxxxxxxx and Tenant of a Work Change Order, in the form attached hereto
as Exhibit D. Upon Tenant's execution of this Lease, Tenant shall pay
to Landlord a contribution in the amount of $50,000.00 toward the costs
incurred by Landlord in performing the Landlord's Work.
3.2 ACCEPTANCE OF THE PREMISES. Tenant or its representatives may, at
reasonable times, enter upon the Premises during the progress of the
work to inspect the progress thereof and to determine if the work is
being performed in accordance with the requirements of Section 3.1.
Tenant shall promptly give to Landlord notices of any alleged failure
by Landlord to comply with those requirements. Landlord's Work shall be
deemed approved by Tenant when Tenant occupies the Premises for the
conduct of its business, except for (a) items of Landlord's Work which
are uncompleted or do not conform to Exhibit C and the Final Plans and
as to which Tenant shall, in either case, have given written notice to
Landlord prior to such occupancy, and (b) a punch-list prepared by
Landlord and Tenant based on an inspection made by the parties on the
date on which Tenant occupies the Premises for the conduct of its
business. Landlord shall forthwith correct all defects noted on such
punch-list within thirty (30) days thereafter, except for items which
by their nature cannot be corrected within said thirty (30) day period,
provided that Landlord shall use reasonable efforts to correct such
items expeditiously. A certificate of completion by a licensed
architect or registered engineer shall be conclusive evidence that
Xxxxxxxx's Work has been completed except for items stated in such
certificate to be incomplete or not in conformity with Exhibit C and
the Final Plans.
3.3 SIDEWALK CONSTRUCTION. Landlord shall diligently pursue the
construction of a sidewalk connecting the Property with the adjacent
property owned by Landlord's affiliate.
ARTICLE 4
RENT
4.1 THE FIXED RENT. Commencing as of the Rent Commencement Date, Tenant
covenants and agrees to pay rent to Landlord at the Original Address of
Landlord or at such other place or to such other person or entity as
Landlord may by notice in writing to Tenant from time to time direct,
at the Annual Fixed Rent Rate, in equal installments at the Monthly
Fixed Rent Rate (which is 1/12th of the Annual Fixed Rent Rate), in
advance, on the first day of each calendar month included in the term;
and for any portion of a calendar month following the Rent Commencement
Date, at the rate for the first lease year payable in advance for such
portion. Notwithstanding the foregoing, if the Commencement Date fails
to occur by January 1, 2000, and such failure is caused solely by
Landlord's action or inaction, then the Rent Commencement Date shall be
postponed by one day for each day in the period commencing on January
1, 2000 and ending on the day before the Commencement Date actually
occurs.
If Landlord shall give notice to Tenant that all rent and other
payments due hereunder are to be made to Landlord by electronic funds
transfers, so called, or by similar means, Tenant shall make all such
payments as shall be due after receipt of said notice by means of said
electronic funds transfers (or such similar means as designated by
Landlord).
4.2 ADDITIONAL RENT. Tenant covenants and agrees to pay, as Additional
Rent, insurance costs, utility charges, personal property taxes and its
pro rata share of taxes and operating costs with respect to the
Premises as provided in this Section 4.2 as follows:
4.2.1 REAL ESTATE TAXES. Tenant shall pay to Landlord, as additional
rent, for each tax period partially or wholly included in the
term, Tenant's Percentage of Taxes (as hereinafter defined).
Tenant shall remit to Landlord, on the first day of each calendar
month, estimated payments on account of Taxes, such monthly
amounts to be sufficient to provide Landlord, by the time real
estate tax payments are due and payable to any governmental
authority responsible for collection of same, a sum equal to the
Tenant's Percentage of Taxes, as reasonably estimated by Landlord
from time to time on the basis of the most recent tax data
available. The initial calculation of the monthly estimated
payments shall be based upon the Initial Estimate of Xxxxxx's
Percentage of Taxes for the Tax Year and upon quarterly payments
being due to the governmental authority on August 1, November 1,
February 1 and May 1, and shall be made when the Commencement
Date has been determined. If the total of such monthly
remittances for any Tax Year is greater than the Tenant's
Percentage of Taxes for such Tax Year, Landlord shall promptly
pay to Tenant, or credit against the next accruing payments to be
made by Tenant pursuant to this subsection 4.2.1, the difference;
if the total of such remittances is less than the Tenant's
Percentage of Taxes for such Tax Year, Tenant shall pay the
difference to Landlord at least ten (10) days prior to the date
or dates within such Tax Year that any Taxes become due and
payable to the governmental authority (but in any event no
earlier than ten (10) days following a written notice to Tenant,
which notice shall set forth the manner of computation of
Xxxxxx's Percentage of Taxes).
If, after Xxxxxx shall have made reimbursement to Landlord pursuant
to this subsection 4.2.1, Landlord shall receive a refund of any
portion of Taxes paid by Tenant with respect to any Tax Year
during the term hereof as a result of an abatement of such Taxes
by legal proceedings, settlement or otherwise (without either
party having any obligation to undertake any such proceedings),
Landlord shall promptly pay to Tenant, or credit against the next
accruing payments to be made by Tenant
pursuant to this subsection 4.2.1, the Tenant's Percentage of the
refund (less the proportional, pro rata expenses, including
reasonable attorneys' fees and reasonable appraisers' fees,
incurred in connection with obtaining any such refund), as
relates to Taxes paid by Tenant to Landlord with respect to any
Tax Year for which such refund is obtained.
In the event this Lease shall commence, or shall end (by reason
of expiration of the term or earlier termination pursuant to the
provisions hereof), on any date other than the first or last day
of the Tax Year, or should the Tax Year or period of assessment
of real estate taxes be changed or be more or less than one (1)
year, as the case may be, then the amount of Taxes which may be
payable by Tenant as provided in this subsection 4.2.1 shall be
appropriately apportioned and adjusted.
The term "Taxes" shall mean all taxes, assessments, betterments
and other charges and impositions (including, but not limited to,
fire protection service fees and similar charges) levied,
assessed or imposed at any time during the term by any
governmental authority upon or against the Property, or taxes in
lieu thereof, and additional types of taxes to supplement real
estate taxes due to legal limits imposed thereon. If, at any time
during the term of this Lease, any tax or excise on rents or
other taxes, however described, are levied or assessed against
Landlord with respect to the rent reserved hereunder, either
wholly or partially in substitution for, or in addition to, real
estate taxes assessed or levied on the Property, such tax or
excise on rents shall be included in Taxes; however, Taxes shall
not include franchise, estate, inheritance, succession, capital
levy, transfer, income or excess profits taxes assessed on
Landlord. Taxes shall include any estimated payment made by
Landlord on account of a fiscal tax period for which the actual
and final amount of taxes for such period has not been determined
by the governmental authority as of the date of any such
estimated payment.
4.2.2 PERSONAL PROPERTY TAXES. Tenant shall pay all taxes charged,
assessed or imposed upon the personal property of Tenant in or
upon the Premises.
4.2.3 OPERATING COSTS. Tenant shall pay to Landlord the Tenant's
Percentage of Operating Costs (as hereinafter defined) incurred
by Landlord in any calendar year. Tenant shall remit to Landlord,
on the first day of each calendar month, estimated payments on
account of Operating Costs, such monthly amounts to be sufficient
to provide Landlord, by the end of the calendar year, a sum equal
to the Operating Costs, as reasonably estimated by Xxxxxxxx from
time to time. The initial monthly estimated payments shall be in
an amount equal to 1/12th of the Initial Estimate of Xxxxxx's
Percentage of Operating Costs for the Calendar Year. If, at the
expiration of the year in respect of which monthly installments
of Operating Costs shall have been made as aforesaid, the total
of such monthly remittances is greater than the actual Operating
Costs for such year, Landlord shall promptly pay to Tenant, or
credit against the next accruing payments to be made by Tenant
pursuant to this subsection 4.2.3, the difference; if the total
of such remittances is less than the Operating Costs for such
year, Tenant shall pay the difference to Landlord within twenty
(20) days from the date Landlord shall furnish to Tenant an
itemized statement of the Operating Costs, prepared, allocated
and computed in accordance with generally accepted accounting
principles. Any reimbursement for Operating Costs due and payable
by Tenant with respect to periods of less than twelve (12) months
shall be equitably prorated.
The term "Operating Costs" shall mean all costs and expenses
incurred for the operation, cleaning, maintenance, repair and
upkeep of the Property, and the portion of such costs and
expenses with regard to the common areas, facilities and
amenities of the Park which is equitably allocable to the
Property, including, without limitation, all costs of maintaining
and repairing the Property and the Park (including snow removal,
landscaping and grounds maintenance, operation and maintenance of
parking lots, sidewalks, walking paths, access roads and
driveways, security, operation and repair of heating and
air-conditioning equipment, lighting and any other Building
equipment or systems) and of all repairs and replacements,
subject to the 4th paragraph of this Subsection 4.2.3 (other than
repairs or replacements for which Landlord has received full
reimbursement from contractors, other tenants of the Building or
from others) necessary to keep the Property and the Park in good
working order, repair, appearance and condition; all costs,
including material and equipment costs, for cleaning and
janitorial services to the Building (including window cleaning of
the Building); all costs of any reasonable insurance carried by
Landlord relating to the Property; all costs related to provision
of heat (including oil, electric, steam and/or gas),
air-conditioning, and water (including sewer charges) and other
utilities to the Building (exclusive of reimbursement to Landlord
for any of same received as a result of direct billing to any
tenant of the Building); payments under all service contracts
relating to the foregoing; all compensation, fringe benefits,
payroll taxes and workmen's compensation insurance premiums
related thereto with respect to any employees of Landlord or its
affiliates engaged in security and maintenance of the Property
and the Park; to the extent relating to the operation of the
Property, reasonable attorneys' fees and disbursements (exclusive
of any such fees and disbursements incurred in tax abatement
proceedings or the preparation of leases) and reasonable auditing
and other professional fees and expenses; and a management fee
comparable to management fees charged by other landlords of
similar office property in the greater Burlington area.
There shall not be included in such Operating Costs brokerage
fees (including rental fees) related to the operation of the
Building; interest and depreciation charges incurred on the
Property; or expenditures made by Tenant with respect to (i)
cleaning, maintenance and upkeep of the Premises, and (ii) the
provision of electricity to the Premises; Landlord's advertising
and marketing costs; matters for which Landlord is reimbursed by
insurance; Landlord's negligence; mortgage and debt service
payments (including payments of principal, interest and other
charges due under any mortgage or deed of trust); salaries of
executives or principals of Landlord; expenses for which
Landlord, by the terms of this Lease, makes a separate charge;
and any costs incurred by Landlord for alterations or
improvements to the Premises on account of Landlord's failure to
perform the Landlord's Work in compliance with applicable laws in
effect on or before the Commencement Date.
If, during the term of this Lease, Landlord shall replace any
capital items or make any capital expenditures (collectively
called "capital expenditures") the total amount of which is not
properly included in Operating Costs for the calendar year in
which they were made, there shall nevertheless be included in
Operating Costs for each calendar year in which and after such
capital expenditure is made the annual charge-off of such capital
expenditure. (Annual charge-off shall be determined by (i)
dividing the original cost of the capital expenditure by the
number of years of useful life thereof [The useful life shall be
reasonably determined by Landlord in accordance with generally
accepted accounting principles and practices in effect at the
time of acquisition of the capital item.]; and (ii) adding to
such quotient an interest factor computed on the unamortized
balance of such capital expenditure based upon an interest rate
reasonably determined by Landlord as being the interest rate then
being charged for long-term mortgages by institutional lenders on
like properties within the locality in which the Building is
located.) Provided, further, that if Landlord reasonably
concludes on the basis of engineering estimates that a particular
capital expenditure will effect savings in Operating Costs and
that such annual projected savings will exceed the annual
charge-off of capital expenditure computed as aforesaid, then and
in such events, the annual charge-off shall be determined by
dividing the amount of such capital expenditure by the number of
years over which the projected amount of such savings shall fully
amortize the cost of such capital item or the amount of such
capital expenditure; and by adding the interest factor, as
aforesaid.
If during any portion of any year for which Operating Costs are
being computed, the Building was not fully occupied by tenants or
if not all of such tenants were paying fixed rent or if Landlord
was not supplying all tenants with the services being supplied
hereunder, actual Operating Costs incurred shall be reasonably
extrapolated by Landlord to the estimated Operating Costs that
would have been incurred if the Building were fully occupied by
tenants and all such tenants were
then paying fixed rent or if such services were being supplied to
all tenants, and such extrapolated amount shall, for the purposes
of this Section 4.2.3, be deemed to be the Operating Costs for
such year.
4.2.4 INSURANCE. Tenant shall, at its expense, as Additional Rent,
take out and maintain throughout the term the following insurance
protecting Landlord:
4.2.4.1 Comprehensive liability insurance naming Landlord,
Tenant, and Xxxxxxxx's managing agent and any mortgagee of
which Xxxxxx has been given notice as insureds or additional
insureds and indemnifying the parties so named against all
claims and demands for death or any injury to person or
damage to property which may be claimed to have occurred on
the Premises (or the Property, insofar as used by customers,
employees, servants or invitees of the Tenant), in amounts
which shall, at the beginning of the term, be at least equal
to the limits set forth in Section 1.1, and, which, from
time to time during the term, shall be for such higher
limits, if any, as are customarily carried in the area in
which the Premises are located on property similar to the
Premises and used for similar purposes; and workmen's
compensation insurance with statutory limits covering all of
Tenant's employees working on the Premises.
4.2.4.2 Fire insurance with the usual extended coverage
endorsements covering all Tenant's furniture, furnishings,
fixtures and equipment.
4.2.4.3 All such policies shall be obtained from responsible
companies qualified to do business and in good standing in
Massachusetts, which companies and the amount of insurance
allocated thereto shall be subject to Landlord's approval.
Xxxxxx agrees to furnish Landlord with certificates
evidencing all such insurance prior to the beginning of the
term hereof and evidencing renewal thereof at least thirty
(30) days prior to the expiration of any such policy. Each
such policy shall be non-cancelable with respect to the
interest of Landlord without at least ten (10) days' prior
written notice thereto. In the event provision for any such
insurance is to be by a blanket insurance policy, the policy
shall allocate a specific and sufficient amount of coverage
to the Premises.
4.2.4.4 All insurance which is carried by either party with
respect to the Building, Premises or to furniture,
furnishings, fixtures, or equipment therein or alterations
or improvements thereto, whether or not required, shall
include provisions which either designate the other party as
one of the insured or deny to the insurer acquisition by
subrogation of rights of recovery against the other party to
the extent such rights have been waived by the insured party
prior to occurrence of loss or injury, insofar as, and to
the extent that, such provisions may be effective without
making it impossible to obtain insurance coverage from
responsible companies qualified to do business in the state
in which the Premises are located (even though extra premium
may result therefrom). In the event that extra premium is
payable by either party as a result of this provision, the
other party shall reimburse the party paying such premium
the amount of such extra premium. If at the request of one
party, this non-subrogation provision is waived, then the
obligation of reimbursement shall cease for such period of
time as such waiver shall be effective, but nothing
contained in this subsection shall derogate from or
otherwise affect releases elsewhere herein contained of
either party for claims. Each party shall be entitled to
have certificates of any policies containing such
provisions. Each party hereby waives all rights of recovery
against the other for loss or injury against which the
waiving party is protected by insurance containing said
provisions, reserving, however, any rights with respect to
any excess of loss or injury over the amount recovered by
such insurance. Tenant shall not acquire as insured under
any insurance carried on the Premises any right to
participate in the adjustment of loss or to receive
insurance proceeds and agrees upon request promptly to
endorse and deliver to Landlord any checks or other
instruments in payment of loss in which Tenant is named as
payee.
4.2.5 UTILITIES. Tenant shall pay all charges made by public authority
or utility for the cost of electricity furnished or consumed on
the Premises, all charges for any utilities supplied by Landlord
pursuant to Subsections 5.1.1, 5.1.2 and 5.1.3 which are
separately metered, and all charges for telephone and other
utilities or services not supplied by Landlord pursuant to
Subsections 5.1.1, 5.1.2 and 5.1.3, whether designated as a
charge, tax, assessment, fee or otherwise, all such charges to be
paid as the same from time to time become due. Except as
otherwise provided in Article 5, it is understood and agreed that
Tenant shall make its own arrangements for the installation or
provision of all such utilities and that Landlord shall be under
no obligation to furnish any utilities to the Premises and shall
not be liable for any interruption or failure in the supply of
any such utilities to the Premises.
4.3 LATE PAYMENT OF RENT. If any installment of rent is paid more than five
(5) days after the date the same was due, and if on a prior occasion in
the twelve (12) month period prior to the date such installment was due
an installment of rent was paid after the same was due, then Tenant
shall pay Landlord a late payment fee equal to five (5%) percent of the
overdue payment.
4.4 LETTER OF CREDIT. The performance of Tenant's obligations under this
Lease shall be secured by a letter of credit throughout the term hereof
in accordance with and subject to the following terms and conditions:
4.4.1 AMOUNT OF LETTER OF CREDIT. (a) Concurrently with Xxxxxx's
execution and delivery of this Lease, Tenant shall deliver to
Landlord an irrevocable standby letter of credit (the "Original
Letter of Credit") which shall be (i) in the form of Exhibit G
attached to this Lease (the "Form LC"), (ii) issued by a bank
reasonably satisfactory to Landlord upon which presentment may be
made in Boston, Massachusetts, (iii) in the amount equal to the
Letter of Credit Amount, and (iv) for a term of at least 1 year,
subject to the provisions of Section 4.4.2 below. The Original
Letter of Credit, any Additional Letters(s) of Credit and
Substitute Letter(s) of Credit are referred to herein as the
"Letter of Credit."
(b) Once Tenant provides Landlord with proof reasonably
satisfactory to Landlord that it has completed its initial public
offering, and provided Tenant is not then in default under this
Lease, the Letter of Credit Amount shall be reduced to
$50,000.00. This reduction shall only be effected one time during
the term of this Lease.
4.4.2 RENEWAL OF LETTER OF CREDIT. Each Letter of Credit shall be
automatically renewable in accordance with the second to last
paragraph of the Form LC; provided however, that Tenant shall be
required to deliver to Landlord a new letter of credit (a
"Substitute Letter of Credit") satisfying the requirements for
the Original Letter of Credit under Section 4.4.1 on or before
the date 30 days prior to the expiration of the term of the
Letter of Credit then in effect, if the issuer of such Letter of
Credit gives notice of its election not to renew such Letter of
Credit for any additional period pursuant thereto.
4.4.3 DRAWS TO CURE DEFAULTS. If the Fixed Rent or Additional Rent
payable hereunder shall be overdue and unpaid or should Landlord
make payments on behalf of the Tenant, or Tenant shall fail to
perform any of the terms of this Lease in all cases beyond the
expiration of all applicable notice and cure periods, then
Landlord shall have the right, at any time thereafter to draw
down from the Letter of Credit the amount necessary to cure such
default. In the event of any such draw by the Landlord, Tenant
shall, within 30 days of written demand therefor, deliver to
Landlord an additional Letter of Credit ("Additional Letter of
Credit") satisfying the requirements for the Original Letter of
Credit, except that the amount of such Additional Letter of
Credit shall be the amount of such draw.
4.4.4 DRAWS TO PAY DAMAGES. In addition, if (i) this Lease shall have
been terminated as a result of Tenant's default under this
Lease beyond the expiration of the applicable cure period, and/or
(ii) this Lease shall have been rejected in a bankruptcy or other
creditor-debtor proceeding, then Landlord shall have the right at
any time thereafter to draw down from the Letter of Credit an
amount sufficient to pay any and all damages payable by Tenant on
account of such termination or rejection, as the case may be,
pursuant to Article 8 hereof. In the event of bankruptcy or other
creditor-debtor proceeding against Tenant, all proceeds of the
Letter of Credit shall be deemed to be applied first to the
payment of rent and other charges due Landlord for all periods
prior to the filing of such proceedings.
4.4.5 DRAWS FOR FAILURE TO DELIVER SUBSTITUTE LETTER OF CREDIT. If
Tenant fails timely to deliver to Landlord a Substitute Letter of
Credit, then Landlord shall have the right, at any time
thereafter, without giving any further notice to Tenant, to draw
down the Letter of Credit and to hold the proceeds thereof
("Security Proceeds") in a bank account in the name of Landlord,
which may be withdrawn and applied by Landlord under the same
circumstances and for the same purposes as if the Security
Proceeds were a Letter of Credit. Upon any such application of
Security Proceeds by Landlord, Tenant shall, within 30 days of
written demand therefor, deliver to Landlord an Additional Letter
of Credit in the amount of Security Proceeds so applied.
4.4.6 RETURN OF LETTER OF CREDIT AT END OF TERM. Within 30 days after
the expiration of the term, to the extent Landlord has not
previously drawn upon any Letter of Credit or Security Proceeds
held by Landlord, Landlord shall return the same to Tenant
provided that Tenant is not then in default of any of its
obligations under this Lease."
ARTICLE 5
LANDLORD'S COVENANTS
5.1 AFFIRMATIVE COVENANTS. Landlord covenants with Tenant:
5.1.1 HEAT AND AIR-CONDITIONING. To furnish to the Premises,
separately metered and at the direct expense of Tenant as
hereinabove provided, heat and air-conditioning (reserving the
right, at any time, to change energy or heat sources) sufficient
to maintain the Premises at comfortable temperatures (subject to
all federal, state, and local regulations relating to the
provision of heat), during such hours of the day and days of the
year that the Building is normally open.
5.1.2 ELECTRICITY. To furnish to the Premises, separately metered and
at the direct expense of Tenant as hereinabove provided,
reasonable electricity for Tenant's Permitted Uses. If Tenant
shall require electricity in excess of reasonable quantities for
Tenant's Permitted Uses and if (i) in Landlord's reasonable
judgment, Landlord's facilities are inadequate for such excess
requirements, or (ii) such excess use shall result in an
additional burden on the Building utilities systems and
additional cost to Landlord on account thereof, as the case may
be, (a) Tenant shall, upon demand, reimburse Landlord for such
additional cost, as aforesaid, or (b) Landlord, upon written
request, and at the sole cost and expense of Tenant, will furnish
and install such additional wire, conduits, feeders, switchboards
and appurtenances as reasonably may be required to supply such
additional requirements of Tenant (if electricity therefor is
then available to Landlord), provided that the same shall be
permitted by applicable laws and insurance regulations and shall
not cause permanent damage or injury to the Building or cause or
create a dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs.
5.1.3 CLEANING; WATER. To provide cleaning (including daily trash
removal) to the Premises in accordance with cleaning and
janitorial standards generally prevailing throughout the term
hereof in comparable office buildings within the municipality in
which the Building is located; and to furnish water for ordinary
cleaning, lavatory and toilet facilities.
5.1.4 FIRE ALARM, SECURITY. To maintain fire alarm systems within the
Building; and to provide security measures in the common areas of
the Building, provided that Landlord shall not be liable for any
loss, damage or expense arising out of any failure of such
security measures.
5.1.5 REPAIRS. Except as otherwise expressly provided herein, to make
such repairs and replacements to the roof, exterior walls, floor
slabs and other structural components of the Building, and to the
common areas, facilities and plumbing, electrical, heating,
ventilating and air-conditioning systems of the Building as may
be necessary to keep them in good repair and condition and in
compliance with applicable laws (exclusive of equipment installed
by Tenant and except for those repairs required to be made by
Tenant pursuant to Section 6.1.3 hereof and repairs or
replacements occasioned by any act or negligence of Tenant, its
servants, agents, customers, contractors, employees, invitees, or
licensees).
5.1.6 LANDSCAPING; GROUNDS MAINTENANCE. To provide landscaping,
grounds maintenance and snow removal services for the Property.
5.1.7 ACCESS. To permit access to the Premises twenty-four (24) hours
a day, seven (7) days a week, subject to Landlord's reasonable
security requirements for the Building.
5.2 INTERRUPTION. Landlord shall be under no responsibility or liability
for failure or interruption of any of the above-described services,
repairs or replacements caused by breakage, accident, strikes, repairs,
inability to obtain supplies, labor or materials, or for any other
causes beyond the control of the Landlord, and in no event for any
indirect or consequential damages to Tenant; and failure or omission on
the part of the Landlord to furnish any of same for any of the reasons
set forth in this paragraph shall not be construed as an eviction of
Tenant, actual or constructive, nor entitle Tenant to an abatement of
rent, nor render the Landlord liable in damages, nor release Tenant
from prompt fulfillment of any of its covenants under this Lease.
However, in each instance of a failure or interruption Landlord shall
use best efforts to remedy the cause thereof.
5.3 OUTSIDE SERVICES. In the event Tenant wishes to provide outside
services for the Premises over and above those services to be provided
by Landlord as set forth herein, Tenant shall first obtain the prior
written approval of Landlord for the installation and/or utilization of
such services ("Outside services" shall include, but shall not be
limited to, cleaning services, television, so-called "canned music"
services, security services, catering services and the like.) In the
event Landlord approves the installation and/or utilization of such
services, such installation and utilization shall be at Tenant's sole
cost, risk and expense.
5.4 LANDLORD'S INSURANCE. Landlord shall take out and maintain during the
term all-risk casualty insurance in an amount equal to the full
replacement cost of the Building.
ARTICLE 6
TENANT'S ADDITIONAL COVENANTS
6.1 AFFIRMATIVE COVENANTS. Tenant covenants at all times during the term
and for such further time (prior or subsequent thereto) as Tenant
occupies the Premises or any part thereof:
6.1.1 PERFORM OBLIGATIONS. To perform promptly all of the obligations
of Tenant set forth in this Lease; and to pay when due the Fixed
Rent and Additional Rent and all charges, rates and other sums
which by the terms of this Lease are to be paid by Xxxxxx.
6.1.2 USE. To use the Premises only for the Permitted Uses, and from
time to time to procure all licenses and permits necessary
therefor, at Tenant's sole expense. With respect to any licenses
or permits for which Tenant may apply, pursuant to this
subsection 6.1.2 or any other provision hereof, Tenant shall
furnish Landlord copies of applications therefor on or before
their submission to the governmental authority.
6.1.3 REPAIR AND MAINTENANCE. To maintain the Premises in neat order
and condition and to perform all routine and ordinary repairs to
the Premises and to any plumbing, heating, electrical,
ventilating and air-conditioning systems located within the
Premises and installed by Tenant such as are necessary to keep
them in good working order, appearance and condition, as the case
may require, reasonable use and wear thereof and damage by fire
or by unavoidable casualty only excepted; to keep all glass in
windows and doors of the Premises (except glass in the exterior
walls of the Building) whole and in good condition with glass of
the same quality as that injured or broken; and to make as and
when needed as a result of misuse by, or neglect or improper
conduct of Tenant or Tenant's servants, employees, agents,
invitees or licensees or otherwise, all repairs necessary, which
repairs and replacements shall be in quality and class equal to
the original work. (Landlord, upon default of Tenant hereunder
and upon prior notice to Tenant, may elect, at the expense of
Tenant, to perform all such cleaning and maintenance and to make
any such repairs or to repair any damage or injury to the
Building or the Premises caused by moving property of Tenant in
or out of the Building, or by installation or removal of
furniture or other property, or by misuse by, or neglect, or
improper conduct of, Tenant or Tenant's servants, employees,
agents, contractors, customers, patrons, invitees, or licensees.)
6.1.4 COMPLIANCE WITH LAW. To the extent required as a result of
alterations performed by or on behalf of Tenant pursuant to
subsection 6.2.5 below or any other act of Tenant or by Tenant's
particular use of the Premises and not required for office
buildings generally, to make all repairs, alterations, additions
or replacements to the Premises required by any law or ordinance
or any order or regulation of any public authority; to keep the
Premises equipped with all safety appliances so required; and to
comply with the orders and regulations of all governmental
authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws applicable to
Tenant's use of the Premises, except that Tenant may defer
compliance so long as the validity of any such law, ordinance,
order or regulations shall be contested by Tenant in good faith
and by appropriate legal proceedings, if Tenant first gives
Landlord appropriate assurance or security against any loss, cost
or expense on account thereof.
6.1.5 INDEMNIFICATION. To save harmless, exonerate and indemnify
Landlord, its agents (including, without limitation, Xxxxxxxx's
managing agent) and employees (such agents and employees being
referred to collectively as the "Landlord Related Parties") from
and against any and all claims, liabilities or penalties asserted
by or on behalf of any person, firm, corporation or public
authority on account of injury, death, damage or loss to person
or property in or upon the Premises and the Property arising out
of the use or occupancy of the Premises by Tenant or by any
person claiming by, through or under Tenant (including, without
limitation, all patrons, employees and customers of Tenant), or
arising out of any delivery to or service supplied to the
Premises, or on account of or based upon anything whatsoever done
on the Premises, except if the same was caused by the willful
negligence, fault or misconduct of Landlord or the Landlord
Related Parties. In respect of all of the foregoing, Tenant shall
indemnify Landlord and the Landlord Related Parties from and
against all costs, expenses (including reasonable attorneys'
fees), and liabilities incurred in or in connection with any such
claim, action or proceeding brought thereon; and, in case of any
action or proceeding brought against Landlord or the Landlord
Related Parties by reason of any such claim, Tenant, upon notice
from Landlord and at Tenant's expense, shall resist or defend
such action or proceeding and employ counsel therefor reasonably
satisfactory to Landlord.
6.1.6 LANDLORD'S RIGHT TO ENTER. Provided that Landlord does not
materially interfere with Xxxxxx's use or enjoyment of the
Premises, to permit Landlord and its agents to enter into and
examine the Premises at reasonable times and to show the
Premises, and to make repairs to the Premises, and, during the
last six (6) months prior to the expiration of this Lease, to
keep affixed in suitable places notices of availability of the
Premises.
6.1.7 PERSONAL PROPERTY AT TENANT'S RISK. 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, 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 to be borne by Landlord, except that
Landlord shall in no event be indemnified or held harmless or
exonerated from any liability to Tenant or to any other person,
for any injury, loss, damage or liability to the extent
prohibited by law, or to the extent resulting from any willful
misconduct by Landlord or Landlord Related Parties.
6.1.8 PAYMENT OF LANDLORD'S COST OF ENFORCEMENT. To pay on demand
Landlord's expenses, including reasonable attorneys' fees,
incurred in enforcing any obligation of Tenant under this Lease
or in curing any default by Tenant under this Lease as provided
in Section 8.4.
6.1.9 YIELD UP. At the expiration of the term or earlier termination
of this Lease: to surrender all keys to the Premises; to remove
all of its trade fixtures and personal property in the Premises;
to deliver to Landlord stamped architectural plans showing the
Premises at yield up (which may be the initial plans if Tenant
has made no installations after the Commencement Date); to remove
such installations made by it as Landlord may request (including
computer and telecommunications wiring and cabling, it being
understood that if Tenant leaves such wiring and cabling in a
useable condition, Landlord, although having the right to request
removal thereof, is less likely to so request) and all Tenant's
signs wherever located; to repair all damage caused by such
removal and to yield up the Premises (including all installations
and improvements made by Tenant except for trade fixtures and
such of said installations or improvements as Landlord shall
request Tenant to remove), broom-clean and in the same good order
and repair in which Tenant is obliged to keep and maintain the
Premises by the provisions of Subsection 6.1.3 of this Lease. Any
property not so removed shall be deemed abandoned and, if
Landlord so elects, deemed to be Landlord's property, and may be
retained or removed and disposed of by Landlord in such manner as
Landlord shall determine and Tenant shall pay Landlord the entire
cost and expense incurred by it in effecting such removal and
disposition and in making any incidental repairs and replacements
to the Premises and for use and occupancy during the period after
the expiration of the term and prior to its performance of its
obligations under this subsection 6.1.9.
If the Tenant remains in the Premises beyond the expiration or
earlier termination of this Lease, such holding over shall be
without right and shall not be deemed to create any tenancy, but
the Tenant shall be a tenant at sufferance only at a daily rate
of rent equal to two (2) times the rent and other charges in
effect under this Lease as of the day prior to the date of
expiration of this Lease. Tenant shall further indemnify Landlord
against all reasonable loss, cost and damage resulting from
Xxxxxx's failure and delay in surrendering the Premises.
6.1.10 RULES AND REGULATIONS. To comply with the Rules and Regulations
set forth in Exhibit E, and with all reasonable Rules
and Regulations of general applicability to all tenants of the
Building hereafter made by Landlord, of which Xxxxxx has been
given notice; Landlord shall not be liable to Tenant for the
failure of other tenants of the Building to conform to such Rules
and Regulations.
6.1.11 ESTOPPEL CERTIFICATE. Upon not less than fifteen (15) days'
prior written request by Landlord, to execute, acknowledge and
deliver to Landlord a statement in writing, which may be in the
form attached hereto as Exhibit F or in another form reasonably
similar thereto, or such other form as Landlord may provide from
time to time, certifying all or any of the following: (i) that
this Lease is unmodified and in full force and effect, (ii)
whether the term has commenced and Fixed Rent and Additional Rent
have become payable hereunder and, if so, the dates to which they
have been paid, (iii) whether or not Landlord is in default in
performance of any of the terms of this Lease, (iv) whether
Xxxxxx has accepted possession of the Premises, (v) whether
Xxxxxx has made any claim against Landlord under this Lease and,
if so, the nature thereof and the dollar amount, if any, of such
claim, (vi) whether there exist any offsets or defenses against
enforcement of any of the terms of this Lease upon the part of
Tenant to be performed, and (vii) such further information with
respect to the Lease or the Premises as Landlord may reasonably
request. Any such statement delivered pursuant to this subsection
6.1.11 may be relied upon by any prospective purchaser or
mortgagee of the Premises, or any prospective assignee of such
mortgage. Tenant shall also deliver to Landlord such financial
information as may be reasonably required by Landlord to be
provided to any mortgagee or prospective purchaser of the
Premises.
6.1.12 LANDLORD'S EXPENSES RE CONSENTS. To reimburse Landlord promptly
on demand for all reasonable legal expenses incurred by Landlord
in connection with all requests by Xxxxxx for consent or approval
hereunder.
6.2 NEGATIVE COVENANTS. Tenant covenants at all times during the term and
such further time (prior or subsequent thereto) as Tenant occupies the
Premises or any part thereof:
6.2.1 ASSIGNMENT AND SUBLETTING. Except for an assignment or
subletting to a wholly-owned subsidiary or a corporation in which
Tenant owns in excess of 25% of the outstanding capital stock (in
either case called a "Permitted Transfer"), not to assign,
transfer, mortgage or pledge this Lease or to sublease (which
term shall be deemed to include the granting of concessions and
licenses and the like) all or any part of the Premises or suffer
or permit this Lease or the leasehold estate hereby created or
any other rights arising under this Lease to be assigned,
transferred or encumbered, in whole or in part, whether
voluntarily, involuntarily or by operation of law, or permit the
occupancy of the Premises by anyone other than Tenant without the
prior written consent of Landlord. In the event Tenant desires to
assign this Lease or sublet any portion or all of the Premises,
Tenant shall notify Landlord in writing of Xxxxxx's intent to so
assign this Lease or sublet the Premises and the proposed
effective date of such subletting or assignment, and shall
request in such notification that Landlord consent thereto.
Except for a Permitted Transfer, Landlord may terminate this
Lease in the case of a proposed assignment, or suspend this Lease
pro tanto for the period and with respect to the space involved
in the case of a proposed subletting, by giving written notice of
termination or suspension to Tenant, with such termination or
suspension to be effective as of the effective date of such
assignment or subletting. If Landlord does not so terminate or
suspend, Xxxxxxxx's consent shall not be unreasonably withheld to
an assignment or to a subletting, provided that the assignee or
subtenant shall use the Premises only for the Permitted Uses.
Tenant shall, as Additional Rent, reimburse Landlord promptly for
Landlord's reasonable legal expenses incurred in connection with
any request by Tenant for such consent. If Landlord consents
thereto, or in the case of a Permitted Transfer, no such
subletting or assignment shall in any way impair the continuing
primary liability of Tenant hereunder, and no consent to any
subletting or assignment in a particular instance shall be deemed
to be a waiver of the obligation to obtain the Landlord's written
approval in the case of any other subletting or assignment.
The provisions of the preceding paragraph 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, 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 reasonably satisfactory to
Landlord of such net worth shall have been delivered to Landlord
at least ten (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 perform all the obligations of Tenant.
If for any assignment or sublease consented to by Landlord
hereunder Xxxxxx receives rent or other consideration, either
initially or over the term of the assignment or sublease, in
excess of the rent called for hereunder, or in case of sublease
of part, in excess of such rent fairly allocable to the part,
after appropriate adjustments to assure that all other payments
called for hereunder are appropriately taken into account and
after deduction for reasonable expenses of Tenant in connection
with the assignment or sublease, to pay to Landlord as additional
rent fifty (50%) percent of the excess of each such payment of
rent or other consideration received by Tenant promptly after its
receipt.
Whenever Tenant lists with a broker or brokers or otherwise
advertises, holds out or markets the Premises or any part thereof
for sublease or assignment, Tenant shall give Xxxxxxxx Company,
as brokers, a non-exclusive listing with respect to such sublease
or assignment.
If, at any time during the term of this Lease, there is a
transfer of a controlling interest in the stock, membership or
general partnership interests of Tenant, Tenant shall so notify
Landlord and (whether or not Tenant so notifies Landlord) such
transfer shall be deemed an assignment subject to the provisions
of the first paragraph of this subsection 6.2.1, except for any
public offering or transfer of less than fifty (50%) percent of
the outstanding stock of Tenant that is not also a transfer of a
controlling interest of Xxxxxx (in which case Xxxxxxxx's prior
consent is not required).
If, at any time during the term of this Lease, there is a
transfer of a controlling interest in the stock, membership or
general partnership interests of Tenant, Tenant shall so notify
Landlord and (whether or not Tenant so notifies Landlord) such
transfer shall be deemed an assignment subject to the provisions
of the first paragraph of this Section 6.2.1, except for a
transfer of less than 50% of the outstanding stock of Tenant that
is not also a transfer of a controlling interest of Tenant (in
which case Landlord's prior consent is not required).
Landlord hereby consents to the assignment by Tenant of this
Lease to an institutional lender ("Leasehold Mortgagee") as
security for the payment of all indebtedness and performance of
obligations under the financing with such Leasehold Mortgagee.
Xxxxxxxx agrees that so long as any such financing shall remain
in effect, the following provisions shall apply:
1. Landlord shall, upon serving Tenant with any notice of
default, promptly serve a copy of such notice upon Leasehold
Mortgagee provided Landlord has previously been given
written notice of the name and address of the Leasehold
Mortgagee. Leasehold Mortgagee shall thereupon have the same
period as is allowed to Tenant, to remedy or cause to be
remedied the defaults specified by Landlord, and Landlord
shall accept such performance by or at the instigation of
Leasehold Mortgagee in response to any such notice of
default as if the same had been performed by Xxxxxx; and
2. Should Tenant be in default under the terms of such
financing Leasehold Mortgagee shall have the right, but not
the obligation, to receive an assignment of this Lease for
the remainder of its term and assume all of Tenant's rights,
duties and obligations under the Lease, provided that as a
condition to such assignment and
assumption Leasehold Mortgagee shall have remedied or caused
to be remedied defaults, if any, under this Lease of which
Leasehold Mortgagee shall have been given written notice
prior to such assignment and assumption, and provided
further that the use of the Premises by any such Leasehold
Mortgagee shall be substantially similar to that of Tenant
immediately prior to the assumption, and that any assignment
or subletting by such Leasehold Mortgagee shall be subject
to all of the provisions of this subsection 6.2.1., except
that the third sentence of the first paragraph shall not be
applicable in the case of a proposed assignment to an entity
acquiring substantially all of the assets of the initial
Tenant named herein.
6.2.2 NUISANCE. Not to injure, deface or otherwise harm the Premises;
nor commit any nuisance; nor permit in the Premises any vending
machine (except such as is used for the sale of merchandise to
employees of Tenant) or inflammable fluids or chemicals (except
such as are customarily used in connection with standard office
equipment); nor permit any cooking to such extent as requires
special exhaust venting; nor permit the emission of any
objectionable noise or odor; nor make, allow or suffer any waste;
nor make any use of the Premises which is improper, offensive or
contrary to any law or ordinance or which will invalidate any of
Landlord's insurance; nor conduct any auction, fire, "going out
of business" or bankruptcy sales.
6.2.3 HAZARDOUS WASTES AND MATERIALS. Not to dispose of any hazardous
wastes, hazardous materials or oil on the Premises or the
Property, or into any of the plumbing, sewage, or drainage
systems thereon, and to indemnify and save Landlord harmless from
all claims, liability, loss or damage arising on account of the
use or disposal of hazardous wastes, hazardous materials or oil,
including, without limitation, liability under any federal,
state, or local laws, requirements and regulations, or damage to
any of the aforesaid systems. Tenant shall comply with all
governmental reporting requirements with respect to hazardous
wastes, hazardous materials and oil, and shall deliver to
Landlord copies of all reports filed with governmental
authorities.
6.2.4 FLOOR LOAD; HEAVY EQUIPMENT. Not to place a load upon any floor
of the Premises exceeding the floor load per square foot area
which such floor was designed to carry and which is allowed by
law. Landlord reserves the right to prescribe the weight and
position of all heavy business machines and equipment, including
safes, which shall be placed so as to distribute the weight.
Business machines and mechanical equipment which cause vibration
or noise shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient to absorb and prevent vibration,
noise and annoyance. Except if in the due course of Tenant's
business operations, Tenant shall not move any safe, heavy
machinery, heavy equipment, freight or fixtures into or out of
the Premises except in such manner and at such time as Landlord
shall in each instance authorize.
6.2.5 INSTALLATION, ALTERATIONS OR ADDITIONS. Not to make any
installations, alterations or additions in, to or on the Premises
nor to permit the making of any holes in the walls, partitions,
ceilings or floors nor the installation or modification of any
locks or security devices without on each occasion obtaining the
prior written consent of Landlord, and then only pursuant to
plans and specifications approved by Landlord in advance in each
instance; Tenant shall pay promptly when due the entire cost of
any work to the premises undertaken by Tenant so that the
Premises shall at all times be free of liens for labor and
materials, and at Landlord's request Tenant shall furnish to
Landlord a bond or other security acceptable to Landlord assuring
that any work commenced by Tenant will be completed in accordance
with the plans and specifications theretofore approved by
Landlord and assuring that the Premises will remain free of any
mechanics' lien or other encumbrance arising out of such work. In
any event, Tenant shall forthwith bond against or discharge any
mechanics' liens or other encumbrances that may arise out of such
work. Tenant shall procure all necessary licenses and permits at
Tenant's sole expense before undertaking such work. All such work
shall be done in a good and workmanlike manner employing
materials of good quality and so as to conform with all
applicable zoning, building, fire, health and other codes,
regulations, ordinances and laws. Tenant shall save Landlord
harmless and indemnified from all injury, loss, claims or damage
to any person or property occasioned by or growing out of such
work. Without waiver of the provisions of this subsection 6.2.5,
Tenant shall be permitted to install one (1) conduit in areas of
the Building and the Property, designated by Landlord, to
facilitate a fiber optic connection with the adjacent building
owned by Landlord's affiliate and in which is located the leased
premises of Tenant's affiliate. In the event that such conduit is
installed underground, Tenant shall repair any damage to the
Property and shall restore the Property to the same condition as
existed prior to said installation, including restoring any
shrubbery that may have been moved during the installation of
said conduit.
Not to grant a security interest in, or to lease, any personal
property being installed in the Premises (including, without
limitation, demountable partitions) without first obtaining an
agreement, for the benefit of Landlord, from the secured party or
lessor that such property will be removed within fifteen (15)
business days after notice from Landlord of the expiration or
earlier termination of this Lease and that a failure to so remove
will subject such property to the provisions of subsection 6.1.9
of the Lease.
6.2.6 ABANDONMENT. Not to abandon or vacate the Premises during the
term.
6.2.7 SIGNS. Not without Landlord's prior written approval to paint or
place any signs or place any curtains, blinds, shades, awnings,
aerials, or the like, visible from outside the Premises.
6.2.8 PARKING AND STORAGE. Not to permit any storage of materials
outside of the Premises; nor to permit the use of the parking
areas for either temporary or permanent storage of trucks; nor
permit the use of the Premises for any use for which heavy
trucking would be customary.
ARTICLE 7
CASUALTY OR TAKING
7.1 TERMINATION. In the event that the Premises or the Building, or any
material part thereof, shall be taken by any public authority or for
any public use, or shall be destroyed or damaged by fire or casualty,
or by the action of any public authority, then this Lease may be
terminated at the election of Landlord. Such election, which may be
made notwithstanding the fact that Landlord's entire interest may have
been divested, shall be made by the giving of notice by Landlord to
Tenant within sixty (60) days after the date of the taking or casualty.
In the event the Premises are destroyed or damaged by fire or casualty,
or by the action of public authority, and, in the reasonable opinion of
an independent architect or engineer selected by Landlord, cannot be
repaired or restored within one hundred eighty (180) days from the time
that repair or restoration work would be commenced, then this Lease may
be terminated at the election of Landlord or Tenant, which election
shall be made by the giving to the other party within thirty (30) days
after the date the opinion of the architect or engineer is made
available to all parties.
7.2 RESTORATION. If neither party elects to so terminate, this Lease shall
continue in force and a just proportion of the rent reserved, according
to the nature and extent of the damages sustained by the Premises,
shall be suspended or abated until the Premises, or what may remain
thereof, shall be put by Landlord in proper condition for use, which
Landlord covenants to do with reasonable diligence to the extent
permitted by the net proceeds of insurance recovered or damages awarded
for such taking, destruction or damage and subject to zoning and
building laws or ordinances then in existence. "Net proceeds of
insurance recovered or damages awarded"
refers to the gross amount of such insurance or damages less the
reasonable expenses of Landlord incurred in connection with the
collection of the same, including without limitation, fees and expenses
for legal and appraisal services.
7.3 AWARD. Irrespective of the form in which recovery may be had by law,
all rights to damages or compensation shall belong to Landlord in all
cases. Tenant hereby grants to Landlord all of Tenant's rights to such
damages and covenants to deliver such further assignments thereof as
Landlord may from time to time request.
ARTICLE 8
DEFAULTS
8.1 EVENTS OF DEFAULT. (a) If Tenant shall default in the performance of
any of its obligations to pay the Fixed Rent or Additional Rent
hereunder and if such default shall continue for ten (10) days after
written notice from Landlord designating such default or if within
thirty (30) days after written notice from Landlord to Tenant
specifying any other default or defaults Tenant has not commenced
diligently to correct the default or defaults so specified or has not
thereafter diligently pursued such correction to completion, or (b) if
any assignment shall be made by Tenant or any guarantor of Tenant for
the benefit of creditors, or (c) if Tenant's leasehold interest shall
be taken on execution, or (d) if a lien or other involuntary
encumbrance is filed against Xxxxxx's leasehold interest or Xxxxxx's
other property, including said leasehold interest, and is not
discharged or bonded over within thirty (30) days thereafter, or (e) if
a petition is filed by Tenant or any guarantor of Tenant for
liquidation, or for reorganization or an arrangement under any
provision of any bankruptcy law or code as then in force and effect, or
(f) if an involuntary petition under any of the provisions of any
bankruptcy law or code is filed against Tenant or any guarantor of
Tenant and such involuntary petition is not dismissed within sixty (60)
days thereafter, then, and in any of such cases, Landlord and the
agents and servants of Landlord lawfully may, in addition to and not in
derogation of any remedies for any preceding breach of covenant,
immediately or at any time thereafter without demand or notice and with
or without process of law enter into and upon the Premises or any part
thereof in the name of the whole or mail a notice of termination
addressed to Tenant, and repossess the same as of landlord's former
estate and expel Tenant and those claiming through or under Tenant and
remove its and their effects without being deemed guilty of any manner
of trespass and without prejudice to any remedies which might otherwise
be used for arrears of rent or prior breach of covenants, and upon such
entry or mailing as aforesaid this Lease shall terminate, Tenant hereby
waiving all statutory rights to the Premises (including without
limitation rights of redemption, if any, to the extent such rights may
be lawfully waived) and Landlord, without notice to Tenant, may store
Tenant's effects, and those of any person claiming through or under
Tenant, at the expense and risk of Tenant, and, if Landlord so elects,
may sell such effects at public auction or private sale and apply the
net proceeds to the payment of all sums due to Landlord from Tenant, if
any, and pay over the balance, if any, to Tenant.
8.2 REMEDIES. In the event that this Lease is terminated under any of the
provisions contained in Section 8.1 or shall be otherwise terminated
for breach of any obligation of Tenant, Tenant covenants to pay
punctually to Landlord all the sums and to perform all the obligations
which Tenant covenants in this Lease to pay and to perform in the same
manner and to the same extent and at the same time as if this Lease had
not been terminated. In calculating the amounts to be paid by Tenant
pursuant to the preceding sentence Tenant shall be credited with the
net proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all Landlord's expense in connection with
such reletting, including, without limitation, all repossession costs,
brokerage commissions, fees for legal services and expenses of
preparing the Premises for such reletting, it being agreed by Tenant
that Landlord may (i) relet the Premises or any part or parts thereof,
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 and may grant such concessions and free rent as
Landlord in its sole judgment considers advisable or necessary to relet
the same and (ii) make such alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable or
necessary to relet the same, and no action of Landlord in accordance
with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's
liability as aforesaid. Landlord shall use commercially reasonable
efforts to mitigate its damages hereunder.
In lieu of full recovery by Landlord of the sums payable under all of
the foregoing provision of this Section 8.2 (except for the amount of
any rent of any kind accrued and unpaid as of the time of termination),
Landlord may, by written notice to Tenant, elect to recover, and Tenant
shall thereupon pay, as liquidated damages, an amount equal to the
excess of the total rent reserved for the residue of the term over the
rental value of the Premises for said residue of the term. In
calculating the rent reserved there shall be included, in addition to
the Fixed Rent and Additional Rent, the value of all other
considerations agreed to be paid or performed by Xxxxxx for said
residue.
In lieu of any other damages or indemnity and in lieu of full recovery
by Landlord of all sums payable under all the foregoing provisions of
this Section 8.2, Landlord may by written notice to Tenant, at any time
after this Lease is terminated under any of the provisions contained in
Section 8.1 or is otherwise terminated for breach of any obligation of
Tenant and before such full recovery, elect to recover, and Tenant
shall thereupon pay, as liquidated damages, an amount equal to the
aggregate of the Fixed Rent and Additional Rent accrued in the two (2)
months ended next prior to such termination plus the amount of rent of
any kind accrued and unpaid at the time of termination and less the
amount of any recovery by Landlord under the foregoing provisions of
this Section 8.2 up to the time of payment of such liquidated damages.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy
or insolvency by reason of the termination of this Lease, an amount
equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are
to be proved, whether or not the amount be greater than, equal to, or
less than the amount of the loss or damages referred to above.
8.3 REMEDIES CUMULATIVE. Any and all rights and remedies which Landlord may
have under this Lease, and at law and equity, shall be cumulative and
shall not be deemed inconsistent with each other, and any two or more
of all such rights and remedies may be exercised at the same time
insofar as permitted by law.
8.4 LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but shall not be
obligated to, cure, at any time, without notice, any default by Tenant
under this Lease; and whenever Landlord so elects, all costs and
expenses incurred by Landlord, including reasonable attorneys' fees, in
curing a default shall be paid, as Additional Rent, by Tenant to
Landlord on demand, together with lawful interest thereon from the date
of payment by Landlord to the date of payment by Tenant.
8.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by Landlord to
any act or omission which otherwise would be a breach of any covenant
or condition herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing
obligation of any covenant or condition herein, or otherwise, except as
to the specific instance, operate to permit similar acts or omissions.
8.6 NO WAIVER, ETC. The failure of Landlord to seek redress for violation
of, or to insist upon the strict performance of, any covenant or
condition of this Lease shall not be deemed a waiver of such violation
nor prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach
of any covenant of this Lease shall not be deemed to have been a waiver
of such breach by Landlord. No consent or waiver, express or implied,
by Landlord to or of any breach of any agreement or duty shall be
construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty.
8.7 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser sum
than the Fixed Rent, Additional Rent or any other charge then due shall
be deemed to be other than on account of the earliest installment of
such rent or charge due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent or other
charge be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover
the balance of such installment or pursue any other remedy in this
Lease provided.
ARTICLE 9
RIGHTS OF MORTGAGE HOLDERS
9.1 RIGHTS OF MORTGAGE HOLDERS. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. The word
"holder" shall mean a mortgagee, and any subsequent holder or holders
of a mortgage. Until the holder of a mortgage shall enter and take
possession of the Property for the purpose of foreclosure, such holder
shall have only such rights of Landlord as are necessary to preserve
the integrity of this Lease as security. Upon entry and taking
possession of the Property for the purpose of foreclosure, such holder
shall have all the rights of Landlord. No such holder of a mortgage
shall be liable either as mortgagee or as assignee, to perform, or be
liable in damages for failure to perform, any of the obligations of
Landlord unless and until such holder shall enter and take possession
of the Property for the purpose of foreclosure. Upon entry for the
purpose of foreclosure, such holder shall be liable to perform all of
the obligations of Landlord, subject to and with the benefit of the
provisions of Section 10.4, provided that a discontinuance of any
foreclosure proceeding shall be deemed a conveyance under said
provisions to the owner of the equity of the Property.
The covenants and agreements contained in this Lease with respect to
the rights, powers and benefits of a holder of a mortgage
(particularly, without limitation thereby, the covenants and agreements
contained in this Section 9.1) constitute a continuing offer to any
person, corporation or other entity, which by accepting a mortgage
subject to this Lease, assumes the obligations herein set forth with
respect to such holder; such holder is hereby constituted a party of
this Lease as an obligee hereunder to the same extent as though its
name were written hereon as such; and such holder shall be entitled to
enforce such provisions in its own name. Xxxxxx agrees on request of
Xxxxxxxx to execute and deliver from time to time any agreement which
may be necessary to implement the provisions of this Section 9.1.
9.2 LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES. It is agreed that, subject
to Xxxxxxxx's obtaining a nondisturbance agreement as further described
in this Section 9.2, the rights and interest of Tenant under this Lease
shall be (i) subject or subordinate to any present or future mortgage
or mortgages and to any and all advances to be made thereunder, and to
the interest of the holder thereof in the Premises or any property of
which the Premises are a part if Landlord shall elect by notice to
Tenant to subject or subordinate the rights and interest of Tenant
under this Lease to such mortgage or (ii) prior to any present or
future mortgage or mortgages, if Landlord shall elect, by notice to
Tenant, to give the rights and interest of Tenant under this Lease
priority to such mortgage; in the event of either of such elections and
upon notification by Landlord to that effect, the rights and interest
of Tenant under this Lease should be deemed to be subordinate to, or
have priority over, as the case may be, said mortgage or mortgages,
irrespective of the time of execution or time of recording of any such
mortgage or mortgages (provided that, in the case of subordination of
this Lease to any future mortgages, the holder thereof agrees not to
disturb the possession of Tenant so long as Tenant is not in default
hereunder). Xxxxxx agrees it will, upon request of Landlord, execute,
acknowledge and deliver any and all instruments deemed by Landlord
necessary or desirable to give effect to or notice of such
subordination or priority. Tenant also agrees that if it shall fail at
any time to execute, acknowledge and deliver any such instrument
requested by Landlord, Landlord may, in addition to any other remedies
available to it, execute, acknowledge and deliver such instrument as
the attorney-in-fact of Tenant and in Tenant's name; and Xxxxxx does
hereby make, constitute and irrevocably appoint Landlord as its
attorney-in-fact, coupled with an interest with full power of
substitution, and in its name, place and stead so to do. Any Mortgage
to which this Lease shall be subordinated may contain such terms,
provisions and conditions as the holder deems usual or customary.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 NOTICES FROM ONE PARTY TO THE OTHER. All notices required or permitted
hereunder shall be in writing and addressed, if to the Tenant, at the
Original Notice Address of Tenant or such other address as Tenant shall
have last designated by notice in writing to Landlord and, if to
Landlord, at the Original Notice Address of Landlord or such other
address as Landlord shall have last designated by notice in writing to
Tenant. Any notice shall be deemed duly given when mailed to such
address postage prepaid, by registered or certified mail, return
receipt requested, or when delivered to such address by hand.
10.2 QUIET ENJOYMENT. Xxxxxxxx agrees that upon Xxxxxx's paying the rent and
performing and observing the agreements, conditions and other
provisions on its part to be performed and observed, Tenant shall and
may peaceably and quietly have, hold and enjoy the Premises during the
term hereof without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord, subject, however, to the
terms of this Lease.
10.3 LEASE NOT TO BE RECORDED. Xxxxxx agrees that it will not record this
Lease. Both parties shall, upon the request of either, execute and
deliver a notice or short form of this Lease in such form, if any, as
may be permitted by applicable statute.
10.4 LIMITATION OF LANDLORD'S LIABILITY. The term "Landlord" as used in this
Lease, so far as covenants or obligations to be performed by Landlord
are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the Property, and in the event of any
transfer or transfers of title to said property, the Landlord (and in
case of any subsequent transfers or conveyances, the then grantor)
shall be concurrently freed and relieved from and after the date of
such transfer or conveyance, without any further instrument or
agreement of all liability as respects the performance of any covenants
or obligations on the part of the Landlord contained in this Lease
thereafter to be performed, it being intended hereby that the covenants
and obligations contained in this Lease on the part of Landlord, shall,
subject as aforesaid, be binding on the Landlord, its successors and
assigns, only during and in respect of their respective successive
periods of ownership of said leasehold interest or fee, as the case may
be. Tenant, its successors and assigns, shall not assert nor seek to
enforce any claim for breach of this Lease against any of Landlord's
assets other than Landlord's interest in the Property and in the rents,
issues and profits thereof, and Xxxxxx agrees to look solely to such
interest for the satisfaction of any liability or claim against
Landlord under this Lease, it being specifically agreed that in no
event whatsoever shall Landlord (which term shall include, without
limitation, any general or limited partner, trustees, beneficiaries,
officers, directors, or stockholders of Landlord) ever be personally
liable for any such liability.
10.5 ACTS OF GOD. In any case where either party hereto is required to do
any act, delays caused by or resulting from Acts of God, war, civil
commotion, fire, flood or other casualty, labor difficulties, shortages
of labor, materials or equipment, government regulations, unusually
severe weather, or other causes beyond such party's reasonable control
shall not be counted in determining the time during which work shall be
completed, whether such time be designated by a fixed date, a fixed
time or a "reasonable time," and such time shall be deemed to be
extended by the period of such delay.
10.6 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default in
the performance of any of its obligations hereunder unless it shall
fail to perform such obligations and such failure shall continue for a
period of thirty (30) days or such additional time as is reasonably
required to correct any such default after written notice has been
given by Tenant to Landlord specifying the nature of Landlord's alleged
default. Landlord shall not be liable in any event for incidental or
consequential damages to Tenant by reason of Xxxxxxxx's default,
whether or not notice is given. Tenant shall have no right to terminate
this Lease for any default by Landlord hereunder and no right, for any
such default, to offset or counterclaim against any rent due hereunder.
10.7 BROKERAGE. Tenant warrants and represents that it has dealt with no
broker in connection with the consummation of this Lease, other than
Xxxxxxxx Company, and in the event of any brokerage claims, other than
by Xxxxxxxx Company, against Landlord predicated upon prior dealings
with Xxxxxx, Xxxxxx agrees to defend the same and indemnify and hold
Landlord harmless against any such claim.
10.8 APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts and, if any provisions of this Lease shall to any extent
be invalid, the remainder of this Lease shall not be affected thereby.
There are no oral or written agreements between Landlord and Tenant
affecting this Lease. This Lease may be amended, and the provisions
hereof may be waived or modified, only by instruments in writing
executed by Landlord and Xxxxxx. The titles of the several Articles and
Sections contained herein are for convenience only and shall not be
considered in construing this Lease. Unless repugnant to the context,
the words "Landlord" and "Tenant" appearing in this Lease shall be
construed to mean those named above and their respective heirs,
executors, administrators, successors and assigns, and those claiming
through or under them respectively. If there be more than one tenant,
the obligations imposed by this Lease upon Tenant shall be joint and
several.
10.9 RIGHT OF FIRST OFFER. If additional space in the Building becomes
available during the original term of this Lease, prior to marketing
such space, other than to the then tenant thereof, Landlord shall first
offer to Tenant the opportunity to lease such space, provided that the
initial Tenant named herein occupies at least fifty (50%) percent of
the Rentable Floor Area of the Premises and is not in default hereunder
at such time. The offering terms shall be the same as Landlord would
offer to the general market. Tenant shall have ten (10) days to accept
or reject such offer. If Xxxxxx accepts such offer, Landlord and Xxxxxx
shall both negotiate in good faith an amendment to this Lease with
respect to such space, acceptable to both parties. If Tenant rejects
such offer, Landlord will then be free to offer such space to the
general market.
10.10 EXPANSION. Landlord, or its affiliate, agrees to use reasonable efforts
to accommodate Tenant in another building in the Park should Tenant
require additional space.
WITNESS the execution hereof under seal on the day and year first above
written:
Landlord:
As Trustee, but not individually
As Trustee, but not individually
Tenant:
iBASIS, INC.
By:
Its:
