LEASE BY AND BETWEEN
BERTECH FLANDERS, LLC
("Landlord")
AND
SUPER PC MEMORY, INC.
("Tenant")
for Premises at
115 Flanders Road
Westborough, Massachusetts
April 24, 2003
CONTENTS
1. REFERENCE DATA 3
2. DESCRIPTION OF DEMISED PREMISES 3
2.1. Demised Premises. 3
2.2. Appurtenant Rights. 3
3. TERM OF LEASE 3
3.1. Commencement Date. 3
3.2. Habendum. 4
3.3 Extended Term
4. READINESS FOR OCCUPANCY - ENTRY BY TENANT PRIOR TO
COMMENCEMENT DATE 5
4.1. Landlord's Work. 5
4.2. Entry by Tenant Prior to Commencement Date. 6
4.3. Tenant's Work 6
4.4. Allowance 6
5. USE OF PREMISES 6
5.1. Permitted Use. 6
5.2. Prohibited Uses. 6
5.3. Licenses and Permits. 7
6. RENT 7
7. RENTABLE AREA 8
8. SERVICES FURNISHED BY LANDLORD 8
8.1. Building Services. 8
8.2. Water. 8
8.3. Elevators, Heat, Cleaning. 8
8.4. Air Conditioning. 8
8.5. Additional Heat, Air Conditioning and Cleaning Services. 9
8.6. Additional Air Conditioning Equipment. 9
8.7. Repairs. 9
8.8. Interruption or Curtailment of Services. 9
8.9. Energy Conservation. 10
8.10. Miscellaneous. 11
9. ESCALATION 10
9.1. Definitions. 10
9.2. Expenses. 14
9.3. Part Years. 15
9.4. Disputes, etc. 15
10. CHANGES OR ALTERATIONS BY LANDLORD 15
11. FIXTURES, EQUIPMENT AND IMPROVEMENTS-REMOVAL BY TENANT 16
12. ALTERATIONS AND IMPROVEMENTS BY TENANT 16
13. TENANT'S CONTRACTORS-MECHANICS' AND OTHER LIENS-
STANDARD OF TENANT'S PERFORMANCE-COMPLIANCE WITH LAWS 17
14. REPAIRS BY TENANT-FLOOR LOAD 18
14.1. Repairs by Tenant. 18
14.2. Floor Load-Heavy Machinery. 18
14.3. Electric Current. 18
15. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION 19
15.1. Insurance - Tenant. 19
15.2. Certificates of Insurance. 20
15.3. General. 20
15.4. Property of Tenant. 22
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15.5. Bursting of Pipes, etc. 22
15.6. Repairs and Alterations-No Diminution of Rental Value. 22
16. ASSIGNMENT, MORTGAGING AND SUBLETTING 22
16.1. Landlord's Consent Required. 22
16.2. Terms and Conditions. 23
16.3. Additional Terms and Conditions Applicable to Subletting. 24
16.4. Transfer Premium from Assignment or Subletting. 24
16.5. Landlord's Option to Recapture Space. 25
16.6. Landlord's Expenses. 25
17. MISCELLANEOUS COVENANTS 26
17.1. Rules and Regulations. 26
17.2. Access to Premises-Shoring. 26
17.3. Accidents to Sanitary and Other Systems. 27
17.4. Signs, Blinds and Drapes. 27
17.5. Estoppel Certificate. 28
17.6. Hazardous Materials. 29
17.7. Medical Waste Disposal. 29
17.8. Prohibited Materials and Property. 29
17.9. Requirements of Law-Fines and Penalties. 29
17.10. Tenant's Acts-Effect on Insurance. 30
17.11. Miscellaneous. 30
18. DAMAGE OR DESTRUCTION. 30
18.1. Effect of Damage or Destruction. 30
18.2. Definition of Material Damage. 31
18.3. Abatement of Rent. 31
18.4. Tenant's Negligence. 31
18.5. Tenant's Property. 31
18.6. Waiver. 31
19. WAIVER OF SUBROGATION 31
20. CONDEMNATION - EMINENT DOMAIN 32
21. DEFAULT; REMEDIES 33
21.1. Default by Tenant. 33
21.2. Damages - Assignment for Benefit of Creditors. 34
21.3. Remedies. 34
21.4. Default by Landlord. 35
21.5. Late Charges. 35
21.6. Interest on Past-due Obligations. 36
21.7. Payment of Rent after Default. 36
21.8. Fees and Expenses. 36
21.9. Waiver of Redemption. 36
21.10. Landlord's Remedies Not Exclusive. 36
22. END OF TERM - ABANDONED PROPERTY 37
23. SUBORDINATION 38
24. QUIET ENJOYMENT 39
25. LANDLORD RESERVATIONS 40
26. CHANGES TO BUILDING. 40
27. ENTIRE AGREEMENT - WAIVER - SURRENDER 40
27.1. Entire Agreement. 40
27.2. Waiver by Landlord. 40
27.3. Surrender. 41
28. INABILITY TO PERFORM - EXCULPATORY CLAUSE 41
29. BILLS AND NOTICES 42
30. PARTIES BOUND - SEIZING OF TITLE 43
31. MISCELLANEOUS 44
ii
31.1. Separability. 44
31.2. Captions, etc. 44
31.3. Broker. 44
31.4. Security Measures. 44
31.5. Easements. 44
31.6. Amendments; Modifications. 44
31.7. Arbitration. 44
31.8. Governing Law. 45
31.9. Assignment of Rents. 45
31.10. Representation of Authority. 46
31.11. Expenses Incurred by Landlord Upon Tenant Requests. 46
31.12. Survival. 46
31.13. Time of Essence. 46
31.14. Incorporation of Prior Agreements. 46
31.15. Covenants. 46
31.16. Attorneys' Fees. 46
31.17. Auctions. 46
31.18. Merger. 46
31.19. Authority. 47
31.20. Conflict. 47
31.21. Multiple Parties. 47
31.22. Interpretation. 47
31.23. Relationship of Parties. 47
31.24. Rules and Regulations. 47
31.25. Right to Lease. 47
31.26. Security Interest. 47
31.27. Security for Performance of Tenant's Obligations. 47
31.28. Financial Statements. 48
31.29. Attachments. 48
31.30. Security Deposit. 48
31.31. Notice of Lease; Recording. 49
EXHIBITS
Exhibit 1 Verification Letter
Exhibit 2 Lease Plan
Exhibit 3 Building Services
Exhibit 4 Rules and Regulations
Exhibit 5 Building Legal Description
Exhibit TW Tenant's Work
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LEASE SUMMARY SHEET
Execution Date: April 24, 2003
Tenant: Super PC Memory, Inc., a California corporation.
Landlord: Bertech Flanders, LLC
a Delaware limited liability company
Building: 115 Flanders Road, Westborough, MA. The Building is located on
the parcel of land ("Land") described on Exhibit 5.
Premises: 14,679 rentable square feet on the first (1st) floor of the
Building as shown on the Lease Plan attached hereto as Exhibit 2.
Commencement
Date: See Article 3.1
Termination Date: The last day of the seventy-second (72nd) full calendar
month after the Commencement Date.
Extended Term: One (1) option to extend the Term for an additional sixty
(60) months on the terms and conditions set forth in Article 3.3.
Use of Premises: For general office uses, sales, manufacturing of
electronic data processing equipment, including components thereof,
laboratory use (excluding the use of hazardous materials) and for no other
purpose
Rent:
Yearly Monthly PRSF
Months 1 - 4 0.00 $0.00 $0.00
Months 5* -15 $128,441.25 $10,703.44 $8.75
Month 16 0.00 $0.00 $0.00
Months 17 - 28 $161,469.00 $13,455.75 $11.00
Months 29 - 52 $176,148.00 $14,679.00 $12.00
Months 53 - 72 $183,487.50 $15,290.63 $12.50
Plus the partial calendar month, if any, at the beginning of the Term
Total Usable
Area of Premises: 14,679 square feet
Total Rentable
Area of Premises: 14,679 square feet
Total Rentable
Area of Building: 64,654 square feet of which 35,533 Rentable Square Feet are
located in the two story portion of the Building ("Building Portion A") and
29,121 Rentable Square Feet are located in the one story portion of the
Building ("Building Portion B")
Tenant's Proportionate Share:
Building Portion A
Proportionate Share: Tenant's Building A Proportionate Share shall be Zero
percent (0.0%).
Building
Proportionate Share: A percentage which, when expressed as a fraction, has
as a numerator the Total Rentable Area of the Premises, and as a denominator
the Total Rentable Area of Building. Initially 22.70 %.
Brokers: CB Richard Ellis/Whittier Partners and Spaulding & Slye,
Security Deposit: $60,000.00, payable upon the execution of this Lease,
subject to reduction thereafter as provided in Section 31.30. The Deposit may
be in the form of a letter of credit as provided in Section 31.30.
Attachments: Exhibit 1 - Verification Letter; Exhibit 2 - Lease Plan;
Exhibit 3 - Building Services; Exhibit 4 - Rules and Regulations; Exhibit 5 -
Building Legal Description; Exhibit TW - Tenant's Work and Exhibit LW -
Landlord's Work.; Guaranty
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THIS INDENTURE OF LEASE made and entered into on the Execution Date as
stated in Lease Summary Sheet and between the Landlord and the Tenant named
in Lease Summary Sheet.
Landlord does hereby demise and lease to Tenant, and Tenant does hereby
lease, hire and take from Landlord, the premises hereinafter mentioned and
described (hereinafter referred to as "Premises"), upon and subject to the
covenants, agreements, terms, provisions and conditions of this Lease for the
term hereinafter stated:
1.REFERENCE DATA
Each reference in this Lease to any of the terms and titles contained in any
Exhibit attached to this Lease shall be deemed and construed to incorporate
the data stated under that term or title in such Exhibit.
2.DESCRIPTION OF DEMISED PREMISES
2.1 Demised Premises.
The Premises are that portion of the Building as described in Lease Summary
Sheet (as the same may from time to time be constituted after changes
therein, additions thereto and eliminations therefrom pursuant to rights of
Landlord hereinafter reserved) and is hereinafter referred to as "Building",
substantially as shown hatched or outlined on the Lease Plan (Exhibit 2)
hereto attached and incorporated by reference as a part hereof.
2.2 Appurtenant Rights.
Tenant shall have, as appurtenant to the Premises, rights to use in common,
with others entitled thereto, subject to reasonable rules from time to time
made by Landlord of which Tenant is given notice: (a) the common lobbies,
hallways, stairways and elevators of the Building serving the Premises in
common with others, (b) common walkways necessary for access to the Building,
(c) if the Premises include less than the entire rentable area of any floor,
the common toilets and other common facilities of such floor (collectively,
the "Common Areas"); and no other appurtenant rights or easements.
Notwithstanding anything to the contrary herein contained, Landlord has no
obligation to allow any particular telecommunication service provider to have
access to the Building or to Tenant's Premises, provided that it shall not
unreasonably withhold its consent to any provider requested by Tenant.
Furthermore, so long as Landlord owns the building at One Research Drive in
Westborough, Tenant shall have full access to the cafeteria therein, a 130
seat auditorium for company functions, and an ATM machine, all subject to
such rules, regulations, and procedures for such use as are established by
Landlord
2.2.1 Exclusions and Reservations.
All the perimeter walls of the Premises except the inner surfaces thereof,
any balconies [except to the extent same are shown as part of the Premises on
the Lease Plan (Exhibit 2)], terraces or roofs adjacent to the Premises, and
any space in or adjacent to the Premises used for shafts, stacks, pipes,
conduits, wires and appurtenant fixtures, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as well
as the right of access through the Premises for the purposes of operation,
maintenance, decoration and repair, are expressly excluded from the Premises
and reserved to Landlord.
3. TERM OF LEASE
3.1 Commencement Date. As used in this Lease the phrase "Commencement Date"
shall be the earlier to occur of (i) the date Tenant's Work is substantially
completed, or (ii) the date Tenant begins to do business in the Premises. If
the Premises are not delivered to Tenant with Landlord's Work and Tenant's
Work substantially completed on or before October 1, 2003,
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then Tenant shall have the right to terminate this Lease upon written notice
to Landlord given prior to such delivery, but not later than October 31,
2003. The foregoing dates shall be extended by one (1) day for each day of
delay in Landlord's completion of Landlord's Work and Tenant's Work due to
delays caused by Tenant, including, without limitation, delays due to
Tenant's request for changes in any such work, Tenant's failure to pay
contractors, Tenant's interference with Landlord due to Tenant's performance
of any Withdrawn Work (as defined in Exhibit TW), or Tenant's failure to
approve in a timely manner any plans or specifications.
3.2 Habendum.
TO HAVE AND TO HOLD the Premises for a term of years commencing on the
Commencement Date and ending on the Termination Date as stated in the Lease
Summary Sheet or on such earlier date upon which said term may expire or be
terminated pursuant to any of the conditions of limitation or other
provisions of this Lease or pursuant to law (which date for the termination
of the terms hereof will hereafter be called "Termination Date").
Notwithstanding the foregoing, if the Termination Date as stated in the Lease
Summary Sheet shall fall on other than the last day of a calendar month, said
Termination Date shall be deemed to be the last day of the calendar month in
which said Termination Date occurs.
If the Commencement Date and the Termination Date are not determined at the
time that a Notice of Lease has been executed by the parties, then each of
the parties hereto agrees, upon demand of the other party after the
Commencement Date and Termination Date have been determined, to join in the
execution, in recordable form, of a statutory notice, memorandum, etc. of
lease and/or written declaration in which shall be stated such Commencement
Date and (if need be) the Termination Date. If this Lease is terminated
before the Term expires, then upon Landlord's request the parties shall
execute, deliver and record an instrument acknowledging such fact and the
date of termination of this Lease..
3.3 Extended Term.
Provided Tenant has not defaulted hereunder (beyond expiration of applicable
notice and cure periods) on more than two (2) occasions prior to the date
Tenant exercises its rights under this Section, and further provided Tenant,
at the time of its exercise and at the time of commencement of the Extended
Term, is not in default beyond expiration of applicable notice and cure
periods, and is occupying the Premises (meaning, without limitation, that the
Premises are being fully utilized by Tenant or any related entity and are not
then sublet or occupied by a party other than Tenant, Tenant shall have the
option to extend this Lease for the Extended Term (as set forth in the Lease
Summary Sheet) upon the same terms and conditions of this Lease, except that
Rent for the Extended Term shall be fair market rent ("Market Rent")
determined as set forth hereinafter. Tenant shall notify Landlord, in
writing, of Tenant's exercise of Tenant's option at least nine (9) months
prior to the Termination Date. If Tenant fails to so notify Landlord at least
nine (9) months prior to the Termination Date, then Tenant shall be deemed to
have waived Tenant's right to extend. Time is of the essence.
If this Lease is extended, all references to "Term" herein shall refer to and
include the Extended Term (including, without limitation, payment of all
Additional Rent) unless specifically designated otherwise .
Market Rent shall be determined in accordance with the procedure set forth
hereinafter.
The parties shall have thirty (30) days after Landlord receives Tenant's
extension option notice in accordance herewith in which to agree on the
Market Rent for the Extended Term. If the parties agree on the Market Rent
during such thirty (30) day period, Landlord and Tenant shall execute an
amendment to this Lease setting forth the Rent for the Extended Term.
If the parties are unable to agree on the Market Rent within the thirty (30)
day period, then, within ten (10) days after the expiration of that period
(as same may have been extended by the mutual agreement of the parties), each
party, at its cost and by giving notice to the other party, shall appoint a
qualified M.A.I. real estate appraiser with at least 5 years' full-time
commercial appraisal experience in the Boston metropolitan area to appraise
and set the Market
4
Rent for the Premises. The Market Rent shall be based on
leases for comparable property in the area (which will be adjusted as
necessary for all relevant facts, such as, but not limited to term, tenant
improvement dollar allowance, square footage and tenant credit) in which the
Premises are located and based upon the Premises as improved. If a party does
not appoint such an appraiser within ten (10) days after the other party has
given notice of the name of its appraiser, the single appraiser appointed
shall be the sole appraiser and shall set the Market Rent for the Premises.
The two appraisers appointed by the parties as stated in this paragraph shall
meet promptly and attempt to establish the Market Rent for the Premises. If
the appraisers are unable to agree within thirty (30) days after the second
appraiser has been appointed, they shall attempt to elect a third appraiser
meeting the qualifications stated in this paragraph within ten (10) days
after the last day the two appraisers are given to set the Market Rent. If
they are unable to agree on the third appraiser, either of the parties to
this Lease, by giving ten (10) days' notice to the other party, can appeal to
the then president of the Greater Boston Real Estate Board, for the selection
of a third appraiser who meets the qualifications stated in this paragraph.
Landlord and Tenant each shall bear one-half (1/2) of the cost of appointing
and paying the fee of the third appraiser. The third appraiser, however
selected, shall be a person who has not previously acted in any capacity for
either party.
Within thirty (30) days after the selection of the third appraiser, a
majority of the appraisers shall set the Market Rent for the Premises. If a
majority of the appraisers are unable to set the Market Rent within the
stipulated period of time, the three appraisals shall be added together and
their total divided by three; the resulting quotient shall be the Market Rent
for the Premises.
If, however, the low appraisal and/or the high appraisal are more than ten
(10%) percent lower and/or higher than the middle appraisal, the low
appraisal and/or the high appraisal shall be disregarded. If only one
appraisal is disregarded, the remaining two appraisals shall be added
together and their total divided by two; the resulting quotient shall be the
Market Rent for the Premises. If both the low appraisal and the high
appraisal are disregarded as stated in this paragraph, the middle appraisal
shall be the Market Rent of the Premises.
4. READINESS FOR OCCUPANCY - ENTRY BY TENANT PRIOR TO COMMENCEMENT DATE
4.1 Landlord's Work; Condition of Premises.
Landlord shall perform certain work and improvements in and on the Premises
prior to the Commencement Date, all as more particularly described in Exhibit
LW attached hereto (collectively, the "Landlord's Work"). The Landlord's Work
shall be completed by Landlord at Landlord's sole cost and expense, in a good
and worker like manner and in compliance with the requirements of all
applicable laws, regulations and codes in effect at the Commencement Date,
including without limitation, the Americans with Disabilities Act and any
sprinkler requirements. All claims for Landlord's failure to properly
complete Landlord's Work shall be made within thirty (30) days of the
Commencement Date or, in the case of latent defects, within ninety (90) days
after the Commencement Date, or shall be deemed waived in either of which
event. All work shall be completed by Landlord within thirty (30) days of
receipt of such notice of such claim, (unless such longer period is required,
provided Landlord has commenced and is diligently proceeding to cure same).
Tenant acknowledges and agrees that, with the exception of Landlord's Work,
Tenant is accepting the Building and the Premises in their "as is" condition,
and Landlord shall not be obligated to construct any improvements on behalf
of Tenant. It is specifically understood and agreed that, with the exception
of Landlord's Work, Landlord has no obligation and has made no promises to
alter, remodel, improve, renovate, repair or decorate the Premises, the
Building or any part thereof, or to provide any allowance for such purposes
except as specifically set forth in
5
Section 4.4, and that no representations
respecting the condition of the Premises or the Building have been made by
Landlord to Tenant. In addition, Tenant acknowledges that it has satisfied
itself by its own independent investigation that the Premises and the
Building are suitable for its intended use, and that neither Landlord nor
Landlord's agents has made any representation or warranty as to the present
or future suitability of the Premises, or the Building for the conduct of
Tenant's business.
4.2 Entry by Tenant Prior to Commencement Date.
Subject to Landlord's reasonable conditions Tenant shall have the right to
enter the Premises prior to the Commencement Date, during normal business
hours and without payment of rent, for the purpose of performing Tenant's
Work, viewing or measuring the Premises and only such other specific purposes
as may be permitted by Landlord. Such right of entry shall be deemed a
license from Landlord to Tenant, and any entry thereunder shall be at the
risk of Tenant and shall be subject to all of the terms and conditions of the
Lease including, without limitation, the indemnity provisions hereof. Prior
to entering the Premises Tenant shall obtain all insurance it is required to
obtain by the Lease and shall provide certificates of said insurance to
Landlord.
4.3 Tenant's Work. Landlord shall, promptly after full execution
and delivery hereof and preparation of any required plans and specifications,
perform Tenant's Work, as set forth in Exhibit TW. All Tenant Work shall be
performed at Tenant's risk in compliance with all applicable laws, codes and
regulations and in a good and workmanlike manner employing new materials of
good quality and producing a result at least equal in quality to the other
parts of the Premises.
4.4 Allowance. Landlord's Allowance to Tenant. Landlord shall
provide an Allowance to Tenant as set forth in Exhibit TW.
5. USE OF PREMISES
5.1 Permitted Use.
Tenant shall continuously during the term hereof occupy and use the Premises
only for the "Use of Premises" as stated in the Lease Summary Sheet and for
no other purposes. Service and utility areas (whether or not a part of the
Premises) shall be used only for the particular purpose for which they were
designed. General office use, by way of example and not limitation, shall not
include medical office use or any similar use, medical laboratory use,
classroom use, any use not characterized by applicable zoning and land use
restrictions as general office use, or any use which would require Landlord
or Tenant to obtain a conditional use permit or variance from any federal,
state or local authority, or any other use not compatible, in Landlord's sole
judgment, with a first class office building. No exclusive use has been
granted to Tenant hereunder. Without limiting the generality of the
foregoing, Tenant agrees that it shall not use the Premises or any part
thereof, or permit the Premises or any part thereof to be used for the
preparation or dispensing of food, whether by vending machines or otherwise,
other than for snack and beverage vending machines for the exclusive use of
Tenant's employees and guests. Notwithstanding the foregoing, but subject to
the other terms and provisions of this Lease, Tenant may, with Landlord's
prior written consent, which consent shall not be unreasonably withheld,
install at its own cost and expense so-called hot-cold water fountains, and
so-called Dwyer refrigerator-sink-stove combinations for the preparation of
beverages and foods, and may install, without Landlord's consent, coffee
makers and microwave ovens, provided as to all of the foregoing that no
cooking, frying, etc., are carried on in the Premises to such extent as
requires special exhaust venting, Tenant hereby acknowledging that the
Building is not engineered to provide any such special venting.
5.2 Prohibited Uses.
Notwithstanding any other provision of this Lease, Tenant shall not use, or
suffer or permit the use or occupancy of, or suffer or permit anything to be
done in or anything to be brought into or kept in or about the Premises or
the Building or any part thereof
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(including, without limitation, any materials appliances or equipment used in
the construction or other preparation of the Premises and furniture and
carpeting): (i) which would violate any of the covenants, agreements, terms,
provisions and conditions of this Lease or otherwise applicable to or binding
upon the Premises; (ii) for any unlawful purposes or in any unlawful manner,
(iii) which, in the reasonable judgment of Landlord shall in any way (a)
impair the appearance or reputation of the Building; (it being agreed that
the "Use of Premises" stated in the Lease Summary Sheet, if conducted
reasonably, shall not be deemed to be any impairment) or (b) impair,
interfere with or otherwise diminish the quality of any of the Building
services or the proper and economic heating, cleaning, ventilating, air
conditioning or other servicing of the Building; or Premises, or with the use
or occupancy of any of the other areas of the Building, or occasion
discomfort, inconvenience or annoyance, or injury or damage to any occupants
of the Premises or other tenants or occupants of the Building; or (iv) which
is inconsistent with the maintenance of the Building as an office building of
the first class in the quality of its maintenance, use, or occupancy.( it
being agreed that the "Use of Premises" stated in the Lease Summary Sheet, if
conducted reasonably, shall not be deemed to be so inconsistent). Tenant
shall not: (a) use the Premises for lodging, or for any immoral or illegal
purposes; (b) use the Premises to engage in the manufacture or sale of, or
permit the use of spirituous, fermented, intoxicating or alcoholic beverages
on the Premises; (c) use the Premises to engage in the manufacture or sale of
or permit the use of, any illegal drugs on the Premises. Tenant shall not
install or use any electrical or other equipment of any kind which, in the
reasonable judgment of Landlord, might cause any such impairment,
interference, discomfort, inconvenience, annoyance or injury.
5.3 Licenses and Permits.
Notwithstanding any permitted use inserted in Article 5.1, Tenant shall not
use the Premises for any purpose which would violate the Building's
certificate of occupancy, any conditional use permit or variance applicable
to the Building or violate any covenants, conditions or other restrictions
applicable to the Building, now in effect or which may hereafter come into
effect, whether or not they reflect a change in policy from that now
existing, during the Term or any part of the Term hereof, relating in any
manner to the Premises and the occupation and use by Tenant of the Premises.
If any governmental license or permit shall be required for the proper and
lawful conduct of Tenant's business, and if the failure to secure such
license or permit would in any way affect Landlord, the Premises, the
Building or Tenant's ability to perform any of its obligations under this
Lease, Tenant, at Tenant's expense, shall duly procure and thereafter
maintain such license and submit the same to inspection by Landlord. Tenant,
at Tenant's expense, shall at all times comply with the terms and conditions
of each such license or permit. Tenant shall furnish all data and information
to governmental authorities and Landlord as required in accordance with
legal, regulatory, licensing or other similar requirements as they relate to
Tenant's use or occupancy of the Premises or the Building.
6. RENT
A. During the term of this Lease, the Yearly Rent and other charges
("rent"), at the rate stated in the Lease Summary Sheet, shall be payable by
Tenant to Landlord by monthly payments, as stated in the Lease Summary Sheet,
in advance and without demand, on the first day of each month for and in
respect of such month. The Yearly Rent (including for months in which the
amount of Yearly Rent is $0.00) and other charges reserved and covenanted to
be paid under this Lease shall commence on the Commencement Date. If, by
reason of any provisions of this Lease, the rent reserved hereunder shall
commence or terminate on any day other than the first day of a calendar
month, the rent for such partial calendar month shall be prorated and payable
at beginning of fifth (5th) full calendar month of the Term. The rent shall
be payable to Landlord or, if Landlord shall so direct in writing, to
Landlord's agent or nominee, in lawful money of the United States which shall
be legal tender for payment of all debts and dues, public
7
and private, at the time of payment, at the office of the Landlord or such
place as Landlord may designate, and the rent and other charges in all
circumstances shall be payable without any setoff or deduction whatsoever.
B. Tenant's payments under this Lease shall include all Yearly Rent, Tenant's
Proportionate Share of Taxes and Operating Costs, and all other additional
rent and costs of every kind relating to the Premises as specified in this
Lease and Tenant shall pay all Yearly Rent, Tenant's Proportionate Share of
Taxes and Operating Costs, and all such other additional rent and costs o
without notice, demand, setoff, deduction, counterclaim, defense or abatement
except as specifically provided in the Lease.
7. RENTABLE AREA
The Total Rentable Area of the Premises, Building Portion A and the Building
shall be deemed to be as set forth in the Lease Summary Sheet.
8. SERVICES FURNISHED BY LANDLORD
8.1 Building Services.
The Building shall be open to the public Mondays through Fridays, from 8:00
a.m. to 6:00 p.m. and Saturdays 8:00 a.m. to 1:00 p.m., excepting legal
holidays ("Standard Building Hours"). Tenant shall have keycard access to the
Building and the Premises twenty-four hours a day, seven days a week.
8.2 Water.
Landlord shall furnish hot and cold water for ordinary Premises, cleaning,
toilet, lavatory and drinking purposes. If Tenant requires, uses or consumes
water for any purpose other than for the aforementioned purposes, Landlord
may (i) assess a reasonable charge for the additional water so used or
consumed by Tenant or (ii) install a water meter and thereby measure Tenant's
water consumption for all purposes. Tenant agrees to pay for water consumed,
as shown on said meter, together with the sewer charge based on said meter
charges, as and when bills are rendered, and on default in making such
payment Landlord may pay such charges and collect the same from Tenant. All
piping and other equipment and facilities for use of water outside the
building core will be installed and maintained by Landlord at Tenant's sole
cost and expense.
8.3 Elevators, Heat, Cleaning.
(a) Landlord shall: (i) provide necessary elevator facilities (as currently
in the Building); (ii) furnish heat (substantially equivalent to that being
furnished in comparably aged similarly equipped office buildings in the same
city) to the Premises during the normal heating season on business days; and
(iii) cause the office areas of the Premises to be cleaned on business days
(except on Saturdays) provided the same are kept in order by Tenant. Either
Exhibit 3 (if annexed hereto) or, otherwise, the cleaning standards generally
prevailing in first-class office buildings in the city or town where the
Building is located, shall represent substantially the extent and scope of
the cleaning by Landlord referred to in this Article 8.3.
(b) The parties agree and acknowledge that, despite reasonable precautions
in selecting cleaning and maintenance contractors and personnel, any property
or equipment in the Premises of a delicate, fragile or vulnerable nature may
nevertheless be damaged in the course of and maintenance services being
performed. Accordingly, Tenant shall take reasonable protective precautions
with such property and equipment (including, without limitation, computers or
other data processing components or equipment and optical or electronic
equipment, etc.), e.g., housing the property and equipment in a separate,
locked room, so as to render it inaccessible to the Building's cleaning
personnel.
8.4 Air Conditioning. Landlord shall through the air conditioning equipment
of the Building furnish to and distribute in the Premises through the
existing distribution system air
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conditioning as normal seasonal changes may require on business days
during Standard Building Hours when air conditioning may reasonably be
required for the comfortable occupancy of the Premises by Tenant. Tenant
agrees to cooperate fully with Landlord with regard to, and to abide by all
the reasonable regulations and requirements which Landlord may prescribe for
the proper functioning and protection of the air conditioning system. The
foregoing design conditions shall be based upon an occupancy within each
separately partitioned area in the Premises of not more than one person per
100 square feet of Total Rentable Area and upon a combined lighting and
standard electrical load not to exceed 2 1/2 watts per square foot of Total
Rentable Area.
8.5 Additional Heat, Air Conditioning and Cleaning Services.
(a) Landlord will use reasonable efforts upon reasonable advance written
notice from Tenant of its requirements in that regard, to furnish additional
heat, cleaning or air conditioning services to the Premises on days and at
times other than as above provided.
(b) In the event that Tenant shall require additional heating or air
conditioning services beyond the Standard Building Hours, Landlord shall
provide said services at a rate of per hour which may be established by
Landlord from time to time. In the event that said services are also
requested by additional tenants of Building Portion A, such rate shall be
apportioned evenly among the requesting parties.
(c) Tenant will pay to Landlord a reasonable charge (i) for any cleaning
service requested or required by Tenant on days or at times other than as
provided under Section 8.3(a) (iii) above, (ii) for any extra cleaning of the
Premises required because of the carelessness or indifference of Tenant or
because of the nature of Tenant's business, and (iii) for any cleaning done
at the request of Tenant of any portions of the Premises which may be used
for, manufacturing, storage, shipping room or other non-office purposes. If
the cost to Landlord for cleaning the Premises shall be increased due to the
installation in the Premises, at Tenant's request, of any materials or finish
other than those which are building standard, Tenant shall pay to Landlord an
amount equal to such increase in cost. Tenant shall pay all after hours
additional heat, cleaning or air conditioning service charges to Landlord
within fifteen (15) days after Landlord bills Tenant for said charges.
8.6 Additional Air Conditioning Equipment.
In the event Tenant requires additional air conditioning for business
machines, meeting rooms or other special purposes, or because of occupancy or
excess electrical loads, any additional air conditioning units, chillers,
condensers, compressors, ducts, piping and other equipment, such additional
air conditioning equipment will be installed and maintained by Landlord (or,
at Landlord's election, by Tenant), all at Tenant's sole cost and expense,
but Tenant shall be entitled to same only if, in Landlord's reasonable
judgment, the same will not cause damage or injury to the Building or create
a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants;
and Tenant shall reimburse Landlord in such an amount as will compensate it
for the cost incurred by it in operating such additional air conditioning
equipment.
8.7 Repairs.
Except as otherwise provided in Articles 18 and 20, and subject to Tenant's
obligations in Article 14, Landlord shall keep and maintain the roof,
exterior walls, structural floor slabs, columns, elevators, public stairways
and corridors, lavatories, equipment (including, without limitation,
sanitary, electrical, heating air conditioning, or other systems) and other
common facilities of the Building in good condition and repair.
8.8 Interruption or Curtailment of Services.
When necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements which in the reasonable judgment of
Landlord are desirable or necessary to be made, or of difficulty or inability
in securing supplies or labor, or of strikes, or of any other cause beyond
the reasonable control of Landlord, whether such other cause be similar or
dissimilar to those hereinabove specifically mentioned until said cause has
been removed, Landlord reserves the right to interrupt, curtail,
9
stop or suspend (i) the furnishing of heating, elevator, air conditioning,
and cleaning services and (ii) the operation of the plumbing and electric
systems. Landlord shall exercise reasonable diligence to eliminate the cause
of any such interruption, curtailment, stoppage or suspension, but there
shall be no diminution or abatement of rent or other compensation due from
Landlord to Tenant hereunder, nor shall this Lease be affected or any of the
Tenant's obligations hereunder reduced, and the Landlord shall have no
responsibility or liability for any such interruption, curtailment stoppage,
or suspension of services or systems.
8.9 Energy Conservation.
Notwithstanding anything to the contrary in this Article 8 or in this Lease
contained, Landlord may institute, and Tenant shall comply with, such
policies, programs and measures as may be necessary, required, or expedient
for the conservation and/or preservation of energy or energy services, or as
may be necessary or required to comply with applicable codes, rules
regulations or standards.
8.10Parking. Tenant shall have the non-exclusive right, in common with other
tenants and occupants of the Building, and their invitees, and others to whom
Landlord may grant such rights, to park in the parking areas serving the
Building from time to time. Tenant's rights shall be subject to the following
terms and conditions, and such rules and regulations as Landlord may
promulgate from time to time. All such parking shall be on a first come,
first served basis, and Landlord reserves the right to increase, decrease,
rearrange and relocate the parking areas provided that Landlord maintains a
parking ratio for the Building of 3.6 spaces per 1,000 leaseable square feet
of space in the Building subject to takings, temporary interruptions and
conditions beyond the reasonable control of Landlord.
8.11 Miscellaneous.
Other than air conditioning, all services provided by Landlord to Tenant are
based upon an assumed maximum premises population of one person per two
hundred (200) square feet of Total Rentable Area, which limit Tenant shall in
no event exceed.
9. ADDITIONAL RENT/EXPENSES.
9.1 Definitions.
As used in this Article 9, the words and terms which follow mean and include
the following:
(a) "Operating Year" shall mean a calendar year in which occurs any part of
the term of this Lease.
(b) "Tenant's Proportionate Share" shall be as stated in the Lease Summary
Sheet.
(c) "Taxes" shall mean the real estate taxes and other taxes, levies and
assessments imposed upon the Building and the Land and upon any personal
property of Landlord used in the operation thereof, or Landlord's interest in
the Building, Land or such personal property; charges, fees and assessments
for transit, housing, police, fire or other governmental services or
purported benefits to the Building or Land, service or user payments in lieu
of taxes; and any and all other taxes, levies, betterments, assessments and
charges arising from the ownership, leasing, operating, use or occupancy of
the Building or Land, or based upon rentals derived therefrom, which are or
shall be imposed by National, State, Municipal or other authorities. As of
the Execution Date, Taxes shall not include any franchise, rental, income or
profit tax, capital levy or excise taxes, provided, however, that any of the
same and any other tax, excise, fee, levy, charge or assessment, however
described, that may in the future be levied or assessed as a substitute for
or an addition to, in whole or in part, any tax, levy or assessment which
would otherwise constitute Taxes, whether or not now customary or in the
contemplation of the parties on the Execution Date of this Lease, shall
constitute Taxes, but only to the extent calculated as if the Building and
the Land is the only real estate owned by
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Landlord. Taxes shall also include
expenses of tax abatement or other proceedings contesting assessments or
levies.
(d) "Tax Period" shall be any fiscal/tax period in respect of which Taxes
are due and payable to the appropriate governmental taxing authority, any
portion of which period occurs during the term of this Lease, the first such
Period being the one in which the Commencement Date occurs.
(e) "Operating Costs":
(1) Definition of Operating Costs. "Operating Costs" shall mean all costs
incurred and expenditures of whatever nature made by Landlord in the
operation and management for repair and replacements, cleaning and
maintenance of the Building, Land and grounds including, without limitation,
vehicular and pedestrian passageways related to the Building or Land, and all
related equipment, facilities and appurtenances, elevators, cooling and
heating equipment. In the event that Landlord or Landlord's managers or
agents perform services for the benefit of the Building off-site which would
otherwise be performed on-site (e.g., accounting), the cost of such services
shall be reasonably allocated among the properties benefiting from such
service and shall be included in Operating Costs. The Building's pro rata
share (as reasonably determined by Landlord) of the cost of operating,
managing (including, without limitation, the cost of the management office),
maintaining and cleaning (including, without limitation, snow and ice
removal) the common areas shall be included in Operating Costs. Operating
Costs shall include, without limitation, those categories of Specifically
Included Operating Costs, as set forth below, but shall not include "Excluded
Costs," as hereinafter defined.
(2) Definition of Excluded Costs. "Excluded Costs" shall be defined as the
cost of electric energy purchased for the Premises by Tenant under Article
14.3 hereof, mortgage charges, brokerage commissions or other costs related
to the sale or marketing (including leasing) of the Building or Land,
salaries of executives and owners not directly employed in the
management/operation of the Building, the cost of work done by Landlord for a
particular tenant for which Landlord has the right to be reimbursed by such
Tenant, management fees to the extent they exceed three percent (3.0%) of
gross rentals in the Building per annum, and, subject to Subparagraph (3)
below, such portion of expenditures as are not properly chargeable against
income. In addition, Landlord agrees that the amount of Operating Costs
(excluding those arising from "Non-controllable Costs") shall not increase
by more than four percent (4.0%) per annum on a cumulative basis throughout
the Term. For purposes hereof, the term "Non-controllable Costs" shall mean
the costs of plowing, removal, sanding and/or salting of snow and ice;
utilities; and insurance,
(3) Capital Expenditures.
(i) Replacements. 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
includable in Operating Costs for the Operating Year in which they were made,
there shall nevertheless be included in such Operating Costs and in Operating
Costs for each succeeding Operating Year the amount, if any, by which the
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Annual Charge-Off (determined as hereinafter provided) of such Capital
Expenditure (less insurance proceeds, if any, collected by Landlord by reason
of damage to, or destruction of the capital item being replace) exceeds the
annual Charge-Off of the Capital Expenditure for the item being replaced.
(ii) New Capital Items. If a new capital item is acquired which does not
replace another capital item which was worn out, has become obsolete, etc.,
then there shall be included in Operating Costs for each Operating Year in
which and after such Capital Expenditure is made the Annual Charge-Off of
such Capital Expenditure.
(iii) Annual Charge-Off. "Annual Charge-Off" shall be defined as the annual
amount of principal and interest payments which would be required to repay a
loan ("Capital Loan") in equal monthly installments over the Useful Life, as
hereinafter defined, of the capital item in question on a direct reduction
basis at an annual interest rate equal to the Capital Interest Rate, as
hereinafter defined, where the initial principal balance is the cost of the
capital item in question. Notwithstanding the foregoing, if Landlord
reasonably concludes on the basis of engineering estimates that a particular
Capital Expenditure will effect savings in Building operating expenses
including, without limitation, energy-related costs (whether by an actual
decrease in the then current costs or a reduction in the otherwise projected
costs), and that such projected savings will, on an annual basis ("Projected
Annual Savings"), exceed the Annual Charge-Off of such Capital Expenditure
computed as aforesaid, then and in such events, the Annual Charge-Off shall
be increased to an amount equal to the Projected Annual Savings; and in such
circumstances, the increased Annual Charge-Off (in the amount of the
Projected Annual Savings) shall be made for such period of time as it would
take to fully amortize the cost of the capital item in question, together
with interest thereon at the Capital Interest Rate as aforesaid, in equal
monthly payments, each in the amount of one-twelfth (1/12th) of the Projected
Annual Savings, with such payments being applied first to interest and the
balance to principal.
(iv) Useful Life. "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.
(v) Capital Interest Rate. "Capital Interest Rate" shall be defined as an
annual rate of either one percentage point over the AA Bond rate (Standard &
Poor's corporate composite or, if unavailable, its equivalent) as reported in
the financial press at the time the Capital Expenditure is made or, if the
capital item is acquired through third-party financing, then the actual
(including fluctuating) rate paid by Landlord in financing the acquisition of
such capital item.
(4) Specifically Included Categories of Operating Costs. Operating Costs
shall include, but not be limited to, the following:
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Taxes (other than real estate taxes): Sales, Federal Social Security,
Unemployment and Old Age Taxes and contributions and State Unemployment taxes
and contributions accruing to and paid by the Landlord on account of all
employees of Landlord and/or Landlord's managing agent, who are employed or
on account of the Building, except that taxes levied upon the net income of
the Landlord and taxes withheld from employees, and "Taxes" as defined in
Article 9.1(c) shall not be included herein.
Water: All charges and rates connected with water supplied to the Building
and related sewer use charges.
Heat and Air Conditioning: All charges connected with heat and air
conditioning supplied to the Building.
Wages: Wages and cost of all employee benefits of all employees of the
Landlord and/or Landlord's managing agent who are employed in, about or on
account of the Building.
Cleaning: The cost of labor and material for cleaning the Building,
surrounding areaways and windows in the Building.
Elevator Maintenance: All expenses for or on account of the upkeep and
maintenance of all elevators in the Building.
Electricity: The cost of all electric current for the operation of any
machine, appliance or device used for the operation of the Premises and the
Building, including the cost of electric current for the elevators, lights,
air conditioning and heating, but not including electric current which is
paid for directly to the utility by the user/tenant in the Building. (As
Tenant pays separately for its own consumption as determined by separate
meter(s) installed by Landlord within the Premises, then Operating Costs
shall include only Building and public area electric current consumption and
not any demised premises electric current consumption. Wherever separate
metering is unlawful, prohibited by utility company regulation or tariff or
is otherwise impracticable, relevant consumption figures for the purposes of
this Article 9 shall be determined by fair and reasonable allocations and
engineering estimates made by Landlord.
Insurance, etc.: Fire, casualty, liability and such other insurance as may
from time to time be maintained by Landlord or may be required by lending
institutions on first-class office buildings in the city or town wherein the
Building is located and all other expenses customarily incurred in connection
with the operation and maintenance of first-class office buildings in the
city or town wherein the Building is located including, without limitation, a
management fee payable by Landlord and rental costs associated with the
Building 's management office.
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9.2 Expenses.
A. For purposes of determining Tenant's Proportionate Share of Operating
Costs and Taxes, the following shall apply. Tenant shall pay (i) Tenant's
Building Proportionate Share of Operating Costs which are not incurred solely
for the operation of Building Portion A, plus (ii) Tenant's Building Portion
A Proportionate Share for Operating Costs which are incurred solely for the
operation of Building Portion A, plus (iii) Tenant's Building Proportionate
Share of Taxes. The determination of which Operating Costs are incurred
solely for the operation of Building Portion A shall be made by Landlord.
exercising reasonable judgement.
B. Direct Reimbursables. In addition to Tenant's Proportionate Share
of Operating Costs and Taxes, at Landlord's option, Tenant also shall
reimburse Landlord for Tenant's Direct Reimbursable Expenses. "Direct
Reimbursement Expenses" means Operating Costs which can be attributed
directly to the operation, maintenance, repair and/or replacement of the
premises of an individual tenant or a group of tenants. At Landlord's option
and to the extent feasible, Landlord will charge Direct Reimbursable Expenses
directly to Tenant or pro rata to those tenants for which such expenses were
incurred, and such expenses shall be due and payable fifteen (15) days
after receipt of a bill from Landlord. Direct Reimbursable Expenses which
represent a component of Operating Costs incurred primarily for the benefit
of one or a group of tenants shall not be included in the Operating Costs for
purposes of determining Tenant's Proportionate Share thereof so as to
eliminate duplication of component items for which Tenant is being charged
directly. However, such tenant or group of tenants shall remain liable for
any other Operating Costs incurred by Landlord. For example, if Tenant or a
group of tenants were to maintain its own HVAC system at its own expense,
such item would be excluded from Operating Costs for purposes of determining
Tenant's or such tenants' proportionate shares, and the Operating Costs for
such tenants would include only the cost of HVAC for the common areas of the
Building.
C. Extrapolation. With respect to any Lease Year in which the Building or
Building Portion A is not 95% occupied, the Operating Costs which vary based
on the occupancy of the Building shall, for the purpose of determining
Operating Costs, be increased for such period to the amount which would have
been incurred had the Building or Building Portion A, as the case may be,
been 95% occupied.
D. Payments. Beginning on the Commencement Date, and including during and
with respect to all periods of free Base Rent, Tenant shall pay to Landlord
Tenant's Proportionate Share of Operating Costs and Taxes, which amounts
shall be due fifteen (15) days after when billed by Landlord. At Landlord's
option, however, Landlord may, from time to time, provide Tenant with an
estimate of the expected Operating Costs and Taxes for the coming Operating
Year, and an estimate of Tenant's additional rent for such Operating Costs
and Taxes, and said additional rent shall be payable by Tenant monthly during
each Operating Year of the term of the Lease on the first day of each
calendar month. In the event that Tenant pays Landlord's estimate of Tenant's
Proportionate Share of Operating Costs and Taxes, Landlord shall use its best
efforts to deliver to Tenant within ninety (90) days after the expiration of
each Operating Year a reasonably detailed statement showing Tenant's
Proportionate Share of the actual Operating Costs and Expenses incurred
during such year. Landlord's failure to deliver the statement to Tenant
within said period shall not constitute Landlord's waiver of its right to
collect said amounts or otherwise prejudice Landlord's rights hereunder. If
Tenant's payments under this Article 9.2 during said Operating Year exceed
Tenant's Proportionate Share as indicated on said statement, Tenant shall be
entitled to credit the amount of such overpayment against Tenant's
Proportionate Share next falling due, and if this Lease terminates before
Tenant has received full credit, the remainder shall be paid to Tenant upon
delivery of Landlord's annual statement next following termination of this
Lease. If Tenant's payments under this Article 9.2 during said Operating Year
were less than Tenant's Proportionate Share as indicated on said statement,
14
Tenant shall pay to Landlord the amount of the deficiency to Landlord within
fifteen (15) days when billed therefor. Landlord and Tenant shall forthwith
adjust between them by cash payment any balance determined to exist with
respect to that portion of the last Operating Year for which Tenant is
responsible for Operating Costs and Taxes, notwithstanding that the Lease may
have terminated before the end of such Operating Year; and this provision
shall survive the expiration or earlier termination of the Lease.
Appropriate credit against Tenant's Proportionate Share of Operating Costs
and Taxes shall be given for any refund obtained by reason of a reduction in
any Taxes by the assessors or the administrative, judicial or other
governmental agency responsible therefor. The original computations, as well
as reimbursement or payments of additional charges, if any, or allowances, if
any, under the provisions of this Article 9.2 shall be based on the original
assessed valuations with adjustments to be made at a later date when the tax
refund, if any, shall be paid to Landlord by the taxing authorities.
Expenditures for legal fees and for other similar or dissimilar expenses
incurred in obtaining the tax refund may be charged against the tax refund
before the adjustments are made for the Tax Period.
9.3 Part Years.
If the Commencement Date or the Termination Date occurs in the middle of an
Operating Year, Tenant shall be liable for only that portion of the Operating
Costs and Taxes in respect of such Operating Year represented by a fraction
the numerator of which is the number of days of the herein term which falls
within the Operating Year and the denominator of which is three hundred
sixty-five (365).
9.4 Disputes, etc.
Any disputes arising under this Article 9 may, at the election of either
party, be submitted to arbitration as hereinafter provided. Any obligations
under this Article 9 which shall not have been paid at the expiration or
sooner termination of the term of this Lease shall survive such expiration
and shall be paid when and as the amount of same shall be determined to be
due.
10. CHANGES OR ALTERATIONS BY LANDLORD
Landlord reserves the right, exercisable by itself or its nominee, at any
time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor
or otherwise affecting Tenant's obligations under this Lease, to make such
changes, alterations, additions, improvements, repairs or replacements in or
to (i) the Building (including the Premises) and the fixtures and equipment
thereof, (ii) the Building entrances, halls, passages, elevators, escalators,
and stairways of the Building, as it may deem necessary or desirable, and
(iii) the arrangement and/or location of entrances or passageways, doors and
doorways, and corridors, elevators, stairs, toilets, or other public parts of
the Building, or (iv) the common areas of the Building, provided, however,
that there be no unreasonable obstruction of the right of access to, or
unreasonable interference with the use and enjoyment of, the Premises by
Tenant. Nothing contained in this Article 10 shall be deemed to relieve
Tenant of any duty, obligation or liability of Tenant with respect to making
any repair, replacement or improvement or complying with any law, order or
requirement of any governmental or other authority. Landlord reserves the
right to adopt and at any time and from time to time to change the name or
address of the Building. Neither this Lease nor any use by Tenant shall give
Tenant any right or easement for the use of any door or any passage or any
concourse connecting with any other building or to any public convenience,
and the use of such doors, passages and concourses and of such conveniences
may be regulated or discontinued at any time and from time to time by
Landlord without notice to Tenant and without affecting the obligation of
Tenant hereunder or incurring any liability to Tenant therefor, provided,
however, that there be no unreasonable obstruction of the right of access to,
or unreasonable interference with the use of the Premises by Tenant.
15
11. FIXTURES, EQUIPMENT AND IMPROVEMENTS-REMOVAL BY TENANT
All fixtures, equipment, improvements and appurtenances attached to or built
into the Premises prior to or during the term, whether by Landlord at its
expense or at the expense of Tenant (either or both) or by Tenant shall be
and remain part of the Premises and shall not be removed by Tenant during or
at the end of the term unless Landlord otherwise elects to require Tenant to
remove such fixtures, equipment improvements and appurtenances, in accordance
with Articles 12 and/or 22 of the Lease. All , plumbing, heating and
sprinkling systems, fixtures and outlets, vaults, paneling, molding,
shelving, radiator enclosures, cork, rubber, linoleum and composition floors,
ventilating, silencing, air conditioning and cooling equipment, shall be
deemed to be included in such fixtures, equipment, improvements and
appurtenances, whether or not attached to or built into the Premises. Where
not built into the Premises, all removable electric fixtures, telephone,
telegraph, communications, radio, carpets, drinking or tap water facilities,
furniture, or trade fixtures or business equipment or Tenant's inventory or
stock in trade shall not be deemed to be included in such fixtures, equipment
improvements and appurtenances and may be, and upon the request of Landlord
will be, removed by Tenant upon the condition that such removal shall not
materially damage the Premises or the Building and that the cost of repairing
any damage to the Premises or the Building arising from installation or such
removal shall be paid by Tenant. Notwithstanding hereinabove to the
contrary, however, cabling for communication equipment shall, at Landlord's
option, be left in place and Tenant shall use reasonable efforts when
disconnecting equipment therefrom, to ensure that such cabling be left in a
re-usable condition..
12. ALTERATIONS AND IMPROVEMENTS BY TENANT
Tenant shall make no alterations, decorations, installations, removals,
additions or improvements in or to the Premises or the Building (hereinafter
collectively referred to as "Alterations") without Landlord's prior written
consent and then only those made by contractors or mechanics approved by
Landlord, Landlord hereby granting its consent to Tenant's Work specified on
Exhibit TW, subject to Landlord's approval of any plans and specifications
not finalized at the time execution hereof by Landlord. No installations or
work shall be undertaken or begun by Tenant until: (i) Landlord has approved
written plans and specifications, which are sufficiently detailed to obtain a
building permit, and a time schedule for such work; (ii) Tenant has made
provision for either written waivers of liens from all contractors, laborers
and suppliers of materials for such installations or work, the filing of lien
bonds on behalf of such contractors, laborers and suppliers, or other
appropriate protective measures approved by Landlord; and (iii) Tenant has
procured appropriate surety payment and performance bonds. No amendments or
additions to such plans and specifications shall be made without the prior
written consent of Landlord. Landlord's approval is solely given for the
benefit of Landlord and neither Tenant nor any third party shall have the
right to rely upon Landlord's approval of Tenant's plans for any purpose
whatsoever. Without limiting the foregoing, Tenant shall be responsible for
all elements of the design of Tenant's plans (including, without limitation,
compliance with law, functionality of design, the structural integrity of the
design, the configuration of the Premises and the placement of Tenant's
furniture, appliances and equipment), and Landlord's approval of Tenant's
plans shall in no event relieve Tenant of the responsibility for such design.
Landlord shall have no liability or responsibility for any claim, injury or
damage alleged to have been caused by the particular materials, whether
building standard or non-building standard, appliances or equipment selected
by Tenant in connection with any work performed by or on behalf of Tenant in
the Premises including, without limitation, furniture, carpeting, copiers,
laser printers, computers and refrigerators. Any such Alterations shall be
done at Tenant's sole expense, except to the extent such work is included in
the Allowance as defined in Article 4.4 hereof, and at such times and in such
manner as Landlord may from time to time designate. If Tenant shall make any
Alterations as provided above then, except for Tenant's Work specified on
Exhibit TW,
16
Landlord may elect to require the Tenant at the expiration or
sooner termination of the term of this Lease to restore the Premises to
substantially the same condition as existed at the Commencement Date. Should
Tenant make any Alterations without the prior approval of Landlord, or use a
contractor not expressly approved by Landlord, Landlord may, at any time
during the term of this Lease, require that Tenant remove all or part of the
Alterations and return the Premises to the condition it was in prior to the
making of the Alterations. Notwithstanding the foregoing, Landlord hereby
acknowledges that Tenant shall not be required to obtain Landlord's consent,
or follow the procedures set forth in this Article, with respect to any non
structural alterations which cost less than $30,000 and which do not require
a governmental permit, such as, without limitation, painting.
13. TENANT'S CONTRACTORS-MECHANICS' AND OTHER LIENS-STANDARD OF TENANT'S
PERFORMANCE-COMPLIANCE WITH LAWS
Whenever Tenant shall make any alterations, decorations, installations,
removals, additions or improvements (which alterations, decorations,
installations, removals, additions or improvements shall be made in
accordance with the terms of this Lease) in or to the Premises, whether such
work be done prior to or after the Commencement Date, Tenant will strictly
observe the following covenants and agreements:
(a) Tenant agrees that it will not, either directly or indirectly, use any
contracts and/or materials if their use will create any difficulty, whether
in the nature of a labor dispute or otherwise, with other contractors and/or
labor engaged by Tenant or Landlord or others in the construction,
maintenance and/or operation of the Building or any part thereof.
(b) In no event shall any material or equipment be incorporated in or added
to the Premises, so as to become a fixture or otherwise a part of the
Building, in connection with any such alteration, decoration, installation,
addition or improvement which is subject to any lien, charge, mortgage or
other encumbrance of any kind whatsoever or is subject to any security
interest or any form of title retention agreement. No installations or work
shall be undertaken or begun by Tenant until (i) Tenant has made provision
for written waiver of liens from all contractors, laborers and suppliers of
materials for such installations or work, and taken other appropriate
protective measures approved by Landlord; and (ii) Tenant has procured
appropriate surety payment and performance bonds which shall name Landlord as
additional obligee and has filed lien bond(s) (in jurisdictions where
available) on behalf of such contractors, laborers and suppliers. Any
mechanic's lien filed against the Premises or the Building for work claimed
to have been done for, or materials claimed to have been furnished to, Tenant
shall be discharged by Tenant within ten (10) days thereafter, at Tenant's
expense by filing the bond required by law or otherwise. If Tenant fails so
to discharge any lien, Landlord may do so at Tenant's expense and Tenant
shall reimburse Landlord for any expense or cost incurred by Landlord in so
doing within fifteen (15) days after rendition of a bill therefor.
(c) All installations or work done by Tenant shall be at its own expense
and shall at all times comply with (i) laws, rules, orders and regulations of
governmental authorities having jurisdiction thereof, (ii) orders, rules and
regulations of any Board of Fire Underwriters, or any other hereafter
constituted exercising similar functions, and governing insurance rating
bureaus; (iii) Rules Regulations of Landlord; and (iv) plans and
specifications prepared by and at the expense of Tenant theretofore submitted
to and approved by Landlord.
(d) Tenant shall procure all necessary permits before undertaking any work
in Premises; do all of such work in a good and workmanlike manner, employing
materials of good quality and complying with all governmental requirements;
and defend, save, hold harmless, exonerate and indemnify Landlord from all
injury, loss or damage to any person or property occasioned by or growing out
of such work. Tenant shall cause contractors employed by Tenant
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to carry Worker's Compensation Insurance in accordance with statutory
requirements, Automobile Liability Insurance and, naming Landlord, Landlord's
agent(s) and Landlord's mortgagee(s) each as an additional insured,
Commercial General Liability Insurance covering such contractors on or about
the Premises in the amounts stated in Article 15 hereof or in such other
reasonable amounts as Landlord shall require and to submit certificates
evidencing such coverage to Landlord prior to the commencement of such work.
(e) Tenant shall give Landlord not less than ten (10) days' advance written
notice prior to the commencement of any work in the Premises by Tenant, and
Landlord shall have the right to post notices of non-responsibility in or on
the Premises or the Building as provided by law.
14. REPAIRS BY TENANT-FLOOR LOAD
14.1 Repairs by Tenant.
Subject to Landlord's obligation to provided cleaning as set forth in
Article 8.3(a)iii, above, Tenant shall keep all and singular the Premises
neat and clean (including periodic rug shampoo and waxing of tiled floors and
cleaning of blinds and drapes) and in such repair, order and condition as the
same are in on the Commencement Date or may be put in during the term hereof,
reasonable use and wearing thereof and damage by fire or by other casualty
excepted. Tenant shall be solely responsible for the proper maintenance of
all equipment and appliances operated by Tenant, including, without
limitation, copiers, laser printers, computers and refrigerators. Tenant
shall make, as and when needed as a result of misuse by, or neglect or
improper conduct of, Tenant or Tenant's servants, employees, agents,
contractors, invitees, or licensees or otherwise, all repairs in and about
the Premises necessary to preserve them in such repair, order and condition,
which repairs shall be in quality and class equal to the original work.
Landlord may elect at the expense of Tenant, unless Tenant remedies the
situation within ten (10) days after receipt of Landlord's notice (except
that no notice shall be required in emergency situations), 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, or licensees.
14.2 Floor Load-Heavy Machinery.
Tenant shall not place a load upon any floor of the Premises exceeding the
floor load per square foot of 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 business machines and mechanical equipment, including
safes, which shall be placed so as to distribute the weight. Business
machines and mechanical equipment shall be placed and maintained by Tenant at
Tenant's expense in settings sufficient in Landlord's judgment to absorb and
prevent vibration, noise and annoyance. Tenant shall not move any safe, heavy
machinery, heavy equipment, freight, bulky matter, or fixtures into or out of
the Building without Landlord's prior written consent. If such safe,
machinery, equipment freight, bulky matter or fixtures requires special
handling, Tenant agrees to employ only persons holding a Master Rigger's
License to do said work, and that all work in connection therewith shall
comply with applicable laws and regulations. Any such moving shaft be at the
sole risk and hazard of Tenant and Tenant will defend, indemnify and save and
hold Landlord harmless against and from any liability, loss, injury, claim or
suit resulting directly or indirectly from such moving. Proper placement of
all such business machines, etc., in the Premises shall be Tenant's
responsibility.
14.3 Electric Current.
In addition to Yearly Rent and Operating Costs, Tenant shall pay during the
term of this Lease the cost of all electric current for the operation of any
machine, appliance or device used for the operation of the Premises,
including without limitation the cost of electric current for lights, plugs,
business machines and HVAC, charged at the average cost
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per KWH paid by Landlord. The electricity for such purposes is check metered
by meters installed by Landlord at its sole cost and the charge hereunder
shall be based on the actual usage shown on such check meter(s). Landlord
shall not be liable in any way to Tenant for any failure or defect in the
supply or character of electrical energy furnished to the Premises by reason
of any requirement, act or omission of the public utility serving the
Building with electricity unless due to the act or omission of Landlord.
Tenant's use of electrical energy in the Premises shall not at any time
exceed the capacity of any of the electrical conductors and equipment in or
otherwise presently serving the Premises. Any additional feeders or risers to
supply Tenant's electrical requirements in addition to those originally
installed and all other equipment proper and necessary in connection with
such feeders or risers, shall be installed by Landlord upon Tenant's request,
at the sole cost and expense of Tenant, provided that such additional feeders
and risers are permissible under applicable laws and insurance regulations
and that the installation of such feeders or risers shall not cause permanent
damage or injury to the Building or cause or create a dangerous condition or
unreasonably interfere with other tenants of the Building. Tenant agrees that
it will not make any material alteration or material addition to the
electrical equipment and/or appliances in the Premises without the prior
written consent of Landlord in each instance first obtained, which consent
will not be unreasonably withheld, and will promptly advise Landlord of any
other alteration or addition to such electrical equipment and/or appliances.
15. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION
15.1. Insurance - Tenant.
(a) General Liability Insurance. Tenant shall procure, and keep in force
and pay for Commercial General Liability Insurance insuring Tenant on an
occurrence basis against all claims and demands for personal injury liability
(including, without limitation, bodily injury, sickness, disease, and death)
or damage to property which may be claimed to have occurred from and after
the time Tenant and/or its contractors enter the Premises in accordance with
Article 4 of this Lease, of not less than Two Million ($2,000,000) Dollars in
the event of personal injury to any number of persons or damage to property,
arising out of any one occurrence, and from time to time thereafter shall be
not less than such higher amounts, if procurable, as may be reasonably
required by Landlord and are customarily carried by responsible similar
tenants in the City or Town wherein the Building is located.
If appropriate to Tenant's operation, Tenant, at its own expense, shall
obtain and keep in force during the Term of this Lease pollution liability
coverage with coverages and limits as Landlord may reasonably require,
provided that Landlord may from time to time require an increase in such
limits.
(b) Umbrella Liability. Tenant, at its own expense, shall obtain and keep
in force during the term of this Lease a policy or policies providing
umbrella liability coverage, with terms following the form of the commercial
general liability insurance described in Article 15.1(a) above. Such
insurance shall be on an occurrence basis, providing limits of not less than
$3,000,000.00 per occurrence, in excess of the primary $2,000,000.00 required
in Article 15.1(a), so that combined liability limits provided by the
commercial general liability policy and this umbrella policy total not less
than $5,000,000.00 per occurrence. Should circumstances arise in which the
insurer is to be notified of circumstances that may lead to any claim against
this policy or policies, Landlord shall be concurrently notified of details
of such claim, and shall be provided subsequent information as to how such
claims affect the liability limits available for future claims.
(c) Property Insurance. Tenant, at its own expense, shall obtain and keep
in force during the Term of this Lease "All Risk" or "Special Form" property
insurance, with coverages acceptable to Landlord, in Landlord's sole
discretion. Said insurance shall be written on a ninety-five percent (95%)
replacement cost, Agreed Amount basis, on Tenant's personal property, all
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tenant improvements installed at Premises by Landlord or Tenant, Tenant's
trade fixtures and other property. If this Lease is terminated as a result of
a casualty in accordance with Article 18, the proceeds of said insurance
attributable to the replacement of all tenant improvements at the Premises to
be paid to the Landlord.
(d) Workers' Compensation/Employer's Liability Insurance. Tenant, at its
own expense, shall obtain and keep in force during the term of this Lease,
worker's compensation insurance as required by applicable law. Employer's
liability coverage with per occurrence limits not less than $500,000.00 shall
be maintained concurrently with the worker's compensation policy, and this
coverage shall be scheduled on the umbrella liability policy required in
Article 15.1(b) above.
15.2. Certificates of Insurance.
Such insurance shall be effected with insurance companies approved by
Landlord, authorized to do business in the state wherein the Building is
situated, under valid and enforceable policies wherein Tenant names Landlord,
and at Landlord's option, the holder of any mortgage or deed of trust
encumbering the Building and any person or entity managing the Building on
behalf of the Landlord, as additional insureds. Said insurance companies
shall maintain during the policy term a rating of not less than "A" or better
under Standard & Poor's claims paying ability rating. All insurance obtained
by Tenant shall be primary to, and not contributory with any similar
insurance carried by the Landlord, whose insurance shall be considered excess
insurance only. Such insurance shall provide that it shall not be canceled or
modified without at least thirty (30) days' prior written notice to each
insured named therein. Tenant's insurance policies shall not include any
deductible or self-insured retentions in excess of $15,000.00 without
specific approval of the Landlord. Within fifteen (15) days prior to the
Commencement Date of this Lease and on or before the time Tenant's
contractors enter the Premises in accordance with Articles 14 of this Lease
and thereafter not less than fifteen (15) days prior to the expiration date
of each expiring policy, original copies of the policies provided for in
Article 15.1 issued by the respective insurers, or certificates of such
policies setting forth in full the provisions thereof and issued by such
insurers together with evidence satisfactory to Landlord of the payment of
all premiums for such policies, shall be delivered by Tenant to Landlord and
certificates as aforesaid of such policies shall upon request of Landlord, be
delivered by Tenant to the holder of any provided for in Article 15.1 issued
by the respective insurers, or certificates of such policies setting forth in
full the provisions thereof and issued by such insurers together with
evidence satisfactory to Landlord of the payment of all premiums for such
policies, shall be delivered by Tenant to Landlord and certificates as
aforesaid of such policies shall upon request of Landlord, be delivered by
Tenant to the holder of any mortgage affecting the Premises.
15.3. General.
Tenant will save Landlord, its agents and employees, harmless and will
exonerate, defend and indemnify Landlord, its agents and employees, from and
against any and all claims, liabilities, penalties, and/or expenses
(including reasonable attorneys' fees) asserted by or on behalf of any
person, firm, corporation or public authority arising from the Tenant's
breach of the Lease or:
(a) On account of or based upon any injury to person, or loss of or damage
to property, sustained or occurring on the Premises on account of or based
upon the act, omission, fault, negligence or misconduct of any person
whomsoever (except to the extent the same is caused by Landlord, its agents,
contractors or employees);
(b) On account of or based upon any injury to person, or loss of or damage
to property, sustained or occurring elsewhere (other than on the Premises) in
or about the Building (and, particular, without limiting the generality of
the foregoing, on or about the elevators, stairways, public corridors,
sidewalks, concourses, arcades, malls, galleries, vehicular tunnels,
approaches, areaways, or other appurtenances and facilities used in
connection with the Building or Premises) arising out of use or occupancy of
the Building
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or Premises by the Tenant, or by any person claiming by, through
or under Tenant, or on account of or based upon the act, omission, fault,
negligence or misconduct of Tenant, its agents, employees or
contractors(except to the extent the same is caused by Landlord, its agents,
contractors or employees); and
(c) On account of or based upon (including monies due on account of) any
work thing whatsoever done (other than by Landlord or its contractors, or
agents or employees of either) on Premises during the term of this Lease and
during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access to the Premises.
(d) Tenant's obligations under this Article 15.3 shall be insured either
under the Commercial General Liability Insurance required under Article 15.1,
above, or by a contractual rider or other coverage; and certificates of
insurance in respect thereof shall be provided by Tenant to Landlord upon
request.
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15.4. Property of Tenant.
In addition to and not in limitation of the foregoing, Tenant covenants and
agrees that, to the maximum extent permitted by law, all merchandise,
furniture, and property of every kind, nature and description related or
arising out of Tenant's leasehold estate hereunder, which may be in or upon
the Premises or Building, in the public corridors, or on the sidewalks,
areaways and approaches adjacent thereto, shall be at the sole risk and
hazard of Tenant, and that if whole or any part thereof shall be damaged,
destroyed, stolen or removed from any cause or reason whatsoever no part of
said damage or loss shall be charged to, or borne by, Landlord.
15.5. Bursting of Pipes, etc.
Landlord shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, air contaminants
or emissions, electricity, electrical or electronic emanations or
disturbance, water, rain or snow or leaks from any part the Building or from
the pipes, appliances, equipment or plumbing works or from the roof, street
or sub-surface or from any other place or caused by dampness, vandalism,
malicious mischief or by any other cause of whatever nature, unless caused by
or due to the negligence of Landlord, its agents, servants or employees, and
then only after (i) notice to Landlord of the condition claimed to constitute
negligence and (ii) the expiration of a reasonable time after such notice has
been received by Landlord without Landlord having taken all reasonable and
practicable means to cure or correct such condition; and pending such cure or
correction by Landlord, Tenant shall take all reasonably prudent temporary
measures and safeguards to prevent any injury, loss or damage to persons or
property. In no event shall Landlord be liable for any loss, the risk of
which is covered by Tenant's insurance or is required to be so covered by
this Lease; nor shall Landlord or its agents be liable for any such damage
caused by other tenants or persons in the Building or caused by operations in
construction of any private, public, or quasi-public work; nor shall Landlord
be liable for any latent defect in the Premises or in the Building.
15.6. Repairs and Alterations-No Diminution of Rental Value.
Except as otherwise provided in Article 18, there shall be no allowance to
Tenant for diminution of rental value and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to Tenant arising
from any repairs, alterations, additions, replacements or improvements made
by Landlord, or any related work, Tenant or others in or to any portion of
the Building or Premises or any property adjoining the Building, or in or to
fixtures, appurtenances, or equipment thereof, or for failure of Landlord or
others to make any repairs, alterations, additions or improvements in or to
any portion of the Building, or of the Premises, or in or to the fixtures,
appurtenances or equipment thereof.
16. ASSIGNMENT, MORTGAGING AND SUBLETTING
16.1. Landlord's Consent Required.
Tenant shall not voluntarily or by operation of law assign, transfer,
hypothecate, mortgage, sublet, or otherwise transfer or encumber all or any
part of Tenant's interest in this Lease or in the Premises (hereinafter
collectively a "Transfer"), without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, provided Landlord is given ten (10) days prior written notice and
satisfactory evidence of the financial qualification and/or relationship to
Tenant set forth below, Landlord's consent shall not be required for a
Transfer to a parent, subsidiary, or commonly controlled affiliate of Tenant
or a Transfer resulting from an acquisition, merger, spin-off or
consolidation provided (i) the resulting "Tenant" entity as of the Transfer
has a demonstrated tangible net worth equal to or greater than that of the
then Tenant and any guarantor calculated as of the date of this Lease, (ii)
the proposed use by the Transferee is permitted within the Use of Premises as
stated in the Lease Summary Sheet, and (iii) all of the other terms and
conditions herein are satisfied (a "Permitted Transfer"). Landlord shall
respond to Tenant's written request for consent hereunder within ten (10)
days after Landlord's receipt of the written request from Tenant. Any
attempted Transfer without such consent shall be void and
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shall constitute a material default and breach of this Lease. Tenant's
written request for Landlord's consent shall include, and Landlord's ten (10)
day response period referred to above shall not commence, unless and until
Landlord has received from Tenant, all of the following information: (a)
financial statements for the proposed assignee or subtenant for the past two
(2) years (or if the proposed transferee has not existed for two (2) years,
then such period of its existence) prepared in accordance with generally
accepted accounting principles, (b) intentionally omitted, (c) a TRW credit
report or similar report on the proposed assignee or subtenant, (d) a
detailed description of the business the assignee or subtenant intends to
operate at the Premises,(e) the proposed effective date of the assignment or
sublease, (f) a copy of the proposed sublease or assignment agreement which
includes all of the terms and conditions of the proposed assignment or
sublease, and (g) a detailed description of any ownership or commercial
relationship between Tenant and the proposed assignee or subtenant. If the
obligations of the proposed assignee or subtenant will be guaranteed by any
person or entity, Tenant's written request shall not be considered complete
until the information described in (a), (b) and (c) of the previous sentence
has been provided with respect to each proposed guarantor. "Transfer" shall
also include the transfer (i) if Tenant is a corporation, and Tenant's stock
is not publicly traded over a recognized securities exchange, of more than
twenty five percent (25%) of the voting stock of such corporation during the
Term of this Lease (whether or not in one or more transfers) or the
dissolution or merger of the corporation, or (ii) if Tenant is a partnership
or other entity, of more than twenty five percent (25%) of the profit and
loss participation in such partnership or entity during the Term of this
Lease (whether or not in one or more transfers) or the dissolution or
liquidation of the partnership.
Notwithstanding the foregoing, provided Landlord is given fifteen (15) days
prior written notice and satisfactory evidence of the financial qualification
set forth below, Tenant may, without Landlord's consent, assign this Lease or
sublease any portion of the Premises to a parent, subsidiary, or provided
further that any such transferee has, immediately after the Transfer, a net
worth equal to or greater than that of Tenant at the date of this Lease (a
"Permitted Transfer"). Also, notwithstanding anything to the contrary
otherwise provided in this Lease, Tenant's parent corporation, Cambex
Corporation, shall also be entitled to so occupy and use the Premises,
without the need of any additional consent of Landlord.
16.2. Terms and Conditions.
The following terms and conditions shall be applicable to any Transfer:
(a) Regardless of Landlord's consent, no Transfer shall release Tenant from
Tenant's obligations hereunder or alter the primary liability of Tenant to
pay the rent and other sums due Landlord hereunder and to perform all other
obligations to be performed by Tenant hereunder or release any guarantor from
its obligations under its guaranty.
(b) Landlord may accept rent from any person other than Tenant pending
approval or disapproval of an assignment or subletting.
(c) Neither a delay in the approval or disapproval of a Transfer, nor the
acceptance of rent, shall constitute a waiver or estoppel of Landlord's right
to exercise its rights and remedies for the breach of any of the terms or
conditions of this Article 16.2.
(d) The consent by Landlord to any Transfer shall not constitute a consent
to any subsequent Transfer by Tenant or to any subsequent or successive
Transfer by an assignee or subtenant. However, Landlord may consent to
subsequent Transfers or any amendments or modifications thereto without
notifying Tenant or anyone else liable on the Lease and without obtaining
their consent, and such action shall not relieve such persons from liability
under this Lease.
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(e) In the event of any default under this Lease, Landlord may proceed
directly against Tenant, any guarantors or anyone else responsible for the
performance of this Lease, including any subtenant or assignee, without first
exhausting Landlord's remedies against any other person or entity responsible
therefor to Landlord, or any security held by Landlord.
(f) Landlord's written consent to any Transfer by Tenant shall not
constitute an acknowledgment that no default then exists under this Lease nor
shall such consent be deemed a waiver of any then existing default.
(g) The discovery of the fact that any financial statement relied upon by
Landlord in giving its consent to an assignment or subletting was materially
false shall, at Landlord's election, render Landlord's consent null and void.
(h) Landlord shall not be liable under this Lease or under any assignment or
sublease to any assignee or subtenant.
(i) No assignment or sublease may be modified or amended without Landlord's
prior written consent.
16.3. Additional Terms and Conditions Applicable to Subletting.
The following terms and conditions shall apply to any subletting by Tenant of
all or any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(a) Tenant hereby absolutely and unconditionally assigns and transfers to
Landlord all of Tenant's interest in all rentals and income arising from any
sublease entered into by Tenant, and Landlord may collect such rent and
income and apply same toward Tenant's obligations under this Lease; provided,
however, that until a default shall occur in the performance of Tenant's
obligations under this Lease, Tenant may receive, collect and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this or any
other assignment of such rents to Landlord nor by reason of the collection of
the rents from a subtenant, be deemed to have assumed or recognized any
sublease or to be liable to the subtenant for any failure of Tenant to
perform and comply with any of Tenant's obligations to such subtenant under
such sublease, including, but not limited to, Tenant's obligation to return
any security deposit. Tenant hereby irrevocably authorizes and directs any
such subtenant, upon receipt of a written notice from Landlord stating that a
default exists in the performance of Tenant's obligations under this Lease,
to pay to Landlord the rents due as they become due under the sublease.
Tenant agrees that such subtenant shall have the right to rely upon any such
statement and request from Landlord, and that such subtenant shall pay such
rents to Landlord without any obligation or right to inquire as to whether
such default exists and notwithstanding any notice from or claim from Tenant
to the contrary.
(b) In the event Tenant shall default in the performance of its obligations
under this Lease, Landlord at its option and without any obligation to do so,
may require any subtenant to attorn to Landlord, in which event Landlord
shall undertake the obligations of Tenant under such sublease from the time
of the exercise of said option to the termination of such sublease; provided,
however, Landlord shall not be liable for any prepaid rents or security
deposit paid by such subtenant to Tenant or for any other prior defaults of
Tenant under such sublease.
16.4. Transfer Premium from Assignment or Subletting.
Landlord shall be entitled to receive from Tenant (as and when received by
Tenant) as an item of additional rent fifty percent
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(50%) of the Transfer Premium. The "Transfer Premium" shall mean all Yearly
Rent, additional rent or other consideration of any type whatsoever payable
by the assignee or subtenant in excess of the Yearly Rent and additional rent
payable by Tenant under this Lease. If less than all of the Premises is
transferred, the Yearly Rent and the additional rent shall be determined on a
per rentable square foot basis. "Transfer Premium" shall also include, but
not be limited to, key money and bonus money paid by the assignee or
subtenant to Tenant in connection with such Transfer, and any payment in
excess of fair market value for services rendered by Tenant to the assignee
or subtenant or for assets, fixtures, inventory, equipment, or furniture
transferred by Tenant to the assignee or subtenant in connection with such
Transfer. In determining any Transfer Premium, however, there shall be
deducted any out-of-pocket costs incurred and paid by Tenant in connection
with the assignment, such as, without limitation, broker's commissions or
other sales costs, legal fees, renovations, or clean-up costs.
16.5. Landlord's Option to Recapture Space.
Notwithstanding anything to the contrary contained in this Article 16, but
excepting Permitted Transfers, if Tenant intends to assign this Lease or
sublease any portion of the Premises, Landlord shall have the option, by
giving written notice to Tenant within thirty (30) days after receipt of any
request by Tenant to assign this Lease or to sublease space in the Premises,
to terminate this Lease with respect to said space (or, at Landlord's
option, as to the entire Premises if the proposed sublease space is fifty-
five percent (50%) or more of the Premises) as of the date thirty (30) days
after Landlord's election. In the event of a recapture by Landlord, if this
Lease shall be canceled with respect to less than the entire Premises, the
Yearly Rent, Tenant's Proportionate Share of Operating Costs and Taxes shall
be adjusted on the basis of the number of rentable square feet retained by
Tenant in proportion to the number of rentable square feet contained in the
original Premises, and this Lease as so amended shall continue thereafter in
full force and effect, and upon request of either party, the parties shall
execute written confirmation of same. If Landlord recaptures only a portion
of the Premises, it shall construct and erect at its sole cost such
partitions as may be required to sever the space to be retained by Tenant
from the space recaptured by Landlord. Landlord may, at its option, lease any
recaptured portion of the Premises to the proposed subtenant or assignee or
to any other person or entity without liability to Tenant. Tenant shall not
be entitled to any portion of the profit, if any, Landlord may realize on
account of such termination and reletting. Tenant acknowledges that the
purpose of this Article 16.5 is to enable Landlord to receive profit in the
form of higher rent or other consideration to be received from an assignee or
sublessee, to give Landlord the ability to meet additional space requirements
of other tenants of the Building and to permit Landlord to control the
leasing of space in the Building. Tenant acknowledges and agrees that the
requirements of this Article 16.5 are commercially reasonable and are
consistent with the intentions of Landlord and Tenant.
16.6. Landlord's Expenses.
In the event Tenant shall assign this Lease or sublet the Premises or request
the consent of Landlord to any Transfer, then Tenant shall pay Landlord's
reasonable costs and expenses incurred in connection therewith, including,
but not limited to, attorneys', architects', accountants', engineers' or
other consultants' fees. Without limiting Tenant's obligation as set forth in
this Section 16.6, Tenant shall deliver to Landlord with each request for
Landlord's approval of a Transfer, a payment of $1,500.00 (which shall be
applied to Tenant's obligations under the first sentence of this Section 16.6
and shall in any event be non-refundable).
16.7. Prohibited Transfers.
Notwithstanding anything in this Lease to the contrary, Tenant agrees that
the following Transfers are prohibited, and that Landlord may, in its sole
and unfettered discretion, refuse any or all requested exceptions to such
Prohibitions:
(a) Any Transfer to a then-current tenant in the Building or other
buildings controlled by Landlord or Landlord's affiliates in Westborough
("Landlord's Westborough Properties"); and
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(b) Any Transfer to a person or entity with which Landlord is then, or has
been within the preceding 120 days, in active negotiations to become a tenant
in any of the Landlord's Westborough Properties.
17. MISCELLANEOUS COVENANTS
Tenant covenants and agrees as follows:
17.1. Rules and Regulations.
Tenant will faithfully observe and comply with the Rules and Regulations, if
any, annexed hereto as Exhibit 4 and such other and further reasonable Rules
and Regulations as Landlord hereafter at any time or from time to time may
make and may communicate in writing to Tenant, which in the reasonable
judgment of Landlord shall be necessary for the reputation, safety, care or
appearance of the Building and Land, or the preservation of good order
therein, or the operation or maintenance of the Building and Land, or the
equipment thereof, or the comfort of tenants or others in the Building,
provided, however, that in the case of any conflict between the provisions of
this Lease and any such regulations, the provisions of this Lease shall
control, and provided further that nothing contained in this Lease shall be
construed to impose upon Landlord any duty or obligation to enforce the Rules
and Regulations or the terms, covenants or conditions in any other lease as
against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by any other tenant, its servants, employees, agents,
contractors, visitors, invitees or licensees.
17.2. Access to Premises-Shoring.
Tenant shall: (i) permit Landlord to erect, use and maintain pipes, ducts and
conduits in and through the Premises, provided the same do not materially
reduce the floor area or materially adversely affect the appearance thereof,
(ii) upon prior oral notice (except that no notice shall be required in
emergency situations), permit Landlord and any mortgagee of the Building or
the Building and land or of the interest of Landlord therein, and any lessor
under any ground or underlying lease, and their representatives, to have free
and unrestricted access to and to enter upon the Premises at all reasonable
hours for the purposes of inspection or of making repairs, replacements or
improvements in or to the Premises or the Building or equipment (including,
without limitation, sanitary, electrical, heating, air conditioning or other
systems) or of complying with all laws, orders and requirements of
governmental or other authority or of exercising any right reserved to
Landlord by this Lease (including the right during the progress of any such
repairs, replacements or improvements or while performing work and furnishing
materials in connection with compliance with any such laws, orders or
requirements to take upon or through, or to keep and store within, the
Premises all necessary materials, tools and equipment); and (iii) permit
Landlord, at reasonable times, upon reasonable notice, to show the Premises
during ordinary business hours to any existing or prospective mortgagee,
ground lessor, space lessee, purchaser, or assignee of any mortgage, of the
Building or of the Building and the land or of the interest of Landlord
therein, and during the period of 12 months next preceding the Termination
Date to any person contemplating the leasing of the Premises or any part
thereof. If, during the last month of the term, Tenant shall have removed all
or substantially all of Tenant's property therefrom, Landlord may immediately
enter and alter, renovate and redecorate the Premises, without elimination or
abatement of rent, or incurring liability to Tenant for any compensation, and
such acts shall have no effect upon this Lease. If Tenant shall not be
personally present to open and permit an entry into the Premises at any time
when for any reason an entry therein shall be necessary or permissible,
Landlord or Landlord's agents may enter the same by a master key, or may
forcibly enter the same, without rendering Landlord or such agents liable
therefor (if during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property), and without in any manner affecting
the obligations and covenants of this Lease. Provided that Landlord shall
incur no additional expense thereby, Landlord shall exercise its rights of
access to the Premises permitted under any of the terms and provisions of
this Lease in such manner as to minimize to the extent practicable
interference with Tenant's use and occupation of the Premises. If an
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excavation shall be made upon land adjacent to the Premises or shall be
authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the Premises for
the purpose of doing such work as said persona shall deem necessary to
preserve the Building from injury or damage and to support the same by proper
foundations without any claims for damages or indemnity against Landlord, or
diminution or abatement of rent.
17.3. Accidents to Sanitary and Other Systems.
Tenant shall give to Landlord prompt notice of any fire or accident in the
Premises or in the Building and of any damage to, or defective condition in,
any part or appurtenance of the Building including, without limitation,
sanitary, electrical ventilation, heating and air conditioning or other
systems located in, or passing through, the Premises. Except as otherwise
provided in Articles 18 and 20, and subject to Tenant's obligations in
Article 14, such damage or defective condition shall be remedied by Landlord
with reasonable diligence, but if such damage or defective condition was
caused by Tenant or by the employees, licensees, contractors or invitees of
Tenant, the cost to remedy the same shall be paid by Tenant. In addition, all
reasonable costs incurred by Landlord in connection with the investigation of
any notice given by Tenant shall be paid by Tenant if the reported damage or
defective condition was caused by Tenant or by the employees, licensees,
contractors, or invitees of tenant. Tenant shall not be entitled to claim any
eviction from the Premises arising from any such damage or defect unless the
same (i) shall have been occasioned by the negligence or intentional
misconduct of the Landlord, its agents, servants or employees and (ii) shall
not, after notice to Landlord of the condition claimed to constitute
negligence or intentional misconduct, have been cured or corrected within a
reasonable time after such notice has been received by Landlord; and in case
of a claim of eviction unless such damage or defective condition shall have
rendered the Premises untenantable for a period in excess of ninety (90) days
and they shall not have been made tenantable by Landlord within a reasonable
time.
17.4. Signs, Blinds and Drapes.
Tenant shall put no signs in any part of the Building or the Premises without
the prior written consent of Landlord, which may be given or withheld in
Landlord's sole discretion. No signs or blinds may be put on or in any window
or elsewhere if visible from the exterior of the Building, nor may the
building standard drapes or blinds be removed by Tenant. Tenant may hang its
own drapes, provided that they shall not in any way interfere with the
Building standard drapery or blinds or be visible from the exterior of the
Building and that such drapes are so hung and installed that when drawn, the
exposed side is acceptable to Landlord, and that the Building standard
drapery or blinds are automatically also drawn and provided Landlord gives
its prior written consent, which may be given or withheld in Landlord's sole
discretion. Any signs or lettering in the public corridors or on the doors
shall conform to Landlord's building standard design. Neither Landlord's name
nor the name of the Building, or the name of any other structure erected
therein shall be used without Landlord's consent in any advertising material
(except on business stationery or as an address in advertising matter), nor
shall any such name, as aforesaid, be used in any undignified, confusing,
detrimental or misleading manner. Landlord shall have the right to place any
sign it deems appropriate on any portion of the Building or Land except the
interior of Tenant's Premises. Notwithstanding anything contained herein to
the contrary, unless Tenant directs otherwise, Landlord agrees to place
Tenant's name (as Tenant designates, which may also include the name Cambex
Corporation) on the interior directory located on the first floor of the
Building, at the entrance to the Premises and on the monument sign for the
Building. The costs of providing all such signage shall be paid by Tenant
fifteen (15) days after receipt of an invoice therefor from Landlord.
Notwithstanding the foregoing, or any other provision contained in this
Lease, Tenant shall be entitled to place signs containing its own name and
that of Cambex Corporation on each external entry to the Premises, which
signs shall be consistent with the building standard design, provided Tenant
shall remove such signage at the expiration of earlier termination of this
Lease and at such time shall repair all damage caused by the installation or
removal thereof.
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17.5. Estoppel Certificate.
Tenant shall at any time upon not less than ten (10) days' prior written
notice by Landlord to Tenant, execute, acknowledge and deliver to Landlord a
statement in writing certifying such information as the Landlord may
reasonably request including, but not limited to, the following: (a) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, stating the nature of such modifications and certifying that
the Lease is in full force and effect as modified), (b) the dates to which
the Yearly Rent and other charges have been paid in advance, if any, and the
amounts so payable, (c) stating whether or not Landlord is in default in
performance of any covenant, agreement, term, provision or condition
contained in this Lease and, if so, specifying each such default and such
other facts as Landlord may reasonably request, and (d) that, if such be the
fact, all tenant improvements to be constructed by Landlord, if any, have
been completed in accordance with Landlord's obligations and Tenant has taken
possession of the Premises; it being intended that any such statement
delivered pursuant hereto may be relied upon by any prospective purchaser of
the Building or encumbrancer of the Building and the land or of any interest
of Landlord therein, any mortgagee or prospective mortgagee thereof, any
lessor or prospective lessor thereof, any lessee or prospective lessee
thereof, or any prospective assignee of any mortgage thereof.
Time is of the essence in respect of any such requested certificate, Tenant
hereby acknowledging the importance of such certificates in mortgage
financing arrangements, prospective sale and the like.
At Landlord's option, the failure of Tenant to deliver such statement within
such time shall constitute a material default of Tenant hereunder, or it
shall be conclusive upon Tenant that (i) this Lease is in full force and
effect, without modification except as may be represented by Landlord, (ii)
there are no uncured defaults in Landlord's performance, (iii) not more than
one month's Yearly Rent has been paid in advance, and (iv) all tenant
improvements to be constructed by Landlord, if any, have been completed in
accordance with Landlord's obligations and Tenant has taken possession of the
Premises.
Tenant hereby agrees to deliver, and to cause any guarantor of Tenant's
obligations to deliver to Landlord (or to any lender or purchaser designated
by Landlord) such previously prepared financial statements of Tenant or any
guarantor and other information as may be reasonably required by Landlord.
All such financial statements shall be received by Landlord and such lender
or purchaser in confidence and shall be used only for the purposes herein set
forth.
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17.6. Hazardous Materials.
For purposes of this Lease, the term "Hazardous Material" means any hazardous
substance, hazardous waste, infectious waste, or toxic substance, material,
or waste which becomes regulated or is defined as such by any local, state or
federal governmental authority. 17.7. Except for small quantities of ordinary
office supplies such as copier toners, liquid paper, glue, ink and common
household cleaning materials, Tenant shall not cause or permit any Hazardous
Material to be brought, kept or used in or about the Premises or the Building
by Tenant, its agents, employees, contractors, or invitees. Tenant hereby
agrees to indemnify Landlord from and against any breach by Tenant of the
obligations stated in the preceding sentence, and agrees to defend and hold
Landlord harmless from and against any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including, without
limitation, diminution in value of the Building, damages for the loss or
restriction or use of rentable space or of any amenity of the Building,
damages arising from any adverse impact on marketing of space in the
Building, sums paid in settlement of claims, attorneys' fees, consultant fees
and expert fees) which arise during or after the Term of this Lease as result
of such breach. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions and any cleanup, remedial removal, or restoration work required
due to the presence of Hazardous Material. Tenant shall promptly notify
Landlord of any release of a Hazardous Material in the Premises or at the
Building of which Tenant becomes aware, whether caused by Tenant or any other
person or entity. The provisions of this Article 17.6 shall survive the
termination of the Lease. In no event shall Tenant have any responsibility
for Hazardous Materials present in the Premises or the Building before its
entry thereon other than to notify Landlord if and when it becomes aware of
such.
17.7. Medical Waste Disposal.
If Tenant produces medical waste, Landlord may, at its option, provide
medical waste disposal services to Tenant. If Landlord elects to provide such
services, Landlord may require Tenant to use said services. Landlord, at its
option, may bill Tenant directly for such services, which amounts shall then
constitute additional rent hereunder, or Landlord may include the cost of
providing such services in Operating Costs. Tenant waives its right to the
fullest extent allowed by law to assert any claim against Landlord in
connection with the negligent provision of medical waste disposal services by
Landlord. In the event Landlord is unable or chooses not to provide such
disposal services to Tenant, Tenant shall arrange for the disposal of its
medical waste and such disposal shall be done in compliance with all
applicable laws. Tenant hereby agrees to indemnify, defend and hold harmless
Landlord against any cost, loss, liability, action, suit or expense
(including attorneys' fees) arising out of or relating to the existence of or
the disposal of medical waste produced by Tenant at the Premises.
17.8. Prohibited Materials and Property.
Tenant shall not bring or permit to be brought or kept in or on the Premises
or elsewhere in the Building by Tenant, its agents, employees, contractors,
or invitees (i) any inflammable, combustible or explosive fluid, material,
chemical or substance, (ii) any materials, appliances or equipment
(including, without limitation, materials, appliances and equipment selected
by Tenant for the construction or other preparation of the Premises and
furniture and carpeting) which pose any danger to life, safety or health or
may cause damage, injury or death; (iii) any unique, unusually valuable, rare
or exotic property, work of art or the like unless the same is fully insured
under all-risk coverage, or (iv) any data processing, electronic, optical or
other equipment or property of a delicate, fragile or vulnerable nature
unless the same are housed, shielded and protected against harm and damage,
whether by cleaning or maintenance personnel, radiations or emanations from
other equipment now or hereafter installed in the Building, or otherwise. Nor
shall Tenant cause or permit any potentially harmful air emissions, odors of
cooking or other processes, or any unusual or other objectionable odors or
emissions to emanate from or permeate the Premises.
17.9. Requirements of Law-Fines and Penalties.
Tenant at its sole expense shall comply with all laws, rules, orders and
regulations, including, without limitations all energy-related requirements,
of Federal, State, County and Municipal Authorities and with any direction of
any public officer or officers, pursuant to law, which shall impose any duty
upon Landlord or
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Tenant with respect to or arising out of Tenant's use or
occupancy of the Premises. Tenant shall reimburse and compensate Landlord for
all expenditures made by, or damages or fines sustained or incurred by,
Landlord due to nonperformance or noncompliance with or breach or failure to
observe any item, covenant, or condition of this Lease upon Tenant's part to
be kept, observed, performed or complied with. If Tenant receives notice of
any violation of law, ordinance, order or regulation applicable to the
Premises, it shall give prompt notice thereof to Landlord.
17.10. Tenant's Acts-Effect on Insurance.
Tenant shall not do or permit to be done any act or thing upon the Premises
or elsewhere in the Building which will invalidate or be in conflict with any
insurance policies covering the Building and the fixtures and property
therein; and shall not do, or permit to be done, any act or thing upon the
Premises which shall subject Landlord to any liability or responsibility for
injury to any person or persons or to property by reason of any business or
operation being carried on upon said Premises or for any other reason. Tenant
at its own expense shall comply with all rules, orders, regulations and
requirements of the Board of Fire Underwriters, or any other similar body
having jurisdiction, and shall not (i) do, or permit anything to be done, in
or upon the Premises, or bring or keep anything therein, except as now or
hereafter permitted by the Fire Department, Board of Underwriters, Fire
Insurance Rating Organization, or other authority having jurisdiction, and
then only in such quantity and manner of storage as will not increase the
rate for any insurance applicable to the Building, or (ii) use the Premises
in a manner which shall increase such insurance rates on the Building, or on
property located therein, over that applicable when Tenant first took
occupancy of the Premises hereunder. If by reason of the failure of Tenant to
comply with the provisions hereof the insurance rate applicable to any policy
of insurance shall at any time thereafter be higher than it otherwise would
be, the Tenant shall reimburse Landlord for that part of any insurance
premiums thereafter paid by Landlord, which shall have been charged because
of such failure by Tenant.
17.11. Miscellaneous.
Tenant shall not suffer or permit the Premises or any fixtures, equipment or
utilities therein or serving the same, to be overloaded, damaged or defaced,
nor permit any hole to be drilled or made in any part thereof. Tenant shall
not suffer or permit any employee, contractor, business invitee or visitor to
violate any covenant, agreement or obligations of the Tenant under this
Lease.
18. DAMAGE OR DESTRUCTION.
18.1. Effect of Damage or Destruction.
If all or part of the Building is materially damaged (as defined in Article
18.2 below) by fire, earthquake, flood, explosion, the elements, riot or any
other casualty, Landlord shall have the right in its sole and complete
discretion to repair or to rebuild the Building or to terminate this Lease.
Landlord shall within ninety (90) days after the occurrence of such damage
notify Tenant in writing of Landlord's intention to repair or to rebuild or
to terminate this Lease. Tenant shall in no event be entitled to compensation
or damages on account of annoyance or inconvenience in making any repairs, or
on account of construction, or on account of Landlord's election to terminate
this Lease. Notwithstanding the foregoing, if Landlord shall elect to rebuild
or repair the Building, but in good faith determines that the Building cannot
be rebuilt or repaired within two hundred seventy (270) days after the date
of the occurrence of the damage, without payment of overtime or other
premiums, and the damage to the Building has rendered the Premises unusable,
Landlord shall notify Tenant thereof in writing at the time of Landlord's
election to rebuild or repair, and Tenant shall thereafter have a period of
fifteen (15) days within which Tenant may elect to terminate this Lease, upon
written notice to Landlord. Tenant's termination right described in the
preceding sentence shall not apply if the damage was caused by Tenant's
negligence or willful misconduct. Failure of Tenant to exercise said election
within said period shall constitute Tenant's agreement to accept delivery of
the Premises under this Lease whenever tendered by Landlord, provided
Landlord thereafter pursues reconstruction or restoration diligently to
completion, subject to delays beyond Landlord's reasonable control. In the
event of any termination hereunder, Tenant's
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Yearly Rent and Tenant's Proportionate Share of Operating Costs and Taxes,
and other charges payable by Tenant shall terminate as of the time of the
damage.
18.2. Definition of Material Damage.
The damage shall be deemed material if, in Landlord's reasonable judgment,
the uninsured cost of repairing the damage will exceed Fifty Thousand Dollars
($50,000.00). If insurance proceeds are available to Landlord in an amount
which is sufficient to pay the entire cost of repairing all of the damage to
the Building, the damage shall be deemed material if the cost of repairing
the damage exceeds One Hundred Thousand Dollars ($100,000.00). Damage to the
Building shall also be deemed material if (a) the Building cannot be repaired
to substantially the same condition it was in prior to the damage due to laws
or regulations in effect at the time the repairs will be made, (b) the holder
of any mortgage or deed of trust encumbering the Building requires that
insurance proceeds available to repair the damage in excess of Fifty Thousand
Dollars ($50,000.00) be applied to the repayment of the indebtedness secured
by the mortgage or the deed of trust, or (c) the damage occurs during the
last twelve (12) months of the term of the Lease.
18.3. Abatement of Rent.
If Landlord elects to repair damage to the Building and all or part of the
Premises will be unusable or inaccessible to Tenant in the ordinary conduct
of its business until the damage is repaired, and the damage was not caused
by the negligence or willful misconduct of Tenant or its employees, agents,
contractors or invitees, Tenant's Yearly Rent and Tenant's Proportionate
Share of Operating Costs and Taxes shall be abated in proportion to the
amount of the Premises which is unusable or inaccessible to Tenant in the
ordinary conduct of its business until the repairs are completed.
18.4. Tenant's Negligence.
If such damage or destruction occurs as a result of the negligence or willful
misconduct of Tenant or Tenant's employees, agents, contractors or invitees,
and the proceeds of insurance which are actually received by Landlord are not
sufficient to repair all of the damage, Tenant shall pay, at Tenant's sole
cost and expense, to Landlord upon demand, the difference between the cost of
repairing the damage and the insurance proceeds received by Landlord.
18.5. Tenant's Property.
Landlord shall not be required to repair any injury or damage to, or to make
any repairs or replacements of, any fixtures, furniture, equipment or tenant
improvements installed in the Premises, and Tenant shall repair and restore
all such property at Tenant's sole expense.
18.6. Waiver.
Landlord and Tenant hereby waive the provisions of any statutes which relate
to the termination of leases when leased property is damaged or destroyed and
agree that such event shall be governed by the terms of this Lease.
19. WAIVER OF SUBROGATION
In any case in which Tenant shall be obligated to pay to Landlord any loss,
cost, damage, liability, or expense suffered or incurred by Landlord,
Landlord shall allow to Tenant as an offset against the amount thereof (i)
the net proceeds of any insurance collected by Landlord for or on account of
such loss, cost, damage, liability or expense, provided that the allowance of
such offset does not invalidate or prejudice the policy or policies under
which such proceeds were payable, and (ii) the amount of any loss, cost,
damage, liability or expense caused by a peril covered by fire insurance with
the broadest form of property insurance generally available on property in
buildings of the type of the Building, whether or not actually procured by
Landlord.
In any case in which Landlord or Landlord's managing agent shall be obligated
to pay to Tenant any loss, cost, damage, liability or expense suffered or
incurred by Tenant, Tenant shall allow to Landlord or Landlord's managing
agent, as the case may be, as an offset against the amount thereof (a) the
net proceeds of any insurance collected by Tenant for or on account of such
loss, cost, damage, liability, or expense, provided that the allowance of
such offset does not
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invalidate the policy or policies under which such
proceeds were payable and (b) the amount of any loss, cost, damage, liability
or expense caused by a peril covered by fire insurance with the broadest form
of property insurance generally available on property in buildings of the
type of the Building, whether or not actually procured by Tenant.
The parties hereto shall each procure an appropriate clause in, or
endorsement on, any property insurance policy covering the Premises and the
Building and personal property, fixtures and equipment located thereon and
therein, pursuant to which the insurance companies waive subrogation or
consent to a waiver of right of recovery in favor of either party, its
respective agents or employees. Having obtained such clauses and/or
endorsements, each party hereby agrees that it will not make any claim
against or seek to recover from the other or its agents or employees for any
loss or damage to its property or the property of others resulting from fire
or other perils covered by such property insurance.
20. CONDEMNATION - EMINENT DOMAIN
If any portion of the Premises or the Building or the Land are taken under
the power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs; provided that if so much
of the Premises or Building or Land are taken by such condemnation as would
substantially and adversely affect the operation and profitability of
Tenant's business conducted from the Premises, and said taking lasts for
ninety (90) days or more (subject to Landlord's right to replace same
including any Common Areas), Tenant shall have the option, to be exercised
only in writing within thirty (30) days after Landlord shall have given
Tenant written notice of such taking (or in the absence of such notice,
within thirty (30) days after the condemning authority shall have taken
possession), to terminate this Lease as of the date the condemning authority
takes such possession. If a taking lasts for less than ninety (90) days,
Tenant's rent shall be abated during said period but Tenant shall not have
the right to terminate this Lease. If Tenant does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and
effect as to the portion of the Premises remaining, except that the rent and
Tenant's Proportionate Share of Operating Costs and Taxes shall be reduced in
the proportion that the usable floor area of the Premises taken bears to the
total usable floor area of the Premises. Common Areas taken shall be excluded
from the Common Areas usable by Tenant and no reduction of rent shall occur
with respect thereto or by reason thereof. Landlord shall have the option in
its sole discretion to terminate this Lease as of the taking of possession by
the condemning authority, by giving written notice to Tenant of such election
within thirty (30) days after receipt of notice of a taking by condemnation
of any part of the Premises or the Building. Any award for the taking of all
or any part of the Premises or the Building or the Land under the power of
eminent domain or any payment made under threat of the exercise of such power
shall be the property of Landlord, whether such award shall be made as
compensation for diminution in value of the leasehold or for the taking of
the fee, as severance damages, or as damages for tenant improvements;
provided, however, that Tenant shall be entitled to any separate award for
loss of or damage to Tenant's trade fixtures and removable personal property
and any award available for the relocation of Tenant's business so long as
same does not reduce the award otherwise payable to Landlord. In the event
that this Lease is not terminated by reason of such condemnation, and subject
to the requirements of any lender that has made a loan to Landlord
encumbering the Building, Landlord shall to the extent of severance damages
received by Landlord in connection with such condemnation, repair any damage
to the Building caused by such condemnation except to the extent that Tenant
has been reimbursed therefor by the condemning authority. . Except as set
forth in this Article 20, Landlord shall have no liability to Tenant for
interruption of Tenant's business upon the Premises, diminution of Tenant's
ability to use the Premises, or other injury or damage sustained by Tenant as
a result of such condemnation.
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21. DEFAULT; REMEDIES
21.1. Default by Tenant.
Landlord and Tenant hereby agree that the occurrence of any one or more of
the following events is a material default by Tenant under this Lease and
that said default shall give Landlord the rights described in Article 21:
(a) Tenant shall neglect or fail to perform or observe any of the Tenant's
covenants or agreements herein, including (without limitation) the covenants
or agreements with regard to the payment when due of rent, additional
charges, reimbursement for increase in Landlord's costs, or any other charge
payable by Tenant to Landlord (all of which shall be considered as part of
Yearly Rent for the purposes of invoking Landlord's statutory or other rights
and remedies in respect of payment defaults) and Tenant shall fail to remedy
such neglect or failure within thirty (30) days (except for failure to make
payment of rent or other charges, for which the period shall be five (5)
days) after written notice by Landlord to Tenant, specifying wherein Tenant
has failed to perform such obligation; provided, however, that if the nature
of Tenant's obligation is such that more than thirty (30) days are required
for its cure, then Tenant shall not be in default if Tenant commences
performance within such thirty (30) day period and thereafter diligently
pursues the same to completion.
..
(b) The abandonment of the Premises by Tenant in which event Landlord shall
not be obligated to give any notice of default to Tenant.
(c)(i) intentionally omitted (ii) Tenant or any guarantor becoming a
"debtor" as defined in 11 U.S.C. 101 or any successor statute thereto
(unless, in the case of a petition filed against Tenant or guarantor, the
same is dismissed within thirty (30) days); (iii) the institution of
proceedings seeking the appointment of a trustee, sequesterer, receiver or
similar officer to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where either
such appointment shall not be vacated within thirty (30) days or such
possession is not restored to Tenant within thirty (30) days or the
institution of a foreclosure proceeding against Tenant's real or personal
property; (iv) an attachment on mesnes process, on execution or otherwise, or
other legal process shall issue against Tenant or its property involving more
than Ten Thousand Dollars ($10,000) and a sale of any of its assets shall be
held thereunder; (v) any judgment, final beyond appeal or any lien,
attachment or the like involving more than Ten Thousand Dollars ($10,000)
shall be entered, recorded or filed against Tenant in any court, registry,
etc. and Tenant shall fail to pay such judgment within thirty (30) days after
the judgment shall have become final beyond appeal or to discharge or secure
by surety bond such lien, attachment, etc. within thirty (30) days of such
entry, recording or filing, as the case may be, or (vi) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
(d) The discovery by Landlord that any financial statement, representation
or warranty given to Landlord by Tenant, or by any guarantor of Tenant's
obligations hereunder, is or was materially false.
(e) If Tenant is a corporation or a partnership, the dissolution or
liquidation of Tenant or if any event shall occur or any contingency shall
arise whereby this Lease, or the term and estate thereby created, would (by
operation of law or otherwise) devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted under Article 21
hereof.
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Landlord or Landlord's authorized agent shall have the right (without
obligation except as may be required by law) to serve any notice of default,
notice to pay rent or quit or similar notice. Wherever "Tenant" is used in
this Article 21.1, it shall be deemed to include any one of (i) any
corporation of which Tenant is a controlled subsidiary and (ii) any guarantor
of any of Tenant's obligations under this Lease.
21.2. Damages - Assignment for Benefit of Creditors.
For the more effectual securing to Landlord of the rent and other charges and
payments reserved hereunder, it is agreed as a further condition of this
Lease that if at any time Tenant or any guarantor shall make any transfer
similar to or in the nature of an assignment of its property for the benefit
of its creditors, the term and estate hereby created shall terminate ipso
facto, without entry or other action by Landlord; and notwithstanding any
other provisions of this Lease, Landlord shall forthwith upon such
termination, without prejudice to any remedies which might otherwise be
available for arrears of rent or other charges due hereunder or preceding
breach of this Lease, be ipso facto entitled to recover as liquidated damages
the sum of (a) the amount described in clause (x) of Article 21.3 and (b) (in
view of the uncertainty of prompt re-letting and the expense entailed in re-
letting the Premises) an amount equal to the rent and other charges payable
for and in respect of the twelve (12) month period next preceding the date of
termination, as aforesaid.
21.3. Remedies.
(a) In the event of any default or breach of this Lease by Tenant, Landlord
may, at any time thereafter, with or without notice or demand, and without
limiting Landlord in the exercise of any right or remedy which Landlord may
have by reason of such default:
(i) terminate Tenant's right to possession of the Premises by any lawful
means, in which case this Lease and the Term hereof shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord. If
Landlord terminates this Lease, Landlord may recover from Tenant (A) the
worth at the time of award of the unpaid rent which had been earned at the
time of termination; (B) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; (C) the worth at the time of award of the
amount by which the unpaid rent for the balance of the Term after the time of
award exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided; and (D) any other amount necessary to compensate Landlord
for all detriment proximately caused by Tenant's failure to perform its
obligations under the Lease or which in the ordinary course of things would
be likely to result therefrom, including, but not limited to, the cost of
recovering possession of the Premises, expenses of releasing, including
necessary renovation and alteration of the Premises, reasonable attorneys'
fees, any real estate commissions actually paid by Landlord and the
unamortized value of any free rent, reduced rent, tenant improvement
allowance or other economic concessions provided by Landlord. The "worth at
time of award" of the amounts referred to in Article 21.3(a)(i)(A) and (B)
shall be computed by allowing interest at the rate of eighteen percent (18%)
per annum or the maximum interest rate permitted by applicable law. The worth
at the time of award of the amount referred to in Article 21.3(a)(i)(C) shall
be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of Baltimore at the time of award plus one percent (1%). For
purposes of this Article 21.2(a)(i), "rent" shall be deemed to be all
monetary obligations required to be paid by Tenant pursuant to the terms of
this Lease.
(ii) maintain Tenant's right of possession in which event Landlord shall
have the remedy which permits Landlord to continue this Lease in effect after
Tenant's breach and abandonment and recover rent as it becomes due.
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(iii) collect sublease rents (or appoint a receiver to collect such rent)
and otherwise perform Tenant's obligations at the Premises, it being agreed,
however, that the appointment of a receiver for Tenant shall not constitute
an election by Landlord to terminate this Lease.
(iv) pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the state in which the Premises are
located.
(b) No remedy or election hereunder shall be deemed exclusive, but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
(c) Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not
been terminated hereunder.
(d) If Tenant abandons or vacates the Premises, Landlord may re-enter the
Premises and such re-entry shall not be deemed to constitute Landlord's
election to accept a surrender of the Premises or to otherwise relieve Tenant
from liability for its breach of this Lease. No surrender of the Premises
shall be effective against Landlord unless Landlord has entered into a
written agreement with Tenant in which Landlord expressly agrees to (i)
accept a surrender of the Premises and (ii) relieve Tenant of liability under
the Lease. The delivery of keys to Landlord or any employee or agent of
Landlord shall not constitute the termination of the Lease or the surrender
of the Premises.
21.4. Default by Landlord.
Landlord shall not be in default under this Lease unless Landlord fails to
perform obligations required of Landlord within thirty (30) days after
written notice by Tenant to Landlord and to the holder of any mortgage or
deed of trust encumbering the Building whose name and address shall have
theretofore been furnished to Tenant in writing, specifying wherein Landlord
has failed to perform such obligation; provided, however, that if the nature
of Landlord's obligation is such that more than thirty (30) days are required
for its cure, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently
pursues the same to completion. This Lease and the obligations of Tenant
hereunder shall not be affected or impaired because Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike or other labor problems,
acts of God, riot, insurrection, governmental actions or requirements, or any
other cause beyond the reasonable control of Landlord, and the time for
Landlord's performance shall be extended for the period of any such delay.
Similarly, this Lease and the obligations of Landlord hereunder shall not be
affected or impaired because Tenant is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such inability or delay
is caused by reason of strike or other labor problems, acts of God, riot,
insurrection, governmental actions or requirements, or any other cause beyond
the reasonable control of Tenant, and the time for Tenant's performance shall
be extended for the period of any such delay, provided, however, this
sentence shall not be applicable to any obligation of Tenant to pay money to
Landlord or any other person, which monetary obligations shall not be subject
to extension for any reason.
21.5. Late Charges.
Tenant hereby acknowledges that late payment by Tenant to Landlord of Yearly
Rent, Tenant's Proportionate Share of Operating Costs and Taxes, after hours
additional heat, cleaning or air conditioning service charges, or other sums
due hereunder will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges
and late charges which may be imposed on Landlord by the terms of any
mortgage or trust deed encumbering the Building. Accordingly, if any
installment of Yearly Rent, Tenant's Proportionate Share of Operating Costs
and Taxes, after hours additional heat, cleaning or air conditioning service
charges or any other sum due from Tenant shall not be
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received by Landlord when such amount shall be due, then, without any
requirement for notice to Tenant, Tenant shall pay to Landlord a late charge
for each thirty (30) day period until paid in full equal to the greater of
(i) four percent (4%) of such overdue amount or (ii) $300.00. The parties
hereby agree that such late charge represents a fair and reasonable estimate
of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a
waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder including the assessment of interest under Article 21.6.
21.6. Interest on Past-due Obligations.
Except as expressly herein provided, any amount due to Landlord that is not
paid when due shall bear interest at the rate of eighteen percent (18%) per
annum or the maximum interest rate permitted by applicable law. Payment of
such interest shall not excuse or cure any default by Tenant under this
Lease; provided, however, that interest shall not be payable on late charges
incurred by Tenant nor on any amounts upon which late charges are paid by
Tenant.
21.7. Payment of Rent after Default.
If Tenant fails three or more times in any twelve (12) month period to pay
Yearly Rent, Tenant's Proportionate Share of Operating Costs and Taxes or any
other monetary obligation due hereunder within ten (10) days of the date it
is due, after Tenant's third such failure, at Landlord's option, all monetary
obligations of Tenant hereunder shall thereafter be paid by cashiers check.
If Landlord has required Tenant to make said payments by cashiers check,
Tenant's failure to make a payment by cashiers check shall be a material
default hereunder.
21.8. Fees and Expenses.
(a) If Tenant shall default in the performance of any covenant on Tenant's
part to be performed as in this Lease contained, Landlord shall give notice
to Tenant thereof and unless Tenant remedies the default within (ten) days
after receipt of Landlord's notice (provided that in the event of an
emergency requiring immediate action, no such notice shall be required)
Landlord may immediately, or at any time thereafter, without further notice,
perform the same for the account of Tenant. If Landlord at any time (after
the foregoing notice and failure to cure) is compelled to pay or elects to
pay any sum of money, or do any act which will require the payment of any sum
of money, by reason of the failure of Tenant to comply with any provision
hereof, or if Landlord is compelled to or does incur any expense, including
reasonable attorneys' fees, in instituting, prosecuting, and/or defending any
action or proceeding instituted by reason of any default of Tenant hereunder,
Tenant shall on demand pay to Landlord by way of reimbursement the sum or
sums so paid by Landlord with all costs and damages, plus interest computed
as provided in Article 6 hereof.
(b) Tenant shall pay Landlord's cost and expense, including reasonable
attorneys' fees, incurred (i) in enforcing any obligation of Tenant under
this Lease or (ii) as a result of Landlord, without its fault being made
party to any litigation pending by or against Tenant or any persons claiming
through or under Tenant.
21.9. Waiver of Redemption.
Tenant does hereby waive and surrender all rights and privileges which it
might have under or by reason of any present or future law to redeem the
Premises or to have a continuance of this Lease for the term hereby demised
after being dispossessed or ejected therefrom by process of law or under the
terms of this Lease or after the termination of this Lease as herein
provided.
21.10. Landlord's Remedies Not Exclusive.
The specified remedies to which Landlord may resort hereunder are cumulative
and are not intended to be exclusive of any remedies or means of redress to
which Landlord may at any time be lawfully entitled, and Landlord may invoke
any remedy (including the remedy of specific performance) allowed at law or
in equity as if specific remedies were not herein. Notwithstanding anything
to the contrary in this Article 21
36
contained, except to the extent prohibited by applicable law, any statutory
notice and grace periods provided to Tenant by law are hereby expressly
waived by Tenant.
22. END OF TERM - ABANDONED PROPERTY
Upon the expiration or other termination of the term of this Lease, Tenant
shall peaceably quit and surrender to Landlord the Premises and all
alterations and additions thereto, broom clean, in good order, repair and
condition (except as provided herein and in Articles 8.7, 18 and 20),
excepting only ordinary wear and use and damage by fire or other casualty for
which, under other provisions of this Lease, Tenant has no responsibility of
repair or restoration. Tenant shall remove all of its property to the extent
specified by Landlord, including, without limitation, all cabling and wiring
installed by or for the benefit of Tenant, all alterations and additions made
by Tenant and all partitions wholly within the Premises, but excluding
Tenant's Work as specified on Exhibit TW, and shall repair any damages to the
Premises or the Building caused by their installation or by such removal.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease.
Tenant will remove any personal property from the Building and the Premises
upon or prior to the expiration or termination of this Lease and any such
property which shall remain in the Building or the Premises thereafter shall
be conclusively deemed to have been abandoned, and may either be retained by
Landlord as its property or sold or otherwise disposed of in such manner as
Landlord may see fit. If any part thereof shall be sold, then Landlord may
receive and retain the proceeds of such sale and apply the same at its option
against the expenses of the sale, the cost of moving and storage, any arrears
of Yearly Rent, additional or other charges payable hereunder by Tenant to
Landlord and any damages to which Landlord may be entitled under Article 21
hereof or pursuant to law.
If Tenant or anyone claiming under Tenant shall remain in possession of the
Premises or any part thereof after the expiration or prior termination of the
term of this Lease then, at Landlord's option, the person remaining in
possession shall be deemed a tenant-at-sufferance or a trespasser. In the
event that Tenant holds over with Landlord's consent, such occupancy shall be
deemed a tenancy from month to month. Whereas the parties hereby acknowledge
that Landlord may need the Premises after the expiration or prior termination
of the term of the Lease for other tenants and that the damages which
Landlord may suffer as the result of Tenant's holding over cannot be
determined as of the Execution Date hereof. Tenant hereby agrees to
indemnify, defend and hold harmless Landlord from any cost, loss, claim or
liability (including attorneys' fees) Landlord may incur as a result of
Tenant's failure to surrender possession of the Premises to Landlord. In the
event that Tenant holds over with or without Landlord's consent, such
occupancy shall be upon all the terms and conditions of this Lease pertaining
to the obligations of Tenant, including that Tenant shall pay to Landlord,
for each month or portion thereof that Tenant shall retain possession of the
Premises after the expiration or termination of the Lease, whether by lapse
of time or otherwise, in addition to all rental and other charges due and
accrued under the Lease prior to the date of termination, use and occupancy
charges equal to two hundred percent (200%) of the greater of (a) the then
fair market rent for the Premises as conclusively determined by Landlord or
(b) the sum of the Yearly Rent and additional rent at the rate payable
monthly during the twelve (12) months immediately preceding the expiration or
termination of the Lease and all Extension Options, if any, shall be deemed
terminated and of no further effect. In addition, Tenant shall hold Landlord
harmless from all damages which Landlord may suffer as the result of Tenant's
holdover after the termination of the term of the Lease.
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23. SUBORDINATION
(a) Subject to any mortgagee's or ground lessor's election, as hereinafter
provided for, this Lease is subject and subordinate in all respects to all
matters of record (including, without limitation, deeds and land disposition
agreements), ground leases and/or underlying leases, and all mortgages, deeds
of trust, or any other hypothecation or security, any of which may now or
hereafter be placed on or affect such leases and/or the real property of
which the Premises are a part, or any part of such real property, and/or
Landlord's interest or estate therein, and to each advance made on the
security thereof and/or hereafter to be made under any such mortgages, and to
all renewals, modifications, consolidations, replacements and extensions
thereof and all substitutions therefor. This Article 23 shall be self-
operative and no further instrument or subordination shall be required. In
confirmation of such subordination, Tenant shall execute, acknowledge and
deliver promptly any certificate or instrument that Landlord and/or any
mortgagee and/or lessor under any ground or underlying lease and/or their
respective successors in interest may reasonably request, subject to
Landlord's, mortgagee's and ground lessor's right to do so for, on behalf of
and in the name of Tenant under certain circumstances, as hereinafter
provided. Tenant agrees to execute and acknowledge any documents required to
effectuate an attornment or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Tenant acknowledges that, where applicable, any consent or approval
hereafter given by Landlord may be subject to the further consent or approval
of such mortgagee and/or ground lessor, and the failure or refusal of such
mortgagee and/or ground lessor to give such consent or approval shall,
notwithstanding anything to the contrary in this Lease contained, constitute
reasonable justification for Landlord's withholding its consent or approval.
Landlord agrees to use reasonable efforts to obtain a non-disturbance
agreement from Landlord's current mortgagee and any subsequent mortgagees for
the benefit of Tenant. If Landlord's mortgagee shall charge any fee or other
cost for the granting or negotiation (if any) of such agreement, such fee or
other cost shall be paid by Tenant as additional rent hereunder.
(b) Any such mortgagee or ground lessor may from time to time subordinate
or revoke such subordination of the mortgage or ground lease held by it to
this Lease. Such subordination or revocation, as the case may be, shall be
effected by written notice to Tenant and by recording an instrument of
subordination or of such revocation, as the case may be, with the appropriate
registry of deeds or land records and to be effective without any further act
or deed on the part of Tenant. In confirmation of such subordination or of
such revocation, as the case may be, Tenant shall execute, acknowledge and
promptly deliver any certificate or instrument that Landlord, any mortgagee
or ground lessor may request.
(c) Without limitation of any of the provisions of this Lease, if any
ground lessor or mortgagee shall succeed to the interest of Landlord by
reason of the exercise of its rights under such ground lease or mortgage (or
the acceptance of voluntary conveyance in lieu thereof) or any third party
including without limitation any foreclosure purchaser or mortgage receiver)
shall succeed to such interest by reason of any such exercise or the
expiration or sooner termination of such ground lease, however caused, then
such successor may, upon notice and request to Tenant (which, in the case of
a ground lease, shall be within thirty (30) days after such expiration or
sooner termination), succeed to the interest of Landlord under this Lease,
provided, however, that such successor shall not: (i) be liable for any
previous act or omission of Landlord under this Lease; (ii) be subject to any
offset, defense, or counterclaim which shall theretofore have accrued to
Tenant against Landlord; (iii) have any obligation with respect to any
security deposit unless it shall have been paid over or physically delivered
to such successor, or (iv) be bound by any Previous modification of this
Lease or by any previous payment of Yearly Rent for a period greater than one
(1) month, made without such ground lessor's or mortgagee's consent where
such consent is required by applicable ground lease or mortgage documents. In
the event of such succession to the interest of the Landlord - and
notwithstanding that any such mortgage or ground lease may antedate this
Lease - the Tenant shall attorn to such successor and shall ipso
38
facto be and become bound directly to such successor in interest to Landlord
to perform and observe all the Tenant's obligations under this Lease without
the necessity of the execution of any further instrument. Nevertheless,
Tenant agrees at any time and from time to time during the term hereof to
execute a suitable instrument in confirmation of Tenant's agreement to
attorn, as aforesaid.
(d) The term "mortgage(s)" as used in this Lease shall include any mortgage
or deed of trust. The term "mortgagee(s)" as used in this Lease shall include
any mortgagee or any trustee and beneficiary under a deed of trust or
receiver appointed under a mortgage or deed of trust. The term "mortgagor(s)"
as used in this Lease shall include any mortgagor or any grantor under a deed
of trust.
(e) Tenant's failure to execute any documents required to effectuate an
attornment, a subordination or to make this lease or any option granted
herein prior to the lien of any mortgage, deed of trust or ground lease, as
the case may be, shall constitute a material default by Tenant hereunder ,
but only if Tenant fails to execute, acknowledge and deliver any such
certificate or instrument within ten (10) days after Landlord or such
mortgagee or such ground lessor has made written request therefor.
(f) Notwithstanding anything to the contrary contained in this Article 23,
if all or part of Landlord's estate and interest in the real property of
which the Premises are a part shall be a leasehold estate held under a ground
lease, then: (i) the foregoing subordination provisions of this Article 23
shall not apply to any mortgages of the fee interest in said real property to
which Landlord's leasehold estate is not otherwise subject and subordinate;
and (ii) the provisions of this Article 23 shall in no way waive, abrogate or
otherwise affect any agreement by any ground lessor (x) not to terminate this
Lease incident to any termination of such ground lease prior to its term
expiring or (y) not to name or join Tenant in any action or proceeding by
such ground lessor to recover possession of such real property or for any
other relief.
(g) In the event of any failure by Landlord to perform, fulfill or observe
any agreement by Landlord herein, in no event will the Landlord be deemed to
be in default under this Lease permitting Tenant to exercise any or all
rights or remedies under this Lease until the Tenant shall have given written
notice of such failure to any mortgagee (ground lessor and/or trustee) of
which Tenant shall have been advised and until a reasonable period of time
shall have elapsed following the giving of such notice, during which such
mortgagee (ground lessor and/or trustee) shall have the right, but shall not
be obligated, to remedy such failure.
24. QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant keeps and performs each
and every covenant, agreement term, provision and condition herein contained
on the part and on behalf of Tenant to be kept and performed, Tenant shall
quietly enjoy the Premises from and against the claims of all persons
claiming legally by, through or under Landlord subject, nevertheless, to the
covenants, agreements, terms, provisions and conditions of this Lease and to
the mortgages, ground leases and/or underlying leases to which this Lease is
subject and subordinate, as hereinabove set forth.
Without incurring any liability to Tenant, Landlord may permit access to the
Premises and open the same, whether or not Tenant shall be present, upon any
demand of any receiver, trustee, assignee for the benefit of creditors,
sheriff, marshal or court officer entitled to, or reasonably purporting to be
entitled to, such access for the purpose of taking possession of, or
removing, Tenant's property or for any other lawful purpose (but this
provision and any action by Landlord hereunder shall not be deemed a
recognition by Landlord that the person or official making such demand has
any right or interest in or to this Lease, or in or to the Premises), or upon
demand of any representative of the fire, police, building, sanitation or
other department of the city, state or federal governments.
39
25. LANDLORD RESERVATIONS
Without limiting any other rights of Landlord set forth in this Lease,
Landlord shall have the right: (a) to change the name and address of the
Building upon not less than ninety (90) days prior written notice; (b) to
provide and install Building standard graphics on or near the door of the
Premises and such portions of the Common Areas as Landlord shall determine,
in Landlord's sole discretion; and (c) to permit any tenant the exclusive
right to conduct any business as long as such exclusive right does not
conflict with any rights expressly given herein. Tenant shall not suffer or
permit anyone, except in an emergency, to go upon the roof of the Building.
Landlord reserves the right to use the exterior walls of the Premises, and
the area beneath, adjacent to and above the Premises together with the right
to install, use, maintain and replace equipment, machinery, pipes, conduits
and wiring through the Premises, which serve other parts of the Building
provided that Landlord's use does not unreasonably interfere with Tenant's
use of the Premises.
26. CHANGES TO BUILDING.
Landlord shall have the right, in Landlord's sole discretion, from time to
time, to make changes to the size, shape, location, number and extent of the
improvements comprising the Building (hereinafter referred to as "Changes")
including, but not limited to, the Building interior and exterior, the Common
Areas, elevators, escalators, restrooms, electrical systems, communication
systems, fire protection and detection systems, plumbing systems, security
systems, driveways, entrances, and landscaped areas, provided that it shall
not make any Changes which will permanently, materially and adversely
interfere with Tenant's use of the Premises. In connection with the Changes,
Landlord may, among other things, erect scaffolding or other necessary
structures at the Building, limit or eliminate access to portions of the
Building, including portions of the Common Areas, or perform work in the
Building, which work may create noise, dust or leave debris in the Building.
Tenant hereby agrees that such Changes and Landlord's actions in connection
with such Changes shall in no way constitute a constructive eviction of
Tenant or entitle Tenant to any abatement of rent. Landlord shall have no
responsibility or for any reason be liable to Tenant for any direct or
indirect injury to or interference with Tenant's business arising from the
Changes, nor shall Tenant be entitled to any compensation or damages from
Landlord for any inconvenience or annoyance occasioned by such Changes or
Landlord's actions in connection with such Changes.
27. ENTIRE AGREEMENT - WAIVER - SURRENDER
27.1. Entire Agreement.
This Lease and the Exhibits made a part hereof contain the entire and only
agreement between the parties and any and all statements and representations,
written and oral, including previous correspondence and agreements between
the parties hereto, are merged herein. Tenant acknowledges that all
representations and statements upon which it relied in executing this Lease
are contained herein and that the Tenant in no way relied upon any other
statements or representations, written or oral. Any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of this Lease in whole or in part unless such executory agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
27.2. No Waiver by Landlord.
The failure of Landlord to seek redress for violation, or to insist upon the
strict performance, of any covenant or condition of this Lease, or any of the
Rules and Regulations promulgated hereunder, shall not 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 a waiver of such breach. The failure of Landlord to enforce any of
40
such Rules and Regulations against Tenant and/or any other tenant in the
Building shall not be deemed a waiver of any such Rules and Regulations. No
provisions of this Lease shall be deemed to have been waived by Landlord
unless such waiver be in writing signed by Landlord. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the stipulated
rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent 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 rent or pursue any other
remedy in this Lease provided. Tenant hereby waives for Tenant and all those
claiming under Tenant all rights now or hereafter existing to redeem by order
or judgment of any court or by legal process or writ, Tenant's right of
occupancy of the Premises after any termination of this Lease.
27.3. No Surrender.
No act or thing done by Landlord during the term hereby demised shall be
deemed an acceptance of a surrender of the Premises, and no agreement to
accept such surrender shall be valid, unless in writing signed by Landlord.
No employee of Landlord or of Landlord's agents shall have any power to
accept the keys of the Premises prior to the termination of this Lease. The
delivery of keys to any employee of Landlord or of Landlord's agents shall
not operate as a termination of the Lease or a surrender of the Premises. In
the event that Tenant at any time desires to have Landlord underlet the
Premises for Tenant's account, Landlord or Landlord's agents are authorized
to receive the keys for such purposes without releasing Tenant from any of
the obligations under this Lease, and Tenant hereby relieves Landlord of any
liability for loss of or damage to any of Tenant's effects in connection with
such underletting.
28. INABILITY TO PERFORM - EXCULPATORY CLAUSE
Except as otherwise specifically provided herein to the contrary, this Lease
and the obligations of Tenant to pay rent hereunder and perform all the other
covenants, agreements, terms, provisions and conditions hereunder on the part
of Tenant to be performed shall in no way be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease
or is unable to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make or is delayed in making any
repairs, replacements, additions, alterations, improvements or decorations or
is unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of strikes or labor
troubles or any other similar or dissimilar cause whatsoever beyond
Landlord's reasonable control, including but not limited to, governmental
preemption in connection with a national emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any
governmental agency or by reason of the conditions of supply and demand which
have been or are affected by war, hostilities or other similar or dissimilar
emergency. In each such instance of inability of Landlord to perform,
Landlord shall exercise reasonable diligence to eliminate the cause of such
inability to perform.
Tenant acknowledges that Landlord shall have the right to transfer all or any
portion of its interest in the Building and to assign this Lease to the
transferee. Tenant agrees that in the event of such a transfer Landlord shall
automatically be released from all liability under this Lease; and Tenant
hereby agrees to look solely to Landlord's transferee for the performance of
Landlord's obligations hereunder after the date of the transfer. Upon such a
transfer, Landlord shall, at its option, return Tenant's security deposit to
Tenant or transfer Tenant's security deposit to Landlord's transferee and, in
either event, Landlord shall have no further liability to Tenant for the
return of its security deposit.
Tenant hereby agrees that Landlord shall not be liable for injury to Tenant's
business or any loss of income therefrom or for loss of or damage to the
goods, wares, merchandise or other property of Tenant, Tenant's employees,
invitees, customers, or any other person in or about the Building, whether
such damage or injury is caused by or results from any cause whatsoever
41
including, but not limited to, theft, criminal activity at the Building,
negligent security measures, bombings or bomb scares, hazardous waste, fire,
steam, electricity, gas, water or rain, breakage of pipes, sprinklers,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether said damage or injury results from conditions arising upon the
Premises or upon other portions of the Building, or from other sources or
places, or from new construction or the repair, alteration or improvement of
any part of the Building, or of the equipment, fixtures or appurtenances
applicable thereto, and regardless of whether the cause of the damage or
injury arises out of Landlord's or its employees or agents negligent or
intentional acts. Tenant assumes full responsibility for protecting its space
from theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed and secured. Landlord shall not
be liable for any damages arising from any act or neglect of any other
tenant, occupant or user of the Building, nor from the failure of Landlord to
enforce the provisions of the lease of any other tenant of the Building.
Tenant, as a material part of the consideration to Landlord hereunder, hereby
assumes all risk of damage to property of Tenant, in, upon or about the
Building arising from any cause, including Landlord's negligence or the
negligence of its agents, partners or employees, and Tenant hereby waives all
claims in respect thereof against Landlord, its agents, partners and
employees.
Tenant shall neither assert nor seek to enforce any claim against Landlord,
or Landlord's agents or employees, or the assets of Landlord or of Landlord's
agents or employees, for breach of this Lease or otherwise, other than
against Landlord's interest in the Building of which the Premises are a part
and, in any event, Tenant's rights shall be subject to the rights of any
lender holding a mortgage or deed of trust encumbering all or part of the
Building, Tenant agrees to look solely to such interest for the satisfaction
of any liability of Landlord under this Lease, it being specifically agreed
that in no event shall Landlord, or Landlord's agents or employees (or any of
the officers, trustees, directors, partners, beneficiaries, joint venturers,
members, stockholders or other principals or representatives, and the like,
disclosed or undisclosed, thereof) ever be personally liable for any such
liability. This paragraph shall not limit any right that Tenant might
otherwise have to obtain injunctive relief against Landlord or to take any
other action which shall not involve the personal liability of Landlord to
respond in monetary damages from Landlord's assets other than the Landlord's
interest in said real estate, as aforesaid. In no event shall Landlord or
Landlord's agents or employees (or any of the officers, trustees, directors,
partners, beneficiaries, joint venturers, members, stockholders or other
principals or representatives and the like, disclosed or undisclosed,
thereof) ever be liable for loss of profits, loss of the value of Tenant's
business, or consequential or incidental damages. Without limiting the
foregoing, in no event shall Landlord or Landlord's agents or employees (or
any of the officers, trustees, directors, partners, beneficiaries, joint
venturers, members, stockholders or other principals or representatives and
the like, disclosed or undisclosed, thereof) ever be liable for lost profits
of Tenant.
29. BILLS AND NOTICES
Any notice required or permitted to be given hereunder shall be in writing
and may be given by certified mail, return receipt requested, personal
delivery, Federal Express or other delivery service. If notice is given by
certified mail, return receipt requested, notice shall be deemed given three
(3) days after the notice is deposited with the U.S. Mail, postage prepaid.
If notice is given by personal delivery, Federal Express or other delivery
service, notice shall be deemed given on the date the notice is actually
received by Landlord or Tenant. Notices to Landlord and Tenant shall be
addressed as follows:
If to Landlord, addressed to Landlord at: c/o Berkeley Investments, Inc. 121
High Street, Boston, MA 02110, Attn.: Mr. Steve Brooks (or to such other
address or addresses as may from time to time hereafter be designated by
Landlord by notice).
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If to Tenant, addressed to: Super PC Memory, Inc., 115 Flanders Road
Westborough, MA 01581, Attn.: Joseph F Kruy, President, , with a copy to:
Cambex Corporation , Attn.: Lois Lehberger, Vice President, Finance at the
same address
Either party may by notice to the other specify a different address for
notice purposes. Notwithstanding the address set forth in the Lease Summary
Sheet for Tenant, upon Tenant's taking possession of the Premises, the
Premises shall constitute Tenant's address for notice purposes. A copy of all
notices required or permitted to be given to Landlord hereunder shall be
concurrently transmitted to such party or parties at such addresses as
Landlord may from time to time designate by notice to Tenant.
If Tenant is a partnership, Tenant, for itself, and on behalf of all of its
partners, hereby appoints Tenant's Service Partner, as identified on the
Lease Summary Sheet, to accept service of any notice, consent, request, bill,
demand or statement hereunder by Landlord and any service of process in any
judicial proceeding with respect to this Lease on behalf of Tenant and as
agent and attorney-in-fact for each partner of Tenant.
All bills and statements for reimbursement or other payments or charges due
from Tenant to Landlord hereunder shall be due and payable in full fifteen
(15) days, unless a different period is herein otherwise provided, after
submission thereof by Landlord to Tenant. Tenant's failure to make timely
payment of any amounts indicated by such bills and statements, whether for
work done by Landlord at Tenant's request, reimbursement provided for by this
Lease or for any other nuns properly owing by Tenant to Landlord, shall be
treated as a default in the payment of rent, in which event Landlord shall
have all rights and remedies provided in this Lease for the nonpayment of
rent.
30. PARTIES BOUND - SEIZING OF TITLE
The covenants, agreements, terms, provisions and conditions of this Lease
shall bind and benefit the successors and assigns of the parties hereto with
the same effect as if mentioned in each instance where a party hereto is
named or referred to, except that no violation of the provisions of Article
16 hereof shall operate to vest any rights in any successor or assignee of
Tenant and that the provisions of this Article 30 shall not be construed as
modifying the conditions of limitation contained in Article 21 hereof.
If, in connection with or as a consequence of the sale, transfer or other
disposition of the real estate (land and/or Building, either or both, as the
case may be) of which the Premises are a part Landlord ceases to be the owner
of the reversionary interest in the Premises, Landlord shall be entirely
freed and relieved from the performance and observance thereafter of all
covenants and obligations hereunder on the part of Landlord to be performed
and observed, it being understood and agreed in such event (and it shall be
deemed and construed as a covenant running with the land) that the person
succeeding to Landlord's ownership of said reversionary interest shall
thereupon and thereafter assume, and perform and observe, any and all of such
covenants and obligations of Landlord.
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31. MISCELLANEOUS
31.1. Separability.
If any provision of this Lease or portion of such provision or the
application thereof to any person or circumstance is for any reason held
invalid or unenforceable, the remainder of the Lease (or the remainder of
such provision) and the application thereof to other persons or circumstances
shall not be affected thereby.
31.2. Captions, etc.
The captions are inserted only as a matter of convenience and for reference,
and in no way define, limit or describe the scope of this Lease nor the
intent of any provisions thereof. References to "State" shall mean, where
appropriate, the District of Columbia and other Federal territories,
possessions, as well as a state of the United States.
31.3. Broker.
Tenant represents and warrants that it has not directly or indirectly dealt,
with respect to the leasing of office space in the Building with any broker
or had its attention called to the Premises or other space to let in the
Building by anyone other than the broker, person or firm, if any, designated
in the Lease Summary Sheet.
31.4. Security Measures.
Tenant hereby acknowledges that Landlord shall have no obligation whatsoever
to provide guard service or other security measures for the benefit of the
Premises or the Building, and Landlord shall have no liability to Tenant due
to its failure to provide such services. Tenant assumes all responsibility
for the protection of Tenant, its agents, employees, contractors and invitees
and the property of Tenant and of Tenant's agents, employees, contractors and
invitees from acts of third parties. Nothing herein contained shall prevent
Landlord, at Landlord's sole option, from implementing security measures for
the Building or any part thereof, in which event Tenant shall participate in
such security measures and the cost thereof shall be included within the
definition of Operating Costs. Landlord shall have the right, but not the
obligation, to require all persons entering or leaving the Building to
identify themselves to a security guard and to reasonably establish that such
person should be permitted access to the Building.
31.5. Easements.
Landlord reserves to itself the right, from time to time, to grant such
easements, rights and dedications that Landlord deems necessary or desirable,
and to cause the recordation of parcel maps and restrictions, so long as such
easements, rights, dedications, maps and restrictions do not unreasonably
interfere with the use of the Premises by Tenant. Tenant shall sign any of
the aforementioned documents within ten (10) days after Landlord's request
and Tenant's failure to do so shall constitute a material default by Tenant.
The obstruction of Tenant's view, air, or light by any structure erected,
whether by Landlord or third parties, shall in no way affect this Lease or
impose any liability upon Landlord.
31.6. Amendments; Modifications.
This Lease may be modified in writing only, signed by the parties in interest
at the time of the modification.
If in connection with obtaining financing for the Building, a bank, insurance
company, pension trust or other institutional lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
withhold, delay or condition its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created.
31.7. Arbitration.
Any disputes relating to provisions or obligations in this Lease as to which
a specific provision for a reference to arbitration is made herein shall be
submitted to arbitration in accordance with the provisions of applicable
state law, as from time to time amended. Arbitration proceedings, including
the selection of an arbitrator, shall be conducted pursuant to the rules,
regulations and procedures from time to time in effect as promulgated by the
American Arbitration Association. Prior written notice of application by
either party for arbitration shall be given to the other at least ten (10)
days before submission of the application to the said Association's office in
the City wherein the Building is situated (or the nearest other city having
an Association office). The arbitrator shall hear the parties and their
evidence. The
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decision of the arbitrator shall be binding and conclusive, and
judgment upon the award or decision of the arbitrator may be entered in the
appropriate court of law; and the parties consent to the jurisdiction of such
court and further agree that any process or notice of motion or other
application to the Court or a Judge thereof may be served outside the State
wherein the Building is situated by registered mail or by personal service,
provided a reasonable time for appearance is allowed. The costs and expenses
of each arbitration hereunder and their apportionment between the parties
shall be determined by the arbitrator in his award or decision. No arbitrable
dispute shall be deemed to have arisen under this Lease prior to (i) the
expiration of the period of twenty (20) days after the date of the giving of
written notice by the party asserting the existence of the dispute together
with a description thereof sufficient for an understanding thereof, and (ii)
where a Tenant payment (e.g., Tenant's Proportionate Share of Operating Costs
and Taxes under Article 9 hereof) is in issue, the amount billed by Landlord
having been paid by Tenant.
31.8. Governing Law.
This Lease is made pursuant to, and shall be governed by, and construed in
accordance with, the laws of the State wherein the Building is situated and
any applicable local municipal rules, regulations, by-laws, ordinances and
the like and any litigation concerning this Lease between the parties hereto
shall be initiated in the county in which the Building is located.
31.9. Assignment of Rents.
With reference to any assignment by Landlord of its interest in this Lease,
or the rents payable hereunder, conditional in nature or otherwise, which
assignment is made to or held by a bank, trust company, insurance company or
other institutional lender holding a mortgage or ground lease on the
Building, Tenant agrees:
(a) that the execution thereof by Landlord and the acceptance thereof by
such mortgagee and/or ground lessor shall never be deemed an assumption by
such mortgagee and/or ground lessor of any of the obligations of the Landlord
thereunder, unless such mortgagee and/or ground lessor shall, by written
notice sent to the Tenant specifically otherwise elect; and
(b) that, except as aforesaid, such Mortgagee and/or ground lessor shall be
treated as having assumed the Landlord's obligations thereunder only upon
foreclosure of such mortgagee's mortgage or deed of trust or termination of
such ground lessor's ground lease and the taking of possession of the demised
Premises after having given notice of its exercise of the option stated in
Article 23 hereof to succeed to the interest of the Landlord under this
Lease.
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31.10. Representation of Authority.
By his execution hereof each of the signatories on behalf of the respective
parties hereby warrants and represents to the other that he is duly
authorized to execute this Lease on behalf of such party. If Tenant is a
corporation, Tenant hereby appoints the signatory whose name appears below on
behalf of Tenant as Tenant's attorney-in-fact for the purpose of executing
this Lease for and on behalf of Tenant.
31.11. Expenses Incurred by Landlord Upon Tenant Requests.
Tenant shall, upon demand, reimburse Landlord for all reasonable expenses,
including, without limitation, legal fees, incurred by Landlord in connection
with all requests by Tenant for consents, approvals or execution of
collateral documentation related to this Lease, including, without
limitation, costs incurred by Landlord in the review and approval of Tenant's
plans and specifications in connection with proposed alterations to be made
by Tenant to the Premises (except for the alterations made by Tenant in
connection with its initial taking of occupancy, for which there shall be no
charge), requests by Tenant to sublet the Premises or assign its interest in
the Lease, the execution by Landlord of estoppel certificates requested by
Tenant, and requests by Tenant for Landlord to execute waivers of Landlord's
interest in Tenant's property in connection with third party financing by
Tenant. Such costs shall be deemed to be additional rent under the Lease.
31.12. Survival.
Without limiting any other obligation of the Tenant which may survive the
expiration or prior termination of the term of the Lease, all obligations on
the part of Tenant to indemnify, defend, or hold Landlord harmless, as set
forth in this Lease (including, without limitation, Tenant's obligations
under Articles 13(d) and 15.3) shall survive the expiration or prior
termination of the term of the Lease.
31.13. Time of Essence.
Time is of the essence with respect to each of the obligations to be
performed by Tenant under this Lease.
31.14. Incorporation of Prior Agreements.
This Lease and the attachments contain all agreements of the parties with
respect to the lease of the Premises and any other matter mentioned herein.
No prior or contemporaneous agreement or understanding pertaining to any such
matter shall be effective.
31.15. Covenants.
This Lease shall be construed as though the covenants contained herein are
independent and not dependent and Tenant hereby waives the benefit of any
statute to the contrary.
31.16. Attorneys' Fees.
If Landlord or Tenant brings an action to enforce the terms hereof or declare
rights hereunder, the prevailing party in any such action, or appeal thereon,
shall be entitled to its reasonable attorneys' fees and court costs to be
paid by the losing party as fixed by the court in the same or separate suit,
and whether or not such action is pursued to decision or judgment. The
attorneys' fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees and
court costs reasonably incurred in good faith. Landlord shall be entitled to
reasonable attorneys' fees and all other costs and expenses incurred in the
preparation and service of notices of default and consultations in connection
therewith, whether or not a legal action is subsequently commenced in
connection with such default.
31.17. Auctions.
Tenant shall not conduct, nor permit to be conducted, either voluntarily or
involuntarily, any auction upon the Premises or the Common Areas. The holding
of any auction on the Premises or Common Areas in violation of this Article
31.18 shall constitute a material default hereunder.
31.18. Merger.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, or a termination by Landlord, shall not result in the
merger of Landlord's and Tenant's estates, and shall, at the option of
Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
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31.19. Authority.
If Tenant is a corporation, trust, or general or limited partnership, Tenant,
and each individual executing this Lease on behalf of such entity, represents
and warrants that such individual is duly authorized to execute and deliver
this Lease on behalf of said entity, that said entity is duly authorized to
enter into this Lease, and that this Lease is enforceable against said entity
in accordance with its terms. If Tenant is a corporation, trust or
partnership, Tenant shall deliver to Landlord upon demand evidence of such
authority satisfactory to Landlord.
31.20. Conflict.
Except as otherwise provided herein to the contrary, any conflict between the
printed provisions, Exhibits, Addenda or Riders of this Lease and the
typewritten or handwritten provisions, if any, shall be controlled by the
typewritten or handwritten provisions.
31.21. Multiple Parties.
If more than one person or entity is named as Tenant herein, the obligations
of Tenant shall be the joint and several responsibility of all persons or
entities named herein as Tenant. Service of a notice in accordance with
Article 31 on one Tenant shall be deemed service of notice on all Tenants.
31.22. Interpretation.
This Lease shall be interpreted as if it was prepared by both parties and
ambiguities shall not be resolved in favor of Tenant because all or a portion
of this Lease was prepared by Landlord. The captions contained in this Lease
are for convenience only and shall not be deemed to limit or alter the
meaning of this Lease. As used in this Lease the words tenant and landlord
include the plural as well as the singular. Words used in the neuter gender
include the masculine and feminine gender.
31.23. Relationship of Parties.
Nothing contained in this Lease shall be deemed or construed by the parties
hereto or by any third party to create the relationship of principal and
agent, partnership, joint venturer or any association between Landlord and
Tenant.
31.24. Rules and Regulations.
Tenant agrees to abide by and conform to the Rules and to cause its
employees, suppliers, customers and invitees to so abide and conform.
Landlord shall have the right, from time to time, to modify, amend and
enforce the Rules, so long as any modification does not materially adversely
affect Tenant's ability to use the Premises for the Use of Premises permitted
hereunder Landlord shall not be responsible to Tenant for the failure of
other persons including, but not limited to, other tenants, their agents,
employees and invitees to comply with the Rules.
31.25. Right to Lease.
Landlord reserves the absolute right to effect such other tenancies in the
Building as Landlord in its sole discretion shall determine, and Tenant is
not relying on any representation that any specific tenant or number of
tenants will occupy the Building.
31.26. Intentionally Omitted.
31.27. Intentionally Omitted.
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31.28. Financial Statements.
From time to time, at Landlord's request, Tenant shall cause the following
financial information to be delivered to Landlord, at Tenant's sole cost and
expense, but only if already prepared, upon not less than ten (10) days'
advance written notice from Landlord: (a) a current financial statement for
Tenant and Tenant's financial statements for the previous two accounting
years, (b) a current financial statement for any guarantor(s) of this Lease
and the guarantor's financial statements for the previous two accounting
years and (c) such other financial information pertaining to Tenant or any
guarantor as Landlord or any lender or purchaser of Landlord may reasonably
request. All financial statements shall be prepared in accordance with
generally accepted accounting principals consistently applied and, if such is
the normal practice of Tenant, shall be audited by an independent certified
public accountant.
31.29. Attachments.
The items listed in the Lease Summary Sheet are a part of this Lease and are
incorporated herein by this reference.
31.30. Security Deposit.
Tenant has deposited with Landlord the sum specified in the Basic Lease
Information as the "Security Deposit.", or has deposited or may deposit at
any time during the Term hereof in lieu of all or part of such cash security
deposit a clean, irrevocable, unconditional, standby letter of credit, drawn
on a bank acceptable to Landlord in its reasonable discretion, with a right
of assignment to any successor to Landlord's interests, having an initial
expiration date of not sooner than one year from the issuance date thereof
("Letter of Credit", which term shall include all renewals, reissuances,
replacements and substitutions for the initial Letter of Credit). Such cash
deposit and Letter of Credit shall together constitute the "Security
Deposit". Upon any transfer of Landlord's interest in this Lease, Tenant
shall, within five (5) days of Landlord's request, cause any Letter of Credit
which is then part of the Security to be reissued, naming the transferee of
such interest as beneficiary. Tenant shall from time to time cause the Letter
of Credit to be renewed no later than thirty (30) days prior to any
expiration date thereof. If Tenant fails to timely renew the Letter of Credit
or fails to deliver a substitute Letter of Credit to a transferee as provided
above, then Landlord may draw on the then-existing Security and retain (or
transfer to such transferee) the amounts so drawn as security for the
performance of Tenant's obligations under this Lease.
The Security Deposit shall be held by Landlord as security for the full and
faithful performance by Tenant of all the provisions of this Lease. If Tenant
defaults (after applicable notice and time to cure) with respect to any
provision of this Lease, including, without limitation, provisions relating
to the payment of Rent, Landlord may, after giving two (2) days additional
notice to Tenant's counsel, but shall not be required to, use, apply or
retain all or any part of the Security Deposit for the payment of any Rent or
to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant's default. If any portion of the Security Deposit is so
used, applied or retained, Tenant shall within ten (10) days after demand
from Landlord, deposit funds with Landlord (or cause the Letter of Credit to
be reissued) in an amount sufficient to restore the Security Deposit to its
original amount. Landlord shall not be required to keep the Security Deposit
separate from its general funds, no trust relationship shall be created with
respect to the Security Deposit, and Tenant shall not be entitled to interest
on the Security Deposit. Any part of the Security Deposit not used by
Landlord as permitted by this paragraph shall be returned to Tenant within
thirty (30) days after the Expiration Date.
At any time in its discretion, , Tenant may cause a current quarterly or
annual financial statement for Tenant ( "Financial Statements") to be
delivered to Landlord, at Tenant's sole cost and expense. All Financial
Statements shall be prepared in accordance with generally accepted accounting
principles consistently applied and, if such is the normal practice of
Tenant, shall be audited by an independent certified public accountant. In
the event the Financial Statements demonstrate (as determined by Landlord, in
its reasonable judgment, applying generally accepted accounting principles)
that Tenant's operations have resulted in two (2) consecutive calendar
quarters of positive net cash flow and provided Tenant is not then in default
under this Lease (beyond any applicable cure periods), the Security Deposit
shall be reduced from $60,000 to
48
$40,000 (the "First Reduction"). If Tenant is not in default (beyond any
applicable cure periods) at the date which is twelve (12) months after the
First Reduction, the Security Deposit shall be further reduced from $40,000
to $20,000.
31.31. Notice of Lease; Recording.
(a) Tenant agrees not to record the Lease, but each party hereto agrees, at
the request of the other, to execute a Notice of Lease in recordable form in
compliance with applicable Massachusetts law and reasonably satisfactory to
Landlord and Tenant and theirs attorneys. In no event shall such Notice of
Lease set forth the rent or other charges payable by Tenant under the Lease;
and such notice shall expressly state that it is executed pursuant to the
provisions contained in the Lease, and is not intended to vary the terms and
conditions of the Lease. It is hereby agreed that the requesting party shall
pay all fees with respect to the recording of the Notice of Lease, the
recording of any amendments thereto and the recording of any notice of
termination thereof.
(b) If the Commencement Date and the Termination Date are not determined at
the time that a Notice of Lease has been executed by the parties, then each
of the parties hereto agrees, upon demand of the other party after the
Commencement Date and Termination Date have been determined, to join in the
execution, in recordable form, of a statutory notice, memorandum, etc. of
lease and/or written declaration in which shall be stated such Commencement
Date and (if need be) the Termination Date. If this Lease is terminated
before the term expires, then upon Landlord's request the parties shall
execute, deliver and record an instrument acknowledging such fact and the
date of termination of this Lease, and Tenant hereby appoints Landlord its
attorney-in-fact in its name and behalf to execute such instrument if Tenant
shall fail to execute and deliver such instrument after Landlord's request
therefor within ten (10) days.
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IN WITNESS WHEREOF the parties hereto have executed this Indenture of Lease
in multiple copies, each to be considered an original hereof, as a sealed
instrument on the day and year noted in the Lease Summary Sheet as the
Execution Date.
LANDLORD: TENANT:
BERTECH FLANDERS LLC, SUPER PC MEMORY, INC.
a Delaware limited liability company a California corporation
By: Berkeley Investments, Inc.,
its managing member
By: /s/ Y. Park By: /s/ J.F. Kruy
Y. Park, President J.F. Kruy, President
(Name and Title) (Name and Title)
IF TENANT IS A CORPORATION, A SECRETARY'S OR CLERK'S CERTIFICATE OF THE
AUTHORITY AND THE INCUMBENCY OF THE PERSON SIGNING ON BEHALF OF TENANT SHOULD
BE ATTACHED.