LEASE
BY AND BETWEEN
AETNA LIFE INSURANCE COMPANY
("Landlord")
AND
PLC MEDICAL SYSTEMS, INC.
("Tenant")
For Premises at 10 Forge Park, Franklin, Massachusetts
LEASE SUMMARY SHEET
1. LANDLORD: Aetna Life Insurance Company
2. LANDLORD'S ADDRESS: (c/o Landlord's Managing Agent):
National Development of New England
199 Wells Avenue
Newton Centre, MA 02159
Attention: Donald B. Morrisey
3. TENANT: PLC Medical Systems, Inc.
4. TENANT'S ADDRESS: 113 Cedar Street, Milford, Massachusetts 01757
5. PREMISES: 10 Forge Park, Franklin, MA
6. TERM OF LEASE: Five (5) Years
OPTION TO RENEW: Two (3) Year Periods
7. RENT: MINIMUM (BASE) MONTHLY RENT:
Initial Lease Term: See Section 1.4
Option Period: See Section 1.6
ADDITIONAL RENT: See Section 10.1
8. SECURITY DEPOSIT: $ 49,400.00
TABLE OF CONTENTS
1 TERMS..........................................................1
1.1 Premises..............................................1
1.2 Agreed Areas..........................................1
1.3 Lease Term............................................1
1.4 Rent..................................................2
1.5 Notices and Payments Addresses........................2
1.6 Options To Extend.....................................2
1.7 Market Rent...........................................3
2 COMMENCEMENT AND EXPIRATION DATES..............................4
2.1 Lease Term............................................4
2.2 Lease Commencement Date...............................4
2.3 Delivery of Possession................................4
2.4 Tenant's Access to Premises
Prior to Lease Commencement Date......................4
3 PAYMENT OF RENT................................................4
4 LANDLORD'S WORK; CONSTRUCTION COSTS CAP; MOVING
ALLOWANCE......................................................5
4.1 Landlord's Work; Construction Costs Cap...............5
4.2 Moving Allowance......................................6
5 SECURITY DEPOSIT...............................................6
6 USES...........................................................7
6.1 Permitted Uses........................................7
6.2 Hazardous Materials...................................8
7 LATE CHARGES..................................................10
8 REPAIRS AND MAINTENANCE.......................................11
8.1 Landlord's Obligations...............................11
8.2 Tenant's Obligations.................................11
9 UTILITIES AND SERVICES........................................12
9.1 Utility Bills........................................12
9.2 Disclaimer...........................................12
9.3 Heat Producing Equipment.............................12
10 ADJUSTMENTS...................................................13
10.1 Definition...........................................13
10.2 Monthly Payments....................................15
10.3 Further Adjustment..................................16
11 PERSONAL PROPERTY TAXES.......................................16
12 LIABILITY INSURANCE...........................................16
13 FIRE INSURANCE - FIXTURES AND EQUIPMENT.......................17
14 DESTRUCTION AND DAMAGE........................................18
14.1 Casualty Damage - Insured............................18
14.2 Release..............................................19
14.3 Rent Abatement.......................................19
14.4 Delay................................................19
14.5 Uninsured Damage.....................................19
14.6 Repair Obligation....................................19
14.7 End of Term..........................................20
14.8 Waiver...............................................20
15 ALTERATIONS AND ADDITIONS: REMOVAL OF FIXTURES...............20
16 ACCEPTANCE OF PREMISES........................................21
17 INTENTIONALLY OMITTED.........................................21
18 ACCESS........................................................21
19 WAIVER OF SUBROGATION.........................................21
20 INDEMNIFICATION...............................................22
21 ASSIGNMENT AND SUBLETTING.....................................22
21.1 Landlord's Consent...................................22
21.2 Criteria.............................................22
21.3 Approved Subleases and Assignments...................23
22 ADVERTISING...................................................24
23 LIENS.........................................................24
24 DEFAULT.......................................................24
24.1 Tenant's Consent.....................................24
24.2 Remedies.............................................26
25 SUBORDINATION.................................................28
26 SURRENDER OF POSSESSION.......................................28
27 NON-WAIVER....................................................29
28 HOLDOVER......................................................29
29 CONDEMNATION..................................................29
29.1 Substantial Taking...................................29
29.2 Partial Taking.......................................29
29.3 Awards and Damages...................................29
30 NOTICES.......................................................30
31 MORTGAGEE PROTECTION..........................................30
32 COSTS AND ATTORNEYS' FEES.....................................30
33 BROKERS.......................................................30
34 LANDLORD'S LIABILITY..........................................31
35 ESTOPPEL CERTIFICATES.........................................31
36 FINANCIAL STATEMENTS..........................................31
37 TRANSFER OF LANDLORD'S INTEREST...............................31
38 RIGHT TO PERFORM..............................................32
39 INTENTIONALLY OMITTED.........................................32
40 SALES AND AUCTIONS............................................32
41 NO ACCESS TO ROOF.............................................32
42 SECURITY......................................................33
43 AUTHORITY OF TENANT...........................................33
44 NO ACCORD OR SATISFACTION.....................................33
45 MODIFICATIONS FOR LENDER......................................33
46 PARKING.......................................................33
47 EXTERIOR SIGNS................................................34
48 FORGE PARK COVENANTS AND RESTRICTIONS; RULES AND
REGULATIONS...................................................34
49 GENERAL PROVISIONS............................................34
49.1 Acceptance...........................................34
49.2 Joint Obligation.....................................34
49.3 Marginal Headings, Etc...............................35
49.4 Choice of Law........................................35
49.5 Successors and Assigns...............................35
49.6 Recordation..........................................35
49.7 Quiet Possession.....................................35
49.8 Inability to Perform.................................35
49.9 Partial Invalidity...................................35
49.10 Cumulative Remedies..................................35
49.11 Entire Agreement.....................................35
49.12 Exhibits.............................................35
50 TENANT'S RIGHT OF SECOND OFFER TO LEASE ADDITIONAL
SPACE IN THE BUILDING.........................................36
LIST OF EXHIBITS
EXHIBIT A - The Premises
EXHIBIT B - The Lot
EXHIBIT C - Forge Park Covenants and Restrictions
EXHIBIT D - List of Tenant's Hazardous Materials
LEASE
THIS LEASE, made as of this __________ day of June, 1996, by and
between AETNA LIFE INSURANCE COMPANY, a Connecticut corporation ("LANDLORD"),
having an address at 242 Trumbull Street, Hartford, Connecticut 06156, and PLC
MEDICAL SYSTEMS, INC., a Massachusetts corporation ("Tenant"), having its
principal place of business at 113 Cedar Street, Milford, MA 01757.
WITNESSETH:
That Landlord, for and in consideration of the rents and all other
charges and payments hereinafter reserved and payable by Tenant, and of the
covenants, agreements, terms, provisions and conditions to be kept and performed
hereunder by Tenant, does hereby demise and lease to Tenant, and Tenant does
hereby hire and take from Landlord, the premises described below ("Premises"),
subject to all matters affecting record title to the Building and Lot and to all
matters hereinafter set forth and upon and subject to the covenants, agreements,
terms, provisions and conditions of this Lease for the term hereinafter stated.
1. TERMS. Landlord and Tenant agree to the following, unless
otherwise specifically modified by provisions of this Lease:
1.1 Premises. The Premises (hereinafter the "Premises")
demised by this Lease are that portion of the building ("Building")
located at 10 Forge Parkway, Franklin, Massachusetts, comprising in the
aggregate approximately 37,050 square feet of rentable space, more
particularly shown on Exhibit A hereto, together with the non-exclusive
right to use in common with other tenants (i) Tenant's Percentage Share
of the parking spaces provided for the Building located on the lot
described on Exhibit B hereto (the "lot" or "Lot") and (ii) other
common areas in the Building and upon the Lot for purposes of gaining
access to the Premises. No easement for light or air is incorporated in
the Premises.
1.2 Agreed Areas. Total rentable area of the Building: 98,673
square feet; Area of Premises: Approximately 37,050 rentable square
feet; and Tenant's Percentage Share: 37.55%
1.3 Lease Term. Five (5) Years, commencing on September 1,
1996 ("the Lease Commencement Date") (the "Initial Lease Term");
provided that if Landlord shall be unable to deliver possession of the
Premises to Tenant on July 1, 1996, the Lease Commencement Date shall
be delayed for each day after July 1, 1996 that Landlord shall have
been unable to deliver possession of the Premises to Tenant except
that, notwithstanding such delay in the Lease
Commencement Date, the Initial Lease Term shall nevertheless end on
August 31, 2001.
1.4 Rent. The basic rent ("Rent") for the Premises for the
Initial Lease Term shall be $296,400 per annum.
Option Periods: See Section 1.6
In addition to the Rent, Tenant shall pay the Additional Rent described
in Section 10 and the personal property taxes described in Section 11, all of
which shall be deemed rent due under this Lease.
1.5 Notices and Payments Addresses:
If to Landlord: Aetna Life Insurance Company
c/o (Landlord's Managing Agent):
National Development Asset Management of
New England Limited Partnership
2300 Washington Avenue
Newton, MA
Attention: Donald B. Morrisey
If to Tenant: (Prior to Lease Commencement Date)
PLC Medical Systems, Inc.
113 Cedar Street
Milford, MA 01757
Attention: William Franks
(On and after Lease Commencement Date)
PLC Medical Systems, Inc.
At the Premises
Attention: William Franks
1.6 Option To Extend. Tenant shall have two (2) consecutive
separate options to extend the Lease Term for an additional three (3)
year period (i.e., for a total, if both such options are exercised as
provided herein, of six successive years beyond the Initial Lease Term)
beyond the then Lease Term (each three year period being referred to
herein as an "Option Period"), provided (i) Tenant shall give notice to
Landlord of its exercise of such option not less than seven (7) months
prior to the expiration of the Initial Lease Term or the first Option
Period, as the case may be, (ii) no default beyond any applicable grace
period in the obligations of Tenant under this Lease shall exist at the
time each such notice is
2
given, and (iii) at the time each such option is exercised the original
Tenant hereunder shall be in occupancy of the entire Premises then
demised hereunder. All of the terms and provisions of this Lease shall
be applicable during each Option Period except that (a) Tenant shall
have no option to extend the Lease Term beyond the second Option
Period, (b) the per annum Rent under Section 1.4 for the first Option
Period shall be ninety-five percent (95%) of the Market Rent, as
defined in Section 1.7 of this Lease, as of the first day of the first
Option Period but in no event shall the per annum Rent for the first
Option Period be less than $6.25 per square foot of the Premises per
annum, and (c) the per annum Rent under Section 1.4 for the second
Option Period shall be ninety-five percent (95%) of the Market Rent, as
defined in Section 1.7 of this Lease, as of the first day of the second
Option Period but in no event shall the per annum Rent for the second
Option Period be less than $6.85 per square foot of the Premises per
annum.
1.7 Market Rent. "Market Rent" shall be computed as of the
applicable date at the then current rentals being charged to new
tenants for comparable space located in the Building and comparable
buildings in the general vicinity of Franklin, Massachusetts, taking
into account and giving effect to, in determining comparability,
without limitation, such considerations as size, location of premises
and lease term.
Landlord shall initially designate the Market Rent prior to the
applicable Option Period and shall furnish data in support of such
designation. If Tenant disagrees with Landlord's designation of the
Market Rent, then Tenant shall have the right, by written notice given
within twenty-one (21) days after Tenant has been notified of
Landlord's designation, to submit such Market Rent to arbitration as
follows. Market Rent shall be determined by arbitrators, one to be
chosen by Tenant, one to be chosen by Landlord and a third to be
selected, if necessary, as below provided. All arbitrators selected
under this paragraph shall be experienced real estate appraisers with
substantial experience with properties in the general vicinity of
Franklin, Massachusetts. If within twenty-one (21) days after Tenant's
notice, the parties agree upon a single arbitrator or if one party
fails to select an arbitrator, the arbitrator selected by the other
shall be the sole arbitrator, and Market Rent shall be determined by
such arbitrator. The unanimous written decision of the two first chosen
(or the decision of the first, if a second arbitrator is not chosen)
without selection and participation of a third arbitrator, or otherwise
the written decision of a majority of the three arbitrators chosen and
selected as provided herein, shall be conclusive and binding upon
Landlord and Tenant. Landlord and Tenant shall each notify the other of
its chosen arbitrator within twenty-one (21) days following the call
for arbitration and, unless such two arbitrators shall have reached a
unanimous decision within thirty (30) days after their designation,
then they shall so notify the then
3
President of the Greater Boston Real Estate Board and request him or
her to select an impartial third arbitrator to act hereunder. Such
third arbitrator and the first two chosen shall hear the parties and
their evidence and render their decision within thirty (30) days
following the conclusion of such hearing and notify Landlord and Tenant
thereof. Landlord and Tenant shall bear the expense of the third
arbitrator (if any) equally. If the dispute between the parties as to
Market Rent has not been resolved before the commencement of Tenant's
obligation to pay rent based upon such Market Rent, then Tenant shall
pay rent under the Lease in respect of the Premises based upon the per
annum Rent in effect for the then prior year until either the agreement
of the parties as to the Market Rent or the decision of the
arbitrators, as the case may be, at which time Tenant shall pay any
underpayment of rent to Landlord, or Landlord shall refund any
overpayment of rent to Tenant.
2. COMMENCEMENT AND EXPIRATION DATES.
2.1 Lease Term. The term of this Lease shall be as set forth
in Section 1.3.
2.2 Lease Commencement Date. The Lease Commencement Date shall
be September 1, 1996.
2.3 Delivery of Possession. If Landlord is unable to deliver
possession of the Premises to Tenant on July 1, 1996, this Lease shall
not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting therefrom, but the Lease Commencement Date
shall be adjusted as provided in Section 1.3.
2.4 Tenant's Access To Premises Prior To Lease Commencement
Date. Subject to the following provisions of this Section 2.4, Tenant
shall be entitled to access the Premises, upon presentation by Tenant
to Landlord of the certificates of liability insurance required under
Section 12, for the purpose of constructing the "Tenant Initial
Improvements" (as such term is defined herein) and installing Tenant's
equipment and furniture. Such early access by Tenant shall be subject
to all terms and provisions of this Lease (except for the payment of
Rent and the payments under Section 10), including, without limitation,
Sections 9.1, 12, 15, and 20.
3. PAYMENT OF RENT. Tenant shall pay Landlord the Rent and Additional
Rent (as defined in Section 10) and any other payments due under this Lease
without prior notice, deduction or offset, in lawful money of the United Sates
in advance on or before the first day of each month, except that the first
month's Rent shall be paid upon the execution hereof, at the address noted in
Section 1.5, or to such other party or at
4
such other place as Landlord may hereafter from time to time designate in
writing. Rent and other amounts due under this Lease for any partial month at
the beginning or end of the Lease term shall be prorated.
4. LANDLORD'S WORK; CONSTRUCTION COSTS CAP; MOVING
ALLOWANCE:
4.1 The Premises are leased to Tenant "as is", without any
obligation on the part of Landlord to perform any construction therein
or to prepare the same for Tenant's occupancy or otherwise.
Tenant shall prepare, at Tenant's sole cost and expense,
detailed architectural and engineering plans (the "Tenant Improvement
Plans") for Tenant's construction of the leasehold improvements in the
Premises initially required by Tenant (the "Tenant Initial
Improvements"). Tenant and Tenant's architect shall diligently
cooperate with Landlord in connection with the preparation of the
Tenant Improvement Plans. Tenant shall initially present the Tenant
Improvement Plans to Landlord for Landlord's approval on or before June
14, 1996.
The Tenant Improvement Plans and all changes thereto shall be
subject to Landlord's approval, which approval shall not be
unreasonably withheld or delayed so long as any of the improvements
described in the Tenant Improvement Plans will not adversely affect the
structure of the Building or any mechanical systems of the Building.
Construction documents shall be made available by Tenant to Landlord on
or before July 1, 1996.
Landlord, acting through its managing agent, National
Development Asset Management of New England Limited Partnership
("Landlord's Managing Agent"), shall solicit a minimum of two
construction bids for the Tenant Initial Improvements from licensed
contractors. Tenant agrees that Landlord shall have the right to
request and receive a construction bid from Cranshaw Construction of
New England Limited Partnership. All bids shall be due on June 21,
1996. All bids received by Landlord's Managing Agent shall be submitted
to both Landlord and Tenant. The construction contract for the Tenant
Initial Improvements shall be awarded to the party mutually agreed upon
by and between Landlord and Tenant. The party so awarded the
construction contract shall enter into a construction contract with
Tenant and shall be considered Tenant's contractor.
Landlord shall reimburse Tenant, within twenty (20) days of
receiving appropriate invoices from Tenant, for Tenant's costs of
constructing the Tenant Initial Improvements (including any
improvements to the Premises required by
5
the Americans With Disabilities Act); provided, however, that
Landlord's obligation to reimburse Tenant for such costs shall in no
event exceed $316,400 in the aggregate (the "Construction Costs Cap").
If the aggregate cost of constructing the Tenant Initial Improvements
(the "Aggregate Construction Cost") exceeds the Construction Costs Cap,
Tenant shall pay the excess of the Aggregate Construction Cost over the
Construction Costs Cap, it being understood and agreed that Landlord
shall have no obligation to Tenant or any other party for the payment
of such excess.
The Tenant Initial Improvements shall be part of the Building
and shall not be removed, except that Tenant shall remove such portions
thereof as Landlord shall specify prior to the expiration of the Lease.
Tenant agrees to use reasonable efforts to substantially
complete the Tenant Initial Improvements on or before the Lease
Commencement Date; provided that Tenant's failure to substantially
complete the Tenant Initial Improvements (or Tenant's failure to obtain
the certificate of occupancy referred to in the next sentence) on or
before the Lease Commencement Date shall not prevent the commencement
of the Initial Lease Term from occurring on the Lease Commencement Date
set forth in Section 1.3 nor shall such failure by Tenant prevent the
obligations of Tenant (including its obligation to pay Rent and
Additional Rent) from commencing under this Lease as of the Lease
Commencement Date set forth in Section 1.3. Upon Tenant's completion of
the Tenant Initial Improvements Tenant shall be responsible for
obtaining a certificate of occupancy for the Premises.
4.2 Landlord shall provide Tenant with a moving allowance up
to the aggregate amount of $27,787.50 (the "Moving Allowance"). The
Moving Allowance shall be paid to Tenant to reimburse Tenant for
Tenant's costs of initially moving to the Premises, within thirty (30)
days of Tenant's presentation of appropriate invoices supporting such
costs.
5. SECURITY DEPOSIT. As security for its full and faithful performance
of this Lease, simultaneously with the execution of this Lease, Tenant shall pay
Landlord a security deposit in cash in the amount of $49,400.00 (the "Security
Deposit"). Subject to the provisions of this Section 5, the Security Deposit
shall be held in a separate, interest-bearing account.
Landlord shall hold the Security Deposit (and any interest earned
thereon) as security for the performance by Tenant of all obligations on the
part of Tenant to be kept and performed. Landlord shall have the right, from
time to time without prejudice to any other remedy Landlord may have on account
thereof, to draw upon the Security Deposit (and any interest earned thereon) and
apply such funds to Landlord's damages
6
arising from any default (which continues beyond the expiration of any
applicable cure period hereunder) on the part of Tenant, in which event Tenant
shall restore the balance of the Security Deposit to the original amount
required hereunder within ten (10) days of Landlord's written demand therefor.
Landlord shall notify Tenant of any such application of the Security Deposit
within a reasonable time after any such application. Tenant shall not have the
right to call upon Landlord to apply all or any part of the Security Deposit to
cure any default or fulfill any obligation of Tenant, but such use shall be
solely in the discretion of Landlord. Landlord, however, shall not apply all or
any part of the Security Deposit to cure any default or fulfill any obligation
of Landlord.
Within thirty (30) days following the expiration or earlier termination
of the Lease Term, provided that there is not then a breach of any undertaking
hereunder by Tenant, Landlord shall return the Security Deposit (and any
interest earned thereon), or so much thereof as shall not have theretofore been
applied in accordance with the terms of this Section or drawn upon by Landlord
and applied by Landlord to cure any default of Tenant existing at the expiration
or earlier termination of this Lease.
If Landlord conveys Landlord's interest under this Lease, the Security
Deposit (and any interest earned thereon) shall be delivered by Landlord to
Landlord's grantee, and if so delivered Tenant agrees to look solely to such
grantee for proper application of the Security Deposit (and such interest) in
accordance with the terms of this Section and the return thereof in accordance
herewith. Upon any such delivery, provided that Landlord gives notice and
written evidence of such delivery to Tenant, Tenant hereby releases Landlord
herein named of any and all liability with respect to the Security Deposit (and
such interest), its application and return, and Tenant agrees to look solely to
such grantee or transferee. This provision shall also apply to subsequent
grantees and transferees. Neither the holder of a mortgage nor the lessor in a
ground lease of property which includes the Premises shall ever be responsible
to Tenant for the return or application of any such Security Deposit (or such
interest), whether or not it succeeds to the position of Landlord hereunder,
unless such Security Deposit (and such interest) shall have been received in
hand by such holder or ground lessor.
6. USES.
6.1 Permitted Uses. The Premises are to be used only for light
manufacturing, research and development, office, and ancillary storage
uses (the "Permitted Uses") and for no other business or purpose
without the prior written consent of Landlord. No act shall be done in
or about the Premises that is unlawful or that will increase the
existing rate of insurance on the Building. In the event of a breach of
this covenant, Tenant shall pay to Landlord any and all increases in
insurance premiums resulting from such breach. Tenant shall not commit
or allow to be committed any waste upon the Premises, or any public or
7
private nuisance or other act or thing which disturbs the quiet
enjoyment of any other tenant in the Building. If any of Tenant's
machines or equipment disturb any other tenant in the Building, then
Tenant shall provide adequate insulation, or take such other action as
may be reasonably necessary to eliminate the noise or disturbance.
Tenant, at its expense, shall comply with all laws relating to its use
or occupancy of the Premises and shall observe such reasonable rules
and regulations as may be adopted and made available to Tenant by
Landlord from time to time for the safety, care and cleanliness of the
Premises or the Building and for the preservation of good order
therein. Subject to interruptions due to emergencies and to events
beyond Landlord's control, Tenant shall have the right to access the
Premises on a 24 hour per day, 7 day a week basis.
6.2 Hazardous Materials.
6.2.1 As used herein, the term "Hazardous Material"
shall mean any substance or material which has been determined
by any state, federal or local governmental authority to be
capable of posing a risk of injury to health, safety or
property, including all of those materials and substances
designated as hazardous or toxic by the city in which the
Premises are located, the Massachusetts Department of
Environmental Protection, the U.S. Environmental Protection
Agency, the Consumer Product Safety Commission, the Food and
Drug Administration, and any federal agencies that have
overlapping jurisdiction with such state agencies, or any
other governmental agency now or hereafter authorized to
regulate materials and substances in the environment.
6.2.2 Tenant agrees not to introduce any Hazardous
Material in, on or adjacent to the Premises, the Building or
the Lot without first obtaining Landlord's prior consent and
without complying with all applicable federal, state and local
laws, rules, regulations, policies and authorities relating to
the storage, use or disposal, and clean-up of Hazardous
Materials, including, but not limited to, the obtaining of
proper permits; provided, however, that in the event that
Landlord fails to notify Tenant within thirty (30) days of
receipt of Tenant's written request for such consent as to
whether or not Landlord will grant such consent, Landlord
shall be deemed to have granted its consent to Tenant's
request. Provided that Tenant complies with all applicable
federal, state, and local rules and regulations, policies and
authorities relating to the storage, use, disposal and
clean-up of the same, Landlord hereby consents to Tenant's use
and storage on the Premises of the Hazardous Materials listed
on Exhibit D hereto.
8
6.2.3 Tenant shall promptly notify Landlord of any
inquiry, test, investigation, or enforcement proceeding by or
against Landlord or Tenant or the Premises, the Building or
the Lot concerning a Hazardous Material. Tenant acknowledges
that Landlord, as the owner of the Premises, the Building and
the Lot, shall have the right, at its election, in its own
name or as Landlord's agent, to negotiate, defend, approve,
and appeal, any action taken or order issued with regard to a
Hazardous Material by an applicable governmental authority,
and to the extent such presence or release of a Hazardous
Material was caused by Tenant or Tenant's employees,
contractors or agents, such negotiations, defense, approval
and/or appeal shall be at Tenant's expense.
6.2.4 If Tenant's storage, use or disposal of any
Hazardous Material in, on or adjacent to the Premises, the
Building or the Lot results in any contamination of the
Premises, the Building or the Lot, the soil or surface or
groundwater (i) requiring remediation under federal, state or
local statutes, ordinances, regulations or policies, or (ii)
at levels which are unacceptable to Landlord, in Landlord's
reasonable judgment, Tenant agrees to clean-up the
contamination. Tenant further agrees to indemnify, defend and
hold Landlord harmless from and against any claims, suits,
causes of action, costs, fees, including attorneys' fees and
costs, arising out of or in connection with any clean-up work,
inquiry or enforcement proceeding in connection therewith, and
any Hazardous Materials currently or hereafter used, stored or
disposed of by Tenant or its agents, employees, contractors or
invitees on or about the Premises, the Building or the Lot.
6.2.5 Notwithstanding any other right of entry
granted to Landlord under this Lease, Landlord shall have the
right, upon reasonable prior notice to Tenant (except in the
case of emergency, in which event no such notice shall be
required), to reasonably enter the Premises, the Building or
the Lot or to have consultants reasonably enter the Premises,
the Building and the Lot throughout the term of this Lease for
the purpose of determining: (1) whether the Premises, the
Building and the Lot are in conformity with federal, state and
local statutes, regulations, ordinances, and policies
including those pertaining to the environmental condition of
the Premises, (2) whether Tenant has complied with this
Section 6, and (3) the corrective measures, if any, required
of Tenant to ensure the safe use, storage and disposal of
Hazardous Materials, or to remove Hazardous Materials. Tenant
agrees to provide reasonable access and reasonable assistance
for such inspections. Such inspections may include, but are
not limited to, entering the Premises, the Building or the Lot
or adjacent property with drill rigs or other machinery for
the purpose
9
of obtaining laboratory samples. Landlord shall not be limited
in the number of such inspections during the term of this
Lease. Tenant shall be obligated to reimburse Landlord (within
ten days of receipt of a written statement therefor) for any
such inspection performed by Landlord (i) if Landlord
performed such inspection based upon a reasonable belief that
the Premises, the Building or the Lot may have been
contaminated by Hazardous Materials due to the actions or
omissions of Tenant or Tenant's agents, contractors,
employees, or invitees or (ii) any such inspection reveals
that the Premises, the Building or the Lot have been
contaminated by Hazardous Materials due to the actions or
omissions of Tenant or Tenant's agents, contractors, employees
or invitees. If such consultants determine that the Premises,
the Building or the Lot are contaminated with Hazardous
Materials, Tenant shall, provided that such Hazardous
Materials were released by Tenant or Tenant's agents,
contractors, employees or invitees, (i) remove in a timely
manner at Tenant's expense such Hazardous Materials, so long
as such Hazardous Materials either (a) require remediation
under federal, state or local statutes, ordinances,
regulations or policies, or (b) are at levels which are
unacceptable to Landlord, in Landlord's reasonable judgment,
or (ii) otherwise comply with the recommendations of such
consultants to the reasonable satisfaction of Landlord and any
applicable governmental agencies. The right granted to
Landlord herein to inspect the Premises, the Building or the
Lot shall not create a duty on Landlord's part to inspect the
Premises, the Building or the Lot, or liability of Landlord
for Tenant's use, storage or disposal of Hazardous Materials,
it being understood that Tenant shall be solely responsible
for all liability in connection therewith.
6.2.6 Tenant shall surrender the Premises to Landlord
upon the expiration or earlier termination of this Lease free
of Hazardous Materials and in a condition which complies with
all governmental statutes, ordinances, regulations and
policies, reasonable recommendations of consultants hired by
Landlord, and such other reasonable requirements as may be
imposed by Landlord.
6.2.7 Tenant's obligations under this Section 6 shall
survive termination of this Lease.
7. LATE CHARGES. Tenant hereby acknowledges that late payment to
Landlord of Rent, Additional Rent 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. If any Rent, Additional Rent or
other sum due from Tenant is not received by Landlord or Landlord's designated
agent within five (5) business days of when due, then Tenant shall pay to
Landlord a late charge equal to ten percent (10%)
10
of such overdue amount, plus any reasonable attorneys' fees incurred by Landlord
by reason of Tenant's failure to pay Rent, Additional Rent and other charges
when due hereunder. The parties hereby agree that such late charges represent a
fair and reasonable estimate of the cost that Landlord will incur by reason of
Tenant's late payment. Landlord's acceptance of such late charges shall not
constitute a waiver of Tenant's default with respect to such overdue amount or
estop Landlord from exercising any of the other rights and remedies granted
hereunder.
8. REPAIRS AND MAINTENANCE.
8.1 Landlord's Obligation. Subject to Article 14 and to
Tenant's reimbursement obligation to Landlord under Section 10.1,
Landlord shall maintain, or cause to be maintained, any common areas of
the Building and the Lot in reasonably good order and condition except
for damage occasioned by any act or omission of Tenant or Tenant's
employees, guests, agents, customers, independent contractors, or
invitees, the repair of which damage shall be paid for by Tenant within
twenty (20) days of Landlord's written demand. Subject to Section 8.2,
Article 14 and to Tenant's reimbursement obligation to Landlord under
Section 10.1, Landlord agrees to keep in good repair the roof
(including the structural portions thereof), the Building foundation,
and exterior walls (exclusive of all glass and exterior doors), the
heating, ventilating and air conditioning, plumbing and electrical
systems serving the Premises, and the underground utility and sewer
pipes outside the exterior walls of the Building, if any, except
repairs rendered necessary by the negligence of Tenant, or Tenant's
employees, guests, agents, customers, independent contractors or
invitees, the repair of which shall be paid for by Tenant within twenty
(20) days of Landlord's written demand. Subject to Landlord's right of
access pursuant to Article 18, Tenant shall be exclusively responsible
for the Premises, and Landlord shall be under no obligation to inspect
the Premises. Tenant shall promptly report in writing to Landlord any
defective condition known to it which Landlord is required to repair,
and failure to so report such defects shall make Tenant responsible to
Landlord for any liability incurred by Landlord caused by Tenant's
failure to promptly report such conditions.
8.2 Premises Delivered As Is; Tenant's Obligations. Tenant
accepts the Premises in their present condition "as is" and as suited
for the uses intended by Tenant. Tenant shall, throughout the Initial
Lease Term and any extensions thereof, at its expense, maintain in good
order and repair the Premises, including all glass and doors, Tenant's
equipment now or hereafter on the Premises and other improvements
located thereon and any supplementary air conditioning or electrical
systems installed pursuant to Section 9.3. Tenant agrees to return the
Premises to Landlord at the expiration or prior termination of this
Lease in as good condition and repair as when first received, normal
wear
11
and tear, damage by storm, fire, lightning, earthquake or other
casualty excepted. Tenant hereby waives any law regarding Tenant's
right to make repairs and to deduct the expenses of such repairs from
the Rent due under the Lease.
Tenant shall be responsible, at Tenant's sole cost and
expense, for all cleaning, including window washing of the interior and
exterior windows, of the Premises. Tenant shall contract, at Tenant's
sole cost and expense, with a reputable company and shall otherwise be
responsible for the removal of any and all rubbish from the Premises.
9. UTILITIES AND SERVICES.
9.1 Utility Bills. Tenant shall promptly pay all water, sewer,
gas, electricity, fuel, phone, light, heat, cleaning, rubbish removal,
electric power and other utility bills for the Premises. If Tenant does
not pay these bills, Landlord, at Landlord's option, may pay them and
such payment shall be added to the Rent. If any of such utilities are
not separately metered to the Premises, Landlord will bill Tenant for
Tenant's proportionate share based on Tenant's Percentage Share or on
such other equitable basis as reasonably determined by Landlord.
Landlord shall submit estimated bills to Tenant for such non-
separately metered utilities monthly and Tenant shall pay these
estimated bills as "Additional Rent" (as defined in Section 10.2) on a
monthly basis concurrently with the payment of Rent, and such payments
shall be treated as if the same were "Adjustments" under Section 10.2
hereof.
9.2 Disclaimer. Landlord shall not be liable for any loss,
injury or damage to property caused by or resulting from any variation,
interruption, or failure of such services due to any cause beyond
Landlord's reasonable control. No temporary interruption or failure of
such services incident to the making of repairs, alterations, or
improvements, or due to accident, strike, or conditions or events
beyond Landlord's reasonable control shall be deemed an eviction of
Tenant or relieve Tenant from any of Tenant's obligations hereunder. In
no event shall Landlord be liable to Tenant for any damage to the
Premises or for any loss, damage or injury to any property therein or
thereon occasioned by bursting, rupture, leakage or overflow of any
plumbing or other pipes (including, without limitation, water, steam,
and/or refrigerant lines), sprinklers, tanks, drains, drinking
fountains or washstands, or other similar cause in, above, upon or
about the Premises or the Building, except to the extent caused by
Landlord's negligence or willful misconduct and then only to the extent
not covered by Tenant's personal property insurance.
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9.3 Heat Producing Equipment. Before installing any equipment
or lights which generate an undue amount of heat in the Premises or
using any high-power usage equipment in the Premises, Tenant shall
obtain the written permission of Landlord, which permission shall not
be unreasonably withheld or delayed. Landlord may refuse to grant such
permission unless Tenant agrees to pay the costs to Landlord for
installation of supplementary air conditioning capacity or electrical
systems reasonably necessitated by such equipment. In addition, Tenant
shall, in advance, on the first day of each month during the Lease
term, pay Landlord the reasonable amount estimated by Landlord as the
cost of furnishing electricity for the operation of such high-power
usage equipment and the cost of operation and maintenance of
supplementary air conditioning units necessitated by Tenant's use of
any equipment which generates an undue amount of heat. Such advance
payment shall be adjusted for any overpayment by Tenant for the
previous month's advance payment. Landlord shall be entitled to install
and operate at Tenant's cost, a monitoring/metering system in the
Premises to measure the added demands on electricity, heating,
ventilation, and air conditioning systems resulting from Tenant's heat
generating or high-power equipment usage, and after-hours service
requirements. At Landlord's option, Landlord may require Tenant to
remove, at Tenant's expense, any such electrical systems or
supplementary air conditioning system which were not included in
Tenant's Initial Improvements upon termination of the Lease, and Tenant
shall repair any damage to the Premises or the Building caused by such
removal.
10. ADJUSTMENTS.
10.1 Definition. In addition to the rent, and as additional
rent ("Additional Rent"), Tenant shall pay to Landlord Tenant's
Percentage Share (as such term is defined in Section 1.2) of the
Building and Lot's total cost of the following items:
10.1.1 All Property Taxes. "Property Taxes" shall be
defined to include any form of assessment, license, fee, rent,
tax, levy, penalty (if a result of Tenant's delinquency), or
tax (other than net income, estate, succession, inheritance,
transfer or franchise taxes), imposed by an authority having
the direct or indirect power to tax, or by any city, county,
state or federal government or any improvement or other
district or division thereof, whether such tax is: (i)
determined by the area of the Building or the parcel upon
which it is constructed or any part thereof or the Rent and
other sums payable hereunder by Tenant, including, but not
limited to, any gross income or excise tax levied by any of
the foregoing authorities with respect to receipt of such rent
or other sums due under this Lease; (ii) upon any legal or
equitable interest of Landlord in the
13
Building, the parcel upon which it is constructed or the
Premises or any part thereof; (iii) upon this transaction or
any document to which Tenant is a party creating or
transferring any interest in the Building or the parcel upon
which it is constructed; (iv) levied or assessed in lieu of,
in substitution for, or in addition to, existing or additional
taxes against the Building or the parcel upon which it is
constructed whether or not now customary or within the
contemplation of the parties; or (v) surcharged against the
parking area. Tenant shall also pay to Landlord Tenant's
Percentage Share (as such term is defined in Section 1.2) of
the reasonable fees and costs charged to Landlord by
Landlord's tax consultant for tax advisory services. If any
tenant(s) in the Building pays its share of real estate taxes
as defined herein directly to any taxing authority, as may be
provided in their leases, the square footage of their leased
premises shall not be included as part of the floor area of
the Building for purposes of calculating Tenant's share of
such amount;
10.1.2 All insurance premiums. Such insurance
premiums shall include all insurance premiums for fire and
hazard insurance ("All-Risk"), extended coverage, public
liability, and other insurance which Landlord reasonably deems
necessary;
10.1.3 All costs to maintain, repair, replace,
supervise, insure (including provision of public liability
insurance) and administer the Premises and all portions
thereof that Landlord is responsible for under Section 8.1 and
all common areas of the Building and Lot such as parking
areas, landscaping, sidewalks and Building common areas, if
any, Building and Premises equipment and operating systems and
other capital improvements to the Building and Premises,
parking lots, landscaping, sprinkler and alarm systems,
sidewalk, driveways, and the roof and structure of the
Building, including snow removal charges and the costs of
maintenance contracts; provided, however, that to the extent
that any of such costs to so repair or replace such items
shall be capital expenditures, only the annual amortization
(i.e., over the useful life of such repair or replacement
determined in accordance with generally accepted accounting
principles ("GAAP") or, in the absence of a controlling GAAP
principle, over a useful life reasonably determined by
Landlord) of the costs of such capital expenditures, with
interest at the prime rate (as published in The Wall Street
Journal), shall be included in the costs described in this
Subparagraph 10.1.3 for each particular year;
10.1.4 Any parking charges or other costs levied,
assessed or imposed by, or at the direction of, or resulting
from statutes or regulations, or interpretations thereof,
promulgated by any governmental authority or
14
insurer in connection with the use or occupancy of the
Premises or the common areas of the Building;
10.1.5 Any reasonable property management fees and
administrative costs, including, but not limited to, the cost
of compensation (including employment taxes and fringe
benefits) of all persons who perform regular and recurring
duties connected with the management, operation, maintenance
and repair of the Building, the Lot, and/or the Premises,
their equipment, parking facilities and the common areas;
10.1.6 Costs of any energy management system but only
if Landlord reasonably determines that the annual cost savings
resulting from such energy management system shall exceed the
annual amortization thereof, and if Landlord makes such
reasonable determination, then the annual amortization (i.e.,
over its useful life determined in accordance with generally
accepted accounting principles, or in the absence of a
controlling GAAP principle, over a useful life reasonably
determined by Landlord) of the cost of such system, with
interest at the prime rate (as published in The Wall Street
Journal), shall be included in the costs described in this
Subparagraph 10.1.6 for each particular year;
10.1.7 Any capital expenditure made by Landlord in
compliance with the requirements of any federal, state, or
local law or governmental regulation enacted or promulgated
after the date of this Lease; provided, however, that only the
annual amortization (i.e., over its useful life determined in
accordance with generally accepted accounting principles, or
in the absence of a controlling GAAP principle, over a useful
life reasonably determined by Landlord) of the cost of such
expenditure, with interest at the prime rate (as published in
The Wall Street Journal), shall be included in the costs
described in this Subparagraph 10.1.7 for each particular
year;
10.1.8 The costs allocated to the Building and Lot
pursuant to the "Forge Park Covenants and Restrictions"
attached hereto as Exhibit C for insurance, road, sidewalk and
landscape maintenance for the development known as Forge Park,
including, without limitation, snowplowing and landscaping,
roadway, utility, lighting and drainage maintenance and
operational costs, any costs incurred to supplement the Town
of Franklin's maintenance of public roadways located within
Forge Park, and reasonable management fees associated with the
foregoing.
15
10.2 Monthly Payments. Upon the commencement of this Lease,
Landlord shall submit to Tenant an estimate of monthly Adjustments for
the period between the Lease Commencement Date and the following
January 1, and Tenant shall pay these estimated Adjustments as
additional rent ("Additional Rent") on a monthly basis concurrently
with the payment of the Rent. Tenant shall continue to make such
monthly payments for every month of the term until notified by Landlord
of any change therein. By March 1 of each year, Landlord shall provide
to Tenant a statement showing the total Adjustments for the prior
calendar year and Tenant's allocable share thereof, prorated from the
Lease Commencement Date of this Lease during the first year. If the
total monthly payments which Tenant has made for the prior calendar
year (or portion thereof during which this Lease was in effect) is less
than the Tenant's actual share of such Adjustments, then Tenant shall
pay the difference in a lump sum within twenty (20) days after receipt
of such statement from Landlord. Any overpayment by Tenant shall be
credited towards the Adjustments next due. The actual Adjustments for
the prior year shall be used for purposes of calculating the estimated
monthly Adjustments for the current year with actual determination of
such Adjustments occurring after the end of each calendar year, except
that in any year in which resurfacing of the common parking area or
major roof repairs are planned, Landlord may include the estimated cost
of such work in the estimated monthly Adjustments. Even though the term
of this Lease has expired and Tenant has vacated the Premises, when the
final determination is made of Adjustments for the year in which this
Lease terminates, Tenant shall promptly pay any increase over the
estimated Adjustments previously paid and, conversely, any overpayment
shall be promptly returned by Landlord to Tenant. Failure of Landlord
to submit statements as called for herein shall not be deemed a waiver
of Tenant's obligation to pay Adjustments as herein provided.
10.3 Further Adjustment. In the event that the average
occupancy level of the Building for any year is not ninety percent
(90%) or more of full occupancy, then the actual cost for the
Adjustment Items for such year shall be apportioned among the tenants
of the Building by Landlord to reflect those costs which would have
occurred had the Building been ninety percent (90%) occupied during
such year, provided that only those components (e.g., water expenses)
of the Adjustment Items that vary with changes in the occupancy level
of the Building shall be affected by this Section 10.3.
11. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be paid,
before delinquency any and all taxes levied or assessed and which become payable
during the term of this Lease upon all Tenant's leasehold improvements,
equipment, furniture, fixtures, and any other trade fixtures and personal
property located on the Premises. In the event any or all of Tenant's leasehold
improvements, equipment, furniture, fixtures, and any other personal property
and trade fixtures shall be assessed
16
and taxed with Property Taxes, Tenant shall pay to Landlord its share of such
taxes within twenty (20) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's property.
12. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of commercial general
liability insurance including personal injury liability, contractual liability,
products and completed operations liability, insuring Landlord and Tenant
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises. Such insurance shall be in the amount of not less
than Five Million and no/100ths Dollars ($5,000,000.00) for bodily injury and
property damage for any one accident or occurrence; provided that the products
liability component thereof shall be in an amount of not less than $2,000,000.
Fire legal liability insurance in an amount of not less than Fifty Thousand and
no/100ths Dollars ($50,000.00) shall also be obtained and kept in force during
the term of this Lease at Tenant's expense. The limit of any of such insurance
shall not limit the liability of Tenant hereunder. Tenant may provide this
insurance under a blanket policy, provided that such insurance shall have a
landlord's protective liability endorsement specifically describing the
Premises. If Tenant fails to procure and maintain such insurance, Landlord may,
but shall not be required to, procure and maintain the same, at Tenant's expense
to be reimbursed by Tenant within twenty (20) days of written demand. All
insurance required to be obtained by Tenant hereunder shall be issued by
companies reasonably acceptable to Landlord. Prior to the Lease Commencement
Date, Tenant shall deliver to Landlord certified copies of policies or, at
Landlord's discretion, certificates of liability insurance required herein with
loss payable clauses satisfactory to Landlord. Any deductible under such
insurance policy in excess of Two Thousand Five Hundred and no/100ths Dollars
($2,500.00) must be approved by Landlord in writing prior to issuance of such
policy. No policy shall be cancelable or subject to reduction of coverage except
upon thirty (30) days' prior written notice to Landlord. All such policies shall
name Landlord and its agents as named insureds, shall be written as primary
policies not contributing with and not in excess of coverage which Landlord may
carry, and shall be written with an insurance carrier reasonably satisfactory to
Landlord. From time to time, as Landlord deems necessary, the insurance coverage
and limits of such coverage required hereunder will be reviewed by Landlord, and
Tenant will be notified of any revisions or increases thereto reasonably
required by Landlord. Tenant shall obtain any revised or increased coverage
required by Landlord within thirty (30) days of any such notification from
Landlord.
13. FIRE INSURANCE - FIXTURES AND EQUIPMENT. Tenant shall maintain in
full force and effect on all trade fixtures and equipment and other personal
property on the Premises, a policy of all risk property insurance covering the
full replacement value of such property. During the term of this Lease, the
proceeds from any such policy of insurance shall be used for the repair or
replacement of the fixtures and equipment so insured. Landlord shall have no
interest in the insurance upon
17
Tenant's equipment and fixtures and will sign all documents reasonably necessary
or proper in connection with the settlement of any claim or loss by Tenant.
Landlord will not carry insurance on Tenant's possessions. Tenant shall furnish
Landlord with certificate of insurance evidencing that the requirements set
forth herein are in full force and effect. Any deductible in excess of Two
Thousand Five Hundred and no/100ths Dollars ($2,500.00) under such insurance
must be approved in writing by Landlord prior to issuance of such policy. Within
twenty (20) days of Landlord's demand, Tenant shall provide Landlord, at
Tenant's expense, with such increased amount of existing insurance, and such
other insurance as Landlord or Landlord's lender may reasonably require to
afford Landlord and Landlord's lender adequate protection. Tenant shall promptly
provide Landlord with notice of loss or damage to property after such loss or
damage occurs. Tenant shall provide and keep in force with companies reasonably
satisfactory to Landlord, business interruption and/or loss of rental insurance
in an amount equivalent to twelve (12) months Rent and Additional Rent which
shall not contain a deductible greater than One Thousand and no/100ths Dollars
($1,000.00). Tenant shall furnish Landlord with certificate of such insurance
naming Landlord as an additional insured. No policy shall be cancelable or
subject to reduction of coverage except upon thirty (30) days' prior written
notice to Landlord.
14. DESTRUCTION AND DAMAGE.
14.1 Casualty Damage - Insured. If the Building is damaged by
fire or other perils covered by extended coverage insurance the
following provisions shall apply:
14.1.1 Total Destruction. In the event of total
destruction of the Building or the Premises, Landlord shall
elect either to promptly commence repair and restoration of
the destroyed area and prosecute the same diligently to
completion, in which event this Lease shall remain in full
force and effect, or not to repair or restore the destroyed
area, in which event this Lease shall terminate. In either
case, Landlord shall give Tenant written notice of its
intention within sixty (60) days after the occurrence of such
destruction. If Landlord elects not to restore the destroyed
area under this Section 14.1.1, this Lease shall be deemed to
have terminated as of the date of such total destruction.
14.1.2 Partial Destruction. In the event of a partial
destruction of the Building to an extent not exceeding twenty-five
percent (25%) of the full insurable value thereof and if the damage
thereto is such that the Building may be repaired or restored within
ninety (90) days from the date of such destruction and Landlord will
receive insurance proceeds sufficient to cover the cost of such
repairs, Landlord shall use reasonable efforts to promptly commence and
proceed diligently with the work of repair and restoration, in which
event the
18
Lease shall continue in full force and effect; or if such repair and
restoration requires longer than ninety (90) days or the cost thereof
exceeds twenty-five percent (25%) of the full insurable value thereof
or if the insurance proceeds payable to Landlord will not be sufficient
to cover such cost, Landlord may elect either to so repair and restore,
in which event the Lease shall continue in full force and effect, or
not to repair, reconstruct or restore, in which event the Lease shall
terminate. In either case, Landlord shall give written notice to Tenant
of its intention within sixty (60) days after the destruction occurs.
If Landlord elects not to restore the Building, this Lease shall be
deemed to have terminated as of the date of such partial destruction.
14.2 Release. Upon any termination of this Lease under any of
the provisions of this article, the parties shall be released thereby
without further obligation to the other from the date of the damage or
destruction, except for items which have theretofore accrued and are
then unpaid.
14.3 Rent Abatement. In the event of repair and restoration as
herein provided, the monthly installments of Rent and Additional Rent
shall be abated proportionately in the ratio which the Tenant's use of
the Premises is impaired during the period of such repair,
reconstruction or restoration; provided, however, if the damage is due,
directly or indirectly, to the fault or neglect of Tenant, or its
officers, contractors, licensees, agents, servants, employees, guests,
invitees or visitors, there shall be no abatement of Rent, except to
the extent Landlord receives proceeds from any applicable insurance
policy of Tenant to compensate Landlord for loss of Rent. Except to the
extent of the rent abatement referred to above in this Section 14.3,
Tenant shall not be entitled to any compensation or damages for loss of
use of the whole or any part of said Premises and/or any inconvenience
or annoyance occasioned by such damage, repair, reconstruction or
restoration.
14.4 Delay. Tenant shall not be released from any of its
obligations under this Lease except to the extent and upon the
conditions expressly stated in this article. Notwithstanding anything
to the contrary contained in this article, if Landlord has elected to
repair and restore the Premises and is thereafter delayed or prevented
from repairing or restoring the Premises within nine (9) months after
the occurrence of such damage or destruction by reason of acts of God,
war, governmental restrictions, inability to procure the necessary
labor or materials, or other cause beyond the control of Landlord,
Landlord, at Landlord's option, shall be relieved of its obligation to
make such repairs or restoration and, if Landlord exercises such
option, Tenant shall be released from its obligations under this Lease
that first arise or accrue after the end of such nine (9) month period.
19
14.5 Uninsured Damage. If damage to the Building or the
Premises is due to any cause other than fire or other peril covered by
extended coverage insurance, Landlord may elect to terminate this
Lease.
14.6 Repair Obligation. If Landlord is obligated to or elects
to repair or restore as herein provided, Landlord shall repair or
restore only those portions of the Building and Premises which were
originally provided at Landlord's expense; and the repair and
restoration of areas or items not provided at Landlord's expense shall
be the obligation of Tenant.
14.7 End of Term. Notwithstanding anything to the contrary
contained in this article, Landlord may elect to terminate this Lease
in the event of damage to the Building or the Premises occurring during
the last (12) months of the Lease or any extension thereof; and
Landlord shall not have any obligation to repair or restore the
Premises or the Building during the last twelve (12) months of this
Lease or any extension thereof. Upon such termination Tenant shall be
released of its obligations under this Lease that first arise or accrue
after the date of such termination.
15. ALTERATIONS AND ADDITIONS: REMOVAL OF FIXTURES. Tenant shall not make
or allow to be made any alterations, additions or improvements to or on the
Premises without first obtaining the written consent of Landlord; provided,
however, that, subject to Landlord's receipt and approval of final plans and
specifications therefor, Landlord shall not unreasonably withhold or delay its
consent to any items of the Tenant Initial Improvements or other alterations,
additions or improvements that will not adversely affect the Building structure
or any Building systems. Any such alterations, additions or improvements made,
including, but not limited to, wall covering, paneling and built-in cabinet
work, but excepting movable furniture and trade fixtures, shall be made at
Tenant's sole expense, according to plans and specifications approved in writing
by Landlord (which approval shall be subject to the prior sentence), in
compliance with all applicable laws, by a licensed contractor, and in a good and
workmanlike manner conforming in quality and design with the Premises existing
as of the Lease Commencement Date and the Forge Park Covenants and Restrictions
set forth in Exhibit C, shall not diminish the value of the Building or the
Premises and shall at once become a part of the realty and shall be surrendered
with the Premises. Without limiting the generality of the immediately prior
sentence, in making the Tenant Initial Improvements and any subsequent
alterations or additions to the Premises, Tenant shall be solely responsible to
make, at Tenant's sole cost and expense, all alterations, improvements and/or
additions to the Premises required by the Americans With Disabilities Act and
all regulations promulgated thereunder (collectively, the "ADA"); it being
understood, however, that Tenant may use a portion of the Construction Costs Cap
described in Section 4.1 for the alterations, etc. required under the ADA in
connection with the Tenant Initial Improvements and/or Tenant's initial
20
operations at the Premises. Upon the expiration or sooner termination of the
term hereof, Tenant shall, upon written demand by Landlord, at Tenant's sole
expense, with due diligence, remove any alterations, additions, or improvements
made by Tenant, designated by Landlord to be removed, and repair any damage to
the Premises caused by such removal. Tenant shall remove all of its movable
property and trade fixtures which can be removed without damage to the Premises
at the termination of this Lease, either by expiration of the term or other
cause, and shall pay Landlord any damages for injury to the Premises or Building
resulting from such removal. If Tenant shall fail to remove any of its property
of any nature whatsoever from the Premises or the Building at the termination of
th is Lease or when Landlord has the right of reentry, Landlord may, in
accordance with the provisions of applicable statutes governing commercial
landlord and tenant matters, remove and store such property without liability
for loss thereof or damage thereto, such storage to be for the account and at
the expense of Tenant. If Tenant shall not pay the cost of storing any such
property after it has been stored for a period of thirty (30) days or more,
Landlord may, at its option, sell, or permit to be sold, any or all such
property at public or private sale, in such manner and at such times and places
as Landlord, in its sole discretion, may deem proper, without notice to Tenant,
unless notice is required under applicable statutes, and shall apply the
proceeds of such sale: first, to the cost and expense of such sale, including
reasonable attorneys' fees actually incurred; second, to the payment of the
costs or charges for storing any such property; third, to the payment of any
other sums of money which may then be or thereafter become due Landlord from
Tenant under any of the terms hereof; and fourth, the balance, if any, to
Tenant.
16. ACCEPTANCE OF PREMISES. Tenant shall be deemed to have accepted the
Premises on the date that Landlord permits Tenant to access the Premises under
Section 2.4 in their "as is" condition, without any obligation by Landlord to
construct any improvements or alterations or perform any work therein.
17. INTENTIONALLY OMITTED
18. ACCESS. Tenant shall permit Landlord and its agents to enter the
Premises at all reasonable times and upon reasonable notice (except in the case
of emergency, when no notice shall be required) to inspect the same; to show the
Premises to prospective tenants, or interested parties such as prospective
lenders and purchasers; to clean, repair, alter or improve the Premises or the
Building; to discharge Tenant's obligations when Tenant has failed to do so
within a reasonable time after written notice from Landlord; to post notices of
nonresponsibility and similar notices and "For Sale" signs; and to place "For
Lease" signs upon or adjacent to the Building or the Premises (which signage
does not interfere with Tenant's signage or operations at the Premises) at any
time within seven (7) months of the expiration of the term of this Lease. Tenant
shall permit Landlord and its agents to enter the Premises at any time in the
event of an emergency. When reasonably necessary, Landlord may temporarily
21
close entrances, doors, corridors, elevators or other facilities without
liability to Tenant by reason of such closure and without such action by
Landlord being construed as an eviction of Tenant or a release of Tenant from
the duty of observing and performing any of the provisions of this Lease;
provided that Landlord shall use reasonable efforts to minimize the period of
such closure.
19. WAIVER OF SUBROGATION. Whether the loss or damage is due to the
negligence of Tenant or Tenant's agents or employees, or any other cause, Tenant
hereby releases Landlord and Landlord's agents and employees from responsibility
for and waives its entire claim of recovery for (i) any loss or damage to the
real or personal property of Tenant located in the Building, including the
Building itself, arising out of any of the perils which are covered by Tenant's
property insurance policy, with extended coverage endorsements, or (ii) loss
resulting from business interruption or loss of rental income, at the Premises,
arising out of any of the perils which may be covered by the business
interruption or by the loss of rental income insurance policy held by Tenant.
Tenant shall cause its insurance carrier(s) to consent to such waiver of all
rights of subrogation against Landlord. Upon Landlord's request Tenant shall
provide Landlord a copy of any such insurance policies evidencing Tenant's
waiver of subrogation rights against Landlord.
20. INDEMNIFICATION. Tenant shall indemnify and hold harmless Landlord,
its agents, employees, officers, directors, partners and shareholders from and
against any and all liabilities, judgments, demands, causes of action, claims,
losses, damages, costs and expenses, including reasonable attorneys' fees and
costs, arising out of the use, occupancy, conduct, operation, or management of
the Premises by, or the willful misconduct or negligence of, Tenant, its
officers, contractors, licensees, agents, servants, employees, guests, invitees,
or visitors in or about the Building or arising from any breach or default under
this Lease by Tenant, or arising from any accident, injury, or damage, howsoever
and by whomsoever caused, to any person or property, occurring in or about the
Building or Premises. This indemnification shall survive termination of this
Lease. This provision shall not be construed to make Tenant responsible for
loss, damage, liability or expense resulting from injuries to third parties to
the extent caused by the negligence of Landlord, or its officers, contractors,
licensees, agents, employees, or invitees.
21. ASSIGNMENT AND SUBLETTING.
21.1 Landlord's Consent. Tenant shall not assign this Lease,
or sublease all or any part of the Premises, or permit the use of the
Premises by any party other than Tenant, without the prior written
consent of Landlord, subject to the last two sentences of Section 21.2.
When Tenant requests Landlord's consent to such assignment or sublease,
it shall notify Landlord in writing of the name and address of the
proposed assignee or subtenant and the
22
nature and character of the business of the proposed assignee or
subtenant and shall provide financial information including financial
statements of the proposed assignee or subtenant. Tenant shall also
provide Landlord with a copy of the proposed sublet or assignment
agreement. Landlord shall have the option (to be exercised within
thirty (30) days from the submission of Tenant's request) to cancel
this Lease as of the commencement date stated in the proposed sublease
or assignment.
21.2 Criteria. In determining whether or not to grant its
consent to a proposed sublet or assignment, Landlord shall be entitled
to consider all reasonable criteria including, but not limited to, the
following: (i) whether or not the proposed subtenant or assignee is
engaged in a business which, and the use of the Premises will be in a
manner which, is in keeping with the then character and nature of all
other tenancies in the Building, (ii) the use to be made of the
Premises by the proposed subtenant or assignee does not conflict with
any so-called "exclusive" use then in favor of any other tenant of the
Building, and that such use would not be prohibited by any other
portion of this Lease, including, but not limited to, any rules and
regulations then in effect, or under applicable law, (iii) that the
proposed subtenant or assignee is a reputable party of reasonable
financial worth and stability in light of the responsibilities involved
and does not impose a greater load upon the Premises and the Building
services (such as elevator, janitorial and security services), then
imposed by Tenant, (iv) that the sublease or assignment agreement
requires payment of the rent and other amounts as required of Tenant
hereunder with respect to the space being subleased or assigned which
are in no event less than that being offered by Landlord for similar
space in the Building under leases then being negotiated, and (v) that
Tenant shall provide Landlord with reasonable proof of (i), (ii),
(iii), and (iv), and (vi) Tenant is not in default hereunder at the
time it makes its request for such consent or at the time the
assignment or sublet is to take effect. Subject to the other provisions
of this Article 21, including, without limitation, Landlord's
cancellation rights in Section 21.1 and Landlord's consideration of the
above criteria, Landlord shall not unreasonably withhold or delay its
consent to a request by Tenant to sublet the Premises. Notwithstanding
the foregoing, Landlord's consent shall not be required for a
subletting of the Premises to an entity that controls, is controlled
by, or is under common control with, Tenant (an "Affiliate Sublease").
Subject to the provisions of Section 21.3 below, Landlord shall not
unreasonably withhold or delay its consent to a request by Tenant to
assign this Lease to an entity (the "Assignee Entity") which results
from a merger or consolidation with Tenant or which purchases all of
Tenant's assets, provided that such Assignee Entity has a net worth
immediately after such merger, consolidation or acquisition that is at
least equal to or greater than the greater of (a) the net worth of
Tenant as of the date hereof or (b) the net worth of Tenant immediately
prior to the assignment of this Lease to the Assignee Entity.
23
21.3 Approved Subleases and Assignments. If Landlord approves
an assignment or sublease as herein provided, Tenant shall pay to
Landlord, as additional rent due under this Lease, fifty percent (50%)
of the excess, if any, of the rent and any additional rent payable by
the assignee or subtenant to Tenant over the Rent plus Additional Rent
allocable to that part of the Premises affected by such assignment of
sublease pursuant to the provisions of this Lease. No Affiliate
Sublease and no consent to any assignment or sublease shall constitute
a consent to a further subletting or assignment nor a further waiver of
the provisions of this section, and all subsequent assignments or
subleases shall be subject to the provisions of this Section 21. An
assignee of Tenant, at the option of Landlord, shall become directly
liable to Landlord for all obligations of Tenant hereunder, but no
sublease or assignment by Tenant shall relieve Tenant of any liability
hereunder. Except for an Affiliate Sublease, any assignment or sublease
without Landlord's consent shall be void, and shall, at the option of
the Landlord, constitute a default under this Lease. In the event that
Landlord shall consent to a sublease or assignment hereunder, Tenant
shall pay Landlord's reasonable legal fees, not to exceed Five Hundred
and no/100ths Dollars ($500.00) per transaction, incurred in connection
with the processing of documents necessary to the giving of such
consent.
22. ADVERTISING. Tenant shall not display any sign, graphics, notice,
picture, or poster, or any advertising matter whatsoever, anywhere in or about
the Premises or the Building at places visible from anywhere outside the
Building or at the entrance to the Premises without first obtaining Landlord's
written consent hereto, such consent to be at Landlord's sole discretion. Any
such consent by Landlord shall be upon the understanding and condition that
Tenant will maintain the sign in good condition and remove the same at Tenant's
expense upon the expiration or sooner termination of this Lease. Tenant shall
repair any damage to the Premises or the Building caused by such removal.
23. LIENS. Tenant shall keep the Premises and the Building free from any
liens arising out of any work performed, materials ordered or obligations
incurred by or on behalf of Tenant, and Tenant hereby agrees to indemnify and
hold Landlord, its agents, employees, independent contractors, officers,
directors, partners, and shareholders harmless from any liability, cost or
expense for such liens. Tenant shall cause any such lien imposed to be released
or record by payment or posting of the proper bond acceptable to Landlord within
twenty (20) days after the earlier of imposition of the lien or written request
by Landlord. Tenant shall give Landlord written notice of Tenant's intention to
perform work on the Premises which might result in any claim of lien, at least
ten (10) days prior to the commencement of such work to enable Landlord to post
and record a Notice of Nonresponsibility or other notice deemed proper before
commencement of any such work. If Tenant fails to remove any lien
24
within the prescribed twenty (20) day period, then Landlord may do so at
Tenant's expense and Tenant's reimbursement to Landlord for such amount shall be
deemed Additional Rent. Such reimbursement shall include all sums disbursed,
incurred or deposited by Landlord, including Landlord's costs, expenses and
reasonable attorneys' fees with interest thereon at the maximum rate of interest
permitted by law.
24. DEFAULT.
24.1 Tenant's Default. A default under this Lease by Tenant
shall exist if any of the following occurs:
24.1.1 If Tenant fails to pay Rent, Additional Rent
or any other sum required to be paid hereunder within five (5)
business days of when due; or
24.1.2 If Tenant fails to perform any term, covenant
or condition of this Lease except those requiring the payment
of money, and Tenant fails to cure such breach within thirty
(30) days after written notice from Landlord where such breach
could reasonably be cured within such thirty (30) day period;
provided, however, that where such failure could not
reasonably be cured within the thirty (30) day period, that
Tenant shall not be in default if it commences such
performance within the thirty (30) day period and diligently
thereafter prosecutes the same to completion; or
24.1.3 If Tenant makes a general assignment of its
assets for the benefit of its creditors; or
24.1.4 If the sequestration or attachment of or
execution on any material part of Tenant's personal property
essential to the conduct of Tenant's business occurs, and
Tenant fails to obtain a return or release of such personal
property within sixty (60) days thereafter, or prior to sale
pursuant to such sequestration, attachment or levy, whichever
is earlier; or
24.1.5 If Tenant fails to continuously or
uninterruptedly conduct its business in the Premises for
longer than thirty (30) consecutive business days through
Tenant's own fault, or Tenant shall have abandoned or vacated
the Premises (provided that such abandonment or vacation of
the Premises shall not be a default under this Lease so long
as Tenant is in compliance with all of the other terms and
provisions of this Lease); or
24.1.6 If a court makes or enters any decree or order
other than under the bankruptcy laws of the United States
adjudging Tenant to be
25
insolvent, or approving as properly filed a petition seeking
reorganization of Tenant, or directing the winding up or
liquidation of Tenant, and such decree or order shall have
continued for a period of sixty (60) days.
24.1.7 The chronic delinquency by Tenant in the
payment of monthly Rent, or any other periodic payments
required to be paid by Tenant under this Lease, shall
constitute a default. "Chronic delinquency" shall mean failure
by Tenant to pay Rent, or any other periodic payments required
to be paid by Tenant under this Lease within five (5) business
days after written notice thereof for any three (3) months
(consecutive or nonconsecutive) during any twelve (12) month
period. In the event of a chronic delinquency, at Landlord's
option, Landlord shall have the additional right to thereafter
require that two months of Rent be paid by Tenant, in advance.
24.2 Remedies. Upon a default which continues beyond the
expiration of any applicable cure periods, Landlord shall have the
following remedies, in addition to all other rights and remedies
provided by law or otherwise provided in this Lease, to which Landlord
may resort cumulatively or in the alternative:
24.2.1 Landlord may continue this Lease in full force
and effect, and this Lease shall continue in full force and
effect as long as Landlord does not terminate this Lease, and
Landlord shall have the right to collect Rent, Additional Rent
and other charges when due.
24.2.2 Landlord may terminate this Lease at any time
by either (i) giving written notice to that effect, or (ii) by
entering, without demand or notice, into and upon the Premises
(or any part thereof in the name of the whole), forcibly if
necessary, with the express purpose of repossessing the same
as of its former estate. On the giving of the notice or upon
such entry (and without prejudice to any remedies which might
otherwise be available for arrears of rent or other charges
due hereunder or preceding breach of covenant and without
prejudice to Tenant's liability for damages as hereinafter
stated), this Lease and all of Tenant's rights in the Premises
shall terminate. Upon such termination, Tenant shall surrender
and vacate the Premises in the condition required by Section
26, and Landlord may re-enter and take possession of the
Premises and eject Tenant or any of Tenant's subtenants,
assignees or other person or persons claiming any right under
or through Tenant or eject some and not others or eject none.
This Lease may also be terminated by a judgment specifically
providing for termination. Any termination under this section
shall not release Tenant from the payment of any sum then due
Landlord or from any claim for damages or Rent, Additional
Rent or other sum
26
previously accrued or then accruing against Tenant. Upon such
termination Tenant shall be liable immediately to Landlord for
all costs Landlord incurs in reletting the Premises or any
part thereof, including, without limitation, broker's
commissions, expenses of cleaning and constructing leasehold
improvements in the Premises required by the reletting and
like costs. Reletting may be for a period shorter or longer
than the remaining term of this Lease. Acts of maintenance,
efforts to relet the Premises or the appointment of a receiver
on Landlord's initiative to protect Landlord's interest under
this Lease shall not constitute a termination of Tenant's
right to possession. On termination, Landlord has the right to
remove all Tenant's personal property and store same at
Tenant's cost and to recover from Tenant as damages:
(a) The worth at the time of award of unpaid
Rent, Additional Rent and other sums due and payable
which had been earned at the time of termination;
plus
(b) The worth at the time of award of the
amount by which the unpaid Rent, Additional Rent and
other sums due and payable which would have been
payable after termination until the time of award
exceeds the amount of such rent loss that Tenant
proves could have been reasonably avoided; plus
(c) The worth at the time of award of the
amount by which the unpaid Rent, Additional Rent and
other sums due and payable for the balance or the
term after the time of award exceeds the amount of
such rent loss that Tenant proves could be reasonably
avoided; plus
(d) Any other amount necessary which is to
compensate Landlord for all the detriment proximately
caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which, in the
ordinary course of things, would be likely to result
therefrom including, without limitation, any costs or
expenses incurred by Landlord: (i) in retaking
possession of the Premises; (ii) in maintaining,
repairing, preserving, restoring, replacing,
cleaning, altering or rehabilitating the Premises or
any portion thereof, including such acts for
reletting to a new tenant or tenants; (iii) for
leasing commissions; or (iv) for any other costs
necessary or appropriate to relet the Premises.
The "worth at the time of award" of the amounts
referred to in Sections 24.2.2(a) and (b) is computed by
allowing interest at the
27
maximum interest rate allowed by law on the unpaid rent and
other sums due and payable from the termination date through
the date of award. The "worth at the time of award" of the
amount referred to in Section 24.2.2(c) is computed by
discounting such amount at the discount rate of the Federal
Reserve Bank of Boston at the time of award plus one percent
(1%). Tenant waives redemption or relief from forfeiture under
any present or future law, in the event Tenant is evicted or
Landlord takes possession of the Premises by reason of any
default of Tenant hereunder.
24.2.3 Tenant further covenants as additional and
cumulative obligations after any such termination to pay
punctually to Landlord all the sums and to perform all the
obligations which Tenant covenants in this Lease to pay and to
perform in the same manner and to the same extent and at the
same time as if the Lease had not been terminated. In
calculating the amount to be paid by Tenant pursuant to the
preceding sentence Tenant shall be credited with any amount
paid to Landlord under Section 24.2.2, and also with the net
proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all of Landlord's expenses in
connection with such reletting.
25. SUBORDINATION. Landlord represents that the Building and Lot are not
currently encumbered by a mortgage. Unless Landlord exercises the option set
forth below in this Section 25, this Lease shall be superior to and shall not be
subordinate to any mortgage or other voluntary lien on the Premises. By notice
to Tenant, which notice may be recorded by Landlord with the Norfolk Registry of
Deeds and/or the Norfolk Registry District of the Land Court, Landlord shall
have the option to unilaterally subordinate this Lease to the lien of any
mortgage, deed of trust, ground lease or underlying lease now or hereafter in
force against the Premises, and to all advances made or hereafter to be made
upon the security thereof; provided that such subordination by Landlord shall
not be effective unless Tenant receives an agreement from the holder of such
mortgage or deed of trust or the landlord of such lease or ground lease, in such
holder or landlord's customary form, not to disturb Tenant's possession of the
Premises so long as Tenant is not in default under this Lease. Tenant shall
execute and return to Landlord any subordination documents requested by Landlord
or Landlord's mortgagee or landlord within ten (10) business days of Landlord's
written request, it being understood, however, that Tenant's failure to so
execute and return such documents shall not affect Landlord's ability to so
subordinate this Lease.
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the Premises, Tenant shall attorn to the purchaser
at any such
28
foreclosure, or to the grantee of a deed in lieu of foreclosure, and recognize
such purchaser or grantee as the Landlord under this Lease.
26. SURRENDER OF POSSESSION. Upon expiration of the term of this Lease,
Tenant shall promptly and peacefully surrender the Premises to Landlord in as
good condition as when received by Tenant from Landlord or as thereafter
improved, reasonable use and wear and tear excepted, all to the reasonable
satisfaction of Landlord. If the Premises are not surrendered in accordance with
the terms of this Lease, Tenant shall indemnify Landlord and its agents,
employees, independent contractors, officers, directors, partners, and
shareholders against any loss or liability including reasonable attorneys' fees
and costs, and including liability to succeeding tenants, resulting from delay
by Tenant in so surrendering the Premises. This indemnification shall survive
termination of this Lease.
27. NON-WAIVER. Waiver by Landlord or Tenant of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition of this
Lease.
28. HOLDOVER. If Tenant shall, without the written consent of Landlord,
hold over after the expiration of the term of this Lease, such tenancy shall be
deemed a month-to-month tenancy, which tenancy may be terminated as provided by
applicable state law. During such tenancy, Tenant agrees to (a) pay to Landlord,
each month, one hundred seventy-five percent (175%) of the Rent and Additional
Rent payable by Tenant for the last month of the term of this Lease, (b) be
bound by all of the terms, covenants and conditions herein specified, so far as
applicable and (c) be liable to Landlord for any damages incurred by Landlord as
a result of such holdover.
29. CONDEMNATION.
29.1 Substantial Taking. If twenty percent (20%) or more of
the Premises or of such portions of the Building as may be required for the
reasonable use of the Premises, are taken by eminent domain or sale under threat
of condemnation by eminent domain, this Lease shall automatically terminate as
of the date title vests in the condemning authority, and all Rent, Additional
Rent, and other payments shall be paid to that date.
29.2 Partial Taking. In case of a taking of less than twenty
percent (20%) of the Premises that does not materially adversely
interfere with Tenant's operations, or a portion of the Building not
required for the reasonable use of the Premises, this Lease shall
continue in full force and effect, and the Rent shall be equitably
reduced based on the proportion by which the floor area of the Premises
is reduced, such reduction to be effective as of the date title to such
portion vests in the condemning authority.
29
29.3 Awards and Damages. Landlord reserves all rights to
damages to the Premises for any partial or entire taking by eminent
domain, and Tenant hereby assigns to Landlord any right Tenant may have
to such damages or award, and Tenant shall make no claim against
Landlord or the condemning authority for damages for termination of the
leasehold interest or interference with Tenant's business. Tenant shall
have the right to claim and recover from the condemning authority
compensation for any loss which Tenant may incur for Tenant's moving
expenses, business interruption or taking of Tenant's personal property
(not including Tenant's leasehold interest) and Tenant's trade
fixtures, provided that such damages may be claimed only if they are
awarded separately in the eminent domain proceedings and not out of or
as part of the damages recoverable by Landlord.
30. NOTICES. All notices and demands which may be required or permitted
to be given to either party hereunder shall be in writing, and shall be sent by
United States mail, postage prepaid to the addresses set out in Section 1.5, and
to such other person or place as each party may from time to time designate in a
notice to the other. Notice shall be deemed given upon the earlier of actual
receipt or seventy-two (72) hours after deposit in the United States mail,
postage prepaid.
31. MORTGAGE PROTECTION. Tenant agrees to give any mortgagee(s) and/or
trust deed holder(s), by registered mail, a copy of any notice of default served
upon the Landlord, provided that prior to such notice Tenant has been notified
in writing (by way of notice of assignment of rents and leases, or otherwise) of
the addresses of such mortgagee(s) and/or trust deed holder(s). Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the mortgagee(s) and/or trust deed holder(s)
shall have an additional thirty (30) days within which to cure such default or
if such default cannot be cured within that time, then such additional time as
may be necessary if within such thirty (30) days any mortgagee and/or trust deed
holder(s) has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so diligently pursued.
32. COSTS AND ATTORNEYS' FEES. If Tenant or Landlord shall bring any
action for any relief against the other, declaratory or otherwise, arising out
of this Lease, including any suit by Landlord for the recovery of Rent,
Additional Rent or other payments hereunder, or possession of the Premises, the
losing party shall pay the prevailing party a reasonable sum for attorneys' fees
in such suit, at trial and on appeal, and such attorneys' fees shall be deemed
to have accrued on the commencement of such action.
30
33. BROKERS. Tenant represents and warrants to Landlord that neither it
nor its officers or agents nor anyone acting on its behalf has dealt with any
real estate broker other than Fallon, Hines & O'Connor, Inc. and Peter Elliot
LLC in the negotiating or making of this Lease, and Tenant agrees to indemnify
and hold Landlord, its agents (including National Development Asset Management
of New England Limited Partnership), employees, partners, directors,
shareholders and independent contractors harmless from all liabilities, costs,
demands, judgments, settlements, claims, and losses, including reasonable
attorneys' fees and costs, incurred by Landlord in conjunction with any such
claim or claims of any other broker or brokers claiming to have interested
Tenant in the Building or Premises or claiming to have caused Tenant to enter
into this Lease.
34. LANDLORD'S LIABILITY. Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the part
of Landlord are made and intended not for the purpose of binding Landlord
personally or the assets of Landlord but are made and intended to bind only the
Landlord's interest in the Premises and Building, as the same may, from time to
time, be encumbered and no personal liability shall at any time be asserted or
enforceable against Landlord or its stockholders, officers or partners or their
respective heirs, legal representatives, successors and assigns on account of
the Lease or on account of any covenant, undertaking or agreement of Landlord in
this Lease contained.
35. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, within twenty
(20) days of Landlord's written request, execute, acknowledge and deliver to
Landlord or its designee a written statement stating: the date this Lease was
executed and the date it expires; the date Tenant entered into occupancy of the
Premises; the amount of Rent, Additional Rent and other charges due hereunder
and the date to which such amounts have been paid; that this Lease is in full
force and effect and has not been assigned, modified, supplemented or amended in
any way (or specifying the date and terms of any agreement so affecting this
Lease); that this Lease represents the entire agreement between the parties as
to this leasing; that all conditions under this Lease to be performed by
Landlord have been satisfied (or specifying any such conditions that have not
been satisfied); that all required contributions by Landlord to Tenant on
account of Tenant's improvements have been received (or specifying any such
contributions that have not been received); that on this date there are no
existing defenses or offsets which Tenant has against the enforcement of this
Lease by Landlord; that no Rent has been paid more than one (1) month in
advance; that no security has been deposited with Landlord (or, if so, the
amount thereof); or any other matters evidencing the status of the Lease, as may
be required either by a lender making a loan to Landlord to be secured by a deed
of trust or mortgage against the Building, or a purchaser of the Building. It is
intended that any such statement delivered pursuant to this paragraph may be
relied upon by a prospective purchaser of Landlord's interest or a mortgagee of
Landlord's interest or assignee of any mortgage
31
upon Landlord's interest in the Building. If Tenant fails to respond within
twenty (20) days of receipt by Tenant of a written request by Landlord as herein
provided, Tenant shall be deemed to have given such certificate as above
provided without modification and shall be deemed to have admitted the accuracy
of any information supplied by Landlord to a prospective purchaser or mortgagee.
36. FINANCIAL STATEMENTS. Within twenty (20) days after Landlord's
request, which request may be made from time to time throughout the Lease Term,
Tenant shall deliver to Landlord the then most current annual and quarterly
financial statements of PLC Systems, Inc., the Guarantor of Tenant's obligations
under this Lease, that PLC Systems, Inc. is required to file with the Securities
and Exchange Commission.
37. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer(s) of
Landlord's interest in the Premises or the Building, other than a transfer for
security purposes only, the transferor shall be automatically relieved of any
and all obligations and liabilities on the part of Landlord accruing from and
after the date of such transfer, and Tenant agrees to attorn to the transferee.
38. RIGHT TO PERFORM. If Tenant shall fail to pay any sum of money, other
than Rent and Additional Rent, required to be paid by it hereunder or shall fail
to perform any other act on its part to be performed hereunder, and such failure
shall continue for ten (10) business days, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any obligations
of Tenant, make any such payment or perform any such other act on Tenant's part
to be made or performed as provided in this Lease. Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of the nonpayment of sums due under this Section as in the case of
default by Tenant in the payment of Rent. All sums paid by Landlord and all
penalties, interest and costs in connection therewith, shall be due and payable
by Tenant on the next day after such payment by Landlord, together with interest
thereon at the maximum rate of interest permitted by law from such date to the
date of payment thereof, by Tenant to Landlord, plus collection costs and
attorneys' fees.
39. INTENTIONALLY OMITTED
40. SALES AND AUCTIONS. Tenant may not display or sell merchandise
outside the exterior walls and doorways of the Premises and may not use such
areas for storage, except that, subject to Tenant obtaining any municipal
approvals that may be required for the same, Tenant shall be permitted to
utilize storage trailers at the rear of the Premises at the loading docks that
exclusively serve the Premises. Tenant further agrees not to install any
exterior lighting, amplifiers or similar devices or use in or about the Premises
an advertising medium which may be heard or seen outside the
32
Premises, such as flashing lights, searchlights, loudspeakers, phonographs or
radio broadcasts. Tenant shall not conduct or permit to be conducted any sale by
auction in, upon or from the Premises whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or pursuant
to any bankruptcy or other insolvency proceeding.
41. NO ACCESS TO ROOF. Tenant shall have no right of access to the roof
of the Premises or the Building and shall not install, repair or replace any
aerial, fan, air conditioner or other device on the roof of the Building without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Any aerial, fan, air conditioner or device installed with
such written consent shall be maintained by Tenant in good condition and shall
be subject to removal by Landlord, at Tenant's expense, without notice, at any
time. Tenant shall also be responsible for reimbursing Landlord for any repairs
and restoration to the roof or Building resulting from the installation or
removal of such items on the roof.
42. SECURITY. Tenant hereby agrees to the exercise by Landlord and its
agents and employees, within their reasonable discretion and to the extent in
accordance with law, of such security measures as, but not limited to, the
search of all persons entering or leaving the Building, the evacuation of the
Building for cause, suspected cause or for drill purposes, the denial of any
access to the Building and other similarly related actions that it deems
necessary to prevent any threat of property damage or bodily injury. The
exercise of such security measures by Landlord, its beneficiaries and their
agents and employees, and the resulting interruption of service and cessation of
Tenant's business, if any, shall not be deemed an eviction or disturbance of
Tenant's use and possession of the Premises, or any part thereof, or render
Landlord, its beneficiaries and their agents and employees, liable to Tenant for
any resulting damages or relieve Tenant from Tenant's obligations under this
Lease.
43. AUTHORITY OF TENANT. If Tenant is a corporation or partnership, each
individual executing this Lease on behalf of said corporation or partnership
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation or partnership, and that this Lease is
binding upon said corporation or partnership.
44. NO ACCORD OR SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent and other sums due hereunder
shall be deemed to be other than on account of the earliest rent or other sums
due, nor shall any endorsement or statement on any check or accompanying any
check or payment 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 other sum or pursue any other remedy provided in this
Lease.
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45. MODIFICATIONS FOR LENDER. If in connection with obtaining financing
for the Building or any portion thereof, Landlord's lender shall request
reasonable modifications to this Lease as a condition to such financing, Tenant
shall not unreasonably withhold, delay, or defer its consent to such
modification provided such modifications do not materially adversely affect
Tenant's rights hereunder.
46. PARKING. Tenant shall have the right to use Tenant's Percentage Share
of the parking spaces in common with other tenants of the Building upon such
terms and conditions, including, the imposition of a reasonable parking charge,
if the same is established by Landlord at any time during the term of this
Lease. Tenant agrees not to overburden the parking facilities and agrees to
cooperate with Landlord and other tenants in use of the parking facilities.
Landlord reserves the right in its
absolute discretion to determine whether the parking facilities are becoming
overburdened and to allocate and assign parking spaces among Tenant and other
tenants, and to reconfigure the parking area and modify the existing ingress to
and egress from the parking area as Landlord shall deem appropriate; provided,
however, that Landlord shall not reduce (other than due to temporary conditions)
the number of spaces currently on the Lot below the number required under the
Zoning By-law of the Town of Franklin.
47. EXTERIOR SIGNS. Tenant shall place no signs in the common areas or
upon the outside walls or roof of the Building or elsewhere on the Premises
except with the prior written consent of the Landlord. Subject to Landlord's
approval of the actual style and dimensions of the same and to the compliance of
such sign with the Zoning By-law of the Town of Franklin, Tenant shall have the
right to install, at Tenant's sole cost and expense, one "in ground" sign in the
front of the Building at a location to be designated by Landlord. Any and all
signs placed on or about the Premises or the Lot by Tenant shall comply with
Landlord's rules and regulations governing such signs, and all governmental laws
and Tenant shall be responsible to Landlord for any damage caused by
installation, use, or maintenance of such signs. Tenant shall remove any of its
signs upon the termination of this Lease and repair any damage caused by the
sign installation or removal and, if Tenant fails to do so, Landlord shall have
the right to remove the signs and make such repairs at Tenant's expense.
Landlord shall also list Tenant's name on the marquee sign at the entrance to
the Lot in a style similar to other tenants of the Building.
48. FORGE PARK COVENANTS AND RESTRICTIONS; RULES AND REGULATIONS. Tenant
agrees to comply with the Forge Park Covenants and Restrictions set forth in
Exhibit C.
Tenant agrees to comply with such reasonable rules and regulations as
Landlord may adopt from time to time for the orderly and proper operation of the
Building and parking and other common areas. Such rules may include but shall
not be limited to
34
the following: (1) the restricting of employee parking to a limited, designated
area or areas; and (2) regulation of the removal, storage and disposal of
Tenant's refuse and other rubbish at the sole cost and expense of Tenant. The
rules and regulations shall be binding upon Tenant upon delivery of a copy of
them to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any of said rules and regulations by any other tenants or
occupants of the Building.
49. GENERAL PROVISIONS.
49.1 Acceptance. This Lease shall only become effective and
binding upon full execution hereof by Landlord and delivery of a signed
copy to Tenant.
49.2 Joint Obligation. If there be more than one Tenant, the
obligations hereunder imposed shall be joint and several.
49.3 Marginal Headings, Etc. The marginal headings, Table of
Contents, lease summary sheet and titles to the articles of this Lease
are not a part of the Lease and shall have no effect upon the
construction or interpretation of any part hereof.
49.4 Choice of Law. This Lease shall be governed by and
construed in accordance with the laws of the state in which the
Premises are located.
49.5 Successors and Assigns. The covenants and conditions
herein contained, subject to the provisions as to assignment, inure to
and bind the heirs, successors, executors, administrators and assigns
of the parties hereto.
49.6 Recordation. Neither Landlord nor Tenant shall record
this Lease, but a short-form memorandum hereof may be recorded at the
request of Landlord.
49.7 Quiet Possession. Upon Tenant's paying the rent reserved
hereunder and observing and performing all of the covenants, conditions
and provisions on Tenant's part to be observed and performed hereunder,
Tenant shall have quiet possession of the Premises for the entire term
hereof, subject to all the provisions of this Lease.
49.8 Inability to Perform. This Lease and the obligations of
the Tenant hereunder shall not be affected or impaired because the
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, labor troubles, acts of God, or any other cause beyond the
reasonable control of the Landlord.
35
49.9 Partial Invalidity. Any provision of this Lease which
shall prove to be invalid, void, or illegal shall in no way affect,
impair or invalidate any other provision hereof and such other
provision(s) shall remain in full force and effect.
49.10 Cumulative Remedies. No remedy or election hereunder
shall be deemed exclusive but shall, whenever possible, be cumulative
with all other remedies at law or in equity.
49.11 Entire Agreement. This Lease contains the entire
agreement of the parties hereto and supersedes any previous
representations, inducements, promises or agreements, oral or
otherwise, between the parties. Any amendment to this Lease shall be
effective only if evidenced by a written instrument executed by the
parties.
49.12 Exhibits. All exhibits and addenda attached hereto are
incorporated herein by this reference.
50. TENANT'S RIGHT OF SECOND OFFER TO LEASE SPACE IN BUILDING. Provided
that Tenant is not in default beyond the expiration of applicable cure periods
under this Lease at the time that "Landlord's Notice" (defined herein) is given
and provided that the original Tenant hereunder is then in occupancy of the
entire Premises, in the event that after July 1, 1996 Landlord desires to lease
space in the building to third parties, Landlord shall, prior to marketing such
space and after the expiration of the rights of Extraction Systems, Inc. and/or
CARR Separations, Inc., (or their assignees) to lease such space, give Tenant
notice ("Landlord's Notice") of the availability of such space and the terms and
conditions on which Landlord is willing to lease such space; it being understood
an agreed that Tenant's rights to lease such space shall be subordinate to the
rights of Extraction Systems, Inc. and CARR Separations, Inc. to lease such
space. If (a) Tenant shall not give Landlord notice of Tenant's desire to lease
such space within five (5) business days after Landlord's Notice or (b) the
parties shall not execute and deliver an amendment to this Lease adding such
space to the Premises in a mutually acceptable form within thirty (30) days
after Tenant gives such notice, Landlord shall be free to lease such space to
any other party at any time and from time-to-time thereafter.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands
and seals the day and year first above written.
LANDLORD:
Attest: AETNA LIFE INSURANCE COMPANY
36
By
- ------------------------ --------------------------
Its
-----------------------
TENANT:
Attest: PLC MEDICAL SYSTEMS, INC.
By
- -------------------------- --------------------------
Its
-----------------------
223905
37
EXHIBIT A
PLAN OF THE PREMISES
(to be attached)
EXHIBIT B
LEGAL DESCRIPTION OF THE LOT
(to be attached)
EXHIBIT C
Attach Forge Park Covenants and Restrictions
EXHIBIT D
[Attach List of Tenant's Hazardous Materials]