LEASE
This is a Lease in which Landlord and Tenant are the parties named below,
and which relates to office spare located at Playhouse Square, Wellesley,
Massachusetts as more fully described below.
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS AND EXHIBITS
1.1 INTRODUCTION. The following sections of this Article set forth
definitions and basic data, and list Exhibits. Each reference in this Lease to
any of the titles or terms contained in this Article I shall be construed to
incorporate the definitions or data stated under that title or term.
1.2 DEFINITIONS AND BASIC DATA.
Date of Lease: April 30, 1998.
Commencement Date: May 1, 1998.
Landlord: Wellplay Associates Limited Partnership,
which holds tide to the Center,
hereinafter defined, through Playhouse
Nominee Trust
Landlord's Mailing Address: c/o FIC Management Incorporated
380 Washington Street
Wellesley, MA 02181
Tenant: Direct Hit Technologies Inc.
Tenant's Mailing Address: Prior to Commencement Date:
58 Donizetti Street
Wellesley, MA 02181
After Commencement Date:
386 Washington Street
Wellesley, MA 02181
Rentable Area: Approximately 2,285 rentable square
feet which figure includes a common area
factor.
Leased Premises/Premises: The space known as 386 Washington Street,
Second Floor, Suite I
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shown as Office Space 1 on Exhibit B and
labeled the "LEASED PREMISES". The
building in which the Leased Premises is
located is called the "Building" and the
center in which it is located is called
the "Center". The street address of the
Leased Premises is 386 Washington Street,
Wellesley, Massachusetts 02181.
Lease Term: Forty -two (42) calendar months
following, the Commencement Date ending
on October 31, 2001.
Minimum Rent: $45,700.00 per year ($3,808.33 per
month).
Pro Rata Share: 7.7%
Additional Rent: Includes all sums (except Minimum
Rent) payable by Tenant to Landlord under
this Lease.
Security Deposit: Three months' Minimum Rent and
Additional Rent which amount initially
shall be $11,425.00 (based on only the
minimum Rent) and shall be adjusted from
time to time during, the Term to reflect
any increases in Minimum Rent and
Additional Rent.
Permitted Use: For general office use, and for no
other purpose.
Tenant's Required Liability $3,000,000 for injuries suffered in any
Insurance: (See Section 9.4.) one accident
$1,000,000 for injuries suffered by any
one person
$500,000 for injuries to property
Broker (See Section 18.6): Equity Partners, Inc.
Initial Payment: The first month's Minimum Rent of
$3,808.33 plus the Security Deposit of
$11,425.00, less $1,500.00 which has
already been received by Landlord such
that a total of $13,733.33 shall be
paid by Tenant at Lease signing.
1.3 EXHIBITS. The following Exhibits, which are attached to this Lease, are
a part of this Lease and are incorporated in it by this reference. Agreements or
undertakings contained in the Exhibits are binding as if set forth in this
Lease, and are subject to all the provisions (including, provisions regarding
default) of this Lease.
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Exhibit A. Legal Description of the Center.
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Exhibit B. A Plan Showing the Location of The Leased Premises and the Common Areas of the Center.
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Exhibit C. Work by Landlord
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Exhibit D. Description of Tenant's Work.
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Exhibit E. Playhouse Square Design Criteria.
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Exhibit F. Restrictions.
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Exhibit G. Rules and Regulations.
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Exhibit H. Use Restrictions.
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ARTICLE II
LEASE OF PREMISES AND APPURTENANT RIGHTS
2. 1 LEASE OF PREMISES. Landlord hereby leases to Tenant. and Tenant hereby
accepts from Landlord, the Leased Premises.
2.2 APPURTENANT RIGHTS IN COMMON AREAS. Tenant shall have the right, in
common with others, to use the parking areas, elevators, driveways, entrances,
exits, sidewalks, and passageways which Landlord may from time to time make
available to the tenants of the Center, as further described and subject to the
limitations set forth in Article VI.
2.3 EXCLUDED AREAS; RESERVATION OF RIGHTS. All perimeter walls (except the
inner surface thereon and the floor (except the inner surface thereon are
excluded from the Leased Premises, but the ceiling (which in the case of first
floor space shall be the underside of the floor above and in the case of second
floor space shall be the underside of the roof) is not so excluded and is a part
of the Leased Premises for all purposes. Landlord hereby reserves a right of
entry as more particularly set forth in Section 8.5.
ARTICLE III
COMMENCEMENT
3.1 COMMENCEMENT DATE AND TERM. This Lease shall be-in on the Commencement
Date specified in Section 1.2. and shall be for the Lease Term specified in
Section 1.2.
3.2 Intentionally Omitted.
3.3 Intentionally Omitted.
3.4 CONDITION OF THE PREMISES. The Premises shall be delivered "as is", and
Landlord shall not be required to make any repairs, alterations, or improvements
to the Premises.
3.5 TENANT'S WORK. Promptly after the Commencement Date, Tenant shall
perform at its own cost and expense, all of Tenant's Work (if any) set forth in
Exhibit D, and shall equip the Leased Premises with all trade fixtures and
personal property suitable or appropriate to the regular and normal operation of
the type of business in which Tenant is engaged. Tenant shall
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open for business as soon after the Commencement Date possible. Tenant's Work
and any other work permitted pursuant to Section 8.4 hereof shall be done in a
good and workmanlike manner using first-class new materials and equipment and in
accordance with the requirements of all applicable laws, ordinances, orders or
regulations of any public authority or of any insurer, Board of Fire
Underwriters, or similar insurance rating, bureau having jurisdiction over the
Leased Premises.
ARTICLE IV
MINIMUM RENT
4.1 MINIMUM RENT. Tenant agrees to pay to Landlord, at Landlord's Mailing
Address (or at such other place as Landlord shall from time to time designate by
notice) monthly, in advance, on the Commencement Date and on the first day of
each calendar month thereafter during the Lease Term, a sum equal to the Minimum
Rent specified in Section 1.2, or as adjusted pursuant to Section 4.2. Minimum
Rent for any partial month shall be pro rated based on the number of days in
such month and paid by Tenant to Landlord at such rate. Tenant shall pay upon
execution of this Lease the Initial Payment as set forth in Section 1.2.
4.2
4.8 Intentionally Omitted.
4.9 NO PARTNERSHIP. Notwithstanding any agreement herein, it is expressly
understood and agreed that Landlord shall not be construed or held to be a
partner or associate of Tenant in the conduct of Tenant's business. It is
understood and agreed that the relationship between the parties hereto is and
shall at all times remain that of landlord and tenant.
4.10 RENT TO BE NET TO LANDLORD. It is the intention of the parties that
the rent payable hereunder shall be net to Landlord, so that this Lease shall
yield to Landlord the net annual Minimum Rent herein during the Term of this
Lease, and that all costs. expenses and obligations of every kind and nature
whatsoever relating to the Leased Premises shall be paid by Tenant (except to
the extent Landlord is specifically required to pay for same under this Lease)
without any deduction or offset whatsoever unless expressly provided otherwise
herein.
ARTICLE V
TAX RENT AND OPERATING COSTS RENT
5.1 TAX RENT. Tenant shall pay to Landlord, as Tax Rent, Tenant's Pro Rata
Share of the amount by which taxes, assessments, sales or use taxes imposed with
respect to rent, sewer entrance fees, and other public charges (together called
"Taxes"), levied, assessed, or imposed at any time by any Governmental authority
upon or against the Center including the buildings therein, the associated land
and personalty or taxes in lieu thereof in any lease year or partial
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lease year during the Term exceed Taxes for the period from July 1, 1997 to June
30, 1998; provided, however, that Taxes shall not include franchises, estate,
inheritance, succession, transfer, income or excess profits taxes assessed on
Landlord.
Notwithstanding the foregoing, Tenant shall pay all real and personal
property taxes attributable to its signs or personal property and all of any
increase in Taxes on the Center which shall result from alteration, addition or
improvement which Tenant shall make to the Leased Premises.
5.2 TIME AND MANNER OF PAYMENT OF TAX RENT. Tax Rent shall be paid monthly
at the times and in the fashion provided herein for the payment of Minimum Rent.
The amount so to be paid shall be the amount which Landlord estimates will
represent Tenant's liability for Tax Rent when Taxes are finally determined.
Landlord may, from time to time, make such revisions in its estimate as may, in
the circumstances, be appropriate. Promptly after Landlord receives the bills
for Taxes, Landlord shall advise Tenant of the amount thereof, and shall compute
Tenant's Pro Rata Share for the tax period included within the Lease Year
covered by such bill. If payments previously made for such period by Tenant
exceed such Pro Rata Share, then Landlord shall refund to Tenant the amount of
such excess; but if such Pro Rata Share is greater than payments made on
account, Tenant shall pay to Landlord within fifteen (15) days of demand the
amount of such deficiency. Tenant's monthly installment on account of its Pro
Rata Share shall be adjusted promptly after receipt of each real estate tax
bill, so that installments on account for the succeeding tax year shall be equal
to one-twelfth (1/12) of Tenant's Pro Rata Share for the preceding, period. To
the extent that tax years do not coincide with any Lease Year or Partial Lease
Year, such taxes shall be pro rated on a per them basis.
5.3 DIFFERENT METHOD OF ASSESSMENT. If some method or type of taxation
shall replace the current method or type of real estate taxation in whole or in
part, or be added as a supplement thereto, the term "Taxes" shall be amended to
reflect such change. Tenant agrees that it shall pay its equitable share of any
such Taxes computed in a fashion consistent with the method of computation
herein provided, to the end that Tenant's cost on account thereof shall be, to
the maximum extent practicable, the same as Tenant would bear under the
foregoing Sections of this Article.
5.4 ABATEMENTS. Tenant's Pro Rata Share of all Taxes as aforesaid shall be
based upon such Taxes "as abated" or finally determined; out of any refund of
such Taxes, there shall first be deducted and paid to Landlord, the cost of
securing such refund (including but not limited to appraiser's fees and
attorneys' fees); and Tenant shall be entitled to its pro rata share of the
balance of such refund to the extent same is attributable to the excess Taxes
which Tenant is obligated to pay and, which shall be computed in the same manner
that Tenant's Pro Rata Share of Taxes for the year(s) to which such refund is
attributable was computed. Landlord shall have sole control of all tax abatement
proceedings. The pendency of an abatement proceeding or the withholding of any
tax payments by Landlord shall in no way affect Tenant's obligation to pay Taxes
as provided above, and Tenant shall only be entitled to its portion of the
proceeds or
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benefits of any abatement when such proceeds or benefits are finally determined
and actually received by Landlord.
5.5 OPERATING COST RENT. Tenant shall pay to Landlord, as Operating Cost
Rent, with respect to each Lease Year or Partial Lease Year, Tenant's Pro Rata
Share of the amount by which "OPERATING COSTS" of the Center in any calendar
year or partial calendar year exceed the Operating Costs for calendar year 1997.
"OPERATING COSTS" shall include:
(i) all costs and expenses of every kind and nature paid or incurred by
Landlord (including payments to reasonable and appropriate reserves)
in operating, managing, equipping, insuring, controlling traffic,
policing (if and to the extent provided by Landlord), lighting,
cleaning, maintaining, repairing, replacing, and restoring the Common
Areas of the Center, including (to the extent Landlord has obligations
with respect thereto) the parking, areas, the foundations, roofs,
gutters, downspouts, marquees, structural columns, beams and exterior
walls (excluding the interior surface thereof) of the buildings, all
utility lines, pipes and conduits, HVAC, and all drainage or sewage
systems which are not the responsibility of any tenant under a then
existing lease. Such costs and expenses shall include, without
limitation, payments or charges for all maintenance, repairs,
replacements, utilities, landscaping and gardening, security systems
and services, sweeping, snow plowing, sanding, refuse removal,
accounting wages, unemployment taxes, Social security taxes, workmen's
compensation insurance premiums, fees for required licenses and
permits, supplies, operation of loudspeakers and any other equipment
supplying music or public address to the Common Areas, reasonable
depreciation of equipment used in maintenance or operation of the
Common Areas (but there shall be excluded costs of equipment properly
chargeable to capital account and depreciation of the original cost of
construction of parking facilities and other Common Areas, buildings
and building, systems);
(ii) an allowance for depreciation over the useful life thereof of any
items or improvements properly chargeable to capital account,
(iii) all premiums for, or reasonable value of, comprehensive general
public liability, property damage, casualty, rent loss, and other
insurance maintained by Landlord with respect to all of the Center,
including, the Common Areas and all buildings and improvements; and
(iv) an administrative charge equal to fifteen percent (15%) of the
allowable charges under subsections (i), (ii) and (iii) above.
Any amounts payable with respect to less than a full calendar year shall be
equitably pro rated on a daily basis.
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5.6. TIME AND MANNER OF PAYMENT OF OPERATING COST RENT. Tenant shall pay to
Landlord monthly in the same manner as Minimum Rent is payable Landlord's
estimate of Tenant's Operating Cost Rent. Within sixty (60) days after the end
of each calendar year during the Term, Landlord shall furnish to Tenant a
statement in reasonable detail setting forth the computation of such costs and
expenses incurred during the preceding calendar year; provided. however, that
the failure of Landlord to furnish a statement within the specified time frame
shall not affect Tenant's obligation to pay Operating Cost Rent at such time as
said statement is furnished. Thereupon, there shall be a prompt adjustment
between the parties, with payment to, or repayment by, the parties, as the case
may require, to the end that Tenant shall pay only its Pro Rata Share of the
total of Operating Costs. At Landlord's election, however, Landlord may submit
more frequent periodic statements with respect to said costs and expenses
(rather than annual statements), and in such case any deficiency in the payments
made by Tenant for any such period shall be paid to Landlord upon Tenant's
receipt of the statement in question. Any payment due from Tenant on account of
such annual or periodic statements shall be due within fifteen (15) days
Tenant's receipt of the statement.
5.7 TERMINATION. In case of the expiration or termination of this Lease
prior to the end of the Term by reason of Tenant's default, Tenant's obligation
to make payments of Tax Rent and Operating Cost Rent under this Lease shall
continue and shall cover all periods up to the natural expiration of the Term.
Landlord shall have a reciprocal obligation to refund to Tenant or give Tenant
credit for its portion of any tax abatement received after the expiration or
termination of the Lease.
ARTICLE VI
COMMON AREAS
Landlord shall maintain and keep reasonably free from snow and ice the
parking areas, sidewalks, entrances and exits and the like (herein called
"Common Areas") immediately adjacent to the Center as shown on Exhibit B.
Landlord may without the consent of Tenant from time to time make changes in the
location and nature of the Common Areas now or hereafter existing in the Center.
Landlord shall not be liable for any inconvenience or interruption of business
or other consequences resulting from the making of repairs, replacements,
improvements, or alterations, or the doing of any other work in, to or on the
Common Areas.
Landlord shall have the right to tow any employee's vehicle not parked in
the designated area, or terminate that employee's license to park in the Center,
or fine the employee or Tenant an amount equal to the local fine for illegal
parking.
ARTICLE VII
TENANT'S COVENANTS
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7. 1 AFFIRMATIVE COVENANTS OF TENANT. Tenant shall:
(i) pay the Minimum Rent and Additional Rent and all other sums due from
Tenant to Landlord at the time and in the manner provided for in this
Lease, without offset, setoff or deduction for any reason whatsoever;
(ii) procure all licenses and permits which may be required for any use
made of the Leased Premises;
(iii) comply with the Sign Requirements for Exterior Signs as set forth in
Exhibit E;
(iv) use one hundred percent (100%) of the Leased Premises solely for the
purpose set forth in Section 1.2, and for no other purpose; and under
no circumstance shall Tenant use or allow the Leased Premises to be
used in violation of the restrictions set forth in Exhibit F or
Exhibit H;
(v) abide by reasonable rules and regulations made from time to time by
Landlord for furthering the success of the Center after receipt of
notice thereof;
(vi) pay, as they become due and payable, all charges for utilities
furnished to, or consumed upon, the Leased Premises, including without
limitations charges for water, sewer, electricity, gas, and heating
fuel, all of which Tenant shall contract for in its name;
(vii) require its employees to park only in the area designated by Landlord
for employee parking, and advise Landlord of the license plate
registration numbers of Tenant's employee's cars in the Center;
(viii) take all action necessary to comply with all laws applicable to the
Leased Premises or the operation of Tenant's business including,
without limitation, all environmental related laws and the Americans
With Disabilities Act, and promptly provide Landlord with copies of
all notices received or sent by Tenant in connection with the
foregoing; and
(ix) lock the access to the elevator at the close of business each day.
7.2 NEGATIVE COVENANTS OF TENANT. Tenant shall not:
(i) use sidewalks outside the entrance to the Leased Premises to display
or sell merchandise or otherwise obstruct the same;
(ii) permit anything to be done about the Leased Premises which shall be
unlawful, improper or contrary to any law, ordinance, regulation, or
requirement of any
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public authority or insurance inspection rating bureau, or similar
organization, or which may be injurious to or adversely affect the
general character of the Leased Premises or the Center, or without
limiting the Generality of the foregoing, which would involve the
sale, rental or use of pornographic merchandise or services, adult
entertainment or any other use that would adversely impact the
reputation of the Center as a shopping center suitable for families
and children.
(iii) use in or about the Leased Premises any advertising media that may be
objectionable to Landlord or other tenants of the Center, such as but
not limited to, loud speakers, phonographs or radio broadcasts that
may be heard outside the Leased Premises;
(iv) construct, maintain, use or operate within the Leased Premises or
elsewhere in the Center (or on the outside of the Center) any
facility, equipment or machinery which produces light, music, sound,
noise, odor or vibration which is audible, visible or discernable
beyond the interior of the Leased Premises if in Landlord's reasonable
opinion same interferes with the operation of the Center or any
occupant's use of the Center; nor shall Tenant permit any act or thing
upon the Leased Premises, the effect of which shall be to disturb the
normal sensibilities and peaceful occupancy of other tenants or their
employees or invitees.
(v) deliver or remove any freight except over service roadways and in
accordance with such reasonable rules and regulations as may be made
by Landlord;
(vi) bum any trash on or near the Leased Premises, or permit any offensive
odors to be emitted from the Leased Premises;
(vii) overload, damage or deface the Leased Premises;
(viii) place or permit the placing of any signs, awnings, aerials,
flagpoles or the like on the exterior of the Leased Premises without
on each occasion obtaining the prior written consent of Landlord;
(ix) do, or suffer to be done, or keep, or suffer to be kept, or omit to do
anything in, upon or about the Leased Premises which may prevent the
obtaining of any insurance including but without limitation, fire,
extended coverage, and public liability insurance, on the Leased
Premises or any other premises in the Center or on any property
therein, or which may make void or voidable such insurance or which
may create any extra premiums for, or increase the rate of, any such
insurance. If anything shall be done or kept, or omitted to be done,
in, upon or about the Leased Premises which shall create any extra
premiums for, or increase the rate of, any such insurance, Tenant will
pay the increased cost of the same to Landlord upon demand;
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(x) do, or suffer to be done, or keep or suffer to be kept, or omit to do
anything, in, upon or about the Leased Premises which may prevent
Landlord from obtaining or cause the revocation of, any government
license, permit, certificate of right or authority, or other document,
necessary for Landlord to operate the Center including, but not
limited to, government requirements related to the capacity of the
septic system in the Center. If as a direct or indirect result of
Tenant's business, an addition to or change in the Center facilities
shall be required by law, ordinance, by-law or other governmental
regulation, the addition or chance shall be installed and paid for
entirely by Tenant;
(xi) cause any hazardous or toxic wastes, substances materials or oil, as
same or any related term may be defined in any federal or state law or
regulation (collectively. "HAZARDOUS MATERIALS") to be used,
generated, stored or disposed of on, under or about, or transported to
or from, the Premises (collectively, "HAZARDOUS MATERIALS ACTIVITIES")
without first receiving, Landlord's written consent, which may be
withheld for any reason, conditioned as Landlord deems appropriate,
and revoked at any time. In no event shall Landlord be liable to
Tenant in connection with any Hazardous Materials Activities by
Tenant, Tenant's employees, agents, contractors, licensees of
invitees, whether or not consented to by Landlord, nor shall Tenant be
relieved of liability as a result of any such consent. Tenant shall
indemnify, defend with counsel acceptable to Landlord and hold
Landlord harmless from and against any claims, damages, costs and
liabilities arising out of Tenant's Hazardous Materials Activities.
Tenant shall immediately notify Landlord both by telephone and in
writing, of any spill or unauthorized discharge of Hazardous Materials
or of any condition constituting, an "imminent hazard" under
applicable law.
ARTICLE VIII
MAINTENANCE AND REPAIRS
8. 1 LANDLORD'S OBLIGATIONS. Subject to the provisions of Sections 8.2,
10.1, 10.2 and 13.4, Landlord shall keep and maintain in good repair the
following portions of the Center: foundation, roof, gutters, downspouts,
marquee, structural columns and beams, and exterior walls (excluding the
interior surface thereof). Tenant shall reimburse Landlord, upon demand, for
repairs to any of the above described portions of the Center necessitated by
act, default or negligence of Tenant's officers, agents or employees,
sublessees, licensees, concessionaires or other occupants of the Leased
Premises, or those who come upon the Center for the purpose of visiting or
dealing with any of the foregoing. Landlord shall not be deemed to have
committed a breach of any obligations to make repairs unless it shall have made
such repairs negligent or unless it shall have received notice from Tenant in
writing designating the particular repairs needed and shall have failed to
commence such repairs within a reasonable time after the receipt
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of such notice; Landlord's liability in either such case shall be limited to the
cost of making the required repairs and in no event shall Landlord be liable for
indirect or consequential damages.
8.2 TENANT'S OBLIGATIONS.
(1) Tenant shall keep the Leased Premises in a neat, clean, sanitary
condition and shall keep in good repair, excepting only damage caused by fire or
other casualty or taking by eminent domain, the following portions of the Leased
Premises: the entire interior of the Leased Premises including walls and
ceilings; all plumbing, electrical, sewage, air conditioning, ventilating and
heating equipment and the wiring, pipes, motors and fixtures used in connection
therewith; the exterior and interior portions of all doors and windows, moldings
and frames; any automatic door opening equipment; floor coverings; all interior
and exterior signs; loading docks and loading areas, if any, used exclusively by
the Leased Premises; and all appliances, meters, fixtures and equipment
appurtenant to the Leased Premises. For purposes of this Section 8.2. repair
shall be deemed to include replacement where necessary. Tenant agrees that it
shall be responsible for providing cleaning services for the Leased Premises,
and that Landlord shall have no obligation with respect thereto.
(2) maintenance of the heating and air conditioning system serving the
Leased Premises in accordance with the manufacturer's recommended procedures,
including, at a minimum, the following: (1) quarterly inspections and cleaning
of entire system; (2) regular replacement of filters as necessary; (3) service
calls as needed; (4) repair and replacement of any part or component which
proves defective during the term of the contract, provided, however, that the
contract may exclude replacement of major parts or components, but in such
event, replacement of such parts or of the entire system, if necessary, shall be
the sole responsibility of Tenant. Said contract shall be assignable co Landlord
and at the expiration or earlier termination of the term hereof, Tenant, at
Landlord's request, shall assign said contract to Landlord. Upon request, Tenant
shall provide Landlord with a copy of the contract evidencing these terms.
(3) Tenant shall replace any glass which may be damaged or broken with
class of the same quality, provided, however that Landlord shall make available
to Tenant the benefit of any contractor's or manufacturer's guarantee which
Landlord may have from time to time.
(4) Tenant shall make alterations and repairs of whatever nature required
by applicable laws, ordinances, orders or regulations of any public authority or
of any insurer, Board of Fire Underwriters, or similar insurance rating bureau
having jurisdiction over the Leased Premises.
(5) Tenant shall pay for all maintenance, and repairs to and replacement of
the plumbing, and sewerage system in the Center which, in the judgment of
Landlord, are made necessary by Tenant's use of same. It shall be conclusively
presumed that such maintenance, repair and/or replacement are made necessary if
Tenant uses detrimental substances or non-biodegradable solid substances and
discharges same into the sewerage system.
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(6) Notwithstanding the above, Tenant shall not be required to make repairs
necessitated by the default or cross negligence of Landlord, its employees, or
contractors.
8.3 MANNER OF MAKING REPAIRS; INDEMNIFICATION. All repairs, alterations,
and maintenance work shall be done in a good and workmanlike manner using
first-class new materials and equipment and in accordance with the requirements
of all laws, ordinances, orders or regulations of any public authority or of any
insurer, Board of Fire Underwriters, or similar insurance rating bureau having
jurisdiction over the Leased Premises. Tenant agrees to pay promptly when due
all charges for labor and materials in connection with any work done by Tenant
or anyone claiming under Tenant on the Leased Premises. Tenant agrees to save
harmless from, and indemnify Landlord against, all claims for injury, loss or
damages to person or property caused by or resulting from the doing of any such
work.
8.4 ALTERATIONS AND ADDITIONS. Tenant shall make no structural alterations,
improvements or additions to the Leased Premises. Tenant shall make no
non-structural alterations, improvements or additions to the Leased Premises
without first obtaining, on each occasion the prior written consent of Landlord,
which shall not be unreasonably withheld. If Landlord consents, Tenant may make
such alterations, additions or improvements, provided that the same shall
neither injure the safety of the structure of the Leased Premises, nor diminish
their value, and provided further that at the expiration or other termination of
this Lease. Landlord may require Tenant either to restore (the Leased Premises
to their condition prior to the making of such alterations, improvements or
additions or to have the Leased Premises remain in their altered condition with
all improvements and additions becoming the property of Landlord.
8.5 RIGHT TO ENTER. Tenant hereby grants Landlord and its agents a right to
enter without charge or abatement of or reduction in rent or payment of damages
for the following purposes: (i) to examine the Leased Premises at reasonable
times and, from time to time, to show the Leased Premises to prospective
purchasers, lenders and tenants; (ii) to put up "For Sale" or "For Rent" signs,
which signs Tenant agrees not to move, remove, block or otherwise interfere
with; (iii) to make such repairs, improvements, alterations or additions as may
be required by this Lease or by any public authority having jurisdiction, or to
facilitate making repairs or improvements to any other part of the Center, or
(iv) to make repairs which Tenant may have failed promptly to make pursuant to
Tenant's covenants, hereunder; or (v) to construct, install, repair or replace
in the Leased Premises or the approaches thereto any utility or waste line or
pipe or any agency for the transmission through the Leased Premises of
electricity, heat, water, gas or power of any kind. Unless any such work is of
an emergency nature, Landlord shall only enter after reasonable notice and shall
use reasonable efforts to minimize interference with Tenant's operations.
8.6 FIXTURES. All signs, counters, shelving, equipment, and all other trade
fixtures installed by or at the expense of Tenant shall remain the property of
Tenant, and Tenant may remove the same at any time or times during the Lease
Term, and shall remove the same at the
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expiration or other termination of this Lease unless excused in writing by
Landlord. Tenant shall, at its cost and expense, make any and all repairs to the
Leased Premises and the floors and walls thereof as may become necessary by
reason of such removal, including painting and patching where necessary. Tenant
shall cap or otherwise suitably secure all utility lines left exposed or
unconnected after such removal. In the event day of the Lease Term, Landlord
shall have the right to effect such removal and to store Tenant's property in a
public warehouse at Tenant's expense, and to make such repairs, and Tenant shall
forthwith reimburse Landlord for its costs therefor as Additional Rent.
8.7 YIELD-UP: REMOVAL OF GOODS. Except as directed by Landlord in writing
or as otherwise provided in this Article, upon the termination of this Lease,
Tenant shall immediately remove its goods and effects and peaceably yield-up the
Leased Premises, broom-clean and in the same good order, repair and condition as
it is obligated to maintain the same under this Lease. Notwithstanding any
provision of the Lease to the contrary, provided Tenant is not in default at the
time Tenant yields-up the Premises and provided further that Tenant repairs all
the resulting damage, Tenant may remove all track lighting, alarm systems and
security doors installed by Tenant in the Leased Premises.
ARTICLE IX
INSURANCE
9.1 LANDLORD'S CASUALTY INSURANCE. Landlord shall keep the Leased Premises
insured against loss or damage by fire and other hazards included within usual
"all-risk" coverage, in such amounts and with such deductibles as Landlord deems
appropriate.
9.2 TENANT'S CASUALTY INSURANCE. Tenant shall keep all of Tenant's
fixtures, furniture, furnishings, equipment and stock in trade insured against
loss or damage by fire and other hazards included so-called "all-risk" insurance
in an amount not less than one hundred percent (100%) of the full insurable
replacement thereof, without deduction for depreciation, but in any event in an
amount sufficient to prevent Tenant from becoming a co-insurer under the
applicable policies. Any deductible shall be only in amounts approved in writing
by Landlord and Landlord hereby approves a $l,000.00 deductible.
9.3 WAIVER OF SUBROGATION. Landlord and Tenant hereby release each other
and each other's officers, directors, employees and agents, from liability or
responsibility for an loss or damage to their respective property covered by
valid and collectible all-risk insurance, or which would have been covered but
for a party's failure to comply with the provisions of Section 9.1 or 9.2 above.
This release shall apply not only to liability and responsibility of the parties
to each other, but shall also extend to liability and responsibility for any one
claiming through or under the parties by way of subrogation or otherwise. This
release shall apply even if the fire or other casualty shall have been caused by
the fault or negligence of a party or anyone for whom a party may be
responsible. However, this release shall apply only with respect to loss or
damage
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actually recovered from an insurance company, or which would have been
recovered but for a party's failure to comply with the provisions of Section 9.1
or 9.2 above. This release shall be applicable and in force and effect only with
respect to loss or damage occurring during such time as the releasor's policies
shall contain a clause or endorsement to the effect that any such release shall
not adversely affect or impair said policies or prejudice the right of the
releasor to recover thereunder. Landlord and Tenant each hereby agrees that its
policies will include such a clause or endorsement so long as the same shall be
obtainable without extra cost, or if extra cost shall be charged therefor, so
long as the other party pays such extra cost. If extra cost shall be charged
therefor, each party shall advise the other of the amount of the extra cost, and
the other party, at its election, may pay the same, but shall not be obligated
to do so.
9.4 INDEMNITY AND LIABILITY INSURANCE. Tenant shall save Landlord harmless
and indemnified, to the extent permitted by law, from and against any and all
claims, actions, loss, damages, liability and expense in connection with loss of
life, personal injury and/or damage to property arising out of or resulting from
any occurrence in, upon or at the Leased Premises or the occupancy or use of the
Leased Premises or any part thereof, or anywhere if caused wholly or in part by
any act, neglect, failure to perform the obligations imposed by this Lease or
any breach thereof, or omission of Tenant, its officers, agents, employees,
sublessees, licensees, concessionaires, others occupying space in the Leased
Premises or any customers and those doing business with Tenant. If Landlord
shall be threatened with or made a party to any litigation commenced by or
against Tenant or any of the aforementioned parties with respect to any matter
described above, then Tenant shall protect and hold Landlord harmless and
indemnified and shall defend Landlord with counsel reasonably acceptable to
Landlord or, at Landlord's option, shall advance all costs, expenses and
reasonable attorney's fees incurred or paid by Landlord in connection with such
litigation; and this indemnity shall be valid and binding except as required by
M.G.L Chapter 186, Section 15.
Tenant shall maintain with respect to the Leased Premises and the Center
comprehensive public liability insurance covering all of Tenant's obligations
under this Section, in the minimum amounts set forth in Section 1.2. Such
policies shall name Landlord and, if applicable, Landlord's mortgagee as named
insureds, and shall contain a contractual liability endorsement making specific
reference to this Lease.
9.5 NON-LIABILITY OF LANDLORD. Landlord shall not be responsible or liable
to Tenant for any loss or damage caused by other tenants of the Center, or by
their visitors, guests, invitees, employees, agents, contractors, or any other
persons occupying or visiting any portion of the Center. Except as required by
Chapter 186, Section 15 of the Massachusetts General Laws, or any successor
statute, neither Landlord, its agents, or employees shall be liable for any
injury or damage to persons or property resulting from leaks of steam, gas,
electricity, water, or any other substance from pipes, wires or other conduits,
or from the bursting or stoppage thereof; or from leaks of water, snow, or rain
from the plumbing, roof, other parts of the Building, or any other place; or for
wetness or dampness caused for any reason whatsoever. Tenant acknowledges that
it shall be Tenant's responsibility to obtain insurance to protect it from any
and all such hazards,
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and Tenant acknowledges that Tenant's agreement to fully insure Tenant's
property was, given the value of such property, a material inducement to
Landlord and that Landlord would not have entered into this Lease but for such
agreement.
9.6 THEFT LOSSES. Except as required in Chapter 186, Section 15 of the
Massachusetts General Laws, or any successor statute, Landlord shall not be
liable for any damage to, removal of, or loss of any property of Tenant
occasioned by any theft, burglary, robbery, larceny, or vandalism of any kind
(hereinafter called "Theft"). Tenant Shall carry sufficient insurance for its
own protection and for the protection of the Leased Premises and adjacent
portions of the Center in connection with damage or loss arising from any such
Theft. Tenant shall repair at its own cost and expense any damage or loss caused
to the Leased Premises and shall promptly reimburse Landlord for repairs to
adjacent portions of the Center required as a result of any such Theft. A report
of any such theft to police or other proper authorities shall be deemed
conclusive evidence that such an event occurred or an attempt was made.
9.7 Intentionally Omitted.
9.8 WORKER'S COMPENSATION. Tenant shall maintain worker's compensation,
disability and other similar insurance covering all persons employed in
connection with Tenant's Work or by Tenant with respect to whom death or bodily
injury claims could be asserted against Tenant or Landlord.
9.9 CERTIFICATES OF INSURANCE. Each policy of insurance which Tenant is
required to maintain under the provisions of this Article IX shall be with
companies qualified to do business in the Commonwealth of Massachusetts and
reasonably acceptable to Landlord, and shall name Landlord, and if Landlord so
requests, Landlord's mortgagee(s), as insured parties. Tenant shall deposit with
Landlord certificates of such insurance on or prior to the Commencement Date and
thereafter new certificates not later than thirty (30) days prior to the
expiration of the policies. The policies shall provide (and the certificates
shall evidence) that they shall not expire, be cancelled, or be materially
modified without at least thirty (30) days prior written notice to Landlord and,
if Landlord so requests, to Landlord's mortgagee(s).
ARTICLE X
FIRE AND OTHER CASUALTY
10.1 DAMAGE OR DESTRUCTION - TERMINATION RIGHTS. If the Leased Premises
become untenantable in whole or in part by reason of damage or destruction by
fire or other casualty covered by fire insurance policies required to be carried
by Landlord pursuant to the provisions of Article IX, Tenant shall immediately
give written notice thereof to Landlord and, unless this Lease be terminated as
hereinafter provided, Landlord at its own expense shall repair or rebuild the
same with reasonable dispatch so as to restore the Leased Premises to
substantially the same condition required in Exhibit C hereof (subject, however,
to rights of mortgagees, zoning, laws
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and building codes then in existence); provided, however, that Landlord shall
not be required to expend in such repair or rebuilding any amount in excess of
the net insurance proceeds received by Landlord with respect to such damage.
"Net insurance proceeds" shall mean the amount of the insurance proceeds less
all costs and expenses, including adjustors and attorney's fees, of obtaining,
the same. If Landlord repairs or rebuilds the Leased Premises to the extent
required herein, Tenant thereafter shall complete the repair of the Leased
Premises including the repair or replacement of Tenant's trade fixtures,
furniture, inventory and personal property, and reopen for business as soon as
possible.
10.2 DAMAGE OR DESTRUCTION - TERMINATION RIGHTS. If the Leased Premises or
the Buildings comprising, the Center shall be damaged or destroyed to the extent
of ten percent (10%) or more of its insurable value by any cause, or if the
Leased Premises or Buildings comprising the Center are damaged or destroyed by a
risk not covered by Landlord's insurance, or if any such damage or destruction
(regardless of amount) occurs during the last year of the Lease Term, Landlord
may elect by written notice to Tenant within thirty (30) days after the damage
or destruction has occurred, either to terminate this Lease immediately or to
repair or rebuild the Leased Premises (if the same shall have suffered any
damage). If Landlord elects to repair or rebuild the Leased Premises, Landlord's
obligation with respect to such repairing or rebuilding, shall in no event
exceed the scope or expenses of repairing or restoring the Leased Premises to
substantially the same condition as the Leased Premises were in on the
Commencement Date or the amount of the net insurance proceeds with respect to
the Leased Premises recovered by Landlord, whichever is less.
ARTICLE XI
EMINENT DOMAIN
11.1 DEFINITIONS. As used in this Lease, the following words have the
following meanings:
(a) "AWARD" means the award for or proceeds of any Taking less all expenses
in connection therewith, including, reasonable attorney's fees.
(b) "TAKING" means the taking of, or damage to, the Leased Premises or the
Center or any portion thereof, as the case may be, as the result of the exercise
of any power of eminent domain, condemnation, or purchase under threat thereof
or In lieu thereof.
(c) "TAKING DATE" means the date on which the condemning authority shall
have the right to possession of the Leased Premises or the Center or any portion
thereof, as the case may be.
11.2 TOTAL OR PARTIAL TAKING OF LEASED PREMISES. If all of the Leased
Premises shall be taken, except for a Taking for temporary use, this Lease shall
be cancelled automatically as of
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the Taking Date. If a part amounting to twenty-five percent (25%) or more of
either (i) the floor area of the Leased Premises or (ii) the floor area of the
buildings comprising the Center or (iii) the land on which the Center is
located, as described in Exhibit A, shall be taken, Landlord shall have the
option to cancel this Lease. The option to cancel may be exercised within six
months of the Taking Date by giving Tenant sixty days (60) written notice that
the option has been exercised and the Lease shall terminate as of the Taking
Date.
11.3 ABATEMENT AND RESTORATION. If a portion of the Leased Premises shall
be taken, except for a Taking for temporary use, and this Lease shall not be
cancelled under Section 11.2, the following shall apply: Minimum Rent and
Tenant's Pro Rata Share shall be reduced in the proportion that the area of the
Leased Premises so taken bears to the entire area of the Leased Premises.
Landlord shall restore the remaining portion of the Leased Premises to
substantially the same condition they were in on the Commencement Date, to the
extent practical, to render it reasonably suitable for Tenant's use, provided,
however, that Landlord shall not be obligated to expend an amount greater than
the Award for the restoration, and subject to zoning laws and building codes
then in existence.
11.4 TAKING FOR TEMPORARY USE. If there is a Taking of the Leased Premises
for temporary use, this Lease shall continue in full force and effect, and
Tenant shall continue to comply with Tenant's obligations under this Lease,
except to the extent compliance shall be rendered impossible or impracticable by
reason of the Taking.
11.5 DISPOSITION OF AWARDS. All Awards arising from a total or partial
Taking of the Leased Premises or of Tenant's leasehold interest awarded to
Landlord or Tenant shall belong to and be the property of Landlord without any
participation by Tenant. Tenant hereby assigns to Landlord any share of such
Award which may be awarded to Tenant, and hereby waives any rights it may have
with respect to the loss of its leasehold interest in the Lease and the Leased
Premises as a result of a Taking. Tenant agrees to execute such instruments as
may be necessary to effectuate the foregoing assignment, and agrees to turn over
to Landlord any Award which may be recovered by it. Notwithstanding the
foregoing, Tenant shall be entitled to any separate award for loss of movable
trade fixtures installed by it or for relocation expenses, but only if such
award is made in addition to the award for loss of leasehold and for interests
in the land and buildings.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
12.1 PROHIBITION. Tenant shall not assign or encumber this Lease in whole
or in part, nor sublet all or any part of the Leased Premises, nor grant any
license, concessions or lease to operate any business or department in the
Leased Premises without Landlord's consent which consent shall not be
unreasonably withheld or delayed. In determining whether to grant its
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consent, Landlord may consider such factors as Landlord deems appropriate in its
sole discretion including, without limitation, the proposed transferee's
reputation, credit worthiness, and business experience, and the compatibility of
the business use of the Leased Premises by the proposed transferee with other
uses in the Center and other occupants thereof. Any purported sublet assignment
or other transfer without Landlord's prior written consent as set forth above
shall be void and shall confer no rights upon any third person. If this Lease
shall be assigned, or if the Leased Premises or any part thereof shall be
underlet or occupied by anybody other than Tenant, whether with or without
Landlord's consent. Landlord may collect rent from the assignee, subtenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
the within covenant, or an acceptance of the assignee. subtenant or occupant as
tenant, or a release of Tenant from full performance hereunder.
12.2 SALE OF STOCK; MERGER. If Tenant or any direct or indirect owner of
Tenant is a corporation, then Tenant agrees that if there shall be a sale of
fifty percent (50%) or more of the stock in Tenant or any direct or indirect
owner of Tenant (whether such sale occurs at one time or at intervals so that,
in the aggregate, over the term of this Lease, such a transfer shall have
occurred), or a merger by Tenant or any direct or indirect owner of Tenant with
another corporation with the result that the controlling shareholders of Tenant
or any direct or indirect owner of Tenant do not control the surviving
corporation, the same shall be deemed an assignment and Landlord shall have the
right to cancel and terminate this Lease by giving thirty (30) days written
notice of Landlord's desire to do so at any time prior to the expiration of
sixty (60) days after written notice from Tenant to Landlord of any such
transfer, or within one (1) year after Landlord first learns of any transfer if
no notice is given. Upon the effective date of Landlord's notice, this Lease
shall terminate as if such date was the date originally set for the expiration
of the Lease Term. The term "sale" shall include any transfer other than a
transfer by operation of law upon the death of a stockholder and the devolution
of the stock held by such stockholder to his heirs or legatees.
12.3 OTHER TRANSFERS. If Tenant or any direct or indirect owner of Tenant
is a partnership, trust, or other entity, the provisions of Section 12.2
relative to transfer shall be applied if there is a transfer of fifty percent
(50%) or more of the beneficial interest in such entity, other than a transfer
by operation of law upon the death of an interest holder.
ARTICLE XIII
DEFAULTS AND REMEDIES
13.1 TENANT'S DEFAULT. The following conditions shall be considered a
"Default" by Tenant:
(a) failure to pay Minimum Rent, any item of Additional Rent, or any other
charge as and when due under this Lease;
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(b) if the estate hereby created shall be taken on execution by other
process of law; or
(c) if Tenant or any guarantor of Tenant's obligations hereunder shall be
liquidated or dissolved, commit an act of bankruptcy or be declared bankrupt or
insolvent according to law, or if any assignment shall be made of its property
for the benefit of creditors, or if any proceedings, including, without
limitation proceedings for reorganization or for an "arrangement," shall be
commenced by or against Tenant, or any guarantor of Tenant's obligations
hereunder, under any bankruptcy or insolvency law now or hereafter enacted and
the same shall not be dismissed within thirty (30) days from the time of their
commencement or if Tenant, or any guarantor of Tenant's obligations hereunder,
shall commencement or if Tenant, or any guarantor of Tenant's obligations
hereunder, shall admit in writing its inability to pay debts Generally as they
become due; or
(d) if a receiver, guardian, conservator, trustee or assignee, or any other
similar officer or person shall be appointed to take chore of all or any part of
Tenant's, property, or the property, of any Guarantor of Tenant's obligation
hereunder; or
(e) if any court shall enter an order with respect to Tenant, or any
guarantor of Tenant's obligations hereunder, providing for the modification or
alteration of the rights of creditors; or
(f) if Tenant shall not commence Tenant's Work within ten (10) days after
the receipt of the notice that the Leased Premises are available to Tenant; or
(g) if Tenant shall fail to take possession of the Leased Premises and open
for the conduct of business within sixty (60) days following the Commencement
Date; or
(h) if Tenant shall vacate the Leased Premises or close for business for an
aggregate period exceeding thirty (30) days; or
(i) if Tenant shall assign or sublet all or any part of the Leased Premises
without Landlord's prior written consent; or
(j) neglect or failure to perform or observe any of the other terms,
provisions, conditions, or covenants contained in this Lease on Tenant's part to
be performed or observed, for a period of thirty (30) days after the giving of
notice of such neglect or failure.
For purposes of this Section 13.1(a)-(j), all references to Tenant shall be
deemed to read "or Guarantor". In the event of a Default (notwithstanding any
license, or any former breach of covenant or waiver of the benefit thereof, or
consent in a former instance), Landlord shall have the right, at its election,
then or at any time thereafter during the continuance of the Default,
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either (1) to give Tenant written notice of Landlord's intention to terminate
this Lease on the date of such notice or on any later date specified therein,
and on the date specified in such notice, Tenant's right to possession of the
Leased Premises shall cease and this Lease shall thereupon be terminated, or (2)
without demand or notice, to re-enter and take possession of the Leased Premises
or any part thereof in the name of the whole and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove the effects of both or either pursuant to an order from a
court of competent Jurisdiction without being deemed guilty of any manner of
trespass and without prejudice to any remedies for arrears of rent or preceding,
breach of covenants. Tenant hereby waives all statutory rights (including
without limitation rights of redemption, if any), to the extent such rights may
be lawfully waived. Landlord, without notice to Tenant but may store Tenant's
effects, and those of any person claiming through or under Tenant at the expense
and risk of Tenant, and, if Landlord so elects, pursuant to an order from a
court of competent jurisdiction, may sell such effects at public auction and
apply the net proceeds to the payment of all sums due to Landlord from Tenant,
if any, and pay over the balance, if any, to Tenant. Should Landlord elect to
re-enter as herein provided or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for herein or by law, Landlord
may either terminate this Lease or, without terminating this Lease, re-let the
Leased Premises or any part thereof from time to time for such term or terms,
which may be for a period extending beyond the term of this Lease and at such
rental or rentals and upon such other terms and conditions as Landlord may deem
advisable, with the right to make alterations and repairs to the Leased
Premises. No such re-entry or taking of possession of the Leased Premises by
Landlord shall be construed as an election on Landlord's part to terminate this
Lease unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction; nor shall
Landlord's right to re-let from time to time constitute any obligation to do so
or to otherwise mitigate damages. In addition, and notwithstanding any other
provision of this Lease to the contrary or the termination of the Lease in
connection with a default, Tenant shall reimburse Landlord for all expenses
incurred by Landlord in connection with Tenant's default including,, without
limitation, costs of collection, repossession costs, warehouse charges,
brokerage commission, reasonable attorneys' fees, alteration costs and expenses
in connection with reletting.
13.2 CURRENT DAMAGES. No termination or repossession provided for in this
Article shall relieve Tenant of its liability and obligations under this Lease,
all of which shall survive such termination or repossession. In the event of any
such termination or repossession, Tenant shall pay the Minimum Rent and all
Additional Rent and other sums as hereinbefore provided up to the time of such
termination; and thereafter Tenant, until the end of what would have been the
term of this Lease in the absence of such termination or repossession and
whether or not the Leased Premises shall have been re-let, shall be liable to
Landlord for and shall pay Landlord as liquidated current damages (i) an amount
equal to Landlord's reasonable attorneys' fees and costs relating in any manner
to Tenant's Default plus (ii) (a) the Minimum Rent and other charges which would
be payable hereunder if such termination or repossession had not occurred less
(b) the net proceeds, if any, of any reletting of the Leased Premises, after
deducting all Landlord's expenses in connection with such reletting, including
without implied limitation all repossession
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costs, warehouse charges, brokerage commissions, reasonable attorneys' fees,
salaries of employees, alteration costs, and expenses of preparation for such
reletting. Tenant shall pay such current damages to Landlord on the days on
which the Minimum Rent would have been payable hereunder if this Lease had not
been terminated; and Landlord shall be entitled to receive the same from Tenant
on each such day.
13.3 FINAL DAMAGES. At any time after any such termination or repossession,
whether or not Landlord shall have collected any current damages, Landlord shall
be entitled to recover from Tenant and Tenant shall pay to Landlord, on demand,
as liquidated final damages and in lieu of all current damages beyond the date
of payment of the final damages, a sum equal to (i) an amount equal to
Landlord's reasonable attorneys' fees and costs relating in any manner to
Tenant's Default plus (ii) the amount, if any, by which the rent and other
charges which would be payable hereunder from the date of such payment (or, If
it be earlier, the date to which Tenant shall have satisfied in full its
obligation under this Article to pay current damages) for what would be the then
unexpired term if the same has remained in effect shall exceed the then fair net
rental value of the Leased Premises for the same period. If any statute or rule
of law governing a proceeding in which such liquidated final damages are to be
proved shall validly limit the amount thereof to an amount less than the amount
above agreed upon, Landlord shall be entitled to the maximum amount allowable
under such statute or rule of law. For purposes of this Section, the rent
reserved hereunder shall be deemed to be an amount equal to the highest of the
total yearly Minimum and Additional Rentals paid by Tenant in any Lease Year
preceding such termination or repossession.
13.4 LANDLORD'S SELF HELP. If Tenant shall Default in the performance or
observance of any agreement or condition in this Lease other than an obligation
to pay money to Landlord, and shall not cure such Default within thirty (30)
days after notice from Landlord specifying the Default (or shall not within said
period commence to cure such Default and thereafter prosecute the curing of such
Default to completion with due diligence), Landlord may, at its option, without
waiving its right to terminate this Lease and without waiving any claim for
damages for breach of agreement, at any time thereafter, cure such Default for
the account of Tenant, and any amount paid or contractual liability incurred by
Landlord in so doing shall be deemed paid or incurred for the account of Tenant,
and Tenant agrees to reimburse Landlord therefor, or save Landlord harmless
therefrom; provided, however, Landlord may immediately cure any such Default if
the curing of the same is necessary to protect the real estate or Landlord's
interest therein, or to prevent injury or damages to persons or property. If
Tenant shall fail to reimburse Landlord upon demand for any amount paid for the
account of Tenant, such amount shall be added to and become a part of the next
payment of rent due without the necessity of any further notice.
13.5 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default
hereunder unless its default shall continue for thirty (30) days, or such
additional time as is reasonably required to correct its default, after written
notice thereof has been given by Tenant to Landlord specifying the nature of the
alleged default.
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The obligations of Landlord hereunder shall be binding upon Landlord and
each succeeding owner of Landlord's interest hereunder only during the period of
such ownership and Landlord and each succeeding owner shall have no liability
whatsoever except for their obligations during each such respective period.
Tenant hereby agrees for itself and each succeeding holder of Tenant's interest,
or any portion thereof, hereunder, that any judgment, decree or award obtained
against Landlord, or any succeeding owner of Landlord's interest, which is in
any manner related to this Lease, the Leased Premises, or Tenant's use or
occupancy of the Leased Premises or the Common Areas of the Center, whether at
law or in equity, shall be satisfied out of Landlord's equity in the land and
buildings then comprising the Center to the extent then owned by Landlord, or
such succeeding owner, and further so agrees to look only to such assets and to
no other assets of Landlord, or such succeeding owner, for satisfaction.
In no event shall Landlord ever be liable to Tenant for any indirect or
consequential damages for any reason whatsoever.
ARTICLE XIV
LANDLORD'S COVENANT OF QUIET ENJOYMENT
Landlord agrees that upon Tenant's paying the rent and performing and
observing the terms, provisions, conditions and covenants on its part to be
performed and observed, Tenant shall, and may, peaceably and quietly have, hold
and enjoy the Leased Premises and may use in common with others the common
facilities of the Center, as herein provided, without any manner of hindrance or
molestation from Landlord or anyone claiming under Landlord, subject, however,
to the terms of this Lease and any instruments having priority thereto.
ARTICLE XV
ARRANGEMENTS WITH MORTGAGEE
15.1 LEASE SUPERIOR OR SUBORDINATE TO MORTGAGE. It is agreed that the
rights and interests of Tenant under this Lease shall be (i) subject and
subordinate to any mortgages that may hereafter be placed upon the Center, and
to any and all advances to be made thereunder, and to the interest thereon, and
all modifications, renewals, replacements, and extensions thereof, if the
mortgagee named in said mortgages shall elect by written notice delivered to
Tenant to subject and subordinate the rights and interest of Tenant under this
Lease to the lien of its mortgage or (ii) prior to the lien of any present or
future mortgagee, if the holder of such mortgage shall elect, by written notice
to Tenant, to give the rights and interest of Tenant under this Lease priority
over the lien of its mortgage. In the event of either such election and upon
notification by such mortgagee to Tenant to that effect, the rights and interest
of Tenant under this Lease shall be deemed to be subordinate to, or to have
priority over, as the case may be, the
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lien of said mortgage, whether this Lease is dated prior to or subsequent to the
mortgage. Tenant further agrees to attorn to and recognize any successor
landlords, whether through foreclosure or otherwise, as if such successor
landlord were Landlord named herein. Tenant shall execute and deliver whatever
instruments may be reasonably required for all of the above purposes. Tenant
also agrees that if it shall fail at any time to execute, acknowledge, or
deliver any such instrument requested by Landlord, Landlord may, in addition to
any other remedies available to it, execute, acknowledge and deliver such
instrument as the attorney-in-fact of Tenant and in Tenant's name; and Tenant
hereby makes, constitutes and irrevocably appoints Landlord as its
attorney-in-fact for that purpose. The word "mortgage" as used herein includes
mortgages, deeds of trust, or other similar instruments, and modifications,
consolidations, extensions, renewals, replacements and substitutes thereof.
15.2 SUBORDINATION TO OVERLEASE. If at any time during, the Lease Term or
any extension thereof Landlord shall hold the Leased Premises and/or the Center
as lessee or tenant from an person, firm or corporation owning the fee thereof,
whether such leasehold or tenancy shall come or have come into existence before,
after or simultaneously with the Commencement Date of the Lease Term, then this
Lease and all of the terms, provisions and covenants herein contained shall be
subject and subordinate to such Lease (the "Overlease") whereby Landlord holds
the Leased Premises and/or Center; and Tenant covenants that it will not do or
permit to be done on or with respect to the Leased Premises and the Center any
act or thing whatsoever which may be a violation of the terms of the Overlease.
15.3 TENANT'S STATEMENT. Within ten (10) days after request therefor by
Landlord, Tenant shall deliver to Landlord or to any prospective mortgagee or
purchaser a certificate in recordable form stating (to the extent such is the
case) that this Lease as originally executed (unless otherwise noted) is in full
force and effect. Tenant is the tenant under this Lease, the Lease is
subordinate to specified mortgages and that Tenant has no claim against Landlord
or defense against any requirement under this Lease except those stated in the
certificate. The delivery of such statement shall constitute an irrevocable
waiver of all claims of whatever nature then known and accrued by Tenant against
Landlord arising out of or in any way connected with this Lease, other than
claims specified therein.
15.4 NOTICE TO MORTGAGEE. After receiving, written notice from any person,
firm or other entity, that it holds a mortgage which includes as a part of the
mortgaged premises the Leased Premises, Tenant shall, so long, as such mortgage
is outstanding and if so requested by Landlord or mortgagee, be required to give
such holder the same notice as is required to be given to Landlord under the
terms of this Lease, but such notice may be given by Tenant to Landlord and such
holder concurrently. It is further agreed that such holder shall have the same
opportunity to cure any default and the same time plus an additional period of
twenty (20) days within which to effect such curing as is available to Landlord,
and, if necessary to cure such default, such holder shall have access to the
Premises.
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15.5 REQUEST BY MORTGAGEE. In the event that the holder of any mortgage or
prospective mortgage on the property of which the Leased Premises are a part
shall request any modification of any of the provisions of this Lease not having
a material adverse effect on Tenant's rights, Tenant agrees Tenant will enter
into a written agreement in recordable form with such holder or prospective
holder, which shall effect such modification and shall provide that such
modification shall become effective and binding upon Tenant and shall have the
same force as an amendment to this Lease in the event of a foreclosure or other
similar action taken by such holder or prospective holder. A provision directly
relating to the rents payable hereunder, the duration of time hereof, or the
size, use, or location of the Leased Premises shall be deemed a provision having
a material adverse effect on Tenant's rights.
15.6 ASSIGNMENT OF RENTS. With respect to any assignment by Landlord of
Landlord's interest in this Lease, or the rents payable hereunder, conditional
in nature or otherwise, which assignment is made to the holder of any mortgage
on the Leased Premises. Tenant agrees that the execution thereof by Landlord,
and the acceptance thereof by the holder of such mortgage shall never be deemed
an assumption by such holder of any of the obligations of Landlord hereunder,
unless such holder shall, by written notice sent to Tenant, specifically elect,
or unless such holder shall foreclose the mortgage, take possession of the
Leased Premises, and agree in writing to so assume Landlord's obligations.
ARTICLE XVI
RESERVED
ARTICLE XVII
SECURITY DEPOSIT
Tenant agrees that the Security Deposit specified in Section 1.2 will be
paid upon execution and delivery of this Lease, and that Landlord shall hold the
same throughout the Lease Term as security for Tenant's performance of ail its
obligations under this Lease. Landlord shall have the right from time to time
without prejudice to any other remedy Landlord may have on account thereof, to
apply such deposit, or any part thereof, to Landlord's damages arising from any
default on the part of Tenant. If all or any part of the deposit is applied to
an obligation of Tenant hereunder, Tenant shall immediately upon request by
Landlord restore said deposit to its original amount. Landlord upon written
request shall return the Security Deposit, or so much thereof as shall not have
theretofore been applied in accordance with the team of this Article XVII, to
Tenant on the expiration or earlier termination of the Lease Term and Tenant's
surrender of possession of the Leased Premises to Landlord, so long as Tenant
shall not then be in default. While Landlord holds the Security Deposit, it
shall have no obligation to pay interest thereon (provided that at the end of
the Term, so long as Tenant has not been in Default, Landlord shall pay Tenant
interest on the Security Deposit calculated at the rate of 3% per annum simple
interest) and Landlord shall have the right to commingle the same with
Landlord's funds.
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If Landlord conveys its interest under the Lease, the deposit,
or any part thereof not previously applied may be turned over co the grantee,
and Tenant agrees to look solely to such grantee for proper application of the
deposit in accordance with the terms of this Article XVII, and the return
thereof in accordance herewith.
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
18.1 ADDITIONAL DEFINITIONS AND INTERPRETATIONS.
(a) The words "LANDLORD" and "TENANT" and the pronouns referring thereto,
as used in this Lease, shall mean, where the context requires or admits, the
persons or entities named herein as Landlord and Tenant, respectively, and their
respective heirs, legal representatives, successors and assigns, irrespective of
whether singular or plural, masculine, feminine or neuter. Except as otherwise
provided herein, the agreements and conditions in this Lease contained on the
part of Landlord to be performed and observed shall be binding upon Landlord and
its heirs, legal representatives, successors and assigns and shall inure to the
benefit of Tenant and its heirs, legal representatives, successors and assigns;
and the agreements and conditions on the part of Tenant to be performed and
observed shall be binding upon Tenant and shall inure to the benefit of Landlord
and its heirs, legal representatives, successors and assigns.
(b) If Tenant shall consist of more than one person or entity, or if there
shall be a guarantor of Tenant's obligation, then the liability of all such
persons or entities, including the -guarantor, if any, shall be joint and
several and the word "Tenant," as used in this Lease, including without implied
limitations Sections 13.1 and 13.3, shall include such person or entities,
including any guarantors.
(c) It is understood that the word "Landlord" as used in this Lease means
only the owner, or the lessee, if this Lease becomes subject to an Overlease, or
the mortgagee in possession of the Leased Premises, for the time being, so that
in the event of any sale or sales of the Leased Premises or of any lease thereof
or if any mortgagee shall take possession of the Leased Premises, Landlord named
herein shall be and hereby is entirely relieved and freed of all covenants and
obligations of Landlord hereunder accruing thereafter.
(d) Each term and each provision of this Lease to be performed by Tenant
shall be construed to be both a covenant and a condition. The reference
contained to successors and assigns of Tenant is not intended to constitute a
consent to assignment by Tenant, but has reference only to those instances in
which Landlord may later give written consent to a particular assignment;
provided, however, that Tenant shall not have the right to assign this Lease or
sublease any portion of the Premises and that Landlord may unreasonably withhold
consent to an assignment or sublease for which Tenant requests Landlord's
consent. If the entity which holds Landord's interest in this Lease shall be a
trust, then the obligations of Landlord shall be binding
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upon the trustees of said trust, as trustees and not individually, and shall be
binding upon the trust estate.
18.2 ADDITIONAL RIGHTS OF LANDLORD. Landlord reserves the right at any time
or times during the term of this Lease to use the roof, foundation or exterior
walls, other than parts of the front of the Premises, for signs or in connection
with additional construction.
18.3 COSTS AND EXPENSES. Wherever in this Lease provision is made for the
doing of any act by Landlord or Tenant, it is understood and agreed that said
acts shall be done by the party designated at its own cost and expense unless a
contrary intent is expressed.
18.4 HOLDING OVER. If Tenant or anyone claiming under it shall remain in
possession of the Leased Premises or any part thereof after the expiration of
the Lease Term without written agreement between Landlord and Tenant, the party
remaining in possession shall, prior to acceptance of rent by the Landlord, be
deemed a tenant at sufferance, and, after acceptance of rent by Landlord, be
deemed a tenant at will subject to the provisions of this Lease insofar as the
same may be made applicable to a tenancy at will; provided, however, that the
Minimum Rent for the period of such tenancy shall be one and one-half of the
highest rate of Minimum Rent payable during the Lease Term and provided further
that Tenant shall be liable for all damages resulting from or related to such
holdover including delay damages payable to future tenants and damages resulting
from the loss of prospective tenants.
18.5 MECHANICS LIEN. Tenant agrees immediately to discharge (by payment, by
filing of any necessary bond or otherwise) any mechanic's, materialmen's or
other lien against the Leased Premises and/or Landlord's interest therein which
may arise out of any payment due for, or purported to be due for, any labor,
services, materials, supplies, or equipment alleged to have been furnished to or
for Tenant in, upon, or a bout the Leased Premises.
18.6 NO BROKERAGE. Landlord shall pay a commission In the amount of
$6,626.50 to the Broker identified in Section 1.2. Tenant warrants and
represents that it has dealt with no broker in connection with this Lease except
the Broker identified in Section 1.2. In the event of any brokerage claim
against Landlord predicated upon dealings with Tenant, except claims by the
Broker identified in Section 1.2, Tenant agrees to defend the same and indemnify
Landlord against any such claim.
18.7 NOTICES. Whenever, by the terms of this Lease any notice, consent, or
other communication relating, to this Lease shall or may be given, such notice
shall be given in writing and shall be mailed by registered or certified mail or
overnight express mail such as "Federal Express", postage prepaid, to the other
party at the address designated in Section 1.2 or to such other address or
addresses as may from time to time hereafter be assigned by such party by like
notice, and if to a mortgage under Article XV, to such address as the mortgagee
shall designate. Notwithstanding, the foregoing, written notice addressed to
Tenant delivered to the Leased Premises shall be deemed duly given.
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18.8 NO WAIVER. Failure of Landlord to complain of any act or omission on
the part of Tenant, no matter how long, the same may continue, shall not be
deemed to be a waiver by Landlord of any of its rights hereunder. No waiver by
Landlord at any time, express or implied, of any breach of any provision of this
Lease shall be deemed a waiver of a breach of any other provision of this Lease
or a consent to any subsequent breach of the same or any other provision. If any
action by Tenant shall require Landlord's consent or approval, Landlord's
consent to or approval of such action on any one occasion shall not be deemed a
consent to or approval of such action on any subsequent occasion or a consent to
or approval of any other action on the same or any subsequent occasion. No
payment by Tenant or acceptance by Landlord of a lesser amount than shall be due
from Tenant to Landlord shall be deemed to be anything but payment on account
and the acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon or upon a letter accompanying said check that
said lesser amount is payment in full shall not be deemed an accord and
satisfaction and Landlord may accept said check without prejudice to recover the
balance due or pursue any other remedy. Any and all rights and remedies which
Landlord may have under this Lease or by operation of law, either at law or in
equity, upon any breach shall be distinct, separate and cumulative and shall not
be deemed inconsistent with each other; and no one of them, whether exercised by
Landlord or not, shall be deemed to be in exclusion of any other; and any two or
more of such rights and remedies may be exercised at the same time.
18.9 FORCE MAJEURE. In the event that either party shall be delayed or
hindered in or prevented from the performance of any act required hereunder,
other than paying money, by reason of strikes, lockouts, labor troubles,
inability to procure materials, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war or other reasons of a like nature not
the fault of the party delayed in performing work or doing acts required under
the terms of this Lease, then performance of such act shall be excused for the
period of the delay and the period for such party's performance of any such act
shall be extended for a period equivalent to the period of such delay. The
provisions of this Section shall in no event operate to excuse Tenant from the
prompt payment of Minimum Rent, Additional Rent or any other payments required
by this Lease. In any case where work is to be paid for out of insurance
proceeds or condemnation awards, due allowance shall be made, both to the party
required to perform such work and to the party required to make such payments,
for delays in the collection of such proceeds or awards.
18.10 RECORDING. Tenant shall not record this Lease. Upon request by either
party, the other party shall execute a notice of lease in statutory form setting
forth the Commencement Date, Lease Term and Extension Options, if any, and such
other information as may be required by Massachusetts General Laws Chapter 183,
Section 4 or any successor statute. The notice of lease shall include a
statement that it is not intended to and shall not alter the terms of the Lease.
18.11 WHEN LEASE BECOMES BINDING. Landlord's employees or agents have no
authority to make or agree to make a lease or any other agreement or undertaking
in connection
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herewith. The submission of this document for examination and negotiation does
not constitute an offer to lease, or a reservation of, or option for, the
premises, and this document shall become effective and binding only upon the
execution and delivery hereof by both Landlord and Tenant and the entry into an
agreement by Landlord with the existing, tenant of the leased Premises for
surrender thereof. All negotiations, considerations, representations, and
understandings between Landlord and Tenant are incorporated herein and may be
modified or altered only by the written agreement signed by Landlord and Tenant.
No act or omission of any employee or agent of Landlord shall alter, change or
modify any of the provisions hereof.
18.12 INTENTIONALLY OMITTED.
18.13 LATE CHARGES; INTEREST; BAD CHECKS. In the event (i) the Minimum Rent
and/or any Additional Rent is not received by Landlord by the due date, or (ii)
of a dishonored bank check from Tenant, and because actual damages for a late
payment or for a dishonored check are extremely difficult to fix or ascertain,
but recognizing that damages and Injury result therefrom, Tenant agrees to pay
$500.00 as liquidated damages for each late payment and $150.00 as liquidated
damages for each time a check is dishonored. In addition, Tenant agrees that
Landlord may, at its option, charge interest from the initial due date at the
rate of eighteen percent (18%) on all amounts not received by Landlord within
five (5) business days of the due date therefor. In the event that the rate of
interest so required to be paid plus the late payment exceeds the maximum rate
lawfully chargeable, the rate of interest required to be paid herein shall be
deemed amended to reduce it to the maximum rate which may be lawfully
chargeable. In the event that two (2) or more of Tenant's checks are dishonored,
Landlord shall have the right, in addition to all other rights under this Lease,
to demand all future payments by certified or bank check or money order.
18.14 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the construction,
interpretation or meaning of the provisions of this Lease.
18.15 GOVERNING LAW. This Lease and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the Commonwealth
of Massachusetts.
18.16 SEPARABILITY: CONSTRUCTION AND INTERPRETATION. If any term or
provision of this Lease, or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law. It is the
intention of the parties hereto that if any provision of this Lease is capable
of two constructions, one of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
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18.17 ENTIRE AGREEMENT. This Lease shall constitute the only agreement
between the parties relative to the Leased Premises. No oral statements and no
prior or contemporaneous written matter, whether by the parties or their agents
or any other person, which is not specifically incorporated herein shall be of
any force or effect. In entering into this Lease, Tenant relies solely upon the
representations and agreements contained herein. This Agreement shall not be
modified except by writing executed by both parties.
18.18 EXECUTION. This Lease may be executed in any number of original
counterparts. Each fully executed counterpart shall be deemed an original for
all purposes.
18.19 CONTINGENT. Tenant acknowledges that the approval of Landlord's first
mortgage holder is required before this Lease becomes effective. Landlord agrees
to request such approval promptly and to notify Tenant of the response of the
first mortgage holder upon receipt thereof. This Lease also is contingent upon
Landlord entering into an agreement, acceptable to Landlord, with the existing
tenant of the Leased Premises for surrender of such space and the termination of
the lease therefor.
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EXECUTED AS A SEALED INSTRUMEINT.
LANDLORD: WELLPLAY ASSOCIATES
LIMITED PARTNERSHIP
By: WELLPLAY GP, INC.
Attest/Witness:
- --------------------------- By:
------------------------------
Print Name: Print Name:
---------------- ----------------------
Title:
----------------------------
TENANT: DIRECT HIT TECHNOLOGIES, INC.
By: /s/ Michael Cassidy
------------------------------
Attest/Witness:
- --------------------------- By: CEO
------------------------------
its
hereunto duly authorized
Print Name:
----------------
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PARCEL THREE
A certain parcel of land situated in Wellesley, County of Norfolk,
Massachusetts, bounded and described as follows:
WESTERLY: by the Easterly line of Forest Street, two hundred
eleven and 65/100 (211.65) feet;
NORTHWESTERLY: one hundred forty-nine and 60/100
(149.60) feet;
NORTHEASTERLY: fifty (50) feet, by land now or formerly
of W. Leslie Bendslev et al, Trustees;
SOUTHEASTERLY: sixty-four and 36/100 (64.36) feet;
NORTHEASTERLY: one hundred eight and 97/100 (108.97)
feet, by lot numbered 1, as indicated on
plan hereinafter referred to; and
SOUTHEASTERLY: by land now or formerly of The
Commonwealth of Massachusetts Cochituate
Aqueduct, two hundred twenty-one and
08/100 (221.08) feet.
Said parcel is shown as Lot 2 on a plan entitled "Subdivision Plan of Land
in Wellesley", prepared by Gleason Engineering Company, dated July 24, 1964,
filed with the Land Registration Office as No. 21347C.
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EXHIBIT B
PLANS SHOWING THE LOCATION OF
THE LEASED PREMISES AND THE
COMMON AREAS OF THE CENTER
SEE ATTACHED PLANS
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EXHIBIT C
WORK BY LANDLORD
Tenant acknowledges that Landlord is delivering the Premises in "as is"
condition, that Tenant has had the opportunity to inspect the Premises and is
satisfied with the condition of same.
If any of the following work is required in the Leased Premises, it will be
accomplished by Landlord at Landlord's actual cost, plus fifteen percent (15%)
for the cost of administration. Architectural or engineering fees incurred by
Landlord as a result of Tenant requesting any of the below-mentioned items will
be the responsibility of Tenant. Landlord will commence this work only upon
receipt of a signed work order from Tenant. The cost of any such item of work
will be payable to Landlord fifty percent (50%) upon return of signed work order
from Tenant with balance to be payable upon completion or by the date on which
Tenant opens for business, whichever is sooner.
Items included in the above are as follows:
1. With Landlord's written permission, new or additional water service or
relocation of water service.
2. With Landlord's written permission, new or additional sanitary sewer
connection or relocation of sanitary sewer.
3. With Landlord's written permission, roof and wall openings for any purpose.
Such openings as are provided will include supporting structures, curbs,
flashing, ducts, vents and grilles. Landlord reserves the right to refuse
to permit the furnishings of any openings which exceed the capability of
the structural system or which in Landlord's opinion would have an
appearance detrimental to the Building or Center.
4. Any Tenant equipment that requires mounting on the roof must be installed
by Landlord. Landlord reserves the right to refuse to permit the
installation of any roof or wall-mounted equipment if, in Landlord's
opinion, the appearance of such equipment would be detrimental to the
appearance of the Building or Center, or such equipment or installation
would exceed the capacity of the structural system.
5. With Landlord's written permission, openings in demising partitions and
exterior walls.
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EXHIBIT D
TENANT'S WORK
GENERAL
All work set forth in this Exhibit "D", and all other work which is
necessary to complete the Leased Premises in accordance with Tenant's Final
Plans and which is necessary for the Leased Premises to be ready to open for
business with the public, in the manner set forth in the Lease, shall be done by
Tenant at Tenant's own cost and expense, and is herein collectively referred to
as "TENANT'S WORK".
All work performed by Tenant or Tenant's contractors must be in compliance
with all applicable codes, rules, laws and ordinances and be performed in a
good, workman-line manner in accordance with all manufacturer's recommendations
as well as published industry standards.
Insurance
Prior to the start of Tenant's Work and until final acceptance of Tenant's
Work by Landlord, Tenant shall secure and maintain liability insurance in
accordance with the following requirements. Cost of this insurance will be the
responsibility of Tenant, and the insurance will be maintained in a company
licensed to do business in Massachusetts.
Liability insurance shall include all major divisions of coverage and be on
a comprehensive general liability basis including:
1. General
Premises-Operations (including- X-C-U)
Independent contractor's protection
Blanket contractual
Owned, non-owned and hired motor vehicles
Broad form coverage for property damage
(including explosion, collapse and underground).
2. a. Workman's Compensation - Statutory
b. Employer's Liability - $1,000,000.
3. Comprehensive General Liability
a. Bodily Injury - including personal injury with employee exclusion
deleted.
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Each person - $1,000,000.
Each occurrence - $ 1,000.00
Aggregate - $1,000,000.
b. Property Damage
Each occurrence - $500,000.
Aggregate - $500,000.
4. Automobile Liability
a. Bodily Injury
Each person - $500,000.
Each occurrence - $ 1,000,000.
b. Property Damage - $500,000.
5. Independent Contractors - $1,000,000.
6. Products and completed operations - $1,000,000.
7. Blanket Contractual Liability - same limits as above.
Tenant shall furnish Insurance Certificates which shall specifically set
forth evidence of all coverage required above. The form of Certificate shall be
AIA Document G705. Tenant shall furnish to Landlord copies of any endorsements
that are subsequently issued which amend coverage or limits.
Tenants Submission Requirements
I. Preliminary Submission Requirements for preliminary approvals:
A. One (1) set of prints
B One (1) set of sepias
1. Drawings shall contain information sufficient to communicate Tenant's
design including: materials, finishes, equipment, lighting and colors
2. Tenant's architect shall field verify all measurements within the Leased
Premises.
II. Final Submission Requirements
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A. Three (3) sets of prints of complete Contract Drawings and
Specifications
B. One (1) set sepias of complete Contract Drawings and Specifications
C. Contract Drawings shall contain:
1. Architectural Floor Plans (1/4" = 1'-0")
2. Interior Wall Elevations (1/4" = 1'-0")
3. Details and Sections (3/4" minimum)
4. Reflected Ceiling Plan (including lighting and HVAC)
5. Electrical Plan
6. Plumbing Plan
7. Specifications for items 1 through 6
8. Samples as requested by Tenant Coordinator
D. Tenant's Work shall proceed only on the basis of approved drawings.
E. Tenant is responsible for obtaining all necessary permits and
approvals prior to construction.
F. Tenant shall deliver to Tenant Coordinator all copies of insurance
certificates and building permits prior to construction.
G. Tenant Coordinator is the representative of Landlord and is the
liaison between Tenant, its architect, designer and/or contractor, and
Landlord, its architect, designer and contractor in coordinating the
design, design review and construction process.
III. A. Leased Premises
The Leased Premises shall be designed and constructed in accordance with
Exhibit "E", Playhouse Square Design Criteria, the requirements of Landlord's
fire insurance under-writer and the requirements of any governmental authority
having jurisdiction over the Center. Tenant may not install a mezzanine. The
maximum floor load shall be 100 pounds per square foot.
B. General
The floor slab or subfloor shall be covered with floor finish materials
approved by Landlord. Carpeting, shall be flamed resistant. All partitions shall
be of sheetrock, taped and spackled on both sides. All concealed framing above
ceilings or soffits shall be made of steel studs or other fire retardant
materials. All Tenant constructions must be noncombustible.
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C. Toilet Rooms
The floor slab or subfloor shall be covered with a non-porous floor
covering approved by Landlord.
D. Painting and Decorating
Exposed painted walls shall have a minimum of two coats of finish and all
natural wood shall have a minimum of two sealers coats. The walls and dry wall
ceilings of the toilet room shall have two coats of semi-gloss finish, the
equivalent approved by Landlord.
E. Fixture Supports
All Tenant improvements, other than ceilings and lighting fixtures, shall
be floor mounted unless written approval is obtained from Landlord. All wall
mounted fixtures, if approved by Landlord, shall be supported by wood blocking.
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EXHIBIT E
PLAYHOUSE SQUARE DESIGN CRITERIA
(BOTH BUILDINGS)
I. Exterior:
A. The exterior(s) and front entrance to be provided by Landlord in
accordance with plans on file with the Wellesley building inspector.
II. Design Control Area:
A. The Design Control Area is the area within the Leased Premises that
adjoins the exterior and Common Areas of the Center and/or affects the interior
or exterior appearance of the Building.
Within this Design Control Area, Landlord shall control all aspects of Tenant's
design. No penetration or alteration of materials installed by Landlord in this
Area is allowed.
B. Tenant is advised that in specific locations identified on
Landlord's reference plans, certain fixed base building electrical, mechanical
and plumbing services passing through Leased Premises have been established.
Tenant must accommodate these utilities within his design and insure that
appropriate access, as indicated on the reference plans, is provided.
Alterations to same will be at Tenant's expense.
III. Lighting:
A. Tenant shall provide a high level of incandescent illuminations
within the Design Control Area. Light track shall be recessed in lengths as
designated by Landlord. Fluorescent lighting shall not be allowed within the
Design Control Area.
B. All fixtures shall be of high standard and approved by Landlord.
C. All illuminated signs or Graphics and incandescent lighting in the
Design Control Area shall be on separate time clocks connected to Tenant's
distribution panel. Hours for operating the signage, graphics and incandescent
lighting within the Design Control Area shall be per Landlord's requirements.
D. Tenants which require specific mood-type 11-hting shall obtain
design concept approval from Landlord.
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E. No exposed fluorescent fixtures will be allowed within the Leased
Premises. Where allowed, fixtures shall be recessed or baffled.
IV. Approved Finish Materials:
A. Materials listed are to encourage variety in office and fixture
design. Any other finish materials must be approved by Landlord. Tenant shall
provide samples with its preliminary submission.
B. Finish Materials:
1. Plastic Laminates Solid colors only
2. Metals Anodized aluminum
Bronze
Copper
Brass, polished finish Duracron baked enamel
coated material, color as approved by Landlord
3. Other opaque materials Silver/gold leaf
4. Wood Solid or wood veneer, natural finish
5. Glass Clear and opaque
6. Plexiglass
7. No irritation of wood grain or imitation of any other natural
material will be accepted. Samples of materials should be
provided with preliminary submission.
C. Floor Finish Materials:
1. Wood
2. Ceramic Tile
3. Quarry Tile
4. Plus or Sisal Carpet
5. Solid Color Linoleum
6. Solid Color Rubber Tile
7. Solid Color Vinyl Tile or Sheet Stock
D. Ceiling Treatment and Finish Materials:
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1. Non-combustible materials in accordance with applicable codes and
Landlord's written approval.
E. Wall Finish Materials:
1. Non-combustible materials in accordance with applicable codes
and Landlord's written approval.
V. Tenant Work Regulations:
A. Purpose:
In order to expedite the completion of all tenant spaces with the least
amount of inconvenience to all concerned, the following rules and
regulations will be applicable to all tenants upon starting their
construction work. These regulations will be enforced to ensure no
interruption by tenant contractors to other business or public
movement.
B. Security:
Tenant will be entirely responsible for the security of the Leased
Premises during construction and the rent-free fixtures period, and
shall take all necessary steps to secure the same. Landlord shall have
no liability for any loss or damage including theft of building
materials, equipment, or supplies.
C. Working Hours:
Tenant's contractors and suppliers will be subject to restrictions
which may be imposed by Landlord's general contractor and/or Landlord
in regard to the hours of work and scheduling and coordination of work.
D. Public Safety:
It is the responsibility of Tenant to ensure that its contractors
exercise all caution in matters relating to public safety and
construction safety or standards established by authorities having
jurisdiction. Landlord's general contractor or Landlord, through
communication by Tenant coordinator, may from time to time issue
instructions to Tenant's contractor regarding safety and these
instructions must be strictly adhered to. All work is governed by the
latest Construction Safety Act and Tenant's contractor must abide with
Landlord's construction superintendent in these areas.
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E. Temporary Service:
Landlord, through its contractor when active on site, may provide for
Tenant temporary service such as may be required during the
construction phase, at Tenant's expense; otherwise Tenant shall provide
such temporary service.
F. Ceilings:
Ceilings, where ceilings separate tenant from other tenant spaces,
shall achieve one hour rating to adjacent retail tenant and two hour
rating to adjacent office tenant; submit appropriate UL designations to
Tenant Coordinator for approval.
G. Work Area:
Tenant to confirm all contractors, supplies and construction to work
area defined by Tenant's leaseline.
H. Access to Leased Premises:
Access to the Leased Premises for both construction personnel and
material handling will be restricted to such entrances as shall be
designated for each tenant's use. Prior to commencing finishing work,
Tenant must consult with Landlord's Contractor or Landlord's Tenant
Coordinator to obtain the entrance locations and timing of material
deliveries. Tenant agrees to allow Landlord and Landlord's Contractor
access to the Leased Premises during the construction period.
I. Drilling and Cutting:
Under no circumstances shall Tenant or its contractors drill or cut
chases or openings in roofs, floors, ceiling slab or any part of the
structure. Any work of this type required by Tenant shall be performed
by Landlord for Tenant's account.
J. Design Loads:
The following invitations shall be observed by Tenant in the conduct of
Tenant's Work.
1. No suspended loads will be attached to the underside of the floor or
roof structures without Landlord's written approval.
2. No wall mounted fixtures will be permitted other than those approved
in writing, by Landlord. Tenant acknowledges that the stud and drywall
demising walls are not designed to support wall mounted fixtures.
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3. No load shall be imposed upon any floor areas of the Leased Premises
in excess of 100 pounds per square foot, maximum.
K. Tenant Contractor - On Site:
Tenant shall ensure that its contractor contains its work within the
Leased Premises, at all times being, responsible for abiding by the
rules and regulations defined herein or as may additionally be imposed
by Landlord.
VI. Tenant Signage Specification:
1. Approval of Tenant Signage:
1.1 Tenant shall submit drawings of proposed signage to Landlord and/or
Landlord's representative for approval and receive written approval prior to
applying, for a sign permit, and fabricating or installing the signage.
2. Compliance with Regulations:
2.1 Tenant signage shall comply in design and construction to the
requirements of all applicable laws, codes and other regulations having
jurisdiction over the project including, but not limited to, the sign
regulations of the Town of Wellesley, MA, and the Commonwealth of Massachusetts
State Building Code.
2.2 Tenant shall apply for and receive sign permits from the Town of
Wellesley, MA prior to installation of signs.
2.3 Tenants signage shall comply with the stipulations of these
criteria.
3. Tenant Signage Design Criteria:
3.1 Tenant's sign (one per tenant space) shall be located on the
outside of the Building on supports provide by Landlord. Sign to be located at
entrance to each tenant space, or in such other space, and of such other size,
design and construction as may be designated by Landlord, notwithstanding any
provision hereinafter to the contrary.
3.2 Tenant's sign shall be made of "Calabana Cloth" as manufactured by
the Astrup Company. Color to be #6911, Emerald Green. Graphics to be white or as
approve(Ad by Landlord. Installation on the renovated Playhouse Building shall
be stretched over metal framework provided and installed on the Building by
Landlord. Installation on the new Building shall be stretched over 1/2" sealed
marine plywood provided and installed by Tenant in the sign strip provided on
the new Building or by Landlord.
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3.3 Graphics may be applied to signage cloth in the following
manner:
- silk screening
- hand painting,
- spray painting
- cut-out lettering
- heat color transfer.
3.4 Signage lighting shall be provided by Landlord in the form of
surface mounting fixtures lighting the signs from the front. Light fixtures for
the renovated buildings are to be "goose neck" type, extending from face of
building approximately 24". Signage lighting for the new Building shall be back
lit.
3.5 Tenant signs shall be 24" high (see sketch) and of maximum length
approved by Landlord and the Town. The sign shall incorporate re d accent stripe
as shown on drawing and the color shall be specified by Landlord.
3.6 Signage lettering may be a maximum height of 16" for initial or
first letter with remaining letters to be 12" maximum height (see sketch). The
horizontal dimension of the letters may not exceed the maximum sign length less
6".
3.7 Letters and logo design shall be as per the wishes of each
tenant subject to the following criteria:
A. all colors shall be approved by Landlord.
B. Signage shall be firmly attached to signage frame in manner approved
by Landlord.
C. Tenant shall be responsible for the installation of the signage.
D. Tenant shall be responsible for all costs for the fabrication,
erection and removal of sign.
E. Tenant shall be responsible for all maintenance and maintenance costs
of the sign. Tenant shall be responsible for cleaning of sign as well
as all necessary repairs. Weathered/faded signs shall be replaced at
the request of Landlord at the cost of Tenant.
4. General Requirements:
A. No sign boxes of any type will be approved.
B No chance card signs shall be affixed to front.
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C. No promotional signs of any type will be allowed.
D. For corner locations, where two front and rear exist, Tenant
shall install additional signage on the other frontage, if and
where designated Landlord and the Town.
E. For locations with front and rear (exterior) front, Tenant
shall install additional signage on the other frontage if and
where designated by and with the written approval of Landlord
and the Town.
F. Signage shall confirm to all applicable codes. Fasteners,
clips and sign company identifications shall be concealed.
G . No signs shall be attached to wood entrance doors.
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EXHIBIT F
RESTRICTIONS CONTAINED IN THE
RECORD TITLE OR PRIOR EXISTING LEASES
WHICH AFFECT THE SHOPPING CENTER:
1. State of facts contained in a survey plan entitled "Plan of Land in
Wellesley, Mass.", dated October 23, 1986, prepared by MacCarthy & Sullivan
Engineering, Inc., and matters arising subsequent to May 8, 1987, which would be
disclosed on an accurate survey of the insured premises.
2. Rights of others in so much of the insured premises as may lie within the
bounds of a public way.
3. Easements set forth in a deed from the Inhabitants of the Town of Wellesley
to Babson Institute Incorporated, dated July 24, 1920, and recorded with Norfolk
Deeds in Book 1465, Page 91.
4. Restrictions set forth in two deeds, one eleven by The Boston and Albany
Railroad to Babson Institute Incorporated, dated October 29, 1920, and recorded
with Norfolk Deeds in Book 1474, Pace 12 1, and the other eleven by Babson
Institute, Inc. to Babson Building, Company, Inc., dated April 13, 1921, and
recorded with Norfolk Deeds in Book 1490, Page 287.
5. Sewer easements in Forest Street as set forth in a taking by the Town of
Wellesley, dated February 21, 1922, and recorded with Norfolk Deeds in Book
1510, Page 84.
6. Special Permit issued by the Wellesley Zoning Board of Appeals in Case No.
ZBA 87-17, and recorded with Norfolk Deeds in Book 7510, Page 50.
7. Parking Covenant from Anne Marie Naff, Trustee of Playhouse Nominee Trust,
dated April 3, 1987, and recorded with Norfolk Deeds in Book 7510, Page 54.
8. Special Permit and Site Plan Approval issued by the Wellesley Zoning, Board
of Appeals in Case No. ZBA 87-15, recorded with Norfolk Deeds in Book 7534, Page
429, and filed with the Norfolk Registry District of the Land Court as Document
No. 520795, and related plan entitled "Plan of Land in Wellesley, Mass.", dated
March 11, 1987, prepared by MacCarthy & Sullivan Engineering, Inc., and recorded
with Norfolk Deeds in Plan Book 353, as Plan No. 597 of 1987.
9. Special Permit and Variance issued by the Wellesley Zoning, Board of Appeals
in Case No. ZBA 87-16, and recorded with Norfolk Deeds in Book 7534, Page 435.
10. Utility easement granted to Town of Wellesley (to be recorded).
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11. Current Mortgages.
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EXHIBIT G
RULES AND REGULATIONS
Tenant shall comply with such rules and regulations as Landlord may
promulgate from time to time.
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EXHIBIT H
USE RESTRICTIONS
The following use restrictions, which are specifically applicable to the Leased
Premises, shall not be deemed to imply, or to grant to Tenant, any right to use
the Leased Premises for other than the Permitted Use set forth in Section 1.2,
nor shall same be deemed a prohibition against Landlord leasing space in the
Center for such purposes. Tenant hereby confirms that the Leased Premises shall
be used solely and exclusively for the Permitted Use, and shall not be used in
whole or in part for any of the following, uses, and that Landlord has the right
to lease space in the Center to such tenants and for such purposes as Landlord,
in its sole judgment, deems appropriate.
1. The sale of juvenile furniture and juvenile linen.
2. The sale of food for on-site consumption or carry-out.
3. The sale of women's skirts, dresses, blouses or slacks.
4. The operation of a laundry or dry cleaning establishment or "drop off" or
pick up" center.
5. Photocopying or copying services including, without limitation, the operation
of an electronic graphics center, self-service or full service typesetting,
terminal rentals, duplicating, copying, offset printing, bookbinding, or any
related services.
6. The sale of art supplies or provision of framing, services, or the sale or
distribution of artist's and draftsman's supplies and consumer art supplies
including, but not limited to, oils, paints, brushes, canvases, easels and
related supplies and accessories, on-site custom and ready-made frames, framed
and unframed posters, and all kinds and types of artwork and graphics, and
related gift items.
7. The operation of a hair styling salon or the sale of products customarily
sold in a professional hair styling salon.
8. The sale of sporting goods (fishing) and related clothing and gifts.
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