LEASE
DATED DECEMBER 1, 1989,
BETWEEN
HARVARD MILLS REALTY,
A MASSACHUSETTS LIMITED PARTNERSHIP,
Landlord
METCALF & EDDY, INC.,
Tenant
Premises: Wakefield, Massachusetts
TABLE OF CONTENTS
ARTICLE PAGE
1. Premises; Term.............................................. 1
2. Commencement of Term; Completion of
Demised Premises...................................... 3
3. Rent ...................................................... 4
4. Use ...................................................... 9
5. Facilities; Utilities....................................... 10
6. Covenant of Quiet Enjoyment................................. 11
7. Surrender of Premises....................................... 12
8. Assignment, Subletting, Mortgaging.......................... 12
9. Subordination; Estoppel Certificate......................... 14
10. Entry; Right to Change Portions of the
Building.............................................. 15
11. Laws, Ordinances, Requirement of Public
Authorities........................................... 16
12. Repairs........................................................ 17
13. Alterations; Fixtures; Tenant's Property....................... 18
14. Right to Perform Other Party's Obligations..................... 20
15. Non-Liability; Limitation of Liability
of Landlord........................................... 21
16. Insurance; Indemnity........................................... 23
17. Damage by Fire or Other Cause.................................. 27
18. Condemnation................................................... 29
19. Bankruptcy..................................................... 31
20. Defaults and Remedies; Waiver of
Redemption............................................... 32
21. Definition of Landlord...................................... 35
22. Notices..................................................... 36
23. Rules and Regulations....................................... 36
24. No Broker................................................... 37
25. Miscellaneous............................................... 37
26. Successors and Assigns...................................... 40
27. Tenant's Options............................................ 40
28. (Intentionally Omitted]..................................... 41
29. Arbitration................................................. 41
Schedule I - Demised Premises
Schedule I-A - New Demised Premises (see Section 1.01)
Schedule II - Site Plan
Schedule III - Tenant's Percentage; Use
Schedule III-A - Rent
Schedule III-B - Fixed Rent for New Demised Premises (see
Section 1.01)
Schedule IV - (Intentionally omitted)
Schedule V - Non-Disturbance Agreement
Rules and Regulations
Addendum (with Schedule BB attached)
LEASE made as of this 1st day of December, 1989, made between
HARVARD MILLS REALTY, A MASSACHUSETTS LIMITED PARTNERSHIP, a Massachusetts
limited partnership having an office at 433 North Camden Drive, Suite 960,
Beverly Hills, California 90210, hereinafter referred to as "Landlord," and
METCALF & EDDY, INC., a Delaware corporation having an office at 10 Harvard
Mills Square, Wakefield, Massachusetts 01880, hereinafter referred to as
"Tenant."
W I T N E S S E T H:
RECITALS
Landlord and Tenant are the parties to an Amended and Restated
Lease, dated July 26, 1989, for space in the Building located in Wakefield,
Massachusetts, as more particularly described in that lease. The Amended and
Restated Lease, and all existing and future amendments and associated
documents collectively are called the "Existing Lease." As described below,
this Lease is for additional space in the Building.
ARTICLE 1
PREMISES; TERM
1.01. Landlord hereby leases to Tenant and Tenant hires from
Landlord the premises shown on the floor plan attached hereto as Schedule I
(hereinafter called the "Demised Premises") in the building (the "Building")
located on the land (the "Land") shown on Schedule II attached hereto. The
Land and the Building and other improvements, additions, parking facilities
and common facilities thereon (hereinafter sometimes referred to as the
"Property") are shown on the Site Plan attached hereto as Schedule II. All
of the aforementioned Schedules are hereby made part hereof. The Demised
Premises are located on the second floor of the eastern wing of the Building.
Although there is no actual demising wall within the Demised Premises, for
certain purposes under this Lease the Demised Premises are separated into two
(2) areas: Area A, containing 15,012 rentable square feet, and Area B,
containing 9,000 rentable square feet, as shown in Schedule I.
Notwithstanding the depiction of the Demised Premises in
Schedule I hereto, at Landlord's option at any time on at least sixty (60)
days' prior written notice from Landlord to Tenant, Tenant will vacate
portions of the existing Demised Premises and occupy new space on the 2nd
floor of the eastern wing of the Building so that, thereafter, the Demised
Premises will be as shown in Schedule IA attached hereto (the "New Demised
Premises") and not as shown in Schedule I, and for all purposes under this
Lease and the Existing Lease the New Demised Premises will be deemed to be the
Demised Premises without any other change in the terms of this Lease, except
that: Landlord will construct any new demising walls necessary to separate
the New Demised Premises from the rest of the space on the 2nd floor and
provide for all required electrical and HVAC modifications (including rewiring
and submetering if necessary) to separate the New Demised Premises from the
rest of the space on the 2nd floor for the purpose of monitoring electrical
usage; and the rentable square footage of Area A will be reduced to 14,779
square feet, Tenant's Percentage and the Area A Tenant's Percentage in Schedule
III will be reduced to 10.45% and 6.5%, respectively, and Schedule III-B
(Fixed Rent) thereafter will be used in place of Schedule III-A.
The Demised Premises are leased, together with the
appurtenances, including, without limitation, (a) the non-exclusive right to
use certain parking spaces in the Garage shown on Schedule II as more fully
described in Section 5.02 hereof, and (b) the right to use in common with
others any Common Areas in or around the Building, as more fully described in
Section 5.01 hereof, including ingress and egress by pedestrians and/or
vehicles to the Demised Premises, the Building and all loading and unloading
areas and all parking spaces which Tenant has exclusive or non-exclusive
rights to use; but reserving and excepting to Landlord the rights set forth in
Section 10.01.
TO HAVE AND TO HOLD unto Tenant, its successors and assigns,
for the term of approximately ten (10) years which will commence on December
1, 1989 ("Commencement Date") and which shall end at 11:59 p.m. (Boston time)
on November 30, 1999 ("Expiration Date") unless the term shall terminate
sooner pursuant to any of the terms of this Lease or pursuant to law, or shall
be extended pursuant to Article 27, YIELDING AND PAYING the rents and
additional rents hereinafter set forth, all on the covenants, conditions and
agreements hereinbefore and hereinafter stated.
Tenant will not hold over in the Demised Premises after the
Expiration Date or the earlier termination of this Lease, and will indemnify
Landlord for, and defend and hold Landlord harmless from, any and all costs,
claims, damages and liabilities (including, without limitation, claims made
by any prospective tenants and any loss of rents suffered by Landlord) arising
out of or in connection with any holding over by Tenant. If, despite this
express agreement, Tenant holds over, in addition to any other rights and
remedies of Landlord, Tenant will pay Fixed Rent for entire Demised Premises
at the rate of one and one-half (1 1/2) times the Fixed Rent payable
immediately preceding the holding over, and if any tenancy is created it will
be a tenancy at will terminable at Landlord's sole option on seven (7) days'
prior written notice to Tenant and otherwise subject to the terms of this
Lease. Nothing in this Section or elsewhere permits Tenant to hold over or in
any way limits Landlord's other rights and remedies if Tenant holds over.
ARTICLE 2
COMMENCEMENT OF TERM;
COMPLETION OF DEMISED PREMISES
2.01. Except for the work to be performed by Landlord as
specifically described below in this Section 2.01, Tenant accepts the Demised
Premises absolutely "as is," and Tenant will be solely responsible at its
expense for all other improvements and modifications necessary in connection
with the Demised Premises. On or before sixty (60) days after this Lease is
executed and Landlord and its contractors are granted full and unimpeded
access (which will be continuous throughout the construction period),
Landlord, at its cost, will:
(a) Construct a demising wall separating the Demised Premises
from the rest of the second (2nd) floor of the eastern wing of the Building as
shown in Schedule I.
(b) Unless prohibited by applicable codes: provide a lockable
door to control access from the 1st floor of the eastern wing of the Building
to the [^^^] stairway in the "Old Lobby" (as defined in Section 5.01 of the
Existing Lease); or, if Landlord elects to have Tenant move into the New
Demised Premises under Section 1.01, a lockable door to control access to the
3rd floor via that same stairway (and remove the door on the 1st floor). All
security and/or card access modifications to these doors will be Tenant's sole
responsibility and expense, but egress from the stairway through these doors
will be permitted and available at all times.
(c) Install a door and ramp that will comply with building and
fire safety codes between the Premises on the 2nd floor of the eastern wing of
the Building and the floor of the same level in the western wing of the
Building.
(d) Install a submeter (or submeters) to measure Tenant's
electrical consumption for the Demised Premises and for the premises located
on the 3rd floor of the eastern wing of the Building leased to Tenant under
the Existing Lease.
[^^^]
2.02. In the performance of Landlord's work, Landlord shall
comply with all applicable laws, ordinances, rules, regulations and
governmental orders. All of Landlord's work shall be performed in a good and
workmanlike manner using new, first-class materials.
ARTICLE 3
RENT
3.01. During the term of this Lease, Tenant covenants and
agrees to pay to Landlord a fixed minimum rent ("Fixed Rent") in lawful money
of the United States as shown in Schedule III-A attached to this Lease.
Fixed Rent shall be payable in equal monthly installments in
advance on the first day of each month during the term of this Lease at the
office of Landlord or such other place as Landlord may designate. If Tenant
does not default and fail to cure within applicable periods as described in
Section 20.01A., Fixed Rent will be abated for the first (1st) year of the
Lease for Area A of the Demised Premises, and for the first two (2) years of
the Lease for Area B of the Demised Premises (subject to and except as
provided in Section 2(b) of Schedule III). However, if Tenant defaults and
fails to cure within applicable periods (and Landlord would be entitled under
Section 20.02 to receive liquidated damages as a result of that default),
Fixed Rent for the entire Demised Premises immediately will be due and payable
commencing as of December 1, 1989 and this abatement will be void ab initio.
If Tenant defaults and fails to cure within applicable periods but Landlord
would not be entitled under Section 20.02 to receive liquidated damages as a
result of that default, then Fixed Rent for the entire Demised Premises
immediately will be due and payable from and after the date of the default and
this abatement will be void from and after the date the default. Tenant shall
make no payment to Landlord of any amount in excess of one month's advance
rent without the prior written consent of the mortgagee.
3.02.A. (1) "Taxes" shall mean the total of all real estate
taxes, assessments, special and extraordinary assessments, water charges,
sewer charges and all other governmental levies imposed upon or assessed with
respect to the Property.
(2) The term "Tax Year" shall mean the fiscal tax
year of the Town of Wakefield, Massachusetts (presently the twelve (12) months
ending June 30 of each year). In the event of any change in the tax year of
the Town of Wakefield, the Tax Year hereunder shall be changed accordingly,
and an equitable adjustment with respect to this Section 3.02. shall be made
by the parties.
B. If Landlord is required to maintain an escrow account
for Taxes with the holder of any mortgage affecting the Property and if
Landlord receives interest on such escrow deposit, then, to the extent Tenant
has timely made its monthly payments as required under Section 3.03., Tenant
shall receive an allocable portion of such interest, based upon the ratio
which the amount of the portion of Tenant's payments constituting Taxes bears
to the total escrow deposit.
C. Landlord agrees to timely pay Taxes for each year
prior to the date same may be paid without interest or penalty (or, if later,
such interest and penalty shall not be included in Taxes) and shall, upon
request, furnish Tenant reasonable evidence of such payment. Landlord may
make payments under protest or take such other steps with regard to Taxes as
will not prejudice its opportunity to successfully contest the validity or
amount thereof. Tenant agrees to render Landlord full assistance timely in
contesting the validity or amount of any such Taxes, including, but not
limited to, joining in and signing any protest or pleading which Landlord may
deem it advisable to file. Should any rebate, refund or abatement be made on
account of any Taxes, a portion of which has been paid by Tenant to Landlord
pursuant to Section 3.03., Landlord shall refund Tenant's allocable share of
such rebate, refund or abatement (after deduction of all legal and other costs
incurred in obtaining the refund) to the extent of the amount paid by Tenant,
said share to be computed in the same manner in which Tenant's payments are
computed pursuant to Section 3.03.
D. If at any time the methods of taxation of real estate
prevailing at the date of this Lease shall be altered and there shall be
levied, assessed or imposed upon real property or upon real property owners
solely in their capacity as such owners expressly in substitution, in whole
or in part, for or in lieu of increase in the present general real estate
taxes, any of the following: (i) a capital levy tax, or (ii) or a tax
specifically upon revenues or rents derived from real estate or any other tax
howsoever denominated by whatsoever authority (including, but not limited to,
any municipal, county, state or federal authority) which shall be measured or
based in whole or in part upon the value of the property or by the revenues or
rents derived therefrom, or (iii) a corporation franchise tax, or (iv) income,
profit, or (v) value added, use or other tax, then all such taxes shall be
deemed to be included in the term "Taxes" for the purposes of this Lease
computed as if the Property were Landlord's sole asset. An assessment shall
be included in the definition of Taxes for each year only to the extent of the
portion of such assessment(s) allocable to such year, computed as if paid over
the longest period permitted by law, including interest due thereon,
notwithstanding that same may actually be paid over a shorter period. Under
no circumstances shall "Taxes" ever include general income or general
franchise taxes payable by Landlord.
3.03. Tenant shall pay or reimburse Landlord for a portion of
"Expenses" (as hereinafter defined) in accordance with the following:
A. "Expenses" shall mean the sum of: (i) all costs and
expenses incurred by Landlord in the sound and prudent management, operation
and maintenance of the Land and Building and Common Areas thereof, the
services provided to tenants therein which are not the obligation of such
tenants, repairs, or replacements and improvements appropriate for the
continued operation and maintenance of the Land and Building; premiums for
fire, extended coverage, public liability and other insurance which Landlord
deems necessary; reasonable costs respecting the employees of the Landlord or
Landlord's agent, affiliates or contractors who provide services for the
Property (including, without limitation, wages) and on-site building and/or
in-state office from which those services are provided (if any); and (ii)
Taxes. "Premises Expenses" are those expenses which relate solely to the
Demised Premises (such as the cost of cleaning services, refuse removal,
security for the Building and all other services to or utilities consumed at
the Demised Premises) and the repairs required to be made by Tenant pursuant
to Section 12.03. "Common Expenses" are those expenses which relate to the
entire Property, its common facilities and to all tenants thereof (such as
electricity, cleaning, snow removal and maintenance for the Garage and other
common facilities, Taxes, insurance premiums and all Expenses which are not
Premises Expenses).
Excluded from Expenses shall be capital expenditures required
to be made by Landlord pursuant to Section 12.02, except (i) those which under
generally accepted real estate practices are regarded as deferred costs and
(ii) capital expenditures required by law, which capital expenditures shall be
included in Expenses if amortized on a straight-line basis over the useful
life of the expenditure, but in no event shall costs of any capital
improvements related to the initial rehabilitation of the Building or
construction of any tenant's premises be included as an Expense. Also
excluded from "Expenses" are depreciation, mortgage debt service, costs of
financing, rent or other charges paid by Landlord under any superior lease,
and any other costs for which Tenant would not be responsible under this Lease.
B. "Lease Year" means each successive full twelve (12) calendar
month period following December 1, 1989.
C. Tenant shall pay in the manner set forth in E below,
Tenant's Percentage, as set forth on Schedule III, of Common Expenses
(including all Taxes) for any year ("Tenant's Expense Payment").
Notwithstanding the foregoing, if Tenant does not default and fail to cure
within applicable periods as described in Section 20.01A., the portion of
Common Expenses attributable to the "Area B Tenant's Percentage" in Schedule
III will be abated for the first two (2) years of the Lease (subject to and
except as provided in Section 2(b) of Schedule III). However, if Tenant
defaults and fails to cure within applicable periods (and Landlord would be
entitled under Section 20.02 to receive liquidated damages as a result of the
default), the portion of Common Expenses attributable to the "Area B Tenant's
Percentage" immediately will be due and payable commencing as of December 1,
1989 and this abatement will be void ab initio. If Tenant defaults and fails
to cure within applicable periods but Landlord would not be entitled under
Section 20.02 to receive liquidated damages as a result of that default, then
this portion of Common Expenses immediately will be due and payable from and
after the date of the default and this abatement will be void from and after
the date the default.
D. Within ninety (90) days following the end of each Lease
Year, Landlord will provide to Tenant a report of actual Common Expenses
incurred for that Lease Year. Such report shall be accompanied by a copy of
the bill(s) for Taxes included in Expenses for such Lease Year.
E. Tenant shall pay, together with each payment of Fixed Rent,
one-twelfth (1/12th) of Tenant's Expense Payment for the preceding Lease year
as an "Interim Payment." At the expiration of each Lease Year, within thirty
(30) days after the delivery to Tenant of the report of Expenses for such
Lease Year, Tenant shall pay to Landlord the amount, if any, by which Tenant's
Expense Payment for such Lease Year exceeds the Interim Payments made during
such Lease Year. Any amount by which the Interim Payments exceed Tenant's
Expense Payments for any Lease Year shall be refunded to Tenant not later than
thirty (30) days after the report of Expenses is delivered. Notwithstanding
the foregoing, as Taxes currently are paid to the Town of Wakefield twice a
year, within fifteen (15) days after Tenant's receipt of each semi-annual bill
for Taxes from Landlord, Tenant shall pay to Landlord Tenant's Percentage of
that semi-annual bill. Tenant will receive a credit against the amount due in
an amount equal to the Taxes (if any) included within the monthly Tenant's
Expense Payments paid by Tenant after Tenant's payment of its share of the
previous semi-annual bill for Taxes.
3.04. All adjustments of rent, Taxes, Expenses and other
charges which Tenant assumes, agrees or is obligated to pay to Landlord
pursuant to this Lease shall be deemed additional rent which Tenant covenants
to pay when due. All adjustments of additional rent shall survive the
expiration of the term of this Lease. In the event of nonpayment thereof,
Landlord shall have all the rights and remedies with respect thereto as is
herein provided for in case of nonpayment of Fixed Rent. All rent shall be
payable by Tenant to Landlord without offset, reduction, abatement,
counterclaims and/or deduction except as expressly provided to the contrary;
it being agreed that if Tenant obtains a judgment against Landlord arising out
of this Lease the amount thereof (including all attorneys' fees, costs, etc.)
may be deducted from Fixed Rent and from any additional rent and from all
other charges to Tenant provided for in this Lease until paid in full. Unless
the context otherwise requires, the term "rent" shall include Fixed Rent and
additional rent. Additional rent for any partial year at the beginning or end
of the term shall be appropriately prorated.
3.05. If any of the rent payable under the terms of this Lease
shall be or become uncollectible, reduced or required to be refunded because
of any rent control, federal, state or local law, regulation, proclamation or
other legal requirement, Tenant shall enter into such agreement(s) and take
such other steps (without additional expense to Tenant) as Landlord may
request and as may be legally permissible to permit Landlord to collect the
maximum rent which, from time to time, during the continuance of such rent
restriction may be legally permissible (and not in excess of the amounts then
reserved therefor under this Lease). Upon the termination of such rent
restriction, (a) the Fixed Rent and additional rent shall become and shall
thereafter be payable in accordance with the amounts reserved herein for the
periods following such termination and (b) Tenant shall promptly pay in full
to Landlord, to the extent legally permissible, an amount equal to (i) rent
which would have been paid pursuant to this Lease but for such rent
restriction less (ii) the rent actually paid by Tenant during the period such
rent restriction was in effect.
3.06. If any installment of Fixed Rent or additional rent is
not paid when due, then, commencing with the fourth (4th) day after actual
notice to Tenant of such nonpayment, Tenant shall also pay Landlord interest
thereon at the then announced prime interest rate charged by Wells Fargo
National Bank, N.A. on ninety (90) day unsecured loans (herein called the
"Prime Rate").
ARTICLE 4
USE
4.01. Tenant shall use and occupy the Demised Premises for the
purposes stated on Schedule III, and for no other purpose.
4.02. Tenant will not at any time use or occupy the Demised
Premises, or permit same to be used or occupied, in violation of the
certificate of occupancy for the Building or in any manner which would
materially interfere with the quiet enjoyment of any other tenant in the
Building. Landlord represents and warrants to Tenant that the Permitted Use
as presently contemplated based upon information specified by Tenant would not
materially interfere with the quiet enjoyment of any other tenant in the
Building.
4.03. Landlord represents that all other portions of the
Building (except for the lowest level of the Building, which also may be used
for storage, research and development and uses which are harmonious with
office use) shall be leased to tenants only for general office use with
ancillary storage, ancillary research and development and other ancillary uses
which are harmonious with office use.
ARTICLE 5
FACILITIES; UTILITIES
5.01. Landlord shall make available at all times during the
Lease term to Tenant, its officers, agents, customers, employees and invitees
all common areas of the Property, including, without limitation, all parking
areas described in Section 5.02(b) below, lavatories (including the bathrooms
closest to Tenant's Demised Premises on the 2nd floor of the eastern wing and
access thereto), hallways, corridors, elevators, stairways, driveways,
truckways, delivery passages, truck loading areas, access and egress roads,
walkways, sidewalks and landscaped and planted areas ("Common Areas"). Also,
after the Existing Space Termination Date (defined in Section 1.03 of the
Existing Lease), Tenant will be permitted to use the loading docks and the
existing freight elevator in the eastern wing of the Building to the extent
permitted under the Existing Lease. [^^^] Landlord shall operate, manage,
equip, light, repair and maintain the Common Areas for their intended purposes
and provide for the removal of snow and ice therefrom. Landlord shall not be
liable for any inconvenience or interruption of Tenant's business resulting
from (a) the making of repairs, replacements, improvements, alterations or
additions or from the doing of any other work, by or at the direction of
Landlord, to or upon any of such Common Areas, provided Landlord has taken all
reasonable steps to minimize any such inconvenience or interruption, or (b) the
delay or failure to perform such maintenance, snow removal or other work with
respect to such Common Areas where such delay or failure is attributable to
strikes or from any cause beyond Landlord's reasonable control. Landlord may
from time to time change the size, location and nature of any Common Area
provided that Tenant's use and occupancy of the Demised Premises is not
materially adversely affected thereby. Tenant and its officers, employees,
agents, customers and invitees shall have the right, in common with Landlord
and all other to whom Landlord may from time to time grant rights, to use the
Common Areas for their intended purposes subject to the Rules and Regulations.
5.02. Landlord shall provide the following parking facilities:
forty-five (45) parking spaces on a non-assigned or designated basis in the
Garage for parking by Tenant's employees. (These parking spaces are in
addition to parking spaces provided under the Existing Lease and are not in
lieu thereof.)
5.03. Except as may otherwise be specifically set forth in
this Lease (if at all), Landlord has absolutely no obligations to provide
services or utilities to the Demised Premises,, it being understood and agreed
that all gas, electricity, water, air conditioning, sewer, security for the
Building or the Garage, cleaning, refuse removal and other services and
utilities supplied to or consumed at or in the Demised Premises shall be
furnished by Tenant at Tenant's sole cost and expense. If Tenant receives
utilities or services in the Demised Premises for which it is not directly
billed by the provider of those services Tenant will pay to Landlord, as
additional rent, the cost of those utilities and services consumed in the
Demised Premises within fifteen (15) days after the receipt of Landlord's bill
therefor. Those costs will be based on submeters, or, where submeters are not
used, Tenant's share of those costs will be based on the relative rentable
square footages of Tenant and any other tenants in the Building that share
those particular utilities and services or the master meters therefor.
5.04. Landlord shall not be responsible for providing
telephone service.
5.05. Landlord shall have no liability to Tenant for any loss
or damage caused by interruption or temporary cessation of any utility or
service beyond Landlord's reasonable control. Landlord agrees to proceed
promptly and diligently to remedy any such interruptions or cessations of any
utility.
ARTICLE 6
COVENANT OF QUIET ENJOYMENT
Landlord, its successors and assigns covenant and agree with
Tenant that, upon Tenant's paying the Fixed Rent and additional rent and
observing and performing all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed, Tenant shall peaceably
and quietly enjoy the Demised Premises, subject to the terms and conditions of
this Lease.
ARTICLE 7
SURRENDER OF PREMISES
7.01. Upon the expiration or other termination of the term of
this Lease, Tenant shall quit and surrender the Demised Premises in the order
and condition as of the Commencement Date, ordinary wear and tear, matters
which are Landlord's obligation to repair and damage by fire or other casualty
excepted, and shall remove all its property therefrom, except as otherwise
provided in this Lease, and repair any damage to the Demised Premises or the
Building caused thereby. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of the term of this
Lease. Any property of Tenant not removed at the end of the term shall be
deemed abandoned and may be removed and disposed of by Landlord at Tenant's
expense in such manner as Landlord may determine.
7.02. All alterations, decoration, installations, additions or
improvements upon the Demised Premises affixed to the realty so that they
cannot be removed without material damage shall, unless Landlord elects
otherwise, become the property of Landlord and shall remain upon, and be
surrendered with, the Demised Premises, as a part thereof, at the end of the
term, except that Tenant may remove any Alterations made by Tenant pursuant to
Article 13 if Tenant repairs any damage caused by such removal.
ARTICLE 8
ASSIGNMENT, SUBLETTING, MORTGAGING
8.01. Tenant or its legal representatives will not by
operation of law or otherwise (i) mortgage or encumber this Lease under any
circumstances, (ii) except as expressly set forth below, sublet or permit the
Demised Premises or any part thereof to be used or occupied by others, or
(iii) assign this Lease or Tenant's interest therein in whole or in part
unless the entire Existing Lease and all of Tenant's interest therein is
assigned in accordance with the terms thereof, in which case this Lease also
shall be deemed assigned to the same assignee, who shall automatically be
deemed to have assumed all obligations and liabilities under this Lease.
(a) In the event that Tenant desires to sublease all or a
portion of the Demised Premises, Tenant shall give Landlord notice thereof,
which notice shall include a copy of the proposed sublease and information
concerning the proposed sublessee's financial condition, business reputation
and the nature of its contemplated use or occupancy. Landlord shall within
thirty (30) days after receipt of all of the foregoing either consent to such
sublease or reject same. Landlord's consent shall not be unreasonably
withheld. Tenant may following receipt of consent to sublet its rights to the
Demised Premises in accordance with the terms of said proposed agreement. In
the event of any assignment or sublease, the Tenant named herein shall remain
fully liable for the obligations of the Tenant hereunder, including, without
limitation, the obligation to pay the rent and other amounts provided under
this Lease and compliance with the other provisions hereof.
(b) No assignment or subletting shall impair, limit or reduce
or otherwise affect any guaranty of Tenant's obligations hereunder.
8.02. A consent by the Landlord to any assignment or
subletting, whether by Tenant or any other tenant in the Building, shall not
be a waiver of or constitute a diminution of Landlord's right to withhold its
consent to any other assignment or subletting and shall not be construed to
relieve Tenant from obtaining Landlord's express written consent to any other
or further assignment or subletting.
8.03. If this Lease shall be assigned, or if the Demised
Premises or any part thereof be subject or occupied by any person or persons
other than Tenant, Landlord may, after default by Tenant, 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 of rent shall be deemed a waiver of the covenants in this Article,
nor shall it be deemed acceptance of the assignee, subtenant or occupant as a
tenant or a release of Tenant from the full performance by Tenant of all of
the terms, conditions and covenants of this Lease.
8.04. Each assignee, sublessee or transferee permitted or
consented to as above provided shall assume and be deemed to have assumed this
Lease and shall be remain liable jointly and severally with Tenant for the
payment of the Fixed Rent and additional rent and for the due performance of
all the terms, covenants, conditions and agreements herein contained on
Tenant's part to be performed for the term of this Lease. No assignment shall
be effective unless Tenant shall promptly deliver to Landlord a duplicate
original of the instrument of assignment, in form reasonably satisfactory to
Landlord, containing a covenant of assumption by the assignee of all of the
obligations aforesaid.
ARTICLE 9
SUBORDINATION; ESTOPPEL CERTIFICATE
9.01. Subject to the condition specified in the last sentence
of this Section 9.01, this Lease is and shall be subject and subordinate in
all respects to all mortgages which may now or hereafter affect the Land
and/or the Building, to each and every advance made or hereafter to be made
under such mortgages, and to all renewals, modifications, consolidations,
replacements and extensions of such mortgages, and to the lien of any ground
leases, overriding leases and underlying leases of the Land and/or the
Building which may hereafter be created for financing purposes. Tenant agrees
to promptly execute and deliver any instrument that Landlord, the lessor of
any such lease or the holder of any such mortgage or any of their respective
successors in interest may reasonably request to evidence such subordination.
With respect to any mortgage or ground lease now or hereafter placed upon the
Land or the Building by Landlord, Tenant's subordination thereto shall be
conditioned upon the holder of such mortgage (or lessor) entering into an
agreement with Tenant in substantially the form of Schedule V.
9.02. Landlord and Tenant each agree, at any time and from
time to time, upon not less than fifteen (15) days prior request from the
other, to execute, acknowledge and deliver to the other a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the Fixed
Rent, additional rent and other charges have been paid, and stating whether or
not to the best knowledge of the signer of such certificate, there exists any
default in the performance of any covenant, agreement, term, provision or
condition contained in this Lease, and, if so, specifying each such default of
which the signer may have knowledge, it being intended that any such statement
delivered pursuant hereto may be relied upon, as to statements from Tenant, by
Landlord and by any mortgagee or prospective mortgagee of any mortgage
affecting the Land and/or the Building, by any purchaser or prospective
purchaser of the Land and/or Building and by any landlord under a ground or
underlying lease affecting the Land and/or the Building, or, as to statement
from Landlord, by Tenant, any assignee or sublessee.
ARTICLE 10
ENTRY; RIGHT TO CHANGE PORTIONS OF THE BUILDING
10.01. (a) Tenant shall permit Landlord to erect, use,
repair, replace and maintain pipes and conduits, utility lines, and mechanical
equipment in and through the Demised Premises. Landlord or its agents or
designees shall have the right to enter the Demised Premises upon reasonable
notice and at reasonable hours (except in emergencies), for the purpose of
making such repairs or alterations as Landlord shall be required or shall have
the right to make by the provisions of this Lease and, subject to the
foregoing, shall also have the right to enter the Demised Premises for the
purpose of inspecting them or exhibiting them to prospective purchasers or
lessees of the Building or the Demised Premises, or to prospective mortgagees
or to prospective assignees of any such mortgagees. Landlord shall be allowed
to take all material into and upon the Demised Premises that may be required
for the repairs or alterations above mentioned without the same constituting an
eviction of Tenant in whole or in part and the rent reserved shall in no wise
abate, except as otherwise provided in this Lease, while said repairs or
alterations are being made.
(b) Landlord reserves the right to (and Tenant agrees to
provide) unrestricted access at all times through the Demised Premises for the
purpose of: providing emergency ingress or egress through the main elevator
and stairs located within the Demised Premises as shown in Schedules I and IA;
and providing access to the freight elevator located within the Demised
Premises for Landlord or any other tenants on the 2nd floor of the eastern
wing, all of whom are permitted to use this freight elevator on a non-
exclusive basis with Tenant on reasonable prior notice (which notice need not
ever exceed twenty-four (24) hours in advance of the proposed use).
10.02. Landlord shall have the right at any tine without
thereby creating an actual or constructive eviction or incurring any liability
to Tenant therefor, to change the arrangement or location in the Common Areas
only of entrances, passageways doors and doorways, corridors, stairs, toilets
and other like public service portions of the Building, provided that no such
changes shall be made which would (a) materially alter or affect the general
scope and nature of the Building or the Property as shown on Schedule II, (b)
eliminate or decrease the size of the Garage in any manner which would reduce
available parking for Tenant as provided in Article 5, or (c) materially
adversely affect Tenant's occupancy of the Demised Premises or of the Common
Areas as otherwise provided herein.
10.03. Landlord shall, in its implementation of the rights
granted in Sections 10.01 and 10.02 above, do so in such manner as shall not
materially interfere with Tenant's use and occupancy of the Demised Premises,
and shall not materially affect the appearance or structural components of the
Demised Premises, or decrease the size of the Demised Premises, and in such
manner as shall conform to other applicable provisions hereof.
ARTICLE 11
LAWS, ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES
11.01. Tenant shall comply with all laws, orders, ordinances
and regulations of federal, state, county and municipal authorities and with
any direction made pursuant to law or any public officers which shall, with
respect to the occupancy, use or manner of such of the Demised Premises or to
any abatement of nuisance, impose any violation, order or duty upon Landlord
or Tenant arising from Tenant's occupancy, use or manner of use of the Demised
Premises or any installations made therein by or at Tenant's request, or
required by reason of a breach of any of Tenant's covenants or agreements
hereunder. If any law or requirement referred to in this Section 11.01 is
applicable solely to Tenant's particular business or Tenant's particular use
of the Demised Premises (as opposed to such a law or requirement as would be
applicable to anyone occupying the Demised Premises or the Building), then
Tenant's compliance will be at Tenant's expense (unless such expense is caused
by Landlord's failure to fulfill any of its obligations under this Lease);
otherwise, the cost of such compliance shall be borne as elsewhere provided in
this Lease, i.e., either by Landlord (without reimbursement by Tenant) or as a
Common Expense shared by all tenants of the Building, pro rata.
11.02. If Tenant receives written notice of any violation of
law, ordinance, rule, order or regulation applicable to the Demised Premises,
it shall give prompt notice thereof to Landlord.
11.03. Except if noncompliance would render Landlord liable to
prosecution for a crime, Tenant may defer the compliance required by Section
11.01 during that period of time in which Tenant in good faith, and by
appropriate legal proceedings, is contesting the validity of any such laws,
ordinances, order, rules, regulations or requirements, provided that Tenant
first gives Landlord and the holder of any superior mortgage requiring same
assurance (which may be by bond covering the cost of compliance in favor of
Landlord and any mortgagee) reasonably satisfactory to Landlord against any
loss, cost or expense on account thereof.
11.04. Landlord represents and warrants that, to the best of
its actual knowledge (without any inquiry, investigation, inspection or due
diligence of any kind), Tenant may use the Demised Premises for offices and
storage.
11.05. Landlord shall comply or cause compliance with all laws
and ordinances and the orders, rules, regulations and requirements of all
federal, state, county and municipal government applicable to the Building and
the Land, subject to inclusion of the cost of compliance by Landlord in Common
Expenses if same constitutes an Expense and is not otherwise required to be
borne by Landlord without reimbursement by Tenant pursuant to the other
provisions of this Lease, including, without limitation, Article 12. Landlord
may, however, defer compliance required hereby during that period of time in
which Landlord (or any other tenant) in good faith, and by appropriate legal
proceedings, is contesting the validity of any such laws, ordinances, orders,
rules, regulations or requirements, provided that such deferral does not
interfere significantly with Tenant's use and occupancy of the Demised
Premises.
ARTICLE 12
REPAIRS
12.01. Except for damage described in Article 17, all damage
or injury to the Demised Premises, whether structural or non-structural, and
to its fixtures, glass, appurtenances and equipment and/or to the Building or
to its fixtures, glass, appurtenances and equipment caused by Tenant moving
property in or out of the Building or by installation or removal of furniture
fixtures or other property, or resulting from Tenant's acts, omissions or
negligence or breach of any of Tenant's covenants or agreements hereunder,
shall be repaired, restored or replaced promptly by Tenant at its sole cost
and expense. All aforesaid repairs, restorations and replacements shall be in
quality and class equal to the work provided for in the Work Letter and shall
be done in a good and workmanlike manner. If Tenant fails to make such
repairs, restorations or replacements, same may be made by Landlord at the
expense of Tenant and all sums so spent and expenses incurred by Landlord
shall be collectible as additional rent and shall be paid by Tenant within ten
(10) days after rendition of a bill or statement therefor.
12.02. Landlord shall, at its expense, make all repairs and
replacements necessary in order to keep in good order and repair the roof,
exterior walls, glass and glass windows, foundation, exterior doors, floor
slabs and other structural portions of the Building and the Demised Premises.
Landlord shall also, at its expense, make all major capital improvements (of
the type excluded from Expenses pursuant to Section 3.03A) necessary to
replace (as opposed to the regular repair and maintenance provided in Section
12.03 below of) all mechanical systems, heating, air conditioning, water,
sewer, elevator, sprinkling, smoke and fire alarm, ventilating, electrical and
utilities systems serving the Building, the Demised Premises and the Property
and the public portions of the Property. Landlord may make such repairs
during business hours. Tenant agrees to notify Landlord of the necessity for
any repairs of which Tenant may have knowledge, for which Landlord may be
responsible under the provisions of this Section, but failure to so notify
Landlord shall not relieve Landlord of its obligation hereunder to make any
such repair or replacement.
12.03. Tenant shall take good care of the Demised Premises and
the equipment, fixtures, mechanical and electrical systems and appurtenances
therein and at its sole cost and expense shall repair and maintain all
mechanical systems, heating, air conditioning, water, sewer, elevator,
sprinkler, smoke and fire alarm, ventilation, electrical and utilities systems
serving the Demised Premises (including, without limitation, those in the
powerhouse located on the Property which serves the western wing of the
Building) as and when needed to preserve them in good working order and
condition (subject to reasonable wear and tear). Landlord shall repair and
maintain the Common Areas for their intended purposes and the cost and expense
incurred by Landlord for such repairs and maintenance shall be included in
Common Expenses. Tenant shall not be responsible for the structural, roof and
other repairs which are the responsibility and obligation of Landlord pursuant
to Section 12.02.
ARTICLE 13
ALTERATIONS; FIXTURES TENANT'S PROPERTY
13.01. Tenant may from time to time make such interior,
nonstructural alterations, installations, additions or improvements which do
not affect the heating, ventilating and air conditioning system or the plumbing
system or result in exceeding the capacity of the electrical system serving
the Demised Premises (hereinafter called "Alterations") in or to the Demised
Premises, the cost of which Alterations shall not exceed $50,000.00 in the
aggregate for any one job or series of related jobs (including the cost of
Alterations under the Existing Lease for the same job or series of related
jobs) without the consent of Landlord, but upon the condition that Tenant has
given Landlord ten (10) days prior written notice of such Alterations. All
such work shall be performed by Tenant at its sole expense in a good and
workmanlike manner and in compliance with all laws and regulations of
government bodies having jurisdiction over the same.
13.02. Tenant may make alterations to the Demised Premises
other than those provided for in Section 13.01 at any time and from time to
time, provided that Tenant shall first obtain the written consent of Landlord
to such alterations, which consent shall not be unreasonably withheld, and
which consent may be subject to such reasonable conditions for the protection
of Landlord's interest as Landlord may require. Such alterations consented to
by Landlord shall constitute Alterations.
13.03. If any mechanic's lien is filed against the Demised
Premises or the Building for work claimed to have done for or materials
claimed to have been furnished to Tenant, it shall be discharged by Tenant
within twenty (20) days thereafter, at Tenant's expense, by filing the bond
required by law or payment of otherwise. If Tenant shall fail to do so,
Landlord may, at its option, do so at Tenant's expense. In addition, Tenant
shall defend, save and hold Landlord harmless from any such mechanic's lien or
claim, including, without limitation, Landlord's reasonable attorneys' fees,
costs and expenses. Landlord shall not be liable for any failure of any
Building facilities or services, including, but not limited to, the heating,
ventilating and air conditioning equipment in the Demised Premises installed
by Landlord, caused by alterations, installations, and/or additions by Tenant
and Tenant shall correct any such faulty installation.
13.04. All Alterations shall be performed in such manner so as
not to interfere with the occupancy of any other tenant nor delay or impose
any additional expense upon Landlord in the maintenance, cleaning, repair,
safety, management, or security of the Building (or the Building's equipment)
or in the performance of any improvements. If any additional expense is
incurred Landlord may collect the same from Tenant and Tenant shall promptly
pay same when billed as additional rent.
13.05. No approval of any plans or specifications by Landlord
or consent by Landlord allowing Tenant to make any improvements or any
inspection of improvements made by or for Landlord shall in any way be deemed
to be an agreement by Landlord that the contemplated improvements comply with
any legal requirements or insurance requirements or the certificates of
occupancy for the Building nor shall it be deemed to be a waiver by Landlord
of the compliance by Tenant with any provision of this Lease.
ARTICLE 14
RIGHT TO PERFORM OTHER PARTY'S OBLIGATIONS
14.01. If Tenant shall default in the observance or
performance of any term or covenants on its part to be observed or performed
under or by virtue of any of the terms or provisions in any Article of this
Lease, Landlord, without being under any obligation to do so and without
thereby waiving such default, may, at any time after five (5) days notice
(except in the event of emergency, when no notice need be given), remedy such
default for the account and at the expense of Tenant. If Landlord reasonably
makes any expenditures or incurs any obligations for the payment of money in
connection therewith, including, but not limited to, reasonable attorneys'
fees in instituting, prosecuting or defending any action or proceeding, such
sums paid or obligations incurred, as well as any damages or fines or other
expenses sustained or incurred by Landlord due to non- performance of,
non-compliance with non-observance or breach of any term, covenant or
condition of this Lease on Tenant's part to be kept, observed, performed or
complied with, together with interest at the Prime Rate and costs shall be
deemed to be additional rent hereunder and shall be paid to Landlord by Tenant
on demand.
14.02. If Landlord shall default in the observance or
performance of any term or covenant on its part to be observed or performed
under or by virtue of any of the terms or provisions in any Article of this
Lease, Tenant, without being under any obligation to do so and without thereby
waiving such default, may, at any time after five (5) days notice (except in
the event of emergency, when no notice need be given), reasonably remedy such
default for the account and at the expense of Landlord. If Tenant makes any
expenditures or incurs any obligations for the payment of money in connection
therewith, including, but not limited to, reasonable attorneys' fees in
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred, as well as any damages or fines or other expenses
sustained or incurred by Tenant due to the nonperformance of, noncompliance
with or nonobservance or breach of any term, covenant or condition of this
Lease on Landlord's part to be kept, observed, performed or complied with,
together with interest at the Prime Rate and costs, shall be paid to Tenant by
Landlord on demand. If Landlord shall fail to pay Tenant as herein provided
and Tenant secures a judgment against Landlord, Tenant may deduct the amount
thereof (together with all attorneys' fees, costs, etc.) from the Fixed Rent
and any additional rent and any other charges to Tenant under this Lease.
ARTICLE 15
NON-LIABILITY; LIMITATION OF LIABILITY OF LANDLORD
15.01. Landlord or Landlord's agents have made no
representations or promises with respect to the Building, the Land or the
Demised Premises except as herein expressly set forth, and no rights,
easements or licenses are acquired by Tenant by implication or otherwise
except as expressly set forth, in the provisions of this Lease.
15.02.A. Except for injury to any person or damage to property
caused by (a) the negligence or misconduct of Landlord or its officers,
employees, agents, contractors or invitees, (b) the failure of Landlord to
repair and maintain any portions of the Building or the Demised Premises or
the Property which Landlord is obligated to repair and maintain, (c) the
failure of Landlord to properly perform and repair Landlord's Work in
accordance with the provisions of this Lease, or (d) the failure of Landlord
to perform any other of its obligations under this Lease, Landlord's liability
shall be limited as follows: (A) Tenant agrees that all of the furnishings,
fixtures, equipment, effects and personal property of every kind, nature and
description of Tenant and of all persons claiming by, through or under Tenant
which, during the continuance of this Lease or any occupancy of the Demised
Premises by Tenant or anyone claiming under Tenant, may be on the Demised
Premise or elsewhere in the Building, shall be at the sole risk and hazard of
Tenant, and if the whole or any part thereof shall be destroyed or damaged, no
part of said loss or damage is to be charged to or to be borne by Landlord,
and (B) Landlord and its agents shall not be liable (i) for any injury (or
death) to persons or (ii) loss of or damage to property by theft or otherwise
(including, without limitation, injury, death or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity,
water, rain or snow, or leaks from any part of the Building or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from
any other place or by dampness or by other tenants or persons in the Building
which occurs within the Demised Premises or, if outside the Demised Premises,
which results from the negligence or misconduct of Tenant, its agents,
employees, contractors or invitees.
B. Except for any injury to any person or damage to any
property caused by the negligence or misconduct of Tenant, or the failure of
Tenant to perform any of its obligations under this Lease, Tenant shall not be
liable to Landlord or its agents, officers, employees or invitees, or to any
other person whomsoever, for any injury resulting in death or disability to
any person or damage to property in the Building other than within the Demised
Premises.
15.03. No recourse shall be had on any of Landlord's
obligations under this Lease or for any claim based thereon or otherwise in
respect thereof against any incorporator of Landlord, subscriber to Landlord's
capital stock, shareholder, officer or director, past, present or future, of
any corporation, or any partner or joint venturer of any partnership or joint
venture which shall be Landlord hereunder or included in the term "Landlord"
or of any successor of any such corporation, or against any principal,
disclosed or undisclosed, or any affiliate of any party which shall be
Landlord or included in the term "Landlord", or any employee or agent of
Landlord, whether directly or through Landlord or through any receiver,
assignee, agent, trustee in bankruptcy or through any other person, firm or
corporation, whether by virtue of any constitution, statute or rule of law or
by enforcement of any assessment or penalty or otherwise, all such liability
being expressly waived and released by Tenant.
15.04. Tenant shall look only and solely to Landlord's estate
and interest in and to the Building and the rents and profits therefrom for
the satisfaction of any right of Tenant arising out of this Lease, or for the
collection of a judgment or other judicial process or arbitration award
requiring the payment of money by Landlord and no other property or assets of
Landlord, Landlord's agents, incorporators, shareholders, employees, officers,
directors, partners, agents, principals (disclosed or undisclosed), joint
venturers, or affiliates shall be subject to levy, lien, execution,
attachment, or other enforcement procedure for the satisfaction of Tenant's
rights and remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder or under law, or Tenant's use and occupancy of
the Demised Premises or any other liability of Landlord to Tenant.
15.05. If by reason of the limitations on liability and
recourse provided for in Sections 15.03 and 15.04 Tenant is deprived in any
way of any of its rights or benefits provided for under this Lease and if
Tenant secures a judgment in respect of the same, which judgment is
unsatisfied by reason of the operation of said Sections 15.03 and 15.04, then
Tenant shall have the right and option either to (i) deduct the amount of its
damage or loss covered by such judgment from the rent or additional rent or
any other charges provided for under this Lease or (ii) terminate this Lease
upon thirty (30) days notice to Landlord, in which latter event such
termination shall be full satisfaction of the judgment.
ARTICLE 16
INSURANCE; INDEMNITY
16.0l.A. Tenant shall not do or permit to be done any act or
thing in or upon the Demised Premises which will invalidate or be in conflict
with the terms of the standard form of fire, boiler, sprinkler, water damage
or other standard insurance policies copies of which are delivered to Tenant
covering the Building and the fixtures and property therein; and Tenant shall
comply with all rules, orders, regulations or requirements of the Board of Fire
Underwriters or any other similar body having jurisdiction (except to the
extent such compliance is Landlord's obligation under Section 11.05), and
shall not knowingly do or permit anything to be done in or upon the Demised
Premises or bring or keep anything therein or use the Demised Premises in a
manner which increases the rate of fire insurance upon the Building or on any
property or equipment located therein over the rate in effect at the
commencement of the term of this Lease. If any requirement referred to in this
Section 16.0l.A is applicable solely to Tenant's particular business or
Tenant's particular use of the Demised Premises (as opposed to such a
requirement as would be applicable to anyone occupying the Demised Premises
or the Building), then Tenant's compliance will be at Tenant's expense (unless
such expense is caused by Landlord's failure to fulfill any of its obligations
under this Lease); otherwise, the cost of such compliance shall be borne as
elsewhere provided in this Lease, i.e., either by Landlord or as a Common
Expense shared by all tenants of the Building, pro rata.
B. Landlord represents and warrants to Tenant that the use of
the Demised Premises for the permitted uses does not and will not invalidate
or be in conflict with the Certificate of Occupancy to be obtained for the
Demised Premises or the terms of the Massachusetts standard form of fire,
boiler, sprinkler, water damage or other standard insurance policies covering
the Building and the fixtures and properties therein, or any rules, orders,
regulations or requirements of the Massachusetts Board of Fire Underwriters
or any other similar body having jurisdiction, or cause any increase in the
rate of any such insurance.
16.02. If, by reason of any failure of Tenant to comply with
the provisions of this Lease, the rate of standard fire, boiler, sprinkler,
water damage or other insurance (with extended coverage) on the Building or on
the property and equipment of Landlord or any other tenant or subtenant in the
Building shall be higher than it otherwise would be, Tenant shall reimburse
Landlord, as additional rent, for that part of the fire, boiler, sprinkler,
water damage or other insurance premiums thereafter paid by Landlord which
shall have been charged solely because of such failure by Tenant and Tenant
shall make the reimbursement on the first day of the month following such
payment by Landlord and receipt of a bill therefor, together with a
computation of such increase and statement by the insurance company (or by the
insurance broker of record who has been charged with the responsibility for
billing the company) as to Tenant's responsibility therefor. Landlord agrees
that, so long as any such failure to comply is not also a violation of law,
Landlord's sole remedy for such failure to comply which results in an increase
in insurance premiums as specified herein shall be reimbursement by Tenant of
such increase in premiums, and the same shall not be considered an event of
default hereunder.
16.03. Tenant shall obtain and keep in full force and effect
during the term, at its own cost and expense, naming and protecting Landlord
and Landlord's managing agent and any mortgagee of which Tenant shall be
notified, as well as Tenant as insureds (a) public liability insurance (with
contractual liability endorsements) to afford protections against any and all
claims for personal injury, death or property damage occurring in, upon, about
or connected with the Demised Premises, in an amount of not less then
$3,000,000.00 for injury or death arising out of any one occurrence and
$500,000.00 for damage to property in respect to any one occurrence, or in any
increased amount reasonably required by Landlord; and (b) insurance against
loss or damage by fire and such other risks and hazards as are insurable under
then available standard forms of fire insurance policies with extended
coverage, to Tenant's property for the full insurable value thereof; and (c)
such workmen's compensation insurance as may be required by law. During such
time as Tenant shall be constructing any improvements, alterations and/or
additions to the Demised Premises, Tenant shall also carry insurance covering
all physical loss, in an amount reasonably satisfactory to, and to
specifically protect, Landlord and the holder of any mortgage.
All such insurance shall be written in form and substance
reasonably satisfactory to Landlord by an insurance company of recognized
responsibility licensed to do business in Massachusetts. Upon failure of
Tenant to procure, maintain and pay all premiums therefor, Landlord at its
option may, do so, and Tenant agrees to pay the cost thereof to Landlord upon
demand as additional rent. Tenant shall cause to be included in all such
insurance policies a provision to the effect that the same will be
non-cancellable and not permitted to lapse except upon thirty (30) days' prior
notice to Landlord. On the Commencement Date, appropriate certificates shall be
deposited with Landlord. Any renewals, replacements or endorsements thereto
shall also be so deposited.
16.04.A. Tenant shall indemnify and hold Landlord harmless
from and against all claims or damage (including attorneys' fees) to person or
property occurring in or about the Demised Premises or arising from, related
to or in connection with the use or occupancy of the Demised Premises or the
conduct of Tenant's business therein or therefrom, except if caused by the
negligence of Landlord, its agents or employees, or Landlord's failure to
perform its obligations under this Lease.
B. Landlord shall indemnify and hold Tenant harmless from and
against all claims or damage (including attorneys' fees) occurring in or about
the Building of the Property excluding the Demised Premises or arising from,
related to or in connection with the use or occupancy of portions of the
Building or Property other than the Demised Premises or the conduct of
businesses therein or therefrom, except if caused by the negligence of Tenant
or Tenant's employees or agents or Tenant's failure to fulfill its obligations
under this Lease.
16.05. Landlord agrees to maintain, with insurance companies
qualified to do business in the Commonwealth of Massachusetts, in full force
during the term hereof (a) a policy or blanket policy (or policies) of general
public liability insurance (with contractual liability endorsement) under
which Tenant and Landlord are named insureds thereunder to afford protection
against claims for personal injury, death or property damage occurring in the
public portions of the Property; and (b) fire and casualty insurance in such
amounts as will impose full replacement value coverage (if available) in the
event of fire or casualty to the Demised Premises and the Building (excluding
Tenant's property); and (c) workmen's compensation insurance required by law;
and (d) builder's risk insurance during the period of construction of
Landlord's Work and other improvements. Landlord shall supply Tenant with a
certificate of insurance evidencing insurance coverage required hereunder.
Such policy shall provide that such insurance shall not be reduced or
cancelled, or any material change therein made, unless thirty (30) days prior
written notice is given to Tenant. The minimum limits of liability of such
public liability insurance shall be, with respect to personal injury and/or
death and/or property damage, $3,000,000.00.
16.06.A. Neither party shall acquire as insured under any
insurance carried by the other any right to participate in the adjustment of
loss or to receive insurance proceeds, and agrees upon request to promptly
endorse and deliver to the other party any checks or other instruments in
payment of loss in which it is named as payee.
B. In the event of any claim under this Lease by one party
hereto against the other, the claiming party shall look first to insurance
which is required to be carried under the terms of this Lease for satisfaction
of such claim. To the extent that the claim is not completely covered by such
insurance the party against whom the claim is being made shall be fully
responsible for any such deficiency in coverage, except (i) where the party
against whom the claim is made failed to carry such insurance, such party
shall have the full liability for such excess, or (ii) where the claimant
failed to carry such insurance, the claimant shall have the full liability for
such excess.
16.07. The parties hereto shall each procure and maintain in
force and effect an appropriate clause in, or endorsement on, any fire or
extended coverage insurance covering the Demised Premises and the Building and
the personal property, fixtures and equipment located therein or thereon,
pursuant to which the insurance companies waive subrogation, provided such
waiver is procurable without additional premium, and having obtained such
clause or endorsement of waiver of subrogation, each party hereby agrees that
it will not make any claims against or seek to recover from the other for any
loss or damage to its property or the property of the other, covered by such
fire and extended coverage insurance, or by any such insurance which is
required hereunder to be maintained with respect to which it is possible to
secure such provision (whether or not such insurance has actually been
maintained), reserving, however, any rights with respect to any excess of loss
or injury over the amount recovered by such insurance; provided, however, that
the release, discharge, exoneration and covenant not to sue herein contained
shall be limited by the terms and provisions of the waiver of subrogation
clause and/or endorsements and shall be coextensive therewith. If such waiver
of subrogation shall be procurable only by payment of an additional premium
therefor, notice of such requirement shall be furnished to the other party;
and if such other party fails to pay such additional premium, of if such
waiver of subrogation shall no longer be obtainable, then the provisions
hereof shall not be applicable to such other party.
ARTICLE 17
DAMAGE BY FIRE OR OTHER CAUSE
17.0l.A. If the Demised Premises shall be damaged by fire or
other cause (and this Lease is not terminated as hereinafter provided), the
damages shall be repaired to substantially their condition prior to the date
of such damage (exclusive of any Alterations performed by Tenant pursuant to
Sections 13.01 or 13.02 and exclusive of any of Tenant's property) by and at
the expense of Landlord, and until such repairs shall be made, the Fixed Rent
and other charges provided for in this Lease shall be apportioned and abated
as to the part of the Demised Premises which is not usable by Tenant. If the
Demised Premises are totally or partially damaged or are rendered wholly or
partially untenantable by fire or other casualty, Landlord shall within ten
(10) days thereafter advise Tenant whether in Landlord's judgment the Demised
Premises can be rebuilt within eight (8) months or specifying such longer
period as will be required. If the building will require eight (8) months or
less, Landlord will proceed diligently with such rebuilding and the rent and
other charges shall be abated as provided above. If the rebuilding will
require more than eight (8) months, Tenant shall have the right within ten
(10) days after receipt of Landlord's advice to elect to cancel this Lease by
notice given as in Article 22 hereof provided; and thereupon the term of this
Lease shall expire by lapse of time upon the third day after such notice is
given, and Tenant shall vacate the Demised Premises and surrender same to
Landlord.
B. If this Lease has not been terminated pursuant to Section
17.01A and (1) if the work of repairing, replacing or rebuilding the Demised
Premises or the Building shall not have been commenced within a reasonable
period, or after commencement shall not be proceeding with reasonable
continuity and diligence, or shall not have been fully completed within seven
(7) months after the date of such fire or other casualty, Tenant shall have
the right to give Landlord written notice of Tenant's intention to itself
perform such repair and if Landlord has not cured such failure within thirty
(30) days thereof the, at Tenant's option upon two days' written notice given
within fifteen (15) days after the expiration of such thirty (30) day period,
Tenant may complete such repair, replacement or rebuilding in which even
Landlord shall make available to Tenant all insurance proceeds received or
receivable under any and all policies of insurance (in the event that such
proceeds actually received by Tenant are not sufficient to fully accomplish
said repairs, restoration and rebuilding, Tenant shall have the right to
deduct the cost of such repair, replacement and rebuilding in excess of such
proceeds from the Annual Fixed Rent and other charges payable hereunder; or
(2) if Landlord has not substantially completed the making of the required
repairs to the Demised Premises within seven (7) months from the date of such
fire or other casualty, Tenant may within fifteen (15) days after the
expiration of such period serve notice on Landlord of its intention to
terminate this Lease, and if within thirty (30) days after such notice
Landlord shall not have completed the making of the required repairs, this
lease shall terminate on the expiration of the thirty-first (31st) day
following the giving of Tenant's notice as if such date were the Expiration
Date.
C. If more than twenty percent (20%) of the Demised Premises
and the premises leased under the Existing Lease (combined) or a substantial
portion of the Building shall be damaged by fire or other casualty during
years 9 or 10, or years 14, 15, 20 or 21 (assuming that the applicable
extension options have been validly exercised), of the term of this Lease,
either Landlord or Tenant may, upon written notice to the other party given
within thirty (30) days after the date of such casualty, cancel and terminate
this Lease as of the date set forth in such notice, as if such date were the
stated Expiration Date of this Lease and Landlord shall have no duty to repair
and/or restore the Demised Premises; provided if in years 9 or 14, and such
termination is by Landlord, Tenant may nullify such cancellation by exercising
its option to extend this Lease at the end of years 10 or 19 (if permitted
under and in accordance with Article 27), as the case may be, by written
notice to Landlord given within ten (10) days after receipt of such
cancellation notice (except if Landlord's cancellation is due to a
determination by landlord that the Demised Premises cannot be rebuilt within
eight (8) months pursuant to Section 17.01A).
17.02. No damage, compensation or claims shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of the
Building. Landlord shall use its best efforts to effect such repairs promptly
and in such manner as not unreasonably to interfere with Tenant's occupancy.
17.03. Landlord will use its best efforts to require that any
mortgage of the Property shall provide for application of casualty insurance
loss proceeds to the repair or reconstruction of the Building and Demised
Premises upon any casualty loss.
ARTICLE 18
CONDEMNATION
18.01. In the event that the whole of the Demised Premises
shall be condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part
of the Demised Premises or the Property shall be so condemned or taken such
that Tenant in its reasonable opinion is capable of conducting its business in
the part not so taken in the same manner and to the fullest extent as prior to
the taking, of which Tenant shall notify Landlord within thirty (30) days
thereafter, then, effective as of the date of vesting of title, the Fixed Rent
and other charges provided for in this Lease for such part shall be equitably
abated and this Lease shall continue as to such part not so taken. In the
event that only a part of the Property shall be so condemned or taken, then
(a) if (i) substantial structural alteration or reconstruction of the Building
shall, in the reasonable opinion of Landlord, be necessary or appropriate as a
result of such condemnation or taking (whether or not the Demised Premises be
affected), Landlord may, at its option, or (ii) in its reasonable opinion
Tenant cannot conduct its business in the parts not so taken in the same
manner and to the fullest extent conducted prior to the taking (it being
understood that if parking places have been taken and can be replaced within a
reasonable distance from the Demised Premises then Tenant shall be deemed
capable of so conducting its business), either party may, at its option,
terminate this Lease and the term and estate hereby granted as of the date of
such vesting of title by notifying the other in writing of such termination
within 60 days following the date on which Landlord or Tenant, as the case may
be, shall have received notice of vesting of title, or (b) if Landlord (or
Tenant, as the case may be) does not elect to terminate this Lease, as
aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, except that the Fixed Rent and other charges under this Lease shall be
abated to the extent hereinbefore provided. In the event that only a part of
the Demised Premises shall be so condemned or taken and this Lease and the
term and estate hereby granted are not terminated as hereinbefore provided,
Landlord will, at its expense, (i) restore with reasonable diligence the
remaining portions of the Demised Premises as nearly as practicable to the
same condition as it was in prior to such condemnation or taking and (ii)
replace any parking taken with substantially the same number of spaces,
reasonably proximate to the Property.
18.02. In the event of termination in any of the cases
hereinabove provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date hereinbefore specified, and the rent hereunder shall be
apportioned as of such date.
18.03. In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof,
and Tenant shall be entitled to receive no part of such award. Tenant shall
have no claim for the value of any unexpired term of this Lease. Tenant may,
however, make a separate and independent claim or claims for damages to
tenant's fixtures, furnishings, machinery and equipment, or on account of any
expenses which it shall incur in removing its fixtures, furnishings, machinery
and equipment from the Demised Premises. Landlord and Tenant shall each
cooperate and join with the other in such proceedings, including the signing
of necessary documents, all as shall be necessary to enable the maintenance of
such proceedings.
18.04. Landlord will use its best efforts to require that any
mortgages of the Property provide for application of the proceeds of any
taking awards to restoration, repair, and rebuilding of the portion of the
Property or Demised Premises remaining after the taking.
ARTICLE 19
BANKRUPTCY
19.01. If at any time prior to the date herein fixed as the
Commencement Date there shall be filed by or against Tenant in any court
pursuant to any statute either of the United States or of any State a petition
in bankruptcy, or there shall be commenced a case under the Bankruptcy Code by
or against Tenant, or a petition filed for insolvency or for reorganization or
for the appointment of a receiver or trustee of all or a portion of Tenant's
property, and within thirty (30) days thereafter Tenant fails to secure a
discharge thereof, or if Tenant makes an assignment for the benefit of
creditors, or petitions for or enters into an arrangement with its creditors,
this Lease shall ipso facto be cancelled and terminated, in which event
neither Tenant nor any person claiming through or under Tenant or by virtue of
any statute or of an order of any court shall be entitled to possession of the
Demised Premises and Landlord, in addition to the other rights and remedies
given by Section 19.03 hereof and/or by virtue of any other provision herein
or elsewhere in this Lease contained or by virtue of any statute or rule of
law, may retain as liquidated damages any rent, security, deposit or monies
received by it from Tenant or others on behalf of Tenant upon the execution
hereof.
19.02. If at the date fixed as the Commencement Date or if at
any time during the term hereby demised there shall be filed by or against
Tenant in any court pursuant to any statute either of the United States or of
any State a petition in bankruptcy, or there shall be commenced a case by or
against Tenant under the Bankruptcy Code, or a petition filed in insolvency or
for reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, and within sixty (60) days thereafter Tenant
fails to secure a discharge thereof, or if Tenant makes an assignment for the
benefit of creditors or petitions for or enters into an arrangement with its
creditors, this Lease, at the option of Landlord, exercised within a
reasonable time after notice of the happening of any one or more of such
events, may be cancelled and terminated, in which event neither Tenant nor any
person claiming through or under Tenant by virtue of any statute or of an
order of any court shall be entitled to possession or to remain in possession
of the Demised Premises but shall forthwith quit and surrender the Demised
Premises, and Landlord, in addition to the other rights and remedies given by
Section 19.03 hereof or which Landlord has by virtue of any other provision
herein or elsewhere in this Lease contained or by virtue of any statute or
rule of law, may retain as liquidated damages any rent, security, deposit or
monies received by it from Tenant or others on behalf of Tenant.
19.03. It is stipulated and agreed that in the event of the
termination of this Lease pursuant to Sections 19.01 or 19.02 hereof,
Landlord, notwithstanding any other provisions of this Lease or the Existing
Lease to the contrary, shall be entitled to recover forthwith from Tenant as
and for liquidated damages an amount equal to the difference between the rent
reserved hereunder for the unexpired portion of the term demised and the then
fair and reasonable rental value of the Demised Premises for the same period,
provided, however, that the "unexpired portion of the term" shall be the first
ten (10) years of the term plus the term(s) of any option(s) to extend
exercised pursuant to Article 27. Nothing herein contained shall limit or
prejudice the right of the Landlord to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such
amount be greater, equal to or less than the amount of the difference referred
to above. Nothing in this Article or the rest of this Lease is meant to
diminish or cancel any rights and remedies Landlord may have under this Lease,
the Existing Lease or otherwise.
ARTICLE 20
DEFAULTS AND REMEDIES; WAIVER OF REDEMPTION
20.0l.A. If (i) Tenant shall default in the payment of any
installment of Fixed Rent or additional rent reserved herein when due and such
default shall continue for ten (10) days after Tenant is given written notice
thereof, or (ii) Tenant defaults in fulfilling any of the covenants of this
Lease, other than the covenants for the payment of Fixed Rent or additional
rent, or if the Demised Premises become deserted (which for purposes hereof
shall not be deemed to have occurred if Tenant maintains a guard in the
Demised Premises and its insurance is in full force and effect), then, in any
one or more of such events, and such default shall continue for thirty (30)
days after Tenant is given written notice thereof, or if the said default or
omission complained of shall be of such a nature that the same cannot be
completely cured or remedied within said thirty (30) day period, and Tenant
shall not within said thirty (30) day period commence and thereafter with
reasonable diligence and in good faith proceed to remedy or cure such default;
or (iii) if any execution or attachment shall be issued against Tenant or any
of Tenant's property whereupon the Demised Premises shall be taken or occupied
by someone other than Tenant; or (iv) if any of the foregoing acts, omissions
or events occur under or in connection with the Existing Lease or the premises
leased thereunder (which will be deemed to be a default under this Lease); then
Landlord may serve a written three (3) day notice of cancellation of this
Lease upon Tenant, and upon the expiration of said three (3) days, this Lease
and the term hereof shall end and expire as fully and completely as if the
date of expiration of such three (3) day period were the Expiration Date and
Tenant shall then quit and surrender the Demised Premises to Landlord by
Tenant shall remain liable as hereinafter provided.
B. If the three (3) day notice provided for in Section 20.01 A
above shall have been given, and the term shall expire as aforesaid, (or if
the event specified in (i) of Section 20.01 A above shall occur whether or not
said three (3 day termination notice shall have been given), then and in any
of such events Landlord may without notice, re- enter the Demised Premises
either by force or otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other occupant of the
Demised Premises and remove their effects and hold the Demised Premises as if
this Lease had not been made but Tenant shall remain liable hereunder as
hereinafter provided, and Tenant hereby waives the service of notice of
intention to re-enter or to institute legal proceedings to that end.
20.02. In case of any such default, re-entry, expiration
and/or dispossess by summary proceedings or otherwise, (a) the Fixed Rent and
additional rent shall become due thereupon and be paid to the time of such re-
entry, dispossess and/or expiration, together with such reasonable expenses as
Landlord may incur for legal expenses, attorney's fees, brokerage, and/or
putting the Demised Premises in the order and condition provided for in
Article 7; (b) Landlord may re-let the Demised Premises or any part or parts
thereof for a term or terms, which may, at Landlord's option, be less than or
exceed the period which would otherwise have constituted the balance of the
term of this Lease; and/or (c) Tenant or the legal representatives of Tenant
shall also pay Landlord as liquidated damages for the failure of Tenant to
observe and perform said Tenant's covenants herein contained, any deficiency
between the Fixed Rent and additional rent hereby reserved and/or covenants
herein contained, any deficiency between the Fixed Rent and additional rent
hereby reserved and/or covenanted to be paid and the net amount, if any, of
the rents collected or to be collected on account of the lease or leases of
the Demised Premises for each month of the period which would otherwise have
constituted the balance of the term of this Lease; provided, however, that the
"balance of the term of this Lease" shall mean, for all purposes of this
Article 20, the first ten (10) years of the term hereof plus the term(s) of
any option(s) to extend the Lease exercised pursuant to Article 27. In
computing such damages there shall be added to the said deficiency such
expenses as Landlord may incur in connection with reletting as are provided
for in (a) above. Any such damages shall be paid in monthly installments by
Tenant on the rent days specified in this Lease and any suit brought to
collect said sums for any month or months shall not prejudice in any way the
rights of Landlord to collect the deficiency for any subsequent month or
months by a similar proceeding. In the event any installment of such damages
shall not be paid when due and such default in payment shall continue for ten
(10) days after written notice to Tenant thereof, then Landlord may
immediately accelerate such deficiency for the entire balance of the term of
this Lease (as defined above). Landlord at Landlord's option may make such
alterations, repairs, replacements and/or decorations in the Demised Premises
as Landlord in Landlord's sole judgment considers advisable and necessary for
the purpose of reletting the Demised Premises; and the making of such
alterations and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Provided that Landlord uses
reasonable efforts to relet the Demised Premises and to mitigate Tenant's
damages by so reletting, Landlord shall in no event be liable for failure to
relet the Demised Premises, or in the event that the Demised Premises are
relet, for inability to collect the rent thereof under such reletting, nor
shall any such failure or inability release or affect Tenant's liability for
damages. In the event of a breach by Tenant of any of the covenants or
provisions hereof, Landlord shall have the right of injunction and the right
to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Landlord from any other
remedy, in law or in equity. The foregoing remedies and rights of Landlord
are cumulative. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event Tenant
is evicted or dispossessed for any cause, or in the event Landlord obtains
possession of the Demised Premises by reason of the violation by Tenant of any
of the covenants and conditions of this Lease, or otherwise.
20.03. If any of the acts, omissions or events described in
Section 20.01A (i), (ii), (iii) or (iv) occur, they also automatically shall
be deemed to have occurred under and in connection with the Existing Lease and
the premises leased thereunder, and to be a default under the Existing Lease,
and Landlord shall also have all of the rights and remedies available under
the Existing Lease or otherwise with respect thereto, including, without
limitation, all rights to terminate the Existing Lease, accelerate amounts due
thereunder and collect damages from Tenant in connection therewith.
ARTICLE 21
DEFINITION OF LANDLORD
The term "Landlord" wherever used in this Lease shall be
limited to mean and include only the owner or owners at the time in question
of the Land and the Building or tenant under any ground lease hereafter
affecting the Land and the Building to whom this Lease may be assigned, or a
mortgagee in possession, as the case may be, so that in the event of any sale,
assignment, transfer or lease of the Building, such owner, tenant or mortgagee
in possession shall thereupon be released and discharged from all covenants,
conditions and agreements shall be deemed assumed by and binding upon each new
owner, tenant under such ground lease, or mortgagee in possession for the time
being, until the Building is sold, assigned or transferred; provided that the
party then constituting "landlord" at any particular time shall always be
fully responsible for all obligations of Landlord provided for in this Lease
and that Tenant's obligations under this Lease shall not be changed in any way
by operation of this Article 21.
ARTICLE 22
NOTICES
Any notice, request or demand permitted or required to be given
by the terms and provisions of this Lease, or by any law or governmental
regulation, either by Landlord to Tenant or by Tenant to Landlord, shall be
given in writing. Unless otherwise required by such law or regulation such
notice, request or demand shall be given by certified or registered mail,
return receipt requested, enclosed in a securely closed postpaid wrapper, in a
United States Government general or branch post office, or by Federal Express
or other overnight courier or by messenger service (provided in all cases that
a receipt for delivery is obtained), addressed if to Tenant at its address as
stated on the first page of this Lease; and, if to Landlord, addressed to
Landlord at its address stated on the first page of this Lease with a copy to
Brickstone Properties, Inc., 200 Brickstone Square, Andover, Massachusetts
01810, Attention: Martin Spagat; and shall be deemed to have been served and
given when received by Landlord or Tenant, as the case may be. Either party,
by notice as aforesaid may designate a different address or addresses for
notices, requests or demands to it.
ARTICLE 23
RULES AND REGULATIONS
23.01. Tenant, its servants, employees, agents, visitors, and
licensees shall observe and comply with the Rules and Regulations attached
hereto and incorporated herein. Landlord shall have the right from time to
time during the term of this Lease to make reasonable changes in and additions
to the said Rules and Regulations covering matters similar to those covered by
those attached hereto with the same force and effect as if they were originally
attached hereto and incorporated herein; provided that
(a) Landlord delivers to Tenant reasonable prior written
notice of such changes or additions together with a copy thereof;
(b) such changes or additions do not impose additional costs or
burdensome obligations on Tenant and will not materially interfere with
Tenant's use and occupancy of, or the conduct of its business operations in,
the Demised Premises, or Tenant's access to and egress from the Demised
Premises; and
(c) in the event that the provisions of any Rules and
Regulations conflict or are inconsistent with the provisions of this Lease,
the provisions of this Lease shall govern and control. Landlord shall
incorporate the Rules and Regulations substantially as annexed to this Lease
(as so modified) in all leases and occupancy agreements for space in the
Building.
23.02. Any failure by Landlord to enforce any Rules and
Regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a waiver of the enforceability of
any such Rules and Regulations, provided same are not enforced so as to
discriminate against Tenant.
ARTICLE 24
NO BROKER
24.01. Tenant represents and warrants that no brokers were
retained, used or referred to it with respect to this amendment and
restatement of the Lease and Tenant shall defend, indemnify and hold Landlord
harmless from any and all costs, claims, liability, damage or expense,
including but not limited to attorneys' fees, arising out of or resulting from
a breach of this representation and warranty.
24.02. Landlord represents and warrants that no brokers were
retained, used or referred to it with respect to the amendment and restatement
of the Lease and Landlord shall defend, indemnify and hold Tenant harmless
from any and all costs, claims, liability, damage or expense, including but
not limited to attorneys' fees, arising out of or resulting from a breach of
this representation and warranty.
ARTICLE 25
MISCELLANEOUS
25.01. Tenant shall not move any safe or heavy or bulky
equipment or other matter which would create a load in excess of 125 pounds
per square foot in or out of the Demised Premises or the Building without
Landlord's written consent, which consent Landlord agrees not unreasonably to
withhold or delay, provided Tenant shall not place a load upon any floor of
the Demised Premises which exceeds the load per square foot which such floor
was designed to carry and which is allowed by law. Tenant shall not abuse or
mistreat the Demised Premises or the installations therein.
25.02. Business machines and mechanical equipment belonging to
Tenant which may cause noise, vibration or any other nuisance that may be
transmitted to the structure or other portions of the Building or to the
Demised Premises to such a degree as to adversely affect the structure of the
Building or which may interfere with the use or enjoyment by other tenants of
their premises or the public portions of the Building, shall be placed and
maintained by Tenant, at Tenant's cost and expense, in vibration eliminators
sufficient to eliminate noise or vibration.
25.03. In the event that an excavation or any construction
should be made for building or other purposes upon land adjacent to the
Building, or should be authorized to be made, Tenant shall, if necessary,
afford to the person or persons causing or authorized to cause such excavation
or construction or other purpose, license to enter upon the Demised Premises
at reasonable hours and after reasonable notice (except in emergencies) for
the purpose of doing such work as shall reasonably be necessary to protect or
preserve the wall or walls of the Building, or the Building, from injury or
damage and to support them by proper foundations, pinning and/or underpinning,
or otherwise, provided that such work shall not significantly interfere with
Tenant's use of the Demised Premises.
25.04. Landlord shall not be deemed, in any way or for any
purpose, to have become, by the execution of this Lease or any action taken
thereunder, a partner of Tenant in its business or otherwise a joint venturer
or a member of any enterprise with Tenant.
25.05. No consent or waiver, express or implied, by Landlord
or Tenant to or of any breach of any covenant, condition or duty of Tenant or
Landlord, respectively, shall be construed as a consent or waiver to or of any
other breach of the same or any covenant, condition or duty. The failure of
Landlord to insist upon the strict performance of any of the Rules and
Regulations attached hereto or hereafter adopted by Landlord, shall not
prevent a subsequent violation from having all the force and effect of an
original violation. The receipt or acceptance by Landlord of rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. Except as may have been otherwise agreed to, no
payment by Tenant or receipt by Landlord of a lesser amount then the fixed
rent and additional rent required to be paid shall be deemed to be other than
received on account of the earliest such rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be binding on the Landlord or be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy in this
Lease provided.
25.06. This Lease with its Schedules and Annexes contains the
entire agreement between Landlord and Tenant; any executory agreement
heretofore or hereafter made between Landlord and Tenant shall be ineffective
to change, modify, waive, release, discharge, terminate or effect an
abandonment of this Lease, in whole or in part, unless such agreement of
change, modification, waiver, release discharge, termination or effecting an
abandonment, is signed by the party against whom enforcement is sought.
Landlord shall use its best efforts to secure the consent of any mortgagee of
the Demised Premises to any amendment, modification, etc. hereunder if the
same is required under the terms of any mortgage on the Demised Premises.
25.07. The captions of Articles in this Lease and its Table of
Contents are inserted only for convenient reference and in no way define,
limit or describe the scope of this Lease or the intent of any provision
hereof. References to Articles and Sections are to those in this Lease unless
otherwise noted.
25.08. This Lease shall be governed by the laws of
Massachusetts. If any term, covenant, conditions or provision of this Lease
or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease or the application
thereof to any circumstances or to any person, firm or corporation or
provision is held invalid or unenforceable, shall not be affected thereby and
each remaining term, covenant, condition and provision of this Lease shall be
valid and shall be enforceable to the fullest extent permitted by law.
25.09. Tenant and Landlord agree that they will not record
this Lease. Tenant and Landlord shall, upon the execution hereof, execute and
deliver a notice of this Lease in appropriate form to be recorded at the South
Middlesex Registry of Deeds. If this Lease is terminated before the Term
expires, the parties shall execute, deliver and so record an instrument
acknowledging such fact and the actual date of termination of this Lease, and
Tenant hereby appoints Landlord its attorney-in-fact in its name and behalf to
execute such instrument.
25.10. In any case where either party hereto is required to do
any act (other than Tenant's obligation to pay rent), delays caused by or
resulting from Acts of God, war, civil commotion, fire or other casualty, labor
difficulties, shortages of labor, materials or equipment, government
regulations or other causes beyond such party's reasonable control shall not
be counted in determining the time during which such act shall be completed,
whether such time be designated by a fixed date, a fixed time or "a reasonable
time".
25.11. In any action or proceeding or arbitration between
Landlord and Tenant, the party prevailing in such action or proceeding or
arbitration shall be reimbursed by the other party for its reasonable
attorneys' fees and other expenses of such action, proceeding or arbitration.
25.12. Tenant may not install any signs on the exterior of the
Building, or that can be seen from outside of the Demised Premises. (However,
Tenant does have additional signage rights under the Existing Lease.)
ARTICLE 26
SUCCESSORS AND ASSIGNS
The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and, except as otherwise
provided herein, their assigns.
ARTICLE 27
TENANT'S OPTIONS
Under the terms of the Existing Lease, Tenant has been granted
two (2) options to extend the term of the Existing Lease for two (2)
additional terms of five (5) years each. The first (1st) option extends the
term of the Existing Lease from December 1, 1999 through November 30, 2004,
and the second (2nd) option extends the term of the Existing Lease from
December 1, 2004 through November 30, 2009. If the term of the Existing Lease
is extended pursuant to the valid exercise of one or both of the options under
the Existing Lease, then Tenant will have the concurrent option to extend the
term of this Lease [^^-] for the same period(s) on the same terms and
conditions as this Lease, except that the Fixed Rent during the extension terms
will be as set forth in Schedule III-A, provided that: concurrently with its
delivery of its notice of exercise under the Existing Lease Tenant also
delivers unconditional written notice of exercise of its option under this
Lease; Tenant may not exercise the second (2nd) option to extend this Lease
unless it first has validly exercised its first (1st) option to extend this
Lease; these options are granted to and may be exercised by Tenant on the
express condition that, at the time of exercise and at all times prior to the
commencement date of each option period, Tenant is not in default under this
Lease or the Existing Lease; and the dates set forth in the Existing Lease,
which apply to the giving of Tenant's exercise notice under the Existing Lease
and this Lease, shall not be extended for any reason whatsoever, and time
shall be of the essence.
ARTICLE 28
(INTENTIONALLY OMITTED]
ARTICLE 29
ARBITRATION
29.01. Any disputes relating to the obligations or provisions
of this Lease (if demand for arbitration is given prior to the sixtieth (60th)
day after the notice of default as to defaults specified in Section 20.01A),
shall be determined by arbitration conducted in the manner hereafter
specified.
The party demanding such arbitration shall give written notice
thereof to the other party and shall in such notice appoint an arbitrator.
Within 20 days thereafter the other party shall by written notice to the
original party appoint a second arbitrator. The arbitrators thus appointed
shall appoint a third arbitrator and such three arbitrators shall as promptly
as possible determine the disputed meaning or application, provided that:
(a) if the second arbitrator shall not have been appointed as
aforesaid the first arbitrator shall alone proceed to determine such matter;
(b) if the two arbitrators appointed by the parties shall be
unable to agree upon the selection of such third arbitrator within fifteen
days after the appointment of the second arbitrator, they or either of them
shall give written notice of such failure to agree to the parties, and, if the
parties fail to agree upon the selection of such third arbitrator within
fifteen days after the arbitrators appointed by the parties give notice as
aforesaid, then the third such arbitrator shall be the president of the Greater
Boston Real Estate Board, or on his failure, refusal or inability to act, the
parties may apply for such appointment to a court of competent jurisdiction.
Each arbitrator shall be qualified by virtue of experience in the area of the
matter under dispute. The parties shall be entitled to present evidence to
the arbitrators in support of their respective positions;
(c) the arbitrators may not make any determination inconsistent
with any of the terms of this Lease or deprive any parties thereto of any
right or warranty reserved in the Lease, or decided any matter other than the
specific issue referred to arbitration as herein provided;
(d) the determination of the majority of the arbitrators, or of
the sole arbitrator, as the case may be, shall be conclusive upon the parties.
The arbitrators, or the sole arbitrator, as the case may be, shall give written
notice to the parties stating their or his determination, and shall furnish to
each party a signed copy thereof;
(e) the fees and expenses of the arbitrators and the other
expenses of the arbitration properly incurred hereunder shall be paid as
provided in Section 25.11. Judgment on the award may be entered in any court
of competent jurisdiction; and
(f) While the computation of an amount may be in dispute, the
non-payment of any Fixed Rent or additional rent shall not be subjected to
arbitration, and all such amounts shall be paid as billed pending resolution
of any dispute, and any overpayment shall be promptly repaid following such
determination. In the event a dispute involves performance of an obligation,
the nonperformance of which constitutes or would create an emergency or cause a
default under any mortgage or ground lease, same may be performed by the other
party at its option and the arbitrators shall determine the responsibility for
the payment of the cost of such performance.
IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this Lease as of the date first above written.
HARVARD MILLS REALTY,
A MASSACHUSETTS LIMITED PARTNERSHIP
By: NIUNA-WAKEFIELD, INC.,
General Partner
WITNESS:
- -------------------------- By: ---------------------
(signature) Martin Spagat
Vice President and
Assistant Treasurer
- -------------------------- -------------------------
Name printed
METCALF & EDDY, INC.,
a Delaware corporation
WITNESS:
- -------------------------- By: ---------------------
(Signature) President
- -------------------------- -------------------------
Name printed Name printed
WITNESS:
- -------------------------- By: ---------------------
(Signature) Secretary or Treasurer
- -------------------------- -------------------------
Name printed Name printed
SCHEDULE I
DEMISED PREMISES
2nd Floor - Eastern Wing
SCHEDULE IA
THE NEW DEMISED PREMISES
2nd Floor - Eastern Wing
SCHEDULE II
SITE PLAN
HARVARD MILLS, WAKEFIELD, MASSACHUSETTS
SCHEDULE III
TENANT'S PERCENTAGE; USE
1. Tenant's Percentage: 10.55% (combined Area A and Area B)
(a) Area A Tenant's Percentage: 6.6%. NOTE:
ADDITIONAL
(b) Area B Tenant's Percentage: 3.95% TENANT'S
PERCENTAGE
PURSUANT
TO
ADDENDUM
2. Use:
(a) As to Area A of the Demised Premises, for general office
use, including executive, administrative and clerical offices and uses
ancillary thereto which are harmonious with office use.
(b) As to the Area B of the Demised Premises, for the storage
of Tenant's records and office supplies, furniture and unplugged equipment, or
for the uses described in subparagraph (a) above (subject to compliance with
all laws).
Although Area B is and will remain part of the Demised Premises
under this Lease, in order to make the most efficient use of its space, Tenant
may designate one or two other locations within the premises leased to Tenant
under the Existing Lease (the "Swap Locations") which will, in effect, be used
in place of Area B only for the purpose of determining whether Fixed Rent and
a portion of Common Expenses continue to be abated as described below. Tenant
must designate the Swap Locations (whether one or two) pursuant to a written
notice to Landlord given no later than January 31, 1990. The Swap Locations
must be clearly and distinctly designated (with dimensions) on floor plans
attached to this notice, and the square footage of each Swap Location must be
included in this notice. (The square footage of the Swap Location(s) must be
within 10% of the rentable square footage of Area B, and Tenant's measurements
will be subject to remeasurement and approval by Landlord.) If this notice is
not given as required, there will be no Swap Location(s), but if this notice
is given as required the Swap Location(s) cannot be changed.
If Tenant uses Area B (assuming no Swap Locations are
designated) or a Swap Location for any use other than solely for the storage
of Tenant's records, office supplies, furniture and unplugged equipment, or
for use or occupancy by people for any purpose other than while actually
placing or retrieving stored items in the ordinary course of business, then
Tenant will immediately notify Landlord in writing. (For example, the
establishment or occupation of temporary or permanent offices or areas by
people who place or retrieve stored items would constitute a changed use and
would require notification.) Tenant's failure to notify Landlord within three
days of the changed use will be a default under this Lease.
(i) If the changed use occurs after November 30, 1990
and before December 1, 1991, from and after the date of the changed use Fixed
Rent no longer will be abated as described in Section 3.01 for the entire Area
B (assuming no Swap Location(s) designated), or for the entire Swap
Location(s) where the changed use has occurred.
(ii) If the changed use occurs after February 1, 1990
and before December 1, 1991, from and after the date of the changed use Common
Expenses no longer will be abated as described in Section 3.03C for the entire
Area B (assuming no Swap Location(s) designated), or for the entire Swap
Location(s) designated), or for the entire Swap Location(s) where the changed
use has occurred.
(iii) As a hypothetical example, assuming that two Swap
Locations are designated, one containing 5,000 square feet and the other
containing 4,000 square feet, the 5,000 square foot Swap Location is used for
non-storage purposes on June 1, 1990, and the 4,000 square foot Swap Location
is used for non-storage purposes on June 1, 1991, the abatement of Fixed Rent
and Common Expenses would be affected as follows:
Period Fixed Rent Abatement
----------- ----------------------
12/1/89-11/30/90 Full abatement (non-storage
use occurred before 11/30/90)
11/30/90-6/1/91 Abatement on 4,000 s.f. only
(non-storage use in 5,000 s.f.
Swap Location)
6/1/91-12/1/91 No abatement (non-storage use
in both Swap Locations)
Period Common Expenses Abatement
--------- ---------------------------
12/1/89-6/1/90 Full abatement, 3.95% of
Tenant's Percentage (both Swap
Locations used solely for
storage)
6/1/90-6/1/91 Abatement on 4,000 s.f. only,
1.75% of Tenant's Percentage
(storage use in 5,000 s.f.
Swap Location)
6/1/91-12/1/91 No Abatement (non-storage use
in both Swap Locations)
SCHEDULE III-A
FIXED RENT
Annual Fixed
Period Rent Per S.F. Annual Rent Monthly Rent
- --------------- --------------- ----------------- -----------------
Until $13.50(*) $324,162.00(*) $27,013.50(*)
8/31/92*
9/1/92- 14.85 356,578.20 29,714.85
8/31/95
9/1/95- 17.95 431,015.40 35,917.95
8/31/99
9/1/99- 20.44 490,805.28 40,900.44
8/31/2002
9/1/2002- 23.00 552,276.00 46,023.00
8/31/2005
9/1/2005- 25.87 621,190.44 51,765.87
8/31/2008
9/1/2008- 29.09 698,509.08 58,209.09
11/30/2009
NOTE ADDITIONAL FIXED RENT PAYABLE PURSUANT TO ADDENDUM
- -------------
*Rent will be abated as described in Section 3.01 (except as described in
and subject to Section 2(b) of Schedule III).
SCHEDULE III - B
FIXED RENT FOR NEW DEMISED PREMISES
Annual Fixed
Period Rent Per S.F. Annual Rent Monthly Rent
- --------------- --------------- ----------------- -----------------
Until $13.50(*) $321,016.50(*) $26,751.37(*)
8/31/92(*)
9/1/92- 14.85 353,118.15 29,426.51
8/31/95
9/1/95- 17.95 426,833.05 35,569.42
8/31/99
9/1/99- 20.44 486,042.76 40,503.56
8/31/2002
9/1/2002- 23.00 546,917.00 45,576.42
8/31/2005
9/1/2005- 25.87 615,162.73 51,263.56
8/31/2008
9/1/2008- 29.09 691,731.11 57,644.26
11/30/2009
NOTE ADDITIONAL FIXED RENT PAYABLE PURSUANT TO ADDENDUM
- ------------
*Rent will be abated as described in Section 3.01 (except as described in
and subject to Section 2(b) of Schedule III).
SCHEDULE IV
[INTENTIONALLY OMITTED]
SCHEDULE V
FORM OF SUBORDINATION,
NONDISTURBANCE AND ATTORNMENT AGREEMENT
1. Identifications. This Subordination, Nondisturbance and
Attornment Agreement dated as of January __, 1984, is made by and between
METCALF & EDDY, INC. ______________, a Delaware corporation, ("Tenant"), and
WELLS FARGO BANK, N.A. ("Mortgagee"), mortgagee under a construction mortgage
dated as of May 5, 1983 recorded with Middlesex South District Deeds in Book
15006, Page 409, ("Mortgage") from HARVARD MILLS REALTY, A MASSACHUSETTS
LIMITED PARTNERSHIP, a Massachusetts limited partnership, "Owner"), to
Mortgagee securing a promissory note dated as of May 5, 1983 in the principal
amount of $8,400,000.00 and Owner.
2. Recitals.
2.1 Lease. Tenant is the lessee under a certain lease dated
January __, 1984, from Owner, a true and correct copy of which has been
submitted to Mortgagee (the "Lease"), of a portion of certain real property in
Wakefield, Massachusetts, described in the Mortgage (the "Premises"). Said
lease is described in a Notice of Lease to be recorded herewith.
2.2 Mortgage and Assignment. Pursuant to the Mortgage and by
a separate Assignment of Lessor's Interest in Leases dated as of May 5, 1983
recorded with said Deeds in Book 15006, Page 442, (the "Assignment"), Owner has
mortgaged the Premises and has assigned all of its rights under the Lease to
Mortgagee.
3. Agreements. In consideration of the foregoing and the
mutual covenants hereinafter contained, Tenant and Mortgagee hereby agree as
follows:
3.1 Representations by the Tenant Concerning the Lease.
Owner and Tenant hereby certify that the Lease is a complete statement of the
agreement of the parties thereto with respect to the letting of the Premises,
that the Lease is in full force and effect and the execution thereof by Tenant
was duly authorized; that neither Owner nor Tenant is in default under the
Lease and that neither Owner nor Tenant has knowledge of any default or claim
of default on the part of, or claim of offset against the rent and other
amounts payable to Owner under the lease, and that no security deposits, rent
or other amounts due or to be due under the Lease have been paid to Owner in
advance.
Tenant further certifies that it has not made and there is not
now contemplated any assignment for the benefit of creditors or the filing of
any petitions or the institution of any proceedings under the bankruptcy or
similar laws of the United States or of any state; that there are, to the
knowledge of Tenant's officers, no such petitions or proceedings pending or
threatened against Tenant; and that Tenant is not insolvent within the meaning
of the Bankruptcy Code.
3.2 Consent to Assignment by the Tenant. Tenant hereby
consents to the Mortgage and Assignment.
3.3 Covenants. Regardless of whether or not Mortgagee has
notified Tenant of Mortgagee's exercise of its rights under the Assignment,
Tenant hereby agrees as follows:
(a) not, without the prior written consent of Mortgagee, to
pay security deposits, rent or other amounts aggregating
at any time in excess of one month's rent in advance on
account of the Lease; and
(b) not, without the prior written consent of Mortgagee, to
amend or modify the Lease or any of the terms thereof,
or, except pursuant to the terms of the Lease, cancel,
terminate or surrender the Lease.
3.4 Mortgagee's Opportunity to cure Owner's Defaults. In the
event of default by Owner under the Lease, Tenant shall not be entitled to
exercise any right which Tenant may have under the Lease or at law to cancel
the Lease or abate the rent thereunder (i) unless Tenant shall first have
given written notice of such default to the Mortgagee and (ii) unless
Mortgagee, after receipt of such notice, fails to cure, or cause to be cured,
the specified default within a reasonable time thereafter; but nothing herein
shall be deemed to impose any obligation on Mortgagee to cure such default.
"Reasonable time" as used herein includes a reasonable time to obtain
possession of the Premises if the default cannot be cured without such
possession.
3.5 Subordination of Lease and Attornment by Tenant. Tenant,
in consideration of Mortgagee's covenants hereunder, hereby agrees with
Mortgagee that the Lease shall be subject and subordinate to the estate of the
Mortgage and any renewals, extensions, modifications or replacements thereof
(provided that any such renewals, extensions, modifications or replacements do
not affect Tenant's rights or duties under the Agreement or the Lease) as
though the Mortgage and any such renewal, extension, modification or
replacement had been executed, acknowledged and delivered prior to the Lease
and recorded prior to the Lease and any notice of the Lease.
Tenant further attorns to Mortgagee and agrees that in the
event of the exercise by Mortgagee of its rights under the Mortgage and the
taking of possession of, or the acquisition of title to, the premises by
Mortgagee or by any other purchaser of the Premises, whether through
foreclosure proceedings or otherwise, Tenant shall recognize Mortgagee or such
other purchaser as the lessor under the Lease and the Lease shall continue in
full force and effect in accordance with its terms.
3.6 Recognition and Nondisturbance. Mortgagee hereby agrees
that, so long as Tenant duly and promptly performs all of its obligations
under the Lease, and hereunder, Mortgagee shall not, in or after taking
possession of or acquiring title to the Premises through foreclosure
proceedings or otherwise, disturb the possession and other rights of Tenant
under the Lease, and will accept Tenant as lessee under the terms and
conditions and for the entire duration of the term of the Lease, including any
extensions and renewals set forth in the Lease and any modifications or
amendments thereof to which Mortgagee has previously agreed in writing. From
and after such taking of possession or acquiring title, Mortgagee shall be
responsible for the Landlord's obligations to the extent set forth in the
Lease, as if it were the Landlord thereunder. Mortgagee, its successors and
assigns, shall not, however, be:
(a) liable for any act or omission of any prior lessor
(including Owner), except as provided in Sections 2.05,
3.04 and 14.02 of the Lease;
(b) subject to any offset or defense which Tenant might have
against any prior lessor (including Owner), except as
provided in Sections 2.05, 3.04 and 14.02 of the Lease;
(c) bound by any payment of rent or additional rent made by
Tenant to Owner more than one month in advance; or
(d) bound by any amendment to or modification of the Lease
made without the written consent of Mortgagee.
4. General.
4.1 Notices. All notices required or permitted to be given
hereunder shall be in writing and delivered by hand or mailed, postage
prepaid, by registered or certified mail, addressed in the case of the
Mortgagee to it, c/o Real Estate Industries Group, 9600 Santa Monica Boulevard,
Beverly Hills, California 90213, Attention: Kenneth Peterson; and in the case
of the Tenant to it at the Premises; and in the case of Owner to it at 433
North Camden Drive, Suite 960, Beverly Hills, California 90210; or such other
address as the addressee may have designated by notice given hereunder to the
other parties.
4.2 Amendments. This Agreement may not be waived, changed or
discharged orally, but only by an agreement in writing and signed by Mortgagee
and Tenant, and any oral waiver, change or discharge of any provision of this
Agreement shall be without authority and of no force and effect.
4.3 Captions. Article and paragraph captions are not a part
hereof.
4.4 Severability. The invalidity of any provision of this
Agreement, as determined by a court of competent jurisdiction, shall in no way
affect the validity of any other provisions hereof.
4.5 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
parties hereto, which in the case of Mortgagee shall expressly include any
purchaser at foreclosure sale pursuant to the Mortgage, and such purchaser's
successors and assigns.
4.6 Applicable Law. This Agreement shall be governed by the
laws of the Commonwealth of Massachusetts.
WITNESS the execution hereof under seal as of the day and year
first above written.
METCALF & EDDY, INC., Tenant
By_______________________________
Its
WELLS FARGO BANK, N.A., Mortgagee
By_______________________________
Its
HARVARD MILLS REALTY, A
MASSACHUSETTS LIMITED
PARTNERSHIP, Owner
By NIUNA-WAKEFIELD, INC.,
General Partner,
By_______________________________
John Kusmiersky
President
COMMONWEALTH OF MASSACHUSETTS
, SS. , 198
On this day of , 198 , personally appeared
before me , to me personally known, who, being by me duly
sworn, did say that he is the of ,
and that this instrument was signed and sealed on behalf of said Corporation
pursuant to resolutions duly adopted and said officer acknowledged the
foregoing to be the free act and deed of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
_______________________________
Notary Public
My Commission Expires:
STATE OF CALIFORNIA
, SS. , 198
On this day of , 198 , personally appeared
before me , to me personally known, who, being by me duly
sworn, did say that he is an authorized officer of Wells Fargo Bank, N.A., and
that this instrument was signed and sealed on behalf of said Corporation by
authority of its board of directors, and said officer acknowledged the
foregoing to be the free act and deed of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
_______________________________
Notary Public
My Commission Expires:
STATE OF )
) ss.:
COUNTY OF )
On the day of January, 1984, before me personally came
to me known, who, being by me duly sworn, did depose and
say that he resides at No. ; that he is the
of NIUNA-WAKEFIELD, INC., the corporation
described in and which executed the foregoing instrument as a general partner
of HARVARD MILLS REALTY, A MASSACHUSETTS LIMITED PARTNERSHIP; that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporation's seal; that it was so affixed by order of the board of directors
of said corporation, and that he signed his name thereto by like order for and
on behalf of said corporation, for and on behalf of said limited partnership.
___________________________
Notary Public
RULES AND REGULATIONS
1. Fire exits and stairways other than in the Demised
Premises are for emergency use only, and they shall not be used for any other
purposes by the tenants, their employees, licensees or invitees. No tenant
shall encumber or obstruct, or permit the encumbrance or obstruction of, or
store any materials on any of the sidewalks, plaza, entrances, corridors,
elevators, fire exits or stairways of the Building. The Landlord reserves the
right to control and operate the pubic portions of the Building and the public
facilities, as well as facilities furnished for the common use of the tenants,
in such manner as it deems best for the benefit of the tenants generally.
2. The Demised Premises shall not be used for lodging or
sleeping or for any immoral or illegal purpose.
3. Any person whose presence in the Building at any time
shall, in the judgment of Landlord, be prejudicial to the safety, character,
reputation and interests of the Building or its tenants may be denied access
to the Building or may be ejected therefrom. In case of invasion, riot,
public excitement or other commotion, the Landlord may prevent all access to
the Building during the continuance of the same, by closing the doors or
otherwise, for the safety of the tenants and protection of property in the
Building. The Landlord shall, in no way, be liable to any tenant for damages
or loss arising from the admission, exclusion or ejection of any person to or
from the tenant's premises or the Building under the provisions of this rule.
4. No awnings or other projections over or around the
windows shall be installed by any tenant, and only such window blinds as are
permitted by the Landlord shall be used in a tenant's premises.
5. Hand trucks shall not be used in any space, or in the
public halls of the Building, either by the Tenant or by others, in the
delivery or receipt of merchandise, except those equipped with rubber tires
and side guards.
6. No noise, including the playing of any musical
instruments, radio or television, which, in the judgement of the Landlord,
might disturb other tenants in the Building shall be made or permitted by
any tenant, and no cooking shall be done in the Tenant's premises, except
in areas expressly approved by the Landlord. Tenant shall not permit any
cooking or food odors emanating within the Demised Premised to seep into
other portions of the Building. Nothing shall be done or permitted in any
tenant's premises, and nothing shall be brought into or kept in any
tenant's premises, which would impair or interfere with any of the Building
services or the proper and economic servicing of the Building or the
premises, or the use or enjoyment by any other tenant of any other
premises.
7. No dangerous, inflammable, combustible or explosive
object or material shall be brought into the Building by any tenant or with
the permission of any tenant.
8. Canvassing, soliciting and peddling in the Building are
prohibited, and each tenant shall cooperate to prevent same.
9. No acids, vapors or other materials shall be discharged
or permitted to be discharged into the waste lines, vents or flues of the
Building which may damage them. The water and wash closets and other plumbing
fixtures in or serving any tenant's premises shall not be used for any purpose
other than the purpose for which they were designed or constructed, and no
sweepings, rubbish, rags, acids or other foreign substances shall be deposited
therein.
10. No signs, advertisements, notices or other lettering
shall be exhibited, inscribed, painted or affixed by any tenant on any part of
the outside or inside of the premises or the Building which are visible from
the exterior of the Building without the prior written consent of Landlord.
Tenant shall cause the exterior of any sign to be kept clean, properly
maintained and in good order and repair throughout the term of this Lease. In
the event of the violation of the foregoing by any tenant, Landlord may remove
the same without any liability, and may charge the expense incurred by such
removal to the tenant or tenants violating this rule.
11. All movers used by any tenant or occupant of the Building
shall be appropriately licensed and shall maintain adequate insurance
coverage. Tenant shall protect the Demised Premises, including all Finishing
Work, from damage or soiling by Tenant's movers and contractors and shall pay
for extra cleaning or replacement or repairs by reason of Tenant's failure to
do so.
ADDENDUM TO LEASE
DATED DECEMBER 1, 1989
This Addendum is attached to and is a part of the
above-described Lease. This Addendum is meant to be read together with the
rest of this Lease, but if there is any conflict, this Addendum will control.
1. In addition to the Demised Premises referred to in the
rest of this Lease, which are on the 2nd floor of the eastern wing of the
Building, the Demised Premises also include space on the 1st floor of the
eastern wing of the Building as shown on Schedule BB attached to this Addendum
and incorporated herein by this reference (the "Travel Space"). The Travel
Space is agreed to contain 160 rentable square feet. Tenant may use the
Travel Space only as a travel service office and for no other purpose. Tenant
accepts the Travel Space absolutely "as is" and agrees that Landlord is not
required to perform or make any repairs, maintenance or improvements to the
Travel Space or provide services therefor.
2. Either Landlord or Tenant may terminate this lease with
respect to the Travel Space at any time on at least ninety (90) days' prior
written notice to the other. All amounts due with respect to the Travel Space
will be paid through and including the termination, but otherwise there will
be no liability for termination as described above (except for liabilities
incurred prior to termination).
3. In addition to any amounts due in connection with the
rest of the Demised Premises, Tenant will pay Fixed Rent for the Travel Space
at the same rates and in the same manner as Fixed Rent is payable for the rest
of the Demised Premises. For example, until September 1, 1992, the annual
Fixed Rent per square foot for the Travel Space will be $13.50, for an annual
rent of $2,160.00 and a monthly rent of $180.00. Tenant also will pay for any
utilities used or consumed in connection with the Travel Space, its pro rata
share of all Common Expenses for the Travel Space, and all other charges due
in connection with the Travel Space. Tenant's Percentage for the Travel Space
is .07%.
AMENDMENT NO. 1 TO GUARANTY
1. Metcalf & Eddy Companies Inc. ("MECI") entered into a Guaranty, dated
September 21, 1989 (the "Guaranty"), pursuant to which MECI guaranteed the
obligations of Metcalf & Eddy, Inc. ("Tenant") under an Amended and Restated
Lease, dated July 26, 1989 with Harvard Mills Realty ("Landlord"). Unless
otherwise defined, terms used in this Amendment have the same meanings as
those used in the Guaranty.
2. Tenant and Landlord have executed or are about to execute a new
lease, dated December 1, 1989, for additional space on the second floor at
Harvard Mills (the "New 2nd Floor Lease"). The parties wish to amend the
Guaranty to include MECI's guaranty of the obligations of Tenant under the New
2nd Floor Lease. To accomplish this, for good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the Guaranty is amended as
follows:
3. In addition to Guarantor's obligations under the Guaranty with
respect to the Amended and Restated lease, all of the terms of the Guaranty
and all of Guarantor's obligations thereunder also apply with respect to the
obligations, covenants, conditions and agreements contained in the New 2nd
Floor Lease and all Schedules and Annexes thereto and all renewals,
modifications or extensions of the New 2nd Floor Lease, all of which are now
fully guaranteed by MECI under the Guaranty.
4. The Guaranty, as so amended, remains in full force and effect.
IN WITNESS WHEREOF, intending to be legally bound, the
undersigned has executed this Amendment as of December 1, 1989.
METCALF & EDDY COMPANIES INC.
WITNESS:
________________________ BY:___________________________
Signature Signature
________________________ ______________________________
Name printed, title Name printed, title
Authorized Signatory
HARVARD MILLS REALTY
c/o Brickstone Properties
300 Brickstone Square
Andover, MA 01810
February 13, 1991
Jeremy Long
Metcalf & Eddy, Inc.
10 Harvard Mills Square
Wakefield, MA 01880
Re: Harvard Mills Square
Lease, dated December 1, 1989 (the "Lease")
Dear Jeremy:
As we agreed, as of November 20, 1990, Metcalf & Eddy, Inc.
leased 2,200 rentable square feet of space on the 2nd floor of the eastern
wing of the project as shown in Exhibit "AA" attached (the "Additional
Space"). So, we are confirming our agreements and the Lease is amended as
follows:
1. As of November 20, 1990, the Additional Space is part of
the Demised Premises. Tenant accepts the Additional Space as is, but Landlord
will reimburse Tenant for Tenant's reasonable cost to construct the demising
wall for the Additional Space.
2. With the Additional Space, Tenant's Percentage is
increased from 10.55% to 11.62% (not including the Travel Space). Fixed Rent
for the Additional Space will be charged at the same rate per square foot as
Fixed Rent for the rest of the Demised Premised as shown in Schedule III-A to
the lease, but if Tenant does not default it will be abated until November 20,
1992.
Sincerely,
Niuna-Wakefield, Inc.
general partner
By:____________________________
Martin Spagat
Vice President
Assistant Treasurer
Agreed on March 28, 1991.
METCALF & EDDY, INC.
By:_____________________________
(signature)
________________________________
Name Printed, Title