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Exhibit 10.7
LEASE
BETWEEN
NETWORK PLUS, INC., AS TENANT
AND
TRUNKS UP LLC, AS LANDLORD
41 Pacella Park Drive
Randolph, MA 02368
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 BASIC DATA; DEFINITIONS.................................. 1
1.1 BASIC DATA............................................... 1
1.2 DEFINITIONS.............................................. 2
1.3 ENUMERATION OF EXHIBITS.................................. 5
ARTICLE 2 PREMISES AND APPURTENANT RIGHTS.......................... 5
2.1 LEASE OF PREMISES........................................ 5
2.2 APPURTENANT RIGHTS....................................... 5
2.3 OPTION TO EXTEND......................................... 5
ARTICLE 3 BASIC RENT............................................... 8
3.1 PAYMENT.................................................. 8
ARTICLE 4 COMMENCEMENT AND CONDITION............................... 8
4.1 COMMENCEMENT DATE........................................ 8
4.2 CONDITION OF THE PREMISES................................ 9
ARTICLE 5 USE OF PREMISES.......................................... 9
5.1 PERMITTED USE............................................ 9
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT.................. 9
5.3 EXTRA HAZARDOUS USE...................................... 11
5.4 HAZARDOUS MATERIALS...................................... 11
5.5 LANDLORD'S RESPONSIBILITY RE: ASBESTOS TILE.............. 12
ARTICLE 6 ASSIGNMENT AND SUBLETTING................................ 12
6.1 PROHIBITION.............................................. 12
6.2 ACCEPTANCE OF RENT....................................... 13
6.3 EXCESS PAYMENTS.......................................... 14
6.4 LANDLORD'S RECAPTURE RIGHT............................... 14
6.5 FURTHER REQUIREMENTS..................................... 15
ARTICLE 7 RESPONSIBILITY FOR REPAIRS AND CONDITIONOF PREMISES;
SERVICES TO BE FURNISHED BY TENANT..................... 18
7.1 LANDLORD REPAIRS......................................... 18
7.2 TENANT REPAIRS AND MAINTENANCE........................... 18
7.3 FLOOR LOAD - HEAVY MACHINERY............................. 20
7.4 ELECTRICITY SERVICE...................................... 20
7.5 INTERRUPTION OF SERVICE.................................. 21
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ARTICLE 8 REAL ESTATE TAXES........................................ 21
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES................. 21
8.2 ABATEMENT................................................ 23
ARTICLE 9 OPERATING AND UTILITY EXPENSES........................... 24
9.1 DEFINITIONS.............................................. 24
9.2 TENANT'S PAYMENT OF OPERATING EXPENSES................... 24
9.3 UTILITY PAYMENTS......................................... 25
ARTICLE 10 INDEMNITY AND PUBLIC LIABILITY INSURANCE................. 25
10.1 TENANT'S INDEMNITY....................................... 25
10.2 TENANT INSURANCE......................................... 26
10.3 TENANT'S RISK............................................ 26
10.4 WAIVER OF SUBROGATION.................................... 27
ARTICLE 11 FIRE, EMINENT DOMAIN, ETC................................ 27
11.1 NOTICE OF DAMAGE......................................... 27
11.2 MINOR CASUALTY........................................... 27
11.3 MAJOR CASUALTY........................................... 28
11.4 CASUALTY IN LAST SIX MONTHS.............................. 29
11.5 LEASE TERMINATION IN FINAL TWO YEARS..................... 29
11.6 LANDLORD'S INSURANCE..................................... 29
11.7 ABATEMENT OF RENT........................................ 30
11.8 CONDEMNATION............................................. 30
11.9 CONDEMNATION AWARD....................................... 30
ARTICLE 12 HOLDING OVER; SURRENDER.................................. 31
12.1 HOLDING OVER............................................. 31
12.2 SURRENDER OF PREMISES.................................... 31
ARTICLE 13 RIGHTS OF MORTGAGEES; TRANSFER OF TITLE.................. 32
13.1 RIGHTS OF MORTGAGEES..................................... 32
13.2 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE................ 32
13.3 NOTICE TO MORTGAGEE...................................... 33
ARTICLE 14 DEFAULT; REMEDIES........................................ 33
14.1 TENANT'S DEFAULT......................................... 33
14.2 LANDLORD'S REMEDIES...................................... 37
14.3 ADDITIONAL RENT.......................................... 39
14.4 REMEDYING DEFAULTS....................................... 39
14.5 REMEDIES CUMULATIVE...................................... 39
14.6 ATTORNEYS' FEES.......................................... 39
14.7 WAIVER................................................... 39
14.8 LANDLORD'S DEFAULT....................................... 40
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ARTICLE 15 MISCELLANEOUS PROVISIONS................................. 40
15.1 RIGHTS OF ACCESS......................................... 40
15.2 COVENANT OF QUIET ENJOYMENT.............................. 40
15.3 LANDLORD'S LIABILITY..................................... 41
15.4 ESTOPPEL CERTIFICATE..................................... 41
15.5 BROKERAGE................................................ 41
15.6 RULES AND REGULATIONS.................................... 42
15.7 INVALIDITY OF PARTICULAR PROVISIONS...................... 42
15.8 PROVISIONS BINDING, ETC.................................. 42
15.9 RECORDING................................................ 42
15.10 NOTICE................................................... 42
15.11 WHEN LEASE BECOMES BINDING; ENTIRE AGREEMENT;
MODIFICATION............................................. 43
15.12 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS........ 43
15.13 DISPUTE RESOLUTION....................................... 43
15.14 WAIVER OF JURY TRIAL..................................... 44
15.15 TIME IS OF THE ESSENCE................................... 44
15.16 MULTIPLE COUNTERPARTS.................................... 44
15.17 GOVERNING LAW............................................ 44
EXHIBIT A Legal Description of Land........................................ A-1
EXHIBIT B Site Plan of Building............................................ B-1
EXHIBIT C Commencement Date Letter......................................... C-1
EXHIBIT D Operating Expenses............................................... D-1
EXHIBIT E Rules and Regulations of Building................................ E-1
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L E A S E
THIS LEASE is dated as of ______________, 2000 between the Landlord and
the Tenant named below, and is of space in the Building described below.
ARTICLE 1
BASIC DATA; DEFINITIONS
1.1 BASIC DATA. Each reference in this Lease to any of the following
terms shall be construed to incorporate the data for that term set forth in this
Section:
LANDLORD: Trunks Up LLC, a Delaware limited liability corporation
LANDLORD'S ADDRESS: c/o Network Plus, Inc.
234 Copeland Street
Quincy, MA 02169
Attn: Mr. Robert Hale, Jr.
TENANT: Network Plus, Inc., a Massachusetts corporation
TENANT'S ADDRESS: 41 Pacella Park Drive
Randolph, MA 02368
Attn: CFO and General Counsel
PROPERTY: The land located in Randolph, Massachusetts, together with
the Building and other improvements thereon, all as more particularly described
in EXHIBIT A attached hereto.
BUILDING: The building commonly known and numbered as 41 Pacella Park
Drive, consisting of 80,000 rentable square feet, as shown on the site plan
attached hereto as EXHIBIT B.
PREMISES: The entire Property, including the Land and the Building, as
shown on the site plan attached hereto as EXHIBIT B.
BASIC RENT: The Basic Rent is as follows:
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RENTAL PERIOD ANNUAL BASIC RENT MONTHLY PAYMENT
- ----------------------------------------------------------------------------------------------------------
From the Commencement Date to February 28, 2009. $1,200,000.00, based upon an $100,000.00
annual lease rate of $15.00 per
square foot
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From March 1, 2009 to February 28, 2013. $1,360,000.00, based upon an $113,333.33
annual lease rate of $17 per
square foot
- ----------------------------------------------------------------------------------------------------------
SCHEDULED COMMENCEMENT DATE: March 1, 2005.
TERM: 8 years, commencing on the Commencement Date and expiring at the
close of the day immediately preceding the 9th anniversary of the Commencement
Date, except that if the Commencement Date is other than the first day of a
calendar month, the expiration of the Term shall be at the close of the last day
of the calendar month in which such anniversary falls. The Term shall include
any extension thereof that is expressly provided for by this Lease and that is
effected strictly in accordance with this Lease; if no extension of the Term is
expressly provided for by this Lease, no right to extend the Term shall be
implied by this provision.
INITIAL GENERAL LIABILITY INSURANCE: $1,000,000 per
occurrence/$2,000,000 aggregate (combined single limit) for property damage,
bodily injury or death.
PERMITTED USES: General office, warehousing and light manufacturing.
1.2 DEFINITIONS. When used in Lease, the capitalized terms set forth
below shall bear the meanings set forth below.
ADEQUATE ASSURANCE: As defined in SECTION 14.1.
ADEQUATE ASSURANCE OF FUTURE PERFORMANCE: As defined in SECTION 14.1.
ADDITIONAL RENT: All charges and sums payable by Tenant as set forth in
this Lease, other than and in addition to Basic Rent.
ALTERATIONS: As defined in SECTION 5.2.
BANKRUPTCY CODE: As defined in SECTION 14.1.
BASIC RENT: As defined in SECTION 1.1.
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BUILDING: As defined in SECTION 1.1.
BUSINESS DAY: All days except Saturdays, Sundays, and other days when
national banks in the state in which the property is located are not open for
business.
COMMENCEMENT DATE: As defined in SECTION 4.1.
COMMON FACILITIES: As defined in SECTION 2.2.
DEFAULT OF TENANT: As defined in SECTION 14.1.
ENVIRONMENTAL CONDITION: Any disposal, release or threat of release of
Hazardous Materials on, from or about the Building or the Property or storage of
Hazardous Materials on, from or about the Building or the Property.
ENVIRONMENTAL LAWS: Any federal, state and/or local statute, ordinance,
bylaw, code, rule and/or regulation now or hereafter enacted, pertaining to any
aspect of the environment or human health, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C.ss.9601 et seq., the Resource Conservation and Recovery Act of 1976, 42
U.S.C.ss.6901 et seq., the Toxic Substances Control Act, 15 U.S.C.ss.2061 et
seq., the Federal Clean Water Act, 33 U.S.C.ss.1251, and the Federal Clean Air
Act, 42 U.S.C.ss.7401 et seq.
EVENT OF BANKRUPTCY: As defined in SECTION 14.1.
FORCE MAJEURE: Collectively and individually, strikes or other labor
trouble, fire or other casualty, acts of God, governmental preemption of
priorities or other controls in connection with a national or other public
emergency or shortages of fuel, supplies or labor resulting therefrom, or any
other cause, whether similar or dissimilar, beyond the reasonable control of the
party required to perform an obligation.
HOLDER: As defined in SECTION 13.1.
HAZARDOUS MATERIALS: Shall mean each and every element, compound,
chemical mixture, contaminant, pollutant, material, waste or other substance
which is defined, determined or identified as hazardous or toxic under any
Environmental Law, including, without limitation, any "oil," "hazardous
material," "hazardous waste," "hazardous substance" or "chemical substance or
mixture", as the foregoing terms (in quotations) are defined in any
Environmental Laws.
INITIAL GENERAL LIABILITY INSURANCE: As defined in SECTION 1.1.
LAND: The land that constitutes a portion of the Property.
LANDLORD: As defined in SECTION 1.1.
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LANDLORD'S ADDRESS: As defined in SECTION 1.1.
MORTGAGE: As defined in SECTION 13.1.
OPERATING EXPENSES: As defined in SECTION 9.1.
OPERATING YEAR: As defined in SECTION 9.1.
PERMITTED USES: As defined in SECTION 1.1.
PLANS: As defined in SECTION 4.2.
PREMISES: As defined in SECTION 1.1.
PROPERTY: As defined in SECTION 1.1.
RULES AND REGULATIONS : As defined in SECTION 2.2.
SCHEDULED COMMENCEMENT DATE: As defined in SECTION 1.1.
SERVICE INTERRUPTION: As defined in SECTION 7.6.
SUCCESSOR: As defined in SECTION 13.1.
TAXES: As defined in SECTION 8.1.
TAX YEAR: As defined in SECTION 8.1.
TENANT: As defined in SECTION 1.1.
TENANT'S ADDRESS: As defined in SECTION 1.1.
TENANT'S REMOVABLE PROPERTY: As defined in SECTION 5.2.
TERM: As defined in SECTION 1.1.
1.3 ENUMERATION OF EXHIBITS. The following Exhibits are a part of this
Lease, are incorporated herein by reference attached hereto, and are to be
treated as a part of this Lease for all purposes. Undertakings contained in such
Exhibits are agreements on the part of Landlord and Tenant, as the case may be,
to perform the obligations stated therein.
Exhibit A - Legal Description of Land
Exhibit B - Site Plan of Building
Exhibit C - Commencement Date Letter
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Exhibit D - Operating Expenses
Exhibit E - Rules and Regulations
ARTICLE 2
PREMISES AND APPURTENANT RIGHTS
2.1 LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the Premises for the Term and upon the terms and
conditions hereinafter set forth.
2.2 APPURTENANT RIGHTS.
(a) Tenant shall have, as appurtenant to the Premises, the
non-exclusive right to use, and permit its invitees to use in common with others
entitled thereto, the easements, rights of way or other rights, if any, which
are appurtenant to the Property pursuant to any recorded documents evidencing
such easements or rights; but such rights shall always be subject to such
conditions, rules and regulations from time to time established by Landlord
pursuant to SECTION 15.6 (the "RULES AND REGULATIONS") and to the right of
Landlord to designate and change from time to time such appurtenant rights
pursuant to the terms of the recorded documents evidencing such rights.
2.3 OPTION TO EXTEND.
(a) Provided that, at the time of such exercise, (i) this
Lease is in full force and effect, (ii) no Default of Tenant shall have occurred
and be continuing (either at the time of exercise or at the commencement of an
Extended Term), and (iii) Tenant or its successor by merger or other transaction
in accordance with the terms of Section 6.1(b), shall then be occupying at least
fifty percent (50%) Premises and shall not have assigned or sublet more than
fifty percent (50%) of the Premises other than by a transaction permitted by the
terms of Section 6.1(b), Tenant shall have the right and option to extend the
Term of this Lease for two (2) extended terms (each an "Extended Term") of five
(5) years each by giving written notice to Landlord not later than twelve (12)
months nor earlier than fifteen (15) months prior to the expiration date of the
then current Term, subject to the terms of SECTION 11.5 below. Subject to the
terms of PARAGRAPH (b) below, the effective giving of such notice of extension
by Tenant shall automatically extend the Term of this Lease for the Extended
Term, and no instrument of renewal or extension need be executed. In the event
that Tenant fails timely to give such notice to Landlord, this Lease shall
automatically terminate at the end of then current Term and Tenant shall have no
further option to extend the Term of this Lease. The first Extended Term shall
commence on the day immediately succeeding the expiration date of the Initial
Term, and shall end on the day immediately preceding the fifth anniversary of
the first day of the Extended Term. The second Extended Term shall commence on
the day immediately succeeding the expiration of the first Extended Term and
shall end on the day immediately preceding the fifth anniversary of the first
day of the second Extended Term. Each Extended Term shall be on all the terms
and conditions of this Lease, except: (i) during the second Extended Term,
Tenant shall have no further option to extend the Term, and (ii) the Basic Rent
for each Extended Term
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shall be the greater of (x) ninety five percent (95%) of the Fair Market
Rental Value for the Premises as of the commencement of the applicable
Extended Term, determined pursuant to PARAGRAPH (b), and (y) the Basic Rent due
for the last year of the Term immediately prior to the commencement of the
applicable Extended Term (either the Initial Term or the first Extended Term, as
applicable).
(b) Promptly after receiving Tenant's notice extending the Term of this
Lease pursuant to PARAGRAPH (a) above, Landlord shall provide Tenant with
Landlord's good faith estimate of the Fair Market Rental Value of the Premises
for the Extended Term based upon rents being paid by tenants entering into
leases in the area in which the Property is located. If Tenant is unwilling to
accept Landlord's estimate of Fair Market Rental Value as set forth in
Landlord's notice referred to above, and the parties are unable to reach
agreement thereon within thirty (30) days after the delivery of such notice by
Landlord, then Landlord and Tenant shall, not later than thirty (30) days after
the expiration of the aforesaid thirty (30) day period, each retain a real
estate professional with at least ten (10) years continuous experience in the
business of appraising or marketing commercial real estate in the greater Boston
area who shall, within thirty (30) days of his or her selection, prepare a
written report summarizing his or her determination of the Fair Market Rental
Value for such Extended Term. Landlord and Tenant shall simultaneously exchange
such reports; provided, however, if either party has not obtained such a report
within sixty (60) days after Tenant receives Landlord's notice, then the
determination set forth in the other party's report shall be final and binding
upon the parties. If both parties receive reports within such time and the lower
determination is within ten percent (10%) of the higher determination, then the
greater of (i) the annual Basic Rent in effect immediately preceding such
Extended Term or (ii) the average of the two determinations shall be deemed to
be the Fair Market Rental Value for such Extended Term. If the lower
determination is not within ten percent (10%) of the higher determination, then
Landlord and Tenant shall mutually select a person with the qualifications
stated above (the "Final Professional") to resolve the dispute as to the Fair
Market Rental Value for such Extended Term. If Landlord and Tenant cannot agree
upon the designation of the Final Professional within thirty (30) days of the
exchange of the first valuation reports, either party may apply to the American
Arbitration Association, the Greater Boston Real Estate Board, or any successor
thereto, for the designation of a Final Professional. Within ten (10) days of
the selection of the Final Professional, Landlord and Tenant shall each submit
to the Final Professional a copy of their respective real estate professional's
determination of the Fair Market Rental Value for such Extended Term. The Final
Professional shall not perform his or her own valuation, but rather shall,
within thirty (30) days after such submissions, select the submission which is
closest to the determination of the Fair Market Rental Value for such Extended
Term which the Final Professional would have made acting alone. The Final
Professional shall give notice of his or her selection to Landlord and Tenant
and such decision shall, subject to the terms of the last two (2) sentences of
this PARAGRAPH (b) below, be final and binding upon Landlord and Tenant,
provided, however, in no event shall the Fair Market Rental Value be less than
the annual Basic Rent in effect immediately preceding such Extended Term. Each
party shall pay the fees and expenses of its real estate professional and
counsel, if any, in connection with any proceeding under this paragraph, and the
parties shall each pay one-half of the fees and expenses of the Final
Professional. If Tenant is unwilling to accept the Fair Market Rental Value
determined in
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accordance with the process set forth above, then Tenant shall have the
option to rescind its notice of election to extend the Term of this Lease by
delivering written notice to Landlord within ten (10) days of, as applicable,
(i) receipt of both reports from each of Tenant's and Landlord's respective
selected real estate professionals, if the lower determination is within ten
percent (10%) of the higher determination, (ii) the expiration of the sixty (60)
day period after Tenant receives Landlord's notice of its estimate of Fair
Market Value, if Tenant is unwilling to accept such estimate and either party
has not obtained a report summarizing a real estate professional's determination
of Fair Market Value within such sixty (60) day period, or (iii) receipt of
notice from the Final Professional of his or her selection of the determination
of the Fair Market Rental Value. The effective giving of such notice by Tenant
shall rescind its notice of extension, and thereafter Tenant shall have no
further option to extend the Term of this Lease, and the Lease shall expire on
the originally scheduled expiration date of the Initial Term or, if Tenant has
extended the Initial Term in accordance with the terms hereof, the first
Extended Term, as applicable.
ARTICLE 3
BASIC RENT
3.1 PAYMENT.
(a) Tenant agrees to pay the Basic Rent and Additional Rent to
Landlord, or as directed by Landlord, commencing on the Commencement Date,
without offset, abatement (except as provided in SECTION 11.4), deduction or
demand. Basic Rent shall be payable in equal monthly installments, in advance,
on the first day of each and every calendar month during the Term of this Lease,
to Landlord at Landlord's Address or at such other place as Landlord shall from
time to time designate by notice, in lawful money of the United States. In the
event that any installment of Basic Rent or any regularly scheduled payment of
Additional Rent is not paid within three (3) Business Days of when due, Tenant
shall pay, in addition to any charges under SECTION 14.4, at Landlord's request
an administrative fee equal to 5% of the overdue payment. Landlord and Tenant
agree that all amounts due from Tenant under or in respect of this Lease,
whether labeled Basic Rent, Additional Rent or otherwise, shall be considered as
rental reserved under this Lease for all purposes, including without limitation
regulations promulgated pursuant to the Bankruptcy Code, and including further
without limitation Section 502(b) thereof.
(b) Basic Rent for any partial month shall be pro-rated on a
daily basis, and if the first day on which Tenant must pay Basic Rent shall be
other than the first day of a calendar month, the first payment which Tenant
shall make to Landlord shall be equal to a proportionate part of the monthly
installment of Basic Rent for the partial month from the first day on which
Tenant must pay Basic Rent to the last day of the month in which such day
occurs, plus the installment of Basic Rent for the succeeding calendar month.
ARTICLE 4
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. The "COMMENCEMENT DATE" shall be the Scheduled
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Commencement Date set forth in SECTION 1.1 hereof.
Promptly upon the occurrence of the Commencement Date, Landlord and Tenant shall
execute a letter substantially in the form attached hereto as EXHIBIT C, but the
failure by either party to execute such a letter shall have no effect on the
Commencement Date, as hereinabove determined.
4.2 CONDITION OF THE PREMISES. Tenant agrees to accept the Premises in
an as-is condition. Landlord shall have no obligation to perform any work or
construction. No improvements or alterations shall occur prior to the
Commencement Date. Should Tenant desire to perform any work or construction, the
same shall be done only in accordance with this Lease.
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE.
(a) Tenant agrees that the Premises shall be used and occupied
by Tenant only for Permitted Uses and for no other use without Landlord's
express written consent.
(b) Tenant agrees to conform to the following provisions
during the Term of this Lease:
(i) Intentionally omitted;
(ii) Intentionally omitted.
(iii) Tenant shall not perform any act or carry on
any practice which may injure the Premises, or cause any offensive
odors or loud noise or constitute a nuisance or a menace;
(iv) Subject to the terms of Section 7.1 below,
Tenant shall, in its use of the Premises, comply with the requirements
of all applicable governmental laws, rules and regulations, including,
without limitation, the Americans With Disabilities Act of 1990 and the
regulations of the Massachusetts Architectural Access Board; and
(v) Tenant shall not abandon the Premises.
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT.
(a) Tenant shall make no alterations, additions (including,
for the purposes hereof, wall-to-wall carpeting), or improvements (collectively,
"ALTERATIONS") in or to the Premises without Landlord's prior written consent,
which consent shall not be unreasonably withheld or delayed with respect to
non-structural Alterations that do not affect or involve the Building's
electrical, plumbing or mechanical systems or any other Building systems. Any
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Alterations shall be in accordance with the Rules and Regulations in effect with
respect thereto and with plans and specifications meeting the requirements set
forth in the Rules and Regulations and approved in advance by Landlord. All work
shall (i) be performed in a good and workmanlike manner and in compliance with
all applicable laws, ordinances, rules and regulations; (ii) be made at Tenant's
sole cost and expense; (iii) become part of the Premises and the property of
Landlord except for (A) those Alterations designated by Landlord at the time
Landlord approves the Alterations pursuant to this Section to be removed upon
the expiration or earlier termination of the Term and/or (B) those Alterations
which can be removed without any damage to the Building caused by such removal
unless Tenant, at its expense, shall repair any such damage to the Building; and
(iv) be coordinated with any work being performed by Landlord in such a manner
as not to damage the Building or interfere with the construction or operation of
the Building. At Landlord's request, Tenant shall, before its work is started,
secure assurances satisfactory to Landlord in its reasonable discretion
protecting Landlord against claims arising out of the furnishing of labor and
materials for the Alterations.
If any Alterations shall involve the removal of fixtures, equipment or
other property in the Premises which are not Tenant's Removable Property, such
fixtures, equipment or property shall be promptly replaced by Tenant at its
expense with new fixtures, equipment or property of like utility and of at least
equal quality.
(b) All articles of personal property and all business
fixtures, machinery and equipment and furniture owned or installed by Tenant
solely at its expense (including, without limitation, any of the foregoing items
which are paid for by the "Subtenant Improvement Allowance" as such term is
defined in that certain Sublease by and between PacSci Motion Control, Inc., as
sublandlord, and Tenant, as subtenant, dated as of October 22, 1999 (the
"PacSciSublease")) in the Premises ("TENANT'S REMOVABLE PROPERTY") shall remain
the property of Tenant and may be removed by Tenant at any time prior to the
expiration or earlier termination of the Term, provided that Tenant, at its
expense, shall repair any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable
for any labor or materials furnished or to be furnished to Tenant upon credit,
and that no mechanic's or other lien for any such labor or materials shall
attach to or affect the reversion or other estate or interest of Landlord in and
to the Premises, the Building or the Property. To the maximum extent permitted
by law, before such time as any contractor commences to perform work on behalf
of Tenant, such contractor (and any subcontractors) shall furnish a written
statement acknowledging the provisions set forth in the prior clause. Tenant
agrees to pay promptly when due the entire cost of any work done on behalf of
Tenant, its agents, employees or independent contractors, and not to cause or
permit any liens for labor or materials performed or furnished in connection
therewith to be filed against all or any part of the Property and to discharge
any such liens which may be so filed as set forth in the next sentence. If,
notwithstanding the foregoing, any lien is filed against all or any part of the
Property for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant or its agents, employees or independent contractors,
Tenant, at its sole cost and expense, shall cause such lien to be dissolved
promptly after receipt of notice that such lien has been filed (and in any event
within fifteen (15) days of Tenant's receipt of notice or
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other knowledge thereof), by the payment thereof or by the filing of a bond
sufficient to accomplish the foregoing. If Tenant shall fail to discharge
any such lien, Landlord may, at its option, discharge such lien and treat the
cost thereof (including attorneys' fees incurred in connection therewith) as
Additional Rent payable upon demand, it being expressly agreed that such
discharge by Landlord shall not be deemed to waive or release the default of
Tenant in not discharging such lien. Tenant shall indemnify and hold Landlord
harmless from and against any and all expenses, liens, claims, liabilities and
damages based on or arising, directly or indirectly, by reason of the making of
any alterations, additions or improvements by or on behalf of Tenant to the
Premises under this Section, which obligation shall survive the expiration or
termination of this Lease.
(d) In the course of any work being performed by Tenant
(including, without limitation, the "field installation" of any of Tenant's
Removable Property), Tenant agrees to use labor compatible with that being
employed by Landlord for work in the Building or on the Property and not to
employ or permit the use of any labor or otherwise take any action which might
result in a labor dispute involving personnel providing services in the Building
or on the Property pursuant to arrangements made by Landlord.
5.3 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will
not do or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall increase the rate of property or
liability insurance on the Premises or the Property above the standard rate
applicable to Premises being occupied for the Permitted Uses. If the premium or
rates payable with respect to any policy or policies of insurance purchased by
Landlord with respect to the Property increases as a result of any act or
activity on or use of the Premises during the Term or payment by the insurer of
any claim arising from any act or neglect of Tenant, its employees, agents,
contractors or invitees, Tenant shall pay such increase, from time to time,
within fifteen (15) days after demand therefor by Landlord, as Additional Rent.
5.4 HAZARDOUS MATERIALS.
(a) Tenant may use chemicals such as adhesives, lubricants,
ink, solvents and cleaning fluids of the kind and in amounts and in the manner
customarily found and used in business offices in order to conduct its business
at the Premises and to maintain and operate the business machines located in the
Premises. Except as specifically set forth in the immediately preceding
sentence, Tenant shall not use, store, handle, treat, transport, release or
dispose of any Hazardous Materials on or about the Premises or the Property
without Landlord's prior written consent, which Landlord may withhold or
condition in Landlord's sole discretion.
(b) Any handling, treatment, transportation, storage, disposal
or use of Hazardous Materials by Tenant in or about the Premises or the Property
and Tenant's use of the Premises shall comply with all applicable Environmental
Laws.
(c) Tenant shall indemnify, defend upon demand with counsel
reasonably acceptable to Landlord, and hold Landlord harmless from and against,
any liabilities, losses
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claims, damages, interest, penalties, fines, attorneys' fees, experts' fees,
court costs, remediation costs, and other expenses which result from the
use, storage, handling, treatment, transportation, release, threat of release or
disposal of Hazardous Materials in or about the Premises or the Property by
Tenant or Tenant's agents, employees, contractors or invitees.
(d) Tenant shall give written notice to Landlord as soon as
reasonably practicable of (i) any communication received by Tenant from any
governmental authority concerning Hazardous Materials which relates to the
Premises or the Property, and (ii) any Environmental Condition of which Tenant
is aware.
5.5 LANDLORD'S RESPONSIBILITY RE: ASBESTOS TILE. Subject to Tenant's
compliance with all applicable laws, ordinances and regulations, including,
without limitation, any operation and maintenance plan, and the terms of this
Lease, Landlord agrees to indemnify and save Tenant harmless from and against
any claims, liabilities, losses, damages, interest, penalties, fines, attorneys'
fees, experts' fees and court costs and other expenses actually incurred by
Tenant arising from any enforcement action, third party claim for bodily injury
or property damage or remediation required by any Environmental Law, in each
case, resulting from the presence of any asbestos tiles or other asbestos
containing materials in the Building.
ARTICLE 6
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION.
(a) Tenant covenants and agrees that neither this Lease nor
the term and estate hereby granted, nor any interest herein or therein, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred, whether
voluntarily, involuntarily, by operation of law or otherwise, and that neither
the Premises nor any part thereof will be encumbered in any manner by reason of
any act or omission on the part of Tenant, or used or occupied or permitted to
be used or occupied, by anyone other than Tenant, or for any use or purpose
other than a Permitted Use, or be sublet (which term, without limitation, shall
include granting of concessions, licenses and the like) in whole or in part, or
be offered or advertised for assignment or subletting by Tenant or any person
acting on behalf of Tenant, without, in each case, the prior written consent of
Landlord. Without limiting the foregoing, any agreement pursuant to which: (x)
Tenant is relieved from the obligation to pay, or a third party agrees to pay on
Tenant's behalf, all or any portion of the Basic Rent or Additional Rent under
this Lease; and/or (y) a third party undertakes or is granted by or on behalf of
Tenant the right to assign or attempt to assign this Lease or sublet or attempt
to sublet all or any portion of the Premises, shall for all purposes hereof be
deemed to be an assignment of this Lease and subject to the provisions of this
ARTICLE 6. The provisions of this PARAGRAPH (a) shall apply to a transfer (by
one or more transfers) of a controlling portion of or interest in the stock or
partnership or membership interests or other evidences of equity interests of
Tenant as if such transfer were an assignment of this Lease; provided that if
equity interests in Tenant at any time are or become traded on a public stock
exchange, the transfer of equity interests in Tenant on a public stock exchange
shall not be deemed an assignment within
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the meaning of this Article.
(b) The provisions of PARAGRAPH (a) shall not apply to either
(x) transactions with an entity into or with which Tenant is merged or
consolidated, or to which all or substantially all of Tenant's assets are
transferred, or (y) transactions with any entity which controls or is controlled
by Tenant or is under common control with Tenant; provided that in any such
event:
(i) with respect to an assignment of the Lease,
the successor to Tenant has a net worth, computed in accordance with
generally accepted accounting principles consistently applied, at least
equal to the net worth of Tenant immediately prior to such merger,
consolidation or transfer;
(ii) proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least ten (10) days
prior to the effective date of any such transaction unless such
delivery is prohibited by applicable securities laws or regulations,
and in which case such proof shall be delivered promptly upon closing
of the transaction, and in the absence thereof, the closing of such
transaction shall automatically and immediately constitute a Default of
Tenant; and
(iii) the assignee agrees directly with Landlord,
by written instrument in form satisfactory to Landlord in its
reasonable discretion, to be bound by all the obligations of Tenant
hereunder (or, with respect to a sublease, those obligations of Tenant
under the Lease which are binding upon the subleased premises)
including, without limitation, the covenant against further assignment
and subletting.
6.2 ACCEPTANCE OF RENT. If this Lease be assigned, or if the Premises
or any part thereof be sublet or occupied by anyone other than Tenant, whether
or not in violation of the terms and conditions of the Lease, Landlord may, at
any time and from time to time, collect rent and other charges from the
assignee, subtenant or occupant, and apply the net amount collected to the rent
and other charges herein reserved, but no such assignment, subletting,
occupancy, collection or modification of any provisions of this Lease shall be
deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupant as a tenant or a release of Tenant from the further performance of
covenants on the part of Tenant to be performed hereunder. Any consent by
Landlord to a particular assignment, subletting or occupancy or other act for
which Landlord's consent is required under PARAGRAPH (a) of SECTION 6.1 shall
not in any way diminish the prohibition stated in PARAGRAPH (a) of SECTION 6.1
as to any further such assignment, subletting or occupancy or other act or the
continuing liability of the original named Tenant. No assignment or subletting
hereunder shall relieve Tenant from its obligations hereunder, and Tenant shall
remain fully and primarily liable therefor. Landlord may revoke any consent by
Landlord to a particular assignment, subletting or occupancy if the assignment
or sublease does not provide that the assignee, subtenant or other occupant
agrees to be independently bound by and upon all of the covenants, agreements,
terms, provisions and conditions set forth in this Lease on the part of Tenant
to be kept and performed.
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6.3 EXCESS PAYMENTS. If Tenant assigns this Lease or sublets the
Premises or any portion thereof, Tenant shall pay to Landlord as Additional Rent
fifty percent (50%) of the amount, if any, by which (a) any and all compensation
received by Tenant as a result of such assignment or subletting, net of
reasonable expenses actually incurred by Tenant in connection with such
assignment or subletting, exceeds (b) in the case of an assignment, the Basic
Rent and Additional Rent under this Lease, and in the case of a subletting, the
portion of the Basic Rent and Additional Rent allocable to the portion of the
Premises subject to such subletting. Such payments shall be made on the date the
corresponding payments under this Lease are due. Notwithstanding the foregoing,
the provisions of this Section shall impose no obligation on Landlord to consent
to an assignment of this Lease or a subletting of all or a portion of the
Premises.
6.4 LANDLORD'S RECAPTURE RIGHT.
(a) Notwithstanding anything herein to the contrary, in
addition to withholding or granting consent with respect to any proposed
assignment of this Lease or proposed sublease of all or a portion of the
Premises, Landlord shall have the right, to be exercised in writing within
thirty (30) days after written notice from Tenant seeking Landlord's consent to
assign this Lease or sublease all or any portion of the Premises, to terminate
this Lease (in the event of a proposed assignment) or recapture that portion of
the Premises to be subleased (in the event of a proposed sublease) for the
period of time equal to the term of the proposed sublease. In the case of a
proposed assignment, this Lease shall terminate as of the date (the "RECAPTURE
DATE") which is the later of (a) sixty (60) days after the date of Landlord's
election, and (b) the proposed effective date of such assignment or sublease, as
if such date were the last day of the Term of this Lease, subject to the
forgoing and succeeding provisions with respect to proposed subleases that are
for a term of less than the entire remainder of the Term. If Landlord exercises
the rights under this Section in connection with a proposed sublease, this Lease
shall be deemed amended to eliminate the proposed sublease premises from the
Premises as of the Recapture Date through the end of the term of the proposed
sublease, and thereafter, until the expiration of period of time equal to the
term of the proposed sublease, all Basic Rent and Additional Rent shall be
appropriately prorated to reflect the reduction of the Premises for such period
as of the Recapture Date until the expiration of period of time equal to the
term of the proposed sublease.
(b) Landlord's right set forth in SECTION 6.4(a) above to
recapture any portion of the Premises proposed to be subleased shall not apply
if (i) the portion of the Premises covered by such proposed sublease is,
together with any other portion of the Premises sublet previously by Tenant, for
an area of not more than 20,000 rentable square feet of the Premises; (ii) the
proposed sublease is for a term of not more than two (2) years; (iii) there
shall remain, at the expiration of proposed sublease, at least two (2) years
prior to the expiration of the Term of this Lease, including any applicable
Extension Term exercised at the time of Tenant's notice requesting Landlord's
consent to such proposed sublease; (iv) Tenant is occupying no less than fifty
percent (50%) of the Premises for the conduct of its business; and (v) no
Default of Tenant shall have occurred and be continuing beyond any applicable
notice and cure periods.
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6.5 FURTHER REQUIREMENTS. Tenant shall reimburse Landlord on demand, as
an additional charge, for any out-of-pocket costs (including reasonable
attorneys' fees and expenses) incurred by landlord in connection with any actual
or proposed assignment or sublease or other act described in paragraph (a) of
SECTION 6.1, whether or not consummated, including the costs of making
investigations as to the acceptability of the proposed assignee or subtenant.
Any sublease to which Landlord gives its consent shall not be valid or binding
on Landlord unless and until Tenant and the sublessee execute a consent
agreement in form and substance reasonably satisfactory to Landlord. In the
event that Landlord consents to any sublease under the provisions of this
Article, any such sublease shall provide that: (i) the term of the sublease must
end no later than the last day of the Term of this Lease; (ii) no sublease shall
be valid, and no subtenant shall take possession of all or any part of the
Premises until a fully executed counterpart of such sublease has been delivered
to Landlord; (iii) such sublease is subject and subordinate to this Lease; (iv)
Landlord may enforce the provisions of the sublease, including collection of
rents; (v) in the event of termination of this Lease or reentry or repossession
of the Premises by Landlord, Landlord may, at its sole discretion and option,
take over all of the right, title and interest of Tenant, as sublessor, under
such sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord but nevertheless Landlord shall not (A) be liable for any previous act
or omission of Tenant under such sublease; (B) be subject to any defense or
offset previously accrued in favor of the subtenant against Tenant; or (C) be
bound by any previous modification of such sublease made without Landlord's
written consent or by any previous prepayment of more than one month's rent.
6.6 STANDARDS FOR CONSENT TO ASSIGNMENT AND SUBLETTING. In the event
Landlord does not exercise its option pursuant to Section 6.4 to recapture the
Premises or terminate this Lease in whole or in part and providing that Tenant
is not in default of any of Tenant's obligations under this Lease, Landlord's
consent to a proposed assignment or sublease shall not be unreasonably withheld,
conditioned or delayed, provided and upon condition that:
(i) In Landlord's judgment the proposed assignee
or subtenant is engaged in a business which is in keeping with
the then standards of the Building and Property and the
proposed use is limited to the Permitted Use expressly
permitted under Section 1.1 and will not violate any negative
covenant as to use contained in any other lease of space in
the Property;
(ii) The proposed assignee or subtenant is a
reputable person or entity with sufficient financial worth
considering the responsibility involved, based on evidence
provided by Tenant (and others) to Landlord, as determined by
Landlord in its reasonable discretion;
(iii) Neither (a) the proposed assignee or
sublessee nor (b) any person or entity which, directly or
indirectly, controls, is controlled by, or is under common
control with, the proposed assignee or sublessee or any person
or entity who controls the proposed assignee or sublessee, is
then an occupant of any part of the Property or any other
building owned or operated under a ground or underlying lease
by Landlord or any person or entity which, directly or
indirectly,
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controls, is controlled by, or is under common control
with Landlord or any person or entity who controls
Landlord, PROVIDED THAT any such party has space available to
offer for lease to any such proposed assignee or sublessee;
(iv) The proposed assignee or sublessee is not a
person or entity with whom Landlord is then negotiating to
lease space at the Property;
(v) The proposed sublease or assignment shall be
in form reasonably satisfactory to Landlord and shall comply
with the applicable provisions of this ARTICLE 6;
(vi) Intentionally Omitted;
(vii) The amount of the aggregate rent to be paid
by the proposed subtenant is not less than the then current
market rent per rentable square foot for the Premises as
determined by Landlord in its sole discretion, reasonably
exercised; and
(viii) Tenant shall not have (a) advertised or
publicized in any way the availability of the Premises without
prior notice to and approval by Landlord, or (b) listed the
Premises for subletting, whether through a broker, agent,
representative, or otherwise at a rental rate less than the
Annual Basic Rent and Additional Rent at which Landlord is
then offering to lease other space in the Building.
ARTICLE 7
RESPONSIBILITY FOR REPAIRS AND CONDITION
OF PREMISES; SERVICES TO BE FURNISHED BY TENANT
7.1 LANDLORD REPAIRS.
(a) Except as otherwise provided in this Lease, Landlord
agrees to keep in good order, condition and repair the roof, and the other
structural components of the Building consisting of the structural walls,
footings, foundations, floor slabs, columns, girders, load bearing interior
walls (but specifically excluding all plumbing, mechanical, electrical, heating,
ventilation and air conditioning systems), except that Landlord shall in no
event be responsible to Tenant for the repair of any exterior or interior glass
in the Building, the doors (or related glass and finish work) to the Building,
or any condition in the Premises or the Building caused by any act or neglect of
Tenant, its invitees or contractors, including, without limitation, any damage
to the roof caused by Tenant's placement of equipment thereon in excess of the
design criteria and performance standards of the roof. Landlord shall not be
responsible to make any improvements or repairs to the Building other than as
expressly in this SECTION 7.1 provided, unless expressly provided otherwise in
this Lease.
(b) Landlord shall never be liable for any failure to make
repairs which
20
Landlord has undertaken to make under the provisions of this SECTION 7.1
or elsewhere in this Lease, unless Tenant has given notice to Landlord of
the need to make such repairs, and Landlord has failed to commence to make such
repairs within a reasonable time after receipt of such notice, or fails to
proceed with reasonable diligence to complete such repairs.
(c) Without limiting any term of SECTION 5.2 above, in the
event of any change after the Lease Commencement Date in any law, code, or
ordinance (i) affecting office buildings generally, or (ii) affecting generally
buildings used for the Permitted Uses hereunder which, by itself and without any
Alterations to the Building or changes in Tenant's use thereof, requires a
change in the Building (other than Tenant's Alterations or fixtures) into
compliance with such law, code or ordinance, Landlord shall take such steps as
are reasonablely necessary to bring the Building (other than Tenant's
Alterations or fixtures) into compliance with the same, and the costs thereof
shall be an Operating Expense. Without limiting any other term of this Lease,
all costs and expenses incurred by Landlord for making repairs or replacements
described in this Section 7.1, shall be included in the Operating Expenses as
described in Section 9.2 above to be paid by Tenant, in accordance with the
calculation set forth in item 6 of EXHIBIT D attached hereto, other than
structural repairs or replacements to the roof, the structural walls, footings,
foundations, floor slabs, columns, girders, and load bearing interior walls.
7.2 TENANT REPAIRS AND MAINTENANCE.
(a) Except as otherwise provided in this Lease, Tenant agrees
to keep in good order, condition and repair each and every part of the Premises,
including without limitation, exterior walls (including exterior glass) and all
plumbing, mechanical, electrical, heating, ventilation and air conditioning
systems (collectively, "BUILDING SYSTEMS"), excepting only reasonable wear and
tear of the Premises; and Tenant shall surrender the Premises, at the end of the
Term, in such condition. Without limitation, Tenant shall comply with all laws,
codes and ordinances from time to time in effect and all directions, rules and
regulations of governmental agencies having jurisdiction, and the standards
recommended by the local Board of Fire Underwriters applicable to Tenant's use
and occupancy of the Premises, and shall, at Tenant's expense, obtain all
permits, licenses and the like required thereby. Subject to SECTION 10.4
regarding waiver of subrogation, Tenant shall be responsible for the cost of
repairs which may be made necessary by reason of damage to the Building caused
by any act or neglect of Tenant, or its contractors or invitees (including any
damage by fire or other casualty arising therefrom). Tenant shall also keep and
maintain all the Land in a good and clean order, condition and repair, free of
snow and ice and accumulation of rubbish, and shall keep and maintain all
landscaped areas on the Property in a neat and orderly condition.
(b) If repairs are required to be made by Tenant pursuant to
the terms hereof, and Tenant fails to make the repairs, upon not less than
fifteen (15) days' prior written notice (except that no notice shall be required
in the event of an emergency), Landlord may make or cause such repairs to be
made (but shall not be required to do so), and the provisions of SECTION 14.4
shall be applicable to the costs thereof. Landlord shall not be responsible to
Tenant for any loss or damage whatsoever that may accrue to Tenant's stock or
business by reason of Landlord's making such repairs.
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(c) Except as set forth below with respect to the Building
Systems, notwithstanding anything to the contrary in this Lease, in no event
shall Tenant be obligated to make any repairs or replacements which would
constitute capital expenditures under generally accepted accounting principles,
which repairs and replacements shall be made by Landlord pursuant to Section
7.1, PROVIDED, HOWEVER, that the cost of any expenditures by Landlord which are
capital in nature, as referred to above, shall, pursuant to Section 7.1, be
included in the Operating Expenses to be paid by Tenant as set forth in Section
9.2, amortized over the useful life of such replacement item in accordance with
the provisions of Item 6 of EXHIBIT D attached hereto, and Tenant shall
reimburse Landlord therefore in accordance therewith.
(d) Without limiting any other term of this Lease, Tenant
shall maintain the Building Systems in accordance with its obligations under
Section 7.2(a), provided that if Tenant shall make any replacement of a capital
nature, as determined in accordance with generally accepted principles of
accounting, to the Building Systems during the two (2) year period immediately
preceding the expiration or earlier termination of this Lease (including,
without limitation, any Extended Term), unless such termination is a result of a
Default of Tenant, then Landlord shall promptly reimburse Tenant for the
unamortized cost thereof as of the date of expiration or earlier termination of
this Lease, it being understood and agreed that Landlord's payment obligation
hereunder shall survive the expiration or termination of this Lease. The
unamortized cost shall be determined in accordance with generally accepted
principles of accounting.
7.3 FLOOR LOAD - HEAVY MACHINERY.
(a) Tenant shall not place a load upon any floor in the
Premises exceeding the floor load per square foot of area which such floor was
designed to carry and which is allowed by law. Landlord reserves the right to
prescribe, in its reasonable discretion, the weight and position of all business
machines and mechanical equipment, including safes, which shall be placed so as
to distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient, in
Landlord's reasonable judgment, to absorb and prevent vibration, noise and
annoyance. Tenant shall not move any safe, heavy machinery, heavy equipment,
freight, bulky matter or fixtures into or out of the Building without Landlord's
prior consent, which consent not to be unreasonably withheld or delayed, but
which may include a requirement to provide insurance, naming Landlord as an
insured, in such amounts as Landlord may deem reasonable.
(b) If any such safe, machinery, equipment, freight, bulky
matter or fixtures requires special handling, Tenant agrees to employ only
persons holding a Master Rigger's License to do such work, and that all work in
connection therewith shall comply with applicable laws and regulations. Any such
moving shall be at the sole risk and hazard of Tenant, and Tenant will
exonerate, indemnify and save Landlord harmless against and from any liability,
loss, injury, claim or suit resulting directly or indirectly from such moving.
7.4 ELECTRICITY SERVICE.
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(a) The Premises shall be separately metered for electricity
such that the applicable public utility company can provide electricity directly
to the Premises, and Tenant shall be responsible for payment of all electricity
charges directly to such utility (including electricity for all lighting,
heating, ventilation and air conditioning in the Premises). Landlord shall
permit Landlord's existing wires, risers, conduits and other electrical
equipment to be used to supply electricity to Tenant at the Premises, provided
Tenant's demand requirements shall not exceed watts per rentable square foot for
standard single-phase volt alternating current, and Tenant agrees in its use of
the Premises (i) not to exceed such requirements, and (ii) that its total
connected lighting load will not exceed the maximum from time to time permitted
under applicable governmental regulations. If, without in any way derogating
from the foregoing limitation, Tenant shall require electricity in excess of the
requirements set forth above, provided Tenant first obtains Landlord's consent
(which Landlord may withhold in its reasonable discretion), Tenant may perform
the work necessary to supply such additional service or equipment, at Tenant's
sole cost and expense and subject to the requirements of SECTION 5.2 of this
Lease. In order to assure that the foregoing requirements are not exceeded and
to avert possible adverse effect on the Building's electric system, Tenant shall
not, without Landlord's prior consent, connect any fixtures, appliances or
equipment to the Building's electric distribution system other than personal
computers, facsimile transceivers, typewriters, pencil sharpeners, adding
machines, photocopiers, word and data processors, clocks, radios, hand-held or
desk top calculators, Dictaphones, desktop computers and other similar small
electrical equipment normally found in business offices unless Tenant continues
to comply with the provisions of this Section 7.4(a) or Tenant performs the work
necessary to make the repairs and/or replacements to the Building's electrical
systems required by Tenant's electrical demands and usage in excess of the
requirements set forth in this Section 7.4(a).
(b) From time to time during the Term of this Lease, Landlord
shall have the right to have an electrical consultant selected by Landlord make
a survey of Tenant's electric usage, the result of which survey shall be
conclusively binding upon Landlord and Tenant. In the event that such survey
shows that Tenant has exceeded the requirements set forth in PARAGRAPH (a), in
addition to any other rights Landlord may have hereunder, Tenant shall, upon
demand, reimburse Landlord for the cost of such survey and Tenant shall, upon
demand, perform the work necessary to make the repairs and/or replacements to
the Building's electrical systems required by Tenant's electrical demands and
usage in excess of the requirements set forth in PARAGRAPH (a).
7.5 INTERRUPTION OF SERVICE.
(a) Landlord shall not be responsible in any manner for any
suspension, interruption or curtailment of any services or utilities to the
Premises, regardless of the cause thereof, and no such suspension, interruption
or curtailment shall give rise to any claim for abatement of rent or other
compensation to Tenant from Landlord, nor shall Tenant claim any direct,
indirect or consequential damages or constructive eviction on account thereof,
nor shall this Lease or any obligation of Tenant be affected thereby.
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ARTICLE 8
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES.
(a) "TAX YEAR" shall mean a twelve month period commencing on
March 1, 2005 and falling wholly or partially within the Term, and "TAXES" shall
mean (i) all taxes, assessments (special or otherwise), levies, fees and all
other government levies, exactions and charges of every kind and nature, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are, at
any time prior to or during the Term, imposed or levied upon or assessed against
the Property or any portion thereof, or against any Basic Rent, Additional Rent
or other rent of any kind or nature payable to Landlord by anyone on account of
the ownership, leasing or operation of the Property, or which arise on account
of or in respect of the ownership, development, leasing, operation or use of the
Property or any portion thereof; (ii) all gross receipts taxes or similar taxes
imposed or levied upon, assessed against or measured by any Base Rent,
Additional Rent or other rent of any kind or nature or other sum payable to
Landlord by anyone on account of the ownership, development, leasing, operation,
or use of the Property or any portion thereof; (iii) all value added, use and
similar taxes at any time levied, assessed or payable on account of the
ownership, development, leasing, operation, or use of the Property or any
portion thereof; and (iv) reasonable expenses of any proceeding for abatement of
any of the foregoing items included in Taxes, provided Landlord prevails in such
abatement proceeding; but the amount of special taxes or special assessments
included in Taxes shall be limited to the amount of the installment (plus any
interest, other than penalty interest, payable thereon) of such special tax or
special assessment required to be paid during the year in respect to which such
Taxes are being determined. There shall be excluded from Taxes all income,
estate, succession, inheritance and transfer taxes of Landlord; provided,
however, that if at any time during the Term the present system of ad valorem
taxation of real property shall be changed so that a capital levy, franchise,
income, profits, sales, rental, use and occupancy, or other tax or charge shall
in whole or in part be substituted for, or added to, such ad valorem tax and
levied against, or be payable by, Landlord with respect to the Property or any
portion thereof, such tax or charge shall be included in the term "TAXES" for
the purposes of this Article.
(b) Tenant shall pay to Landlord (or directly to the taxing
authority, as Landlord shall direct from time to time), as Additional Rent, an
amount equal to the amount of Taxes attributable to each Tax Year, such amount
to be apportioned for any portion of a Tax Year in which the Commencement Date
falls or the Term expires.
(c) Estimated payments by Tenant on account of Taxes shall be
made on the first day of each and every calendar month during the Term of this
Lease, in the fashion herein provided for the payment of Basic Rent. The monthly
amount so to be paid to Landlord shall be sufficient to provide Landlord by the
time real estate tax payments are due with a sum equal to Tenant's required
payment, as reasonably estimated by Landlord from time to time, on account of
Taxes for the then current Tax Year. Promptly after receipt by Landlord of bills
for such Taxes, Landlord shall advise Tenant of the amount thereof and the
computation of Tenant's payment on account thereof. If estimated payments
theretofore made by Tenant for the Tax Year
24
covered by such bills exceed the required payment on account thereof for
such Tax Year, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant on account of Taxes (or promptly refund such
overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord other than the indemnity obligations set forth herein
which survive the termination of this Lease, provided that Landlord has no
claims pursuant thereto at such time); but if the required payments on account
thereof for such Tax Year are greater than estimated payments theretofore made
on account thereof for such Tax Year, Tenant shall pay the difference to
Landlord within thirty (30) days after being so advised by Landlord, and the
obligation to make such payment for any period within the Term shall survive
expiration of the Term.
8.2 ABATEMENT.
(a) If Landlord shall receive any tax refund or reimbursement
of Taxes or sum in lieu thereof with respect to any Tax Year all or any portion
of which falls within the Term, then out of any balance remaining thereof after
deducting Landlord's expenses in obtaining such refund, Landlord shall pay to
Tenant, provided there does not then exist a Default of Tenant, an amount equal
to such refund or reimbursement or sum in lieu thereof (exclusive of any
interest other than interest received from the taxing authority on amounts
previously paid by Tenant either directly to the taxing authority or to Landlord
as Additional Rent and included in such refund, reimbursement or sum in lieu
thereof paid to Landlord by the taxing authority, and apportioned if such refund
is for a Tax Year a portion of which falls outside the Term,); provided, that in
no event shall Tenant be entitled to receive more than the payments made by
Tenant on account of Taxes for such Tax Year pursuant to PARAGRAPH (b) of
SECTION 8.1 or to receive any payments or abatement of Basic Rent if Taxes for
any year are less than Base Taxes or if Base Taxes are abated.
(b) If Tenant desires to initiate and prosecute any
proceedings permitted by law for the purpose of obtaining an abatement or
reduction of any Taxes assessed against the Property with respect to any Tax
Year all of any portion of which falls within the Term, and notifies Landlord in
writing of such intent, then unless Landlord shall notify Tenant in writing
within ten (10) Business Days following Tenant's notice to Landlord that
Landlord will initiate such a tax review, Tenant, upon prior written notice to
Landlord, shall have the right at its own cost and expense to initiate and
prosecute any proceedings permitted by law for the purpose of obtaining an
abatement or reduction of any Taxes assessed against the Property with respect
to any Tax Year all of any portion of which falls within the Term. Tenant may
take such action in the name of Landlord, and Landlord shall cooperate with
Tenant as Tenant may reasonably require in connection with bringing such
proceedings to a successful conclusion, including joining in, and signing of,
any protest or pleading which Tenant may deem it advisable to file. Any
penalties or interest charges imposed in connection with tax reduction
proceedings commenced by Tenant shall be the sole responsibility of Tenant and
shall be paid promptly. If Tenant initiates such a proceeding, Tenant agrees to
use reasonable efforts to obtain a reduction in Taxes, keep Landlord informed of
the status of its tax review or abatement proceeding and not terminate or
withdraw the same without at least forty-five (45) days prior written notice to
Landlord, during which forty-five (45) day period Landlord shall have the right,
but not the
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obligation, to be substituted for Tenant in any such proceeding, and if
Landlord so elects, Tenant shall cooperate with Landlord as Landlord may
reasonably require in order to effect such substitution, including, without
limitation, by assigning all rights and claims under any such proceeding to
Landlord. To the extent that Tenant is successful in obtaining any abatement or
reduction through such proceedings, and Landlord receives a refund of Taxes
previously paid, Landlord shall promptly pay over to Tenant such refund, net of
any amounts owed to Landlord at such time.
ARTICLE 9
OPERATING AND UTILITY EXPENSES
9.1 DEFINITIONS. "OPERATING YEAR" shall mean each calendar year all or
any part of which falls within the Term, and "OPERATING EXPENSES" shall mean the
aggregate costs and expenses incurred by Landlord with respect to the operation,
administration, cleaning, repair, maintenance and management of the Property,
all as, and to the extent, set forth in EXHIBIT D attached hereto.
9.2 TENANT'S PAYMENT OF OPERATING EXPENSES.
(a) Tenant shall pay to Landlord, as Additional Rent, an
amount equal to the Operating Expenses attributable to each Operating Year, such
amount to be apportioned for any portion of an Operating Year in which the
Commencement Date falls or the Term of this Lease ends.
(b) Estimated payments by Tenant on account of Operating
Expenses shall be made on the first day of each and every calendar month during
the Term of this Lease, in the fashion herein provided for the payment of Basic
Rent. The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the end of each Operating Year a sum equal to Tenant's
required payment, as reasonably estimated by Landlord from time to time during
each Operating Year, on account of Operating Expenses for such Operating Year.
After the end of each Operating Year, Landlord shall submit to Tenant a
reasonably detailed accounting of Operating Expenses for such Operating Year,
and Landlord shall certify to the accuracy thereof. If estimated payments
theretofore made for such Operating Year by Tenant exceed Tenant's required
payment on account thereof for such Operating Year according to such statement,
Landlord shall credit the amount of overpayment against subsequent obligations
of Tenant with respect to Operating Expenses (or promptly refund such
overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord other than the indemnity obligations set forth herein
which survive the termination of this Lease, provided that Landlord has no
claims pursuant thereto at such time); but if the required payments on account
thereof for such Operating Year are greater than the estimated payments (if any)
theretofore made on account thereof for such Operating Year, Tenant shall make
payment to Landlord within thirty (30) days after being so advised by Landlord,
and the obligation to make such payment for any period within the Term shall
survive expiration of the Term.
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(c) Tenant shall have the right to examine, copy and audit
Landlord's books and records establishing Operating Expenses for any Operating
Year for a period of one (1) year following the date that Tenant receives the
statement of Operating Expenses for such Operating Year from Landlord. Tenant
shall give Landlord not less than thirty (30) days' prior notice of its
intention to examine and audit such books and records, and such examination and
audit shall take place at such place within the continental United States as
Landlord routinely maintains such books and records, unless Landlord elects to
have such examination and audit take place in another location designated by
Landlord in the city and state in which the Property is located. All costs of
the examination and audit shall be borne by Tenant; provided, however, that if
such examination and audit establishes that the actual Operating Expenses for
the Operating Year in question are less than the amount set forth as the annual
Operating Expenses on the annual statement delivered to Tenant by at least three
percent (3%), then Landlord shall pay the reasonable costs of such examination
and audit. If, pursuant to the audit, the payments made for such Operating Year
by Tenant exceed Tenant's required payment on account thereof for such Operating
Year, Landlord shall credit the amount of overpayment against subsequent
obligations of Tenant with respect to Operating Expenses (or promptly refund
such overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord other than the indemnity obligations set forth herein
which survive the termination of this Lease, provided that Landlord has no
claims pursuant thereto at such time); but, if the payments made by Tenant for
such Operating Year are less than Tenant's required payment as established by
the examination and audit, Tenant shall pay the deficiency to Landlord within
thirty (30) days after conclusion of the examination and audit, and the
obligation to make such payment for any period within the Term shall survive
expiration of the Term. If Tenant does not elect to exercise its right to
examine and audit Landlord's books and records for any Operating Year within the
time period provided for by this paragraph, Tenant shall have no further right
to challenge Landlord's statement of Operating Expenses.
9.3 UTILITY PAYMENTS. Tenant shall be responsible for the payment of
all utilities used and consumed in the Premises, including, without limitation,
water, sewer, gas, electricity and telephone service, directly to the proper
authorities charged with collection thereof.
ARTICLE 10
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. Except to the extent arising from the
negligence or willful misconduct of Landlord or its agents or employees, Tenant
agrees to indemnify and save harmless Landlord and Landlord's partners, members,
shareholders, officers, directors, managers, employees, agents and contractors
from and against all claims, losses, cost, damages, liability or expenses of
whatever nature arising: (i) from any accident, injury or damage whatsoever to
any person, or to the property of any person, occurring in or about the
Premises; or (ii) from the use or occupancy of the Premises or of any business
conducted therein, and, in any case, occurring after the Commencement Date until
the expiration of the Term of this Lease and thereafter so long as Tenant is in
occupancy of any part of the Premises. This indemnity and hold harmless
agreement shall include indemnity against all losses, costs, damages, expenses
and liabilities incurred in or in connection with any such claim or any
proceeding brought thereon,
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and the defense thereof, including, without limitation, reasonable attorneys'
fees and costs at both the trial and appellate levels.
10.2 TENANT INSURANCE. Tenant agrees to maintain in full force from the
date upon which Tenant first enters the Premises for any reason, throughout the
Term of this Lease, and thereafter so long as Tenant is in occupancy of any part
of the Premises, a policy of commercial general liability and property damage
insurance (including broad form contractual liability, independent contractor's
hazard and completed operations coverage) under which Tenant is named as an
insured and Landlord (and such other persons as are in privity of estate with
Landlord as may be set out in a notice from time to time) are named as
additional insureds, and under which the insurer agrees to indemnify and hold
Landlord and those in privity of estate with Landlord, harmless from and against
all cost, expense and/or liability arising out of or based upon any and all
claims, accidents, injuries and damages set forth in SECTION 10.1. Tenant may
satisfy such insurance requirements by including the Premises in a so-called
"blanket" and/or "umbrella" insurance policy, provided that the amount of
coverage allocated to the Premises shall fulfill the requirements set forth
herein. Each policy required hereunder shall be non-cancelable and non-amendable
with respect to Landlord and Landlord's said designees without thirty (30) days'
prior notice, shall be written on an "occurrence" basis, and shall be in at
least the amounts of the Initial General Liability Insurance specified in
SECTION 1.1 or such greater amounts as Landlord in its reasonable discretion
shall from time to time request, and a duplicate original or certificates
thereof satisfactory to Landlord, together with a photocopy of the entire
policy, shall be delivered to Landlord.
10.3 TENANT'S RISK. Tenant agrees to use and occupy the Premises at
Tenant's own risk. Landlord shall not be liable to Tenant, its employees,
agents, invitees or contractors for any damage, injury, loss, compensation, or
claim (including, but not limited to, claims for the interruption of or loss to
Tenant's business) based on, arising out of or resulting from any cause
whatsoever, including, but not limited to, repairs to any portion of the
Premises or the Property, any fire, robbery, theft, mysterious disappearance
and/or any other crime or casualty, the actions of any person or persons, or any
leakage in any part or portion of the Premises or the Building, or from water,
rain or snow that may leak into, or flow from any part of the Premises or the
Building, or from drains, pipes or plumbing fixtures in the Building, unless due
to the negligence or willful misconduct of Landlord or Landlord's agents,
contractors or employees. Any goods, property or personal effects stored or
placed in or about the Premises shall be at the sole risk of Tenant, and neither
Landlord nor Landlord's insurers shall in any manner be held responsible
therefor. Notwithstanding the foregoing, Landlord shall not be released from
liability for any injury, loss, damages or liability to the extent arising from
any gross negligence or willful misconduct of Landlord, its servants, employees
or agents acting within the scope of their authority on or about the Premises;
provided, however, that in no event shall Landlord, its servants, employees or
agents have any liability to Tenant based on any loss with respect to or
interruption in the operation of Tenant's business. Tenant shall carry
"all-risk" property insurance on a "replacement cost" basis, insuring Tenant's
Removable Property and any Alterations made by Tenant pursuant to SECTION 5.2,
to the extent that the same have not become the property of Landlord.
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10.4 WAIVER OF SUBROGATION. The parties hereto shall each procure an
appropriate clause in, or endorsement on, any property insurance policy on the
Premises or any personal property, fixtures or equipment located thereon or
therein, pursuant to which the insurer waives subrogation or consents to a
waiver of right of recovery in favor of either party, its respective agents or
employees. Having obtained such clauses and/or endorsements, each party hereby
agrees that it will not make any claim against or seek to recover from the other
or its agents or employees for any loss or damage to its property or the
property of others resulting from fire or other perils covered by such property
insurance.
ARTICLE 11
FIRE, EMINENT DOMAIN, ETC.
11.1 NOTICE OF DAMAGE. If the Building shall be damaged or destroyed by
fire or other casualty, Tenant shall promptly notify Landlord of such
occurrence.
11.2 MINOR CASUALTY. In the event that the Building (other than
Tenant's Alterations, fixtures and personal property), or any part thereof, or
access thereto, shall be damaged or destroyed by fire or other insured casualty,
but the Tenant shall continue to have reasonably convenient access to the
Building and no portion of the Building (other than Tenant's Alterations,
fixtures and personal property) shall thereby be rendered unfit for use and
occupancy by the Tenant for the Permitted Uses, Landlord shall thereafter use
reasonable efforts to restore the Building (including any Tenant's Alterations
and/or fixtures which become part of the real estate comprising the Premises,
but specifically EXCLUDING any of Tenant's Alterations and/or fixtures which are
NOT insured under the insurance that Landlord maintains in accordance with the
terms of this Lease, and EXCLUDING Tenant's personal property) to proper
condition for Tenant's use and occupation, provided that Landlord's obligation
shall be limited to the amount of insurance proceeds available therefor plus the
amount of any deductibles for property insurance carried by Landlord pursuant to
the terms of this Lease. If, for any reason, such restoration shall not be
substantially completed within a six (6) month period after it was commenced the
(which six (6) month period may be extended for such periods of time as Landlord
is prevented from proceeding with or completing such restoration due to Force
Majeure, but in no event for more than an additional three (3) months), Tenant
shall have the right to terminate this Lease by giving notice to Landlord
thereof within thirty (30) days after the expiration of such period (as so
extended) provided that such restoration is not completed within such period.
This Lease shall cease and come to an end without further liability or
obligation on the part of either party thirty (30) days after such giving of
notice by Tenant unless, within such thirty-day period, Landlord substantially
completes such restoration. Such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to complete such
restoration, and time shall be of the essence with respect thereto.
11.3 MAJOR CASUALTY. In the event that the Building (other than
Tenant's Alterations, fixtures and personal property), or any part thereof, or
access thereto, shall be so damaged or destroyed by fire or other insured
casualty that the Tenant shall not have reasonably convenient access to the
Building or any portion of the Building (other than Tenant's
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Alterations, fixtures and personal property) or that the Building shall
thereby be otherwise rendered unfit for use and occupancy by the Tenant for the
Permitted Uses, and if in the sole reasonable judgment of the Landlord the
damage or destruction may be repaired within nine (9) months from the time that
repair work would commence, then the Landlord shall so notify the Tenant within
sixty (60) days after the occurrence of the damage or destruction. Landlord
shall thereafter use reasonable efforts to restore the Building (including any
Tenant's Alterations and/or fixtures which become part of the real estate
comprising the Premises, but specifically EXCLUDING any of Tenant's Alterations
and/or fixtures which are NOT insured under the insurance that Landlord
maintains in accordance with the terms of this Lease, and EXCLUDING Tenant's
personal property) to proper condition for Tenant's use and occupation, provided
that Landlord's obligation shall be limited to the amount of insurance proceeds
available therefor. If, for any reason, such restoration shall not be
substantially completed within a nine (9) month period after it was commenced
the (which nine (9) month period may be extended for such periods of time as
Landlord is prevented from proceeding with or completing such restoration due to
Force Majeure, but in no event for more than an additional three (3) months),
Tenant shall have the right to terminate this Lease by giving notice to Landlord
thereof within thirty (30) days after the expiration of such period (as so
extended) provided that such restoration is not completed within such period.
This Lease shall cease and come to an end without further liability or
obligation on the part of either party thirty (30) days after such giving of
notice by Tenant unless, within such thirty-day period, Landlord substantially
completes such restoration. Such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to complete such
restoration, and time shall be of the essence with respect thereto. If such
damage or destruction cannot, in the sole reasonable judgment of the Landlord,
be expected to be repaired within nine (9) months from the time that repair work
would commence), and the Landlord does not give the Tenant the notice referred
to in this SECTION 11.3, then either party shall have the right to terminate
this Lease by giving written notice of such termination to the other party
within sixty (60) days after the occurrence of such damage or destruction, in
the case of Landlord, and within thirty (30) days after the expiration of such
sixty (60) day period in the case of Tenant, whereupon this Lease shall
terminate thirty (30) days after the date of such notice with the same force and
effect as if such date were the date originally established as the expiration
date hereof. If neither party gives such notice of termination, then Landlord
shall repair the damage or destruction in accordance with and subject to the
terms of this SECTION 11.3.
11.4 CASUALTY IN LAST SIX MONTHS. In addition to and apart from the
foregoing provisions of this ARTICLE 11, (i) if more than twenty-five percent
(25%) of the rentable square feet of the Building shall be totally or almost
totally damaged or destroyed by fire or other cause at any time during the last
six (6) months of the Term of this Lease, (ii) if the Building is damaged or
destroyed by fire or other cause to such extent that the cost to repair the
damage or destruction, as reasonably estimated by the Landlord, will be more
than twenty-five percent (25%) of the replacement value of the Building
(excluding foundations) immediately prior to the occurrence of such damage or
destruction, and (iii) if the estimated period to complete the repairs will
result in less than two (2) months remaining in the Term of this Lease
(including any exercised extension) following the completion of such repairs,
either the Landlord or the Tenant may terminate this Lease by giving written
notice of such termination to the other party whereupon this Lease shall
terminate as of the date of such damage or destruction as if such date
30
were the date originally established as the expiration date hereof.
11.5 LEASE TERMINATION IN FINAL TWO YEARS. Landlord and Tenant each
shall have the right to terminate this Lease if the Building is destroyed or
damaged by fire or other casualty to the extent of at least fifty percent (50%)
of the total cost of replacing it during the last two (2) years of the Initial
Term or an Extended Term. Each party's termination rights under this Section
shall be exercised, if at all, by written notice to the other party sent within
thirty (30) days after the occurrence of the damage or destruction. If, however,
Landlord sends such a notice terminating the Lease to Tenant during the last two
(2) years of the Initial Term or an Extended Term, such termination notice shall
take effect thirty (30) days after the date of such notice, unless within said
thirty (30) day period, Tenant sends Landlord written notice exercising Tenant's
extension option contained in SECTION 2.3 (which option may, under the
circumstances set forth in this SECTION 11.5, be exercised earlier than
permitted in SECTION 2.3), in which event Landlord's termination notice shall be
void.
11.6 LANDLORD'S INSURANCE. Landlord agrees to maintain in full force
and effect, during the Term of this Lease, at Tenant's expense as provided
herein, property damage insurance with such deductibles and in such amounts as
may from time to time be carried by reasonably prudent owners of similar
buildings in the area in which the Property is located, including, without
limitation, (i) fire and extended coverage insurance insuring the Building with
one hundred percent (100%) replacement cost coverage together with rent loss
insurance protecting Landlord against abatement or loss of rent in an amount
equal to at least all Base Rent and Additional Rent payable for one year by the
tenant(s) of the Building, (ii) commercial general liability and property damage
insurance, including a broad form contractual liability endorsement, and (iii)
insurance against other hazards as may from time to time be reasonably required
by any bank, insurance company or other lending institution holding a first
mortgage on the Property which at the time are commonly insured against for
property similar to the Property located in or around the region in which the
Property is located. Without limiting any other term of this Lease, any costs
incurred in connection with any insurance maintained by Landlord with respect to
the Property shall be at Tenant's expense and shall be an Operating Expense.
11.7 ABATEMENT OF RENT. If the Building is damaged by fire or other
casualty, or a partial taking occurs and this Lease is not terminated pursuant
to SECTION 11.8 below, Basic Rent and Additional Rent payable by Tenant shall
abate proportionately for the period during which, by reason of such damage or
partial taking, there is substantial interference with Tenant's use of the
Building, having regard for the extent to which Tenant may be required to
discontinue Tenant's use of all or an undamaged portion of the Building due to
such damage or partial taking, but such abatement or reduction shall end if and
when Landlord shall have substantially completed sufficient restoration that
Tenant is reasonably able to use the Building and the Building is in
substantially the condition it was in prior to such damage (excluding any of
Tenant's Alterations, fixtures or personal property). If the Premises shall be
affected by any exercise of the power of eminent domain, Basic Rent and
Additional Rent payable by Tenant shall be justly and equitably abated and
reduced according to the nature and extent of the loss of use thereof suffered
by Tenant. In no event shall Landlord have any liability for damages to Tenant
for inconvenience, annoyance, or interruption of business arising from any fire
or other
31
casualty or eminent domain.
11.8 CONDEMNATION. If the Premises or the Building is taken in its
entirety by eminent domain then this Lease shall terminate as of the date when
physical possession of the Building or the Premises is taken by the condemning
authority. If there occurs a taking of (a) more than fifty (50%) percent of the
usable floor area of the Building, (b) more than fifty (50%) percent of the area
of the parking lot located on the Land, or (c) all possible means of access to
the Premises, then, in any of these events, Tenant shall have the right to
terminate this Lease by giving written notice to Landlord within ninety (90)
days after the date of such partial taking. If this Lease is not terminated
pursuant to this SECTION 11.8, then Landlord shall repair the Premises to the
condition the Premises was in prior to the partial taking, to the extent
practicable, provided however, that Landlord shall not be required to spend in
connection with such repair more than the amount of proceeds actually received
by Landlord and allocable thereto, less the costs of collecting the same.
11.9 CONDEMNATION AWARD. Landlord shall have and hereby reserves and
excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover
for damages to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of any taking, by exercise
of the right of eminent domain, and by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and assign to
Landlord, all rights to such damages or compensation, and covenants to deliver
such further assignments and assurances thereof as Landlord may from time to
time request, and Tenant hereby irrevocably appoints Landlord its
attorney-in-fact to execute and deliver in Tenant's name all such assignments
and assurances. Nothing contained herein shall be construed to prevent Tenant
from prosecuting in any condemnation proceedings a claim for the value of any of
Tenant's Removable Property installed in the Premises by Tenant at Tenant's
expense and for relocation expenses, provided that such action shall not affect
the amount of compensation otherwise recoverable by Landlord from the taking
authority.
ARTICLE 12
HOLDING OVER; SURRENDER
12.1 HOLDING OVER. Any holding over by Tenant after the expiration of
the Term of this Lease shall be treated as a daily tenancy at sufferance at a
Basic Rent of the Holdover Rent (defined below) plus the Additional Rent herein
provided (prorated on a daily basis). "Holdover Rent" shall mean, for any
calendar month of holding over, one and one half (1.5) times the Basic Rent in
effect as of the end of the Term, for the second calendar month of any holding
over, two (2) times the Basic Rent in effect as of the end of the Term, for the
third calendar month of any holding over, two and one half (2.5) times the Basic
Rent in effect as of the end of the Term, and shall be increased by an
additional factor of fifty percent (50%) more than the previous month's increase
factor times the Basic Rent in effect as of the end of the Term for each
succeeding calendar month of the holding over. Tenant shall also pay to Landlord
all damages, direct and/or indirect, sustained by reason of any such holding
over, PROVIDED HOWEVER, that Landlord shall not attempt to enforce, and Tenant
shall have no liability for, indirect damages sustained by reason
32
of any such holding over during the first ninety (90) days immediately following
the end of the Term. In all other respects, such holding over shall be on the
terms and conditions set forth in this Lease as far as applicable. Tenant shall
have no right to hold over.
12.2 SURRENDER OF PREMISES. Upon the expiration or earlier termination
of the Term of this Lease, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition and
repair, together with all alterations, additions and improvements which may have
been made or installed in, on or to the Premises prior to or during the Term of
this Lease, including those Alterations designated by Landlord at the time
Landlord approves the Alterations pursuant to Section 5.2 above to not be
removed upon the expiration or earlier termination of the Term (except as
hereinafter provided), excepting only ordinary wear and use and damage by fire
or other casualty for which, under other provisions of this Lease, Tenant has no
responsibility to repair or restore. Tenant shall remove all of Tenant's
Removable Property and, to the extent specified by Landlord pursuant to SECTION
5.2, all alterations and additions made by Tenant; and shall repair any damages
to the Premises or the Building caused by such removal. Nothing contained in
this SECTION 12.2 shall prohibit Tenant from (as contemplated by SECTION 5.2)
(i) removing, at its option, any Alterations made or installed by Tenant
provided that Tenant shall repair any damage to the Building caused by such
removal and otherwise restores the Building to a condition fit for use and
occupation or (ii) leaving in the Premises any Alterations made or installed by
Tenant which are NOT designated by Landlord at the time Landlord approves the
Alterations pursuant to SECTION 5.2 to be removed upon the expiration or earlier
termination of the Term. Any Tenant's Removable Property which shall remain in
the Building or on the Premises after the expiration or termination of the Term
of this Lease shall be deemed conclusively to have been abandoned, and either
may be retained by Landlord as its property or may be disposed of in such manner
as Landlord may see fit, at Tenant's sole cost and expense.
ARTICLE 13
RIGHTS OF MORTGAGEES; TRANSFER OF TITLE
13.1 RIGHTS OF MORTGAGEES.
(a This Lease shall be subordinate to any mortgage, deed of
trust or ground lease or similar encumbrance (collectively, a "MORTGAGE", and
the holder thereof from time to time the "HOLDER") from time to time encumbering
the Premises, whether executed and delivered prior to or subsequent to the date
of this Lease, unless the Holder shall elect otherwise; PROVIDED THAT such
subordination shall only be effective if the Holder enters into a written
agreement that, subject to such reasonable qualifications as the Holder may
impose, in the event that the Holder or any other party shall succeed to the
interest of Landlord hereunder pursuant to such Mortgage, so long as no Default
of Tenant exists hereunder, Tenant's right to possession of the Premises shall
not be disturbed and Tenant's other rights hereunder shall not be adversely
affected by any foreclosure of such Mortgage. If this Lease is subordinate to
any Mortgage and the Holder or any other party shall succeed to the interest of
Landlord pursuant to the Mortgage (such Holder or other party, a "SUCCESSOR"),
Tenant shall attorn to the or Successor and this Lease shall continue in full
force and effect between the Holder or Successor and Tenant. Tenant agrees to
33
execute such instruments of subordination or attornment in confirmation of the
foregoing agreement as the Holder or Successor reasonably may request, and
Tenant hereby appoints the Holder or Successor as Tenant's attorney-in-fact to
execute such subordination or attornment agreement upon default of Tenant in
complying with the Holder's or Successor's request.
13.2 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE.
(a With reference to any assignment by Landlord of Landlord's
interest in this Lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a mortgage on property
which includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage shall never
be treated as an assumption by such holder of any of the obligations of Landlord
hereunder unless such holder shall, by notice sent to Tenant, specifically
otherwise elect and, except as aforesaid, such holder shall be treated as having
assumed Landlord's obligations hereunder only upon foreclosure of such holder's
mortgage or the taking of possession of the Premises.
(b In no event shall the acquisition of Landlord's interest in
the Property by a purchaser which, simultaneously therewith, leases Landlord's
entire interest in the Property back to the seller thereof be treated as an
assumption by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord's obligations
hereunder. In any such event, this Lease shall be subject and subordinate to the
lease to such purchaser. For all purposes, such seller-lessee, and its
successors in title, shall be the Landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
(c Except for transfers described in PARAGRAPH (b) of this
Section, in the event of any transfer of title to the Property by Landlord,
Landlord shall thereafter be entirely freed and relieved from the performance
and observance of all covenants and obligations hereunder arising after the date
of such transfer.
13.3 NOTICE TO MORTGAGEE. After receiving notice from Landlord of any
Holder of a Mortgage which includes the Premises, no notice from Tenant to
Landlord alleging any default by Landlord shall be effective unless and until a
copy of the same is given to such Holder (provided Tenant shall have been
furnished with the name and address of such Holder), and the curing of any of
Landlord's defaults by such Holder shall be treated as performance by Landlord.
ARTICLE 14
DEFAULT; REMEDIES
14.1 TENANT'S DEFAULT.
(a If at any time subsequent to the date of this Lease any one
or more of the
34
following events (herein referred to as a "DEFAULT OF TENANT") shall happen:
(i) Tenant shall fail to pay the Basic Rent or
any other Additional Rent hereunder when due and such failure shall
continue for three (3) Business Days after notice to Tenant from
Landlord; or
(ii) Tenant shall neglect or fail to perform or
observe any other covenant herein contained on Tenant's part to be
performed or observed and Tenant shall fail to remedy the same within
thirty (30) days after notice to Tenant specifying such neglect or
failure, or if such failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30) day period, Tenant
shall fail to commence promptly (and in any event within such thirty
(30) day period) to remedy the same and to prosecute such remedy to
completion with diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises
shall be taken on execution or by other process of law directed
against Tenant; or
(iv) Tenant shall make an assignment for the
benefit of creditors or shall be adjudicated insolvent, or shall file
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
for itself under any present or future Federal, State or other statute,
law or regulation for the relief of debtors (other than the Bankruptcy
Code, as hereinafter defined), or shall seek or consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of Tenant or
of all or any substantial part of its properties, or shall admit in
writing its inability to pay its debts generally as they become due; or
(v) An Event of Bankruptcy (as hereinafter defined)
shall occur with respect to Tenant; or
(vi) A petition shall be filed against Tenant
under any law (other than the Bankruptcy Code) seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future Federal,
State or other statute, law or regulation and shall remain undismissed
or unstayed for an aggregate of sixty (60) days (whether or not
consecutive), or if any trustee, conservator, receiver or liquidator of
Tenant or of all or any substantial part of its properties shall be
appointed without the consent or acquiescence of Tenant and such
appointment shall remain unvacated or unstayed for an aggregate of
sixty (60) days (whether or not consecutive);
(vii) If: (x) Tenant shall fail to pay the Basic
Rent or any Additional Rent hereunder when due or shall fail to perform
or observe any other covenant herein contained on Tenant's part to be
performed or observed and Tenant shall cure any such failure within the
applicable grace period set forth in clauses (i) or (ii) above; or (y)
a Default of Tenant of the kind set forth in clauses (i) or (ii) above
shall occur and Landlord shall, in its sole discretion, permit Tenant
to cure such Default of Tenant after
35
the applicable grace period has expired; AND the same or a similar
failure shall occur more than twice within the next 365 days (whether
or not such similar failure is cured within the applicable grace
period);
then in any such case Landlord may terminate this Lease as hereinafter provided.
(b For purposes of CLAUSE (A)(V) above, an "EVENT OF
BANKRUPTCY" means the filing of a voluntary petition by Tenant, or the entry of
an order for relief against Tenant, under Chapter 7, 11, or 13 of the Bankruptcy
Code, and the term "BANKRUPTCY CODE" means 11 U.S.C. ss.101, ET SEQ. If an Event
of Bankruptcy occurs, then the trustee of Tenant's bankruptcy estate or Tenant
as debtor-in-possession may (subject to final approval of the court) assume this
Lease, and may subsequently assign it, only if it does the following within
sixty (60) days after the date of the filing of the voluntary petition, the
entry of the order for relief (or such additional time as a court of competent
jurisdiction may grant, for cause, upon a motion made within the original
sixty-day period):
(i) file a motion to assume the Lease with the
appropriate court;
(ii) satisfy all of the following conditions, which
Landlord and Tenant acknowledge to be commercially reasonable:
(A) cure all Defaults of Tenant under this Lease or
provide Landlord with Adequate Assurance (as defined
below) that it will (x) cure all monetary Defaults of
Tenant hereunder within ten (10) days from the date
of the assumption, and (y) cure all nonmonetary
Defaults of Tenant hereunder within thirty (30) days
from the date of the assumption;
(B) compensate Landlord and any other person or entity,
or provide Landlord with Adequate Assurance that
within ten (10) days after the date of the
assumption, it will compensate Landlord and such
other person or entity, for any pecuniary loss that
Landlord and such other person or entity incurred as
a result of any Default of Tenant, the trustee, or
the debtor-in-possession;
(C) provide Landlord with Adequate Assurance of Future
Performance (as defined below) of all of Tenant's
obligations under this Lease; and
(D) deliver to Landlord a written statement that the
conditions herein have been satisfied.
(c) For purposes only of the foregoing PARAGRAPH (b), and in
addition to any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "ADEQUATE ASSURANCE" means at least
meeting the following conditions, which Landlord and Tenant acknowledge to be
commercially reasonable:
36
(i) entering an order segregating sufficient cash
to pay Landlord and any other person or entity under PARAGRAPH (b)
above, and
(ii) granting to Landlord a valid first lien and
security interest (in form acceptable to Landlord) in all property
comprising the Tenant's "property of the estate," as that term is
defined in Section 541 of the Bankruptcy Code, which lien and security
interest secures the trustee's or debtor-in-possession's obligation to
cure the monetary and nonmonetary defaults under the Lease within the
periods set forth in PARAGRAPH (b) above.
(d) For purposes only of PARAGRAPH (B) above, and in addition
to any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "ADEQUATE ASSURANCE OF FUTURE
PERFORMANCE" means at least meeting the following conditions, which Landlord and
Tenant acknowledge to be commercially reasonable:
(i) the trustee or debtor-in-possession
depositing with Landlord, as security for the timely payment of rent
and other monetary obligations, an amount equal to the sum of two (2)
months' Basic Rent plus an amount equal to two (2) months' installments
on account of Additional Rent;
(ii) the trustee or the debtor-in-possession
agreeing to pay in advance, on each day that the Basic Rent is payable,
the monthly installments on account of Additional Rent;
(iii) the trustee or debtor-in-possession
providing adequate assurance of the source of the rent and other
consideration due under this Lease;
(iv) Tenant's bankruptcy estate and the trustee
or debtor-in-possession providing Adequate Assurance that the
bankruptcy estate (and any successor after the conclusion of the
Tenant's bankruptcy proceedings) will continue to have sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the bankruptcy estate
(and any successor after the conclusion of the Tenant's bankruptcy
proceedings) will have sufficient funds to fulfill Tenant's obligations
hereunder.
(e) If the trustee or the debtor-in-possession assumes the
Lease under PARAGRAPH (b) above and applicable bankruptcy law, it may assign its
interest in this Lease only if the proposed assignee first provides Landlord
with Adequate Assurance of Future Performance of all of Tenant's obligations
under the Lease, and if Landlord determines, in the exercise of its reasonable
business judgment, that the assignment of this Lease will not breach any other
lease, or any mortgage, financing agreement, or other agreement relating to the
Property by which Landlord or the Property is then bound (and Landlord shall not
be required to obtain consents or waivers from any third party required under
any lease, mortgage, financing agreement, or other such agreement by which
Landlord is then bound).
37
(f) For purposes only of PARAGRAPH (e) above, and in addition
to any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "ADEQUATE ASSURANCE OF FUTURE
PERFORMANCE" means at least the satisfaction of the following conditions, which
Landlord and Tenant acknowledge to be commercially reasonable:
(i) the proposed assignee submitting a current
financial statement, audited by a certified public accountant, that
allows a net worth and working capital in amounts determined in the
reasonable business judgment of Landlord to be sufficient to assure the
future performance by the assignee of Tenant's obligation under this
Lease; and
(ii) if requested by Landlord in the exercise of
its reasonable business judgment, the proposed assignee obtaining a
guarantee (in form and substance satisfactory to Landlord) from one or
more persons who satisfy Landlord's standards of creditworthiness.
14.2 LANDLORD'S REMEDIES.
(a) Upon the occurrence of a Default of Tenant, Landlord may
terminate this Lease by notice to Tenant, specifying a date not less than five
(5) days after the giving of such notice on which this Lease shall terminate and
this Lease shall come to an end on the date specified therein as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Term of this Lease, and Tenant will then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
(b) If this Lease shall have been terminated as provided in
this ARTICLE, then Landlord may re-enter the Premises, either by summary
proceedings, ejectment or otherwise, and remove and dispossess Tenant and all
other persons and any and all property from the same, as if this Lease had not
been made.
(c) If this Lease shall have been terminated as provided in
this Article, Tenant shall pay the Basic Rent, Additional Rent and other sums
payable hereunder up to the time of such termination, and thereafter Tenant,
until the end of what would have been the Term of this Lease in the absence of
such termination, and whether or not the Premises shall have been relet, shall
be liable to Landlord for, and shall pay to Landlord, as liquidated current
damages: (x) the Basic Rent, Additional Rent and other sums that would be
payable hereunder if such termination had not occurred, less the net proceeds,
if any, of any reletting of the Premises, after deducting all expenses in
connection with such reletting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, attorneys' fees, advertising,
expenses of employees, alteration costs and expenses of preparation for such
reletting; and (y) if this Lease provides that Tenant was entitled to occupy the
Premises for any period of time without paying Basic Rent, the amount of Basic
Rent that Tenant would have paid for any such period. Tenant shall pay the
portion of such current damages referred to in clause (x) above to Landlord
monthly on the days which the Basic Rent would have been payable hereunder if
this Lease had not been terminated, and Tenant shall pay the portion of such
current damages referred to in clause (y)
38
above to Landlord upon such termination.
(d) At any time after termination of this Lease as provided in
this Article, whether or not Landlord shall have collected any such current
damages, as liquidated final damages and in lieu of all such current damages
beyond the date of such demand, at Landlord's election Tenant shall pay to
Landlord an amount equal to the present value (calculated using the Federal
Reserve discount rate in effect on the date of such demand) of the excess, if
any, of the Basic Rent, Additional Rent and other sums as hereinbefore provided
which would be payable hereunder from the date of such demand assuming that, for
the purposes of this paragraph, annual payments by Tenant on account of Taxes
and Operating Expenses would be the same as the payments required for the
immediately preceding Operating or Tax Year for what would be the then unexpired
Term of this Lease if the same remained in effect, over the then fair net rental
value of the Premises for the same period.
(e) In case of any Default of Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord (i) shall use
reasonable efforts to re-let the Premises or any part or parts thereof, either
in the name of Landlord or otherwise, for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term of this Lease and may grant
concessions or free rent to the extent that Landlord considers advisable and
necessary to re-let the same and (ii) may make such alterations, repairs and
decorations in the Premises as Landlord considers advisable and necessary for
the purpose of reletting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for failure to relet the Premises, or, in the event that the
Premises are relet, for failure to collect the rent under such reletting. Tenant
hereby expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed, or
in the event of Landlord obtaining possession of the Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease.
Notwithstanding the foregoing, in no event shall Landlord be required to (i)
relet the Premises for a rental less than the current fair market rental then
prevailing for similar office space, (ii) enter into a lease with any proposed
tenant that does not have, in Landlord's sole discretion, sufficient financial
resources or operating experience to operate the Premises in a first-class
manner, or (iii) relet the Premises for use other than the Permitted Use.
14.3 ADDITIONAL RENT. If Tenant shall fail to pay when due any sums
under this Lease designated as Additional Rent, Landlord shall have the same
rights and remedies as Landlord has hereunder for failure to pay Basic Rent.
14.4 REMEDYING DEFAULTS. Subject to the notice and opportunity to cure
periods specifically set forth in this Lease, Landlord shall have the right, but
shall not be required, to pay such sums or do any act which requires the
expenditure of monies which may be necessary or appropriate by reason of the
failure or neglect of Tenant to perform any of the provisions of this
39
Lease, and in the event of the exercise of such right by Landlord, Tenant
agrees to pay to Landlord forthwith upon demand all such sums, together
with interest thereon at a rate equal to 3% over the base rate in effect from
time to time at The First National Bank of Boston (but in no event less than 18%
per annum), as Additional Rent. Any payment of Basic Rent, Additional Rent or
other sums payable hereunder not paid when due shall, at the option of Landlord,
bear interest at a rate equal to 3% over the base rate in effect from time to
time at The First National Bank of Boston (but in no event less than 18% per
annum) from the due date thereof and shall be payable forthwith on demand by
Landlord, as Additional Rent.
14.5 REMEDIES CUMULATIVE. The specified remedies to which Landlord may
resort hereunder are not intended to be exclusive of any remedies or means of
redress to which Landlord may at any time be entitled lawfully, and Landlord may
invoke any remedy (including the remedy of specific performance) allowed at law
or in equity as if specific remedies were not herein provided for.
14.6 ATTORNEYS' FEES. Reasonable attorneys' fees and expenses incurred
by or on behalf of Landlord in enforcing its rights hereunder or occasioned by
any Default of Tenant shall be paid by Tenant if Landlord is successful in such
enforcement. Reasonable attorneys' fees and expenses incurred by or on behalf of
Tenant in enforcing its rights hereunder after a default of Landlord shall be
paid by Landlord if Tenant is successful in such enforcement.
14.7 WAIVER.
(a) Failure on the part of Landlord or Tenant to complain of
any action or non-action on the part of the other, no matter how long the same
may continue, shall never be a waiver by Tenant or Landlord, respectively, of
any of the other's rights hereunder. Further, no waiver at any time of any of
the provisions hereof by Landlord or Tenant shall be construed as a waiver of
any of the other provisions hereof, and a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at any subsequent time of
the same provisions. The consent or approval of Landlord or Tenant to or of any
action by the other requiring such consent or approval shall not be construed to
waive or render unnecessary Landlord's or Tenant's consent or approval to or of
any subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a
lesser amount than shall be due from Tenant to Landlord shall be treated
otherwise than as a payment on account of the earliest installment of any
payment due from Tenant under the provisions hereof. The acceptance by Landlord
of a check for a lesser amount with an endorsement or statement thereon, or upon
any letter accompanying such check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without prejudice
to any other rights or remedies which Landlord may have against Tenant.
14.8 LANDLORD'S DEFAULT. Landlord shall in no event be in default under
this Lease unless Landlord shall neglect or fail to perform any of its
obligations hereunder and shall fail to remedy the same within thirty (30) days
after notice to Landlord specifying such neglect or failure, or if such failure
is of such a nature that Landlord cannot reasonably remedy the same
40
within such thirty (30) day period, Landlord shall fail to commence
promptly (and in any event within such thirty (30) day period) to remedy the
same and to prosecute such remedy to completion with diligence and continuity.
ARTICLE 15
MISCELLANEOUS PROVISIONS
15.1 RIGHTS OF ACCESS. Landlord and its agents shall have the right to
enter the Premises at all reasonable hours for the purpose of inspecting the
Premises or otherwise exercising its rights or fulfilling its obligations under
this Lease, and Landlord and its agents also shall have the right to make access
available at all reasonable hours to prospective or existing mortgagees,
purchasers or tenants of any part of the Property.
15.2 COVENANT OF QUIET ENJOYMENT.
(a Reference is made to Policy No. 20335124 issued to Landlord
by First American Title Insurance Company and dated December 21, 1999 (the
"TITLE INSURANCE POLICY"), a copy of which has been delivered to Tenant.
Landlord covenants that to the best of its actual knowledge without any duty of
inquiry, there are no liens or encumbrances of record on the Premises as of the
date hereof, except as disclosed in the Title Insurance Policy.
(b Subject to the terms and conditions of this Lease, on
payment of the Basic Rent and Additional Rent and observing, keeping and
performing all of the other terms and conditions of this Lease on Tenant's part
to be observed, kept and performed, Tenant shall lawfully, peaceably and quietly
enjoy the Premises during the term hereof, without hindrance or ejection by any
persons lawfully claiming under Landlord to have title to the Premises superior
to Tenant. The foregoing covenant of quiet enjoyment is in lieu of any other
covenant, express or implied except as otherwise expressly set forth herein.
15.3 LANDLORD'S LIABILITY.
(a) Tenant agrees to look solely to Landlord's equity interest
in the Property or proceeds therefrom, at the time of recovery for recovery of
any judgment against Landlord, and agrees that neither Landlord nor any
successor of Landlord shall be personally liable for any such judgment, or for
the payment of any monetary obligation to Tenant. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or any
successor of Landlord, or to take any action not involving the personal
liability of Landlord or any successor of Landlord to respond in monetary
damages from Landlord's assets other than Landlord's equity interest in the
Property.
(b) In no event shall Landlord ever be liable to Tenant for
any loss of business or any other indirect or consequential damages suffered by
Tenant from whatever cause. Except with respect to a default under Section 12.1
above, in no event shall Tenant ever be liable to
41
Landlord for any loss of business or any other indirect or consequential
damages suffered by Landlord from whatever cause.
(c) Whenever Tenant requests Landlord's consent or approval
(whether or not provided for herein), Tenant shall pay to Landlord, on demand,
as Additional Rent, any reasonable expenses incurred by Landlord (including
without limitation reasonable attorneys' fees and costs, if any) in connection
therewith.
(d) Any repairs or restoration permitted to be made by
Landlord under this Lease may be made during normal business hours, and
Landlord shall have no liability for damages to Tenant for inconvenience,
annoyance or interruption of business arising therefrom. Notwithstanding the
foregoing, Landlord agrees to use commercially reasonable efforts to minimize
or eliminate interruption in Tenant's business in performing such repairs or
restoration.
15.4 ESTOPPEL CERTIFICATE. Landlord and Tenant shall each, at any time
and from time to time, upon not less than ten (10) business days prior written
notice by the other party, execute, acknowledge and deliver to the requesting
party an estoppel certificate containing such statements of fact regarding the
Lease as the requesting party reasonably requests.
15.5 BROKERAGE. Landlord and Tenant each warrant and represent to the
other that neither of them has dealt with any broker in connection with the
consummation of this Lease. In the event of any brokerage claims against
Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend the
same and indemnify Landlord against any such claim. In the event of any
brokerage claims against Tenant predicated upon prior dealings with Landlord,
Landlord agrees to defend the same and indemnify Tenant against any such claim.
15.6 RULES AND REGULATIONS. Tenant shall abide by the Rules and
Regulations set forth in EXHIBIT E, as the same may be reasonably modified from
time to time by Landlord. In the event that there shall be a conflict between
such Rules and Regulations and the provisions of this Lease, the provisions of
this Lease shall control.
15.7 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of
this Lease, or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
15.8 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the
terms hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant (except in the case
of Tenant, ONLY such successors and assigns as may be permitted hereunder) and,
if Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and permitted assigns. Each term and each provision
of this Lease to be performed by Tenant shall be construed to be both a covenant
and a condition. Any reference
42
in this Lease to successors and assigns of Tenant shall not be construed
to constitute a consent to assignment by Tenant.
15.9 RECORDING. Tenant agrees not to record this Lease, but each party
hereto agrees, on the request of the other, to execute a notice of lease in
recordable form and complying with applicable law. In no event shall such
document set forth the rent or other charges payable by Tenant under this Lease;
and any such document shall expressly state that it is executed pursuant to the
provisions contained in this Lease, and is not intended to vary the terms and
conditions of this Lease. At Landlord's request, promptly upon expiration of or
earlier termination of the Term, Tenant shall execute and deliver to Landlord a
release of any document recorded in the real property records for the location
of the Property evidencing this Lease, and Tenant hereby appoints Landlord
Tenant's attorney-in-fact, coupled with an interest, to execute any such
document if Tenant fails to respond to Landlord's request to do so within
fifteen (15) days. The obligations of Tenant under this Section shall survive
the expiration or any earlier termination of the Term.
15.10 NOTICE. All notices or other communications required hereunder
shall be in writing and shall be deemed duly given if delivered in person (with
receipt therefor), if sent by reputable overnight delivery or courier service
(e.g., Federal Express) providing for receipted delivery, or if sent by
certified or registered mail, return receipt requested, postage prepaid, to the
following address:
(a) if to Landlord at Landlord's Address, to the attention of
Robert Hale, Sr., with a copy to Maura Griffith Moffatt,
Esq., Goodwin, Procter & Hoar LLP, Exchange Place, Boston,
MA 02109-2881, and an additional copy to Mr. Michael
Shuipis, 128 Oak Street, Duxbury, MA 02332.
(b) if to Tenant, at Tenant's Address, to the attention of CFO
and General Counsel, and after the Commencement Date, at
the Premises, to the attention of CFO and General Counsel,
with a copy to Keith R. Barnett, Esq., Hale & Dorr LLP, 60
State Street, Boston, MA 02109.
Where receipt of notice or other communication shall be conclusively
established by either (i) return of a return receipt indicating that the notice
has been delivered; or (ii) return of the letter containing the notice with an
indication from the courier or postal service that the addressee has refused to
accept delivery of the notice. Either party may change its address for the
giving of notices by notice given in accordance with this Section.
15.11 WHEN LEASE BECOMES BINDING; ENTIRE AGREEMENT; MODIFICATION. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. This Lease is the entire agreement between
Landlord and Tenant, and this Lease expressly supersedes any negotiations,
considerations, representations and understandings and proposals or other
43
written documents relating hereto. This Lease may be modified or altered only by
written agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
15.12 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS. The paragraph
headings throughout this instrument are for convenience and reference only, and
the words contained therein shall in no way be held to explain, modify, amplify
or aid in the interpretation, construction or meaning of the provisions of this
Lease. The provisions of this Lease shall be construed as a whole, according to
their common meaning (except where a precise legal interpretation is clearly
evidenced), and not for or against either party. Use in this Lease of the words
"including," "such as" or words of similar import, when followed by any general
term, statement or matter, shall not be construed to limit such term, statement
or matter to the specified item(s), whether or not language of non-limitation,
such as "without limitation" or "including, but not limited to," or words of
similar import, are used with reference thereto, but rather shall be deemed to
refer to all other terms or matters that could fall within a reasonably broad
scope of such term, statement or matter.
15.13 DISPUTE RESOLUTION. In the event of a dispute between Landlord
and Tenant pursuant to this Lease (other than a dispute relating to the payment
of Basic Rent and Additional Rent) the parties agree that prior to pursuing
other available remedies (excluding giving notices of default), they will
attempt to directly negotiate resolution of their dispute. If negotiation is
unsuccessful, then they agree to participate in at least three hours of
mediation to be facilitated by a mediator mutually acceptable to them under the
mediation procedures set by the mediator. The mediation session shall be
conducted within thirty (30) days of the date on which the mediator receives the
request to mediate. The costs of such mediation shall be shared equally by the
parties.
15.14 WAIVER OF JURY TRIAL. Landlord and Tenant hereby each waive trial
by jury in any action, proceeding or counterclaim brought by either against the
other, on or in respect of any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant or Tenant's
use or occupancy of the Premises.
15.15 TIME IS OF THE ESSENCE. Time is of the essence of each
provision of this Lease.
15.16 MULTIPLE COUNTERPARTS. This Lease may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document.
15.17 GOVERNING LAW. This Lease shall be governed by the laws of the
state in which the Property is located.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly
44
executed, under seal, by persons hereunto duly authorized, as of the date
first set forth above.
LANDLORD:
Trunks Up LLC
By: /s/ Robert T. Hale
-----------------------------------
Name: Robert T. Hale
Title: Partner
TENANT:
Network Plus, Inc.
By: /s/ Robert T. Hale, Jr.
-----------------------------------
Name: Robert T. Hale, Jr.
Title: CEO
By: /s/ James J. Crowley
-----------------------------------
Name: James J. Crowley
Title: EVP and COO
45
EXHIBIT A
Legal Description of Land
46
EXHIBIT B
Site Plan of Building
47
EXHIBIT C
Commencement Date Letter
_________________, 1999
Mr. Robert Hale, Jr.
Mr. James J. Crowley
Network Plus, Inc.
41 Pacella Park Drive
Randolph, MA 02368
RE: Network Plus, Inc.
41 Pacella Park Drive
Randolph, MA
Dear Mr. Hale and Mr. Crowley:
Reference is made to that certain Lease, dated as of , 2000, between
Trunks Up LLC, as Landlord and Network Plus, Ice. as Tenant, with respect to the
above-referenced building. In accordance with Section 4.1 of the Lease, this is
to confirm that the Commencement Date of the Term of the Lease occurred on March
1, 2005, and that the Term of the Lease shall expire on February 28, 2013.
If the foregoing is in accordance with your understanding, kindly
execute the enclosed duplicate of this letter, and return the same to us.
Very truly yours,
Trunks Up LLC
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
48
Accepted and Agreed:
Network Plus, Inc.
By:
Name: Robert Hale, Jr.
----------------------------
Title:
----------------------------
Date:
----------------------------
By:
Name: James J. Crowley
----------------------------
Title:
----------------------------
Date:
----------------------------
49
EXHIBIT D
Operating Expenses
Operating Expenses shall include the following:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred
for wages, salaries and other compensation for services, payroll,
social security, unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization, retirement
plans and group insurance, uniforms and working clothes and the
cleaning thereof, and expenses imposed on Landlord or Landlord's agents
pursuant to any collective bargaining agreement for the services of
employees of Landlord or Landlord's agents in connection with the
operation, repair, maintenance, cleaning, management and protection of
the Property, including, without limitation, janitors, carpenters,
engineers, mechanics, electricians and plumbers and personnel engaged
in supervision of any of the persons mentioned above, but specifically
excluding, officers and executives and other employees of Landlord not
directly connected with the operation of the Property, except for a
reasonable management fee which may be included in Operating Expenses
as set forth in Item 4 below; provided that, if any such employee is
also employed on other property of Landlord, such compensation shall be
suitably prorated among the Property and such other properties.
2. The cost of services, utilities, materials and supplies furnished or
used in the operation, repair, maintenance, cleaning, management and
protection of the Property.
3. The cost of replacements for tools and other similar equipment used in
the repair, maintenance, cleaning and protection of the Property,
provided that, in the case of any such equipment used jointly on other
property of Landlord, such costs shall be suitably prorated among the
Property and such other properties.
4. Where the Property is managed by Landlord or an affiliate of Landlord,
a sum equal to the amounts customarily charged by management firms in
the Randolph area for similar single tenant properties where tenant
maintains the property, but in no event more than five percent (5%) of
gross annual income, whether or not actually paid, or where managed by
other than Landlord or an affiliate thereof, the reasonable amounts
accrued for management, together with, in either case, amounts accrued
for legal and other professional fees relating to the Property, but
excluding such fees and commissions paid in connection with services
rendered for securing or renewing leases and for matters not related to
the normal administration and operation of the Property.
5. Premiums for insurance against damage or loss to the Property from such
hazards as Landlord shall reasonably determine, including, but not by
way of limitation, insurance covering loss of rent attributable to any
such hazards, and public
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liability insurance.
6. If, during the Term of this Lease, Landlord shall make a capital
expenditure, the total cost of which is not properly includable in
Operating Expenses for the Operating Year in which it was made, there
shall nevertheless be included in such Operating Expenses for the
Operating Year in which it was made and in Operating Expenses for each
succeeding Operating Year the annual charge-off of such capital
expenditure. Annual charge-off shall be determined by dividing the
original capital expenditure PLUS an interest factor, reasonably
determined by Landlord, as being the interest rate then being
charged for long-term mortgages by institutional lenders on like
properties within the locality in which the Property is located, by the
number of years of useful life of the capital expenditure; and the
useful life shall be determined reasonably by Landlord in accordance
with generally accepted accounting principles and practices in effect
at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, gas and other
utilities supplied to the Property and not paid for directly by
tenants.
8. Betterment assessments, provided the same are apportioned equally over
the longest period permitted by law, and to the extent, if any, not
included in Taxes.
9. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
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EXHIBIT E
Rules and Regulations of Building
The following regulations are generally applicable:
1. Intentionally Omitted.
2. Intentionally Omitted.
3. Intentionally Omitted.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or like substances
shall be deposited therein. All damages resulting from any misuse of
the fixtures shall be borne by the Tenant.
5. Tenant shall not use the Premises or any part thereof or permit the
Premises or any part thereof to be used other than for the Permitted
Uses. Tenant shall not use the Premises or any part thereof or permit
the Premises or any part thereof to be used as a public employment
bureau or for the sale of property of any kind at auction, except in
connection with Tenant's business.
6. Tenant must, upon the termination of its tenancy, return to the
Landlord all locks, cylinders and keys to offices and toilet rooms of
the Premises.
7. Intentionally Omitted.
8. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of any neighboring
building or premises or those having business with them whether by use
of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. Tenant shall not throw
anything out of the doors, windows or skylights or down the
passageways.
9. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
10. Intentionally Omitted.
11. Intentionally Omitted.
12. Intentionally Omitted.
13. The rules and regulations set forth in ATTACHMENT I to this Exhibit,
which is by this reference made a part hereof, are applicable to any
Alterations being undertaken by or for Tenant in the Premises pursuant
to SECTION 5.2 of the Lease:
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Attachment I to Exhibit E
RULES AND REGULATIONS FOR TENANT ALTERATIONS
A. GENERAL
1. All Alterations made by Tenant in, to or about the Premises shall be
made in accordance with the requirements of this Exhibit and by contractors or
mechanics approved by Landlord in its reasonable discretion.
2. Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, complete plans for the Alterations, with full
details and specifications for all of the Alterations, in compliance with
Section D below.
3. Alterations must comply with the Building Code applicable to the
Property and the requirements, rules and regulations and any other governmental
agencies having jurisdiction.
4. No work shall be permitted to commence before Tenant obtains and
furnishes to Landlord copies of all necessary licenses and permits from all
governmental authorities having jurisdiction.
5. Intentionally Omitted.
6. Intentionally omitted.
7. All work, if performed by a contractor or subcontractor, shall be
subject to reasonable inspection by Landlord's representative. Such inspection
shall be at Tenant's sole expense and Tenant shall pay Landlord's reasonable
charges for such supervision and inspection.
B. PRIOR TO COMMENCEMENT OF WORK
1. Tenant shall submit to the Building manager a request to perform the
work. The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors for
Landlord's approval not to be unreasonably withheld,
conditioned or delayed.
(ii) Four complete sets of plans and specifications prepared
by an architect of engineer reasonably satisfactory to
Landlord and, to the extent legally required, properly
stamped by a registered architect or professional
engineer.
(iii) A properly executed building permit application form to
the extent required by applicable law .
(iv) Four executed copies of the Insurance Requirements
Agreement in the form attached to this Exhibit as
ATTACHMENT II and made a part hereof from Tenant's
contractor and, if requested by Landlord,
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from the contractor's subcontractors.
(v) Contractor's and subcontractor's insurance certificates,
including an indemnity in accordance with the Insurance
Requirements Agreement.
2. Landlord will within seven (7) Business Days return the following
to Tenant:
(i) Two sets of plans approved or a disapproved with specific
comments as to the reasons therefor (such approval or
comments shall not constitute a waiver of approval of
governmental authorities).
(ii) Two fully executed copies of the Insurance Requirements
Agreement.
3. Landlord's approval of the plans, drawings, specifications or other
submissions in respect of any Alterations shall create no liability or
responsibility on the part of Landlord for their completeness, design
sufficiency or compliance with requirements of any applicable laws, rules or
regulations of any governmental or quasi-governmental agency, board or
authority.
4. To the extent required by applicable law, Tenant shall obtain a
building permit from the Building Department and necessary permits from other
governmental agencies. Tenant shall be responsible for keeping current all
permits. Tenant shall submit copies of all approved plans and permits to
Landlord and shall post the original permit on the Premises prior to the
commencement of any work.
C. REQUIREMENTS AND PROCEDURES
1. All structural and floor loading requirements shall be subject to
the prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers in their reasonable professional judgment. When necessary,
Landlord will require engineering and shop drawings, which drawings must be
approved by Landlord in its reasonable judgment before work is started. Drawings
are to be prepared by Tenant and all approvals shall be obtained by Tenant.
3. No material or equipment shall be carried under or on top of
elevators. If an operating engineer is required by any union regulations, such
engineer shall be paid for by Tenant.
4. If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative. No work will be performed in Building mechanical equipment rooms
without Landlord's approval, not to be unreasonably withheld, conditioned or
delayed, and under Landlord's supervision.
5. Tenant's contractor shall:
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(i) have a superintendent or foreman on the Premises at
all times;
(ii) police the job at all times, continually keeping the
Premises orderly;
(iii) maintain cleanliness and protection of all areas,
including elevators and lobbies.
(iv) protect the front and top of all peripheral HVAC units
and thoroughly clean them at the completion of work; and
(v) block off supply and return grills, diffusers and ducts
to keep dust from entering into the Building air
conditioning system.
6. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for corrective work.
7. All equipment and installations must be equal to the standards
generally in effect with respect to the remainder of the Building. Any deviation
from such standards will be permitted only if indicated or specified on the
plans and specifications and approved by Landlord.
8. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC work.
9. Upon completion of the Alterations, Tenant shall submit to Landlord
a permanent certificate of occupancy and final approval by the other
governmental agencies having jurisdiction to the extent required by applicable
law.
10. Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
11. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
D. STANDARDS FOR PLANS AND SPECIFICATIONS.
Whenever Tenant shall be required by the terms of the Lease (including
this Exhibit) to submit plans to Landlord in connection with any Alterations,
such plans shall include at least the following, to the extent applicable:
1. Floor plan indicating location of partitions and doors (details
required of partition and door types).
2. Location of standard electrical convenience outlets and telephone
outlets.
3. Location and details of special electrical outlets, E.G.,
photocopiers, etc.
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4. Reflected ceiling plan showing layout of standard ceiling and
lighting fixtures. Partitions to be shown lightly with switches located
indicating fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting
fixtures, speakers, etc.
6. Location and specifications of floor covering, paint or paneling
with paint colors referenced to standard color system.
7. Finish schedule plan indicating wall covering, paint, or paneling
with paint colors referenced to standard color system.
8. Details and specifications of special millwork, glass partitions,
rolling doors and grilles, blackboards, shelves, etc.
9. Hardware schedule indicating door number keyed to plan, size,
hardware required including butts, latchets or locksets, closures, stops, and
any special items such as thresholds, soundproofing, etc. Keying schedule is
required.
10. Verified dimensions of all built-in equipment (file cabinets,
lockers, plan files, etc.)
11. Location and weights of storage files.
12. Location of any special soundproofing requirements.
13. Location and details of special floor areas exceeding 50 pounds of
live load per square foot.
14. All structural, mechanical, plumbing and electrical drawings, to be
prepared by the base building consulting engineers, necessary to complete the
Premises in accordance with Tenant's Plans.
15. All drawings to be uniform size (30" x 46") and shall incorporate
the standard project electrical and plumbing symbols and be at a scale of 1/8" =
1' or larger.
16. All drawings shall be prepared by an architect (or, where
applicable, an engineer) reasonably satisfactory to Landlord and, to the extent
legally required, stamped by an architect (or, where applicable, an engineer)
licensed in the jurisdiction in which the Property is located and without
limiting the foregoing, shall be sufficient in all respects for submission to
applicable authorization in connection with a building permit application.
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Attachment II to Exhibit E
Contractor's Insurance Requirements
-----------------------------------
Building:
Landlord:
Tenant:
Premises:
The undersigned contractor or subcontractor ("CONTRACTOR") has been hired by the
tenant named above (hereinafter called "TENANT") of the Building named above (or
by Tenant's contractor) to perform certain work ("WORK") for Tenant in the
Premises identified above. Contractor and Tenant have requested the landlord
named above ("LANDLORD") to grant Contractor access to the Building and its
facilities in connection with the performance of the Work, and Landlord agrees
to grant such access to Contractor upon and subject to the following terms and
conditions:
1. Contractor agrees to indemnify and save harmless Landlord and its
respective officers, employees and agents and their affiliates, subsidiaries and
partners, and each of them, from and with respect to any claims, demands, suits,
liabilities, losses and expenses, including reasonable attorneys' fees, arising
out of or in connection with the Work (and/or imposed by law upon any or all of
them) because of personal injuries, bodily injury (including death at any time
resulting therefrom) and loss of or damage to property, including consequential
damages, whether such injuries to person or property are claimed to be due to
negligence of the Contractor, Tenant, Landlord or any other party entitled to be
indemnified as aforesaid except to the extent specifically prohibited by law
(and any such prohibition shall not void this Agreement but shall be applied
only to the minimum extent required by law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation and Employers, Liability
Insurance covering each and every workman employed
in, about or upon the Work, as provided for in each
and every statute applicable to Workmen's
Compensation and Employers' Liability Insurance.
(b) Comprehensive General Liability Insurance including
coverages for Protective and Contractual Liability
(to specifically include coverage for the
indemnification clause of this Agreement) for not
less than the following limits:
Personal Injury:
$3,000,000 per person, $10,000,000 per occurrence
for jobs over $100,000
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$1,000,000 per person, $5,000,000 per occurrence for
jobs under $100,000
Property Damage:
$3,000,000 per occurrence $3,000,000 aggregate for
jobs over $100,000
$1,000,000 per occurrence $1,000,000 aggregate for
jobs under $100,000
(c) Comprehensive Automobile Liability Insurance
(covering all owned, non-owned and/or hired motor
vehicles to be used in connection with the Work) for
not less than the following limits:
Bodily Injury:
$1,000,000 per person
$1,000,000 per occurrence
Property Damage:
$1,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that it has
complied with the above requirements regarding insurance and providing that the
insurer will give Landlord ten (10) days' prior written notice of the
cancellation of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the
Work to provide the following insurance:
(a) Comprehensive General Liability Insurance including
Protective and Contractual Liability coverages with
limits of liability at least equal to the limits
stated in paragraph 2(b).
(b) Comprehensive Automobile Liability Insurance
(covering all owned, non-owned and/or hired motor
vehicles to be used in connection with the Work) with
limits of liability at least equal to the limits
stated in paragraph 2(c).
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of , 19 .
Contractor:
By:
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By:
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By:
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