Exhibit 10.29
LEASE
THIS LEASE, dated as of October 12, 2000 is between PROGRESS ROAD LLC, a
Massachusetts corporation with a principal address of 17 Progress Road
Billerica, Massachusetts 01821 as lessor ("Landlord") and PRI AUTOMATION, a
Massachusetts corporation with a principal address of 805 Middlesex Turnpike
Burlington, Massachusetts 01821 as lessee ("Tenant").
ARTICLE ONE
PREMISES
1.1 DEMISE OF PREMISES: Landlord hereby leases to Tenant, and Tenant hires
from Landlord, on the terms and conditions contained in this Lease, certain real
property with the buildings and structures thereon located in the town of
Billerica, Middlesex County, Massachusetts (as more particularly described in
Exhibit "A" attached hereto), commonly known as 17 Progress Road Billerica,
Massachusetts, and consisting of: (a) the existing building comprised of
approximately 57,000 +/- rentable square feet of space (the "Existing
Building"); and, subject to the provisions of Section 3.2 hereof; (b) an
expansion/addition on the property of one more building which, once constructed,
will consist of approximately 61,543 +/- rentable square feet of space (the
"Proposed Building"); the total approximate rentable area of (a) and (b) to
equal approximately 118,543 rentable square feet of space; (c) parking rights in
the buildings and on the site, which as to the Existing Building and related
site areas constitute approximately 126 spaces, and as to the Proposed Building
and related site areas shall constitute approximately an additional 103 spaces;
the foregoing totaling 229 spaces (the "Parking"); and (d) the land on which the
Existing Building and the Proposed Building are sited along with all
improvements thereon, hereditaments and appurtenances thereto (the "Property");
all of which (a), (b) (c) and (d) above are collectively referred to herein as
the "Premises".
1.2 LANDLORD'S AND TENANT'S RESPECTIVE BUILD-OUTS OF THE PREMISES: The
Landlord and Tenant shall each bear certain initial build-out responsibilities
relative to the Premises, as follows:
A. Landlord's Build-Out: As to the Existing Building and the existing
Parking areas and other existing elements on the Property as of the date of
execution of this Lease, Landlord bears no responsibility whatsoever to perform
any work prior to delivery of the Premises to the Tenant. As to the Proposed
Building, proposed Parking areas, and other proposed elements on the Property,
the Landlord's responsibility for construction is as set forth on the plans and
specifications set forth on Exhibit B hereto (the "Landlord's Build-Out").
Landlord shall perform all such work on Landlord's Build-Out at its sole cost
and expense, in accordance with all applicable local, state and federal laws,
bylaws, rules and regulations, and in a good and workmanlike manner using
materials of good quality.
Landlord and Tenant each hereby acknowledge that Tenant may make reasonable
changes to the Landlord's Build-Out as set forth in Exhibit B, which Landlord
shall incorporate in its Landlord's Build-Out, provided: (i) the changes do not
materially delay or impede Landlord's ability to procure its permits or make its
delivery deadlines hereunder; (ii) the changes do not materially increase the
scope or nature of Landlord's work as set forth in Exhibit B hereto; (iii) the
changes, to the extent they result in greater cost or expense to Landlord, are
paid for by Tenant in a manner to be mutually agreed by Landlord or Tenant at
the time the changes are proposed and agreed to by them; (iv) the changes do not
materially detract from the quality, appearance, or overall plan for the
Proposed Building, or materially increase the size, area, equipment or
appearance thereof, as set forth in Exhibit B hereto; and, (v) the changes, to
the extent they result in a cost savings to Landlord, will be credited to Tenant
in a manner to be mutually agreed by Landlord or Tenant at the time the changes
are proposed and agreed to by them. To the extent any proposed changes are not
agreed to by Landlord at the time proposed by Tenant, they shall become part of
Tenant's Build-Out (if Tenant elects to pursue them) and shall be paid for
exclusively by Tenant with no credit or offset of any kind.
Landlord shall undertake reasonable measures to perform its Landlord's
Build-Out in such a manner as minimizes interference with Tenant's use of the
Existing Building, existing Parking areas, and other existing elements on the
Property; Tenant acknowledging however that it is accepting delivery of the
Existing Building, existing Parking areas, and other existing elements on the
Property in complete understanding of the significant construction activities
which will be taking place prior to the delivery of the Proposed Building
(including attendant noise, debris, dust, interruptions and inconveniences which
will be occasioned thereby); Tenant hereby waiving any and all defenses or
claims (including without limitation claims for interference with peaceful
occupation, constructive eviction, etc.) which Tenant may have arising from any
such construction activities.
B. Tenant's Build-Out: Upon Landlord's delivery of the Existing Building
and subsequent delivery of the Proposed Building, respectively Tenant shall have
the right to enter and commence its own construction thereon, in accord with its
own plans and specifications (the "Tenant's Build-Out") submitted to and
approved in writing in advance by Landlord, which approval shall not be
unreasonably withheld or delayed. Landlord shall not be responsible for any
delays in construction on Tenant's Build-Out. Tenant shall perform all such work
on Tenant's Build-Out at its sole cost and expense, in accordance with all
applicable local, state and federal laws, bylaws, rules and regulations, and in
a good and workmanlike manner using materials of good quality. Tenant's
Build-Out shall not interfere with Landlord's work on the Proposed Building, and
Landlord's construction and site requirements shall take precedence.
Notwithstanding the progress or completion of Tenant's Build-Out, Tenant shall
be required to make its payments of Fixed Rent and Additional Rent at the times
set forth in Article Four of this Lease.
C. Tenant's Build-Out Allowance: Landlord hereby grants to Tenant an
allowance toward its actual work in place pursuant to Tenant's Build-Out,
determined and applied as follows (the "Tenant's Build-Out Allowance"):
(i) Existing Building: Tenant's Build-Out Allowance as to Tenant's
Build-Out of its space in the Existing Building shall be calculated on the basis
of $ 4.20 per rentable square foot, not to exceed Two Hundred Fifty Thousand
($250,000.00) Dollars.
(ii) Proposed Building: Tenant's Build-Out Allowance as to Tenant's
Build-Out of its space in the Proposed Building shall be calculated on the basis
of $ 4.20 per rentable square foot, not to exceed Two Hundred Fifty Thousand
($250,000.00) Dollars.
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(iii) Advances For Tenant's Build-Out Allowance: Tenant's Build-Out
Allowance shall be advanced to Tenant based on work in place per Requisitions
(as defined below), beginning with Tenant's Build-Out Allowance attributable to
the Existing Building, then, after delivery of the Proposed Building, toward
Tenant's Build-Out Allowance attributable to the Proposed Building. Tenant's
Build-Out Allowance will be advanced by Landlord in monthly installments based
on a monthly statement of work in place (the "Requisition") agreed to and
delivered signed by the Tenant. Payment will be within thirty (30) days of the
receipt of each such Requisition. Tenant shall not submit more than one (1)
Requisition in any thirty (30) day period. Landlord shall have the right to
inspect the Premises to certify that the work for which the credit is claimed is
in fact, in place and in suitable condition. Landlord shall amortize the
Tenant's Build-Out Allowance over the Term of the Lease, and shall assess
interest on any unpaid balance at the annual rate of twelve (12%) percent,
compounded, and these sums shall be paid by Tenant during the Term of the Lease
(or upon any uncured event of default hereunder or earlier termination of this
Lease). Tenant's repayment of the Tenant's Build-Out Allowance (plus interest as
aforesaid) shall be in monthly installments with payments due on the first day
of each calendar month based upon a statement provided by Landlord (or sooner,
upon notice by Landlord and expiration of any cure periods in the event of
default by Tenant or earlier termination of this Lease). All such payments shall
be Additional Rent under this Lease.
1.3 ACCEPTANCE OF PREMISES: Tenant acknowledges that it is familiar with
the condition of the Existing Building and the Property and is satisfied with
the physical condition thereof. Tenant covenants and agrees to accept the
Existing Building and Property (a) in their condition and state of repair as of
the date hereof, reasonable use and wear excepted, "AS IS", subject only to the
provisions of Section 1.3 below; and (b) subject to all laws, ordinance, rules,
regulations, order and directives, governing, regulating or in any manner
applicable to all or any part of the Premises or any interest therein or any use
or occupancy thereof, (the Premises currently being in compliance with the
foregoing), and to all liens, encumbrances, easements, rights of way, covenants,
conditions, restrictions, servitude, licenses and other matters then of record
or otherwise affecting the Premises, none of which shall materially interfere
with Tenant's use of the Premises. Tenant's acceptance of possession of the
Premises shall be deemed to be Tenant's acknowledgement that it is satisfied in
all respects with the condition of the Premises at the time of accepting
possession, and Tenant's failure to deliver written objection to Landlord upon
delivery as to any conditions thereon shall be deemed a waiver of Tenant's
rights to thereafter object to any physical conditions or attributes of the
Existing Building and Property. Notwithstanding the foregoing, Landlord shall
deliver the existing building systems, including the electrical, HVAC and
mechanical systems, in good working condition on the Commencement Date.
Except as provided in the immediately preceding paragraph, Tenant further
acknowledges that no person has made any representation or warranty to Tenant as
to the condition of the Premises or their compliance with any such laws,
ordinances, rules, regulations, orders, or directives, or their suitability for
any use or purpose, other than the following:
A. HVAC Service In Existing Building: As set forth in Exhibit C hereto.
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B. Electrical Service In Existing Building: As set forth in Exhibit D
hereto.
C. General: Landlord represents and warrants that: (i) the Existing
Building is free of harmful asbestos or other hazardous materials, and that no
current indoor air quality problems currently exist; (ii) Landlord has completed
Phase 1 and Phase 2 environmental assessments on the Existing Building and
Property within the past three (3) years and has made available such reports to
Tenant; (iii) the Existing Building is in compliance with current requirements
of the Americans With Disabilities Act (ADA).
ARTICLE TWO
USE OF PREMISES
2.1 USE OF PREMISES: Tenant may use and occupy the Premises during the
Term, as and when the Existing Building and related Property areas and the
Proposed Building and related Property areas are each delivered to the Tenant,
only for light industrial and ancillary warehouse and general business use, as
permitted under the Billerica zoning ordinances and regulations, and for no
other use. Except as otherwise provided in this Lease, during the Term hereof,
Tenant shall keep the Premises and every part thereof, from the date(s) of
delivery thereof to the Tenant, in good repair and condition at its sole cost
and expense, reasonable use and wear, damage by casualty and taking by eminent
domain excepted; provided however that Tenant shall have no obligation with
respect to the Proposed Building and related Property areas until the Proposed
Building and related Property areas are delivered by Landlord to Tenant. At the
expiration of the Term (or upon the earlier termination of this Lease), Tenant
shall surrender the Premises in substantially the same condition and repair as
existed at the time Tenant took possession, reasonable wear and tear, damage by
casualty and taking by eminent domain excepted.
2.2 GENERAL PROHIBITIONS: Tenant shall not create, or permit to be created,
any public or private nuisance, hazard, waste, or illegal condition on or with
respect to the Premises. Tenant shall not conduct its business operations on the
Premises unless and until all necessary certificates of occupancy, permits,
licenses and consents from all appropriate governmental authorities have been
obtained by Tenant and are in full force and effect. Tenant shall immediately
remove any and all liens which may be placed on the Premises, voluntarily or
involuntarily, by or on account of the Tenant.
2.3 TENANT'S ENVIRONMENTAL COVENANTS: Tenant warrants and agrees that it
will comply with all applicable environmental laws and regulations in connection
with its use and occupancy of the Premises.
Tenant warrants and agrees that it will not store, treat, or dispose of any
toxic or hazardous wastes on, above or below the Premises during its leasehold;
provided, however, that Tenant may temporarily accumulate waste for off-site
disposal if such accumulation is in full compliance with applicable laws and
regulations. Notwithstanding the foregoing, Tenant may use ordinary household
and office products generally used by consumers in ordinary quantities.
Tenant's warranties and agreements contained in this Section 2.3 shall
survive the expiration or earlier termination of the Lease.
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ARTICLE THREE
TERM OF LEASE
3.1 TERM OF LEASE: "Term" shall mean the initial term of this Lease and all
extensions and renewals thereof. The "Initial Term" of this Lease shall mean the
period beginning on the Commencement Date and continuing for a period of ten
(10) years from and after either (a) the Commencement Date or (b) if the
Commencement Date is other than the first day of the calendar month, then
beginning on the first day of the first calendar month following the
Commencement Date (i.e. the "Anniversary Date"), (the incremental portion
between the Commencement Date and the Anniversary Date to expand the first Lease
Year hereunder).
3.2 COMMENCEMENT DATE, DELIVERY, AND POSSESSION:
A. Commencement Date: The "Commencement Date" shall be October 15, 2000.
B. Delivery Dates: There shall be two separate delivery dates under this
Lease, taking into account the Landlord's delivery of the Existing Building and
related Property areas at the outset, and subsequent delivery of the Proposed
Building and related Property areas:
(i) Landlord shall deliver the Existing Building and Property to the
Tenant for its possession, use, and occupancy on the Commencement Date as set
forth in subsection A above (the "Delivery Date") free and clear of all other
tenants or occupants (subject to Landlord's Residual Occupancy as defined under
subsection (iii) below). Tenant shall have reasonable access to the Existing
Building prior to the Commencement Date to install Tenant's trade fixtures and
systems, provided that Tenant shall not conduct its business therefrom; Tenant
to access said space during this early access period subject to all the terms
and conditions hereof (but for the obligation to pay Rent).
(ii) Landlord shall deliver the Proposed Building to the Tenant for
its possession, use, and occupancy on or before June 1, 2001 (the "Deferred
Delivery Date"); provided that the permitting contemplated therefor meets the
schedule prepared by Dacon Construction, which schedule is attached hereto as
Exhibit E; subject to any intervening events of Force Majeure as defined in
Section 14.15 hereof or any construction delays occasioned by unknown site
conditions, in which case the Deferred Delivery Date for the Proposed Building
shall be extended day for day to account of each day of such delay. Commencing
as of sixty (60) days prior to the expected Deferred Delivery Date, Landlord
shall in good faith entertain Tenant's request for early access to the Proposed
Building for the purpose of beginning preliminary work on its Tenant's Build-Out
and Landlord shall use reasonable efforts to accommodate such early access for
Tenant, but Landlord shall be under no obligation to grant any such access as my
interfere with Landlord's construction and delivery obligations hereunder, delay
the Deferred Delivery Date, or which would be unlawful or unsafe given the then
state of completion of said Proposed Building.
(iii) Notwithstanding Landlord's delivery of the Existing Building and
related Property areas to Tenant on the Delivery Date, Landlord shall be
entitled to continue its occupancy and use of the existing space therein which
houses and is utilized for Landlord's "computer room", consisting of
approximately 2,000 rentable square feet, for a period of ninety
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(90) days from the Delivery Date (the "Landlord's Residual Occupancy"). Landlord
shall use reasonable efforts to vacate said "computer room" and remove its
equipment, furnishings and fixtures therefrom at the earliest feasible time but
in no event later than the end of said ninety (90) day period. Landlord's
activities from the Premises during the Landlord's Residual Occupancy shall not
materially interfere with Tenant's business activities. Landlord acknowledges
Tenant intends to commence its construction work within said ninety (90) day
period and Landlord shall be responsible for the security of its equipment
within the "computer room" within this timeframe. Additionally, Landlord
acknowledges Tenant's right to temporarily from time to time suspend electrical
service to the "computer room" during and notwithstanding Landlord's Residual
Occupancy in order to accommodate Tenant's reasonable construction needs, and
Tenant shall not be liable therefor provided reasonable prior notice is given to
Landlord of the intended suspension.
C. Possession: Landlord shall deliver and Tenant shall accept possession of
the Existing Building and related Property areas as of the Delivery Date, in the
condition provided for in Section 1.3 hereof. Landlord shall deliver and Tenant
shall accept possession of the Proposed Building as of the Deferred Delivery
Date in its then existing condition; provided that Landlord's construction
obligations have been substantially completed pursuant to the plans and
specifications agreed to in advance by Landlord and Tenant (as contemplated in
Section 1.2 hereof), subject to any then remaining "punchlist" items to be
completed subsequent to the Deferred Delivery Date; and further provided that
any unfinished work on the Proposed Building (such as work on building systems
(i.e. electrical, mechanical, plumbing, HVAC, life safety), or
elevators/escalators; or work on finishes or cosmetic work), or work on the
Property (such as landscaping, paving, etc.) does not materially interfere with
Tenant's ability to substantially occupy and conduct its business on and from
the Proposed Building. Landlord agrees to complete all such punchlist and
unfinished work as soon as is reasonably practicable under the circumstances. To
the extent a Certificate of Occupancy for the Proposed Building can be obtained
from the Town of Billerica (given the scope of Landlord's Build-Out vis a vis
Tenant's Build-Out) then Landlord shall procure the same on or before the
Deferred Delivery Date. However, to the extent any element of Tenant's proposed
work on Tenant's Build-Out (whether included within the plans and specifications
or resulting from on-site construction conditions and/or coordination issues)
precludes issuance of the Certificate of Occupancy, then Landlord shall not be
required to deliver the Certificate of Occupancy on or before the Deferred
Delivery Date.
3.3 TENANT'S TERMINATION RIGHT:
This Lease contemplates that Landlord shall make reasonable good faith
efforts to procure the requisite government permits and approvals for its
construction of the Proposed Building on the Property, in a timely fashion, such
that Tenant can begin its occupancy of the Proposed Building on or about June 1,
2001. Preliminarily, commencing upon execution of this Lease Landlord shall
pursue its engineering studies of the site to determine the feasibility of the
Proposed Building, and shall provide such information to Tenant. Additionally,
within sixty (60) days from the date this Agreement is executed and delivered,
Landlord shall provide Tenant with a commitment letter from a federal insured
bank or major insurance company as to its sound interest in financing the
Proposed Building, subject to the usual and customary commercial terms and
conditions. If Landlord can not obtain such a letter Landlord shall so notify
Tenant and
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Tenant shall have the option to provide Landlord with options for such financing
on commercially reasonable non-recourse terms; which Landlord shall entertain in
good faith but which Landlord shall not be bound or required in any manner to
accept. If Landlord does not deliver a third party commitment letter (or
alternatively does not demonstrate an ability to fund Landlord's Build-Out with
its own resources) or does not accept Tenant's financing proposals as
contemplated above, then Tenant may terminate this Lease upon written notice to
Landlord as contemplated below. Landlord shall file for any and all requisite
permits and approvals needed for construction, use and occupancy of the Proposed
Building. If despite Landlord's efforts, all requisite government permits and
approvals for its construction of the Proposed Building on the Property are not
procured by January 1, 2001 (and Landlord does not actually deliver the Proposed
Building by June 1, 2001 if Landlord elects to proceed with and substantially
complete its construction by that date if such permits and approvals have been
delayed beyond January 1, 2001) then Tenant shall have the right to terminate
this Lease on the following terms and conditions: (a) Tenant shall deliver a
written notice to Landlord irrevocably terminating this Lease (the "Tenant's
Termination Notice") at least nine (9) full months prior to the Tenant's stated
date of termination, time being of the essence in the delivery of said Notice;
(b) no termination shall occur and no Tenant's Termination Notice shall be
delivered until the fifth (5th) Lease Year hereunder, and no termination shall
be effective until the beginning of the sixth Lease Year (i.e. the 61st month
under this Lease); (c) notwithstanding Tenant's rights to terminate this Lease,
Tenant shall continue to abide by all Lease terms and conditions as to the
Existing Building and related Property areas, including but not limited to the
payment of all Rent and other expenses due under this Lease, up to the effective
date of termination; (d) Tenant shall pay Landlord for the entire unamortized
portion of the Lease commission as of the termination date, prior to vacating
the Premises occupied by it. Tenant hereby acknowledges that its termination
rights as set forth in this Section 3.3 constitute its sole and exclusive remedy
accruing on account of Landlord's inability to procure permits and approvals and
to deliver the Proposed Building as contemplated above.
3.4 OPTION TO EXTEND TERM:
A. Two Consecutive Options: Provided that Tenant has not defaulted under
this Lease, Tenant shall have the option to extend the term of this Lease for
two (2) additional successive periods of five (5) years each ("Renewal
Term(s)"), on the conditions contained in this Section.
B. Manner Of Exercise: Tenant shall exercise its option hereunder, in each
instance, by giving written notice of its exercise said option (the "Tenant's
Notice Of Intent") as to a given Renewal Term not less than twelve (12) months
prior to the end of the initial Term (or twelve (12) months prior to the
expiration of the first Renewal Term, as the case may be); irrevocably
exercising its option to extend for that period. Tenant must exercise its option
for the first Renewal Term before exercising its option as to the second Renewal
Term. Upon receipt of Tenant's Notice Of Intent, Landlord shall deliver to
Tenant a notice as to Landlord's requested Fixed Rent for the Premises for the
Renewal Term in question reflecting fair market rent (including any annual
escalations, as usual to the market at that time) projected as of the start of
the Renewal Term. If Tenant does not agree with said Fixed Rent, then the Fair
Market Rent for the purpose of this Section to be used in determining Fixed Rent
for the Renewal Term shall be determined by appraisal and arbitration as follows
(the "Rent Appraisal Process"). If Tenant
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does not timely deliver Tenant's Notice of Intent then Tenant's rights hereunder
shall lapse and the Term shall cease at the end of the initial Term or the first
Renewal Term then in process, as applicable. Time is of the essence in the
delivery of Tenant's Notice Of Intent.
Within thirty (30) days after Tenant's Notice Of Intent, Landlord and
Tenant shall each appoint a person to make a Fair Market Rent determination
(including appropriate escalators); which person shall be an individual who is
not then employed by either party and who is a qualified real estate broker or
appraiser, previously or currently affiliated with a recognized real estate
brokerage or appraisal firm, with sufficient experience or credentials (i.e. MAI
or comparable) and knowledge of the local commercial real estate rental markets.
If either party shall fail to notify the other of its selection by the
expiration of said fourteen (14) day period, and such failure shall continue for
two (2) days after written notice to the other, then that party shall be deemed
to have waived its right to select a representative. Each party shall be
responsible for the costs of its selected representative.
The two selected representatives (or the lone selected representative in
the case of failure to select) shall each prepare and simultaneously submit in
writing their separate assessments of Fair Market Rent (including escalations)
for the Premises projected for the Renewal Term, within fourteen (14) days.
Within the next fourteen (14) days, the representatives shall meet and attempt
in good faith to reconcile their positions and agree on a Fair Market Rent. If
they so agree, they shall submit their recommendation to the parties in writing
and that determination shall be the Fair Market Rent (including escalators) for
said Renewal Term. If they do not agree, within said fourteen (14) days they
shall submit the name of a mutually agreed and qualified person to serve as the
arbitrator. Absent demonstrable conflict of interest with either party or its
selected appraiser, bias, or prejudice, that individual shall review the two
representatives' reports and make his own determination based on said reports as
to Fair Market Rent (including escalators). Under no circumstances shall any
Fair Market Rent determination be less than the fully escalated Fixed Rent for
the last Lease Year of the initial Term as prescribed above (or in the case of
the second Renewal Term, the last Lease Year of the first Renewal Term). The
third arbitrator shall make a determination with fourteen (14) days of the
submittal of the reports to him or her. The parties shall evenly share the
reasonable costs of the third arbitrator.
C. Additional Rent: Tenant shall also be required to pay all Additional
Rent due under this Lease during the Renewal Term(s).
D. Same Terms And Conditions Throughout: Except as modified in this
Section, all terms and conditions of this Lease shall continue and shall remain
in full force and effect throughout the Renewal Term(s).
ARTICLE FOUR
FIXED RENT AND ADDITIONAL RENT
4.1 OBLIGATION TO PAY RENT:
A. Rent: The Rent payable under this Lease shall consist of Fixed Rent and
Additional Rent.
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B. Fixed Rent: The Tenant shall pay Fixed Rent to Landlord in the amounts
specified in this Lease, in advance, on the first day of each calendar month
during the Term hereof, without previous demand and without offset or deduction
of any kind whatsoever. Notwithstanding the foregoing, Tenant shall pay the
first month's installment of Fixed Rent upon the execution of the Lease. The
Tenant shall pay Additional Rent in the manner described in Section 4.3.
C. Late Charge: Should any payment of Rent be received later than the
fifteenth day of the month for which it is due, then concurrently with such
payment Tenant shall pay to Landlord as Additional Rent a late charge equal to
three (3%) percent above the prime rate charged by Fleet Bank (or its successor)
applied to the overdue Rent, compounded monthly from the due date.
D. Rent Obligation: The parties intend and agree that the obligations of
Tenant to pay Rent shall be separate and independent covenants and agreements
and shall continue unabated throughout the Term hereof unless modified or
terminated pursuant to an express provision of this Lease.
4.2 FIXED RENT:
4.2.1 DEFINITION OF LEASE YEAR: "Lease Year" shall mean the
consecutive twelve (12) month period following the Commencement Date or, if the
Commencement Date is other than the first day of a calendar month, then the
first Lease Year shall be extended to include the initial incremental number of
days up to the Commencement Date (for which Tenant shall pay the pro rata
portion of Fixed Rent for said incremental month with its first installment of
Fixed Rent).
4.2.2 FIXED RENT FOR THE INITIAL TERM: The Fixed Rent for the each
Lease Year of the initial Term of this Lease shall be as follows:
A. Fixed Rent as to Existing Building and Related Property Areas:
1st Lease Year: $396,150.00/annual; $33,012.50/mo.
2nd Lease Year: $396,150.00/annual; $33,012.50/mo.
3rd Lease Year: $404,700.00/annual: $33,725.00/mo.
4th Lease Year: $404,700.00/annual: $33,725.00/mo.
5th Lease Year: $413,250.00/annual: $34,437.50/mo.
6th Lease Year: $413,250.00/annual: $34,437.50/mo.
7th Lease Year: $421,800.00/annual: $35,150.00/mo.
8th Lease Year: $421,800:00/annual: $35,150.00/mo.
9th Lease Year: $421,800.00/annual: $35,150.00/mo.
10th Lease Year: $421,800.00/annual: $35,150.00/mo.
B. Fixed Rent as to Proposed Building and Related Property Areas:
Subject to the completion and delivery of the Proposed Building as
contemplated in Section 3.2 hereof, as of June 1, 2001 Tenant shall pay to
Landlord Fixed Rent attributable to the Proposed Building and related Property
areas as follows:
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1st Lease Year: $7.85 per rentable square foot
2nd Lease Year: $7.85 per rentable square foot
3rd Lease Year: $8.00 per rentable square foot
4th Lease Year: $8.00 per rentable square foot
5th Lease Year: $8.15 per rentable square foot
6th Lease Year: $8.15 per rentable square foot
7th Lease Year: $8.30 per rentable square foot
8th Lease Year: $8.30 per rentable square foot
9th Lease Year: $8.30 per rentable square foot
10th Lease Year: $8.30 per rentable square foot
4.2.3 FIXED RENT FOR EACH RENEWAL TERM:
The annual Fixed Rent for each Renewal Term shall be as determined
under Section 3.4B hereof.
4.3 ADDITIONAL RENT: Landlord and Tenant agree that this Lease is a "triple
net" Lease. Consequently, Tenant shall also pay as additional rent as to the
entire Premises (as of the Delivery Date relative to the delivery of the
Existing Building and related Property areas, and as of June 1, 2001 (or the
date the Proposed Building is actually delivered to Tenant as provided in
Section 3.2(b)(ii) hereof) relative to the delivery of the Proposed Building)
all other amounts, liabilities and obligations required under this Lease
relating to the Premises ("Additional Rent"), including without limitation those
items defined as Expenses in Article Five below, together with all interest that
may accrue thereon if Tenant fails to pay such amounts when due, and all
damages, costs, and expenses which Landlord may incur by reason of any default
of Tenant. Items of Additional Rent which are payable to persons other than
Landlord shall be paid when or before such payment becomes due, before any
interest or penalty shall attach or accrue. Items of Additional Rent which are
payable to Landlord shall be paid on demand. If Tenant fails to pay any of the
Additional Rent, Landlord shall have all legal and equitable rights and remedies
provided either in the Lease or by statute or otherwise in the case of
nonpayment of the Fixed Rent.
4.4 SECURITY DEPOSIT: Prior to Commencement Date, Tenant shall deliver to
Landlord the sum of (i) Thirty Three Thousand Twelve 50/100 ($33,012.50)
Dollars, i.e. one full month's Fixed Rent under Section 4.2.2 A above; plus,(ii)
within ten (10) days of receiving notice that Landlord has received its building
permit for the Proposed Building, Tenant shall then also deliver to Landlord
that amount which is equal to one full month's Fixed Rent under Section 4.2.2 B
above; (i) and (ii) above equaling one full month's Fixed Rent as to the entire
Premises (herein, the "Security Deposit"), as security for full performance by
Tenant of all the terms, covenants and conditions herein. Provided that Tenant
has fully carried out all of the terms, covenants and conditions herein, the
Security Deposit shall be returned within thirty (30) days after the end of the
Lease Term unless this Lease is extended. In the event of default by Tenant
under this Lease beyond any applicable notice grace and cure period, Landlord
may use, apply or retain all or any part of the Security Deposit in payment of
any expense incurred by Landlord in curing the default by Tenant, in payment of
any rent due, to repair damages to the Premises, or to maintain the Premises in
the condition required hereunder. Unless otherwise required by law, Tenant shall
not be entitled to any interest on the deposit and Landlord may place the
Security
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Deposit with its general funds. If Landlord fails to deliver the Proposed
Building as contemplated under Section 3.2C hereof, then the delivery of the
additional Security Deposit payment under subsection (ii) above is deemed waived
and shall be returned to Tenant.
ARTICLE FIVE
EXPENSES
5.1 EXPENSES: "Expenses" are those costs which are attributable in whole or
in part to the Premises, to be paid by Tenant. As used in this Lease, "Expenses"
shall include:
(a) Taxes, as defined in Section 5.2;
(b) Insurance Premiums, as defined in Section 5.3;
(c) Operating Costs, as defined in Section 5.4:
(d) Utility Costs, as defined in Section 5.5.
5.2 TAXES
5.2.1 REQUIREMENT TO PAY TAXES: Tenant shall be responsible for and
pay to the appropriate taxing authority all taxes and assessments (collectively
"Taxes") applicable to the Premises. "Taxes" shall include, without limitation,
all property taxes (whether real or personal), assessments (general or special),
water and sewer connection or tap-in charges, supplemental property taxes,
personal property taxes, privilege taxes, Tenant's gross income taxes, excise
taxes, gross sales taxes, and all other governmental taxes, fees, impositions
and charges of every kind and nature, which shall be or become due and payable
under or by virtue of any law, statute, ordinance, regulation, or other
requirement of any governmental authority, whether federal, state, county, city,
municipal or otherwise, (i) which shall be levied, assessed or imposed upon
Landlord or Tenant with respect to the Premises (other than Landlord's Federal
or state income or transfer taxes), or (ii) which shall be levied, assessed or
imposed upon the Premises or become liens upon or against the Premises or any
portion thereof, or any interest of the owner of the Premises, Tenant, and
sublessee or occupant of the Premises under any instrument creating a leasehold
or other interest in the Premises or any portion thereof, or (iii) which shall
be levied, assessed, or imposed or shall be or become liens upon any personal
property used in connection with or any interest of the owner of the Premises
therein arising out of or related to Tenant's use of the Premises, or (iv) which
shall be levied or imposed upon or with respect to the possession, leasing,
operation, management, maintenance, improvement, alteration, repair, use or
occupancy of the Premises or any portion thereof by the owner of the Premises or
any other person having ownership or security interest in the Premises. All
betterment assessments shall be payable by Tenant when due the taxing
authorities. In no event shall Tenant be responsible for sales taxes due for
materials used to construct the Proposed Building. Landlord shall promptly
deliver to Tenant copies of all real estate tax bills received by Landlord. To
the extent any sums under this Section 5.2.1 are not paid by Tenant by that date
upon which they become an enforceable municipal lien against the Premises, then
Landlord may pay said amounts directly to the municipal taxing authority,
whereupon Tenant shall be separately invoiced by Landlord and shall reimburse
Landlord for such expenditure, together with interest and late fees in the same
measure as if Fixed Rent had been overdue hereunder.
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5.2.2 RIGHT TO CONTEST TAXES: Landlord shall promptly notify Tenant of
any increase in assessed value of, or increases in Taxes attributable to, the
Premises, of which Landlord receives notice or otherwise becomes aware. If Taxes
are not contested by Landlord, Tenant shall have the right to contest such
Taxes, at Tenant's sole cost and expense, by the appropriate proceedings
diligently contested in good faith. Notwithstanding such proceedings, the
contested Taxes shall be promptly paid and discharged, unless such proceedings
(and where necessary the posting of an appropriate bond or other security) shall
operate to prevent or stay the collection of the Taxes and secure any accruing
penalties or interest, and also to cure Landlord's default in the payment of
Taxes required under any mortgage upon the Premises. Landlord shall join Tenant
in such proceedings, if necessary, provided that Tenant pays all costs and
expenses incurred by Landlord including without limitation attorneys fees.
5.3 INSURANCE PREMIUMS: "Insurance Premiums" shall mean the premiums
necessary to obtain and maintain the policies described in Article Seven below,
which shall at Landlord's election either be payable to the Landlord (to the
extent it is paying said premiums directly), or alternatively the companies
providing such insurance.
5.4 OPERATING COSTS: "Operating Costs" shall mean the actual expenses
incurred for the operation and maintenance of the Premises, in accordance with
accepted principles of sound management and accounting practices, including but
not limited to expenses incurred in satisfaction of Tenant's obligations under
this Lease to keep and maintain the Premises in good condition and repair.
Tenant shall make its own direct arrangements with service providers for all
Operating Costs, unless otherwise and separately agreed to in writing by
Landlord and Tenant. Upon reasonable request, Tenant shall inform Landlord as to
the identity of all such providers, the nature of the services and the status of
all such payments and accounts. Operating Costs shall include a management fee
payable directly to Landlord equal to eighteen cents ($ 0.18) per rentable
square feet of the Existing Building and Proposed Building under this Lease
annually upon invoice. Operating Costs shall be payable by Tenant directly to
the third parties which are arranged for by Tenant to provide the respective
services. The following items are excluded from the definition of "Operating
Costs": (a) expenses for repairs or other work occasioned by fire, windstorm or
other insurable casualty (said expenses to be borne as set forth in Articles
Seven and Eight hereof); and (b) interest or amortization payments of any
mortgage placed on the Premises by the Landlord. To the extent Tenant fails to
provide or pay for necessary services to the Property, or the level or quality
of such services are deficient such that the Property or any portion thereof is
jeopardized, or materially impaired, or falls below the physical standard and
appearance of the Property as of the respective delivery dates to Tenant, or is
in violation of any applicable building, sanitary, or environmental laws, codes,
regulations or orders, then Landlord, upon reasonable prior notice to Tenant,
may contract with third party providers of Landlord's own selection and Tenant
shall be obligated to reimburse Landlord upon receipt of its invoice for any and
all such costs incurred for such services.
5.5 UTILITY COSTS: "Utility Costs" shall include all charges made during
the term of this Lease for water, sewer service, gas, electricity, trash
removal, and other utilities and services supplied to the Premises, together
with any taxes thereon. Tenant shall make its own direct arrangements with
service providers for all Utility Costs, unless otherwise and separately agreed
to in writing by Landlord and Tenant. Upon reasonable request, Tenant shall
inform Landlord as to the identity of all such providers, the nature of the
utilities and related services, and the status
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of all such payments and accounts. Utility costs (to the extent not included in
Operating Costs under Section 5.4 above) shall be payable by Tenant directly to
the provider of such services in a coordinated fashion with any Landlord
payments under Operating Costs under Section 5.4 above. To the extent Tenant
fails to provide or pay for utilities to the Premises, or the level or quality
of such utilities are deficient such that the Premises or any portion thereof is
jeopardized, or materially impaired, or falls below the physical standard and
appearance of the Premises as of the respective delivery dates to Tenant, or is
in violation of any applicable building, sanitary, or environmental laws, codes,
regulations or orders, then Landlord, upon reasonable prior notice to Tenant,
may contract with third party providers of Landlord's own selection and Tenant
shall be obligated to reimburse Landlord upon receipt of its invoice for any and
all such costs incurred for such utilities.
ARTICLE SIX
MAINTENANCE, REPAIR AND ALTERATIONS
6.1 TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS: Tenant shall, at all times
during the Term and at its sole expense, maintain, repair, and replace the
Premises, including, without limitation, the roof and interior and exterior
walls of the building; all plumbing, water and sewer, heating, ventilation, air
conditioning and electrical facilities and equipment; all improvements,
alterations, and additions, structural members, foundations, partitions,
ceilings, skylights, showcases, windows, doors, storage tanks, glass and plate
glass, parking areas, paving, sidewalks, landscaping, drainage, and lighting
facilities; and all fixtures, equipment and facilities appurtenant to any of the
foregoing, and shall maintain the foregoing in good condition and repair. Such
maintenance and repair obligation shall run to all portions of the Premises,
expressly including the Parking areas and the Property, and shall include items
deemed to be capital improvements for tax purposes. Tenant shall be responsible
for its own cleaning of the Premises (interior and exterior). Tenant shall keep
the whole of the Premises in a safe, clean, sanitary, orderly and attractive
condition. Tenant shall paint as reasonably needed, the interior and exterior
surface of exterior walls. Tenant shall store all trash and garbage in adequate
containers located on the Premises. Tenant, at its sole expense, shall arrange
for the regular removal of its trash and garbage from the Premises.
Notwithstanding the foregoing Tenant obligations, Landlord's sole
responsibility for maintenance, repairs, and replacements (for which Landlord
shall pay) shall be: (i) repairs due to defective workmanship or materials to
shell and core and base systems, structure and roof installed by Landlord in the
Proposed Building as delivered to Tenant, excluding any work on or attributable
to Tenant's Improvements, and (ii) any reasonable and necessary repairs and
replacements to the Existing Building (and its Parking area), or the site, which
are occasioned solely by Landlord's construction of the Proposed Building up to
its delivery to Tenant; and (iii) replacement of the roofs of the Existing
Building and Proposed Building and their exteriors (exclusive of glass in the
windows and doors and framing thereto which shall be Tenant's responsibility)
during the first ten (10) Lease Years hereunder (Tenant to be responsible for
such replacements during any Renewal Term(s); and (iv) replacement of the septic
system servicing the Existing Building, Proposed Building and related Property
areas during the first ten (10) Lease Years hereunder (Tenant to be responsible
for such replacements during any Renewal Term(s). If the Tenant exercises its
option to extend the Lease as provided hereunder, then Landlord shall also be
responsible (and shall pay for) repairs to the floors slabs and structural
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elements which may be reasonably necessary during the extended portion of the
Term. Landlord shall not be responsible for any such repairs or replacements to
the extent caused by the negligence of willful misconduct of the Tenant, its
employees or independent contractors or deliverymen. Specifically, Landlord
shall not be responsible for any damage or wear caused to the septic system by
any materials deposited by Tenant beyond normal wear and tear; it being Tenant's
sole responsibility to ensure that all materials and waste products are properly
disposed of and that there are: no oils, fuels, chemical cleaning agents or
other caustic, biological, or hazardous materials disposed of in any manner
which causes harm to the septic system. Payments for which Landlord is
responsible under this paragraph shall not be included as Operating Costs under
Section 5.4 hereof.
Tenant shall, at its sole expenses and without limitation, promptly make
all additions to or alterations or repairs or replacements in and about the
Premises which may be required by federal, state and local statutes, be required
by federal, state and local statutes, ordinances, regulations, orders, and
directives, which may hereafter apply in any manner whatsoever to the Premises,
but only after written approval of Landlord and in accordance with the
provisions of this Article.
6.2 REFUSAL TO MAINTAIN OR REPAIR: If Tenant refuses or neglects to make
any alterations, additions or repairs, or to do any maintenance required
hereunder in a manner reasonably satisfactory to Landlord, Landlord shall have
the right, but not the obligation, after ten (10) days notice to Tenant, to make
such alterations, replacements, additions, or repairs, or perform such
maintenance on behalf of, and for the account of, Tenant. All costs incurred by
Landlord for such work, together with interest thereon at the maximum rate then
allowed under Massachusetts law, from the date of payment thereof by Landlord,
shall be deemed Additional Rent hereunder and shall be payable by Tenant to
Landlord.
6.3 ALTERATIONS AND ADDITIONS:
6.3.1 LANDLORD'S CONSENT REQUIRED: Tenant shall not make any
alterations, improvements, additions, or utility installations (collectively
"Alterations") in, on or about the Premises without Landlord's prior written
consent, which shall not be unreasonably withheld so long as Tenant is not in
default hereunder beyond any applicable notice grace and cure period hereunder.
Notwithstanding the foregoing, Tenant may during each Lease Year make
non-structural alterations which in the aggregate do not exceed $ 100,000.,
without Landlord's prior consent. As used in this Article, the term "utility
installation" includes, but is not limited to, carpeting, window coverings, air
lines, power panels, electrical distribution systems, lighting fixtures, space
heaters, air condition, plumbing, and fencing. Landlord may require Tenant to
provide Landlord, at Tenant's sole cost and expense, a lien and completion bond
in an amount equal to one and one-half times the estimated cost of such
Alterations, to insure Landlord against any liability for mechanic's and
materialman's liens and to insure completion of the work. If requested by
Tenant, Landlord may choose to accept a cash bond or letter of credit in an
amount equal to one and one-half times the estimated cost of such Alterations in
lieu of the lien and completion bond. Should Tenant make any Alterations without
the prior approval of Landlord, Landlord may require that Tenant remove any or
all of the same.
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6.3.2 OWNERSHIP OF ALTERATIONS: All fixtures and all carpeting and
other floor, wall and ceiling coverings, and all lighting fixtures installed on
the Premises by Tenant shall become the property of Landlord and shall remain
upon and be surrendered with the Premises upon the termination of the Lease,
provided however:
(a) Nothing in this Section shall be construed to give Landlord
title to or to prevent Tenant's removal of trade fixtures and/or moveable
office furniture and equipment;
(b) Landlord may require Tenant to remove any or all of any
Alterations at the expiration of the Term of this Lease, so long as
Landlord has at the time of approval of such Alteration advised Tenant that
such removal will be required;
(c) Upon removal of any equipment, fixtures, and/or Alteration
which Tenant is required or permitted to remove under this Lease, Tenant
shall immediately and at its own expense repair and restore the Premises to
the condition existing prior to installation (subject to ordinary wear and
tear) and repair any damage to the Premises due to such removal.
All property that was permitted to be removed by Tenant at the end of the
Term but which remains in the Premises for sixty (60) days after Tenant vacates
the Premises shall be deemed abandoned and may, at the election of Landlord,
either be retained as Landlord's property or may be removed from the Premises by
Landlord.
6.3.4 SUBMISSION OF PLANS: Any Alterations in or about the Premises
that Tenant shall desire to make and which require the consent of the Landlord
shall be presented to Landlord, in written form, with proposed detailed plans.
Landlord shall respond to Tenant within five (5) business days of its receipt of
said plans. Landlord's consent, if any, shall be deemed conditioned upon
Tenant's acquiring all permits, licenses, and other authorization to do so from
appropriate governmental agencies at Tenant's cost, the furnishing of a copy
thereof to Landlord prior to the commencement of work, and the compliance by
Tenant with all conditions of said authorization in a prompt and expeditious
manner.
All Alterations shall be performed in a first-class, workmanlike, manner
and in accordance with any plans and specifications therefor approved by
Landlord, which approval shall not be unreasonably withheld. All Alterations
shall be commenced and completed promptly.
Landlord may condition its approval in this Article upon maintenance by
Tenant, at its cost, of appropriate insurance coverage.
6.3.5 LANDLORD INSPECTION: Any Alteration shall be subject to
inspection at any time by Landlord and its architect, or their duly authorized
representatives, and if Landlord's architect upon such inspection shall be of
the opinion that the Alteration is not being performed in accordance with the
provisions of this Article or the plans and specifications, or that any of the
materials or workmanship are not first-class or are unsound or improper, Tenant
shall correct any such failure and shall replace any unsound or improper
materials or workmanship.
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Upon completion of any Alteration, Tenant, at Tenant's expense,
shall obtain certificates of final approval of such Alteration required by any
appropriate authority and shall furnish Landlord with copies thereof, together
with "as-built" plans and specifications for such Alteration.
6.4 PAYMENT OF CLAIMS/MECHANICS LIENS: Tenant shall (a) pay when due and
before delinquency all costs and expenses of work done or caused to be done by
Tenant in the Premises; (b) keep the title to the Premises and every part
thereof free and clear of any lien or encumbrance in respect of such work; and
(c) indemnify and hold harmless Landlord against any claim, loss, cost and/or
demand (including legal fees), whether in respect of liens or otherwise, arising
out of the supply of material, services or labor for such work. Tenant shall
give Landlord not less than ten (10) days notice prior to the commencement of
any Alteration on the Premises, and Landlord shall have the right to post
notices of non-responsibility on the Premises.
Tenant shall immediately notify Landlord of any lien, claim of lien or
other action of which Tenant has or reasonably should have knowledge and which
affects the title to the Premises or any part thereof ("Lien"); and Tenant shall
cause such Lien to be removed within thirty (30) days of the date of its
attachment (or such additional time as Landlord may consent to in writing),
either by paying and discharging such Lien or by posting a bond or such other
security as may be reasonably satisfactory to Landlord.
If Tenant shall fail to remove any such Lien within the required time
period, Landlord may take such action as Landlord deems necessary to remove
same. Any and all costs incurred by Landlord in taking such action, including,
without limitation, reasonable attorney fees, shall be repaid by Tenant to
Landlord on demand, with interest thereon at the rate of ten percent (10) per
annum from the date of payment; if unpaid, such amounts may be treated as
Additional Rent.
6.5 LANDLORD NOT LIABLE FOR TENANT'S WORK: Landlord shall not under any
circumstances be liable to pay for any work, labor or services rendered or
materials furnished to Tenant in connection with the Premises, and no mechanic's
or other lien for such Work, labor or services, or materials furnished shall
under any circumstances attach to or affect the reversionary interest of
Landlord in the Premises or in any alterations, repairs or improvements to be
made thereon.
Nothing contained in the Lease shall be deemed or construed in any way as
constituting the request or consent of Landlord, either express or implied, to
any contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific improvement,
alteration, or repair to the Premises or any part thereof, nor as giving Tenant
any right, power or authority to contract for or permit the rendering of any
services or the furnishing of any materials on behalf of Landlord that would
give rise to the filing of any lien against the Premises.
ARTICLE SEVEN
INSURANCE
7.1 LIABILITY INSURANCE: Throughout the Term of this Lease, Tenant shall at
its own expense provide and keep in force for the benefit of Landlord and
Tenant:
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(a) Property insurance covering the Premises for its full
replacement (100%) cost, with deductibles reasonably acceptable to Landlord
(as to which deductibles, Tenant shall be responsible for payment in the
event of any casualty or loss);
(b) Commercial (Broad Form Comprehensive) general liability,
including products, completed operations, and contractual liability
coverage in limits of not less than $5,000,000.00 per occurrence combined
single limit for personal injury and property damage, and naming Landlord
as an additional insured:
(c) Workers compensation insurance covering all persons employed
at the Premises to the extent required by the laws of Massachusetts;
(d) Employers liability coverage at limits not less than
$250,000/250,000/250,000;
(e) Comprehensive automobile liability covering all owned, hired
and non-owned vehicles in limits of not less than $5,000,000.00 per
occurrence combined single limit for personal injury and property damage
including all statutory coverages for all states of operation, and naming
Landlord as an additional insured;
(f) Builder's risk insurance covering the construction of
Tenant's Build-Out;
(g) Such other insurance, in such coverages and amounts and in
such form, as is customarily obtained by owners of properties similarly
constructed, operated, and maintained and reasonably acceptable to
Landlord.
7.2 CASUALTY INSURANCE: Throughout the Term of this Lease, Landlord shall
have the option as to the insurance required of Tenant in Section 7.1 (a) to
obtain itself and keep in effect insurance for fire and special extended
coverages (of such kind, in such amounts, and with such companies as Landlord
may in its reasonable discretion determine) for the Premises. In the event that
Landlord elects to obtain insurance policies for such coverages, Tenant shall
upon demand reimburse Landlord for the premiums required to obtain and maintain
such policies. Such premiums shall be deemed "Additional Rent" under Section
4.3.
7.3 REQUIREMENTS FOR ALL INSURANCE POLICIES: Notwithstanding anything
contained herein to the contrary, Tenant shall be obligated to provide insurance
for any of Tenant's property, including without limitation Tenant's furniture,
fixtures, equipment, goods, inventory, and/or trade fixtures. All insurance
required under this Section shall be primary and noncontributing and shall be
written with companies reasonably acceptable to Landlord and its lenders. Tenant
shall deliver to Landlord certificates evidencing the existence and amount of
such insurance. No such policy shall be cancelable or subject to reduction of
coverage or other modification except after twenty (20) days written notice to
Landlord and its lenders and Landlord and its lenders shall be listed as
"additional named insureds" under all policies relating to the Premises. Tenant
shall not do nor permit to be done anything which would or shall invalidate the
insurance policies referred to in this Article.
7.4 TENANT'S FAILURE TO PROVIDE INSURANCE: If Tenant fails to obtain or to
keep in effect any of the insurance required under this Article, Landlord may,
but shall have no
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obligation to, procure such insurance at its option; any amounts advanced
therefor shall be paid by Tenant as Additional Rent in accordance with Article
IV.
ARTICLE EIGHT
DAMAGE OR DESTRUCTION
8.1 REPAIRS TO PREMISES: In the event the Premises are damaged or destroyed
in whole or in part by fire or other casualty during the term of this Lease, and
provided Landlord's lenders agree to the release of the insurance proceeds
toward this end (which they may do in their sole discretion) then Landlord
shall, after the adjustment of the insurance loss, immediately commence and
diligently pursue the restoration of the Premises to good and tenantable
condition. Landlord shall restore the Premises to substantially the same
condition as before the occurrence of such casualty, and Landlord may elect to
raze the damaged or destroyed improvement(s) and to use the insurance proceeds
to replace the improvement(s) so razed. The completed work of repair,
restoration or replacement shall be at least equal in value, quality and use to
the condition of the Premises before such destruction.
8.2 APPLICATION OF INSURANCE PROCEEDS: The release of insurance proceeds
shall at all times be subject to the approval and direction of Landlord's
lender(s) as contemplated under Section 8.1 hereof. Tenant and Landlord shall
cooperate fully, at Tenant's sole expense, to obtain the largest possible
insurance recovery. If the insurance proceeds available for rebuilding are
insufficient to cover the cost of repairs and restoration of the Premises as
required hereunder, then Landlord may determine if the Premises shall be
rebuilt. If the available insurance proceeds exceed the cost of such repairs and
restoration, the excess shall be the property of the party obtaining and paying
the premiums for such insurance, and the other party shall have no right or
interest therein.
8.3 REDUCTION OF RENT/TERMINATION: In the event the Premises are damaged or
destroyed in whole or in part by fire or other casualty during the Term of this
Lease, (a) there shall be no abatement of reduction in Rent due under this Lease
unless the restoration can not be completed within 180 days; and (b) neither
party shall have the right to terminate this Lease on account of such damage or
destruction without the consent of the other party unless the restoration can
not be completed within 180 days.
ARTICLE NINE
CONDEMNATION
9.1 TOTAL TAKING: If the whole of the Premises or a substantial portion
thereof such that Tenant can not continue any of its business operations, or if
a material portion of the parking area portion of the Premises is taken by any
public authority under the power of eminent domain, then this Lease shall
terminate on the date possession of the Premises is delivered to such public
authority. Fixed Rent and Additional Rent shall be paid to that date and
prorated accordingly.
9.2 PARTIAL TAKING.
9.2.1 ADJUSTMENT TO RENT: If part (but less than a substantial portion
of the Premises as contemplated in Section 9.1) of the Premises is taken by any
public authority under the power of eminent domain, then, on the date possession
is required by such public authority,
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this Lease shall terminate as to the portion taken, and the Fixed Rent due
hereunder shall be adjusted as follows:
(a) If part of either the Existing Building or Proposed Building
which is included in the Premises is taken, then Fixed Rent shall be
reduced on a square foot basis in proportion to the amount taken of such
building which is taken.
(b) If no part of the Existing Building or Proposed Building is
taken, but part of the land which is included in the Premises is taken,
then Fixed Rent shall not be reduced or adjusted, unless said taking
materially affects the tenant's use of the premises, in which case the
fixed rent shall be reduced on a square foot basis in proportion to the
amount of land taken.
9.2.2 RESPONSIBILITY TO REPAIR: Except, as otherwise provided in this
Section, Landlord shall immediately commence and diligently pursue the
restoration of the remaining Premises to the extent necessary to permit the
continued use of the Premises, and shall use Landlord's Condemnation Award (as
described below) therefor. Landlord shall restore the Premises to substantially
the same condition as before the taking. In no event shall Landlord be required
to repair or replace (a) Tenant's personal property (such as wall coverings,
carpeting and window treatments); (b) Tenant's furnishings, operating equipment,
trade fixtures, or merchandise; or (c) Tenant's Alterations; except to the
extent that Landlord's Condemnation Award contains an amount allocated for
reimbursement of any of the foregoing.
9.2.3 COST OF REPAIRS: If Landlord's Condemnation Award is
insufficient to cover the cost of restoration required hereunder, Landlord may
(but shall not be required to) complete such restoration and shall pay any and
all amounts by which the cost to complete such work exceeds the Award.
9.3 LANDLORD'S OPTION TO TERMINATE: Notwithstanding anything to the
contrary contained in this Lease, if part of the Premises is taken by any public
authority under the power of eminent domain, Landlord shall have the right to
terminate this Lease upon the occurrence of any of the following and upon
written notice given to Tenant not later than ninety (90) days after
commencement of condemnation proceedings against the Premises (or, if such
proceedings are not commenced, not later than fourteen (14) days before Landlord
delivers possession of the part so taken by such public authority):
(a) If the taking of part of the Premises significantly and
adversely affects Tenant's use of the Premises; or
(b) If restoration of the remainder of the Premises cannot in
Landlord's opinion be completed within 180 days after the date possession
is required by the public authority; or
(c) If Landlord's Condemnation Award is insufficient to the
necessary restoration; or
(d) If the taking (i.e., the date possession is required by the
public authority) occurs within the last 180 days of the then current Term
of the Lease, provided however
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that the Lease may not be terminated under this Subsection if Tenant's
option, if any, to further extend the term of this Lease is exercised after
fifteen (15) days after Tenant receives from Landlord the termination
notice described above.
Termination of the Lease pursuant to this Section shall be effective as of the
later of the date possession is required by the public authority or sixty (60)
days after Tenant receives the termination notice described above.
9.4 LANDLORD'S CONDEMNATION AWARD: All damages awarded for such taking
shall belong to and be the property of the Landlord, whether such damages shall
be awarded as compensation for diminution in value to the leasehold or to the
fee of the Premises and/or for any improvements to the Premises whether made by
Landlord or Tenant. The amount received by Landlord which is allocable to the
Premises shall be "Landlord's Condemnation Award." However, Tenant shall be
entitled to any award for removal and relocation expenses, Tenant's loss of
business, and fixtures paid for by Tenant. Landlord and Tenant shall each seek
their own award and pay their own expenses in connection therewith.
ARTICLE TEN
ASSIGNMENT SUBLETTING AND INSOLVENCY
10.1 ASSIGNMENT/CHANGE IN TENANT OWNERSHIP: Neither the Lease, nor any
interest of Tenant in the Lease, shall be sold, assigned, or otherwise
transferred, directly or indirectly, whether by operation of law or otherwise,
and there shall be so subletting of the Premises or any part thereof, without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld. Should any such an assignment or transfer be permitted hereunder,
Landlord may at its option (i) elect to enter into a new lease with the assignee
pursuant to the assignment or (ii) require payment to Landlord of fifty (50%)
percent of any and all amounts (after deduction of reasonable brokers and
attorneys fees in connection with the transaction, as well as reasonable
accommodations for tenant improvements and/or "free rent" periods, but only to
the extent they are usual and customary in the office market at that time)
collected by Tenant from the assignee pursuant to the assignment which are in
excess of the Fixed and Additional Rent established by this Lease. No permitted
assignment or other transfer as set forth above shall relieve Tenant of its
direct and primary liability under this Lease.
The foregoing shall not apply to transactions with an entity into or with
which Tenant is merged or consolidated or to which substantially all of Tenant's
assets are transferred, or to any entity which controls or is controlled by
Tenant or is under common control with Tenant, provided that in any of such
events (i) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the net worth of the
Tenant at the highest point within the two years preceding such proposed
transfer; (ii) proof satisfactory to Landlord of such net worth is delivered to
Landlord at least thirty (30) days prior to the effective date of any such
transaction; (iii) the assignee agrees to be directly bound to Landlord and
executes such documentation as may be reasonably requested by Landlord toward
this end and (iv) the proposed assignee or subtenant or transferee makes
substantially similar products to those made by Tenant from the Premises.
Notwithstanding the foregoing, no permitted assignment shall relieve the Tenant
from its direct and primary liability under this Lease.
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10.2 SUBLETTING: Tenant shall not sublet the Premises, or any part thereof,
at any time during the Term hereof without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. No permitted sublet
shall relieve Tenant of its direct and primary liability under this Lease.
10.3 MORTGAGE OR PLEDGE: In no event shall Tenant mortgage, encumber,
pledge, grant a security interest in, collaterally assign, or conditionally
transfer as collateral, the Lease, any equipment or fixtures of Landlord
incorporated in or used in connection with the Premises, provided however that
this Section 10.3 shall not preclude assignment permitted pursuant to Section
10.1 hereof.
10.4 INSOLVENCY PROVISIONS
10.4.1 LANDLORD'S OPTION TO TERMINATE: If the estate of Tenant created
hereby shall be taken in execution or by other process of law, or if Tenant
shall be adjudicated insolvent pursuant to the provisions of any present or
future insolvency law under state law, or if Tenant shall cease doing business
as a going concern or generally not pay its debts as they become due, or if a
receiver or trustee of the property of Tenant shall be appointed under state law
by reason of Tenant's insolvency or inability to pay its debts as they become
due or otherwise, or if any assignment shall be made of Tenant's property for
the benefit of creditors under state law, then and in such event, Landlord may,
at its option, terminate this Lease and all rights of Tenant hereunder declaring
an Event of Default under Article Twelve.
10.4.2 TRANSFER OF TENANT'S INTEREST: Neither Tenant's interest in the
Lease, nor any lesser interest of Tenant therein, nor any estate of Tenant
hereby created shall pass to any trustee, receiver, assignee for the benefit of
creditors or other person or entity or otherwise by operation of law under the
laws of any state having jurisdiction of the person or property of Tenant unless
Landlord shall consent to such transfer in writing. No acceptance by Landlord of
Rent or any other payment from any such trustee, receiver, assignee, person or
other entity shall be deemed to have waived, nor shall it waive, the requirement
of Landlord's consent or the right of Landlord to terminate this Lease in the
absence of such consent to any transfer of Tenant's interest in this lease.
10.4.3 TIME FOR ASSUMPTION OR REJECTION OF LEASE IN TENANT'S
BANKRUPTCY: In the event that either a voluntary petition or involuntary
petition for reorganization or liquidation or adjustment of debts is filed by or
against Tenant under Chapter 7, 11 or 13 of the Bankruptcy Code, the Tenant or
the bankruptcy trustee or the Tenant as debtor in possession must elect to
assume or reject this Lease within 60 days after the date of filing of the
petition. If the Tenant, trustee or debtor in possession shall elect to assume
this Lease, whether for the purpose of assignment or otherwise, such election
and assignment may only be made if all of the terms and conditions of Section
10.4.4 hereof are satisfied. If the Tenant, trustee or debtor in possession
shall fail to elect or assume this Lease within 60 days after the date of filing
the bankruptcy petition, this Lease shall be deemed to have been rejected. In
the event of such rejection, Landlord shall thereupon be immediately entitled to
possession of the Premises without further obligation to the Tenant, trustee or
debtor in possession and this Lease shall be cancelled, but Landlord's right to
be compensated for damages in such proceeding shall survive.
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10.4.4 CONDITIONS TO THE ASSUMPTION OF LEASE IN BANKRUPTCY
PROCEEDINGS: In the event that a voluntary or involuntary bankruptcy petition is
filed by or against Tenant, and Tenant, trustee or debtor in possession elects
to assume the Lease in accordance with the provisions of Section 10.4.3 above,
such assumption shall only be effective if each of the following conditions,
which Landlord and Tenant hereby acknowledge to be commercially reasonable in
the context of a bankruptcy proceeding of Tenant, have been satisfied:
(a) The Tenant, trustee or the debtor in possession has cured or
has provided Landlord adequate assurance that the Tenant, trustee or debtor
in possession will cure all monetary defaults under the Lease within 10
days from the date of assumption of the Lease.
(b) The Tenant, trustee or the debtor in possession has cured or
has provided Landlord adequate assurance that the Tenant, trustee or debtor
in possession will cure all non-monetary defaults under the Lease within 30
days from the date of assumption of the Lease.
(c) The Tenant, trustee or the debtor in possession has
compensated or has provided to Landlord adequate assurance that Landlord
will be compensated for any pecuniary loss incurred by Landlord arising
from the default of the Tenant, trustee or debtor in possession within 10
days from the date of assumption of the Lease.
(d) The Tenant, trustee or debtor in possession has provided
Landlord with adequate assurance of the future performance of each of the
Tenants, trustees or debtor in possessions obligations under this Lease;
provided, however, that the Tenant, trustee or debtor in possession shall
also deposit with the Landlord as security for the timely payment of rent
an amount equal to two (2) months rent accruing under this Lease.
(e) The assumption of the Lease will not breach any provision in
any other lease, mortgage, financing agreement or other agreement by which
Landlord is bound relating to the premises.
10.4.5 ASSIGNMENT OF LEASE BY TENANT: Notwithstanding any provisions
of this Article to the contrary, if this Lease is assigned to any person or
entity pursuant to the provisions of the Bankruptcy Code:
(a) Any and all monies or other considerations, payable or
otherwise, to be delivered in connection with such assignment, shall be
paid or delivered to Landlord, shall be and remain the exclusive property
of Landlord, and shall not constitute property of Tenant or the estate of
Tenant within the meaning of the Bankruptcy Code. Any and all monies or
other considerations constituting Landlord's property under the preceding
sentence not paid or delivered to Landlord shall be held in trust for the
benefit of Landlord and shall be promptly paid or delivered to Landlord;
and
(b) Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed without further
act or deed to have assumed all of the obligations arising under this Lease
on and after the date of such
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assignment. Any such assignee shall upon demand execute and deliver to
Landlord an instrument confirming such assumption.
10.4.5 MEASURE OF DAMAGES: Notwithstanding anything in this Lease to
the contrary, all amounts payable by Tenant to or on behalf of Landlord under
this lease, whether or not expressly denominated as rent, shall constitute rent
for the purpose of Section 502(b)(6) of the Bankruptcy Code.
10.5 SURVIVE LEASE: The provisions of Article 10 hereof shall survive the
expiration or earlier termination of the Lease.
ARTICLE ELEVEN
OBLIGATION OF LESSEE
11.1 COMPLIANCE WITH LAWS, ETC.: Tenant shall comply with all statutes,
ordinances, rules and regulations, of all Federal, state, municipal, or other
governmental or quasi-governmental authorities having jurisdiction over the
Premises or any part thereof and the use and occupation thereof by Tenant, and
tenant shall so comply, whether or not such statutes, ordinances, rules and
regulations, shall hereafter be enacted, and whether or not the same may be said
to be within the present contemplation of the parties hereto. Landlord
represents that the Premises (i.e. Existing Building and related Property areas)
are presently in compliance with all such statutes, ordinances, rules and
regulations.
In the event compliance requires Alterations to the Premises, Landlord
shall, at Tenant's request, contest or seek relief, but nothing herein shall
relieve Tenant of the obligation, at Tenant's expense, to comply whenever
Landlord shall so direct.
Notwithstanding anything herein to the contrary, Tenant shall not be
required to make structural changes or changes to building systems unless
required of Tenant's own particular use, in which case any and all such changes
shall be at Tenant's sole cost and expense.
11.2 PERMANENT SIGNAGE: Tenant shall install corporate identity signs in
accordance with the terms of the Zoning Board of Appeals of Billerica, only
after obtaining any and all requisite permits and approvals therefor. Tenant
agrees that it shall not erect nor cause to be erected any permanent signs,
notices, or advertisements upon the Premises or affix such thereto without the
prior written consent of Landlord, which shall not be unreasonably withheld, and
unless such signs, notices or advertisements shall be erected and affixed
according to all laws, local regulations and ordinances, and shall advertise
only a business or use of the Premises specifically authorized by this lease.
Tenant shall not erect any sign that by reason of its weight or size might
damage the Premises, nor shall Tenant paint any signs, notices, or advertising
on the exterior walls of the building or buildings without Landlord's prior
written consent. Signs placed on the Premises by Tenant shall be removed by it
not later than the end of the Term of this Lease as it may be extended
hereunder, or any sooner termination thereof, unless Landlord and Tenant agree
otherwise, and upon removal of any such signs, Tenant shall repair any damage to
the Premises caused thereby.
11.3 SECURITY: Tenant shall be solely responsible for security of the
Premises, and shall use such means and methods of assuring security for the
premises as are reasonably
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acceptable to the Landlord and appropriate for its business; and Tenant agrees
to indemnify and hold harmless Landlord from and against any and all claims,
losses, liabilities and damages arising from any breaches, lapses, or failure to
provide adequate security for the persons and property on the Premises
(including damage to the Premises itself).
11.4 INDEMNIFICATION: Tenant shall defend, indemnify and save harmless,
Landlord and its officers, stockholders, directors, employees, or agents of
Landlord (collectively "Indemnified Parties"), from (a) all liabilities, claims,
causes of action, suits, damages, and expenses (collectively "Claims") arising
from (i) any work or thing whatsoever done for or by Tenant, or any condition
created in or about the Premises during the Term by Tenant; (ii) any use,
nonuse, possession, occupation, alteration, repair, condition, operation,
management, or maintenance of the Premises or any part thereof, or of any
street, alley, sidewalk, curb, vault, passageway, common area or space,
comprising a part thereof or adjacent thereto by Tenant; (iii) any negligent or
otherwise wrongful act or omission of Tenant or its employees, agents, or
contractors; (iv) any accident, injury (including death) or damage to any person
or property occurring in, on or about the Premises, or any part thereof or in,
on or about any street, alley, sidewalk, curb, vault, passageway, common area or
space comprising a part thereof or adjacent thereto, not attributable to acts or
omissions to act by Landlord; (v) any contest of matters permitted by the Lease;
and (vi) any breach, violation, or nonperformance of any covenant, condition or
agreement in the Lease to be observed or performed by Tenant; and (b) all costs,
expenses, and liabilities incurred, including reasonable attorney fees and
disbursements through and including appellate proceedings, in or in connection
with any of such Claims. If any action or proceeding shall be brought against
any of the Indemnified Parties by reason of any such Claims, Tenant, upon notice
from any of the Indemnified Parties, shall resist and defend such action, at its
sole cost and expense by counsel chosen by Tenant who shall be reasonably
satisfactory to such Indemnified Party. Tenant or its counsel shall keep each
Indemnified Party fully apprised at all time of the status of such defense. The
provisions of this Section 11.4 shall survive the expiration or earlier
termination of the Lease.
11.5 LANDLORD NOT LIABLE FOR LOSS OF TENANT'S PROPERTY: Neither Landlord
nor its agents shall be liable for any loss of or damage to the property of
Tenant or others by reason of casualty, theft, or otherwise, or for any injury
or damage to any persons or property resulting from any cause unless due to the
gross negligence or willful misconduct or Landlord, its agents, servants or
employees acting with the scope of their employment.
ARTICLE TWELVE
DEFAULT BY TENANT
12.1 EVENTS OF DEFAULT: Each of the following shall be deemed an event of
default ("Event of Default") and a breach of the Lease by Tenant.
(a) If the Fixed Rent shall not be paid when due and payable,
provided that said default is not cured within ten (10) days after written
notice (provided however, Landlord shall not be required to give written
notice more than one time any any twelve month period).
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(b) If Tenant shall fail to pay any Additional Rent required
hereunder when due and payable, provided that said default is not cured
within ten (10) days after written notice (provided however, Landlord shall
not be required to give written notice more than one time any any twelve
month period).
(c) If Tenant shall default in the performance or observance of
any of the other terms of the Lease, and such default shall continue for
thirty (30) days after written notice by Landlord to Tenant, or (if default
is such a nature that it cannot be completely remedied within said thirty
(30) day period) Tenant shall not commence within said thirty (30) day
period to remedy such default and thereafter diligently prosecute the same
to completion.
(d) If Tenant vacates or abandons the Premises, except pursuant
to an assignment or sublease permitted by the terms of this Lease.
(e) If Landlord declares an Event of Default as permitted in
Article Ten in the event of Tenant's Bankruptcy or insolvency.
(f) If Tenant shall cease to exist as a corporation in good
standing in the state of its incorporation.
(g) If Tenant uses the Premises for any purpose other than the
permitted use under this Lease. 12.2 REMEDIES:
12.2.1 RE-ENTRY AND POSSESSION: Upon the occurrence of an Event of
Default, Landlord, without further notice to Tenant, may declare this Lease
and/or Tenant's right of possession at an end and may re-enter the Premises by
process of law, in which event Landlord shall have the right to recover from
Tenant the following:
(a) The worth at the time of award of the unpaid Rent which has
been earned at the time of termination;
(b) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination of this Lease
until the time the award exceeds the amount of such rental loss the Tenant
proves could have been reasonably avoided;
(c) Any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which, in the ordinary course of things, would be
likely to result therefrom, including, but not limited to, the reasonable
cost of recovering possession of the Premises, expenses of reletting
including necessary renovations and alterations, reasonably attorney fees
and real estate brokerage commissions. The "worth at the time of the
award," as used in (a) and (b) of this Article 12.2.1, is to be computed by
allowing interest at the rate of twelve (12%) percent per annum.
Notwithstanding the foregoing, in no event shall Landlord be entitled to
consequential damages.
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No receipt of monies by Landlord from Tenant after termination of
the Lease, or after the giving of any notice of the termination of the Lease,
shall reinstate, continue or extend the Initial Term, or affect any prior notice
given to Tenant, or operate as a waiver of the right of Landlord to enforce the
payment of Rent payable by Tenant, or operate as a waiver of the right of
Landlord to recover possession of the Premises, except herein provided. Except
as provided herein or as prohibited by law, Tenant waives any right of
redemption provided by any law now in force or hereafter enacted, or re-entry or
repossession.
12.2.2 CONTINUATION OF LEASE: Upon the occurrence of an Event of
Default Landlord may, at its option, continue this Lease in full force and
effect without termination Tenant's right of possession, and collect Rent,
Additional Rent, and other monetary charges when due. Landlord shall have the
right to take the following action which shall not constitute a termination of
Tenant's right of possession: (1) acts necessary to maintain, repair and
preserve the Premises; (2) efforts to relet the Premises, or any part thereof,
to third parties for Tenant's account; and (3) the appointment of a receiver to
protect Landlord's interest in this Lease.
12.2.3 REMEDIES CUMULATIVE: These remedies of Landlord are cumulative
and in addition to and not exclusive of any other remedy of Landlord herein
given or which maybe permitted by law. These remedies may be exercised jointly
or severally without constituting an election of remedies.
12.3 WAIVER: No failure by Landlord to require strict performance of any
covenant or term of the Lease, or to exercise any right or remedy upon a breach,
and no acceptance of full or partial Rent during any such breach, shall
constitute a waiver of any such breach. No term of the Lease to be performed or
complied with by Tenant, and no breach thereof, shall be waived or modified
except in writing by Landlord. No waiver of any breach shall affect the Lease.
12.4 RIGHT TO CURE TENANT'S DEFAULT: If any Event of Default occurs, or if
Tenant shall fail to comply with the Lease, Landlord shall have the right but
not the obligation (a) to perform for Tenant if the same arises out of any
obligation owed by Tenant to a third-party or (b) to make any expenditure or
incur any obligation for the payment of money for any obligation owed to
Landlord, including, but not limited to, reasonable attorney fees and
disbursements in instituting, prosecuting or defend in any action, with interest
thereon at eighteen percent (18) per annum or the maximum rate permitted by law
("Applicable Rate"). Such amounts shall be Additional Rent and shall be paid by
Tenant to Landlord immediately.
ARTICLE THIRTEEN
QUIET ENJOYMENT
Upon payment of Rents and performance of all terms of the Lease, Tenant
may, during the Term or any Renewal Term, peaceably and quietly have, hold and
enjoy the Premises without any manner of suit, trouble or hindrance from any
person claiming through Landlord subject to the terms of the Lease.
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ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
14.1 NOTICE: All notices required or permitted hereunder shall be in
writing and shall be given either by personal delivery, or by first class,
certified mail, or by reliable overnight delivery service which provides
receipts evidencing sending and delivery. If such notice is served personally,
the notice shall be deemed made at the time of delivery, but only if a receipt
evidencing delivery of the notice is obtained. If notice is by mail, the notice
shall be deemed given five (5) days after the date when deposited in the United
States mail, certified, return receipt requested, and postage prepaid. If notice
is by overnight delivery service, the notice shall be deemed given one business
day following the date such notice is deposited with the delivery service, all
fees prepaid.
Any such notice shall be addressed to the parties as follows:
Landlord: Progress Road LLC
10 Waltham Street
Wilmington, Mass. 01887
Attn: Michael Vetrano, CFO
with a copy to: Paul A. Hedstrom, Esquire
Hinckley, Allen & Snyder
One Financial Center, Suite 4600
Boston, MA 02111-2625
Tenant: Terry Massood
PRI Automation
17 Progress Road
Billerica, Mass. 01821
with a copy to: Attorney Jacob Politan
Foley Hoag & Eliot
One Post Office Square
Boston, Massachusetts 02109
Any party may change its address, or change or designate additional persons to
receive such notices, by written notice as provided herein.
14.2 HOLDING OVER: Tenant acknowledges that possession of the Premises must
be surrendered to Landlord at the expiration or sooner termination of the Term
of the Lease, whichever is later. The parties agree that the damage to Landlord
to timely surrender possession of the Premises as aforesaid will be substantial,
will exceed the amount of the Fixed Rent and Additional Rent payable, and will
be impossible to accurately measure. Tenant therefore agrees that if possession
of the Premises is not surrendered to Landlord as required, then Tenant shall
pay Landlord as liquidated damages for each month and each portion of any month
during which Tenant holds over in the Premises in addition to any sums payable
pursuant to the foregoing indemnity, a sum equal to two (2) times the aggregate
of the Fixed Rent and Additional Rent which was payable for the last month of
the Term. Nothing herein shall permit Tenant to retain
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possession of the Premises after the expiration or sooner termination of the
Term of the Lease. If Tenant holds over in possession after the expiration or
sooner termination of the Term of the Lease, whichever is later, this shall not
extend the term or renew the Lease, but the tenancy shall continue as a tenancy
from month-to-month upon the terms and conditions of the Lease at the Fixed Rent
and Additional Rent as herein increased. This provision shall survive the
expiration or earlier termination of the Lease.
14.3 LANDLORD'S ACCESS TO PREMISES: In addition to the right of inspection
described in Article Six, Landlord shall at all times during the Term have the
right to enter the Premises at reasonable times and upon reasonable notice under
the circumstances to inspect or to show to prospective purchasers. Landlord
shall also have the right during the Term to display the customary "For Sale"
sign on the Premises, provided that Landlord indicates that Tenant's business is
not for sale. During the last nine (9) months of the Term, Landlord shall have
the right to enter the Premises at reasonable times and upon reasonable notice
to show to prospective new tenants and to display the customary "For Rent" signs
on the Premises.
Further, Landlord shall at all times during the Term have the right to
enter the Premises at reasonable times and upon reasonable prior notice to
Tenant under the circumstances to make such repairs or alterations as Landlord
deems necessary or advisable, but such right shall not be construed as
obligating Landlord to make any repairs or inspections of the Premises. Landlord
agrees to use reasonable efforts not to materially interfere with Tenant under
the foregoing circumstances.
14.4 PROVISIONS RELATING TO LANDLORD
A. DEFINITION OF "LANDLORD": As used in this Lease, the term "Landlord"
shall mean the owner or a mortgagee in possession, as the case may be. Nothing
herein shall permit Tenant to retain possession of the Premises after the
expiration or sooner termination of the Term of the Lease.
B. SUBORDINATION: On Landlord's demand, Tenant agrees to subordinate its
rights hereunder to the lien of any mortgage or any other method of financing or
refinancing, now or hereafter placed against all or any portion of the Premises
and/or any improvements now or hereafter built by Landlord on the Premises, and
to any and all advances made or to, be made thereunder, and to the interest
thereon, and to all renewals, replacements, consolidations and extensions
thereof by Landlord. Within ten (10) days after such demand, Tenant shall
execute, acknowledge and deliver all instruments necessary or proper to effect
such subordination; provided, however, that notwithstanding any such
subordination, Tenant's rights under this Lease shall remain in full force and
effect so long as Tenant is not in default beyond any applicable notice, grace
and cure periods, but if proceedings are brought for foreclosure or to exercise
a power of sale or the like, Tenant shall attorn to the purchaser. If Tenant
shall fail, neglect or refuse to execute and deliver any such document within
ten (10) days after receipt of written notice to so do and the receipt by Lessee
of the document to be executed by it, Tenant hereby appoints Landlord, its
successors and assigns, the attorney-in-fact of Tenant, irrevocably to execute
and deliver any and all such documents for and on behalf of Tenant.
Notwithstanding anything to the contrary herein, Landlord shall execute and
deliver to Tenant no later than the Commencement Date, a Subordination
Non-Disturbance and Attornment Agreement, executed
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by Landlord's lender on its standard form, for Tenant's execution and return to
Landlord for recording.
C. COLLECTION OF JUDGMENTS: Tenant shall look first to Landlord's interest
in the Premises for the collection of any judgment requiring the payment of
money by Landlord because of any default by Landlord under the Lease. In no case
shall Tenant seek collection against the assets of Landlord greater in the
aggregate than the fair market value of the Premises without deduction for any
liens, mortgages, or encumbrances thereon. Neither Landlord's affiliates nor the
officers, directors, stockholders, or employees of Landlord or its affiliates,
shall be subject to levy execution or other procedure for the satisfaction of
Tenant's remedies under the Lease. However, nothing contained herein shall be
construed to permit Tenant to offset, and Tenant agrees that it shall not offset
against the rents due a successor Landlord, for any judgment requiring the
payment of money by reason of any default of a prior Landlord.
14.5 WAIVE JURY: INTENTIONALLY DELETED
14.6 NO BROKERS: Landlord agrees to pay a brokerage fee to the Stubblebine
Company as broker in this transaction, pursuant to a separate written agreement
between them. The parties acknowledge this is the only brokerage fee due from
Landlord arising from this Lease. Tenant agrees to indemnify and save Landlord
harmless from all claims from brokerage commission by any person or entity
claiming to have brought about this Lease transaction, other than the
Stubblebine Company. This Article shall survive the expiration or earlier
termination to the Lease.
14.7 RECORDING: This Lease shall not be recorded, but the parties agree to
execute and deliver for recording a Memorandum of Lease incorporating the basic
terms and conditions hereof, but deleting any mention of the rental payments.
14.8 ATTORNEY FEES: Should either party hereto institute any action or
proceeding in court to enforce any provision hereof or for damages by reason of
an alleged breach of any provision of this Lease, the prevailing party shall be
entitled to receive from the losing party such amount as the court may adjudge
to be reasonable attorney fees for the services rendered the prevailing party in
such action or proceeding.
14.9 ENFORCEABILITY: If any provision of the Lease shall be invalid or
unenforceable, the remainder of the Lease shall not be affected and every
provision of the Lease shall be enforceable to the fullest extent.
14.10 SUCCESSORS AND ASSIGNS: This Lease shall bind and inure to the
benefit of Landlord and Tenant and their respective successors and, except as is
otherwise provided herein, their assigns.
14.11 GOVERNING LAW: The Lease shall be governed by and construed in
accordance with laws of the Commonwealth of Massachusetts.
14.12 ENTIRE AGREEMENT: This Lease contains the entire agreement between
the parties and may not be extended, terminated or modified except in writing
executed by the parties hereto. All prior understandings and agreements between
the parties and all working drafts are
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merged in the Lease. The parties agree that no inferences shall be drawn from
changes from any working drafts of the Lease.
14.13 HEADINGS: The headings are only for convenience and in no way define,
limit or describe the scope nor in any way affect the Lease.
14.14 LANDLORD'S RULES AND REGULATIONS: Landlord shall be entitled to
promulgate, and Tenant shall abide by all reasonable rules and regulations
governing the Premises and access thereto, (particularly during the period of
Landlord's Build-Out of the Proposed Building) provided Tenant's rights under
this Lease or its use of the Premises are not materially impaired thereby.
14.15 FORCE MAJEURE: In any case where either party is required to do any
act other than the payment of money, delays caused by or resulting from acts of
god; war; civil commotion; fire; flood or other casualty; labor difficulties;
shortages of labor, materials or equipment; unusual or onerous government
regulations; unusually severe weather or other causes of a like catastrophic
nature and beyond such party's reasonable control ("Force Majeure"), shall not
be counted in determining the time during which such act shall be completed and
such time shall be deemed to be extended by the period of such delay.
ARTICLE FIFTEEN
TENANT'S RIGHT OF FIRST OFFER
Landlord hereby grants to Tenant the following "right of first offer" to
acquire fee ownership of the Premises provided: (i) that Tenant has not been in
material default under this Lease beyond any applicable notice grace and cure
periods and (ii) that this Lease is in existence and in full force and effect.
Prior to the execution of any final binding agreement for the sale of the
Premises, Landlord shall first offer the Premises to the Tenant, in writing,
stating Landlord's offering price, term and conditions; whereupon Tenant shall
have a period of ten (10) business days to enter into a binding final agreement
with Landlord to acquire the Premises on the price, terms and conditions set
forth in Landlord's written notice. If Tenant fails to execute such binding
final agreement, then the rights under this Section shall lapse and be deemed
null and void; Landlord shall not be required to re-offer the Premises to Tenant
(unless Landlord accepts an offer within the next six (6) months at a price
which is more than ten (10%) percent less than that which was rejected by
Tenant); and Landlord may convey the Premises to any party, at any time, on
price, terms and conditions acceptable to Landlord.
IN WITNESS WHEREOF, the parties have executed this Lease under seal the day
first written above.
WITNESS: PROGRESS ROAD LLC
(Landlord)
/s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
- ------------------------------------- -------------------------------------
-30-
WITNESS: PRI AUTOMATION
(TENANT)
/s/ [ILLEGIBLE] By /s/ Cosmo S. Trapani
- ------------------------------------- -------------------------------------
Attach Corporate Resolution/Evidence
of Authority
-31-