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Exhibit 10.9(p)
L E A S E
THIS INSTRUMENT IS A LEASE, dated as of March 31, 1993 in which the Landlord
and the Tenant are the parties hereinafter named, and which relates to space in
the building (the "Building") known and numbered as 100 Fordham Road,
Wilmington, MA. The parties to this instrument hereby agree with each other as
follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. The following terms and provisions set forth basic data
and, where appropriate, constitute definitions of the terms hereinafter listed:
1.2 BASIC DATA.
Landlord: Talbot Operations, Inc.
Landlord's Original Address:
c/o Leggat McCall Properties Management, Inc.
Ten Post Office Square
Boston, MA 02110
Tenant: The Timberland Company, a Delaware corporation
Tenant's Original Address: 11 Merrill Industrial Drive, P.O. Box 5050
Hampton, NH 03842-5050
Guarantor: N/A
Basic Rent: The sum of $408,648.00 ($3.00) per square foot of Premises
Rentable Area) per annum.
Premises Rentable Area: Approximately 136,216 rentable square feet (133,803
useable square feet) located on the 1st floor of the Building.
Permitted Uses: Warehouse.
Escalation Factor: 44.88%, as computed in accordance with the Escalation
Factor Computation.
Building Escalation Factor: 66.93% as computed in accordance with the Building
Escalation Factor Computation.
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Initial Term: Two (2) years and one full calendar month commencing on the
Commencement Date and expiring at the close of the day on April 30, 1995.
Security Deposit: Intentionally Omitted.
1.3 ADDITIONAL DEFINITIONS.
Manager: Leggat McCall Properties Management, Inc.
Property Rentable Area: 303,509 rentable square feet.
Building Rentable Area: 203,509 rentable square feet.
Business Days: All days except Saturday, Sunday, New Year's Day, Washington's
Birthday, Patriot's Day, Memorial Day, Independence Day, Labor Day, Columbus
Day, Veterans' Day, Thanksgiving Day, Christmas Day (and the following day when
any such day occurs on Sunday).
Commencement Date: As defined in Section 4.1.
Default of Tenant: As defined in Section 13.1.
Escalation Charges: The amounts prescribed in Sections 8.1 and 9.2.
Escalation Factor Computation: Premises Rentable Area divided by the Property
Rentable Area.
Building Escalation Factor Computation: Premises Rentable Area divided by the
Building Rentable Area.
Force Majeure: Collectively and individually, strike or other labor trouble,
fire or other casualty, governmental preemption of priorities or other controls
in connection with a national or other public emergency or shortages of, or
inability to obtain, fuel, supplies or labor resulting therefrom, or any other
cause, whether similar or dissimilar, beyond Landlord's reasonable control.
Initial Public Liability Insurance: $1,000,000 per person; $3,000,000 per
occurrence (combined single limit) for property damage, bodily injury or death.
Operating Expenses: As set forth in Section 9. 1.
Operating Year: As defined in Section 9.1.
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Premises: A portion of the Building as shown on Exhibit A annexed hereto.
Property: The Buildings known as and numbered 100-110 Fordham Road (including
all buildings, including the Building located at such address) Wilmington, MA
together with the land parcels upon which such Buildings are located..
Tax Year: As defined in Section 8.1.
Taxes: As determined in accordance with Section 8. 1.
Tenants Removable Property: As defined in Section 5.2.
Term of this Lease: The Initial Term and any extension thereof in accordance
with the provisions hereof.
Utility Expenses: As defined in Section 9.1.
Exhibits: The following Exhibits are annexed to this Lease and incorporated
herein by this reference:
Exhibit A - Plan showing Premises
Exhibit B - Intentionally Omitted
Exhibit C - Intentionally Omitted
Exhibit D - Intentionally Omitted
Exhibit E - Operating Expenses
ARTICLE II
PREMISES AND APPURTENANT RIGHTS.
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for
the Term of this Lease and upon the terms and conditions hereinafter set forth,
and Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
appurtenant to the Premises (i) the non-exclusive right to use, and permit its
invitees to use in common with others, public or common lobbies, hallways,
stairways and elevators and common walkways and driveways necessary for access
to the Building, and if the portion of the Premises on any floor includes less
than the entire floor, the common toilets, corridors and elevator lobby of such
floor and (ii) the exclusive right and easement to use all existing loading
docks adjacent to the Premises; but Tenant shall have no other appurtenant
rights and all such rights shall always be subject to reasonable rules and
regulations from time to time established by Landlord pursuant to Section 14.7
and to the right of Landlord to
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designate and change from time to time areas and facilities so to be used.
(b) Excepted and excluded from the Premises are the ceiling,
floor, perimeter walls and exterior windows, except the inner surfaces thereof,
but the entry doors (and related glass and finish work) to the Premises are a
part thereof; and Tenant agrees that Landlord shall have the right to place in
the Premises (but in such manner as to reduce to a minimum interference with
Tenant's use of the Premises) interior storm windows, subcontrol devices (by
way of illustration, an electric sub panel, etc.), utility lines, pipes,
equipment and the like, in, over and upon the Premises. Tenant shall install
and maintain, as Landlord may require, proper access panels in any hung
ceilings or walls as may be installed by Tenant in the Premises to afford
access to any facilities above the ceiling or within or behind the walls.
(c) It is agreed and understood that the 3,212 square foot
mechanical room and the 585 square foot supervisors office immediately adjacent
to the Premises are expressly excluded from the Premises and Landlord expressly
reserves the right to use and access to such spaces at all times.
ARTICLE III
BASIC RENT
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
Landlord, commencing on the Commencement Date without offset, abatement (except
as provided in Article 12.1), deduction or demand, the Basic Rent. Such Basic
Rent shall be payable in equal monthly installments, in advance, on the first
day of each and every calendar month during the Term of this Lease, at
Landlord's Original Address, or at such other place as Landlord shall from time
to time designate by notice to Tenant, in lawful money of the United States.
Until notice of some other designation is given, Basic Rent and all other
charges for which provision is herein made shall be paid by remittance payable
to the Manager and addressed to the Manager, Agent for 100 Fordham Road, ITF:
Talbot Operations, P.O. Box 1088, Boston, MA 02103-1088 and all remittances so
received as aforesaid, or by any subsequently designated recipient, shall be
treated as a payment to Landlord. In the event that any installment of Basic
Rent is not paid within 5 days after the due date thereof, Tenant shall pay, in
addition to any Escalation Charges or other additional charges due under this
Lease, at Landlord's request an administrative fee equal to 5% of the overdue
payment.
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(b) Basic Rent for any partial month shall be pro-rated on a daily
basis, and if the first day on which Tenant must pay Basic Rent shall be other
than the first day of a calendar month, the first payment which Tenant shall
make to Landlord shall be equal to a proportionate part of the monthly
installment of Basic Rent for the partial month from the first day on which
Tenant must pay Basic Rent to the last day of the month in which such day
occurs, plus the installment of Basic Rent for the succeeding calendar month.
(c) Notwithstanding the provisions of Sections 3.1(a) and 3.1(b)
above to the contrary, Basic Rent payable by Tenant for the calendar month of
April, 1993 shall be in the amount of $26,859.67.
ARTICLE IV
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. (a) The Commencement Date shall be April 1, 1993.
(b) From and after the date of execution of this Lease by both the
Landlord and the Tenant, Tenant shall be permitted to enter the Premises in
order to install racking and to prepare the Premises to receive product
notwithstanding that the Commencement Date may not have yet occurred. From and
after the date of such entry by Tenant, Tenant shall be bound by all of the
terms, covenants and agreements contained in the Lease except that Tenant shall
not be obligated to pay Basic Rent or Escalation Charges until the occurrence
of the Commencement Date.
4.2 CONDITION OF THE PREMISES. Tenant hereby agrees to accept the
Premises on the Commencement Date in its "As Is" condition as of the date of
this Lease, without representation or warranty by Landlord (except as otherwise
expressly set forth in this Lease) of any kind. It is agreed and understood
that Landlord shall have no obligation to make or pay for any improvements to
the Premises or the Building in order to prepare same for Tenant's use and
occupancy except for the performance of the Landlord's Work (as hereinafter
defined) and the payment of the Light Allowance (as hereafter defined) as
provided in Section 4.4.
4.3 LANDLORD'S WORK. Landlord hereby agrees, at its sole cost and
expense, to perform the Landlord's Work (as hereafter defined). Upon execution
and delivery of the this Lease,
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Landlord shall use good faith efforts to commence and thereafter diligently
pursue Landlord's Work to completion. Tenant hereby acknowledges and has
agreed to accept the Premises with existing leaky roof conditions and hereby
releases Landlord from any and all claims, losses, costs or damages sustained
or incurred by Tenant as a result of any damage to Tenant's Removable Property
or any other property located within the Premises as a result of roof leaks.
Tenant hereby agrees to use its best efforts to locate its personal property
and product in portions of the Premises so as to avoid damage to its personal
property and Tenant's Removable Property resulting from the existing leaky roof
conditions. Failure of the Landlord to complete Landlord's Work on or before
the Commencement Date shall not delay the Commencement Date nor shall such
failure affect the validity of this Lease or make Landlord liable to Tenant in
any respect. As used herein, the term "Landlord's Work" shall mean the
following roof repair work:
a) remove all loose gravel;
b) remove approximately 9,000 square feet of the existing roof system;
c) fill areas affected by removal described in (b) with 1" thick fiber
board
d) mechanically fasten 1/2" fiberboard over the entire roof area;
e) install new membrane over entire roof;
f) repair or replace drains or flashing as necessary.
As and to the extent that Landlord's Work involves the disturbance or
removal of asbestos containing materials (ACM), such ACM shall be removed and
disposed of by Landlord in accordance with applicable state and federal laws.
4.4 Tenant has advised Landlord that it intends to install new lamps
throughout the entire Premises. Subject to the terms and conditions
hereinafter set forth, Landlord shall provide Tenant with an allowance (the
"Light Allowance") in an amount not to exceed $3,000.00 to be applied by Tenant
against the cost of installing new lamps throughout the entire Premises.
Landlord's obligation to fund the Light Allowance shall be conditioned upon (i)
Tenant not being in default in the performance or observance of any term,
covenant, provision or condition contained in this Lease to be performed or
observed by the Tenant (ii) the fact that all such amounts shall be applied
toward the cost and expense of providing and installing new lamps throughout
the
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Premises as a portion of Tenant's agreement to install new lighting throughout
the entire Premises and (iii) the fact that Landlord shall retain any unused
portion of the Light Allowance not used by Tenant for the purposes stated
herein. Disbursements of the Light Allowance by Landlord shall be made to
Tenant upon submission of paid invoices for lamps installed in the Premises by
Tenant and Tenant's certification that such new lamps have been installed
throughout the Premises in accordance with the terms of this Lease. Tenant
hereby agrees to pay any costs associated with installing new lamps throughout
the Premises in excess of the Light Allowance.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
occupied by Tenant only for Permitted Uses.
(b) Tenant agrees to conform to the following provisions during the
Term of this Lease:
(i) Tenant shall cause all freight to be delivered to or removed from the
Building, the Property and the Premises in accordance with reasonable rules and
regulations established by Landlord therefor;
(ii) Tenant will not place on the exterior of the Premises (including both
interior and exterior surfaces of doors and interior surfaces of windows) or on
any part of the Building or the Property outside the Premises, any signs,
symbol, advertisements or the like visible to public view outside of the
Premises. Landlord will not unreasonably withhold consent for signs or
lettering on the entry doors to the Premises provided such signs conform to
building standards adopted by Landlord and Tenant has submitted a sketch of the
sign to be placed on such entry doors.
(iii) Tenant shall not perform any act or carry on any practice which may
injure the Premises, or any other part of the Building or the Property, or
cause offensive odors or loud noise or constitute a nuisance or menace to any
other tenant or tenants or other persons in the Building;
(iv) Tenant shall, in its use of the Premises, comply with the requirements of
all applicable governmental laws, rules and regulations; and
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(v) Tenant shall continuously throughout the Term of this Lease occupy the
Premises for the Permitted Uses and for no other purposes.
5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions (including, for the purposes hereof, wall-to-wall
carpeting), or improvements in or to the Premises without Landlord's prior
written consent. Any such alterations, additions or improvements shall (i) be
in accordance with complete plans and specifications prepared by Tenant and
approved in advance by Landlord; (ii) be performed in a good and workmanlike
manner and in compliance with all applicable laws; (iii) be performed and
completed in the manner required in Section 5.2(d) hereof; (iv) be made at
Tenant's sole expense and at such times as Landlord may from time to time
designate; and (v) become a part of the Premises and the property of Landlord.
(b) All articles of personal property and all business fixtures,
machinery and equipment and furniture owned or installed by Tenant solely at
its expense in the Premises ("Tenant's Removable Property") shall remain the
property of Tenant and may be removed by Tenant at any time prior to the
expiration of this Lease, provided that Tenant, at its expense, shall repair
any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
Premises. Whenever and as often as Tenant shall have knowledge (whether such
knowledge is provided by Landlord or by any other party or in any manner) that
any mechanic's lien shall have been filed against the Premises based upon any
act or interest of Tenant or of anyone claiming through Tenant, Tenant shall
forthwith take such actions by bonding, deposit or payment as will remove or
satisfy the lien.
(d) All of the Tenant's alterations, additions and installation of
furnishings shall be coordinated with any work being performed by Landlord and
in such manner as to maintain harmonious labor relations and not damage the
Property or interfere with Building construction or operation and, except for
installation of furnishings, shall be performed by Landlord's general
contractor or, at Landlord's election, provided that the cost of such work is
less than $10,000.00, by contractors or workmen first approved by Landlord.
Installation and moving of furnishings, equipment and the like shall be
performed only with labor compatible with that being employed by Landlord for
work in or to the Building and not to employ or permit the use of any
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labor or otherwise take any action which might result in a labor dispute
involving personnel providing services in the Building. Except for work by
Landlord's general contractor, Tenant before its work is started shall: secure
all licenses and permits necessary therefor; deliver to Landlord a statement of
the names of all its contractors and subcontractors and the estimated cost of
all labor and material to be furnished by them; and cause each contractor to
carry workmen's compensation insurance in statutory amounts covering all the
contractor's and subcontractor's employees and comprehensive public liability
insurance and property damage insurance with such limits as Landlord may
reasonably require but in no event less than a combined single limit of Two
Million and No/100ths ($2,000,000.00) Dollars (all such insurance to be written
in companies approved by Landlord and insuring Landlord and Tenant as well as
the contractors), and to deliver to Landlord certificates of all such
insurance. Tenant agrees to pay promptly when due the entire cost of any work
done on the Premises by Tenant, its agents, employees, or independent
contractors, and not to cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach to the Premises or the
Property and immediately (upon Tenant having knowledge of same regardless of
how Tenant shall obtain such knowledge) to discharge any such liens which may
so attach and, at the request of Landlord to deliver to Landlord security
satisfactory to Landlord against liens arising out of the furnishing of such
labor and material. Upon completion of any work done on the Premises by
Tenant, its agents, employees, or independent contractors, Tenant shall
promptly deliver to Landlord attested copies (or to the extent required by
Landlord) originals of lien releases and waivers executed by each contractor,
subcontractor, supplier, materialmen, architect, engineer or other party which
furnished labor, materials or other services in connection with such work and
pursuant to which all liens, claims and other rights of such party with respect
to labor, material or services furnished in connection with such work are
unconditionally released and waived. Tenant shall pay within thirty (30) days
after being billed therefor by Landlord, as an additional charge hereunder, one
hundred percent (100%) of any increase in real estate taxes on the Property not
otherwise billed to Tenant which shall, at any time after commencement of the
Term, result from any alteration, addition or improvement to the Premises made
by or on behalf of Tenant (including Tenant's original installation and
Tenant's subsequent alterations, additions, substitutions and improvements),
whether done prior to or after the commencement of the Term of this Lease.
In any case where Landlord shall require that work or improvements to
be made by Tenant in the Premises be performed by contractors or workmen
designated by Landlord, Landlord shall obtain three competitive bids from
reputable contractors selected
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by Landlord for such work and shall consult with Tenant as to the selection of
the contractor performing such work. In any and all events, Tenant shall have
the right to designate the contractor to be used from the three bids so
obtained.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise, neither this Lease nor the
term and estate hereby granted, nor any interest herein or therein, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred and that
neither the Premises nor any part thereof will be encumbered in any manner by
reason of any act or omission on the part of Tenant, or used or occupied, by
anyone other than Tenant, or for any use or purpose other than a Permitted Use,
or be sublet (which term, without limitation, shall include granting of
concessions, licenses and the like) in whole or in part, or be offered or
advertised for assignment or subletting.
(b) The provisions of paragraph (a) of this Section 6.1 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 Tenant immediately
prior to such merger, consolidation or transfer, (ii) proof satisfactory to
Landlord of such net worth shall have been delivered to Landlord at least 10
days prior to the effective date of any such transaction, and (iii) the
assignee agrees directly with Landlord, by written instrument in form
satisfactory to Landlord, to be bound by all the obligations of Tenant
hereunder including, without limitation, the covenant against further
assignment or subletting.
(c) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant, Landlord may, at any time
and from time to time, collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to the rent and other
charges herein reserved, but no such assignment, subletting, occupancy,
collection or modification of any provisions of this Lease shall be deemed a
waiver of this covenant, or the acceptance of the assignee, subtenant or
occupant as a tenant or a release of the
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original named Tenant from the further performance by the original named Tenant
hereunder. No assignment or subletting hereunder shall relieve Tenant from its
obligations hereunder and Tenant shall remain fully and primarily liable
therefor. No assignment or subletting, or occupancy shall affect Permitted
Uses.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
Landlord agrees to keep in good order, condition and repair the roof, public
areas, exterior walls (including exterior glass), sprinkler system, and
structure of the Building (including plumbing, mechanical and electrical
systems installed by Landlord but excluding any systems installed specifically
for Tenant's benefit or which are used exclusively by Tenant), all insofar as
they affect the Premises, except that Landlord shall in no event be responsible
to Tenant for the condition of glass in the Premises or for the doors (or
related glass and finish work) leading to the Premises, or for any condition in
the Premises or the Building caused by any act or neglect of Tenant, its
agents, employees, invitees or contractors. Landlord shall not be responsible
to make any improvements or repairs to the Building other than as expressly in
this Section 7.1 provided, unless expressly provided otherwise in this Lease.
(b) Landlord shall never be liable for any failure to make repairs
which Landlord has undertaken to make under the provisions of this Section 7.1
or elsewhere in this Lease, unless Tenant has given notice to Landlord of the
need to make such repairs, and Landlord has failed to commence to make such
repairs within a reasonable time after receipt of such notice, or fails to
proceed with reasonable diligence to complete such repairs.
(c) Any services which Landlord is required to furnish pursuant to
the provisions of this Lease may, at Landlord's option be furnished from time
to time, in whole or in part, by employees of Landlord or by the Manager of the
Property or by one or more third persons.
(d) Landlord shall (i) perform repairs and maintenance on the
lighting fixtures located in the parking area or in common areas of the
Property, (ii) remove snow and ice from the parking area and common walkways,
and (iii) perform landscaping duties in common areas of the Property.
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7.2 TENANT'S AGREEMENT. (a) Tenant will keep neat and clean and maintain
in good order, condition and repair the Premises and every part thereof
including, without limitation, all HVAC, mechanical, electrical and plumbing
systems which serve the Premises. Throughout the term of this Lease, Tenant
shall maintain in force and effect a maintenance contract with respect to the
HVAC system serving the Premises with an HVAC contractor regularly engaged in
maintenance of HVAC systems similar to the system servicing the Premises, which
contractor and the terms and provisions of the contract therefor shall be
subject to the reasonable approval of Landlord. Without limitation, Tenant
shall continually during the Term of this Lease maintain the Premises in
accordance with all laws (including, without limitation, the Americans with
Disabilities Act), codes and ordinances from time to time in effect and all
directions, rules and regulations of the proper officers of governmental
agencies having jurisdiction, and of the Boston Board of Fire Underwriters, and
shall, at Tenant's own expense, obtain all permits, licenses and the like
required by applicable law. Notwithstanding the foregoing or the provisions of
Article XII, Tenant shall be responsible for the cost of repairs which may be
necessary by reason of damage to the Building caused by any act or neglect of
Tenant or its agents, employees, contractors or invitees (including any damage
by fire or any other casualty arising therefrom).
(b) If repairs are required to be made by Tenant pursuant to the
terms hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the same with
reasonable dispatch after such demand, Landlord may (but shall not be required
to do so) make or cause such repairs to be made (the provisions of Section
14.18 being applicable to the costs thereof) and shall not be responsible to
Tenant for any loss or damage that may accrue to Tenant's stock or business by
reason thereof. Notwithstanding the foregoing, Landlord may elect to take
action hereunder immediately and without notice to Tenant if Landlord
reasonably believes an emergency to exist.
(c) If the Premises are now, or any time during the Term of this
Lease become a "Public Accommodation" as defined in the Americans with
Disabilities Act of 1990 (421 USC Sec. 12101 et seq.) as amended and all
regulations promulgated thereunder, as amended (the "ADA"), (i) the Landlord
shall be responsible for compliance with Title III of the ADA to the
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extent that the ADA imposes obligations on the design or the construction of,
or any alterations to, the Building (exclusive however of such matters as they
pertain to the Premises), (ii) Tenant shall be responsible for compliance with
Title III of the ADA to the extent that the ADA imposes obligations on the
design or the construction of, or any alterations to, the Premises (exclusive
however of those portions of the Building which are not a portion of the
Premises, where compliance shall be the responsibility of Landlord), and (iii)
Tenant shall be responsible for making any necessary modifications in its
policies, practices and procedures in connection with the operation of Tenant's
business in order to comply with the applicable provisions of the ADA.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon
any floor in the Premises exceeding the floor load per square foot of area
which such floor was designed to carry and which is allowed by law. Landlord
reserves the right to prescribe the weight and position of all business
machines and mechanical equipment, including safes, which shall be placed so as
to distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient, in
Landlord's judgment, to absorb and prevent vibration, noise and annoyance.
Tenant shall not move any safe, heavy machinery, heavy equipment, freight,
bulky matter or fixtures into or out of the Building without Landlord's prior
consent, which consent may include a requirement to provide insurance, naming
Landlord as an insured, in such amounts as Landlord may deem reasonable.
(b) If such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons
holding a Master Rigger's License to do such work, and that all work in
connection therewith shall comply with applicable laws and regulations. Any
such moving shall be at the sole risk and hazard of Tenant, and Tenant will
exonerate, indemnity and save Landlord harmless against and from any liability,
loss, injury, claim or suit resulting directly or indirectly from such moving.
7.4 BUILDING SERVICES. (a) Intentionally Omitted.
(b) Intentionally Omitted.
(c) Landlord reserves the right to curtail, suspend, interrupt and/or
stop the supply of water, sewage, electrical current, cleaning, and other
services, and to curtail, suspend, interrupt and/or stop use of entrances
and/or lobbies serving access to the Building, without thereby incurring any
liability to Tenant, when necessary by reason of accident or emergency, or for
repairs, alterations, replacements or improvements in the judgment of Landlord
desirable or necessary, or when prevented from supplying such services or use
by strikes, lockouts, difficulty in obtaining materials, accidents or any other
cause beyond Landlord's control, or by laws, orders or inability, by
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exercise of reasonable diligence, to obtain electricity, water, gas, steam,
coal, oil or other suitable fuel or power. No diminution or abatement of rent
or other compensation, nor any direct, indirect or consequential damages shall
or will be claimed by Tenant as a result of, nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of, any such
interruption, curtailment, suspension or stoppage in the furnishing of the
foregoing services or use, irrespective of the cause thereof. Failure or
omission on the part of Landlord to furnish any of the foregoing services or
use shall not be construed as an eviction of Tenant, actual or constructive,
nor entitle Tenant to an abatement of rent, nor to render the Landlord liable
in damages, nor release Tenant from prompt fulfillment of any of its covenants
under this Lease. To the extent within its control, in exercising its rights
pursuant to this Section 7.4(c), Landlord shall use good faith efforts to avoid
unnecessary interference with Tenant's use of the Premises and shall use good
faith efforts to promptly restore any such service or amenity so curtailed,
interrupted, stopped or suspended. In addition, Landlord shall provide
alternative means of access to the Premises in the event of a stoppage or
suspension of the normal means of access to and egress from the Premises.
7.5 ELECTRICITY AND NATURAL GAS. (a) Tenant shall receive electric
current and natural gas for the Premises from the public utility corporation
serving the Building and Landlord shall permit Landlord's existing wires,
risers, pipes, conduits and other electrical equipment of Landlord to be used
for such purpose. Tenant covenants and agrees that its use of electric current
shall not overburden existing Building systems nor preclude other tenants of
the Building, if any, from obtaining and receiving adequate electrical services
and its total connected load will not exceed the maximum load from time to time
permitted by applicable governmental regulations and the design capacity of
existing systems. Landlord shall not in any way be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur if,
during the Term of this Lease, either the quantity or character of electric
current or natural gas is changed or electric current or natural gas is no
longer available or suitable for Tenant's requirements due to a factor or cause
beyond Landlord's control. Tenant shall pay all charges for electricity and
natural gas used or consumed in the Premises in the time and manner provided in
Section 7.5(c).
(b) In order to insure that the foregoing requirements are not
exceeded and to avert possible adverse affect on the Building's electrical
system, Tenant shall not, without Landlord's prior consent, connect any
fixtures, appliances or equipment to the Building's electrical distribution
system other
15
than Tenant's material handling equipment, typewriters, word processors,
photocopiers, and other similar customary office equipment. From time to time
during the Term of this Lease, Landlord shall have the right to have an
electrical consultant selected by Landlord make a survey of Tenant's electric
usage, the result of which shall be conclusive and binding upon Landlord and
Tenant. In the event that such survey shows that Tenant has exceeded the
requirements set forth in paragraph (a), in addition to any other rights
Landlord may have hereunder, Tenant shall, upon demand, reimburse Landlord for
the costs of such survey.
(c) Tenant shall be responsible for the payment of all utilities used
and consumed in the Premises. Notwithstanding the foregoing, electricity and
natural gas used and consumed in the Premises is currently measured by separate
meters which are in the control of the Landlord. Landlord shall install
separate check meters measuring the electricity and natural gas used and
consumed in the Premises and shall bill Tenant for such use and consumption in
the manner hereinafter provided. Landlord shall bill Tenant monthly in arrears
for electricity and natural gas used and consumption as measured by said check
meters as being used and consumed in the Premises. From time to time, but not
more than once per calendar month, Landlord shall invoice Tenant for
electricity and natural gas used and consumed in the Premises as measured by
such check meters. Tenant shall pay Landlord such amounts as additional rent
hereunder on or before the date which is 30 days after the date of each such
invoice. Payments for electricity and natural gas used and consumed in the
Premises during the last month of the Initial Term hereof shall be payable by
Tenant within thirty days after being invoiced therefor. Landlord shall have
the same rights and remedies against Tenant for failure to pay charges payable
under this Section 7.5(c) as Landlord has against Tenant for failure to pay
Basic Rent and Escalation Charges when due hereunder.
ARTICLE VIII
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this
Article, the term "Tax Year" shall mean the twelve-month period commencing on
the July 1 immediately preceding the Commencement Date and each twelve-month
period thereafter commencing during the Term of this Lease; and the term
"Taxes" shall mean real estate taxes, betterments and special assessments
assessed with respect to the Property for any Tax Year.
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(b) Tenant shall pay to Landlord, as an Escalation Charge, an amount
equal to the amount of Taxes attributable to each Tax Year, multiplied by the
Escalation Factor, such amount to be apportioned for any fraction of a Tax Year
in which the Commencement Date falls or the Term of this Lease ends.
Notwithstanding anything contained in Section 8.1(a) or this Section 8.1(b) to
the contrary, for purposes of calculating the payment to be made by Tenant
pursuant to this Section 8.1(b), the term "Taxes" applicable to each respective
Tax Year shall exclude real estate taxes for such Tax Year which are in excess
of $.90 (ninety cents) per rentable square foot contained in the Property.
(c) Estimated payments by Tenant on account of Taxes shall be made
monthly and at the time and in the fashion herein provided for the payment of
Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the time real estate tax payments are due a sum equal to
Tenant's required payments, as estimated by Landlord from time to time, on
account of Taxes for the then current Tax Year. Promptly after receipt by
Landlord of bills for such Taxes, Landlord shall advise Tenant of the amount
thereof and the computation of Tenant's payment on account thereof. If
estimated payments theretofore made by Tenant for the Tax Year covered by such
bills exceed the required payments on account thereof for such Year, Landlord
shall credit the amount of overpayment against subsequent obligations of Tenant
on account of Taxes (or refund such overpayment if the Term of this Lease has
ended and Tenant has no further obligation to Landlord); but if the required
payments on account thereof for such Year are greater than estimated payments
theretofore made on account thereof for such Year, Tenant shall make payment to
Landlord within 30 days after being so advised by Landlord. Landlord shall have
the same rights and remedies for the non-payment by Tenant of any payments due
on account of Taxes as Landlord has hereunder for the failure of Tenant to pay
Basic Rent.
8.2 ABATEMENT. If Landlord shall receive any tax refund or reimbursement
of Taxes or sum in lieu thereof with respect to any Tax Year which is not due
to vacancies in the Building, then out of any balance remaining thereof after
first deducting (i) Landlord's expenses reasonably incurred in obtaining such
refund and (ii) any amounts in excess of $.90 per rentable square foot
contained in the Property, Landlord shall pay to Tenant, provided there does
not then exist a Default of Tenant, an amount equal to the balance remaining of
such refund or reimbursement or sum in lieu thereof (exclusive of any interest)
multiplied by the Escalation Factor; provided, that in no event shall Tenant be
entitled to receive more than the payments made by Tenant on
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account of real estate taxes for such Year pursuant to paragraph (b) of Section
8.1.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall replace
the current method of assessment of real estate taxes in whole or in part, or
the type thereof, or if additional types of taxes are imposed upon the Property
or Landlord relating to the Property, Tenant agrees that Tenant shall pay a
proportionate share of the same as an additional charge computed in a fashion
consistent with the method of computation herein provided, to the end that
Tenant's share thereof shall be, to the maximum extent practicable, comparable
to that which Tenant would bear under the foregoing provisions.
(b) If a tax (other than Federal or State net income tax) is assessed
on account of the rents or other charges payable by Tenant to Landlord under
this Lease, Tenant agrees to pay the same as an additional charge within ten
(10) days after billing therefor, unless applicable law prohibits the payment
of such tax by Tenant.
ARTICLE IX
OPERATING EXPENSES
9.1 DEFINITIONS. For the purposes of this Article, the following terms
shall have the following respective meanings:
Operating Year: Each calendar year in which any part of the
Term of this Lease shall fall.
Operating Expenses: The aggregate costs or expenses reasonably
incurred by Landlord with respect to the operation, administration, cleaning,
repair, maintenance and management of the Building and/or the Property (but
specifically excluding Utility Expenses) all as set forth in Exhibit E annexed
hereto, provided that, if during any portion of the Operating Year for which
Operating Expenses are being computed, less than all of Building Rentable Area
and/or Property Rentable Area was occupied by tenants or if Landlord is not
supplying all tenants with the services being supplied hereunder, actual
Operating Expenses Allocable to the Building and actual Operating Expenses
Allocable to the Property incurred shall be reasonably extrapolated by Landlord
on an item by item basis to the estimated Operating Expenses Allocable to the
Building and/or Operating Expenses Allocable to the Property that would have
been incurred if the Building were fully occupied for such Operating Year and
such services were being supplied to all tenants, and such
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extrapolated amount shall, for the purposes hereof, be deemed to be the
Operating Expenses Allocable to the Building and/or Operating Expenses
Allocable to the Property for such Operating Year. Landlord's determination
as to allocation of Operating Expenses shall be conclusive and binding upon
Landlord and Tenant.
Operating Expenses Allocable to the Building: shall mean those
Operating Expenses described in Exhibit E which Landlord determines are
allocable to the Building and the land parcel upon which it is situated (rather
than those which are allocable to the entire Property which includes all
buildings and land parcels comprising the Property inclusive of the Building
and the land parcel upon which it is situated).
Operating Expenses Allocable to the Property: shall mean those
Operating Expenses described in Exhibit E which Landlord determines are
allocable to the entire Property (rather than those which Landlord determines
to be Operating Expenses Allocable to the Building).
Utility Expenses: The aggregate costs or expenses reasonably
incurred by Landlord with respect to supplying electricity (other than
electricity supplied to those portions of the Building leased to tenants), oil,
steam, gas, water and sewer and other utilities supplied to the Property and
not paid for directly by tenants, provided that, if during any portion of the
Operating Year for which Utility Expenses are being computed, less than all
Property Rentable Area was occupied by tenants or if Landlord is not supplying
all tenants with the utilities being supplied hereunder, actual utility
expenses incurred shall be reasonably extrapolated by Landlord on an
item-by-item basis to the estimated Utility Expenses that would have been
incurred if the Property were fully occupied for such Operating Year and such
utilities were being supplied to all tenants, and such extrapolated amount
shall, for the purposes hereof, be deemed to be the Utility Expenses for such
Operating Year.
9.2 TENANT'S PAYMENTS. (a) Tenant shall pay to Landlord, as an Escalation
Charge, an amount equal to (i) Operating Expenses Allocable to the Building for
each Operating Year multiplied by (ii) the Building Escalation Factor, such
amount to be apportioned for any partial Operating Year in which the
Commencement Date falls or the Term of this Lease ends. In addition, Tenant
shall pay to Landlord as an Escalation Charge, an amount equal to (i) Operating
Expenses Allocable to the Property for each Operating Year multiplied by (ii)
the Escalation Factor, such amount to be apportioned for any partial Operating
Year in which the Commencement Date falls or the Term of this Lease ends.
Notwithstanding the provisions of this
19
Section 9.2(a) to the contrary, the Tenant's obligation pursuant to this
Section 9.2(a) during the first 12 full calendar months of the Initial Term
shall not exceed $93,568.00 in the aggregate.
(b) Tenant shall pay to Landlord, as an Escalation Charge, an amount
equal to (i) Utility Expenses for each Operating Year multiplied by (ii) the
Escalation Factor, such amount to be apportioned for any partial Operating Year
in which the Commencement Date falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of Operating Expenses
Allocable to the Building and Operating Expenses Allocable to the Property
shall be made monthly and at the time and in the fashion herein provided for
the payment of Basic Rent. The monthly amount so to be paid to Landlord shall
be sufficient to provide Landlord by the end of each Operating Year a sum equal
to Tenant's required payments, as estimated by Landlord from time to time
during each Operating Year, on account of Operating Expenses Allocable to the
Building and Operating Expenses Allocable to the Property and Utility Expenses
for such Operating Year. After the end of each Operating Year, Landlord shall
submit to Tenant a reasonably detailed accounting of Operating Expenses
Allocable to the Building and Operating Expenses Allocable to the Property and
Utility Expenses for such Operating Year, and Landlord shall certify to the
accuracy thereof. If estimated payments theretofore made for such Operating
Year by Tenant exceed Tenant's required payment on account thereof for such
Operating Year, according to such statement, Landlord shall credit the amount
of overpayment against subsequent obligations of Tenant with respect to
Operating Expenses Allocable to the Building or Operating Expenses Allocable to
the Property and Utility Expenses (or refund such overpayment if the Term of
this Lease has ended and Tenant has no further obligation to Landlord), but, if
the required payments on account thereof for such Operating Year are greater
than the estimated payments (if any) theretofore made on account thereof for
such Operating Year, Tenant shall make payment to Landlord within thirty (30)
days after being so advised by Landlord. Landlord shall have the same rights
and remedies for the nonpayment by Tenant of any payments due on account of
Operating Expenses Allocable to the Building and Operating Expenses Allocable
to the Property and Utility Expenses as Landlord has hereunder for the failure
of Tenant to pay Basic Rent.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
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10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to defend, indemnity and save
harmless Landlord from and against all claims, loss, liability, costs and
damages of whatever nature arising from any default by Tenant under this Lease
and the following: (i) from any accident, injury, death or damage whatsoever to
any person, or to the property of any person, occurring in or about the
Premises; (ii) from any accident, injury, death or damage occurring outside of
the Premises but on the Property, where such accident, damage or injury results
or is claimed to have resulted from an act or omission on the part of Tenant or
Tenant's agents, employees, invitees or independent contractors; or (iii) in
connection with the conduct or management of the Premises or of any business
therein, or any thing or work whatsoever done, or any condition created (other
than by Landlord) in or about the Premises; and, in any case, occurring after
the date of this Lease, until the end of the Term of this Lease, and thereafter
so long as Tenant is in occupancy of the Premises. This indemnity and hold
harmless agreement shall include indemnity against all costs, expenses and
liabilities incurred in, or in connection with, any such claim or proceeding
brought thereon, and the defense thereof, including, without limitation,
reasonable attorneys' fees and costs at both the trial and appellate levels.
Nothing contained in this Section 10.1 shall be deemed or construed to
exculpate Landlord from its own negligence or the negligence of its agents,
servants or employees. The provisions of this Section 10.1 shall survive the
expiration or any earlier termination of this Lease.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force
from the date upon which Tenant first enters the Premises for any reason,
throughout the Term of this Lease, and thereafter so long as Tenant is in
occupancy of any part of the Premises, a policy of general liability and
property damage insurance (including contractual liability, independent
contractor's hazard and completed operations coverage) under which Landlord,
Manager (and such other persons as are in privity of estate with Landlord as
may be set out in notice from time to time) and Tenant are named as insureds,
and under which the insurer agrees to defend, indemnify and hold Landlord,
Manager, and those in privity of estate with Landlord, harmless from and
against all cost, expense and/or liability arising out of or based upon any and
all claims, accidents, injuries and damages set forth in Section 10.1. Each
such policy shall be non-cancellable and non-amendable with respect to
Landlord, Manager and Landlord's said designees without thirty (30) days' prior
notice to Landlord and shall be in at least the amounts of the Initial Public
Liability Insurance specified in Section 1.3 or such greater amounts as
Landlord shall from time to time request,
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and a duplicate original or certificate thereof shall be delivered to Landlord.
10.3 TENANT'S RISK. Except for matters resulting from Landlord's
negligence or the negligence of its agents, servants or employees and to the
maximum extent this agreement may be made effective according to law, Tenant
agrees to use and occupy the Premises and to use such other portions of the
Property as Tenant is herein given the right to use at Tenant's own risk.
Landlord shall have no responsibility or liability for any loss of or damage to
Tenant's Removable Property or for any inconvenience, annoyance, interruption
or injury to business arising from Landlord's making any repairs or changes
which Landlord is permitted by this Lease or required by law to make in or to
any portion of the Premises or other sections of the Property, or in or to the
fixtures, equipment or appurtenances thereof. Tenant shall carry "all-risk"
property insurance on a "replacement cost" basis (including so-called
improvements and betterments), and provide a waiver of subrogation as required
in Section 14.20. The provisions of this Section 10.3 shall be applicable from
and after the execution of this Lease and until the end of the Term of this
Lease, and during such further period as Tenant may use or be in occupancy of
any part of the Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement
may be made effective according to law, Tenant agrees that Landlord shall not
be responsible or liable to Tenant, or to those claiming by, through or under
Tenant, for any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or any part of the Property or
otherwise. The provisions of this Section 10.4 shall survive the expiration or
any earlier termination of this Lease.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. Landlord shall have the right upon 24 hours
advance written or oral notice to Tenant (except in the case of emergency,
where no notice shall be required) to enter the Premises at all reasonable
hours for the purpose of inspecting or making repairs to the same, and Landlord
shall also have the right to make access available at all reasonable hours to
prospective or existing mortgagees, purchasers or tenants of any part of the
Property. In exercising its rights under this
22
Section 11.1, Landlord hereby agrees that (i) an agent or representative of
Tenant shall be permitted to accompany Landlord's agents during such entry and
(ii) subject to all other applicable provisions of this Lease, such entry shall
be at Landlord's risk.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
casualty, Basic Rent and Escalation Charges payable by Tenant shall abate
proportionately for the period in which, by reason of such damage, there is
substantial interference with Tenant's use of the Premises, having regard to
the extent to which Tenant may be required to discontinue Tenant's use of all
or a portion of the Premises, but such abatement or reduction shall end if and
when Landlord shall have substantially restored the Premises (excluding any
alterations, additions or improvements made by Tenant pursuant to Section 5.2)
to the condition in which they were prior to such damage. If the Premises shall
be affected by any exercise of the power of eminent domain, Basic Rent and
Escalation Charges payable by Tenant shall be justly and equitably abated and
reduced according to the nature and extent of the loss of use thereof suffered
by Tenant. In no event shall Landlord have any liability for damages to Tenant
for inconvenience, annoyance, or interruption of business arising from such
fire, casualty or eminent domain.
12.2 LANDLORD'S RIGHT OF TERMINATION. If the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially damaged"
meaning damage of such a character that the same cannot, in ordinary course,
reasonably be expected to be repaired within sixty (60) days from the time the
repair work would commence), or if any part of the Building is taken by any
exercise of the right of eminent domain, then Landlord shall have the right to
terminate this Lease (even if Landlord's entire interest in the Premises may
have been divested) by giving notice of Landlord's election so to do within 90
days after the occurrence of such casualty or the effective date of such
taking, whereupon this Lease shall terminate thirty (30) days after the date of
such notice with the same force and effect as if such date were the date
originally established as the expiration date hereof.
12.3 RESTORATION. If this Lease shall not be terminated pursuant to
Section 12.2, Landlord shall thereafter use due diligence to restore the
Premises (excluding any alterations,
23
additions or improvements made by Tenant) to proper condition for Tenant's use
and occupation, provided that Landlord's obligation shall be limited to the
amount of insurance proceeds available therefor. If, for any reason, such
restoration shall not be substantially completed within six months after the
expiration of the 90-day period referred to in Section 12.2 (which six-month
period may be extended for such periods of time as Landlord is prevented from
proceeding with or completing such restoration for any cause beyond Landlord's
reasonable control, but in no event for more than an additional three months),
Tenant shall have the right to terminate this Lease by giving notice to
Landlord thereof within thirty (30) days after the expiration of such period
(as so extended). Upon the giving of such notice, this Lease shall cease and
come to an end without further liability or obligation on the part of either
party unless, within such 30-day period, Landlord substantially completes such
restoration. Such right of termination shall be Tenant's sole and exclusive
remedy at law or in equity for Landlord's failure so to complete such
restoration.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and
Tenant hereby grants and assigns to Landlord, all rights to recover for damages
to the Property and the leasehold interest hereby created, and to compensation
accrued or hereafter to accrue by reason of such taking, damage or destruction,
and by way of confirming the foregoing, Tenant hereby grants and assigns, and
covenants with Landlord to grant and assign to Landlord, all rights to such
damages or compensation. Nothing contained herein shall be construed to prevent
Tenant from, at its sole cost and expense, prosecuting a separate condemnation
proceeding with respect to a claim for the value of any of Tenant's Removable
Property installed in the Premises by Tenant at Tenant's expense and for
relocation expenses, provided that such action shall not affect the amount of
compensation otherwise recoverable by Landlord from the taking authority.
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this
Lease any one or more of the following events (herein referred to as a "Default
of Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation Charges or other
sums payable as additional charges hereunder when due; or
24
(ii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or observed, or
Tenant shall desert or abandon the Premises or the Premises shall become, or
appear to have become vacant (regardless whether the keys shall have been
surrendered or the rent and all other sums due shall have been paid), and
Tenant shall fail to remedy the same within thirty (30) days after notice to
Tenant specifying such neglect or failure, or if such failure is of such a
nature that Tenant cannot reasonably remedy the same within such thirty (30)
day period, Tenant shall fail to commence promptly to remedy the same and to
prosecute such remedy to completion with diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition in bankruptcy or shall be adjudicated bankrupt
or insolvent, or shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief for itself under any present or future Federal, State or other statute,
law or regulation for the relief of debtors, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of Tenant
or of all or any substantial part of its properties, or shall admit in writing
its inability to pay its debts generally as they become due; or
(v) A petition shall be filed against Tenant in bankruptcy or under any
other law seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future
Federal, State or other statute, law or regulation and shall remain undismissed
or unstayed for an aggregate of sixty (60) days (whether or not consecutive),
or if any debtor in possession (whether or not Tenant) trustee, receiver or
liquidator of Tenant or of all or any substantial part of its properties or of
the Premises shall be appointed without the consent or acquiescence of Tenant
and such appointment shall remain unvacated or unstayed for an aggregate of
sixty (60) days (whether or not consecutive); or
(vi) If a Default of Tenant of the kind set forth in clauses (i) or (ii)
above shall occur and if either (a) Tenant shall cure such Default within the
applicable grace period or (b) Landlord shall, in its sole discretion , permit
Tenant to cure such Default after the applicable grace period has expired, and
an event which would constitute a similar Default if not cured within the
applicable grace period shall occur more than once
25
within the next 365 days, whether or not such event is cured within the
applicable grace period;
then in any such case (1) if such Default of Tenant shall occur prior
to the Commencement Date, this Lease shall ipso facto, and without further act
on the part of Landlord, terminate, and (2) if such Default of Tenant shall
occur after the Commencement Date, Landlord may terminate this Lease by notice
to Tenant, and thereupon this Lease shall come to an end as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Term of this Lease, and Tenant will then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
(b) If this Lease shall be terminated as provided in this Article, or
if any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the Premises shall be taken or occupied by someone
other than Tenant, then Landlord may, without notice, re-enter the Premises,
either by force, summary proceedings, ejectment or otherwise, and remove and
dispossess Tenant and all other persons and any and all property from the same,
as if this Lease had not been made, and Tenant hereby waives the service of
notice of intention to re-enter or to institute legal proceedings to that end.
(c) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what would have been the
Term of this Lease in the absence of such termination, and whether or not the
Premises shall have been relet, shall be liable to Landlord for, and shall pay
to Landlord, as liquidated current damages, the Basic Rent, Escalation Charges
and other sums which would be payable hereunder if such termination had not
occurred, less the net proceeds, if any, of any reletting of the Premises,
after deducting all expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, advertising, expenses of employees, alteration costs
and expenses of preparation for such reletting. Tenant shall pay such current
damages to Landlord monthly on the days which the Basic Rent would have been
payable hereunder if this Lease had not been terminated.
(d) At any time after such termination, whether or not Landlord shall
have collected any such current damages, as liquidated final damages and in
lieu of all such current damages beyond the date of such demand, at Landlord's
election Tenant shall pay to Landlord and amount equal to the excess, if any,
of the Basic Rent, Escalation Charges and other sums as hereinbefore
26
provided which would be payable hereunder from the date of such demand
(assuming that, for the purposes of this paragraph, annual payments by Tenant
on account of Taxes, Utility Expenses and Operating Expenses would be the same
as the payments required for the immediately preceding Operating or Tax Year)
for what would be the then unexpired Term of this Lease if the same had
remained in effect, over the then fair net rental value of the Premises for the
same period.
(e) In the case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceeding or otherwise, Landlord shall use good faith
efforts to mitigate its damages resulting from such action and may (i) re-let
the Premises or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Term of this Lease and may grant concessions or free rent to the
extent that Landlord considers advisable and necessary to re-let the same and
(ii) may make such reasonable alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable and necessary for
the purpose of reletting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release Tenant
from liability hereunder as aforesaid. Subject to the terms of this Section
(e), Landlord shall in no event be liable in any way whatsoever for failure to
re-let the Premises, or, in the event that the Premises are re-let, for failure
to collect the rent under such re-letting. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed, or in the event of Landlord
obtaining possession of the Premises, by reason of the violation by Tenant of
any of the covenants and conditions of this Lease.
(f) If a Guarantor of this Lease is named in Section 1.2, the
happening of any of the events described in paragraphs (a)(iv) or (a)(v) of
this Section 13.1 with respect to the Guarantor shall constitute a Default of
Tenant hereunder.
(g) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled to lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for.
(h) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and
27
expenses) in enforcing its rights hereunder or occasioned by any Default of
Tenant shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT. (a) Except as otherwise expressly set forth in
Section 13.2(b) hereof, Landlord shall in no event be in default of the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have unreasonably failed to perform such obligation within a
period of time reasonably required to correct any such default, after notice by
Tenant to Landlord specifying wherein Landlord has failed to perform any such
obligations.
(b) If repairs are required to be made or provided by Landlord
pursuant to the terms of this Lease and Landlord shall fail to make or perform
same within the time and manner required by all other applicable provisions of
this Lease, Tenant may demand that Landlord commence such repairs within thirty
(30) days after written notice that such repairs are not being performed; and
if Landlord refuses or neglects to commence such repairs within such thirty
(30) day period and shall thereafter fail to complete the same with reasonable
dispatch after such demand, Tenant may make or cause such repairs to be made
and charge Landlord for reasonable repair costs incurred; however, Landlord
shall not be responsible to Tenant for any loss or damage that may accrue to
Tenant's stock business or Tenant's Removable Property by reason thereof.
Notwithstanding the foregoing, Tenant may elect to take action permitted to be
taken hereunder by Tenant immediately (but upon written or oral notice to
Landlord to the extent possible) if Tenant reasonably believes an emergency to
exist. Notwithstanding the foregoing, Tenant shall have no right to make and
shall not make, without the prior written consent of Landlord, repairs to any
portion of the Premises, Building or the Property which are to be made by
Landlord related to the furnishing of base building services, including but not
limited to structural elements of the Building including the roof, mechanical,
electrical, plumbing and general HVAC services (except routine maintenance of
HVAC systems or those matters for which Tenant is responsible under this
Lease). Landlord shall reimburse Tenant for reasonable costs incurred by
Tenant in performing such repair obligations of Landlord in accordance with
this Section 13.2(b) within 45 days after submission of detailed paid invoices
therefor by Tenant.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
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14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not
do or permit anything to be done in or upon the Premises, or bring in anything
or keep anything therein, which shall increase the rate of property or
liability insurance on the Premises or of the Building above the standard rate
applicable to premises being occupied for Permitted Uses; and Tenant further
agrees that, in the event that Tenant shall do any of the foregoing, Tenant
will promptly pay to Landlord, on demand, any such increase resulting
therefrom, which shall be due and payable as an additional charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of
any action or non-action on the part of the other, no matter how long the same
may continue, shall never be a waiver by Tenant or Landlord, respectively, of
any of the other's rights hereunder. Further, no waiver at any time of any of
the provisions hereof by Landlord or Tenant shall be construed as a waiver of
any of the other provisions hereof, and a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at any subsequent time of
the same provisions. The consent or approval of Landlord or Tenant to or of any
action by the other requiring such consent or approval shall not be construed
to waive or render unnecessary Landlord's or Tenant's consent or approval to or
of any subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser
amount than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account of the earliest installment of any payment due
from Tenant under the provisions hereof. The acceptance by Landlord of a check
for a lesser amount with an endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without prejudice
to any other rights or remedies which Landlord may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Basic Rent and Escalation Charges
and observing, keeping and performing all of the other terms and provisions of
this Lease on Tenant's part to be observed, kept and performed, shall lawfully,
peaceably and quietly have, hold, occupy and enjoy the Premises during the term
hereof, without hindrance or ejection by any persons lawfully claiming under
Landlord to have title to the Premises superior to Tenant; the foregoing
covenant of quiet enjoyment is in lieu of any other covenant, express or
implied.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely
to Landlord's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it
29
being specifically agreed that Landlord (original or successor) shall never be
personally liable for any such judgment, or for the payment of any monetary
obligation to Tenant. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise have to
obtain injunctive relief against Landlord or Landlord's successors in interest,
or to take any action not involving the personal liability of Landlord
(original or successor) to respond in monetary damages from Landlord's assets
other than Landlord's equity interest in the Property.
(b) With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to furnish
the same when prevented from doing so by Force Majeure, strike, lockout,
breakdown, accident, order or regulation of or by any governmental authority,
or failure of supply, or inability by the exercise of reasonable diligence to
obtain supplies, parts or employees necessary to furnish such services, or
because of war or other emergency, or for any cause beyond Landlord's
reasonable control, or for any cause due to any act or neglect of Tenant or
Tenant's servants, agents, employees, licensees or any person claiming by,
through or under Tenant; nor shall any such failure give rise to any claim in
Tenant's favor that Tenant has been evicted, either constructively or actually,
partially or wholly.
(c) In no event shall Landlord ever be liable to Tenant for any loss
of business or any other indirect or consequential damages suffered by Tenant
from whatever cause.
(d) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same shall be made subject to the
provisions of Section 7.1 and may be made during normal business hours and
Landlord shall have no liability for damages to Tenant for inconvenience,
annoyance or interruption of business arising therefrom.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any
person, firm or other entity that it holds a mortgage or a ground lease which
includes the Premises, no notice from Tenant to Landlord alleging any default
by Landlord shall be effective unless and until a copy of the same is given to
such holder or ground lessor (provided Tenant shall have been furnished with
the name and address of such holder or ground lessor), and the curing of any of
Landlord's defaults by such holder or ground lessor shall be treated as
performance by Landlord.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
assignment by Landlord of Landlord's interest in
30
this Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage on property which includes
the Premises, Tenant agrees that the execution thereof by Landlord, and the
acceptance thereof by the holder of such mortgage, shall never be treated as an
assumption by such holder of any of the obligations of Landlord hereunder
unless such holder shall, by notice sent to Tenant, specifically otherwise
elect and that, except as aforesaid, such holder shall be treated as having
assumed Landlord's obligations hereunder only upon foreclosure of such holder's
mortgage and the taking of possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases Landlord's
entire interest in the Property back to the seller thereof be treated as an
assumption by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord's
obligations hereunder. In any such event, this Lease shall be subject and
subordinate to the lease to such purchaser. For all purposes, such
seller-lessee, and its successors in title, shall be the Landlord hereunder
unless and until Landlord's position shall have been assumed by such
purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in the event
of any transfer of title to the Property by Landlord, Landlord shall from and
after the date of such transfer, be entirely freed and relieved from the
performance and observance of all covenants and obligations hereunder which are
to be performed or observed from and after the date of such transfer.
14.7 RULES AND REGULATIONS. Tenant shall abide by rules and regulations
from time to time established by Landlord, it being agreed that such rules and
regulations will be established and applied by Landlord in a non-discriminatory
fashion, such that all rules and regulations shall be generally applicable to
other tenants of the Building of similar nature to the Tenant named herein.
Landlord agrees to use reasonable efforts to insure that any such rules and
regulations are uniformly enforced, but Landlord shall not be liable to Tenant
for violation of the same by any other tenant or occupant of the Building, or
persons having business with them. In the event that there shall be any
conflict between such rules and regulations and the provisions of this Lease,
the provisions of this Lease shall control.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums
under this Lease designated or payable as an additional charge, Landlord shall
have the same rights and remedies as Landlord has hereunder for failure to pay
Basic Rent.
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14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by Law.
14.10 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the
terms hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if Tenant
shall be an individual, upon and to his heirs, executors, administrators,
successors and assigns. Each term and each provision of this Lease to be
performed by Tenant shall be construed to be both a covenant and a condition.
The reference contained to successors and assigns of Tenant is not intended to
constitute a consent to assignment by Tenant, but has reference only to those
instances in which Landlord may later give consent to a particular assignment
as required by those provisions of Article VI hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but each party
hereto agrees, on the request of the other, to execute a so-called notice of
lease in form recordable and complying with applicable law and reasonably
satisfactory to Landlord's attorneys. In no event shall such document set
forth the rent or other charges payable by Tenant under this Lease; and any
such document shall expressly state that it is executed pursuant to the
provisions contained in this Lease, and is not intended to vary the terms and
conditions of this Lease.
14.12 NOTICES. Whenever, by the terms of this Lease, notices, consents or
approvals shall or may by given either to Landlord or to Tenant, such notices,
consents or approvals shall be in writing and shall be sent by registered or
certified mail, return receipt requested, postage prepaid:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address with a copy Addressed to Landlord at Talbot Operations N.V., c/o
Citibank, N.A., Real Estate Investments Management, 909 Third Avenue, New York,
NY 10043, Attn: Mr. Richard Gamba (or to such other address as may from time to
time hereafter by designated by Landlord by like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original Address,
Attn: General Counsel (or to such other address
32
or addresses as may from time to time hereafter be designated by Tenant by like
notice.)
All such notices shall be effective when deposited in the United States
Mail within the Continental United States, provided that the same are received
in ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall become
effective and binding only upon the execution and delivery hereof by both
Landlord and Tenant. All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein and this
Lease expressly supersedes any proposals or other written documents relating
hereto. this Lease may be modified or altered only by written agreement between
Landlord and Tenant, and no act or omission of any employee or agent of
Landlord shall alter, change or modify any of the provisions hereof.
14.14 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein shall
in no way be held to explain, modify, amplify or aid in the interpretation,
construction, or meaning of the provisions of this Lease.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate
to any mortgage or ground lease from time to time encumbering the Premises,
whether executed and delivered prior to or subsequent to the date of this
Lease, if the holder of such mortgage or ground lease shall so elect. If this
Lease is subordinate to any mortgage or ground lease and the holder thereof (or
successor) shall succeed to the interest of Landlord, at the election of such
holder (or successor) Tenant shall attorn to such holder and this Lease shall
continue in full force and effect between such holder (or successor) and
Tenant. Tenant agrees to execute such instruments of subordination or
attornment in confirmation of the foregoing agreements as such holder may
reasonably request. Tenant hereby agrees that failure of Tenant to execute and
deliver any agreement to be delivered by Tenant pursuant to the terms hereof
shall be deemed a Default of Tenant hereunder entitling Landlord to the same
rights and remedies against Tenant as a failure by Tenant to pay Basic Rent
when due under this Lease.
Landlord hereby covenants and agrees with Tenant that Landlord shall
request a non-disturbance, attornment and recognition agreement for its
existing mortgagee and hereby covenants and agrees to use good faith efforts to
obtain a non-
33
disturbance, attornment and recognition agreement to be entered into by and
between Landlord, Tenant and the existing mortgagee on the property, all in
form and substance reasonably satisfactory to Landlord, Tenant and the existing
mortgage. Failure of Landlord to obtain such an agreement (provided that
Landlord has complied with its obligations hereunder) shall not affect the
validity of this Lease nor entitle Tenant to any rights, actions or remedies
against Landlord.
14.16 STATUS REPORT. Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees, ground
lessors, or the like, the then current status of performance hereunder, either
party, on the request of the other made from time to time, will promptly
furnish to Landlord, or the holder of any mortgage or ground lease encumbering
the Premises, or to Tenant, as the case may be, a statement of the status of
any matter pertaining to this Lease, including, without limitation,
acknowledgement that (or the extent to which) each party is in compliance with
its obligations under the terms of this Lease.
14.17 SECURITY DEPOSIT. Intentionally Omitted.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
required, to pay such sums or to do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or
neglect of Tenant to perform any of the provisions of this Lease, and in the
event of the exercise of such right by Landlord, Tenant agrees to pay to
Landlord forthwith upon demand all such sums, together with interest thereon at
a rate equal to 3% over the prime rate in effect from time to time at the Bank
of Boston (but in no event greater than 18% per annum), as an additional
charge. Any payment of Basic Rent, Escalation Charges or other sums payable
hereunder not paid when due shall, at the option of Landlord, bear interest at
a rate equal to 3% over the prime rate in effect from time to time at the Bank
of Boston (but in no event greater than 18% per annum) from the date which is 5
days after the due date thereof and shall be payable forthwith on demand by
Landlord, as an additional charge.
14.19 HOLDING OVER. Any holding over by Tenant after the expiration of the
Term of this Lease shall be treated as a daily tenancy at sufferance at a rate
equal to the then fair rental value of the Premises but in no event less than
twice the sum of (i) Fixed Rent and (ii) Escalation Charges in effect on the
expiration date. Tenant shall also pay to Landlord all damages, direct and/or
indirect (including any loss of a tenant or rental income), sustained by reason
of any such holding over. Otherwise, such holding over shall be on the terms
and conditions set forth
34
in this Lease as far as applicable. The Landlord may, but shall not be required
to, and only on written notice to Tenant after the expiration of the Term
hereof, elect to treat such holding over as an extension of the Term of this
Lease for a period of up to one (1) year, as designated by Landlord, such
extension to be on the terms and conditions set forth in this Section 14.19.
14.20 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the
following provision shall not make it impossible to secure insurance coverage
obtainable from responsible insurance companies doing business in the locality
in which the Property is located (even though extra premium may result
therefrom) Landlord and Tenant mutually agree that any property damage
insurance carried by either shall provide for the waiver by the insurance
carrier of any right of subrogation against the other, and they further
mutually agree that, with respect to any damage to property, the loss from
which is covered by insurance then being carried by them, respectively, the one
carrying such insurance and suffering such loss releases the other of and from
any and all claims with respect to such loss to the extent of the insurance
proceeds paid with respect thereto.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of
the Term of this Lease, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition and
repair, together with all alterations, additions and improvements which may
have been made or installed in, on or to the Premises prior to or during the
Term of this Lease, excepting only ordinary wear and use and damage by fire or
other casualty for which, under other provisions of this Lease, Tenant has no
responsibility of repair and restoration. Tenant shall remove all of Tenant's
Removable Property and, to the extent specified by Landlord, all alterations
and additions made by Tenant and all partitions wholly within the Premises; and
shall repair any damage to the Premises or the Building caused by such removal.
Any Tenant's Removable Property which shall remain in the Building or on the
Premises after the expiration or termination of the Term of this Lease shall be
deemed conclusively to have been abandoned, and either may be retained by
Landlord as its property or may be disposed of in such manner as Landlord may
see fit, at Tenant's sole cost and expense.
14.22 SUBSTITUTE SPACE. Intentionally Omitted.
14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt with
no broker in connection with the consummation of this Lease other than Hunneman
Commercial and Lynch, Murphy, Walsh and Partners (collectively, the "Broker"),
and, in the event of any brokerage claims against Landlord predicated upon
35
prior dealings with Tenant, Tenant agrees to defend the same and indemnify
Landlord against any such claim (except any claim by the Broker which shall be
paid by Landlord pursuant to its agreement with the Broker).
14.24 SPECIAL TAXATION PROVISIONS. Intentionally Omitted.
14.25 HAZARDOUS MATERIALS. (a) Tenant shall not (either with or without
negligence) cause or permit the escape, disposal, release or threat of release
of any biologically or chemically active or other Hazardous Materials (as said
term is hereafter defined) on, in, upon or under the Property or the Premises.
Tenant shall not allow the generation, storage, use or disposal of such
Hazardous Materials in any manner not sanctioned by all applicable laws for the
generation, storage, use and disposal of such Hazardous Materials, nor allow to
be brought into the Property any such Hazardous Materials except for use in the
ordinary course of Tenant's business in compliance with all applicable laws,
and then only after written notice is given to Landlord of the identity of such
Hazardous Materials. Hazardous Materials shall include, without limitation,
any material or substance which is (i) petroleum, (ii) asbestos, (iii)
designated as a "hazardous substance" pursuant to Section 311 of the Federal
Water Pollution Control Act, 33 U.S.C. # 1251 et seq. (33 U.S.C. 1321) or
listed pursuant to # 307 of the Federal Water Pollution Control Act (33 U.S.C.
# 1317), (iv) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. # 6901 et seq. (42 U.S.C. #
6903), (v) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. # 9601 et seq. (42 U.S.C. # 9601), as amended, or (vi) defined as "oil"
or a "hazardous waste", a "hazardous substance", a "hazardous material" or a
"toxic material" under any other law, rule or regulation applicable to the
Property, including, without limitation, Chapter 21E of the Massachusetts
General Laws, as amended. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any release of
Hazardous Materials, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges but only to the extent
that such requirement results from the acts or omissions of Tenant or Tenant's
agents, servants, employees, invitees or independent contractors. In addition,
Tenant shall execute affidavits, representations and the like, from time to
time, at Landlord's request concerning Tenant's actual knowledge and belief
regarding the presence of Hazardous Materials on the Premises. In all events,
Tenant shall indemnify, defend and save Landlord harmless from any and all
loss, cost, damages, penalties, fines, expenses or fees including, without
limitation, legal fees and other professional
36
fees and expenses sustained or incurred by Landlord resulting from any release
or threat of release or the presence or existence of Hazardous Materials on the
Premises occurring while Tenant is in possession to the extent caused by or
resulting from the acts or omissions of Tenant or Tenant's agents, servants,
employees, invitees or independent contractors, or elsewhere on the Property if
caused by Tenant or Tenant's agents, servants, employees, invitees or
independent contractors. The covenants and indemnity contained in this Section
14.25(a) shall survive the expiration or earlier termination of the Term of
this Lease. Landlord expressly reserves the right to enter the Premises to
perform regular inspections in accordance with the provisions of Section 11.1
of this Lease. In exercising its right to enter the Premises to perform
regular inspections, Landlord shall use good faith efforts to avoid unnecessary
interference with Tenant's use of the Premises.
(b) As used in this Section 14.25(b), the term "Reports" shall mean
and include the following reports and all appendices and attachments annexed
thereto:
(i) that certain Phase I Environmental Site Assessment for 100
and 110 Fordham Road, Wilmington, Massachusetts M&H Project No.: 15825-E Cetco
Project No.: 880199, dated March 15, 1988 prepared by Teresa M. Martin,
Director, Site Assessments approved by Raymond F. Leather, Manager,
Environmental Engineering by Certified Engineering & Testing Co., Inc., 25
Mathewson Drive, Weymouth, Massachusetts 02189;
(ii) that certain Report of Findings Ground Water Sampling and
Data Summary, Honeywell Facility, 110 Fordham Road, Wilmington, Massachusetts
submitted to Jon D. Pakarinen, Honeywell, Inc., Honeywell Plaza, Minneapolis,
Minnesota 55408 submitted by: Ground Water Technology, Inc., 220 Norwood Park
South, Norwood, Massachusetts 02062 dated July 1989, prepared by Kathleen
Donovan, Geologist, Paola E. Macchiaroli, Hydrogeologist, Project Manager and
Richard G. Kowalski, Senior Hydrologist, District Manager;
(iii) that certain Environmental Site Assessment, Honeywell, Inc.
Facility, 110 Fordham Road, Wilmington, Massachusetts submitted to Honeywell,
Inc., Two Forbes Road, Lexington, Massachusetts 02173 submitted by Ground Water
Technology, Inc., 220 Norwood Park South, Norwood, Massachusetts 02062 dated
April 1988, prepared by Ronda L. Fisher, Geologist, Keith G. Angell, District
Manager and Paola E. Macchiaroli, Geologist, Project Manager;
(iv) those matters referred to in that certain letter dated March
15, 1988 addressed to Mr. Robert Weiland,
37
Marion Harris, Inc., 110 East 42nd Street, New York, New York 10007 from
Deborah Azrael, Manager, Publications Department, Certified Engineering and
Testing Co., Inc.
Wherever used in this Section 14.25, the phrases "To the best of" a
party's "knowledge" or a party's "actual knowledge" or similar words are used,
such phrases shall mean the actual knowledge of such party making the
representation as of the date of making such representation or statement and
such representation and actual knowledge shall mean that no independent
investigation, inquiry, inspection or examination of the matters referred to
therein have been made with respect to the matter referred to.
Landlord hereby represents and warrants the following:
(i) To the best of Landlord's knowledge and except as otherwise
disclosed in the Reports, the Property (including the Premises) does not
presently contain and is free from all Hazardous Materials except such
Hazardous Materials as are used by other tenants or occupants of the Property
in accordance with their normal business operations;
(ii) Except as otherwise disclosed in the Reports, Landlord has
not transported or caused to be transported any Hazardous Materials to or from
the Property (including the Premises);
(iii) To the best of Landlord's knowledge and except as otherwise
disclosed in the Reports, Landlord has not received and is not aware of any
notification from any Federal, State, County or City agency or authority
relating to Hazardous Materials in or near the Property (including the
Premises) with the exception only of that certain Notice of Responsibility
pursuant to MGL Chapter 21(E), DEQE Case No. 3-1282 issued to Honeywell
Corporation dated January 21, 1988. The representations and warranties of
Landlord made in this Section 14.25(b) are made as of the date of this Lease
and shall survive any expiration or earlier termination of this Lease.
14.26 NET LEASE. This is, and is intended to be, a Net Lease, and
accordingly, except as expressly otherwise provided for herein, all charges,
assessments and impositions made upon the Property and all costs, expenses and
other obligations paid or incurred by Landlord of any kind or nature whatsoever
in insuring, maintaining and/or repairing the Premises or the Building or the
Property or any additions to the Building shall be included in determining
Landlord's costs of which Tenant is obligated to pay a pro rata share or the
entirety, as the case may be, as provided hereinabove.
38
14.27 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts, as the
same may from time to time exist. Tenant and Landlord each hereby consent to
be subject to the jurisdiction of all state and federal courts sitting in The
Commonwealth of Massachusetts in connection with any dispute arising out of
this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
TENANT: LANDLORD:
THE TIMBERLAND COMPANY TALBOT OPERATIONS, INC.
/s/ John R. Ranelli /s/ Susan Hoffman
By: __________________________ By: ____________________________
John R Ranelli Susan Hoffman
VP, Citibank, as agent
Its: __________________________ Its: _________________________
39
EXHIBIT E
(ITEMS INCLUDED IN BUILDING/
UTILITY COSTS AND OPERATING EXPENSES)
A. Without limitation, Building Energy/Utility Costs shall
include:
Costs for electricity, fuel, oil, gas, steam, water and sewer use charges and
other utilities supplied to the Property and not paid for directly by tenants.
Building Energy/Utility Costs shall not include Tenant Electricity Expenses, as
defined in Sec. 7.5 of this Lease.
B. Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which
shall be directly related to employment of personnel, including amounts
incurred for wages, salaries and other compensation for services, payroll,
social security, unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization, retirement plans and
group insurance, uniforms and working clothes and the cleaning thereof, and
expenses imposed on Landlord or Landlord's agents in connection with the
operation, repair, maintenance, cleaning, management and protection of the
Property, and its mechanical systems including, without limitation, day and
night supervisors, property manager, accountants, bookkeepers, janitors,
carpenters, engineers, mechanics, electricians and plumbers and personnel
engaged in supervision of any of the persons mentioned above: provided that,
if any such employee is also employed on other property of Landlord, such
compensation shall be suitably allocated by Landlord among the Property and
such other properties.
2. The cost of services, materials and supplies furnished or used
in the operation, repair, maintenance, cleaning, management and protection of
the Property including, without limitation, fees and assessments, if any,
imposed upon Landlord, or charged to the Property, by any governmental agency
or authority or other duly authorized private or public entity on account of
public safety services, transit, housing, police, fire, sanitation or other
services or purported benefits.
3. The cost of replacements for tools and other similar equipment
used in the repair, maintenance, cleaning and protection of the Property,
provided that, in the case of any such equipment used jointly on other property
of Landlord, such
40
costs shall be allocated by Landlord among the Property and such other
properties.
4. Premiums for insurance against damage or loss to the Building
from such hazards as shall from time to time be generally required by
institutional mortgages in the Boston area for similar properties, including,
but not by way of limitation, insurance covering loss of rent attributable to
any such hazards, and public liability insurance.
5. Where the Property is managed by Landlord or an affiliate of
Landlord, a sum equal to the amounts customarily charged by management firms in
the Boston area for similar properties, but in no event more than six percent
(6%) of gross annual income, whether or not actually paid, or where managed by
other than Landlord or an affiliate thereof, the amounts accrued for
management, together with, in either case, amounts accrued for legal and other
professional fees relating to the Property, but excluding such fees and
commissions paid in connection with services rendered for securing or renewing
leases and for matters not related to the normal administration and operation
of the Building.
6. If, during the Term of this Lease, Landlord shall make a
capital expenditure, the total cost of which is not properly includable in
Operating Expenses for the Operating Year in which it was made, there shall
nevertheless be included in such Operating Expenses for the Operating Year in
which it was made and in Operating Expenses for each succeeding Operating Year,
and annual charge-off of such capital expenditure. The annual charge-off shall
be determined by dividing the original capital expenditure plus an interest
factor, reasonably determined by Landlord, as being the interest rate then
being charged for long-term mortgages, by institutional lenders on like
properties within the locality in which the Building is located, by the
number of years of useful life of the capital expenditure, and the useful life
shall be determined reasonably by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time of making
such expenditure.
7. Betterment assessments provided the same are apportioned
equally over the longest period permitted by law.
8. Amounts paid to independent contractors for services,
materials and supplies furnished for the operation, repair, maintenance,
cleaning and protection of the Property.