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EXHIBIT 10.1
COMMERCIAL LEASE
1. PARTIES WALFORD COMPANY, c/o Bernard H. Kayden, 550 Mamaroneck
Avenue, Harrison, NY 10528 ("LANDLORD"), which expression
shall include its successors and assigns where the context
so admits, does hereby lease to Shiva Corporation, 28 Crosby
Drive, Bedford, MA 01730-1437 ("TENANT"), which expression
shall include its successors and assigns where the context
so admits.
2. PREMISES TENANT hereby leases the following described premises (the
"Premises"): the land described in Exhibit A attached hereto
and incorporated herein by reference (the "Land"), together
with the buildings and improvements thereon, including the
building known as 205 Burlington Road, Bedford,
Massachusetts (the "Building") which Building is more
particularly described in Exhibit B attached hereto and
incorporated herein by reference.
3. TERM The term of this lease shall be for seven (7) years
commencing on September 1, 1996 (the "Commencement Date")
and ending on September 1, 2003. TENANT shall have two
options to extend the lease. The first option period shall
be for a term expiring on February 14, 2006 and the second
option period shall be for a term of five (5) years. Each
option period shall require six (6) months prior written
notice. The rental rate for any option period shall be at
fair market but in no event less than the prior term's
average annual net rental rate.
4. RENT In the event that the prior tenant, Pre-Owned Electronics,
Inc., does not deliver the Premises on or before August 31,
1996, the Commencement Date will be the date which is the
date the prior tenant vacates the Premises. TENANT shall pay
to the LANDLORD rent at the annual rate set forth in Exhibit
C attached hereto and incorporated herein by reference.
Annual rent shall be payable in advance in equal monthly
installments, on the first day of each calendar month during
the term, as set forth in Exhibit C.
5. ADDITIONAL
COVENANTS (a) In addition to the rent stated in Section 4 above,
TENANT shall pay, directly to the appropriate entity all
costs and expenses incurred by TENANT for the following:
taxes, electricity and heating, rubbish removal, water and
sewer, pest control, snow removal, and grounds maintenance.
(b) The TENANT shall have the right to contest the amount or
validity of any real estate tax levied on the Premises, by
appropriate legal proceedings conducted in good faith.
(c) TENANT shall pay before any fine, penalty, interest or
cost may be added thereto for the non-payment thereof, all
real estate taxes, assessments, water and sewer estate
taxes, assessment, water and sewer charges which may be
assessed or levied or become a lien against the Premises.
TENANT shall exhibit to LANDLORD paid receipts from the
appropriate taxing authority showing payment of the above at
least 10 days prior to the time when same would become
delinquent.
6. UTILITIES The TENANT will arrange for, and pay or cause to be paid,
all charges for all public or private utility services at
any time rendered to or in connection with the Premises or
any part thereof. The LANDLORD, upon the request of TENANT,
shall grant to TENANT all utility easements reasonably
necessary in connection with the use of the Premises, and
shall, if required, consent to all applications for
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permits or other approvals required in connection with the
use of the Property and its appurtenances, as TENANT
reasonably deems necessary.
7. USE OF LEASED
PREMISES The TENANT shall have the right to use the Premises for the
purpose of storage, assembly, repair, customer service,
disassembly and distribution, light manufacturing and office
use.
In addition, the TENANT shall have the right to use the
Premises for retail sales to the extent that such retail
sales do not violate any applicable law or regulation. The
LANDLORD agrees to assist the TENANT in procuring a special
permit, variance or similar approval that will allow retail
sales on the Premises.
8. SIGNS The TENANT shall have the right to install signs on and
about the Premises, provided that these signs conform to
applicable laws and regulations. In order to compensate the
TENANT for expenses related to the TENANT's purchase and
installation of signs, the LANDLORD shall reimburse TENANT,
in an amount not to exceed Eight Thousand Dollars
($8,000.00), for expenses incurred by TENANT, within five
days after LANDLORD's receipt of a statement from TENANT
containing the amount of such expenses. The LANDLORD shall
assist TENANT in obtaining any permits or authorizations
required by any governmental authority in connection with
signs installed pursuant to this Section 8.
9. COMPLIANCE
WITH LAWS (a) The TENANT acknowledges that no trade or occupation
shall be conducted in the Premises or use made thereof which
will be unlawful, improper, noisy or offensive, or contrary
to any law or any municipal by-law or ordinance in force in
the city or town in which the Premises are situated.
(b) TENANT shall promptly comply with all laws, ordinances,
orders, rules and requirements of all Federal, State and
municipal authorities, applicable to the Premises.
10. FIRE
INSURANCE The Tenant shall not permit any use of the Premises which
will make voidable any insurance on the property of which
the Premises are a part, or on the contents of said property
or which shall be contrary to any law or regulation from
time to time established by the New England Fire Insurance
Rating Association, or any similar body succeeding to its
powers.
11. MAINTENANCE
AND REPAIRS (a) LANDLORD shall throughout the Term, at LANDLORD's sole
cost and expense,keep and maintain in good order, condition
and repair the roof and the exterior of the Building, all
structural portions of the improvements located on the Land,
including without limitation the structural portions of the
roof, the load bearing walls, the foundation, the structural
floor slabs and other structural elements of the Building,
and repairs to the parking lot other than routine
maintenance and minor repairs requiring patching only, and
other than repairs occasioned by the TENANT's fault. The
LANDLORD shall also be responsible, at the LANDLORD's sole
cost and expense, for the repair to good working order, of
the heating, ventilation and air-conditioning systems and
the electrical and plumbing systems, only to the extent that
such repairs involve other than routine maintenance. In case
LANDLORD is prevented or delayed in making any repairs,
alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on
LANDLORD's part, by reason of any cause reasonably beyond
LANDLORD's control, LANDLORD shall use best efforts to avoid
unreasonable interference with the conduct by TENANT of
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TENANT's business on the Premises, and LANDLORD shall,
except in case of emergency repairs, give reasonably advance
notice to TENANT of any contemplated work by LANDLORD on the
Premises.
(b) Other than for those repairs for which LANDLORD is
responsible under the terms of Sections 11)(a) and 17
hereof, TENANT shall, from and after possession of the
Premises is delivered to TENANT, at TENANT's sole cost and
expense, keep and maintain the Premises in the same
condition as it was in on the Commencement Date, or as it
may be put in thereafter, damage by fire or other casualty,
taking, and reasonable wear and tear excepted. Without
limiting the generality of the foregoing, TENANT shall
perform and be solely responsible for the following: (i)
snow removal, to the extent required by TENANT, with respect
to entrance drives, parking areas, walkways, (ii) lawn
maintenance, trimming and the maintenance and care of trees,
shrubs and other plantings, (iii) routine maintenance of the
parking lot and minor repairs thereto requiring patching
only and (iv) preventative maintenance of heating,
ventilating and air-conditioning systems (the "HVAC") of the
Premises. The TENANT, at the TENANT's sole cost, shall
maintain, through the term, a contract with a reputable
service company to provide for the preventative maintenance
of the HVAC. At the expiration or earlier termination of
this leased, TENANT shall yield up the Premises in the
condition in which TENANT is obligated hereunder to repair
and maintain the same.
(c) TENANT shall not create or permit to remain, shall
discharge any mechanics or other similar lien which might be
or become a lien or encumbrance upon the Premises for work
done or material furnished on behalf of the Tenant.
12. ALTERATIONS-
ADDITIONS The TENANT shall not make structural alterations or
additions to the Premises, but may make non-structural
alterations provided the LANDLORD consents thereof in
writing, which consent shall not be unreasonably withheld or
delayed. All such allowed alterations shall be at TENANT's
expense and shall be in quality at least equal to the
present construction. LANDLORD specifically consents to
TENANT's construction of a loading dock on the Premises
provided that such construction is at TENANT's sole expense.
TENANT shall not permit any mechanics' liens, or similar
liens, to remain upon the Premises for labor and material
furnished to TENANT or claimed to have been furnished to
TENANT in connection with work of any character performed or
claimed to have been performed at the direction of TENANT
and shall cause any such lien to be released of record
forthwith after receipt of notice thereof without cost to
LANDLORD. Any alterations or improvements made by the TENANT
shall become the property of the LANDLORD at the termination
of occupancy as provided herein. The parties agree that
office furniture, cubicles, removable appliances and office
equipment remain the property of TENANT upon termination of
this Lease.
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13. ASSIGNMENT-
SUBLEASING The TENANT shall have the right to assign this lease or
sublet the whole or any part of the Premises with LANDLORD's
prior written consent, which consent shall not be
unreasonably withheld or delayed. LANDLORD shall, within
five (5) business days after receiving the information
concerning a proposed sublease, give notice to TENANT to
permit or deny the proposed sublease. If LANDLORD denies
consent, it must explain the reasons for the denial. If a
LANDLORD does not give notice within the two (2)
business-day period, then TENANT may sublease or assign part
or all of the Premises upon the terms TENANT gave in the
notice of the proposed sublease. Notwithstanding such
consent, TENANT shall remain liable to LANDLORD for the
payment of all rent and for the full performance of the
covenants and conditions of this lease.
14. LANDLORD'S
ACCESS The LANDLORD or agents of the LANDLORD may, at reasonable
times, during normal business hours, and upon reasonable
notice of TENANT, enter to view the Premises and to make
such repairs as LANDLORD shall elect or be required to make,
and at any time within three (3) months before the
expiration of the term, may affix to any suitable part of
the outside of the Premises a notice for letting or selling
the Premises or property of which the Premises are a part
and keep the same so affixed without hindrance or
molestation.
15. INDEMNIFICATION
AND LIABILITY The TENANT shall save the LANDLORD harmless from all loss
and damage occasioned by any nuisance made or suffered on
the Premises caused by the negligence or willful misconduct
of TENANT, its agents, employees or invitees. The removal of
snow and ice from the sidewalks bordering upon the Premises,
all landscaping and garbage disposal, shall be the TENANT's
responsibility.
16. TENANT'S
LIABILITY
INSURANCE The TENANT shall maintain with respect to the Premises and
the property of which the Premises are a part, comprehensive
public liability insurance in the amount of $1,000,000
combined single limit per occurrence, $2,000,000 policy
aggregate, in responsible companies qualified to do business
in Massachusetts and in good standing therein insuring the
LANDLORD as well as TENANT against injury to persons or
damage to property as provided. The TENANT shall deposit
with the LANDLORD certificates for such insurance at or
prior to the commencement of the term, and thereafter within
thirty (30) days prior to the expiration of any such
policies. All such insurance certificates shall provide that
such policies shall not be canceled without at least ten
(10) days prior written notice to each assured name therein.
17. FIRE, CASUALTY
EMINENT DOMAIN (a) In case of any material damage to or destruction of the
Premises or any part thereof, TENANT will promptly give
written notice thereof to LANDLORD, generally describing the
nature and extent of such damage or destruction.
(b) In case of any damage to or destruction of the Premises
or any part thereof, LANDLORD shall commence and prosecute
with reasonable diligence the restoration, replacement or
rebuilding of the Premises as nearly as practicable to its
value, condition and character immediately prior to such
damage or destruction (such restoration, replacement and
rebuilding, together with any temporary repairs and property
protection pending completion of the work, being herein
called "Casualty Restoration").
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(c) (i) If the Premises are substantially damaged by fire or
other casualty or (ii) if LANDLORD fails to complete the
Casualty Restoration within one hundred and twenty (120)
days after such damage or destruction, TENANT may elect to
terminate this Lease giving to LANDLORD written notice of
such election (specifying the termination date which shall
not be less than 10 nor more than 90 days after the date of
such notice) (a) within 30 days after such fire or other
casualty in the case of a termination right under subsection
(i) above, or (b) within thirty days after the expiration of
such one hundred twenty (120) day period, in the case of a
termination right under subsection (ii) above; provided that
such Casualty Restoration has not been completed prior to
the giving of such notice. For the purposes of this Section
17(c), the Premises shall be deemed to have been
substantially damaged or destroyed if the damage is of such
a character that the same cannot in the ordinary course
reasonably be expected to be restored or repaired within one
hundred (100) days from the time that repair work would be
commenced.
(d) The rent and all other sums payable thereunder by TENANT
shall be equitably abated from the date of such damage or
destruction until the date on which the Casualty Restoration
has been completed, unless this lease has sooner terminated
as provided herein. In the event of any disagreement between
LANDLORD and TENANT as to the amount of such abatement, the
same shall be determined by arbitration by an appraiser
selected by LANDLORD and TENANT.
(e) In the case of a taking of all or a substantial portion
of the Premises by eminent domain, so that in the TENANT's
reasonable opinion the Premises are no longer suitable for
their intended use, the TENANT may elect to terminate this
lease by written notice to LANDLORD within thirty (30) days
notice to LANDLORD within thirty (30) days after TENANT
obtains actual notice of such taking. Upon such election to
terminate, this lease shall have no further effect.
(f) In the case of a taking whereby the TENANT does not
elect to terminate this lease, the Rent, Additional Rent and
Other sums payable by TENANT under this lease shall be
equitably abated.
18. DEFAULT AND
BANKRUPTCY In the event that:
(a) The TENANT shall default in the payment of any
installment of rent or other sum herein specified and such
default shall continue for ten (10) days after receipt by
TENANT of written notice thereof; or
(b) The TENANT shall default in the observance or
performance of any other of the TENANT's covenants,
agreements, or obligations hereunder and such default shall
not be corrected within thirty (30) days after written
notice thereof or, if such default cannot reasonably be
corrected within such thirty (30) day period, if TENANT
shall fail, within such period, to commence to cure such
default or thereafter to prosecute and complete the same
with due diligence; or
(c) The TENANT shall be declared bankrupt or insolvent
according to law, or, if any assignment shall be made of
TENANT's property for the benefit of creditors, then the
LANDLORD shall have the right thereafter, while such default
continues, to re-enter and take complete possession of the
Premises, to declare the term of this lease ended, and
remove the TENANT's effects, without prejudice to any
remedies which might be otherwise used for arrears of rent
or other default. The
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TENANT shall indemnify the LANDLORD against all loss of rent
and other reasonable payments which the LANDLORD may incur
by reason of such termination during the residue of the
term. If the TENANT shall default after reasonable notice
thereof, in the observance or performance of any conditions
or covenants on TENANT's part to be observed or performed
under or by virtue of any of the provisions in any article
of this lease, the LANDLORD, without being under any
obligation to do so and without thereby waiving such
default, may remedy such default for the account and at the
expense of the TENANT. If the LANDLORD makes any
expenditures or incurs any obligations for the payment of
money in connection therewith, including but not limited to,
reasonable attorney's fees in instituting, prosecuting or
defending any action or proceeding, such sums paid or
obligations insured shall be paid to the LANDLORD by the
TENANT as additional rent.
19. NOTICE Any notice from the LANDLORD to the TENANT relating to the
Premises or the occupancy thereof, shall be deemed duly
served upon receipt, if personally delivered or if mailed to
the Premises, registered or certified mail, return receipt,
requested, postage prepaid, addressed to the TENANT. Any
notice from the TENANT to the LANDLORD relating to the
Premises or to the occupancy thereof, shall be deemed duly
served, upon receipt, if mailed to the LANDLORD by
registered of, certified mail, return receipt requested,
postage prepaid, addressed to the LANDLORD at such address
as the LANDLORD may from time to time advise in writing. All
rent and notices shall be paid and sent to the LANDLORD at
the address set forth in Section 1 above.
20. SURRENDER The TENANT shall at the expiration or other termination of
this lease remove all TENANT's goods and effects from the
Premises. TENANT shall deliver to the LANDLORD the Premises
and all keys, locks thereto, and other fixtures connected
therewith and all alterations and additions made to or upon
the Premises, in the same condition as they were at the
commencement of the term, or as they were put in during the
term hereof, reasonable wear and tear and damage by fire or
other casualty and taking by eminent domain excepted.
Notwithstanding anything herein to the contrary, the
Landlord shall incur the entire cost and responsibility for
removing the signs installed by the LANDLORD or the TENANT
pursuant to Section 8 hereof.
21. WAIVER OF
SUBROGATION Any insurance carried by either party with respect to the
Premises, the Building or the Land or occurrences thereon
shall, if it can be so written without additional premium,
or with an additional premium which the other party agrees
to pay, include a clause or endorsement denying to the
insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to the
occurrence of the injury or the loss. Each party,
notwithstanding other provisions of this lease to the
contrary, hereby waives any rights of recovery against the
other for injury or loss due to hazards covered by such
insurance to the extent of the indemnification received
thereunder.
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22. CASUALTY
INSURANCE TENANT, at TENANT's sole cost and expense, shall maintain at
all times during the term of this lease with respect to the
Premises and the Building and property of which such
Premises are a part, insurance naming the LANDLORD as
insured against loss or damage under a so-called "all risk"
type insurance policy. Such insurance shall be in an amount
equal to the full replacement value of said Building and
other improvements on the Land, and shall be maintained with
responsible companies qualified to do business and in good
standing in the Commonwealth of Massachusetts. TENANT shall
provide LANDLORD with a certificate evidencing procurement
of insurance in accordance with this paragraph within
fourteen (14) days of the date hereof, and in the case of
the renewal of such policy, at least thirty (30) days prior
to the expiration of the policy.
23. DELIVERY OF
THE PREMISES On the Commencement Date of the term hereof, as set forth in
Section 3 of this Lease, LANDLORD shall deliver the Premises
to TENANT, broom clean, with carpets shampooed, tile floor
areas cleaned and waxed, free of all tenants and other
occupants, with all of the improvements to the Premises
shown on Exhibit B completed by LANDLORD, at LANDLORD's sole
cost and expense and with all building systems in good
working order. The improvements to be made by LANDLORD to
the Building and the Premises as shown on Exhibit B attached
hereto shall be of good quality, and shall be made in a good
and workmanlike manner, in compliance with all applicable
laws. The LANDLORD shall cause the TENANT to be named as a
beneficiary of any and all warranties and guaranties of
electrical, mechanical and other equipment and systems that
the LANDLORD has purchased for the Premises.
If the LANDLORD is unable to deliver the Premises to the
TENANT on the Commencement Date in accordance with this
Section 23, then, unless the delay is due to a delay beyond
the LANDLORD's reasonable control, the TENANT shall have the
option of terminating this lease. (The LANDLORD's financial
inability to complete improvements is not a delay beyond the
LANDLORD's reasonable control). Notwithstanding anything in
this paragraph to the contrary, if an event beyond the
LANDLORD's reasonable control occurs and the LANDLORD can
not deliver the Premises on the Commencement Date, then the
TENANT shall have the option of terminating this Lease if
the LANDLORD is unable to deliver the Premises to the Tenant
in accordance with this Section 23 on or before September 1,
1996.
24. ESTOPPEL
CERTIFICATE Either party will, upon the request of the other, execute,
acknowledge and deliver to the requesting party, within
fifteen (15) business days after request, a certificate
certifying (a) that this lease is unmodified and in full
force and effect (or, if there have been modifications, that
this lease is in full force and effect, as modified, and
stating the modifications), (b) the dates, if any, to which
the basic and additional rents have been paid, (c) whether
or not there are then existing any offsets or defenses
against the enforcement of any term hereof on the part of
the requesting party to be performed or complied with (and,
if so, specifying the same), (d) whether or not there are
any defaults-under this lease (and, if so, specifying the
same), and (e) that no notice has been received by the
certifying party of any default which has not been cured.
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25. ATTORNEYS'
FEES ln the event of any litigation between the parties to this
lease arising out of or resulting from the terms and
conditions herein contained, the prevailing party shall be
entitled to be reimbursed by the other party in an amount
equal to the sum of all attorneys' fees and expenses
reasonably incurred by such prevailing party in connection
with such litigation.
26. ENVIRONMENTAL
MATTERS (a) The term "Hazardous Materials" shall include, without
limitation, (i) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act of 1976, or
Massachusetts General Laws Chapter 21C, as either may be
amended from time to time, the regulations promulgated
thereunder; (ii) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time, or the
regulations promulgated thereunder; and (iii) any substance
the presence of which on or within the Premises, the
Building or on, under or above the Land is prohibited by any
applicable federal, state, or local law and regulations, if
any, promulgated pursuant thereto, including, but not
limited to, any "oil" or "hazardous material" as defined by
the Massachusetts Oil and Hazardous Material Release
Prevention and Response Act of 1983, Massachusetts General
Laws, Chapter 21E, as amended from time to time, or the
regulations promulgated thereunder.
(b) The Landlord is not aware of the existence of any
reports of Hazardous Materials found or disposed of on the
Premises, the Building or the Land other than those listed
on Exhibit D, attached hereto.
(c) In the event that concentrations of volatile organic
chemicals exceed the permissible exposure limits (the
"Excessive Levels") established (i) by regulations now or at
any time in the future promulgated by the Occupational
Safety and Health Administration, U.S. Department of Labor,
or (ii) under any similar federal, state or local
legislation or regulations governing exposure of employees
to such substances, then unless the LANDLORD elects to
remedy such condition in accordance with the following
subsection (d), or, in the event LANDLORD is required by
Federal or state government environmental regulations to
excavate any portion of the Building, the TENANT shall have
the option of terminating this lease upon written notice to
the LANDLORD, and upon such election the LANDLORD shall
return to TENANT a pro rata share of prepaid rent along with
the Security (as defined in Section 27 hereof), and this
Lease shall be of no further force and effect.
(d) The LANDLORD may elect to lower any Excessive Levels by
providing TENANT with written notice of such election within
ten (10) days of such discovery. Upon such election, the
LANDLORD shall have sixty (60) days to lower the
Excessive-Levels to levels that do not exceed any then
current law or regulation. The LANDLORD may not interfere
with the TENANT's business operations in order to lower the
levels of Hazardous Materials. If the levels are not lowered
by the end of the sixty (60) day period, then the TENANT
shall have the option to terminate this lease, and upon such
termination, LANDLORD shall refund any rent applicable to
such sixty (60) day remedial period.
(e) The LANDLORD and the TENANT acknowledge that the TENANT
bears no responsibility for subsurface conditions existing
at the Premises and that the TENANT bears no responsibility
for air and other gases that emanate from below the surface
of the Premises.
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(f) LANDLORD shall indemnify and save harmless the TENANT
against all penalties, claims or demands from a governmental
authority or third party (including reasonable attorney's
fees incurred in defending such claims or demands) arising
from the presence of Hazardous Materials on or about the
Premises, except for those caused by TENANT's negligence or
misconduct provided however, that TENANT shall have no right
to recover any of its own business losses (including, but
not limited to TENANT's moving costs and lost profits)
incurred by TENANT as a result of the presence of Hazardous
Materials on or about the Premises. TENANT agrees that
TENANT's sole remedy related to business losses resulting
from Hazardous Materials on or about the Premises is
TENANT's option to terminate this lease in accordance with
subsections 26(c) and 26(d) of this lease.
(g) The remedies provided herein are in addition to other
remedies available under law.
27. SECURITY
DEPOSIT TENANT has delivered to LANDLORD on the date hereof the sum
of $33,003.38 as security (the "Security") for the
performance by the TENANT of the terms, provisions,
covenants and conditions of this lease. The LANDLORD shall
deposit this sum in a federally insured interest bearing
account that is segregated from all of the LANDLORD's other
accounts. If the TENANT defaults under this lease, and such
default is not cured within the time periods stated in
Section 18 hereof, then the LANDLORD may use, apply and
retain the whole or any part of the security for the payment
of any monies owed by the TENANT under this Lease, and
the-LANDLORD shall thereafter promptly provide the TENANT
with an accounting of such use, application or retention. If
the TENANT complies with the terms, provisions, covenants
and conditions of this lease, then the Security, or any
balance thereof, plus any interest accrued thereon, shall be
returned to the TENANT on or prior to three business days
after the expiration or termination of the term of this
lease.
28. NON-
DISTURBANCE Upon written request by LANDLORD, TENANT shall execute and
deliver an agreement subordinating this lease to any first
mortgage upon the Premises; provided, however, such
subordination shall be upon the express condition that the
validity of this lease shall be recognized by the persons
succeeding to the interest of the LANDLORD, including a
purchaser at a foreclosure sale, and that, notwithstanding
any default by the mortgagor with respect to said mortgage
or any foreclosure thereof, TENANT's possession and right of
use under this lease in and to the Premises shall not be
disturbed by such successor unless and until TENANT shall
breach any of the provisions hereof and this lease or
TENANT's right to possession hereunder shall have been
terminated in accordance with the provisions of this lease.
29. TENANT'S
INDEMNITY TENANT indemnifies, defends, and holds LANDLORD harmless
from claims:
(i) for personal injury, death, or property damage;
(ii) for incidents occurring on or about the Premises; and
(iii) caused by the negligence or willful misconduct of
TENANT, its agents, employees, or invitees.
When the claim is caused by the joint negligence or willful
misconduct of TENANT and LANDLORD or TENANT and a third
party unrelated to TENANT, except TENANT's agent employees,
or invitees, TENANT's duty to defend, indemnify, and hold
LANDLORD harmless shall be in proportion to TENANT's
allocable share of the joint negligence or willful
misconduct.
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LANDLORD'S
INDEMNITY LANDLORD indemnifies, defends, and holds TENANT harmless
from claims:
(i) for personal injury, death, or property damage;
(ii) for incidents occurring in or about the Premises; and
(iii) caused by the negligence or willful misconduct of
LANDLORD, its agents, employees, or invitees.
When the claim is caused by the joint negligence or willful
misconduct of LANDLORD and TENANT or LANDLORD and a third
party unrelated to LANDLORD, except LANDLORD's agents,
employees, or invitees, LANDLORD's duty to defend,
indemnify, and hold TENANT harmless shall be in proportion
to LANDLORD's allocable share of the joint negligence or
willful misconduct.
Release of
Claims Notwithstanding TENANT's Indemnity and LANDLORD's Indemnity,
the parties release each other from any claims either party
(Injured Party) has against the other. This release is
limited to the extent the claim is covered by the Injured
Party's insurance.
30. RENT
INSURANCE TENANT shall, at TENANT's sole cost and expense, naming the
LANDLORD as insured, maintain during the term of this lease
rent insurance in an amount equal to rent and real estate
taxes for the next twelve month period.
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IN WITNESS WHEREOF, the LANDLORD and TENANT have hereunto set their
hands and common seals this 24th day of May, 1996.
Witness: TENANT: SHIVA CORPORATION
/s/ M. Elizabeth Potthoff By: /s/ Cynthia M. Deysher
- ------------------------- -----------------------
Witness: LANDLORD: WALFORD COMPANY
/s/ Rita Levitan By: /s/ Bernard H. Kayden
- ------------------------- -----------------------
General Partner
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EXHIBIT A
DESCRIPTION OF LAND
That certain parcel of land situated in Bedford in the County of Middlesex and
the Commonwealth of Massachusetts, bounded and described as follows:
Northeasterly by Burlington Road, four hundred and twenty-two feet;
Southeasterly by lot 22 as shown on plan hereinafter mentioned, four
hundred eighty-seven and 67/100 feet;
Southwesterly by lot 21 on said plan, three hundred forty-four and
35/100 feet;
Southwesterly again, one hundred nine and 81/100 feet, and
Northwesterly, four hundred ten and 02/100 feet by land nor or formerly
of Bedford Research and Office Park.
Said parcel is shown as lot 28 on said plan.
All of said boundaries are determined by the Court to be located as shown on a
subdivision plan, as approved by the Court, filed in the Land Registration
Office, and copy of which is filed in the Registry of Deeds for the South
Registry District of Middlesex County in Registration Book 648, Page 48, with
Certificate 103598.
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EXHIBIT B
205 BURLINGTON ROAD
TENANT ALLOWANCES FOR SHIVA CORPORATION
INTERIOR OFFICE FINISHES AND IMPROVEMENTS
- - premises delivered "as is"
- - 51,502 ventable square feet
- - 1200A 480/227V 3 phase electrical service
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EXHIBIT C
RENT SCHEDULE
Lease Year Annual Rent Monthly Rent
- ---------- ----------- ------------
(1) 09/01/96 - 08/31/97 $396,040.00 $33,003.38*
(2) 09/01/97 - 08/31/98 $396,040.00 $33,003.38
(3) 09/01/98 - 08/31/99 $396,040.00 $33,003.38
(4) 09/01/99 - 08/31/00 $396,040.00 $33,003.38
(5) 09/01/00 - 08/31/01 $396,040.00 $33,003.38
(6) 09/01/01 - 08/31/02 $396,040.00 $33,003.38
(7) 09/01/02 - 08/31/03 $396,040.00 $33,033.38
*The first month's rent will be $16,003.38. If the Commencement Date under the
Lease is not September 1, 1996, then the beginning and end of each Lease Year
shall be adjusted accordingly so that each of the seven Lease Years will always
be a full calendar year. Rent for any period which is less than as full calendar
month shall be prorated accordingly.
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EXHIBIT D
ENVIRONMENTAL REPORTS AND INFORMATION
205 Burlington Road, Bedford
11/15/90 Goldberg-Zoino Associates, Inc. Report to Pre-Owned Electronics,
Inc.
9/12/90 Goldberg-Zoino Associates, Inc. Report to Pre-Owned Electronics,
Inc. (GZA File No. 12190).
6/21/90 Clean Harbors "Results of Laboratory Analysis for Groundwater
Samples Collected at the Walford Company, 205 Burlington Road,
Bedford, Massachusetts. CHE Job No. E1459."
8/9/89 Clean Harbors Letter Report (no title)
2/1/89 Clean Harbors Letter Report (no title)
12/15/88 Clean Harbors Letter Report concerning the additional work
undertaken to remove the remaining oil beneath the building at
205 Burlington Road, Bedford, Massachusetts.
Sept., 1988 Clean Harbors Report (Insert Title)
5/5/87 DEQE Notice of Responsibility letter to the John Aitken Company,
requiring remedial response actions including, at a minimum, the
investigation and assessment of site conditions.
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