1
EXHIBIT 10.5
LEASE
LANDLORD: Teachers Realty Corporation
TENANT: Voicetek Corporation
PREMISES: 19 Alpha Road
Chelmsford, Massachusetts
DATED: As of May 25, 1993
2
TABLE OF CONTENTS
ARTICLE CAPTION PAGE
I. BASIC LEASE PROVISIONS 1
1.1 Introduction 1
1.2 Basic Data 1
1.3 Additional Definitions 2
II. PREMISES AND APPURTENANT RIGHTS 3
2.1 Lease of Premises 3
2.2 Appurtenant Rights and Reservations 3
III. BASIC RENT 4
3.1 Payment 4
IV. COMMENCEMENT AND CONDITION 5
4.1 Commencement Date 5
4.2 Condition of the Premises 5
V. USE OF PREMISES 5
5.1 Permitted Use 5
5.2 Installation and Alterations by Tenant 6
VI. ASSIGNMENT AND SUBLETTING 9
6.1 Prohibition 9
VII. RESPONSIBILITY FOR REPAIRS AND CONDITIONS 10
OF PREMISES; SERVICES TO BE FURNISHED BY LANDLORD
7.1 Landlord Repairs 10
7.2 Tenant's Agreement 11
7.3 Floor Load - Heavy Machinery 12
7.4 Building Services 12
7.5 Electricity 13
VIII. REAL ESTATE TAXES 17
8.1 Payments on Account of Real 17
Estate Taxes
8.2 Abatement 18
8.3 Alternate Taxes 18
-i-
3
ARTICLE CAPTION PAGE
IX. OPERATING EXPENSES 18
9.1 Definitions 18
9.2 Tenant's Payments 19
X. INDEMNITY AND PUBLIC LIABIITY INSURANCE 20
10.1 Tenant's Indemnity 20
10.2 Public Liability Insurance 21
10.3 Tenant's Risk 21
10.4 Injury Caused by Third Parties 22
XI. LANDLORD'S ACCESS TO PREMISES 22
11.1 Landlord's Rights 22
XII. FIRE, EMINENT DOMAIN, ETC. 22
12.1 Abatement of Rent 22
12.2 Landlord's Right of Termination 23
12.3 Restoration 23
12.4 Award 23
XIII. DEFAULT 24
13.1 Tenant's Default 24
13.2 Landlord's Default 27
XIV. MISCELLANEOUS PROVISIONS 27
14.1 Extra Hazardous Use 27
14.2 Waiver 28
14.3 Covenant of Quiet Enjoyment 28
14.4 Landlord's Liability 28
14.5 Notice to Mortgagee or Ground Lessor 29
14.6 Assignment of Rents and Transfer 30
of Title
14.7 Rules and Regulations 30
14.8 Additional Charges 31
14.9 Invalidity of Particular Provisions 31
14.10 Provisions Binding, Etc. 31
14.11 Recording 31
14.12 Notices 31
14.13 When Lease Becomes Binding 32
14.14 Paragraph Headings 32
14.15 Rights of Mortgagee or 32
Ground Lessor
14.16 Status Report 33
14.17 Security Deposit 33
-ii-
4
ARTICLE CAPTION PAGE
14.18 Remedying Defaults 34
14.19 Holding Over 34
14.20 Waiver of Subrogation 34
14.21 Surrender of Premises 35
14.22 Substitute Space 35
14.23 Brokerage 35
14.24 Special Taxation Provisions 35
14.25 Hazardous Materials 36
14.26 Governing Law 37
-iii-
5
L E A S E
Preamble
THIS INSTRUMENT IS A LEASE, dated as of May 25, 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 19 Alpha Road, Chelmsford,
Massachusetts. 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: Teachers Realty Corporation
Landlord's Original Address:
c/o Finard & Company, Inc.
Three Burlington Woods Drive
Burlington, MA 01803
Tenant: Voicetek Corporation, a Massachusetts corporation
Tenant's Original Address: 19 Alpha Road, Chelmsford, MA 01824
Guarantor: N/A
Basic Rent: The sum of $89,464.50 ($4.50 per square foot of
Premises Rentable Area) per annum.
Premises Rentable Area: Approximately 19,881 square feet.
Permitted Uses: Office and light manufacturing, but specifically
excluding any use which would cause any portion of the Premises to
be deemed a "place of public accommodation" as defined in the
Americans with Disabilities Act of 1990, as amended.
Escalation Factor: 32.57%, as computed in accordance with the
Escalation Factor Computation.
Initial Term: Three (3) years commencing on the Commencement Date
and expiring at the close of the day immediately preceding the
third anniversary of the
6
Commencement Date, except that if the Commencement Date shall be
other than the first day of a calendar month the expiration of the
Initial Term shall be at the close of the day on the last day of
the calendar month on which such anniversary date shall fall.
Security Deposit: $22,366.12.
1.3 ADDITIONAL DEFINITIONS.
Manager: Finard & Company, Inc.
Building Rentable Area: 64,250 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
95% of 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.
Premises: A portion of the Building as shown on Exhibit A annexed
hereto.
Property: The Building and the land parcels on which it is located
(including adjacent sidewalks).
Tax Year: As defined in Section 8.1.
-2-
7
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 - Plan Showing location of "new loading dock area"
Exhibit C - Rules and Regulations
Exhibit D - Intentionally Omitted
Exhibit E - Operating Expenses
Exhibit F - Tenant's Janitorial Specifications
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, the non-exclusive right to use, and
permit its invitees to use in common with others, public or common
lobbies, hallways, and common walkways 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; 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
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
-3-
8
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.
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, deduction or demand, the Basic Rent and the monthly
installment of the Reimbursement 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. In the event that any installment of
Basic Rent is not paid when due, Tenant shall pay, in addition to
any Escalation Charges or other additional charges due under this
Lease, an administrative fee equal to 5% of the overdue payment.
(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) As an Additional Charge hereunder, Tenant hereby covenants and
agrees to pay the Landlord the amount of $25,000.00 over the three
year Initial Term of this Lease (the "Reimbursement Rent"). The
Reimbursement Rent represents payment of back due rents payable to
Landlord as the result of use and occupancy of the Premises by
Tenant, which amounts have been earned and are presently due and
owing to Landlord notwithstanding any expiration or earlier
termination of this Lease. The Reimbursement Rent shall be payable
to Landlord as and when payments of Basic Rent are due and payable
hereunder without offset, deduction, abatement or demand. The
Reimbursement Rent shall be paid to Landlord in equal monthly
installments of $694.44. Landlord shall have the same rights and
remedies against Tenant for failure to pay any monthly installment
of Reimbursement Rent as Landlord has against
-4-
9
Tenant for failure to pay Basic Rent when due, including, without
limitation, all sums and charges prescribed in Section 14.18 of the
Lease, the 5% administrative fee payable pursuant to the last
sentence of Section 3.1(a) hereof and all rights and remedies
reserved unto Landlord pursuant to Article XIII of this Lease.
ARTICLE IV
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. The Commencement Date shall be the Date of
execution of this Lease by the last party executing this Lease as
evidenced on the signature page hereof.
4.2 CONDITION OF THE PREMISES. Tenant hereby acknowledges and agrees to
accept the Premises on the Commencement Date in its then "as is"
condition without representation or warranty of Landlord of any
kind, either express or implied. Tenant is currently occupying the
Premises under certain other arrangements with Landlord and
therefore it is agreed and understood that Landlord shall not be
required to make or pay for any improvements to the Premises at or
prior to the Commencement Date. Notwithstanding the foregoing to
the contrary, Landlord hereby agrees to demise the Premises from
the immediately adjacent and currently vacant space and to cut an
opening in the exterior wall of the building and install one 8'x8'
overhead roll-up door in that portion, of the Premises identified
as the "new loading dock area" on Exhibit B to this Lease. It is
agreed and understood that the work required to be performed by
Landlord hereunder may be performed after the Commencement Date and
Tenant agrees to allow Landlord's contractor to enter the Premises
for completing such work.
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 and the Premises in
-5-
10
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
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 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 including, without limitation, the Americans with
Disabilities Act of 1990, as amended; and
(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. It is agreed and understood that
Landlord shall have the right to review and approve all changes
to any plans which Landlord shall have approved pursuant to this
Section 5.2(a). It is also agreed and understood that Landlord
shall not be deemed to be unreasonable in denying its consent to
alterations, additions and improvements to the Premises which
affect "Base Building Systems" (as said term is hereafter defined).
- 6 -
11
As used herein, the term "Base Building Systems" shall mean (i) any
mechanical, electrical or plumbing system or component of the
Building (including the Premises) (ii) the exterior of the Building
(iii) the Building HVAC distribution system (iii) any fire safety
prevention/suppression system and (iv) any structural element or
component of the Building.
(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 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, 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 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
-7-
12
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
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 original 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 fourteen (14) 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.
(e) In connection with the performance of any alterations,.
improvements, changes or additions to the Premises as contemplated
by Article IV or Section 5.2 of this Lease, in the event that any
such improvement, alteration, change or addition to the Premises to
be performed by Tenant ("Work') affects so-called "Base Building
Building Systems" and to the extent that such Work is not performed
by Landlord or a general contractor employed directly by Landlord,
Tenant hereby agrees to use the services of a construction
management firm designated by Landlord to oversee, coordinate and
review all aspects of any such Work. The cost and expense of the
services of such construction manager shall be borne by Tenant but
only to the extent that such costs and expenses are comparable to
and competitive with the costs and expenses charged by other firms
engaged in
- 8 -
13
construction management and oversight services in the general
geographic location of the Building for services of a similar scope
and type.
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 shall apply to
a transfer (by one or more transfers) of a majority of the stock or
partnership interests, or other evidences of ownership of Tenant as
if such transfer were an assignment of this Lease; but such
provisions 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
-9-
14
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 original named Tenant from the
further performance by the original named Tenant hereunder. No
assignment or subletting hereunder shall relieve Tenant obligations
hereunder and Tenant shall remain from its 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) 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 used exclusively by
Tenant) and the HVAC system serving the Premises, 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. All costs and expenses incurred by Landlord in
performing its obligations under this Section 7.1 shall be included
in Operating Expenses (as said term is hereafter defined) except
that Tenant shall, as an additional charge hereunder and within 15
days of being invoiced by Landlord, reimburse Landlord directly for
all costs and expenses incurred by Landlord in repairing or
maintaining the roof top HVAC units servicing the Premises.
(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
-10-
15
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 and
Landlord further reserves the right to require Tenant to enter into
agreements with such persons in form and content approved by
Landlord for the furnishing of such services. Landlord shall cause
the paved portions of the Property to be kept reasonably free and
clear of snow, ice and refuse and shall cause the landscaped areas
of the Property to be maintained in a reasonably attractive
appearance.
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, excepting only those repairs for which Landlord is
responsible under the terms of this Lease, reasonable wear and tear
of the Premises, and damage by fire or other casualty and as a
consequence of the exercise of the power of eminent domain; and
shall surrender the Premises, at the end of the Term, in such
condition. Without limitation, Tenant shall continually during the
Term of this Lease maintain the Premises in accordance with all
laws, 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). Tenant shall be responsible for the payment of all
charges for gas or other utilities used or consumed in the
Premises. Tenant shall be responsible for the removal and disposal
of all refuse and waste generated from the Premises and shall
maintain a dumpster service contract with a reputable dumpster
service company throughout the Term of this Lease. The location of
such dumpster shall be subject to the reasonable approval of
Landlord. In no event shall such dumpster be visable from the
street or interfere with the use of the parking or loading areas on
the Property and shall be in compliance with all applicable codes,
by-laws and ordinances.
- 11 -
16
(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.
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) Landlord shall also provide:
(i) Cold water (at temperatures supplied by the Town of
Chelmsford) for drinking, lavatory and toilet purposes. If Tenant
uses water for any purpose other than for ordinary lavatory and
drinking purposes, Landlord may assess a reasonable charge for the
additional water so used, or install a water meter and thereby
measure Tenant's water consumption for all purposes. In the latter
event, Tenant shall pay the cost of the meter and the cost of
installation thereof and
- 12 -
17
shall keep such meter and installation equipment in good working
order and repair. Tenant agrees to pay for water consumed, as shown
on such meter, together with the sewer charge based on such meter
charges, as and when bills are rendered, and in default in making
such payment Landlord may pay such charges and collect the same
from Tenant as an additional charge.
(ii) Access to the Premises twenty-four hours per day,
subject to reasonable security restrictions and restrictions based
on emergency conditions and all other applicable provisions of this
Lease.
(b) 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 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.
7.5 ELECTRICITY. (a) Landlord shall permit Landlord's existing wires,
pipes, risers, conduits and other electrical equipment of Landlord
to be used for the purpose of providing electrical service to the
Premises. Tenant covenants and agrees that its electrical usage and
consumption will not disproportionately "siphon off" electrical
service necessary for other tenants of the Building and that its
total connected load will not exceed the maximum load from time to
time permitted by applicable governmental regulations nor the
design criteria of the existing Building electrical capacity.
-13-
18
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 is changed or electric current is no longer
available or suitable for Tenant's requirements due to a factor or
cause beyond Landlord's control. Tenant shall purchase and install
all lamps, tubes, bulbs, starters and ballasts. Tenant shall pay
all charges for electricity, gas and other utilities used or
consumed in the Premises. Tenant shall bear the cost of repair and
maintenance of any electric or gas meter used or to be installed in
(or serving) the Premises.
(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, which operates on a
voltage in excess of 120 volts nominal. If Landlord shall consent
to the connection of any such fixtures, appliances or equipment,
all additional risers or other electrical facilities or equipment
required therefor shall be provided by Landlord and the cost
thereof shall be paid by tenant upon Landlord's demand as
Additional Rent. 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) Electricity and Gas Consumption.
(i) Electricity and Natural Gas used and consummed in the Premises
is measured by a single gas meter (the "Existing Gas Meter") and a
single Electric Meter (the "Existing Electric Meter"). In addition
to measuring consumption of Natural Gas and Electricity in the
Premises, the Existing Gas Meter and Existing Electric Meter
measure consumption of those utilities used and consumed in a
portion of the Building which is immediately adjacent to the
Premises and comprised of 13,619 rentable square feet (the
"Adjacent Space"). The Adjacent Space is presently vacant and
unoccupied and is not a portion of the Premises demised to Tenant
under this Lease. The provisions of this paragraph 7.5(c) are
intended to allocate certain responsibilities as to the payment of
electricity and natural gas costs and expenses between Landlord
(with respect to the Adjacent Space) and
-14-
19
Tenant (with respect to the Premises) as measured by the Existing
Gas Meter and the Existing Electric Meter.
(ii) Tenant hereby acknowledges that the Tenant is the
current named billing party with respect to the Existing Gas
Meter and the Existing Electricity Meter. Tenant hereby acknowleges
and agrees that subject to the terms and provisions hereafter set
forth and until receipt of written notice from the Landlord to the
contrary, all electricity and natural gas used and consumed in the
Adjacent Space shall be provided through the Existing Gas Meter and
the Existing Electric Meter with the allocation of expenses
resulting from such meters between Landlord and Tenant as
hereafter provided. Landlord and Tenant hereby acknowledge and
agree that the aggregate per square foot cost of providing natural
gas and electric service to the Adjacent Space is $0.20 per
rentable square foot contained in the Adjacent Space per annum.
(hereafter the "Per Square Foot Utility Cost"). The Per Square Foot
Utility Cost is based upon the assumption that the Adjacent Space
is vacant and unoccupied and is comprised of $0.12 per rentable
square foot per annum with respect to electricity and $0.08 per
rentable square foot per annum with respect to natural gas. Until
further written notice from Landlord as hereafter set forth, Tenant
shall be responsible for payment of all costs and expenses for gas
and electricity billed to the Existing Electric Meter and the
Existing Gas Meter for such time as the Existing Electric Meter
and/or the Existing Gas Meter shall remain in Tenant's name.
In order to reimburse Tenant for the cost of electricity
and gas used and consumed in the Adjacent Space, Landlord shall
pay Tenant an amount (the "Landlord's Utility Cost") equal to the
number of rentable square feet contained in the Adjacent Space
which shall from time to time be vacant (as designated by Landlord
in a "Landlord's Utility Statement" as hereafter defined)
multiplied by the Per Square Foot Utility Cost. Tenant shall from
time to time, but not more often than once every three full
calendar months while all or any portion of the Adjacent Space
shall remain unoccupied (or until further notice from Landlord)
invoice Landlord for the Landlord's Utility Cost attributable to
the three full calendar month period setting forth the number of of
such invoice (provided that the LST, such invoice shall be
applicable only to the three full calendar month period immediately
following the Commencement Date hereunder). Upon the written
request of Tenant, or at any time at the Landlord's election,
Landlord shall provide Tenant with a written calculation of the
Landlord's Utility Costs applicable to any such three full-calendar
month period setting forth the number of rentable square feet of
the Adjacent Space which was
-15-
20
unoccupied during such three month period and the actual number of
days of vacancy ("Landlord's Utility Statement"). Landlord's
Utility Statement shall be conclusive and binding upon Landlord and
Tenant. At Landlord's option, Landlord shall be entitled to offset
Landlord's Utility Costs against and apply amounts owing to Tenant
hereunder against obligations of Tenant to Landlord under this
Lease. Any failure by Tenant to pay amounts due and owing to the
applicable utilities for gas and electricity billed to the Existing
Gas Meter and/or the Existing Electric Meter shall entitle Landlord
to the same rights and remedies against Tenant as Landlord has for
a failure by Tenant to pay Basic Rent when due under this Lease.
(iii) Notwithstanding the terms and provisions contained
in paragraphs (i) and (ii) of this paragraph (c) to the contrary,
at such time as Landlord shall procure a tenant to occupy all or
any portion of the Adjacent Space, Landlord's obligation to pay
Landlord's Utility Costs with respect to the portion of the
Adjacent Space occupied by such third party shall cease and come to
an end. At Landlord's option, Landlord shall be entitled to
continue paying Landlord's Utility Cost with respect to any portion
of the Adjacent Space which would then remain unoccupied based upon
the number of rentable square feet contained in the Adjacent Space
as shall then be unoccupied and the provisions of paragraphs (i)
and (ii) of this paragraph (c) shall remain in force and effect and
shall be applicable to such portions of the Adjacent Space as
remain vacant.
(iv) Tenant hereby acknowledges and agrees, and Landlord
hereby reserves unto Landlord the right, exercisable by Landlord at
any time and from time to time during the Term of this Lease to
cause the Existing Electric Meter and the Existing Gas Meter (or
either of them) to be placed in Landlord's name for billing
purposes. In the event Landlord shall elect to implement the
procedure described in the first sentence of this paragraph (iv),
Landlord shall provide Tenant with written notice of such election
and Tenant hereby agrees to execute such documents and instruments
as may be required in order to effect a change of the named
billing party on the Existing Electric Meter and the Existing Gas
Meter (or either of them) to Landlord's name. The change of named
party provided herein shall be deemed effective as of the date
such change is made effective by the applicable utility (the
"Change Date"). Tenant shall be responsible for all bills for the
applicable utility being changed to Landlord's name prior to the
Change Date. From and after the Change Date, Landlord shall have
the right to cause electricity and natural gas used and consummed
in the Premises to be check-metered off of
-16-
21
the Existing Gas Meter and/or the Existing Electric Meter, as
applicable. As an additional charge hereunder, Tenant shall
reimburse Landlord for the cost of electricty and/or gas used and
consummed in the Premises as measured by the applicable check meter
within 15 days after being billed therefor by Landlord. Landlord
shall have the right to collect from Tenant monthly estimated
payments of the amounts Landlord reasonably estimates will be
sufficient to pay Tenant's electricity and/or gas bills resulting
from the Existing Gas Meter and the Existing Electric Meter
pursuant to this paragraph (iv).
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 all real estate taxes, special assessments and
betterment assessments assessed with respect to the Property for
any Tax Year.
(b) Tenant shall pay to Landlord, as an Escalation Charge, an
amount equal to (i) Taxes for each Tax Year (or partial Tax Year)
falling within the Term of this Lease, multiplied by (ii) 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.
(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
-17-
22
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 deducting Landlord's expenses
reasonably incurred in obtaining such refund, Landlord shall,
provided there does not then exist a Default of Tenant, credit an
amount equal to such refund or reimbursement or sum in lieu thereof
(exclusive of any interest) multiplied by the Escalation Factor
against the obligations of Tenant next falling due under this
Article VIII; provided, that in no event shall Tenant be entitled
to receive a credit equal to more than the payments made by Tenant
on account of real estate tax increases for such Year pursuant to
paragraph (b) of Section 8.1 or to receive any payments or
abatement of Basic Rent if Taxes for any Year are less than Base
Taxes or Base Taxes are abated.
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:
- 18 -
23
(i) Operating Year: Each calendar year in which any part
of the Term of this Lease shall fall.
(ii) Operating Expenses: The aggregate costs or expenses
reasonably incurred by Landlord with respect to the operation,
administration, cleaning, repair, maintenance and management of 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 was
occupied by tenants or if Landlord is not supplying all tenants
with the services being supplied hereunder, actual Operating
Expenses incurred shall be reasonably extrapolated by Landlord on
an item by item basis to the estimated Operating Expenses that
would have been incurred if the Building were fully occupied for
such Year and such services were being supplied to all tenants, and
such extrapolated amount shall, for the purposes hereof, be deemed
to be the Operating Expenses for such Year.
(iii) 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 Building 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
Building were fully occupied for such 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 Year.
9.2 TENANT'S PAYMENTS. (a) Tenant shall pay to Landlord, as an
Escalation Charge, an amount equal to (i) Operating Expenses for
each Operating Year (or partial Operating Year) falling within in
the Term of this Lease 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.
(b) Tenant shall pay to Landlord, as an Escalation Charge, an
amount equal to (i) Utility Expenses for each Operating Year (or
partial Operating Year) falling within the Term of this Lease
multiplied by (ii) the Escalation Factor, such amount to be
apportioned for any partial
-19-
24
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
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 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 and Utility Expenses for such Year, and Landlord
shall certify to the accuracy thereof. If estimated payments
theretofore made for such Year by Tenant exceed Tenant's required
payment on account thereof for such Year, according to such
statement, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant with respect to Operating Expenses
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 Year are greater than the estimated payments (if any)
theretofore made on account thereof for such 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 and Utility Expenses as Landlord has
hereunder for the failure of Tenant to pay Basic Rent.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be
made effective according to law, Tenant agrees to defend,
indemnify 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
-20-
25
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. 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 broad form
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, and a duplicate original or certificate thereof
shall be delivered to Landlord.
10.3 TENANT'S RISK. 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; and 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
- 21 -
26
"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 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.
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
-22-
27
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, 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
-23-
28
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, Reimbursement
Rent, Escalation Charges or other sums payable as additional charges
hereunder when due; or
(ii) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be performed or
observed, 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
-24-
29
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 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
-25-
30
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 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 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
-26-
31
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. 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 expenses) in
enforcing its rights hereunder or occasioned by any Default of Tenant
shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT. 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.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will
not do or permit anything to be done in or
-27-
32
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
-28-
33
Property at the time owned, for recovery of any judgment from Landlord;
it 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 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.
-29-
34
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
assignment by Landlord of Landlord's interest in this Lease, or the
rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage on property which
includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage,
shall never be treated as an assumption by such holder of any of the
obligations of Landlord hereunder unless such holder shall, by notice
sent to Tenant, specifically otherwise elect and 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
thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder.
14.7 RULES AND REGULATIONS. Tenant shall abide by rules and regulations set
forth in Exhibit C attached hereto and those rules and regulations from
time to time established by Landlord, it being agreed that such rules
and regulations will 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.
-30-
35
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.
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 730 Third Avenue, New
York, New York 10017 Attention: Douglas Lawrence (or to such other
address as
-31-
36
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 until the Commencement Date and thereafter to the Premises (or
to such other address 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 agreement as such holder
may request, and Tenant hereby appoints such holder as Tenant's
attorney-in-fact to execute such subordination or attornment agreement
upon default of Tenant in complying with such holder's request.
-32-
37
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. Concurrently with the execution and delivery of this
Lease, Tenant shall deposit the Security Deposit specified in Section
1.2 hereof and that Landlord shall hold the same throughout the Term of
this Lease as security for the performance by Tenant of all obligations
on the part of Tenant hereunder. Landlord shall have the right from
time to time without prejudice to any other remedy Landlord may have on
account thereof, to apply such deposit, or any part thereof, to
Landlord's damages arising from, or to cure, any Default of Tenant. If
Landlord shall so apply any or all of such deposit, Tenant shall
immediately deposit with Landlord the amount so applied to be held as
security hereunder. There then existing no Default of Tenant, Landlord
shall return the deposit, or so much thereof as shall theretofore not
been applied in accordance with the terms of this Section 14.17, to
Tenant on the expiration or earlier termination of the Term of this
Lease and surrender of possession of the Premises by Tenant to
Landlord at such time. While Landlord holds such deposit, Landlord
shall have no obligation to pay interest on the same and shall have the
right to commingle the same with Landlord's other funds. If Landlord
conveys Landlord's interest under this Lease, the deposit, or any part
thereof not previously applied, may be turned over by Landlord to
Landlord's grantee, and, if so turned over, Tenant agrees to look
solely to such grantee for proper application of the deposit in
accordance with the terms of this Section 14.17, and the return thereof
in accordance therewith. The holder of a mortgage shall not be
responsible to Tenant for the return or application of any such
deposit, whether or not it succeeds to the position of Landlord
hereunder, unless such deposit shall have been received in hand by such
holder.
Provided that Tenant is not otherwise in default in the performance or
observance of any term, covenant, condition or agreement to be
performed or observed by Tenant hereunder, Tenant shall be permitted to
apply a portion (namely $7,455.37) of the Security Deposit held by
Landlord hereunder against the Basic Rent obligation
-33-
38
for and with respect to the last month of the Initial Term.
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
less than 18% per annum), as an additional charge. Any payment of Fixed
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 less than 18% per annum) from 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 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 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
-34-
39
respect to such loss to the extent of the insurance proceeds paid with
respect thereto.
4.21 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. If Landlord so requests, Tenant shall vacate the
Premises and relinquish its rights with respect to the same provided
that Landlord shall provide to Tenant substitute space in the Building,
such space to be reasonably comparable in size, layout, finish and
utility to the Premises, and further provided that Landlord shall, at
its sole cost and expense, move Tenant and its Removable Property from
the Premises to such new space in such manner as will minimize, to the
greatest extent practicable, undue interference with the business or
operation of Tenant. Any such substitute space shall, from and after
such relocation, be treated as the Premises demised under this Lease,
and shall be occupied by Tenant under the same terms, provisions and
conditions as are set forth in this Lease.
14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
broker in connection with the consummation of this Lease and, in the
event of any brokerage claims against Landlord predicated upon prior
dealings with Tenant, Tenant agrees to defend the same and indemnify
Landlord against any such claim (except any claim by the Broker).
14.24 SPECIAL TAXATION PROVISIONS. Landlord shall have the right at any time
and from time to time, to unilaterally amend the provisions of this
Lease if Landlord is advised by its Counsel that all or any portion of
the monies paid
-35-
40
by Tenant to Landlord hereunder are, or may be deemed to be, unrelated
business income within the meaning of the United States Internal
Revenue Code, or regulation issued thereunder, and Tenant agrees that
it will execute all documents or instruments necessary to effect such
amendment or amendments, provided that no such amendment shall result
in Tenant having to pay in the aggregate more money on account of its
occupancy of the demised premises under the provisions of this Lease as
so amended and provided further, that no such amendment or amendments
shall result in Tenant receiving under the provisions of this Lease
less services than it is entitled to receive nor services of a lesser
quality. Anything contained in the foregoing provisions of this Lease
(including, without limitation, Article VI hereof) to the contrary
notwithstanding, neither Tenant nor any other person having an interest
in the possession, use, occupancy or utilization of the Premises, shall
enter into any lease, sublease, license, concession or other agreement
for use, occupancy, utilization of space in the Premises which provides
for rental or other payment for such use, occupancy or utilization of
space, in whole or in part, on the net income or profits derived by any
person from the Premises leased, used, occupied or utilized (other than
an amount based on a fixed percentage or percentage of receipts for
sales) and any such recorded lease, sublease, license, concession or
other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy
or utilization of any part of the Premises.
14.25 HAZARDOUS MATERIALS. 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 law or by the highest standards prevailing in the
industry 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, 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. SS 1251 et seq. (33 U.S.C. SS 1321) or listed pursuant to SS 307
of the Federal Water Pollution Control Act (33 U.S.C. SS 1317), (iv)
defined as a "hazardous waste" pursuant to
-36-
41
Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
SS 6901 et seq. (42 U.S.C. SS 6903), (v) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. SS 9601 et seq.
(42 U.S.C. SS 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 if such requirement applies to the Premises
or may be the result of the acts or omissions of Tenant. In addition,
Tenant shall execute affidavits, representations and the like, from
time to time, at Landlord's request concerning Tenant's best knowledge
and belief regarding the presence of Hazardous Materials on the
Premises. In all events, Tenant shall indemnify and save Landlord
harmless from any release on threat of release on the presence or
existence of Hazardous Materials on the Premises occurring while Tenant
is in possession, or elsewhere on the Property if caused by Tenant or
persons acting under Tenant. The within covenants and indemnity 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.
14.26 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.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly
-37-
42
authorized, in multiple copies, each to be considered an original hereof, as of
the date first set forth above.
TENANT:
VOICETEK CORPORATION
Dated: May 25, 1993 By: /s/ Stephen A. Gorgal
--------------- -----------------------------
Its: Treasurer
-----------------------------
LANDLORD:
TEACHERS REALTY CORPORATION
Dated: May 25, 1993 By: /s/ Richard J. Usas
--------------- -----------------------------
Its: Director
----------------------------
43
EXHIBIT A
[VOICETEK FLOOR PLAN]
44
EXHIBIT B
[VOICETEK PARTIAL FLOOR PLAN]
45
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, paved and/or landscaped areas shall not be obstructed
or encumbered by Tenant or used for any purpose other than ingress and egress to
and from the demised premises.
2. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the demised
premises or Building so as to be visible from outside the demised premises
without the prior written consent of Landlord, which will not be unreasonably
withheld or delayed
In the event of the violation of this paragraph,
Landlord may remove same without any liability, and may charge the expense
incurred in such removal to Tenant, as additional rent.
3. No awnings, curtains, blinds, shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
demised premises or any outside wall of the Building without the prior written
consent of Landlord, which will not be unreasonably withheld or delayed so long
as said awning or other item conforms to similar items installed in or upon
other portions of the Building. Such awnings, curtains, blinds, shades, screens
or other projections must be of a quality, type, design and color, and attached
in the manner, approved by Landlord. If any portion of the demised premises
which is not used for office purposes shall have windows, such windows shall be
equipped with curtains, blinds or shades approved by Landlord, and curtains,
blinds or shades shall be kept closed said at all times.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids, chemicals, process water,
cooling water or like substances shall be deposited therein. Said plumbing
fixtures and the plumbing system of the Building shall be used only for the
discharge of so-called sanitary waste. All damage resulting from any misuse of
said fixtures and/or plumbing system by Tenant or anyone claiming under Tenant
shall be borne by Tenant.
5. Tenant must, upon the termination of its tenancy, return to Landlord
all locks, cylinders and keys to the demised premises and any offices therein.
6. Tenant shall keep any sidewalks and planters in front of the demised
premises reasonably free and clear of litter and refuse, regardless of the
source thereof.
7. Tenant shall, at Tenant's expense, provide artificial light and
electric current for the employees of Landlord and/or Landlord's contractors
while making repairs or alterations in the demised premises.
46
8. Tenant shall not make, or permit to be made, any unseemly or
disturbing odors or noises or disturb or interfere with occupants of the
Building or those having business with them, whether by use, of any musical
instrument, radio, machine, or in any other way.
9. Canvassing, soliciting, and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
10. Tenant shall keep the demised premises free at all time of pests,
rodents and other vermin, and Tenant shall keep all trash and rubbish stored in
containers of a type approved by Landlord, such containers to be kept at
locations designated by Landlord. Tenant shall cause such containers to be
emptied whenever necessary to prevent them from overflowing or from producing
any objectionable odors.
11. Landlord reserves the right to rescind, alter, waive and/or
establish any reasonable rules and regulations of uniform application to all
tenants which, in its judgment, are necessary, desirable or proper for its best
interests and the best interests of the occupants of the Building.
12. The access roads, driveways, entrances and exits shall not be
obstructed or encumbered by Tenant or used for any purpose other than ingress
and egress.
47
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.
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, and protection of
the Property, and its mechanical systems including, without
limitation, day and night supervisors, 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, 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 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 mortgagees 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.
48
EXHIBIT F
TENANT'S JANITORIAL SPECIFICATIONS
EACH VISIT
1. Empty all trash.
2. Replace liners as needed.
3. Empty and wash all ashtrays.
4. Dust all flat surfaces and cleared desks.
5. Clean glass doors.
6. Clean kitchen and coffee areas.
7. Thoroughly clean restrooms; and restock with soap and paper supplies.
8. Vacuum all carpeting.
9. Dust mop tile floors.
10. Damp mop tile floors.
11. Spray buff tile floors: as needed.
12. Turn off all lights, lock doors and leave premises in orderly
condition.
The above services are done on Tuesday, Thursday and Saturday of each week.
49
5. Intentionally Omitted.
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, an 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 or special 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.
9. Management Fees payable to contractors or managers for operation and
management of the Building.