Exhibit 10.1
Viking Systems, Inc.
Form 8-K
File No. 000-49636
L E A S E
THIS INSTRUMENT IS A LEASE, dated as of September 23, 2004 in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
space in the building (the "Building") known as 134 Flanders Lane, Westborough,
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: Robert F. Tambone as Trustee of MAT
Realty Trust u/d/t dated June 4, 1986 and
recorded with the Worcester County
Registry of Deeds
Landlord's Original Address: c/o Atlantic Tambone
6 Kimball Lane, Suite 300
Lynnfield, MA 01940
Tenant: Viking Systems, Inc.
Tenant's Original Address: 134 Flanders Road
Westborough, MA
Guarantor: NA
Basic Rent: For the first, second and third year of the Term, the sum of
One-Hundred Sixty Thousand Three Hundred Eighty ($160,380.00) Dollars per annum
or $9.00 per square foot of Premises Rentable Area; as the same may be adjusted
and/or abated pursuant to Section 12.1. If the Term of this Lease includes any
partial calendar month after the Commencement Date and before the beginning of
Lease Year 1, Basic Rent shall be payable during such partial calendar month at
the rate applicable during Lease Year 1.
Monthly Rent Payment: For Lease Year 1, 2 and 3, $13,365.00 per month
Premises Rentable Area: Approximately 17,850 square feet located on the 1st
floor of the Building.
Permitted Uses: General office, exclusive however of an office use that
would cause or result in the Premises being deemed "a place of public
accommodation" as defined in the Americans with Disabilities Act of 1990, as
amended (the "Disabilities Act").
Tenant's Proportionate Share: 31.3%, as computed in accordance with the
Percentage Share Computation.
Initial Term: Three (3) years commencing on the Commencement Date and
expiring at the close of the day immediately preceding the anniversary of the
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: $26,730.00 - Two Months Rent
Parking: Non-exclusive use of 60 spaces in the Building parking lot, to be
used in common with other tenants, guests, employees, invitees and others
entitled to the use thereof.
1.3 ADDITIONAL DEFINITIONS.
Broker: Spaulding & Slye Colliers
Building Rentable Area: 57,000 rentable square feet.
Building: The principal building on the Land, containing the Building
Rentable Area, commonly known as 134 Flanders Lane, Westborough, Massachusetts.
Business Days: All days except Saturday, Sunday, New Year's Day, Martin
Luther King 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: October 15, 2004
Default of Tenant: As defined in Section 13.1.
Escalation Charges: The Tenant's Proportionate Share of Expenses and Taxes
payable under Sections 8.1 and 9.2 of this Lease.
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Percentage Share Computation: Premises Rentable Area divided by Building
Rentable Area.
Exterior Common Facilities: (1) All landscaping, parking areas, loading
docks, loading areas and other buildings and improvements on the Land other than
the Building, and (2) whether located on the Land or on other land or property,
all driveways and walkways necessary for access to the Premises, all retention
ponds and other improvements and facilities providing drainage for the benefit
of the Land and the Building, and all wires, cables, poles, mains, conduits,
trenches, manholes and other fixtures, facilities and equipment necessary or
convenient to provide electricity, telephone, cable, gas, water, sewer and other
utility and telecommunications services to the Building.
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.
Land: The parcel or parcels of land described on Exhibit A-1 attached to
this Lease.
Lease Year: Lease Year 1 shall be the period of twelve full calendar months
commencing on the Commencement Date or, if the Commencement Date is not the
first day of a calendar month, on the first day of the first full calendar month
occurring after the Commencement Date. Lease Years 2 through 3 shall be two
consecutive periods of twelve full calendar months occurring after Lease Year 1.
Manager: Atlantic Tambone
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 Land, the Building and the Exterior Common Facilities,
together with any easements, reservations and other recorded right relating to
the installation, construction, inspection, repair, replacement, maintenance and
operation of the Exterior Common Facilities.
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Rent Commencement Date: The Lease Commencement Date
Tax Year: As defined in Section 8.1.
Taxes: As determined in accordance with Section 8.1.
Tenant's 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 - Janitorial Services
Exhibit C - Operating Expenses
Exhibit D - Rules and Regulations
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 (1) the lobbies, hallways, stairways
and, elevators and other common areas necessary for access to the Premises (the
"Interior Common Areas"), (2) if the portion of the Premises on any floor of the
Building includes less than the entire floor, lavatories for common use by
tenants on such floor, (3) the loading dock in the tenant's premises, (4) the
pipes, wires, cables, conduits, ducts and other fixtures, facilities and
equipment necessary or convenient to provide electricity, telephone, cable, gas,
water, sewer and other utility and telecommunications services to the Premises,
and (5) the Exterior Common Areas (including the right to the Parking), but 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, at no expense to Tenant, to designate and change from time to time
areas and facilities so to be used.
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(b) Excepted and excluded from the Premises are the ceiling, floor,
perimeter walls and exterior windows, except the inner surfaces thereof, but the
entry doors (and related glass and finish work) to the Premises are a part
thereof; and Tenant agrees that Landlord shall have the right to place in the
Premises (but in such manner as to reduce to a minimum interference with
Tenant's use of the Premises) interior storm windows, subcontrol devices (by way
of illustration, an electric sub panel, etc.), utility lines, pipes, equipment
and the like, in, over and upon the Premises. Tenant shall install and maintain,
as Landlord may require, proper access panels in any hung ceilings or walls as
may be installed by Tenant in the Premises to afford access to any facilities
above the ceiling or within or behind the walls.
ARTICLE III
BASIC RENT
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by Landlord,
commencing on the Commencement Date without offset, abatement (except as
provided in Article 12.1), deduction or demand, the Basic Rent. Such Basic Rent
shall be payable in equal monthly installments, in advance, on the first day of
each and every calendar month during the Term of this Lease, at Landlord's
Original Address, or at such other place as Landlord shall from time to time
designate by notice to Tenant, in lawful money of the United States. Until
notice of some other designation is given, Basic Rent and all other charges for
which provision is herein made shall be paid by remittance payable to the
Landlord and addressed c/o Atlantic Tambone at 6 Kimball Lane, Suite 300,
Lynnfield, MA 01940, and all remittances so received as aforesaid, or by any
subsequently designated recipient, shall be treated as a payment to Landlord. In
the event that any installment of Basic Rent is not paid when due, Tenant shall
pay, in addition to any Escalation Charges or other additional charges due under
this Lease, at Landlord's request an administrative fee equal to 5% of the
overdue payment.
(b) The monthly installment of Basic Rent and any Escalation Charges for
any partial calendar month with the Term of this Lease shall be pro-rated at a
rate of 1/30 of such installment for each day of such calendar month within the
Term of this Lease, 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 such prorated 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) Landlord acknowledges receipt from Tenant of the Security Deposit to be
held as security to be forfeited, without limitation of other remedies, for any
default or Event of Default hereunder by Tenant occurring prior to the
commencement of the term hereof. If no such default occurs, then such payment
shall be held by Landlord in accordance with the provisions of Section 14.17
hereof.
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ARTICLE IV
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. The Commencement Date shall be October 15, 2004.
4.2 PREPARATION OF THE PREMISES. Landlord shall deliver, and Tenant hereby
accepts, delivery of the Premises in its AS IS condition. It is understood that
Tenant may seek to make alterations of the Premises at some later date in which
event Landlord's approval shall be obtained in the manner provided in Section
5.2 hereof.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. The Premises are being leased in
their condition, "as is" without warranty or representation by Landlord. Tenant
acknowledges that it has inspected the Premises and common areas of the Building
and, except for Landlord's Work, has found the same to be satisfactory.
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 as set forth in Article 1.2.
(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 accordance with reasonable rules and
regulations established by Landlord under Section 14.7 of this Lease.
(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, and
Landlord has approved, 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.
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(iv) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and regulations.
(v) Tenant shall continuously throughout the Term of this Lease occupy
the Premises for the Permitted Uses and for no other purposes.
(vi) Tenant shall not permit smoking in the Building at any time
during the Term.
5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions (including, for the purposes hereof, wall-to-wall
carpeting), or improvements in or to the Premises without Landlord's prior
written consent. Any such alterations, additions or improvements shall (i) be in
accordance with complete plans and specifications prepared by Tenant and
approved in advance by Landlord; (ii) be performed in a good and workmanlike
manner and in compliance with all applicable laws; (iii) be performed and
completed in the manner required in Section 5.2(d) hereof; (iv) be made at
Tenant's sole expense and at such times as Landlord may from time to time
designate; and (v) become a part of the Premises and the property of Landlord.
(b) All articles of personal property and all trade fixtures, machinery and
equipment and furniture owned or installed by Tenant 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) Landlord and Tenant shall cooperate reasonably to coordinate any
alterations, additions, improvements, maintenance, repairs, replacements and
other work being performed by Landlord or Tenant in the Building and in such
manner as to maintain harmonious labor relations. Tenant shall not damage the
Property or interfere with Building's construction or operation and, except for
installation of furnishings, shall be performed by Landlord's general contractor
or, at Tenant's election, by contractors or workmen first approved by Landlord,
which approval shall not be unreasonably withheld, delayed or conditioned.
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
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compensation insurance in statutory amounts covering all the contractor's and
subcontractor's employees and comprehensive public liability insurance and
property damage insurance with such limits as Landlord may reasonably require
but in no event less than a combined single limit of Three Million and No/100ths
($3,000,000.00) Dollars (all such insurance to be written in companies approved
by Landlord and naming Landlord, Landlord's Manager and Tenant as additional
insureds), 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) which are done in excess of the allowances set
forth in Exhibit C, whether done prior to or after the commencement of the Term
of this Lease.
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 all or substantially all of Tenant's
assets or 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
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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 or to issuance, whether by private
offering or by initial public offering of Tenant's stock to any party (any of
the above, an "Affiliate Transfer"), provided that, with respect to such a
merger or consolidation (i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles ("GAAP") at least equal
to the net worth of Tenant as of the date of this Lease and 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. "Net Worth"
means the excess of total assets over total liabilities, excluding, however,
from the determination of total assets all assets which would be classified as
intangible assets under GAAP including, without limitation, goodwill, licenses,
patents, trademarks, trade names, copyrights, and franchises.
(c) If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may, at any time and
from time to time, collect rent and other charges from the assignee, subtenant
or occupant, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy, collection or
modification of any provisions of this Lease shall be deemed a waiver of this
covenant, or the acceptance of the assignee, subtenant or occupant as a tenant
or a release of the original named Tenant from the further performance by the
original named Tenant hereunder. No assignment or subletting hereunder shall
relieve Tenant from its obligations hereunder and Tenant shall remain fully and
primarily liable therefor. No assignment or subletting, or occupancy shall
affect Permitted Uses.
6.2 SUBLEASE AND ASSIGNMENT RIGHTS. Notwithstanding the prohibition set forth in
Section 6.1, Landlord shall not unreasonably withhold its consent to a
subletting or assignment requested by Tenant, provided that: (i) in Landlord's
reasonable judgment, the business of the proposed subtenant or assignee or the
proposed use of the Premises will not adversely affect the reputation or image
of the Building (subleases or assignments for governmental uses, for medical or
dental offices or for health or fitness facilities being examples of businesses
or uses which may adversely affect the Building's reputation or image as a first
class office building); (ii) the total number of tenants (including Tenant)
occupying any floor within the Premises at any one time shall not exceed four
(4), which number shall be prorated for partial floors; (iii) such sublease(s)
shall not, in the aggregate, cover more than 50% of the Rentable Area of the
Premises; (iv) the rent to be derived by such sublease or assignment is payable
monthly at a fixed rate or at a rate which is determinable from the terms of the
sublease or assignment and not based on the net or gross income or profits
derived by such subtenant assignee from the Premises; (v) Tenant is not then in
default of its obligations under the Lease and (vi) Landlord has been furnished
with information sufficient to make a determination as to each of the foregoing
requirements. If Landlord shall withhold such consent, it shall set forth in
writing the reasons therefor.
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6.3 RECAPTURE RIGHT. In the event that Tenant shall desire to enter into an
assignment or sublease to any party other than an Affiliate, then Tenant shall
give Landlord notice thereof and Landlord may elect to recapture such space from
Tenant by giving notice to Tenant of such election not later than five (5) days
after receiving notice of such sublease or assignment from Tenant. In the event
that Landlord shall not elect so to recapture such space for any reason, then
Tenant may enter into such assignment or sublease within one hundred eighty
(180) days after Landlord has elected not to recapture such space on terms and
conditions not materially more favorable to the assignee or subtenant than those
set forth in the notice to Landlord. If Tenant shall not so enter into such
assignment or sublease, or if, after Landlord has elected not to recapture such
space, Tenant shall alter the terms and conditions thereof to make them
materially more favorable as aforesaid, Tenant shall again notify Landlord and
Landlord shall have an additional fifteen (15) days within which to elect to
recapture such space. In the event that Landlord recaptures such space from
Tenant, Landlord and Tenant shall execute an amendment terminating this Lease as
to that portion of the Premises which is recaptured by Landlord, and such
termination shall be effective upon the execution of such amendment and the
vacating of such space in the condition required by Section 14.18 hereof by
Tenant.
6.4 SUBLEASE OR ASSIGNMENT PROFITS. If the rent and other sums received by
Tenant on account of a permitted sublease or assignment exceed the sum of (i)
the Base Rent and Escalation Charges allocable to the Premises subject to the
sublease or assignment (in the proportion of the rentable area of such space to
the entire Premises Rentable Area), (ii) an amortization factor for reasonable
legal fees and brokerage commissions incurred by Tenant in connection with such
subleasing or assignment, (computed consistently with generally accepted
accounting principles and amortized in equal monthly payments over the then
remainder of the term of the sublease or assignment) and (iii) an amortization
factor for the undepreciated value (computed consistently with generally
accepted accounting principles, and amortized in equal monthly payments over the
then remainder of the Term of this Lease) of any improvements installed in the
portion of the Premises affected by such sublease at the sole cost and expense
of Tenant, Tenant shall pay to Landlord, as additional rent, 75% Landlord, 25%
Tenant of such excess, as received by Tenant.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS.. (a) Landlord agrees to keep in good order, condition and
repair: (i) the roof, columns foundation, exterior walls (including exterior
glass) and other structural components of the Building; (ii) the Interior Common
Areas; (iii) the heating, ventilation, air-conditioning, plumbing, electrical,
mechanical and other systems and equipment serving the Premises or the Interior
Common Areas exclusively or in common with other areas of the Building,
excluding any systems installed specifically for use in Tenant's business
operations (the "Building's Systems"); and (iv) the Exterior Common Areas; but
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) at the entry
to the Premises. Landlord shall not be responsible to make any repairs to the
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Building other than as expressly in this section 7.1 provided, unless expressly
provided otherwise in this Lease.
(b) Landlord shall never be liable for any failure to make repairs which
Landlord has undertaken to make under the provisions of this section 7.1 or
elsewhere in this Lease, unless Tenant has given notice to Landlord of the need
to make such repairs, and Landlord has failed to commence to make such repairs
within a reasonable time after receipt of such notice, or fails to proceed with
reasonable diligence to complete such repairs.
(c) Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option be furnished from time to
time, in whole or in part, by employees of Landlord or by the Manager of the
Property or by one or more third persons 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.
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 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). Without limitation of the foregoing, Tenant shall
not do or perform, and shall not permit its agents, servants, employees,
contractors or invitees to do or perform any act or thing in or upon the
Property which will invalidate or be in conflict with the certificate of
occupancy for the Premises or the Building or violate any statute, law, rule,
bylaw or ordinance of any governmental entity having jurisdiction over the
Property (the "Requirements") including, without limitation, the Americans with
Disabilities Act of 1990, as amended (the "Disabilities Act"). Tenant shall, at
Tenant's sole cost and expenses, take all action, including the making of any
improvements or alterations necessary to comply with all Requirements as
modified and supplemented from time to time which shall, with respect to the
Premises or with respect to any abatement of nuisance, impose any violation,
order or duty upon Landlord or Tenant arising from, or in connection with the
Premises, Tenant's occupancy, use or manner of use of the Premises (including,
without limitation, any occupancy, use or manner of use that constitutes a
"place of public accommodation" under the Disabilities Act), or any
installations in the Premises, or required by reason of a breach of any of
Tenant's covenants or agreements under this Lease, whether or not such
Requirements shall now be in effect or hereafter enacted or issued, and whether
or not any work required shall be ordinary or extraordinary or foreseen or
unforeseen at the date hereof.
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(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 (currently 100
pounds per square foot). 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 provide:
(i) Elevator service from the existing elevator system in common with
Landlord and other tenants in the Building;
(ii) Hot water for lavatory purposes and cold water 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 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.
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(iii) Cleaning and janitorial services to the Premises, provided the
same are kept in order by Tenant, as described in Exhibit D hereto; and
(iv) Access to the Premises on all days twenty-four hours per day,
subject to reasonable security restrictions and restrictions based on
emergency conditions and all other applicable provisions of this Lease
including, without limitation, the provisions of Section 7.4(a) hereof.
(c) Landlord reserves the right to curtail, suspend, interrupt and/or stop
the supply of water, sewage, electrical current, cleaning, and other services,
and to curtail, suspend, interrupt and/or stop use of entrances and/or lobbies
serving access to the Building, without thereby incurring any liability to
Tenant, when necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements in the judgment of Landlord desirable
or necessary, or when prevented from supplying such services or use by Force
Majeure, 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 UTILITIES (a) The Tenant shall pay when due all charges for utility services
provided to the Premises including, without limitation, electricity, gas, water,
telephone, and the facilities to heat or air-condition the premises. If water
consumed by the tenant is not metered separately from water consumed by the
remainder of the building, tenant shall pay to landlord, upon being billed
therefor by landlord, tenant's proportionate share of the aforesaid. The
aforementioned share is based on the assumption that water in the premises will
be used only for ordinary drinking and lavatory purposes. If water is consumed
in the premises for other purposes or in excessive quantities, then tenant shall
pay to landlord, on demand from time to time, charges for said additional water
as reasonably estimated by landlord. Landlord reserves the right to install a
water meter to measure water consumption in the premises if not installed at the
commencement date. If any other utility is not separately metered for the
premises, or serves common areas of the building or land parcel, tenant shall
pay tenant's proportionate share in accordance herewith.
(b) In order to insure that the foregoing requirements are not exceeded and
to avert possible adverse affect on the Building's electrical system, Tenant
shall not, without Landlord's prior consent, connect any fixtures, appliances or
equipment to the Building's electrical distribution system other than
typewriters, word processors, photocopiers, printers, computers, scanners,
faxes, phones and other similar customary office equipment. From time to time
during the Term of this Lease, Landlord shall have the right to have an
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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) The landlord shall be responsible for the effecting maintenance and
repair of all heating, ventilation, and air-conditioning equipment directly
serving the tenant, and tenant shall pay to landlord within thirty (30) days of
invoice therefor all costs connected with such maintenance and repair.
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 taxes and special assessments of every kind and nature assessed
by any governmental authority on the Property which the Landlord shall become
obligated to pay because of or in connection with the ownership, leasing and
operation of the Property assessed with respect to the Property for any Tax
Year; provided that the amount of special taxes or special assessments to be
included shall be limited to the amount of the installment (plus any interest,
other than penalty interest, payable thereon) of such special tax or special
assignment required to be paid during the year in respect of which such taxes
are being determined.
(b) Tenant shall pay to Landlord, as an Escalation Charge, an amount equal
to (i) the Taxes for the Property, multiplied by (ii) the Tenant's Proportionate
Share ("Tenant Proportionate Share of Taxes"), 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 Tenant's Proportionate Share
of Taxes shall be made monthly, at the time and in the fashion herein provided
for the payment of Basic Rent, in equal installments sufficient in the aggregate
to provide Landlord, by the time real estate tax payments are due, the total
Tenant's Proportionate Share of Taxes due from Tenant on account of such
payments. Promptly after receipt by Landlord, from time to time, of any bills
for Taxes due with respect to any Tax Year, Landlord shall deliver to Tenant a
copy of such bills and a reasonable estimate, based on such bill, of (i) the
Tenant's Proportionate Share of Taxes payable by Tenant during the period
covered by such bill and (i) the Tenant's payment on account of such estimated
Taxes. If estimated payments theretofore made by Tenant for the Tax Year covered
by such bills exceed the required payments on account of Taxes for such Tax Year
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due from Tenant as of the time Tenant shall receive the most current bill and
estimate from Landlord, Landlord shall credit the amount of such excess against
subsequent payments from Tenant on account of Taxes (or refund such excess if
the Term of this Lease has ended and Tenant has no further obligation to
Landlord); but if such required payments on account of Taxes for such Tax Year
exceed than estimated payments theretofore made on account thereof for such Tax
Year, Tenant shall make payment of such excess to Landlord within 30 days after
being so advised by Landlord in writing. 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 pay to Tenant, provided there does not then exist a Default of
Tenant, an amount equal to such refund or reimbursement or sum in lieu thereof
(exclusive of any interest) multiplied by the Tenant's Proportionate Share;
provided, that in no event shall Tenant be entitled to receive more than the
payments made by Tenant on account of Taxes for such Tax Year pursuant to
paragraph (b) of Section 8.1.
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 other than net income taxes or franchise
taxes, Tenant agrees that Tenant shall pay a Tenant's 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:
(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 (specifically
including Utility Expenses and Taxes) all as set forth in Exhibit E annexed
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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 Operating 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 ("Tenant's Proportionate Share of Expenses") equal to (i) such
Operating Expenses multiplied by (ii) the Tenant's Proportionate Share, such
amount to be apportioned for any partial Operating Year in which the
Commencement Date falls or the Term of this Lease ends. Tenant shall also pay to
landlord in twelve (12) equal monthly installments commencing on the
commencement date and payable in advance on the first day of each calendar month
during the term, a management fee equal to three percent (3%) of Base rent (as
the same is adjusted as provided herein) owed by tenant to landlord under the
terms of this lease. The management fee shall be prorated for any partial month
included in the term.
(b) Estimated payments by Tenant on account of Tenant's Proportionate Share
of Expenses shall be made monthly, at the time and in the fashion herein
provided for the payment of Basic Rent, in equal installments sufficient in the
aggregate to provide Landlord, by the end of each Operating Year, a sum equal to
the Tenant's Proportionate Share of Expenses for such Operating Year, as
estimated by Landlord from time to time during each Operating Year. Within 90
days 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, together with a statement of the Tenant's Proportionate Share thereof
for such Operating Year, and Landlord shall certify to the accuracy of such
accounting and statement. If estimated payments theretofore made for such
Operating Year by Tenant exceed the actual Tenant's Proportionate Share of
Expenses for such Operating Year, according to such accounting, Landlord shall
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credit the amount of excess against subsequent payments from Tenant with respect
to Expenses (or refund such excess if the Term of this Lease has ended and
Tenant has no further obligation to Landlord), but, if the required payments on
account of such Operating Year exceed the estimated payments (if any)
theretofore made on account thereof for such Operating Year, Tenant shall make
payment of such excess 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 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, indemnity and save harmless
Landlord from and against all claims, loss, liability, costs and damages of
whatever nature arising from any default by Tenant under this Lease and the
following: (i) from any accident, injury, death or damage whatsoever to any
person, or to the property of any person, occurring in or about the Premises;
(ii) from any accident, injury, death or damage occurring outside of the
Premises but on the Property, where such accident, damage or injury results or
is claimed to have resulted from an act or omission on the part of Tenant or
Tenant's agents, employees, invitees or independent contractors; or (iii) in
connection with the conduct or management of the Premises or of any business
therein, or any thing or work whatsoever done, or any condition created (other
than by Landlord) in or about the Premises; and, in any case, occurring after
the date of this Lease, until the end of the Term of this Lease, and thereafter
so long as Tenant is in occupancy of the Premises. This indemnity and hold
harmless agreement shall include indemnity against all costs, expenses and
liabilities incurred in, or in connection with, any such claim or proceeding
brought thereon, and the defense thereof, including, without limitation,
reasonable attorneys' fees and costs at both the trial and appellate levels. 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 commercial liability insurance
(including broad form contractual liability, independent contractor's hazard and
completed operations coverage) insuring Tenant and naming 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) as additional insureds. Each such policy shall be
noncancelable 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
reasonably 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
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any loss of or damage to Tenant's Removable Property or for any inconvenience,
annoyance, interruption or injury to business arising from Landlord's making any
repairs or changes which Landlord is permitted by this Lease or required by law
to make in or to any portion of the Premises or other sections of the Property,
or in or to the fixtures, equipment or appurtenances thereof. Tenant shall carry
"all-risk" property insurance on a "replacement cost" basis (including so-called
improvements and betterments), and provide a waiver of subrogation as required
in Section 14.20. The provisions of this Section 10.3 shall be applicable from
and after the execution of this Lease and until the end of the Term of this
Lease, and during such further period as Tenant may use or be in occupancy of
any part of the Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement may be
made effective according to law, Tenant agrees that Landlord shall not be
responsible or liable to Tenant, or to those claiming by, through or under
Tenant, for any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or any part of the Property or
otherwise. The provisions of this Section 10.4 shall survive the expiration or
any earlier termination of this Lease.
10.5 LANDLORD INSURANCE. The Landlord shall, throughout the term hereof, procure
and carry hazard insurance on the Premises, and may also include insurance
against the loss of rent and other charges payable by Tenant hereunder for a
period of one (1) full year. Such insurance shall be carried in the name of and
for the benefit of the Landlord and/or its lenders as principal insured; shall
be for at least eighty percent (80%) of the full replacement value of the
Building and other improvements on the Premises, as they may exist from time to
time, and shall otherwise be in form satisfactory to the Landlord. The Tenant
shall pay for any increase in the premiums for the insurance of the Building or
the Property caused by Tenant's acts, omissions, use or occupancy of the
Premises.
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.
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ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or casualty,
Basic Rent and Escalation Charges payable by Tenant shall abate proportionately
for the period in which, by reason of such damage, there is substantial
interference with Tenant's use of the Premises, having regard to the extent to
which Tenant may be required to discontinue Tenant's use of all or a portion of
the Premises, but such abatement or reduction shall end if and when Landlord
shall have substantially restored the Premises(excluding any alterations,
additions or improvements made by Tenant pursuant to Section 5.2) to the
condition in which they were prior to such damage. If the Premises shall be
affected by any exercise of the power of eminent domain, Basic Rent and
Escalation Charges payable by Tenant shall be justly and equitably abated and
reduced according to the nature and extent of the loss of use thereof suffered
by Tenant. In no event shall Landlord have any liability for damages to Tenant
for inconvenience, annoyance, or interruption of business arising from such
fire, casualty or eminent domain.
12.2 LANDLORD'S RIGHT OF TERMINATION. If the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially damaged"
meaning damage of such a character that the same cannot, in ordinary course,
reasonably be expected to be repaired within sixty (60) days from the time the
repair work would commence), or if any part of the Building is taken by any
exercise of the right of eminent domain, then Landlord shall have the right to
terminate this Lease (even if Landlord's entire interest in the Premises may
have been divested) by giving notice of Landlord's election so to do within 90
days after the occurrence of such casualty or the effective date of such taking,
whereupon this Lease shall terminate thirty (30) days after the date of such
notice with the same force and effect as if such date were the date originally
established as the expiration date hereof.
12.3 RESTORATION. If this Lease shall not be terminated pursuant to Section
12.2, Landlord shall thereafter use due diligence to restore the Premises
(excluding any alterations, 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.
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12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to the
Property and the leasehold interest hereby created, and to compensation accrued
or hereafter to accrue by reason of such taking, damage or destruction, and by
way of confirming the foregoing, Tenant hereby grants and assigns, and covenants
with Landlord to grant and assign to Landlord, all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent Tenant
from, at its sole cost and expense, prosecuting a separate condemnation
proceeding with respect to a claim for the value of any of Tenant's Removable
Property installed in the Premises by Tenant at Tenant's expense and for
relocation expenses, provided that such action shall not affect the amount of
compensation otherwise recoverable by Landlord from the taking authority.
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this Lease
any one or more of the following events (herein referred to as a "Default of
Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation Charges or
other sums payable as additional charges hereunder when due; or
(ii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or observed, or
Tenant shall desert or abandon the Premises or the Premises shall become,
or appear to have become vacant (regardless whether the keys shall have
been surrendered or the rent and all other sums due shall have been paid),
and Tenant shall fail to remedy the same within thirty (30) days after
notice to Tenant specifying such neglect or failure, or if such failure is
of such a nature that Tenant cannot reasonably remedy the same within such
thirty (30) day period, Tenant shall fail to commence promptly to remedy
the same and to prosecute such remedy to completion with diligence and
continuity; or
(iii) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition in bankruptcy or shall be adjudicated
bankrupt or insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future
Federal, State or other statute, law or regulation for the relief of
debtors, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any substantial part
of its properties, or shall admit in writing its inability to pay its debts
generally as they become due; or
(v) A petition shall be filed against Tenant in bankruptcy or under
any other law seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present
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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 Tenant fails to restore the Security Deposit amount within
five (5) days of demand by Landlord therefor, as further specified in
Section 14.17 hereof;
(vii) 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 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 reenter 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
21
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 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.
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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 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.
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14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for recovery
of any judgment from Landlord; it 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, or due to any act or negligence
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.
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.
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(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 from
time to time established by Landlord, it being agreed that such rules and
regulations will be established and applied by Landlord in a non-discriminatory
fashion, such that all rules and regulations shall be generally applicable to
other tenants of the Building of similar nature to the Tenant named herein.
Landlord agrees to use reasonable efforts to insure that any such rules and
regulations are uniformly enforced, but Landlord shall not be liable to Tenant
for violation of the same by any other tenant or occupant of the Building, or
persons having business with them. In the event that there shall be any conflict
between such rules and regulations and the provisions of this Lease, the
provisions of this Lease shall control. The Rules and Regulations attached
hereto as Exhibit G, constitute the current Rules and Regulations.
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.
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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 or sent by an
overnight express courier service which provides evidence of delivery or
attempted delivery:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address Attention: Robert F. Tambone, (or to such other address as may from time
to time hereafter by designated by Landlord by like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original Address
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 on the day delivered, provided the same
is delivered on or before 5:00 p.m. on such day or on the following Business Day
if not delivered on or before 5:00 p.m.
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
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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.
14.16 STATUS REPORT AND FINANCIAL STATEMENTS. (a) 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,
acknowledgment that (or the extent to which) each party is in compliance with
its obligations under the terms of this Lease.
(b) Within ten (10) days after Landlord's request, Tenant shall deliver to
Landlord the then current financial statements of Tenant (including interim
periods following the end of the last fiscal year for which annual statements
are available), prepared or compiled by a certified public accountant or
certified as accurate by Tenant's chief financial officer, including a balance
sheet and profit and loss statement for the most recent prior year, all prepared
in accordance with generally accepted accounting principles consistently
applied.
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 and any failure on the part of Tenant to so restore the Security
Deposit within five (5) days of Landlord's demand therefore shall constitute a
Default of Tenant under this Lease. 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
within thirty days of 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.
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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
America, or its successor, (but in no event less than 18% per annum), as an
additional charge. Any payment of Fixed Rent, Additional Rent or other sums
payable hereunder not paid when due shall, at the option of Landlord, bear
interest at a rate equal to 3% over the prime rate in effect from time to time
at Bank of America (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 than 150% of
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
respect to such loss to the extent of the insurance proceeds paid with respect
thereto.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of the
Term of this Lease, Tenant shall peaceably quit and surrender to Landlord the
Premises in neat and clean condition and in as good order, condition and repair
as Tenant is required to keep the Premises during the Term, 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
28
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 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
broker in connection with the consummation of this Lease other than the Broker,
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).
14.23 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 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.
14.24 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.
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ARTICLE XV
OPTIONS TO EXTEND
15.1 TENANT'S OPTIONS. (a) Provided that, at the time of such exercise, this
Lease is still in full force and effect without an Event of Default by Tenant
and Tenant occupies at least seventy-five percent (75%) of the Rentable Area of
the Premises for its own business purposes, Tenant shall have the right and
options (the "Extension Options") to extend the Term of this Lease for One (1)
extended term of Three (3) years (an "Extended Term"). The Extended Term shall
commence on the day immediately succeeding the expiration date of the Initial
Term, and shall end on the day immediately preceding the third anniversary of
the first day of such Extended Term. Tenant shall exercise its Extension Option
for the Extended Term by giving written notice to Landlord of its desire to do
so not later than six (6) months prior to the expiration date of the Initial
Term. The giving of such notice by Tenant shall automatically extend the Term of
this Lease for the Extended Term, and no instrument of renewal need be executed.
In the event that Tenant fails to give such notice to Landlord this Lease shall
automatically terminate at the end of the Initial Term, and Tenant shall have no
further option to extend the Term of this Lease. The Extended Term shall be on
all the terms and conditions of this Lease, except (i) during any Extended Term,
the extension provisions of this Section to the extent already exercised shall
not be effective, (ii) that the Basic Rent in effect for the Extended Term shall
be at the greater of (a) the then current Basic Rent during the last lease Year
of the Initial Term and (b) the anticipated fair market rental rate for
comparable buildings in the Westborough area for the Premises Rentable Area
during the Extended Term (the "Prevailing Fair Market Base Rental Rate")
determined as follows. Within twenty (20) days of Tenant's exercise of its
Extension Option, Landlord agrees to provide Tenant with Landlord's
determination ("Landlord's Determination") of the Fair Market Base Rental Rate.
Any determination of the Fair Market Base Rental Rate, whether by Landlord or
Tenant, shall include a statement of the elements of rent included in such
determination (whether tenant improvement allowances, free rent, common area
cost allowances, or otherwise) sufficient to permit a calculation of the
effective rent for the Premises.
(b) If Tenant does not agree with Landlord's Determination, provide
Landlord with notice of its determination of the Fair Market Base Rental Rate
("Tenant's Determination") within twenty (20) days of Tenant's receipt of
Landlord's Determination; if Tenant fails to provide Landlord on a timely basis
with Tenant's notice to terminate as aforesaid or Tenant's Determination as set
forth herein, Tenant will be deemed to have agreed to Landlord's Determination
which then shall constitute the basis for determining the Base Rent for the
Extended Term. Except as set forth in subparagraph (c) below, if Landlord's
Determination and Tenant's Determination are different and Landlord and Tenant
are unable to agree upon the Fair Market Base Rental Rate within thirty (30)
days of Landlord's receipt of Tenant's Determination, the parties shall within
fifteen (15) days after the end of such 30-day period, together appoint a
mutually acceptable arbitrator or, if they are unable to agree upon such an
arbitrator, shall apply to the American Arbitration Association for the
designation of an arbitrator located in the Boston, Massachusetts metropolitan
area to render a final determination of the Fair Market Base Rental Rate (the
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"Arbitrator"). Unless otherwise agreed by the parties, the Arbitrator shall be a
real estate appraiser or consultant who shall be a M.A.I. member and who shall
have at least fifteen (15) years continuous experience in the business of
appraising commercial office buildings in the greater Boston area. The
Arbitrator shall conduct such hearings and investigations as the Arbitrator
shall deem appropriate and shall, within sixty (60) days after having been
appointed, choose either the Landlord's Determination or Tenant's Determination,
and that choice by the Arbitrator shall be final and binding upon Landlord and
Tenant. The party whose Determination is not chosen shall pay all the fees and
expenses of the Arbitrator. The Arbitrator shall not have the power to add to,
modify or change any of the provisions of this Lease.
(c) In the event that the determination of the Fair Market Base Rental Rate
set forth in the Landlord's Determination and Tenant's Determination shall
differ by less than ten percent (10%) per rentable square foot per annum for
each year during the Extended Term, then the Fair Market Base Rental Rate shall
not be determined by arbitration, but, at Landlord's election, shall instead be
set by taking the average of the parties' Determinations.
(d) If for any reason the Fair Market Base Rental Rate shall not have been
determined prior to the commencement of the Extended Term, then, until the Fair
Market Base Rental Rate shall have been finally determined, the Basic Rent shall
remain the same as payable during the last year of the term immediately
preceding such Extended Term. Upon final determination of the Fair Market Base
Rental Rate, an appropriate adjustment to the Basic Rent shall be made
reflecting such final determination and Landlord or Tenant, as the case may be,
shall promptly refund or pay to the other any overpayment or deficiency, as the
case may be, in the payment of Basic Rent from the commencement date of the
Extended Term to the date of such final determination.
(e) Time is of the essence of this Section 15. 1.
ARTICLE XVI
TENANT IMPROVEMENTS
Landlord shall repaint the space and recarpet where there is existing
carpet. Tenant shall be responsible for removing any furniture/cubicles in order
for Landlord to install the carpet.
In addition, Landlord shall remove the conference room and adjacent office
located in the office portion of the space. (See Attached Exhibit A)
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
TENANT:
By:____________________________________
Its:_________________________________
Date:_____________________
LANDLORD:
By:____________________________________
Robert F. Tambone, Trustee as
aforesaid and not individually
Date:______________________
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EXHIBIT A
PLAN OF PREMISES
33
EXHIBIT B
JANITORIAL SERVICES
134 FLANDERS ROAD
WESTBOROUGH, MASSACHUSETTS
I. Cleaning
A. Nightly Operations
1. Tenant Areas
a. Empty all waste receptacles and replace liners (as needed).
Wash receptacles as necessary.
b. Vacuum all rugs and carpeted areas.
c. Sweep/dry mop floors.
d. Damp mop floors.
e. Dust furniture including uncluttered desks, credenzas, file
cabinets, partition tops to arm height.
f. Spot-clean doors, door frames, window sills, switch plates And
entrance glass.
2. Lavatories
a. Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with disinfectant.
c. Wash all mirrors, basins, bowls, urinals.
d. Spot-clean toilet partitions.
e. Refill toilet tissue, towel and soap dispensers.
3. Public Areas
a. Wipe down entrance doors and clean glass (interior and
exterior).
b. Vacuum elevator carpets and wipe down doors and walls.
c. Empty trash receptacles and replace liners.
d. Empty and damp-wipe cigarette receptacles.
e. Spot clean: Interior class, doors and door frames.
f. Clean and disinfect water fountains.
g. Vacuum carpeting.
h. Sweep/dry mop floors
i. Damp mop floors.
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B. General
1. Window washing will be done twice per year.
2. Abnormal waste removal (e.g., computer installation paper, bulk
packaging, wood or cardboard crates, refuse from cafeteria
operation, etc.) Shall be Tenant's responsibility.
3. Carpets and tile floor cleaning shall be Tenant's responsibility.
III. Relamping of Light Fixtures
Tenant will reimburse Landlord for relamping, ballasts and starters within
the Premises on building standard lighting; all other lighting, shall be
handled by Tenant exclusively.
IV. Electricity
Tenant shall pay for all electricity consumed in Tenant's space for plugs,
power and lights, and gas for heating. (tenant shall arrange for utility
services directly from utility provider).
To the extent Tenant is not billed directly by the utility provider for
electricity consumed in the premises, Tenant shall pay to Landlord, for all
electricity consumed in the premises, the actual cost of such electricity
as measured by a check meter serving the premises. In addition, Tenant
shall be responsible for its Pro Rata Share of all common area electricity
for the building.
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EXHIBIT C
OPERATING EXPENSES
Operating Expenses shall include:
1. All expenses reasonably incurred by Landlord or Landlord's agents which
shall be directly related to employment of personnel, including amounts
incurred for wages, salaries and other compensation for services, payroll,
social security, unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization, retirement plans
and group insurance, uniforms and working clothes and the cleaning thereof,
and expenses imposed on Landlord or Landlord's agents pursuant to any
collective bargaining agreement for the services of employees of Landlord
or Landlord's agents in connection with the operation, repair, maintenance,
cleaning, management and protection of the Property, and its mechanical
systems including, without limitation, day and night Building supervisors,
the Property manager, janitors, carpenters, engineers, mechanics,
electricians and plumbers but excluding any expenses for any executive
employees.
2. The cost reasonably incurred by Landlord for services, materials and
supplies furnished or used in the operation, repair, maintenance, cleaning,
management and protection of the Property.
3. The cost of replacements for tools and other similar equipment used in the
repair, maintenance, cleaning and protection of the Property, provided that
such costs shall be suitably prorated, over the generally accepted useful
life of such tools.
4. A management fee equal to the amounts customarily charged by management
firms in the Boston area for similar properties relating to the operation,
repair, maintenance, cleaning and protection of the Property.
5. Reasonable expenses incurred by Landlord in any real estate tax abatement
proceeding.
6. Premiums incurred by Landlord 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 and
premiums for fidelity bonds covering persons having custody or control over
funds or other property of Landlord relating to the Property.
7. If, during the Term of this Lease, Landlord shall make a capital
expenditure which is necessary to meet the requirements of applicable laws,
regulations or ordinances or which is designed to increase the operating
efficiency of the Building (which for purposes hereof, shall mean that the
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aggregate cost savings related to such capital improvement can reasonably
be expected to equal the amount of such capital expenditure (plus the
interest factor hereinafter referred to) within the generally accepted
useful life of such improvement), the total cost of which is not properly
includable in Operating Expenses for the Operating Year in which it was
made, there shall nevertheless be included in such Operating Expenses for
the Operating Year in which it was made and in Operating Expenses for each
succeeding Operating Year the annual charge-off of such capital
expenditure. Capital Expenses shall not reduce Operative Costs unless
amortized over use life. Annual charge-off shall be determined by dividing
the original capital expenditure by the number of years of useful life of
the improvement made with the capital expenditure, and adding thereto a
reasonable interest factor (taking into account the rate then being charged
by institutional lenders for loans to finance the item over its useful
life) on the unamortized portion 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.
8. Costs incurred by Landlord for electricity, fuel, water and sewer use
charges, and all other utilities supplied to the Property and fees for any
public services rendered to the Property, except for those actually paid or
reimbursed to Landlord by tenants of the Property.
9. Betterment assessments provided the same are apportioned equally over the
longest period permitted by law, and all sales and use taxes relating to
any items includable in Operating Expenses.
10. Notwithstanding the foregoing, Operating Expenses shall not include the
following: (a) the cost of repairs or replacements (i) resulting from
casualty losses or eminent domain takings (other than the amount of any
deductible) or (ii) correcting defects in design or construction of the
Building; (b) costs incurred due to violation by Landlord of the terms and
conditions of any lease, (c) depreciation or amortization of the Building
or any part thereof; (d) replacement or contingency reserves; (e) ground
lease rents or payment of any debt or equity obligations; (f) legal and
other professional fees relating to negotiations with tenants, leasing,
financing or other services not related to the normal operation,
maintenance, cleaning, repair and protection of the Property; (g) brokerage
fees and commissions; (h) the cost of special services rendered to Building
tenants which are directly chargeable to such tenants; and (i) expenses for
renovating tenant space to Exhibit OC or incurred for the sole benefit of a
particular tenant. Operating Expenses shall be reduced by the amount of any
proceeds, awards, payments, guarantees, credits or reimbursements which
Landlord actually receives and which are applicable to Operating Expenses,
less the cost reasonably incurred in recovering such amount.
The preceding list is for definitional purposes only and shall not impose
any obligation upon Landlord to incur such expenses or provide such
service.
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EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building, if
visible from outside of the Building or from a public area, without the
prior written consent of the Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering in
public corridors shall be inscribed or affixed at the expense of Tenant by
a person or vendor chosen by Landlord and in conformance with the Building
standard signage program. In addition, Landlord reserves the right to
change from time to time the format of the signs or lettering and to
require previously approved signs or lettering to be appropriately altered.
2. Tenant shall use and keep in place the Building standard window covering.
Tenant shall not place anything or allow anything to be placed against or
near any doors or windows which may appear unsightly, in the opinion of
Landlord, from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances,
elevators or stairways of the Building. The halls, passages, exits,
entrances, shopping malls, elevators, escalators and stairways are not for
the general public, and Landlord shall in all cases retain the right to
control and prevent access thereto of all persons whose presence in the
judgment of Landlord would be prejudicial to the safety, character,
reputation and interests of the Building and its tenants. However, nothing
contained herein shall be construed to prevent such access to persons with
whom any tenant normally deals in the ordinary course of its business,
unless such persons are engaged in illegal activities. No tenant and no
employee or invitee of any tenant shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the display
of the name and location of tenants only and Landlord reserves the right to
exclude any other names therefrom. One entry in the directory of the
building shall be provided.
5. All cleaning services for the Premises shall be arranged exclusively
through the Landlord. Tenant shall not cause any unnecessary labor or
service by carelessness or indifference to the good order and cleanliness
of the Premises, however occurring.
6. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
for their installation.
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7. No equipment, materials, furniture, packages, supplies, or other property
will be received in the Building or carried in the elevators except between
such hours and in such elevators as may be designated by Landlord.
Furniture, equipment or supplies shall be moved in and out of the Building
only during such hours, and in such manner as reasonably designated by
Landlord.
8. Tenant shall not waste electricity, water or air conditioning. Tenant shall
keep corridor doors closed.
9. Landlord reserves the right to exclude from the Building during nonbusiness
hours as defined by Landlord, any person unless that person has a key
issued by Landlord at Tenant's written request. Tenant shall be responsible
for all persons for whom it requests keys and shall be liable to landlord
for all acts of such persons. Landlord shall not be liable for damages
absent the willful misconduct or gross negligence of its agents, employees
or contractors, for any error with regard to the admission to or exclusion
from the Building of any person.
10. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, electricity, gas or air outlets
before Tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for its failure to comply with
this rule.
11. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were
constructed. No foreign substance of any kind whatsoever shall be thrown
therein, and the expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the Tenant who, or whose
employees or invitees, shall have caused it.
12. Tenant shall not install any radio or television antenna, loudspeaker or
other device on the roof or exterior walls of the Building. Tenant shall
not interfere with radio or television broadcasting or reception from or in
the Building or elsewhere.
13. Except as approved by Landlord, Tenant shall not mark, drive nails, screw
or drill into partitions, woodwork or plaster or in any way deface the
Premises. Tenant shall not cut or bore holes for wires. Tenant shall not
affix any floor covering to the floor of the Premises in any manner except
as approved by Landlord. Tenant shall repair any damage resulting from
noncompliance with this rule.
14. Tenant shall not install, maintain or operate upon the Premises any vending
machines (except those which dispense only packaged products) or video game
machines.
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15. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
16. No cooking shall be done or permitted by any Tenant in the Premises, except
that use of Underwriters' Laboratory approved equipment for brewing coffee,
tea, hot chocolate and similar beverages and for reheating food cooked off
of the Premises shall be permitted, provided that such equipment and use is
in accordance with all applicable federal, state and city laws, codes,
ordinances, rules and regulations.
17. Tenant shall not use in the Building any hand trucks except those equipped
with the rubber tires and side guards or such other material-handling
equipment as Landlord may approve. Tenant shall not bring any other
vehicles of any kind in to the Building.
18. Tenant shall not use the name of the Building in connection with or in
promoting or advertising the business of Tenant except as Tenant's address,
or in any way impair the Building's reputation.
19. Tenant shall pay on demand the cost of replacement of any glass doors
broken in or on the perimeter of the Premises during the continuance of the
Lease, unless the glass shall be broken by Landlord, its employees or
agents.
20. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under instructions from Landlord.
21. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations.
22. No animals, vehicles or bicycles shall be allowed in the Building.
23. The use of oil, gas or inflammable liquids for heating, lighting or
cleaning or any other purpose is expressly prohibited. Explosive or other
articles deemed hazardous shall not be brought into the Building.
24. Canvassing, soliciting and peddling in or about the Building is expressly
prohibited.
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25. Tenant shall not permit any portion of the Premises to be used as an office
for a public stenographer or typist, or as a barber or manicure shop, or as
an employment bureau.
26. Vendors or caterers making deliveries to the Building of food, beverages or
the like shall be subject to exclusion from the Premises by Landlord based
on Landlord's reasonable determination that such vendors or caterers should
be excluded from the Building.
27. No space shall be used for lodging, manufacturing, storage of or sale of
merchandise, goods or property of any kind or any other business that
involves patronage from the general public.
28. For the benefit of all tenants, Landlord shall have the right to reasonably
limit elevator use during peak use hours.
29. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of any premises in the Building.
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CLERK'S CERTIFICATE
I, _________________________, do hereby certify that I am the Clerk of
______________________ (the "Corporation), a ____________ corporation with its
principal place of business at _____________________, and that I have been duly
elected and am presently serving in that capacity in accordance with the Bylaws
of the Corporation.
I further certify that by unanimous written consent of the directors of the
Corporation, votes in the form of Exhibit A attached hereto were duly adopted by
all present at a meeting of said directors duly called and as to which notice
was duly given as required by law and the By-laws of the Corporation. The votes
as specified are presently in full force and effect and have not been revoked or
rescinded as of the date hereof.
I further certify that as of this date the following is the current duly
elected and acting officer of the Corporation who is authorized pursuant to the
attached votes.
-----------------------------: ------------------------
Name Title
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the
Corporation this ____ day of _______, 200__.
-------------------------------------
, Clerk
[CORPORATE SEAL]
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EXHIBIT A
VOTED: That the Corporation be authorized on the signature of its President,
______________________, to enter into a leasing arrangement with Robert F.
Tambone as Trustee of the MAT Realty Trust u/d/t dated June 4, 1986 (the
"Landlord") in respect of the Building known as134 Flanders Road, Westborough,
Massachusetts, as evidenced by a lease (the "Lease") for same.
VOTED: That the Lease in the form submitted by the Landlord be and is hereby
approved, and that the named President is hereby authorized to execute, seal,
and deliver such document on behalf of the Corporation with such changes therein
as such officer so acting may deem necessary or desirable, the execution and
delivery thereof to be conclusive evidence that the same have been separately
authorized by the Directors of the Corporation.
VOTED: That the President of the Corporation is hereby authorized to execute and
deliver such other documents, instruments, and certificates and to do such other
acts as may be necessary or desirable to consummate the leasing arrangement
approved above, the execution and delivery thereof or the doing of any such act
to be the conclusive evidence that such has been separately approved by the
Directors of the Corporation.
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