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Exhibit 10.17
NORTHWEST PARK
L E A S E
ARTICLE 1
REFERENCE DATA
1.1 SUBJECT REFERRED TO.
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Section 1.1.
DATE OF THIS LEASE: June 26, 2002
BUILDING: The Building in Northwest Park in
Burlington, Massachusetts
(hereinafter referred to as the
"Park") on a parcel of land shown as
Lots 72, 75 and 98 on Land Court
plans referenced in Certificates of
Title Nos. 123336, 125334 and 156721
filed with the Middlesex South
District of Land Court and known as
154 Middlesex Turnpike (the Building
and such parcel of land hereinafter
being collectively referred to as
the "Property").
PREMISES: A portion of the Building,
substantially as shown on Exhibit A
attached hereto.
RENTABLE FLOOR
AREA OF PREMISES: Approximately 9,235 square feet
LANDLORD: Peter C. Nordblom and John
Macomber, as Trustees of N.W.
Building 24 Trust under Declaration
of Trust dated March 6, 1967 and
filed for registration with the
Middlesex South District of the Land
Court as Document No. 441924.
ORIGINAL NOTICE
ADDRESS OF LANDLORD: c/o Nordblom Management Company, Inc.
15 Third Avenue
Burlington, Massachusetts 01803
TENANT: eZenia! Inc., a Delaware corporation
ORIGINAL NOTICE
ADDRESS OF TENANT: 154 Middlesex Turnpike
Burlington, Massachusetts 01803
EXPIRATION DATE The last day of the third (3rd) lease
year (as hereinafter defined)
COMMENCEMENT DATE: The Date of this Lease
RENT COMMENCEMENT DATE: August 1, 2002
ANNUAL FIXED RENT RATE: $144,000.00
MONTHLY FIXED RENT RATE: $12,000.00
SECURITY AND
RESTORATION DEPOSIT: $40,000.00
BASE OPERATING COSTS: Operating Costs for the calendar year
2003.
BASE TAXES: Taxes for the fiscal tax year 2003.
TENANT'S PERCENTAGE: The ratio of the Rentable Floor
Area of the Premises to the total
rentable area of the Building, which
shall initially be deemed to be
thirty-one and 25/100ths (31.25%)
percent.
PERMITTED USES: Offices
PUBLIC LIABILITY
INSURANCE LIMITS:
Commercial General Liability: $1,000,000 per occurrence
$5,000,000 general
aggregate
1.2 EXHIBITS.
The Exhibits listed below in this section are incorporated in this Lease by
reference and are to be construed as a part of this Lease.
EXHIBIT A Plan showing the Premises
EXHIBIT A-1 Furniture Inventory
EXHIBIT B Rules and Regulations
EXHIBIT C Form Tenant Estoppel Certificate
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1.3 TABLE OF ARTICLES AND SECTIONS.
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ARTICLE 1 -- REFERENCE DATA
1.1 Subjects Referred To............................................................................1
1.2 Exhibits........................................................................................1
1.3 Table of Articles and Sections..................................................................1
ARTICLE 2 -- PREMISES AND TERM
2.1 Premises........................................................................................3
2.2 Term............................................................................................3
2.3 Termination Right...............................................................................3
ARTICLE 3 -- CONDITION OF PREMISES
ARTICLE 4 -- RENT
4.1 The Fixed Rent..................................................................................3
4.2 Additional Rent.................................................................................3
4.2.1 Real Estate Taxes......................................................................3
4.2.2 Personal Property Taxes................................................................4
4.2.3 Operating Costs........................................................................4
4.2.4 Insurance..............................................................................4
4.2.5 Utilities..............................................................................5
4.3 Late Payment of Rent............................................................................5
4.4 Security and Restoration Deposit................................................................5
ARTICLE 5 -- LANDLORD'S COVENANTS
5.1 Affirmative Covenants...........................................................................5
5.1.1 Heat and Air Conditioning..............................................................5
5.1.2 Electricity............................................................................5
5.1.3 Cleaning; Water........................................................................6
5.1.4 Elevator; Fire Alarm...................................................................6
5.1.5 Repairs................................................................................6
5.2 Interruption....................................................................................6
5.3 Outside Services................................................................................6
ARTICLE 6 -- TENANT'S ADDITIONAL COVENANTS
6.1 Affirmative Covenants...........................................................................6
6.1.1 Perform Obligations....................................................................6
6.1.2 Use....................................................................................6
6.1.3 Repair and Maintenance.................................................................6
6.1.4 Compliance with Law....................................................................6
6.1.5 Indemnification........................................................................6
6.1.6 Landlord's Right to Enter..............................................................6
6.1.7 Personal Property at Tenant's Risk.....................................................6
6.1.8 Payment of Landlord's Cost of Enforcement..............................................7
6.1.9 Yield Up...............................................................................7
6.1.10 Rules and Regulations..................................................................7
6.1.11 Estoppel Certificate...................................................................7
6.1.12 Landlord's Expenses Re: Consents.......................................................7
6.2 Negative Covenants..............................................................................7
6.2.1 Assignment and Subletting..............................................................7
6.2.2 Nuisance...............................................................................7
6.2.3 Hazardous Wastes and Materials.........................................................7
6.2.4 Floor Load; Heavy Equipment............................................................7
6.2.5 Installation, Alterations or Additions.................................................7
6.2.6 Abandonment............................................................................8
6.2.7 Signs..................................................................................8
6.2.8 Parking and Storage....................................................................8
ARTICLE 7 -- CASUALTY OR TAKING
7.1 Termination.....................................................................................8
7.2 Restoration.....................................................................................8
7.3 Award...........................................................................................8
ARTICLE 8 -- DEFAULTS
8.1 Events of Default...............................................................................8
8.2 Remedies........................................................................................8
8.3 Remedies Cumulative.............................................................................9
8.4 Landlord's Right to Cure Defaults...............................................................9
8.5 Effect of Waivers of Default....................................................................9
8.6 No Waiver, etc..................................................................................9
8.7 No Accord and Satisfaction......................................................................9
ARTICLE 9 -- RIGHTS OF MORTGAGE HOLDERS
9.1 Rights of Mortgage Holders......................................................................9
9.2 Lease Superior or Subordinate to Mortgages......................................................9
ARTICLE 10 -- MISCELLANEOUS PROVISIONS
10.1 Notices From One Party to the Other.............................................................9
10.2 Quiet Enjoyment................................................................................10
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10.3 Lease Not to be Recorded.......................................................................10
10.4 Limitation of Landlord's Liability.............................................................10
10.5 Acts of God....................................................................................10
10.6 Landlord's Default.............................................................................10
10.7 Brokerage......................................................................................10
10.8 Applicable Law and Construction................................................................10
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ARTICLE 2
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, excluding the
roof, exterior faces of exterior walls, the common stairways,
stairwells, elevators and elevator shafts, and pipes, ducts, conduits,
wires, and appurtenant fixtures serving exclusively or in common other
parts of the Building (and any areas, such as the space above the
ceiling or in the walls, that may contain such pipes, ducts, conduits,
wires or appurtenant fixtures), and if Tenant's space includes less than
entire rentable area of any floor, excluding the central core area of
such floor. Landlord also leases to Tenant, subject to the terms,
covenants, conditions and provisions of this Lease, the furniture,
fixtures and equipment listed on Exhibit A-1 attached hereto. For the
purposes of this Lease, the term "Premises" shall be deemed to include
all of the items listed in Exhibit A-1.
Tenant shall have, as appurtenant to the Premises, rights to use in
common, subject to reasonable rules of general applicability to tenants
of the Building from time to time made by Landlord of which Tenant is
given notice: (a) the common lobbies, hallways, stairways, and elevators
of the Building, (b) common walkways and driveways necessary for access
to the Building, (c) the common parking areas serving the Building, and
(d) if the Premises include less than the entire rentable area of any
floor, the common toilets and other common facilities in the central
core area of such floor.
Tenant shall be permitted to use up to 32 parking spaces in the parking
area serving the Building.
Landlord reserves the right from time to time, without unreasonable
interference with use of the Premises: (a) to install, use, maintain,
repair, replace and relocate for service to the Premises and other parts
of the Building, or either, pipes, ducts, conduits, wires and
appurtenant fixtures, wherever located in the Premises or Building, (b)
to alter or relocate any other common facility, (c) to make any repairs
and replacements to the Premises which Landlord may deem reasonably
necessary, and (d) in connection with any excavation made upon adjacent
land of Landlord or others, to enter, and to license others to enter,
upon the Premises to do such work as the person causing such excavation
deems necessary to preserve the wall of the Building from injury or
damage and to support the same.
2.2 TERM. TO HAVE AND TO HOLD for a term beginning on the Commencement Date
and ending on the Expiration Date, unless sooner terminated as
hereinafter provided. Reference is made to that certain existing lease
by and between the Trustees of Building 27 Associates, as landlord, and
Tenant, as tenant, for premises at 63 Third Avenue, Northwest Park,
Burlington, Massachusetts (the "Existing Lease"). Further reference is
made to a certain termination agreement executed simultaneously herewith
between the landlord under the Existing Lease and Tenant (the
"Termination Agreement") whereby the Existing Lease will terminate in
order to effect Tenant's relocation to the Premises demised hereunder.
Landlord hereby agrees that if the Existing Lease is not terminated
pursuant to the Termination Agreement, then this Lease shall be null and
void.
The term "lease year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first lease year shall begin on
the Rent Commencement Date. Each succeeding lease year shall commence
upon the anniversary date of the first lease year.
2.3 TERMINATION RIGHT. Both Landlord and Tenant shall have the right to
terminate this Lease at any time after the end of the first lease year.
If either party shall elect to exercise the aforesaid right, it shall do
so by giving written notice to other, in which case this Lease shall
terminate on the date set forth in such notice, which date shall be not
less than ninety (90) days from the date of such notice. If either party
exercises such termination right, Tenant shall pay Landlord a
termination fee of $200,000.00 (the "Termination Fee") in the manner
hereinafter set forth. Tenant shall pay one-half of the Termination Fee
on the effective date of termination, and shall pay the balance of the
Termination Fee on or before the date which is 12 months after the
effective date of termination. Tenant's obligation to pay the
Termination Fee shall survive the expiration or early termination of
this Lease.
ARTICLE 3
CONDITION OF PREMISES
The Premises are leased to Tenant in "as-is" condition, in the condition
the Premises are in as of the date of the "walk through" conducted on
June 25, 2002, without any representations or warranties by Landlord as
to the condition of the Premises or their suitability for Tenant's use,
and without any obligation on the part of Landlord to construct or
otherwise prepare the Premises for Tenant's use and occupancy, except
that Landlord agrees that on the Commencement Date all essential
building services, including, water, sewer, HVAC, and electricity, shall
be fully functional and operational in a manner reasonably consistent
with standard office environments.
ARTICLE 4
RENT
4.1 THE FIXED RENT. Commencing on the Rent Commencement Date, Tenant
covenants and agrees to pay rent to Landlord at the Original Address of
Landlord or at such other place or to such other person or entity as
Landlord may by notice in writing to Tenant from time to time direct, at
the Annual Fixed Rent Rate, in equal installments at the Monthly Fixed
Rent Rate (which is 1/12th of the Annual Fixed Rent Rate), in advance,
on the first day of each calendar month included in the term beginning
on the Rent Commencement Date.
If Landlord shall give notice to Tenant that all rent and other payments
due hereunder are to be made to Landlord by electronic funds transfers,
so called, or by similar means, Tenant shall make all such payments as
shall be due after receipt of said notice by means of said electronic
funds transfers (or such similar means as designated by Landlord).
4.2 ADDITIONAL RENT. Tenant covenants and agrees to pay, as Additional Rent,
insurance costs, utility charges, personal property taxes and its pro
rata share of increases in operating costs with respect to the Premises
as provided in this Section 4.2 as follows:
4.2.1 REAL ESTATE TAXES. If Taxes (as hereinafter defined) for any Tax
Year during the term shall exceed Base Taxes, Tenant shall
reimburse Landlord, as additional rent, for Tenant's Percentage
of such excess (such amount hereinafter referred to as "Tax
Excess"). Tenant shall remit to Landlord, on the first day of
each calendar month, estimated payments on account of
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Tax Excess, such monthly amounts to be sufficient to provide
Landlord, by the time real estate tax payments are due and
payable to any governmental authority responsible for collection
of same, a sum equal to the Tax Excess, as reasonably estimated
by Landlord from time to time on the basis of the most recent
tax data available. If the total of such monthly remittances for
any Tax Year is greater than the actual Tax Excess for such Tax
year, Landlord shall promptly pay to Tenant, or credit against
the next accruing payments to be made by Tenant pursuant to this
subsection 4.2.1, the difference; if the total of such
remittances is less than the actual Tax Excess for such Tax
Year, Tenant shall pay the difference to Landlord at least ten
(10) days prior to the date or dates within such Tax Year that
any Taxes become due and payable to the governmental authority
(but in any event no earlier than ten (10) days following a
written notice to Tenant, which notice shall set forth the
manner of computation of Tax Excess).
If, after Tenant shall have made reimbursement to Landlord
pursuant to this subsection 4.2.1, Landlord shall receive a
refund of any portion of Taxes paid by Tenant with respect to
any Tax Year during the term hereof as a result of an abatement
of such Taxes by legal proceedings, settlement or otherwise
(without Landlord having any obligation to undertake any such
proceedings), Landlord shall promptly pay to Tenant, or credit
against the next accruing payments to be made by Tenant pursuant
to this subsection 4.2.1, the Tenant's Percentage of the refund
(less the proportional, pro rata expenses, including attorneys'
fees and appraisers' fees, incurred in connection with obtaining
any such refund), as relates to Tax Excess paid by Tenant to
Landlord with respect to any Tax Year for which such refund is
obtained.
In the event this Lease shall commence, or shall end (by reason
of expiration of the term or earlier termination pursuant to the
provisions hereof), on any date other than the first or last day
of the Tax Year, or should the Tax Year or period of assessment
of real estate taxes be changed or be more or less than one (1)
year, as the case may be, then the amount of Tax Excess which
may be payable by Tenant as provided in this subsection 4.2.1
shall be appropriately apportioned and adjusted.
The term "Taxes" shall mean all taxes, assessments, betterments
and other charges and impositions (including, but not limited
to, fire protection service fees and similar charges) levied,
assessed or imposed at any time during the term by any
governmental authority upon or against the Property, or taxes in
lieu thereof, and additional types of taxes to supplement real
estate taxes due to legal limits imposed thereon. If, at any
time during the term of this Lease, any tax or excise on rents
or other taxes, however described, are levied or assessed
against Landlord with respect to the rent reserved hereunder,
either wholly or partially in substitution for, or in addition
to, real estate taxes assessed or levied on the Property, such
tax or excise on rents shall be included in Taxes; however,
Taxes shall not include franchise, corporate, estate,
inheritance, succession, capital levy, transfer, income or
excess profits taxes assessed on Landlord or penalties or
interest for late payment of real estate taxes. Taxes shall
include any estimated payment made by Landlord on account of a
fiscal tax period for which the actual and final amount of taxes
for such period has not been determined by the governmental
authority as of the date of any such estimated payment.
4.2.2 PERSONAL PROPERTY TAXES. Tenant shall pay all taxes charged,
assessed or imposed upon the personal property of Tenant in or
upon the Premises.
4.2.3 OPERATING COSTS. If, during the term hereof, Operating Costs (as
hereinafter defined) incurred by Landlord in any calendar year
shall exceed Base Operating Costs, Tenant shall reimburse
Landlord, as additional rent, for Tenant's Percentage of any
such excess (such amount being hereinafter referred to as the
"Operating Costs Excess"). Tenant shall remit to Landlord, on
the first day of each calendar month, estimated payments on
account of Operating Costs Excess, such monthly amounts to be
sufficient to provide Landlord, by the end of the calendar year,
a sum equal to the Operating Costs Excess, as reasonably
estimated by Landlord from time to time. If, at the expiration
of the year in respect of which monthly installments of
Operating Costs Excess shall have been made as aforesaid, the
total of such monthly remittances is greater than the actual
Operating Costs Excess for such year, Landlord shall promptly
pay to Tenant, or credit against the next accruing payments to
be made by Tenant pursuant to this subsection 4.2.3, the
difference; if the total of such remittances is less than the
Operating Costs Excess for such year, Tenant shall pay the
difference to Landlord within twenty (20) days from the date
Landlord shall furnish to Tenant an itemized statement of the
Operating Costs Excess, prepared, allocated and computed in
accordance with generally accepted accounting principles. Any
reimbursement for Operating Costs due and payable by Tenant with
respect to periods of less than twelve (12) months shall be
equitably prorated.
The term "Operating Costs" shall mean all costs and expenses
incurred for the operation, cleaning, maintenance, repair and
upkeep of the Property, and the portion of such costs and
expenses with regard to the common areas, facilities and
amenities of the Park which is equitably allocable to the
Property, including, without limitation, all costs of
maintaining and repairing the Property and the Park (including
snow removal, landscaping and grounds maintenance, operation and
maintenance of parking lots, sidewalks, walking paths, access
roads and driveways, security, operation and repair of heating
and air-conditioning equipment, elevators, lighting and any
other Building equipment or systems) and of all repairs and
replacements (other than repairs or replacements for which
Landlord has received full reimbursement from contractors, other
tenants of the Building or from others) necessary to keep the
Property and the Park in good working order, repair, appearance
and condition; all costs, including material and equipment
costs, for cleaning and janitorial services to the Building
(including window cleaning of the Building); all costs of any
reasonable insurance carried by Landlord relating to the
Property; all costs related to provision of heat (including oil,
electric, steam and/or gas), air-conditioning, and water
(including sewer charges) and other utilities to the Building
(exclusive of reimbursement to Landlord for any of same received
as a result of direct billing to any tenant of the Building);
payments under all service contracts relating to the foregoing;
all compensation, fringe benefits, payroll taxes and workmen's
compensation insurance premiums related thereto with respect to
any employees of Landlord or its affiliates engaged in security
and maintenance of the Property and the Park; reasonable
attorneys' fees and disbursements (exclusive of any such fees
and disbursements incurred in tax abatement proceedings or the
preparation of leases) and reasonable auditing and other
professional fees and expenses; and a management fee which shall
be comparable to management fees charged by other Landlords of
comparable buildings in the vicinity of the Property.
There shall not be included in such Operating Costs brokerage
fees (including rental fees) related to the operation of the
Building; interest and depreciation charges incurred on the
Property; or expenditures made by Tenant with respect to (i)
cleaning, maintenance and upkeep of the Premises, and (ii) the
provision of electricity to the Premises.
If, during the term of this Lease, Landlord shall replace any
capital items or make any capital expenditures (collectively
called "capital expenditures") the total amount of which is not
properly included in Operating Costs for the calendar year in
which they were made, there shall nevertheless be included in
Operating Costs for each calendar year in which and after such
capital expenditure is made the annual charge-off of such
capital expenditure. (Annual charge-off shall be determined by
(i) dividing the original cost of the capital expenditure by the
number of years of useful life thereof [The useful life shall be
reasonably determined by Landlord in accordance with generally
accepted accounting principles and practices in effect at the
time of acquisition of the capital item.]; and (ii) adding to
such quotient an interest factor computed on the unamortized
balance of such capital expenditure based upon an interest rate
reasonably determined by Landlord as being the interest rate
then being charged for long-term mortgages by institutional
lenders on like properties within the locality in which the
Building is located.) Provided, further, that if Landlord
reasonably concludes on the basis of engineering estimates that
a particular capital expenditure will effect savings in
Operating Costs and that such annual projected savings will
exceed the annual charge-off of capital expenditure computed as
aforesaid, then and in such events, the annual charge-off shall
be determined by dividing the amount of such capital expenditure
by the number of years over which the projected
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amount of such savings shall fully amortize the cost of such
capital item or the amount of such capital expenditure; and by
adding the interest factor, as aforesaid.
If during any portion of any year for which Operating Costs are
being computed, the Building was not fully occupied by tenants
or if not all of such tenants were paying fixed rent or if
Landlord was not supplying all tenants with the services being
supplied hereunder, actual Operating Costs incurred shall be
reasonably extrapolated by Landlord to the estimated Operating
Costs that would have been incurred if the Building were fully
occupied by tenants and all such tenants were then paying fixed
rent or if such services were being supplied to all tenants, and
such extrapolated amount shall, for the purposes of this Section
4.2.3, be deemed to be the Operating Costs for such year.
4.2.4 INSURANCE. Tenant shall, at its expense, as Additional Rent,
take out and maintain throughout the term the following
insurance protecting Landlord:
4.2.4.1 Commercial general liability insurance naming
Landlord, Tenant, and Landlord's managing agent and
any mortgagee of which Tenant has been given notice as
insureds or additional insureds and indemnifying the
parties so named against all claims and demands for
death or any injury to person or damage to property
which may be claimed to have occurred on the Premises
(or the Property, insofar as used by customers,
employees, servants or invitees of the Tenant), in
amounts which shall, at the beginning of the term, be
at least equal to the limits set forth in Section 1.1,
and, which, from time to time during the term, shall
be for such higher limits, if any, as are customarily
carried in the area in which the Premises are located
on property similar to the Premises and used for
similar purposes; and workmen's compensation insurance
with statutory limits covering all of Tenant's
employees working on the Premises.
4.2.4.2 Fire insurance with the usual extended coverage
endorsements covering all Tenant's furniture,
furnishings, fixtures and equipment.
4.2.4.3 All such policies shall be obtained from responsible
companies qualified to do business and in good
standing in Massachusetts, and the amount of insurance
allocated thereto shall be subject to Landlord's
approval. Tenant agrees to furnish Landlord with
certificates evidencing all such insurance prior to
the beginning of the term hereof and evidencing
renewal thereof at least thirty (30) days prior to the
expiration of any such policy. Each such policy shall
be non-cancelable with respect to the interest of
Landlord without at least ten (10) days' prior written
notice thereto. In the event provision for any such
insurance is to be by a blanket insurance policy, the
policy shall allocate a specific and sufficient amount
of coverage to the Premises.
4.2.4.4 All insurance which is carried by either party with
respect to the Building, Premises or to furniture,
furnishings, fixtures, or equipment therein or
alterations or improvements thereto, whether or not
required, shall include provisions which either
designate the other party as one of the insured or
deny to the insurer acquisition by subrogation of
rights of recovery against the other party to the
extent such rights have been waived by the insured
party prior to occurrence of loss or injury, insofar
as, and to the extent that, such provisions may be
effective without making it impossible to obtain
insurance coverage from responsible companies
qualified to do business in the state in which the
Premises are located (even though extra premium may
result therefrom). In the event that extra premium is
payable by either party as a result of this provision,
the other party shall reimburse the party paying such
premium the amount of such extra premium. If at the
request of one party, this non-subrogation provision
is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be
effective, but nothing contained in this subsection
shall derogate from or otherwise affect releases
elsewhere herein contained of either party for claims.
Each party shall be entitled to have certificates of
any policies containing such provisions. Each party
hereby waives all rights of recovery against the other
for loss or injury against which the waiving party is
protected by insurance containing said provisions,
reserving, however, any rights with respect to any
excess of loss or injury over the amount recovered by
such insurance.
4.2.5 UTILITIES. Tenant shall pay all charges made by public authority
or utility for the cost of electricity furnished or consumed on
the Premises, and all charges for telephone and other utilities
or services not supplied by Landlord pursuant to Subsections
5.1.1 and 5.1.3, whether designated as a charge, tax,
assessment, fee or otherwise, all such charges to be paid as the
same from time to time become due. Except as otherwise provided
in Article 5, it is understood and agreed that Tenant shall make
its own arrangements for the installation or provision of all
such utilities and that Landlord shall be under no obligation to
furnish any utilities to the Premises and shall not be liable
for any interruption or failure in the supply of any such
utilities to the Premises.
4.3 LATE PAYMENT OF RENT. If any installment of rent is paid after the
expiration of the notice and cure period specified in Section 8.1, then
Tenant shall pay Landlord a late payment fee equal to five (5%) percent
of the overdue payment.
4.4 SECURITY AND RESTORATION DEPOSIT. Upon the execution of this Lease,
Tenant shall deposit with Landlord the Security and Restoration Deposit;
provided, however, Landlord shall cause the security deposit under
Tenant's existing lease at 63 Third Avenue, or so much thereof that is
remaining in accordance with the Termination Agreement, to be
transferred and applied to the Security and Restoration Deposit
hereunder. Said deposit shall be held by Landlord as security for the
faithful performance by Tenant of all the terms of this Lease by said
Tenant to be observed and performed. The security deposit shall not be
mortgaged, assigned, transferred or encumbered by Tenant without the
written consent of Landlord and any such act on the part of Tenant shall
be without force and effect and shall not be binding upon Landlord.
If the Fixed Rent or Additional Rent or any other sum payable hereunder
shall be overdue and unpaid beyond the expiration of any and all
applicable notice and cure periods hereunder, or should Landlord make
payments on behalf of the Tenant, or Tenant shall fail to perform any of
the terms of this Lease beyond the expiration of any and all applicable
notice and cure periods hereunder, then Landlord may, at its option and
without prejudice to any other remedy which Landlord may have on account
thereof, appropriate and apply said entire deposit or so much thereof as
may be necessary to compensate Landlord toward the payment of Fixed
Rent, Additional Rent or other sums or loss or damage sustained by
Landlord due to such breach on the part of Tenant; and Tenant shall
forthwith upon demand restore said security to the original sum
deposited. Should Tenant comply with all of said terms and promptly pay
all of the rentals as they fall due and all other sums payable by Tenant
to Landlord, said deposit shall be returned in full to Tenant at the end
of the term.
In the event of bankruptcy or other creditor-debtor proceedings against
Tenant, all securities shall be deemed to be applied first to the
payment of rent and other charges due Landlord for all periods prior to
the filing of such proceedings.
ARTICLE 5
LANDLORD'S COVENANTS
5.1 AFFIRMATIVE COVENANTS. Landlord covenants with Tenant:
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5.1.1 HEAT AND AIR-CONDITIONING. To furnish to the Premises heat and
air-conditioning (reserving the right, at any time, to change
energy or heat sources) sufficient to maintain the Premises at
comfortable temperatures (subject to all federal, state, and
local regulations relating to the provision of heat).
Air-conditioning shall be provided during the hours of 8:00 a.m.
to 6:00 p.m. on Mondays through Fridays, during such days of the
year that the Building is normally open. If Tenant requires
air-conditioning other than during the days and hours listed
above, Landlord shall furnish the same upon Tenant's reasonable
advance request therefor and Tenant shall pay Landlord, as
additional rent, all charges for after-hours air-conditioning.
As of the date of this Lease, the current charge for after-hours
air-conditioning is $35.00 per hour.
5.1.2 ELECTRICITY. To furnish to the Premises, separately metered and
at the direct expense of Tenant as hereinabove provided,
reasonable electricity for Tenant's Permitted Uses. If Tenant
shall require electricity in excess of reasonable quantities for
Tenant's Permitted Uses and if (i) in Landlord's reasonable
judgment, Landlord's facilities are inadequate for such excess
requirements, or (ii) such excess use shall result in an
additional burden on the Building utilities systems and
additional cost to Landlord on account thereof, as the case may
be, (a) Tenant shall, upon demand, reimburse Landlord for such
additional cost, as aforesaid, or (b) Landlord, upon Tenant's
written request, and at the sole cost and expense of Tenant,
will furnish and install such additional wire, conduits,
feeders, switchboards and appurtenances as reasonably may be
required to supply such additional requirements of Tenant (if
electricity therefor is then available to Landlord), provided
that the same shall be permitted by applicable laws and
insurance regulations and shall not cause permanent damage or
injury to the Building or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable
alterations or repairs.
5.1.3 CLEANING; WATER. To provide cleaning to the Premises in
accordance with cleaning and janitorial standards generally
prevailing throughout the term hereof in comparable office
buildings within the municipality in which the Building is
located; and to furnish water for ordinary cleaning, lavatory
and toilet facilities.
5.1.4 ELEVATOR; FIRE ALARM. To furnish elevator service (if any) from
the lobby to the Premises; and to maintain fire alarm systems
within the Building.
5.1.5 REPAIRS. Except as otherwise expressly provided herein, to make
such repairs and replacements to the roof, exterior walls, floor
slabs and other structural components of the Building, and to
the common areas, facilities and plumbing, electrical, heating,
ventilating and air-conditioning systems of the Building as may
be necessary to keep them in good repair and condition
(exclusive of equipment installed by Tenant and except for those
repairs required to be made by Tenant pursuant to Section 6.1.3
hereof and repairs or replacements occasioned by any act or
negligence of Tenant, its servants, agents, customers,
contractors, employees, invitees, or licensees). Landlord shall
use reasonable efforts to minimize interference with Tenant's
use of the Premises during repairs.
5.1.6 LANDLORD'S INSURANCE. To take out and maintain all-risk casualty
insurance in an amount at least equal to the replacement cost of
the Building and improvements on the Premises and any other
personal property of Landlord on the Premises, as such
replacement cost may, from time to time, be reasonably
determined by Landlord.
5.2 INTERRUPTION. Landlord shall be under no responsibility or liability for
failure or interruption of any of the above-described services, repairs
or replacements caused by breakage, accident, strikes, repairs,
inability to obtain supplies, labor or materials, or for any other
causes beyond the control of the Landlord, and in no event for any
indirect or consequential damages to Tenant; and failure or omission on
the part of the Landlord to furnish any of same for any of the reasons
set forth in this paragraph shall not be construed as an eviction of
Tenant, actual or constructive, nor entitle Tenant to an abatement of
rent, nor render the Landlord liable in damages, nor release Tenant from
prompt fulfillment of any of its covenants under this Lease.
5.3 OUTSIDE SERVICES. In the event Tenant wishes to provide outside services
for the Premises over and above those services to be provided by
Landlord as set forth herein, Tenant shall first obtain the prior
written approval of Landlord for the installation and/or utilization of
such services ("Outside services" shall include, but shall not be
limited to, cleaning services, television, so-called "canned music"
services, security services, catering services and the like.) In the
event Landlord approves the installation and/or utilization of such
services, such installation and utilization shall be at Tenant's sole
cost, risk and expense.
ARTICLE 6
TENANT'S ADDITIONAL COVENANTS
6.1 AFFIRMATIVE COVENANTS. Tenant covenants at all times during the term and
for such further time (prior or subsequent thereto) as Tenant occupies
the Premises or any part thereof:
6.1.1 PERFORM OBLIGATIONS. To perform promptly all of the obligations
of Tenant set forth in this Lease; and to pay when due the Fixed
Rent and Additional Rent and all charges, rates and other sums
which by the terms of this Lease are to be paid by Tenant.
6.1.2 USE. To use the Premises only for the Permitted Uses, and from
time to time to procure all licenses and permits necessary
therefor, at Tenant's sole expense. With respect to any licenses
or permits for which Tenant may apply, pursuant to this
subsection 6.1.2 or any other provision hereof, Tenant shall
furnish Landlord copies of applications therefor on or before
their submission to the governmental authority.
6.1.3 REPAIR AND MAINTENANCE. To maintain the Premises in neat order
and condition and to perform all routine and ordinary repairs to
the Premises and to any plumbing, heating, electrical,
ventilating and air-conditioning systems located within the
Premises and installed by Tenant such as are necessary to keep
them in good working order, appearance and condition, as the
case may require, reasonable use and wear thereof and damage by
fire or by unavoidable casualty only excepted; to keep all glass
in windows and doors of the Premises (except glass in the
exterior walls of the Building) whole and in good condition with
glass of the same quality as that injured or broken; and to make
as and when needed as a result of misuse by, or neglect or
improper conduct of Tenant or Tenant's servants, employees,
agents, invitees or licensees or otherwise, all repairs
necessary, which repairs and replacements shall be in quality
and class equal to the original work. (Landlord, upon default of
Tenant beyond the expiration of any and all applicable notice
and cure periods hereunder [except in emergencies, where no
notice shall be required], may elect, at the reasonable expense
of Tenant, to perform all such cleaning and maintenance and to
make any such repairs or to repair any damage or injury to the
Building or the Premises caused by moving property of Tenant in
or out of the Building, or by installation or removal of
furniture or other property, or by misuse by, or neglect, or
improper conduct of, Tenant or Tenant's servants, employees,
agents, contractors, customers, patrons, invitees, or
licensees.)
6.1.4 COMPLIANCE WITH LAW. To make all repairs, alterations, additions
or replacements to the Premises required by any law or ordinance
or any order or regulation of any public authority; to keep the
Premises equipped with all safety appliances so required; and to
comply with the orders and regulations of all governmental
authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws applicable to the
Premises, except that Tenant may defer compliance so long as the
validity of any such law, ordinance, order or regulations shall
be contested by Tenant in good
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faith and by appropriate legal proceedings, if Tenant first
gives Landlord appropriate assurance or security against any
loss, cost or expense on account thereof.
6.1.5 INDEMNIFICATION. To save harmless, exonerate and indemnify
Landlord, its agents (including, without limitation, Landlord's
managing agent) and employees (such agents and employees being
referred to collectively as the "Landlord Related Parties") from
and against any and all claims, liabilities or penalties
asserted by or on behalf of any person, firm, corporation or
public authority on account of injury, death, damage or loss to
person or property in or upon the Premises and the Property
arising out of the use or occupancy of the Premises by Tenant or
by any person claiming by, through or under Tenant (including,
without limitation, all patrons, employees and customers of
Tenant), or arising out of any delivery to or service supplied
to the Premises, or on account of or based upon anything
whatsoever done on the Premises, except if the same was caused
by the negligence, fault or misconduct of Landlord or the
Landlord Related Parties. In respect of all of the foregoing,
Tenant shall indemnify Landlord and the Landlord Related Parties
from and against all costs, expenses (including reasonable
attorneys' fees), and liabilities incurred in or in connection
with any such claim, action or proceeding brought thereon; and,
in case of any action or proceeding brought against Landlord or
the Landlord Related Parties by reason of any such claim,
Tenant, upon notice from Landlord and at Tenant's expense, shall
resist or defend such action or proceeding and employ counsel
therefor reasonably satisfactory to Landlord.
6.1.6 LANDLORD'S RIGHT TO ENTER. To permit Landlord and its agents to
enter into and examine the Premises at reasonable times, and
upon reasonable advance written notice, and to show the
Premises, and to make repairs to the Premises, and, during the
last six (6) months prior to the expiration of this Lease, to
keep affixed in suitable places notices of availability of the
Premises.
6.1.7 PERSONAL PROPERTY AT TENANT'S RISK. All of the furnishings,
fixtures, equipment, effects and property of every kind, nature
and description of Tenant and of all persons claiming by,
through or under Tenant which, during the continuance of this
Lease or any occupancy of the Premises by Tenant or anyone
claiming under Tenant, may be on the Premises, shall be at the
sole risk and hazard of Tenant and if the whole or any part
thereof shall be destroyed or damaged by fire, water or
otherwise, or by the leakage or bursting of water pipes, steam
pipes, or other pipes, by theft or from any other cause, no part
of said loss or damage is to be charged to or to be borne by
Landlord, except that Landlord shall in no event be indemnified
or held harmless or exonerated from any liability to Tenant or
to any other person, for any injury, loss, damage or liability
to the extent prohibited by law.
6.1.8 PAYMENT OF LANDLORD'S COST OF ENFORCEMENT. To pay on demand
Landlord's reasonable expenses, including reasonable attorneys'
fees, incurred in enforcing any obligation of Tenant under this
Lease or in curing any default by Tenant under this Lease as
provided in Section 8.4.
6.1.9 YIELD UP. At the expiration of the term or earlier termination
of this Lease: to surrender all keys to the Premises; to remove
all of its trade fixtures and personal property in the Premises;
to deliver to Landlord stamped architectural plans showing the
Premises at yield up (which shall not be required if Tenant has
made no installations after the Commencement Date); to remove
such installations made by it as Landlord may request (including
computer and telecommunications wiring and cabling, it being
understood that if Tenant leaves such wiring and cabling in a
useable condition, Landlord, although having the right to
request removal thereof, is less likely to so request) and all
Tenant's signs wherever located; to repair all damage caused by
such removal and to yield up the Premises (including all
installations and improvements made by Tenant except for trade
fixtures and such of said installations or improvements as
Landlord shall request Tenant to remove), broom-clean and in the
same good order and repair in which Tenant is obliged to keep
and maintain the Premises by the provisions of this Lease. Any
property not so removed shall be deemed abandoned and, if
Landlord so elects, deemed to be Landlord's property, and may be
retained or removed and disposed of by Landlord in such manner
as Landlord shall determine and Tenant shall pay Landlord the
entire cost and expense incurred by it in effecting such removal
and disposition and in making any incidental repairs and
replacements to the Premises and for use and occupancy during
the period after the expiration of the term and prior to its
performance of its obligations under this subsection 6.1.9.
Tenant shall further indemnify Landlord against all loss, cost
and damage resulting from Tenant's failure and delay in
surrendering the Premises as above provided.
If the Tenant remains in the Premises beyond the expiration or
earlier termination of this Lease, such holding over shall be
without right and shall not be deemed to create any tenancy, but
the Tenant shall be a tenant at sufferance only at a daily rate
of rent equal to two (2) times the rent and other charges in
effect under this Lease as of the day prior to the date of
expiration of this Lease.
6.1.10 RULES AND REGULATIONS. To comply with the Rules and Regulations
set forth in Exhibit B, and with all reasonable Rules and
Regulations of general applicability to all tenants of the
Building hereafter made by Landlord, of which Tenant has been
given notice; Landlord shall not be liable to Tenant for the
failure of other tenants of the Building to conform to such
Rules and Regulations.
6.1.11 ESTOPPEL CERTIFICATE. Upon not less than ten (10) days' prior
written request by Landlord, to execute, acknowledge and deliver
to Landlord a statement in writing, which may be in the form
attached hereto as Exhibit C or in another form reasonably
similar thereto, or such other form as Landlord may provide from
time to time, certifying all or any of the following: (i)
whether this Lease is unmodified and in full force and effect,
(ii) whether the term has commenced and Fixed Rent and
Additional Rent have become payable hereunder and, if so, the
dates to which they have been paid, (iii) whether or not
Landlord is in default in performance of any of the terms of
this Lease, (iv) whether Tenant has accepted possession of the
Premises, (v) whether Tenant has made any claim against Landlord
under this Lease and, if so, the nature thereof and the dollar
amount, if any, of such claim, (vi) whether there exist any
offsets or defenses against enforcement of any of the terms of
this Lease upon the part of Tenant to be performed, and (vii)
such further information with respect to the Lease or the
Premises as Landlord may reasonably request. Any such statement
delivered pursuant to this subsection 6.1.11 may be relied upon
by any prospective purchaser or mortgagee of the Premises, or
any prospective assignee of such mortgage. Tenant shall also
deliver to Landlord such financial information as may be
reasonably required by Landlord to be provided to any mortgagee
or prospective purchaser of the Premises.
6.1.12 LANDLORD'S EXPENSES RE CONSENTS. To reimburse Landlord promptly
on demand for all reasonable legal expenses incurred by Landlord
in connection with all requests by Tenant for consent or
approval hereunder.
6.2 NEGATIVE COVENANTS. Tenant covenants at all times during the term and
such further time (prior or subsequent thereto) as Tenant occupies the
Premises or any part thereof:
6.2.1 ASSIGNMENT AND SUBLETTING. Not to assign, transfer, mortgage or
pledge this Lease or to sublease (which term shall be deemed to
include the granting of concessions and licenses and the like)
all or any part of the Premises or suffer or permit this Lease
or the leasehold estate hereby created or any other rights
arising under this Lease to be assigned, transferred or
encumbered, in whole or in part, whether voluntarily,
involuntarily or by operation of law, or permit the occupancy of
the Premises by anyone other than Tenant.
6.2.2 NUISANCE. Not to injure, deface or otherwise harm the Premises;
nor commit any nuisance; nor permit in the Premises any vending
machine (except such as is used for the sale of merchandise to
employees of Tenant) or inflammable fluids or chemicals (except
such as are customarily used in connection with standard office
equipment); nor permit any cooking to
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such extent as requires special exhaust venting; nor permit the
emission of any objectionable noise or odor; nor make, allow or
suffer any waste; nor make any use of the Premises which is
improper, offensive or contrary to any law or ordinance or which
will invalidate any of Landlord's insurance; nor conduct any
auction, fire, "going out of business" or bankruptcy sales.
6.2.3 HAZARDOUS WASTES AND MATERIALS. Not to dispose of any hazardous
wastes, hazardous materials or oil on the Premises or the
Property, or into any of the plumbing, sewage, or drainage
systems thereon, and to indemnify and save Landlord harmless
from all claims, liability, loss or damage arising on account of
the use or disposal of hazardous wastes, hazardous materials or
oil, including, without limitation, liability under any federal,
state, or local laws, requirements and regulations, or damage to
any of the aforesaid systems. Tenant shall comply with all
governmental reporting requirements with respect to hazardous
wastes, hazardous materials and oil, and shall deliver to
Landlord copies of all reports filed with governmental
authorities. Landlord agrees to indemnify and hold Tenant
harmless from all claims, liability, loss or damage arising on
account of hazardous wastes, hazardous materials or oil present
at or under or near the Premises or the Property on which the
Premises is located as of the Commencement Date. In the event
any third party shall institute any claim against Tenant for
which Landlord has agreed to indemnify Tenant, the Landlord
shall bear the burden of proving that Tenant is at fault in such
claim.
6.2.4 FLOOR LOAD; HEAVY EQUIPMENT. Not to place a load upon any floor
of the Premises exceeding the floor load per square foot area
which such floor was designed to carry and which is allowed by
law. Landlord reserves the right to prescribe the weight and
position of all heavy business machines and equipment, including
safes, which shall be placed so as to distribute the weight.
Business machines and mechanical equipment which cause vibration
or noise shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient to absorb and prevent vibration,
noise and annoyance. Tenant shall not move any safe, heavy
machinery, heavy equipment, freight or fixtures into or out of
the Premises except in such manner and at such time as Landlord
shall in each instance authorize.
6.2.5 INSTALLATION, ALTERATIONS OR ADDITIONS. Not to make any
installations, alterations or additions in, to or on the
Premises nor to permit the making of any holes in the walls,
partitions, ceilings or floors nor the installation or
modification of any locks or security devices without on each
occasion obtaining the prior written consent of Landlord, and
then only pursuant to plans and specifications approved by
Landlord in advance in each instance; Tenant shall pay promptly
when due the entire cost of any work to the premises undertaken
by Tenant so that the Premises shall at all times be free of
liens for labor and materials, and at Landlord's request Tenant
shall furnish to Landlord a bond or other security acceptable to
Landlord assuring that any work commenced by Tenant will be
completed in accordance with the plans and specifications
theretofore approved by Landlord and assuring that the Premises
will remain free of any mechanics' lien or other encumbrance
arising out of such work. In any event, Tenant shall forthwith
bond against or discharge any mechanics' liens or other
encumbrances that may arise out of such work. Tenant shall
procure all necessary licenses and permits at Tenant's sole
expense before undertaking such work. All such work shall be
done in a good and workmanlike manner employing materials of
good quality and so as to conform with all applicable zoning,
building, fire, health and other codes, regulations, ordinances
and laws. Tenant shall save Landlord harmless and indemnified
from all injury, loss, claims or damage to any person or
property occasioned by or growing out of such work.
Not to grant a security interest in, or to lease, any personal
property being installed in the Premises (including, without
limitation, demountable partitions) without first obtaining an
agreement, for the benefit of Landlord, from the secured party
or lessor that such property will be removed within ten (10)
business days after notice from Landlord of the expiration or
earlier termination of this Lease and that a failure to so
remove will subject such property to the provisions of
subsection 6.1.9 of the Lease.
6.2.6 ABANDONMENT. Not to abandon or vacate the Premises during the
term.
6.2.7 SIGNS. Not without Landlord's prior written approval to paint or
place any signs or place any curtains, blinds, shades, awnings,
aerials, or the like, visible from outside the Premises.
6.2.8 PARKING AND STORAGE. Not to permit any storage of materials
outside of the Premises; nor to permit the use of the parking
areas for either temporary or permanent storage of trucks; nor
permit the use of the Premises for any use for which heavy
trucking would be customary.
ARTICLE 7
CASUALTY OR TAKING
7.1 TERMINATION. In the event that the Premises or the Building, or any
material part thereof, shall be taken by any public authority or for any
public use, or shall be destroyed or damaged by fire or casualty, or by
the action of any public authority, then this Lease may be terminated at
the election of Landlord. Such election, which may be made
notwithstanding the fact that Landlord's entire interest may have been
divested, shall be made by the giving of notice by Landlord to Tenant
within sixty (60) days after the date of the taking or casualty.
7.2 RESTORATION. If Landlord does not elect to so terminate, this Lease
shall continue in force and a just proportion of the rent reserved,
according to the nature and extent of the damages sustained by the
Premises, shall be suspended or abated until the Premises, or what may
remain thereof, shall be put by Landlord in proper condition for use,
which Landlord covenants to do with reasonable diligence to the extent
permitted by the net proceeds of insurance recovered or damages awarded
for such taking, destruction or damage and subject to zoning and
building laws or ordinances then in existence. "Net proceeds of
insurance recovered or damages awarded" refers to the gross amount of
such insurance or damages less the reasonable expenses of Landlord
incurred in connection with the collection of the same, including
without limitation, fees and expenses for legal and appraisal services.
A. If the Premises, or any material part thereof shall be damaged or
taken, then within thirty (30) days of such event Landlord shall submit
to Tenant its good faith estimate of the estimated time to complete such
repairs. If such estimate exceeds one hundred eighty (180) days, Tenant
may elect, by a written notice sent within fifteen (15) days after
notice of such estimate is sent to Tenant, to terminate this Lease.
B. If the Premises, or any material part thereof, shall be damaged or
taken, and if Landlord shall not have restored the Premises to
substantially the same condition as existed prior to such damage or, in
the case of a taking, the remainder of the Premises to as nearly as
practicably may be to the same condition as existed prior to such taking
within one hundred fifty (150) days after the date of such casualty or
taking for any reason other than Tenant's fault, Tenant may terminate
this Lease by giving Landlord written notice after said one hundred
fifty (150) day period, effective at the expiration of thirty (30) days
after Landlord receives said notice; provided, however, that such
termination shall be rendered ineffective if, prior to expiration of
said thirty (30) day period, Landlord shall have completed such
restoration.
C. If less than a material part of the Premises are damaged or taken,
and if Landlord shall not have restored the Premises to substantially
the same condition as existed prior to such damage or, in the case of a
taking, the remainder of the Premises to as nearly as practicably may be
to the same condition as existed prior to such taking within sixty (60)
days after the date of such casualty or taking for any reason other than
Tenant's fault, Tenant may terminate this Lease by giving Landlord
written notice after said sixty (60) day period, effective at the
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expiration of thirty (30) days after Landlord receives said notice;
provided, however that such termination shall be rendered ineffective
if, prior to expiration of said thirty (30) day period, Landlord shall
have completed such restoration.
7.3 AWARD. Irrespective of the form in which recovery may be had by law, all
rights to damages or compensation shall belong to Landlord in all cases.
Tenant hereby grants to Landlord all of Tenant's rights to such damages
and covenants to deliver such further assignments thereof as Landlord
may from time to time request.
ARTICLE 8
DEFAULTS
8.1 EVENTS OF DEFAULT. (a) If Tenant shall default in the performance of any
of its obligations to pay the Fixed Rent, Additional Rent or any other
sum due Landlord hereunder and if such default shall continue for ten
(10) days after written notice from Landlord designating such default or
if within thirty (30) days after written notice from Landlord to Tenant
specifying any other default or defaults Tenant has not commenced
diligently to correct the default or defaults so specified or has not
thereafter diligently pursued such correction to completion, or (b) if
any assignment shall be made by Tenant or any guarantor of Tenant for
the benefit of creditors, or (c) if Tenant's leasehold interest shall be
taken on execution, or (d) if a lien or other involuntary encumbrance is
filed against Tenant's leasehold interest or Tenant's other property,
including said leasehold interest, and is not discharged within ten (10)
days thereafter, or (e) if a petition is filed by Tenant or any
guarantor of Tenant for liquidation, or for reorganization or an
arrangement under any provision of any bankruptcy law or code as then in
force and effect, or (f) if an involuntary petition under any of the
provisions of any bankruptcy law or code is filed against Tenant or any
guarantor of Tenant and such involuntary petition is not dismissed
within thirty (30) days thereafter, then, and in any of such cases,
Landlord and the agents and servants of Landlord lawfully may, in
addition to and not in derogation of any remedies for any preceding
breach of covenant, immediately or at any time thereafter without demand
or notice and with or without process of law (forcibly, if necessary)
enter into and upon the Premises or any part thereof in the name of the
whole or mail a notice of termination addressed to Tenant, and repossess
the same as of landlord's former estate and expel Tenant and those
claiming through or under Tenant and remove its and their effects
(forcibly, if necessary) without being deemed guilty of any manner of
trespass and without prejudice to any remedies which might otherwise be
used for arrears of rent or prior breach of covenants, and upon such
entry or mailing as aforesaid this Lease shall terminate, Tenant hereby
waiving all statutory rights to the Premises (including without
limitation rights of redemption, if any, to the extent such rights may
be lawfully waived) and Landlord, without notice to Tenant, may store
Tenant's effects, and those of any person claiming through or under
Tenant, at the expense and risk of Tenant, and, if Landlord so elects,
may sell such effects at public auction or private sale and apply the
net proceeds to the payment of all sums due to Landlord from Tenant, if
any, and pay over the balance, if any, to Tenant.
8.2 REMEDIES. In the event that this Lease is terminated under any of the
provisions contained in Section 8.1, Tenant covenants to pay forthwith
to Landlord, as compensation, the excess of the total rent reserved for
the residue of the term over the rental value of the Premises for said
residue of the term. In calculating the rent reserved there shall be
included, in addition to the Fixed Rent and Additional Rent, the value
of all other considerations agreed to be paid or performed by Tenant for
said residue. Tenant further covenants as additional and cumulative
obligations after any such termination, to pay punctually to Landlord
all the sums and to perform all the obligations which Tenant covenants
in this Lease to pay and to perform in the same manner and to the same
extent and at the same time as if this Lease had not been terminated. In
calculating the amounts to be paid by Tenant pursuant to the next
preceding sentence Tenant shall be credited with any amount paid to
Landlord as compensation as in this Section 8.2 provided and also with
the net proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all Landlord's expense in connection with such
reletting, including, without limitation, all repossession costs,
brokerage commissions, fees for legal services and expenses of preparing
the Premises for such reletting, it being agreed by Tenant that Landlord
may (i) relet the Premises or any part or parts thereof, 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 and may grant such concessions and free rent as Landlord in its
sole judgment considers advisable or necessary to relet the same and
(ii) make such alterations, repairs and decorations in the Premises as
Landlord in its reasonable judgment considers advisable or necessary to
relet the same, and no action of Landlord in accordance with the
foregoing or failure to relet or to collect rent under reletting shall
operate or be construed to release or reduce Tenant's liability as
aforesaid.
In lieu of any other damages or indemnity and in lieu of full recovery
by Landlord of all sums payable under all the foregoing provisions of
this Section 8.2, Landlord may by written notice to Tenant, at any time
after this Lease is terminated under any of the provisions contained in
Section 8.1 and before such full recovery, elect to recover, and Tenant
shall thereupon pay, as liquidated damages, an amount equal to the
aggregate of the Fixed Rent and Additional Rent accrued in the twelve
(12) months ended next prior to such termination plus the amount of rent
of any kind accrued and unpaid at the time of termination and less the
amount of any recovery by Landlord under the foregoing provisions of
this Section 8.2 up to the time of payment of such liquidated damages.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy
or insolvency by reason of the termination of this Lease, an amount
equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are
to be proved, whether or not the amount be greater than, equal to, or
less than the amount of the loss or damages referred to above.
8.3 REMEDIES CUMULATIVE. Any and all rights and remedies which Landlord may
have under this Lease, and at law and equity, shall be cumulative and
shall not be deemed inconsistent with each other, and any two or more of
all such rights and remedies may be exercised at the same time insofar
as permitted by law.
8.4 LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but shall not be
obligated to, cure, at any time, after the expiration of any and all
applicable notice and cure periods hereunder (except in an emergency
where no notice shall be required), any default by Tenant under this
Lease; and whenever Landlord so elects, all costs and expenses incurred
by Landlord, including reasonable attorneys' fees, in curing a default
shall be paid, as Additional Rent, by Tenant to Landlord on demand,
together with lawful interest thereon from the date of payment by
Landlord to the date of payment by Tenant.
8.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by Landlord to
any act or omission which otherwise would be a breach of any covenant or
condition herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing
obligation of any covenant or condition herein, or otherwise, except as
to the specific instance, operate to permit similar acts or omissions.
8.6 NO WAIVER, ETC. The failure of Landlord to seek redress for violation
of, or to insist upon the strict performance of, any covenant or
condition of this Lease shall not be deemed a waiver of such violation
nor prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach
of any covenant of this Lease shall not be deemed to have been a waiver
of such breach by Landlord. No consent or waiver, express or implied, by
Landlord to or of any breach of any agreement or duty shall be construed
as a waiver or consent to or of any other breach of the same or any
other agreement or duty.
8.7 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser sum
than the Fixed Rent, Additional Rent or any other charge then due shall
be deemed to be other than on account of the earliest installment of
such rent or charge due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent or other
charge be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover
the balance of such installment or pursue any other remedy in this Lease
provided.
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ARTICLE 9
RIGHTS OF MORTGAGE HOLDERS
9.1 RIGHTS OF MORTGAGE HOLDERS. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. The word
"holder" shall mean a mortgagee, and any subsequent holder or holders of
a mortgage. Until the holder of a mortgage shall enter and take
possession of the Property for the purpose of foreclosure, such holder
shall have only such rights of Landlord as are necessary to preserve the
integrity of this Lease as security. Upon entry and taking possession of
the Property for the purpose of foreclosure, such holder shall have all
the rights of Landlord. No such holder of a mortgage shall be liable
either as mortgagee or as assignee, to perform, or be liable in damages
for failure to perform, any of the obligations of Landlord unless and
until such holder shall enter and take possession of the Property for
the purpose of foreclosure. Upon entry for the purpose of foreclosure,
such holder shall be liable to perform all of the obligations of
Landlord, subject to and with the benefit of the provisions of Section
10.4, provided that a discontinuance of any foreclosure proceeding shall
be deemed a conveyance under said provisions to the owner of the equity
of the Property.
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a holder of a mortgage (particularly,
without limitation thereby, the covenants and agreements contained in
this Section 9.1) constitute a continuing offer to any person,
corporation or other entity, which by accepting a mortgage subject to
this Lease, assumes the obligations herein set forth with respect to
such holder; such holder is hereby constituted a party of this Lease as
an obligee hereunder to the same extent as though its name were written
hereon as such; and such holder shall be entitled to enforce such
provisions in its own name. Tenant agrees on request of Landlord to
execute and deliver from time to time any agreement which may be
necessary to implement the provisions of this Section 9.1.
9.2 LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES. It is agreed that the rights
and interest of Tenant under this Lease shall be (i) subject or
subordinate to any present or future mortgage or mortgages and to any
and all advances to be made thereunder, and to the interest of the
holder thereof in the Premises or any property of which the Premises are
a part if Landlord shall elect by notice to Tenant to subject or
subordinate the rights and interest of Tenant under this Lease to such
mortgage or (ii) prior to any present or future mortgage or mortgages,
if Landlord shall elect, by notice to Tenant, to give the rights and
interest of Tenant under this Lease priority to such mortgage; in the
event of either of such elections and upon notification by Landlord to
that effect, the rights and interest of Tenant under this Lease should
be deemed to be subordinate to, or have priority over, as the case may
be, said mortgage or mortgages, irrespective of the time of execution or
time of recording of any such mortgage or mortgages (provided that, in
the case of subordination of this Lease to any future mortgages, the
holder thereof agrees not to disturb the possession of Tenant so long as
Tenant is not in default hereunder). Tenant agrees it will, upon not
less than ten (10) days' prior written request by Landlord, execute,
acknowledge and deliver any and all instruments deemed by Landlord
necessary or desirable to give effect to or notice of such subordination
or priority. Tenant also agrees that if it shall fail at any time to
execute, acknowledge and deliver any such instrument requested by
Landlord, Landlord may, in addition to any other remedies available to
it, execute, acknowledge and deliver such instrument as the
attorney-in-fact of Tenant and in Tenant's name; and Tenant does hereby
make, constitute and irrevocably appoint Landlord as its
attorney-in-fact, coupled with an interest with full power of
substitution, and in its name, place and stead so to do. Any Mortgage to
which this Lease shall be subordinated may contain such terms,
provisions and conditions as the holder deems usual or customary.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 NOTICES FROM ONE PARTY TO THE OTHER. All notices required or permitted
hereunder shall be in writing and addressed, if to the Tenant, at the
Original Notice Address of Tenant or such other address as Tenant shall
have last designated by notice in writing to Landlord and, if to
Landlord, at the Original Notice Address of Landlord or such other
address as Landlord shall have last designated by notice in writing to
Tenant. Any notice shall be deemed duly given when mailed to such
address postage prepaid, by registered or certified mail, return receipt
requested, or when delivered to such address by hand.
10.2 QUIET ENJOYMENT. Landlord agrees that upon Tenant's paying the rent and
performing and observing the agreements, conditions and other provisions
on its part to be performed and observed, Tenant shall and may peaceably
and quietly have, hold and enjoy the Premises during the term hereof
without any manner of hindrance or molestation from Landlord or anyone
claiming under Landlord, subject, however, to the terms of this Lease.
10.3 LEASE NOT TO BE RECORDED. Tenant agrees that it will not record this
Lease. Both parties shall, upon the request of either, execute and
deliver a notice or short form of this Lease in such form, if any, as
may be permitted by applicable statute.
10.4 LIMITATION OF LANDLORD'S LIABILITY. The term "Landlord" as used in this
Lease, so far as covenants or obligations to be performed by Landlord
are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the Property, and in the event of any
transfer or transfers of title to said property, the Landlord (and in
case of any subsequent transfers or conveyances, the then grantor) shall
be concurrently freed and relieved from and after the date of such
transfer or conveyance, without any further instrument or agreement of
all liability as respects the performance of any covenants or
obligations on the part of the Landlord contained in this Lease
thereafter to be performed, it being intended hereby that the covenants
and obligations contained in this Lease on the part of Landlord, shall,
subject as aforesaid, be binding on the Landlord, its successors and
assigns, only during and in respect of their respective successive
periods of ownership of said leasehold interest or fee, as the case may
be. Tenant, its successors and assigns, shall not assert nor seek to
enforce any claim for breach of this Lease against any of Landlord's
assets other than Landlord's interest in the Property and in the rents,
issues and profits thereof, and Tenant agrees to look solely to such
interest for the satisfaction of any liability or claim against Landlord
under this Lease, it being specifically agreed that in no event
whatsoever shall Landlord (which term shall include, without limitation,
any general or limited partner, trustees, beneficiaries, officers,
directors, or stockholders of Landlord) ever be personally liable for
any such liability.
10.5 ACTS OF GOD. In any case where either party hereto is required to do any
act, delays caused by or resulting from Acts of God, war, civil
commotion, fire, flood or other casualty, labor difficulties, shortages
of labor, materials or equipment, government regulations, unusually
severe weather, or other causes beyond such party's reasonable control
shall not be counted in determining the time during which work shall be
completed, whether such time be designated by a fixed date, a fixed time
or a "reasonable time," and such time shall be deemed to be extended by
the period of such delay.
10.6 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default in the
performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of
thirty (30) days or such additional time as is reasonably required to
correct any such default after written notice has been given by Tenant
to Landlord specifying the nature of Landlord's alleged default.
Landlord shall not be liable in any event for incidental or
consequential damages to Tenant by reason of Landlord's
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default, whether or not notice is given. Tenant shall have no right to
terminate this Lease for any default by Landlord hereunder and no right,
for any such default, to offset or counterclaim against any rent due
hereunder.
10.7 BROKERAGE. Tenant warrants and represents that it has dealt with no
broker in connection with the consummation of this Lease, other than
Nordblom Company, and in the event of any brokerage claims, other than
by Nordblom Company, against Landlord predicated upon prior dealings
with Tenant, Tenant agrees to defend the same and indemnify and hold
Landlord harmless against any such claim. Tenant shall not be liable to
Nordblom Company for any brokerage fees in connection with this Lease.
10.8 APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts and, if any provisions of this Lease shall to any extent
be invalid, the remainder of this Lease shall not be affected thereby.
There are no oral or written agreements between Landlord and Tenant
affecting this Lease. This Lease may be amended, and the provisions
hereof may be waived or modified, only by instruments in writing
executed by Landlord and Tenant. The titles of the several Articles and
Sections contained herein are for convenience only and shall not be
considered in construing this Lease. Unless repugnant to the context,
the words "Landlord" and "Tenant" appearing in this Lease shall be
construed to mean those named above and their respective heirs,
executors, administrators, successors and assigns, and those claiming
through or under them respectively. If there be more than one tenant,
the obligations imposed by this Lease upon Tenant shall be joint and
several.
WITNESS the execution hereof under seal on the day and year first above
written:
Landlord:
/s/ Peter C. Nordblom
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As Trustee, but not individually
/s/ John Macomber
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As Trustee, but not individually
Tenant:
eZenia! Inc.
By: /s/ Stephen G. Bassett
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Its: Chief Financial Officer
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