EXHIBIT 10.22
LEASE
Article I
1.1 COVER PAGE:
Parties:
Landlord (Lessor)
220 Bear Hill Road Realty Trust
Tenant (Lessee)
CTC Communications Corp.
360 Second Avenue
Waltham, MA 02451
State of Incorporation: Massachusetts
Date of Incorporation: 6/3/81
Federal ID Number: 04-2731202
Address for Notice & Payments
Lessor:
Vincent A. Messina, Trustee
P.O. Box 89
Wolfeboro, NH 03894
Lessee:
Same as above
Attention: Michael Donnellan
Vice President Operations
Commencement Date for Lessee
To Start Lessee's Buildout: August 24, 1998
Lessee will have access to rear space on August 10, 1998, and
remaining space on August 24, 1998.
Term: Commencement Date for
Rent Commencement: October 1, 1998
Expiration Date: September 30, 2004
Building and Leased Premises
Building: 220 Bear Hill Road
Premises: Building and Land
Building Address: 220 Bear Hill Road
City, State and Zip Code: Waltham, MA 0245
Size of Space Leased: Approximately 27,884 Square Feet
Security Deposit: $75,000
Use of Premises: Office, Warehouse & Related Uses
Rent: Annually Monthly
Adjusted Net Base Rent $304,166.66 $25,347.23
Plus:
Operating Expense
Contribution 7,500.00 625.00
Real Estate Tax
Contribution 57,354.15 4,779.50
__________________________________________________________
TOTAL ANNUAL PAYMENT $369,020.81
TOTAL MONTHLY PAYMENT $30,751.70
Rental Due Date: Rent is due in advance of the first day of each
month.
Late Payment
Charge & Interest: The Lessee will pay a late charge equal to
five (5) percent of any payment not received
by the Lessor within ten(10) days of the due
date thereof.
Interest on any delinquencies will be charged
at the rate of one and one-half (1-1/2)percent
per month.
Pro Ratio Percentages:
Approximate Square Feet of Building: 27,884
Approximate Square Feet of Premises Leased: 27,884
Pro-Rate Percentage attributable to Premises:
100% Operating and Other Expenses 100% Taxes & Assessments
Base Year Calculation:
The Lessee will be responsible for the above percentages in
Operating cost, and Real Estate Tax and assessments.
Insurance Requirements:
Lessee will carry Liability Insurance in the amount of
$1,000,000-$5,000,000 and Property Damage in the amount of
$1,000,000. Lessor will be named as additional insured.
1.2 EXHIBITS:
These are incorporated as part of this Lease:
EXHIBIT A: Description of Area Leased
EXHIBIT B: Additional Terms Between Lessor Lessee
EXHIBIT C: Option to Renew
Executed as a sealed instrument in two or more counterparts on the day and
year first above written.
These Cover Pages: 1,2 and 3.
Landlord: (Lessor)
_____________________________
Vincent A. Messina, Trustee
220 Bear Hill Road Realty Trust
Tenant: (Lessee)
_____________________________
CTC Communications Corp
Steve Milton - President
Chief Operating Officer
Date of Lease Execution: July 28, 1998
TABLE OF ARTICLES AND SECTIONS
I. REFERENCE DATA PAGE
1.1 Cover Pages 1,2,3
1.2 Exhibits At End
1.3 Table of Articles & Sections 4,5,6
II. PREMISES, TERM & RENT
2.1 The Premises 8
2.2 Rights to Use Common Facilities 8
2.3 Lessor's Reservations 8
2.4 Habendum 9
2.5 Rent, When Due; Where Paid; Late
Payments 9,10
2.6 Adjustment to Rent, Real Property
Taxes, Assessments 10,11
2.7 Adjustments to Rents, Operating Cost
Increases 11,12,13
2.8 Definition of Lot ` 13,14
2.9 Due Date of Additional Rent Payments 14
2.10 Change of Accounting Periods 14
2.11 Unlawful Charges 14
III. CONSTRUCTION
3.1 Plans and Specifications for the
Building and for Lessee's Space 15
3.2 Preparation of Premises for Occupancy 15
3.3 Alterations and Additions 15,16
3.4 General Provisions Applicable to
Construction 17
IV. LESSOR'S COVENANTS: INTERRUPTIONS AND DELAYS
4.1 Lessor's Covenants 18
4.2 Interruptions and Delays in Services
and Repairs, etc. 18
V. LESSEE'S COVENANTS
5.1 Payments 19
5.2 Repair and Yield Up 19
5.3 Use 19,20
5.4 Obstructions, Items Visible from
Exterior, Rules and Regulations 20
5.5 Safety Appliance; Licenses 20
5.6 Assignment, Sublease 20,21,22,23
5.7 Indemnity 23
5.8 Right of Entry 23
5.9 Floor Load, Prevention of Vibrations
and Noise 23,24
5.10 Personal Property Taxes 24
5.11 Payment of Litigation Expenses 24
5.12 Insurance of Lessee's Property 24,25
5.13 HVAC Maintenance 25
VI. CASUALTY AND TAKING
6.1 Termination of Restoration; Rent
Adjustment 26,27
6.2 Eminent Domain Damages Reserved 27
6.3 Temporary Taking 27
VII. DEFAULT
7.1 Events of Default 28,29
7.2 Damages 29,30
VIII.MISCELLANEOUS
8.1 Titles of Articles, Recording; Consent;
Notice; Binding Effect 31
8.2 Notice of Lease; Consent or Approval
Notices; Bind & Insure; Trust Estate 31,32
8.3 Lessor's Failure to Enforce or
Cancellation 32
8.4 Acceptance of Partial Payments of Rent 32
8.5 Cumulative Remedies 33
8.6 Partial Invalidity 33
8.7 License for Support 33
8.8 Self Help 33,34
8.9 Lessee's Estoppel Certificate 34
8.10 Waiver of Subrogation 34
8.11 Governing Law 35
8.12 Brokerage 35
8.13 Assignment of Rent 35
IX. SUBORDINATION
9.1 Lease Subordinate to Mortgage
Indebtedness 36
9.2 Implementation of Article IX 36
ARBITRATION
10.1 Method of Appointment of Arbiters;
Award; Costs 37,38
XI. SECURITY DEPOSIT
11.1 Amount, Application 39
XII. LESSOR'S LIENS
12.1 Leins for Lessor 40
Exhibit A 41
Exhibit B 42,43
Exhibit C 44,45
ARTICLE II
PREMISES, TERM AND RENT
2.1 The Premises.
The Lessor (designated in Section 1.1 of Article I) hereby leases to
Lessee and Lessee hereby hires from Lessor, Lessee's Space
(identified in Article I) in the building excluding the common
stairways, stairwells, elevators and elevator wells, if included
in building, the exterior faces of the exterior wells, and the
pipes, ducts, conduits, wires and appurtenant fixtures serving
exclusively or in common other parts of the building. Lessee's
Space with such exclusions is hereinafter referred to as "the
Premises".
2.2 Rights to Use Common Facilities, if any.
Lessee shall have, as appurtenant to the Premises, rights to use in
common with other tenants and occupants of the Building, subject
to reasonable rules of general applicability to Lessees of the
building, from time to time made by Lessor of which Lessee is
given notice:
(a) The common lobbies, hallways, stairways and elevators
of the building, and the pipes, ducts, conduits,
wires and appurtenant equipment serving the Premises
in common with others,
(b) Walkways and driveways necessary for access to the
Building, and
(c) The common toilets and other common facilities in the
central core of such floor.
2.3 Lessor's Reservations.
Lessor reserves the right from time to time, without unreasonable
interference with Lessee's use:
(a) To expand the building, construct other buildings on
the lot, or to rent part of the lot, to install, use,
maintain, repair, replace and relocate for service to
the Premises and other parts of the building, of
either pipes, ducts, conduits, wires and appurtenant
fixtures wherever located in the Premises or
building, and
(b) To alter or relocate any other common facility,
provided that substitutions are substantially
equivalent or better.
Installations, replacements and relocation's referred to
in clause (a) above shall be located so far as
practicable in the core area above ceiling surfaces,
below floor surfaces or within perimeter walls of the
premises.
2.4 Habendum.
Lessee shall have and hold the Premises for a period commencing on
the commencement date set forth in Article I, Section 1.1 and
shall continue for the lease term unless sooner terminated as
provided in Section 6.1 of Article VI.
2.5 Rent; When Due: Where Paid.
All monies payable by Lessee to Lessor under this Lease shall be
deemed to be rent and shall be payable and recoverable as rent in
the manner herein provided and Lessor shall have all rights
against Lessee for default in any such payment. Rent shall be
paid to Lessor in advance, on the first day of each calendar
month, during the entire term of this Lease, without deduction or
set-off, in legal tender of the jurisdiction in which the Building
is located at the address of Lessor as set forth, or to such other
person or to such other address as Lessor may designate in
writing. Lessee's obligation to pay all rent due under this Lease
shall survive the expiration or earlier termination of this Lease.
Should this Lease commence on a day other than the first day of
the month or terminate on a day other than the last day of the
month, the rent for such partial month shall be pro-rated based on
a 365-day year.
The payment of rent will commence on the rent commencement date of
this lease, which is October 1, 1998.
A. Base Rent
Lessee agrees to pay Lessor the Rent as set forth on the
Cover Pages of this Lease. The total Base Rent will never
be lower than the amount shown on the Cover Pages of this
Lease.
(1) Adjusted Net Base Rent for purposes of this
lease. The base rent is $312,500 annually.
(ii) The Lessor has given the Lessee and annual
allowance of $8,333.33 (50,000/6=8,333.333) per
year for repairs and improvements the Lessee
will perform at Lessee's expense. (See Exhibit
B)
(iii) The adjusted Net Base Rent annually is
$304,166.67
B. Interest Rate on Delinquencies.
If Lessee shall fail to pay any rent when due, such unpaid
amounts shall bear interest at the rate set forth on the
Cover Pages of this Lease.
C. Late Payment Charge.
If Lessee shall fail to pay rent when due, Lessee shall pay
to Lessor, in addition to the interest provided for in
Section 2.5 B, a late payment charge for each occurrence
of an amount as set forth on the Cover Pages of this
Lease.
2.6 Adjustments to Rent; Real Property Taxes, Assessments.
Lessee shall pay its pro-rata share of all Real Property Taxes and
Assessments levied and assessed upon the Building and the Land
upon which the Building is situated monthly. The real estate tax
bill for the fiscal year ended June 30, 1998 is $57,354.15.
(a) Real Property Tax Contests
Lessor shall use its best efforts to keep the assessed value
of the real property of which the Premises are a part at
the lowest possible level and shall, if Lessor deems
necessary, employ attorneys, accountants, appraisers and
consultants for such purpose.
Lessee agrees to pay its pro-rata share of all amounts paid
by Lessor to such persons; however, Lessee's pro-rata
share shall not exceed the amount Lessee's pro-rata share
of the increase in Real Property Taxes would have been if
the assessed value had not been contested.
(b) Adjustments to Rent; Real Property Taxes Caused by Lessee
Improvements.
In the event that an increase in Real Property Taxes is
caused by the Lessee's improvements made to the Premises,
Lessee shall pay the increase attributable to such
improvements.
(c) Adjustments to Rent; Rental Tax
Lessee shall pay any excise, transaction, sales, business or
privilege tax (except income tax) attributed to or
measured by rental which is now or subsequently imposed
upon Lessor by any government or unit thereof.
(c) Adjustment to Estimated Tax Payment for Actual Tax.
Within 90 days of receipt by Lessor of the actual tax bill
for the current fiscal year during the term hereof, Lessor
shall deliver to Lessee a written statement setting forth
the actual cost for the fiscal tax year. If such cost for
any year is higher then the estimated payment made by
Lessee monthly, Lessor shall bill Lessee for such
difference. Lessee shall pay the pro rata share of such
excess within thirty (30) days after receipt of such
statement.
If such amount is lower then the estimated amount, then
Lessor shall credit or reimburse Lessee.
2.7 Adjustments to Rents; Operating Cost Increases and Other Expenses.
Lessee shall pay monthly as additional rent its pro-rata share of
Lessor's total building operating costs, maintenance, and
improvements.
(a) Definitions
BASE YEAR: Calendar year during which this Lease commences.
LEASE YEAR: Calendar year commencing January 1 and ending
December 31.
(a-1) OPERATING EXPENSES:
The Lessee shall pay the Lessor for all expenses
for water, sewer, and insurance. These expenses
are estimated at $7,500 per year for the
calendar year 1998. The Lessee will pay $625
per month during 1998.
All Expenses and improvements paid or incurred by
Lessor for maintaining, operating and repairing
the building, the Land, and the personal
property used in conjunction therewith, which in
accordance with generally accepted accounting
and management principals would be considered an
expense of maintaining, operating or repairing
the building.
(a-2) All Other Expenses, Improvements, Repairs
and Costs to be Paid Directly by Lessee:
The Lessee is completely responsible for all
operating expenses, replacement cost of all
equipment, utilities servicing the Lessee's
space, such as but not limited to electricity,
heat, cleaning of its space, washing of windows,
all maintenance, improvements, and repairs to
Lessee's space, HVAC units, roof, and any and
all other expenses or costs incurred for the use
of Lessee's space and the lot. The Lessee will
pay for these expenses directly to the
suppliers.
The space is being leased to the Lessee as is in
its present condition. All costs are Lessee's
responsibility at the commencement of this
lease, during the lease, and during any option
of this lease, except for the allowance given
Lessee in Exhibit B.
The intent of paragraph (a.1) and (a.2) in this
lease is that this lease is a triple net lease.
ACTUAL COSTS: The actual expenses paid or incurred by
Lessor for operating expenses during any Lease
Year of the term hereof.
ESTIMATED COSTS: Lessor's estimate of actual Costs for the
following lease year.
BASE AMOUNT: The Actual Cost for the Base Year.
(b) Adjustment for Estimated Costs
Lessor shall furnish Lessee a written statement setting
forth the estimated Costs for such Lease Year, and a
statement showing one twelfth (1/12) of the amount,
by which the Estimated Costs exceed the Actual Costs
for the Base Year. Lessee shall pay its pro rata
share of such increase monthly.
(c) Actual Cost
Within 90 days after the close of each Lease Year during
the term hereof, Lessor shall deliver to Lessee a
written statement setting forth the Actual Costs
during the preceding Lease Year. If such costs for
any Lease Year exceed the Estimated Costs paid by the
Lessee to Lessor for such Lease Year, Lessee shall
pay its pro rata share of such excess within thirty
(30) days after receipt of such statement.
(d) Adjustments to Rent; Variable Interest Rate on
Encumbrance
This Paragraph Intentionally Deleted From This Lease.
(e) Adjustments to Rent-Consumer Price Index
This Paragraph Intentionally Deleted From This Lease.
2.8 The Lot.
The "Lot" means all, and also any parts of the land described in
Exhibit A plus any addition thereto resulting from the change of
any abutting street line. The Lessee shall have a right to park
in the common parking area of this lot as designated by the
Lessor. the Lessor has the right to sub divide the lot and or add
to the building.
The Lessee is allotted four (4) parking spaces per One Thousand
(1000) square feet, for a total of 112 parking spaces.
The Lessor retains the right to sub divide the lot, expand the
building, lease or rent our part of the lot as long as it provides
the 112 parking spaces to the Lessee.
If Lessee shall add additional space to the building by means of
adding to the mezzanine or by any other way, Lessor shall receive
rent per square foot times the added space at a rate to be
determined by agreement between Lessor and Lessee, taking into
consideration the capital expenditure incurred by Lessee, and the
fair market rent at the time of expansion.
2.9. Due Date of Additional Rent Payment.
Except as otherwise specifically provided herein, any sum, amount,
item or charge designated or considered as additional rent in this
Lease shall be paid by Lessee to Lessor on the first day of the
month following the date on which Lessor notifies Lessee of the
amount payable or on the tenth (10) day after the giving of such
notice, whichever shall be later. Any such notice shall specify
in reasonable detail the basis of such additional rent.
2.10 Change of Accounting Periods.
Lessor shall have the right from time to time to change the periods
of accounting under Sections 2.6 & 2.7 above, or either of them,
to any other annual period than a calendar year, and upon any such
change, all items referred to in said Sections 2.6 and 2.7 shall
be appropriately apportioned. In all statements rendered under
Sections 2.6 & 2.7, amounts for periods partially within and
partially without the accounting periods shall be appropriately
apportioned, and any items which are not determinable at the time
of a statement shall be included therein on the basis of Lessor's
estimate and with respect thereto Lessor shall render promptly
after determination a supplemental statement and appropriate
adjustment shall be made according thereto. All statements shall
be prepared on an accrual basis of accounting.
2.11 Unlawful Charges.
If any charges imposed in this lease are found to be unlawful, then
those charges will be automatically reduced to the maximum allowed
charge and the difference refunded.
ARTICLE III
CONSTRUCTION
3.1 Plans and Specifications for the Building and for Lessee's Space.
Lessor agrees that the improvements to the Building will be
constructed in accordance with plans and specifications prepared
by Lessee's Architect, at Lessee's expense.
3.2 Preparation of Premises for Occupancy.
Lessor agrees to use due diligence to have Premises ready for Lessee
to start its improvements on or before the Scheduled Term
Commencement Date For Lessee to Start Lessee's Build Out. In case
of delays due to governmental regulations, unusual scarcity of or
inability to obtain labor or materials, labor difficulties,
casualty or other causes reasonably beyond Lessor's control, the
Scheduled Term Commencement Date For Lessee to Start Lessee's
Build Out shall be extended for the period of such delays. If the
Premises are not ready for Lessee to start its build out on or
before the Scheduled Term Commencement Date For Lessee to Start
Lessee's Build Out as it may be extended as aforesaid, Lessee
shall have the right to terminate this Lease within thirty (30)
days thereafter. Upon the giving of such notice of termination,
there shall be no further liability or obligation upon either
party hereto. Such right of termination shall be the sole and
exclusive remedy, either at law or in equity, available to Lessee
in the event of Lessor's failure to turn over the space.
3.3 Alterations and Additions.
This Section 3.3 shall apply before and during the Lease Term.
Lessee shall not make alterations or additions to Lessee's Space
except in accordance with plans and specifications therefor first
approved by Lessor. Lessor shall not be deemed unreasonable for
withholding approval of any alterations or additions which will
(a) delay completion of the Premises or Buildings,
(b) require unusual expense to readapt the Premises to normal
office use on Lease termination or increase the cost of
construction or of insurance or taxes on the Buildings or
of Lessor's services called for by Section 4.1 unless
Lessee first gives assurances acceptable to Lessor for
payment of such termination without expense to Lessor.
All alterations and additions shall be part of the
Buildings unless and until Lessor shall specify the same
for removal pursuant to Section 5.2. All of Lessee's
alterations and additions and installation of furnishings
shall be coordinated with any work being performed by
Lessor and in such manner as to maintain harmonious labor
relations and not to damage the Buildings or lot or
interfere with Building operation and, except for
installation of furnishings, shall be performed by
Lessor's general contractor or by contractors or workmen
first approved by Lessor. Except for work by Lessor's
general contractor, Lessee before its work is started
shall: Secure all licenses and permits necessary therefor;
deliver to Lessor 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
releases of all lien claims therefor; obtain from each
contractor covenants running to Lessor and Lessee not to
record or file for registration any notice of its
contract; and cause each contractor to carry workmen's
compensation insurance in statutory amounts covering all
the contractors and subcontractors employees and
comprehensive public liability insurance with such limits
as Lessor may reasonably require, but in no event less
than $1,000,000-$5,000,000, and property damage insurance
with limits of not less than $1,000,000 (all such
insurance to be written in companies approved by Lessor
and insuring Lessor and Lessee as well as the
contractors), and to deliver to Lessor certificates of all
such insurance. Lessee agrees to pay promptly when due
the entire cost of any work done on the Premises by
Lessee, 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 and immediately to discharge any
such liens which may so attach.
3.4 General Provisions Applicable to Construction.
All construction work done by Lessee, its agents, employees or
independent contractors shall be done in a good and workmanlike
manner and in compliance with all applicable laws and all lawful
ordinances, regulations and orders of governmental authority and
insurers of the Building. Lessor may inspect such work at any
time and shall promptly give notice to Lessee of any observed
defects.
ARTICLE IV
LESSOR'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Lessor's Covenants:
Lessor has the right to make this Lease and that Lessee on paying the
rent and performing the obligations in this Lease shall peacefully
and quietly have, hold and enjoy the Premises, subject to all of
the terms and provisions hereof.
4.2 Interruptions and Delays in Services and Repairs, etc.
Lessor shall not be liable to Lessee except by an act of the Lessor,
for any compensation or reduction of rent by reason of
inconvenience or annoyance or for loss of business arising from
the necessity of Lessor's entering the Premises for any of the
purposes in this Lease authorized, or for repairing the Premises
or any portion of the Building, however the necessity may occur.
In case Lessor is prevented or delayed from making repairs,
alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on Lessor's
part, by reason of any cause set forth in Section 3.2 hereof as
being reasonably beyond the Lessor's control, Lessor shall not be
liable to Lessee therefor, nor, except as expressly otherwise
provided in Section 6.1, shall Lessee be entitled to any abatement
or reduction of rent by reason thereof, nor shall the same give
rise to a claim in Lessee's favor that such failure constitutes
actual or constructive, total or partial, eviction from the
Premises.
Lessor reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary
repairs have been completed provided, however, that in each
instance of stoppage, Lessor shall exercise reasonable diligence
to eliminate the cause thereof. Except in case of emergency
repairs Lessor will give Lessee reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid
unnecessary inconvenience to Lessee by reason thereof.
ARTICLE V
LESSEE'S COVENANTS
Lessee covenants during the Lease term and such further time as
Lessee occupies any part of the Premises:
5.1 The Payments.
To pay when due all fixed rent and additional rent and all charges to
Lessor and also all other expenses, repairs, and improvements to
the Premises and lot directly as Lessee incurs them to whomever
Lessee owes for such items.
5.2 Repair and Yield Up.
Except as otherwise provided in Article VI, to keep the Premises in
good order, repair and condition, reasonable wear and tear only
excepted, and all glass in windows and doors of the Premises whole
and in good condition with glass of the same quality as that
injured or broken, damaged by fire or other casualty not caused by
Lessee's negligence or willful misconduct only excepted, and at
the expiration or termination of the Lease peaceably to yield up
the Premises and all alterations and additions thereto in good
order, repair and condition, reasonable wear and tear expected,
first removing all goods and effects of Lessee and, to the extent
specified by Lessor by notice to Lessee given at least ten (10)
days before such expiration or termination, all alterations and
additions made by Lessee, and repairing any damage caused by such
removal and restoring the Premises and leaving them clean and
neat.
5.3 The Use.
Continuously from the commencement of the Lease term to use and
occupy the Premises for the Permitted Uses, and not to injure or
deface the Premises, Buildings or Lot, not to permit in the
Premises any auction sale, vending machine, or inflammable fluids
or chemicals, or nuisance, or the emission from the Premises of
any objectionable noise or odor, or any cooking or sleeping, nor
to use or devote or permit the use of the Premises or any part
thereof for any purpose other than the Permitted Uses, not to
permit any use thereof which is improper, offensive, contrary to
law or ordinance or liable to invalidate or increase the premiums
for any insurance on the Building or its contents or liable to
render necessary any alteration or addition to the Buildings.
5.4 Obstructions, Items Visible from Exterior; Rules and Regulations.
Nor to obstruct in any manner any portions of the Building not hereby
leased or any portion thereof or of the Lot used by Lessee in
common with others; not to permit the painting or placing of any
signs or the placing of any curtains, blinds, shades, awnings,
aerials or flagpoles, or the like, visible from outside the
Premises without the prior approval of Lessor not to be
unreasonably withheld; and to comply with all reasonable Rules and
Regulations now or hereafter made by Lessor, of which Lessee has
been given notice for the case and use of the Buildings, Lot and
their facilities and approaches, Lessor shall not be liable for
the failure of other Lessee's of the Building to conform to such
Rules and Regulations;
5.5 Safety Appliance; Licenses.
To keep the Premises equipped with all safety appliances required by
law or ordinance or any other regulation of any public authority
because of any use made by Lessee other than normal office use,
and to procure all other licenses and permits so required because
of such use, and if requested by Lessor, to do any work so
required because of such use, it being understood that the
foregoing provisions shall not be construed to broaden in any way
Lessee's Permitted Uses;
5.6 Assignment; Sublease.
Not without prior written consent of Lessor, which will not be
unreasonably withheld, to assign, mortgage, pledge or otherwise
transfer this Lease or to make any sublease, or permit occupancy
of the Premises or any part thereof by anyone other than the
Lessee; in connection with any request by Lessee for such consent
to assignment or subletting, to submit to Lessor in writing:
(i) the name of the proposed assignee or subtenant,
(ii) such information as to its financial responsibility and
standing as Lessor may reasonably require,
(iii) all of the terms and provisions upon which the proposed
assignment or subletting is to be made and
(iv) an option executed by Lessee to Lessor as provided in
the immediately following sentence of this Section 5.6,
provided that the Lessee shall not be obligated to give
such option if the proposed assignment or sublease is to
be made to an Affiliate of Lessee.
Lessor shall have an option, except as aforesaid, to be
exercised in writing within sixty (60) days after its
receipt from Lessee of such request, information and
option, to cancel and terminate this Lease, if the
request is to assign the Lease or to sublet all of the
Premises or, if the request is to sublet a portion of
the Premises only, to cancel and terminate this Lease
with respect to such portion, in each case as of the
date set forth in Lessor's notice of exercise of such
option, which shall be not less than fourteen (14) nor
more than sixty (60) days following the giving of such
notice; in the event Lessor shall exercise such option,
Lessee shall surrender possession of the entire
Premises, or the portion which is the subject of the
option, as the case may be, on the date set forth in
such notice in accordance with the provisions of this
Lease relating to surrender of the Premises at the
expiration of the Lease Term; if this Lease shall be
canceled as to a portion of the Premises only, Annual
Fixed Rent shall be abated proportionately according to
the ration that the number of square feet in the portion
of the space surrendered bears to the Rentable Floor
Area of Lessee's Space, as additional rent, Lessee shall
reimburse Lessor promptly for reasonable legal and other
expenses incurred by Lessor in connection with any
request by Lessee for consent to assignment or
subletting. In the event Lessor shall not exercise its
option to cancel this Lease pursuant to the foregoing
provisions, provided that the terms and provisions of
such assignment or subletting shall specifically make
applicable to the assignee or sublease all of the
provisions of this Section 5.6 so that Lessor shall have
against the assignee or sub-lessee all rights with
respect to any further assignment and subletting which
are set forth herein, no assignment or subletting shall
affect the continuing primary liability to Lessee
(which, following assignment, shall be joint and several
with assignee); no consent to any of the foregoing in a
specific instance shall operate as a waiver in any
subsequent instance; and no assignment shall be binding
upon Lessor or any of Lessor's mortgages, unless Lessee
shall deliver to Lessor an instrument in recordable form
which contains a covenant of assumption by the assignee
running to Lessor and all persons claiming by, through
or under Lessor, but the failure or refusal of the
assignee to execute such instrument so assumption shall
not release or discharge assignee from its liability as
Lessee hereunder. The term "Affiliate of Lessee" for
purposes of this Section 5.6 shall mean
(i) any corporation, partnership, trust, association
or other business organization directly or
indirectly (through other entities or otherwise)
owning, controlling or holding, whether with or
without power to vote, 30% or more of the entire
beneficial interest in Lessee or any successor
whether by merger, consolidation or acquisition
of all of the assets of Lessee,
(ii) any corporation or trust with transferable
shares, 30% or more of whose outstanding capitol
stock or shares of beneficial interest of any
class is directly or indirectly (through other
entities or otherwise) own, controlled or held,
whether with or without the power to vote, by
Lessee or any successor whether by merger,
consolidation or acquisition of all or
substantially all of the assets of Lessee or any
corporation affiliated with Lessee or such
successor as defined in (i) above, and
(iii) any partnership, association or other business
organization, 30% or more of the beneficial
interest in which, whether with or without the
power to vote, is directly or indirectly)
through other entities or otherwise) owned,
controlled or held by Lessee or such successor
or any corporation affiliated with Lessee or
such successor as defined in (i) above;
5.7 Indemnity.
To defend with counsel first approved by Lessor, save harmless, and
indemnify Lessor from any liability for injury, loss, accident or
damage to any person or property, and from any claims, actions,
proceedings and expenses and costs in connection therewith
(including without limitation reasonable counsel fees),
(i) arising from the omission, fault, willful act,
negligence or other misconduct of Lessee or from any use
made or thing done or occurring on the Premises not due
to the omission, fault, willful act, negligence or other
misconduct of Lessor, or
(ii) resulting from the failure of Lessee to perform and
discharge its covenants and obligations under this
Lease;
5.8 Right of Entry.
To permit Lessor and Lessor's agents and designees to examine the
Premises at reasonable times and, if Lessor shall so elect, to
make any repairs or replacements Lessor may deem necessary, to
remove at Lessee's expense, any alterations, additions, signs,
curtains, blinds, shades, awnings, aerials, flagpoles, or the like
not consented to in writing by Lessor, and to show the Premises to
prospective Lessees during the twelve (12) months preceding
expiration of the Lease Term and to prospective purchasers and
mortgagees at all reasonable times;
5.9 Floor Load; Prevention of Vibration and Noise.
Not to place a load upon the Premises exceeding the live load for
which the floors have been designed; and not to move any safe,
vault or other heavy equipment in, about or out of the Premises
except in such manner and at such times as Lessor shall in each
instance authorize; and to isolate and maintain all of Lessee's
business machines and mechanical equipment, which cause or may
cause airborne or structure-borne vibration or noise, whether or
not it may be transmitted to any other leased space in the
Building, in such manner acceptable to Lessor so as to eliminate
such vibration or noise;
5.10 Personal Property Taxes.
To pay promptly when due all taxes which may be imposed upon personal
property (including without limitation, fixtures and equipment) in
the Premises to whomsoever assessed;
5.11 Payment of Litigation Expenses.
In case Lessor shall, without any fault on its part, be made party to
any litigation commenced by or against Lessee or by or against any
party or parties in possession of the Premises or any part thereof
claiming under Lessee, to pay, as additional rent, all cost,
including without limitation, reasonable counsel fees incurred by
or imposed upon Lessor in connection with such litigation, and, as
additional rent, also to pay all such costs and fees incurred by
Lessor in connection with the successful enforcement by Lessor of
any obligations of Lessee under this Lease;
5.12 Insurance of Lessee's Property.
To procure, keep in force and pay for comprehensive public liability
insurance indemnifying Lessor and Lessee against all claims and
demands for injury to or death of persons or damage to property
which may be claimed to have occurred upon the Premises in the
amounts which shall, at the time Lessee and/or its agents or
contractors enter the Premises in accordance with Article III of
this Lease, be not less than One Million Dollars ($1,000,000) for
property damage, and Five Million Dollars($5,000,000) for injury
or death of more than one person in a single accident, and from
time to time thereafter shall not be less than such higher amounts
if procurable, as may be reasonably required by Lessor and are
customarily carried by responsible office lessees in the
Metropolitan Boston Area. Such insurance shall be effected with
insurers authorized to do business in Massachusetts as stock or
mutual companies having a minimum combined Capital and Surplus of
$1,000,000 under valid and enforceable Policies.
Such policies shall name Lessor and Lessee as the insured as their
respective interests may appear and certificates of all such
insurance shall be delivered to Lessor. Such insurance shall
provide that it shall not be canceled without at least ten (10)
days prior written notice to each insured named therein. On or
before the time Lessee and/or its contractors enter the Premises
in accordance with Article III of the Lease and thereafter not
less than fifteen (15) days prior to the expiration date of each
expiring policy, original copies of the policies provided for
herein issued by the respective insurers or certificates of such
policies setting forth in full the provisions thereof and issued
by such insurers shall be delivered by Lessee to Lessor and
certificates as aforesaid of such policies shall, upon request of
Lessor, be delivered by Lessee to the holder of any mortgage
affecting the Premises.
In addition to and not in limitation of the foregoing, Lessee
covenants and agrees that all merchandise, furniture, fixtures and
property of every kind, nature and description of Lessee or
Lessee's employees, agents, contractors, invitees, visitors or
guests which may be in or upon the Premises or Buildings, in the
public corridors, or on the sidewalks areaways and approaches
adjacent thereto, during the term hereof, shall be at the sole
risk and hazard of Lessee, and that if the whole or any part
thereof shall be damaged, destroyed, or stolen or removed by
reason of any cause or reason whatsoever, other than the
negligence or willful default of Lessor, no part of said damage or
less shall be charged to or borne by Lessor.
5.13 HVAC Maintenance.
Lessee will be responsible for maintaining all HVAC units and
annually provide Lessor with a copy of a preventive maintenance
agreement for each unit, from an authorized service company, that
is acceptable to Lessor.
ARTICLE VI
CASUALTY AND TAKING
6.1 Termination of Restoration; Rent Adjustment.
In case during the Lease Term all or any substantial part of the
Premises or the Buildings or the Lot are damaged materially by
fire, force majeure, civil commotion, war, or other casualty or by
action or public or other authority or a consequence thereof, or
are taken by eminent domain or Lessor receives compensable damage
by reason of anything lawfully done in pursuance of public or
other authority, this Lease shall terminate at Lessor's election,
which may be made notwithstanding Lessor's entire interest may
have been divested, by notice given to Lessee within forty five
(45) days after the election to terminate arises specifying the
effective date of termination. In case of such taking of part of
the Premises, if the remainder is insufficient for use for
Lessee's purposes, and the Lessor receives with the notice
hereinafter referred to a certificate to the effect signed by
Lessee, or in case of such damage or taking if the time needed to
do the construction work necessary to put the Premises or such
remainder in proper condition for use and occupation is reasonably
estimated by Lessor to exceed six (6) months, Lessee may terminate
this Lease by notice given to Lessor within sixty (60) days after
the right to terminate arises specifying the effective date of
termination. In case of such damage or taking, Lessor shall
notify Lessee within thirty (30) days after the occurrence thereof
if Lessor's estimate of the time needed to do the construction
work necessary to put the Premises or such remainder in proper
condition for use and occupancy. The effective date of
termination specified by either Lessor or Lessee shall not be less
than fifteen (15) nor more than thirty (30) days after the date of
notice of such termination. If in any such case the Premises are
rendered unfit for use and occupancy and the Lease is not so
terminated, Lessor shall use due diligence (following the
expiration of all periods in which either party may terminate this
Lease pursuant to the foregoing provisions of this Section 6.1) to
put the Premises, or in case of taking what may remain thereof
(excluding any terms installed or paid for by Lessee which Lessee
may be required to remove pursuant to Section 5.2), into proper
condition for use and occupancy and a just proportion of the fixed
rent and additional rent according to the nature and extent of the
injury shall be abated until the Premises or such remainder shall
have been put by Lessor in such condition; and in case of taking
which permanently reduces the area of the premises, a just
proportion of the fixed rent and additional rent shall be abated
for the remainder of the Lease Term.
6.2 Eminent Domain Damages Reserved.
Lessor reserves to itself any and all rights to receive awards made
for damages to the Premises, the Buildings and Lot and the
leasehold hereby created, or any one or more of them, accruing by
reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Lessee
hereby releases and assigns to Lessor all Lessee's rights to such
awards, and covenants to deliver such further assignments and
assurances thereof as Lessor may from time to time request, hereby
irrevocably designating and appointing Lessor as its attorney-in-
fact to execute and deliver in Lessee's name and behalf all such
further assignments thereof.
6.3. Temporary Taking.
In the event of any taking of the Premises or any part thereof for
temporary use,
(i) this Lease shall be and remain unaffected thereby, and
(ii) Lessee shall be entitled to receive for itself such
portion or portions of any award made for such use with
respect to the period of the taking which is within the
Lease Term, provided that if such taking shall remain in
force at the expiration of earlier termination of this
Lease, Lessee shall then pay to Lessor a sum equal to
the reasonable cost of performing Lessee's obligations
under Section 5.2 with respect to surrender of the
Premises and upon such payment shall be excused from
such obligations.
ARTICLE VII
DEFAULT
7.1 Events of Default.
This Lease is made upon this condition, that if the Lessee shall
neglect or fail to perform any one or more of its covenants
contained herein and any such neglect or failure continues after
notice, in case of fixed rent or additional rent for more than ten
(10) days, or in any other case for more than thirty (30) days and
such additional time, if any, as is reasonably necessary to cure
the default if the default is of such a nature that it cannot
reasonably be cured in said thirty (30) days; or if Lessee or any
guarantor of any of Lessee's obligations under this Lease makes
any assignment for the benefit of creditors, commits any act of
bankruptcy or files a petition under any bankruptcy or insolvency
law; or if such a petition filed against Lessee or such guarantor
is not dismissed within ninety (90) days; or if a receiver or
similar officer becomes entitled to Lessee's leasehold hereunder
and it is not returned to Lessee within ninety (90) days; or if
such leasehold is taken on execution or other process of law in
any action against Lessee, then in any case, whether or not the
Lease Term shall have begun, Lessor may immediately, or at any
time while such default exists and without further notice,
terminate this Lease by notice to Lessee, specifying a date not
less than (10) days after the giving of such notice on which this
Lease shall terminate and this Lease shall come to an end on the
date specified therein as fully and completely as if such date
were the date herein originally fixed for the expiration of the
Lease Term, and Lessor, at its election, may lawfully or at any
time thereafter and without further notice, enter into and upon
the premises or any part thereof in the name of the whole, and
repossess the same as of Lessor's former estate and expel Lessee
and those claiming through or under Lessee and remove their
effects (forcibly if necessary) without being deemed guilty of any
manner of trespass and without prejudice to any remedies for
arrears of rent or any other preceding breach of covenant and
Lessor may, at its election, store any effects so removed in a
public warehouse or otherwise for the amount of, and at the
expense of, Lessee, and upon termination of this Lease as
aforesaid or under any provision of any statute, whether or not
Lessor enters the Premises, Lessee will then quit and surrender
the Premises to Lessor, but Lessee shall remain liable as
hereinafter provided.
7.2 Damages.
In the event that this Lease is terminated under any of the
provisions contained in Section 7.1 or shall be otherwise
terminated for breach of any obligation of Lessee, Lessee
covenants to pay forthwith to Lessor, as compensation, the excess
of the total rent reserved for the residue of the Lease Term over
the rental value of the Premises for said residue of the Lease
Term. In calculating the rent reserved there shall be included,
in addition to the Fixed Rent and all Additional Rent, the value
of all other considerations agreed to be paid or performed by
Lessee for said residue. Lessee further covenants as an
additional and cumulative obligation after any such ending to pay
punctually to Lessor all the sums and 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
Lessee under the next foregoing covenant Lessee shall be credited
with any amount paid to Lessor as compensation as in this Section
7.2 provided and also with the net proceeds of any rent obtained
by Lessor by reletting the Premises after deducting all Lessor's
expenses 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 Lessee that Lessor may
(i) relet the Premises or any part or parts thereof, for a
term or terms which may at Lessor's option be equal to
or less than exceed the period which would otherwise
have constituted the balance of the Lease Term and may
grant such concessions and free rent as Lessor in its
sole judgement considers advisable or necessary to relet
the same and
(ii) make alterations, repairs and decorations in the
premises as Lessor in its sole judgment considers
advisable or necessary to relet the same, and no action
of Lessor in accordance with the foregoing or failure to
relet or to collect rent under reletting shall operate
or be construed to release or reduce Lessee's liability
as aforesaid.
In lieu of any other damages or indemnity and in lieu of
full recovery by Lessor of all sums payable under all
the foregoing provisions of this Section 7.2, Lessor may
by written notice to Lessee, at any time after this
Lease is terminated under any of the provisions
contained in Section 7.1 or is otherwise terminated for
breach of any obligation of Lessee and before such full
recovery, elect to recover, and Lessee shall thereupon
pay, as liquidated damages, an amount equal to the
aggregate of the Fixed Rent and Additional Rent accrued
under Sections 2.5, 2.6 and 2.7 in the twelve (12)
months ended next prior to such termination plus the
amount of Fixed Rent and Additional Rent of any kind
accrued and unpaid at the time of termination and less
the amount of any recovery by Lessor under the foregoing
provisions of this Section 7.2 up to the time of payment
of such liquidated damages.
Nothing in this Lease shall limit or prejudice the right of
Lessor 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,
equal to, or less than the amount of the loss or damages
referred to above.
In the event the Lessor becomes involved in bankruptcy,
insolvency, or assignment for the benefit of creditors
by the Lessor, the Lessee shall have the right to cancel
this Lease, provided that said conditions are not cured
within sixty (60) days.
ARTICLE VIII
MISCELLANEOUS
8.1 Titles of Articles; Recording; Consent; Notice; Binding Effect.
This Lease shall not be recorded. Upon request of either party, both
parties The Titles of the Articles are for convenience only and
not to be considered in constructing this Lease. shall execute
and deliver after this Lease Term begins a notice of this Lease in
form appropriate for recording or registration, and if this Lease
is terminated before this Lease expires, an instrument in such
form acknowledging the date of termination. Except as otherwise
provided in Section 5.6, whenever any approval or consent shall
not be delayed or withheld unreasonably. Whenever any notice,
approval, consent, request or election is given or made pursuant
to this Lease it shall be in writing. Communications and payments
shall be addressed if to Lessor to Lessor's Original Address or at
such other address as may have been specified by prior notice to
Lessee, and if to Lessee, at Lessee's Original Address or at such
other place as may have been specified by prior notice to Lessor.
Any communication so addressed shall be deemed duly served if
mailed by registered or certified mail, return receipt requested.
If Lessor by notice to Lessee at any time designates some other
person to receive payments or notices, all payments and notices
thereafter by Lessee shall be paid or given to the agent so
designated until notice to the contrary is received by Lessee from
Lessor. The obligations of this Lease shall run with the land,
and this Lease shall be binding upon and insure to the benefit of
the parties hereto and their respective successors and assigns,
except that only the original Lessor named herein shall be liable
for obligations accruing before the beginning of the Lease Term,
and thereafter the original Lessor names herein and each
successive owner of the Premises shall be liable only for
obligations accruing during the period of their ownership.
8.2 Notice of Lease; Consent or Approval Notices; Bind and Insure;
Trust Estates.
No assignment of this Lease and no agreement to make or accept any
surrender, termination or cancellation of this Lease and no
agreement to modify so as to reduce the rent, change the Lease
Term, or otherwise materially change the rights of Lessor under
this Lease, or to relieve Lessee of any obligations or liability
under this Lease, shall be valid unless consented to by Lessor's
mortgagees of record, if any, in each instance, if any, in which
such consent is required pursuant to the terms of the mortgage.
The delivery of keys to any employee of Lessor or to Lessor's
agent or any employee thereof shall not operate as a termination
of this Lease or a surrender of the Premises.
8.3 Lessor's Failure to Enforce.
The failure of Lessor or of Lessee to seek redress for violation of,
or to insist upon the strict performance of, any covenant or
condition of this Lease, or, with respect to such failure of
Lessor, any of the Rules and Regulations referred to in Section
5.4, whether heretofore or hereafter adopted by Lessor, 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, nor shall the
failure of Lessor to enforce any of said Rules and Regulations
against any other Lessee in the Building be deemed a waiver of any
such Rules and Regulations. The receipt by Lessor of Fixed Rent
or Additional Rent with knowledge of the breach of any covenant of
this Lease shall not be deemed to have been waived by Lessor, or
by Lessee unless such waiver be in writing signed by the party to
be charged. No consent or waiver, express or implied, by Lessor
or Lessee to or of any breach of any agreement or duty shall be
construed as a waiver or consent to or any other breach of the
same or any other agreement or duty.
8.4 Acceptance of Partial Payments of Rent.
No acceptance by Lessor of a lesser sum than the fixed rent and
additional rent then due shall be deemed to be other than on
account of the earliest installment of such rent due, nor shall
any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and
satisfaction, and Lessor may accept such check or payment without
prejudice to Lessors right to recover the balance of such
installment or pursue any other remedy in this Lease provided.
8.5 Cumulative Remedies.
The specific remedies to which Lessor may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Lessee of
any provisions of this Lease. In addition to the other remedies
provided in this Lease, Lessor shall be entitled to the restraint
by injunction of the violation or attempted or threatened of any
of the covenants, conditions or provisions of this Lease or to a
decree compelling specific performance of any such covenants,
conditions or provisions.
8.6 Partial Invalidity.
If any term of this Lease, or the application thereof to any person
or circumstances, shall to any extent be invalid or unenforceable,
the remainder of this Lease, or the application of such term to
persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each
term of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
8.7 License for Support.
If an excavation shall be made upon land adjacent to property of
Lessor of which the Premises are a part, or shall be authorized to
be made, Lessee shall afford to the person causing or authorized
to cause such excavation, license to enter upon the Premises for
the purpose of doing such work as said person shall deem necessary
to preserve the wall of the Buildings from injury or damage and to
support the same by proper foundations without any claims for
damages or indemnity against Lessor, or diminution or abatement of
rent.
8.8 Self Help.
If Lessee shall at any time default in the performance of any
obligation under this Lease, Lessor shall have the right, but
shall not be obligated, to enter upon the Premises and to perform
such obligation notwithstanding the fact that no specific
provision for such substituted performance by Lessor is made in
this Lease with respect to such default. In performing such
obligation, Lessor may make any payment of money or perform any
other act. All sums so paid by Lessor (together with interest at
the rate of 18% per annum) and all necessary incidental costs and
expenses in connection with the performance of any such act by
Lessor, shall be deemed to be Additional Rent under this Lease and
shall be payable to Lessor immediately on demand. Lessor may
exercise the foregoing rights without waiving any other of its
rights or releasing Lessee from any of its obligations under this
Lease.
8.9 Lessee's Estoppel Certificate.
Lessee agrees from time to time, upon not less than fifteen (15) days
prior written request by Lessor, to execute, acknowledge and
deliver to Lessor a statement in writing certifying that this
Lease is unmodified and in full force and effect and that Lessee
has no defenses, offsets or counterclaims against its obligations
to pay the Fixed Rent and Additional Rent and to perform its
other covenants under this Lease (or if there have been any
modifications that the same is in full force and effect so
modified and stating the modifications and, if there are any
defenses, offsets, counterclaims, or defaults, setting them forth
in reasonable detail), and the dates to which the Fixed Rent,
Additional Rent and other charges have been paid. Any such
statement delivered pursuant to this Section 8.9 may be relied
upon by any prospective purchaser or mortgages of the Premises or
any prospective assignee of any mortgage of the Premises.
8.10 Waiver of Subrogation.
Any insurance carried by either party with respect to the Premises
and property therein or occurrences thereon shall, if the other
party so requests and if it can be so written without additional
premium, or with an additional premium which the other party
agrees to pay, include a clause or endorsement denying to the
insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence
of injury or loss. Each party, notwithstanding any provisions of
this Lease to the contrary, hereby waives any rights of recovery
against the other for injury or loss due to hazards covered by
insurance containing such clause or endorsement to the extent of
the indemnification received thereunder.
8.11 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.
8.12 Brokerage.
Lessee warrants and represents that it has dealt with no brokers or
brokerage firms in relation to this transaction other than Mike
Ripp of Lynch Murphy Walsh & Partners and Casler and Company.
Commissions will be detailed in a separate agreement between the
brokers and the Lessor.
8.13 Assignment of Rent.
With reference to any assignment by Lessor of Lessor's interest in
this Lease, or the rents payable hereunder, conditional in nature
or otherwise, which assignment is made to the holder of the first
mortgage on the Premises, the Lessee agrees:
(a) that the execution thereof by Lessor and the acceptance
thereof by the holder of such mortgage shall never be
deemed an assumption by such holder of any of the
obligations of the Lessor hereunder, unless such holder
shall, by written notice sent to Lessee, specifically
otherwise elect; and
(b) that, except as aforesaid, such holder shall be treated as
having assumed the Lessor's obligations hereunder only
upon foreclosure of such holder's mortgage all of its
duties and obligations hereunder.
(c) that notwithstanding any assignment of mortgage, the
Lessor shall discharge all of its duties and obligations
hereunder.
ARTICLE IX
SUBORDINATION
9.1 Lease Subordinate to Mortgage Indebtedness.
This Lease is also subordinate to certain mortgages on the Buildings
and Lot and shall be subordinate to any other mortgage hereafter
on the Buildings and Lot and to each advance made or hereafter to
be made under any such mortgages and to all renewals,
modifications, consolidations, replacements and extensions thereof
and all substitutions therefor. In the event that any mortgagee
or its respective successor in title shall succeed to the interest
of Lessor then, at the option of such mortgagee or successor, the
Lease shall nevertheless continue in full force and effect and
Lessee shall and does hereby agree in such event to adhere to such
mortgagee or successor and to recognize such mortgagee or
successor as its Lessor, provided such mortgagee or successor
agrees not to disturb the tenancy of the Lessee.
9.2 Implementation of Article IX.
Lessee agrees on request of Lessor to execute and deliver from time
to time any agreement which may reasonably be deemed necessary to
implement the provisions of this Article IX.
ARTICLE X
ARBITRATION
10.1 Method of Appointment of Arbiters; Awards; Costs.
In the event of a dispute between Lessor and Lessee with respect to
any matter set forth in Sections 3.1 or 3.2 hereof, such dispute
shall be arbitrated by three arbitrators appointed as follows:
Lessor and Lessee shall each appoint a fit and impartial person as
arbitrator who shall have at least ten (10) years experience in
the Metropolitan Boston Area in a calling connected with the
subject matter of the dispute. Written notice of such appointment
shall be given by each party to the other within fifteen (15) days
of the date upon which written notice is given by one party to the
other demanding arbitration and the arbitrators so appointed shall
appoint a third arbitrator who shall likewise have ten (10) years
of experience in the Metropolitan Boston Area in a calling
connected with the subject matter of the dispute, and if the
arbitrators fail to agree upon a third arbitrator within fifteen
(15) days of the date upon which the later of such written
notices of appointment of the first two arbitrators is given, such
third arbitrator shall be appointed by a Justice of the Superior
Court of the Commonwealth of Massachusetts in Middlesex County
upon ten (10) days notice of the institution proceedings for such
court appointment, or by any other Court sitting in Middlesex
County succeeding to the jurisdiction and functions exercised by
the Superior Court of the Commonwealth of Massachusetts. Any
award that shall be made in such arbitration by the arbitrators or
a majority of them shall be binding and shall have the same force
and effect as a judgment made in a court of competent jurisdiction
and both Lessor and Lessee shall have the right to apply to the
Superior Court of the Commonwealth of Massachusetts in Middlesex
County, or to any other court sitting in Middlesex County
succeeding to the jurisdiction and functions exercised by the
Superior Court of the Commonwealth of Massachusetts, for a decree,
judgment or order upon said arbitration or award upon ten (10)
days notice to the other party. The fees, costs and expenses of
arbitration, other than fees of attorneys for the parties, expert
witnesses and other witness' fees, shall be borne equally between
the parties unless the arbitrators determine that some other
division shall under the circumstances be more equitable.
ARTICLE XI
SECURITY DEPOSIT
11.1 Amount; Application.
Lessee has deposited with Lessor the sum of Seventy Five Thousand
Dollars ($75,000) as security for the performance by Lessee of its
covenants and obligations hereunder. Such Security Deposit shall
not bear interest and shall not be considered and advance payment
of rental or a measure of Lessor's damages in case of default by
Lessee. If Lessee defaults in the performance of any of the
covenants and obligations to be performed by it, Lessor may, from
time to time, without prejudice to any remedy, use such Security
Deposit to the extent necessary to make good any arrearages in
Rent or any sum as to which Lessee is in default including any
damages or deficiency may accrue before or after termination of
this Lease. Following any such application of the Security
Deposit, Lessee shall pay to Lessor on demand the amount so
applied in order to restore the Security Deposit to its original
amount. If Lessee is not then in default hereunder, any remaining
balance of Security Deposit shall be returned by Lessor to Lessee
upon termination of this Lease and after delivery of possession of
the premises to Lessor in accordance with the Lease. If Lessor
assigns its interest in the premises during the Lease Term, Lessor
shall have no further liability for the return of such Security
Deposit and Lessee agrees to look solely to the new Lessor for the
return of the Security Deposit. This provision shall apply to
every transfer or assignment made of the Security Deposit to a
new Lessor. Lessee agrees that it will not assign or encumber or
attempt to assign or encumber the monies deposited as security and
that Lessor and its successors and assigns shall not be bound by
any such actual or attempted assignment or encumbrance. Lessee
has also paid the first month's rent at the time of the signing of
this Lease.
ARTICLE XII
LESSOR'S LIEN
12.1 Liens for Lessor.
The statutory lien for rent is not waived.
EXHIBIT A
DRAWING OF BUILDING AT 220 BEAR HILL ROAD.
EXHIBIT B
Additional Terms Between Lessor and Lessee
Lease Between 220 Bear Hill Road Realty Trust, Lessor, and CTC
Communications Corp., Lessee.
Lessee has agreed to lease the building in an "as is" condition.
Lessor has informed Lessee that the HVAC units in the lobby and grand
ballroom areas need to be replaced. Also, that there are a total of
nine (9) roof top units, two space heaters and one roof top space
heater.
Lessor has also informed Lessee that the hot water system has been
disconnected and that Lessee will need to install new hot water
tanks.
Lessor also pointed out to Lessee that when pictures, etc., are removed
from walls, there will be holes in those walls and that some
electrical and plumbing connections are exposed.
The Lessee has inspected the building several times with contractors and
architects and is aware of the "as is" condition.
Lessee has indicated to Lessor that Lessee plans on demolishing most of
the existing walls and plans on building out new office space.
Lessee and Lessor have agreed that a back-flow regulator will need to be
installed on the sprinkler system.
Lessee has informed Lessor that it intends to install a number of
windows in the space and has requested Lessor to help in this capital
expenditure. Lessee agrees to install at least 15 windows in the
space.
Lessor has already reduced the base rent since Lessee is leasing the
space in the "as is" condition; however, as additional consideration
to the Lessee, Lessor has agreed to give Lessee a total of Fifty
Thousand Dollars ($50,000) to be deducted at a rate of Eight Thousand
Three Hundred Thirty Three Dollars and Thirty Three Cents ($8,333.33)
per year over the six years of the original lease for all of the
above items since Lessee will pay for all of the above work as part
of Lessees buildout. The final net annual base rent after deductions
is $304,166.67 payable monthly at the rate of $25,347.23.
Lessor will leave ceiling tiles as is throughout the building.
EXHIBIT C
OPTION TO EXTEND LEASE
THIS EXHIBIT, to be made part of a lease between 220 Bear Hill Road
Realty Trust, Vincent A. Messina, Trustee, hereinafter called Lessor
and CTC Communication Corporation, hereinafter called Lessee.
WHEREAS, the Lessor and Lessee have entered into a certain lease for the
rental of square feet of office space at the Premises constructed on
220 Bear Hill Road, Waltham, Massachusetts; and
WHEREAS, the said parties have mutually agreed upon the inclusion of the
following additional provisions and covenants in said Lease;
NOW, THEREFORE, for mutual valuable consideration, receipt and benefit
of which is acknowledged by both parties, it is agreed that the
following shall be included and added to said Lease, which in all
other particulars remains unchanged, and that said following language
is hereby incorporated by reference and made a part of said Lease:
If Lessee shall have fully and promptly complied with all the terms and
provisions of this Lease, and shall not be in default in the
performance or observance of any of the terms and conditions of this
Lease to be performed and observed by Lessee, the Lessee shall have
the right, at its election to extend the term of this Lease for two
(2) additional periods of six (6) years commencing upon the
expiration of the term on the same terms and conditions by notice in
writing to Lessor 365 days prior to the end of the term, except that
for the extended term the rent for the demised premises shall be at
ninety-five (95%) of the then fair market rental rate for comparable
space in similar quality buildings in the surrounding area. Fair
market rental rate should take into account rental rates, tenant
improvement allowances, commissions, and concessions prevalent in the
market for comparable space for tenants of similar size and credit
worthiness.
The Lessee and Lessor will have a period of sixty days to negotiate the
new market rent. If no agreement can be reached between parties
then, the Lessor will be free to lease the space to another party;
therefore, if the parties reach an agreement; the new agreement must
be signed prior to Three hundred (300) days to the end of the term of
this lease.
The Lessee during the extended term of this Lease shall pay the
operating and tax expenses in the same manner as set forth in the
original term of this Lease in addition to the foregoing provision.
The Lessor will not continue the base rent allowance during the
option period.