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Exhibit 10.1
330 LYNNWAY, LYNN, MA
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: August 15, 2000
Building: The building known as Building A, located at 330
Lynnway, Lynn, Massachusetts (hereinafter referred
to as the "Building") on a parcel of land shown on
a plan dated April 27, 1995, and recorded in Essex
South District Registry of Deeds in Plan Book 300,
Page 18, (the Building and such parcel of land
hereinafter being collectively referred to as the
"Property").
Premises: A portion of the second (2nd) floor of the
Building substantially as shown on Exhibit A
attached hereto.
Rentable Floor
Area of Premises: 28,679 Rentable Square Feet.
Landlord: Arthur Pappathanasi, Trustee of 330 Scangas
Nominee Trust under Declaration of Trust dated
February 7, 1995 and recorded in Essex South
District Registry of Deeds, Book 13097, Page 549.
Original Notice
Address of Landlord: c/o West Lynn Creamery, Inc.
626 Lynnway
Lynn, Massachusetts 01905
Tenant: Lightbridge, Inc., a Delaware corporation.
Original Notice
Address of Tenant: 67 South Bedford Street
Burlington, MA 01803
ATTN: Kathy Juliano
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Initial Term: 60 months.
Delivery Date: Sixty (60) days from the issuance of a building
permit for the Premises.
Allowance: $809,770.00
Base Rent: Months 1 through 60 inclusive: $39,433.63 per
month.
Commencement Date: August 15, 2000
Rent Commencement Date: January 1, 2001
Security and
Restoration Deposit: $39,433.63.
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
twenty-six and six tenths percent (26.6%)
Base Operating Costs: Operating Costs for calendar year 2000.
Base Taxes: Taxes for fiscal year 2001.
Permitted Uses: General business offices, including, without
limitation, the operation of a telephone call
center.
Public Liability
Insurance Limits:
Comprehensive General
Liability: $3,000,000 per occurrence
$5,000,000 general aggregate
Broker: Burgess Properties and Meredith & Grew, Inc.
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.
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EXHIBIT B Rules and Regulations
EXHIBIT C Notice of Activity and Use Limitation for Property
EXHIBIT D Plan showing Generator and Supplemental HVAC
locations.
1.3 Table of Articles and Sections.
ARTICLE 1 -- Reference Data
1.1 Subjects Referred To ........................................ 1
1.2 Exhibits .................................................... 2
1.3 Table of Articles and Sections .............................. 3
ARTICLE 2 -- Premises and Term
2.1 Premises .................................................... 6
2.2 Term ........................................................ 6
2.3 Term Extension Options ...................................... 6
2.4 Right of First Offer ........................................ 9
ARTICLE 3 -- Improvements
3.1 Performance of Tenant's Work ................................ 9
3.2 Plans and Specifications .................................... 9
3.3 Tenant's Contractor ......................................... 11
3.4 Funding of Allowance ........................................ 12
3.5 Mechanic's Liens ............................................ 12
ARTICLE 4 - Rent
4.1 The Fixed Rent .............................................. 13
4.2 Additional Rent ............................................. 13
4.2.1 Real Estate Taxes .................................... 13
4.2.2 Personal Property Taxes .............................. 14
4.2.3 Operating Costs ...................................... 14
4.2.4 Insurance ............................................ 17
4.2.5 Utilities ............................................ 19
4.3 Late Payment of Rent ........................................ 19
4.4 Security and Restoration Deposit ............................ 19
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ARTICLE 5 - Landlord's Covenants
5.1 Affirmative Covenants ....................................... 20
5.1.1 HVAC ................................................ 20
5.1.2 Electricity ......................................... 20
5.1.3 Cleaning; Water ..................................... 21
5.1.4 Fire Alarm and Security ............................. 21
5.1.5 Repairs ............................................. 21
5.1.6 Signs ............................................... 21
5.2 Interruption ................................................ 21
5.3 Outside Services ............................................ 21
ARTICLE 6 - Tenant's Additional Covenants
6.1 Affirmative Covenants ....................................... 22
6.1.1 Perform Obligations ................................. 22
6.1.2 Use ................................................. 22
6.1.3 Repair and Maintenance .............................. 22
6.1.4 Compliance with Law ................................. 23
6.1.5 Indemnification ..................................... 23
6.1.6 Landlord's Right to Enter ........................... 23
6.1.7 Personal Property at Tenant's Risk .................. 24
6.1.8 Payment of Landlord's Cost of Enforcement ........... 24
6.1.9 Yield Up ............................................ 24
6.1.10 Rules and Regulations ............................... 24
6.1.11 Estoppel Certificate ................................ 25
6.1.12 Landlord's Expenses Re: Consents .................... 25
6.2 Negative Covenants .......................................... 25
6.2.1 Assignment and Subletting ........................... 25
6.2.2 Nuisance ............................................ 26
6.2.3 Hazardous Wastes and Materials ...................... 27
6.2.4 Floor Load; Heavy Equipment ......................... 27
6.2.5 Installation, Alterations or Additions .............. 27
6.2.6 Abandonment ......................................... 28
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6.2.7 Signs ............................................... 28
6.2.8 Parking and Storage ................................. 28
ARTICLE 7 -- Casualty or Taking
7.1 Termination ................................................. 28
7.2 Restoration ................................................. 29
7.3 Award ....................................................... 29
ARTICLE 8 -- Defaults
8.1 Events of Default ........................................... 29
8.2 Remedies .................................................... 30
8.3 Remedies Cumulative ......................................... 31
8.4 Landlord's Right to Cure Defaults ........................... 31
8.5 Effect of Waivers of Default ................................ 31
8.6 No Waiver, etc. ............................................. 31
8.7 No Accord and Satisfaction .................................. 32
ARTICLE 9 -- Rights of Holders
9.1 Rights of Holders ........................................... 32
9.2 Lease Superior or Subordinate to Mortgages .................. 32
ARTICLE 10 -- Miscellaneous Provisions
10.1 Notices From One Party to the Other ......................... 33
10.2 Quiet Enjoyment ............................................. 33
10.3 Lease Not to be Recorded .................................... 34
10.4 Limitation of Landlord's Liability .......................... 34
10.5 Acts of God ................................................. 34
10.6 Landlord's Default .......................................... 34
10.7 Brokerage ................................................... 35
10.8 Applicable Law and Construction ............................. 35
10.9 Telecommunications Equipment ................................ 35
10.10 Generator ................................................... 36
10.11 Appraisal of Fair Rental Value .............................. 36
10.12 Corporate Authority ......................................... 38
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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 if Tenant's space includes less than the entire rentable
area of any floor, excluding the central core area of such floor.
In addition to the foregoing, 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, loading dock, 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.
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, provided that none
of the foregoing reduces the useable floor area of the Premises and
provided further that such installations, replacements and relocations
shall be located in so far as is practicable in the central core area of
the Building, above ceiling surfaces, below floor surfaces or within
perimeter walls of the Premises, (b) to alter or relocate any other common
facility provided that Landlord does not adversely affect Tenant's access
to the Premises or materially reduce the parking available to Tenant, (c)
to make any repairs and replacements to the Premises which Landlord may
deem necessary upon reasonable prior notice to Tenant except in the case
of an emergency, 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 continuing for the Initial Term, unless sooner terminated or as
extended as hereinafter provided.
2.3 Term Extension Options. Tenant shall have two (2) options (the "Extension
Options") to extend the Term hereof for two (2) consecutive additional
periods of five (5) years
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each. The first option (the "First Extension Option") shall be for the
period commencing on the day immediately following the expiration of the
Initial Term (the "First Extension Term Commencement Date" and terminating
at midnight on the fifth (5th) anniversary of the First Extension Term
Commencement Date (the "First Extension Term") and the second option (the
"Second Extension Option") shall be for the period commencing on the day
immediately following the last day of the First Extension Term (the
"Second Extension Term Commencement Date") and terminating at midnight on
the fifth (5th) anniversary of the Second Extension Term Commencement Date
(the "Second Extension Term").
In order to exercise the Extension Options, Tenant shall give written
notice to Landlord of the exercise thereof as follows: for the First
Extension Term notice shall be given not later than the date which is
twelve (12) months prior to the First Extension Term Commencement Date;
and for the Second Extension Term notice shall be given not later than the
date which is twelve (12) months prior to the Second Extension Term
Commencement Date. In exercising either Extension Option, Tenant
acknowledges that time is of the essence. If Tenant fails to exercise
either Extension Option on or before the applicable exercise date
specified above, Tenant shall be deemed to have waived all of its rights
with respect to such Extension Option, and if Tenant fails to exercise its
Extension Option for the First Extension Term, Tenant shall be deemed to
have waived all of its rights with respect to the Extension Option for the
Second Extension Term.
If an Extension Option is duly exercised as aforesaid, the Term of this
Lease shall be automatically extended for the applicable Extension Term
upon all of the same terms and conditions as set forth in this Lease,
except that the Base Rent for such Extension Term shall be determined as
provided in the paragraphs immediately below. In the event an Extension
Option is duly exercised, all references contained in this Lease to the
Term hereof, whether by number of years or number of months, shall be
construed to refer to the initial Term hereof extended as aforesaid,
whether or not specific reference thereto is made in this Lease.
In the event Tenant exercises an Extension Option for the applicable
Extension Term, the Base Rent shall be the greater of (i) ninety-five
percent (95%) of the "Fair Rental Value," as hereinafter defined, or (ii)
the Base Rent paid by Tenant during the last year of the Initial Term.
Additional Rent shall be paid as provided for in Section 4.2 hereof.
For purposes of this Section 2.3, "Fair Rental Value" shall mean the
annual fair rental for the Premises for the applicable Extension Term that
would be agreed upon between a landlord and a tenant executing a lease
with respect to comparable space of comparable square footage in a
comparable building located in the Boston/North Shore, Massachusetts area
for a comparable term for the Permitted Uses, upon all of the other
business terms of this Lease assuming and adjusting for the following:
(i) the landlord and tenant are well informed and well advised and each
is acting in
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what it considers to be its own best interests;
(ii) the rental shall reflect the as-is condition of the Premises as of
the date Tenant elects to exercise the applicable Extension Option;
(iii) Additional Rent will continue to be payable by Tenant; and
(iv) Landlord will not be obligated to pay any brokerage commissions.
To assist Tenant in determining whether to exercise an Extension Option
Landlord may, and, upon written request given by Tenant to Landlord within
thirty (30) days after receipt of Tenant's request, Landlord shall, with
respect to the First Extension Option, but not earlier than the date which
is fifteen (15) months prior to the Expiration Date, and with respect to
the Second Extension Option, not earlier than the date which is fifteen
(15) months prior to the Second Extension Commencement Date, give written
notice to Tenant of Landlord's determination of the Fair Rental Value of
the Premises for the First Extension Term or Second Extension Term, as
applicable. The amount so determined by Landlord shall be the Base Rent
for the Premises for such Extension Term unless, within ten (10) business
days after Landlord shall have given such notice, Tenant shall give notice
to Landlord exercising Tenant's right of appraisal to determine such Fair
Rental Value pursuant to the provisions of Section 10.10 of this Lease, in
which event such Fair Rental Value shall be determined by the appraisal
process thereunder.
Should Tenant elect to exercise its right of appraisal and should the
appraisal not have been concluded prior to the date on which Tenant's
obligation to pay rent for such Extension Term shall have occurred, Tenant
shall pay the Base Rent as so determined by Landlord, and Additional Rent
as provided in Section 4.2 hereof. If the Fair Rental Value as determined
by appraisal is greater than or less than Fair Rental Value as determined
by Landlord, than any adjustment required to correct the amount previously
paid shall be made by payment by the appropriate party within thirty (30)
days after such determination of Fair Rental Value.
Notwithstanding any contrary provision of this Section 2.3 or any other
provision of this Lease, any exercise by Tenant of any Extension Option
shall be void and of no effect unless on the date Tenant notifies Landlord
that it is exercising the Extension Option for any Extension Term and on
the date of commencement of the applicable Extension Term: (i) this Lease
is in full force and effect; (ii) Tenant has not assigned this Lease or
sublet all or any part of the Premises, and (iii) there then exists no
uncured Event of Default, as referred to in Section 8.1 hereof; provided,
however, that Landlord reserves the right to waive by written notice the
provisions of this paragraph with respect to the exercise of any Extension
Option by Tenant.
In the event Tenant elects to exercise any Extension Options as set forth
in this Section
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2.3, Landlord and Tenant agree to enter into an amendment to this Lease to
confirm such exercise and to document all changes to this Lease resulting
from any exercise of such Options; provided, however, the execution of any
such amendment shall not be a condition precedent to the valid exercise by
Tenant of the Extension Options granted herein.
2.4 Right of First Offer. If any space on the second (2nd) floor of the
Building that has not been previously offered to Tenant pursuant to this
Section 2.4, becomes available during the Initial Term of this Lease,
prior to marketing such space, other than to the tenant thereof, Landlord
shall first offer to Tenant the opportunity to lease such space, provided
that (a) the initial Tenant named herein occupies the Premises, and (b)
Tenant is not in default of this Lease at such time beyond any applicable
cure periods. The rent, length of the term, and other terms and conditions
offered to Tenant shall be the same as Landlord would then offer for such
space in "as-is" condition to the general market, which may include a term
that is not coterminus with the term hereof. Tenant shall have ten (10)
business days to accept or reject such offer with respect to the entirety
of such space. If Tenant accepts such offer, Landlord and Tenant shall
both negotiate in good faith an amendment to this Lease with respect to
such space acceptable to both parties. If Tenant rejects such offer, or
fails to accept such offer in writing to Landlord within such ten (10)
business day period, then Landlord will be free to offer such space to the
general market on substantially the same terms as offered to Tenant. It is
agreed that time is of the essence of this Section 2.4.
ARTICLE 3
Improvements
3.1 Performance of Tenant's Work. The Premises are leased in "as-is" condition
with no obligation on the part of Landlord construct or otherwise prepare
the Premises for Tenant's occupancy, except as otherwise provided herein.
All work that is necessary or desirable to prepare the Premises for
Tenant's occupancy shall be performed by, and at the expense of (except as
provided in Section 3.4 below), Tenant in accordance with and subject to
the requirements of this Lease. (Such work being referred to herein as the
"Tenant Work".)
3.2 Plans and Specifications. (a) Tenant agrees to prepare, at Tenant's sole
cost and expense, and furnish to Landlord for its review architectural,
mechanical, electrical, plumbing, fire protection and structural
engineering schematic design documents, and final construction documents
for the Tenant Work (such documentation and the constituent items thereof
are referred to herein collectively and respectively as the "Documents";
and the final construction documents approved by Landlord hereunder are
referred to herein as the "Construction Documents"). The Documents shall
be prepared by an architect ("Tenant's Architect") experienced in the
construction of tenant improvements in first-class buildings in the Boston
area, retained by Tenant and approved by Landlord in advance.
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The Landlord hereby approves of Bargmann Hendrie + Archetype, Inc. as
Tenant's Architect. There shall be no requirement for Tenant to use any
particular building standard materials or items; however, the Tenant Work
shall be consistent with tenant improvements typically installed in
comparable office buildings in the Boston/North Shore area. Tenant shall
cause Tenant's Architect to perform all architectural services typically
and reasonably required under typical construction contracts for similar
leasehold improvements. Such services shall include, without limitation,
all certifications typically and reasonably required to be provided by the
architect for similar leasehold improvements in order to obtain a
certificate of occupancy for the Premises. Tenant shall be solely
responsible for the cost of all architectural and engineering services
required for the Tenant Work. The Construction Documents shall comply with
all applicable laws, ordinances and regulations (including, without
limitation, the applicable requirements of the Americans with Disabilities
Act of 1990, and the regulations promulgated thereunder) and shall be in a
form satisfactory to appropriate governmental authorities responsible for
issuing the permits, approvals and licenses required for construction.
Tenant's interior furnishings (i.e., specifications, coordination, supply
and installation of furniture, furnishings, telephone and moveable
equipment) will also be the responsibility of Tenant.
(b) The Documents shall require Landlord's approval, which approval shall
not be unreasonably withheld, conditioned or delayed. Landlord will give
Tenant notice ("Landlord Plan Notice") of any objections it may have with
respect to any Documents within three (3) business days of Landlord's
receipt of any Documents. At the time that Tenant delivers the Documents
to Landlord, it shall also deliver a set to Landlord's architect, John M.
Sheskey + Associates, Inc., 14 Franklin Street, Quincy, MA 02169
("Landlord's Architect"). If Landlord does not notify Tenant of its
objections within such 3 business day period, then Landlord shall be
deemed to have approved the Documents. Landlord shall not be deemed
unreasonable for withholding approval of such plans and specifications
which (i) might adversely affect any structural or exterior element of the
Building or any portion thereof, or (ii) might materially adversely affect
the proper functioning of the Building systems or other facilities.
(c) Tenant shall cause the Documents to be revised in a manner sufficient
to remedy Landlord's objections and/or respond to Landlord's concerns and
to be redelivered to Landlord and Landlord's Architect as soon as
reasonably possible after Tenant is given a Landlord Plan Notice and shall
use diligence to complete the Construction Documents in accordance with
the requirements of the Landlord Plan Notice.
(d) Landlord's and Landlord's Architect's approval of any plans and
specifications furnished to and approved by Landlord, or of any changes
thereto, shall in no way be deemed an agreement by Landlord that the work
contemplated therein fulfills the requirements of Section 3.2(a) hereof.
Tenant shall be responsible for the design of the Tenant Work.
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(e) Notwithstanding anything to the foregoing to the contrary, Landlord
has approved Tenant's plans for the East Wing portion of the Premises (the
so-called "Phase 1 Portion") which Plans are entitled "Lightbridge Call
Center" prepared by Bargmann, Hendrie + Archetype, Inc. dated August 4,
2000, Issued for Construction, and consisting of a cover page and 17
sheets.
3.3 Tenant's Contractor. (a) Tenant agrees to employ for the Tenant Work a
responsible general contractor approved by Landlord (which approval is
hereby given for Caswell Corporate Interiors as the General Contractor and
Electronic Environment Infrastructure Solutions as the design/build
contractor for the server room) who shall (1) cooperate with and not
interfere with any other contractors doing work in the Building or on the
Property; and (2) carry so-called "builder's risk" insurance covering
Landlord and Tenant as their interests may appear, against loss or damage
by fire, vandalism, malicious mischief and such risks as are customarily
covered by a so-called "extended coverage endorsement" to the full
insurable value of the Tenant Work, in addition to all other insurance
required by Section 6.2.5 of this Lease, and submit certificates
evidencing such coverage to Landlord prior to the commencement of the
Tenant Work. Tenant shall obtain Landlord's approval of the Construction
Documents for the Tenant Work and all necessary governmental licenses,
approvals and permits therefor and deliver to Landlord the statements and
insurance certificates required hereunder and under 6.2.5 of this Lease on
or before the Commencement Date and promptly thereafter Tenant shall
commence and diligently prosecute to completion the Tenant Work in
accordance with the Construction Documents in a good and workmanlike
manner employing materials of good quality and in compliance with all
applicable zoning, building, fire, health and other codes, regulations,
ordinances and laws. Any changes in the Construction Documents shall
require Landlord's prior written approval which approval or disapproval
shall be given by Landlord to Tenant within three (3) business days of
receipt thereof. (Tenant shall also deliver a set of the changes
simultaneously to Landlord's Architect). If Landlord does not notify
Tenant of its approval or disapproval within such 3 business day period,
such changes shall be deemed approved hereunder. The Tenant Work shall
otherwise be performed in accordance with the applicable provisions of
this Lease, including, without limitation, Section 6.2.5.
(b) Tenant shall have the right to enter the Premises from and after the
Commencement Date to perform the Tenant Work therein, and shall have the
right to occupy the Premises for the Permitted Uses prior to the Rent
Commencement Date (and without triggering an obligation to pay Fixed Rent
or Additional Rent, but with the obligation to pay all utility and
cleaning costs applicable to the Premises) upon satisfaction of the
requirements for the final advance of the Allowance specified under
Section 3.5 below (or upon the issuance of a certificate of occupancy by
the City of Lynn for the Phase 1 Portion if completed before the
completion of the remainder of the Tenant Work) and subject to all terms
and conditions of this Lease. Tenant shall provide a project manager who
will be the point of contact with Landlord's Project Manager for all
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matters dealing with the design and condition of the Tenant Work.
3.4 Funding of Allowance. Landlord shall pay to Tenant a contribution toward
the cost of Tenant Work in an amount not to exceed the Allowance in
accordance with and subject to the requirements of this Section 3.4. When
Tenant has incurred costs for the Tenant Work in any part of the Premises,
Tenant shall submit to Landlord from time to time (but not more frequently
than monthly) requisitions for payment, in the form of AIA Document G702
setting forth any costs incurred for the Tenant Work, together with a
partial lien waiver executed by Tenant's general contractor for work
previously done and paid for, and within thirty (30) days following
Landlord's receipt thereof, Landlord shall pay to Tenant the amount of
each such requisition, provided that the last requisition hereunder shall
not be paid until thirty (30) days after Tenant's requisition accompanied
by a written statement from Tenant's Architect that such Tenant Work has
been completed in accordance with Tenant's Construction Documents, a final
lien waiver executed by Tenant's general contractor and a final
certificate of occupancy and other required governmental approvals for the
Tenant Work. Landlord shall be entitled to deduct from the Allowance an
amount sufficient to reimburse Landlord for its actual out of pocket costs
in connection with the Tenant Work, including its architectural review
fees, which costs shall not exceed in the aggregate $3,000.00. Tenant
shall not be entitled to any payment or credit for any portion of the
Allowance that is not used for the Tenant Work. If any lien is filed
against the Property, or any part or interest therein, arising out of or
in connection with the Tenant Work and such lien or encumbrance is not
discharged, insured or bonded over or otherwise disposed of to Landlord's
reasonable satisfaction within fifteen (15) days after receipt of notice
of the filing or establishment thereof, then Landlord shall have no
further obligation to disburse any funds from the Allowance to Tenant
unless and until the same is so discharged or otherwise disposed, in
addition to, and not in lieu of, Landlord's rights and remedies and
Tenant's obligations on account thereof under Section 3.5 below or
otherwise.
3.5 Mechanic's Liens. Tenant hereby indemnifies Landlord against liability for
any and all Mechanic's and other liens filed in connection with the Tenant
Work or any other work performed by Tenant under this Lease. Tenant, at
its expense, shall procure the discharge of all such liens within fifteen
(15) days after receipt of notice of the filing of any such lien against
the Premises or the Property. If Tenant shall fail to cause any such lien
to be discharged within the period aforesaid, then, in addition to any
other right or remedy, Landlord may, but shall not be obligated to,
discharge the same either by paying the amount claimed to be due or by
deposit or bonding proceedings, and in any such event Landlord shall be
entitled, if it elects, to compel the prosecution of an action for the
foreclosure of such lien and to pay the amount of the judgment in favor of
the lien with interest, costs and allowances. Any amount so paid by
Landlord, and all costs and expenses incurred by Landlord in connection
therewith, shall constitute additional rent and shall be paid by Tenant to
Landlord on demand.
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ARTICLE 4
Rent
4.1 The Fixed Rent. Beginning on the Rent Commencement Date, Tenant covenants
and agrees to pay rent (the "Fixed 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, in the amount of the Base Rent, in advance, on the first day of
each calendar month included in the term; and for any portion of a
calendar month following the Rent Commencement Date or end of the term, at
that rate payable in advance for such portion.
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 taxes and operating costs with respect to the
Premises as provided in this Section 4.2 as follows:
4.2.1 Real Estate Taxes. If, during the term hereof, Taxes (as hereinafter
defined) for any fiscal year (for the purposes of this Lease, called
a "Tax Year") partially or wholly included within the term shall
exceed Base Taxes, Tenant shall reimburse Landlord, as additional
rent, for Tenant's Percentage of such excess (such amount being
referred to as "Tax Excess"). Tenant shall remit to Landlord on the
first day of each calendar month, estimated payments on account of
Tax Excess, such monthly amounts to be sufficient to provide
Landlord, by the time real estate tax payments are due and payable,
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 remittances hereunder 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 hereunder, 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 thirty (30) 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 either party 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
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refund (less the proportional, pro rata expenses, including
reasonable 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 levied, assessed or imposed at any
time during the term by any governmental authority upon or against
the Property, or taxes in lieu thereof, provided, however, that any
betterments shall be apportioned over the longest period permitted
by law and Tenant shall only be responsible for the payments that
are due during the Term of this Lease. 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 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 gross receipts, gift, franchise,
estate, inheritance, succession, capital levy, transfer, income or
excess profits taxes assessed on Landlord. 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
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 Cost
Excess, as reasonably estimated by Landlord from time to time
provided that Landlord shall have given Tenant written notice of
such Operating Costs Excess payment at least ten (10) days prior to
first day of any calendar month for which Tenant shall be obligated
to make such reimbursement, which notice shall set forth the manner
of computation. If, at the expiration of the year in respect of
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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 make 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 Excess due and payable by Tenant
with respect to periods of less than twelve (12) months shall be
equitably prorated. Within ninety (90) days of receipt of said
itemized statement of Operating Costs Excess, Tenant, at its
expense, shall have the right during customary business hours and
upon reasonable notice to Landlord, to inspect Landlord's books and
records relating to Operating Costs for the prior year. Tenant's
review shall be conducted in a manner so as not to unreasonably
interfere with the conduct of Landlord's business. If Tenant
determines that errors are contained in such books and records which
have resulted in overpayments from Tenant to Landlord for Additional
Rent, then Tenant shall give Landlord written notice of such errors,
and such overpayments shall, at Tenant's sole discretion, either be
paid to Tenant or applied as a credit to the next due installment to
be paid by Tenant pursuant to this subsection 4.2.3.
The term "Operating Costs" shall mean all costs and expenses
incurred for the operation, cleaning, maintenance, repair and upkeep
of the Property, including, without limitation, all costs of
maintaining and repairing the Property (including snow removal,
landscaping and grounds maintenance, operation and maintenance of
parking lots, sidewalks, walking paths, access roads and driveways,
security (both before and after normal building hours), operation
and repair of heating and ventilation 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 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 water
(including sewer charges) pursuant to Section 5.1.3 herein; 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 the
proportionate share of any part-time on-site employees of Landlord
or its affiliates engaged in security and maintenance of the
Property; attorneys' fees and disbursements (exclusive of any such
fees and disbursements incurred in connection with the preparation
of leases, and negotiations or disputes with present, former or
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prospective tenants or occupants of the Building) and reasonable
auditing and other professional fees and expenses; and a reasonable
management fee consistent with management fees charged to manage
similar buildings in the Boston/North Shore area.
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; any
repairs, work, costs or the like solely for individual tenants;
ground rents payable by Landlord; and expenses for services not
offered to Tenant.
If, during the term of this Lease, Landlord shall replace any
capital items or make any capital expenditures the purpose of which
is to reduce Operating Costs or to comply with any laws not in
effect on the Commencement Date (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 then being charged to Landlord by lender(s) or as
charged by institutional lenders on like properties in the area.
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
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
Landlord was not supplying all tenants with the services being
supplied hereunder, that portion of actual Operating Costs which
vary according to the Building's occupancy shall be reasonably
extrapolated by Landlord to the estimated Operating Costs that would
have been incurred if the Building were fully occupied by tenants 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. Landlord
represents that the Operating Costs for the Base Year were similarly
calculated.
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Notwithstanding the foregoing, the following items shall be excluded
from Operating Costs:
1. Expense incurred by Landlord in connection with services or
other benefits of a type which are not building standard
services or benefits provided to tenants generally, but
which are provided only to specific tenants;
2. Salaries of officers and executives of Landlord not
connected with the operation of the Property;
3. All costs related to the preparation of any portion of the
Building solely for occupancy by a tenant or other occupant;
4. Any cost incurred by the negligent acts or omissions of
Landlord, its agents and employees;
5. Advertising and promotional expenses associated with the
marketing of vacant space in the Building;
6. Cost and expenses incurred by Landlord in connection with
the repair of damage to the Building or Property caused by
fire or other casualty, insured or required to be insured
against hereunder;
7. Overhead and profit increment paid to subsidiaries or
affiliates of Landlord for services to the Building, to the
extent that such overhead and profit increment exceeds the
amount of such increment that would be included in the cost
for such services if such services were rendered at
competitive rates by unaffiliated persons or entities of
similar skill, competence and experience;
8. The cost of correcting defects in the initial construction
of the Building; and
9. Insurance premiums to the extent any unusual tenant activity
causes the Landlord's existing insurance premiums to
increase or requires the Landlord to purchase additional
insurance, but only to the extent such additional cost can
be identified by the insurer.
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 Comprehensive liability insurance naming Landlord, Tenant,
and Landlord's managing agent and any mortgagee of which
Tenant has been given written
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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, including, but not limited to, the Roof Equipment
(as defined in Section 10.9 below) and the Generator (as
defined in Section 10.10 below).
4.2.4.3 All such policies shall be obtained from responsible
companies qualified to do business and in good standing in
Massachusetts, which companies and the amount of insurance
allocated thereto shall be subject to Landlord's approval
which approval shall not be unreasonably withheld. 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
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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 and heat furnished or consumed
on the Premises, all charges for any utilities supplied by Landlord
pursuant to Subsections 5.1.1 and 5.1.3 which are separately
metered, 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 date
the same was due, and if on a prior occasion in the twelve (12) month
period prior to the date such installment was due an installment of rent
was paid after the same was due, 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, which
Landlord shall deposit in its name in an interest-bearing account. 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 payable hereunder shall be overdue
and unpaid following the expiration of all applicable notice and cure
periods or should Landlord make payments on behalf of the Tenant as
permitted hereunder, or Tenant shall fail to perform any of the terms of
this Lease after the expiration of all applicable notice and cure periods,
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
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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 and any interest earned
thereon 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:
5.1.1 HVAC. To furnish heating, air conditioning and ventilation ("HVAC")
to the Premises, separately metered and at the direct expense of
Tenant as hereinabove provided, (reserving the right, at any time,
to change energy or heat sources to a reasonably comparable source)
sufficient to maintain the Premises at comfortable temperatures
(subject to all federal, state, and local regulations relating to
the provision of heat), on a 24 hour per day 365 day per year basis,
provided, however, that with respect to HVAC furnished to the
Premises outside normal business hours for the Building, Tenant
shall pay therefor such reasonable charges as may from time to time
be established by Landlord and be in effect to cover Landlord's
incremental costs in providing such service outside normal business
hours for the Building.
5.1.2 Electricity. To furnish to the Premises, separately metered and at
the direct expense of Tenant as hereinabove provided, electricity
reasonably adequate 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, within thirty
(30) days after request, reimburse Landlord for such additional
cost, as aforesaid, or (b) Landlord, upon 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
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alterations or repairs.
5.1.3 Cleaning; Water. To provide daily cleaning for the common areas and
to furnish water for ordinary cleaning, lavatory and toilet
facilities.
5.1.4 Fire Alarm and Security. To maintain fire alarm systems within the
Building and to provide security for the Building, including
providing a security guard in the Building from the hours of 4 p.m.
to 12 midnight Monday through Friday.
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, air
conditioning and ventilating 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
agents, servants, employees or contractors).
5.1.6 Signs. Landlord agrees to list Tenant's name in the lobby building
directory and on the entrance to the Premises.
5.2 Interruption. Landlord shall have 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, provided, however, that Landlord shall use
reasonable efforts to restore any such services.
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 which
approval shall not be unreasonably withheld. ("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.
5.4 Hazardous Materials. Landlord shall indemnify and save Tenant harmless
from all claims, liability, loss or damage which may at any time be
incurred by Tenant arising on account of
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a release or threatened release at, on or under the Property as of the
date of this Lease, including, without limitation, liability under any
federal state or local laws, requirements and regulations; provided,
however, this indemnity shall not apply in the event Tenant uses or
disposes at, on or under the Property hazardous wastes, hazardous
materials or oil which is the subject of such claim, liability, loss or
damage. Tenant acknowledges that the use of the Property is subject to the
Notice of Activity and Use Limitation dated January 28, 1997 and recorded
at the Essex South District Registry of Deeds in Book 13949, Page 443, a
copy of which is attached as Exhibit F to this Lease.
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 Base 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 with copies of
applications therefor on or before their submission to the
governmental authority.
6.1.3 Repair and Maintenance. To maintain the Premises in clean and neat
order and condition, to perform all cleaning for the Premises, and
to perform all routine and ordinary repairs to the Premises and to
any plumbing, heating, electrical, and ventilating systems located
within and serving the Premises exclusively, and to the Roof
Equipment as defined in Section 10.9 below, as such 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 casualty and taking by eminent domain 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 hereunder beyond all
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applicable notice and cure periods, may elect, at the 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, the Roof
Equipment and the Generator, 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 faith and by
appropriate legal proceedings, if Tenant first gives Landlord
appropriate assurance or security against any loss, cost or expense
on account thereof. Notwithstanding anything to the contrary herein
contained, Tenant shall not be required to make any changes to the
structural components of the Building or to the Building systems
unless required by Tenant's particular use of the Premises.
6.1.5 Indemnification. To save Landlord harmless, and to exonerate and
indemnify Landlord 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 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 willful misconduct
of Landlord, its agents, servants or employees. In respect of all of
the foregoing, Tenant shall indemnify Landlord from and against all
reasonable 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 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 notice (except in an emergency) 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
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suitable places notices of availability of the Premises.
6.1.7 Personal Property at Tenant's Risk. All of the furnishings,
fixtures, equipment (including, but not limited to, the Roof
Equipment and the Generator), 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; 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), 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 excluding
reasonable wear and tear, damage by casualty and taking by eminent
domain. 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 necessary as a result of said removal. 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
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Exhibit D, 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 fifteen (15) days' prior
written request by Landlord, to execute, acknowledge and deliver to
Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect and that Tenant has no
defenses, offsets or counterclaims against its obligations to pay
the Fixed Rent and Additional Rent and any other charges and to
perform its other covenants under this Lease (or, if there have
been any modifications, that the Lease is in full force and effect
as modified and stating the modifications and, if there are any
defenses, offsets or counterclaims of which Tenant has actual
knowledge, setting them forth in reasonable detail), and the dates
to which the Base Rent and Additional Rent and other charges have
been paid. 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,
provided that said information is kept confidential by said
parties.
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
without the prior written consent of Landlord which consent shall
not be unreasonably withheld or delayed provided that the assignee
or subtenant shall use the Premises only for the Permitted Uses. In
the event Tenant desires to assign this Lease or sublet any portion
or all of the Premises, Tenant shall notify Landlord in writing of
Tenant's intent to so assign this Lease or sublet the Premises and
the proposed effective date of such subletting or assignment, and
shall request in such notification that Landlord consent thereto.
In the event that Tenant delivers a request to Landlord to sublease
or assign more than twenty-five (25%)
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percent of the Premises in the aggregate, Landlord may terminate
this lease in the case of a proposed assignment or subletting by
giving written notice of termination to Tenant with such
termination to be effective as of the effective date of such
subletting or assignment. If Landlord does not so terminate,
Landlord's consent shall not be unreasonably withheld to an
assignment or subletting, provided that the assignee or subtenant
shall use the Premises only for the Permitted Uses. Tenant shall,
as Additional Rent, reimburse Landlord promptly for Landlord's
reasonable legal expenses incurred in connection with any request
by Tenant for such consent. If Landlord consents thereto, no such
subletting or assignment shall in any way impair the continuing
primary liability of Tenant hereunder, and no consent to any
subletting or assignment in a particular instance shall be deemed
to be a waiver of the obligation to obtain the Landlord's written
approval in the case of any other subletting or assignment.
Notwithstanding the provisions of the foregoing paragraph, Tenant
may assign this Lease, or sublease all or any part of the Premises,
to any party (an "Affiliate") which (i) wholly owns or controls
Tenant, (ii) is wholly owned or controlled by Tenant, (iii) is
under common ownership or control with Tenant, or (iv) into which
or with which Tenant or any of the foregoing parties is merged,
consolidated, or reorganized, or to which all or substantially all
of Tenant's assets or any such other parties' assets are sold;
without Landlord's prior consent, provided: (a) Landlord shall
receive a copy of the executed transfer document promptly after
execution, (b) Tenant shall remain liable under this Lease, and (c)
the Transferee, if an assignment, shall expressly assume Tenant's
obligations under this Lease.
If for any assignment or sublease consented to by Landlord
hereunder or to an Affiliate, Tenant receives rent or other
consideration, either initially or over the term of the assignment
or sublease, in excess of the rent called for hereunder, or in case
of sublease of part, in excess of such rent fairly allocable to the
part, after appropriate adjustments to assure that all other
payments called for hereunder are appropriately taken into account
and after deduction for reasonable expenses of Tenant in connection
with the assignment or sublease, to pay to Landlord as additional
rent fifty (50%) percent of the excess of each such payment of rent
or other consideration received by Tenant promptly after its
receipt.
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 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
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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 Tenant's (including
its agents, employees and contractors) use or disposal of hazardous
wastes, hazardous materials or oil, in the Premises or on the
Property, 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.
Notwithstanding the foregoing, nothing herein contained shall
prevent Tenant from using ordinary, consumer, household and office
products, in small quantities, in the Premises.
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 without on each occasion obtaining the prior
written consent of Landlord which consent shall not be unreasonably
withheld, conditioned or delayed, provided such installations and
alterations do not affect the mechanical or structural systems of
the Building, 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. 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
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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 twenty (20)
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, which
approval shall not be unreasonably withheld, to paint or place any
signs or place any curtains, blinds, shades, awnings, aerials, or
the like, visible from outside the Premises. Notwithstanding the
foregoing, Landlord acknowledges that Tenant may ask permission to
place shades, curtains and blinds that are not "building standard"
in the windows and Landlord shall not unreasonably withhold its
consent to any such request. Also, Tenant shall have the right to
place a sign identifying Tenant on the exterior of the Premises in
a location reasonably and mutually agreed upon between Landlord and
Tenant. Any such sign shall comply with all local ordinances and
shall be at Tenant's sole cost and expense.
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
Casually 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. In the event that the Premises
are destroyed or substantially damaged by fire or other casualty, or by
the action of public authority and cannot reasonably be expected to be
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repaired or restored (or, in fact, are not restored) within one hundred
eighty (180) days from the date of such casualty or taking, then this
Lease may be terminated at the election of Tenant which notice shall be
made after the giving of notice to the other party within thirty (30)
days after the date of taking or casualty or within thirty (30) days
after expiration of the said 180 day period.
7.2 Restoration If Landlord or Tenant does not elect to so terminate as set
forth above, 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.
7.3 Award. Irrespective of the form in which recovery maybe had by law, all
rights to damages or compensation shall belong to Landlord in all cases;
provided, however, that nothing contained herein shall prevent Tenant from
applying for reimbursement from the condemning authority (if permitted by
law and if such reimbursement will not otherwise reduce Landlord's award)
only for moving expenses, or removal of trade fixtures or equipment, or
loss of business goodwill. 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 or Additional Rent 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
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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 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 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 or shall be otherwise terminated for
breach of any obligation of Tenant, 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
reasonable 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 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 sole judgment considers
advisable or necessary to relet the same, and no action of Landlord in
accordance with the foregoing
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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 and prior to the last twelve (12) months of the Term hereof,
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 or is
otherwise terminated for breach of any obligation of Tenant 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, without notice, 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
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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.
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 and
obligations 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. Upon
such entry and taking possession, 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 an abandonment of such
possession shall be deemed a conveyance under said provisions to the owner
of the equity of the Property.
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
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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 written
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 beyond any applicable notice,
grace and cure periods hereunder). Tenant agrees it will, upon request of
Landlord, execute, acknowledge and deliver any and all instruments deemed
by Landlord reasonably 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 reasonably deems usual or customary. Notwithstanding anything to
the contrary herein contained, Tenant's interest in this Lease shall not
be subordinate to any mortgage executed after the date hereof unless such
mortgagee delivers a non-disturbance agreement in form reasonably
acceptable to Tenant. Landlord agrees to request a non-disturbance
agreement from the holder of any mortgage executed prior to the date
hereof.
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.
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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 any condemnation awards or insurance proceeds relating to the
foregoing, 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. This paragraph
shall not limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or to take any other action which shall
not involve the personal liability of Landlord or for monetary damages
from Landlord's assets other than as provided for herein.
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 default, whether or not notice is given.
Tenant shall have no right for any default by
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Landlord hereunder to offset or counterclaim against any rent due
hereunder.
10.7 Brokerage. Each party warrants and represents to the other that it has
dealt with no broker in connection with the consummation of this Lease,
other than the Broker, and in the event of any brokerage claims, other
than by the Broker, against one party predicated upon prior dealings with
the other party, the first party agrees to defend the same and indemnify
and hold the other party harmless against any such claim.
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.
10.9 Roof Equipment. Landlord hereby agrees that Tenant, at its sole cost and
expense, shall be permitted, to install, maintain, and from time to time
replace, telecommunications and supplemental HVAC equipment on the roof of
the Building (hereinafter, collectively, the "Roof Equipment"), provided
that (i) prior to such installation Tenant obtains Landlord's approval of
the location(s) for the proposed Roof Equipment (provided that Landlord's
approval shall not be required for the supplemental HVAC equipment if
located in the area shown as "Supplemental HVAC Equipment Location" on the
plan attached hereto as Exhibit D) which approval shall not be
unreasonably withheld; (ii) the Roof Equipment is not visible from the
ground around the Building; (iii) Tenant will, at its sole cost and
expense, comply with all governmental rules and regulations and the
conditions of any bond or warranty maintained by Landlord for the roof,
and (iv) Landlord and its authorized representatives and contractors shall
be permitted to supervise any roof penetration. Tenant shall promptly
repair any damage to the Building caused by or as a result of Tenant's
installation, maintenance, replacement, use or removal of the Roof
Equipment. The Roof Equipment shall remain the property of Tenant, and
Tenant may remove the Roof Equipment at its sole cost at any time during
the term of this Lease. In any event, Tenant shall remove the Roof
Equipment at its sole cost upon the expiration or earlier termination of
this Lease. In addition to any other indemnification provisions contained
in this Lease, Tenant shall protect, defend, indemnify, and hold harmless
Landlord from and against claims, damages, liabilities, costs and expenses
of every kind and nature, including attorneys' fees, incurred by or
asserted against Landlord arising out of Tenant's installation,
maintenance, replacement, use or removal of the Roof Equipment. Tenant
acknowledges
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that the rights granted hereunder are non-exclusive and Tenant agrees to
install and maintain the Roof Equipment in such a manner as to insure and
provide that the Tenant's rights hereunder do not conflict or cause
interference with any Roof Equipment installed or maintained by any other
tenant of the Property.
10.10 Generator: (A) Tenant shall have the right to install, maintain and
operate a back-up generator at its sole cost and expense, in accordance
with the provisions of Section 6.2.5 of this Lease, in the location shown
on Exhibit D (the "Generator"). The Generator shall be installed (i) in
accordance with all laws, regulations, ordinances, requirements and
licenses applicable to such Generator and any appurtenances thereto; and
(ii) in the manner and according to the plans and specifications provided
in advance to Landlord for its review and approval, which approval shall
not be unreasonably withheld. If such installation shall result in an
increase in Landlord's insurance premiums for the Building or Property,
Tenant shall be liable for the increase as additional rent hereunder.
(B) Tenant agrees that upon the expiration or earlier termination of this
Lease, Tenant shall, in accordance with subsection 6.1.9 hereof, remove
the Generator, at Tenant's expense, and promptly repair and restore any
damage to the Premises or the Building due to such removal. If the
Generator is not so removed by Tenant upon the expiration of the term of
this Lease, then it shall become the property of Landlord and Landlord
shall remove the same and shall charge Tenant for the cost of removal,
including costs, if any, associated with restoration of the Premises or
Building due to such removal.
(C) In addition to any other indemnification provisions of this Lease,
Tenant will, and does hereby, indemnify, defend and save harmless Landlord
(except to the extent resulting from Landlord's negligent or willful and
malicious acts) from and against: (i) any and all claims, fees, demands,
damages, expenses or losses by reason of any liens, orders, claims or
charges resulting from any work done, or materials or supplies furnished,
in connection with the fabrication, erection, installation, maintenance
and operation of the Generator and (ii) any and all claims, costs,
demands, expenses, fees or suits arising out of accidents, damage, injury
or loss to any and all persons and property, or either whomsoever, or
whatsoever resulting from or arising in connection with the installation,
maintenance, operation and repair of the Generator. Tenant shall obtain
insurance coverage for the benefit of Landlord in such amount and of such
type as Landlord may reasonably require.
(D) Landlord, at its expense upon thirty (30) days' prior written notice
to Tenant, shall have the right to relocate the Generator to such other
areas of the Building as Landlord may designate, provided that there shall
be no material interference with Tenant's business. Tenant shall not be
permitted to assign or transfer all or any portion of the rights granted
to Tenant pursuant to this Subsection 10.10 unless Tenant assigns this
Lease to the party to whom such rights are assigned or transferred.
10.11 Appraisal of Fair Rental Value. In the event that Tenant disputes the
amount claimed by
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Landlord as Fair Rental Value, and such dispute cannot be resolved by
mutual agreement, Tenant shall have the right pursuant to Section 2.3 of
this Lease to submit the dispute to the appraisal process hereinafter set
forth. The amount of Fair Rental Value determined pursuant to such
appraisal process shall be final and binding between the parties. The
appraisal process shall be conducted as follows:
(a) Tenant shall make demand for appraisal by notice to Landlord within
ten (10) business days after notice of Landlord's determination of
Fair Rental Value given under Section 2.3 specifying therein the
name and address of the person to act as the appraiser on its
behalf. The appraiser shall be a real estate appraiser with at least
ten years' experience in the field and a qualified member of the
American Institute of Real Estate Appraisers, or any successor of
such Institute (or if such organization or successor shall not
longer be in existence, a recognized national association or
institute of land appraisers) familiar with the fair market rent of
comparable office space in the Boston/North Shore Massachusetts
area. Failure on the part of Tenant to make a timely and proper
notice of demand for such appraisal shall constitute a waiver of the
right thereto. Within ten (10) business days after receipt of
Tenant's notice of the demand for appraisal, Landlord shall give
notice to Tenant, specifying the name and address of the person
designated by Landlord to act as appraiser on its behalf who shall
be similarly qualified. If Landlord fails to notify Tenant of the
appointment of its appraiser within or by the time above specified,
then Tenant shall thereafter send a second notice to Landlord
indicating such failure and requesting Landlord to appoint such an
appraiser. If Landlord fails to notify Tenant of the appointment of
its appraiser within said time period then the appraiser appointed
by Tenant shall be the sole appraiser to determine the issue.
(b) In the event that two (2) appraisers are chosen pursuant to
paragraph (a) above, the appraisers so chosen shall meet within ten
(10) business days after the second appraiser is appointed and, if
within ten (10) business days after such first meeting the two
appraisers shall be unable to agree upon a determination of Fair
Rental Value, they, themselves, shall appoint a third appraiser, who
shall be a competent and impartial person with the same minimum
qualifications and experience as is required of the first two
appraisers. In the event they are unable to agree upon such
appointment within five (5) business days after expiration of said
ten (10) day period, the third appraiser shall be selected by the
parties themselves, if they can agree thereon, within a further
period of ten (10) business days. If the parties do not so agree,
then either party, on behalf of both, may request appointment of
such a qualified person by an officer of the American Arbitration
Association in Boston, Massachusetts. The third appraiser shall
decide the dispute, if it has not previously been resolved, by
following the procedure set forth below.
(c) Where the issue cannot be resolved by agreement of the two
appraisers selected by Landlord and Tenant or settlement between the
parties during the course of the
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appraisal process, the issue shall be resolved by the third
appraiser in accordance with the following procedure. Within ten
(10) days after the third appraiser has been selected, the other two
appraisers shall state in writing their respective determinations of
the Fair Rental Value, supported by the reasons therefor, and submit
such proposed determinations to the third appraiser. Within ten (10)
days of receipt of such determinations, the third appraiser shall
select the determination which, in his view, more closely
approximates the Fair Rental Value and such determination shall be
the Fair Rental Value. If either of the other appraisers fails to
submit his determination to the third appraiser within said ten (10)
day period, the determination submitted to the third appraiser shall
be the Fair Rental Value and if both other appraisers fail to submit
their respective determinations to the third appraiser within said
ten (10) day period, the third appraiser shall, within twenty (20)
days after the expiration of said ten (10) day period, determine the
Fair Rental Value and such determination shall be the Fair Rental
Value. All such determinations of Fair Rental Value shall be final
and binding upon the parties. The provision for determination by
appraisal shall be specifically enforceable to the extent such
remedies are available under the applicable law, and any
determination hereunder shall be final and binding upon the parties
hereto, and either party shall have the right to enter judgment
thereon, unless otherwise provided by applicable law. If a
determination of Fair Rental Value is to be made pursuant to this
Section 10.11, Landlord and Tenant shall each pay for the fees and
disbursements of any appraiser appointed by it and shall share
equally in the fees and expenses of any third appraiser.
10.12 Corporate Authority. If Tenant signs this Lease as a corporation, each of
the persons executing this Lease on behalf of Tenant does hereby covenant
and warrant that (a) Tenant is a duly authorized and existing corporation,
(b) Tenant has and is qualified to do business in the Commonwealth of
Massachusetts, (c) the corporation has full right and authority to enter
into this Lease, and (d) each person signing on behalf of the corporation
are authorized to do so. If Tenant is a corporation, within thirty (30)
days after execution of this Lease by Tenant, Tenant shall deliver to
Landlord a certified corporate resolution authorizing Tenant to execute
this Lease and authorizing the persons who signed below on behalf of
Tenant to execute this Lease.
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WITNESS the execution hereof under seal on the day and year first above
written:
LANDLORD: TENANT:
ARTHUR PAPPATHANASI, TRUSTEE LIGHTBRIDGE, INC.
330 SCANGAS NOMINEE TRUST
/s/ Arthur Pappathanasi Pamela D.A. Reeve
-------------------------------- --------------------------------
As Trustee, but not individually By:
Its:
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