EXHIBIT 10.23
OFFICE LEASE
0000 XXXX XXXX XXXXX
XXXXXXXXXXX, XXXXXXXXXXXXX 00000
BY AND BETWEEN
2200 WEST PARK REALTY TRUST
AS LANDLORD
AND
OSICOM TECHNOLOGIES, INC.
AS TENANT
Table of Contents by Articles and Sections
Page
----
1. Reference Data and Definitions.
1.01 Reference Data 6
1.02 General Provisions 8
1.03 Terms Defined 9
2. Premises.
2.01 Premises 16
2.02 Appurtenances 17
3. Term.
3.01 Term Commencement 17
3.02 Termination 17
4. Rent.
4.01 Basic Rent 17
5. Use of Premises.
5.01 Use Restricted 17
6. Taxes; Operating Expenses; Estimated Cost of Electrical Services.
6.01 Expenses and Taxes 18
6.02 Annual Statement of Additional Rent Due 18
6.03 Monthly Payments of Additional Rent 18
6.04 Accounting Periods 18
6.05 Abatement of Taxes 18
6.06 Electric Service 19
6.07 Late Payment of Rent 19
7. Improvements, Repairs, Additions, Replacements.
7.01 Preparation of the Premises 19
7.02 Time for Completion 19
7.03 Notice to Commence 20
7.04 Delays 20
7.05 Tenant's Access to the Premises 20
7.06 Alterations and Improvements 21
8. Building Services.
8.01 Building Services 21
8.02 Other janitors 22
8.03 Additional Services 22
8.04 Limitation on Landlord's Liability 22
9. Tenant's Particular Covenants.
9.01 Pay Rent 22
9.02 Occupancy of the Premises 22
9.03 Safety 23
9.04 Equipment 23
9.05 Electrical Equipment 23
9.06 Pay Taxes 23
9.07 Tenant's Covenants 23
9.08 Maintenance 24
9.09 Redelivery 24
10. Requirements of Public Authority.
10.01 Legal Requirements 24
10.02 Contests 24
10.03 Environmental Legal Requirements 24
11. Covenant Against Liens.
11.01 Mechanics Liens 25
11.02 Right to Discharge 25
12. Access to Premises.
12.01 Access 25
13. Assignment and Subletting: Company Arrangements.
13.01 Subletting and Assignments 26
14. Indemnity.
14.01 Tenant's Indemnity 26
14.02 Landlord's Liability 27
15. Insurance.
15.01 Liability Insurance 27
15.02 Casualty Insurance 27
16. Waiver of Subrogation.
16.01 Waiver of Subrogation 28
16.02 Waiver of Rights 28
17. Damage of Destruction.
17.01 Substantial Damage 28
17.02 Restoration 28
18. Eminent Domain.
18.01 Total Taking 29
18.02 Partial Taking 29
18.03 Awards and Proceeds 29
19. Quiet Enjoyment.
19.01 Landlord's Covenant 30
19.02 Subordination 30
19.03 Notice to Mortgagee 30
19.04 Other Provisions Regarding Mortgages 30
20. Defaults; Events of Default.
20.01 Defaults 31
20.02 Tenant's Best Efforts 32
20.03 Tenant's Default - Rent Abatement
Cancellation 32
21. Bankruptcy or Insolvency.
21.01 32
21.02 32
21.03 34
21.04 35
22. Landlord's Remedies; Damages on Default.
22.01 Landlord's Remedies 35
22.02 Surrender 36
22.03 Right to Relet 36
22.04 Survival of Covenants 36
22.05 Right to Equitable Relief 37
22.06 Right to Self Help; Interest on
Overdue Rent 37
22.07 Intentionally Deleted 37
23. Waivers.
23.01 No Waivers 38
24. Security Deposit.
24.01 Security Deposit 38
25. General Provisions.
25.01 Force Majeure 38
25.02 Notices and Communications 38
25.03 Certificates, Estoppel Letter 39
25.04 Renewal 39
25.05 Governing Law 39
25.06 Partial Invalidity 39
25.07 Notice of Lease 40
25.08 Interpretation; Consents 40
25.09 Parties 40
25.10 Waiver of Trial by Jury 40
25.11 Time of the Essence 40
26. Miscellaneous.
26.01 Option to Extend 40
26.02 Extended Hours HVAC 41
26.03 Holdover Clause 41
26.04 Relocation 41
26.05 Parking 41
26.06 Signage 41
26.07 Option to Xxxxxxxxx 00
00. Entire Agreement.
27.01 Entire Agreement 43
2200 WEST PARK
0000 XXXX XXXX XXXXX
XXXXXXXXXXX, XXXXXXXXXXXXX
OFFICE LEASE
STANDARD FORM
THIS LEASE ("Lease") made at Southborough Massachusetts, by and between
0000 Xxxx Xxxx Realty Trust, a Massachusetts Realty Trust ("Landlord") having a
principal place of business at 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, XX
and Osicom. Technologies, Inc. a Delaware Corporation ("Tenant") having a
principal place of business at 000 Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxxxxx 00000.
WITNESSETH:
ARTICLE 1
Reference Data and Definitions
1.01 Reference Data
DATE OF LEASE: July 1, 1999
LANDLORD: 0000 Xxxx Xxxx Realty Trust
A Massachusetts Realty Trust
LANDLORD'S REPRESENTATIVE: New England Management and Realty
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000
LANDLORD'S ADDRESS 000 Xxxxxxxx Xxxx, Xxxxx 000
(XXX XXXXXXX XX XXXX): Xxxxxxxxxxxx, XX 00000
LANDLORD'S ADDRESS (FOR NOTICE AND BILLING): Same as Above
TENANT: Osicom Technologies, Inc.
TENANT ADDRESS: After the Term Commencement Date,
Tenant's address will be the Premises.
Before the Term Commencement Date,
Tenant's address is:
000 Xxxxxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxxxxx 00000
TENANT'S REPRESENTATIVE: Xxx Xxxxxxxx
TENANT'S PHONE NUMBER: 0-000-000-0000
TENANT'S FACSIMILE NUMBER: 0-000-000-0000
PREMISES: Suite 340 of the building located at 0000
Xxxx Xxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx, known as outlined or
hatched on Exhibit B.
RENTABLE AREA OF PREMISES: 3,728 + / - Estimated Square Feet.
RENTABLE AREA OF THE BUILDING: 75,000 Square Feet
RENT COMMENCEMENT DATE: 9/01/99
TERM COMMENCEMENT DATE: 9/01/99 or as defined in Section 1.03,
If different
STATED EXPIRATION DATE: 8/31/04
TENANTS SHARE 4.9%
OCCUPANCY DATE: No later than 9/01/99
LANDLORD'S CONTRIBUTION: Landlord shall provide a turnkey build
out using building standard materials and
equipment per a mutually acceptable
space plan. (Exhibit A)
TERM: Five (5) Lease years plus the partial
month, if any, between the Term
Commencement Date and the first day of
the next calendar month.
BASIC RENT: SEE SCHEDULE BELOW:
YEAR RATE PER SO. FT. ANNUAL RENT MONTHLY RENT
--------------------------------------------------------------------------------
1 23.50 87,600 7,300.67
2 23.50 87,600 7,300.67
3 23.50 87,600 7,300.67
4 24.50 91,336 7,611.33
5 24.50 91,336 7,611.33
INITIAL MONTHLY PAYMENT (Basic Rent): $ 7,300.67
REAL ESTATE TAX BASE YEAR: Fiscal Year 2000 (To be determined on a
fully assessed value.)
OPERATING EXPENSE
BASE YEAR: Calendar Year 2000
SECURITY DEPOSIT: $ 7,300.67. See Section 24.01
GUARANTOR: Osicom. Technologies, Inc.
PERMITTED USES: General Office uses consistent with a
first class office building, to the extent
permitted by the Town of Westborough
Zoning Bylaw.
1.02 General Provisions.
For all purposes of the Lease unless otherwise expressed and provided herein or
therein or unless the context otherwise requires:
(a) The words herein hereto hereunder and other words of similar import refer
to the Lease as a whole and not to any particular article, section or
other subdivision of this Lease.
(b) A pronoun in one gender includes and applies to the other gender as well.
(c) Each definition stated in Section 1.01 or 1.03 of this Lease applies
equally to the singular and the plural forms of the term or expression
defined.
(d) Any reference to a document defined in Section 1.03 of this Lease is to
such document as originally executed, or, if modified, amended or
supplemented in accordance with the provisions of this Lease, to such
document as so modified, amended or supplemented and in effect at the
relevant time of reference thereto.
(e) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles.
(f) All references in Section 1.01 hereof are subject to the specified
definitions thereof (if any) in Section 1.03 hereof.
1.03 Terms Defined.
Each term of expression set forth above in Section 1.02 hereof or below in this
Section 1.03 has the meaning stated immediately after it.
Additional Rent. All Taxes, Operating Expenses, costs, expenses and other
charges, (other than Basic Rent) due from Tenant to Landlord or incurred by
Landlord as a result of Default.
Additional Services. Services provided to Tenant or in respect of the Premises
which are not described in Exhibit C hereto.
Adjusted Operating Expense Base. The amount determined by multiplying the
Operating Expense Base by the Adjustment Factor.
Adjusted Tax Base. The amount determined by multiplying the Tax Base by the
Adjustment Factor.
Adjustment Factor. With respect to the First Calendar Year and the Last Calendar
Year, the percentage computed by dividing (i) the number of days of each such
period falling within the Lease term by (ii) 365.
Affiliate. With respect to any specified person, any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition, the
term control when used with respect to any specified person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms controlling and controlled by have meanings correlative to the
foregoing.
Authorizations. All franchises, licenses, permits and other governmental
consents issued by Governmental Authorities pursuant to Legal Requirements which
are or may be required for the use and occupancy of the Premises and the conduct
or continuation of a Permitted use therein.
Basic Services. The services described in Exhibit C hereto.
Building. The building located on the Land.
Building Standard Tenant Finishes. The standards set by Landlord for the quality
of work done on the Premises.
Business Day. A day which is not a Saturday, Sunday or other day on which banks
in Boston, Massachusetts, are authorized or required by law or executive order
to remain closed.
Calendar Year. The First Calendar Year, the Last Calendar Year and full calendar
year (January 1 through December 31) occurring during the Lease Term.
C.P.I. "Consumer Price Index - All Urban Consumers - (CPI-U) - U.S. City Average
- All Items (1982-1984=100)" as published by the U.S. Department of Labor.
Common Areas. All areas of the Building devoted to the common use of occupants
of the Building or the provision of Services to the Building, including but not
limited to the atrium, all corridors, elevator foyers, air shafts, elevator
shafts and elevators, stairwells and stairs, rest rooms, mechanical rooms,
janitor closets, vending areas and other similar facilities for the provision of
Services or the use of all occupants of multi-tenant floors or all occupants of
the Building.
Control. As defined in the definition of Affiliate.
Corporation. A corporation, company, association, business trust or similar
organization wherever formed.
Default. Any event or condition specified in Article 20 hereof so long as any
applicable requirement for the giving of notice or lapse of time or both have
not been fulfilled.
Event of Default. Any event or condition specified in (a) Article 20 hereof (if
all applicable periods for the giving of notice or lapse of time or both have
been fulfilled) or (b) in Article 21 hereof.
Fair Rental Value. The amount per square foot per annum which a Person not an
Affiliate of either Landlord or Tenant would pay as Basic Rent (using the Tax
Base and Operating Expense Base) as of the time of determination for the
Premises for a term of five (5) years. All Additional Rent such as Taxes,
Operating Expenses and Estimated Cost of Electrical Service shall be in addition
to the price per square foot so determined.
First Calendar Year. The partial Calendar Year period commencing on the Term
Commencement Date and ending on the next succeeding December 31.
Force Majeure. Acts of God, strikes, lock outs, labor troubles, inability to
procure materials, failure of power, restrictive Legal Requirements, riots and
insurrection, acts of public enemy, wars, earthquakes, hurricanes and other
natural disasters, fires, explosions, any act, failure to act or Default of the
other party to this Lease; provided, however, lack of money shall not be deemed
such a cause.
General Contractor. Rosewood Construction Corp., a Corporation with a place of
business at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000.
Governmental Authority. United States of America, the Commonwealth of
Massachusetts, the County of Worcester, Town of Westborough, and any political
subdivision thereof and any agency, department, commission, board, bureau or
instrumentality of any of them.
Hazardous Substance. "Oil", "hazardous materials", "hazardous wastes" and
"hazardous substances" as those terms are defined under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601,
et seq., as amended, Massachusetts General Laws, Chapters 21C and 21E, as
amended, and the regulations from time to time adopted under those laws.
Improvements. All (i) structures located in and forming a part of the Premises,
including but not limited to, walls, ceilings, doors and floor covering, (ii)
pipes, wires, conduits, controls and fixtures relating to utilities located in
and serving the Premises, (iii) casework, including but not limited to, benches,
tables, cabinets and storage facilities, connected to a utility or affixed to
the Premises or the Building and (iv) fixtures, equipment and personal property
of any kind installed on the Premises in such a manner that they become part of
the Premises or the Building under law or that they cannot be removed without
material damage to the structure, fixtures, equipment or personal property or to
the Premises or the Building.
Insolvency. The occurrence with respect to any Person of one or more of the
following events: the death, dissolution, termination of existence (other than
by merger or consolidation), insolvency, appointment of a receiver for all or
substantially all of the property of such person, the making of a fraudulent
conveyance or the execution of an assignment or trust mortgage for the benefit
of creditors by such Person, or the filing of a petition of bankruptcy or the
commencement of any proceedings by or against such Person under a bankruptcy,
insolvency or other law relating to the relief or the adjustment of
indebtedness, rehabilitation or reorganization of debtors; provided that if such
petition or commencement is involuntarily made against such a Person and is
dismissed within sixty (60) days of the date of such filing or commencement,
such events shall not constitute an insolvency hereunder.
Insurance Requirements. All terms of any policy of insurance maintained by
Landlord or Tenant and applicable to (or affecting any condition, operation, use
or occupancy of) the Building or the Premises or any part or parts of either;
and all requirements of the issuer of any such policy and all orders, rules,
regulations and other requirements of the National Board of Fire Underwriters
(or any other body exercising similar functions) applicable to (or affecting any
condition, operation, or occupancy of) the Building or the Premises or any part
or parts of either.
Land. The land on 0000 Xxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx Xxxxxx,
Commonwealth of Massachusetts.
Landlord's Contribution. The amount contributed by Landlord as a credit toward
the cost of finishing the Premises shown in Exhibit B.
Landlord's Work. The work to be done by Landlord with respect to the Premises
described in Exhibit E.
Last Calendar Year. The partial Calendar Year commencing on January 1 of the
Calendar Year in which the Lease Termination Date occurs and ending on the Lease
Termination Date.
Lease Term. The period stated in Section 1.01 commencing on the Term
Commencement Date and ending on the Lease Termination Date. The Lease Term
includes the period of any extension executed by Tenant as provided in this
Lease.
Lease Termination Date. The earlier to occur of (1) the Stated Expiration Date,
(2) the termination of this Lease by Landlord as the result of an Event of
Default, (3) the termination of this Lease pursuant to Article 17 (Damage or
Destruction) or 18 (Eminent Domain) hereof.
Lease Year. Each twelve consecutive calendar month period ending on the day
before an anniversary of the Term Commencement Date (or on the day before the
first day of the next succeeding calendar month if the Term Commencement Date
occurs other than on the first day of a month); provided that (a) the first
Lease Year includes the partial month, if any, between the Term Commencement
Date and the first day of the next calendar month and (b) the last Lease Year
will end on the Lease Termination Date.
Legal Requirements. All statutes, codes, ordinances (and all rules and
regulations thereunder), all executive orders and other administrative orders,
judgments, decrees, injunctions and other judicial orders of or by any
Governmental Authority which may at any time be applicable to parts or
appurtenances of the Premises or Building or to any condition or use thereof and
the provisions of all Authorizations.
Occupancy Arrangement . With respect to the Premises or any portion thereof of
the Lease, and whether (a) written or unwritten or (b) for all or any portion of
the Lease Term, an assignment, a sublease, any tenancy at will, a tenancy at
sufferance, or any other arrangement (including but not limited to a license or
concession) pursuant to which a Person occupies the Premises for any purpose.
Operating Expense Base. With respect to the Operating Expense Base Year the
amount determined by dividing the Rentable Area of the Premises into the amount
herein set forth as the Operating Expenses.
Operating Expenses. All expenses, costs, and disbursements of every kind and
nature which Landlord shall pay or become obligated to pay in connection with
the ownership, operation and maintenance of the Building (including all
facilities in operation on the Term Commencement Date and such additional
facilities which are necessary or beneficial for the operation of the Building)
and the Land and the provision of Basic Services, including, but not limited to
(a) wages, salaries, fees and costs to Landlord of all Persons directly engaged
in connection therewith, including taxes, insurance, and benefits relating
thereto; (b) the cost of (i) all supplies and materials, electricity and
lighting, for Common Areas, (ii) water, heat, air conditioning, and ventilation
for the Building, (iii) all maintenance, janitorial, and service agreements,
(iv) snow removal and maintenance of parking and landscaped areas, (v) all
insurance, including the cost of casualty and liability insurance applicable to
the Building and Landlord's personal property used in connection therewith, (vi)
repairs and general maintenance, (vii) capital items which are primarily for the
purpose of reducing Operating Expenses or which may be required by a
Governmental Authority, amortized over the reasonable life of the capital items
with the reasonable life and amortization schedule being determined by Landlord
in accordance with generally accepted accounting principles, (viii) pursuing an
application for an abatement of taxes to the extent not deducted from the
abatement, if any, received, (ix) independent auditors, (x) Landlord's central
accounting functions, and (xi) providing office space for the manager of the
Building; and (c) management fees and maintenance for common areas and open
areas. Operating Expenses shall not include (i) capital items except as provided
above or (ii) specific costs billed to and paid by specific tenants. Operating
Expenses shall be determined using the accrual method of accounting. If at any
time during the Term, less than ninety-five percent (95%) of the Rentable Area
of the Project is occupied, the Operating Expenses shall be adjusted by Landlord
to the exact operating expenses which would have been incurred if the Project
had been at least ninety-five percent (95%) occupied.
Partial Taking. Any Taking which is not a Total Taking.
Permitted Exceptions. Any hens or encumbrances on the Premises in the nature of
(a) liens for taxes assessed but not yet due and payable, (b) easements,
reservations, restrictions and rights of way encumbering or affecting the Land
on the date of this Lease, (c) the rights of Landlord, Tenant and any other
Person to whom Landlord has granted such rights to exercise in common with
respect to the Land and the Common Areas the rights granted to Tenant hereunder,
(d) mortgages of record, and (e) Title Conditions.
Person. An individual, a Corporation, a company, a voluntary association, a
partnership, a trust, an unincorporated organization or a government or any
agency, instrumentality or political subdivision thereof.
Premises. The space in the Building shown outlined or hatched on Exhibit B
hereto.
Proceeds. With respect to any Taking or occurrence described in Article 17
hereof, with respect to which any Person is obligated to pay any amount to or
for the account of Landlord, the aggregate of (i) all sums payable or receivable
under or in respect of any insurance policy, and (ii) all sums or awards payable
in respect to a Taking.
Rent. Basic Rent and all Additional Rent.
Rentable Area of the Premises. The number of square feet stated in Section 1.01,
whether the same should be more or less as a result of minor variations
resulting from actual construction and completion of the Building or Premises so
long as such work is done in accordance with the terms and provisions hereof.
The calculation was made according to the following formula:
(i) On single tenant floors, the usable area measured from the inside surfaces
of the outer glass of the Building, plus Tenant's Share of Common Areas.
(ii) On multi-tenant floors, the usable area measured from inside surface of the
outer glass of the Building to the midpoint of all demising walls of the space
being measured plus the area of each corridor adjacent to and required as the
result of the layout of the space being measured, measured from the midpoint of
the adjacent demising walls, plus Tenant's Share of Common Areas.
Rules and Regulations. Reasonable rules and regulations promulgated by Landlord
and uniformly applicable to persons occupying the Building regulating the
details of the operation and use of the Building. The initial Rules and
Regulations are attached hereto as Exhibit D.
Services. Basic Services and Additional Services.
Special Work. Work done in or with respect to the Premises which is not part
of Landlord's Work or the cost of which exceeds Landlord's Contribution.
Stated Expiration Date. The last day of the last Lease Year of the Term stated
in Section 1.01.
Substantial Completion Date. The date on which the Premises together with the
appurtenant areas of the Building necessary for access and service thereto, have
been completed in accordance with Article 7 hereof except for items of work and
adjustment of equipment and fixtures which are not necessary to make the
Premises reasonably tenantable for the Permitted Uses and because of season or
weather or nature of the item cannot practicably be done at the time.
Taking. The taking or condemnation of title to all or any part of the Land or
the possession or use of the Building or the Premises by a person for any public
use or purpose or any proceeding or negotiations which might result in such a
taking or any sale or lease in lieu of or in anticipation of such a taking.
Tax Base. With respect to the Tax Base Year the amount determined by dividing
the Rentable Area of the Premises into the amount herein before set forth as
Taxes, but with respect to the First Calendar Year and the Last Calendar Year,
the Adjusted Tax Base.
Taxes. All taxes, special or general assessments, water rents, rates and
charges, sewer rents and other impositions and charges imposed by Governmental
Authorities of every kind and nature whatsoever, extraordinary as well as
ordinary and each and every installment thereof which shall or may during the
term
of this Lease be charged, levied, laid, assessed, imposed, become due and
payable or become hens upon or for or with respect to the Land or any part
thereof or the Building or the Premises, appurtenances or equipment owned by
Landlord thereon or therein or any part thereof or on this Lease under or by
virtue of all present or future Legal Requirements and are tax based on a
percentage, fraction or capitalized value of the Rent (whether in lieu of or in
addition to the taxes herein before described). Taxes shall not include
inheritance, estate, excise, succession, transfer, gift, franchise, income,
gross receipt, or profit taxes except to the extent such are in lieu of or in
substitution for Taxes as now imposed on the Building, the Land, the Premises or
this Lease.
Tenant. As defined in Section 1.01 of this Lease.
Tenant's Cost. The cost of work done in connection with the completion of the
Premises in excess of (i) the cost of Landlord's Work and (ii) Landlord's
Contribution.
Tenant's Share. Tenant' s share of building is equal to T divided by B x 100%,
where "T" is equal to the number in the Rentable Area of the Premises and "B" is
equal to 95% the total Rentable Area of the Building.
Term Commencement Date. The earlier of (a) the later of (x) the date specified
in Section 1.01(y) the Substantial Completion Date, or (b) any other date for
such commencement determined in accordance with said Article 7, or (c) the date
on which Tenant first occupies the Premises for the Permitted Uses.
Title Conditions. All covenants, agreements, restrictions, easements and
declarations of record on the date hereof so far as the same may be from time to
time in force and applicable.
Total Taking. (i) a Taking of: (a) the fee interest in all or substantially all
of the Building or (b) such title to, easement in, over, under or such rights to
occupy and use any part or parts of the Building to the exclusion of Landlord as
shall have the effect, in the good faith judgment of the Landlord, of rendering
the portion of the Building remaining after such Taking (even if restoration
were made) unsuitable for the continued use and occupancy of the Building for
the Permitted Uses or (ii) a Taking of all or substantially all of the Premises
or such tide to or easement in, on or over the Premises to the exclusion of
Tenant which in the good faith judgement of the Landlord prohibits access to the
Premises or the exercise by Tenant of any rights under this Lease.
Working Drawings. The Working Drawings for the finishing of the Premises
developed by Landlord and Tenant. The Working Drawings shall be prepared in
compliance with All applicable Legal Requirements and stamped by registered
Massachusetts professionals, and shall consist of all architectural and
engineering plans which are required to finish the Premises or to obtain any
Authorization required therefor.
ARTICLE 2
Premises
2.01 Premises.
Landlord hereby leases and lets to Tenant, and Tenant hereby takes and
hires from Landlord, upon and subject to the terms, conditions, covenants and
provisions hereof, the Premises subject to the Permitted Exceptions. Landlord
reserves the right to relocate within or without the Premises pipes, ducts,
vents, flues, conduits, wires and appurtenant fixtures which service other parts
of the Building; provided that such work is done in such a manner that it does
not unreasonably interfere with Tenant's use of the Premises.
2.02 Appurtenances.
Tenant may use the Common Areas and the Land as appurtenant to the
Premises for the purposes for which they were designed. Tenant has the
nonexclusive right to use the parking area on the Land.
ARTICLE 3
Term
3.01 Term Commencement.
The Lease Term shall commence on the Term Commencement Date.
3.02 Termination.
The Lease Term shall end on the Lease Termination Date.
ARTICLE 4
Rent
4.01 Basic Rent
Tenant shall pay Landlord for the Premises, without offset or deduction
and without previous demand therefor, the Basic Rent as annual rent for each
Lease Year. Basic Rent shall be paid in equal monthly installments in advance on
the first day of each calendar month during the Lease Term. The first
installment of Basic Rent should be paid upon execution of this Lease.
Subsequent installments of Basic Rent shall be paid on the first day of every
calendar month after the Rent Commencement Date.. Basic Rent for partial months
at the beginning or end of the Lease Term shall be pro-rated.
ARTICLE 5
Use of Premises
5.01 Use Restricted.
The Premises may be used for the Permitted Uses and for no other purpose.
No Improvements, alterations or additions may be made in or to the Premises
without written approval of Landlord at his sole discretion.
ARTICLE 6
Taxes; Operating Expenses; Estimated Cost of Electrical Services
6.01 Expenses and Taxes.
Tenant agrees to pay Landlord as Additional Rent, Tenant's share of
Operating Expenses and Taxes as provided in this Article 6. If with respect to
any Calendar Year, Tenant's Share of (a) Operating Expenses exceeds the
Operating Base Year or (b) Taxes exceeds the Tax Base Year (whether as the
result of an increase in rate or assessment or both), Tenant shall pay to
Landlord the amount of each such excess. Any amount due with respect to this
Section 6.01 shall be due on the date which is five (5) days after receipt by
the Tenant of the statement described in Section 6.02 hereof.
6.02 Annual Statement of Additional Rent Due.
Landlord shall render to Tenant a statement in reasonable detail and with
such backup information as Tenant shall reasonably request, showing (a) for the
Calendar Year so indicated ( i) Taxes and (ii)
Operating Expenses and (b) for the then current Calendar Year, an estimate for
(i) Operating Expenses (ii) Taxes and (iii) Tenant's obligation under Section
6.01.
6.03 Monthly Payments of Additional Rent
Tenant shall pay to Landlord in advance for each calendar month as
Additional rent an amount equal to 1/12th of Tenant's estimated obligation under
Section 6.01 shown thereon. The amount due under this Section 6.03 shall be paid
with Tenant's monthly payments of Basic Rent and shall be credited by Landlord
to Tenant's obligations under Section 6.01. If the total amount paid hereunder
exceeds the amount due under such Section, such excess shall be credited by
Landlord against the monthly installments of Additional Rent next falling due or
shall be refunded to Tenant upon the expiration or termination of this Lease
(unless such expiration or termination is the result of an Event of Default).
6.04 Accounting Periods.
Landlord shall have the right from time to time to change the periods of
accounting hereunder to any other annual period than a Calendar Year, and upon
any such change, all items referred to in this Article 6 shall be appropriately
apportioned. In all statements rendered under Section 6.02, amounts for periods
partially within and partially without the accounting periods shall be
appropriately apportioned, and any items which are not determinable at the time
of a statement shall be included therein on the basis of Landlord's estimate and
with respect thereof Landlord shall render promptly after determination a
supplemental statement and appropriate adjustment shall be made according
thereto.
6.05 Abatement of Taxes.
Landlord may at any time and from time to time make application to the
appropriate Governmental Authority for an abatement of Taxes. Landlord shall
make such an application at any time tenants occupying more than 60% of the
Rentable Area of the Building under written Occupancy Arrangements directly with
the Landlord request that Landlord do so. If (i) such an application is
successful and (ii) Tenant has made any payment in respect of Taxes pursuant to
this Article 6 for the period with respect to which the abatement was granted,
Landlord shall (a) deduct from the amount of the abatement all expenses incurred
by it in connection with the application (b) pay to Tenant Tenant's Share
(adjusted for any period for which Tenant has made a partial payment) of
abatement, with interest, if any, paid by the Governmental Authority on such
abatement and (c) retain the balance, if any.
6.06 Electric Service.
The cost of Electrical Service shall be billed separately through the
utility company directly to the Tenant. All additional risers or other equipment
required for Tenant's Use shall be approved and provided by Landlord, and Tenant
thereof shall pay the cost.
6.07 Late Payment of Rent
If any installment of Base Rent or Additional Rent is not received in full
within five (5) days of its due date then, in addition to any other rights or
remedies of the Landlord, upon demand of Landlord, Tenant shall pay for each
month that rental payments are not timely made, a sum equal to ten percent (10%)
of each unpaid portion of such monthly installment as a liquidated damages
charge arising out of and occurring as the result of each such late payment.
In the event that Tenant makes three or more payments of rent more than
five (5) days after its due date during the Term, Landlord may deem such action
to constitute an Event of Default sufficient to terminate (i) the Lease (ii) any
provision for exercise by Tenant of any option rights under the Lease or (iii)
both.
ARTICLE 7
Improvements, Repairs, Additions, Replacements
7.01 Preparation of the Premises.
Landlord shall perform Landlord's Work as set forth in Exhibit E. All
other work must be of a quality, equal to or better than the Building Standard
Tenant Finishes. Landlord further agrees to do, at Tenant's request, any Special
Work, Tenant shall pay the amount of Tenants Cost to Landlord as the work
progresses. Landlord's work shall be completed in a good and workmanlike manner
and in compliance with all Legal and Insurance Requirements
7.02 Time for Completion
Landlord shall use due diligence to have the Premises ready for occupancy
on or before the Estimated Term Commencement Date. If the Premises is not
substantially completed, as described in Exhibit B to the Lease (with exception
of minor punch list items), within thirty (30) days following the issuance of a
building permit, Tenant shall then receive one (1) day of rent abatement
(commencing on the Rent Commencement) for each day occupancy is delayed.
Reference is made to Exhibit "B" for details of the completion process.
7.03 Notice to Commence.
Approximately fifteen (15) days prior to the Substantial Completion Date,
at Tenant's written request, Landlord shall furnish Tenant a notice stating the
Term Commencement Date.
7.04 Delays.
Provided that Landlord has otherwise complied with its obligations to
complete Landlord's Work, Landlord shall be delayed in substantially completing
the work in the Premises as the result of:
(a) delay in delivery to Landlord by Tenant of any plans, designwork and
detailed drawing, or
(b) Tenant's requests for Special Work. (notwithstanding Landlord's
approval of such changes), or
(c) delays in performance by Tenant or any Person employed by Tenant which
shall cause delays in the completion of Landlord's Work or which shall
otherwise delay the substantial completion of the Premises, or
(d) any fault, negligence, omission, or failure to act on the part of
Tenant or its agents, contractors, workmen, mechanics, suppliers or
invitees.
The Premises shall be deemed substantially completed on (and the Term
Commencement Date shall be) the Occupancy Date.
7.05 Tenants Access to the Premises.
Tenant and Tenant's agents, at Tenant's sole risk, may, with Landlord's
prior consent, enter the Premises prior to the Term Commencement Date in order
to do such work as may be required to make the Premises ready for Tenant's use
and occupancy thereof. If Landlord permits such entry prior to the Term
Commencement Date, such permission shall be conditioned upon Tenant and Tenant's
agents, contractors, workmen, mechanics, suppliers and invitees, working in
harmony with Landlord and the General Contractor and with other tenants and
occupants of the Building and Tenant delivering evidence of insurance required
by this lease. If at any time such entry shall cause or threaten to cause
disharmony or otherwise interfere with the orderly completion or operation of
the Building, Landlord shall have the right to withdraw such permission upon
twenty-four (24) hours written notice to Tenant. Any such entry into and
occupation of the Premises shall be deemed to be under all of the terms,
covenants, conditions and provisions of this Lease except the covenant to pay
Rent. Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's work and installations made in the Premises
or to properties placed therein prior to the Term Commencement Date, the same
being at Tenant's sole risk.
7.06 Alterations and Improvements.
Tenant shall not make Improvements, alterations or additions to the
Premises except in accordance with plans and specifications therefore first
approved by Landlord. Tenant shall not hang shades, curtains, signs, awnings or
other materials, attach any materials to or make any change in the appearance of
any glass visible from outside of the Premises, add any window treatments of any
kind or make improvements, without Landlord's prior written consent. Without
limitation, Landlord shall not be deemed unreasonable for withholding approval
of any alterations or additions which would (a) delay completion of the Premises
or the Building, or (b) require unusual expense to readapt the Premises to
normal office use upon termination of this Lease or increase (i) the cost of (a)
construction or (b) insurance or (ii) Taxes. All Improvements, alterations and
additions shall be part of the Premises unless and until Landlord shall specify
the same for removal in a notice delivered to Tenant on or before the Lease
Termination Date unless otherwise agreed upon by Landlord and Tenant, in
writing, at the time of installation. All of Tenant's Improvements, alterations
and additions and installation of furnishings shall be coordinated with any work
being performed by Landlord and in such manner as to maintain harmonious labor
relations and not to damage the Building or the Premises or interfere with
Building operation and, except for installation of furnishings, shall be
performed by contractors or workers first approved by Landlord. Except for work
done by or through Landlord, Tenant before its work is started shall: secure all
licenses and permits necessary therefor; deliver to Landlord a statement of the
names of all its contractors and subcontractors and the estimated cost of all
labor and material to be furnished by them; and cause each contractor to carry
workmen's compensation insurance in statutory amounts covering all the
contractor's and subcontractor's employees and combined general liability
insurance with limits as Landlord may reasonably require, but in no event less
than $5,000,000.00 and property damage insurance with limits of not less than
$1,000,000.00 and have deductibles of no more than $5,000.00 (all such insurance
to be written in companies approved by Landlord and insuring Landlord and Tenant
as well as the contractors), and to deliver to Landlord certificates of all such
insurance. Tenant agrees to pay promptly when due the entire cost of any work
done in the Premises by Tenant, its agents, employees or independent
contractors, and not to cause or permit any hens therewith to attach to the
Premises and immediately to discharge any such hens which may so attach. All
construction work done by Tenant, its agents, employees or independent
contractors shall be done in a good and workmanlike manner and in compliance
with all Legal Requirements and Insurance Requirements. Landlord may inspect the
work at its option.
ARTICLE 8
Building Services
8.01 Building Services.
Landlord shall furnish, or cause to be furnished, during the Lease Term
the Basic Services.
8.02 Other Janitors.
No Person shall be employed by Tenant to do janitorial work in the
Premises and no Person other than the janitors of the Building shall clean the
Premises unless Landlord shall give its written consent thereto. Any Person
employed by Tenant with Landlord's consent to do janitorial work shall, while in
the Building, either inside or outside the Premises, be subject to and under the
control and direction of the superintendent of the Building (but not as agent or
servant of said superintendent or of Landlord).
8.03 Additional Services.
Tenant will pay the Landlord a reasonable charge for any extra cleaning of
the Premises required because of the negligence of Tenant and for any Additional
Services rendered at the request of Tenant If the cost of cleaning the Premises
shall be increased due to the installation in the Premises, at Tenants request,
of any unique or special materials, finish or equipment, Tenant shall pay the
Landlord an amount equal to such increase in cost. All charges for Additional
Services shall be due and payable within ten (10) days of the date on which they
are billed.
8.04 Limitations on Landlord's Liability
Landlord shall not be liable in damages, nor in default hereunder, for any
failure or delay in furnishing any Basic Service or Additional Service when such
failure or delay is occasioned by Force Majeure or by the act or Default of
Tenant No such failure or delay shall be held or pleaded as eviction or
disturbance in any manner whatsoever of Tenant's possession or give Tenant any
right to terminate this Lease or give rise to any claim for set-off of any
abatement of Rent or of any of Tenant's obligations under this Lease, provided,
however, if Tenant is unable to operate its business for any 24 hour period,
Basic Rent and Additional Rent shall be abated, and if such interruptions
continues for seven (7) consecutive business days, Tenant may, at its election,
terminate this Lease.
ARTICLE 9
Tenant's Particular, Covenants
9.01 Pay Rent
Tenant shall pay when due and without notice, demand, offset or deduction,
all Rent and all charges for utility services rendered to the Premises not
included in Rent and, as Additional Rent, all charges of Landlord for Additional
Services.
9.02 Occupancy of the Premises.
Tenant shall occupy the Premises continuously from the Term Commencement
Date for the Permitted Uses only. Tenant shall not (i) injure or deface the
Premises or the Building, (ii) install any sign in or on any window, demising
wall or Common Area, (iii) permit in the Premises any flammable fluids or
chemicals not reasonably related to the Permitted Uses nor (iv) permit nuisance
or any use thereof which is improper, offensive, contrary to any Legal
Requirement or Insurance Requirement or liable to render necessary any
alteration or addition to the Building.
9.03 Safety.
Tenant shall keep the Premises equipped with all safety appliances
required by Legal Requirements or Insurance Requirements because of any
particular use made by Tenant. Tenant shall procure all Authorizations so
required because of such use and, if requested by Landlord, shall do any work so
required because of such use, it being understood that the foregoing provision
shall not be construed to broaden in any way the Permitted Uses.
9.04 Equipment.
Tenant shall not place a load upon the floor of the Premises exceeding a
live load of 100 pounds per square feet; and shall not move any safe or other
heavy equipment in, about or out of the Premises except in such a manner and at
such a time as Landlord shall in each instance authorize. Tenant shall isolate
and maintain all of Tenant's business machines and mechanical equipment which
cause or may cause air-borne or structure-born vibration or noise, whether or
not it may be transmitted to any other Premises so as to eliminate such
vibration or noise.
9.05 Electrical Equipment.
Tenant shall not, without prior written notice to Landlord in each
instance (i) connect to the Building electric distribution system anything other
than normal office equipment or (ii) operate such equipment on a regular basis
beyond normal Building operating hours. Tenant's use of electrical energy in the
Premises shall not at any time exceed the capacity of any of the electrical
conductors or equipment in or otherwise serving the Premises. Tenant shall not,
without prior written notice to Landlord in each instance, connect to the
Building electric distribution system any fixtures, appliances or equipment
which operate on a voltage in excess of 120 volts nominal or make any alteration
or addition to the electric system of the Premises.
9.06 Pay Taxes.
Tenant shall pay promptly when due all taxes upon personal property
(including, without limitation, fixtures and equipment) in the Premises to
whomsoever assessed.
9.07 Tenant's Covenants.
Tenant will not vacate, abandon or desert the Premises or cause the
Premises to be empty or unoccupied during the Lease Term.
9.08 Maintenance.
Tenant shall, at all times during the Lease Term, and at its own cost and
expense, (i) keep and maintain (or cause to be kept and maintained) the Premises
in good repair and condition (ordinary wear and tear and damage by fire or
casualty only excepted) and (ii) use all reasonable precaution to prevent waste,
damage or injury thereto.
9.09 Redelivery.
On the Lease Termination Date, Tenant shall quit and surrender the
Premises free and clear of all tenants, occupants, hens, and encumbrances
whatsoever except
(i) Permitted Exceptions and (ii) encumbrances, restrictions or
reservations caused by or consented to by Landlord. Tenant shall, subject
to the provisions of Articles 17 and 18 hereof, surrender the Premises to
Landlord broom clean and in good condition and repair (ordinary wear and
tear, damage by fire or casualty only excepted) with all damages
occasioned by Tenant's removal of Tenant's fixtures or equipment repaired
at Tenant's cost to Landlord's satisfaction.
ARTICLE 10
Requirements of Public Authority
10.01 Legal Requirements.
Tenant shall, at its own cost and expense, promptly observe and comply
with all Legal Requirements. Tenant shall pay all costs, expenses, liabilities,
losses, damages, fines, penalties, claims and demands, that may in any manner
arise out of or be imposed because of the failure of Tenant to comply with the
covenants of this Article 10.
10.02 Contests.
Tenant shall have the right to contest by appropriate legal proceedings
diligently conducted in good faith, in the name of the Tenant, or Landlord (if
legally required), or both (if legally required), without cost, expense,
liability or damage to Landlord, the validity or application of any Legal
Requirement and, if compliance with any of the terms of any such Legal
Requirement may legally be delayed pending the prosecution of any such
proceeding, Tenant may delay such compliance therewith until the final
determination of such proceeding.
10.03 Environmental Legal Requirements.
Except to the extent permitted under applicable Legal Requirements, Tenant
agrees not to cause or permit any Hazardous Substances to be released on the
Land or in the Building or the Premises or into the air, or to be introduced
into the sewer or other waste disposal system serving the Premises. Tenant
agrees to generate, store or dispose of Hazardous Substances in the Premises or
dispose of Hazardous Substances from the Premises to any other location only in
compliance with all applicable Legal Requirements and to notify Landlord of any
incident which would require the filing of a notice under any Legal Requirement.
Tenant agrees to provide Landlord with such information required by Governmental
Authorities as Landlord may reasonably request from time to time with respect to
compliance with this Section.
ARTICLE 11
Covenant Against Liens
11.01 Mechanics Liens.
Landlord's right, title and interest in the Premises or the Land or the
Building shall not be subject to or liable for liens of mechanics or material
men for work done on behalf of Tenant in connection with improvements to the
Premises. Notwithstanding such restriction, if because of any act or omission of
Tenant, any mechanic's hen or other hen, charge or order for payment of money
shall be filed against any portion of the Premises or the Land or the Building,
Tenant shall, at its own cost and expense, cause the same to be discharged of
record or bonded within thirty (30) days after the filing thereof.
11.02 Right to Discharge.
Without otherwise limiting any other remedy of Landlord for default
hereunder, if Tenant shall fail to cause such hens to be discharged of record or
bonded within the aforesaid thirty (30) day period or to satisfy such hens
within (30) days after any judgement in favor of such hen holders from which no
further appeal might be taken then Landlord shall have the right to cause the
same to be discharged. All amounts paid by Landlord to cause such hens to be
discharged shall constitute Additional Rent.
ARTICLE 12
Access to Premises
12.01 Access.
Landlord or Landlord's agents and designers shall have the right, but not the
obligation, to enter upon the Premises at all reasonable times with reasonable
advanced notice during ordinary business hours to examine same and to exhibit
the Premises to prospective purchasers and tenants.
ARTICLE 13
Assignment and Subletting: Occupancy Arrangements
13.01 Subletting and Assignment.
Tenant shall have the right, with Landlord's consent, to sublet the whole
or any portion of the Premises for the use and purposes permitted under the
Lease. The person or entity to which the Tenant intends to sublease must be of
equal net worth as Tenant.
If Tenant intends to enter into a Occupancy Arrangement which requires
Landlord's consent, Tenant shall so notify Landlord in writing, stating the name
of (and a financial statement with respect to) the Person whom Tenant intends to
enter into such arrangement and the description of the portion of the Premises
intended to be subject thereto. Within fifteen (15) days of receipt of such
writing, Landlord shall either (i) consent to such Occupancy Arrangement or (ii)
terminate the Lease pertaining to that portion of the Premises Tenant proposes
to sublease.
If the Landlord consents to such Occupancy Arrangement, Tenant shall (i)
enter into such Arrangement within thirty (30) days of Landlord's consent or
comply again with their terms of this Section and (ii) remain liable for the
payment and performance of the terms and covenants of this Lease. If Tenant
enters into such an Arrangement, Tenant shall pay to Landlord one-half (1/2) of
any received the excess, if any, of amounts received in respect of such
Occupancy Arrangement over the Rent.
If Landlord terminates this Lease, all Rent due shall be adjusted as of
the day the Premises (or portion thereof) are redelivered to Landlord. Any
portion of the Premises so redelivered shall be in the condition specified in
Section 7.08 hereof.
ARTICLE 14
Indemnity
14.01 Landlord and Tenant's Indemnity.
To the fullest extent permitted by law, Landlord and Tenant shall defend,
indemnify and save each other harmless from and against any and all liability,
damage, penalties or judgments and from and, against any claims, actions,
proceedings and expenses and costs in connection therewith, including reasonable
counsel fees arising from injury to person or property sustained by anyone in
and about the Premises, by any act or omission of either party, or their
officers, agents, servants, employees, contractors, sublessees or invitees
unless caused by the negligent or intentional acts of Landlord or Tenant or its
others, agents, servants, or employees. Tenant and Landlord shall, at is own
cost and expense, defend any and all suits or actions just or unjust) in which
either party may be impleaded with others upon any above mentioned matter, claim
or claims, except as may result from the acts as set forth in Section 14.02. All
merchandise, furniture, fixtures and property of every kind, nature and
description of either party's employees, agents, contractors, invitees,
visitors, or guests which may be in or upon the Premises, the Land or the
Building during the Lease Term shall be at the sole risk and hazard of Tenant or
Landlord, and that if the whole or any part thereof shall be damaged,
whatsoever, other than by the gross negligence or willful default of Tenant or
Landlord, no part of said damage or loss shall be charged to or borne by either
party.
14.02 Landlord's Liability.
Except for its intentional acts or negligence or the intentional acts or
negligence of its officers, agents, servants, employees or contractors, Landlord
shall not be responsible or liable for any damage or injury to any property,
fixtures, buildings or improvements, or to any person or persons, at any time in
the
Premises, including any damage or injury to Tenant or to any of Tenants
officers, agents, servants, employees, contractors, invitees, customers or
sublessee.
ARTICLE 15
Insurance
15.01 Liability Insurance.
Tenant shall provide or cause to be provided at its expense, and keep in
force during the Lease Term, commercial general liability insurance in a good
and solvent insurance company or companies licensed to do business in the
Commonwealth of Massachusetts, selected by Tenant, and reasonably satisfactory
to Landlord, and in an amount reasonably required by Landlord but in any event
not less than One Million Dollars ($1,000,000.00) with respect to injury or
death to any one person and One Million Dollars ($1,000,000.) with respect to
injury or death to more than one person in any one accident or other occurrence
and One Million Dollars ($1,000,000.00) with respect to damages to property.
Such policy or policies shall include Landlord as an additional insured and have
deductibles of no more than $5,000.00. Tenant agrees to deliver certificates of
such insurance to Landlord as of the date hereof and thereafter not less than
ten (10) days prior to the expiration of any such policy. Such insurance shall
not be cancelable without thirty (30) days' written notice to Landlord.
15.02 Casualty Insurance.
Tenant shall cause its improvements to the Premises to be insured for the
benefit of Landlord and Tenant as their respective interests may appear, against
loss or damage by fire and customary extended coverage in an amount equal to (i)
the replacement value thereof, if insurance in such amount is available, or (ii)
the amount necessary to avoid the effect of coinsurance provisions of the
applicable policies. Certificates thereof shall be delivered to Landlord,
Landlord shall, at Tenant's cost and expense, cooperate fully with Tenant and
execute any and all consents and other instruments and take all other actions
necessary to obtain the largest possible recovery. Landlord shall not carry any
insurance concurrent in coverage and contributing in the event of loss with any
insurance required to be furnished by Tenant hereunder if the effect of such
separate insurance would be to reduce the protection or the payment to be made
under Tenant's insurance.
ARTICLE 16
Waiver of Subrogation
16.01 Waiver of Subrogation.
All insurance policies carried by either party covering the Premises,
including but not limited to contents, fire and casualty insurance but not
including commercial general liability insurance, shall expressly waive any
right on the part of the insurer to make any claim against the other party. The
parties hereto agree that their policies will include such waiver clause or
endorsement
16.02 Waiver of Rights.
Landlord and Tenant each hereby waive all claims, causes of action and
rights of recovery against the other and their respective partners, agents,
officers and employees, for any damage to or destruction of persons, property or
business which shall occur on or about the Premises and shall result from any of
the perils insured under any and all policies of insurance maintained by
Landlord and Tenant, regardless of cause, including the negligence and
intentional wrong doing of either party and their respective agents, officers
and employees but only to the extent of recovery, if any under such policy or
policies of insurance; provided however, that this waiver shall be invalidated
by reason of this waiver.
ARTICLE 17
Damage of Destruction
17.01 Substantial Damage
If the Building or any part thereof shall be damaged by fire or other
casualty to the extent that substantial alteration or reconstruction of the
Building shall, in Landlord's reasonable opinion, be required (whether or not
the Premises shall have been damaged) or if the proceeds of insurance are
required to be used to retire the mortgage debt, Landlord may, at its option,
terminate this Lease by notifying Tenant in writing of such termination within
sixty (60) days after the date of such damage. If this Lease is so terminated,
Rent shall be abated as of the date of such damage.
17.02 Restoration.
If Landlord does not terminate this Lease pursuant to Section 17.01,
Landlord shall, within seventy-five (75) days after receipt by Landlord of the
Proceeds payable in respect of such fire or other casualty, proceed with
reasonable diligence to repair and restore the Building (subject to Force
Majeure) to substantially the same condition in which it was immediately prior
to the occurrence of the casualty to the extent of Landlord's Work and the value
of Landlord's Contribution. Landlord shall not be required to rebuild, repair,
or replace any part of Tenant's furniture, furnishings or fixtures or equipment.
Landlord shall not be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from such damage or the
repair thereof, except that, Landlord shall allow Tenant an abatement of Rent,
Additional Rent and all other charges payable hereunder during the time and to
the extent the Premises are unfit for the operation of Tenant's business. If
such restoration is not completed within one hundred and twenty (120) days after
the prior casualty, Tenant may terminate this Lease after Landlord is in receipt
of all proceeds.
ARTICLE 18
Eminent Domain
18.01 Total Taking.
If the Premises or the Building should be the subject of a Total Taking,
then this Lease shall terminate as of the date when physical possession of the
Building or the Premises is taken by the condemning Governmental Authority.
18.02 Partial Taking.
If there occurs a Partial Taking, Landlord (whether or not the Premises are
affected thereby) may terminate this Lease by giving written notice thereof to
Tenant within sixty (60) days after the right of election accrues, in which
event this Lease shall terminate as of the date the Building or Premises is
taken by the condemning authority. If upon such Partial Taking this Lease is not
terminated, Rent shall be abated by an amount representing that part of the Rent
properly allocable to the portion of the Premises so taken and Landlord shall,
at Landlord's sole expense, restore and reconstruct the Building and the
Premises to substantially their former condition to the extent that the same, in
Landlord's judgement, may be feasible, but such work shall not exceed the scope
of Landlord's Work and the value of Landlord's Contribution. The Landlord shall
have no liability for interruption of Tenant's business. If such restoration is
not completed with one hundred and twenty (120) days after such Partial Taking,
Tenant may terminate this Lease.
18.03. Awards and Proceeds.
All Proceeds payable in respect of Taking shall be the property of
Landlord. Tenant hereby assigns to Landlord all rights of Tenant in or to such
Proceeds, provided that Tenant shall be entitled to separately petition the
condemning authority for a separate award for its moving expenses and trade
fixtures but only if such a separate award will not diminish the amount of
Proceeds payable to Landlord.
ARTICLE 19
Quiet Enjoyment
19.01 Landlord's Covenant.
Provided that an Event of Default has not occurred and is not then
continuing, Tenant shall, subject to the Permitted Exceptions, quietly have and
enjoy the Premises during the Lease Term, without hindrance or molestation from
any Person lawfully claiming by, through or under Landlord. Landlord represents
that it has good and marketable title to the Land, the Building and the
Premises, that the Permitted Use is allowed by law and that the Permitted
Exceptions win not interfere with Tenant's Permitted Use.
19.02 Subordination
This Lease is and shall be subject and subordinate to any mortgage now or
hereafter on the Building and to each advance made or hereafter to be made under
any mortgage, and to all renewals, modifications, consolidations, replacements
and extensions thereof and all substitutions therefore. This Section 19.02 shall
be self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall execute and deliver promptly
(within ten (10) days of receipt) any certificate that Landlord or any mortgagee
may request. In the event that any mortgagee shall succeed to the interest of
Landlord then this Lease shall terminate, or, at the option of such mortgagee,
this Lease shall nevertheless continue in full force and effect and Tenant shall
and does hereby agree to attorn to such mortgagee and to recognize such
mortgagee as its Landlord.
19.03 Notice to Mortgagee.
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of Tenant s
obligations hereunder or to terminate this Lease, shall result in a release or
termination or such obligations or a termination of this Lease unless (i) Tenant
shall have first given written notice of Landlord's act or failure to act to
Landlord's mortgagees of record, whose identity has been furnished to Tenant in
writing, if any, specifying the act or failure to act on the part of Landlord
which could or would give basis to Tenant's rights; and (ii) such mortgagees,
after receipt of such notice, have had the opportunity to cure such default
within the same time period as applicable to Landlord; but nothing contained in
this Section 19.03 shall be deemed to impose any obligation on any such
mortgagees to correct or cure any such condition. "Reasonable time" as used
above shall mean a period of not less than thirty (30) Business Days and shall
include (but not be limited to) a reasonable time to obtain possession of the
Building if the mortgagee elects to do so and a reasonable time to correct or
cure the condition if such condition is determined to exist.
19.04 Other Provisions Regarding Mortgagees.
If this Lease or the Rent due hereunder is assigned to a mortgagee as
collateral security for a loan, no such mortgagee shall be deemed to have
assumed any of Landlord's obligations hereunder solely as a result of said
assignment. A mortgagee to whom this Lease has been so assigned shall be deemed
to have assumed such obligations only if (i) by the terms of the instrument of
assignment such mortgagee specifically elects to assume such obligations or (ii)
such mortgagee has (a) foreclosed its mortgage, (b) accepted a deed in lieu
thereof, or (c) taken possession of the Premises by entry or otherwise. Even if
such mortgagee assumes the obligations of Landlord hereunder, (i) any such
obligation under Section 24.01 to return the Security Deposit to the Tenant
shall be limited to the amount actually received by the mortgagee
with respect thereto, and (ii) such mortgagee will be liable for breaches of any
Landlord's obligations hereunder only to the extent such breaches occur during
the period of ownership by the mortgagee after foreclosure (or any conveyance by
a deed in lieu thereof), all as set forth in Section 25.10. hereof. Tenant may
from time to time, at mortgagees request, be required to provide mortgagee with
certain financial information pertaining to the Tenant as mortgagee may
reasonably request.
ARTICLE 20
Defaults; Events of Default
20.01 Defaults.
The following will (i) if any requirement for notice or lapse of time has
not been met, constitute Defaults, and (ii) if there are no such requirements or
if such requirements have been met, constitute Events of Default
(a) The failure of Tenant to pay Rent when due, and the continuation of
the failure for a period of ten (10) days;
(b) The failure of Tenant to perform any of its obligations under this
Lease, other than its obligation to pay Rent, and the continuation of the
failure for a period of twenty (20) days after notice form Landlord
specifying in reasonable detail the nature of the failure;
(c) The failure of Tenant to pay Rent when due or to perform any of its
obligations under this Lease, if Landlord has given Tenant notice of the
same or similar failure at least three times during the term proceeding
the date on which the Rent or performance was due.
(d) The occurrence with respect to Tenant or any Guarantor of one or more
of the following events: the death, dissolution, termination of existence
(other than by merger or consolidation), insolvency, appointment of a
receiver for an or substantially all of its property, the making of a
fraudulent conveyance or the execution of an assignment or trust mortgage
for the benefit of creditors by it, or the filing of a petition of
bankruptcy or the commencement of any proceedings by or against it under a
bankruptcy, insolvency or other law relating to the relief or the
adjustment of indebtedness, rehabilitation or reorganization of debtors;
provided that if such petition or commencement is involuntarily made
against it and is dismissed within sixty (60) days of the date of such
filing or commencement, such events will not constitute an Event of
Default;
(e) The issuance of any execution or attachment against Tenant or any
other occupant of the Premises as a result of which the Premises are taken
or occupied by a Person other than Tenant; and
(f) The cancellation of, refusal to review or denial of liability under
any insurance policy relating to the Premises as a result of the Premises
being unoccupied.
20.02 Tenant's Best Efforts.
In the event that the Default of which Landlord gives notice is of such a
nature that it cannot be cured within such twenty (20) day period, then such
Default shall not be deemed to be an Event of Default so long as Tenant, after
receiving such notice, proceeds to cure the Default as soon as reasonably
possible and continues to take all steps necessary to complete the same within a
period of time which, under all prevailing circumstances, shall be reasonable.
No Default shall be deemed to be an Event of Default if and
so long as Tenant shall be so proceeding to cure the same in good faith or be
delayed in or prevented from curing the same by reason of Force Majeure.
20.03 Tenant's Default - Rent Abatement Cancellation.
If an Event of Default occurs at any time during the term of this Lease,
Landlord shall have the option of retracting the full rent abatement, if any,
and Tenant shall pay the full abated amount immediately to Landlord upon demand.
ARTICLE 21
Bankruptcy or Insolvency
21.01
In the event that Tenant shall become a debtor under the Bankruptcy Code, and
the trustee or Tenant shall elect to assume this Lease for the purposes of
assigning the same or otherwise, such election and assignment may only be made
if all the terms and conditions of Sections 21.02 and 21.03 hereof are
satisfied. If such trustee shall fail to elect to assume this Lease within sixty
(60) days after the filing of the petition, this Lease shall be deemed to have
been rejected. Landlord shall be thereupon immediately entitled to possession of
the Premises without further obligation to Tenant or the trustee, and this Lease
shall be terminated, but the Landlord's right to be compensated for damages both
at law and as provided in ARTICLE 20 hereof in such case shall survive.
21.02
A. No election by the trustee or debtor-in-possession to assume this lease,
whether under Chapter 7, 11 or 13 of the Bankruptcy Code, unless otherwise
ordered by the Bankruptcy Court, shall be effective unless each of the following
conditions, which Landlord and Tenant acknowledge and agree are commercially
reasonable in the context of a bankruptcy case of Tenant, have been satisfied,
and Landlord has so acknowledged in writing:
(1) The trustee or the debtor-in-possession has cured, or has provided
Landlord adequate assurance (as hereinafter defined) that:
(a) Within ten (10) days from the date of such assumption, the trustee will
cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption, the trustee will
cure all nonmonetary defaults under this Lease.
(2) The trustee or debtor-in-possession has compensated, or has provided to
Landlord adequate assurance (as hereinafter defined) that within ten (10)
days from the date of assumption, Landlord will be compensated for any
pecuniary loss incurred by Landlord arising from the default of Tenant,
trustee, or the debtor-in possession as recited in Landlord's written
statement of pecuniary loss sent to the trustee or debtor-in-possession.
(3) The trustee or the debtor-in-possession has provided Landlord with adequate
assurance (as hereinafter defined) of the future performance of each of Tenant's
the trustee's or debtor-in possession's obligations under this Lease, Provided,
however, that:
(a) Whether or not otherwise required by the terms of this Lease, the trustee or
debtor-in-possession shall also pay in advance on the date minimum rent is
payable hereunder, one twelfth (1/12th) of Tenant's annual obligations under
this Lease for Operating Expenses, Taxes, and any other charges payable
hereunder;
(b) From and after the date of the assumption of this Lease, the trustee
or debtor-in possession shall pay as annual minimum rent the amount equal to the
sum of the annual minimum rent otherwise payable hereunder; and
(c) The obligations imposed upon the trustee or debtor-in-possession under
this Lease shall continue with respect to Tenant or any assignee of this Lease
after the completion of the bankruptcy case, subject to any further and/or
increased obligations, which thereafter are imposed by any provisions of this
Lease.
(4) The assumption of this Lease will not breach any provision in this Lease or
any other lease, mortgage, financing agreement or other agreement by which
Landlord is bound relating, to the Building.
(5) The assumption has been ratified and approved by order of such court or
courts as have jurisdiction under the Bankruptcy Code.
B. For the purposes of this Section 21.02, Landlord and Tenant acknowledge that,
in the context of a bankruptcy proceeding of Tenant, at a minimum, "adequate
assurance" shall mean (unless otherwise determined by the Bankruptcy Court):
(1) The trustee or debtor-in-possession has and will continue to have sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the trustee or
debtor-in-possession will have sufficient funds to fulfill the obligations of
Tenant under this Lease; and
(2) The Bankruptcy Court or such court as is exercising jurisdiction over the
Bankruptcy Code shall have entered an order segregating sufficient cash payable
to Landlord and/or the trustee or debtor-in-possession, acceptable as to value
and kind to the Landlord, to secure to Landlord the obligation of the trustee or
debtor-in-possession to cure any monetary and/or nonmonetary defaults under this
Lease within the time periods set forth above.
Section 21.03
If the trustee or debtor-in-possession has assumed this Lease pursuant to the
terms and provisions of Section 21.01 and 21.02 hereof, for the purpose of
assigning (or elects to assign) Tenant's interest under this Lease, or the
estate created thereby, to any other person, such interest or estate may be so
assigned only if Landlord shall acknowledge in writing that the intended
assignee has provided adequate assurance of the future performance (as defined
in this Section 21.03) of all the terms, covenants and conditions of this Lease
to be performed by Tenant.
For the purposes of this Section 21.03, Landlord and Tenant acknowledge that, in
the context of a bankruptcy case of Tenant, at a minimum, "adequate assurance of
future performance" shall mean (unless otherwise determined by the Bankruptcy
Court) that each of the following conditions have been satisfied, and Landlord
has so acknowledged in writing:
(1) The assignee has submitted a current financial statement audited by a
certified public accountant which shows a net worth and working capital in
amounts (which amounts shall in no event be less than the greater those of
Tenant and any guarantor of Tenant's obligations hereunder at the time of the
execution of this lease) determined to be sufficient by Landlord to assure the
future performance of such assignee of Tenant's obligations under this Lease;
(2) Landlord has obtained all consents and waivers from any third party required
under any lease, mortgage, financing arrangement or other agreement by which
Landlord is bound to permit Landlord to consent to such assignment;
(3) The assignee has supplied such additional information requested by Landlord
and has complied with any other provisions, conditions and requirements set
forth in this Lease for an assignment of Tenant's interest in this Lease or the
estate created thereby; and
(4) The Assignee has deposited with Landlord a security deposit in such amount
as determined by Landlord to be appropriate based upon the financial information
supplied under this Section 21.03.
Section 21.04
When, pursuant to the Bankruptcy Code, the trustee or debtor-in-possession
shall be obligated to pay reasonable use and occupancy charges for the use of
the Premises or any portion thereof, such charges shall not be less than the
Rent and any other charges payable by Tenant hereunder unless otherwise
determined by the Bankruptcy Court.
Section 21.05
The rights and remedies of the Landlord contained in the provisions of
this ARTICLE 21 are and shall be deemed to be in addition to, and not in
limitation of, applicable provisions of ARTICLE 20 and ARTICLE 22 and other
provisions hereof, or any other rights which the Landlord may have under
applicable statutory or case law. Whenever any of the terms or provisions of
this Lease, including, without limitation, rental obligations, are modified
pursuant to the provisions of this ARTICLE 21, upon Landlord's request the
parties hereto promptly shall execute, acknowledge and deliver a written
instrument evidencing and confirming the same. In no event shall this Lease, if
the term hereof has expired or has been terminated in accordance with the
provisions hereof, be revived, and no stay or other proceeding shall nullify,
postpone or otherwise affect the expiration or earlier termination of the term
of this Lease pursuant to the provisions of ARTICLE 20 and ARTICLE 22 hereof or
prevent Landlord from regaining possession of the Premises thereupon.
ARTICLE 22
Landlord's Remedies; Damages on Default
22.01 Landlord's Remedies.
If an Event of Default shall occur and be continuing, Landlord may, at its
option, give to Tenant a notice terminating this Lease upon a date specified in
such notice, which date shall be not less than three (3) Business Days after the
date of receipt by Tenant of such notice from Landlord, and upon the date
specified in said notice, the term and estate hereby vested in Tenant shall
cease and any and all other right, title and interest of Tenant hereunder shall
likewise cease without further notice or lapse of time, as fully and with like
effect as if the entire Lease Term had elapsed, but Tenant shall continue to be
liable to Landlord as hereinafter provided.
If such Event of Default results from Tenants failure to pay Tenant's Cost as
required by Section 7.01 hereof and the Work Letter, Landlord may, at its
option, in addition to or in lieu of the other remedies available to Landlord,
refuse Tenant access to the Premises. In such event the Term Commencement Date
shall be the earlier of (i) the date determined in accordance with Section 7.04
or (ii) the Substantial Completion Date.
If such Event of Default results from Tenant's failure to pay a charge for
an Additional Service pursuant to Section 8.03 hereof, Landlord may, without
further notice to Tenant, discontinue any or all of such Additional Services.
If an Event of Default shall occur and be continuing, Landlord shall be
relieved of its undertakings under Article 13 hereof.
22.02 Surrender.
Upon any termination of this Lease as the result of an Event of Default,
Tenant shall quit and peacefully surrender the Premises to Landlord, upon or at
any time after any such termination, Landlord may without further notice enter
the Premises and possess itself thereof by summary proceedings or otherwise, any
may dispossess Tenant and remove Tenant and all other Persons and property from
the Premises and may have, hold and enjoy the Premises and the right to receive
all rental income of and from the same.
22.03 Right to Relet.
At any time from time to time after any such termination, Landlord may
relet the Premises or any part thereof, in the name of Landlord or otherwise,
for such terms or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the Lease Term) and on such
conditions (which may include concessions or free rent) as Landlord, in its
reasonable discretion, may determine and may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure to
relet the Premises or any part thereof, or for any failure to collect any rent
due upon any such reletting. Landlord shall use reasonable efforts to relet the
Premises and mitigate damages.
22.04 Survival of Covenants.
No such termination of this Lease shall relieve Tenant of its liability
and obligations under this Lease and such liability and obligations shall
survive any such termination. Tenant shall indemnify and hold Landlord harmless
from all loss, cost, expense, damage or liability arising out or in connection
with such termination.
In the event of any such termination, Tenant shall pay to the Landlord the
Rent up to the date of such termination. Tenant shall also pay to Landlord, on
demand, as and for liquidated and agreed damages for Tenant's Default, the
difference between
(1) the aggregate Rent which would have been payable under this Lease by
Tenant from the date of such termination until the Stated Expiration
Date, less
(2) the fair and reasonable rental value of the Premises for the same
period discounted to present value, excluding all of Landlord's
reasonable estimate of expenses to be incurred in connection with
reletting the Premises, including, without limitation, all repossess
costs, brokerage commission, legal expenses, reasonable attorney's
fees, alteration costs, and expenses of preparation for such
reletting.
If the Premises or any part thereof are relet by the Landlord before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be, prima facie,
the fair and reasonable rental value for the part or the whole of the Premises
so relet during the term of the reletting.
Nothing herein contained shall limit or prejudice the right of the
Landlord to prove and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute of rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
22.05 Right to Equitable Relief.
If there shall occur a Default or threatened Default, Landlord shall be
entitled to enjoin such Default or threatened Default and shall have the right
to invoke any right and remedy allowed at law or in equity or by statute or
otherwise as though re-entry, summary proceedings, and other remedies were not
provided for in this Lease.
22.06 Right to Self Help; Interest on Overdue Rent.
If an Event of Default shall occur and be continuing, Landlord shall have
the right, but shall not be obligated, to enter upon the Premises and to perform
such obligation notwithstanding the fact that no specific provision for such
substituted performance by Landlord is made in this Lease with respect to such
Default In performing such obligation, Landlord may make any payment of money or
perform any other act. The aggregate of (i) all sums so paid by Landlord, (ii)
interest (at the rate of 11/2% per month or the highest rate permitted by law,
whichever is less) on such sum plus all Rent not paid when due and (iii) all
necessary incidental costs and expenses in connection with the performance of.
any such act by Landlord,. shall be deemed to be Rent under this Lease and shall
be payable to Landlord immediately upon demand. Landlord may exercise the
foregoing rights without waiving any other of its rights or releasing Tenant
from any of its obligations under this Lease.
22.07 Intentionally Deleted
ARTICLE 23
Waivers
23.01 No Waivers.
Failure of Landlord to complain of any act or omission on the part of
Tenant no matter how long the same may continue, shall not be deemed to be a
waiver by Landlord of any of its rights hereunder. No waiver of any provision of
this Lease shall be deemed a waiver of a breach of the same or any other
provision. No acceptance by Landlord of any partial payment shall constitute an
accord or satisfaction but shall only be deemed a partial payment on account.
ARTICLE 24
Security Deposit
24.01 Security Deposit
Tenant has deposited the Security Deposit with Landlord. Landlord shall
hold the Security Deposit as security for the full and faithful payment or
performance by Tenant of its obligations under this Lease and not as a
prepayment of Rent. Landlord may commingle the Security Deposit with other funds
of Landlord but shall not be liable to Tenant for the payment of interest
thereon or profits therefrom. Landlord may expend such amounts from the Security
Deposit, including legal fees, as may be necessary to cure any Default and, in
such case, Tenant shall pay to Landlord the amount so expended, on demand, after
written notice from Landlord specifying the application of the spent funds.
Landlord shall assign the Security Deposit to any subsequent owner of the
Building and thereafter Landlord shall have no further liability to Tenant with
respect thereto.
ARTICLE 25
General Provisions
25.01 Force Majeure.
In the event that Landlord or Tenant shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of Force
Majeure, then performance of such act shall be excused for the period of the
delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay.
25.02 Notices and Communications.
All notices, demands, requests and other communications provided for or
permitted under this Lease shall be in writing, either delivered by hand or sent
by certified mail, postage prepaid, to the following address:
(a) if to Landlord at the address stated in Section 1.01 hereof, or at
such other address as the Landlord shall have designated in writing to the
Tenant, with a copy to such Persons as Landlord shall have designated in
writing to Tenant, or
(b) if to Tenant at the address stated in Section 1.01 hereof, or at such
other address as the Tenant shall have designated in writing to the
Landlord, with a copy to such Persons as Tenant shall have designated in
writing to Landlord.
Any notice provided for herein shall become effective only upon and at the
time of receipt by the Person to whom it is given, unless such notice is mailed
by first-class registered or certified mail, in which case it shall be deemed to
be received on (i) the third Business Day following the mailing thereof or (h)
the day of its receipt, if a Business Day, or the next succeeding Business Day,
whichever of (i) or (ii) shall be the earlier.
25.03 Certificates, Estoppel Letter.
Either party shall, without charge, at any time and from time to time
hereafter, within ten (10) days after written request of the other, certify by
written instrument duly executed and acknowledged to any mortgagee or purchaser,
or proposed mortgagee or proposed purchaser, or any Person specified in such
request; (a) as to whether this Lease has been supplemented or amended, and if
so, the substance and manner of such supplement or amendment, (b) as to the
validity and force constituted, (c) as to the existence of any Default or Event
of Default, (d) as to the existence of any offsets, counterclaims or defenses
thereto on the part of such other party, (e) as to the Term Commencement Date
and Stated Expiration Date, and (f) as to any other matters as may reasonably be
so requested. Any such certificate may be relied upon by the party requesting it
and any other Person to whom the same may be exhibited or delivered, and the
contents of such certificate shall be binding on the party executing same.
Tenant shall in addition, within 5 Business Days of the Term
Commencement Date, execute and deliver to Landlord a tenant estoppel letter
substantially in the form attached hereto as Exhibit A.
25.04 Renewal.
If this Lease is renewed or extended the provisions of Sections 7.01,
7.02, 7.03, 7.04, and 7.05 of Article 7 hereof shall not apply.
25.05 Governing Law.
This Lease and the performance thereof shall be governed, interpreted,
construed and regulated by the laws of the Commonwealth of Massachusetts.
25.06 Partial Invalidity.
If any term, covenant, condition or provision of this Lease or the
application thereof to any person or circumstance shall, at any time or to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which is held invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
25.07 Notice of Lease.
The parties will at any time, at the request of either one, promptly
execute duplicate originals of an instrument, in recordable form, which will
constitute a Notice of Lease, setting forth a description of the Premises, the
Lease Term and any other portions thereof, excepting the rental provisions, as
either party may request Cost of review and recording to be borne by Tenant.
25.08 Interpretation; Consents.
The section headings used herein are for reference and convenience only,
and shall not enter into the interpretation hereof. This Lease may be executed
in several counterparts, each of which shall be an original, but all of which
shall constitute one and the same instrument. The term "Landlord" whenever used
herein, shall mean only the owner at the time of Landlord's interest herein, and
shall upon any sale or assignment (other than as collateral security for a loan)
of the interest of Landlord herein, its respective successors in interest and/or
assigns shall, during the term of ownership of its respective estates herein, be
deemed to be Landlord and the liability of Landlord, if any, hereunder shall in
any event be limited to the Landlord's interest in the Building.
Subject to the provisions of the third sentence of Section 7.06 and except
for the consents of Landlord required pursuant to the second sentence of Section
7.06 and Article 13 hereof, consents or approvals required or requested of
either Landlord or Tenant shall not be unreasonably withheld or delayed.
25.09 Parties.
Except as herein otherwise expressly provided, the covenants, conditions
and agreements contained in this Lease shall be binding upon the heirs,
successors and assigns of the parties hereto.
25.10 Waiver of Trial by Jury.
Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other upon any matters
whatsoever arising out of or in any way connected with this Lease, Tenants use
or occupancy of the Premises and/or claim of injury or damage.
25.11 Time of the Essence.
It is agreed that time is of the essence of this Lease.
ARTICLE 26
Miscellaneous
26.01 Option to Extend.
Tenant has the option to extend the Lease Term for one additional
period(s) of five (5) year(s) each by giving Landlord written notice of its
intent to exercise at least nine (9) months before the end of the then current
Lease Term. If no Event of Default exists when notice is given and does not
occur during the current Lease Term, this Lease will be extended without a
written amendment and the Premises will be considered to have been leased by
Landlord to Tenant for an additional period of five year(s) beginning
immediately after the end of the current Lease Term upon the same terms except
that (a) Basic Rent will be fair market value for comparable buildings in the
area but not to be less than the rent paid during the last lease year of the
initial term.
26.02 Extended Hours HVAC.
The Building HVAC shall be provided by an energy efficient heat pump
system with a minimum of ten (10) zones per floor. After hours usage shall be at
Tenant's expense, but shall not exceed $25.00/hour, with a four (4) hour minimum
usage. Building hours shall be M-F 6:00 am to 7:00 PM, and Saturday from 8:00 am
to 12:00 PM. Tenant, at its own cost and expense, shall have the right to
install supplemental air conditioning units within its Premises. Tenants request
for extended hours HVAC must be submitted to Landlord's representative in
writing 24 hours in advance.
26.03 Holdover Clause
In the event Tenant fails to vacate the Premises by the Lease Termination
Date, Tenant hereby agrees to pay Landlord fifteen (15%) percent the monthly
rental rate. The "Holdover Rental Rate" shall be paid monthly in advance to
Landlord. In determining the "Holdover Rental Rate" Landlord shall charge two
(2) times the gross monthly for the last full calendar month under the lease. In
addition to the "Holdover Rental Rate", Landlord shall be entitled to seek to
recover full damages sustained as a result of said holdover.
26.04 Relocation
Landlord reserves the right to relocate tenant to a similar space within
the building or a comparable space in another building within the local area at
Landlord's cost.
26.06 Parking
Tenant shall have parking ratio of 4 cars per 1,000 rentable square feet
on an unreserved basis and free of charge.
26.07 Signage
Tenant shall have signage/ identification on the interior tenant directory
and on the Tenant entry door. All signage to be building standard. All signage
to be provided by the Landlord at Landlords expense.
26.08 Option to Terminate
If Tenant (1) needs additional office space and Landlord cannot provide
such space in one of its facilities which is within five (5) miles of the
building or (2) decides to close its Massachusetts office., then, provided (i)
that Tenant is not, at the date of the exercise of the option granted hereby or
at the date of the relevant termination, in default of its obligations under
this Lease beyond any applicable period of notice and grace, and (ii) that
Tenant has not assigned this Lease or sublet the Premises, so that the original
Tenant named herein remains in occupancy of the Premises, that Tenant shall have
the right, on the date which is forty-two (42) months after the Term
Commencement Date (the "Termination Date"), to terminate this Lease by Tenant
giving Landlord notice (the Termination Notice") of its intention so to
terminate, which notice shall not be less than one hundred and eighty days (180)
prior to the Termination Date. If Tenant
exercises its termination option as aforesaid, then this Lease shall terminate
as of the Termination Date without further liability on the part of either
Landlord or tenant, provided, however, that Tenant shall pay to Landlord, as a
condition to the effectiveness of the Termination Notice, a payment (the
"Termination Payment") equal to six (6) months of the then Basic Rent. One half
of said Termination Payment shall be due with the Termination Notice and
one-half due on the Termination Date. If Tenant does not elect to exercise the
Option to Terminate on the Termination Date, then the Option to Terminate shall
expire and cannot be excised on a later date. If Tenant exercises this Option to
Terminate because of its intention to close its Massachusetts office then the
actual closing date, of the office, must be the same as the Termination Date of
this Lease. If Tenant exercises this Termination Option because Tenant requires
additional office space and Landlord cannot provide the additional space, then
Tenant must enter into a lease, for the required larger space, at another
location under the same terms and conditions as its current Lease except that
the Demised Premises and Basic Rent may be more than the then Basis Rent
required under this Lease Agreement.
ARTICLE 27
Entire Agreement
27.01 Entire Agreement.
No oral statement or prior written matter shall have any force or effect
This Agreement shall not be modified or canceled except by writing subscribed to
all parties.
No Representations, inducement, promises or agreements, oral or otherwise,
between Landlord and Tenant or any of their respective brokers, employees or
agents, not embodied herein, shall be of any force or effect
Executed as a sealed instrument as of the 1st day of July, 1999.
LANDLORD
2200 West Park Realty Trust
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx, Trustee
TENANT
Osicom. Technologies, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
VP Finance and Operations
INDEX
EXHIBITS
Exhibit A: TENANT ESTOPPEL CERTIFICATE AND SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Exhibit B: PLAN SHOWING TENANT'S SPACE
Exhibit C: SERVICES BY LANDLORD
Exhibit D: RULES AND REGULATIONS
Exhibit E: LANDLORD'S WORK
Exhibit F: CERTIFICATE OF VOTE
