STANDARD LEASE 201-207 South Street Boston, Massachusetts
STANDARD
LEASE
000-000
Xxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx
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LANDLORD:
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Essex
River Ventures, Inc.
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TENANT:
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Zoom
Telephonics, Inc.
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PREMISES:
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Agreed
to be approximately 25,200 rentable square feet of that certain Building
known as 000-000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx and more particularly
described in Exhibit A to this Lease
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DATED:
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As
of December 22, 2006
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TABLE
OF
CONTENTS
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ARTICLE
CAPTION
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I.
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BASIC
LEASE PROVISIONS
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1
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1.1
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Introduction
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1
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1.2
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Basic
Data
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1
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1.3
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Additional
Definitions
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2
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II.
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PREMISES
AND APPURTENANT RIGHTS
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4
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2.1
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Lease
of Premises
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4
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2.2
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Appurtenant
Rights and Reservations
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4
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III.
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BASIC
RENT
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5
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3.1
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Payment
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5
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IV.
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COMMENCEMENT
AND CONDITION
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5
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4.1
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Commencement
Date
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5
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4.2
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AS
IS Condition
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5
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4.3
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General
Construction Provisions
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6
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V.
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USE
OF PREMISES
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6
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5.1
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Permitted
Use
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6
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5.2
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Installation
and Alterations by Tenant
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6
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VI.
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ASSIGNMENT
AND SUBLETTING
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8
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6.1
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Prohibition
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8
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VII.
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RESPONSIBILITY
FOR REPAIRS AND CONDITIONS OF PREMISES; SERVICES TO BE FURNISHED
BY
LANDLORD
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11
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7.1
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Landlord
Repairs
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11
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7.2
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Tenant's
Agreement
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11
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7.3
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Floor
Load - Heavy Machinery
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12
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7.4
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Building
Services
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13
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7.5
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Electricity
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13
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7.6
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Interruption
of Essential Services
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14
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VIII.
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REAL
ESTATE TAXES
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15
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8.1
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Payments
on Account of Real Estate Taxes
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15
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8.2
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Abatement
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15
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8.3
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Alternate
Taxes
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16
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IX.
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OPERATING
EXPENSES
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16
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9.1
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Definitions
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16
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9.2
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Tenant's
Payments
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17
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X.
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INDEMNITY
AND PUBLIC LIABILITY INSURANCE
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18
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10.1
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Tenant's
Indemnity
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18
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10.2
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Public
Liability Insurance
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18
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10.3
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Tenant's
Risk
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18
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10.4
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Injury
Caused by Third Parties
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19
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XI.
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LANDLORD'S
ACCESS TO PREMISES
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19
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11.1
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Landlord's
Rights
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19
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XII.
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FIRE,
EMINENT DOMAIN, ETC.
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19
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12.1
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Abatement
of Rent
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19
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12.2
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Landlord's
Right of Termination
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20
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12.3
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Restoration
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20
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12.4
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Award
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20
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XIII.
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DEFAULT
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21
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13.1
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Tenant's
Default
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21
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13.2
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Landlord's
Default
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23
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XIV.
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MISCELLANEOUS
PROVISIONS
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24
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14.1
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Extra
Hazardous Use
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24
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14.2
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Waiver
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24
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14.3
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Covenant
of Quiet Enjoyment
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24
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14.4
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Landlord's
Liability
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24
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14.5
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Notice
to Mortgagee or Ground Lessor
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25
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14.6
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Assignment
of Rents and Transfer of Title
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25
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14.7
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Rules
and Regulations
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26
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14.8
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Additional
Charges
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26
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14.9
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Invalidity
of Particular Provisions
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26
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14.10
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Provisions
Binding, Etc.
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26
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14.11
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Recording
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26
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14.12
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Notices
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27
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14.13
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When
Lease Becomes Binding
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28
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14.14
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Paragraph
Headings
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28
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14.15
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Rights
of Mortgagee or Ground Lessor
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28
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14.16
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Estoppel
Certificate
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29
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14.17
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Security
Deposit
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29
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14.18
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Remedying
Defaults
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30
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14.19
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Holding
Over
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30
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14.20
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Waiver
of Subrogation
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30
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14.21
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Surrender
of Premises
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30
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14.22
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Intentionally
Deleted
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30
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14.23
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Brokerage
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31
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14.24
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Special
Taxation Provisions
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31
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14.25
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Hazardous
Materials
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31
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14.26
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Governing
Law
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33
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14.27
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Independent
Covenant
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33
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14.28
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Survival
Provision
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33
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-ii-
LEASE
Preamble
THIS
INSTRUMENT IS A LEASE, dated as of December 22, 2006 in which the Landlord
and
the Tenant are the parties hereinafter named, and which relates to space located
in those certain buildings known and numbered as 000-000 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (hereafter collectively called the "Building"). The parties to
this instrument hereby agree with each other as follows:
ARTICLE
I
BASIC
LEASE PROVISIONS
1.1 INTRODUCTION.
The
following terms and provisions set forth basic data and, where appropriate,
constitute definitions of the terms hereinafter listed:
1.2 BASIC
DATA.
| Landlord: | Essex River Ventures, Inc. |
| a Massachusetts corporation |
Landlord's
Original Address:
c/o
Essex
River Management, Inc.
000
Xxxxxx Xxxxxx - 7th Floor
Xxxxxx,
Xxxxxxxxxxxxx 00000
| Tenant: | Zoom Telephonics, Inc., a Delaware corporation |
Tenant's
Original Address:
000
Xxxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Guarantor:
None
Basic
Rent:
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Lease
Year
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Basic
Rent
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Monthly
Payment
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|||||
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1
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$
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403,200.00
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$
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33,600.00
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2
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$
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403,200.00
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$
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33,600.00
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Base
Taxes: Taxes for the fiscal year July 1, 2006 through and including June 30,
2007, as the same may be abated.
Base
Operating Expenses: Operating Expenses for the calendar year ending December
31,
2007.
Base
Utility Expenses: Utility Expenses for the calendar year ending December 31,
2007.
Premises
Rentable Area: Agreed to be approximately 25,200 rentable square
feet.
Permitted
Uses: General Office, but specifically excluding any use which would cause
any
portion of the Premises to be deemed a "place of public accommodation" as
defined in the Americans with Disabilities Act of 1990, as amended (the
"ADA").
Escalation
Factor: 44.97%, as computed in accordance with the Escalation Factor
Computation.
Initial
Term: Two (2) years commencing on the Commencement Date and expiring at the
close of the day immediately preceding the second (2nd) year anniversary of
the
Commencement Date, except that if the Commencement Date shall be other than
the
first day of a calendar month, the expiration of the Initial Term shall be
at
the close of the day on the last day of the calendar month on which such
anniversary date shall fall.
Security
Deposit: $67,200.00 (subject to Landlord's determination upon its review and
approval of Tenant's financial information).
1.3 ADDITIONAL
DEFINITIONS.
Manager:
Essex River Management, Inc. or such other managing representative designated
by
Landlord as the Manager from time to time.
Building
Rentable Area: Agreed to be approximately 58,983 rentable square
feet.
Business
Days: All days except Saturday, Sunday, New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day
(and
the following day when any such day occurs on Sunday).
Commencement
Date: As defined in Section 4.1.
Default
of Tenant: As defined in Section 13.1.
Escalation
Charges: The amounts prescribed in Sections 8.1 and 9.2.
-2-
Escalation
Factor Computation: Premises Rentable Area divided by 95% of the Building
Rentable Area.
Force
Majeure: Collectively and individually, strike or other labor trouble, fire
or
other casualty, governmental preemption of priorities or other controls in
connection with a national or other public emergency or shortages of, or
inability to obtain, fuel, supplies or labor resulting therefrom, or any other
cause, whether similar or dissimilar, beyond Landlord's reasonable
control.
Initial
Public Liability Insurance: $3,000,000 (per occurrence) primary liability and
$5,000,000 (per occurrence) excess liability (combined single limit) for bodily
injury, death and property damage, such policies to be written with companies
approved by Landlord and having a Best's Insurance Rating of A- or better with
a
Financial Rating of X.
Lease
Year or lease year: Each consecutive 12 calendar month period immediately
following the Commencement Date, but if the Commencement Date shall fall on
other than the first day of a calendar month, then such term shall mean each
consecutive twelve calendar month period commencing with the first day of the
first full calendar month following the calendar month in which the Commencement
Date occurs, however, the first lease year shall include any partial month
between the Commencement Date and the first day of the first full calendar
month
immediately following the Commencement Date.
Operating
Expenses: As set forth in Section 9. 1.
Operating
Year: As defined in Section 9.1.
Premises:
A portion of the Building shown on Exhibit A annexed hereto.
Property:
The Building and the land parcel on which it is located (including any parking
areas, driveways, adjacent sidewalks and any other building and improvements
thereon) and the land parcel on which the parking area is located (including
any
driveways and adjacent sidewalks thereon).
Rent
Commencement Date: As defined in Section 3.1.
Tax
Year:
As defined in Section 8.1.
Taxes:
As
determined in accordance with Section 8. 1.
Tenants
Removable Property: As defined in Section 5.2.
Term
of
this Lease: The Initial Term and any extension thereof in accordance with the
provisions hereof.
Utility
Expenses: As defined in Section 9.1.
-3-
Exhibits:
The following Exhibits are annexed to this Lease and incorporated herein by
this
reference:
Exhibit
A
- Plan
showing Premises
Exhibit
B
- Intentionally
Omitted
Exhibit
C
- Rules
and
Regulations
Exhibit
D
- Intentionally
Omitted
Exhibit
E
- Operating
Expenses
Exhibit
F
- Cleaning
Services
ARTICLE
II
PREMISES
AND APPURTENANT RIGHTS.
2.1 LEASE
OF PREMISES.
Landlord
hereby demises and leases to Tenant for the Term of this Lease and upon the
terms and conditions hereinafter set forth, and Tenant hereby accepts from
Landlord, the Premises. Landlord and Tenant acknowledge and agree that the
Premises consists of space located on the fourth (4th) and fifth (5th) floors
of
000 Xxxxx Xxxxxx and the third (3rd), fourth (4th) and fifth (5th) floors of
000
Xxxxx Xxxxxx .
2.2 APPURTENANT
RIGHTS AND RESERVATIONS.
(a)
Tenant shall have, as appurtenant to the Premises, the non-exclusive right
to
use, and permit its invitees to use in common with others, public or common
lobbies, hallways, elevators, and common walkways necessary for access to the
Building, and if the portion of the Premises on any floor includes less than
the
entire floor, the common toilets, corridors and elevator lobby of such floor;
but Tenant shall have no other appurtenant rights and all such rights shall
always be subject to reasonable rules and regulations from time to time
established by Landlord pursuant to Section 14.7 and to the right of Landlord
to
designate and change from time to time areas and facilities so to be used.
Notwithstanding the foregoing to the contrary, Tenant shall have the exclusive
right to use one (1) tandem parking space (to accommodate two (2) automobiles)
behind the South Street Diner.
(b)
Excepted
and excluded from the Premises are the ceiling, floor, perimeter walls and
exterior windows, except the inner surfaces thereof, but the entry doors (and
related glass and finish work) to the Premises are a part thereof; and Tenant
agrees that Landlord shall have the right to place in the Premises (but in
such
manner as to reduce to a minimum interference with Tenant's use of the Premises)
interior storm windows, subcontrol devices (by way of illustration, an electric
sub panel, etc.), utility lines, pipes, equipment and the like, in, over and
upon the Premises. Tenant shall install and maintain, as Landlord may require,
proper access panels in any hung ceilings or walls as may be installed by Tenant
in the Premises to afford access to any facilities above the ceiling or within
or behind the walls.
-4-
ARTICLE
III
BASIC
RENT
3.1 PAYMENT.
(a)
Tenant agrees to pay to Landlord, or as directed by Landlord, commencing on
December 22, 2006 (the "Rent Commencement Date"), which is the "Closing Date"
under the "Purchase and Sale Agreement" (as said term is hereinafter defined)
without offset, abatement, deduction or demand, the Basic Rent plus Landlord’s
estimated amounts for Escalation Charges. Such Basic Rent plus Landlord’s
estimated amounts for Escalation Charges shall be payable in equal monthly
installments, in advance, on the first day of each and every calendar month
during the Term of this Lease, at Landlord's Original Address, or at such other
place as Landlord shall from time to time designate by notice to Tenant, in
lawful money of the United States. In the event that any installment of Basic
Rent or Escalation Charges is not paid when due, Tenant shall pay, in addition
to any other additional charges due under this Lease, an administrative fee
equal to 5% of the overdue payment; provided, however, that there shall be
no
fee charged for the first late payment in each lease year. As used herein,
the
term "Purchase and Sale Agreement" shall mean that certain Purchase and Sale
Agreement dated August 31, 2006 by and between Landlord, as purchaser, and
Tenant, as seller, relating to the Property.
(b)
Basic
Rent and Escalation Charges for any partial month shall be pro-rated on a daily
basis, and if the first day on which Tenant must pay Basic Rent and Escalation
Charges shall be other than the first day of a calendar month, the first payment
which Tenant shall make to Landlord shall be equal to a proportionate part
of
the monthly installment of Basic Rent and Escalation Charges for the partial
month from the first day on which Tenant must pay Basic Rent and Escalation
Charges to the last day of the month in which such day occurs, plus the
installment of Basic Rent and Escalation Charges for the succeeding calendar
month.
ARTICLE
IV
COMMENCEMENT
AND CONDITION
4.1 COMMENCEMENT
DATE.
The
Commencement Date shall be December 22, 2006, which is the "Closing Date" under
the Purchase and Sale Agreement. Notwithstanding the foregoing, if Tenant's
personnel shall occupy all or any part of the Premises for the conduct of its
business prior to the Commencement Date, such date shall for all purposes of
this Lease be the Commencement Date. The Tenant shall, upon demand of the
Landlord, execute a certificate confirming the Commencement Date as it is
determined in accordance with the provisions of this Section 4.1.
4.2 AS-IS
CONDITION.
Tenant
agrees to accept the Premises in "AS IS" condition without any representations
or warranties (express, implied or otherwise).
-5-
4.3 GENERAL
CONSTRUCTION PROVISIONS.
All
construction work required or permitted by this Lease, whether by Landlord
or by
Tenant, shall be done in a good and workmanlike manner and in compliance with
all applicable laws and all lawful ordinances, regulations and orders of
governmental authorities and insurance rating or inspection bureaus having
jurisdiction over the Building. Either party may inspect the work of the other
at reasonable time and shall promptly give notice of observed
defects.
ARTICLE
V
USE
OF
PREMISES
5.1 PERMITTED
USE.
(a)
Tenant agrees that the Premises shall be used and occupied by Tenant only for
Permitted Uses.
(b)
Tenant
agrees to conform to the following provisions during the Term of this
Lease:
(i)
Tenant
shall cause all freight to be delivered to or removed from the Building and
the
Premises in accordance with reasonable rules and regulations established by
Landlord therefor;
(ii)
Tenant
will not place on the exterior of the Premises (including both interior and
exterior surfaces of doors and interior surfaces of windows) or on any part
of
the Building outside the Premises, any signs, symbol, advertisements or the
like
visible to public view outside of the Premises. Landlord will not unreasonably
withhold consent for signs or lettering on the entry doors to the Premises
provided such signs conform to building standards adopted by Landlord and Tenant
has submitted a sketch of the sign to be placed on such entry
doors.
(iii) Tenant
shall not perform any act or carry on any practice which may injure the
Premises, or any other part of the Building, or cause offensive odors or loud
noise or constitute a nuisance or menace to any other tenant or tenants or
other
persons in the Building;
(iv) Tenant
shall, at its sole cost and expense, in its use of the Premises, the Building
or
the Property, comply with the requirements of all applicable governmental laws,
rules and regulations (including, without limitation, the ADA in connection
with
any alterations, improvements or construction performed by Tenant in the
Premises or the Building); and
(v) Tenant
shall continuously throughout the Term of this Lease occupy the Premises for
the
Permitted Uses and for no other purposes.
5.2 INSTALLATION
AND ALTERATIONS BY TENANT.
(a)
Tenant shall make no alterations, additions (including, for the purposes hereof,
wall-to-wall carpeting), or improvements in or to the Premises without
Landlord's prior written consent. Any such alterations, additions or
improvements shall (i) be in accordance with complete plans and specifications
prepared by Tenant and approved in advance by Landlord; (ii) be performed in
a
good and workmanlike manner and in compliance with all applicable laws; (iii)
be
performed and completed in the manner required in Section 5.2(d) hereof; (iv)
be
made at Tenant's sole expense and at such times as Landlord may from time to
time designate; and (v) become a part of the Premises and the property of
Landlord. It is agreed and understood that Landlord shall have the right to
review and approve all changes to any plans which Landlord shall have approved
pursuant to this Section 5.2(a).
-6-
It
is
also agreed and understood that Landlord shall not be deemed to be unreasonable
in denying its consent to alterations, additions and improvements to the
Premises which affect "Base Building Systems" (as said term is hereafter
defined).
As
used
herein, the term "Base Building Systems" shall mean (i) any mechanical,
electrical or plumbing system or component of the Building (including the
Premises) (ii) the exterior of the Building (iii) the Building HVAC distribution
system (iii) any fire safety prevention/suppression system and (iv) any
structural element or component of the Building.
(b)
All
articles of personal property and all business fixtures, machinery and equipment
and furniture owned or installed by Tenant solely at its expense in the Premises
("Tenant's Removable Property") shall remain the property of Tenant and may
be
removed by Tenant at any time prior to the expiration of this Lease, provided
that Tenant, at its expense, shall repair any damage to the Building caused
by
such removal.
(c)
Notice
is
hereby given that Landlord shall not be liable for any labor or materials
furnished or to be furnished to Tenant upon credit, and that no mechanic's
or
other lien for any such labor or materials shall attach to or affect the
reversion or other estate or interest of Landlord in and to the Premises.
Whenever and as often as any mechanic's lien shall have been filed against
the
Premises based upon any act or interest of Tenant or of anyone claiming through
Tenant, Tenant shall forthwith take such actions by bonding, deposit or payment
as will remove or satisfy the lien.
(d)
All
of
the Tenant's alterations, 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 damage the Property or interfere
with Building construction or operation and, except for installation of
furnishings, shall be performed by qualified contractors or workmen first
approved by Landlord, such approval not to be unreasonably withheld, conditioned
or delayed. Installation and moving of furnishings, equipment and the like
shall
be performed only with labor compatible with that being employed by Landlord
for
work in or to the Building and not to employ or permit the use of any labor
or
otherwise take any action which might result in a labor dispute involving
personnel providing services in the Building. Except for work by Landlord's
general contractor, Tenant before its work is started shall: secure all licenses
and permits necessary therefor and deliver copies thereof to Landlord; 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
comprehensive public liability insurance and property damage insurance with
such
limits as Landlord may reasonably require but in no event less than the Initial
Public Liability Insurance specified in Section 1.3 of this Lease as the same
may be increased from time to time in accordance with the provisions of Article
X of this Lease (all such insurance to be written in companies approved by
Landlord and insuring Landlord, Manager 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 on the Premises by
Tenant, its agents, employees, or independent contractors, and not to cause
or
permit any liens for labor or materials performed or furnished in connection
therewith to attach to the Premises or the Property and immediately to discharge
any such liens which may so attach and, at the request of Landlord to deliver
to
Landlord security satisfactory to Landlord against liens arising out of the
furnishing of such labor and material. Upon completion of any work done on
the
Premises by Tenant, its agents, employees, or independent contractors, Tenant
shall promptly deliver to Landlord (i) original lien releases and waivers
executed by each contractor, subcontractor, supplier, materialmen, architect,
engineer or other party which furnished labor, materials or other services
in
connection with such work and pursuant to which all liens, claims and other
rights of such party with respect to labor, material or services furnished
in
connection with such work are unconditionally released and waived and (ii)
copies of any certificate(s) of occupancy relating to the Premises issued by
the
City of Boston. Tenant shall pay within fourteen (14) days after being billed
therefor by Landlord, as an additional charge hereunder, one hundred percent
(100%) of any increase in real estate taxes on the Property not otherwise billed
to Tenant which shall, at any time after commencement of the Term, result from
any alteration, addition or improvement to the Premises made by or on behalf
of
Tenant (including Tenant's original installation and Tenant's subsequent
alterations, additions, substitutions and improvements), whether done prior
to
or after the commencement of the Term of this Lease.
-7-
(e)
In
connection with the performance of any alterations, improvements, changes or
additions to the Premises as contemplated by Article IV or Section 5.2 of this
Lease, in the event that any such improvement, alteration, change or addition
to
the Premises to be performed by Tenant (the "Work") affects so-called "Base
Building Systems" and to the extent that such Work is not performed by Landlord
or a general contractor employed directly by Landlord, Tenant hereby agrees
to
use the services of a construction management firm designated by Landlord to
oversee, coordinate and review all aspects of any such Work. The cost and
expense of the services of such construction manager shall be borne by Tenant
as
an additional charge under this Lease.
ARTICLE
VI
ASSIGNMENT
AND SUBLETTING
6.1 PROHIBITION.
(a)
Tenant covenants and agrees that whether voluntarily, involuntarily, by
operation of law or otherwise, neither this Lease nor the term and estate hereby
granted, nor any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred and that neither the Premises
nor
any part thereof will be encumbered in any manner by reason of any act or
omission on the part of Tenant, or used or occupied, by anyone other than
Tenant, or for any use or purpose other than a Permitted Use, or be sublet
(which term, without limitation, shall include granting of concessions, licenses
and the like) in whole or in part, or be offered or advertised for assignment
or
subletting without, in each instance, Landlord's prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. Tenant
shall
reimburse Landlord for all costs and expenses sustained or incurred by Landlord
in connection with any request by Tenant for Landlord's consent to an assignment
or subletting.
-8-
(b)
The
provisions of paragraph (a) of this Section shall apply to a transfer (by one
or
more transfers) of a majority of the stock or partnership interests, or other
evidences of ownership of Tenant as if such transfer were an assignment of
this
Lease; but such provisions shall not apply to transactions with an entity into
or with which Tenant is merged or consolidated or to which substantially all
of
Tenant's assets are transferred or to any entity which controls or is controlled
by Tenant or is under common control with Tenant, provided that in any of such
events (i) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the net worth of
Tenant immediately prior to such merger, consolidation or transfer, (ii) proof
satisfactory to Landlord of such net worth shall have been delivered to Landlord
at least 10 days prior to the effective date of any such transaction, and (iii)
the assignee agrees directly with Landlord, by written instrument in form
satisfactory to Landlord, to be bound by all the obligations of Tenant hereunder
including, without limitation, the covenant against further assignment or
subletting.
(c)
If
this
Lease be assigned, or if the Premises or any part thereof be sublet or occupied
by anyone other than Tenant, Landlord may, at any time and from time to time,
collect rent and other charges from the assignee, subtenant or occupant, and
apply the net amount collected to the rent and other charges herein reserved,
but no such assignment, subletting, occupancy, collection or modification of
any
provisions of this Lease shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as a tenant or a release
of
the original named Tenant from the further performance by the original named
Tenant hereunder. Notwithstanding the foregoing to the contrary, provided that
no Default of Tenant exists under this Lease, Landlord and Tenant shall split
any subleasing profits 50/50, after deducting Tenant's reasonable costs and
expenses related to any such sublease. No assignment or subletting hereunder
shall relieve Tenant from its obligations hereunder and Tenant shall remain
fully and primarily liable therefor. No assignment or subletting, or occupancy
shall affect Permitted Uses. Any subletting shall expire as of the day
immediately preceding the date of expiration of the Term of this
Lease.
(d)
In
connection with any request by Tenant for consent to assignment or subletting,
Tenant shall first submit to Landlord in writing: (i) the name of the proposed
assignee or subtenant, (ii) such information as to its financial responsibility
and standing as Landlord may reasonably require, and (iii) all terms and
provisions upon which the proposed assignment or subletting is to be made.
Upon
receipt from Tenant of such request and information, the Landlord shall have
an
option (sometimes hereinafter referred to as the "option" or "Take Back Option")
to be exercised in writing within thirty (30) days after its receipt from Tenant
of such request and information, if the request is to assign the Lease or to
sublet all of the Premises, to cancel or terminate this Lease, or, if the
request is to sublet fifty (50%) percent or more of the Premises only, to cancel
and terminate this Lease with respect to such portion, in each case, as of
the
date set forth in Landlord's notice of exercise of such option, which shall
be
not less than sixty (60) nor more than one hundred twenty (120) days following
the giving of such notice; in the event Landlord shall exercise such option,
Tenant shall surrender possession of the entire Premises, or the portion which
is the subject of the option, as the case may be, on the date set forth in
such
notice in accordance with the provisions of this Lease relating to surrender
of
Premises at the expiration of the Term. If this Lease shall be cancelled as
to a
portion of the Premises only, Basic Rent and Escalation Charges shall thereafter
be abated proportionately according to the ratio the number of square feet
of
the portion of the space surrendered bears to the size of the Premises. As
additional rent, Tenant shall reimburse Landlord promptly for reasonable legal
and other expenses incurred by Landlord in connection with any request by Tenant
for consent to assignment or subletting.
-9-
If
Landlord shall not exercise its option pursuant to the foregoing provisions,
Landlord will not unreasonably delay or withhold its consent to the assignment
or subletting to the party referred to upon all the terms and provisions set
forth in Tenant's notice to Landlord, provided that the terms and provisions
of
such assignment or subletting shall specifically make applicable to the assignee
or sublessee all of the provisions of this Article VI of the Lease so that
Landlord shall have against the assignee or sublessee all rights with respect
to
any further assignment or subletting which are set forth in Article VI of the
Lease as amended hereby except that no such assignee or sublessee shall have
any
right to further assign or sublet the Premises. In any case where Landlord
consents to an assignment of this Lease, Landlord shall be entitled to receive
100% of all amounts received by Tenant in connection with such assignment.
Further, in any case where Landlord consents to an assignment or a subletting,
Landlord shall be entitled to receive all "Subleasing Overages" (as said term
is
hereinafter defined). As used herein, the term "Subleasing Overages" shall
mean,
for each period in question, all amounts received by Tenant in excess of Basic
Rent and Escalation Charges and other items of additional rent reserved under
this Lease attributable to the space sublet (including, without limitation,
all
lump sum payments made in connection therewith).
Any
such
assignment or subletting shall nevertheless be subject to all the terms and
provisions of Article VI and no assignment shall be binding upon Landlord or
any
of Landlord's mortgagees, unless Tenant shall deliver to Landlord an instrument
in recordable form which contains a covenant of assumption by the assignee
running to Landlord and all persons claiming by, through or under Landlord.
The
failure or refusal of the assignee to execute such instrument of assumption
shall not release or discharge the assignee from its liability as Tenant
hereunder. In addition, Tenant shall furnish to Landlord a conformed copy of
any
sublease effected under terms of this Article VI. In no event shall the Tenant
hereunder be released from its liability under this Lease.
Landlord
shall not be deemed unreasonable in refusing to approve a sublease wherein
the
rent is, in the reasonable judgment of Landlord, at rates which are below market
for the Premises or Building or where such proposed subtenant is a tenant,
subtenant or occupant of the Building.
-10-
ARTICLE
VII
RESPONSIBILITY
FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES
TO BE FURNISHED BY LANDLORD
7.1 LANDLORD
REPAIRS.
(a)
Except as otherwise provided in this Lease, Landlord agrees to keep in good
order, condition and repair the roof, public areas, exterior walls (including
exterior glass) and structure of the Building (including plumbing, mechanical
and electrical systems installed by Landlord but excluding any systems installed
specifically for Tenant's benefit or used exclusively by Tenant) and the HVAC
system serving the Premises, all insofar as they affect the Premises, except
that Landlord shall in no event be responsible to Tenant for the condition
of
glass in the Premises or for the doors (or related glass and finish work)
leading to the Premises, or for any condition in the Premises or the Building
caused by any act or neglect of Tenant, its agents, employees, invitees or
contractors. Landlord shall not be responsible to make any improvements or
repairs to the Building other than as expressly in this Section 7.1 provided,
unless expressly provided otherwise in this Lease. All costs and expenses
incurred by Landlord in performing its obligations under this Section 7.1 shall
be included in Operating Expenses (as said term is hereafter
defined).
(b)
Landlord
shall never be liable for any failure to make repairs which Landlord has
undertaken to make under the provisions of this Section 7.1 or elsewhere in
this
Lease, unless Tenant has given notice to Landlord of the need to make such
repairs, and Landlord has failed to commence to make such repairs within a
reasonable time after receipt of such notice, or fails to proceed with
reasonable diligence to complete such repairs.
(c)
Any
services which Landlord is required to furnish pursuant to the provisions of
this Lease may, at Landlord's option be furnished from time to time, in whole
or
in part, by employees of Landlord or by the Manager of the Property or by one
or
more third persons. Landlord shall cause the paved portions of the Property
to
be kept reasonably free and clear of snow, ice and refuse and shall cause the
landscaped areas of the Property to be maintained in a reasonably attractive
appearance.
7.2 TENANT'S
AGREEMENT.
(a)
Tenant will keep neat and clean and maintain in reasonably good order, condition
and repair the Premises and every part thereof, excepting only those repairs
for
which Landlord is responsible under the terms of this Lease, reasonable wear
and
tear of the Premises, and damage by fire or other casualty and as a consequence
of the exercise of the power of eminent domain; and shall surrender the
Premises, at the end of the Term, in such condition, ordinary wear and tear
and
damage by fire or other casualty excepted. Without limitation, Tenant shall
continually during the Term of this Lease maintain the Premises in accordance
with all laws, codes and ordinances from time to time in effect and all
directions, rules and regulations of the proper officers of governmental
agencies having jurisdiction, and of the Boston Board of Fire Underwriters,
and
shall, at Tenant's own expense, obtain all permits, licenses and the like
required by applicable law. Notwithstanding the foregoing or the provisions
of
Article XII, Tenant shall be responsible for the cost of repairs which may
be
necessary by reason of damage to the Building caused by any act or neglect
of
Tenant or its agents, employees, contractors or invitees (including any damage
by fire or any other casualty arising therefrom). Tenant shall be responsible
for the payment of all charges (whether billed directly to Tenant by the
applicable utility or submetered and billed to Tenant by Landlord) for
electricity, HVAC and other utilities used or consumed in the Premises in
accordance with the provisions of this Lease. Without limitation of the
foregoing, Tenant shall not do or perform, and shall not permit its agents,
servants, employees, contractors or invitees to do or perform any act or thing
in or upon the Property which will invalidate or be in conflict with the
certificate of occupancy for the Premises or the Building or violate any
statute, law, rule, by-law or ordinance of any governmental entity having
jurisdiction over the Property (the "Requirements"). Tenant shall, at Tenant's
sole cost and expenses, take all action, including the making of any
improvements or alterations necessary to comply with all Requirements
(including, but not limited to the ADA, as modified and supplemented from time
to time) which shall, with respect to the Premises or with respect to any
abatement of nuisance, impose any violation, order or duty upon Landlord or
Tenant arising from, or in connection with the Premises, Tenant's occupancy,
use
or manner of use of the Premises (including, without limitation, any occupancy,
use or manner of use that constitutes a "place of public accommodation" under
the ADA), or any installations, alterations, improvements or construction in
the
Premises, or required by reason of a breach of any of Tenant's covenants or
agreements under this Lease, whether or not such Requirements shall now be
in
effect or hereafter enacted or issued.
-11-
(b)
If
repairs are required to be made by Tenant pursuant to the terms hereof, Landlord
may demand that Tenant make the same forthwith, and if Tenant refuses or
neglects to commence such repairs and complete the same with reasonable dispatch
after such demand, Landlord may (but shall not be required to do so) make or
cause such repairs to be made (the provisions of Section 14.18 being applicable
to the costs thereof) and shall not be responsible to Tenant for any loss or
damage that may accrue to Tenant's stock or business by reason thereof.
Notwithstanding the foregoing, Landlord may elect to take action hereunder
immediately and without notice to Tenant if Landlord reasonably believes an
emergency to exist.
7.3 FLOOR
LOAD - HEAVY MACHINERY.
(a)
Tenant shall not place a load upon any floor in the Premises exceeding the
floor
load per square foot of area which such floor was designed to carry and which
is
allowed by law. Landlord reserves the right to prescribe the weight and position
of all business machines and mechanical equipment, including safes, which shall
be placed so as to distribute the weight. Business machines and mechanical
equipment shall be placed and maintained by Tenant at Tenant's expense in
settings sufficient, in Landlord's judgment, to absorb and prevent vibration,
noise and annoyance. Tenant shall not move any safe, heavy machinery, heavy
equipment, freight, bulky matter or fixtures into or out of the Building without
Landlord's prior consent, which consent may include a requirement to provide
insurance, naming Landlord as an insured, in such amounts as Landlord may deem
reasonable.
(b)
If
such
safe, machinery, equipment, freight, bulky matter or fixtures requires special
handling, Tenant agrees to employ only persons holding a Master Rigger's License
to do such work, and that all work in connection therewith shall comply with
applicable laws and regulations. Any such moving shall be at the sole risk
and
hazard of Tenant, and Tenant will exonerate, indemnity and save Landlord
harmless against and from any liability, loss, injury, claim or suit resulting
directly or indirectly from such moving.
-12-
7.4 BUILDING
SERVICES.
(a)
Landlord shall also provide:
(i)
Cold
water (at temperatures supplied by the City of Boston) for drinking, lavatory
and toilet purposes. If Tenant uses water for any purpose other than for
ordinary lavatory and drinking purposes and thereby materially increases its
water consumption, Landlord may assess a reasonable charge for the additional
water so used, or install a water meter and thereby measure Tenant's water
consumption for all purposes. In the latter event, Tenant shall pay the cost
of
the meter and the cost of installation thereof including, without limitation,
any related charges incurred by Landlord in connection with providing and
installing the same. Tenant, at Tenant’s sole cost and expense, shall keep such
meter and related equipment in good working order and repair. Tenant agrees
to
pay for water consumed, as shown on such meter, together with the sewer charge
based on such meter charges, as and when bills are rendered, and in default
in
making such payment Landlord may pay such charges and collect the same from
Tenant as an additional charge.
(ii)
Access
to
the Premises twenty-four hours per day, subject to reasonable security
restrictions and restrictions based on emergency conditions and all other
applicable provisions of this Lease.
(iii)
Cleaning
Services described in Exhibit F as and to the extent required by Exhibit
F.
(b)
Landlord
reserves the right to curtail, suspend, interrupt and/or stop the supply of
water, sewage, electrical current, cleaning, and other services, and to curtail,
suspend, interrupt and/or stop use of entrances and/or lobbies serving access
to
the Building, without thereby incurring any liability to Tenant, when necessary
by reason of accident or emergency, or for repairs, alterations, replacements
or
improvements which in the judgment of Landlord are necessary, or when prevented
from supplying such services or use by strikes, lockouts, difficulty in
obtaining materials, accidents or any other cause beyond Landlord's control,
or
by laws, orders or inability, by exercise of reasonable diligence, to obtain
electricity, water, gas, steam, coal, oil or other suitable fuel or power.
No
diminution or abatement of rent or other compensation, nor any direct, indirect
or consequential damages shall or will be claimed by Tenant as a result of,
nor
shall this Lease or any of the obligations of Tenant be affected or reduced
by
reason of, any such interruption, curtailment, suspension or stoppage in the
furnishing of the foregoing services or use, irrespective of the cause thereof.
Failure or omission on the part of Landlord to furnish any of the foregoing
services or use shall not be construed as an eviction of Tenant, actual or
constructive, nor entitle Tenant to an abatement of rent, nor to render the
Landlord liable in damages, nor release Tenant from prompt fulfillment of any
of
its covenants under this Lease.
7.5 ELECTRICITY.
(a)
Tenant acknowledges and agrees to the best of its knowledge that there is a
separate electrical meter in the Premises for the purpose of measuring Tenant's
use and consumption of electricity in the Premises. Tenant shall make direct
payment to the utility provider for any costs and expenses related to the
operation of lights and plugs in the Premises. Landlord shall permit Landlord's
existing wires, pipes, risers, conduits and other electrical equipment of
Landlord to be used for the purpose of providing electrical service to the
Premises. Tenant covenants and agrees that its electrical usage and consumption
will not disproportionately "siphon off" electrical service necessary for other
tenants of the Building and that its total connected load will not exceed the
maximum load from time to time permitted by applicable governmental regulations
nor the design criteria of the existing Building electrical capacity. Landlord
shall not in any way be liable or responsible to Tenant for any loss or damage
or expense which Tenant may sustain or incur if, during the Term of this Lease,
either the quantity or character of electric current is changed or electric
current is no longer available or suitable for Tenant's requirements due to
a
factor or cause beyond Landlord's control. Tenant shall purchase and install
all
lamps, tubes, bulbs, starters and ballasts. As provided in this Section 7.5
and
in Section 9.2(b) below, Tenant shall pay all charges for electricity, HVAC
and
other utilities used or consumed in the Premises.
-13-
(b)
In
order
to insure that the foregoing requirements are not exceeded and to avert possible
adverse affect on the Building's electrical system, Tenant shall not, without
Landlord's prior consent, connect any fixtures, appliances or equipment to
the
Building's electrical distribution system which operates on a voltage in excess
of 120 volts nominal. If Landlord shall consent to the connection of any such
fixtures, appliances or equipment, all additional risers or other electrical
facilities or equipment required therefor shall be provided by Landlord and
the
cost thereof shall be paid by Tenant upon Landlord's demand as Additional Rent.
From time to time during the Term of this Lease, Landlord shall have the right
to have an electrical consultant selected by Landlord make a survey of Tenant's
electric usage, the result of which shall be conclusive and binding upon
Landlord and Tenant. In the event that such survey shows that Tenant has
exceeded the requirements set forth in paragraph (a), in addition to any other
rights Landlord may have hereunder, Tenant shall, upon demand, reimburse
Landlord for the costs of such survey.
7.6 INTERRUPTION
OF ESSENTIAL SERVICES.
Notwithstanding anything contained in this Lease (including Exhibit E) to the
contrary, if (a) an interruption or curtailment, suspension or stoppage of
an
Essential Service (as said term is hereinafter defined) shall occur (any such
interruption of an Essential Service being hereinafter referred to as a "Service
Interruption"), and (b) such Service Interruption continues for more than five
(5) Business Days after Landlord shall have received notice thereof from Tenant
and (c) as a result of such Service Interruption, the conduct of Tenant's normal
operations in the Premises are materially and adversely affected, then there
shall be an abatement of one day's Basic Rent for each day during which such
Service Interruption continues beyond such five (5) Business Day Period;
provided, further, however, that if any part of the Premises is reasonably
useable for Tenant's operations or if Tenant conducts all or any part of its
operations in the Premises notwithstanding such Service Interruption, then
the
amount of each daily abatement of Basic Rent shall only be proportionate to
the
nature and extent of the interruption of Tenant's normal operations. The
provisions of this Section 7.6 shall not be binding upon any (a) Mortgagee
foreclosing a mortgage on the Property or taking a deed in lieu of foreclosure
or (b) any purchaser at or upon foreclosure of a mortgage on the Property.
For
purposes hereof, the term "Essential Services" shall mean the following
services: access to the Premises, telephone service, heating, air-conditioning,
water, sewer, and electricity. Landlord, in exercising its rights under this
Section 7.6, shall make reasonable efforts to minimize any interference with
Tenant's business operations in the Premises. Any abatement of Basic Rent under
this paragraph shall apply only with respect to Basic Rent allocable to the
period after each of the conditions set forth in subsections (a) through (c)
hereof shall have been satisfied and only during such times as each of such
conditions shall exist.
-14-
ARTICLE
VIII
REAL
ESTATE TAXES
8.1 PAYMENTS
ON ACCOUNT OF REAL ESTATE TAXES.
(a) For
the purposes of this Article, the term "Tax Year" shall mean each twelve-month
period commencing on the July 1 immediately preceding the Commencement Date
and
each twelve-month period thereafter commencing during the Term of this Lease;
and the term "Taxes" shall mean all real estate taxes, special assessments
and
betterment assessments assessed with respect to the Property for any Tax
Year.
(b)
In
the
event that during any Tax Year, Taxes shall be greater than Base Taxes, Tenant
shall pay to Landlord, as an Escalation Charge, an amount equal to (i) the
excess of Taxes over Base Taxes for each Tax Year (or partial Tax Year) falling
within the Term of this Lease, multiplied by (ii) the Escalation Factor, such
amount to be apportioned for any fraction of a Tax Year in which the
Commencement Date falls or the Term of this Lease ends.
(c)
Estimated
payments by Tenant on account of Taxes shall be made monthly and at the time
and
in the fashion herein provided for the payment of Basic Rent. The monthly amount
so to be paid to Landlord shall be sufficient to provide Landlord by the time
real estate tax payments are due a sum equal to Tenant's required payments,
as
estimated by Landlord from time to time, on account of Taxes for the then
current Tax Year. Promptly after receipt by Landlord of bills for such Taxes,
Landlord shall advise Tenant of the amount thereof and the computation of
Tenant's payment on account thereof. If estimated payments theretofore made
by
Tenant for the Tax Year covered by such bills exceed the required payments
on
account thereof for such Year, Landlord shall credit the amount of overpayment
against subsequent obligations of Tenant on account of Taxes (or refund such
overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord); but if the required payments on account thereof for
such Tax Year are greater than estimated payments theretofore made on account
thereof for such Tax Year, Tenant shall make payment to Landlord within 30
days
after being so advised by Landlord. Landlord shall have the same rights and
remedies for the non-payment by Tenant of any payments due on account of Taxes
as Landlord has hereunder for the failure of Tenant to pay Basic Rent. The
obligations of Tenant pursuant to this Article VIII shall survive expiration
or
earlier termination of the Term of this Lease.
8.2 ABATEMENT.
If
Landlord shall receive any tax refund or reimbursement of Taxes or sum in lieu
thereof with respect to any Tax Year which is not due to vacancies in the
Building, then out of any balance remaining thereof after deducting Landlord's
expenses reasonably incurred in obtaining such refund, Landlord shall, provided
there does not then exist a Default of Tenant, credit an amount equal to such
refund or reimbursement or sum in lieu thereof (exclusive of any interest)
multiplied by the Escalation Factor against the obligations of Tenant next
falling due under this Article VIII; provided, that in no event shall Tenant
be
entitled to receive a credit equal to more than the payments made by Tenant
on
account of Taxes for such Year pursuant to paragraph (b) of Section 8.1 or
to
receive any payments or abatements of Basic Rent if Taxes for any Tax Year
are
less than Base Taxes or if Base Taxes are abated.
-15-
8.3 ALTERNATE
TAXES.
(a) If
some method or type of taxation shall replace the current method of assessment
of real estate taxes in whole or in part, or the type thereof, or if additional
types of taxes are imposed upon the Property or Landlord relating to the
Property, Tenant agrees that Tenant shall pay a proportionate share of the
same
as an additional charge computed in a fashion consistent with the method of
computation herein provided, to the end that Tenant's share thereof shall be,
to
the maximum extent practicable, comparable to that which Tenant would bear
under
the foregoing provisions.
(b)
If
a tax
(other than Federal or State net income tax) is assessed on account of the
rents
or other charges payable by Tenant to Landlord under this Lease, Tenant agrees
to pay the same as an additional charge within ten (10) days after billing
therefor, unless applicable law prohibits the payment of such tax by
Tenant.
ARTICLE
IX
OPERATING
EXPENSES
9.1 DEFINITIONS.
For the
purposes of this Article, the following terms shall have the following
respective meanings:
(i)
Operating
Year: Each calendar year in which any part of the Term of this Lease shall
fall.
(ii)
Operating
Expenses: The aggregate costs or expenses reasonably incurred by Landlord with
respect to the operation, administration, insuring, cleaning, repair,
maintenance and management of the Property (but specifically excluding Utility
Expenses) all as set forth in Exhibit E annexed hereto, provided that, if during
any portion of the Operating Year for which Operating Expenses are being
computed, less than all of Building Rentable Area was occupied by tenants or
if
Landlord is not supplying all tenants with the services being supplied
hereunder, actual Operating Expenses incurred shall be reasonably extrapolated
by Landlord on an item by item basis to the estimated Operating Expenses that
would have been incurred if the Building were fully occupied for such Year
and
such services were being supplied to all tenants, and such extrapolated amount
shall, for the purposes hereof, be deemed to be the Operating Expenses for
such
Year.
(iii) Utility
Expenses: The aggregate costs or expenses reasonably incurred by Landlord with
respect to supplying electricity (other than electricity supplied to those
portions of the Building leased to tenants), oil, steam, gas, water and sewer
and other utilities supplied to the Property and not paid for directly by
tenants, provided that, if during any portion of the Operating Year for which
Utility Expenses are being computed, less than all Building Rentable Area was
occupied by tenants or if Landlord is not supplying all tenants with the
utilities being supplied hereunder, actual utility expenses incurred shall
be
reasonably extrapolated by Landlord on an item-by-item basis to the estimated
Utility Expenses that would have been incurred if the Building were fully
occupied for such Year and such utilities were being supplied to all tenants,
and such extrapolated amount shall, for the purposes hereof, be deemed to be
the
Utility Expenses for such Year.
-16-
9.2 TENANT'S
PAYMENTS.
(a) In
the event that during any Operating Year, Operating Expenses shall exceed Base
Operating Expenses, Tenant shall pay to Landlord, as an Escalation Charge,
an
amount equal to (i) the excess of Operating Expenses over Base Operating
Expenses for each Operating Year (or partial Operating Year) falling within
the
Term of this Lease multiplied by (ii) the Escalation Factor, such amount to
be
apportioned for any partial Operating Year in which the Commencement Date falls
or the Term of this Lease ends.
(b)
In
the
event that during any Operating Year, Utility Expenses shall exceed Base Utility
Expenses, Tenant shall pay to Landlord, as an Escalation Charge, an amount
equal
to (i) the excess of Utility Expenses over Base Utility Expenses for each
Operating Year (or partial Operating Year) falling within the Term of this
Lease
multiplied by (ii) the Escalation Factor, such amount to be apportioned for
any
partial Operating Year in which the Commencement Date falls or the Term of
this
Lease ends.
(c)
Estimated
payments by Tenant on account of Operating Expenses and Utility Expenses shall
be made monthly and at the time and in the fashion herein provided for the
payment of Basic Rent. The monthly amount so to be paid to Landlord shall be
sufficient to provide Landlord by the end of each Operating Year a sum equal
to
Tenant's required payments, as estimated by Landlord from time to time during
each Operating Year, on account of Operating Expenses and Utility Expenses
for
such Operating Year. After the end of each Operating Year, Landlord shall submit
to Tenant a reasonably detailed accounting of Operating Expenses and Utility
Expenses for such Operating Year, and Landlord shall certify to the accuracy
thereof. If estimated payments theretofore made for such Operating Year by
Tenant exceed Tenant's required payment on account thereof for such Operating
Year, according to such statement, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant with respect to Operating
Expenses and Utility Expenses (or refund such overpayment if the Term of this
Lease has ended and Tenant has no further obligation to Landlord), but, if
the
required payments on account thereof for such Operating Year are greater than
the estimated payments (if any) theretofore made on account thereof for such
Operating Year, Tenant shall make payment to Landlord within thirty (30) days
after being so advised by Landlord. Landlord shall have the same rights and
remedies for the nonpayment by Tenant of any payments due on account of
Operating Expenses and Utility Expenses as Landlord has hereunder for the
failure of Tenant to pay Basic Rent. The obligations of Tenant under this
Article IX shall survive expiration or earlier termination of the Term of this
Lease.
-17-
ARTICLE
X
INDEMNITY
AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S
INDEMNITY.
To the
maximum extent this agreement may be made effective according to law, Tenant
agrees to defend, indemnify and save harmless Landlord and its officers,
directors, shareholders, employees, contractors, servants, invitees,
representatives and agents from and against all claims, loss, liability, costs
and damages of whatever nature arising from any default by Tenant under this
Lease and the following: (i) from any accident, injury, death or damage
whatsoever to any person, or to the property of any person, occurring in or
about the Premises; (ii) from any accident, injury, death or damage occurring
outside of the Premises but on the Property, where such accident, damage or
injury results or is claimed to have resulted from an act or omission on the
part of Tenant or Tenant's agents, employees, invitees, independent contractors,
or any other person acting under Tenant; or (iii) in connection with the conduct
or management of the Premises or of any business therein, or any thing or work
whatsoever done, or any condition created (other than by Landlord) in or about
the Premises; and, in any case, occurring after the date of this Lease, until
the end of the Term of this Lease, and thereafter so long as Tenant is in
occupancy of the Premises. This indemnity and hold harmless agreement shall
include indemnity against all costs, expenses and liabilities incurred in,
or in
connection with, any such claim or proceeding brought thereon, and the defense
thereof, including, without limitation, reasonable attorneys' fees and costs
at
both the trial and appellate levels. The provisions of this Section 10.1 shall
survive the expiration or any earlier termination of this Lease.
10.2 PUBLIC
LIABILITY INSURANCE.
Tenant
agrees to maintain in full force from the date upon which Tenant first enters
the Premises for any reason, throughout the Term of this Lease, and thereafter
so long as Tenant is in occupancy of any part of the Premises, a policy of
general liability and property damage insurance (including broad form
contractual liability, independent contractor's hazard and completed operations
coverage) under which Landlord and Manager (and such other persons as are in
privity of estate with Landlord as may be set out in notice from time to time)
and Tenant are named as insureds, and under which the insurer agrees to defend,
indemnify and hold Landlord, Manager, and those in privity of estate with
Landlord, harmless from and against all cost, expense and/or liability arising
out of or based upon any and all claims, accidents, injuries and damages set
forth in Section 10.1. Each such policy shall be non-cancellable and
non-amendable with respect to Landlord, Manager and Landlord's said designees
without thirty (30) days' prior notice to Landlord and shall be in at least
the
amounts of the Initial Public Liability Insurance specified in Section 1.3
or
such greater amounts as Landlord shall from time to time request, and a
duplicate original or certificate thereof shall be delivered to
Landlord.
10.3 TENANT'S
RISK.
To the
maximum extent this agreement may be made effective according to law, Tenant
agrees to use and occupy the Premises and to use such other portions of the
Property as Tenant is herein given the right to use at Tenant's own risk; and
Landlord shall have no responsibility or liability for any loss of or damage
to
Tenant's Removable Property or for any inconvenience, annoyance, interruption
or
injury to business arising from Landlord's making any repairs or changes which
Landlord is permitted by this Lease or required by law to make in or to any
portion of the Premises or other sections of the Property, or in or to the
fixtures, equipment or appurtenances thereof. Tenant shall carry "all-risk"
property insurance on a "replacement cost" basis (including so-called
improvements and betterments), and provide a waiver of subrogation as required
in Section 14.20. The provisions of this Section 10.3 shall be applicable from
and after the execution of this Lease and until the end of the Term of this
Lease, and during such further period as Tenant may use or be in occupancy
of
any part of the Premises or of the Building.
-18-
10.4 INJURY
CAUSED BY THIRD PARTIES.
To the
maximum extent this agreement may be made effective according to law, Tenant
agrees that Landlord shall not be responsible or liable to Tenant, or to those
claiming by, through or under Tenant, for any loss or damage that may be
occasioned by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with the Premises
or any part of the Property or otherwise. The provisions of this Section 10.4
shall survive the expiration or any earlier termination of this
Lease.
ARTICLE
XI
LANDLORD'S
ACCESS TO PREMISES
11.1 LANDLORD'S
RIGHTS.
Landlord
shall have the right to enter the Premises at all reasonable hours for the
purpose of inspecting or making repairs to the same, and Landlord shall also
have the right to make access available at all reasonable hours to prospective
or existing mortgagees, purchasers or tenants of any part of the Property,
all
upon reasonable notice to Tenant, which the parties agree shall be twenty-four
(24) hour prior telephonic notice except in the case of any emergency, accident
or Force Majeure.
ARTICLE
XII
FIRE,
EMINENT DOMAIN, ETC.
12.1 ABATEMENT
OF RENT.
If the
Premises shall be damaged by fire or casualty, Basic Rent and Escalation Charges
payable by Tenant shall xxxxx proportionately for the period in which, by reason
of such damage, there is substantial interference with Tenant's use of the
Premises, having regard to the extent to which Tenant may be required to
discontinue Tenant's use of all or a portion of the Premises, but such abatement
or reduction shall end if and when Landlord shall have substantially restored
the Premises (excluding any alterations, additions or improvements made by
Tenant pursuant to Section 5.2) to the condition in which they were prior to
such damage. If the Premises shall be affected by any exercise of the power
of
eminent domain, Basic Rent and Escalation Charges payable by Tenant shall be
justly and equitably abated and reduced according to the nature and extent
of
the loss of use thereof suffered by Tenant. In no event shall Landlord have
any
liability for damages to Tenant for inconvenience, annoyance, or interruption
of
business or other claims or causes of action arising from such fire, casualty
or
eminent domain.
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12.2 LANDLORD'S
RIGHT OF TERMINATION.
If the
Premises or the Building are substantially damaged by fire or casualty (the
term
"substantially damaged" meaning damage of such a character that the same cannot,
in ordinary course, reasonably be expected to be repaired within one hundred
twenty (120) days from the time the repair work would commence), or if any
part
of the Building is taken by any exercise of the right of eminent domain, then
Landlord shall have the right to terminate this Lease (even if Landlord's entire
interest in the Premises may have been divested) by giving notice of Landlord's
election so to do within sixty (60) days after the occurrence of such casualty
or the effective date of such taking, whereupon this Lease shall terminate
thirty (30) days after the date of such notice with the same force and effect
as
if such date were the date originally established as the expiration date
hereof.
12.3 RESTORATION.
If this
Lease shall not be terminated pursuant to Section 12.2, Landlord shall
thereafter use due diligence to restore the Premises (excluding any alterations,
additions or improvements made by Tenant) to proper condition for Tenant's
use
and occupation, provided that Landlord's obligation shall be limited to the
amount of insurance proceeds available therefor. If, for any reason, such
restoration shall not be substantially completed within three (3) months after
the expiration of the 90-day period referred to in Section 12.2 (which three
(3)
month period may be extended for such periods of time as Landlord is prevented
from proceeding with or completing such restoration for any cause beyond
Landlord's reasonable control), Tenant shall have the right to terminate this
Lease by giving notice to Landlord thereof within thirty (30) days after the
expiration of such period (as so extended). Upon the giving of such notice,
this
Lease shall cease and come to an end without further liability or obligation
on
the part of either party unless, within such 30-day period, Landlord
substantially completes such restoration. Such right of termination shall be
Tenant's sole and exclusive remedy at law or in equity for Landlord's failure
so
to complete such restoration.
12.4 AWARD.
Landlord
shall have and hereby reserves and excepts, and Tenant hereby grants and assigns
to Landlord, all rights to recover for damages to the Property and the leasehold
interest hereby created, and to compensation accrued or hereafter to accrue
by
reason of such taking, damage or destruction, and by way of confirming the
foregoing, Tenant hereby grants and assigns, and covenants with Landlord to
grant and assign to Landlord, all rights to such damages or compensation.
Nothing contained herein shall be construed to prevent Tenant from, at its
sole
cost and expense, prosecuting a separate condemnation proceeding with respect
to
a claim for the value of any of Tenant's Removable Property installed in the
Premises by Tenant at Tenant's expense and for relocation expenses, provided
that such action shall not affect the amount of compensation otherwise
recoverable by Landlord from the taking authority.
-20-
ARTICLE
XIII
DEFAULT
13.1 TENANT'S
DEFAULT.
(a) If
at any time subsequent to the date of this Lease any one or more of the
following events (herein referred to as a "Default of Tenant") shall
happen:
(i)
Tenant
shall fail to pay the Basic Rent, Escalation Charges or other sums payable
as
additional charges hereunder within five (5) days after the date when due;
or
(ii)
Tenant
shall neglect or fail to perform or observe any other covenant herein contained
on Tenant's part to be performed or observed, or Tenant shall desert or abandon
the Premises or the Premises shall become, or appear to have become vacant
(regardless of whether the keys shall have been surrendered or the rent and
all
other sums due shall have been paid) and Tenant shall fail to remedy the same
within thirty (30) days after notice to Tenant specifying such neglect or
failure, or if such failure is of such a nature that Tenant cannot reasonably
remedy the same within such thirty (30) day period, Tenant shall fail to
commence promptly to remedy the same and to prosecute such remedy to completion
with diligence and continuity, provided, however, in no event shall such cure
period exceed ninety (90) days unless Tenant is diligently and continuously
prosecuting such remedy to completion within said ninety (90) day period;
further, provided, however, if Tenant vacates all or any portion of the
Premises, Tenant's vacancy shall not constitute a default hereunder provided
that Tenant shall continue to pay Basic Rent, Escalation Charges and other
sums
payable as additional charges hereunder when due; or; or
(iii)
Tenant's
leasehold interest in the Premises shall be taken on execution or by other
process of law directed against Tenant; or
(iv)
Tenant
shall make an assignment for the benefit of creditors or shall file a voluntary
petition in bankruptcy or shall be adjudicated bankrupt or insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief for itself
under any present or future Federal, State or other statute, law or regulation
for the relief of debtors, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit in writing its inability
to
pay its debts generally as they become due; or
(v)
A
petition shall be filed against Tenant in bankruptcy or under any other law
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future Federal, State or
other statute, law or regulation and shall remain undismissed or unstayed for
an
aggregate of sixty (60) days (whether or not consecutive), or if any debtor
in
possession (whether or not Tenant) trustee, receiver or liquidator of Tenant
or
of all or any substantial part of its properties or of the Premises shall be
appointed without the consent or acquiescence of Tenant and such appointment
shall remain unvacated or unstayed for an aggregate of sixty (60) days (whether
or not consecutive); or
(vi)
If
an
event of the type described in clauses (i) or (ii) above shall occur and if
either (a) Tenant shall cure such default within the applicable grace period
or
(b) Landlord shall, in its sole discretion , permit Tenant to cure such default
after the applicable grace period has expired, and an event which would
constitute a similar default if not cured within the applicable grace period
shall occur (without regard to any notice or opportunity to cure) more than
once
within the next 365 days, whether or not such event is cured within the
applicable grace period;
-21-
then
in
any such case (1) if such Default of Tenant shall occur prior to the
Commencement Date, this Lease shall ipso facto,
and
without further act on the part of Landlord, terminate, and (2) if such Default
of Tenant shall occur after the Commencement Date, Landlord may terminate this
Lease by notice to Tenant, and thereupon this Lease shall come to an end as
fully and completely as if such date were the date herein originally fixed
for
the expiration of the Term of this Lease, and Tenant will then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
(b)
If
this
Lease shall be terminated as provided in this Article, or if any execution
or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the Premises shall be taken or occupied by someone other than Tenant, then
Landlord may, without notice, re-enter the Premises, either by force, summary
proceedings, ejectment or otherwise, and remove and dispossess Tenant and all
other persons and any and all property from the same, as if this Lease had
not
been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end.
(c)
In
the
event of any termination, Tenant shall pay the Basic Rent, Escalation Charges
and other sums payable hereunder up to the time of such termination, and
thereafter Tenant, until the end of what would have been the Term of this Lease
in the absence of such termination, and whether or not the Premises shall have
been relet, shall be liable to Landlord for, and shall pay to Landlord, as
liquidated current damages, the Basic Rent, Escalation Charges and other sums
which would be payable hereunder if such termination had not occurred, less
the
net proceeds, if any, of any reletting of the Premises, after deducting all
expenses in connection with such reletting, including, without limitation,
all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
advertising, expenses of employees, alteration costs and expenses of preparation
for such reletting. Tenant shall pay such current damages to Landlord monthly
on
the days which the Basic Rent would have been payable hereunder if this Lease
had not been terminated.
(d)
At
any
time after such termination, whether or not Landlord shall have collected any
such current damages, as liquidated final damages and in lieu of all such
current damages beyond the date of such demand, at Landlord's election Tenant
shall pay to Landlord an amount equal to the excess, if any, of the Basic Rent,
Escalation Charges and other sums as hereinbefore provided which would be
payable hereunder from the date of such demand (assuming that, for the purposes
of this paragraph, annual payments by Tenant on account of Taxes, Utility
Expenses and Operating Expenses would be the same as the payments required
for
the immediately preceding Operating or Tax Year) for what would be the then
unexpired Term of this Lease if the same had remained in effect, over the then
fair net rental value of the Premises for the same period.
(e)
In
the
case of any Default of Tenant, re-entry, expiration and dispossession by summary
proceeding or otherwise, Landlord may (i) re-let the Premises or any part or
parts thereof, either in the name of Landlord or otherwise, for a term or terms
which may at Landlord's option be equal to or less than or exceed the period
which would otherwise have constituted the balance of the Term of this Lease
and
may grant concessions or free rent to the extent that Landlord considers
advisable and necessary to re-let the same and (ii) may make such reasonable
alterations, repairs and decorations in the Premises as Landlord in its sole
judgment considers advisable and necessary for the purpose of reletting the
Premises; and the making of such alterations, repairs and decorations shall
not
operate or be construed to release Tenant from liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatsoever for failure to re-let
the Premises, or, in the event that the Premises are re-let, for failure to
collect the rent under such re-letting. Tenant hereby expressly waives any
and
all rights of redemption granted by or under any present or future laws in
the
event of Tenant being evicted or dispossessed, or in the event of Landlord
obtaining possession of the Premises, by reason of the violation by Tenant
of
any of the covenants and conditions of this Lease.
-22-
(f)
Tenant
further agrees that Landlord may file suit from time to time to recover any
sums
due under the terms of this Lease and that no recovery of any portion due
Landlord hereunder shall be a defense to any subsequent action brought for
any
amount not theretofore reduced to judgment in favor of Landlord. Reletting
the
Premises shall not be construed as an election on the part of Landlord to
terminate this Lease, and notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach, whereupon the foregoing provisions with respect to
termination shall apply. Nothing herein shall be deemed to require Landlord
to
await the date whereon this Lease or the Term hereof would have expired by
limitation had there been no such default by Tenant, or no such termination,
as
the case may be.
(g)
If
a
Guarantor of this Lease is named in Section 1.2, the happening of any of the
events described in paragraphs (a)(iv) or (a)(v) of this Section 13.1 with
respect to the Guarantor shall constitute a Default of Tenant
hereunder.
(h)
The
specified remedies to which Landlord may resort hereunder are not intended
to be
exclusive of any remedies or means of redress to which Landlord may at any
time
be entitled to lawfully, and Landlord may invoke any remedy (including the
remedy of specific performance) allowed at law or in equity as if specific
remedies were not herein provided for.
(i)
All
costs
and expenses incurred by or on behalf of Landlord (including, without
limitation, attorneys' fees and expenses) in enforcing its rights hereunder
or
occasioned by any Default of Tenant shall be paid by Tenant.
13.2 LANDLORD'S
DEFAULT.
Landlord
shall in no event be in default of the performance of any of Landlord's
obligations hereunder unless and until Landlord shall have unreasonably failed
to perform such obligation within a period of time reasonably required to
correct any such default, after notice by Tenant to Landlord specifying wherein
Landlord has failed to perform any such obligations.
-23-
ARTICLE
XIV
MISCELLANEOUS
PROVISIONS
14.1 EXTRA
HAZARDOUS USE.
Tenant
covenants and agrees that Tenant will not do or permit anything to be done
in or
upon the Premises, or bring in anything or keep anything therein, which shall
increase the rate of property or liability insurance on the Premises or of
the
Building above the standard rate applicable to premises being occupied for
Permitted Uses; and Tenant further agrees that, in the event that Tenant shall
do any of the foregoing, Tenant will promptly pay to Landlord, on demand, any
such increase resulting therefrom, which shall be due and payable as an
additional charge hereunder.
14.2 WAIVER.
(a)
Failure on the part of Landlord or Tenant to complain of any action or
non-action on the part of the other, no matter how long the same may continue,
shall never be a waiver by Tenant or Landlord, respectively, of any of the
other's rights hereunder. Further, no waiver at any time of any of the
provisions hereof by Landlord or Tenant shall be construed as a waiver of any
of
the other provisions hereof, and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any action
by
the other requiring such consent or approval shall not be construed to waive
or
render unnecessary Landlord's or Tenant's consent or approval to or of any
subsequent similar act by the other.
(b)
No
payment by Tenant, or acceptance by Landlord, of a lesser amount than shall
be
due from Tenant to Landlord shall be treated otherwise than as a payment on
account of the earliest installment of any payment due from Tenant under the
provisions hereof. The acceptance by Landlord of a check for a lesser amount
with an endorsement or statement thereon, or upon any letter accompanying such
check, that such lesser amount is payment in full, shall be given no effect,
and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
14.3 COVENANT
OF QUIET ENJOYMENT.
Tenant,
subject to the terms and provisions of this Lease, on payment of the Basic
Rent
and Escalation Charges and observing, keeping and performing all of the other
terms and provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy
the Premises during the term hereof, without hindrance or ejection by any
persons lawfully claiming under Landlord to have title to the Premises superior
to Tenant; the foregoing covenant of quiet enjoyment is in lieu of any other
covenant, express or implied.
14.4 LANDLORD'S
LIABILITY.
(a)
Tenant acknowledges and agrees that Landlord's liability shall be limited to
Landlord's equity interest in the Property without recourse to any other assets
of Landlord. Tenant specifically agrees to look solely to Landlord's then
interest in the Property at the time owned, for recovery of any judgment from
Landlord and not to any other assets of Landlord; it being specifically agreed
that neither Landlord (original or successor) nor any of its assigns, agents,
servants, employees, directors, shareholders, officers, trustees and
beneficiaries shall ever be personally liable for any such judgment, or for
the
payment of any monetary obligation to Tenant. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or to take any action not involving the
personal liability of Landlord (original or successor) to respond in monetary
damages from Landlord's assets other than Landlord's equity interest in the
Property.
-24-
(b)
With
respect to any services or utilities to be furnished by Landlord to Tenant,
Landlord shall in no event be liable for failure to furnish the same when
prevented from doing so by Force Majeure, strike, lockout, breakdown, accident,
order or regulation of or by any governmental authority, or failure of supply,
or inability by the exercise of reasonable diligence to obtain supplies, parts
or employees necessary to furnish such services, or because of war or other
emergency, or for any cause beyond Landlord's reasonable control, or for any
cause due to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees or any person claiming by, through or under Tenant; nor
shall any such failure give rise to any claim in Tenant's favor that Tenant
has
been evicted, either constructively or actually, partially or
wholly.
(c) In
no
event shall Landlord ever be liable to Tenant for any loss of business or any
other indirect or consequential damages suffered by Tenant from whatever
cause.
(d)
With
respect to any repairs or restoration which are required or permitted to be
made
by Landlord, the same may be made during normal business hours and Landlord
shall have no liability for damages to Tenant for inconvenience, annoyance
or
interruption of business arising therefrom, except as expressly provided in
Section 7.6 of this Lease.
14.5 NOTICE
TO MORTGAGEE OR GROUND LESSOR.
After
receiving notice from any person, firm or other entity that it holds a mortgage
or a ground lease which includes the Premises, no notice from Tenant to Landlord
alleging any default by Landlord shall be effective unless and until a copy
of
the same is given to such holder or ground lessor (provided Tenant shall have
been furnished in writing with the name and complete mailing address of such
holder or ground lessor), and the curing of any of Landlord's defaults by such
holder or ground lessor shall be treated as performance by
Landlord.
14.6 ASSIGNMENT
OF RENTS AND TRANSFER OF TITLE.
(a) With
reference to any assignment by Landlord of Landlord's interest in this Lease,
or
the rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage on property which includes the
Premises, Tenant agrees that the execution thereof by Landlord, and the
acceptance thereof by the holder of such mortgage, shall never be treated as
an
assumption by such holder of any of the obligations of Landlord hereunder unless
such holder shall, by notice sent to Tenant, specifically otherwise elect and
that, except as aforesaid, such holder shall be treated as having assumed
Landlord's obligations hereunder only upon foreclosure of such holder's mortgage
and the taking of possession of the Premises.
(b)
In
no
event shall the acquisition of Landlord's interest in the Property by a
purchaser which, simultaneously therewith, leases Landlord's entire interest
in
the Property back to the seller thereof be treated as an assumption by operation
of law or otherwise, of Landlord's obligations hereunder, but Tenant shall
look
solely to such seller-lessee, and its successors from time to time in title,
for
performance of Landlord's obligations hereunder. In any such event, this Lease
shall be subject and subordinate to the lease to such purchaser. For all
purposes, such seller-lessee, and its successors in title, shall be the Landlord
hereunder unless and until Landlord's position shall have been assumed by such
purchaser-lessor.
-25-
(c)
Except
as
provided in paragraph (b) of this Section, in the event of any transfer of
title
to the Property by Landlord, Landlord shall thereafter be entirely freed and
relieved from the performance and observance of all covenants and obligations
hereunder except such as may have already accrued and unsatisfied prior to
such
transfer of title.
14.7 RULES
AND REGULATIONS.
Tenant
shall abide by rules and regulations set forth in Exhibit C attached hereto
and
those rules and regulations from time to time established by Landlord, it being
agreed that such rules and regulations will be established and applied by
Landlord in a non-discriminatory fashion, such that all rules and regulations
shall be generally applicable to other tenants of the Building of similar nature
to the Tenant named herein. Landlord agrees to use reasonable efforts to insure
that any such rules and regulations are uniformly enforced, but Landlord shall
not be liable to Tenant for violation of the same by any other tenant or
occupant of the Building, or persons having business with them. In the event
that there shall be any conflict between such rules and regulations and the
provisions of this Lease, the provisions of this Lease shall
control.
14.8 ADDITIONAL
CHARGES.
If
Tenant shall fail to pay when due any sums under this Lease designated or
payable as an additional charge, Landlord shall have the same rights and
remedies as Landlord has hereunder for failure to pay Basic Rent.
14.9 INVALIDITY
OF PARTICULAR PROVISIONS.
If any
term or provision of this Lease, or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder
of
this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by Law.
14.10 PROVISIONS
BINDING, ETC.
Except
as herein otherwise provided, the terms hereof shall be binding upon and shall
inure to the benefit of the successors and assigns, respectively, of Landlord
and Tenant and, if Tenant shall be an individual, upon and to his heirs,
executors, administrators, successors and assigns. Each term and each provision
of this Lease to be performed by Tenant shall be construed to be both a covenant
and a condition. The reference contained to successors and assigns of Tenant
is
not intended to constitute a consent to assignment by Tenant, but has reference
only to those instances in which Landlord may later give consent to a particular
assignment as required by those provisions of Article VI hereof.
14.11 RECORDING.
Tenant
agrees not to record this Lease, but each party hereto agrees, on the request
of
the other, to execute a so-called notice of lease in form recordable and
complying with applicable law and reasonably satisfactory to Landlord's
attorneys. In no event shall such document set forth the rent or other charges
payable by Tenant under this Lease; and any such document shall expressly state
that it is executed pursuant to the provisions contained in this Lease, and
is
not intended to vary the terms and conditions of this Lease.
-26-
14.12 NOTICES.
Whenever, by the terms of this Lease, notices, consents or approvals shall
or
may by given either to Landlord or to Tenant, such notices, consents or
approvals shall be in writing and shall be sent by (i) nationally recognized
overnight delivery service with signature required on delivery or (ii)
registered or certified mail, return receipt requested, postage
prepaid:
-27-
If
intended for Landlord, addressed to Landlord at:
Landlord's
Original Address
(or
to
such other address as may from time to time hereafter be designated by Landlord
by like notice).
with
a
copy to:
Essex
River Management, Inc.
c/o
Essex
River Ventures, Inc.
000
Xxxxxx Xxxxxx
- 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
If
intended for Tenant, addressed to Tenant at Tenant's Original Address until
the
Commencement Date and thereafter to the Premises (or to such other address
or
addresses as may from time to time hereafter be designated by Tenant by like
notice.)
All
such
notices shall be effective when delivered if sent by overnight courier and
if by
US Mail when deposited in the United States Mail within the Continental United
States, provided that the same are received in ordinary course at the address
to
which the same were sent.
14.13 WHEN
LEASE BECOMES BINDING.
The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated
herein and this Lease expressly supersedes any proposals or other written
documents relating hereto. This Lease may be modified or altered only by written
agreement between Landlord and Tenant, and no act or omission of any employee
or
agent of Landlord shall alter, change or modify any of the provisions
hereof.
14.14 PARAGRAPH
HEADINGS.
The
paragraph headings throughout this instrument are for convenience and reference
only, and the words contained therein shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction, or meaning of the
provisions of this Lease.
14.15 RIGHTS
OF MORTGAGEE OR GROUND LESSOR.
This
Lease shall be subordinate to any mortgage or ground lease from time to time
encumbering the Premises, whether executed and delivered prior to or subsequent
to the date of this Lease, if the holder of such mortgage or ground lease shall
so elect. If this Lease is subordinate to any mortgage or ground lease and
the
holder thereof (or successor) shall succeed to the interest of Landlord, at
the
election of such holder (or successor) Tenant shall attorn to such holder and
this Lease shall continue in full force and effect between such holder (or
successor) and Tenant. Tenant agrees to execute such instruments of
subordination or attornment in confirmation of the foregoing agreement as such
holder may request, and Tenant hereby appoints such holder as Tenant's
attorney-in-fact to execute such subordination or attornment agreement upon
default of Tenant in complying with such holder's request. Landlord shall use
commercially reasonable efforts to obtain from Landlord's mortgagee a
Subordination, Non-Disturbance and Attornment Agreement in form and substance
satisfactory to Landlord's mortgagee. "Commercially reasonable efforts" shall
not require Landlord to pay any money.
-28-
14.16 ESTOPPEL
CERTIFICATE.
Recognizing that both parties may find it necessary to establish to third
parties, such as accountants, banks, mortgagees, ground lessors, or the like,
the then current status of performance hereunder, either party, within fifteen
(15) days following any written request of the other made from time to time,
will promptly furnish to Landlord, or the holder of any mortgage or ground
lease
encumbering the Premises, or to Tenant, as the case may be, a statement of
the
status of any matter pertaining to this Lease, including, without limitation,
acknowledgment that (or the extent to which) each party is in compliance with
its obligations under the terms of this Lease. Tenant's failure to deliver
such
statement to Landlord and/or any prospective mortgagee or purchaser designated
by Landlord within such time (x) shall be conclusive upon Tenant (i) that this
Lease is in full force and effect, without modification except as may be
represented by Landlord, (ii) that there are no uncured defaults in the
Landlord's performance and (iii) that no more than one (1) month's rental has
been paid in advance and (y) at Landlord's election, five (5) business days
following notice of such election, shall constitute a Default of Tenant
hereunder.
14.17 SECURITY
DEPOSIT.
Concurrently with the execution and delivery of this Lease, Tenant shall deposit
the Security Deposit specified in Section 1.2 hereof with Landlord. Landlord
shall hold the same as security for the performance by Tenant of all obligations
on the part of Tenant hereunder. Landlord shall have the right from time to
time
without prejudice to any other remedy Landlord may have on account thereof,
to
apply such deposit, or any part thereof, to Landlord's damages arising from,
or
to cure, any Default of Tenant. If Landlord shall so apply any or all of such
deposit, Tenant shall immediately deposit with Landlord the amount so applied
to
be held as security hereunder. There then existing no Default of Tenant,
Landlord shall return the deposit, or so much thereof as shall theretofore
not
been applied in accordance with the terms of this Section 14.17, to Tenant
on
the date which is the last to occur of (i) the date which is thirty (30) days
after the last day of the Term of this Lease or (ii) the date which is thirty
(30) days after the date of delivery of the entire Premises to Landlord in
accordance with the terms of this Lease or (iii) the date which is thirty (30)
days after the last of Tenant's monetary obligations to Landlord under this
Lease have been paid and satisfied in full. While Landlord holds such deposit,
Landlord shall have no obligation to pay interest on the same and shall have
the
right to commingle the same with Landlord's other funds. If Landlord conveys
Landlord's interest under this Lease, the deposit, or any part thereof not
previously applied, may be turned over by Landlord to Landlord's grantee, and,
if so turned over, Tenant agrees to look solely to such grantee for proper
application of the deposit in accordance with the terms of this Section 14.17,
and the return thereof in accordance therewith. The holder of a mortgage shall
not be responsible to Tenant for the return or application of any such deposit,
whether or not it succeeds to the position of Landlord hereunder, unless such
deposit shall have been received in hand by such holder.
-29-
14.18 REMEDYING
DEFAULTS.
Landlord
shall have the right, but shall not be required, to pay such sums or to do
any
act which requires the expenditure of monies which may be necessary or
appropriate by reason of the failure or neglect of Tenant to perform any of
the
provisions of this Lease, and in the event of the exercise of such right by
Landlord, Tenant agrees to pay to Landlord forthwith upon demand all such sums,
together with interest thereon at a rate equal to 3% over the prime rate in
effect from time to time at Bank of America or such other banking institution
in
Boston, MA as designated from time to time by Landlord (but in no event greater
than the maximum rate of interest permitted by law), as an additional charge.
14.19 HOLDING
OVER.
Any
holding over by Tenant after the expiration or earlier termination of the Term
of this Lease shall be treated as a daily tenancy at sufferance at a rate equal
to the then fair rental value of the Premises but in no event less than two
(2)
times the sum of (i) Basic Rent and (ii) Escalation Charges in effect on the
expiration or termination date. Tenant shall also pay to Landlord all damages,
direct and/or indirect (including any loss of a tenant or rental income),
sustained by reason of any such holding over. Otherwise, such holding over
shall
be on the terms and conditions set forth in this Lease as far as applicable.
14.20 WAIVER
OF SUBROGATION.
Insofar
as, and to the extent that, the following provision shall not make it impossible
to secure insurance coverage obtainable from responsible insurance companies
doing business in the locality in which the Property is located (even though
extra premium may result therefrom) Landlord and Tenant mutually agree that
any
property damage insurance carried by either shall provide for the waiver by
the
insurance carrier of any right of subrogation against the other, and they
further mutually agree that, with respect to any damage to property, the loss
from which is covered by insurance then being carried by them, respectively,
the
one carrying such insurance and suffering such loss releases the other of and
from any and all claims with respect to such loss to the extent of the insurance
proceeds paid with respect thereto.
14.21 SURRENDER
OF PREMISES.
Upon the
expiration or earlier termination of the Term of this Lease, Tenant shall
peaceably quit and surrender to Landlord the Premises in neat and clean
condition and in substantially the same condition as of the Commencement Date,
reasonable wear and tear excepted, together with all alterations, additions
and
improvements which may have been made or installed in, on or to the Premises
prior to or during the Term of this Lease, excepting only ordinary wear and
use
and damage by fire or other casualty for which, under other provisions of this
Lease, Tenant has no responsibility of repair and restoration. Tenant shall
remove all of Tenant's Removable Property and, to the extent specified by
Landlord, all alterations and additions made by Tenant and all partitions wholly
within the Premises; and shall repair any damage to the Premises or the Building
caused by such removal. Any Tenant's Removable Property which shall remain
in
the Building or on the Premises after the expiration or termination of the
Term
of this Lease shall be deemed conclusively to have been abandoned, and either
may be retained by Landlord as its property or may be disposed of in such manner
as Landlord may see fit, at Tenant's sole cost and expense.
14.22 INTENTIONALLY
DELETED.
-30-
14.23 BROKERAGE.
Tenant
warrants and represents that Tenant has dealt with no broker in connection
with
the consummation of this Lease and, in the event of any brokerage claims against
Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend
the
same and indemnify Landlord against any such claim.
14.24 SPECIAL
TAXATION PROVISIONS.
Landlord
shall have the right at any time and from time to time, to unilaterally amend
the provisions of this Lease if Landlord is advised by its Counsel that all
or
any portion of the monies paid by Tenant to Landlord hereunder are, or may
be
deemed to be, unrelated business income within the meaning of the United States
Internal Revenue Code, or any regulation issued thereunder, and Tenant agrees
that it will execute all documents or instruments necessary to effect such
amendment or amendments, provided that no such amendment shall result in Tenant
having to pay in the aggregate more money on account of its occupancy of the
demised premises under the provisions of this Lease as so amended and provided
further, that no such amendment or amendments shall result in Tenant receiving
under the provisions of this Lease less services than it is entitled to receive
nor services of a lesser quality. Anything contained in the foregoing provisions
of this Lease (including, without limitation, Article VI hereof) to the contrary
notwithstanding, neither Tenant nor any other person having an interest in
the
possession, use, occupancy or utilization of the Premises, shall enter into
any
lease, sublease, license, concession or other agreement for use, occupancy,
utilization of space in the Premises which provides for rental or other payment
for such use, occupancy or utilization of space, in whole or in part, on the
net
income or profits derived by any person from the Premises leased, used, occupied
or utilized (other than an amount based on a fixed percentage or percentage
of
receipts for sales) and any such recorded lease, sublease, license, concession
or other agreement shall be absolutely void and ineffective as a conveyance
of
any right or interest in the possession, use, occupancy or utilization of any
part of the Premises.
14.25 HAZARDOUS
MATERIALS.
Tenant
shall not (either with or without negligence) cause or permit the escape,
disposal, release or threat of release of any biologically or chemically active
or other Hazardous Materials (as said term is hereafter defined) on, in, upon
or
under the Property or the Premises. Tenant shall not allow the generation,
storage, use or disposal of such Hazardous Materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for
the
generation, storage, use and disposal of such Hazardous Materials, nor allow
to
be brought into the Property any such Hazardous Materials except for use in
the
ordinary course of Tenant's business, and then only after written notice is
given to Landlord of the identity of such Hazardous Materials. If any lender
or
governmental agency shall ever require testing to ascertain whether or not
there
has been any release of Hazardous Materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional charges
but
only if a release of Hazardous Materials is found to have occurred at the
Premises, the Building or the Property during Tenant's occupancy as the result
of the acts or omissions of Tenant or its agents, employees, contractors or
invitees. In addition, Tenant shall execute affidavits, representations and
the
like, from time to time, at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of Hazardous Materials on the
Premises.
-31-
The
Tenant shall, at its own expense, remove, clean up, remedy and dispose of (in
compliance with all applicable laws, rules and regulations) all Hazardous
Materials generated or released by the Tenant or its officers, directors,
employees, contractors, servants, invitees, agents or any other person acting
under Tenant during the term of this Lease (or during such term as the Tenant
is
in occupancy or possession of any part of the Premises, the Building or the
Property) at or from the Premises, the Building or the Property in compliance
with all Environmental Laws (as said term is hereafter defined) and further,
shall remove, clean up, remedy and dispose of all Hazardous Materials located
at, upon, under, within or in the Premises, the Building or the Property
generated by or resulting from its operations, activities or processes during
the term of this Lease (or such other periods of time as the Tenant may be
in
occupancy or in possession of the Premises or any portion of the Property or
Building), in compliance with all Environmental Laws. In performing its
obligations hereunder, the Tenant shall use best efforts to avoid interference
with the use and enjoyment of the Building and the Property by other tenants
and
occupants thereof. The provisions hereof shall survive expiration or termination
of this Lease.
The
Tenant shall indemnify, defend and save harmless the Landlord and its officers,
directors, shareholders, employees, contractors, servants, invitees,
representatives and agents from and against all loss, costs, damages, claims,
proceedings, demands, liabilities, penalties, fines and expenses, including
without limitation, reasonable fees and costs for attorneys’ fees, consultants’
fees, litigation costs and clean-up costs asserted against or incurred by the
Landlord, its officers, directors, shareholders, employees, contractors,
servants, invitees representatives or agents at any time by reason of or arising
out of (i) any release or threat of release of any Hazardous Materials at,
in,
upon, under or from the Premises, the Building or the Property where such
release or threat of release is the result of the acts or omissions of the
Tenant or its agents, servants, employees, contractors or invitees, or (ii)
any
violation or alleged violation of any Environmental Laws governing Hazardous
Materials where such violation or alleged violation is the result of the acts
or
omissions of the Tenant or its agents, servants, employees, contractors,
invitees, or any other person acting under Tenant. The indemnities set forth
in
this Section shall survive expiration or termination of this Lease.
In
addition to the requirements set forth above, the Tenant shall, within ten
(10)
days of receipt, provide to the Landlord copies of any inspection or other
reports, correspondence, documentation, orders, citations, notices, directives,
or suits from or by any governmental authority or insurer regarding
non-compliance with or potential or actual violation of Environmental Laws.
The
Landlord hereby expressly reserves the right to enter the Premises and all
other
portions of the Building and the Property in order to perform inspections and
testing of the air, soil and groundwater for the presence or existence of
Hazardous Materials.
As
used
herein, the term “Hazardous Materials” shall mean and include, without
limitation, any material or substance which is (i) petroleum, (ii) asbestos,
(iii) designated as a “hazardous substance” pursuant to Section 311 of the
Federal Water Pollution Control Act, 33 U.S.C. SS 1251 et seq. (33 U.S.C. SS
1321) or listed in SS 307 of the Federal Water Pollution Control Act (33 U.S.C.
SS 1317), (iv) defined as a “hazardous waste” pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. SS 6901 et seq. (42 U.S.C.
SS
6903), (v) defined as a “hazardous substance” pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
SS 9601 et seq. (42 U.S.C. SS 9601), as amended and regulations promulgated
thereunder, or (vi) defined as “oil” or a “hazardous waste”, a “hazardous
substance”, a “hazardous material” or a “toxic material” under any other law,
rule or regulation applicable to the Property, including, without limitation,
Chapter 21E of the Massachusetts General Laws, as amended and the regulations
promulgated thereunder. As used herein, the term “Environmental Laws” shall
mean, without limitation, each and every law, rule, order, statute or regulation
described above in this Section, together with (i) any amendments thereto,
or
regulations promulgated thereunder and (ii) any other laws pertaining to the
protection of the environment or governing the use, release, storage, generation
or disposal of Hazardous Materials, whether now existing or hereafter enacted
or
promulgated.
-32-
14.26 GOVERNING
LAW.
This
Lease shall be governed exclusively by the provisions hereof and by the laws
of
the Commonwealth of Massachusetts, as the same may from time to time
exist.
14.27 INDEPENDENT
COVENANT.
Tenant
acknowledges and agrees that its covenant to pay Basic Rent, Escalation Charges
and other sums payable as additional charges hereunder and to observe, perform
and comply with any other obligations of Tenant hereunder is independent of
Landlord's obligation to act or refrain from acting hereunder, and that in
the
event that Tenant shall have a claim against Landlord, Tenant shall not have
the
right to deduct the amount allegedly owed to Tenant from any Basic Rent,
Escalation Charges or other sums payable as additional charges due hereunder,
it
being understood that Tenant's sole remedy for recovering upon such claim shall
be to bring an independent legal action against Landlord.
14.28 SURVIVAL
PROVISION.
It is
expressly understood and agreed that any indemnification by Tenant contained
in
this Lease shall survive any expiration or earlier termination of this
Lease.
[Remainder
of Page Intentionally Left Blank - Signature Page Follows]
-33-
IN
WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly executed,
under seal, by persons hereunto duly authorized, in multiple copies, each to
be
considered an original hereof, as of the date first set forth
above.
| TENANT: | ||
| ZOOM TELEPHONICS, INC. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxx | |
|
Its: President |
||
| LANDLORD: | ||
| ESSEX RIVER VENTURES, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxx | |
|
Its: Executive Vice President |
||
-34-
EXHIBIT
A
PLAN
SHOWING PREMISES
EXHIBIT
B
INTENTIONALLY
OMITTED
EXHIBIT
C
RULES
AND
REGULATIONS
1. The
sidewalks, paved and/or landscaped areas shall not be obstructed or encumbered
by Tenant or used for any purpose other than ingress and egress to and from
the
demised premises.
2. No
sign,
advertisement, notice or other lettering shall be exhibited, inscribed, painted
or affixed by Tenant on any part of the demised premises or Building so as
to be
visible from outside the demised premises without the prior written consent
of
Landlord, which will not be unreasonably withheld or delayed. In the event
of
any violation of this paragraph, Landlord may remove same without any liability,
and may charge the expense incurred in such removal to Tenant, as additional
rent.
3. No
awnings, curtains, blinds, shades, screens or other projections shall be
attached to or hung in, or used in connection with, any window of the demised
premises or any outside wall of the Building without the prior written consent
of Landlord, which will not be unreasonably withheld or delayed so long as said
awning or other item conforms to similar items installed in or upon other
portions of the Building. Such awnings, curtains, blinds, shades, screens or
other projections must be of a quality, type, design and color, and attached
in
the manner, approved by Landlord. If any portion of the demised premises which
is not used for office purposes shall have windows, such windows shall be
equipped with curtains, blinds or shades approved by Landlord, and said
curtains, blinds or shades shall be kept closed at all times.
4. The
water
and wash closets and other plumbing fixtures shall not be used for any purposes
other than those for which they were designed and constructed, and no sweepings,
rubbish, rags, acids, chemicals, process water, cooling water or like substances
shall be deposited therein. Said plumbing fixtures and the plumbing system
of
the Building shall be used only for discharge of so-called sanitary waste.
All
damage resulting from any misuse of said fixtures and/or plumbing system by
Tenant or anyone claiming under Tenant shall be borne by Tenant.
5. Tenant
must, upon the termination of its tenancy, return to Landlord all locks,
cylinders and keys to the demised premises and any offices therein.
6. Intentionally
Deleted.
7. Tenant
shall, at Tenant's expense, provide artificial light and electric current for
the employees of Landlord and/or Landlord's contractors while making repairs
or
alterations in the demised premises.
8.
Tenant
shall not make, or permit to be made, any unseemly or disturbing odors or noises
or disturb or interfere with occupants of the Building or those having business
with them, whether by use of any musical instrument, radio, machine, or in
any
other way.
9. Canvassing,
soliciting, and peddling in the Building are prohibited and Tenant shall
cooperate to prevent the same.
10. Tenant
shall keep the demised premises free at all time of pests, rodents and other
vermin, and Tenant shall keep all trash and rubbish stored in containers of
a
type approved by Landlord, such containers to be kept at locations designated
by
Landlord. Tenant shall cause such containers to be emptied whenever necessary
to
prevent them from overflowing or from producing any objectionable
odors.
11. Landlord
reserves the right to rescind, alter, waive and/or establish any reasonable
rules and regulations of uniform application to all tenants which, in its
judgment, are necessary, desirable or proper for its best interests and the
best
interests of the occupants of the Building.
12. The
access roads, driveways, entrances and exits shall not be obstructed or
encumbered by Tenant or used for any purpose other than ingress and
egress.
-2-
EXHIBIT
D
INTENTIONALLY
OMITTED
EXHIBIT
E
(ITEMS
INCLUDED IN UTILITY
EXPENSES
AND OPERATING EXPENSES)
A. Without
limitation, Utility Expenses shall include:
Costs
for
electricity, fuel, oil, gas, steam, water and sewer use charges and other
utilities supplied to the Property and not paid for directly by tenants. Utility
Expenses shall not include Tenant’s charges for electricity used or consumed in
the Premises, which charges are paid directly by Tenant to the utility
provider.
B. Without
limitation, Operating Expenses shall include:
1. All
expenses incurred by Landlord or Landlord's representatives which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social security,
unemployment and similar taxes, workmen's compensation insurance, disability
benefits, pensions, hospitalization, retirement plans and group insurance,
uniforms and working clothes and the cleaning thereof, and expenses imposed
on
Landlord or Landlord's agents in connection with the operation, repair,
maintenance, cleaning, management and protection of the Property, and its
mechanical systems including, without limitation, day and night supervisors,
property manager, accountants, bookkeepers, janitors, carpenters, engineers,
mechanics, electricians and plumbers and personnel engaged in supervision of
any
of the persons mentioned above: provided that, if any such employee is also
employed on other property of Landlord, such compensation shall be suitably
allocated by Landlord among the Property and such other properties.
2. The
cost
of services, materials and supplies furnished or used in the operation, repair,
maintenance, cleaning, management and protection of the Property including,
without limitation, fees and assessments, if any, imposed upon Landlord, or
charged to the Property, by any governmental agency or authority or other duly
authorized private or public entity on account of public safety services,
transit, housing, police, fire, sanitation or other services or purported
benefits.
3. The
cost
of replacements for tools and other similar equipment used in the repair,
maintenance, cleaning and protection of the Property, provided that, in the
case
of any such equipment used jointly on other property of Landlord, such costs
shall be allocated by Landlord among the Property and such other
properties.
4. Premiums
for insurance against damage or loss to the Building from such hazards as shall
from time to time be generally required by institutional mortgagees in the
Boston area for similar properties, including, but not by way of limitation,
insurance covering loss of rent attributable to any such hazards, and public
liability insurance.
5. Where
the
Property is managed by Landlord or an affiliate of Landlord, a sum equal to
the
amounts customarily charged by management firms in the Boston area for similar
properties, but in no event more than six percent (6%) of gross annual income
derived from the Property, whether or not actually paid, or where managed by
other than Landlord or an affiliate thereof, the amounts accrued for management,
together with, in either case, amounts accrued for legal and other professional
fees relating to the Property, but excluding such fees and commissions paid
in
connection with services rendered for securing or renewing leases and for
matters not related to the normal administration and operation of the
Building.
6. If,
during the Term of this Lease, Landlord shall make a capital expenditure, the
total cost of which is not properly includable in Operating Expenses for the
Operating Year in which it was made, there shall nevertheless be included in
such Operating Expenses for the Operating Year in which it was made and in
Operating Expenses for each succeeding Operating Year, an annual charge-off
of
such capital expenditure. The annual charge-off shall be determined by dividing
the original capital expenditure plus an interest factor, reasonably determined
by Landlord, as being the interest rate then being charged for long-term
mortgages, by institutional lenders on like properties within the locality
in
which the Building is located, by the number of years of useful life of the
capital expenditure, and the useful life shall be determined reasonably by
Landlord in accordance with generally accepted accounting principles and
practices in effect at the time of making such expenditure.
7. Betterment
assessments provided the same are apportioned equally over the longest period
permitted by law.
8. Amounts
paid to independent contractors for services, materials and supplies furnished
for the operation, repair, maintenance, cleaning and protection of the
Property.
-2-
EXHIBIT
F
(Cleaning
Specifications)
A. Premises
Daily
on
Business Days except Saturdays, Sundays and those certain holidays specified
in
the definition of "Business Days" in the Lease:
1. Empty
all
waste receptacles and ash trays and remove waste material from the
Premises.
2. Sweep
and
dust mop all uncarpeted areas using a dust-treated mop.
3. Vacuum
all rugs and carpeted areas.
4. Hand
dust
and wipe clean with treated cloths all horizontal surfaces including furniture,
office equipment, window xxxxx, door ledges, chair rails and counter tops,
within normal reach.
5. Wash
clean all water fountains.
6. Upon
completion of cleaning, all lights will be turned off and doors locked, leaving
the Premises in an orderly condition.
Quarterly:
Render
high dusting not reached in daily cleaning to include:
1. Dusting
all pictures, frames, charts, graphs and similar wall hangings.
2. Dusting
all vertical surfaces, such as walls, partitions, doors and ducts.
3. Dusting
of all pipes, ducts and high moldings.
B. LAVATORIES:
Daily
on
Business Days except Saturdays, Sundays and those certain holidays specified
in
the definition of "Business Days" in the Lease:
1. Sweep
and
damp mop floors.
2. Clean
all
mirrors, powder shelves, dispensers and receptacles, bright work, flushometers,
pipes and toilet seat hinges.
3. Wash
both
sides of all toilet seats.
4. Wash
all
basins, bowls and urinals.
5. Dust
and
clean all powder room fixtures.
6. Empty
and
clean paper towel and sanitary disposal receptacles.
7. Remove
waste paper and refuse.
8. Refill
tissue holders, soap dispensers, towel dispensers, vending sanitary dispensers,
material to be furnished by Landlord.
9. A
sanitizing solution will be used in all lavatory cleaning.
Monthly:
1. Machine
scrub lavatory floors.
2. Wash
all
partitions and tile walls in lavatories.
C. MAIN
LOBBY, ELEVATORS, BUILDING EXTERIOR AND CORRIDORS
Daily
on
Business Days except Saturdays, Sundays and those certain holidays specified
in
the definition of "Business Days" in the Lease:
1. Sweep
and
wash all floors.
2. Wash
all
rubber mats.
3. Clean
elevators, wash or vacuum floors, wipe down walls and doors.
4. Spot
clean any metal work inside lobby.
5. Spot
clean any metal work surrounding building entrance doors.
Monthly:
All
resilient tile floors in public areas to be treated equivalent to spray
buffing.
D. WINDOW
CLEANING:
Windows
of exterior walls will be washed on the outside once every six months and on
the
inside once every six months, weather permitting.
E. Tenant
requiring services in excess of those described above shall request same through
Landlord, at Tenant's expense.
-2-
