EXHIBIT 6.6
LEASE - .
1. IDENTIFICATIGN
This LEASE is made and entered into this as of 7TH day of September, 2000
by and between 170 CAMBRIDGE STREET, L.L.C. (the "Landlord "), having an address
at c/o Connelly Properties, L.L.C., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and CORPORATE SPORTS INCENTIVES', INC., a New Hampshire
corporation (the "Tenant "), having an address at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. LEASE: THE PREMISES
In consideration of the Basic Rent, Additional Rent, and other payments
and covenants of the Tenant hereinafter set forth, and upon the following terms
and conditions, the Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord approximately 1,900 rentable square feet of floor area
as shown on the floor plan attached hereto as exhibit A-1 (the " Premises"), on
the first floor of that certain building (the "Building ") situated on that
certain parcel of land (the "Pro]2ertY")'mown as and numbered ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, as more particularly described in 'bit A
attached hereto. The Premises are leased together with rights,. in common with
the Landlord and all others from time to time lawfully entitled thereto, to use
the driveways, walkways, parking area and other exterior areas of the Property
for their intended purposes.
3. CONDITION OF PREMISES
The Tenant shall accept the Premises in its "as is" condition as of the
date hereof. The Tenant acknowledges and agrees that (a) the Premises are in
good condition and satisfactory to the Tenant in all respects, (b) the Landlord
has no obligation to make any alterations or. improvements to the Premises, and
(c) no representations or warranties have been made by the Landlord or anyone
purporting to act on behalf of the Landlord as to the condition or repair of the
Premises or any portion thereof.
4. TERM
The term of this Lease (the "TERM") shall commence on September 15, 2000
(the "TERM COMMENCEMENT DATE") and shall expire, unless earlier terminated in
accordance with the terms hereof, at midnight on the last day of sixtieth (60th)
full calendar month following the Term Commencement Date.
5. USE-OF THE PREMISES: LICENSES-AND PERMITS
The Tenant shall use the Premises only for general office use, to the
extent now and hereafter from, time to time permitted under applicable laws,
by-laws, ordinances, codes, rules, regulations, orders and other lawful
requirements of governmental bodies having jurisdiction, and for no other use or
purpose. The Tenant, its subtenants, licensees, invitees and any other users of
the Premises shall apply in their own names for and obtain at their own expense
any and all licenses, permits and other approvals which may be required from
such governmental bodies in connection with any particular use of the Premises
during the Term.
6. RENT
a. BASIC RENT: On the Term Commencement Date, the Tenant shall
pay the sum of $1,187.50 as Basic Rent in respect of the period from the
Term Commencement Date to September 30, 2000. Commencing October 1, 2000
and continuing thereafter, the Tenant shall pay Basic Rent to the
Landlord at the annual rate of Twenty Eight Thousand Five Hundred Dollars
and No Cents ($28,500.00), payable in advance on the first day of each
calendar month during the Term in equal installments of Two Thousand
Three Hundred Seventy-rive Dollars and No Cents ($2,375.00). Basic Rent
shall be payable to the Landlord at the address set forth above or such
other address as the Landlord may thereafter specify by notice to the
Tenant, without counterclaim, set off, deduction or defense and, except
as otherwise expressly provided herein, without abatement.
b. ADDITIONAL RENT.
(1) Basic Rent hereunder includes an allowance for Taxes and
Operating Costs (as those terms are hereinafter (defined) based on the
Landlord's expected costs and expenses for the Premises, the Building and
the Property as of the Term Commencement Date. If at any time (and from
time to time) during the Term, the Landlord estimates that the amount by
which the aggregate of Taxes and Operating Costs incurred by the Landlord
for any given calendar year will exceed Six Dollars ($6.00) for each
rentable square foot in the Premises, the Landlord shall provide the
Tenant with written notice of the estimated amount payable by the Tenant
in respect of the Tenant's Percentage of such deficit amount. Commencing
with the next scheduled monthly rental payment following the Tenant's
receipt of such notice, the Tenant shall prepay to the Landlord, as
Additional Rent hereunder and in the same manner as Basic Rent, 1112 of
the annual amount specified by the Landlord, which prepayments the
Landlord agrees shall be applied, without interest, to such amounts as
they actually become payable. As soon as any- such amounts so payable are
actually determined, but no later than April 30 of each calendar year,
the Landlord shall notify the Tenant of any overpayments or underpayments
made by the Tenant. If the Tenant has made an
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underpayment, the Tenant shall pay the underpaid amount to the Landlord
within thirty (30) days of receiving said notice. If the Tenant has made
an overpayment, the Landlord shall credit the Tenant the amount of such
overpayment against future Basic Rent due under this Lease.
(2) As used herein, "QPERATING COSTS" means (x) any and all
charges, costs, expenses, and obligations of every kind and nature
whatsoever as the Landlord may from time to time actually incur in good
faith with regard to the Premises or the operation or maintenance
thereof, except as otherwise expressly agreed in this Lease, including,
without limiting the generality of the foregoing, reasonable attorneys'
fees incurred by the Landlord in connection with any amendments to,
consents under and subleases and assignments of this Lease requested by
the Tenant and in connection with the enforcement of rights and pursuit
of the remedies of the Landlord under this Lease (whether during or after
the expiration or termination of the Term of this Lease), and (y)
thirty-three percent (33 %) or such other percentage as the rentable
square footage of the Premises bears to the rentable square footage of
the Building (currently 5,800 square feet) from time to time ("TENANT'S
PERCENTAGE") of Common Expenses as hereinafter defined. "COMMON EXPENSES"
shall mean any and all charges, costs and expenses of every kind and
nature whatsoever, which the Landlord may from time to time actually
incur and the reasonable value, based on competitive rates, of any
materials and services which the Landlord may provide in good faith with
respect to the ownership, operation and maintenance of the Building and
the Property, including, without limitation, (i) making repairs to and
undertaking maintenance of the Building and the Property, including all
alterations and improvements to the common areas of the Building; (ii)
providing utilities, including heat, water, sewer, air conditioning and
ventilation, to the Premises and to the common areas of the Building,
expressly excluding electricity service, for which the Tenant shall pay a
separate charge as provided in Paragraph 9; (iii) providing daily
cleaning and rubbish removal from. the common areas; (iv) providing
watering, landscaping and lawn care for the Property; (v) sanding,
plowing and removal of snow and ice from driveways, walkways and parking
areas; (vi) maintaining casualty and liability insurance with respect to
the Landlord, the ; Premises, the Building and the Property; and (vii)
reasonable administrative and management costs of the Landlord.
Notwithstanding the foregoing, Operating Costs shall not
include the following;
(1) except as provided for in subparagraph (5) below,
depreciation, amortization, or the funding of any
replacement or contingency reserve;
(2) expenses incurred by the Landlord for repairs or other work
occasioned by insurable casualty losses, or by
condemnation;
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(3) legal or professional fees incurred by the Landlord in
connection with the lease of space to new tenants, or the
financing of the Property or the Building;
(4) ground lease rent or, payments of any debt or equity
obligations;
(5) costs of alterations, capital improvements, equipment
replacement and other items that are, under GAAP, properly
classified as capital expenditures, PROVIDED, HOWEVER, that
the Landlord may include in Operating Costs, on an annual
basis, the amount of principal and interest payments that
would be required to pay for each capital item over its
useful life (as determined by the Landlord in accordance
with GAAP as in effect at the time of acquisition of the
capital item), on a direct reduction basis, with level
payments of principal and interest, at an annual interest
rate of six percent (6%); .
(6) expenses (including capital expenditures) for any item or
service not provided to the Tenant but provided exclusively
to certain other tenants in the Building; and,
(7) promotional, advertising, or public relations expenses.
Upon request of the Tenant, the Landlord shall provide reasonable
supporting documentation regarding costs and expenses included in
Operating Costs.
c. LATE PAYMENTS. If any payment of Basic Rent or Additional
Rent is not paid to the Landlord when due or within any applicable grace
period hereunder, then at the Landlord's option, and in addition to all
other remedies hereunder, the Tenant shall pay upon demand to the
Landlord as Additional Rent interest thereon at an annual rate equal to
the corporate rate of FleetBoston (or its successor) from time to time in
effect plus four percent (4%), such interest to be computed from the date
such Basic Rent or , Additional Rent was originally due through the date
when paid in full.
7. TAXES
As used herein, "Taxes" shall mean all taxes and excises upon the
personal property and equipment of the Tenant located at the Premises or
▇▇▇.▇▇▇▇▇▇▇▇ and the Tenant's Percentage of any and all real estate taxes,
betterments and special assessments or amounts in lieu or in the nature thereof
and any other taxes, levies, water rents, sewer use charges and other excises,
franchises, imposts and charges, general and special (and the entire amount of
any interest, penalties and costs attributable to delayed payment of the
Tenant's portion thereof where such delay is the fault of the Tenant) of
whatever name and nature, and whether or not
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now within the contemplation of the parties hereto, which may now or hereafter
be levied, assessed or imposed by the United States of America, The Commonwealth
of Massachusetts, the Town of Burlington or any other authority, or become a
lien upon all or any part of the Property, the Building, the Premises, the use
or occupation thereof, or upon the Landlord and the Tenant in respect thereof,
or upon the basis of rentals thereof or therefrom (except for the Landlord's
income, estate, gift or transfer taxes), or upon the estate hereby created, or
upon the Landlord by reason of ownership of the reversion
8. Insurance: Waivers of Subrogation
The Tenant shall, at its own cost and expense, obtain and throughout the
Term shall maintain, with companies qualified to do business in Massachusetts
and acceptable to any Mortgagees (as hereinafter defined) and reasonably
acceptable to the Landlord, for the benefit as additional insureds of the
Landlord arid any Mortgagees as their respective interests may appear,
comprehensive general liability insurance (with contractual liability rider)
against claims for bodily injury, death or property damage occurring to, upon or
about the Premises in limits of $1,000,000 for bodily injury or death and
property damage occurring to, upon or about the Premises. The risk of loss to
all contents of, and personal property and trade fixtures located in, the
Premises is upon the Tenant, and the Landlord shall have no liability with
respect thereto.
The Landlord and the Tenant each hereby release the other from any
liability for any loss or damage to the Building, the Premises or other property
and for injury to or death of persons occurring on the Property or in the
Building or the Premises or in any manner growing out of or connected with the
Tenant's use and occupation of the Premises, the Building or the Property or the
condition thereof, whether or not caused by the negligence or other fault of the
Landlord, the Tenant or their respective agents, employees, subtenants,
licensees, invitees or assignees; provided, however, that this release (i) shall
apply notwithstanding the indemnities set forth in Paragraph 14, but only to the
extent that such loss or damage to the Building or other property or injury to
or death of persons is covered by insurance which protects the Landlord or the
Tenant or both of them as the case may be; (ii) shall not be construed to,
impose any other or greater liability upon either the Landlord or the Tenant
than would have existed in the absence hereof; and (iii) shall be in effect only
to the extent and so long as the applicable insurance policies provide that this
release shall not affect the right of the insureds to recover under such
policies, which clauses shall be obtained by the parties hereto whenever
available.
9. UTILITIES
The Tenant shall be responsible for the cost of electricity for the
Premises, which shall be paid by the Tenant to the Landlord as Additional Rent
at the annual rate of $.85 per rentable square foot of floor area from time to
time within the Premises, payable in monthly
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installments of 1/12 of such annual amount. The Tenant shall also pay, as
Additional Rent, for water beyond normal office usage, telephone service,
overtime and special services as set forth below, and any additional HVAC
facilities used in connection with any room devoted substantially to the
operation of one or more computers, which amounts the Landlord shall reasonably
determine.
The Landlord shall provide to the Premises heat, air conditioning, and
ventilation, on art appropriate seasonal basis, between the hours of 8:00 a.m.
and 6:00 p.m. on Mondays through Fridays. The Landlord shall further, at the
request of the Tenant, provide heat, air conditioning and ventilation at arty
other times, and any special services which the Tenant may reasonably request,
and the Tenant shall pay for such services as Additional Rent. In no event,
however, shall the Landlord be required to provide heat, air conditioning, or
ventilation to the Premises if any action of the Tenant, Act of God, or other
unforeseen circumstances makes it impossible for the Landlord reasonably to do
so. The Landlord shall provide customary cleaning and rubbish removal service to
the Premises on each business day arid customary dumpster services for the
Premises; provided that (i) the Landlord may, if it deems it necessary,
prescribe binding rules to facilitate the orderly provision of these services;
and (ii) the Landlord's duty shall be conclusively deemed relieved and
discharged to the extent that any action by the Tenant, Act of God, or other
unforeseen circumstances makes it impossible for the Landlord reasonably to
provide these cleaning and rubbish removal services. In the event any of such
services are interrupted for any reason other than an action of the Tenant, the
Landlord shall use all commercially reasonable efforts to restore such services
promptly.
10. REPAIRS
From and after the commencement of and during the Tern, the Tenant shall,
at its own cost and expense: (i) make interior non-structural repairs,
replacements arid renewals as necessary to keep the Premises in as good
condition, order and repair as the same are at the commencement of the Term or
thereafter ay be put, reasonable wear and use and damage by fire or other
casualty only excepted (it begin understood, however, that the foregoing
exception for reasonable wear and use shall not relieve the Tenant from the
obligation to keep the Premises in good order, repair and condition); and (ii)
keep and maintain all portions of the Premises in a clean and orderly condition,
free of accumulation of dirt, rubbish, and other debris.
From and after the commencement ]if and during the Term, the Landlord
shall make all necessary repairs, replacements and renewals, interior and
exterior, structural and non-structural, to: keep the roof of the Building free
of leaks and to maintain the foundation, floor slabs and other structural
supports of the Building in good and sound condition, maintenance and repairs
occasioned by the acts or negligence of the Tenant or its agents excepted unless
such acts or negligence are covered by the release provided in Paragraph 8; keep
all electrical, mechanical, heating, ventilating and air conditioning, plumbing,
sprinkler and other building
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systems and the parking areas, and other exterior portions of the Property in as
good condition, order and repair as the same are at the commencement of the Term
or thereafter may be put, damage by fire or other casualty only excepted; and
keep all driveways, walkways, parking areas and other improvements on the
Property free of snow and sanded as appropriate; and keep all lawns and
landscaped areas of the Property watered, fertilized and neatly trimmed.
11. COMPLIANCE WITH LAWS AND REGULATIONS
The Tenant agrees that its obligations to make payment of the Basic Rent,
Additional Rent and all other charges on its part to be paid, and to perform all
of the covenants and agreements on its part to be performed during the Term
hereunder shall not, except as set forth in the event of condemnation by public
authority, be affected by any present or future law, bylaw, ordinance, code,
rule, regulation, order or other lawful requirement regulating or affecting the
use which may be made of the Premises.
During the Term the Tenant shall comply, at its own cost and expense,
with: all applicable laws, by-laws, ordinances, codes, rules, regulations,
orders, and other lawful requirements of the governmental bodies having
jurisdiction, which are applicable to, or by reason of, the Tenant's use of the
Premises or the fixtures and equipment therein and thereon; the orders, rules
and regulations of the National Board of Fire Underwriters, or any other body
hereafter constituted exercising similar functions, which may be applicable to
the Premises, the fixtures and equipment therein or thereon or the use thereof;
and the requirements of all policies of public liability, fire and all other
types of insurance at any time in force with respect to the Premises, the
Building or the property and the fixtures and equipment therein and thereon.
12. ALTERATIONS BY TENANT
The Tenant shall erect no signs and shall make no alterations, additions
or improvements in or to any portion of the Premises or any portion of the
Building or the Property without the Landlord's prior written consent and
without first providing the Landlord with suitable assurance of the Tenant's
obligation to complete the same at no expense to the Landlord and without any
mechanics' or materialmen's lien upon the Property. The Landlord agrees that its
consent (i) shall not be withheld unreasonably with respect to signs requested
by the Tenant provided such signs would comply and at all times shall continue
to comply with all zoning, building and other codes and regulations applicable
thereto, and (ii) shall not be withheld for interior, non-structural
alterations, additions and improvements to the Premises consistent with the use
of the Premises as contemplated hereby. Any such consents to signs and to
interior, non-structural alterations, additions and improvements may, if the
Landlord so advises the Tenant as part of or by notice at the time of any such
consent, be conditioned upon the Tenant's being obligated to remove the same at
the expiration or termination of this Lease
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and to restore the Premises to their condition prior to such alterations,
additions and improvements.
13. LANDLORD'S ACCESS
The Tenant agrees to permit the Landlord and any Mortgagees and their
authorized representatives to enter the Premises (i) at all reasonable times
after at least 24 hours' prior oral notice during usual business hours for the
purposes of inspecting the same, exercising such other rights as it or they may
have hereunder or under any mortgages and exhibiting the same to other
prospective tenants, purchasers or mortgagees and (ii) at any time and without
notice in the event of emergency. In exercising his rights under this Paragraph
13, the Landlord shall use commercially reasonable efforts to minimize
disruption of and interference with the Tenant's business activities at the
Premises.
14. INDEMNITIES
The Tenant agrees to protect, defend (with counsel approved by the
Landlord), indemnify and save the Landlord, any and all affiliates of Landlord,
and their respective partners, members, managers, officers, directors,
contractors, agents and employees (collectively, "LANDLORD PARTIES") harmless
from and against any and all claims and liabilities arising: (i) from the
conduct or management of or from any work or thing whatsoever done in or about
the Premises during the Terra and from any condition existing, or any injury to
or death of persons or damage to property occurring or resulting from any act or
omission during the Term in or about the Premises on the part of the Tenant or
any of its agents, employees, subtenants, licensees, invitees or assignees; and
(ii) from any breach or default on the part of the Tenant in the performance of
any covenant or agreement on the part of the Tenant to be performed pursuant to
the terms of this Lease or from any negligent act or omission on the part of the
Tenant or any of its agents, employees, subtenants, licensees, invitees or
assignees. The Tenant further agrees to indemnify the Landlord from and against
all costs, expenses (including reasonable attorneys' fees) and other liabilities
incurred in connection with any such indemnified claim or action or proceeding
brought thereon, any and all of which, if reasonably , suffered, paid or
incurred by the Landlord, the Tenant shall pay promptly upon demand to the
Landlord as Additional Rent.
15. CASUALTY DAMAGE
Except as provided below, in the event of partial or total destruction of
the Premises during the Term by fire or other casualty, the Landlord shall, as
promptly as practicable after receipt of any insurance proceeds available as a
result of such casualty, repair, reconstruct or replace the portions of the
Premises destroyed as nearly as possible to their condition prior to such
destruction, except that in no event shall the Landlord be obligated to expend
more for such repair, reconstruction or replacement than the amounts of any such
insurance proceeds
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actually received. During the period of such repair, reconstruction and
replacement there shall be an equitable abatement of Basic Rent and Additional
Rent hereunder for up to one (1) year from the date of such casualty in
proportion to the loss of usable floor area in the Premises but only to the
extent no action by the Tenant has voided or made uncollectible lost rentals
insurance for the benefit of the Landlord covering such abatement.
If the Building is so extensively destroyed by fire or other casualty
that an independent engineer or architect certifies that the Premises cannot
reasonably be expected to be susceptible of repair, reconstruction or
replacement within a period of six (6) months from the date work were to
commence thereon, or if any damage results from causes or risks not required to
be insured against by the Landlord hereunder or if any Mortgagee refuses to make
such net proceeds available for such repair, reconstruction or replacement, the
Landlord may terminate this Lease by giving written notice to the Tenant within
thirty (30) days after the date of such destruction. If, despite diligent
efforts, the Landlord has been unable to restore the Premises to their condition
prior to such destruction within nine (9) months following the date of.such
casualty, the Tenant may terminate this Lease by written notice to the Tenant.
In the event of any such notice of termination, this Lease shall terminate as
of, and Basic Rent and Additional Rent shall be appropriately apportioned
through and abated from and after, the date of such notice of termination.
16. CONDEMNATION
If more than twenty percent (20%) of the usable floor area of the
Premises, or more than twenty percent (20 %) of the parking spaces designated
for use by the Tenant shall be taken by eminent domain or appropriated by public
authority or if the Tenant shall be deprived of all suitable vehicular or
pedestrian access to the Premises or the Property by virtue of such a taking or
appropriation, the Landlord or the Tenant may terminate this Lease by giving
written notice to the other within thirty (30) days after such taking or
appropriation. In the event of such a termination, this Lease shall terminate as
of the date the Tenant must surrender possession or, if later, the date the
Tenant actually surrenders possession, and the Basic Rent and Additional Rent
reserved shall be apportioned and paid to and as of such date,
If all or any part of the Premises is taken or appropriated by public
authority as aforesaid and this Lease is not terminated as set forth above, the
Landlord shall, subject to the rights of any Mortgagees, apply any such damages
and compensation awarded (net of the costs and expenses, including reasonable
attorneys' fees, incurred by the Landlord in obtaining the same) to secure and
close so much of the Premises as remain and shall restore the Building to an
architectural whole and except that in no event shall the Landlord be obligated
to expend more for such replacement than the net amount of any such damages,
compensation or award which the Landlord may have received as damages ire
respect of the Building and any other . improvements situated on the Property as
they existed immediately prior to such taking or appropriation; in such event
there shall be an equitable abatement of Basic Rent in proportion
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to the loss of usable floor area in the Premises after giving effect to such
restoration, from and after the date the Tenant must surrender possession or, if
later, the date the Tenant actually surrenders possession.
The Landlord hereby reserves, and the Tenant hereby assigns to the
Landlord, any and all interest in and claims to the entirety of any damages or
other compensation, by way of damages which may be awarded in connection with
any such taking or appropriation, except so much of such damages or award as is
specifically arid separately awarded to the Tenant and expressly attributable to
trade fixtures or moving expenses of the Tenant.
17. LANDLORD'S COVENANT OF QUIET.ENJOYMENT: TITLE
The Landlord covenants that the Tenant, upon paying the Basic Rent and
Additional Rent provided for hereunder and performing and observing all of the
other covenants and provisions hereof, may peaceably and quietly hold and enjoy
the Premises for the Terra, as aforesaid free from interference by any other
person claiming by, through or under the Landlord, subject, however, to all of
the terms and provisions of this Lease and to all matters affecting record
title.
18. TENANT'S OBLIGATION TO QUIT
The Tenant shall, upon expiration of the Term or other termination of
this Lease, leave and peaceably and quietly surrender and deliver to the
Landlord the Premises and any replacements or renewals thereof broom clean and
in the order, condition and repair required by Paragraph 10 and the other
provisions of this Lease, except, however, that the Tenant shall first remove
any trade fixtures and equipment and any alterations, additions and improvements
which the Landlord has required be removed pursuant to the terms of Paragraph
12, restoring the Premises in each case to their condition prior to the
installation of such fixtures or the undertaking of such alterations, additions
or improvements, as the case may be. If the Tenant shall fail to surrender and
deliver the Premises as and when required hereunder, the Tenant shall become a
tenant at sufferance only, SUBJECT TO all of the terms, covenants and conditions
herein specified, except the annual rate of Basic Rent shall increase to 200% of
the annual rate of Basic Rent then in effect. In addition, the Tenant shall
indemnify, defend and hold the Landlord harmless FRONT and against any direct
and indirect loss, cost and damage (including, without limitation, reasonable
attorneys' fees) that the Landlord may suffer by reason of any holdover by the
Tenant. The provisions of THIS Paragraph 18 shall expressly survive the
termination or expiration OF THIS LEASE.
19. TRANSFERS OF TENANT'S INTEREST
The TENANT SHALL not assign or sublease or otherwise encumber all or any
part of its interest in this Lease, the Premises, or the estate hereby created,
without in each case first
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obtaining the prior written consent of the Landlord. The Landlord shall not
unreasonably withhold or delay such consent, but such consent may be conditioned
upon, among other factors, a determination that the proposed use of the premises
will be consistent with the requirements of this Lease and that the assignee,
sublessee or other occupant has a Tangible Net Worth (as hereinafter defined)
acceptable to the Landlord. In all events, the Landlord may condition the
consent to any sublease or assignment upon (i) except in the case of a sublease
to an Affiliate of Tenant, as provided below, the Tenant agreeing to pay the
Landlord seventy-five percent (75 %) of the amount by which rentals and other
amounts from tithe to time payable to or for the Tenant under such assignment or
sublease exceed the Basic Rent and Additional Rent from time to time payable
hereunder, with the balance to be paid to the Tenant, and (ii) upon the
sublessee's or assignee's agreement to obtain the consent of the Landlord to any
future or further sublease or assignment of its interest under this Lease. Any
attempted assignment without the consent of the Landlord as contemplated hereby
shall be void. Any change in ownership of, or power to vote, a majority of the
outstanding stock of the Tenant shall constitute an assignment for purposes of
this Lease; PROVIDED, HOWEVER, that the sale of all or substantially all of the
stock of the Tenant (a "SALE OF STOCK") shall not constitute an assignment of
this Lease if:
(a) the Tenant is not then in default of its obligations under this
Lease beyond all applicable grace and cure periods; and
(b) the Tenant provides the Landlord with prior notice of such Sale of
Stock, together with pro forma financial statements prepared in
connection with, and effective as of the date of such Sale of Stock,
evidencing that such successor entity shall have a Tangible Net Worth at
least equal to the Tangible Net Worth of the Tenant as of the date of
this Lease. Such pro forma financial statements shall be in form
reasonably acceptable to the Landlord, prepared by an independent
accounting firm reasonably acceptable to the Landlord, and certified by
such accounting firm as accurate and as having been prepared in
accordance with generally accepted accounting principles consistently
applied.
Notwithstanding the foregoing, the Tenant shall have the right to
sublease the Premises or any portion thereof without the Landlord's consent to
an Affiliate of Tenant (as hereinafter defined), provided that:
(1) the Tenant provides the Landlord with prior notice of such
sublease, together with a copy of the proposed form of sublease
instrument and evidence that the proposed sublessee is an Affiliate of
Tenant; and,
(2) such sublease does not impose any additional obligations upon the
Landlord.
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For purposes hereunder, an "Affiliate of Tenant" shall mean any entity
that is under common control with the Tenant originally named herein, so long as
such entity remains in such relationship with the Tenant originally named
herein, and "control" shall mean owning more than fifty percent (50 %) of the
shares or other beneficial ownership interests of an entity.
As used herein, "TANGIBLE NET WORTH" shall mean the excess of total
assets over total liabilities, in each case as determined in accordance with
GAAP, excluding, however, from the determination of total assets all assets that
would be classified as intangible assets under GAAP, including, without
limitation, goodwill, licenses, patents, trademarks, trade names, copyrights,
and franchises.
Notwithstanding any term or provision herein to the contrary, and
excluding, however, assignments arising from a change in ownership of, or voting
control of a majority of the Tenant's outstanding stock, (x) if the Tenant
requests the Landlord's consent to any proposed assignment of the Tenant's
interest under this Lease, or any proposed subletting by the Tenant of the
entire Premises for all or substantially all of the balance of the Term (a
"Major SUBLEASE"), the Landlord shall have the option, which may be exercised in
the Landlord's sole and absolute discretion within thirty (30) days thereafter,
to terminate this Lease and to take back the Premises, in which case all of
Tenant's obligations acid liabilities under this Lease (except for those
obligations and liabilities that accrued prior to termination of this Lease and
those obligations and liabilities that expressly survive termination or
expiration of this Lease) shall cease as of such termination, and (y) if Tenant
requests Landlord's consent to any proposed subletting of the Premises other
than a Major Sublease, Landlord shall have the option, which may be exercised in
Landlord's sole and absolute discretion within thirty (30) days thereafter, to
suspend this Lease 17M TO with respect to the space that is the subject of the
proposed sublease (the "RECAPTURE PREMISES"), for the period of time during
which the Tenant proposes to sublet the Recapture Premises (the "RECAUTURE
PERIOD"). In such event, all of Tenant's obligations under this Lease as to the
Recapture Premises (except for those obligations that accrued prior to
Landlord's exercise of its right of recapture) shall cease for the Recapture
Period, and the rent and other charges due from Tenant hereunder shall be
reduced in proportion to the ratio of the number of rentable square feet in the
Recapture Premises to the number of rentable square feet in the Premises.
In all events the Tenant originally named herein and any guarantor of the
obligations of the Tenant under this Lease shall, except to the extent of so
much of the Premises as the Landlord elects to lease directly to any proposed
sublessee or assignee as above provided, remain primarily and jointly and
severally liable for, and any sublessee or assignee shall in writing assume, the
obligations of the Tenant under this Lease.
The Tenant shall reimburse the Landlord as Additional Rent, upon demand,
for any costs that may be reasonably incurred by the Landlord in connection with
any proposed
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assignment or sublease and any request for consent thereto, including without
limitation the costs of malting investigations as to the acceptability of any
proposed assignee or subtenant, and reasonable attorneys' fees.
20. TRANSFERS OF LANDLORD'S INTEREST
The Landlord shall have the right from time to time to sell or mortgage
its interest in the Property, the Building and the Premises, to assign its
interest in this Lease, or to assign froM tune to time the whole or any portion
of the Basic Rent, Additional Rent or other sums and charges at any time paid or
payable hereunder by the Tenant to the Landlord, to any Mortgagees or other
transferees designated by the Landlord in duly recorded instruments, and in any
such case the Tenant shall pay the Basic Rent, Additional Rent and such other
sums and charges so assigned, subject to the terms of this Lease, upon demand to
such Mortgagees and other transferees at the addresses mentioned in and in
accordance with the terms of such instruments. -
21. MORTGAGEES' RIGHT
The Tenant hereby agrees that this Lease is and shall be subject and
subordinate to any mortgage (and to any amendments, extensions, increases,
refinancings or restructurings thereof) of the Property, the Building or the
Premises, whether or not such mortgage is filed subsequent to the execution,
delivery or the recording of this Lease or any notice hereof (the holder from
time to time of any such mortgage being in this Lease sometimes called a
"Mortagece"). The foregoing subordination shall be self-operative and
automatically effective as to any mortgage filed subsequent to the execution and
delivery hereof only if either the Mortgagee agrees in writing or such mortgage
provides that, for so long as there exists no material default under this Lease
by the Tenant, the Mortgagee will not, in foreclosing against or taking
possession of the Premises or otherwise exercising its rights under such
mortgage, disturb the Tenant's possession of the Premises hereunder, or words of
similar import. Upon receipt of such written non-disturbance agreement or
provisions, the Tenant shall execute, acknowledge and deliver in recordable form
such instruments confirming and evidencing the foregoing subordination as the
Landlord or any such Mortgagee may from time to time reasonably require.
Provided that the Tenant has been provided with notice of such mortgage
and appropriate addresses to which notice should be sent, no notice from the
Tenant of any default by the Landlord in its obligations shall be valid, and the
Tenant shall not attempt to terminate this Lease, withhold Basic Rent or
Additional Rent or exercise any other remedy which may arise under law by reason
of any such default (it being understood that no such remedy exists, or is
implied by reason of this provision, under this Lease), unless the Tenant first
gives such notice to any Mortgagees and provides such Mortgagees with thirty
(30) days (or such shorter period of time as any Mortgagee may require under a
separate agreement with the Tenant) after
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such notice to cure such default, or if such default is not reasonably
susceptible of cure by Mortgagees (as in the case of the need to obtain
possession of or right of entry into or UPON the Premises) in thirty (30) days
(or such shorter period of time as aforesaid), with such longer period of time
as is reasonably necessary to cure such default, provided efforts to effectuate
such cure are commenced within thirty (30) days (or such shorter period of time
as aforesaid) and thereafter prosecuted to completion. with reasonable
diligence. Subject to the nondisturbance provisions set forth above, the Tenant
shall and does hereby agree that upon default by the Landlord under any
mortgage, the Tenant shall (x) attorn to and recognize the Mortgagee or anyone
else claiming under such mortgage, including a purchaser at a foreclosure sale,
at its request as successor to the interest of the Landlord under this Lease,
(y) execute, acknowledge and deliver such evidence of this attorrutaertt, which
shall nevertheless be self-operative and automatically effective, as the
Mortgagee or such successor may request, and (z) make payments of Basic Rent and
Additional Rent hereunder directly to the Mortgagee or any such successor, as
the case may be, upon request- Any Mortgagee may, at any time, by giving written
notice to, and without any further consent from, the Tenant, subordinate ;its
mortgage to this Lease, and thereupon the interest of the Tenant under this
Lease shall , automatically be deemed to be prior to the lien of such mortgage
without regard to the relative dates of execution, delivery or filing thereof or
otherwise. .
22. TENANT'S DEFAULT; LANDLORD'S REMEDIES; LANDLORD'S DEFAULT
If (x) the Tenant shall default in the payment when due of any Basic Rent
or Additional Rent, (y) the Tenant shall default in the timely performance or
observance of any of the other covenants contained in these presents and on the
Tenant's part to be performed or observed and shall fail to cure the same within
thirty (30) days after the occurrence of such default, or if such default is not
reasonably susceptible of cure within thirty (30) days, such longer period (not
to exceed ninety (90) days) as is reasonably necessary to cure such default,
provided that the Tenant commences such cure within said thirty (30) day period
and thereafter diligently prosecutes such cure to completion, or (z) the estate
hereby created shall be taken on execution, or by other process of law, or if
the Tenant shall be involved in financial difficulties as evidenced
(1) by its commencement of a voluntary case under Title 11 of the
United States Code as from time to time in effect, or by its
authorizing, by appropriate proceedings of TRUSTEES OR other
governing body the commencement of such a voluntary case,
(2) by its filing an answer or other pleading admitting or failing to
deny the material allegations of a petition filed against it
commencing an involuntary case under said Title 11, or seeking,
consenting to or acquiescing in the relief therein provided, or by
its failing to controvert timely the material allegations of any
such petition,
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(3) by the entry of an order ▇▇▇ relief in any involuntary case
commenced under said Title 11,
(4) by its seeking relief as a debtor under any applicable law, other
than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or by its consenting to or
acquiescing in such relief,
(5) by the entry of an order by a court of competent jurisdiction (i)
finding it to be bankrupt or insolvent, (ii) ordering or approving
its liquidation, reorganization or any modification or alteration
of the rights of its creditors, or (iii) assuming custody of, or
appointing a receiver or other custodian for, all or a substantial
part of its property, or
(6) by its making an assignment for the benefit of, or entering into a
composition with, its creditors, or appointing or consenting to
the appointment of a receiver or other custodian for all or a
substantial part of its property;
then and in any of said cases, the Landlord may, to the extent permitted by law,
immediately or at any time thereafter and without demand but with at least five
(5) days' written notice, terminate this Lease and enter into and upon the
Premises, or any part thereof in the name of the whole, and repossess the same
as of the Landlord's former estate, and expel the Tenant and those claiming
through or under the Tenant and remove its effects without being deemed guilty
of any manner of trespass, and without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach of covenant.
No termination or repossession provided for in dais Paragraph 22 shall
relieve the Tenant or any guarantor of the obligations of the Tenant under this
Lease of its liabilities and obligations under 'this Lease, all of which shall
survive any such termination or repossession. In the event of any such
termination or repossession, the Tenant shall pay to the Landlord either (i) in
advance on the first day of each month, for what would have been the entire.
balance of the Term, one-twelfth (111,) (and a pro rata portion thereof for any
fraction of a month) of the annual Basic Rent, Additional Rent and all other
amounts for which the Tenant is obligated hereunder, less, in each case, the
actual net receipts by the Landlord by reason of any reletting of the Premises
after deducting the Landlord's reasonable expenses in connection with such
reletting, including, without limitation, removal, storage and repair costs and
reasonable brokers' and attorneys' fees, or (ii) upon demand and at the option
of the Landlord exercisable by the Landlord's giving notice to the Tenant at any
time after any such termination, the present value (computed at a capitalization
rate based upon the so-called "Prime Rate" then in effect at F1eetBoston or its
successor) of the amount by which the payments of Basic Rent and Additional Rent
reasonably estimated to be payable for the balance of the Term after the date of
the exercise of said option would exceed the payments reasonably
-15-
estimated to be the fair rental value of the Premises on the terms and
conditions of this Lease over such period, determined as of such date.
Without thereby affecting any other right or remedy of the Landlord
hereunder, the Landlord may, at its option, cure for the Tenant's account any
default by the Tenant hereunder which remains uncured after thirty (30) days'
notice of default from the Landlord to the Tenant (or if such default is not
reasonably susceptible of cure within thirty (30) days, such longer period (not
to exceed ninety (90) days) as is reasonably necessary to cure such default,
provided that the Tenant commences such cure within said thirty (30) day period
and thereafter diligently prosecutes such cure to completion), and the cost to
the Landlord of such cure shall be deemed to be Additional Rent and shall be
paid to the Landlord by the Tenant with the installment of Basic Rent next
accruing.
No default on the part of the Landlord shall be deemed to have occurred
hereunder unless the Landlord shall default in the performance or observance of
any of its covenants contained in these presents and shall fail, within thirty
(30) days after written notice of such default from the Tenant to the Landlord,
to cure such default (or if such default cannot reasonably be cured within
thirty (30) days, to commence to cure the default within said thirty (30) days
and to continue diligently to pursue curing the same). The Tenant may, at its
option, cure for the Landlord's account any default which remains uncured after
said thirty (30) day period (or after such longer period if the default cannot
reasonably be cured within thirty (30) days) and the Landlord shall reimburse
the Tenant for its reasonable cost of such cure upon receipt of invoices, bills
or other statements from the Tenant reasonably evidencing such costs. In no
event shall the Tenant be entitled to offset or deduct the cost of such cure
from the rentals required to be paid hereunder. No Mortgagee, purchaser of the
Premises at a foreclosure sale, or successor to the Landlord by a deed in lieu
of foreclosure shall be liable for any such reimbursement to the Tenant.
23. REMEDIES CUMULATIVE; WAIVERS
The specific remedies to which the Landlord may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which the Landlord may be lawfully entitled in
any provision of this Lease or otherwise. The failure of the Landlord or the
Tenant to insist in any one or more cases upon the strict performance of any of
the covenants of this Lease, or to exercise any option herein contained, shall
not be construed as a waiver or relinquishment for the future of such covenant
or option. A receipt by the Landlord, or payment by the Tenant, of Basic Rent or
Additional Rent with knowledge of the breach of any covenant hereof shall not be
deemed a waiver of such breach, and no waiver, change, modification or discharge
by the Landlord or the Tenant of any provision in this Lease shall be deemed to
have been made or shall be effective unless expressed in writing and signed by
an authorized representative of the Landlord or the Tenant as appropriate. In
addition to the other remedies in this Lease provided, the Landlord shall be
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entitled to the restraint by injunction of the covenants, conditions or
provisions of this Lease, or to a decree compelling performance of or compliance
with any of such covenants, conditions or provisions.
24. EXTENSION OF THE TERM: BROKERS
On the conditions, which conditions the Landlord may waive, at its
election, by written, notice to the Tenant at any time, that (i) both at the
time of option exercise and as of the commencement of the hereinafter described
additional term, the Tenant is not in default of its covenants and obligations
under this Lease beyond all applicable grace and cure periods, and (ii) that as
of the commencement of the hereinafter described additional term, Corporate
Sports Incentives, Inc. and/or any Affiliate of Tenant occupy in the aggregate
the entire Premises, the Tenant may elect, by giving notice thereof to the
Landlord at least six (6) months and not more than twelve (12) months prior to
the expiration of the initial five-year Term, to extend the Term for one (1)
additional extension period of three (3) years (to a maximum of the initial
five-year Term plus three years) on the same terms and conditions set forth
herein, except Basic Rent shall be as hereinafter set forth. The word "Term" as
used elsewhere in this Lease shall, unless otherwise expressly provided herein,
include the initial five-year Term and such extension period if the Tenant shall
have given timely and proper notice of exercise of its option to so extend the
Term.
The annual rate of Basic Rent payable during such three (3) year
extension period of the. Term shall be payable without offset at an annual rate
equal to the greater of (a) the annual rate of Basic Rent payable during the
last year of the initial Term, and (b) the Market Rent, a$ hereinafter defined.
The "MARKET RENT" shall be the fair rental value for space of equivalent size
and character in Burlington, Massachusetts under a three (3) year lease.
The Market Rent shall be proposed by the Landlord within thirty (30) days
of receipt of the Tenant's notice that it intends to extend the Term (the
"LANDLORD'S PROPOSED MARKET RENT"). The Landlord's Proposed Market Rent shall be
deemed to be the Market Rent unless the Tenant notifies the Landlord, within
fifteen (15) days of the Tenant's receipt of the Landlord's Proposed Market Rent
notice, that the Landlord's Proposed Market Rent is not satisfactory to the
Tenant (the "TENANT'S REJECTION NOTICE").
If the Market Rent is not otherwise agreed upon by the Landlord and the
Tenant within fifteen (15) days after the Landlord's receipt of the Tenant's
Rejection Notice, then the annual rate of Basic Rent during the extension term
shall be the Landlord's Proposed Market Rent unless the Tenant shall have given
notice to the Landlord, within ten (10) days after said fifteen (15) day period,
that the Tenant desires to determine the Market Rent by the following procedure,
which notice shall specify the name and address of the Real Estate Professional,
as hereinafter defined, designated by the Tenant (the "TENANT APPRAISAL
NOTICE"):
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(1) The Landlord shall, within five (5) days after receipt of the
Tenant's Appraisal Notice, notify the Tenant of the name and address of
the Real Estate Professional designated by the Landlord. Such two (2)
Real Estate Professionals shall, within twenty (20) days after the
designation of the second Real Estate Professional, make their
determination of the Market Rent in writing and give notice thereof to
each other and to the Landlord and the Tenant. Such two (2) Real Estate
Professionals shall have twenty (20) days after the receipt of notice of
each other's determinations to confer with each other and to attempt to
reach agreement as to the determination of the Market Rent. If such Real
Estate Professionals shall concur in such determination within said
twenty (20) day period, they shall give notice thereof to the Landlord
and the Tenant and such concurrence shall be final and binding upon the
Landlord and the Tenant. If such Real Estate Professionals shall fail to
concur as to such determination within said twenty (20) day period, then
they shall give notice thereof to the Landlord and the Tenant and shall
immediately designate a third Real Estate Professional. If the two (2)
Real Estate Professionals shall fail to agree upon the designation of
such third Real Estate Professional within five (5) days after said
twenty (20) day period, then they or either of them shall give notice of
sucks failure to agree to the Landlord and the Tenant and, if the
Landlord and the Tenant fail to agree upon the selection of such third
Real Estate Professional within five (5) days after the Real Estate
Professionals appointed by the parties give notice as aforesaid, then
either party on behalf of both may apply to the American Arbitration
Association or any successor thereto, or on his or her failure, refusal,
or inability to act, to a court of competent jurisdiction, for the
designation of such third Real Estate Professional.
(2) As used herein, "REAL ESTATE PROFESSIONAL" shall mean a commercial
real estate broker who shall have had at least fifteen (15) years'
continuous experience as a commercial real estate broker ire. the Boston,
Massachusetts area.
(3) The third Real Estate Professional shall conduct such
investigations as he or she may deem appropriate and shall, within ten
(10) days after the date of his or her designation, make an independent
determination of the Market Rent..
(4) If none of the determinations of the Real Estate Professionals
varies from the mean of the determinations of the other Real Estate
Professionals by more than ten percent (10%), the mean of the
determinations of the three (3) Real Estate Professionals shall be the
Market Rent of the Property. If, on the other hand, the determination of
any single Real Estate Professional varies from the mean of the
determinations of the other two (2) Real Estate Professionals by more
than ten percent (10%), the mean of the determination of the two (2) Real
Estate Professionals whose determinations are closest shall be the Market
Rent.
-18-
(5) The determination of the Real Estate Professionals, as provided
above, shall be conclusive upon the parties and shall have the same force
and effect as a judgment made ire a court of competent jurisdiction.
(6) Each party shall pay fees, costs and expenses of the Real Estate
Professional selected by it and its own counsel fees and one-half (ll2)
of the fees, costs and expenses of the third Real Estate Professional, if
his or her designation is necessary.
(7) If the dispute between the parties as to the Market Rent has not
been resolved before the commencement of the extension period, then the
annual rate of Basic Rent payable by the Tenant during the extension
period shall equal the Landlord's Proposed Market Rent until either the
agreement of the parties as to the Market Rent, or the decision by the
Real Estate Professions, as the case may be, at which time the Tenant
shall pay any underpayment of Basic Rent to the Landlord, or the Landlord
shall refund any overpayment of Basic Rent to the Tenant.
The Tenant warrants and represents that it has not dealt with any broker
other than ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ of The ▇▇▇▇▇▇▇▇▇▇ Group (the "RECOGNIZED
BROKER") in connection with the Premises or this Lease. The Tenant hereby
indemnifies and holds the Landlord harmless from and against any liability for
commissions due any broker or finder other than the Recognized Broker with whom
the Tenant has dealt connection with this Lease.
25. NOTICES
Any notices, approvals, specifications, or consents required or permitted
hereunder shall be in writing and mailed, postage prepaid, by registered or
certified mail, return receipt requested, if to the Landlord or the Tenant at
the addresses set forth herein, and if to any Mortgagee at such address as it
may specify by such notice to the Landlord and the Tenant, or at such other
address as any of them may from time to time specify by like notice to the
others. Any such notice shall be deemed given when mailed, except that if any
time period commences hereunder with notice, such time period shall be deemed to
commence when such notice is delivered or, if earlier, when postal records
indicate delivery was first attempted.
26. ESTOPPEL CERTIFICATES
The Landlord and the Tenant hereby agree from time to time, each after
not less than ten (10) days' prior written notice from the other or any
Mortgagee, to execute, acknowledge and deliver, without charge, to the other
party, the Mortgagee or any other person designated by the other party, a
statement in writing certifying that (i) this Lease is unmodified and in full
force and effect (or if there have been modifications, identifying the same by
the date thereof and specifying the nature thereof), (ii) to the knowledge of
such party there exist no defaults (or if there be any defaults, specifying the
same), (iii) the amount of the Basic Rent, the dates
-19-
to which the Basic Rent, Additional Rent and other sums and charges payable
hereunder have been paid, and (iv) such party to its knowl.ellge has no claims
against the other party here under except for the continuing obligations under
this Lease (or if such party has any such claims, specifying the same.
27. BIND AND INURE: LIMITED LIABILITY OF LANDLORD
All of the COVENANTS, AGREEMENTS, stipulations, provisions, conditions
and obligations herein expressed and set forth shall be considered as running
with the land and shall extend to, bind and inure to the benefit of the Landlord
and the Tenant, which terms as used in this Lease shall include their respective
successors and assigns where the context hereof so admits, except that no
violation of the provisions of Paragraph 19 shall operate to vest any rights in
any successor or assignee of the Tenant and that the provisions of this
Paragraph 27 shall not be construed as modifying any of the provisions of
Paragraph 22..
The Landlord shall not have any individual or personal liability for the
fulfillment of the covenants, agreements and obligations of the Landlord
hereunder, the Tenant's recourse and the Landlord's liability hereunder being
limited to the Property and the Building. The term "Landlord" as used in this
Lease shall refer only to the owner or owners from time to time of the Property
or the Building, it being understood that no such owner shall have any liability
hereunder for matters arising from and after the date such owner ceases to have
any interest in the Property or the Building.
In no event shall the Landlord be liable to the Tenant for any special,
consequential or indirect damages suffered by the Tenant, the Landlord, or any
other person or entity by reason of a default by the Landlord or the Tenant
under any provisions of this Lease.
28, ENVIRONMENTAL COMPLIANCE
The Tenant shall not cause or permit any hazardous or toxic wastes,
hazardous or toxic substances or hazardous or toxic materials (collectively,
"HAZARDOUS MATERIALS") to be used,, generated, stored or disposed of on, under
or about, or transported to or from, the Premises (collectively, "HAZARDOUS
MATERIALS ACTIVITIES") without first receiving the Landlord's written consent,
which may be withheld for any reason and revoked at any time, if in the
Landlord's judgment such use shall be harmful or detrimental to any person or
property on or about the Building or Property. If the Landlord consents to any
such Hazardous Materials Activities, the Tenant shall conduct them in strict
compliance (at the Tenant's expense) with all applicable Regulations, as
hereinafter defined, and use all necessary and appropriate precautions to
prevent any spill, discharge, release or exposure to persons or property. The
Landlord shall not be liable to the Tenant for any loss, cost, expense, claim,
damage or liability arising out of any Hazardous Materials Activities by the
Tenant, the Tenant's employees, agents, contractors, licensees, customers or
invitees, whether or not consented to by the Landlord.
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The Tenant shall indemnify, defend with counsel acceptable to the Landlord, and
hold the Landlord and the Landlord Parties harmless from and against any and all
loss, costs, expenses, claims, damages and liabilities arising out of any and
all Hazardous Materials Activities at the Premises, whether or not consented to
by the Landlord. For purposes hereof, Hazardous Materials shall include, but not
be limited to, (i) substances defined as "HAZARDOUS SUBSTANCES,", "toxic
substances", or "HAZARDOUS WASTES" in (a) the federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, (b)
the federal Hazardous Materials Transportation Act, as amended, (c) the federal
Resource Conservation and Recovery Act, as amended ("RCRA "); (ii) those
substances defined as "HAZARDOUS WASTES" in the Massachusetts Hazardous Waste
Facility Siting Act, as amended (Massachusetts General Laws Chapter 21D); (iii)
those substances defined as "HAZARDOUS MATERIALS" or "oil" in Massachusetts
General Laws Chapter 21E, as amended; (iv) those substance regulated by any
other federal, state, county, municipal or local laws relating to the
environment or health and human safety (whether now existing or hereinafter
enacted or promulgated); and (v) such substances as are defined in any
regulations adopted and publications promulgated pursuant to any of said laws
(collectively, "REGULATIONS"). If the Landlord consents to any Hazardous
Materials Activities, prior to using, storing or maintaining any Hazardous
Materials on or about the Premises, the Tenant shall provide the Landlord with a
list of the types and quantities thereof, and shall update such list as
necessary for continued accuracy. The Tenant shall also provide the Landlord
with a copy of any Hazardous Materials inventory statement required by any
applicable Regulations, and any update filed in accordance with any applicable
Regulations. If the Tenant's activities violate or create a risk of violation of
any Regulations or cause a spill, discharge, release or exposure to any persons
or property, the Tenant shall cease such activities immediately upon notice from
the Landlord. The Tenant shall immediately notify the Landlord both by telephone
anal in writing of any spill, discharge, release or exposure of Hazardous
Materials in or about the Premises or of any condition in or about the Premises
constituting an "IMMINENT HAZARD" under any Regulations. The Landlord and the
Landlord's representatives and employees may enter the Premises at any time
during the Term pursuant to Paragraph 13 to inspect the Tenant's compliance
herewith, and may disclose any spill, discharge, release, or exposure or any
violation of any Regulations to any governmental agency with jurisdiction. The
Landlord hereby consents to the Tenant's use of normal quantities of cleaning
fluid and office supplies which may constitute Hazardous Materials but which are
customarily present in premises devoted to office use, provided that such use is
in compliance with all Regulations and shall be subject to all of the other
provisions of this Paragraph 28, except that the Tenant shall not be required to
provide the Landlord with the aforesaid list of the types and quantities of such
cleaning fluids and office supplies as long as limited to normal quantities.
29. ADDITIONAL PREMISES
Reference is made to the floor plan attached hereto Exhibit A-1, which
depicts certain additional space on the first floor of the Building (the
"EXPANSION PREMISES"). If the tenant
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leasing the Expansion Premises as of the date of this Lease does not extend or
renew its lease, then on the condition, which condition the Landlord may waive,
at its election, by written notice to the Tenant at any time, that as of the
Expansion Premises Commencement Date (as hereinafter defined), the Tenant is not
in default of its covenants and obligations under this Lease, commencing on the
later of (i) April 1, 2001, and (ii) the date the Landlord delivers the
Expansion Premises to the Tenant free of all tenants or parties in possession
(tile " EXPANSION PREMISES COMMENCEMENT DATE"), the Landlord shall lease to the
Tenant and the Tenant shall lease from the Landlord the Expansion Premises for
the duration of the then-remaining Term, as the same may be extended pursuant to
the terms and provisions of this Lease, subject to all of the terms and
conditions set forth herein, except as hereinafter set forth. As of the
Expansion Premises Commencement Date, (i) the Expansion Premises shall be added
to the Premises hereunder and thereafter, the Premises shall for all purposes
under this Lease be deemed to consist of 2,900 rentable square feet of floor
area, (ii) Basic Rent shall increase to the annual rate of Forty Three Thousand
Five Hundred Dollars and No Cents ($43,500.00), payable in advance on the first
day of each calendar month during the. Term in equal -. installments of Three
Thousand Six Hundred Twenty-Five Dollars and No Cents ($3,625.00) in accordance
with the terms of this Lease, and (iii) Tenant's Percentage shall increase to
50%, or such other percentage as the rentable square footage of the Premises
bears to. the rentable square footage of the Building. The Landlord shall
deliver the Expansion Premises to the Tenant on the Expansion Premises
Commencement Date in as good repair and condition as the Expansion Premises is
on the date of this Lease, reasonable wear and tear excepted.
30. CAPTIONS
The captions for the numbered Paragraphs of this Lease are provided for
reference only and they do not constitute a part of this agreement or any
indication of the intentions of the parties hereto.
31. INTEGRATION
The parties acknowledge that all prior written and oral agreements
between them and all prior representations made by either party to the other
have been incorporated in this instrument or otherwise satisfied prior to the
execution hereof.
32. SEVERABILITY: CHOICE OF LAW
If any provision of this Lease shall be declared to be void or
unenforceable either by law or by a court of competent jurisdiction, the
validity or enforceability of remaining provisions shall not thereby be
affected. This Lease is made under, and shall be construed in accordance with,
the laws of The Commonwealth of Massachusetts.
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33. SECURITY DEPOSIT
Upon execution of this Lease, the Tenant shall make a cash payment to the
Landlord in the amount of $4,750.00 (the "SECURITY DEPOSIT"), which shall be
held as security for the Tenant's performance of its obligations as herein
provided. On the Expansion Space Commencement Date, the Tenant shall make an
additional cash payment to the Landlord in the amount of $2,500.00, which shall
be added to the Security Deposit.
The Landlord shall have no obligation to segregate the Security Deposit
from other funds or to accrue interest thereon for the benefit of the Tenant. If
the Tenant fails to pay Basic Rent, Additional Rent or any other charges due
hereunder, or fails to fulfill any of its obligations hereunder, or otherwise
defaults with respect to any provision of this Lease, the Landlord shall have
the right to draw the lesser of (i) the entire amount of the Security Deposit,
or (ii) so much of the Security Deposit as equals the defaulted payment(s), plus
any interest or other charges due thereon in accordance with this Lease, for the
payment of-any such amount or charge due hereunder, to pay any other sum to
which the Landlord may become obligated by reason of the Tenant's default, or to
compensate the Landlord for any loss or damage that the Landlord may suffer
thereby. The Tenant shall not have the, right to call upon the Landlord to apply
all or any part of the Security Deposit to cure any default or fulfill any
obligation of the Tenant hereunder, but such use shall be solely in the
discretion of the Landlord- If the Landlord elects to make a partial draw upon
the Security Deposit, the Tenant shall immediately upon demand by the Landlord,
pay to the Landlord, as Additional Rent, an amount sufficient to restore the
Security Deposit to its original amount. The Landlord's election to draw upon
the Security Deposit shall in no event prejudice or waive the Landlord's right
to terminate this Lease if permitted by the terms and provisions hereof, nor
shall such election prejudice or waive any other remedy of the Landlord reserved
under the terms of this Lease or available at law or in equity. If the Tenant
performs all of the Tenant's obligations hereunder, and provided that there
exists no breach of any undertaking of the Tenant hereunder and Tenant has
vacated and surrendered the Premises as required herein, the Security Deposit
shall be returned, without payment of interest or other amount for its use, to
the Tenant within a reasonable period of time following the expiration of the
Term. The Tenant acknowledges that the Security Deposit is not an advance
payment of any kind or measure of the Landlord's damages in the event of a
Tenant default. The Tenant hereby waives the provisions of any law that are
inconsistent with the provisions set forth above in this Paragraph 33,
34. NOTICE OF LEASE
The Tenant shall not record this Lease. Any such recording of this Lease
by the Tenant shall constitute a breach of this Lease and shall entitle the
Landlord, at its election, to immediately terminate this Lease. Either the
Landlord or the Tenant may require that a notice of this Lease, in form arid
substance as may be required by law and otherwise reasonably acceptable to the
Landlord and the Tenant, be executed and acknowledged by both parties and
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recorded. The party requesting or requiring such recording shall pay all
expenses, transfer taxes and recording fees with respect to such notice of
lease. The Landlord may require,, as a condition precedent to its execution and
delivery of any notice of this Lease, that the Tenant execute, acknowledge and
deliver to the Landlord, a notice of termination of this Lease, in form and
substance reasonably acceptable to the Landlord. Such notice of termination
shall be held by the Landlord's counsel in escrow and shall not be recorded
until the Term expires, or unless and until the Term is earlier terminated
pursuant to the terms and provisions hereof.
[Signatures Appear on the Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in quadruplicate under seal as of the date first above written.
LANDLORD:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C,, a Delaware limited
liability company
By: ▇▇▇▇▇▇▇▇ Properties, L.L.C., a Delaware
limited liability company, its Authorized Person
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------
Name:
Title: Gen'l Mang.
TENANT:
CORPORATE SPORTS INCENTIVES, INC., a New Hampshire
corporation
By: /S/ ▇▇▇▇ CORCARRON
------------------
Name: ▇▇▇▇ CORCARRON
Title: TREASURER
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EXHIBIT A
Legal Description of Property
The land in Burlington, Middlesex County, Massachusetts, with the
buildings thereon, now known as and numbered ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ and being shown as Lot 1 on a plan entitled "Plan of Land in
Burlington, Mass.," dated July 25, 1953, by Northeastern Engineering Associates
Surveyors, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, C.E. duly recorded with Middlesex South District
Registry of Deeds in Book 8125, at Page 104, and according to said plan bounded
and described as follows:
SOUTHWESTERLY by Cambridge Street, called Cambridge Road on said plan, 140
feet;
NORTHWESTERLY by land now or formerly of MacKenzie, 170 feet;
NORTHEASTERLY by land now or formerly of ▇▇▇▇▇▇, formerly of ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, as shown on said plan, 135 feet; and
SOUTHEASTERLY by Forbes Avenue, 170 feet.
Containing 23,300 square feet more or less, according to said plan.
Said land is also shown as Lot 1 on plan entitled "Birchwood at
Burlington," dated September 1953, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, C.E., recorded with
said Deeds as Plan No. 272 of 1954 in Book 8221, at end.
For title reference, see deed of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee, to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ dated March 13, 1985 and recorded with said Deeds in Book 16061, at
Page 397.
Diagram Omitted
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