Exhibit 10.13
[LOGO]
Broadview
Networks
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Existing Lease Abstract
Building: Hood Business Park, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx
Lease Data: TBD
Landlord: Hood Business Park, LLC
Tenant: Community Networks
Premises: Portion of the 2nd floor
Rentable Area: Approximately 11,000 RSF - 3,000 office and 9,490 switch
Lease Term: Ten (10) years
Lease Commencement: Upon full execution and unconditional delivery of
lease documents.
Lease Expiration: Ten (10) years from Lease Commencement
Rent Commencement: Office: Upon Possession
Switch: Three (3) months from Possession
Base Rent: Years l-5: Office: $20.00 pRSF NNN
Switch: $17.75 pRSF NNN
Years 6-l0: Office: $23.00 pRSF NNN
Switch: $20.40 pRSF NNN
Electricity: $1.75 pRSF
Real Estate Taxes: included in Operating Expenses figure.
Operating Expenses: $4.15 pRSF, which should grow at approximately
2% per year
Use: General Office use and the installation and maintenance
of equipment and facilities in connection with Community
Networks' telecommunications business. Tenant may also
use Premises as a switch, assuming Tenant acquires
proper permits.
Sublet/Assignment: Tenant may sublet all or a portion of the premises or
assign the lease to an affiliate, parent company or
company under it's control without consent or to a non-
affiliate company with prior written consent of owner,
which may not be unreasonably withheld or delayed.
Parking: Twenty (20) spaces at no charge.
Termination Option(s): N/A
Expansion Option(s): Landlord will work with Tenant to accommodate
expansion needs.
EQUIS
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11/17/99
[LOGO]
Broadview
Networks
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Security Deposit: TBD
Right of First Refusal: N/A
Renewal Option(s): Tenant shall have one five (5) year renewal option.
EQUIS
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11/17/99
N NORDIC
October 22, 1999
Xx. Xxxxxxx Xxxxxxxx
Equis of New York
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Xxxxxxx:
As you requested, enclosed is a copy of the lease for Community Networks. Thanks
for all your help.
I look forward to doing more transactions with you in the future.
Sincerely,
/s/ X. Xxxx Xxxxxxxx
X. Xxxx Xxxxxxxx
Project Manager
GKGLML
Enclosure
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00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX
00000-4470
(000)000-0000
Fax (000)000-0000
[LOGO]community
networks
Solutions that work for your business.
September 23,1999
Xx. Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx X Xxxxxxx, LLP
000X Xxxxxx Xxxxxx-Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Re: Community Networks, Inc. - Lease
Hood Business Park, Charlestown, MA
Dear Xx. Xxxxxxx:
Enclosed please find four (4) copies of the above referenced lease agreement.
Please return a fully executed copy to my attention as soon as possible.
We will deliver a $209,000 letter of credit within a week. If we are unable to
provide a letter of credit by l0/4/99 we will provide a $209,000 cash deposit
and subsequently "swap it out" for a letter of credit.
Sincerely,
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
VP - Administration
Cc: Xxx Xxxxxxxx, Esquire
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxx Xxxx, Xxx Xxxx 11101 /000-000-0000
/Fax: 000-000-0000
LEASE
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LANDLORD: Hood Business Park LLC, a Massachusetts
Limited Liability Company
TENANT: Community Networks, Inc., a New York
Corporation
PREMISES: Hood Business Park, Charlestown, Massachusetts
DATED: September 23, 1999
TABLE OF CONTENTS
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ARTICLE CAPTION PAGE
I REFERENCE DATA 1
(A) Subjects Referred To 1
(B) Exhibits 3
II PREMISES 3
III TERM AND CONSTRUCTION 4
(A) Term 4
(B) Landlord's Required Work 4
(C) Tenant's Work 4
(D) General Construction Provisions. 5
(E) Floor Area Measurement 5
IV LANDLORD'S COVENANTS 5
(A) Landlord's Covenants During The Term 5
(B) Interruptions 5
V RENT 6
(A) Fixed Rent 6
(B) Additional Rent - Taxes 6
(C) Additional Rent - Operating Costs 8
(D) Monthly Payments 10
(E) Additional Rent -Electricity, Gas, Water & Sewer 10
VI TENANT'S COVENANTS 11
VII DEFAULT 16
(A) Events of Default 16
(B) Obligations Thereafter 17
VIII CASUALTY AND TAKING 17
(A) Casualty And Taking 17
(B) Reservation Of Award 18
IX MORTGAGEE 18
(A) Subordination To Mortgages 18
(B) Limitation On Mortgagee's Liability 19
(C) No Release Or Termination 19
X GENERAL PROVISIONS. 20
(A) Captions 20
(B) Short Form Lease 20
(C) Relocation 20
(D) Notices 20
(E) Successors And Assigns 21
(F) No Surrender 21
(G) Waivers And Remedies 21
(H) Self-Help 21
(I) Estoppel Certificate 21
(J) Waiver Of Subrogation 23
(K) Brokers 24
(L) Landlord's Defaults 24
(M) Effectiveness Of Lease. 24
(N) Hazardous Materials 24
(0) Delays 25
XI SECURITY DEPOSIT 25
XII MODIFICATION 26
XIII OPTION 26
(A) Option Term 26
(B) Option Rent 26
Exhibit A Plan Showing Location Of The Building
Exhibit A-l Condition of Building
Exhibit A-2 Roof Space
Exhibit B Landlord's Required Work
Exhibit C Intentionally Omitted
Exhibit D Landlord's Services
Exhibit E Rules And Regulations
Exhibit F Legal Description Of Lot
Lease dated as of the ____day of September, 1999, by and between Hood Business
Park LLC, a Massachusetts Limited Liability Company, as landlord ("Landlord"),
and Community Networks, Inc., a New York corporation, as tenant ("Tenant").
ARTICLE I
REFERENCE DATA
1. (A) SUBJECTS REFERRED TO:
Each reference in this lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1 (A):
XXXXXXXX'S ADDRESS: 00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
XXXXXXXX'S MANAGING AGENT: Xxxxxxxx Company
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
TENANTS ADDRESS: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx. MA
BUILDING: That certain building designated as "000 Xxxxxxxxxx Xxxxxx" upon
Exhibit A.
RENTABLE FLOOR AREA OF TENANT'S SPACE:
SWITCH: APPROXIMATELY 9490 SQUARE FEET
OFFICE: APPROXIMATELY 3OOO SQUARE FEET
TOTAL RENTABLE FLOOR AREA OF THE BUILDING:
WAREHOUSE: 109,148 SQUARE FEET
OFFICE: 191,716 SQUARE FEET
APPROXIMATE DELIVERYDATE:
WITHIN THIRTY (30) DAYS OF LEASE EXECUTION. IF LANDLORD IS UNABLE TO
DELIVER THE SWITCH SPACE TO TENANT WITHIN SAID THIRTY (30) DAYS,
LANDLORD SHALL PROVIDE A SECURE AREA FOR STORAGE OF TENANT'S SWITCH
EQUIPMENT UNTIL SUCH TIME AS LANDLORD DELIVERS THE SWITCH SPACE TO
TENANT.
COMMENCEMENT DATE: UPON DELIVERY OF EITHER THE OFFICE SPACE OR THE SWITCH SPACE
TO TENANT WITH LANDLORD'S WORK SUBSTANTIALLY COMPLETE.
ORIGINAL TERM: TEN (10) YEARS AND THREE (3) MONTHS FROM THE COMMENCEMENT DATE
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OPTION TERM: ONE (1) OPTION FOR FIVE (5) YEARS
FIXED RENT:
OFFICE SPACE
COMMENCING UPON THE COMMENCEMENT DATE AND THEREAFTER:
DURING THE FIRST (5) YEARS OF THE ORIGINAL TERM --
$60,00.00 PER ANNUM; AND
DURING EACH YEAR OF THE BALANCE OF THE ORIGINAL TERM --
$69,000.00 PER ANNUM.
SWlTCH SPACE:
DURING THE FIRST THREE (3) MONTHS FOLLOWING THE COMMENCEMENT DATE NO
FIXED RENT SHALL BE PAYABLE; THEREAFTER DURING THE BALANCE OF THE
FIRST FIVE (5) YEARS OF THE ORIGINAL TERM -- $168,447.50 PER ANNUM; AND
DURING EACH YEAR OF THE BALANCE OF THE ORIGINAL TERM -- $193,596.00 PER
ANNUM.
ADDITIONAL RENT FOR TAXES AND OPERATING COSTS:
PRO RATA.
SECURITY DEPOSIT: LETTER OF CREDIT FOR AN AMOUNT NOT TO EXCEED
$209,000.00. PROVIDED TENANT IS NOT IN DEFAULT BEYOND
ANY APPLICABLE CURE PERIOD, SAID LETTER OF CREDIT SHALL
BE REDUCED TO $139.333.00 FOLLOWING THE FIFTH (5TH)
YEAR OF THE TERM.
GUARANTOR: TBD
PERMITTED USE: GENERAL OFFICE USE AND THE INSTALLATION AND MAINTENANCE
OF EQUIPMENT AND FACILITIES IN CONNECTION WITH TENANT'S
TELECOMMUNICATIONS BUSINESS. WHILE TENANT'S INTENDED USE
OF THE DEMISED PREMISES AS A TELECOMMUNICATION SWITCH IS
PERMITTED UNDER CURRENT ZONING, ANY SPECIAL PERMITS,
REQUIREMENTS OF LAW OR LOCAL AUTHORITIES, CHANGES IN
CERTIFICATE OF OCCUPANCY, ETC. AS NECESSARY DUE TO
TENANT'S USE WILL BE AT TENANT'S SOLE COST AND EXPENSE.
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PUBLIC LIABILITY INSURANCE LIMITS: BODILY INJURY:
$2,000,000
PROPERTY DAMAGE:$ 500,000
(B)EXHIBITS
The exhibits listed below in this Section are incorporated in this lease
by reference and are to be construed as part of this lease:
Exhibit A Plan Showing Location Of the Building
Exhibit A-l Condition of Building
Exhibit A-2 Roof Space
Exhibit B Landlord's Required Work
Exhibit C Intentionally Omitted
Exhibit D Landlord's Services
Exhibit E Rules And Regulations
Exhibit F Legal Description Of Lot
ARTICLE II
PREMISES
2. PREMISES
Subject to and with the benefit of the provisions of this lease,
Landlord hereby leases to Tenant, and Tenant leases from Landlord, Tenant's
space on the second floor of the Building, excluding exterior faces of exterior
walls, all common facilities of the Building and all building service fixtures
and equipment serving (exclusively or in common) other parts of the Building.
Tenant's space includes approximately nine thousand four hundred ninety
(9,490)square feet of switch space and three thousand (3,000) square feet of
office space on the second floor of the Building. The Building is outlined in
red upon the plan attached as Exhibit A. Tenant's space, with such exclusions,
is hereinafter referred to as "the demised premises". In addition, Tenant shall
have the exclusive right to use that portion of the roof outlined on Exhibit A-2
to install and maintain certain equipment (other than antennae and other
transmitting devices) approved by Landlord and at no additional charge. Tenant
shall have, as appurtenant to the demised premises, the right to use in common
with others entitled thereto, subject to reasonable rules from time to time made
by Landlord of which Tenant is given notice: (i) the common facilities,
including cafeteria and exercise room (without monthly or annual fees, except as
provided for as part of Operating Expenses) from time to time included in the
Building or on the parcel of land on which the Building is located (said parcel
being more particularly described in Exhibit F and being hereafter referred to
as "the Lot"), to the extent from time to time designated by Landlord; and
(ii) the building service fixtures and equipment serving the demised premises.
The Lot is represented by the area outlined by a bold line upon said Exhibit A.
It is understood and agreed that said plan is intended only to show the
approximate size of the Lot as presently constituted and the approximate size
and location of the Building and for no other purpose. Landlord reserves the
right from time to time (a) to install, repair, replace, use, maintain and
relocate for service to the demised premises and to other parts of the,
Building or either, building service fixtures and equipment wherever located in
the Building; (b) to alter, relocate or eliminate any other common facility; (c)
to designate specific parking areas upon the Lot to be for the exclusive use of
one or more users thereof; (d) to designate specific traffic routes for trucks
and other delivery vehicles; (e) to alter the size of the Building, including,
without
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limitation, converting warehouse space to office space or office space to
warehouse space; and (f) to increase and/or decrease the size of the Lot by the
acquisition of adjacent land and/or the disposition of any portions thereof. No
such increase or decrease shall be deemed to have occurred until Landlord shall
give Tenant notice thereof. Landlord shall designate parking for at least twenty
(20) cars as "Reserved for Customers" reasonably proximate to the Building
entrance. Notwithstanding the foregoing, Xxxxxxxx agrees that it shall not
unreasonably adversely impair access to or egress from the demised premises.
ARTICLE III
TERM AND CONSTRUCTION
3. (A) TERM
To have and to hold for a period of ten (10) years ("the original Term"
or "the Term") commencing when the office space or switch space, whichever
occurs first, are deemed ready for occupancy as provided hereinbelow (being
hereafter referred to as "the Commencement Date") and, unless sooner terminated
as provided herein, ending at the end of the Term; provided that if the Term
(calculated as aforesaid) would expire prior to the last day of a calendar
month, the Term shall be extended so as to expire on the last day of such
calendar month.
(B) LANDLORD'S REQUIRED WORK
Landlord agrees to use reasonable efforts to complete Landlord's
Required Work (described in Exhibit B) on or before the Approximate Delivery
Date, which shall, however, be extended for a period equal to that of any delays
due to governmental regulations, scarcity of or inability to obtain labor or
materials, labor difficulties, casualty or other causes reasonably beyond
Landlord's control. The demised premises shall be deemed ready for occupancy on
the substantial completion of Landlord's Required Work in the office space
and/or switch space and the delivery of either the office space or the switch
space to Tenant.
Landlord shall permit Tenant access (at Tenant's sole risk) for installing
equipment and furnishings in the demised premises prior to the Term if it can be
done without material interference with, or delay of, Landlord's work in the
demised premises and/or in other portions of the Building.
Notwithstanding, the foregoing provisions of this Section (B), if the
demised premises are not deemed ready for occupancy on or before the first
anniversary of the Approximate Delivery Date for whatever reason, other than
Tenant's default, Tenant may elect to cancel this lease at any time within ten
days thereafter (but only if the demised premises are still not deemed ready for
occupancy) by giving notice to Landlord of such cancellation, which cancellation
shall be effective when given, it being understood that said election shall be
Xxxxxx's sole remedy at law or in equity for Landlord's failure to make the
demised premises ready for occupancy. Furthermore, if the term of this lease
shall not have commenced on or before the third anniversary of the Approximate
Delivery Date, this lease shall thereupon automatically terminate.
(C) TENANT'S WORK
Intentionally Omitted.
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(D) GENERAL C0NSTRUCTION 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 times and shall promptly give notice of observed defects.
Landlord's Required Work shall be deemed to have been performed upon the
Commencement Date except for items which are incomplete or do not conform with
the requirements of Exhibit B and as to which Tenant shall, in either case, have
given written notice to Landlord prior to the Commencement Date.
(E) FLOOR AREA MEASUREMENT
Within sixty (60) days following the Commencement Date, Tenant may
engage an independent certified architectural surveyor to measure the actual
floor area of the demised premises. Tenant's architect or surveyor shall
determine the floor area by measuring same from the outside of any exterior
walls to the center of any interior demising walls. If the architect's, or
surveyor's measurements of the floor area of the demised premises is less than
the rentable floor area of Tenant's space as set forth in Article 1 above by
three percent (3%) or more, Fixed Rent and Xxxxxx's proportionate share of taxes
and Operating Costs shall be proportionately reduced. If the variance is less
than three percent (3%) of the floor area of the demised premises, or if the
demised premises shall contain more square foot of floor area than as set forth
in Article 1 above, no adjustment shall be made.
ARTICLE IV
LANDLORD'S COVENANTS
4. (A) LANDLORD'S COVENANTS DURING THE TERM:
Landlord covenants during the Term:
(1) To furnish, through Landlord's employees or independent
contractors, the services listed in Exhibit D; and
(2) Except as otherwise provided in this lease, to make such structural
repairs to the roof, exterior walls, and common facilities of the Building, the
Lot and the demised premises as may be necessary to keep them in serviceable
condition.
(B) INTERRUPTIONS
Except as otherwise expressly provided herein, Landlord shall not be
liable to Tenant for any compensation or reduction of rent by reason of
inconvenience or annoyance or for loss of business arising from (a) power losses
or shortages, or (b) the necessity of Landlord's entering the demised premises
for any of the purposes in this lease authorized, including without limitation,
for repairing or altering the demised premises or any portion of the Building or
for bringing materials into and/or through the demised premises in connection
with the making of repairs or alterations.
5
In case Landlord is prevented or delayed from making any repairs,
alterations or improvements or furnishing any service or performing any other
covenant or duty to be performed on Landlord's part, by reason of any cause
reasonably beyond Landlord's control, Landlord shall not be liable to Tenant
therefor, nor, except as expressly otherwise provided in Article VIII, shall
Tenant be entitled to any abatement or reduction of rent by reason thereof, nor
shall the same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the demised
premises. Landlord reserves the right to stop any service or utility system when
necessary, in Landlord's reasonable opinion by reason of accident or emergency
or until necessary repairs have been completed. Except in case of emergency
repairs (in which case Landlord shall give such notice as is reasonably
practicable under the circumstances), Landlord will give Tenant reasonable
advance notice of any contemplated stoppage and, in any event, Landlord will use
reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof. Landlord agrees that if there is such a stoppage of such service or
utility system for more than ten (10) business days, and if Tenant cannot
reasonably conduct its business in the demised premises as a result thereof,
Fixed Rent shall thereafter xxxxx until such service or utility system is
restored or Tenant is again able reasonably to conduct its business in the
demised premises.
ARTICLE V
RENT
5. (A) FIXED RENT
Tenant agrees to pay, without any offset or reduction whatever {except
as made in accordance with the express provisions of this lease), fixed monthly
rent equal to 1/12th of the Fixed Rent, such rent to be paid in equal
installments in advance on the first day of each calendar month included in the
Term, except as otherwise set forth in Section (A) of Article 1 above; and for
any portion of a calendar month at the beginning or end of the Term, a portion
of such fixed monthly rent, prorated on a per diem basis. All payments of
Fixed and additional rent shall be made in lawful money of the United States and
shall be made to Hood Business Park LLC and sent to Landlord's Managing Agent at
Managing Agent's Address set forth in Section (A) of Article I above, or to such
other person and/or at such other address as Landlord may from time to time
designate.
If any payment of rent or any other payment payable hereunder by Tenant
to Landlord shall not be paid within ten (10) days of when due, the same shall
bear interest from the date when the same was payable until the date paid at the
lesser of (a) fifteen percent (15%) per annum, or (b) the highest lawful rate of
interest which Landlord may charge to Tenant without violating any applicable
law. Such interest shall constitute additional rent payable hereunder.
(B) ADDITIONAL RENT -TAXES
(1) For the purposes of this Section, "Tax Year" shall mean the
twelve month period in use in the City of Boston for the purpose of imposing ad
valorem taxes upon real property. In the event that said City changes the period
of its tax year, "Tax Year" shall mean a twelve-month period commencing on the
first day of such new tax year, and each twelve-month period commencing on an
anniversary of such date during the Term of this lease. For purposes of this
Section "the Property" shall mean the Lot and all improvements thereon from time
to time, including the Building; and "the Factor" shall mean a fraction the
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(7) As of the Commencement Date, Landlord represents and warrants
that Landlord has paid in full all currently due taxes; and Landlord shall pay
when due all future taxes provided Xxxxxx makes timely payment of same.
(C) ADDITIONAL RENT - OPERATING COSTS
(1) For the purposes of this Section, the following terms shall have
the following respective meanings:
Operating Year: Each successive fiscal year (as adopted by Landlord) in
which any part of the Term of this lease shall fall.
"Operating Expenses" shall mean all costs or expenses incurred for the
operation, cleaning, maintenance, repair and upkeep of the Property, including,
without limitation, all costs of maintaining and repairing the Property
(including snow removal, landscaping and grounds maintenance parking lot
operation and maintenance, security, operation and repair of ventilating and
airconditioning equipment, elevators, lighting and any other Building equipment
or systems) and of all repairs and replacements (other than repairs or
replacements for which Landlord has received full reimbursement from
contractors, other tenants of the Building or from others) necessary to keep the
Property in good working order, repair, appearance and condition; all costs,
including material and equipment costs for cleaning and janitorial services to
the Building (including window cleaning of the Building); all costs of any
reasonable insurance carried by Landlord relating to the Property; all costs
related to provision of heat (including oil, electric, steam and/or gas), air-
conditioning, and water (including sewer charges) and other utilities to the
Building, (but excluding the reheat units in Tenant's VAV units); payments under
all service contracts relating to the foregoing; all compensation, fringe
benefits, payroll taxes and workmen's compensation insurance premiums related
thereto with respect to any employees of Landlord or its affiliates engaged in
security and maintenance of the Property; attorneys'fees and disbursements
(exclusive of any such fees and disbursements incurred in tax abatement
proceedings or the preparation of leases) and auditing and other professional
fees and expenses; and a management fee at market rates customarily paid with
respect to buildings similar to the Building.
There shall not be included in such Operating Expenses brokerage fees (including
rental fees) related to the operation of the Building; interest and depreciation
charges incurred on the Property; or expenditures made by Tenant with respect to
(i) cleaning, maintenance and upkeep of the demised premises; and (ii) the
provision of electricity to the demised premises. Operating Expenses shall not
include (1) the initial costs of equipment properly chargeable to the capital
account consisting of items of real estate in nature and the original costs of
constructing the Common Areas; (2) expenses for which the Landlord is or will be
reimbursed by another source (excluding tenant reimbursement for Operating
Expenses) including repair or replacement of any item covered by warranty; (3)
costs incurred to benefit (or as a result of) a specific tenant or items and
services selectively supplied to any specific tenant; (4) expenses for the
defense of the Landlord's title to the demised premises or the Building;
(5) depreciation and amortization of the Building, financing costs, including
interest and principal debts; (6) charitable or political contributions; (7)
costs of improving or renovating space for a tenant or space vacated by a
tenant; (8) expenses paid directly by Tenant for any reason (such as excessive
utility use); (9) any repair, rebuilding or other work necessitated by
condemnation, fire, windstorm or other
8
insured casualty or hazard, but only to the extent of the insurance proceeds
received by Landlord therefor; (10) any other amounts as a result of Landlord's
violation or failure to comply with any governmental regulations and rules or
any court order, decree or judgment; (11) leasing commissions, advertising
expenses and other costs incurred in leasing or procuring new tenants;
(12) rental on ground leases or other underlying leases; and (13) attorneys'
fees, accounting fees and expenditures incurred in connection with negotiations,
disputes and claims of other tenants or occupants of the Building or with other
third parties except as specifically provided in the lease. Xxxxxxxx agrees that
it shall not charge Tenant twice for any Operating Expenses, and to the extent
any personnel of Landlord shall perform services for other properties of
Landlord or its affiliates, the cost of such personnel shall be appropriately
prorated.
If, during the Term of this lease, Landlord shall replace any capital items or
make any capital expenditures reasonably necessary to maintain the structural
integrity of the demised premises or the Building or of the utility systems
servicing the demised premises, or which result in reducing Operating Expenses
(collectively called "capital expenditures") the total amount of which is not
properly included in Operating Expenses for the calendar year in which they were
made, there shall nevertheless be included in Operating Expenses for each
calendar year in which and after such capital expenditure is made the annual
charge-off of such capital expenditure. (Annual charge-off shall be determined
by (i) dividing the original cost of the capital expenditure by the number of
years of useful life thereof [the useful life shall be reasonably determined by
Landlord in accordance with generally accepted accounting principles and
practices in effect at the time of acquisition of the capital item]; and
(ii) adding to such quotient an interest factor computed on the unamortized
balance of such capital expenditure based upon an interest rate 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.) Provided, further, that if Landlord
reasonably concludes on the basis of engineering estimates that a particular
capital expenditure will effect savings in Operating Expenses and that such
annual projected savings will exceed the annual charge-off of capital
expenditure computed as aforesaid, then and in such events, the annual charge-
off shall be determined by dividing the amount of such capital expenditure by
the number of years over which the projected amount of such savings shall fully
amortize the cost of such capital item or the amount of such capital
expenditure; and by adding the interest factor, as aforesaid.
The foregoing are intended to describe only the extent of potential cost
and expenses and impose no obligation on Landlord to incur same.
The Factor: As defined in Section (B) above.
Building's Share of Operating Expenses: One hundred percent (100%)of the
Operating Expenses with respect to the Building plus the product of the
Operating Expenses with respect to the Lot and a fraction the numerator of
which is the rentable floor area contained within the Building and the
denominator of which is the rentable floor area contained within all of the
buildings located upon the Lot and not separately maintained by the tenants
thereof.
(2) During the Term commencing on the Commencement Date Tenant shall pay
to Landlord, as additional rent, an amount equal to the Building's Share of
Operating Expenses for each Operating Year multiplied by the Factor, such
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amount to be apportioned on a per diem basis for any fraction of an Operating
Year contained within the Term.
(3) In the event of any taking by eminent domain under circumstances
whereby this lease shall not terminate, each of the Building's Share of
Operating Expenses and the Factor shall be appropriately adjusted to reflect any
change in rentable floor area.
(D) MONTHLY PAYMENTS
Payment on account of the additional rent described in Sections (B) and
(C) above shall be paid, as part of Tenant's total rent, monthly, and at the
times and in the fashion herein provided for the payment of Fixed Rent. For an
initial period from the Commencement Date until the end of the Tax Year during
which the term of this lease shall commence, the monthly amount so to be paid
shall be that amount equal to one twelfth (1/12th) the product of $4.15 and the
square foot floor area of the demised premises, being that amount reasonably
estimated by Landlord for such purpose at the commencement of the Term. Promptly
after the end of said Tax Year, and promptly after the end of each Tax Year
thereafter, Landlord shall make a determination of Tenant's share of real estate
taxes and Operating Expenses; and if the aforesaid payments theretofore made for
such period by Tenant exceed Xxxxxx's share, such overpayment shall be credited
against the payments thereafter to be made by Tenant pursuant to this Section
(D); and if Tenant's share is greater than such payments theretofore made on
account for such period, Tenant shall make a suitable payment to Landlord. The
initial monthly payment on account of said additional rent shall be replaced
after Landlord's determination of Xxxxxx's share for the preceding Tax Year by a
payment which is one-twelfth (l/l2th)of Tenant's actual share thereof for the
immediately preceding Tax Year, with adjustments as appropriate where such
period is less than a full twelve-month period. Appropriate adjustments shall be
made in said monthly payment if the real estate taxes upon the Property for the
current Tax Year shall be known prior to the end of said Tax Year and/or if real
estate taxes shall be payable to the taxing authority in installments, all to
the end that as each payment of real estate taxes shall become payable Landlord
shall have received from Tenant payments sufficient in amount to pay Tenant's
share of the Building's Share of Real Estate Taxes then payable by Landlord. At
Landlord's election, Landlord may use its fiscal year rather than Tax Years for
purposes of the adjustments described in this Section. Landlord shall provide
Tenant with copies of invoices upon request but in any event not more often than
once per year.
(E) ADDITIONAL RENT - ELECTRICITY, GAS, WATER & SEWER
(1) The demised premises shall have utility meters measuring only
the amount of the utilities consumed in the demised premises, and commencing
upon Tenant's entry into the demised premises to perform Tenant's work, Tenant
shall pay to the utility companies furnishing such utilities, promptly upon the
receipt of bills therefor, the cost of such utilities consumed in the demised
premises.
(2) Tenant's use of electricity in the demised premises shall not
at any time exceed the capacity of any of the electrical conductors or equipment
in or otherwise serving the demised premises. Landlord represents that the
existing feeders, risers, and wiring installations in the Building are capable
of supplying without any adverse impact on other occupants or the need for
upgrading electrical service, and there shall be available to the perimeter of
the demised
10
premises on the Commencement Date, at least 1200 Amperes of electric service.
The cost of bringing said electric service from the main utility source in the
Building to the demised premises shall be Tenant's obligation and at Tenant's
cost and expense.
ARTICLE VI
TENANT'S COVENANTS
6. TENANT'S COVENANTS DURING THE TERM.
Tenant covenants during the Term and such other time as Tenant occupies
any part of the demised premises:
(1) To pay when due (a) all Fixed Rent and additional rent, (b) all
taxes which may be imposed on Tenant's personal property in the demised premises
(including, without limitation, Tenant's fixtures and equipment)regardless to
whomever assessed, and (c) all charges by any public utility for telephone and
other utility services rendered to the demised premises;
(2) Except as otherwise provided in Article VIII and Section
4(A)(2), to keep the demised premises in good order, repair and condition,
reasonable wear only excepted; to replace all light bulbs as necessary; maintain
and replace all interior glass; keep all utilities, pipes, conduits, drains and
other installations exclusively used in connection with the demised premises
(other than the tie-ins to the Building's life, safety and fire systems which
shall be Landlord's obligation to repair and maintain), including, without
limitation, the heating, ventilating and air conditioning systems which serve
only the demised premises in good order, condition and repair; and at the
expiration or termination of this lease peaceably to yield up the demised
premises and all changes and additions therein in such order, repair and
condition, first removing all goods and effects of Tenant and those claiming
under Tenant and any items the removal of which is required by any agreement
between Landlord and Tenant (or specified therein to be removed at Tenant's
election and which Tenant elects to remove), and repairing all damage caused by
such removal and restoring the demised premises and leaving them clean and neat.
Notwithstanding anything to the contrary contained herein, Tenant shall
forthwith remove from the demised premises (repairing any damage caused by such
removal) any installations, alterations, additions or improvements made by
Tenant without Landlord's consent or which Landlord, at the time of granting
consent thereto, requests Tenant to remove. Tenant shall remove same within
thirty (30) days after the expiration or termination of the term of this lease,
such removal to include returning the previously modified portions of the
demised premises to their condition prior to the making of such installations,
alterations, additions or improvements. Tenant's obligations hereunder shall
survive the expiration or termination of the term of this lease. For purposes of
this Section (2)the word "repairs" includes the making of non structural
replacements when necessary. Upon the expiration or sooner termination of this
lease, whether or not6t such termination is a result of default, Tenant shall
have the right, at its expense, to remove from the demised premises all items
and nonstructural characteristics that are indicative of Tenant's business, and
otherwise to "deidentify" the demised premises, as Tenant reasonably believes
necessary or appropriate for the protection of Tenant's interest in Xxxxxx's
trademarks, tradenames, copyrights and other proprietary interests, provided
Tenant shall repair any damage to the demised premises caused by the removal
thereof, which repair shall include the patching and filling of holes. In no
event shall Tenant remove any restrooms, flooring, ceilings or electrical
systems. All
11
other utility systems will be capped and returned to a condition compatible with
code requirements. Any removal of furnishings, machinery, fixtures, equipment,
improvements, or personal property by Tenant shall be conducted in a good and
workmanlike manner, and Tenant shall diligently and promptly repair or restore
any injury or damage done to the demised premises in connection with such
removal;
(3) Continuously from the Commencement Date, to use and occupy the
demised premises only for the Permitted Use; and not to injure or deface the
demised premises, Building, or Lot; and not to permit in the demised premises
any auction sale, nuisance, or the emission from the demised premises of any
objectionable noise or odor; nor any use thereof which is improper, offensive,
contrary to law or ordinances, or liable to invalidate or increase the premiums
for any insurance on the Building (or any portion thereof)or its contents, or
liable to render necessary any alteration or addition to the Building. Tenant
shall obtain Landlord's consent prior to the installation of antennae or other
transmitting devices on the roof of the Building, and Tenant shall pay the fair
market rent (determined in the same manner as set forth in Section (B)of Article
13 below) for locating said antennae and/or equipment on the roof of the
Building. Landlord represents and warrants to Tenant that (i) Tenant's permitted
use of the demised premises shall not in and of itself violate any of the
provisions of this lease or the provisions of any grant, lease, or mortgage to
which this lease is subordinate; (ii) the certificate of occupancy for the
Building permits the use of the demised premises by Tenant for the purpose set
forth in Article 1 above; (iii) Tenant's use of the demised premises for the
purposes specified herein will not in and of itself violate Landlord's insurance
policies which shall be in effect immediately prior to the beginning of the Term
of this lease, nor increase the premiums therefor;
(4) To comply with the rules and regulations set forth in Exhibit E
and all other reasonable rules and regulations hereafter made by Landlord (but
only after copies thereof have been delivered to Tenant) for the care and use of
the Building and Lot and their facilities and approaches, it being expressly
understood, however, that Landlord shall not be liable to Tenant for the failure
of other tenants of the Building to conform to such rules and regulations. The
lease provisions shall control and supersede any contradictory or inconsistent
provisions contained in the rules and regulations or in any Exhibit to this
lease;
(5) To keep the demised premises equipped with all safety appliances
required by law or ordinance or any other regulation of any public authority
and/or any insurance inspection or rating bureau having jurisdiction, and to
procure all licenses and permits required because of any use made by Tenant and,
if requested by Landlord, to do any work required because of such use, it being
understood that the foregoing provisions shall not be construed to broaden in
any way the Permitted Use;
(6) Not without the prior written consent of Landlord (which consent
Xxxxxxxx agrees that it shall not unreasonably withhold), to assign,
hypothecate, pledge or otherwise encumber this lease, to make any sublease or to
permit occupancy of the demised premises or any part thereof by anyone other
than Tenant, voluntarily or by operation of law, and as additional rent, to
reimburse Landlord promptly upon demand for reasonable legal and other expenses
incurred by Landlord in connection with any request by Xxxxxx for consent to
assignment or subletting. If Landlord shall consent to any assignment of this
lease by Xxxxxx or a subletting of the whole of the demised premises by Xxxxxx
at
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a rent which exceeds the rent payable hereunder by Xxxxxx, or if Landlord shall
consent to a subletting of a portion of the demised premises by Tenant at a rent
in excess of the subleased portion's prorata share of the rent payable hereunder
by Xxxxxx, then Tenant shall pay to Landlord, as additional rent forthwith upon
Xxxxxx's receipt of each installment of any such excess rent, fifty percent
(50%) of any such excess rent. Each request by Tenant for permission to assign
this lease or to sublet the whole or any part of the demised premises shall be
accompanied by a warranty by Tenant as to the amount of rent to be paid to
Tenant by the proposed assignee or sublessee. For purposes of this Section (6),
the term "rent" shall mean all fixed rent, additional rent or other payments
and/or consideration payable by one party to another for the use and occupancy
of premises. Tenant agrees, however, that neither it nor anyone claiming under
it shall enter into any sublease, license, concession or other agreement for
use, occupancy or utilization of space in the demised premises which provides
for rental or other payment for such use, occupancy or utilization based, in
whole or in part, on the net income or profits derived by any person or entity
from the space leased, used, occupied or utilized (other than an amount based on
a fixed percentage or percentages of receipts or sales), and Tenant agrees that
any such purported 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 demised premises.
Tenant further agrees that any sublease, license, concession or agreement, for
use, occupancy or utilization of space in the demised premises entered into by
it or by anyone claiming under it shall contain the provisions set forth in the
immediately preceding sentence. Xxxxxx further agrees that if a sublease is
entered into, neither the rent payable thereunder nor the amount thereof passed
oh LO any person or entity shall have deducted therefrom any expenses or costs
related in any way to the subleasing of such space. If and whenever Tenant shall
not be a so-called "publicly held" company, it is understood and agreed that the
transfer of fifty percent (50%)or more of the stock in Tenant of any class
(whether at one time or at intervals)shall constitute an "assignment" of
Tenant's interest in this lease. Notwithstanding The foregoing, during such time
as Tenant shall not be a publicly held corporation, transfers of stock (i)by and
among existing shareholders; (ii) pursuant to an initial public offering; and
(iii) transfers of stock for estate planning to immediate family members of
existing shareholders, or trusts created therefore, shall not be deemed an
assignment of this lease. If there shall be any assignment or subletting by
Tenant pursuant to the provisions of this paragraph, Tenant shall remain
primarily liable for the performance and observance of the covenants and
agreements herein contained on the part of Tenant to be performed and observed,
such liability to be (in the case of any assignment) joint and several with that
of such assignee. It is expressly understood and agreed that no assignment of
Xxxxxx's interest in this lease shall be effective until such time as Tenant
shall deliver to Landlord an agreement from the assignee, which agreement shall
be reasonably satisfactory to Landlord in form and substance and shall provide
that the assignee agrees with Landlord to be primarily liable for the
performance and observance of the covenants and agreements herein contained on
the part of Tenant to be performed and observed, such liability to be joint and
several with that of Tenant. Landlord hereby agrees, however, that Tenant may
assign its interest in this lease or sublet the whole of the demised premises to
a)a corporation which owns all of the outstanding stock of Tenant (" Tenant's
Parent"); (b)a corporation wholly owned by Tenant or by Tenant's Parent (" a
Subsidiary"); or (c)a corporation resulting from the consolidation or merger of
Tenant with any other corporation. Landlord agrees, further, that it shall not
unreasonably withhold, delay or condition its consent to an assignment of this
lease to an entity which shall acquire all or substantially all
13
of the assets or stock of Tenant. Notwithstanding the foregoing provisions, if
the assignment or subletting is to a Subsidiary, said assignment or subletting
shall be valid only for such period of time as said Subsidiary is wholly owned
by Tenant or Xxxxxx's Parent. In the event that Tenant or Tenant's Parent shall
ever sell or otherwise transfer any interest in said Subsidiary to another
person or entity, unless Landlord shall have specifically assented thereto, the
same shall be deemed to be a material breach of this lease;
(7) To defend Landlord, with counsel acceptable to Landlord, save
Landlord harmless from, and indemnify Landlord against any liability for injury,
loss, accident or damage to any person or property and from any claims, actions,
proceedings and expenses and costs in connection therewith (including, without
implied limitation, reasonable counsel's fee): (i) arising from the omission,
fault, willful act, negligence or other misconduct of Tenant or anyone claiming
under Tenant, or from any use made or thing done or occurring upon or about the
demised premises but not due to the omission, fault, willful act, negligence or
other misconduct of Landlord, or (ii)resulting from the failure of Tenant to
perform and discharge its covenants and obligations under this lease beyond any
applicable cure period;
(8) To maintain public liability insurance upon the demised premises
in amounts which shall, at the beginning of the Term, be at least equal to
$2,000,000.00 for bodily injury or death to one or more individuals and
$500,000.00 for damage to property, and from time to time during the Term, shall
be for such higher limits, if any, as are customarily carried in the area in
which the demised premises are located upon property similar in type and use to
the demised premises. Such insurance shall name Landlord, Xxxxxxxx's Managing
Agent, and Xxxxxxxx's Mortgagee as additional insureds. Tenant shall deliver to
Landlord certificates thereof, at least fifteen (15) days prior to the
Commencement Date, and each renewal policy or certificate thereof, at least
fifteen (15)days prior to the expiration of the policy it renews. Each such
policy shall be written by a responsible insurance company authorized to do
business in the Commonwealth of Massachusetts and shall provide that the same
shall not be modified or terminated wit! lout at least twenty (20) days' prior
written notice to each named insured;
(9) To keep all employees working in the demised premises covered by
workmen's compensation insurance in amounts required by law, and to furnish
Landlord with certificates thereof;
(10) To permit Landlord and its agents entry: to examine the demised
premises at reasonable times upon prior reasonable notice (except in an
emergency when Landlord may enter at any time)and, if Landlord shall so elect,
to make repairs, alterations and replacements; to remove, at Tenant's expense,
any changes, additions, signs, curtains, blinds, shades, awnings, aerials,
flagpoles, or the like not consented to in writing; and to show the demised
premises to prospective tenants during the nine (9) months preceding the
expiration of the Term and to prospective purchasers and mortgagees at all
reasonable times. Xxxxxxxx agrees that in exercising its rights pursuant to this
subsection (l0). it shall not unreasonably interfere with Xxxxxx's conduct of
business in the demised premises;
or
(11) Not to place a load upon any part of the tloor of the demised
premises exceeding that for which said floor was designed or in violation of
what is allowed by law; and not to move any safe, vault or other heavy equipment
in,
14
about or out of the demised premises except in such manner and at such times as
Landlord shall approve in writing in each instance. Tenant's business machines
and mechanical equipment which cause vibration or noise that may be transmitted
to the Building structure or to any other space in the Building shall be placed
and maintained by Tenant in settings of cork, rubber, spring, or other types of
vibration eliminators sufficient to confine such vibration or noise to the
demised premises. Tenant shall have the right to place a reasonable amount of
heating, ventilating and air conditioning equipment approved by Landlord on the
roof of the Building in locations and in a manner reasonably acceptable to
Landlord at no additional charge. Landlord warrants that the floor load capacity
of the demised premises is 150 lbs. per square foot;
(12) All the furnishings, fixtures, equipment, effects and property
of every kind, nature and description of Tenant and of all persons claiming by,
through or under Tenant which, during the continuance of this lease or any
occupancy of the demised premises by Tenant or anyone claiming under Tenant, may
be on the demised premises or elsewhere in the Building or on the Lot shall be
at the sole risk and hazard of Tenant, and if the whole or any part thereof
shall be destroyed or damaged by fire, water or otherwise, or by the leakage or
bursting of water pipes, steam pipes, or other pipes, by theft, or from any
other cause, no part of said loss or damage is to be charged to or to be borne
by Landlord. Unless caused by the gross negligence or willful act of Landlord,
its agents, servants, employees or contractors;
(13) To pay promptly when due the entire cost of any work done on the
demised premises by Xxxxxx and those claiming under Tenant; not to cause or
permit any liens for labor or materials performed or furnished in connection
therewith to attach to the demised premises; and immediately to discharge any
such liens which may so attach after notice;
(14) Not to make any alterations, improvements, changes or additions
to the demised premises without Landlord's prior written consent. Tenant shall
have the right to tie the switch space into and or connect same with the vents,
pipes, ducts and conduits of the Building in connection with Xxxxxx's initial
work to prepare the switch space for Tenant's occupancy and the providing of
utility services thereto, all in accordance with plans and specifications
approved by Landlord;
(15) To pay to Landlord one hundred seventy five percent (175%)of the
total of the Fixed Rent and additional rent then applicable for each month or
portion thereof that Tenant shall retain possession of the demised premises or
any part thereof after the termination of this lease, whether by lapse of time
or otherwise, and also to pay all damages sustained by Landlord on account
thereof; however, the provisions of this subsection shall not operate as a
waiver by Landlord of any right of re-entry provided in this lease or as a
matter of law;
(16) To insure the contents, equipment, and improvements of Tenant
and those claiming under Tenant, under policies covering at least fire and the
standard extended coverage risks, in amounts equal to eighty percent (80%)of the
replacement cost thereof, the terms of which policies shall provide that such
insurance shall not be canceled without at least twenty (20) days' prior written
notice to Landlord. Copies of such insurance policy or policies, or certificates
there of, shall be delivered to Landlord at least fifteen (IS)days prior to the
Commencement Date and each renewal policy or certificate thereof, at least
fifteen (15)days prior to the expiration of the policy it renews.
Notwithstanding
15
anything contained to the contrary contained in this lease, Landlord shall have
no interest in any insurance proceeds Tenant receives for Tenant's property and
Landlord shall sign waivers of lien reasonably acceptable to Landlord in
connection with Xxxxxx's personal property. Tenant may carry the aforesaid
policies under blanket policies provided the demised premises is separately
identified thereon; and
(17)* To pay Xxxxxxxx's expenses, including reasonable attorney's
fees, incurred in enforcing any obligation of Tenant in this lease.
ARTICLE VII
DEFAULT
7. (A) EVENTS OF DEFAULT
(1) If Tenant shall default in the payment of Fixed Rent, additional
rent or other payments required of Tenant, and if Tenant shall fail to cure said
default within ten (10)days after receipt of notice of said default from
Landlord, or (2) if Tenant shall default in the performance or observance of any
other agreement or condition on its part to be performed or observed and if
Tenant shall fail to cure said default within fifteen days after receipt of
notice of said default from Landlord (but if longer than fifteen days shall be
reasonably required to cure said default, then if Tenant shall fail to commence
the curing of such default within fifteen days after receipt of said notice and
diligently prosecute the curing thereof to completion), or (3) if any person
shall levy upon, or take this leasehold interest or any part thereof upon
execution, attachment or other process of law, or (4) if Tenant or Guarantor
shall make an assignment of its property for the benefit of creditors, or (5)
if Tenant or Guarantor shall be declared bankrupt or insolvent according to law,
or (6) if any bankruptcy or insolvency proceedings shall be commenced by or
against Tenant or Guarantor and, if against, if not dismissed within ninety
(90)days, or (7) if a receiver, trustee or assignee shall be appointed for the
whole or any part of Tenant's or Guarantor's property, and such appointment is
not stayed after seven (7) business days, then in any of said cases, Landlord
lawfully may immediately, or at any time thereafter, and upon five (5) days
notice or demand, enter into and upon the demised premises or any part thereof
in the name of the whole, and hold the demised premises as if this lease had not
been made, and expel by judicial proceeding Tenant and those claiming under it
and remove its or their property without being taken or deemed to be guilty of
any manner of trespass (or Landlord may send written notice to Tenant of the
termination of this lease), and upon entry as aforesaid (or in the event that
Landlord shall send Tenant notice of termination as above provided, on the fifth
day next following the date of the sending of the notice), the term of this
lease shall terminate. Notwithstanding the provisions of clause (1) of the
immediately preceding sentence, if Landlord shall have rightfully given Tenant
notice of default pursuant to either or both of said clauses twice during any
twelve-month period, and if Tenant shall hereafter default in the payment of
Fixed Rent, additional rent or other payments required of Tenant, then Landlord
may exercise the right of termination provided for it in said immediately
preceding sentence without first giving Tenant notice of such default and the
opportunity to cure the same within the time provided in said clause (1). 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 for
any cause, or in the event Landlord terminates this lease as provided in this
Article.
16
(B) OBLIGATIONS THEREAFTER
In case of any such termination, Xxxxxx will indemnify Landlord each
month against all loss of Fixed Rent and additional rent and against all
obligations which Landlord may incur by reason of any such termination between
the time of termination and the expiration of the Term; or at the election of
Landlord, exercised at the time of termination or at any time thereafter, Tenant
will indemnify Landlord each month until the exercise of the election against
all loss of Fixed Rent and additional rent and against all obligations which
Landlord may incur by reason of such termination during the period between the
time of the termination and the exercise of the election, and upon the exercise
of the election Tenant will pay to Landlord as damages such amount as at the
time of the exercise of the election represents the amount by which the rental
value of the demised premises for the period from the exercise of the election
until the expiration of the Term shall be less than the amount of rent and
other payments provided herein to be paid by Xxxxxx to Landlord during said
period. It is understood and agreed that at the time of the termination or at
any time thereafter Landlord may rent the demised premises, and for a term which
may expire before or after the expiration of the Term, without releasing Tenant
from any liability whatsoever, that Tenant shall be liable for any reasonable
expenses incurred by Landlord in connection with obtaining possession of the
demised premises, with removing from the demised premises property of Tenant and
persons claiming under it (including warehouse charges), with putting the
demised premises into good condition for reletting, and with any reletting,
including, but without limitation, reasonable attornes' fees and brokers fees,
and that any monies collected from any reletting shall be applied first to the
foregoing expenses and then to the payment of Fixed Rent, additional rent and
all other payments due from Tenant to Landlord.
ARTICLE VIII
CASUALTY AND TAKING
8. (A) CASUALTY AND TAKING
In case during the Term all or any substantial part of the demised
premises, the Building, or Lot or any one or more of them, are damaged by fire
or any other casualty or by action of public or other authority or are taken by
eminent domain, this lease shall terminate at Landlord's election, which may be
made notwithstanding Landlord's entire interest may have been divested, by
notice given to Tenant within thirty days after the occurrence of the event
giving rise to the election to terminate. Said notice shall, in the case of
damage as aforesaid, specify the effective date of termination which shall be
not less than thirty nor more than sixty days after the date of notice of such
termination. In the case of any such taking by eminent domain, the effective
date of the termination shall be the day on which the taking authority shall
take possession of the taken property. Fixed Rent and additional rent shall be
apportioned and adjusted as of the effective date of any such termination. If in
any such case the demised premises are rendered unfit for use and occupation and
this lease is not so terminated, Landlord shall use due diligence to put the
demised premises, or, in the case of a taking, what may remain thereof
(excluding any items which Tenant may be required or permitted to remove from
the demised premises at the expiration of the Term) into proper condition for
use and occupation, but Landlord shall not be required to spend more than the
net proceeds of insurance or award of damages it receives therefor, and a just
proportion of the Fixed Rent and additional rent according to the nature and
extent of the injury to the demised
17
premises shall be abated until the demised premises or such remainder shall have
been put by Landlord in such condition; and in case of a taking which
permanently reduces the area of the demised premises, a just proportion of the
Fixed Rent shall be abated for the remainder of the Term. Notwithstanding the
foregoing, if there shall be damage or destruction to the demised premises by
fire or other casualty which shall not be repaired or restored by Landlord
within a period of twelve (12) months after the date of such damage or
destruction, then Tenant, as Tenant's sole remedy, may terminate the Term of
this lease by notice to Landlord within sixty (60) days after the expiration of
such twelve (12) month period; provided that said repair or restoration shall
not have been completed prior to the receipt by Landlord of said notice. If any
damage or destruction occurs to the demised premises during the last year of the
Term and the cost to repair the damage exceeds Twenty Five Thousand Dollars
($25,000.00), either Landlord or Tenant may terminate this lease upon giving the
other party thirty (30) days written notice; provided, however, that if Landlord
notifies Tenant that it wishes to terminate this lease pursuant to the foregoing
sentence, then Tenant may, if it has not already done so, exercise its right to
extend the Term of the lease, whereupon Landlord's election to terminate shall
be null and void.
(B) RESERVATION OF AWARD
Landlord reserves to itself any and all rights to receive awards made
for damage to the demised premises, Building or Lot and the leasehold hereby
created, or any one or more of them, accruing by reason of any exercise of the
right of eminent domain or by reason of anything done in pursuance of public or
other authority. Tenant hereby releases and assigns to Landlord all of Tenant's
rights to such awards, and covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request. It is agreed and
understood, however, that Xxxxxxxx does not reserve to itself, and Xxxxxx does
not assign to Landlord, any damages payable for (i) movable equipment installed
by Tenant or anybody claiming under Tenant at its own expense or (ii) relocation
expenses, but in each case only if and to the extent that such damages are
recoverable by Tenant from such authority in a separate action and without
reducing Landlord's award of damages.
ARTICLE IX
MORTGAGEE
9. (A) SUBORDINATION TO MORTGAGES
It is agreed that the rights and interest of Tenant under this lease
shall be: (i) subject and subordinate to the lien of any present or future first
mortgage and to any and all advances to be made thereunder, and to the interest
thereon, upon the demised premises or any property of which the demised
premises are a part, if the holder of such mortgage shall elect, by notice to
Tenant, to subject and subordinate the rights and interest of Tenant under this
lease to the lien of its mortgage; or (ii) prior to the lien of any present or
future first mortgage, if the holder of such mortgage shall elect, by notice to
Tenant, to give the rights and interest of Tenant under this lease priority to
the lien of its mortgage. It is understood and agreed that the holder of such
mortgage may also elect, by notice to Xxxxxx, to make some provisions hereof
subject and subordinate to the lien of its mortgage while granting other
provisions hereof priority to the lien of its mortgage. In the event of any of
such elections, and upon notification by the holder of such mortgage to that
effect, the rights and interest of Tenant under this lease shall be deemed to be
subordinate to, or to have priority over, as the case
18
may be, the lien of said mortgage, irrespective of the time of execution or time
of recording of any such mortgage. Xxxxxx agrees that it will, upon request of
Landlord, execute, acknowledge and deliver any and all instruments deemed by
Landlord necessary or desirable to evidence or to give notice of such
subordination or priority. Xxxxxx also agrees that if it shall fail at any time
after twenty (20) days notice to execute, acknowledge and deliver any such
instrument reasonably requested by Landlord, Landlord may, in addition to any
other remedies available to it, execute, acknowledge and deliver such instrument
as the attorney-in-fact of Tenant and in Xxxxxx's name; and Xxxxxx does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact and in
its name, place and stead so to do. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments and modifications,
consolidations, extensions, renewals, replacements and substitutes thereof.
Whether the lien of any mortgage upon the demised premises or any property of
which the demised premises are a part shall be superior or subordinate to this
lease and the lien hereof, Xxxxxx agrees that it will, upon request, attorn to
the holder of such mortgage or anyone claiming under such holder and their
respective successors and assigns in the event of foreclosure of or similar
action taken under such mortgage. Tenant further agrees that it shall not
subordinate its interest in this lease, to the lien of any junior mortgage,
security agreement or lease affecting the demised premises, unless the holder of
the first mortgage upon the demised premises or property which includes the
demised premises shall consent thereto. Notwithstanding anything to the contrary
contained in this Article 9, Landlord shall use its best efforts to cause the
holder of such mortgage to enter into an agreement with Tenant, recordable in
form, to the effect that in the event of foreclosure of, or similar action taken
under, such mortgage, Xxxxxx's possession of the demised premises shall not be
terminated or disturbed by such mortgage holder or anyone claiming under such
mortgage holder so long as Tenant shall not be in default under this lease
beyond any applicable cure period.
(B) LIMITATION ON MORTGAGEE'S LIABILITY
Upon entry and taking possession of the mortgaged premises for any
purpose, the holder of a mortgage shall have all rights of Landlord, and during
the period of such possession Landlord, not such mortgage holder, shall have the
duty to perform all of Landlord's obligations hereunder. No such holder shall be
liable, either as a mortgagee or as holder of a collateral assignment of this
lease, to perform, or be liable in damages for failure to perform, any of the
obligations of Landlord unless and until such holder shall succeed to Landlord's
interest herein through foreclosure of its mortgage or the taking of a deed in
lieu of foreclosure, and thereafter such mortgage holder shall not be liable for
the performance of any of Landlord's obligations hereunder, except for the
performance of those obligations which arise during the period of time that such
mortgage holder holds Xxxxxxxx's right, title and interest in this lease, such
liability to be limited to the same extent as Landlord's liability is limited
pursuant to Section 10(E)hereof.
(C) NO RELEASE OR TERMINATION
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this lease, or by law, to be relieved of any of
Tenant's obligations hereunder or to terminate this lease, shall result in a
release or termination of such obligations or a termination of this lease unless
(i) Tenant shall have first given written notice of Landlord's act or failure to
act to
19
Xxxxxxxx's mortgagees of record, if any, specifying the act or failure to act on
the part of Landlord which could or would be the basis of Tenant's rights and
(ii) such mortgagees, after receipt of such notice, have failed or refused to
correct or cure the condition complained of within a reasonable time thereafter,
but nothing contained in this Section (C) shall be deemed to impose any
obligation on any such mortgagee to correct or cure any such condition.
"Reasonable time" as used above means and includes a reasonable time to obtain
possession of the mortgaged premises, if the mortgagee elects to do so, and a
reasonable time to correct or cure the condition. Finally, Xxxxxx agrees that so
long as any present or future mortgage shall remain in effect Tenant shall not
alter, modify, amend, change, surrender or cancel this lease nor pay the rent
due hereunder in advance for more than thirty (30) days, except as may be
required herein, without the prior written consent of the holder thereof, and
Tenant will not seek to be made an adverse or defendant party in any action or
proceeding brought to enforce or foreclose such mortgage.
ARTICLE X
GENERAL PROVISIONS
10. (A) CAPTIONS
The captions of the Articles are for convenience and are not to be
considered in construing this lease.
(B) SHORT FORM LEASE
Upon request of either party both parties shall execute and deliver a
short form of this lease in form appropriate for recording, and if this lease is
terminated before the Term expires, an instrument in such form acknowledging the
date of termination. No such short form lease shall contain any indication of
the amount of the rentals payable hereunder by Xxxxxx.
(C) RELOCATION
Intentionally Omitted.
(D) NOTICES
All notices and other communications authorized or required hereunder
shall be in writing and shall be given by mailing the same by certified or
registered mail, return receipt requested, postage prepaid, by mailing the same
by Express Mail or by having the same delivered by a commercial delivery service
such as Federal Express, UPS, Purolator Courier and the like. If given to Tenant
the same shall be directed to Tenant at Tenant's Address, with a copy to Xxxxxxx
Xxxxxx Xxxx and Ball P.C., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, with a further copy to Xxxxx Xxxxxxx, Community Networks, 00-00 Xxxxx
Xxxxxx, Xxxxx 000, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000, or to such other person or
at such other address as Tenant may hereafter designate by notice to Landlord;
and if given to Landlord the same shall be directed to Landlord at Landlord's
Address, or to such other person or at such other address as Landlord may
hereafter designate by notice to Tenant. In the event the notice directed as
above provided shall not be received upon attempted delivery thereof to the
proper address and shall be returned by the Postal Service or delivery service
to the sender because of a refusal of receipt, the absence of a person to
receive, or
20
otherwise, the time of the giving of such notice shall be the first business day
on which delivery was so attempted.
After receiving notice from Landlord or from any person, firm or other
entity holds a mortgage which includes the demised premises as part of the
mortgaged premises, no notice from Tenant to Landlord shall be effective unless
and until a copy of the same is given by certified or registered mail to such
holder, and the curing of any of Landlord's defaults by such holder shall be
treated as performance by Landlord, it being understood and agreed that such
holder shall be afforded a reasonable period of time after the receipt of such
notice in which to effect such cure.
(E) SUCCESSORS AND ASSIGNS
The obligations of this lease shall run with the land, and this lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns, except that the
Landlord named herein and each successive owner of Landlord's interest in this
lease shall be liable only for the obligations of Landlord accruing during the
period of its ownership. Whenever Landlord's interest in this lease is owned by
a trustee or trustees, the obligations of Landlord shall be binding upon
Landlord's trust estate, but not upon any trustee, beneficiary or shareholder of
the trust individually. Without limiting the generality of the foregoing, and
whether or not Xxxxxxxx's interest in this lease is owned by a trustee or
trustees, Xxxxxx specifically agrees to look solely to Xxxxxxxx's interest in
the Building and Lot for recovery of any judgment from Landlord, it being
specifically agreed that neither Landlord, any trustee, beneficiary or
shareholder of any trust estate for which Landlord acts nor any person or entity
claiming by, through or under Landlord shall ever otherwise be personally liable
for any such judgment.
(F) NO SURRENDER
The delivery of keys to any employee of Landlord or to Landlord's agent
or any employee thereof shall not operate as a termination of this lease or a
surrender of the demised premises.
(G) WAIVERS AND REMEDIES
The failure of Landlord or of Tenant to seek redress for violation of,
or to insist upon the strict performance of any covenant or condition of this
lease, or, with respect to such failure of Landlord, any of the rules and
regulations referred to in Section 6(4), whether heretofore or hereafter adopted
by Xxxxxxxx, shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from having
all the force and effect of an original violation, nor shall the failure of
Landlord to enforce any of said rules and regulations against any other tenant
in the Building be deemed a waiver of any such rules or regulations as far as
Tenant is concerned. The receipt by Landlord of Fixed Rent or additional rent
with knowledge of the breach of any covenant of this lease shall not be deemed a
waiver of such breach by Landlord unless such waiver be in writing signed by
Landlord. No consent or waiver express or implied, by Landlord or Tenant to or
of any breach of any agreement or duty shall be construed as a waiver or consent
to or of any other breach of the same or any other agreement or duty. No
acceptance by Landlord of a lesser sum than the Fixed Rent and additional rent
then due shall be deemed to be other than on account of the earliest installment
of such rent due, nor shall any
21
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed as accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy available to it. The
specific remedies to which 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 it may be lawfully entitled in case of any breach or
threatened breach by Tenant of any provisions of this lease. In addition to the
other remedies provided in this lease, Landlord shall be entitled to the
restraint by injunction of tie violation or attempted or threatened violation of
any of the covenants, conditions or provisions of this lease or to a decree
compelling specific performance of any such covenants, conditions or provisions.
If any term1 of this lease, or the application thereof to any person or
circumstances shall be held, to any extent, to be invalid or unenforceable, the
remainder of this lease, or the application of such term to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall not be affected thereby, and each term of this lease shall
be valid and enforceable to the fullest extent permitted by law. If any interest
to be paid by Tenant hereunder shall exceed the highest lawful rate which
Landlord may recover from Tenant, such interest shall be reduced to such highest
lawful rate of interest.
(H) SELF-HELP
If Tenant shall at any time default in the performance of any obligation
under this lease, Landlord shall have the right, but shall not be obligated, to
enter upon the demised premises and to perform such obligation, notwithstanding
the fact that no specific provision for such performance by Landlord is made in
this lease with respect to such default. In performing such obligation, Landlord
may make any payment of money or perform any other act. All sums so paid by
Xxxxxxxx (together with interest, from the time paid by Landlord until the time
Tenant repays the same to Landlord, at the rate of interest per annum as set
forth in Section (A)of Article V above, shall be deemed to be additional rent
and shall be payable to Landlord immediately on demand. Landlord may exercise
the foregoing right without waiving any other of its rights or releasing Tenant
from any of its obligations under this lease. If Landlord shall at any time
default in the performance of any obligation under this lease, Tenant shall have
the right, but shall not be obligated, to enter upon the demised premises and to
perform such obligation, notwithstanding the fact that no specific provision
for such performance by Xxxxxx is made in this lease with respect to such
default. In performing such obligation, Landlord may make any payment of money
or perform any other act. All sums so paid by Xxxxxx (together with interest,
from the time paid by Xxxxxx until the time Landlord repays the same to Tenant,
at the rate of interest per annum as set forth in Section (A)of Article V above,
shall be payable to Tenant immediately on demand. Tenant may exercise the
foregoing right without waiving any other of its rights or releasing Landlord
from any of its obligations under this lease.
(I) ESTOPPEL CERTIFICATE
Tenant agrees from time to time after the Commencement Date, upon not
less than five days' prior written request by Landlord, to execute, acknowledge
and deliver to Landlord a statement in writing certifying that this lease is
unmodified and in full force and effect; that Landlord has completed Xxxxxxxx's
Required Work; that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Fixed Rent and additional rent and to perform its other
22
covenants under this lease; that there are no uncured defaults of Landlord or
Tenant under this lease (or, if there have been any modifications, that this
lease is in full force and effect as modified and stating the modifications,
and, if there are any defenses, offsets, counterclaims, or defaults, setting
them forth in reasonable detail); and the dates to which the Fixed Rent,
additional rent and other charges have been paid. Any such statement delivered
pursuant to this Section (I) may be relied upon by any prospective purchaser or
mortgagee of premises which include the demised premises or any prospective
assignee of any such mortgagee. Xxxxxxxx agrees from time to time after the
Commencement Date, upon not less than five days' prior written request by
Xxxxxx, to execute, acknowledge and deliver to Tenant a statement in writing
certifying that this lease is unmodified and in full force and effect; that
Landlord has completed Xxxxxxxx's Required Work; that Tenant has no defenses,
offsets or counterclaims against its obligations to pay the Fixed Rent and
additional rent and to perform its other covenants under this lease; that there
are no uncured defaults of Landlord or Tenant under this lease (or, if there
have been any modifications, that this lease is in full force and effect as
modified and stating the modifications, and, if there are any defenses, offsets,
counterclaims, or defaults, setting them forth in reasonable detail); and the
dates to which the Fixed Rent, additional rent and other charges have been paid.
(J) WAIVER OF SUBROGATION
(1) Tenant hereby releases Landlord to the extent of Tenant's
insurance coverage, from any and all liability for any loss or damage caused by
fire or any of the extended coverage casualties or any other casualty insured
against, even if such fire or other casualty shall be brought about by the fault
or negligence of Landlord or its agents, provided, however this release shall be
in force and effect only with respect to loss or damage occurring during such
time as Tenant's policies covering such loss or damage shall contain a clause to
the effect that this release shall not affect said policies or the right of
Tenant to recover thereunder. Tenant agrees that its fire and other casualty
insurance policies will include such a clause so long as the same is includable
without extra cost, or if extra cost is chargeable therefor, so long as Landlord
pays such extra cost. If extra cost is chargeable therefor, Tenant will advise
Landlord thereof and of the amount thereof. Landlord at its election, may pay
the same, but shall not be obligated to do so.
(2) Landlord hereby releases Tenant, to the extent of the Landlord's
insurance coverage, from any and all liability for any loss or damage caused by
fire or any of the extended coverage casualties or any other casualty insured
against, even if such fire or other casualty shall be brought about by the fault
or negligence of Tenant or its agents, provided, however, this release shall be
in force and effect only with respect to loss or damage occurring during such
time as Landlord's policies covering such loss or damage shall contain a clause
to the effect that this release shall not affect said policies or the right of
Landlord to recover thereunder. Landlord agrees that its fire and other casualty
insurance policies will include such a clause so long as the same is includable
without extra cost, or if extra cost is chargeable therefor, so long as Tenant
pays such extra cost. If extra cost is chargeable therefor, Landlord will advise
Tenant thereof and of the amount thereof. Tenant at its election may pay the
same, but shall not be obligated to do so.
23
(K) BROKERS
Tenant hereby represents and warrants to Landlord that it has dealt with
no broker in connection with this lease other than Equis and CB Xxxxxxx Xxxxx
Xxxxxxxx Partners ("the Listed Broker/s"), and there are no other brokerage
commissions or other finders' fees payable in connection herewith. Tenant hereby
agrees to hold Landlord harmless from, and indemnified against, all loss or
damage (including without limitation, the cost of defending the same)arising
from any claim by any broker other than ("the Listed Broker/s"), claiming to
have dealt with Xxxxxx. Landlord shall pay the commission due the Listed
Broker/s by separate agreement. Landlord hereby represents and warrants to
Tenant that it has dealt with no broker in connection with this lease other than
Equis and CB Xxxxxxx Xxxxx Xxxxxxxx Partners ("the Listed Broker/s"), and there
are no other brokerage commissions or other finders' fees payable in connection
herewith. Xxxxxxxx hereby agrees to hold Tenant harmless from, and indemnified
against, all loss or damage (including without limitation, the cost of defending
the same) arising from any claim by any broker other than "the Listed
Broker/s", claiming to have dealt with Landlord.
(L) LANDLORD'S DEFAULTS
Landlord shall not be deemed to have committed a breach of any
obligation to make repairs or alterations or perform any other act unless: (1)
it shall have made such repairs or alterations or performed such other act
negligently; or (2) it shall have received notice from Tenant designating the
particular repairs or alterations needed or the other act of which there has
been failure of performance and shall have failed to make such repairs or
alterations or performed such other act within a reasonable time after the
receipt of such notice; and in the latter event Landlord's liability shall be
limited to the cost of making such repairs or alterations or performing such
other act.
(M) EFFECTIVENESS OF LEASE
The submission of this lease for examination does not constitute a reservation
of, or option for, the demised premises, and this lease becomes effective as a
lease only upon execution and unconditional delivery thereof by both Landlord
and Tenant.
(N) HAZARDOUS MATERIALS
Tenant shall not (either with or without negligence)cause or permit the
escape, disposal or release of any biologically or chemically active or other
hazardous substances, or materials. Tenant shall not allow the storage or use of
such substances or materials in any manner not sanctioned by the applicable
permits, or by law or by the highest standards prevailing in the industry for
the storage and use of such substances or materials, nor allow to be brought
into the Lot any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Tenant shall obtain
and maintain all proper permits required by applicable law or ordinance for the
storage and use of hazardous materials, and Tenant shall furnish evidence of
same upon request. Without limitation, hazardous substances and materials shall
include those described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section
6901 et seq., any
24
applicable state or local laws and the regulations adopted under these acts. 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 rent if such requirement applies to the demised premises. In
addition, Xxxxxx shall execute affidavits, representations and the like from
time to time at Landlord's request concerning Xxxxxx's best knowledge and belief
regarding the presence of hazardous substances or materials on the demised
premises. In all events, Xxxxxx shall indemnify Landlord in the manner elsewhere
provided in this least from any release of hazardous materials on the demised
premises occurring while Tenant is in possession, or elsewhere if caused by
Tenant or persons acting under Tenant. Landlord shall indemnify Tenant from any
release of hazardous materials on the Lot caused by Landlord or persons acting
under Landlord. The within covenants shall survive the expiration or earlier
termination of the term of this lease.
(0) DELAYS
In any case where either party hereto is required to do any act (other
than make a payment of money), delays caused by or resulting from Act of God,
war, civil commotion, fire or other casualty, labor difficulties, shortages of
labor, materials or equipment, government regulations or other causes beyond
such party's reasonable control (other than such party's financial
condition) shall not be counted in determining the time during which such act
shall be completed, whether such time be designated by a fixed date, a fixed
time or "a reasonable time". In any case where work is to be paid for out of
insurance proceeds or condemnation awards, due allowance shall be made, both to
the party required to perform such work and to the party required to make such
payment, for delays in the collection of such proceeds and awards.
ARTICLE XI
SECURITY DEPOSIT
11. Landlord acknowledges that it has received from Tenant the
Security Deposit, as security for the payment of rents and the performance and
observance of the agreements and conditions in this lease contained on the part
of Tenant to be performed and observed. In the event of any default or defaults
in such payment, performance or observance Landlord may apply said sum or any
part thereof toward the curing of any such default or defaults and/or toward
compensating Landlord for any loss or damage arising from any such default or
defaults. Upon the yielding up of the demised premises at the expiration or
other termination of the Term, if Tenant shall not then be in default or
otherwise liable to Landlord, said sum or the unapplied balance thereof shall
be returned to Tenant. It is understood and agreed that Landlord shall always
have the right to apply said sum, or any part thereof, as aforesaid in the event
of any such default or defaults, without prejudice to any other remedy or
remedies which Landlord may have, or Landlord may pursue any other such remedy
or remedies in lieu of applying said sum or any part thereof. No interest shall
be payable on said sum or any part thereof. If Landlord shall apply said sum or
any part thereof as aforesaid, Tenant shall upon demand pay to Landlord the
amount so applied by Landlord, to restore the security to its original amount.
Whenever the holder of Landlord's interest in this lease, whether it be the
Landlord named in this lease or any transferee of said Landlord, immediate or
remote, shall transfer its interest in this lease, said holder shall turn over
to its transferee said sum or the unapplied balance thereof, and thereafter such
holder shall be released from any and all
25
liability to Tenant with respect to said sum or its application or return, it
being understood that Tenant shall thereafter look only to such transferee with
respect to said sum, its application and return. The holder of any mortgage upon
property which includes the demised premises shall never be responsible to
Tenant for said sum or its application or return unless said sum shall actually
have been received in hand by such holder.
ARTICLE XII
MODIFICATION
12. In the event that any holder or prospective holder of any
mortgage which includes the demised premises as part of the mortgaged premises,
shall request any modification of any of the provisions of this lease, other
than a provision directly related to the rents payable hereunder, the duration
of the term hereof, or the size, use or location of the demised premises,
Xxxxxx agrees that Tenant will enter into an amendment of this lease containing
each such modification so requested provided same does not enlarge Tenant's
obligations hereunder.
ARTICLE XIII
OPTION
13. (A) OPTION TERM
Tenant shall have the right, at its election, to extend the
original Term of this lease for an additional period of five (5) years
commencing upon the expiration of the original Term, provided that Landlord
shall receive written notice from Tenant of the exercise of its election at
least nine (9) months prior to the expiration of the original Term and provided
further that Tenant shall not be in default beyond any applicable cure period at
the time of Landlord's receipt of such notice in the performance or observance
of any of the terms and agreements in this lease contained on the part of Tenant
to be performed or observed. The expression "the original Term" means the period
of ten (10) years referred to in Section (A) of Article 1 above. Prior to the
exercise by Xxxxxx of said election to extend the original Term, the expression
"the Term of this lease" or any equivalent expression shall mean the original
Term; after the exercise by Tenant of the aforesaid election, the expression
"the Term of this lease" or any equivalent expression shall mean the original
Term as extended. Except as expressly otherwise provided in this lease, all the
agreements and conditions in this lease contained shall apply to the additional
period to which the original Term shall be extended as aforesaid. If Landlord
shall receive notice of the exercise of the election in the manner and within
the time provided aforesaid, the Term shall be extended upon the receipt of the
notice without the requirement of any action on the part of Landlord.
B. OPTION RENT
During the additional period for which the original Term of this
lease may be extended as set forth in Section (A) of this Article $13 above, the
Fixed Rent payable hereunder shall be adjusted so as to equal the greater of
(a) the Fixed Rent payable immediately prior thereto, or (b) the "fair market
rent", as mutually determined by Landlord and Tenant through the process of
negotiation. Notwithstanding anything to the contrary contained herein, however,
if for any reason whatsoever Landlord and Tenant shall not agree in writing upon
the "fair market rent" for said additional period at least six (6) months prior
to the
26
expiration of the original Term, then the fair market rent for premises of the
size and nature of the demised premises shall be determined by licensed real
estate appraisers having at least five (5) years' experience in the appraisal of
commercial real estate in the Greater Boston area, one such appraiser to be
designated by each of Landlord and Tenant. If either party shall fail to
designate its appraiser by giving notice of the name of such appraiser to the
other party within fifteen (15)days after receiving notice of the name of the
other party's appraiser, then the appraiser chosen by the other party shall
determine the fair market rent and his determination shall be final and
conclusive. If the appraisers designated by Landlord and Tenant shall disagree
as to the fair market rent, but if the difference between their estimates of
fair market rent shall be five percent (5%)or less of the greater of the
estimates, then the average of their estimates shall be the fair market rent for
purposes hereof. If the appraisers designated by Landlord and Tenant shall
disagree as to the amount of fair market rent, and if their estimates of fair
market rent shall vary by more than five percent (5%)of the greater of said
estimates, then they shall jointly select a third appraiser meeting the
qualifications set forth above, and his estimate of fair market rent shall be
the fair market rent for purposes hereof if it is not greater than the greater
of the other two estimates and not less than the lesser of the other two
estimates. If said third appraiser's estimate is greater than the greater of the
other two estimates, then the greater of the other two estimates shall be the
fair market rent for purposes hereof; and if the estimate of the third appraiser
shall be less than the lesser of the other two estimates, then the lesser of the
other two estimates shall be the fair market rent for purposes hereof. Each of
Landlord and Tenant shall pay for the services of its appraiser, and if a third
appraiser shall be chosen, then each of Landlord and Tenant shall pay for one-
half of the services of the third appraiser. After determination has been made
of the Fixed Rent payable for the additional period, Landlord and Tenant shall
execute and deliver to each other an instrument setting forth the annual Fixed
Rent as so determined.
EXECUTED as a sealed instrument in two or more counterparts as of the
day and year first above written.
LANDLORD:
HOOD BUSINESS PARK LLC
BY: CATAMOUNT XXXXXXXXXX LLC
ITS MANAGER
/s/ Xxxxxxx X. Xxxxx, Manager
------------------------------
Xxxxxxx X. Xxxxx, Manager
TENANT:
COMMUNITY NETWORKS, INC.
/s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx, President
ATTEST:
/s/ Xxxxxxxx Xxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxx ,President
27
EXHIBIT A-1
CONDITION OF BUILDING
BASE BUILDING
-------------
Extensive interior and exterior renovations have been completed
[** ILLEGIBLE**] and virtual image. The improvements provided as part of the
base building are summarized below.
Lobby Core
----------
A new central lobby core serving all three floors of the office includes:
. a first floor lobby with quality finishes and lobbies on the
second and third floors to complement the first floor
. new restrooms at the core
. two new passenger elevators
. new ???? tower with "?????" ????? from first to second floor
. an existing freight elevator with outside access so that
deliveries are not made through the first floor lobby.
Facade Improvements
-------------------
Restoration of the Art Deco facade that includes:
. new window frames and tinted glazing on all office windows
. additional windows to provide more light and views
. a new "Grand" entry leading into a first class lobby
Site Improvements
-----------------
. improved lighting
. upgraded parking lot including visitor parking, islands,
improved circulation and re-striping for parking and
circulation.
. a comprehensive site signage and graphics program
. enhanced landscaping especially in the area of new "Grand" entry.
. pedestrian and vehicular access to Spice Street
Building Systems
----------------
. new base building HVAC
. new base building electrical
. new restrooms at core
. new fire protection system
. new roofing
. existing stairs towers to be cleaned, painted and revamped
EXHIBIT B
---------
LANDLORD'S REQUIRED WORK
Landlord shall furnish and install, in accordance with approved Xxxxxx's plans,
the following materials and work in the initial preparation of the Premises for
Tenant's occupancy. Landlord at Landlord's expense shall provide a "Turn-Key"
design-built tenant installation based on mutually acceptable design,
construction, mechanical and electrical plans to be prepared utilizing the
Building standard specifications (see Exhibit A). Landlord will provide three
(3)offices and conference rooms, a pantry, a reception area and the balance of
space as open plan.
Ceilings
-------
Ceiling will be suspended grid type with recessed 2'x 4'(reveal-edge) lay-
in-panels.
Electrical
----------
The base building electrical design and components layout is detailed on the
electrical constraction drawings. This includes the design and location of the
electric room on each floor. The following summary reviews the quality of major
electrical components in the tenant areas.
Lights
------
Electrical supplies for normal requirements will include: 2'x
4' fluorescent light fixtures with paracube lenses. Allowance is one
fixture for each 80 square feet of usable area. One of every twelve of
these fixtures will be provided with emergency battery backup.
Switches
--------
One single-pole wall-mounted light switch per 4,000 square feet of open
area and one per office.
Outlets
-------
One duplex wall receptacle per 500 square feet of open area and per code
in office area.
Exit Signs
----------
Per code.
Fire Alarm
----------
Adequate devices for typical open office layout.
Exterior Wall
-------------
The exterior and common walls in the tenant office spaces will be
insulated and finished with l/4" gypsum board over 2 l/2" metal studs.
Partitions
----------
Tenant Partitions -Partitions within premises will be 2 l/2" metal
studs with one layer of l/2" gypsum board on each side. Partitions will
extend from floor to the acoustic tile ceiling.
Painting
--------
All wall surfaces shall receive two coats of latex paint with an
eggshell finish using not more than three (3) readily available colors.
Any doors shall receive two coats of clear polyurethane. All frames
shall receive two coats of semi-gloss enamel to match room color.
Doors
-----
Tenant entrance door will consist of a 3'6" x 7'10 1/2" x 1 3/4" thick
solid oak and glass door with oak frame and 3" '6" wide sidelight with
oak rail and tenant signage. Hardware will include 2 pair of butts and a
standard duty lever handle locker and closer.
Interior Doors
--------------
Doors within premises will be 3'0" x 7'0" x 1 3/4" solid core with plain
slice oak veneer. Door frames will be pressed metal. Hardware will
include 1 l/2" pair of butts, one standard duty brushed brass knob set
and one door stop.
Heating, Ventilating and Air Conditioning
------------------------------------------
Heating and air conditioning will be accomplished through the use of a
variable air volume (VAV)system. Air will return through the ceiling
plenum. Each floor will be provided with the number of separately
controlled zones shown on the HVAC construction drawings.
Floor Covering
--------------
Xxxxxxxx agrees to prepare the floor and provide base building carpeting
at an allowance of $14.00 per square yard.
Automatic Sprinkler System
--------------------------
A wet sprinkler system will be installed with one head per 150 square
feet of usable area per code.
Sun Control Blinds
------------------
All windows will have 3" perforated vertical blinds similar to Louver-
Drape in type and color selected by Landlord.
Fiber Optics
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There are three (3) fiber optic carriers to the Building; MCI, WorldCom,
New England Optic Network (NEON); and Bell Atlantic. At Tenant's
expense, Xxxxxxxx will work with Tenant to provide two (2) diversified
entrances for their fiber optic needs, preferably from different
carriers. Subject to Landlord's approval, which approval shall not be
unreasonably withheld or delayed, Tenant will be allowed to trench or
otherwise install from the street a primary or secondary fiber optic
service to the Building's telephone or equipment room, at Xxxxxx's
expense outside the Building to tie into local fiber optic network.
SWITCH SPACE
Landlord shall install a separate means of ingress and egress for the
office space and the switch space. Within thirty (30) days of Lease
Execution, Landlord at Landlord's expense shall:
. Deliver the premises demised and secure in broom clean
condition and ready for Tenant construction.
. Remove skylights and replace with waterproof sections of
roof.
. Provide/certify a minimum of 150 lbs. per square foot
floor loading to the demised premises provided,
however, that Tenant at Tenant's expense and subject to
Landlord's approval, shall be allowed td upgrade an area
(approximately 750 RSF) to a floor loading capacity of
300 lbs. per square foot.
. Landlord shall cause the structural components of the
Building and-the demised premises to comply with ADA and
local building life safety codes throughout the lease
Term.
. Provide main sprinkler loop to the demised premises.
Tenant at Tenant's expense will provide per-action valve
system.
. Provide tie-ins to Building life and safety systems.
. Provide 1200 amp service to Tenant. Tenant, at Tenant's
expense and subject to Landlord's approval, which
approval shall not be unreasonably withheld or delayed,
shall be responsible for providing all services and
equipment necessary to bring the services to the demised
premises.
. Tenant shall, at Tenant's expense, provide any
electrical and utility metering equipment.
. Provide pad space (10'x 10') for Tenant's gas emergency
generator and day tank and access to same from
designated platform.
. Provide access way for an electrical conduit from
generator to Tenant's service breaker as designated by
Landlord.
3
. Provide the right and access to install horizontal and
vertical conduit for fiber optics, subject to Landlord's
approval, which shall not be unreasonably withheld.
4
EXHIBIT C
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INTENTIONALLY OMITTED
5
EXHIBIT D
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LANDLORD'S SERVICES
Landlord shall cause the parking areas and driveways of the Lot to be
kept reasonably free and clear of snow, ice and refuse and shall cause the
landscaped areas (if any) of the Lot to be maintained in a reasonably attractive
appearance. Landlord shall also cause the parking areas of the Lot to be kept
lighted during hours of darkness to the extent reasonably required for the
business operations conducted upon the Lot.
Landlord shall provide to the Building hot water for lavatory purposes
and cold water for drinking, lavatory and toilet purposes. Landlord shall also
provide to the Building elevators for the use of all tenants and the general
public. Programming of elevators (including, but not limited to, service
elevators) shall be as Landlord from time to time determines. Landlord shall
cause the common lobbies, corridors, stairways and lavatories within the
Building to be kept reasonably neat and clean and lighted to the extent required
by the business operations conducted within the Building. Landlord shall also
cause the common areas of the Building to be heated and air conditioned during
the heating and air conditioning seasons in a manner consistent with applicable
law and customary practice in Boston, Massachusetts. Landlord shall also provide
central heating, ventilating and air conditioning ("HVAC") service to the
office portion of the demised premises which shall include air conditioning in
the cooling season, and tempered air during the heating season, all during
normal business hours which are 7:00 am - 6:00 pm Monday through Friday and
8:00 am - 1:00 pm on Saturdays. Xxxxxx agrees to pay an hourly surcharge for
HVAC service requested outside normal business hours. Finally, Landlord shall
provide janitorial service for the office space comprising part of the demised
premises. Subject to the provisions of Section (O) of Article X, Xxxxxxxx agrees
that throughout the Term, Tenant shall have access to the demised premises,
twenty four (24) hours a day, seven (7) days a week and fifty two (52) weeks a
year.
Landlord shall provide on-site uniformed security guard service to the parking
lot, grounds and building entrances 24 hours per day, 365 days per year.
Landlord provides a cafeteria and exercise room.
Tenant may use the freight elevator without charge during Xxxxxx's construction
of Initial Alterations and move-in period.
1
EXHIBIT E
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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. No merchandise, boxes or pallets may be stored by
Tenant outside of the demised premises and no cars, trucks or trailers may be
parked on the Lot overnight without the prior written consent of Landlord.
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. In the event of the 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. 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.
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 the
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. 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.
7. 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.
8. Canvassing, soliciting, and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
9. Tenant shall keep the demised premises free at all times of pests,
rodents and other vermin, and at the end of each business day Tenant shall place
for collection in the place or places provided therefor all trash and rubbish
then in the demised premises.
1
10. Landlord reserves the right to rescind, alter, waive and/or
establish any rules and regulations, which, in its judgment, are necessary,
desirable or proper for its best interests and the best interests of the
occupants of the Building.
1l. All of the work done by Tenant shall be done by such contractors,
labor and means so that, as far as may be possible, all work on the Property,
whether by Landlord or Tenant, shall be done without interruption on account of
strikes, work stoppages or similar causes of delay.
12. The buildings of Hood Business Park are smoke free buildings, and
Tenant shall cause its employees and invitees who smoke to restrict such smoking
to areas designated as "smoking areas" by Landlord from time to time.
2
EXHIBIT F
LEGAL DESCRIPTION OF LOT
PARCEL II
Being shown as Lot B on a plan entitled "Plan of Land in Boston, MASS.", dated
June 7, 1982 by Xxxx X. Xxxxxxx and Assoc., Inc., Civil Engineers and surveyors,
recorded with Suffolk County Registry of Deeds, Book 9971, Page 454.
Included within the bounds of said Lot B is registered land shown on Land Court
Plan No. 12912A, dated April 20, 1928, a copy of which is filed with the Suffolk
County Registry District of the Land Court with Certificate of Title No. 24288.
There is appurtenant to said Lot B all rights and easements as may exist of
record, insofar as the same are now in force and applicable to be exercised in
common with all others lawfully entitled thereto, including, without limitation,
those rights and easements set forth or referred to in the following deeds:
Deed from Boston and Maine Railroad to H.P. Hood & Sons, Inc., dated July 21,
1960, recorded with Suffolk County Registry of Deeds, Book 7493, Page 233; Deed
from Xxxxx Xxxxxx, et al, Trustees of Massif Realty Trust to H.P. Hood & Sons,
Inc. dated December 19, 1963, recorded with Suffolk County Registry of Deeds,
Book 7810, Page 107; Deed from Boston and Maine Corporation to H.P. Hood &
Sons, Inc., dated September 9, 1969, recorded with Suffolk County Registry of
Deeds, Book 8310, Page 483; Deed from Xxxxxxx Milk Company, Inc. to H.P. Hood,
Inc., dated May 31, 1973, recorded with Suffolk County Registry of Deeds, Book
8631, Page 705; Deed from Boston and Maine Railroad to H.P. Hood & Sons, Inc.,
dated June 16, 1943, recorded with Suffolk County Registry of Deeds, Book 6040,
Page 584; Deed from Boston and Maine Railroad to H.P. Hood & Sons, Inc., dated
December 20, 1949, recorded with Suffolk County Registry of Deeds, Book 6572,
Page 369 and Deed from Boston and Maine Railroad to H.P. Hood & Sons, Inc. dated
May 26, 1953, recorded with Suffolk County Registry of Deeds, Book 6873, Page 2,
bounded and described as follows:
S 23 degrees 50'38" E by said Xxxxxxxxxx Avenue, 1143.99 feet to a point at land
of Xxxxx Xxxxxx; thence turning and running
S 47 degrees 49'22" W by said land of Massif and by land of W.W.F. Paper
Corp., 716.04 feet to a point at land of B & M; thence turning and running
N 26 degrees 16'38" W by said land of B & M, 84.52 feet to a point; thence
turning and running
N 35 degrees 33'36" W still by said land of B & M, 134.90 feet to a point;
thence turning and running
N 30 degrees 10'18" W still by said land of B & M, 519.55 feet to a point;
thence turning and running
N 26 degrees 23'18" W still by said land of B & M, 51.62 feet to a point; thence
turning and running
N 30 degrees 32'31" W by said land of B & M, 344.11 feet to a point; thence
turning and running
N 49 degrees 53'49" E still by said land of B & M, 94.19 feet to a point; thence
turning and running
N 45 degrees 39'59" E still by said land of B & M, 170.84 feet to a point;
thence turning and running
N 49 degrees 55'29" E still by said land of B & M, 322.29 feet to a point;
thence turning and running
N 51 degrees 14'19" E still by said land of B & M, 259.17 feet to a point of
beginning.
EXHIBIT A
PLAN SHOWING LOCATION OF THE BUILDING
[GRAPHIC]
