Massachusetts-Lowell-175 Cabot Street Lease - Fortune Wakefield LLC and Datawatch Corp.
LEASE
This instrument is an indenture of lease by and between Fortune
Wakefield, LLC, a Massachusetts limited liability company ("Landlord") and
Datawatch Corporation, a Delaware corporation ("Tenant").
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
SUMMARY OF BASIC LEASE PROVISIONS
1.1 INTRODUCTION
As further supplemented in the balance of this instrument and its
Exhibits, the following set forth the basic terms of this Lease, and, where
appropriate, constitute definitions of certain terms used in this Lease.
1.2 BASIC DATA
Date: August 31 , 2000
Landlord: Fortune Wakefield, LLC, a Massachusetts limited
liability company
Present Mailing Address c/o CB Richard Ellis
of Landlord: NE Partners, LP.
660 Suffolk Street
Lowell, MA 01854
Payment Address: Fortune Wakefield, LLC
c/o CB Commercial
NE Partners, LP
600 Atlantic Avenue
Boston, MA 02210
Managing Agent: CB Richard Ellis
NE Partners, LP
660 Suffolk Street
Lowell, MA 01854
Tenant: Datawatch Corporation, a Delaware corporation
Mailing Address of Tenant: 175 Cabot Street
Lowell, MA 01854
Attention: Alan MacDougall
Premises: 16,377 Rentable Square Feet (8,201 RSF on the
2nd floor and 8,176 RSF on the 5th floor), as
shown on the plans attached to this Lease as
Exhibit A.
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Lease Term: Five (5) Years (plus the partial calendar
month, if any, immediately following the Term
Commencement Date).
Term Commencement Date: The later of February 1, 2001 or the date that
the work described in Exhibit B is
Substantially Complete and the Landlord has
delivered possession of the Premises to the
Tenant. "Substantially Complete" shall mean (i)
the Premises are in "broom clean" condition,
free from all other tenants and occupants and
their personal property, (ii) a certificate of
occupancy is issued for the Premises and the
work in Exhibit B is finished with the
exception of minor punch list items that do not
interfere with the Tenant's ability to use and
occupy the Premises for the Permitted Uses, and
which items shall be completed by Landlord
within 30 days of the Substantial Completion
date. Landlord shall use diligent efforts to
complete the work by no later than February 1,
2001.
Base Rent: Year 1: $286,597.50 per annum ($23,883.13 per
month);
Year 2: $294,786 per annum ($24,565.50 per
month);
Year 3: $302,974.50 per annum ($25,247.88 per
month);
Year 4: $311,163 per annum ($25,930.25 per
month);
Year 5: $319,351.50 per annum ($26,612.63 per
month);
Rent Commencement Date: The Rent Commencement Date shall be the same as
the Term Commencement Date.
Letter of Credit: Tenant shall provide Landlord with a Letter Of
Credit by a bank or financial institution
satisfactory to Landlord in the amount of
$143,299, as security deposit to be held,
drawn, applied and returned in accordance with
Section 17.15 of this Lease. In the event that
the Tenant is in default of the Lease, the
Letter Of Credit shall guarantee payment to the
Landlord of amounts due under the Lease.
Permitted Use: For executive, administrative, sales,
engineering and other general office use and
for no other purpose or purposes.
Tenant's Proportionate Share: 6.12%. Tenant's Proportionate Share shall be
adjusted in the event of any increase or
decrease (due to the construction of an
addition on the Building or decrease) in the
total square footage of rentable floor area
contained within the Premises and/or the
Building, based upon the square footage of
rentable floor area contained within the
Premises divided by the square
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footage of rentable floor area contained within
the Building, as so increased. Landlord
represents and warrants to Tenant that, as of
the Date of this Lease, the Building contains
267,5.00 square feet of rentable floor area.
Operating Expense Base: Actual Operating Costs for Calendar Year 2001
Expenses
Real Estate Tax Base: Actual Taxes for Fiscal tax Year 2001 Expense
Unreserved Parking Spaces: The total number of parking spaces: (49).
Location of Parking spaces: 5 West Yard, 5
Cabot Yard, 9 Tremont Yard, 30 Ayotte Garage.
Parking spaces will not be reserved and will be
used in common with others entitled to use
spaces in the yards and the garage. Landlord
further agrees that Tenant may use parking
spaces in the yards in lieu of parking spaces
provided for Tenant in the Ayotte Garage until
such time as Landlord determines that such yard
spaces are needed for the use of other tenants.
1.3 ENUMERATION OF EXHIBITS
Exhibit A: Plan showing the Premise.
Exhibit B. Landlord's Work.
Exhibit C: Building Services
ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS
2.1 LOCATION OF PREMISES
The Landlord hereby leases to Tenant, and Tenant hereby accepts from
Landlord, the (the "Premises") identified on Exhibit A and commonly known as
Suites 220 and 503 in Landlord's building (the "Building") located at 175 Cabot
Street and 650 & 660 Suffolk Street in Lowell, Massachusetts. Nothing in Exhibit
A shall be treated as a representation that the Premises or the Building shall
be precisely of the area, dimensions, or shapes as shown, it being the intention
of the parties only to show diagrammatically, rather than precisely, on Exhibit
A the layout of the Premises and the Building.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
Tenant shall have, as appurtenant to, the Premises, rights to use in
common with others entitled thereto the common facilities included in the
Building or the land on which the Building is located (the "Lot"), including
walkways, driveways, lobbies, hallways, ramps, and stairways. Such rights shall
always be subject to reasonable rules and regulations from time to time
established by Landlord by reasonable advance notice to Tenant, and to the right
of Landlord to designate and to change from time to time the areas arid
facilities so to be used, provided that such rules, regulations or designation
changes (i) do not unreasonably interfere with the use of,
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and access to, the Premises for the Permitted Use or the use of the Common
Facilities for their intended purposes, (ii) reduce below 750 the number of
parking spaces on the Lot available for common use by tenants of the Building,
or (iii) otherwise reduce ,or materially impair the quality or capacity of the
Common Facilities..
Not included in the Premises are the roof or ceiling, the floor and all
perimeter walls of the space identified in Exhibit A, except the inner surfaces
thereof and the perimeter doors and windows. The Landlord reserves the right to
install, use, maintain, repair and replace in the Premises (but in such manner
as not unreasonably to interfere with Tenant's use of the Premises) utility
lines, shafts, pipes, and the like, in, over and upon the Premises, provided
that the same are located above the dropped ceiling (or, if there is no dropped
ceiling, then within three (3) feet of the roof deck), below the floor surfaces
or tight against demising walls or columns. Landlord agrees to repair promptly
any damage to the Premises caused by the installation of any such items. Such
utility lines, shafts, pipes and the like shall not be deemed part of the
Premises under this Lease. The Landlord also reserves the right to alter or
relocate any common facility, provided that substitutions are at least
equivalent in quality and functional utility to the common facilities as of the
date of this Lease, Tenant shall have access to the Premises at all times and
Landlord shall not otherwise materially interfere with Tenant's use and
enjoyment of the Premises and the Common Facilities and to change the lines of
the Lot, provided that such change does not increase Tenant's obligations on
account of Taxes or Operating Costs or impair Tenant's rights with respect to
the Common Facilities.
ARTICLE III
TERM OF LEASE: CONDITION OF PREMISES
3.1 TERM OF LEASE
The term of this Lease shall be the period specified in Section 1.2
hereof as the "Lease Term" commencing upon the Term Commencement Date specified
in Section 1.2.
3.2 CONSTRUCTION OF THE PREMISES
(a) Landlord's Work. Landlord shall complete the construction and
installation of the alterations, installations, improvements and other work
("Landlord's Work") shown on the plans, working drawings and specifications
identified on Exhibit B attached to this Lease (the "Plans"), in a good and
workmanlike manner and in compliance with all applicable laws. Landlord shall
use reasonable efforts to cause Landlord's Work to be Substantially Complete by
January 22, 2001, subject to any Tenant Delays (as defined below). If Tenant
requests any changes in Landlord's Work after the Date of this Lease, Tenant
shall submit such request in writing, and any such , change shall be subject to
Landlord's prior written approval, which approval shall not be unreasonably
withheld or delayed; provided, however, that Landlord shall have the right to
withhold its consent if such change shall result in a Tenant Delay. If Landlord
approves any such change, Landlord shall deliver to Tenant a written change
order describing such change and setting forth any increase or decrease in the
cost of Landlord's Work and any Tenant Delay resulting from such change. If
Tenant fails to execute and return to Landlord such change order within five
business days after receiving it from Landlord, Tenant shall be deemed to have
rescinded its request for such change. Landlord may condition its approval of
any such change
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on Tenant's payment of any such increase in the cost of Landlord's Work at the
time Tenant executes the change order for such change.
(b) Landlord shall provide an allowance for construction of
improvements to the Premises equal to the product of $8.00 and the number of
rentable square feet in the Premises (the "Allowance") toward the entire cost of
the Landlord's Work ("Improvement Cost"). In the event the Improvement Cost
exceeds the Allowance, Tenant shall reimburse to Landlord the balance of the
Improvement Cost. The Improvement Cost shall include Tenant's architectural
space planning and permit costs, Landlord's architectural and design costs and
all payments to the contractor that installs the Landlords Work.. Landlord and
Tenant shall each pay their proportionate share of each contractor's requisition
for Improvement Cost, based upon Landlord's then estimate of the total
Improvement Cost.
3.3 TENANT'S EARLY ACCESS
Beginning as of seven days before Landlord's Work is Substantially
Complete, Landlord shall permit Tenant and its agents, employees and contractors
to have access to the Premises and to perform any alterations, improvements and
installations desired by Tenant in addition to Landlord's Work; provided,
however, Tenant shall cause its agents, employees or contractors performing any
such additional alterations, improvements or installations to cooperate in all
ways with Landlord's contractors to avoid any delay in Landlord's Work or
conflict in any other way with the performance of Landlord's Work. If Landlord's
Work is Substantially Complete before February 1, 2001, Tenant shall have the
right to use and occupy the Premises, after such Substantial Completion until
the Term Commencement Date, subject to all of the terms and conditions of this
Lease, except that Tenant shall have no obligation to pay Base Rent until the
Term Commencement Date.
3.4 OPTION TO EXTEND
Tenant shall have one (I) option to extend the Lease Term for a period
of five (5) years (the "Extension Period"). Tenant must provide written notice
of its intent to extend the Lease Term to Landlord twelve (12) months prior to
the expiration of the Lease Term. If Tenant exercises such ` option, The Base
Rent for the Extension Period shall be 95% of the then fair market rent for
first class office space in the Lowell/Chelmsford area, but not less than the
current Base Rent. Within 30 days after receiving such notice from Tenant,
Landlord shall give written notice to Tenant of Landlord's determination of the
Fair Market Rent. If Landlord and Tenant are unable to agree on the Fair Market
Rent within such 30-day period, the Fair Market Rent shall be determined
according to the following procedures:
(a) At any time after such 30-day period, Landlord and Tenant each
shall have the right, by written notice (a "Notice of Arbitration") to the
other, to demand arbitration of the calculation of the Fair Market Rent. The
party demanding arbitration (the "first party") shall appoint an arbitrator in
the Notice of Arbitration. Within seven days after the Notice of Arbitration is
given, the other party (the "second party") shall by notice to the first party
appoint a second arbitrator. If the second party fails to appoint a second .
arbitrator within such seven-day period, the position taken by the first party
shall be deemed to be the correct determination of the Fair Market Rent.
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(b) Within seven days after the designation of the second arbitrator,
Landlord and Tenant shall submit their respective positions with respect to the
determination of the Fair Market Rent to the two arbitrators. Within fourteen
days after the designation of the second arbitrator, the two arbitrators shall
conduct such hearings and investigations as they deem appropriate, and each
shall give written notice to the other and Landlord and Tenant of its
determination the Fair Market Rent. If one (and only one) arbitrator fails to
give such notice within such fourteen-day period, the other arbitrator's
determination shall be the Fair Market Rent. If the greater of such
determinations is not more than five percent greater than the lesser of such
determinations, the Fair Market Rent shall be the average of the two such
determinations.
(c) If the Fair Market Rent is not determined in accordance with the
immediately preceding paragraph, the two arbitrators shall, within such 3.0 days
after the designation of the second arbitrator, designate a third arbitrator. If
the two arbitrators fail to agree upon the designation of a third arbitrator
within such 30-day period, then they or either of them shall give notice of such
failure to agree to Landlord and Tenant within such 30-day period. If Landlord
and Tenant fail to agree upon the selection of a third arbitrator within seven
days after the arbitrators give such notice, then either party on behalf of both
may apply to the president of the Greater Boston Real Estate Board. or, on his
or her failure, refusal or inability to act, to a court of competent
jurisdiction, for the designation of such third arbitrator.
(d) Within seven days after the designation of the third arbitrator,
Landlord and Tenant shall submit their respective positions with respect to the
determination of the Fair Market Rent to the third arbitrator. Within fourteen
days after the designation of the third arbitrator, the third arbitrator shall
conduct such hearings and investigations as he or she may deem appropriate and
shall give written notice to .Landlord and Tenant of its determination of the
Fair Market Rent. If the greatest of the determinations of the three arbitrators
is more than ten percent greater than the middle such determination, then, such
greatest determination shall be disregarded. If the least of the determinations
of the three arbitrators is more than ten percent less than the middle such
determination, then such least determination shall be disregarded. If the
greatest and least such determinations are both disregarded, the middle such
determination shall be the Fair Market Rent; otherwise, the Fair Market Rent
shall be the average of any such determinations not so disregarded.
(e) All arbitrators shall be qualified real estate professionals who
shall have had at least ten years of experience appraising first-class buildings
substantially similar to the Building in the Lowell/Chelmsford area Landlord and
Tenant shall each be entitled to present evidence to the arbitrators in support
of their respective positions. The arbitrators shall not make any determination
inconsistent with the terms of thus Lease. The arbitrators shall not have the
power to add to, modify or change any of the provisions of this Lease. The
determination of the arbitrators) shall be conclusive and shall have the same
force as a judgment in a court of competent jurisdiction. Judgment on the
determination made by the arbitrator(s) under the foregoing provisions may be
entered in any court of competent jurisdiction.
(f) Each party shall pay the fees, costs and expenses of the arbitrator
appointed by such party and of the attorneys and expert witnesses of such party
and one-half of the other fees, costs and expenses of arbitration properly
incurred under this Lease.
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(g) If the Fair Market Rent shall not be determined before the end of
the initial Lease Term, then, as of the beginning of the Extension Period,
Tenant shall continue to pay Base Rent at the rate in effect under this Lease
during the last year of the initial Lease Term until the Fair Market Rent is
determined in accordance with this Section 3.4. Within 30 days after such
determination, Tenant shall pay to Landlord the difference, if any, between (i)
the Base Rent, as determined in accordance with this Section 3.4, due under this
Lease during the period from the commencement of the Extension Period until the
date of such payment and (ii) the Base Rent actually paid by Tenant during such
period.
ARTICLE IV
RENT
4.1 RENT PAYMENTS
The Base Rent (at the rates specified in Section 1.2 hereof) and the
additional rent or other charges payable pursuant to this Lease (collectively
the "Rent") shall be payable by Tenant to Landlord at the Payment Address or
such other place as Landlord may from time to time designate by notice to Tenant
without any demand whatsoever except as otherwise specifically provided in this
Lease and without any counterclaim, offset or deduction whatsoever. Rent shall
be made payable to the order of Managing Agent as agent for Landlord.
(a) Commencing on the Rent Commencement Date, Base Rent and The monthly
installments of Tenant's Proportionate Share of the increase in Taxes over the
Real Estate Tax Base and Tenant's Proportionate Share of increases in Operating
Costs over the Operating Expense Base shall be payable in advance on the first
day of each and every calendar month during the term of this Lease. If the Rent
Commencement Date falls on a. day other than the first day of a calendar month,
the first payment which Tenant shall make shall be made on the Rent Commencement
Date and shall be equal to a proportionate part of such monthly Rent for the
partial month from the Rent Commencement Date to the first day of the succeeding
calendar month, and the monthly Rent for such succeeding calendar month. As used
in this Lease, the term "lease year" shall mean any twelve (12) month period
commencing on the first day of the first calendar month of the Lease Term.
(b) Base Rent and the monthly installments of Tenant's Proportionate
Share of the Taxes and Tenant's Proportionate Share of Operating Expenses for
any partial month shall be paid by Tenant to Landlord at such rate on a pro rata
basis. Any other charges payable by Tenant on a monthly basis, as hereinafter
provided, shall likewise be prorated:
(c) Rent not paid within five (5) days of the date due be subject to a
$500 Late Fee and shall bear interest at a rate (the "Lease Interest Rate")
equal to 1.5% per month.
4.2 REAL ESTATE TAX
(a) The term "Taxes" shall mean ail taxes and assessments (including
without limitation, assessments for public improvements or benefits `and water
and sewer use charges), and other charges or fees in the nature of taxes for
municipal services which at any time during or in respect of the Lease Term may
be assessed, levied, confirmed or imposed on or in respect of, or be a lien
upon, the Building and the Lot, or any part thereof, or any rent therefrom or
any
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estate, right, or interest therein, or any occupancy, use, or possession of such
property or any part thereof, and ad Valero taxes for any personal property used
in connection with the Building or Lot. Without limiting the foregoing,. Taxes
shall also include any payments made by Landlord in lieu of taxes. The Landlord
agrees that Tenant's share of any special assessment shall be determined
(whether or not Landlord avails itself of the privilege so to do) as if Landlord
had elected to pay the same in installments over the longest period of time
permitted by applicable law and Tenant shall be responsible only for those
installments (including interest accruing and payable thereon) or parts of
installment that are attributable to periods within the Lease Term.
Should the Commonwealth of Massachusetts, or any political subdivision
thereof, or any other governmental authority having jurisdiction over the
Building, (1) impose a tax, assessment, charge or fee, which Landlord shall be
required to pay, by way of substitution for or as a supplement to such Taxes, or
(2) impose an income or franchise, tax or a tax on rents in substitution for or
as a supplement to a tax levied against the Building or the Lot or any part
thereof and/or the personal property used in connection with the Building or the
Lot or any part thereof, all such taxes, assessments, fees or charges
("Substitute Taxes") shall be deemed to constitute Taxes hereunder, Taxes shall
also include, in the year paid, all fees and costs incurred by Landlord in
seeking to obtain a reduction of, or a limit on the increase in, any Taxes,
regardless of whether any reduction or limitation is obtained. Except as
hereinabove provided with.: regard to Substitute Taxes, Taxes shall not include
any inheritance, estate, succession, transfer, gift, franchise, net income or
capital stock tax.
(b) The Tenant shall pay to Landlord, as additional rent, Tenant's
Proportionate Share of any increase in the Taxes assessed against the Building
and Lot during any tax year (i.e., July 1 through June 30, as the same may
change from time to time) over the Real Estate Tax Base as defined in Section
1.2 during the Lease Term. The Tenant shall pay to Landlord, together with
monthly payments of Base Rent, pro rata monthly installments on account of the
projected Tax increase over the Real Estate Tax Base for each lease year
reasonably calculated by Landlord from time to time by Landlord with an
adjustment made after the close of the tax year, to account for actual Taxes for
such tax year.. The initial monthly payments on account of Taxes shall be $_____
none _____ per month. If the total of such monthly installments in any lease
year is greater than Tenant's Proportionate Share of actual Taxes for such tax
year, Tenant shall be entitled to a credit against Tenant's rental obligations
hereunder in the amount of such difference or, if the Lease Term has expired and
Tenant has no outstanding monetary obligations to Landlord, Landlord shall
promptly pay such amount to Tenant. In no event shall the Landlord credit
Tenant's account for an amount greater than the amount of Taxes paid in by
Tenant during the lease year. If the total of such monthly installments is less
than liability for such tax year, Tenant shall pay to Landlord the amount of
such difference within thirty (30) days after Tenant receives Landlord's invoice
therefor.
(c) If any Taxes, with respect to which Tenant shall have paid Tenant's
Proportionate Share, shall be adjusted to take into account any abatement or
refund, Tenant shall be entitled to a credit against rental obligations
hereunder, in the amount of Tenant's Proportionate Share of such abatement or
refund less Landlord's costs or expenses, including without limitation
appraiser's and attorneys' fees, of securing such abatement or refund or, if the
Lease Term has expired and Tenant has no outstanding monetary obligations to
Landlord, Landlord shall promptly pay such amount to Tenant. The Tenant shall
not apply for any real estate tax
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abatement without the prior written consent of Landlord. In no event shall
Landlord credit Tenant's account for an amount greater than the amount of Taxes
actually paid in by Tenant during the lease year.
(d) Tenant shall pay or cause to be paid, prior to delinquency, any and
all taxes and assessments levied upon all trade fixtures, inventories and other
personal property placed in and upon the Premises by Tenant.
4.3 TENANT'S SHARE OF OPERATING COSTS
The Tenant shall pay to Landlord, as additional rent, Tenant's
Proportionate Share of any increase in Operating Costs (defined below)over the
Operating Cost Base. The Tenant shall pay to Landlord pro rata monthly
installments on account of the projected increase in Operating Costs over the
Operating Expense Base (as defined in Section 1.2) for each lease year during
the Lease Term in amounts reasonably calculated from time to time by Landlord
with an adjustment made after the close of the lease year, to account for actual
Operating Costs for such lease year. The initial monthly payments on account of
Operating Costs shall be $_____ none _____ per month. If the total of such
monthly installments in any lease year is greater than Tenant's Proportionate
Share of actual Operating Costs for such lease year, Tenant shall be entitled to
a credit against Tenant's monthly installments on account of projected Operating
Costs hereunder in the amount of such difference or, if the Lease Term has
expired and Tenant has no outstanding monetary obligations to Landlord, Landlord
shall promptly pay such amount to Tenant. In no event shall the Landlord credit
Tenant's account for an amount greater than the amount of Operating Costs
actually paid in by Tenant during the lease year. If the total of such monthly
installments is less than liability for such lease year, Tenant shall pay to
Landlord the amount of such difference, as additional rent, within thirty (30)
days after Tenant receives Landlord's invoice therefor. `
As used in this Lease, the term "Operating Costs" shall mean all costs
and expenses incurred by Landlord in connection with operation, insuring,
repair, equipping, maintenance, replacement, management, cleaning and protection
(collectively, "the Operation") of the Building, the Building heating,
ventilating, electrical, plumbing, and other systems and the Lot (collectively,
"the Property"), including, without limitation, the following:
(1) All expense incurred by Landlord or its agents which shall be
related to employment of day and night supervisors, janitors, handymen,
carpenters, engineers, firemen, mechanics, electricians, plumbers, guards,
cleaners and other personnel (including amounts incurred for wages, salaries and
other compensation for services, payroll, social security, unemployment and
similar taxes, workmen's compensation insurance, disability benefits, pensions,
hospitalization, retirement plans and group insurance, uniforms and working
clothes and the cleaning thereof, and expenses imposed on Landlord or its agents
pursuant to any collective bargaining agreement), for services in connection
with the Operation of the Property, and personnel engaged in supervision of any
of the persons mentioned above; provided, however, that the costs of employing
personnel who work less than fulltime in connection with the Operation of the
Property shall be equitably adjusted;
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(2) The cost of services, materials and supplies furnished or used in
the Operation of the Property;
(3) The amounts paid to managing agents and for legal and other
professional fees relating to the Operation of the Property, but excluding such
fees paid in connection, with (x) negotiations for. or the enforcement of
leases; and (y) seeking abatements of Taxes; provided, however, that management
fees shall not exceed prevailing market rates;
(4) Insurance premiums and the positive difference, if any, between the
amounts of what the insurance premiums would be if such insurance were
maintained without deductibles over the actual premiums for such policies;
(5) Costs for electricity, steam and other utilities required in the
Operation of the Property;
(6) Water and sewer use charges;
(7) The costs of snowplowing and removal, parking fees and parking lot
maintenance, and landscaping;
(8) Amounts paid to independent contractors for services, materials and
supplies furnished for the Operation of the Property; and
(9) All other expenses incurred in connection with the Operation of the
Property.
Operating Costs may be incurred directly or by way of reimbursement, and shall
include taxes applicable thereto. The following shall be excluded from Operating
Costs:
(1) Salaries of officers and executives of Landlord not connected with
the Operation of the Properly (i.e., above the level of Building Manager) and
other costs and expenses associated with the Operation of the Property, but
allocable to other properties (e.g., where a service is provided at a single
cost to both the Property and another property of Landlord, an equitable
allocation shall be made to exclude the cost fairly attributable to such other
property);
(2) Depreciation of the original construction costs of the Building;
(3) Expenses relating to tenants' alterations;
(4) Interest on indebtedness;
(5) Expenses for which Landlord, by the terms of this Lease or any
other lease, makes a separate charge;
(6) Taxes;
(7) The cost of any electric current or other utilities furnished to
the tenants and separately metered or billed;
(8) Leasing fees or commissions; and
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(9) Capital expenses incurred in the construction of additional
leasable area on the Property.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE
Tenant agrees that the Premises shall be used and occupied by Tenant
only for the purposes specified as the Permitted Use thereof in Section 1.2 of
this Lease, and for no other purpose or purposes.
The Tenant shall comply and shall cause its employees, agents, and
invitees to comply with such reasonable rules and regulations as Landlord shall
from time to time establish for the proper regulation of the Building and the
Lot, provided that Landlord gives Tenant reasonable advance notice thereof and
that such additional rules and regulations shall be of general application to
all the tenants in the Building, except where different circumstances justify
different treatment and (iii) such rules and regulations shall not conflict with
the terms of this Lease or materially interfere with Tenant's use of the
Premises of the Common Facilities.
5.2 COMPLIANCE WITH LAWS
Tenant agrees that no trade or occupation shall be conducted in the
Premises or use made thereof which will be unlawful, improper, or contrary to
any law, ordinance, bylaw, code, rule, regulation or order applicable in the
municipality in which the Premises are located or which will disturb the quiet
enjoyment of the other tenants of the Building. Tenant shall obtain any and all
approvals, permits, licenses, variances and the like from governmental or
quasi-governmental authorities, including without limitation any Architectural
Access Board and Board of Fire Underwriters (collectively, "Approvals") which
are required for Tenant's use of the Premises, including, without limitation,
any which may be required for any construction work and installations,
alterations, or additions made by Tenant to, in, on, or about the Premises
(other than Landlord's Work); provided, however, that Tenant shall not seek or.
apply for any Approvals without first having given Landlord a reasonable
opportunity to review any applications for Approvals and all materials and plans
to be submitted in connection therewith and obtaining Landlord's written
consent, which consent shall not be unreasonably withheld. In any event, Tenant
shall be responsible for all costs, expenses, and fees in connection with
obtaining all Approvals. Without limiting the general application of the
foregoing, Tenant shall be responsible for compliance of the Premises,
including, without limitation, any alterations it may make to the Premises with
the requirements of the Americans with Disabilities Act (42 U.S.C. Section 12101
et seq.) and the regulations and Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto, as the same may be amended from time to time
(collectively, the "ADA"). The Landlord shall be responsible for the compliance
with the requirements of the ADA of (x) the Common Facilities and other common
areas of the Building and Lot and (y) the access to the Premises from the common
areas. Tenant's inability to obtain or delay in obtaining any such Approval
shall in no event reduce, delay, or terminate Tenant's rental, payment, and
performance obligations hereunder. Tenant shall, at its own cost and expense,
(i) make all installations, repairs, alterations, additions, or improvements to
the Premises required by any
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law, ordinance, bylaw, code, rule, regulation or order of any governmental or
quasi-governmental authority applicable to Tenant's use of the Premises; (ii)
keep the Premises equipped with all required safety equipment and appliances;
and (iii) comply with all taws, ordinances, codes, rules, regulations, and
orders and the requirements of Landlord's and Tenant's insurers applicable to
Tenant's use of the Premises, Building and Lot. Tenant shall not place a load
upon any floor in the Premises exceeding the lesser of (a) the floor load per
square foot of area which such floor was designed to carry as certified by
Landlord's architect and (b) the floor load per square foot of area, which is
allowed by law. Landlord reserves the right to prescribe the weight and position
of all business machines and mechanical equipment, including safes, which shall
be placed so as to distribute the weight Notwithstanding the foregoing
paragraph, to the best of Landlord's knowledge the Building is substantially in
compliance with ADA.
5.3 INSURANCE RISKS
Tenant shall not permit any use of the Premises which will make
voidable or, unless Tenant pays the extra insurance premium attributable thereto
as provided below, increase the premiums for any insurance on the Building or on
the, contents of said property or which shall be contrary to any law or
regulation from time to time established by the New England Fire Insurance
Rating Association (or any successor organization) (provided that Landlord's
.insurance permits the use of the Premises for the Permitted Use without the
payment of any additional premium) or, unless Tenant makes any required
alterations or additions at its expense in compliance with this Lease, which
shall require any alteration or addition to the Building. Tenant shall, within
thirty (30) days after written demand therefor, reimburse Landlord and all other
tenants for the costs of all extra insurance premiums caused by Tenant's use of
the Premises for purposes other than the Permitted Use. Any such amounts shall
be deemed to be additional rent hereunder.
5.4 ELECTRICAL EQUIPMENT
The Tenant shall not, without Landlord's written consent in each
instance, connect to the electrical distribution system any fixtures,
appliances, or equipment which will operate individually or collectively at a
wattage in excess of the capacity of the electrical system serving the Premises
as the same may be reasonably determined by Landlord and Landlord may audit
Tenant's use of electric power to determine Tenant's compliance herewith. If
Landlord, in its sole discretion, permits such excess usage, Tenant will pay for
the cost of such excess power as additional rent, together with the cost of
installing any additional risers, meters, or other facilities that may be
required to furnish or measure such excess power to the Premises.
5.5 TENANT'S OPERATIONAL COVENANTS
(a) Affirmative Covenants
In regard to the use and occupancy of the Premises, and except
as set forth in Exhibit C, Tenant will at its expense: (1) keep the inside and
outside of all glass in the doors and windows of the Premises reasonably clean;
(2) replace promptly any cracked or broken glass of the Premises with glass of
like kind and quality; (3) maintain the Premises in a clean, orderly and
sanitary condition and free of insects, rodents, vermin and other pests; (4)
keep any garbage,
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trash, rubbish or other refuse in vermin-proof containers within the interior of
the Premises until removed (and Tenant shall cause the Premises to be inspected
and exterminated on a regular basis by a reputable, licensed exterminator and
shall provide Landlord, on request, with a copy of Tenant's contract for such
services); (5) keep all mechanical apparatus free of vibration and loud noise
which may be transmitted beyond the Premises; and (6) comply with and observe
all rules and regulations reasonably established by Landlord from time to time
in accordance with Section 5.1 of this Lease.
(b) Negative Covenants
In regard to the use and occupancy of the Premises and common
areas, Tenant will not: (7) place or maintain any trash, refuse or other
articles in any vestibule or entry of the Premises, on the sidewalks or
corridors adjacent thereto or elsewhere on the exterior of the Premises so as to
obstruct any corridor, stairway, sidewalk or common area; (8) permit undue
accumulations of or burn garbage, trash, rubbish or other refuse within or
without the Premises; (9) cause or permit objectionable odors to emanate or to
be dispelled from the Premises; (10) commit, or suffer to be committed, any
waste upon the Premises or any public or private nuisance or other act or thing
which may disturb the quiet enjoyment of any other tenant or occupant of the
Building, or use or permit the use of any portion of the Premises for any
unlawful purpose; or (11) park trucks or other vehicles in a manner that will
block access to the loading docks serving the Building, except when Tenant is
actively using such loading docks.
5.6 SIGNS
Except as expressly permitted in this Section 5.6, Tenant shall not
place any signs, placards, or the like on the Building or in the Premises that
will be visible from outside the Premises (including without limitation both
interior and exterior surfaces of windows). Landlord shall place Tenant's name
and suite number on the interior building directory, individual Tenant ID plate
and mailbox and shall allow Tenant to place its name and logo on the entrances
to the Premises, provided that such is in the size, look, and quality consistent
with other signs of tenants of the Building,
5.7 HAZARDOUS MATERIALS
The Tenant shall not use, handle or store or dispose of any oil,
hazardous or toxic substances, materials or wastes, except for minimal
quantities of office products and cleaning supplies normally used and stored in
the normal course of business for a tenant using the Premises for its Permitted
Use (collectively "Hazardous Materials") in, under, on or about the Property
except for such storage and use consented to by Landlord in advance which
consent may be withheld in Landlord's sole and absolute discretion. Any
Hazardous Materials in the Premises, and ail containers therefor, shall be used,
kept, stored and disposed of in conformity with all applicable laws, ordinances,
codes, rules, regulations and orders of governmental authorities. If the
transportation, storage, use or disposal of Hazardous Materials anywhere on the
Property in connection with Tenant's use of the Premises results in (1)
contamination of the soil or surface or ground water or (2) loss or damage to
persons) or property, then Tenant agrees (i) to notify Landlord immediately of
any contamination, claim of contamination, loss or damage, (ii) after
consultation with and approval by Landlord, to clean up all contamination in
full
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compliance with all applicable statutes, regulations and standards, and (iii) to
indemnify, defend and hold Landlord harmless from and against any claims, suits,
causes of action, costs anal fees, including, without limitation, attorneys'
fees, arising from or connected with any such contamination, claim of
contamination, loss or damage. This provision shall survive the termination of
this Lease. No consent or approval of Landlord shall in any way be construed as
imposing upon Landlord any liability for the means, methods, or manner of
removal, containment or other compliance with applicable law for and with
respect to the foregoing. The terms of this Section 5.7 shall apply to any
transportation, storage, use or disposal of Hazardous Materials irrespective of
whether Tenant has obtained Landlord's consent therefor but nothing in this
Lease shall limit or otherwise modify the requirement of obtaining Landlord's
prior consent as set forth in the first sentence of this Section 5.7.
ARTICLE VI
INSTALLATIONS, ALTERATIONS, AND ADDITIONS
6.1 INSTALLATIONS, ALTERATIONS, AND ADDITIONS
Tenant shall not make structural installations, alterations, or
additions to the Premises, but may make nonstructural installations, alterations
or additions provided that Landlord consents thereto in advance and in writing,
which consent shall not be unreasonably withheld, delayed or conditioned as to
work in the existing office space that will not affect the utility or building
service systems or equipment. In any event, Tenant shall not demolish the
existing office space in the Premises, without the prior written approval of
Landlord, which approval may be withheld in Landlord's sole and absolute
discretion. In no event shall Landlord's approval of any proposed installations,
alterations, or additions to the Premises, whether in connection with Tenant's
initial leasehold improvements or otherwise, constitute a representation by
Landlord that such as work complies with the requirements of any applicable law
or regulation, including without limitation the requirements of the ADA. Any
installations, alterations, or additions made by Tenant shall be at Tenant's
sole cost and expense and shall be done in a good and workmanlike manner using
materials of a quality at least equivalent to that of the existing improvements
and in compliance with the requirements of Section 5.2; and prior to Tenants use
of the Premises, after the performance of any such work, Tenant shall procure
certificates of occupancy and any other required certificates. Tenant shall not
suffer or permit any mechanics' or similar liens to be placed upon the Premises
for labor or materials furnished to Tenant or claimed to have been furnished to
Tenant in connection with work of any character performed or claimed to have
been performed at the direction of Tenant, and shall cause any such lien to be
bonded over or released of record forthwith without cost to Landlord. Any and
all. Tenant installations, alterations, and additions, in or to the Premises,
that are intended to become or do become part of the real estate or fixtures
therein (other than trade fixtures that are readily removable without damage to
the Premises) including but not limited to equipment, appliances, and machinery,
shall be fully paid for and free and clear of any and all chattel mortgages,
conditional bills of sale, security interests, or any liens or encumbrances of
any kind or nature. At all times when any installation, alteration, or addition
by Tenant is in progress, there shall be maintained, at Tenant's cost and
expense, insurance meeting the requirements of Section 11.3 below and
certificates of insurance evidencing such coverage shall be furnished to
Landlord prior to the commencement of any such work. Any installations,
alterations or additions made by Tenant to the Premises, including, without
limitation, all utility systems, fixtures, machinery,
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equipment, and appliances installed in connection therewith, other than trade
fixtures and personal property, shall become the property of Landlord at the
termination or expiration of this Lease, unless Landlord permits or requires, at
the time of Landlord's approval of such work, Tenant to remove any of the same,
in which event Tenant shall, at its own cost and expense, comply with such
requirement and repair any damage caused by such removal.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 PROHIBITION
Notwithstanding any other provision of this Lease, Tenant shall not,
directly or indirectly, assign, mortgage, pledge or otherwise transfer,
voluntarily or involuntarily, this Lease or any interest herein or sublet (which
term without limitation, shall include granting of concessions, licenses, and
the like) or allow any other person or entity to occupy the whole or any part of
the Premises, without, in each instance, having first received the express
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Any assignment of this Lease or subletting of the whole
or any part of the Premises (other than as permitted as set forth below) by
Tenant without Landlord's express consent shall be invalid, void and of no force
or effect. This prohibition includes, without limitation, any assignment,
subletting, or other transfer of this Lease which would occur by operation of
law, merger, consolidation, reorganization, acquisition, transfer, or other
change of Tenant's corporate or proprietary structure, including a change in the
general partners of any partnership, and the sale, pledge, or other transfer of
any of the issued or outstanding capital stock of any corporate Tenant (unless
such stock is publicly traded on a recognized security exchange or
over-the-counter market). Any request for consent under this Section 7.1 shall
set forth, in detail reasonably satisfactory to Landlord, the identification of
the proposed assignee or sublessee, its financial condition and the terms on
which the proposed assignment or subletting is to be made, including, without
limitation, the rent or any other consideration to be paid in respect thereto
and such request shall be treated as Tenant's warranty in respect of the
information submitted therewith.
In any case where Landlord shall consent to any assignment or
subletting, Tenant originally named herein shall remain fully liable for Tenant
obligations hereunder, including, without limitation, the obligation to pay the
rent and other amounts provided under this Lease, and such liability shall not
be affected in any way by any future amendment, modification; or extension of
this Lease or any further assignment, other transfer, or subleasing and Tenant
hereby irrevocably consents to any and all such transactions. Tenant agrees to
pay to Landlord, within fifteen (15) days of billing therefor, all reasonable
legal and other out-of-pocket expenses incurred by Landlord in connection with
any request to assign or sublet. It shall be a condition of the validity of any
permitted assignment or subletting that the assignee .or sublessee agree
directly with Landlord, in form satisfactory to Landlord, to be bound by all
Tenant obligations hereunder, including, without limitation, the obligation to
pay all Rent and other amounts provided for under this Lease and the covenant
against further assignment or other transfer or subletting.
Without limiting Landlord's discretion to grant or withhold its consent
to any proposed assignment or subletting, if Tenant requests Landlord's consent
to assign this Lease or sublet all
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or any portion of the Premises, Landlord shall have the option, exercisable by
notice to Tenant given within thirty (30) days after Landlord's receipt of such
request, to terminate this Lease as of the date specified in such notice which
shall be not less than thirty (30) nor more than sixty (60) days after the date
of such notice for the entire Premises, in the case of an assignment or
subletting of the whole, and for the portion of the Premises, in the case of a
subletting of a portion. In the event of termination in respect of a portion of
the Premises, the portion so eliminated shall be delivered to Landlord on the
date specified in good order and condition in the manner provided in Section 8.1
at the end. of the Lease Term and thereafter, to the extent necessary in
Landlord's judgment, Landlord, at Tenant's sole cost and expense, may have
access to and may make modification to the Premises so as to make such portion a
self-contained rental unit with access to common areas, elevators and the like.
Rent and Tenant's Proportionate Share shall be adjusted according to the extent
of the Premises for which this Lease is terminated. Without limitation of the
rights of Landlord hereunder in respect thereto, if there is any assignment of
this Lease by Tenant for consideration or a subletting of the whole of the
Premises by Tenant at a rent which. exceeds the rent payable hereunder by
Tenant, or if there is a subletting of a portion of the Premises by Tenant at a
rent in excess of the subleased portion's pro rata share of the Rent payable
hereunder by Tenant, then Tenant shall pay to Landlord, as additional rent,
forthwith upon Tenant's receipt of the consideration (or the cash equivalent
thereof) therefor, in the case of an assignment, and in the case of a
subletting, seventy-five percent (75%) of the amount of any such excess rent.
The provisions of this paragraph shall apply to each and every assignment of
this Lease and each and every subletting of all or a portion of the Premises,
whether to a subsidiary or controlling corporation of Tenant or any other
person, firm or entity, in each case on the terms and conditions set forth
herein. For the purposes of this Section 7.1, the term "rent" shall mean all
rent, additional rent or other payments and/or consideration payable by one
party to another for the use and occupancy of all or a portion of the Premises.
Any contrary or inconsistent provision of this Lease notwithstanding,
the requirement of Landlord's prior consent, Landlord's right to excess rent and
Landlord's right to terminate thus Lease shall not, however, be applicable to
(a) an assignment of this Lease or a sublease of all or any portion of the
Premises by Tenant to a subsidiary (for such period of time as at least 50% of
the stock of such subsidiary continues to be owned by Tenant, it being agreed
that the subsequent sale or transfer of the stock of such subsidiary (either
individually or in the aggregate) resulting in Tenant owning less than 50% of
the stock of such subsidiary shall be treated as if such sale or transfer were,
for all purposes, an assignment of this Lease governed by the provisions of this
Section 7.1) or controlling business organization, provided (and it shall be a
condition of the validity of any such assignment) that such subsidiary or
controlling business organization agree directly with Landlord to be bound by
all of the obligations of Tenant hereunder, including, without limitation, the
obligation to pay the rent and other amounts provided for under this Lease, the
covenant to use the Premises only for the purposes specifically permitted under
this Lease and the covenant against further assignment; but such assignment
shall not relieve Tenant herein named of any of its obligations hereunder, and
Tenant shall remain fully liable therefor. Further, Landlord's consent shall not
be required for, and Landlord's rights to excess rent and to terminate this
Lease, shall not be applicable to, a merger or consolidation of or into Tenant
or the sale of substantially all of the stock or assets of Tenant, provided that
at the time of such merger or consolidation or sale such entity has a net worth
at least equal to that of Tenant or any guarantor on the date hereof or on the
date of such assignment, whichever is greater.
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7.2 ACCEPTANCE OF RENT FROM TRANSFEREE
The acceptance by Landlord of the payment of Rent, additional rent, or
other charges following assignment, subletting, or other transfer prohibited by
this Article VII shall not be deemed to be a consent by Landlord to any such
assignment, subletting, or other transfer, nor shall the same constitute a
waiver of any right or remedy of Landlord.
ARTICLE VIII
REPAIRS AND MAINTENANCE
8.1 TENANT OBLIGATIONS
Except as provided in Section 8.2 and Articles IX and IX of this Lease,
from anal after the date that possession of the Premises is delivered to Tenant
and until the end of the Lease Term, Tenant shall keep the Premises and every
part thereof in good order, condition, and repair, reasonable wear and tear and
damage by casualty, as a result of condemnation, or as a result of the failure
of Landlord to provide services required to be provided hereunder only excepted;
and shall return the Premises to Landlord at the expiration or earlier
termination of the Lease Term in such condition.
8.2 LANDLORD OBLIGATIONS
Except as may be provided in Articles IX and IX, Landlord agrees to
provide the services described in Exhibit C and to keep in good order,
condition, and repair the Common Facilities, the foundation, exterior walls,
slabs, columns and other the structural components and the roof of the Building,
the heating, ventilation, air-conditioning, electrical, plumbing, life safety,
mechanical and other utility and Building systems and equipment serving the
Common Facilities or serving the Premises in common with other areas of the
Building, the common hallways, entrances, restrooms and elevators, the parking
areas serving the Building, the landscaping, drainage facilities and other
exterior areas of the Lot, and the sprinkler system to the extent the same is
located outside the Premises, except that Tenant shall reimburse Landlord, as,
additional rent hereunder, for the costs (to the extent that it is not covered
by Landlord's insurance) of maintaining, repairing, or otherwise correcting any
condition caused by an act, omission, neglect or default under this Lease of
Tenant or any employee, agent, or contractor of Tenant or any other party for
whose conduct Tenant is responsible. Without limitation, Landlord shall not be
responsible to make any improvements or repairs other than as expressly provided
in this Section 8.2, and Landlord shall not be liable for any failure to make
such repairs unless Tenant has given notice to Landlord of the need to make such
repairs and Landlord has failed to commence .to make such repairs within a
reasonable time thereafter.
ARTICLE IX
SERVICES TO BE FURNISHED BY LANDLORD;
9.1 LANDLORD'S SERVICES
The Landlord agrees to cause the parking areas, driveways, and walkways
on the Lot to be kept clear of accumulations of dirt, litter, rubbish, ice and
snow, cause the landscaping on the Lot to be kept in a neat and attractive
condition, keep the parking areas on the Lot lighted as
<PAGE>
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necessary from the hours of 6:00 p.m. until 8:00 a.m. and perform its
obligations with respect to. maintenance and repair set forth in Section 8.2
above. Upon the request of Tenant from time to time, Landlord shall use
reasonable efforts to provide services at hours other than the times set forth
above and Tenant shall reimburse Landlord as additional rent for the cost of
such services within thirty (30) days after invoice therefor. Landlord shall
have no obligation to provide utilities or equipment other than the utilities
and equipment within the Premises as of the Term Commencement Date of this
Lease. Tenant shall not, without first having obtained Landlord's prior written
consent, install or use any additional air-conditioning or heating equipment in
the Premises. In the event that Tenant should require additional. utilities, the
installation, maintenance and costs, thereof shall be Tenant's sole obligation,
provided that any such installation shall require the written consent of
Landlord, which consent. Landlord shall not unreasonably withhold.
9.2 CAUSES BEYOND CONTROL OF THE LANDLORD
The Landlord shall in no event be liable for failure to perform any of
its obligations under this Lease when prevented from doing so by causes beyond
its reasonable control, including without limitation labor dispute (not
restricted to the Building or Landlord or Landlord's management agent's
operations), breakdown, accident, order or regulation of or by any governmental
authority, or failure of supply, or inability by the exercise of reasonable
diligence to obtain supplies, parts, or employees necessary to furnish services
required under this Lease, or because of war or other emergency, or for any
cause due to any act, neglect, or default of Tenant or Tenant's servants,
contractors, agents, employees, licensees or any person claiming by, through or
under Tenant, and in no event shall Landlord ever be liable to Tenant for any
indirect, special or consequential damages under the provisions of this Section
9.2 or any other provision of this Lease. If there is an interruption of utility
service or other building services to the Premises due to the negligence or
willful misconduct of Landlord or its agents, employees, or contractors that
renders all or any portion of the Premises untenantable for the Permitted Use
hereunder and Tenant actually vacates all or any portion of the Premises and
notifies Landlord thereof, then, commencing on the third business day after
Tenant o vacates the Premises and notifies Landlord thereof, then, as Tenant's
sole and exclusive remedy therefor, the Rent shall proportionately abate until
such services are restored and Landlord gives Tenant notice thereof or Tenant
reoccupies the Premises (or such vacated portion), whichever occurs first.
9.3 SEPARATELY METERED UTILITIES
Tenant shall pay directly to the utility, as they become due, all bills
for electricity, gas, water and sewer, and other utilities (whether they are
used for furnishing heat or for other purposes) that are furnished to the
Premises and now or hereafter separately metered or billed by the utility to the
Premises. If any utilities used or consumed by Tenant are not separately
metered, Tenant shall pay its allocable share of such utilities, based on use or
pro rata share of the meter, as determined by Landlord.
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ARTICLE X
INDEMNITY
10.1 THE TENANT'S INDEMNITY
The Tenant shall indemnify and save harmless Landlord, the directors,
officers, agents, and employees of Landlord, against and from all claims,
expenses, or liabilities of whatever nature (a) arising directly or indirectly
from any default or breach by Tenant or Tenant's contractors, licensees, agents,
servants, or employees under any of the terms or covenants of this Lease
(including without limitation any violation of Landlord's' Rules and Regulations
and any failure to maintain or repair equipment or installations to be
maintained or repaired by Tenant hereunder) or the failure of Tenant or such
persons to comply with any rule, order, regulation, or lawful direction now or
hereafter in force of any public authority, in each case to the extent the same
are related Tenant's use of, or alterations or improvements to, the Premises or
the Building; or (b) arising from any accident, injury, or damage, however
caused, to any person or property on the Premises; or (c) arising from any
accident; injury, or damage to any person or property occurring outside the
Premises but within the Building or on the Lot, where such accident, injury, or
damage results, from any act, omission, or negligence on the part of Tenant, or
Tenant's contractors, licensees, agents, servants, employees, or customers, or
anyone claiming by or through Tenant: provided, however, that in no event shall
Tenant be obligated under this clause (c) to indemnify Landlord,, the directors,
officers, agents, employees of Landlord, to the extent such claim, expense, or
liability results from any omission, fault, negligence, or other misconduct of
Landlord or the officers, agents, or employees of Landlord on or about the
Premises or the Building.
This indemnity and hold harmless agreement shall include, without
limitation, indemnity against all expenses, attorney's fees and liabilities
incurred in connection with any such claim or proceeding brought thereon and the
defense thereof with counsel acceptable to Landlord. At the request of Landlord,
Tenant shall defend any such claim or proceeding directly on behalf and for the
benefit of Landlord.
10.2 THE TENANTS RISK
The Tenant agrees to use and occupy the Premises and to use such other
portions of the Building and the Lot as Tenant is herein given the right to use
at Tenant's sole risk; and Landlord shall have no responsibility or liability
for any loss or damage, however caused, to furnishings, fixtures, equipment, or
other personal property of Tenant or of any persons claiming by, through, or
under Tenant.
10.3 INJURY CAUSED BY THIRD PARTIES
The Tenant agrees that Landlord shall not be responsible or liable to
Tenant, or to those claiming by, through, or under Tenant, for any loss or
damage resulting to Tenant or those claiming by, through, or under Tenant, or
its or their property, that may be occasioned by or through the acts or
omissions of persons occupying any part of the Building, or for any loss or
damage to Tenant's property from the breaking, bursting, crossing, stopping, or
leaking of electric cables and wires, and water, gas, sewer, or steam pipes, or
like matters.
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10.4 SECURITY
Tenant agrees that, in all events, Tenant is responsible for providing
security to the Premises and its own personnel, and that Landlord shall have no
obligation to provide security to the Premises, Building, Lot, or the City of
Lowell parking garage providing parking to the Premises.
ARTICLE X1
INSURANCE
11.1 PUBLIC LIABILITY INSURANCE
The Tenant agrees to maintain in full force from the date upon which
Tenant first enters the Premises for any reason, throughout the Lease Terns, and
thereafter so long as Tenant is in occupancy of any part of the Premises, (a) a,
policy of commercial general liability insurance, written on an occurrence basis
and including contractual liability coverage to cover any liabilities assumed
under this Lease, insuring against all claims for injury to or death of persons
or damage to property on or about the Premises or arising out of the use of the
Premises, including products liability, and completed operations liability, and
(b) automobile liability insurance covering all owned vehicles, hired vehicles,
and all other non-owned vehicles. Each such policy shall designate Tenant as a
named insured and Landlord, its managing agent, if any, and any mortgagees.(as
may be set forth in a notice given from time to time by Landlord) shall be named
as additional insureds, as their interests appear.
Each such policy shall expressly provide that it shall not expire or be
amended in a manner that materially impairs Landlord's coverage or canceled
without at least thirty. (30) days' prior written notice to Landlord in each
instance and that the interests of Landlord thereunder or therein shall not be
affected by any breach by Tenant of any policy provision, and a duplicate
original or certificate thereof shall be delivered to Landlord. The minimum
limits of liability of such insurance shall be bodily injury and property damage
combined single limit of $3,000,000 per occurrence. The Landlord shall have the
right from time to time to increase such minimum limits upon notice to Tenant,
provided that any such increase shall provide for coverage in amounts similar to
like coverage being carried on like property in the greater Boston area.
The Tenant agrees to maintain in full force from the date upon which
Tenant first enters the Premises for any reason, throughout the Lease Term, and
thereafter so long as Tenant is in occupancy of any part of the Premises, a
policy insuring any and all Tenant's trade fixtures, equipment, and other
personal property of Tenant against damage or destruction by fire or other
casualty in an amount equal to the full replacement cost of such property.
Tenant shall also maintain insurance against such other hazards as may from time
to time reasonably be required by Landlord or the holder of any mortgage on the
Premises, provided that such insurance is customarily carried in the area in
which the Premises are located on property similar to the Building and that
Tenant receives written notice specifying all such additional insurance as may
be required. At Landlord's request, any such policies of insurance shall name
any such mortgagee as loss payee under a standard mortgagee's clause.
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Notwithstanding the foregoing, Tenant shall be permitted to self-insure
its fixtures, equipment and other personal property from time to time located
in, on or about the Premises, and all leasehold improvements to the Premises
constructed or installed by Tenant, provided that at all times when Tenant so
self-insures the same or any portion thereof, Tenant's net worth shall be and
remain at least Twenty Million and 00/100 Dollars ($20,000,000.00). During all
periods in which Tenant so self-insures any of the same, the rights and
obligations of Landlord and Tenant shall remain the same as if Tenant shall have
purchased and kept in force thereon insurance from an independent, institutional
insurer of recognized responsibility, and, without limitation, the provisions of
Sections 10.2 and 11.5 of this Lease shall remain in full force and effect. The
Tenant represents, by so self-insuring, that Tenant then is financially able to
absorb any loss thereto without significant reduction of available capital or
any other material, adverse effect on Tenant or its business operations, and
that Tenant then is of at least such minimum net worth.
The Landlord shall maintain in full force throughout the Lease Term a
policy of insurance upon the Building and its fixtures and equipment.
11.3 CONSTRUCTION PERIOD INSURANCE
At any time when demolition or construction work is being performed on
or about the Premises or Building by or on behalf of Tenant, the Tenant shall
keep in full force and effect the following insurance coverage:
(1) builder's risk completed value (nonreporting form) in such form and
affording such protections as reasonably required by Landlord, naming Landlord
and its mortgagees as additional insureds; and
(2) workers' compensation or similar insurance in form and amounts
required by law.
Tenant shall cause a certificate or certificates of such insurance to
be delivered to Landlord prior to the commencement of any work in or about the
Building or the Premises, in default of which Landlord shall have the right, but
not the obligation, to obtain any or all such insurance at the expense of
Tenant, in addition to any other right or remedy of Landlord. The provisions of
this ss. 11.3 shall survive the expiration or earlier termination of this Lease.
11.4 RENTAL ABATEMENT INSURANCE
The Landlord shall keep and maintain in full force and effect during
the Lease Term rental abatement insurance against abatement or loss of Rent in
case of fire or other casualty, in an amount at least equal to the amount of the
Rent payable by Tenant during the then current lease year as reasonably
determined by Landlord. All premiums for such insurance shall be included in
Operating Costs for the purposes of this Lease.
11.5 WAIVER OF SUBROGATION
Insofar as and to the extent that the following provisions may be
effective without invalidating or making it impossible to secure insurance
coverage from responsible insurance companies doing business in The Commonwealth
of Massachusetts (even though extra premium
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may result therefrom): Landlord and Tenant mutually agree that with respect to
any loss which .is covered by insurance then being carried by them or which
would have been covered under insurance required to be carried by them under the
Lease, the one carrying (or required to carry) such insurance and suffering said
loss releases the other of and from any and all claims with respect to such
loss; and they further mutually agree that their insurance companies shall have
no right of subrogation against the other on account thereof In the event that
an additional premium is payable by either party as a result of this provision,
the other party shall reimburse the party paying such premium the amount of such
extra premium. If, at the written request of one party, this release and
non-subrogation provision is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this Section shall be deemed to modify or, otherwise affect any
releases elsewhere contained in this Lease.
ARTICLE XII
CASUALTY
12.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE"
The term "substantial damage", as used herein, shall refer to damage,
which is of such a character that in Landlord's reasonable, good faith estimate
the same cannot, in ordinary course, be expected to be repaired within 60
calendar days from the time that such repair work would .commence. Any damage,
which is not "substantial damage", is "partial damage".
12.2 PARTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be partial damage to the Building
by fire or other casualty and if such damage shall materially interfere with
Tenant's use of the Premises as contemplated by this Lease, Landlord shall
promptly proceed to restore the Building to substantially the condition in which
it was immediately prior to the occurrence of such damage. If such restoration
is not completed within 9 months after the date of such damage, Tenant shall
have the right to terminate this Lease by giving written notice to Landlord. If
Tenant so elects to terminate this Lease, then this Lease and the term hereof
shall cease and come to an end on the date that is thirty (30) days after the
date that Landlord receives Tenant's termination notice, unless on or before
such date Landlord has substantially completed such restoration.
12.3 SUBSTANTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be substantial damage to the
Building by fire or other casualty and if such damage shall materially interfere
with Tenant's use of the Premises as contemplated by this Lease, Landlord shall
promptly restore the Building the extent reasonably necessary to enable Tenant's
use of the Premises, unless Landlord, within ninety (90) days after the
occurrence of such damage, shall give notice to Tenant of Landlord's election to
terminate this Lease. The Landlord shall have the right to make such election in
the event of substantial damage to the Building whether or not such damage
materially interferes with Tenant's use of the Premises. If Landlord shall give
such notice, then this Lease shall terminate as of the date of such notice with
the same force and effect as if such date were the date originally established
as the expiration date hereof. If Landlord has not restored the Premises to the
extent required under
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this Section 12.3 within nine (9) months after the date of such damage or
destruction, such nine-month period to be extended to the extent of any delays
of the completion of such restoration due to matters beyond Landlord's
reasonable control, or if the Premises shall be substantially damaged during the
last nine (9) months of the Lease Term then, in either such case, Tenant may
elect to terminate this Lease by giving written notice of such election to
Landlord within thirty (30) days after the end of such nine-month period and
before the substantial completion of such restoration. If Tenant so elects to
terminate this Lease, then this Lease and the term hereof shall cease and come
to an end on the date that is thirty (30) days after the date that Landlord
receives Tenant's termination notice, unless on or before such date Landlord has
substantially completed such restoration.
12.4 ABATEMENT OF RENT
If during the Lease Term the Building shall be damaged by fire or
casualty and if such damage shall materially interfere with Tenant's use of the
Premises as contemplated "by this Lease, a just proportion of the Base Rent
payable by Tenant hereunder shall abate proportionately for the period in which,
by reason of such damage, there is such interference with Tenant's use of the
Premises, having regard to the extent to which Tenant may be required to
discontinue Tenant's use of the Premises, but such abatement or reduction shall
end if and when Landlord shall have substantially restored the Premises
(exclusive of any of Tenant's fixtures, furnishings, equipment and the like) to
substantially the condition in. which the Premises were prior to such damage.
12.5 MISCELLANEOUS
In no event shall Landlord have any obligation to make any repairs or
perform any restoration work under this Article XII if prevented from doing so
by reason of any cause beyond its reasonable control, including, without
limitation, the requirements of any applicable laws, codes, ordinances, rules,
or regulations, the refusal of the holder of a mortgage or ground lease
affecting the premises to make available to Landlord the net insurance proceeds
attributable to such restoration, or the inadequacy of such proceeds to fund the
full cost of such repairs or restoration, but reasonably promptly after Landlord
ascertains the existence of any such cause, it shall either terminate this Lease
or waive such condition to its restoration obligations and proceed to restore
the Premises as otherwise provided herein. Further, Landlord shall not be
obligated in any event to make `any repairs or perform any restoration work to
any of Tenant's trade fixtures and personal property.
ARTICLE XIII
EMINENT DOMAIN
13.1 RIGHTS OF TERMINATION FOR TAKING
If the Premises, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable for Tenant's purposes, shall be taken (including a temporary taking
in excess of 180 days) by condemnation or right of eminent domain or sold in
lieu of condemnation, Landlord or Tenant may elect to terminate this
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Lease by giving notice to the other of such election not later than thirty (30)
days after Tenant has been deprived of possession.
Further, if so much of the Building (which may include the Premises) or
the Lot shall be so taken, condemned or sold or shall receive any direct or
consequential damage by reason of anything done pursuant to public or
quasi-public authority such that continued operation of the same would, in
Landlord's reasonable opinion, be uneconomical, Landlord may elect to terminate
this Lease by giving notice to Tenant of such election not later than thirty
(30) days after the effective date of such taking.
Should any part of the Premises be so taken or condemned or receive
such damage and should this Lease be not terminated in accordance with the
foregoing provisions, Landlord shall promptly after the determination of
Landlord's award on account thereof, expend so much as may be necessary of the
net amount which may be awarded to Landlord in such condemnation proceedings in
restoring the Premises to an architectural unit that is reasonably suitable to
the uses of Tenant permitted hereunder. Should the net amount so awarded to
Landlord be insufficient to cover the cost of so restoring the Premises, in the
reasonable estimate of Landlord, Landlord may, but shall have no obligation to,
supply the amount of such insufficiency and restore the Premises to such an
architectural unit, with all reasonable diligence, or Landlord may terminate
this Lease by giving notice to Tenant within a reasonable time after Landlord
has determined the estimated cost of such restoration.
13.2 PAYMENT OF AWARD
The Landlord shall have and. hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to the
Building and the Lot and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking or damage,
as aforesaid. The Tenant covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request. Nothing contained
herein shall be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any of Tenant's trade fixtures installed in
the Premises by Tenant at Tenant's expense and for relocation expenses, provided
that such action shall not affect the amount of compensation otherwise
recoverable hereunder by Landlord from the taking authority.
13.3 ABATEMENT OF RENT
In the event of any such taking of the Premises, the Base Rent or a
fair and just proportion thereof, according to the nature and extent of the
damage sustained, shall be suspended or abated, as appropriate and equitable in
the circumstances.
13.4 MISCELLANEOUS
In no event shall Landlord have any obligation to make any repairs
under this Article XIII if prevented from doing so by reason of any cause beyond
its reasonable control, including, without limitation, requirements of any
applicable laws, codes, ordinances, rules, or regulations or requirements of any
mortgagee. Further, Landlord shall not be obligated to make any repairs to any
portions of the Premises or the Building which were constructed or installed by
or for some party other than Landlord or which are not the property of Landlord.
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ARTICLE XIV
14.1 TENANT'S DEFAULT
(a) If at any time any one or more of the following events (herein
referred to as a "Default of Tenant") shall occur;
(i) Tenant shall fail to make payment of rent or any other
monetary amount due under this lease within five (5) days after Landlord has
sent to Tenant notice of such default.
However, if: (A) Landlord shall have sent to Tenant a written
notice of such default , even though the same shall have been cured and this
Lease not terminated; and (B) during the lease year in which said notice of
default has. been sent by Landlord to Tenant, Tenant thereafter shall default in
any monetary payment, the same shall be deemed to be a Default of Tenant upon
Landlord giving Tenant written notice thereof without the five (5) day grace
period set forth above; or
(ii) Tenant shall fail to perform or observe any other
covenant or provision herein contained on Tenant's part to be performed or
observed and Tenant shall fail to remedy the same within thirty (30) days after
notice to Tenant specifying such neglect or failure, or, if such failure is of
such a nature that Tenant cannot reasonably remedy the same within such thirty
(30) day period, Tenant shall fail to commence promptly to remedy the same and
to prosecute such remedy to completion with diligence and continuity.
However, if (A) Landlord shall have sent to Tenant a notice of
such default, which is of the same nature, even though the same shall have been
cured and this Lease not terminated; and ($) during the lease year in which said
notice of default have been sent by Landlord to Tenant, Tenant thereafter shall
default in any non-monetary matter, the same shall be deemed to be a Default of
Tenant upon Landlord giving Tenant written notice thereof, and Tenant shall have
no grace period, within which to cure the same; or
(iii) except as otherwise provided by applicable law, if the estate
hereby created shall be taken on execution or by other process of law, or if
Tenant shall be judicially declared bankrupt or insolvent according to law, or
if any assignment shall be made .of the property of Tenant for the benefit of
creditors, or if a receiver, guardian, conservator, trustee in involuntary
bankruptcy or other similar officer shall be appointed to take charge of all or
any substantial part of Tenant's property by a court of competent jurisdiction,
or if a petition shall be filed for the reorganization of Tenant under any
provisions of law now or hereafter enacted, and such proceeding is not dismissed
within sixty (60) days after it is begun, or if Tenant shall file a petition for
such reorganization, or for arrangements under any provisions of such laws
providing a plan for a debtor to settle, satisfy, or extend the time for the
payment of debts; then, in any such case, Landlord may, in addition to any
remedies otherwise available to Landlord, immediately or at any time thereafter,
and without demand or notice but in adherence to all applicable law, enter into
and upon the Premises or any part thereof in the name of the whole and repossess
the same as of Landlord's former estate, and expel Tenant and those claiming by,
through or under it and remove its or their effects without being deemed guilty
of any manner of trespass, and without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach
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of covenant, and/or Landlord may terminate this Lease by notice to Tenant, and
this Lease shall come. to an end on the date of such notice as fully and
completely as if such date were on the date herein originally fixed for the
expiration of the term of this Lease (Tenant hereby waiving any rights of
redemption, if any, under M.G.L.A. c. 186, ss. 11 to extent that such rights may
be lawfully waived), and Tenant will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as herein provided. To the extent
permitted by law, Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed, or in the event of Landlord obtaining possession
of the Premises, by reason of the violation by Tenant of any of the covenants
and conditions of this Lease. In the event of any such termination, entry or
reentry, Landlord shall have the right to remove and store Tenant's property and
that of persons claiming by, through or under Tenant at the sole risk and
expense of Tenant and, if Landlord so elects, (x) to sell such property. at
public auction or private sale and apply the net proceeds to the payment of all
sums due to Landlord from Tenant and pay the balance, if any, to Tenant, or (y)
to dispose of such property in any manner in which Landlord shall elect, Tenant
hereby agreeing to the fullest extent permitted by law that it shall have no
right, title or interest in any property remaining in the Premises after such
termination, entry or reentry.
(b) Tenant covenants and `agrees, notwithstanding any termination of
this Lease as aforesaid or any entry or reentry by Landlord, whether by summary
proceedings, termination, or otherwise, to pay and be liable for on the days
originally fixed herein for the payment thereof, amounts equal to the several
installments of Rent and other charges reserved as they would become due under
the terms of this Lease if this Lease had not been terminated or if Landlord had
not entered or reentered, as aforesaid, and whether the Premises be relet or
remain vacant, in whole or in part, or for a period less than the remainder of
the Term, or for the whole thereof; but in the event the Premises be relet by
Landlord, Tenant shall be entitled to a credit in the net amount of rent
received by Landlord in reletting, after deduction of all expenses incurred in
reletting the Premises (including, without limitation, remodeling costs not
reimbursed to Landlord through such rent, brokerage fees, attorneys' fees and
the like), and in collecting the rent in connection therewith. As an
alternative, at the election of Landlord, Tenant will upon such termination pay.
to Landlord, as damages, such a sum as at the time of such termination
represents the amount of the excess, if any, of the then value of the total Rent
and other benefits which would have accrued to Landlord under this Lease for the
remainder of the Lease Term if the lease terms had been fully complied with by
Tenant over and above the then cash rental value (in advance) of the Premises
for what would be the then unexpired Lease Term if the same remained in effect.
For purposes of this Article, if Landlord elects to require Tenant to pay
damages in accordance with immediately preceding sentence, the total amount due
shall be computed by assuming that Tenant's Proportionate Share of Taxes and
Tenant's Proportionate Share of Operating Costs would be, for the balance of
such unexpired term, the amount thereof respectively for the lease year in which
such termination, entry or reentry shall occur.
(c) In case of any Default of Tenant, reentry, entry, expiration and
dispossession by summary proceedings or otherwise, Landlord (i) shall use
reasonable efforts to .relet the Premises or any part or parts thereof, either
in the name of Landlord or otherwise, for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Lease Term and may grant
concessions or free rent to the extent that .Landlord considers advisable or
necessary to relet the Premises, and shall
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otherwise use reasonable efforts to mitigate damages and (ii) may make such
alterations, repairs and decorations in the Premises as Landlord, in its sole
judgment, considers advisable or necessary for the purpose of reletting the
Premises; and no action by Landlord in accordance with the foregoing shall
operate or be construed to .release Tenant from liability hereunder as
aforesaid. It is specifically understood and agreed that Landlord shall be
entitled to take into account in connection with any reletting of the Premises
all relevant factors which would be taken into account by a sophisticated
developer in securing a replacement tenant for the Premises, such as, but not
limited to, the first class quality of the Building and the financial
responsibility of any such replacement tenant. Landlord shall in no event be
liable in any way whatsoever for failure, despite its reasonable efforts, to
relet the Premises, or, in the event that the Premises are relet, for failure to
collect the rent under such reletting. The Landlord agrees to list the Premises
with a broker in the event of a termination, entry or reentry under this ARTICLE
XIV, provided that Landlord's obligation to list the Premises as provided herein
is independent of Tenant's obligations under this ARTICLE XIV and shall not be
construed to entitle Tenant to setoff against any amounts payable by Tenant
hereunder in the event of a breach or alleged breach by Landlord of such
obligation. In no event shall Landlord be obligated to give priority to the
reletting of the Premises over any other Premises in the .Building or any other
building owned by Landlord.
(d) If there is at any time a guarantor or assignee of this Lease or
any interest of Tenant herein or any sublessee, franchisee, concessionee, or
licensee of all or any portion of the Premises, the happening of any of the
events described in paragraph (a)(iii) of this Section with respect to such
guarantor, assignee, sublessee, franchisee, concessionee, or licensee shall
constitute a Default of Tenant hereunder.
(e) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress `to which
Landlord may, at any time, be entitled lawfully and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity, as if specific remedies were not herein provided for.
(f) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses) in enforcing its
rights hereunder or occasioned by any Default of Tenant shall be paid by Tenant.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy, insolvency, or
like proceedings by reason of the termination of this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, the damages are to be proved, whether or
not the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
14.2 LANDLORD'S DEFAULT
Landlord shall in no event be in default in the performance of any of
Landlord's obligations hereunder. unless and until Landlord shall have failed to
perform such obligations within thirty (30) days, or such additional time as is
reasonably required to correct any such
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default, after notice by Tenant to Landlord specifying wherein Landlord has
failed to perform any such obligation.
ARTICLE XV
THE LANDLORD'S ACCESS TO PREMISES
15.1 THE LANDLORD'S RIGHT OF ACCESS
The Landlord and its agents, contractors, and employees shall have the
right to enter the Premises at all reasonable hours upon reasonable advance
notice, except in exigent circumstances, or any time in case of emergency, for
the purpose of inspecting or of malting repairs or alterations, to the Premises
or the Building or additions to the Building, and Landlord shall also have the
right to make access available at all reasonable hours and upon reasonable
advance notice to prospective or existing mortgagees or purchasers of any part
of the Building provided that such entry does not unreasonably interfere with
Tenant's use and enjoyment of the Premises. To assure access by Landlord to the
Premises, Tenant shall provide Landlord with duplicate copies of all keys used
by Tenant in providing access to the Premises.
For a period commencing twelve (12) months prior to the expiration of
the Lease Term, Landlord may have reasonable access to the Premises at all
reasonable hours and reasonable advance notice for the purpose of exhibiting the
same to prospective tenants; provided that such exhibition does not unreasonably
interfere with Tenant's use and enjoyment of the Premises.
ARTICLE XVI
RIGHTS OF MORTGAGEES
16.1 SUBORDINATION AND ATTORNMENT
(a) If any holder of a mortgage or holder of a ground lease of property
which includes the Premises, executed and recorded subsequent to the date of
this Lease, shall so elect, the interest of Tenant hereunder shall be
subordinate to the rights of such holder, provided that executes, acknowledges
and delivers to Tenant an agreement, in recordable form and in form and
substance reasonably acceptable to Tenant, that, in the event of the foreclosure
of such mortgage, a deed. in lieu of such foreclosure, a termination of such
ground lease or the succession by such holder to Landlord's title to the
Building or interest under this Lease, such holder shall recognize Tenant's
rights, shall not disturb Tenant's occupancy of the Premises, and shall assume
Landlord's obligations, under the terms and conditions of this Lease (a
"Non-Disturbance Agreement").such holder shall agree to recognize in writing the
rights of Tenant under this Lease upon the terms and conditions set forth
herein, and the performance by Tenant of Tenant's obligations hereunder (but
without any assumption by such holder of Landlord's obligations under this
Lease); or
(b) If any holder of a mortgage or holder of a ground lease of property
which includes the Premises executed and recorded prior to the date of this
Lease shall so elect, this Lease, and the rights of Tenant hereunder, shall be
superior in right to the rights of such holder, with the same force and effect
as if this Lease had been executed and delivered, and recorded, or a statutory
notice hereof recorded, prior to the execution, delivery and recording of any
such mortgage. Landlord represents and warrants, to the best of its knowledge,
to Tenant that the
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Premises is not, as of the Date of this Lease, subject to any mortgage or any
lease senior to this Lease or to which this Lease is subject.
The election of any such holder as to Subsection (a) above shall be
exercised by notice to Tenant, in the same fashion as notices under this Lease
are given by Landlord to Tenant, and, if such notice is given, such
subordination shall be effective as to all advances then or thereafter made by
such holder under such mortgage or in connection with such ground lease. Any
election as to Subsection. (b) above shall become effective upon either notice
from such holder to Tenant in the same fashion as notices from Landlord to
Tenant are to be given hereunder or by the recording in the appropriate registry
or recorder's office of an instrument, in which such holder subordinates its
rights under such mortgage or ground lease to this Lease.
(c) Forthwith upon the request of Landlord, the holder of any mortgage
or deed of trust affecting the Premises, or the lessor under any ground lease
affecting the Premises, provided that any such holder or lessor has executed and
delivered to Tenant a Non-Disturbance Agreement, Tenant shall. execute and
deliver to any such holder or lessor party an agreement providing that Tenant
shall attorn to such holder or lessor in the event of a foreclosure of such
mortgage or deed of trust or transfer in lieu thereof or a termination of such
ground lease and incorporating such other terms and conditions as such party may
reasonably require, provided that such agreement includes en agreement by such
other party to recognize the rights of Tenant under this Lease. Irrespective of
whether any such attornment agreement has been executed, Tenant shall, in the
event any proceedings are brought for the foreclosure of, or in the event of
exercise of the power of sale. under, any mortgage or deed of trust made by
Landlord, its successors or assigns, encumbering the Premises, or any part
thereof, or in the event of termination of any ground lease, if so requested,
attorn to the purchaser or ground lessor upon such foreclosure, sale or
termination or upon any grant of a deed in lieu, of foreclosure and recognize
such purchaser or ground lessor as Landlord under this Lease.
(d) Tenant agrees on request of Landlord to execute and deliver from
time to time any instrument that Landlord may reasonably deem necessary to
confirm the provisions of this Section 16.1.
16.2 NOTICE TO MORTGAGEE AND GROUND LESSOR; OPPORTUNITY TO CURE
After receiving notice from any person, firm, or other entity (or from
Landlord on behalf of any such person, etc.) that it holds a mortgage which
includes the Premises as part of the mortgaged premises, or that it is the
ground lessor under a lease with Landlord as ground lessee, which includes the
Premises as a part of the demised premises, provided such notice specifies the
name and address of such holder or ground lessor, no notice from Tenant to
Landlord shall be effective unless and until a copy of the same is given to such
holder or ground lessor, and the curing of any of Landlord's defaults by such
holder or ground lessor shall be treated as performance by Landlord.
Accordingly, no default by Landlord which would entitle Tenant under the terms
of this Lease, hereunder to terminate this Lease shall give Tenant any such
right unless and until:
(a) Tenant shall have first given written notice to such holder or
ground lessor, if any, specifying the default of Landlord which could or would
give basis to Tenant's rights; and
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(b) such holder or ground lessor, after receipt of such notice, has
failed or refused to correct or cure the condition complained of within the time
specified under this Lease for Landlord to cure such default or, in the absence
of any such specifications, within a reasonable time thereafter, but nothing
contained in this Section 16 or elsewhere in this Lease .shall be deemed to
impose any obligation on any such holder or ground lessor to correct or cure any
such condition.
16.3 ASSIGNMENT OF RENTS.
With reference to any assignment by Landlord of Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage or ground lease on property
which includes the Premises, Tenant agrees: .
(a) that, except as set forth in subsection 16.3(b), the execution
thereof by Landlord, and the acceptance thereof by the holder of such mortgage,
or the ground lessor, shall never be treated as an assumption by such holder or
ground lessor of any of the obligations of Landlord hereunder, unless such
holder or ground lessor shall, by notice sent to Tenant, specifically otherwise
elect; and
(b) that, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only upon acquisition
of Landlord's interest in the Building or this Lease by foreclosure, deed in
lieu of foreclosure, the termination of such ground lease or otherwise, upon
foreclosure of such holder's mortgage or the taking of possession of the
Premises.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 CAPTIONS
The captions throughout this Lease are for convenience or reference
only and shall in no way be held or deemed to define, limit, explain, describe,
modify, or add to the interpretation, construction, or meaning of any provision
of this Lease.
17.2 BIND AND INURE
Except as herein otherwise expressly provided, the obligations of thus
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 successors and assigns.
The reference herein to successors and assigns of Tenant is not intended to
constitute a consent to assignment by Tenant, but has reference only to those
instances in which Landlord's consent is not required under this Lease or
Landlord may later give consent to a particular assignment as required by the
provisions of Article VII. Neither the assignment by Landlord of its interest in
this Lease as security to a lender holding a mortgage on the Building, nor the
acceptance thereof by such lender, nor the exercise by such lender of any of its
rights pursuant to said assignment shall be deemed in any way an assumption by
such lender of any of the obligations of Landlord hereunder, except under the
conditions set forth in Section 16.3 of this Lease. Whenever the Premises are
owned by a trustee or trustees, the obligations of Landlord shall be binding
upon Landlord's trust estate and the interest of such
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trustee and any beneficiary in such trust estate, but not upon trustee,
beneficiary or shareholder of the trust individually.
17.3 NO WATER
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 shall not be deemed to be a waiver of such violation or to prevent a
subsequent act, which would originally have constituted a violation, from having
all the force and effect of an original violation. The receipt by Landlord of
Rent or additional rent with knowledge of the breach of any covenant of this
Lease shall not be deemed to be 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.
17.4 NO ACCORD AND SATISFACTION
No acceptance by Landlord of a lesser sum than the minimum 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 endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed to
be an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such installment
or pursue any other remedy in this Lease or at law or in equity provided.
17.5 CUMULATIVE REMEDIES
The specific remedies to which Landlord may resort under the terms of
this Lease are cumulative and 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 the 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.
Except as otherwise set forth herein, any obligations of Tenant or Landlord as
set forth herein (including, without limitation, rental and other monetary
obligations, repair obligations and obligations to indemnify Landlord) shall
survive the expiration or earlier termination of this Lease, and Tenant shall
immediately reimburse Landlord for any expense incurred by Landlord in curing
Tenant's failure to satisfy any such obligation (notwithstanding the fact that
such cure might be effected by Landlord following the expiration or earlier
termination of this Lease).
17.6 PARTIAL INVALIDITY
If any term or provision of this Lease or any portion thereof or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, then the remainder of this Lease and of such term or
provision and the application of this Lease and of such term and provision to
persons or circumstances other than those as to which it is 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.
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17.7 LANDLORD'S RIGHT TO CURE
If Tenant shall at any time default in the performance of any
obligation under this Lease, Landlord shall have the right, but not the
obligation, to enter upon the Premises and/or to perform such obligation,
notwithstanding the fact that no specific provision for such substituted
performance by Landlord is made in this Lease with respect to such default. In
performing any such obligations, Landlord may make any reasonable payment of
money or perform any other reasonable act. All sums so paid by Landlord
(together with interest at the Lease Interest Rate) and all necessary incidental
costs and expenses in connection with the performance of any such act by
Landlord, shall be deemed to be additional rent under this Lease and shall be
payable to Landlord immediately on demand. Landlord may exercise the foregoing
rights without waiving any other of its rights or releasing Tenant from any of
its obligations under this Lease.
17.8 ESTOPPEL CERTIFICATES
Tenant agrees on the Commencement Date of the Lease Term and from time
to tune thereafter, upon not less than seven (7) 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 Tenant has no defenses, offsets or counterclaims against its obligations to
pay rent and other charges required under this Lease and to perform its other
covenants under this Lease and 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
their forth in reasonable detail), and the dates to which the Rent and other
charges have been paid. Any such statement delivered pursuant to this Section
17.8 may be relied upon by any prospective purchaser or mortgagee of the
property, which includes the Premises, or any prospective assignee of any such
mortgagee.
17.9 BROKERAGE
Each party hereto warrants and represents that it has dealt with no
real estate broker or agent other than CB Richard Ellis \ NE Partners, LP and
Trammell Crow Company (the "Broker") in connection with this transaction and
agrees to defend, indemnify and save the other party harmless from end against
any and all claims for commissions or fees arising out of this Lease which, as
to the respective parties, are inconsistent with such party's warranties and
representations in this Section 17.9. Landlord shall be responsible for any
commissions or fees owed to the Broker in connection with this transaction.
17.10 ENTIRE AGREEMENT
All negotiations, considerations, representations, and understandings
between Landlord and Tenant are incorporated herein and this Lease expressly
supersedes any proposals or other written documents. relating hereto. This Lease
may be modified or altered only by written agreement between Landlord and
Tenant, and no act or omission of any employee or agent of Landlord shall alter,
change, or modify any of the provisions hereof.
<PAGE>
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17.11 HOLDOVER
If Tenant remains in the Premises after the termination of this Lease,
by its own terms or for any other reason, such holding over shall not be deemed
to create any tenancy, but Tenant' shall . be a tenant at sufferance only, at a
daily rate equal to one hundred fifty percent (150%) of the Rent applicable
immediately prior .to such termination plus the then applicable additional rent
and other charges under this Lease. Tenant shall also pay to Landlord all
damages, direct or indirect, sustained by Landlord by reason of any such holding
over. Otherwise, such holding over shall be on the terms and conditions set
forth in this Lease as far as applicable.
17.12 COUNTERPARTS
This Lease is executed in any number of counterparts, each copy of
which is identical, and any one of which shall be deemed to be complete in
itself and may be introduced in evidence or used for any purpose without the
production of the other copies.
17.13 CONSTRUCTION AND GRAMMATICAL USAGE
This Lease shall be governed, construed and interpreted in accordance
with the laws of The Commonwealth of Massachusetts, and Tenant agrees to submit
to the personal jurisdiction of any court (federal or state) in said
Commonwealth for any dispute, claim or proceeding. arising out of or relating to
this Lease. In construing this Lease, feminine or neuter pronouns shall be
substituted for those masculine in form and vice versa, and plural terms shall
be substituted for singular and singular for plural in any place in which the
context so admits or requires. If there be more than one party tenant,. the
covenants of Tenant shall be the joint and several obligations of each such
party and, if Tenant is a partnership, the covenants of Tenant shall be the
joint and several obligations of each of the partners and the obligations of the
firm.
17.14 WHEN LEASE BECOMES BINDING
Employees or agents of Landlord have no authority to make or agree to
make a lease or any other agreement or undertaking in connection herewith. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant.
17.15 LETTER OF CREDIT
Landlord acknowledges receipt from Tenant of an unconditional,
irrevocable and transferable letter of credit, naming Landlord and its
successors and assigns as beneficiary, drawn upon Silicon Valley Bank, in the
amount of One Hundred Forty Three Thousand Two Hundred Ninety Nine ($1.43,299)
(the "Letter of Credit"), which shall be held by Landlord or its agent, as
security, for the full and faithful performance of Tenant's obligation herewith,
for and during the Term, to be returned to Tenant within thirty (30) days after
the expiration of the Term or the termination of this lease provided there
exists no breach of any undertaking of Tenant. Upon the occurrence of a Default
of Tenant hereunder, Tenant agrees that Landlord may from time to time, without
prejudice to any other remedy, make demand for the principal amount of the
Letter of Credit to the extent necessary to make good any damage, injury,
expense incurred by Landlord by virtue of such default and/or to pay any damages
payable to Landlord by virtue of such default, and may thereafter apply such
proceeds to any such damage, injury or expense.
<PAGE>
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Tenant shall not have the right to call upon Landlord to draw upon the Letter of
Credit to cure any default or fulfill any obligation of Tenant, but such use
shall be solely in the discretion of Landlord. Upon any conveyance of the
Premises by Landlord to Landlord's grantee or transferee, the Letter of Credit
thereon may be assigned otherwise or transferred by Landlord to Landlord's
grantee or transferee and Tenant shall cooperate to the extent necessary to
effect such assignment or transfer. Upon any such assignment or transfer, Tenant
hereby releases Landlord herein named of any and all liability with respect to
the Letter of Credit, its application and return, and Tenant agrees to look
solely to such grantee or transferee. It is further understood that this
provision shall also apply to subsequent grantees and transferees. In the event
that the Letter of Credit is written. such that it will expire prior to the date
on which Tenant is entitled to its return, and the Letter of Credit is not
renewed or replaced at least thirty (30) days prior to such expiration date,
then Landlord shall have the right to draw upon the Letter of Credit so that
Landlord will, at all times during the Term of this Lease hold, in the form of
cash or in the form of the Letter of Credit or both, a sum equal to the
principal amount of the Letter of Credit required hereunder from time to time.
All such sums held in the form of cash shall be held as a security deposit
otherwise subject to the terms hereof, for the full and faithful performance of
Tenant's obligation herewith.
17.16 LANDLORD'S ENFORCEMENT EXPENSES
Unless prohibited by applicable law, the Tenant agrees to pay to the
Landlord the amount of all reasonable fees and expenses (including, without
limitation, attorneys' fees and costs) incurred by the Landlord arising out of
or resulting from any act or omission by the Tenant with respect to this Lease
or the Premises, including without limitation, any breach by the Tenant of its
obligations hereunder which continues after notice to Tenant and the expiration
of the applicable cure period, irrespective of whether Landlord resorts to
litigation as a result thereof.
17.17 NO SURRENDER
The delivery of keys to any employee of Landlord or to Landlord's
agents or employees shall not operate as a termination of this Lease or a
surrender of the Premises.
17.18 COVENANT OF QUIET ENJOYMENT
Subject to the terms and provisions of this Lease and on payment of the
Rent, additional rent, and other sums due hereunder and compliance with all of
the terms and provisions of this Lease, Tenant shall lawfully, peaceably, and
quietly have, hold, occupy, and enjoy the Premises during the term hereof,
without hindrance or ejection by Landlord or by any persons claiming under
Landlord; the foregoing covenant of quiet enjoyment is in lieu of any other
covenant, express or implied.
17.19 NO PERSONAL LIABILITY OF THE LANDLORD
The Tenant agrees to look solely to Landlord's then equity interest in
the Building and the Lot at the time owned, or in which Landlord holds an
interest as ground lessee, and any proceeds of insurance or award from. any
condemnation relating to the Building, the Lot or Landlord's .interest therein,
for recovery of any judgment for monetary damages from Landlord; it being
specifically agreed that neither Landlord (whether Landlord be an individual,
<PAGE>
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partnership, firm, corporation, trustee, or other fiduciary) nor any partner,
policyholder, officer, shareholder or director of Landlord, nor any trust of
which any person holding Landlord's interest is trustee nor any successor in
interest to any of the foregoing shall ever be personally liable for any such
judgment, or for the payment of any monetary obligation to Tenant, except to the
extent necessary to enforce such judgment against such interest of Landlord in
the Building, the Lot or any such proceeds or awards; provided, however, nothing
in this Section 17.19 shall prohibit Tenant from seeking injunction or other
equitable relief or restrict Tenant from enforcing such relief.. The covenants
of Landlord contained in this Lease shall be binding upon Landlord and
Landlord's successors only with respect to breaches occurring during Landlord's
and. Landlord's successors' respective periods of ownership of Landlord's
interest hereunder.
17.20 NOTICES.
Whenever, by the terms of this Lease, notice shall or may be given
either to Landlord or to Tenant, such notice shall be in writing and shall be
delivered by hand or sent by registered or certified mail, postage prepaid or by
so-called "express" mail (such as Federal Express or U.S. Postal Service Express
Mail) with proof of delivery:
If intended for Landlord, addressed to Managing Agent at the address
set forth in Section 1.2 with a copy to Landlord at the address set forth in
Section 1.2 or to such other addresses as may from time to time hereafter be
designated by Landlord by like notice.
If intended for Tenant, (i) prior to the Commencement Date: addressed
to Tenant at the address set forth on the first page of this Lease to the
attention of Alan MacDougall or (ii) after the Commencement Date: at the address
of the Premises to the attention of Alan MacDougall with a copy to Testa,
Hurwitz & Thibeault, LLP, 125 High Street, Boston, Massachusetts 02110;
Attention:. Real Estate Department or to such other address or addresses as may
from time to time hereafter be designated by Tenant by like notice. .
All such notices shall be effective upon delivery, attempted delivery,
or refusal, whichever occurs first, at the address or addresses of the intended
recipient, as set forth above.
<PAGE>
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IN WITNESS WHEREOF, the parties hereto have executed this instrument
under seal as of the date set forth in Section 1.2, above.
LANDLORD: FORTUNE WAKEFIELD, LLC
/s/ Roger W. Altreuter
--------------------------------
By, Roger W. Altreuter
Its: Manager
TENANT: DATAWATCH CORPORATION
/s/ Bruce Gardner
--------------------------------
By: Bruce Gardner
Its: President
/s/ John H. Kitchen III
--------------------------------
By: John H. Kitchen
Its: Vice President
<PAGE>
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EXHIBIT A
[INTENTIONALLY OMITTED]
<PAGE>
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EXHIBIT B
[INTENTIONALLY OMITTED]
<PAGE>
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EXHIBIT C
BUILDING SERVICES
I. CLEANING
A. General
1. All cleaning of common areas and public lavatories and office
space will be performed between 5 PM and 12 Midnight, Monday
through Friday.
B. Daily Operations (5 times per week)
1. Lavatories (Common Areas).
a. Scour, wash and disinfect all toilet seats, basins, bowls,
urinals and tile walls near urinals, throughout.
b. Sweep and wash floors with disinfectant.
c. Wash and polish mirrors, shelves, bright work and enameled
surfaces.
d. Hand dust and clean all partitions, dispenser and
receptacles.
e. Fill and maintain all toilet tissue holders, soap
dispensers, towel dispensers and sanitary napkin dispensers.
2. Common Areas
a. Sweep, wet-mop and mop dry all untreated flooring.
b. All finger marks, scuff marks and surface blemishes shall be
removed.
c. Clean all metal surfaces nightly. Untreated metal shall be
polished.
d. Clean all cigarette urns and replace sand. e. Clean entrance
and lobby glass.
f. Dust all air conditioning louvers, grills, etc.
g. Dust elevators doors, walls, ceilings and metal work. Vacuum
door tracks and elevator floors.
h. Check all stairways; sweep and mop as necessary.
3. Tenant's Office Space
a. All flooring to be swept nightly and. wash flooring weekly.
b. Waxing to be done at Tenant's expense.
c. Spot mop all floors for spills, smears and foot tracks
throughout.
d. All carpeting and rugs to be vacuumed nightly.
e. Hand dust weekly and wipe clean all furniture, fixtures,
etc..
f. Empty and clean all waste receptacles nightly and replace
plastic liners as necessary.
g. Wash clean all water fountains and water coolers.
h. Dust all floor and other ventilating louvers within reach;
damp wipe as necessary.
i. Wipe clean and polish all brass.
j. Clean all glass furniture tops.
k. Collect and remove wastepaper, cardboard boxes and waste
material.
1. Dust and wash closet and coat room shelving, coat racks and
flooring.
<PAGE>
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C. YEARLY
1. Common Areas
a. Strip and wax all resilient tile floor areas. Clean all
carpeting.
2. Windows
a. Clean inside and outside of all windows (to be performed
during daylight hours).
II. HEATING, VENTILATING AND AIR CONDITIONING
Heating, ventilating and air conditioning of the common areas
and the Premises as required to provide reasonably comfortable
temperatures for normal business day occupancy (excepting
holidays); Monday through Friday from 8:00 AM to 6:00 PM and
Saturday from 8:00 AM to 1:00 PM, will be provided through
various means. Landlord agrees to maintain and keep in good
working order all heating, ventilating and air conditioning
equipment servicing the Premises.
III. WATER
Hot water for public lavatory purposes and cold water for public
drinking, lavatory and toilet purposes. .
IV. ELEVATORS
Passenger and freight elevators for the use of all tenants and
the general public will provide access to and from all occupied
floors of the Building. Programming of elevators (including, but
not limited to, service elevators) shall be as Landlord from
time to time determines best for the Mill as a whole.
V. RELAMPING OF LIGHT FIXTURES
Tenant is responsible for replacing lamps, ballasts and starters
within the Premises.
VI. SECURITY
1. All parking lots will be secured with card access only (except
visitor sections).
2. Security personnel will be on duty 24 hours per day, seven days
per week.
3. The Building will have 24 hour/day, 365 days/year access for
tenants, their employees, agents and contractors and other
authorized individuals.
VII. SNOWPLOWING
1. Landlord will use diligent efforts to remove snow and ice from
parking areas, driveways and walkways on the Lots or otherwise
serving the Building. Landlord will begin plowing of driveways,
parking lots and walks whenever three inches of snow
accumulates.
2. Landlord will use diligent efforts, following overnight storms,
to have all parking areas, driveways and walkways cleared of
snow and ice and open by 8:00 AM each business day morning.
<PAGE>
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VIII. ELECTRICITY
Landlord shall provide electricity for use in the operation of
lights, outlets, machinery, fixtures, equipment and distribution
of heating, ventilation and air conditioning in the Premises,
with a combined. load of 7 watts per useable square foot.
VIII. SHUTTLE BUS SERVICE
Landlord shall provide a shuttle service from 7:30 AM to 9:30 AM
and from 4:00 PM to 6:00 PM to and from the Ayotte Garage.
Landlord shall not be obligated to provide a shuttle service so
long as Landlord can meet all of the Tenant's parking
requirements per this Lease with parking spaces in the West Lot
and the Tremont Lot.
IX. VISITOR PARKING
Landlord shall provide fifty (50) visitor parking spaces for the
use of all Tenants of the Building and their guests.