Massachusetts-Tyngsborough-300 Potash Hill Road Lease - Vesper Properties 1 Trust and LaserData Inc.
NET LEASE
THIS LEASE, ("Lease") made at Boston, Massachusetts, by and between
Francis D. Burke, Paul E. Guaraldi and Neil MacDonald as trustees of Vesper
Properties 1 Trust under declaration of trust dated January 8, 1986 and recorded
with Middlesex North District Registry of Deeds in Book 3315, Page 65, having a
principal place of business c/o Vesper Properties Inc., Suite 3620, One Post
Office Square, Boston, Massachusetts 02109 ("Landlord") and LaserData Inc., a
Delaware Corporation with a principal place of business at 10 Technology Drive,
Lowell, MA 01851 ("Tenant").
W I T N E S S E T H:
ARTICLE 1
Reference Data and Definitions
1.01. Reference Data
LANDLORD'S ADDRESS: Vesper Properties 1 Trust
c/o Vesper Properties Inc.
One Post Office Square, Suite 3620
Boston, Massachusetts 02109
TENANT'S ADDRESS: As stated above prior to the Term Commencement
Date: thereafter, the Premises
RENTABLE AREA OF THE PREMISES: 21,900 rentable square feet (approximately 21,681
usable square feet), known as Suites A and B, and located at 300 Potash Hill
Road, Tyngsborough, Massachusetts, as shown on Exhibit B.
TENANT'S PROPORTIONATE SHARE: 36.82%
ESTIMATED TERM COMMENCEMENT DATE: May 1, 1989
TERM: THREE (3) LEASE YEARS (the "initial term") subject to Section 3.03
BASIC RENT: First Lease Year: $271,057.00
Second Lease Year: $271,057.00
Third Lease Year: $282,007.00
<CAPTION>
LEASE EXTENSION TERM RENT (pursuant to Section 3.03)
Fourth Lease Year: $292,957.00
Fifth Lease Year: $303,907.00
SECURITY DEPOSIT: $45,174.16
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NET LEASE
THIS LEASE, ("Lease") made at Boston, Massachusetts, by and between
Francis D. Burke, Paul E. Guaraldi and Neil MacDonald as trustees of Vesper
Properties 1 Trust under declaration of trust dated January 8, 1986 and recorded
with Middlesex North District Registry of Deeds in Book 3315, Page 65, having a
principal place of business c/o Vesper Properties Inc., Suite 3620, One Post
Office Square, Boston, Massachusetts 02109 ("Landlord") and LaserData Inc., a
Delaware corporation with a principal place of business at 10 Technology Drive,
Lowell, MA 01851 ("Tenant").
W I T N E S S E T H:
ARTICLE 1
Reference Data and Definitions
1.01. Reference Data
LANDLORD'S ADDRESS: Vesper Properties 1 Trust
c/o Vesper Properties Inc.
One Post Office Square, Suite 3620
Boston, Massachusetts 02109
TENANT'S ADDRESS: As stated above prior to the Term Commencement
Date: thereafter, the Premises
RENTABLE AREA OF THE PREMISES: 21,900 rentable square feet (approximately 21,681
usable square feet), known as Suites A and B, and located at 300 Potash Hill
Road, Tyngsborough, Massachusetts, as shown on Exhibit B.
TENANT'S PROPORTIONATE SHARE: 36.82%
ESTIMATED TERM COMMENCEMENT DATE: May 1, 1989
TERM: THREE (3) LEASE YEARS (the "initial term") subject to Section 3.03
BASIC RENT: First Lease Year: $271,057.00
Second Lease Year: $271,057.00
Third Lease Year: $282,007.00
<CAPTION>
LEASE EXTENSION TERM RENT (pursuant to Section 3.03)
Fourth Lease Year: $292,957.00
Fifth Lease Year: $303,907.00
SECURITY DEPOSIT: $45,174.16
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PERMITTED USES: General office, research and development and light assembly uses
consistent with a first class Research and Development building.
ARTICLE 2
Premises
2.01. Premises. Landlord hereby leases and lets to Tenant, and Tenant
hereby takes and hires from Landlord, upon and subject to the terms, conditions,
covenants and provisions hereof, the Premises, subject to the Permitted
Exceptions.
ARTICLE 3
Term
3.01. Term Commencement. The Lease Term shall commence on the Term
Commencement Date.
3.02. Termination. The Lease Term shall end on the Lease Termination Date.
3.03 Extension Option: Tenant may, at Tenant's sole option, extend the
term of this Lease beyond the initial period of three (3) years subject to all
of the terms and conditions hereof, provided (i) Tenant shall have given notice
in writing to Landlord of Tenant's exercise of such option not less than one
hundred eighty (180) days, but no more than two hundred ten (210) days, prior to
the expiration of the initial term and (ii) no Default shall exist either at the
time such option is exercised or at the expiration of the initial term. In the
event Tenant fails to exercise its option hereunder, or having extended such
option, such Default then or thereafter exists prior to the Commencement of the
extended term hereof, Tenant shall, in addition to all other rights and
remedies, if any, which may be otherwise available to Landlord in such event,
pay to Landlord fifty thousand dollars ($50,000) to reimburse Landlord for
unamortized value of certain capital improvements made to the Premises as part
of Tenant's Finishes, installed for Tenant's particular use thereof.
3.04 Purchase Option for Tenant Improvements. In the event that Tenant
chooses not to exercise the option to extend the Lease pursuant to Section 3.03,
then Tenant shall have the option to purchase the Tenant Improvements described
in Exhibit C-2 herein attached for one hundred twenty seven thousand dollars
($127,000.00) at the end of the initial term. If Tenant chooses to extend the
Lease, then Tenant shall have the option to purchase the Tenant Improvements
described in Exhibit C-2 herein attached, for thirty thousand dollars
($30,000.00) at the end of the extended lease terms
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ARTICLE 4
Rent
4.01. Basic Rent. Tenant shall pay Landlord for the Premises, without
offset or deduction and without previous demand therefor, the Basic Rent as
annual rent for each Lease Year. Basic Rent shall be paid in equal monthly
installments in advance on the first day of each calendar month during the Lease
Term. Notwithstanding the Basic Rent Amount set forth on Page 1, the first two
(2) installments of Basic Rent shall be for a fixed amount of five thousand
dollars ($5,000.00) per installment. Subsequent installments of Basic and
Additional Rent shall be calculated as described herein. Subsequent installments
of Basic Rent shall be paid on the first day of every calendar month thereafter.
Basic Rent for partial months at the beginning or end of the Lease Term shall be
pro-rated and paid on the Term Commencement Date and the first day of the
calendar month in which the Stated Expiration Date is to occur.
4.02. Computation of Basic Rent. The Basic Rent for the first Lease Year
shall be as stated in Article 1.01 hereof.
4.03. Net Lease. This lease is a NET LEASE, and Landlord shall not be
obligated to pay any charge or bear any expense whatsoever against or with
respect to the Premises except to the extent expressly hereinafter provided, nor
shall the rent payable hereunder be subject to any reduction or offset
whatsoever on account of any charge or otherwise except as expressly hereinafter
provided. In order that the Basic Rent shall be absolutely net to Landlord,
Tenant covenants and agrees to pay, with respect to the premises as provided in
Articles 6 and 15, as Additional Rent, taxes, betterment assessments, insurance
costs, and utility charges.
ARTICLE 5
Use of Premises
5.01. Use Restricted. The Premises may be used for the Permitted Use and
for no other purpose. No improvements may be made in or to the Premises except
as otherwise provided in this Lease. Landlord represents and warrants to Tenant
that the Permitted Uses are permitted as of right under applicable zoning laws.
ARTICLE 6
Additional Rent:
Taxes, Insurance and Common Area Maintenance
6.01. Real Estate Taxes. Tenant shall pay, as Additional Rent, Tenant's
Proportionate Share of all Taxes which arise in respect of the operation,
possession or use of the Land and Building including, without limitation, all
charges for utilities furnished to the Premises which may become a lien on the
Premises in the following manner:
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(a) Tenant shall pay to the Landlord one twelfth (1/12) of the amount of
the Tenant's proportionate share of Taxes for each fiscal tax year on or
before the first day of each month during such fiscal year, in advance, in
an amount estimated by Landlord, provided Landlord shall have the right
initially to determine monthly estimates thereof and revise such estimates
from time to time. Within a reasonable period of time after Landlord has
received the tax bill for any such fiscal tax year, Landlord shall furnish
to Tenant a statement (the "Landlord's Tax Statement") setting forth the
amount of such real estate taxes for such fiscal tax year and Tenants
Proportionate Share of Taxes. If the actual amount of Tenant's
Proportionate Share of Taxes for such fiscal tax year exceeds the
estimated amount thereof paid by Tenant for such fiscal tax year, then
Tenant shall pay to Landlord the difference between the amount paid by
Tenant and the actual Tenant's Proportionate Share of Taxes within ten
(10) days after receipt of Landlord's tax statement, and if the total
amount paid by Tenant for any such fiscal tax year shall exceed the actual
amount of Tenant's Proportionate Share of Taxes for such fiscal year, then
such excess shall be credited against the next installment of Tenant's
Proportionate Share of Taxes due from Tenant to Landlord hereunder.
Notwithstanding the foregoing, for any fraction of a tax or assessment period or
installment period, included in the Lease Term at the beginning or end thereof,
Tenant shall pay only the fraction of Taxes so levied or assessed or becoming
payable which is allocable to such included period.
6.02. Insurance Costs. Tenants shall pay, as Additional Rent, Tenant's
Proportionate Share of all premiums and other expenses required to keep in full
force and effect the casualty insurance and umbrella liability insurance carried
by Landlord with respect to the Building.
6.03. Common Area Maintenance. Tenant shall pay as Additional Rent,
Tenant's Proportionate Share of all Common Area Maintenance Charges (as defined
below) during the Lease Term if the manner provided in Section 6.03 hereof. As
used herein, "Common Area Maintenance Charges" shall mean all expenses, costs
and disbursements which Landlord shall pay or become obligated to pay in
connection with operating, maintaining and repairing the Building, Common Areas
and Park Areas, snow removal, rubbish removal, cleaning, landscaping, operation
of any common security system, common elevator, or heating and air conditioning
system, or otherwise including, without limitation: (a) all wages and salaries
of all Persons employed in connection therewith (including taxes, insurance and
benefits relating thereto), (b) the cost of all supplies and materials used in
connection therewith, (c) all maintenance, janitorial and service agreements
including management agreements providing management fees not in excess of those
customarily charged in the Greater Boston area, (d) utilities not separately
metered, (e) insurance including, without limitation, casualty insurance, rent
insurance, flood, hazard insurance, if applicable, liability insurance, by
umbrella or otherwise, and all such other insurance coverage as Landlord's
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mortgagees or ground lessors may from time to time require Landlord may from
time to time reasonably require or Landlord deems necessary or desirable under
the circumstances, (f) assessments and other charges imposed on the owners of
the Building or allocated to the Building, or the maintenance of the Park
pursuant to operating covenants or otherwise, (g) capital items which are
primarily for the purpose of reducing common charges or which may be required by
a governmental authority as reasonably amortized by Landlord, and (h) pursuing
any application for an abatement of Taxes. Common Area Charges shall not Include
(1) capital items, except as provided above, (2) specific costs billed to and
paid by specific tenants, or (3) costs incurred by Landlord during the first two
Lease Years in connection with the repair and maintenance of the roof and
structural elements of the Building. Common Area Charges shall be determined on
an accrual basis in accordance with generally accepted accounting principles
which shall be consistently applied.
6.04. Method of Payment. Tenant shall pay to the Landlord one twelfth
(1/12) of Tenant's Proportionate Share of Common Area Maintenance Charges for
each Calendar Year on the first day of each and every month in advance, in an
amount estimated by Landlord, provided Landlord shall have the right initially
to determine monthly estimates and revise such estimates from time to time.
Within a reasonable period of time after the expiration of such Calendar Year,
Landlord shall furnish to Tenant a statement (the "Landlord's Common Area
Maintenance Expense Statement") setting forth in reasonable detail the Common
Area Maintenance Charges for such Calendar Year, and Tenant's Proportional Share
of Common Area Maintenance Charges. If the actual Common Area Maintenance
Charges for such Calendar Year exceeds the estimated Common Area Maintenance
Charges paid by Tenant for such Calendar Year, Tenant shall pay to Landlord the
difference between the amount paid by Tenant and the actual Tenant's
Proportionate Share of Common Area Maintenance Charges, and if the total amount
paid by Tenant for any such Calendar Year exceed the actual Tenant's
Proportionate Share of Common Area Maintenance Charges for such Calendar Year,
such excess shall be credited against the next installment of the estimated
Tenant's Proportionate Share of Common Area Maintenance Charges due from Tenant
to Landlord hereunder.
ARTICLE 7
Improvements, Repairs, Additions and Replacements
7.01. Preparation of the Premises. Landlord has constructed the base
Building on the Land and shall construct the Building Standard Tenant
Improvements (set forth on Exhibit C) in the Premises subject to the provisions
of the Work Letter attached as Exhibit D. All other work must be of a quality
equal to or better than the Building Standard Tenant Finishes. Landlord shall
also do the work described in the Working Drawings (as described in the Work
Letter), subject to the provisions of the Work Letter. Tenant shall pay the
amount of Tenant's Cost, together with the cost of any special Work, to
Landlord, as Additional Rent, in accordance with Section 9 of the Work Letter.
Title to all improvements constructed by Landlord shall remain in Landlord.
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7.02. Time for Completion. Landlord shall use due diligence to have the
Premises ready for occupancy on or before the Estimated Term Commencement Date,
but in no event later than outside Completion Date. In the event that the
Premises are not so ready by the Outside Completion Date, Tenant shall have the
option of terminating this Lease, exercisable by written notice to Landlord,
within two (2) days following the Outside Completion Date, together with a
payment by certified or bank cashier's check in the amount equal to the cost of
incorporating into the Tenant's Finishes specific items installed for Tenant's
particular use of the Premises. Reference is made to the Work Letter for details
of the completion process. The "Term Commencement Date" shall be the earlier of
(a) the later of (x) the date specified by Landlord in the notice delivered
pursuant to Section 7.03 or (y) the Substantial Completion Date, (b) any other
date for such commencement determined in accordance with this Article 7, or (c)
the date on which Tenant first occupies the Premises for the Permitted Uses.
In the event that the Term Commencement Date is later than May 31, 1989,
Landlord shall allow a credit against installment of the Tenant's Proportionate
Share of Common Area Charges first coming due under this Lease an amount equal
to the difference of (a) the sums paid by Tenant to its current landlord to
continue occupancy of its present leasehold estate at 10 Technology Drive,
Lowell, Massachusetts beyond said May 31, 1989 as a hold-over tenant at
sufferance, minus (b) the amount which would have been otherwise due for such
holdover period if said current landlord allowed such holdover upon monthly
payments equal to all rent then last payable under its lease or sublease, as the
case may be, for such present leasehold estate; provided, however, Tenant uses
diligent efforts to mitigate against the imposition of any occupancy payments in
excess of such current rent.
7.03. Notice to Commence. Approximately fifteen (15) days prior to the
Substantial Completion Date, Landlord shall furnish Tenant a notice stating the
Term Commencement Date.
7.04. Delays. If Landlord shall be delayed in substantially completing the
work in the Premises as the result of
(a) delay in delivery to Landlord of any plans, design work and detailed
drawing, or
(b) Tenant's requests for Special Work or changes to the Working Drawings
pursuant to Section 8 of the Work Letter (notwithstanding Landlord's
approval of such changes), or
(c) delays in performance by Tenant or any Person employed by Tenant which
shall cause delays in the completion of any work to be done by Landlord or
which shall otherwise delay the substantial completion of the Premises, or
(d) any fault, negligence, omission, or failure to act on the part of
Tenant or its agents, contractors, workmen, mechanics, suppliers or
invitees,
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the Premises shall be deemed to be substantially completed on (and the Term
Commencement Date shall be) the Estimated Term Commencement Date.
7.05. Tenant's Access to the Premises. Tenant and Tenant's agents, at
Tenant's sole risk, may, with Landlord's prior consent, enter the Premises prior
to the Term Commencement Date in order to do such work as may be required to
make the Premises ready for Tenant's use and occupancy thereof. If Landlord
permits such entry prior to the Term Commencement Date, such permission shall
be conditioned upon Tenant and Tenant's agents, contractors, workmen, mechanics,
suppliers and invitees, being reasonably satisfactory to Landlord. If at any
time such entry shall cause or threaten to cause disharmony or otherwise
interfere with the orderly operation of the Building or Landlord's other
projects, Landlord shall have the right to withdraw such approval upon
twenty-four (24) hours written notice to Tenant. Any such entry into and
occupation of the Premises shall be deemed to be under all of the terms,
covenants, conditions and provisions of this Lease except the covenant to pay
Rent. Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's work and installations made in the Premises
or to properties placed therein prior to the Term Commencement Date, the same
being at Tenant's sole risk.
7.06. Alterations and Improvements. Tenant shall not make alterations or
additions to the Premises except in accordance with plans and specifications
therefor first approved by Landlord, which approval, in the case of a
nonstructural alteration not including the roof or the mechanical utility
systems of the Building, shall not be unreasonably withheld and shall be deemed
given if Landlord does not object thereto, by written notice to Tenant, within
fourteen (14) days of written request for such approval accompanied by the plans
and specifications therefor. Tenant shall not hang shades, curtains, signs,
awnings or other materials, attach any materials to or make any change in the
appearance of any glass visible from outside of the Premises, add any window
treatment of any kind or make improvements or install furniture visible from
outside of the Premises, without Landlord's prior written consent. Without
limitation, Landlord shall not be deemed unreasonable for withholding approval
of any alterations or additions which would require unusual expense to readapt
the Premises to normal office use upon termination of this Lease or increase in
the cost of insurance or Taxes. The parties understand and agree that cubicles
and workbenches shall not be deemed alterations subject to approval hereunder.
All alterations and additions shall be part of the Premises unless and until
Landlord shall specify the same for removal in a notice delivered to Tenant on
or before the Lease Termination Date. All of Tenant's alterations and additions
and installation of furnishings shall be coordinated with any work performed by
Landlord and in such a manner as to maintain harmonious labor relations and not
to damage the Building or the Premises or interfere with Building operation and,
except for installation of furnishings, shall be performed by contractors or
workmen first reasonably approved by Landlord. Except for work done by or
through Landlord, Tenant before its work is started shall: secure all licenses
and permits necessary therefor; deliver to
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Landlord a statement of the names of all its contractors and subcontractors and
the estimated cost of all labor and material furnished by them; and cause each
contractor to carry workmen's compensation insurance in statutory amounts
covering all the contractor's and subcontractor's employees and comprehensive
public liability insurance with such limits as Landlord may reasonably require,
but in no event less than $500,000 - $1,000,000, and property damage insurance
with limits of not less than $500,000 (all such insurance to be written in
companies approved by Landlord and insuring Landlord and Tenant as well as the
contractors, and to deliver to Landlord certificates of all such insurance.
Tenant agrees to pay promptly when due the entire cost of any work done in the
Premises by Tenant, its agents, employees, or independent contractors, and not
to cause or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Premises and immediately to discharge any
such liens which may so attach. All construction work done by Tenant, its
agents, employees or manner and in compliance with all Legal Requirements and
Insurance Requirements. Landlord may inspect such work at any time or times and
shall promptly give notice to Tenant of any observed defects.
7.07. Maintenance. Tenant shall, at all times during the Lease Term, and
at its own cost and expense, (i) keep and maintain (or cause to be kept and
maintained) the Premises in good repair and condition (ordinary wear and tear
and damage by fire or other insured casualty only excepted) and (ii) prevent any
waste, damage or injury thereto. Notwithstanding the foregoing, Landlord shall
be responsible for any and all maintenance and repair of the roof and structure
of the Building for the first two Lease Years unless the need for repairs to the
same results, in whole or in part, from the acts and omissions of Tenant, its
contractors, agents, subcontractors, subagents or their respective employees, in
which event Tenant shall be responsible for the portion of the repairs thereof
attributable to it.
7.08. Redelivery. On the Lease Termination Date, Tenant shall quit and
surrender the Premises free and clear of all tenants, occupants, liens, and
encumbrances whatsoever except (i) Permitted Exceptions and (ii) encumbrances,
restrictions or reservations caused by or consented to by Landlord. Tenant
shall, subject to the provisions of Articles 17 and 18 hereof, surrender the
Premises to Landlord broom clean and in good condition and repair (ordinary wear
and tear, damage by fire or other insured casualty only excepted) with all
damages occasioned by Tenant's removal of Tenant's fixtures or equipment
repaired to Landlord's satisfaction.
ARTICLE 8
(Intentionally Deleted]
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ARTICLE 9
Tenant's Particular Covenants
9.01. Pay Rent. Tenant shall pay when due all Basic Rent, Additional Rent,
and all charges for utility services rendered to the Premises not included in
Rent.
9.02. Occupancy of the Premises. Tenant shall occupy the Premises
continuously from the Term Commencement Date for the Permitted use only. Tenant
shall (i) not injure or deface the Premises, (ii) install any sign in or on the
Premises without the prior written approval of Landlord, (iii) permit in the
Premises any inflammable fluids or chemicals not reasonably related to the
Permitted Uses (iv) permit any nuisance or any use thereof which is improper,
offensive, contrary to any Legal Requirement or Insurance Requirement or liable
to render necessary any alteration or addition to the Building; nor (v) permit
any activity on the Land which would require the recording of a notice under
Massachusetts General Laws, Chapter 21C S7.
9.03. Safety. Tenant shall keep the Premises equipped with all safety
appliances required by Legal Requirements or Insurance Requirements because of
any use made by Tenant. Tenant shall procure all Authorizations so required
because of such use and, if requested by Landlord, shall do any work so required
because of such use, it being understood that the foregoing provisions shall not
be construed to broaden in any way the Permitted Uses.
9.04. Rules and Regulations. Tenant shall comply with all Rules and
Regulations, which shall be uniform and generally applicable to all Tenants of
the Building.
9.05. Equipment. Tenant shall not place a load upon the floor of the
Premises exceeding the live load for which the floor has been designed; and
shall not move any safe or other heavy equipment in, about or out of the
Premises except in such manner and at such time as Landlord shall in each
instance authorize.
9.06. Personal Property Taxes. Tenant shall pay promptly when due all
Taxes upon personal property (including, without limitation, fixtures and
equipment) in the Premises to whomsoever assessed.
ARTICLE 10
Requirements of Public Authority
10.01. Legal Requirements. Tenant shall, at its own cost and expense,
promptly observe and comply with all Legal Requirements including, without
limitation, Legal Requirements respecting releases of hazardous substances.
Tenant shall pay all costs, expenses, liabilities, losses, damages, fines,
penalties, claims and demands, that may in any manner arise out of or be imposed
because of the failure of Tenant to comply with the covenants of this Article
10. For the purposes of this Article 10, the terms "hazardous substances" and
"hazardous materials" shall mean the meanings ascribed to the term "hazardous
substance" in the Comprehensive Environmental
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Response Compensation and Liability Act of 1989, 42 U.S.C. 9601, et. seq., as
amended (CERCLA) and those meanings ascribed to the terms "hazardous waste" and
"oil" in the Massachusetts Hazardous Waste Release Prevention and Response Act,
M.G.L.c. 21E, as now or hereafter amended ("Chapter 21E"), and the regulations
now or hereafter adopted pursuant to those Acts.
Landlord shall be held responsible for any damages or liability on account of
the existence on the Premises or the release or discharge on or from the
Premises of hazardous substances to the extent cause by any act, omission,
fault, negligence or misconduct of Landlord, its officers, employees, agents,
contractors and those acting by, through or under Landlord. Tenant shall not be
held responsible for any damages or liability on account of the existence on the
Premises or the release or discharge on or from the Premises of hazardous
substances, which occurred prior to the Commencement Date of the Lease.
10.02 Contests. Tenant shall have the right to contest by appropriate
legal proceedings diligently conducted in good faith, in the name of the Tenant,
or Landlord (if legally required), or both (if legally required), without cost,
expense, liability or damage to Landlord, the validity or application of any
Legal Requirement and, if compliance with any of the terms of any such Legal
Requirement may legally be delayed pending the prosecution of any such
proceeding, Tenant may delay such compliance therewith until the final
determination of such proceeding.
In addition to, and not in limitation of, the provisions of Section 10.01
of the Lease, Tenant shall not (i) generate, store, dispose of, dump, flush or
in any way introduce Hazardous Substances into the septic, sewer and other waste
disposal system serving the Premises, or (ii) generate, store or dispose of such
Hazardous Substances in, on or under the Premises or the Land, except in
accordance with all applicable laws. Tenant shall notify Landlord of any
incident which would require the filing of notice or notification pursuant to
any Legal Requirements as now existing or hereinafter enacted. If, at any time
during the Lease Term, Landlord shall believe that any Hazardous Substances have
been so generated, stored, or disposed of by Tenant, upon demand by Landlord (or
in the event of any such generation, storage or disposal of which Tenant has
knowledge without demand by Landlord), Tenant, at its sole expense, shall cause
a hazardous waste site assessment, so-called, to be made forthwith of the
Premises and the Land (including, without limitation, the subsurfaces of the
same) likely to have been affected by any such generation, storage, disposal or
incident. If such hazardous waste site assessment indicates the existence of
hazardous substances on the surface or in the subsurface soils of any of the
Premises or the Land, Tenant shall thereupon forthwith take all steps necessary
to remove any and all Hazardous Substances and the soils containing same, and
such further steps as shall be necessary to remedy the effects of such Hazardous
Substances.
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Tenant shall make available to Landlord all reports and statements
produced, and information required to be maintained, or obtained by Tenant with
respect to any such Hazardous Substances. Any such site assessment shall be of
an investigatory scope acceptable to Landlord. The obligations of Tenant
hereunder shall survive the termination of this Lease.
ARTICLE 11
Covenant Against Liens
11.01. Mechanics Liens. Landlord's right, title and interest in the
Premises or the Land or the Building shall not be subject to or liable for liens
of mechanics of materialmen for work done on behalf of Tenant in connection with
improvements to the Premises. Notwithstanding such restriction, if because of
any act or omission of Tenant, any mechanic's lien or other lien, charge or
order for payment of money shall be filed against any portion of the Premises or
the Land or the Building, Tenant shall, at its own cost and expense, cause the
same to be discharged or record or bonded within twenty one (21) days after the
filing thereof.
11.02. Right to Discharge. Without otherwise limiting any other remedy of
Landlord for default hereunder, if Tenant shall fail to cause such liens to be
discharged of record of bonded within the aforesaid thirty (30) day period or to
satisfy such liens within thirty (30) days after any judgment in favor of such
lien holders from which no further appeal might be taken then Landlord shall
have the right to cause the same to be discharged. All amounts paid by Landlord
to cause such liens to be discharged shall constitute Additional Rent.
ARTICLE 12
Access to Premises
12.01. Access. Landlord or Landlord's agents and designees shall have the
right, but not the obligation, to enter upon the Premises at all reasonable
times after reasonable notice (except in the case of emergencies) during
ordinary business hours to examine same and to exhibit the Premises to
prospective purchasers and tenants, but in the latter case only during the last
six (6) months of the Lease Term.
ARTICLE 13
Assignment and Subletting:
Occupancy Arrangements
13.01. Subletting and Assignment. Tenant shall not enter into any
Occupancy Arrangement, either voluntary or by operation of law without the prior
written consent of the Landlord which shall be at the Landlord's sole and
absolute discretion, but no such consent by the Landlord shall be deemed to be a
waiver or release of any of the provisions of this Section 13.01 or a consent or
an agreement to
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consent to any such assignment, subletting, or permission to use and occupy
premises thereafter, and none of the foregoing shall release or discharge the
Tenant from any obligations or liabilities set forth in this Lease, which
obligations and liabilities shall continue to be direct and primary in any and
all events.
If Tenant intends to enter into an Occupancy Arrangement, Tenant shall so
notify Landlord in writing, stating the name of (and providing financial
statements for the last five (5) years with respect to) the Person with whom
Tenant intends to enter into such Arrangement, the exact terms of the
Arrangement and a precise description of the portion of the Premises intended to
be subject thereto.
If the Landlord consents to such Occupancy Arrangement, Tenant shall enter
into such Arrangement on the exact terms described to Landlord within thirty
(30) days of Landlord's consent or comply again with the terms of this Section
13.01. If Tenant enters into such an Arrangement, Tenant shall pay to Landlord
when Received the excess, if any, of amounts received in respect of such
Occupancy Arrangement over the Rent.
Notwithstanding the foregoing provisions of this Section 13.01, the
consent of the Landlord shall not be required and such provisions shall not
apply to transactions with an entity into or with which Tenant is merged or
consolidated or to which substantially all of which Tenant's assets are
transferred or to an entity which controls or is controlled by Tenant, or is
under common control with Tenant, provided that in any and all such events (1)
the successor to Tenant has a net worth computed in accordance with generally
accepted accounting principles at least equal to the greater of (a) the net
worth of Tenant immediately prior to such merger, consolidation or transfer or
(b) the net worth of Tenant herein named as of the date of this Lease; and (2)
the assignee agrees directly with Landlord by written instrument in form
satisfactory to Landlord to be bound by all the obligations of Tenant hereunder,
including, without limitation, the covenant against further assignment or
subletting.
If Landlord terminates this Lease, all Rent due shall be adjusted as of
the day the Premises (or portion thereof) are redelivered to Landlord. Any
portion of the Premises so redelivered shall be in the condition specified in
Section 7.07 hereof.
ARTICLE 14
Indemnity
14.01. Tenant's Indemnity. To the fullest extent permitted by law, Tenant
shall indemnify and save harmless Landlord from and against any and all
liability, damage, penalties or judgments (and from and against any claims,
actions, proceedings and expenses and costs in connection therewith, including
reasonable counsel fees arising from injury to person or property) sustained by
any one, in, about, or relating to the Premises or the Building or the Land
resulting from any act or omission of Tenant, or Tenant's officers,
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agents, servants, employees, contractors, sublessees or invitees. It is
expressly agreed that the foregoing indemnity shall include, without limitation,
liability arising out of (i) Legal Requirements respecting hazardous waste or
(ii) electronic or magnetic damage to any electronic equipment. Tenant shall, at
its own cost and expense, defend any and all suits or actions (just or unjust)
brought against Landlord or in which Landlord may be impleaded with others upon
any such above-mentioned matter, claim or claims, except as may result solely
from the acts as set forth in Section 14.02. All merchandise, furniture,
fixtures and property of every kind, nature and description of Tenant or
Tenant's employees, agents, contractors, invitees, visitors or guests which may
be in or upon the Premises, during the Lease Term shall be at the sole risk and
hazard of Tenant, and that if the whole or any part thereof shall be damaged,
destroyed, stolen or removed by reason of any cause or reason whatsoever, other
than the negligence or willful default of Landlord, its contractors, agents,
subcontractors, subagents and their respective employees, no part of said damage
or loss shall be charged to or borne by Landlord.
14.02. Landlord's Liability. Except for its intentional acts or
negligence or the intentional acts or negligence of its officers, agents,
servants, employees or contractors, Landlord shall not be responsible or liable
for any damage or injury to any property, fixtures, buildings or improvements,
or to any person or persons, at any time in the Premises, including any damage
or injury to Tenant or to any of Tenant's officers, agents, servants, employees,
contractors, invitees, customers or sublessees.
ARTICLE 15
Insurance
15.01. Liability Insurance. Tenant shall provide or cause to be provided
at its expense, and keep in force during the Lease Term, general comprehensive
liability insurance in a good and solvent insurance company or companies
licensed to do business in the Commonwealth of Massachusetts, selected by
Tenant, and reasonably satisfactory to Landlord, and in an amount reasonably
required by Landlord but in any event not less than One Million Dollars
($1,000,000.00) with respect to injury or death and Five Hundred Thousand
Dollars ($500,000.00) with respect to damages to property. Such policy or
policies shall include Landlord as an additional insured. Tenant agrees to
deliver certificates of such insurance to Landlord as of the date hereof and
thereafter not less than ten (10) days prior to the expiration of any such
policy. Such insurance shall not be cancellable without ten (10) days written
notice to the Landlord.
15.02. Casualty Insurance. Landlord shall cause the building to be insured
for the benefit of Landlord against loss or damage on an "All Risk" basis in an
amount equal to (i) the replacement value thereof, if insurance in such amount
is available, or (ii) the amount necessary to avoid the effect of co-insurance
provisions of the applicable policies. With respect to the Building, the
replacement value referred to above shall be reasonably determined
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from time to time by Landlord. Such casualty insurance policy or policies shall
designate Landlord as the named insured and loss payee with respect to the
Building and other improvements located on the Premises. Tenant shall maintain
its own casualty insurance with respect to Tenant's personal property and any
leasehold improvements belong to Tenant.
ARTICLE 16
Waiver of Subrogation
16.01. Waiver of Subrogation. All insurance policies carried by either
party covering the Premises, including but not limited to contents, fire and
casualty insurance, shall expressly waive any right on the part of the insurer
to make any claim against the other party. The parties hereto agree that their
policies will include such waiver clause or endorsement.
16.02. Waiver of Rights. Landlord and Tenant each hereby waive all claims,
causes of action and rights or recovery against the other and their respective
partners, agents, officers and employees, for any damage to or destruction of
persons, property or business which shall occur on or about the Premises and
shall result from any of the perils insured under any and all policies of
insurance maintained by Landlord and Tenant, regardless of cause, including the
negligence and intentional wrongdoing of either party and their respective
agents, officers and employees but only to the extent of recovery, if any, under
such policy or policies of insurance; provided, however, that this waiver shall
be null and void to the extent that any such insurance shall be invalidated by
reason of this waiver.
ARTICLE 17
Damage or Destruction
17.01. Substantial Damage. If the building or any part thereof shall be
damaged by fire or other casualty to the extent that substantial alteration or
reconstruction of the Building shall, in Landlord's sole opinion, be required
(whether or not the Premises have been damaged), or if as a result of any
mortgagee of the Building requires that Proceeds payable be used to retire the
mortgage debt, Landlord may, at its option, terminate this Lease by notifying
Tenant in writing of such termination within forty-five (45) days after the date
of such damage. If this Lease is so terminated, Rent shall be abated as of the
date of such damage, and Tenant shall be relieved of all its obligations, both
monetary and otherwise, under this Lease accruing after the date of such damage.
17.02. Restoration. If Landlord does not terminate this Lease pursuant to
Section 17.01, Landlord shall, within fifteen (15) days after receipt by
Landlord of the Proceeds payable in respect of such fire or other casualty,
proceed with reasonable diligence to repair and restore the Building (subject to
Force Majeure) to substantially the same condition in which it was immediately
prior to the occurrence of the casualty to the extent of the Proceeds. Landlord
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shall not be required to rebuild, repair, or replace any part of Tenant's
furniture, furnishings or fixtures or equipment. Landlord shall not be liable
for any inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof, except that,
Landlord shall allow Tenant a fair diminution of Rent during the time and to the
extent the Premises are unfit for occupancy. Notwithstanding any provision of
this Section 17.02 to the contrary, if Landlord shall not have commenced such
repair or restoration within seventy five (75) days following such casualty or
having commenced such repairs or restoration, the Premises are not readied for
occupancy within nine (9) months following such casualty, Tenant shall have the
option to terminate this Lease, exercised by written notice (together with
payment by certified or cashier's check in an amount equal to the unamortized
value of the capital items incorporated into the Tenant's Finishes for Tenant's
particular use of the Premises) within seven (7) days after the expiration of
said nine (9) month period.
ARTICLE 18
Eminent Domain
18.01. Total Taking. If the entire Premises should be the subject of a
Taking, then this Lease shall terminate as of the date when physical possession
of the Building or the Premises is taken by the condemning authority.
18.02. Partial Taking. If there occurs a Partial Taking, Landlord (whether
or not the Premises are affected thereby) may terminate this Lease by giving
written notice thereof to Tenant within sixty (60) days after the right of
election accrues, in which event this Lease shall terminate as of the date when
physical possession of such portion of the Building or Premises is taken by the
condemning authority. If upon any such Partial Taking this Lease is not
terminated, Rent shall be abated by an amount representing that part of the Rent
properly allocable to the portion of the Premises so taken and Landlord shall,
at Landlord's sole expense, restore and reconstruct the Premises to
substantially their former condition to the extent that the same, in Landlord's
judgment may be feasible, but such work shall not exceed the scope of Landlord's
Work and the value of Landlord's Contribution.
18.03. Awards and Proceeds. All Proceeds payable in respect of
a Taking shall be the property of Landlord. Tenant hereby assigns to Landlord
all rights of Tenant in or to such Proceeds, provided that Tenant shall be
entitled to separately petition the condemning authority for a separate award
for its moving expenses and trade fixtures but only if such a separate award
will not diminish the amount of Proceeds payable to Landlord.
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ARTICLE 19
Quiet Enjoyment
19.01. Landlord's Covenant. Provided that an Event of Default has not
occurred and is not then continuing, Tenant shall, subject to the Permitted
Exceptions, quietly have and enjoy the Premises during the Lease Term, without
hindrance or molestation from any Person lawfully claiming by, through or under
Landlord.
19.02 Subordination. This Lease is subject and subordinate to any mortgage
now on the Building, and shall be, at the mortgagee's election, subject and
subordinate to any mortgage hereafter on the building and to each advance made
or hereafter to be made under any mortgage, and to all renewals, modifications,
consolidations, replacements and extensions thereof and all substitutions
therefor; provided, however, such mortgagee shall not disturb Tenant's
possession hereunder so long as there exists no Event of Default by Tenant,
mortgagee shall execute a non-disturbance and attornment agreement in favor of
Tenant. This Section 19.02 shall be self-operative and no further instrument of
subordination shall be required, but if such subordination is in writing, then
such mortgagee shall execute a non-disturbance and attornment agreement in favor
of Tenant. In confirmation of such subordination, Tenant shall execute and
deliver promptly any certificate that Landlord or any mortgagee may request.
Tenant hereby irrevocably appoints Landlord as attorney-in-fact for Tenant (such
appointment being coupled with an interest) with full power and authority to
execute and deliver in the name and on behalf of Tenant any such certificate
which Tenant fails so to execute and deliver within ten (10) days after written
request by Landlord or such mortgage.
19.03. Notice to Mortgagee. No act or failure to act on the part of
Landlord which would entitle Tenant under the terms of this Lease, or by law, to
be relieved of Tenant's obligations hereunder or to terminate this Lease, shall
result in a release or termination of such obligations or a termination of this
Lease unless (i) Tenant shall have first given written notice of Landlord's act
or failure to act to all Landlord's mortgagees of which Tenant has been given
notice (from either Landlord or such mortgagee), if any, specifying the act or
failure to act on the part of Landlord which could or would give basis to
Tenant's rights; and (ii) such mortgagees, after receipt of such notice, have
failed or refused to correct or cure the condition complained of within a
reasonable time thereafter; but nothing contained in this Section 19.03 shall be
deemed to impose any obligation on any such mortgagees to correct or cure any
such condition. "Reasonable time" as used above shall mean a period of not less
than thirty (30) Business Days and shall include (but not be limited to) a
reasonable time to obtain possession of the Building if the mortgagee elects to
do so and a reasonable time to correct or cure the condition if such condition
is determined to exist.
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19.04. Other Provisions Regarding Mortgagees. If this Lease or the Rent
due hereunder is assigned to a mortgagee as collateral security for a loan, no
such mortgagee shall be deemed to have assumed any of Landlord's obligations
hereunder solely as a result of said assignment. A mortgage to whom this Lease
has been so assigned shall be deemed to have assumed such obligations only if
(i) by the terms of the instrument of assignment such mortgagee specifically
elects to assume such obligations or (ii) such mortgagee has (a) foreclosed its
mortgage (b) accepted a deed in lieu thereof, or (c) taken possession of the
Premises by entry or otherwise. Even if such mortgagee so assumes the
obligations of Landlord hereunder, (i) any such obligation under Section 24.01
to return the Security Deposit to the Tenant shall be limited to the amount
actually received by the mortgagee with respect thereto, and (ii) such mortgagee
will be liable for breaches of any of Landlord's obligations hereunder only to
the extent such breaches occur during the period of ownership by the mortgagee
after foreclosure (or any conveyance by a deed in lieu thereof), all as set
forth in Section 25.10 hereof.
ARTICLE 20
Defaults; Events of Default
20.01. Defaults. The following shall, if any requirement for notice of
lapse of time or both has not been met, constitute Defaults, and, if such
conditions have been met, constitute Events of Default hereunder:
(1) The occurrence of any event set forth in Article 21 hereof;
(2) The failure of Tenant to pay Rent when the same shall be due and
payable and the continuance of such failure for a period of ten (10) days
thereafter;
(3) The failure of Tenant to observe any covenant made by it in Sections
13.01, 15.01, 15.02, 19.02 or 25.03 hereof; and
(4) The failure-of Tenant to keep, observe or perform any of the other
covenants, conditions and agreements herein contained on Tenant's part to
be kept, observed or performed and the continuance of such failure without
the curing of same for a period of thirty (30) days after receipt by
Tenant of a notice in writing from Landlord specifying the nature of such
failure (or if such Default is of a nonmonetary nature and is not
reasonably susceptible of cure within such thirty (30) days, cure thereof
is commenced within said 30 day period and thereafter diligently
prosecuted).
20.02. Elimination of Default. Notwithstanding anything to the contrary
contained in this Article 20, in the event that any Default(s) of Tenant shall
be cured in any manner hereinabove provided, such Default(s) shall be deemed
never to have occurred and Tenant's rights hereunder shall continue unaffected
by such Default(s).
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ARTICLE 21
Insolvency
21.01. Insolvency. If (1) there occurs with respect to Tenant an
Insolvency or (2) any execution or attachment is issued against Tenant or any of
its property and as a result thereof the Premises are taken or occupied by some
Person other than the Tenant, except as may herein be permitted, then an Event
of Default hereunder shall be deemed to have occurred so that the provisions of
Article 22 hereof shall become effective and Landlord shall have the rights and
remedies provided for therein.
ARTICLE 22
Landlord's Remedies; Damages on Default
22.01. Landlord's Remedies. If an Event of Default shall occur and be
continuing, Landlord may, at its option, give to Tenant a notice terminating
this Lease upon a date specified in such notice, which date shall be not less
than three (3) Business Days after the date of receipt by Tenant of such notice
from Landlord, and upon the date specified in said notice, the term and estate
hereby vested in Tenant shall cease and any and all other right, title and
interest of Tenant hereunder shall likewise cease without further notice or
lapse of time, as fully and with like effect as if the entire Lease Term had
elapsed, Tenant in such event waiving all statutory rights of redemption, but
Tenant shall continue to be liable to Landlord as hereinafter provided.
22.02. Surrender. Upon any termination of this Lease as the result of an
Event of Default, Tenant shall quit and peacefully surrender the Premises to
Landlord, upon or at any time after any such termination, may without further
notice, enter the Premises and possess itself thereof by summary proceedings or
otherwise, and may dispossess Tenant and remove Tenant and all other Persons and
property from the Premises and may have, hold and enjoy the Premises and the
right to receive all rental income of and from the same.
22.03. Right to Relet. At any time or from time to time after any such
termination, Landlord may relet the Premises or any part thereof, in the name of
Landlord or otherwise, for such term or terms (which may be greater or less than
the period which would otherwise have constituted the balance of the Lease Term)
and on such conditions (which may include concessions or free rent) as Landlord,
in its reasonable discretion, may determine and may collect and receive the
rents therefor. Landlord shall in no way be responsible or liable for any
failure to relet the Premises or any part thereof, or for any failure to collect
any rent due upon any such reletting.
22.04. Survival of Covenants. No such termination of this Lease shall
relieve Tenant of its liability and obligations under this Lease and such
liability and obligations shall survive any such termination. Tenant shall
indemnify and hold Landlord harmless from all loss, cost, expense, damage or
liability arising out or in connection with such termination.
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22.05. Damages. In the event of any such termination, Tenant shall pay to
the Landlord the Rent up to the date of such termination. Tenant at the election
of the Landlord (which election may be made or changed at any time or from time
to time), either (a) pay as liquidated damages for so much of the unexpired term
as is covered thereby, and at the same time and in the same installments as are
specified in the Lease, sums equal to the excess to the Rent over the net sums
actually received by the Landlord for the period to which the Rent relates, or
(b) pay as liquidated damages for the the then unexpired Term, the difference
between
(1) the aggregate Rent which would have been payable under this Lease by
Tenant from the date of such termination until the Stated Expiration Date,
less
(2) the fair and reasonable rental value of the Premises for the same
period all of Landlords reasonable estimate of expenses to be incurred in
connection with reletting the Premises, including, without limitation, all
repossession costs, brokerage commissions, legal expenses, reasonable
attorneys' fees, alteration costs, and expenses of preparation for such
reletting, or (c), indemnify the Landlord against loss of the Rent at the
time of such termination or from the time to which installments of
liquidated damages shall have been paid during the residue of the Term -
each of the foregoing alternatives being separable.
If the Premises or any part thereof are relet by the Landlord before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be, prima facie,
the fair and reasonable rental value for the part or the whole of the Premises
so relet during the term of the reletting.
In lieu of any other damages and in lieu of full recovery by Landlord of
all sums payable under all the foregoing provisions of this Section 22.05
Landlord may by notice to Tenant, at any time after this Lease is terminated
under any of the provisions contained in Section 22.01 or is otherwise
terminated for breach of any obligation of Tenant and before such full recovery,
elect to recover, and Tenant shall thereupon pay, as liquidated damages, an
amount equal to the aggregate of the Basic Rent and Additional Rent accrued in
the 18 months ended next prior to such termination plus the amount of Rent of
any kind accrued and unpaid at the time of termination and less the amount of
any recovery by Landlord under the foregoing provisions of this Section 22.05 up
to the time of election by Landlord.
Nothing herein contained shall limit or prejudice the right of the
Landlord to prove and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
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22. 06. Right to Equitable Relief. If there shall occur a Default or
threatened Default, Landlord shall be entitled to enjoin such Default or
threatened Default and shall have the right to invoke any right and remedy
allowed at law or in equity or by statute or otherwise as though re-entry,
summary proceedings and other remedies were not provided for in this Lease.
22.07. Right to Self Help. If an Event of Default shall occur and be
continuing, Landlord shall have the right, but shall not be obligated to enter
upon the Premises and "to perform such obligation notwithstanding the fact that
no specific provision for such substituted performance by Landlord is made in
this Lease with respect to such Default. In performing such obligation, Landlord
may make any payment of money or perform any other act. The aggregate of (i) all
sums so paid by Landlord (ii) interest (at the rate of 1-1/2% per month or the
highest rate permitted by law, whichever is less) on such sum plus all Rent not
paid when due and (iii) all necessary incidental costs and expenses in
connection with the performance of any such act by Landlord, shall be deemed to
be Rent under this Lease and shall be payable to Landlord immediately upon
demand. Landlord may exercise the foregoing rights without waiving any other of
its rights or releasing Tenant from any of its obligations under this Lease.
22.08. Further Remedies. Upon any termination of this Lease pursuant to
Section 22.01, or at any time thereafter, Landlord may, in addition to and
without prejudice to any other rights and remedies Landlord shall have at law or
in equity, re-enter the Premises, and recover possession thereof and may
dispossess any or all occupants of the Premises in the manner prescribed by the
statute relating to summary proceedings, or similar statutes; but Tenant in such
case shall remain liable to Landlord as hereinbefore provided. Any and all
rights and remedies which Landlord may have under this Lease, and at law and in
equity, shall be cumulative and shall not be deemed inconsistent with each
other, and any two or more of such rights and remedies may be exercised at the
same time in so far as permitted by law.
22.09. If Tenant shall fail to pay any Rent when the same is due (or with
respect to the Basic Rent, within ten (10) days after the same is due), Tenant
shall be obligated to pay a late payment charge equal to the greater of (a)
$100.00 or (b) ten percent (10%) of the Rent payment not so paid when due to
reimburse Landlord for its additional administrative costs. In addition to any
late payment charge which might otherwise be due, any Rent under this Lease
which is not paid when due shall bear interest at the Default Rate from the
first day due until such Rent plus all interest accrued thereon is paid in full.
ARTICLE 23
Waivers
23.01. No Waivers. Failure of Landlord to complain of any act
or omission on the part of Tenant no matter how long the same may continue,
shall not be deemed to be a waiver by said Landlord of any
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of its rights hereunder. No waiver by Landlord at any time, expressed or
implied, of any breach of any provision of this Lease shall be deemed a waiver
of a breach of any other provision of this Lease or a consent to any subsequent
breach of the same or any other provision. No acceptance by Landlord of any
partial payment shall constitute an accord or satisfaction but shall only be
deemed a partial payment on account.
ARTICLE 24
Security Deposit
24.01. Security Deposit. Tenant has deposited the Security Deposit with
Landlord. Landlord shall hold the Security Deposit as security for the full and
faithful payment or performance by Tenant of its obligations under this Lease
and not as a prepayment of Rent. Landlord may commingle the Security Deposit
with other funds of Landlord but shall not be liable to Tenant for the payment
of interest thereon or profits therefrom. (Notwithstanding the provisions of the
foregoing sentence to the contrary, Landlord shall, unless otherwise required by
its mortgagee or the Lessor pursuant to a sale and lease-back, deposit the
Security Deposit in an interest-bearing account and the interest thereon shall,
so long as there shall exist no Event of Default and provided Tenant provides
Landlord with all necessary tax reporting information, be payable to Tenant).
Landlord may expend such amounts from the Security Deposit (and such accured
interest) as may be necessary to cure any Default including, without limitation
a failure to pay utility charges and, in such case, Tenant shall pay to Landlord
the amount so expended, on demand. Landlord may assign the Security Deposit to
any subsequent owner of the Building and thereafter Landlord shall have no
further liability to Tenant with respect thereto. As soon as reasonably
practicable after the Lease Termination Date, Landlord shall (i) inspect the
Premises, (ii) make such payments from the Security Deposit as may be required
to cure any outstanding Events of Default hereunder and (iii) if there is then
no Default (or no event which with the passage of tine in the giving of notice
would constitute a default) is then continuing, pay the balance of the Security
Deposit (together with any then accured but unpaid interest thereon) to Tenant.
ARTICLE 25
General Provisions
25.01. Force Majeure. In the event that Landlord or Tenant shall be
delayed, hindered in or prevented from the performance of any act required
hereunder by reason of Force Majeure, then performance of such act shall be
excused for the period of the delay and the period for the performance of any
such act shall be extend for a period equivalent to the period of such delay.
25.02. Notices and Commissions. All notices, demands, requests and other
communications provided for or permitted under this Lease shall be in writing,
either delivered by hand or sent by first-class mail, postage prepaid, to the
following addresses:
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(a) if to Landlord at the address stated in Section 1.01 hereof, or at
such other address as the Landlord shall have designated in writing to the
Tenant, with a copy to Gadsby & Hannah, one Post Office Square, Boston,
Massachusetts, 02109, attention: David C. Johnson, Esq., and to such
Persons as Landlord shall have designated in writing to Tenant, or
(b) if to Tenant at the address stated in Section 1.01 hereof, or at such
other address as the Tenant shall have designated in writing to the
Landlord, with a copy to such Persons as Tenant shall have designated in
writing to Landlord, and in the case of a Notice of Default, with a copy
to Richard S. Morse, Jr., P.C., Hutchins & Wheeler, 101 Federal Street,
Boston, MA 02110.
Any notice provided for herein shall become effective only upon and at the
time of receipt by the Person to whom it is given, unless such notice is mailed
first class registered or certified mail, in which case it shall be deemed to be
received on (i) the third Business Day following the mailing thereof or (ii) the
day of its receipt, if a Business Day, or the next succeeding Business Day,
whichever of (i) or (ii) shall be the earlier.
25.03. Certificates, Estoppel Letter. Either party shall, without charge,
at any time and from time to time hereafter, within ten (10) days after written
request of the other, certify by written instrument duly executed and
acknowledged to any mortgagee or purchaser, or proposed mortgagee or proposed
purchaser, or any other Person specified in such request: (a) as to whether this
Lease has been supplemented or amended, and if so, the substance and manner of
such supplement or amendment, (b) as to the validity and force and effect of
this Lease, in accordance with its tenor as then constituted, (c) as to the
existence of any Default or Event of Default, (d) as to the existence of any
offsets, counterclaims or defenses thereto on the part of such other party, (e)
as to the Term Commencement Date and Stated Expiration Date, and (f) as to any
other matters as may reasonably be so requested. Any such certificate may be
relied upon by the party requesting it and any other Person to whom the same may
be exhibited or delivered, and the contents of such certificate shall be binding
on the party executing same.
Tenant hereby irrevocably appoints Landlord as attorney-in-fact for Tenant
(such appointment being coupled with an interest) with full power and authority
to execute and deliver in the name and on behalf of the Tenant on any such
certificate which Tenant fails to execute within ten (10) days after written
request therefor.
25.04. Renewal. If this Lease is renewed or extended, the provisions of
Sections 7.01, 7.02, 7.03, 7.04, and 7.05 of Article hereof shall not apply.
25.05. Holding Over. If Tenant occupies the Premises after the Lease
Termination Date without having entered into a new lease of the Premises with
the Landlord, Tenant shall be a tenant-at-sufferance only subject to all of the
terms and provisions of this Lease at twice the then effective Basic Rent. Such
a holding over, even if
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with the consent of the Landlord, shall not constitute an extension or renewal
of this Lease. Tenant hereby irrevocably appoints Landlord as attorney-in-fact
for Tenant (such appointment being coupled with an interest) with full power and
authority to execute and deliver in the name and on behalf of the Tenant on any
such certificate which Tenant fails to execute within ten (10) days after
written request therefor.
25.06. Governing Law. This Lease and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the Commonwealth
of Massachusetts.
25.07. Partial Invalidity. If any term, covenant, condition or provision
of this Lease or the application thereof to any person or circumstance shall, at
any time or to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant, condition and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
25.08. Notice of Lease. Tenant shall not record this (or a copy of this)
lease. In the event that the Term is for seven (7) years or more, the parties
will at any time, at the request of either one, promptly execute duplicate
originals of an instrument, in recordable form, which will constitute a Notice
of Lease, setting forth a description of the Premises, the Lease Term and other
portions thereof, excepting the rental provisions, as either party may
reasonably request.
25.09. Interpretation. The section headings used herein are for reference
and convenience only, and shall not enter into the interpretation hereof. This
lease may be executed in several counterparts, each of which shall be an
original, but all of which shall constitute one and the same instrument. The
term "Landlord" whenever used herein, shall mean only the owner at the time of
Landlord's interest herein, and upon any sale or assignment (other than as
collateral security for a loan) of the interest of Landlord herein, its
respective successors in interest and/or assigns shall, during the term of
ownership of its respective estates herein, be deemed to be Landlord and the
liability of Landlord, if any, hereunder shall in any event be limited to the
Landlord's interest in the Building.
25.10. Entire Agreement. No oral statement or prior written matter shall
have any force or effect. This Agreement shall not be modified or cancelled
except by writing subscribed to by all parties.
25.11. Parties. Except as herein otherwise expressly provided, the
covenants, conditions and agreements contained in this Lease shall be binding
upon the heirs, successors and assigns of the parties hereto.
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<PAGE> 25
25.12. Brokerage. Tenant represents and warrants that it has dealt with no
broker in connection with this lease transaction other than Coldwell Banker,
broker, and George L. Guaraldi, broker, and agrees to defend, with counsel
approved by Landlord, indemnify and save Landlord harmless from and against any
and all cost, expense or liability for any compensation, commissions or charges
claimed by any broker or agent, other than Coldwell Banker, broker, and George
L. Guaraldi, broker, (it being the parties intent that the commissions, payable
to said Coldwell Banker and George L. Guaraldi shall be the responsibility of
Landlord), with respect to Tenant's dealings in connection with this lease.
25.13. Non Recourse. By the execution and delivery hereof, Tenant hereby
covenants and agrees that, in the event of any claim against Landlord, Tenant
shall look solely to Landlord's interest in the Premises and that no trustee,
beneficiary, partner, director or officer of Landlord or such beneficiary shall
have any personal liability hereunder. In the event that the Landlord's estate
and property in the Premises is sold or transferred, Tenant shall be given
written notice thereof, the seller or transferror thereof shall thereupon be
relieved of all obligations and liabilities hereunder thereafter arising or
occurring, and the purchaser or transferee thereof shall thereupon be deemed to
assume and to have agreed to perform and observe all obligations and liabilities
hereunder thereafter arising or occurring or based on occurrences or situations
thereafter arising or occurring.
25.14. No Offer. The submission of a draft of this Lease or a summary of
some or all of its provisions does not constitute an offer to lease or demise
the Premises, it being understood and agreed that neither Landlord or Tenant
shall be legally bound with respect to the leasing of the Premises unless and
until this Lease has been executed by both Landlord and Tenant and a fully
executed copy delivered.
25.15. General Provisions. For all purposes of this Lease unless otherwise
expressed and provided herein or therein or unless the context otherwise
requires:
(a) The words herein, hereof, hereunder and other words of similar import
refer to this Lease as a whole and not to any particular article, section
or other subdivision of this Lease.
(b) A pronoun in one gender includes and applies to the other genders as
well.
(c) Each definition stated in Section 1.01 or 25.16 of this Lease applies
equally to the singular and the plural forms of the term or expression
defined.
(d) Any reference to a document defined in Section 25.16 of this Lease is
to such document as originally executed, or, if modified, amended or
supplemented in accordance with the provisions of this Lease, to such
document as so modified, amended or supplemented and in effect at the
relevant time of reference thereto.
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<PAGE> 26
(e) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles.
(f) All references in Section 1.01 hereof are subject to the specific
definitions thereof (if any) in Section 25.16 hereof.
25.16. Terms Defined. Each term or expression set forth above in Section
1.01 hereof or below in this Section 25.16 has the meaning stated immediately
after it.
Additional Rent. All sums and other charges (other than Basic Rent)
due from Tenant to Landlord or incurred by Landlord as the result of a
Default.
Authorizations. All franchises, licenses, permits and other
governmental consents issued by Governmental Authorities pursuant to Legal
Requirements which are or may be required for the use and occupancy of the
Premises and the conduct or continuation of a Permitted Use therein.
Building. The Building located on the Land.
Business Day. A day which is not a Saturday, Sunday or other day on
which banks in Boston, Massachusetts, are authorized or required by law or
executive order to remain closed.
Calendar Year. The First Calendar Year, the Last Calendar Year and
any full calendar year (January 1 through December 31) occurring during
the Lease Term.
C.P.I.. "Consumer Price Index - All Urban Consumers (CPI-U) - U.S.
City Average - All Items (1967=100)" as published by the U.S. Department
of Labor, or if such index is discontinued, a comparable successor index.
Common Areas. All areas devoted to the common use of the occupants
of the Building, including without limitation all corridors, foyers,
stairwells and stairs outside the Premises, common rest rooms, common
mechanical rooms, airshafts, parking areas, driveways, walkways, and
landscaped areas.
Corporation. A corporation, company, association, business trust or
similar organization wherever formed.
Default. Any event or condition specified in Article 20 hereof so
long as any applicable requirement of the giving of notice of lapse of
time or both have not been fulfilled.
Default Rate. An annual rate of interest equal to the lesser of (a)
an annual rate which shall be four (4) percent points above the then
current Base Rate, so called, being charged by the First National Bank of
Boston or (b) the maximum rate permissible from time to time under
applicable law.
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<PAGE> 27
Event of Default. Any event or condition specified in (a) Article 20
hereof (if all applicable periods for the giving of notice or lapse of time or
both have been fulfilled) or (b) in Article 21 hereof.
First Calendar Year. The partial Calendar Year period commencing on the
Term Commencement Date and ending on the next succeeding December 31.
Force Majeure. Acts of God, strikes, lock outs, labor troubles, inability
to procure materials, failure of power, restrictive Legal Requirements, riots
and insurrection, acts of the public enemy, wars, earthquakes, hurricanes and
other natural disasters, fires, explosions, any act, failure to act or Default
of the other party to this Lease or any other reason reasonably beyond the
control of any party to this Lease; provided however, lack of money shall not be
deemed such a cause.
Governmental Authority. United States of America, the Commonwealth of
Massachusetts, the Town of Tyngsborough, County of Middlesex, and any political
subdivision thereof and any instrumentality of any of them.
Insolvency. The occurrence with respect to any Person of one or more of
the following events: the death, dissolution, termination of existence (other
than by merger or consolidation), insolvency, appointment of a receiver for all
or substantially all of the property of such person, the making of a fraudulent
conveyance or the execution of an assignment or trust mortgage for the benefit
of creditors by such Person, or the filing of a petition of bankruptcy or the
commencement of any proceedings by or against such Person under a bankruptcy,
insolvency or other law relating to the relief or the adjustment of
indebtedness, rehabilitation or reorganization of debtors; provided that if such
petition or commencement is involuntarily made against such a Person and is
dismissed within sixty (60) days of the date of such filing or commencement,
such events shall not constitute an insolvency hereunder.
Insurance Requirements. All terms of any policy of insurance maintained by
Landlord or Tenant and applicable to (or affecting any condition, operation, use
or occupancy of) the Building or the Premises or any part or parts of either and
all requirements of the issuer of any such policy and all orders, rules,
regulations and other requirements of the National Board of Fire Underwriters
(or any other body exercising similar functions).
Land. The Land, in the Town of Tyngsborough, County of Middlesex,
Commonwealth of Massachusetts, known as Lot 4, 300 Potash Hill Road, as
described on Exhibit A.
Landlord. As defined in the preamble hereof.
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<PAGE> 28
Last Calendar Year. The partial Calendar Year commencing on January 1 of
the Calendar Year in which the Lease Termination Date occurs of the Lease Term
and ending on the Lease Termination Date.
Lease Term. The period commencing on the Term Commencement Date and ending
on the Lease Termination Date.
Lease Termination Date. The earlier to occur of (1) the Stated Expiration
Date, (2) the termination of this Lease as the result of an Event of Default,
(3) the termination of this Lease pursuant to Articles 17 (Damage or
Destruction) or 18 (Eminent Domain) hereof.
Lease Year. A period commencing on the Term Commencement Date (or an
anniversary thereof) and ending on the Day before the next succeeding
anniversary thereof. For example, the first Lease Year is a period commencing on
the Term Commencement Date and ending on the day before the first anniversary
thereof. The last Lease Year shall end on the Lease Termination Date.
Legal Requirements. All statutes, codes, ordinances (and all rules and
regulations thereunder), all executive orders and other administrative orders,
judgments, decrees, injunctions and other judicial orders of or by any
Governmental Authority which may at any time be applicable to parts or
appurtenances of the Premises or Building or to any condition or use thereof and
the provisions of all Authorizations.
Occupancy Arrangement. With respect to the Premises or any portion thereof
or the Lease, and whether (a) written or unwritten or (b) for all or any portion
of the Lease Term, an assignment, a sublease, any tenancy at will, a tenancy at
sufferance, or any other arrangement (including but not limited to a license or
concession) pursuant to which a Person occupies the Premises for any purpose.
Outside completion Date. August 1, 1989.
Park. The subdivision of which the Land is a part comprising Lots 2
through 17 on the plan referred to in Exhibit A.
Partial Taking. Any Taking which is not a Total Taking.
Permitted Exceptions. Any liens or encumbrances on the Premises in the
nature of (a) liens for Taxes assessed but not yet due and payable, (b)
easements, reservations, restrictions and rights of way encumbering or affecting
the Land on the date of this Lease, (c) the rights of Landlord, Tenant and any
other Persons to whom Landlord has granted such rights to exercise in common
with respect to the Land and the Common Areas the rights granted to Tenant
hereunder, (d) mortgages or record, and (e) Title Conditions.
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<PAGE> 29
Person. An individual, a Corporation, a company, a voluntary association,
a partnership, a trust, an unincorporated organization or a government or any
agency, instrumentality or political subdivision thereof.
Premises. The portion of the Building referenced in Section 1.01 and shown
on Exhibit B hereto together with the right in common with the others entitled
thereto, to use the Common Areas.
Proceeds. With respect to any Taking or occurrence described in Article
17 hereof, with respect to which any Person is obligated to pay any amount to or
for the account of Landlord, the aggregate of (i) all sums payable or receivable
under or in respect of any insurance policy, and (ii) all sums or awards payable
in respect to a Taking.
Prohibited Occupancy Arrangement. An Occupancy Arrangement which provides
for any rent or other payment based in whole or in part on the net income or
profits derived by any person from the Premises.
Rent. Basic Rent and all Additional Rent.
Rentable Area of the Premises. The number of square feet stated in Section
1.01, whether the internal area of the Premises (together with a proportionate
share of the Building's Common Areas) should be more or less as a result of
minor variations resulting from actual construction and completion of the
Building or Premises so long as such work is done in accordance with the terms
and provisions hereof.
Rules and Regulations. The rules and regulations promulgated from time to
time by Landlord and uniformly applicable to Persons occupying space in the
Building, regulating the details of the operation and use of the Building.
Stated Expiration Date. The last day of the last Lease Year of the Term
stated in Section 1.01.
Substantial Completion Date. The date on which the Premises, together with
the appurtenant areas of the Building necessary for access and service thereto
have been completed in accordance with Article 7 hereof, as conclusively
established by the issuance of a certificate of occupancy therefor, except for
items of work and adjustment of equipment and fixtures which are not necessary
to make the premises reasonably tenantable for the Permitted Uses and because of
season or weather or nature of the item cannot practicably be done at the time.
Taking. The taking or condemnation of title to all or any part of the Land
or the possession or use of the Building by a competent person for any public
use or purpose or any proceeding or negotiations which might result in such a
taking or any sale or lease in lieu of or in anticipation of such a taking.
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<PAGE> 30
Taxes. All taxes, special or general assessments, water rents, rates and
charges, sewer rents and other impositions and charges imposed by Governmental
Authorities of every kind and nature whatsoever, extraordinary as well as
ordinary and each and every installment thereof which shall or may during the
term of this Lease be charged, levied, laid, assessed, imposed, become due and
payable or become liens upon or for or with respect to the Park, Land or any
part thereof or on this Lease under or by virtue of all present or future Legal
Requirements and any tax based on a percentage fraction or capitalized value of
this Rent (whether in lieu of or in addition to the taxes hereinbefore
described). Taxes shall not include inheritance, estate, excise, succession,
transfer, gift, franchise, income, gross receipt, or profit taxes except to the
extent such are in lieu of or in substitution for Taxes as now imposed on the
Building, the Land, the Premises or this Lease or to linkeage payments,
so-called, made in connection with the permits and approvals issued for the base
Building.
Tenant. As defined in the preamble hereof.
Tenant's Proportionate Share. 36.82% with respect to the Building and Land
and 23.4% with respect to Park Areas (which 23.4% should be reduced
proportionately upon the construction or occupancy of additional buildings in
the Park).
Term Commencement Date. As defined in Article 7.
Title Conditions. All covenants, agreements, restrictions, easements and
declarations of record on the date hereof so far as the same may be from time to
time in force and applicable.
Total Taking. (i) a Taking of: (a) the fee interest in all or
substantially all of the Building or (b) such title to or easement in, over,
under or such rights to occupy and use any part or parts of the Building to the
exclusion of Landlord as shall have the effect, in the good faith judgment of
the Landlord, of rendering the portion of the Building remaining after such
Taking (even if restoration were made) unsuitable for the continued use and
occupancy of the Building for the Permitted Uses of (ii) a Taking of all or
substantially all of the Premises or such title to or easement in, on or over
the Premises to the exclusion of Tenant which prohibits access to the Premises
(without alternative access being reasonably available) or the exercise by
Tenant of any rights under this Lease.
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<PAGE> 31
Executed as a sealed instrument as of the 24th day of February, 1989.
(Landlord)
Vesper Properties 1 Trust
[SIG]
-----------------------------------------------
As trustee of aforesaid, but not individually
[SIG]
-----------------------------------------------
As trustee of aforesaid, but not individually
(Tenant)
LaserData Inc.
By: [SIG]
---------------------------
Title
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<PAGE> 32
Exhibits
Exhibit A - Land
Exhibit B - Premises
Exhibit C1 - Building Standard Tenant Improvements
Exhibit C2 - Modular Partitioning Specifications
Exhibit D - Floor Plan
Exhibit E - Work Letter
Exhibit F - Minimum Tenant Plan Requirements
Exhibit G - (Intentionally Deleted)
Exhibit H - (Intentionally Deleted)
Exhibit I - Calculation of First Month's Rent
Exhibit J - Attornment Letter
Exhibit K - Building and Park Regulations
Exhibit L - Acceptance of Occupancy of Space
Exhibit M - Punch List Acceptance
Exhibit N - New Customer Letter to Colonial Gas
Exhibit 0 - New Customer Letter to Massachusetts Electric
Exhibit P - New Customer Letter to Tyngsborough Water District
<PAGE> 33
Exhibit A
Legal Description of Land
[GRAPH]
<PAGE> 34
[GRAPH]
<PAGE> 35
[GRAPH]
VESPER EXECUTIVE PARK
<PAGE> 36
AMENDMENT TO LEASE
AMENDMENT 1
Reference is hereby made to the Lease made at Boston, Massachusetts, by
and between Francis D. Burke, Paul E. Guaraldi and Neil Mac Donald as trustees
of Vesper Properties 1 Trust under declaration of trust dated January 8, 1986
and recorded with Middlesex North District Registry of deeds in Book 3315, Page
65, having a principal place of business c/o Vesper Properties Inc., Suite 3620,
One Post Office Square, Boston, Massachusetts 02109 ("Landlord") and LaserData
Inc., a Delaware corporation, having a principal place of business at 300 Vesper
Executive Park, Tyngsborough, Massachusetts 01849 ("Tenant") dated the 24th of
February 1989.
Tenant and Landlord hereby agree that:
1. Tenant has continued as Tenant pursuant to the terms of the Lease
and is not currently in a state of default thereunder.
2. That notwithstanding any provisions therein contained that:
a. The term of the Lease shall be from the date of execution
herein until August 31, 1994.
b. That beginning September 1, 1991 that the Rentable square
footage shall be 37,677 square feet as shown in Exhibit
Amendment 1-A herein attached. The Tenant's Proportionate
Share shall be 63.35%
C. That the Basic Rent beginning September 1, 1991 shall be as
follows:
First Lease Year $295,764.45
Second Lease Year $295,764.45
Third Lease Year $295,764.45
d. That this amendment to the Lease shall replace and void any
option to extend contained in Section 3.03 of the Lease.
1
<PAGE> 37
e. That payment of fees referenced in Section 3.03 for failure
not to extend by Tenant to Landlord pursuant to the terms of
the additional shall be null and void.
f. That payment of any residual value for non-standard fitup as
referred to in the original Lease in Section 3.04 shall be
waived by Landlord if Tenant completes the Term of the Lease
as extended by this Amendment without default. In such event
title to the fitup referenced in section 3.04 of the Lease
shall become property of the Tenant at the completion of this
Lease as amended herein.
g. That Tenant shall have the sole responsibility for and bear
the cost of demising and fitting any additional space occupied
by the Tenant under the terms of this Lease Amendment.
Landlord furnishes additional space as is and Tenant assumes
responsibility for additional fitup required to obtain
occupancy therein.
h. That all other terms of the Lease shall remain in full force
and effect.
Agreed on this 11th day of September, 1991.
Landlord: Tenant:
Vesper Properties 1 Trust LaserData
[SIG]
----------------------------- -------------------------------
Francis D. Burke, Trustee Vice President
[SIG]
-----------------------------
Paul E. Guaraldi, Trustee
2
<PAGE> 38
AMENDMENT NO. 2 TO LEASE
Reference is made to that certain Lease dated February 24, 1989 by and
between Francis D. Burke, Paul E. Guaraldi and Thomas J. Flood, Trustees of
Vesper Properties 1 Trust under Declaration of Trust dated January 8, 1986,
recorded with Middlesex North District Registry of Deeds in Book 3315, Page 65,
having a principal place of business c/o Vesper Properties, Inc., Suite 3620,
One Post Office Square, Boston, Massachusetts 02109 (the "Landlord") and
LaserData Inc., a Delaware corporation with a principal place of business at 300
Vesper Executive Park, Tyngsborough, Massachusetts 01849 (the "Tenant").
WHEREAS Landlord and Tenant amended the above-referenced lease by
Amendment 1 dated September 11, 1991 (the lease, as amended by Amendment 1, is
hereinafter collectively referred to as the "Lease");
WHEREAS, Landlord and Tenant desire to extend the Term of the Lease under
the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree to amend
the Lease as follows:
1. The Term of the Lease is hereby extended for three (3) Lease Years,
which extension shall commence on September 1, 1994 and terminate on August 31,
1997. Landlord and Tenant confirm that Tenant's extension option set forth in
Section 3.03 of the original Lease has been deleted by Amendment 1 to the Lease.
2. The Rentable Area of the Premises is hereby reduced from the existing
37,677 square feet to the original 21,900 rentable square feet (approximately
21,681 usable square feet) known as Suites A and B and located at 300 Potash
Hill Road, Tyngsborough, Massachusetts, as shown on Exhibit B attached to the
original Lease.
3. Tenant's Proportionate Share is hereby reduced from 63.35% to 36.82%.
4. The Basic Rent due from Tenant to Landlord during the extension term
described herein is $167,535.00 per Lease Year ($7.65 per rentable square foot).
All other amounts due from Tenant to Landlord in addition to Basic Rent,
including without limitation all Additional Rent, shall continue to be due and
payable as provided in the Lease.
5. The following additional Section 25.16 is added to the Lease:
<PAGE> 39
25.16 Tenant's Right to Terminate Lease.
Provided Tenant is not in default under the Lease, Tenant shall have the
right to terminate this Lease, which termination shall be effective on August
31, 1995, by delivering to Landlord not later than February 28, 1995 (i) written
notice of Tenant's election to so terminate this Lease and (ii) a payment to
Landlord (the "Lease Termination Payment") in the amount of $96,955.00. The
Lease Termination Payment shall be in addition to all other amounts, including
Basic Rent and Additional Rent, due from Tenant to Landlord through such
termination date.
The terms used herein shall have the same meanings as set forth in the
Lease.
Except as expressly set forth herein, all other terms of the Lease shall
remain in full force and effect.
Executed under seal as of this ___day of __________________, 1994.
LANDLORD:
VESPER PROPERTIES 1 TRUST
By FRANCIS D. BURKE, TRUSTEE
--------------------------------------
Francis D. Burke, Trustee
By:
--------------------------------------
Paul E. Guaraldi, Trustee
By:
--------------------------------------
Thomas J. Flood, Trustee
TENANT:
LASERDATA INC.
By: PAUL J. RUSCON
--------------------------------------
Name: Paul J. Ruscon
Title: President/CEO
<PAGE> 40
AMENDMENT NO. 3 TO LEASE
Amendment to Lease dated July 24, 1997 between Francis D. Burke, Paul E.
Guaraldi and Thomas J. Flood, Trustees of Vesper Properties 1 Trust under
Declaration of Trust dated January 8, 1986, recorded with Middlesex North
District Registry of Deeds in Book 3315, Page 65, having a principal place of
business c/o Vesper Properties, Inc., Suite 3620, One Post Office Square,
Boston, Massachusetts 02109 (the "Landlord") and Kofax Image Products, Inc., a
Delaware corporation with a place of business at 300 Vesper Executive Park,
Tyngsborough, Massachusetts 01849 (the "Tenant").
WHEREAS, Landlord and LaserData, Inc., a Delaware corporation
("LaserData") entered into a Lease dated February 24, 1989, as amended by
Amendment 1 dated September 11, 1991 and Amendment No. 2 dated August 31, 1994
(the "Lease"). The tenant's obligations under the Lease were assigned by
LaserData to and assumed by Kofax Image Products, a California corporation
("Kofax") by Agreement dated December 30, 1995 (the "Assumption Agreement"). The
tenant's obligations under the Lease were thereafter assumed by Tenant pursuant
to the corporate reorganization of Kofax;
WHEREAS, Landlord and Tenant desire to extend the Term of the Lease
under the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree to amend
the Lease as follows:
1. The Term of the Lease is hereby extended for three (3) Lease Years,
which extension shall commence, on September 1, 1997 and terminate on August 31,
2000. Landlord and Tenant confirm that Tenant's extension option set forth in
Section 3.03 of the original Lease has been deleted by Amendment 1 to the Lease.
2. The Rentable Area of the Premises is hereby reduced from the existing
21,900 rentable square feet to 10,098 square feet, as shown on Exhibit A
attached hereto. Landlord, at its expense, shall construct and paint a demising
wall between the Premises and the adjacent premises, substantially as shown on
Exhibit A.
3. Tenant's Proportionate Share is hereby reduced from 36.82% to 16.95%
(based upon 59,575 rentable square feet in the entire Building).
4. The Basic Rent defined in Section 1.01 of the Lease is hereby amended
to provide as follows:
<PAGE> 41
-2-
(a) September 1, 1997 through August 31, 1998: $9.75 triple net per
rentable square foot ($98,455.50 for such Lease Year, $8,204.63 per
month);
(b) September 1, 1998 through August 31, 1999: $10.00 triple net per
rentable square foot ($100,980.00 for such Lease Year, $8,415.00 per
month); and
(c) September 1, 1999 through August 31, 2000: $10.25 triple net per
rentable square foot ($103,504.50 for such Lease Year, $8,625.38
per month).
All other amounts due from Tenant to Landlord in addition to Basic Rent,
including without limitation all Additional Rent, shall continue to be due and
payable as provided in the Lease.
5. Tenant warrants and represents to Landlord that Tenant is entitled to
the $45,174.16 security deposit described in Section 1.01 of the Lease and
originally paid by LaserData to Landlord. Landlord and Tenant hereby agree to
reduce the security deposit held by Landlord under the Lease from $45,174.16 to
$16.410.00. The $28.764.16 balance of the security deposit shall be credited by
Landlord to Tenant against the successive monthly installments of base rent next
becoming due under the Lease.
6. Landlord hereby consents to the assumption by Tenant of the tenant's
obligations under the Lease.
7. The terms used herein shall have the same meanings as set forth in the
Lease. Except as expressly set forth herein, all other terms and conditions of
the Lease are ratified and confirmed and shall remain in full force and effect.
Executed under seal as of the day and year first above written.
LANDLORD:
VESPER PROPERTIES 1 TRUST
By FRANCIS D. BURKE, TRUSTEE
-----------------------------------
Francis D. Burke, Trustee
By
-----------------------------------
PAUL E. Guaraldi, Trustee
By
-----------------------------------
Thomas J. Flood, Trustee
<PAGE> 42
-3-
TENANT:
KOFAX IMAGE PRODUCTS
BY: [SIG]
------------------------------------
Name: Ronald J. Fikert
Title: Vice President
Hereunto Duly Authorized
<PAGE> 43
Exhibit A
Plan of Leased Premises
I. Floorplan of demising wall attached.
II. Landlord will at tenant's expense remove the existing drywall from the
covered tailboard loading dock and make the loading dock and loading dock
door operational in the proposed Kofax space. Landlord at tenant's
expense will install double doors to access the loading dock area.
Landlord at tenant's expense will install a sink with hot and cold water
in the proposed new lunchroom.
<PAGE> 44
[GRAPH]