EXHIBIT 10.1
DATE OF LEASE EXECUTION: June 12, 1996
(To be Completed by ▇▇▇▇▇▇▇▇)
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Section 1.1:
LANDLORD: THE TRUSTEES OF LEXINGTON DEVELOPMENT COMPANY TRUST
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MANAGING AGENT: ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ Services Limited Partnership
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LANDLORD'S & MANAGING AGENT'S ADDRESS:
c/o Spaulding and ▇▇▇▇ Services Ltd. Partnership
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
LANDLORD'S REPRESENTATIVE: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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TENANT: Photoelectron Corporation
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TENANT'S ADDRESS (For Notice and Billing): Five Forbes Road, Lexington, MA 02173
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TENANT'S REPRESENTATIVE: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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BUILDING ADDRESS: Five Forbes Road, Lexington, Massachusetts 02173
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RENTABLE FLOOR AREA OF TENANT'S SPACE: 14,992 Square Feet (r.s.f.) approximately
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(per Exhibit A)
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TOTAL RENTABLE FLOOR AREA OF THE BUILDING: 30,710 Square Feet (r.s.f.)
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approximately
TENANT'S DESIGN COMPLETION DATE: May 16, 1996
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SCHEDULED TERM COMMENCEMENT DATE: May 7, 1996
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RENT COMMENCEMENT DATE: The earlier of July 15, 1996 or Certificate of Occupancy
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for Leasehold Improvements.
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TERM EXPIRATION DATE: July 31, 2002 APPROXIMATE TERM: Six Years, Three Months
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ANNUAL BASE RENT: $7.25 (subject to increase per Exhibit B, Rider To Lease) Per
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Rentable Square Foot (p.r.s.f.)
ANNUAL ESTIMATED OPERATING COSTS: $207,292.50 for the Building: $6.75 =
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(p.r.s.f.)
ANNUAL ESTIMATED ELECTRICAL COST TO TENANT'S SPACE (included in Annual Rent):
$12,743.20: $.85 (p.r.s.f.)
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OTHER: for the Building: $ = (p.r.s.f.)
ANNUAL RENT: $222,631.20 (Subject to an Annual Adjustment as provided in Article
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IV and as provided in Exhibit B, Rider To Lease), computed as follows:
ANNUAL RENT: $7.25 (subject to increase per Exhibit B, Rider To Lease
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Annual Base Rent (p.r.s.f.) + $6.75 Annual Estimated
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Operating Costs (p.r.s.f.) + $.85 Annual Estimated Electrical
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Costs to Tenant's Space (p.r.s.f.) + N/A Other (p.r.s.f.) =
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$14.85 Total Rate (p.r.s.f.) X 14,992 rentable square feet =
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$222,631.20 Annual Rent, (Subject to adjustment per Exhibit B,
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Rider attached.)
FIRST FISCAL YEAR FOR TENANT'S PAYING OPERATING COST ESCALATION: YEAR ENDING:
December 31, 1997
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SECURITY DEPOSIT: $125,000 GUARANTOR: N/A
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TENANT IMPROVEMENT REIMBURSEMENT TO LANDLORD: Premises Delivered in "As-Is"
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Condition
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PERMITTED USES: General Office/Uses Accessory to Permitted Scientific Research,
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Development or Related Production, as permitted by Law.
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PUBLIC LIABILITY INSURANCE: BODILY INJURY: $2,000,000 PROPERTY DAMAGE:
$1,000,000
SPECIAL PROVISIONS: See Exhibit B, Rider To Lease; Premises are delivered in
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strictly "As-Is" condition.
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1.2 EXHIBITS
The Exhibits listed below in this section are incorporated in this Lease by
reference and are to be construed as part of this Lease:
Exhibit A - Plan showing ▇▇▇▇▇▇'s Space.
Exhibit B - Riders (if applicable).
Exhibit C - Specifications of Leasehold Improvements and Tenant Layout (if
applicable).
Exhibit D - Landlord's Services.
Exhibit E - Rules and Regulations.
1.3 TABLE OF CONTENTS PAGE
ARTICLE II
PREMISES AND TERM..........................................................................................4
2.1 PREMISES..........................................................................................4
2.2 TERM..............................................................................................4
ARTICLE III
CONSTRUCTION...............................................................................................4
3.1 INITIAL CONSTRUCTION..............................................................................4
3.2 PREPARATION OF PREMISES FOR OCCUPANCY:............................................................5
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.....................................................5
3.4 REPRESENTATIVES...................................................................................6
ARTICLE IV
RENT.......................................................................................................6
4.1 RENT..............................................................................................6
4.2 OPERATING COSTS: ESCALATION.......................................................................6
4.3 ESTIMATED ESCALATION PAYMENTS.....................................................................7
4.4 CHANGE OF FISCAL YEAR.............................................................................8
4.5 PAYMENTS..........................................................................................8
ARTICLE V
LANDLORD'S COVENANTS.......................................................................................8
5.1 LANDLORD'S COVENANTS DURING THE TERM..............................................................8
5.1.1 Building Services.............................................................................8
5.1.2 Additional Building Services..................................................................8
5.1.3 Repairs.......................................................................................8
5.1.4 Quiet Enjoyment...............................................................................8
5.2 INTERRUPTIONS.....................................................................................8
ARTICLE VI
TENANT'S COVENANTS.........................................................................................9
6.1 TENANT'S COVENANTS DURING THE TERM................................................................9
6.1.1 Tenant's Payments.............................................................................9
6.1.2 Repairs and Yielding Up.......................................................................9
6.1.3 Occupancy and Use.............................................................................9
6.1.4 Rules and Regulations.........................................................................9
6.1.5 Safety Appliances.............................................................................9
6.1.6 Assignment and Subletting.....................................................................9
6.1.7 Indemnity....................................................................................10
6.1.8 Tenant's Liability Insurance.................................................................10
6.1.9 Tenant's Worker's Compensation Insurance.....................................................10
6.1.10 Landlord's Right of Entry....................................................................10
6.1.11 Loading......................................................................................11
6.1.12 Landlord's Costs.............................................................................11
6.1.13 Tenant's Property............................................................................11
6.1.14 Labor or Materialmen's Liens.................................................................Il
6.1.15 Changes or Additions.........................................................................11
6.1.16 Holdover.....................................................................................11
ARTICLE VII
CASUALTY AND TAKING.......................................................................................11
7.1 CASUALTY AND TAKING..............................................................................11
7.2 RESERVATION OF AWARD.............................................................................12
ARTICLE VIII
RIGHTS OF MORTGAGEE.......................................................................................12
8.1 PRIORITY OF LEASE................................................................................12
8.2 RIGHTS OF MORTGAGE HOLDERS; LIMITATION OF MORTGAGEE'S LIABILITY..................................12
8.3 MORTGAGEE'S ELECTION.............................................................................12
8.4 NO PREPAYMENT OR MODIFICATION, ETC...............................................................13
8.5 NO RELEASE OR TERMINATION........................................................................13
8.6 CONTINUING OFFER.................................................................................13
8.7 MORTGAGEE'S APPROVAL.............................................................................13
ARTICLE IX
DEFAULT 13
9.1 EVENTS OF DEFAULT................................................................................13
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION...........................................................14
ARTICLE X
MISCELLANEOUS 14
10.1 NOTICE OF LEASE..............................................................................14
10.2 RELOCATION...................................................................................15
10.3 NOTICES FROM ONE PARTY TO THE OTHER..........................................................15
10.4 BIND AND INURE...............................................................................15
10.5 NO SURRENDER.................................................................................15
10.6 NO WAIVER, ETC...............................................................................15
10.7 NO ACCORD AND SATISFACTION...................................................................15
10.8 CUMULATIVE REMEDIES..........................................................................15
10.9 LANDLORD'S RIGHT TO CURE.....................................................................16
10.10 ESTOPPEL CERTIFICATE.........................................................................16
10.11 WAIVER OF SUBROGATION........................................................................16
10.12 ACTS OF GOD..................................................................................16
10.13 BROKERAGE....................................................................................16
10.14 SUBMISSION NOT AN OFFER......................................................................16
10.15 APPLICABLE LAW AND CONSTRUCTION..............................................................16
ARTICLE XI
SECURITY DEPOSIT..........................................................................................17
ARTICLE II
PREMISES AND TERM
2.1 PREMISES.
Subject to and with the benefit of the provisions of this Lease and any
ground lease or land disposition agreement relating to the parcel on which the
Building is located (the "Lot"), Landlord hereby leases to Tenant, and Tenant
leases from Landlord, Tenant's Space in the Building, excluding exterior faces
of exterior walls, the common facilities area and building service fixtures and
equipment serving exclusively or in common other parts of the Building. Tenant's
Space, with such exclusions, is hereinafter referred to as the "Premises".
Tenant shall have, as appurtenant to the Premises, the right to use in common
with others entitled thereto: (a) the common facilities included in the Building
or on the Lot, including the parking facility, if any, on a first-come,
first-served basis, to the extent and in the location from time to time
designated by Landlord, and (b) the building service fixtures and equipment
serving the Premises.
Landlord reserves the right from time to time, without unreasonable
interference with ▇▇▇▇▇▇'s use, (a) to install, repair, replace, use, maintain
and relocate for service to the Premises and to other parts of the Building or
either, building service fixtures and equipment wherever located in the Building
and (b) to alter or relocate any common facilities, it being understood that if
any parking spaces are provided, the same may be relocated on or off the Lot
from time to time by Landlord, provided that in all events substitutions are
substantially equivalent.
2.2 TERM.
To have and to hold for a period (the "Term") commencing on the earliest of
(a) if Landlord is not obligated to perform construction work, on the Scheduled
Term Commencement Date, or (b) if Landlord is obligated to perform construction
work pursuant to Exhibit C, on the date on which the Premises are deemed ready
for occupancy as provided in Section 3.2, and (c) in all events, the date on
which Tenant occupies all or any part of the Premises (whichever of said dates
is appropriate being hereafter referred to as the "Commencement Date"), and
continuing until the Term Expiration Date, unless sooner terminated as provided
in Section 3.2 or 7.1 or in Article IX. Landlord and Tenant will execute, upon
request of either, a certificate acknowledging the Commencement Date of this
Lease once such commencement date has occurred.
ARTICLE III
CONSTRUCTION
3.1 INITIAL CONSTRUCTION.
On or before Tenant's Design Completion Date, if such date is indicated in
Section 1.1, Tenant shall provide to Landlord for approval complete sets of
construction drawings and specifications (the "Complete Plans") prepared at
Tenant's expense by ▇▇▇▇▇▇▇▇'s architect or an architect approved by Landlord
and Landlord's engineer, including but not limited to:
a. [Stricken Language]
b. Dimensioned Partition Plans
c. Dimensioned Electrical and Telephone Outlet Plans
d. Reflected Ceiling Plans
e. Door and Hardware Schedules
f. Room Finish Schedules including wall, carpet and floor tile colors
g. Electrical, mechanical and structural engineering plans
h. All necessary construction details and specifications for work not
specified in Exhibit C
Landlord and Tenant shall initial the Complete Plans after the same have been
submitted by ▇▇▇▇▇▇ and approved by Landlord.
If no date is indicated for ▇▇▇▇▇▇'s Design Completion Date in Section 1.1,
▇▇▇▇▇▇ agrees to accept the Premises on the Commencement Date in substantially
the same condition as they exist on the date of execution of this Lease. All of
Tenant's construction, installation of furnishings, and later changes or
additions shall be coordinated with any work being performed by Landlord in such
manner as to maintain harmonious labor relations and not to damage the Building
or Lot or interfere with Building operations. Except for installation of
furnishings and the installation of telephone outlets which must be performed by
a local telephone company at Tenant's direction and expense, all work described
in the Complete Plans (the "Leasehold Improvements") shall be performed by
[Stricken Language] ▇▇▇ Construction Incorporated as general contractor,
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[Stricken Language]and shall be approved in advance by the Landlord's building
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requirements, regulations and procedures.
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[Stricken Language]
Landlord will not approve any construction, alterations, or additions
requiring unusual expense to readapt the Premises to normal office use or lease
termination or increasing the cost of construction, insurance or taxes on the
Building or of Landlord's services called for by Section 5.1 unless Tenant first
gives assurances acceptable to Landlord that such readaptation will be made
prior to such termination without expense to Landlord and makes provisions
acceptable to Landlord for payment of such increased cost. Landlord will also
disapprove any alterations or additions requested by Tenant which will delay
completion of the Premises or the Building. All changes and additions shall be
part of the Building except such items as by writing at the time of approval the
parties agree either shall be removed by Tenant on termination of this Lease, or
shall be removed or left at Tenant's election.
3.2 PREPARATION OF PREMISES FOR OCCUPANCY.
If Landlord is obligated to perform construction work pursuant to Exhibit C,
Landlord agrees to use reasonable efforts to have the Premises ready for
occupancy on or before the Scheduled Term Commencement Date, which shall,
however, be extended for a period equal to that of any delays due to
governmental regulations, unusual scarcity of or inability to obtain labor or
materials, labor difficulties, casualty or other causes beyond Landlord's
reasonable control. The Premises shall be deemed ready for occupancy on the date
on which the Leasehold Improvements, as specified in Exhibit C and in the
Complete Plans, are ready for occupancy as certified by Landlord's architect
with the exception of minor items which can be fully completed without material
interference with Tenant and other items which because of the season or weather
or the nature of the item are not practicable to do at the time, provided that
none of said items is necessary to make the Premises tenantable for the
Permitted Uses; provided, however, that if Landlord is unable to complete
construction due to delay in Tenant's compliance with the provisions of Section
3.1 of this Lease, then the Premises shall be deemed ready for occupancy no
later than the Scheduled Term Commencement Date.
Landlord shall permit Tenant access for installing equipment and furnishings
in the Premises prior to the Term if it can be done without material
interference with completion of the Building or remaining portions of the
Leasehold Improvements.
In the event of Tenant's failure to comply with the previsions of Section 3.1
to submit information or to deliver construction drawings and specifications
which meet ▇▇▇▇▇▇▇▇'s approval, Landlord may, at ▇▇▇▇▇▇▇▇'s option, exercisable
by notice to Tenant, either (a) terminate this Lease on the date specified in
said notice to Tenant, and upon such termination Landlord shall have all the
rights provided in Article IX of this Lease in the event of Tenant's default or
(b) assess Tenant liquidated damages in an amount equal to the Annual Rent
divided by 365 for each day such failure continues, which damages shall be paid
to Landlord on the Commencement Date. Notwithstanding the foregoing provisions,
if the Premises are not deemed ready for occupancy within 120 days after the
Scheduled Term Commencement Date for whatever reason, other than Tenant's
default, Tenant may elect to cancel this Lease at any time thereafter while the
Premises are not deemed ready for occupancy by giving notice to Landlord of such
cancellation which shall be effective when given, it being understood that said
election shall be Tenant's sole remedy at law or in equity for Landlord's
failure to have the Premises ready for occupancy.
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.
All construction work required or permitted by this Lease, whether by
Landlord or by Tenant, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all lawful ordinances, regulations and
orders of governmental authority and insurers of the Building. Either party may
inspect the work of the other at
PAGE>
reasonable times and promptly shall give notice of observed defects. Landlord's
obligations under Section 3.1 shall be deemed to have been performed when ▇▇▇▇▇▇
commences to occupy any portion of the Premises for the Permitted Uses except
for items which are incomplete or do not conform with the requirements of
Section 3.1 and as to which Tenant shall in either case have given written
notice to Landlord prior to such commencement. If Tenant shall not have
commenced to occupy the Premises for the Permitted Uses within 30 days after
they are deemed ready for occupancy as provided in Section 3.2, a certificate of
completion by a licensed architect or registered engineer shall be conclusive
evidence that Landlord has performed all such obligations except for items
stated in such certificate to be incomplete or not in conformity with such
requirements. Landlord shall not be responsible for any loss, damage, or injury
resulting from the installation of any components, fixtures, or equipment
provided they were appropriately specified and installed in accordance with the
manufacturer's or supplier's instructions.
3.4 REPRESENTATIVES.
Each party authorizes the other to rely in connection with their respective
rights and obligations under this Article III upon approval and other actions on
the party's behalf by ▇▇▇▇▇▇▇▇'s Representative in the case of Landlord or
Tenant's Representative in the case of Tenant or by any person designated in
substitution or addition by notice to the party relying.
ARTICLE IV
RENT
4.1 RENT.
Tenant agrees to pay rent to Landlord without any offset or reduction
whatever (except as made in accordance with the express provisions of this
Lease), equal to 1/12th of the Annual Rent in equal installments in advance on
the first day of each calendar month included in the Term; and for any portion
of a calendar month at the beginning or end of the Term, at the proportionate
rate payable for such portion, in advance.
[Stricken Language]
The term "Base Rent" shall mean the Annual Rent as most recently increased,
less the sum of (a) $ 6.75 (p.r.s.f), being Tenant's proportionate share of
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the Annual Estimated Operating Costs and (b) $.85 (p.r.s.f), being the
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Estimated Cost of Electrical Service to Tenant's Space and (c) $ _, being other
costs, if any.
4.2 OPERATING COSTS: ESCALATION.
Tenant's proportionate share of the Annual Estimated Operating Costs shall be
determined by multiplying Annual Estimated Operating Costs by a fraction, the
numerator of which is the Rentable Floor Area of Tenant's Space, and the
denominator of which is the Total Rentable Floor Area of the Building.
With respect to the First Fiscal Year for Tenant's Paying Operating Cost
Escalation, or fraction thereof, and any fiscal year or fraction thereof
thereafter, Tenant shall pay to Landlord, as additional rent, Operating Cost
Escalation (as defined below), if any, on or before the thirtieth (30th) day
following receipt by Tenant of Landlord's Statement (as defined below). As soon
as practicable after the end of each Fiscal Year ending during the Term and
after Lease termination, Landlord shall render a statement ("Landlord's
Statement") in reasonable detail and according to usual accounting practices
certified by Landlord and showing for the preceding Fiscal Year or fraction
thereof, as the case may be, ▇▇▇▇▇▇▇▇'s Operating Costs,
excluding the interest and amortization on mortgages for the Building and Lot
or leasehold interests therein and the cost of special services rendered to
tenants (including Tenant) for which a special charge is made,
but including, without limitation: real estate taxes on the Building and Lot;
installments and interest on assessments for public betterments or public
improvements; expenses of any proceedings for abatement of taxes and assessments
with respect to any fiscal year or fraction of a fiscal year; premiums for
insurance; fees payable to third parties for financial audits of Landlord's
Operating Costs; compensation and all fringe benefits, worker's compensation
insurance premiums and payroll taxes paid by Landlord to, for or with respect to
all persons engaged in the operating, maintaining, or cleaning of the Building
and Lot; all utility charges not billed directly to tenants by Landlord or the
utility; payments to independent contractors under service contracts for
cleaning, operating, managing, maintaining
and repairing the Building and Lot (which payments may be to affiliates of
Landlord provided the same are at reasonable rates consistent with the type of
occupancy and the services rendered) rent paid by the managing agent or imputed
cost equal to the loss of rent by Landlord for making available to the managing
agent space for a Building office on the ground floor or above; if the Building
shares common areas or facilities with another building or buildings, the
Buildings' pro rata share (as reasonably determined by Landlord) of the cost of
cleaning, operating, managing (including the cost of the management office for
such buildings and facilities), maintaining and repairing such common areas and
facilities; and all other reasonable and necessary expenses paid in connection
with the cleaning, operating, managing, maintaining and repairing of the
Building and Lot, or either, and properly chargeable against income, it being
agreed that if Landlord installs a new or replacement capital item for the
purpose of reducing Landlord's Operating Costs, the cost thereof as reasonably
amortized in accordance with generally accepted accounting practices by
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Landlord, with interest at the average prime commercial rate in effect from time
to time at the three largest national banks in Boston, Massachusetts on the
unamortized amount, shall be included in Landlord's Operating Costs. Landlord's
Statement shall also show the average number of square feet of the Building
which were occupied for the preceding fiscal year or fraction thereof.
"Operating Cost Escalation" shall be equal to the difference, if any,
between:
(a) the product of Landlord's Operating Costs as indicated in Landlord's
Statement and a fraction, the numerator of which shall be the Rentable Floor
Area of Tenant's Space and the denominator of which shall be one-half of the
Total Rentable Floor Area of the Building plus one-half of the average number of
such square feet as are occupied during such fiscal year or fraction thereof and
(b) the product of the Annual Estimated Operating Costs (as reduced pursuant
to this Section 4.2) and a fraction, the numerator of which shall be the
Rentable Floor Area of Tenant's Space and the denominator of which shall be the
Total Rentable Floor Area of the Building.
If the management fee is reduced by reason of a tenant's default in the
payment of Annual Rent or additional rent, Landlord shall reduce the Annual
Estimated Operating Costs by the amount of such reduction in the management fee.
In case of special services which are not rendered to all areas on a comparable
basis, the proportion allocable to the Premises shall be the same proportion
which the Rentable Floor Area of Tenant's Space bears to the total rentable
floor area to which such service is so rendered (such latter area to be
determined in the same manner as the Total Rentable Floor Area of the Building).
The term "real estate taxes" as used above shall mean all taxes of every kind
and nature assessed by any government authority on the Lot, the Building and
improvements, or both, which the Landlord shall become obligated to pay because
of or in connection with the ownership, leasing and operation of the Lot, the
Building and improvements, or both, subject to the following: There shall be
excluded from such taxes all income taxes, excess profits taxes, excise taxes,
franchise taxes, and estate, succession, inheritance and transfer taxes,
provided, however, that if at any time during the Term the present system of ad
valorem taxation of real property shall be changed so that in lieu of the whole
or any part of the ad valorem tax on real property, there shall be assessed on
Landlord a capital levy or other tax on the gross rents received with respect to
the Lot, Building, and improvements, or both, or a federal, state, county,
municipal or other local income, franchise, excise or similar tax, assessment,
levy or charge (distinct from any now in effect) measured by or based, in whole
or in part, upon any such gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so measured or based, shall be
deemed to be included within the term "real estate taxes".
Notwithstanding any other provision of this Section 4.2, if the Term expires
or is terminated as of a date other than the last day of a fiscal year, then for
such fraction of a fiscal year at the end of the Term, Tenant's last payment to
Landlord under this Section 4.2 shall be made on the basis of Landlord's best
estimate of the items otherwise includable in Landlord's Statement and shall be
made on or before the later of (a) 10 days after Landlord delivers such estimate
to Tenant or (b) the last day of the Term, with an appropriate payment or refund
to be made upon submission of Landlord's Statement.
4.3 ESTIMATED ESCALATION PAYMENTS.
If, with respect to any fiscal year or fraction thereof during the Term,
Landlord estimates that Tenant shall be obligated to pay Operating Cost
Escalation, then Tenant shall pay, as additional rent, on the first day of each
month of such fiscal year and each ensuing fiscal year thereafter, Estimated
Monthly Escalation Payments equal to 1/12th of the estimated Operating Cost
Escalation for the respective fiscal year, with an appropriate additional
payment or refund to be made within 30 days after Landlord's Statement is
delivered to Tenant. Landlord may adjust such Estimated Monthly Escalation
Payment from time to time and at any time during a fiscal year, and Tenant shall
pay, as additional rent, on the first day of each month following receipt of
Landlord's notice thereof, the adjusted Estimated Monthly Escalation Payment.
4.3.1 ELECTRICITY
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Tenant shall be responsible for paying its prorata share of all electricity
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charges for relating to its use of the Premises as reasonably determined by the
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Landlord. Accordingly, the Annual Rent may be adjusted to reflect increases in
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the Estimated Cost of the Electrical Service to Tenant's Space. At Tenant's
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option, if the Tenant is in full occupancy of the Total Rentable Floor Area of
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the Building, Tenant may pay all electricity charges to directly to the utility
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providing electric service, provided that all payments are made prior to the
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date that such charges are due. In the event that Tenant exercises such option,
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Tenant shall no longer pay the Estimated Electrical Cost To Tenant's Space or
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other costs to Landlord and the Annual Estimated Operating Costs shall be
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reduced to reflect the decrease in the Landlord's Operating Costs resulting
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therefrom. Notwithstanding the foregoing, in no event shall such a
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modification of the Estimated Electrical Costs result in a modification of
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Annual Rent.
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4.4 CHANGE OF FISCAL YEAR.
Landlord shall have the right from time to time to change the periods of
accounting under Section 4.2 to any annual period other than a fiscal year, and
upon any such change all items referred to in this Section 4.4 shall be
appropriately apportioned. In all Landlord's Statements rendered under this
Section 4.4, amounts for periods partially within and partially without the
accounting periods shall be appropriately apportioned, and any items which are
not determinable at the time of a Landlord's Statement shall be included therein
on the basis of ▇▇▇▇▇▇▇▇'s estimate, and with respect thereto Landlord shall
render promptly after determination a supplemental Landlord's Statement, and
appropriate adjustment shall be made according thereto. All Landlord's
Statements shall be prepared on an accrual basis of accounting. Tenant shall
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have the right to audit the Landlord's Annual Statement, by a qualified
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accountant, with at least fourteen (14) days prior written notice. Tenant shall
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pay the full cost of such audit, which must be performed in Landlord's office
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during normal business hours.
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4.5 PAYMENTS.
All payments of Annual Rent and additional rent shall be made to Managing
Agent, or to such other person as Landlord may from time to time designate. If
any installment of Annual Rent or additional rent or on account of leasehold
improvements is paid more than 5 days after the due date thereof, at Landlord's
election, it shall bear interest at a rate equal to the average prime commercial
rate from time to time established by the three largest national banks in
Boston, Massachusetts plus 4% per annum from such due date, which interest shall
be immediately due and payable as further additional rent.
ARTICLE V
LANDLORD'S COVENANTS
5.1 LANDLORD'S COVENANTS DURING THE TERM.
Landlord covenants during the Term:
5.1.1 Building Services - To furnish, through Landlord's employees or
independent contractors, the services listed in Exhibit D;
5.1.2 Additional Building Services - To furnish, through Landlord's
employees or independent contractors, reasonable additional Building operation
services upon reasonable advance request of Tenant at equitable rates from time
to time established by Landlord to be paid by ▇▇▇▇▇▇;
5.1.3 Repairs - Except as otherwise provided in Article VII, to make such
repairs to the roof, exterior walls, floor slabs, other structural components
and common facilities of the Building as may be necessary to keep them in
serviceable condition; and
5.1.4 Quiet Enjoyment - That Landlord has the right to make this Lease and
that Tenant on paying the rent and performing its obligations hereunder, shall
peacefully and quietly have, hold and enjoy the Premises throughout the Term
without any manner of hindrance or molestation from Landlord or anyone claiming
under Landlord, subject however to all the terms and provisions hereof.
5.2 INTERRUPTIONS.
Landlord shall not be liable to Tenant for any compensation or reduction of
rent by reason of inconvenience, annoyance, injury, death or for loss of
business arising from power losses or shortages, air pollution or contamination
by hazardous substances or from the necessity of Landlord's entering the
Premises for any of the purposes in this Lease authorized, or for repairing the
Premises or any portion of the Building or Lot, or for interruption or
termination (by reason of any cause reasonably beyond Landlord's control,
including without limitation, loss of any applicable
license or governmental approval), of the food service provided by Landlord
pursuant to Section 5.1.5, or for excessive losses pursuant to Section 5.1.5. In
case Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any service or performing any other covenant or duty
to be performed on Landlord's part, by reason of any cause reasonably beyond
Landlord's control, Landlord shall not be liable to Tenant therefor, nor except
as expressly otherwise provided in Article VII, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same give rise
to a claim in tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises. Landlord shall use
reasonable efforts in case of power losses or shortages, air pollution or
contamination by hazardous substances to restore the services required to be
provided under this Lease. However Landlord agrees to use its best efforts to
diligently remedy the situation and minimize the disruption to ▇▇▇▇▇▇'s
business.
Landlord reserves the right to stop any service or utility system when
necessary by reason of accident or emergency or until necessary repairs have
been completed. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use reasonable
efforts to avoid unnecessary inconvenience to Tenant by reason thereof.
Landlord also reserves the right to institute such policies, programs and
measures as may be necessary, required or expedient for the conservation or
preservation of energy or energy services or as may be necessary or required to
comply with applicable codes, rules, regulations or standards.
ARTICLE VI
TENANT'S COVENANTS
6.1 TENANT'S COVENANTS DURING THE TERM.
Tenant covenants during the Term and such further time as Tenant occupies any
part of the Premises:
6.1.1 Tenant's Payments - To pay when due (a) all Annual Rent and
additional rent, (b) all taxes which may be imposed on Tenant's personal
property in the Premises (including, without limitation, Tenant's fixtures and
equipment) regardless to whomever assessed, (c) all charges by public utilities
for telephone and other utility services (including service inspections
therefor) rendered to the Premises not otherwise required hereunder to be
furnished by Landlord without charge and not consumed in connection with any
services required to be furnished by Landlord without charge, and (d) as
additional rent, all charges to Landlord for services rendered pursuant to
Section 5.1.2 hereof;
6.1.2 Repairs and Yielding Up - Except as otherwise provided in Article VII
and Section 5.1.3, to keep the Premises in good order, repair and condition,
reasonable wear only excepted; and at the expiration or termination of this
Lease peaceably to yield up the Premises and all changes and additions therein
in such order, repair and condition, first removing all goods and effects of
Tenant and any items, the removal of which is required by agreement or specified
herein to be removed at Tenant's election and which Tenant elects to remove, and
repairing all damage caused by such removal and restoring the Premises and
leaving them clean and neat;
6.1.3 Occupancy and Use - Continuously from the Commencement Date, to use
and occupy the Premises only for the Permitted Uses; not to injure or deface the
Premises, Building, or Lot; and not to permit in the Premises anything or permit
in the Premises any use thereof which is improper, offensive, contrary to law or
ordinances, or liable to create a nuisance or to create an unsafe or hazardous
condition or to invalidate or increase the premiums for any insurance on the
Building or its contents or liable to render necessary any alteration or
addition to the Building; not to dump, flush, or in any way introduce any
hazardous substances or any other toxic substances into the atmosphere, septic,
----------
sewage or other waste disposal system serving the Premises, not to generate,
store or dispose of hazardous substances in or on the Premises or dispose of
hazardous substances, from the Premises to any other location without the prior
written consent of Landlord and then only in compliance with the Resource
Conservation and Recovery Act of 1976, as amended, 42 U.S.C. (S) 6901 et seq.,
and all other applicable laws, ordinances and regulations; to notify Landlord of
any incident which would require the filing of a notice under applicable
federal, state, or local law; not to store or dispose of hazardous substances on
the Premises, which shall include but not be limited to hazardous conditions
---------------------------------------------------------------
from x-ray equipment or compressed gases without first submitting to Landlord
----------------------------------------
a list of all such hazardous substances and all permits required therefor and
thereafter providing to Landlord on an annual basis Tenant's certification that
all such permits have been renewed with copies of such renewed permits; and to
comply with the orders and regulations of all governmental authorities with
respect to zoning, building, fire, health, and other codes, regulations,
ordinances or laws applicable to the Premises. "Hazardous substances" as used in
this paragraph shall mean "hazardous substances" as defined in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, 42
U.S.C. (S) 9601 and regulations adopted pursuant to said Act.
6.1.4 Rules and Regulations - To comply with the Rules and Regulations set
forth in Exhibit E and all other reasonable Rules and Regulations hereafter made
by Landlord, of which ▇▇▇▇▇▇ has been given notice, for the care and use of the
Building and Lot and their facilities and approaches, it being understood that
Landlord shall not be liable to Tenant for the failure of other tenants of the
Building to conform to such Rules and Regulations;
6.1.5 Safety Appliances - To keep the Premises equipped with all safety
appliances required by law or ordinance or any other regulation of any public
authority because of any use made by Tenant and to procure all licenses and
permits so required because of such use and, if requested by Landlord, to 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 Tenant's Permitted Uses;
6.1.6 Assignment and Subletting - Not without the prior written consent of
Landlord to assign this Lease, to make any sublease, or to permit occupancy of
the Premises or any part thereof by anyone other than Tenant, voluntarily or by
operation of law [▇▇▇▇▇▇▇▇ Language]; as additional rent, to reimburse Landlord
promptly for reasonable legal and other expenses incurred by Landlord in
connection with any request by Tenant for consent to assignment or subletting;
no assignment or subletting shall affect the continuing primary liability of
Tenant (which, following assignment, shall be joint and several with the
assignee); no consent to any of the foregoing in a specific instance shall
operate as a waiver in any subsequent instance. ▇▇▇▇▇▇▇▇'s consent to any
proposed assignment or subletting is required both as to the terms and
conditions thereof, and as to the creditworthiness of the proposed assignee or
subtenant and the consistency of the proposed assignee's or subtenant's business
with other uses and tenants in the Building. ▇▇▇▇▇▇▇▇'s consent to assignment or
subletting by Tenant shall not be unreasonably withheld, provided that Tenant is
not then in default under this Lease.
[Stricken Language]
Tenant shall not be permitted to publicly market any portion of the Premises
----------------------------------------------------------------------------
for assignment or sublet when the Landlord has other space in the Office Park
-----------------------------------------------------------------------------
available for lease. In the event that any assignee or subtenant pays to Tenant
--------------------
any amounts in excess of the Annual Rent and additional rent then payable
hereunder, or pro rata portion thereof on a square footage basis for any portion
of the Premises, Tenant shall promptly pay 50% of said excess (net of
------ -------
reasonable costs incurred by Tenant in entering into such sublease or
----------------------------------------------------------------------
assignment) to Landlord as and when received by Tenant. If Tenant requests
-----------
Landlord's consent to assign this Lease or sublet more than 25% of the Premises,
Landlord shall have the option, exercisable by written notice to Tenant given
within 10 days after receipt of such request, to terminate this Lease as of a
date specified in such notice which shall not be less than 30 or more than 60
days after the date of such notice;
If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial
interest) and there shall occur any "change in control" (as defined below) of
----------------------------------------
Tenant [Stricken Language] or
------
(ii) a partnership or association or otherwise not a natural person (and
is not a corporation or a trust) and there shall occur any change in the
identity of any of the persons who then are members of such partnership or
association or who comprise Tenant;
Tenant shall so notify Landlord and Landlord may terminate this Lease by notice
to Tenant given within 90 days thereafter if, in Landlord's reasonable
judgement; the credit of Tenant is thereby impaired. This paragraph shall not
apply if the initial Tenant named herein is a corporation and the outstanding
voting stock thereof is listed on a recognized securities exchange including,
----------
but not limited to, the New York Stock Exchange, the American Stock Exchange or
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the National Association of Securities Dealers Automated Quotation System
-------------------------------------------------------------------------
(NASDAQ). For purposes of this paragraph, a "change in control" shall occur if
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and companies in which he has a controlling interest hold
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less than 50.1% of the outstanding voting stock of Tenant.
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6.1.7 Indemnity - To defend, with counsel approved by ▇▇▇▇▇▇▇▇, all actions
against Landlord, any partner, trustee, stockholder, officer, director,
employee or beneficiary of Landlord, holders of mortgages secured by the
Premises or the Building and Lot and any other party having an interest in the
Premises ("Indemnified Parties") with respect to, and to pay, protect, indemnify
and save harmless, to the extent permitted by law, all Indemnified Parties from
and against, any and all liabilities, losses, damages, costs, expenses
(including reasonable attorney's fees and
expenses) causes of action, suits, claims, demands or judgements of any nature
[Stricken Language] arising from (i) injury to or death or any person, or
damage to or loss of property, on the Premises or on adjoining sidewalks,
streets or ways, or connected with the use, condition or occupancy of any
thereof unless caused by the negligence or willful misconduct of Landlord or its
---------------------
servants or agents, (ii) violation of this Lease, or (iii) any act, fault,
omission, or other misconduct of Tenant or its agents, contractors, licensees,
sublessees or invitees.
6.1.8 Tenant's Liability Insurance - To maintain public liability insurance
on the Premises indemnifying Landlord and Tenant against all claims and demands
for (i) injury to or death of any person or damage to or loss or property, on
the Premises or adjoining walks, streets or ways, or connected with the use,
condition or occupancy of any thereof unless caused by the negligence or willful
----------
misconduct of Landlord or its servants or agents, (ii) violation of this Lease,
----------
or (iii) any act, fault or omission, or other misconduct of Tenant or its
agents, contractors, licensees, sublessees or invitees, in amounts which shall,
at the beginning of the Term, be at least equal to the limits set forth in
Section 1.1, and from time to time during the Term, shall be for such higher
limits, if any, as are customarily carried in the area in which the Premises are
located on property similar to the Premises and used for similar purposes, and
shall be written on the "Occurrence Basis" and include Host Liquor liability
insurance, and to furnish Landlord with certificates thereof;
6.1.9 Tenant's Worker's Compensation Insurance - To keep all of Tenant's
employees working in the Premises covered by worker's compensation insurance in
statutory amounts and to furnish Landlord with certificates thereof;
6.1.10 Landlord's Right of Entry - To permit Landlord and Landlord's agents
entry: to examine the Premises at reasonable times and, if Landlord shall so
elect, to make repairs or replacements; to remove, at Tenant's expense, any
changes, additions, signs, curtains, blinds, shades, awnings, aerials,
flagpoles, or the like not consented to in writing; and to show the Premises to
prospective tenants during the 12 months preceding expiration of the Term and
to prospective purchasers and mortgagees at all reasonable times;
6.1.11 Loading - Not to place Tenant's Property, as defined in
Section 6.1.13, upon the Premises so as to exceed a rate of 50 pounds of live
load per square foot and not to move any safe, vault or other heavy equipment
in, about or out of the Premises except in such manner and at such times as
Landlord shall in each instance approve; Tenant's business machines and
mechanical equipment which cause vibration or noise that may be transmitted to
the Building structure or to any other leased space in the Building shall be
placed and maintained by Tenant in settings of cork, rubber, spring, or other
types of vibration eliminators sufficient to eliminate such vibration or noise;
6.1.12 Landlord's Costs - In case Landlord shall be made party to any
litigation commenced by or against Tenant or by or against any parties in
possession of the Premises or any part thereof claiming under Tenant, to pay, as
additional rent, all costs including, without implied limitation, reasonable
counsel fees incurred by or imposed upon Landlord in connection with such
litigation, and, as additional rent, also to pay all such costs and fees
incurred by Landlord in connection with the successful enforcement by Landlord
of any obligations of Tenant under this Lease;
6.1.13 Tenant's Property - All the furnishings, fixtures, equipment, effects
and property of every kind, nature and description of Tenant and of all persons
claiming by, through or under Tenant which, during the continuance of this Lease
or any occupancy of the Premises by Tenant or anyone claiming under Tenant, may
be on the Premises or elsewhere in the Building or on the Lot shall be at the
sole risk and hazard of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or bursting
of water pipes, steam pipes, or other pipes, by theft, or from any other cause,
no part of said loss or damage is to be charged to or to be borne by Landlord
unless due to the gross negligence of Landlord;
6.1.14 Labor or Materialmen's Liens - To pay promptly when due the entire
cost of any work done on the Premises by Tenant, its agents, employees, or
independent contractors; 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;
6.1.15 Changes or Additions - Not to make any changes or additions to the
Premises without Landlord's prior written consent, provided that Tenant shall
reimburse Landlord for all costs incurred by Landlord in reviewing ▇▇▇▇▇▇'s
proposed changes or additions, and provided further that, in order to protect
the functional integrity of the Building, all such changes and additions shall
be performed by contractors selected from a list of approved contractors
prepared by Landlord from time to time;
6.1.16 Holdover - To pay to Landlord the greater of twice (a) the then fair
market rent as conclusively determined by Landlord or (b) the total of the
Annual Rent and additional rent then applicable for each month or portion
thereof Tenant shall retain possession of the Premises or any part thereof after
the termination of this Lease, whether by lapse of time or otherwise, and also
to pay all damages sustained by Landlord on account thereof; the provisions of
this subsection shall not operate as a waiver by Landlord of the right of re-
entry provided in this Lease; at the option of Landlord exercised by a written
notice given to Tenant while such holding over continues, such holding over
shall constitute an extension of this Lease for a period of one year.
ARTICLE VII
CASUALTY AND TAKING
7.1 CASUALTY AND TAKING.
In case during the Term all or any substantial part of the Premises,
Building, or Lot or any one or more of them, are damaged materially by fire or
any other cause, or by action of the public or other authority in consequence
thereof or are taken by eminent domain or Landlord receives compensable damage
by reason of anything lawfully done in pursuance of public or other authority,
this Lease shall terminate at Landlord's election, which may be made,
notwithstanding Landlord's entire interest may have been divested, by notice to
Tenant within 30 days after the occurrence of the event giving rise to the
election to terminate, which notice shall specify the effective date of
termination which shall be not less than 30 nor more than 60 days after the date
of notice of such termination. If in any such case the Premises are rendered
unfit for use and occupation and the Lease is not terminated, Landlord shall use
due diligence to put the Premises, or, in case of a taking, what may remain
thereof (excluding any items installed or paid for by Tenant which Tenant may be
required or permitted to remove) into proper condition for use and occupation to
the extent permitted by the net award of insurance or damages available to
Landlord, and a just proportion of the Annual Rent and additional rent according
to the nature and extent of the injury shall be abated until the Premises or
such remainder shall have been put by Landlord in such condition; and in case of
a taking which permanently reduces the area of the Premises, a just proportion
of the Annual Rent and additional rent shall be abated for the remainder of the
Term and an appropriate adjustment shall be made to the Annual Estimated
Operating Expenses.
7.2 RESERVATION OF AWARD.
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises, Building or Lot and the leasehold hereby created, or
any one or more of them, accruing by reason of exercise of eminent domain or by
reason of anything lawfully done in pursuance of public or other authority.
Tenant hereby releases and assigns to Landlord all Tenant's rights to such
awards, and covenants to deliver such further assignments and assurances thereof
as Landlord may from time to time request, and hereby irrevocably designates and
appoints Landlord its attorney-in-fact to execute and deliver in ▇▇▇▇▇▇'s name
and behalf all such further assignments thereof. It is agreed and understood,
however, that ▇▇▇▇▇▇▇▇ does not reserve to itself, and ▇▇▇▇▇▇ does not assign to
Landlord, any damages payable for (i) movable trade fixtures installed by Tenant
or anybody claiming under Tenant, at its own expense or (ii) relocation expenses
recoverable by Tenant from such authority in a separate action.
ARTICLE VIII
RIGHTS OF MORTGAGEE
8.1 PRIORITY OF LEASE.
This Lease is and shall continue to be subject and subordinate to any
presently existing mortgage or deed of trust of record covering the Lot or
Building or both (the "mortgaged premises"). The holder of any such presently
existing mortgage or deed of trust shall have the election to subordinate the
same to the rights and interests of Tenant under this Lease exercisable by
filing with the appropriate recording office a notice of such election,
whereupon the Tenant's rights and interests hereunder shall have priority over
such mortgage or deed of trust.
Unless the option provided for in the next following sentence shall be
exercised, this Lease shall be superior to and shall not be subordinate to any
mortgage, deed of trust or other voluntary lien hereafter placed on the
mortgaged premises. The holder of any such mortgage, deed of trust or other
voluntary lien shall have the option to subordinate this Lease to the same,
provided that such holder enters into an agreement with Tenant by the terms of
which the holder will agree to recognize the rights of Tenant under this Lease
and to accept Tenant as tenant of the Premises under the terms and conditions of
this Lease in the event of acquisition of title by such holder through
foreclosure proceeding or other wise and Tenant will agree to recognize the
holder of such mortgage as Landlord in such event, which agreement shall be made
to expressly bind and inure to the benefit of the successors and assigns of
Tenant and of the holder and upon any one purchasing the mortgaged premises at
any foreclosure sale. Any such mortgage to which this Lease shall be
subordinated may contain such terms, provisions and conditions as the holder
deems usual or customary.
8.2 RIGHTS OF MORTGAGE HOLDERS; LIMITATION OF MORTGAGEE'S LIABILITY
The word "mortgage" as used herein includes mortgages, deeds of trust or
other similar instruments evidencing other voluntary liens or encumbrances and
modifications, consolidations, extensions, renewals, replacements and
substitutes thereof. The word "holder" shall mean a mortgagee, and any
subsequent holder or holders of a mortgage. Until the holder of a mortgage shall
enter and take possession of the Premises for the purpose of foreclosure, such
holder shall have only such rights of Landlord as are necessary to preserve the
integrity of this Lease as security. Upon entry and taking possession of the
Premises for the purpose of foreclosure, such holder shall have all the rights
of Landlord. Notwithstanding any other provision of this Lease to the contrary,
including without limitation Section 10.4, no such holder of a mortgage shall be
liable, either as mortgagee or as assignee, to perform, or be liable in damages
for failure to perform, any of the obligations of Landlord unless and until such
holder shall enter and take possession of the Premises for the purpose of
foreclosure, and such holder shall not in any event be liable to perform or for
failure to perform all of the obligations of Landlord under Section 3.1. Upon
entry for the purpose of foreclosure, such holder shall be liable to perform all
of the obligations of Landlord (except for the obligations under Section 3.1),
subject to and with the benefit of the provisions of Section 10.4, provided
that a discontinuance of any foreclosure proceeding shall be deemed a conveyance
under said provisions to the owner of the equity of the Premises.
8.3 MORTGAGEE'S ELECTION.
Notwithstanding any other provision to the contrary contained in this Lease,
if prior to substantial completion of Landlord's obligations under Article III,
any holder of a first mortgage on the mortgaged premises enters and takes
possession thereof for the purpose of foreclosing the mortgage, such holder may
elect, by written notice given to Tenant and Landlord at any time within 90 days
after such entry and taking of possession, not to perform Landlord's obligations
under Article III, and in such event such holder and all persons claiming under
it shall be relieved of all obligations to perform, and all its obligations
hereunder by written notice to Landlord and such holder given within 30 days
after the day on which such holder shall have given its notice as aforesaid.
8.4 NO PREPAYMENT OR MODIFICATION, ETC.
Tenant shall not pay Annual Rent, additional rent, or any other charge more
than 10 days prior to the due date thereof. No prepayment of Annual Rent,
additional rent or other charge, no assignment of this Lease and no agreement to
modify so as to reduce the rent, change the Term, or otherwise materially change
the rights of the Landlord under this Lease, or to relieve Tenant of any
obligations or liability under this Lease, shall be valid unless consented to in
writing by ▇▇▇▇▇▇▇▇'s mortgagees of record, if any.
8.5 NO RELEASE OR TERMINATION.
No act or failure to act on the part of Landlord which would entitle Tenant
under the terms of this Lease, or by law, to be relieved of 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 Landlord's
mortgagees of record, 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 8.5 shall be deemed to impose any obligation
on any such mortgagee to correct or cure any such condition. "Reasonable time"
as used above means and includes a reasonable time to obtain possession of the
mortgaged premises, if the mortgagee elects to do so, and a reasonable time to
correct or cure the condition if such condition is determined to exist.
8.6 CONTINUING OFFER.
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a mortgagee (particularly, without limitation
thereby, the covenants and agreements contained in this Article VIII) constitute
a continuing offer to any person, corporation or other entity, which by
accepting or requiring an assignment of this Lease or by entry or foreclosure
assumes the obligations herein set forth with respect to such mortgagee; such
mortgagee is hereby constituted a party to this Lease as an obligee hereunder to
the same extent as though its name were written hereon as such; and such
mortgagee shall be entitled to enforce such provisions in its own name. ▇▇▇▇▇▇
agrees on request of ▇▇▇▇▇▇▇▇ to execute and deliver from time to time any
agreement which may reasonably be deemed necessary to implement the provisions
of this Article VIII.
8.7 MORTGAGEE'S APPROVAL.
▇▇▇▇▇▇▇▇'s obligation to perform its covenants and agreements hereunder is
subject to the condition precedent that this Lease be approved by the holder of
any mortgage of which the Premises are a part and by the issuer of any
commitment to make a mortgage loan which is in effect on the date hereof. Unless
Landlord gives Tenant written notice within 30 business days after the date
hereof that such holder or issuer, or both, disapprove this Lease, then this
condition shall be deemed to have been satisfied or waived and the provisions of
this Section 8.7 shall be of no further force or effect.
ARTICLE IX
DEFAULT
9.1 EVENTS OF DEFAULT.
If any default by ▇▇▇▇▇▇ continues after notice, in case of Annual Rent,
additional rent, Tenant Improvement Reimbursement or any other monetary
obligation to Landlord for more than 10 days, or in any other case for more than
30 days and such additional time, if any, as is reasonably necessary to cure the
default if the default is of such a nature that it cannot reasonably be cured in
30 days and Tenant diligently endeavors to cure such default; or if Tenant
becomes insolvent, fails to pay its debts as they fall due, files a petition
under any chapter of the U. S. Bankruptcy Code, 11 U.S.C. 101 et seq., as it may
be amended (or any similar petition under any insolvency law of any
jurisdiction), or if such petition is filed against Tenant; or if Tenant
proposes any dissolution, liquidation, composition, financial reorganization or
recapitalization with creditors, makes an assignment or trust mortgage for
benefit of creditors, or if a receiver, trustee, custodian or similar agent is
appointed or takes possession with respect to any property of Tenant; or if the
leasehold hereby created is taken on execution or other process of law in any
action against Tenant; then, and in any such case, Landlord and the agents and
servants of Landlord may, in addition to and not in derogation of any remedies
for any preceding breach of covenant, immediately or at any time thereafter
while such default continues and without further notice, at Landlord's election,
do any one or more of the following: (1) give Tenant written notice stating that
the Lease is terminated, effective upon the giving of such notice or upon a date
stated in such notice, as Landlord may elect, in which event the Lease shall be
irrevocably extinguished and terminated as stated in such notice without any
further action, or (2) with or without process of law, in a lawful manner, enter
and repossess the Premises as of Landlord's former estate, and expel Tenant and
those claiming through or under Tenant, and remove its and their effects,
without being guilty of trespass, in which event the Lease shall be irrevocably
extinguished and terminated at the time of such entry, or (3) pursue any other
rights or remedies permitted by law. Any such termination of the Lease shall be
without prejudice to any remedies which might otherwise be used for arrears of
rent or prior breach of covenant, and in the event of such termination Tenant
shall remain liable under this Lease as hereinafter provided. Tenant hereby
waives all statutory rights (including, without limitation, rights of
redemption, if any) to the extent such rights may be lawfully waived, and
Landlord, without notice to Tenant, may store Tenant's effects and those of any
person claiming through or under Tenant at the expense and risk of Tenant and,
if Landlord so elects, may sell such effects at public auction or private sale
and apply the net proceeds to the payment of all sums due to Landlord from
tenant, if any, and pay over the balance, if any, to Tenant.
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION
In the event that this Lease is terminated under any of the provisions
contained in Section 9.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the excess of the total rent reserved for the residue of the Term
over the rental value of the Premises for said residue of the Term. In
calculating the rent reserved, there shall be included, in addition to the
annual Rent and all additional rent, the value of all other consideration agreed
to be paid or performed by ▇▇▇▇▇▇ for said residue. Tenant further covenants as
an additional and cumulative obligation after any such ending to pay punctually
to Landlord all the sums and perform all the obligations which Tenant covenants
in this Lease to pay and to perform in the same manner and to the same extent
and at the same time as if this Lease had not been terminated. In calculating
the amounts to be paid by Tenant under the next foregoing covenant, Tenant shall
be credited with any amount paid to Landlord as compensation as provided in the
first sentence of this Section 9.2 and also with the net proceeds of any rents
obtained by Landlord by reletting the Premises, after deducting all Landlord's
expenses in connection with such reletting, including, without implied
limitation, all repossession costs, brokerage commissions, fees for legal
services and expenses of preparing the Premises for such reletting, it being
agreed by Tenant that Landlord may (i) relet the Premises or any part or parts
thereof for a term or terms which may at Landlord's option be equal to or less
than or exceed the period which would otherwise have constituted the balance of
the Term and may grant such concessions and free rent as Landlord in its sole
judgment considers advisable or necessary to relet the same and (ii) make such
alterations, repairs and decorations in the Premises as Landlord in its sole
judgement considers advisable or necessary to relet the same, and no action of
Landlord in accordance with the foregoing or failure to relet or to collect rent
under
reletting shall operate or be construed to release or reduce Tenant's liability
as aforesaid.
So long as at least 12 months of the Term remain unexpired at the time of
such termination, in lieu of any other damages or indemnity and in lieu of full
recovery by Landlord of all sums payable under all the foregoing provisions of
this Section 9.2, Landlord may by written notice to Tenant, at any time after
this Lease is terminated under any of the provisions contained in Section 9.1,
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 Annual Rent and
additional rent accrued under Article IV in the 12 months ended next prior to
such termination plus the amount of Annual Rent and additional 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 9.2 up to
the time of payment of such liquidated damages.
Nothing contained in this Lease shall, however, limit or prejudice the right
of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater, equal to, to less than the amount of the loss or damages referred to
above.
ARTICLE X
MISCELLANEOUS
10.1 NOTICE OF LEASE.
Upon request of either party, both parties shall execute and deliver, after
the Term begins, a short form of this Lease in form appropriate for recording or
registration, and if this Lease is terminated before the Term expires, an
instrument in such form acknowledging the date of termination.
10.2 [Stricken Language]
10.3 NOTICES FROM ONE PARTY TO THE OTHER.
All notices required or permitted hereunder shall be in writing and
addressed, if to the Tenant, at Tenant's Address or such ether address as Tenant
shall have last designated by notice in writing to Landlord and, if to Landlord,
at ▇▇▇▇▇▇▇▇'s Address or such other address as Landlord shall have last
designated by notice in writing to the Tenant. Any notice shall have been deemed
duly given if mailed to such address postage prepaid, registered or certified
mail, return receipt requested, when deposited with the U.S. Postal Service, or
if delivered to such address by hand, when so delivered.
10.4 BIND AND INURE.
The obligations of this Lease shall run with the land, and this Lease shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Landlord named herein and
each successive owner of the Premises shall be liable only for the obligations
accruing during the period of its ownership. The obligations of Landlord shall
be binding upon the assets of Landlord which comprise the Premises but not upon
other assets of Landlord. No individual partner, trustee, stockholder, officer,
director, employee or beneficiary of Landlord shall be personally liable under
this Lease and Tenant shall look solely to Landlord's interest in the Premises
in pursuit of its remedies upon an event of default hereunder, and the general
assets of the individual partners, trustees, stockholders, officers, employees
or beneficiaries of Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant.
10.5 NO SURRENDER.
The delivery of keys to any employee of Landlord or to Landlord's agent or
any employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
10.6 NO WAIVER, ETC.
The failure of Landlord or of Tenant to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this Lease
or, with respect to such failure of Landlord, any of the Rules and Regulations
referred to in Section 6.1.4, whether heretofore or hereafter adopted by
Landlord, shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from having
all the force and effect of an original violation, nor shall the failure of
Landlord to enforce any of said Rules and Regulations against any other tenant
in the Building be deemed a waiver of any such Rules or Regulations. The receipt
by Landlord of Annual Rent or additional rent with knowledge of the breach of
any covenant of this Lease shall not be deemed a waiver of such breach by
Landlord, unless such waiver be in writing and signed by Landlord. No consent or
waiver, express or implied, by Landlord or Tenant to or of any breach of any
agreement or duty shall be construed as a waiver or consent to or of any other
breach of the same or any other agreement or duty.
10.7 NO ACCORD AND SATISFACTION.
No acceptance by Landlord of a lesser sum than the Annual Rent and additional
rent then due shall be deemed to be other than on account of the earliest
installment of such rent due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed as
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
10.8 CUMULATIVE REMEDIES.
The specific remedies to which Landlord may resort under the terms of this
Lease are cumulative and are not intended to be exclusive of any other remedies
or means of redress to which it may be lawfully entitled in case of any breach
or threatened breach by Tenant of any provisions of this Lease. In addition to
the other remedies provided in this Lease, Landlord shall be entitled to the
restraint by injunction of the violation or attempted or threatened violation of
any of the covenants, conditions or provisions of this Lease or to a decree
compelling specific performance of any such covenants, conditions or provisions.
10.9 LANDLORD'S RIGHT TO CURE.
If Tenant shall at any time default in the performance of any obligation
under this Lease, Landlord shall have the right, but 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 ▇▇▇▇▇▇▇▇ is made
in this Lease with respect to such default. In performing such obligation,
Landlord may make any payment of money or perform any other act. All sums so
paid by ▇▇▇▇▇▇▇▇ (together with interest at the rate of 4% per annum in excess
of the then average prime commercial rate of interest being charged by the three
largest national banks in Boston, Massachusetts) and all necessary incidental
costs and expenses in connection with the performance of any such act by
Landlord, shall be deemed to be additional rent under this Lease and shall be
payable to Landlord immediately on demand. Landlord may exercise the foregoing
rights without waiving any other of its rights or releasing Tenant from any of
its obligations under this Lease.
10.10 ESTOPPEL CERTIFICATE.
Tenant agrees, from time to time, upon not less than 15 days' prior written
request by Landlord, to execute, acknowledge and deliver to Landlord a statement
in writing certifying that this Lease is unmodified and in full force and
effect; that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Annual Rent and additional rent and to perform its other
covenants under this Lease; that there are no uncured defaults of Landlord or
Tenant under this Lease (or, if there have been modifications, that this Lease
is in full force and effect as modified and stating the modifications, and, if
there are any defenses, offsets, counterclaims, or defaults, setting them forth
in reasonable detail); and the dates to which the Annual Rent, additional rent
and other charges have been paid. Any such statement delivered pursuant to this
Section 10.10 shall be in a form reasonably acceptable to and may be relied
upon by any prospective purchaser or mortgagee of the premises which include the
Premises or any prospective assignee of any such mortgagee.
10.11 WAIVER OF SUBROGATION.
Any insurance carried by either party with respect to the Premises and
property therein or occurrences thereon shall include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrences of injury or
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury or loss due to
hazards covered by insurance containing such clause or endorsement to the extent
of the indemnification received thereunder.
10.12 ACTS OF GOD.
In any case where either party hereto is required to do any act, delays
caused by or resulting from Acts of God, war, civil commotion, fire, flood or
other casualty, labor difficulties, shortages of labor, materials or equipment,
government regulations, unusually severe weather, or other causes beyond such
party's reasonable control shall not be counted in determining the time during
which work shall be completed, whether such time be designated by a fixed date,
a fixed time or a "reasonable time", and such time shall be deemed to be
extended by the period of such delay.
10.13 BROKERAGE.
Tenant represents and warrants that it has dealt with no broker in connection
with this transaction other than ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ Colliers Limited Partnership
and The ▇▇▇▇▇▇ Group 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 a broker or
agent, other than ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ Colliers Limited Partnership and The ▇▇▇▇▇▇
--------------
Group with respect to ▇▇▇▇▇▇'s dealings in connection with this Lease.
-----
10.14 SUBMISSION NOT AN 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 nor 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 has been
delivered to each of them.
10.15 APPLICABLE LAW AND CONSTRUCTION.
This Lease shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts. If any term, covenant, condition or provision
of this Lease or the application thereof to any person or circumstances shall be
declared invalid or unenforceable by the final ruling of a court of competent
jurisdiction having final review, the remaining terms, covenants, conditions and
provisions of this Lease and their application to persons or circumstances shall
not be affected thereby and shall continue to be enforced and recognized as
valid agreements of the parties, and in the place of such invalid or
unenforceable provision, there shall be substituted a like, but valid and
enforceable provision which comports to the findings of the aforesaid court and
most nearly accomplishes the original intention of the parties.
There are no oral or written agreements between Landlord and Tenant affecting
this Lease. This Lease may be amended, and the provisions hereof may be waived
or modified, only by instruments in writing executed by Landlord and ▇▇▇▇▇▇.
The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Lease.
Unless repugnant to the context, the words "Landlord" and "Tenant" appearing
in this Lease shall be construed to mean those named above and their respective
heirs, executors, administrators, successors and assigns, and those claiming
through or under them respectively. If there be more than one Tenant, the
obligations imposed by this Lease upon Tenant shall be joint and several.
ARTICLE XI
SECURITY DEPOSIT
Landlord acknowledges receipt from Tenant of the Security Deposit, to be
held by Landlord, as security, which shall be increased by the lesser of
------------------------------------------
(a) the cost of the Leasehold Improvements or (b) $225,000 (hereinafter the
---------------------------------------------------------------------------
"Leasehold Improvement Security Deposit") on the ninety-first (91st) day
------------------------------------------------------------------------
following the Commencement Date, if, and only if, the Tenant does not
----------------------------------------------------------------------
substantially complete the Leasehold lmprovements in accordance with Article III
--------------------------------------------------------------------------------
within ninety (90) days from the Commencement Date. The Leasehold Improvement
------------------------------------------------------------------------------
Security Deposit shall be returned to Tenant upon completion of the Leasehold
------------------------------------------------------------------------------
Improvements, which completion shall be certified by the Landlord's Architect.
------------------------------------------------------------------------------
The Security Deposit shall be held [without] in an interest bearing escrow
---------------------------------- -----------------------------
account for and during the Term, which deposit plus interest shall be returned
------- -------------
to Tenant at the termination of this Lease, provided there exists no breach
of any undertaking of Tenant. Notwithstanding the foregoing, the Security
--------------------------------------------
Deposit shall be reduced on August 1 1999 to $47,000 (the "Security Deposit
----------------------------------------------------------------------------
Reduction Date"), provided that the Tenant has not been in default at any
-------------------------------------------------------------------------
time during the Term. If all or any part of the Security Deposit is applied to
--------------------
an obligation of Tenant hereunder, Tenant shall immediately upon request by
Landlord restore the Security Deposit to its original amount. Tenant shall not
have the right to call upon Landlord to apply all or any part of the Security
Deposit to cure any default or fulfill any obligation of Tenant, but such use
shall be solely in the discretion of Landlord. Upon any conveyance by Landlord
of its interest under this Lease, the Security Deposit may be delivered by
Landlord to Landlord's grantee or transferee. Upon any such delivery, Tenant
hereby releases Landlord herein named of any and all liability with respect to
the Security Deposit, its application and return, and ▇▇▇▇▇▇ agrees to look
solely to such grantee or transferee. It is further understood that this
provision shall also apply to subsequent grantees and transferees.
If, in the Landlord's sole and reasonable discretion, Landlord deems the
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Tenant's creditworthiness to be significantly improved as a result of an Initial
--------------------------------------------------------------------------------
Public Stock Offering, Landlord shall review the terms of the Security Deposit,
-------------------------------------------------------------------------------
which may be reduced earlier than the Security Deposit Reduction Date. In all
-----------------------------------------------------------------------------
other respects the terms of the Security Deposit as described herein shall
--------------------------------------------------------------------------
remain unchanged.
----------------
EXECUTED as a sealed instrument in three or more counterparts on the
day and year first written above.
LANDLORD: THE TRUSTEES OF LEXINGTON DEVELOPMENT COMPANY TRUST
by its Agent, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ Services Limited
Partnership
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
TENANT:
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:------------------------
(please print or type)
President of Photoelectron Corp.
Title:-----------------------
(please print or type)
A copy of ▇▇▇▇▇▇'s Corporate authorization for
such execution is attached hereto.
EXHIBIT B
---------
RIDER TO LEASE
between
The Trustees of Lexington Development Company Trust
and
PhotoElectron Corporation
The following provisions are incorporated as an integral part of the captioned
Lease.
1. ANNUAL RENT INCREASE The Annual Base Rent shall be
-------------------- ----
adjusted as follows:
For the period of July 15, 1997 - July 31, 1998 - The Annual Base
----
Rent shall be increased to $8.75/RSF:
For the period of August 1, 1998 - July 31, 1999 - The Annual Base Rent
----
shall be increased to $9.25/RSF:
For the period of August 1, 1999 - July 31, 2000 - The Annual Base Rent
----
shall be increased to $10.25/RSF:
For the period of August 1, 2000 - July 31, 2001 - The Annual Base Rent
----
shall be increased to $11.25/RSF:
For the period of August 1, 2001 - July 31, 2002 - The Annual Base Rent
----
shall be increased to $11.75/RSF:
2. (Intentionally Deleted)
---------------------
3. LEASEHOLD IMPROVEMENTS Tenant agrees to accept the Premises in its "as-is"
----------------------
condition; with the exception that Landlord shall be responsible for the removal
and repair of approximately twelve (12) half-height partitions located in the
Northwest corner of the first floor area only. Tenant shall be responsible to
pay all expenses toward the cost of architectural and engineering costs to
prepare the Complete Plans.
4. LEASE EXTENSION
---------------
Provided that this Lease is in full force and effect, Tenant has not been in
default under the terms of this Lease at any time during the term of the Lease
or at the time that Tenant exercises its option to extend the term or at the
commencement of such extension term and further provided that Tenant has not
assigned or sublet the original Premises and, in the event Tenant has exercised
-------- ---------------------------------------
its Option To Expand, the Tenant has not sublet or assigned more than 25% of
-----------------------------------------------------------------------------
the Total Rentable Floor Area of the Building, [Stricken Language] and
----------------------------------------------
Tenant is the then occupant of the [Stricken Language] Premises, Tenant shall
have the right to extend the term hereof for one (1) additional term of (5)
five years to commence immediately upon the expiration of the initial term by
written notice ("Tenant Extension Notice") to the Landlord given on or before
that date which is nine (9) months prior to the expiration of the initial
Term. If Tenant does not provide written notice of its option to extend on or
before the
Exhibit B, Rider To Lease
Photoelectron
pg. 2 of 3
dates specified herein, Tenant's option to extend shall be null and void and
Tenant shall have no right to extend the Term.
Such extension term shall be upon all of the same terms and conditions described
herein with the exception that Annual Rent payable shall be the then Fair Market
Rent. Landlord shall not be responsible for any leasehold improvements to the
Premises during the Extension Term.
If Tenant does not provide written notice of its option to extend on or before
the dates specified herein, Tenant's option to extend shall be null and void and
Tenant shall have no right to extend the Term.
5. OPTION TO EXPAND
----------------
Effective [Stricken Language] August 1, 1999 (the "Expansion Commencement
Date"), provided that Tenant is not then in default hereunder, Tenant shall have
the option to lease 15,718 RSF of additional space on the second floor at Five
Forbes Road (the "Expansion Space" as described in Exhibit A-1). Tenant shall
exercise this option by giving nine (9) months written notice to Landlord
[Stricken Language] prior to the Expansion Commencement Date of its intention to
lease the Expansion Space. Within fifteen (15) days of receipt by Landlord of
--------------------------------------------------
Tenant's notice, Landlord shall notify Tenant of the Annual Rent for the term
----------------------------------------------------------------------------
[Stricken Language] of the Lease for the additional space (the "Fair Market
------ -----------------
Rent Notice") which shall be upon all of the same terms and conditions as are
------------
contained herein except that the Annual Rent shall be the then Fair Market
-------------------
Rent which (a) Fair Market Rent shall not be less than $17.83/RSF
-----------------------------------------------------------------
including the Tenant's original Annual Estimated Operating Costs,
-----------------------------------------------------------------
being the average annual rent payable for the last three years of the Tenant's
------------------------------------------------------------------------------
original term and (b) Fair Market Rent shall not be greater than $20.00/RSF
---------------------------------------------------------------------------
including the Tenant's original Annual Estimated Operating Costs. Tenant shall
------------------------------------------------------------------------------
have fifteen (15) days from the Fair Market Rent Notice to advise Landlord in
-----------------------------------------------------------------------------
writing of Tenant's acceptance of the Fair Market Rent. If Tenant fails to
--------------------------------------------------------------------------
notify Landlord within such time period, Tenant shall be deemed to have rejected
--------------------------------------------------------------------------------
Landlord's offer, and Landlord shall be free to lease space to any third party
------------------------------------------------------------------------------
without further notice to Tenant. Additionally, if Landlord and Tenant, acting
------------------------------------------------------------------------------
reasonably and in good faith to negotiate the Fair Market Rent, are unable to
-----------------------------------------------------------------------------
agree to the Fair Market Rent within thirty (30) days from the Fair Market Rent
-------------------------------------------------------------------------------
Notice date, then Landlord shall be free to lease space to any third party
--------------------------------------------------------------------------
without further notice to Tenant. [Stricken Language] Landlord and Tenant
--------------------------------
further agree that the term shall be co-terminus with the Term of this Lease.
-----
Landlord shall not be responsible for any Leasehold Improvements to the
Expansion Space.
6. RIGHT OF FIRST OFFER
--------------------
Subject to the conditions subsequently set forth, and provided this Lease is in
full force and effect, and provided that Tenant has not been in default under
the terms of this Lease at any time during the term of the Lease or at the time
tenant exercises its right of first offer or at the commencement of the term for
the Additional Space (as defined herein) and provided further that Tenant
[Stricken Language] is the then occupant of the entire Premises, Tenant shall
have the Right of First Offer (the "Right of First Offer") to lease the rentable
area outlined on Exhibit A-2 (the
Exhibit B, Rider To Lease
Photoelectron
pg. 3 of 3
"Additional Space"). Tenant's right to lease the Additional Space shall arise
only upon the expiration of the term of any leases and shall be subject to such
options to extend or expand or rights of first refusal or first offer or similar
rights as may be held by any other tenant in the Building, pursuant to the terms
of its lease.
In the event landlord intends to lease the Additional Space, and this Right of
First Offer is applicable in accordance with the foregoing, Landlord shall give
written notice to Tenant of the availability of such space for leasing and on
what terms Landlord intends to lease such space. The Additional Space shall be
offered in its strictly "as-is" condition. Upon receipt of Landlord's notice,
Tenant shall have fifteen (15) days from the date of ▇▇▇▇▇▇▇▇'s notice to advise
Landlord in writing of Tenant's election to exercise its rights hereunder. If
Tenant fails to notify Landlord within such time period, Tenant shall be deemed
to have rejected Landlord's offer, and Landlord shall be free to lease such
-----------------------------------------
portion of the Additional Space to any person or entity without making any
--------------------------------------------------------------------------
further offer to Tenant. If accepted by Tenant then the Additional Space offered
----------------------------------------------
shall be taken by Tenant upon all the terms and conditions contained in
Landlord's offer. If requested by Landlord, Tenant shall execute a new lease or
amend the existing Lease to include the Additional Space.
EXHIBIT A [FIVE FORBES ROAD, FIRST FLOOR DRAWING GOES HERE.]
EXHIBIT A-1 [FIVE FORBES ROAD, SECOND FLOOR DRAWING GOES HERE.]
EXHIBIT A-2 [ONE FORBES ROAD, FIRST FLOOR DRAWING GOES HERE.]
EXHIBIT B [ONE FORBES ROAD, SECOND FLOOR DRAWING GOES HERE.]
EXHIBIT C [FIVE FORBES ROAD PROPOSED TENANT IMPROVEMENTS DRAWING GOES HERE.]
EXHIBIT D
LANDLORD'S SERVICES
I. CLEANING
A. General
1. All cleaning work will be performed between 8 a.m. and 12 midnight,
Monday through Friday, unless otherwise necessary for stripping, waxing,
etc.
2. Abnormal waste removal (e.g., computer installation paper, bulk
packaging, wood or cardboard crates, refuse from cafeteria operation,
etc.) shall be Tenant's responsibility.
B. Daily Operations (5 times per week)
1. Tenant Areas
a. Empty and clean all waste receptacles; wash receptacles as necessary.
b. Vacuum all rugs and carpeted areas.
c. Empty, damp-wipe and dry all ashtrays.
2. Lavatories
a. Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with disinfectant.
c. Wash all mirrors, basins, bowls, urinals.
d. Spot clean toilet partitions.
e. Empty and disinfect sanitary napkin disposal receptacles.
f. Refill toilet tissue, towel, soap, and sanitary napkin dispensers.
3. Public Areas
a. Wipe down entrance doors and clean glass (interior and exterior).
b. Vacuum elevator carpets and wipe down doors and walls.
c. Clean water coolers.
C. Operations as Needed (but not less than every other day)
1. Tenant and Public Areas
a. Buff all resilient floor areas.
D. Weekly Operations
1. Tenant Areas, Lavatories, Public Areas
a. Hand-dust and wipe clean all horizontal surfaces with treated cloths
to include furniture, office equipment, window ▇▇▇▇▇, door ledges,
chair rails, baseboards, convector tops, etc., within normal reach.
b. Remove finger marks from private entrance doors, light switches, and
doorways.
c. Sweep all stairways.
E. Monthly Operations
1. Tenant and Public Areas
a. Thoroughly vacuum seat cushions on chairs, sofas, etc.
b. Vacuum and dust grillwork.
2. Lavatories
a. Wash down interior walls and toilet partitions.
F. As Required and Weather Permitting
1. Entire Building
a. Clean inside of all windows.
b. Clean outside of all windows.
G. Yearly
1. Tenant and Public Areas
a. Strip and wax all resilient tile floor areas.
II. HEATING, VENTILATING, AND AIR CONDITIONING.
1. Heating, ventilating, and air conditioning as required to provide
reasonably comfortable temperatures for normal business day occupancy
(excepting holidays); Monday through Friday from 8:00 a.m. to 6:00 p.m.
and Saturday from 8:00 a.m. to 1:00 p.m.
2. Maintenance of any additional or special air conditioning equipment and
the associated operating cost will be at Tenant's expense.
III. WATER
Hot water for lavatory purposes and cold water for drinking, lavatory and
toilet purposes.
IV. ELEVATORS (if Building is Elevatored)
Elevators for the use of all tenants and the general public for access to
and from all floors of the Building. Programming of elevators (including,
but not limited to, service elevators) shall be as Landlord from time to
time determines best for the Building as a whole.
V. RELAMPING OF LIGHT FIXTURES
Tenant will reimburse Landlord for the cost of lamps, ballasts and starters
and the cost of replacing same within the Premises.
VI. CAFETERIA AND VENDING INSTALLATIONS
1. Any space to be used primarily for lunchroom or cafeteria operation
shall be Tenant's responsibility to keep clean and sanitary, it being
understood that Landlord's approval of such use must be first obtained
in writing.
2. Vending machines or refreshment service installations by Tenant must be
approved by Landlord in writing and shall be restricted in use to
employees and business callers. All cleaning necessitated by such
installations shall be at Tenant's expense.
VII. ELECTRICITY
A. Landlord, at ▇▇▇▇▇▇▇▇'s expense, shall furnish electrical energy
required for lighting, electrical facilities, equipment, machinery,
fixtures, and appliances used in or for the benefit of Tenant's Space,
in accordance with the provisions of the Lease of which this Exhibit is
part.
B. Tenant shall not, without prior written notice to Landlord in each
instance, connect to the Building electric distribution system any
fixtures, appliances or equipment other than normal office machines
such as desk-top calculators and typewriters, or any fixtures,
appliances or equipment which Tenant on a regular basis operates beyond
normal building operating hours. In the event of any such connection,
▇▇▇▇▇▇ agrees to an increase in the ANNUAL ESTIMATED ELECTRICAL COST TO
TENANT'S SPACE and a corresponding increase in Annual Rent by an amount
which will reflect the cost to Landlord of the additional electrical
service to be furnished by Landlord, such increase to be effective as
of the date of any such installation. If Landlord and Tenant cannot
agree thereon, such amount shall be conclusively determined by a
reputable independent electrical engineer or consulting firm to be
selected by Landlord and paid equally by both parties, and the cost
to Landlord will be included in Landlord's Operating Costs provided
in Section 4.2 hereof.
▇. ▇▇▇▇▇▇'s use of electrical energy in Tenant's Space shall not at any
time exceed the capacity of any of the electrical conductors or
equipment in or otherwise serving Tenant's Space. In order to insure
that such capacity is not exceeded and to avert possible adverse effect
upon the Building electric service, Tenant shall not, without prior
written notice to Landlord in each instance, connect to the Building
electric distribution system any fixtures, appliances or equipment
which operate on a voltage in excess of 120 volts nominal or make any
alteration or
addition to the electric system of Tenant's Space. Unless Landlord
shall reasonably object to the connection of any such fixtures,
appliances or equipment, all additional risers or other equipment
required therefor shall be provided by Landlord, and the cost thereof
shall be paid by Tenant upon ▇▇▇▇▇▇▇▇'s demand. In the event of any
such connection, ▇▇▇▇▇▇ agrees to an increase in the ANNUAL ESTIMATED
ELECTRICAL COST TO TENANT'S SPACE and a corresponding in Annual Rent by
an amount which will reflect the cost to Landlord of the additional
service to be furnished by Landlord, such increase to be effective as
of the date of any such connection. If Landlord and ▇▇▇▇▇▇ cannot agree
thereon, such amount shall be conclusively determined by a reputable
independent electrical engineer or consulting firm to be selected by
Landlord and paid equally by both parties, and the cost to Landlord
will be included in Landlord's Operating Costs provided in Section 4.2
hereof.
D. If at any time after the date of this Lease, the rates at which Landlord
purchases electrical energy from the public utility supplying electric
service to the Building, or any charges incurred or taxes payable by Landlord
in connection therewith, shall be increased or decreased, the Annual Rent and
ANNUAL ESTIMATED ELECTRICAL COST TO TENANT'S SPACE shall be increased or
decreased, as the case may be, by an amount equal to the estimated increase
or decrease, as the case may be, in Landlord's cost of furnishing the
electricity referred to in Paragraph A above as a result of such increase or
decrease in rates, charges, or taxes. If Landlord and ▇▇▇▇▇▇ cannot agree
thereon, such amount shall be conclusively determined by a reputable
independent electrical engineer or consulting firm to be selected by ▇▇▇▇▇▇▇▇
and paid equally by both parties, and the cost to Landlord will be included
in Landlord's Operating Costs as provided in Section 4.2 hereof. Any such
increase or decrease shall be effective as of the date of the increase or
decrease in such rate, charges, or taxes.
▇. ▇▇▇▇▇▇▇▇ may, at any time, elect to discontinue the furnishing of electrical
energy. In the event of any such election by Landlord: (1) Landlord agrees to
give reasonable advance notice of any such discontinuance to Tenant;
(2) Landlord agrees to permit Tenant to receive electrical service directly
from the public utility supplying service to the Building and to permit the
existing feeders, risers, wiring and other electrical facilities serving
Tenant's Space to be used by Tenant and/or such public utility for such
purpose to the extent they are suitable and safely capable; (3) ▇▇▇▇▇▇▇▇
agrees to pay such charges and costs, if any, as such public utility may
impose in connection with the installation of Tenant's meters and to make or,
at such public utility's election, to pay for such other installations as
such public utility may require, as a condition of providing comparable
electrical service to Tenant; (4) the Annual Rent shall be equitably
decreased to reflect such discontinuance by an amount equal to the ANNUAL
ESTIMATED ELECTRICAL COST TO TENANT'S SPACE then in effect; and (5) Tenant
shall thereafter pay, directly to the utility furnishing the same, all
charges for electrical services to the Premises.
F. Whenever the Annual Rent is increased or decreased pursuant to any of the
foregoing paragraphs of this Article, the parties agree, upon request of
either, to execute and deliver each to the other an amendment to this Lease
confirming such increase or decrease.
EXHIBIT E
RULES AND REGULATIONS
1. The entrances, lobbies, passages, corridors, elevators, halls, courts,
sidewalks, vestibules, and stairways shall not be encumbered or obstructed
by Tenant, Tenant's agents, servants, employees, licensees or visitors or
used by them for any purposes other than ingress or egress to and from the
Premises.
2. The moving in or out of all safes, freight, furniture, or bulky matter of
any description shall take place during the hours which Landlord may
determine from time to time. Landlord reserves the right to inspect all
freight and bulky matter to be brought into the Building and to exclude
from the Building all freight and bulky matter which violates any of these
Rules and Regulations or the Lease of which these Rules and Regulations are
a part. Landlord reserves the right to have ▇▇▇▇▇▇▇▇'s structural engineer
review Tenant's floor loads on the Premises at Tenant's expense.
3. Tenant, or the employees, agents, servants, visitors or licensees of Tenant
shall not at any time place, lease or discard any rubbish, paper, articles,
or objects of any kind whatsoever outside the doors of the Premises or in
the corridors or passageways of the Building. No animals or birds shall be
brought or kept in or about the Building. Bicycles shall not be permitted
in the Building.
4. Tenant shall not place objects against glass partitions or doors or windows
or adjacent to any common space which would be unsightly from the Building
corridors or from the exterior of the Building and will promptly remove the
same upon notice from Landlord.
5. Tenant shall not make noises, cause disturbances, create vibrations, odors
or noxious fumes or use or operate any electric or electrical devices or
other devices that emit sound waves or are dangerous to other tenants and
occupants of the Building or that would interfere with the operation of any
device or equipment or radio or television broadcasting or reception from
or within the Building or elsewhere, or with the operation of roads or
highways in the vicinity of the Building, and shall not place or install
any projections, antennae, aerials, or similar devices inside or outside of
the Premises, without the prior written approval of Landlord.
6. Tenant may not (without Landlord's approval therefor, which approval will
be signified on Tenant's Plans submitted pursuant to the Lease) and Tenant
shall not permit or suffer anyone to: (a) cook in the Premises; (b) place
vending or dispensing machines of any kind in or about the Premises; (c) at
any time sell, purchase or give away, or permit the sale, purchase, or gift
of food in any form.
7. Tenant shall not: (a) use the Premises for lodging, manufacturing or for
any immoral or illegal purposes; (b) use the Premises to engage in the
manufacture or sale of, or permit the use of spirituous, fermented,
intoxicating or alcoholic beverages on the Premises; (c) use the Premises
to engage in the manufacture or sale of, or permit the use of, any illegal
drugs on the Premises.
8. No awning or other projections shall be attached to the outside walls or
windows. No curtains, blinds, shades, screens or signs other than those
furnished by Landlord shall be attached to, hung in, or used in connection
with any window or door of the Premises without prior written consent of
Landlord.
9. No signs, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or
inside of the Premises if visible from outside of the Premises without the
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Landlord's prior written approval. Interior signs on doors and exterior
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signage as approved in the sole discretion of the Landlord shall be painted
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or affixed for Tenant by Landlord or by sign painters first approved by
Landlord at the expense of Tenant and shall be of a size, color, location
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and style acceptable to Landlord.
10. Tenant shall not use the name of the Building or use pictures or
illustrations of the Building in advertising or other publicity without
prior written consent of Landlord. Landlord shall have the right to
prohibit any advertising by Tenant which, in Landlord's opinion, tends to
impair the reputation of the Building or its desirability for offices, and
upon written notice from Landlord, Tenant will refrain from or discontinue
such advertising.
11. Door keys for doors in the Premises will be furnished at the Commencement
of the Lease by Landlord. Tenant shall not affix additional locks on doors
and shall purchase duplicate keys only from Landlord and will provide to
landlord the means of opening of safes, cabinets, or vaults left on the
Premises. In the event of the loss of any keys so furnished by Landlord,
Tenant shall pay to Landlord the cost thereof.
12. Tenant shall cooperate and participate in all security programs affecting
the Building.
13. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means
of entry to the Premises closed and secured.
14. Tenant shall not make any room-to-room canvass to solicit business from
other tenants in the Building, and shall not exhibit, sell or offer to
sell, use, rent or exchange any item or services in or from the Premises
unless ordinarily embraced within Tenant's use of the Premises as specified
in its Lease. Canvassing, soliciting and peddling in the Building are
prohibited and Tenant shall cooperate to prevent the same. Peddlers,
solicitors and beggars shall be reported to the Management Office.
15. Tenant shall not mark, paint, drill into, or in any way deface any part of
the Building or Premises. No boring, driving of nails, or screws, cutting
or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. Tenant shall not install
any resilient tile or similar floor covering the Premises except with the
prior written approval of Landlord. The use of cement or other similar
adhesive material is expressly prohibited. Landlord consents to Tenant's
installation of normal office decorations including artwork, bulletin
boards, calendars, etc.
16. Tenant shall not waste electricity or water and agrees to cooperate fully
with Landlord to assure the most effective operation of the Building's
heating and air conditioning and shall refrain from attempting to adjust
controls. Tenant shall keep corridor doors closed except when being used
for access.
17. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein.
18. Building employees shall not be required to perform, and shall not be
requested by any tenant or occupant to perform, any work outside of their
regular duties, unless under specific instructions from the office of the
Managing Agent of the Building.
19. Tenant may request heating and/or air conditioning during other periods in
addition to normal working hours by submitting its request in writing to
the office of the Managing Agent of the Building no later than 2:00 pm the
preceding work day (Monday through Friday) on forms available from the
office of the Managing Agent. The request shall clearly state the start and
stop hours of the "off-hour" service. Tenant shall submit to the Building
Manager a list of personnel authorized to make such request. The Tenant
shall be charged for such operation in the form of additional rent; such
charges are to be determined by the Managing Agent and shall be fair and
reasonable and reflect the additional operating costs involved.
20. Tenant covenants and agrees that its use of the Premises shall not cause a
discharge of more than the gallonage per foot of Premises Design Floor Area
per day of sanitary (non-industrial) sewage allowed under the sewage
discharge permit for the Building. Discharges in excess of that amount, and
any discharge of industrial sewage, shall only be permitted if Tenant, at
its sole expense, shall have obtained all necessary permits and licenses
therefor, including without limitation permits from state and local
authorities having jurisdiction thereof. Tenant shall submit to Landlord on
December 31 of each year of the Term of this Lease a statement, certified
by an authorized officer of Tenant, which contains the following
information: name of all chemicals, gases, and hazardous substances, used,
generated, or stored on the Premises; type of substance (liquid, gas or
granular); quantity used, stored or generated per year; method of disposal;
permit number, if any, attributable to each substance, together with copies
of all permits for such substances; and permit expiration date for each
substance.
