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Exhibit 10.15
LEASE
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THIS LEASE (this "Lease") is made as of October 1, 1993, by and between
THERMO INSTRUMENT SYSTEMS GMBH ("Lessor") and ESM XXXXXXXX INSTRUMENTS STRAHLEN
UND UMWELTMESSTECHNIK GMBH ("Lessee").
For and in consideration of the premises and mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEMISE OF PREMISES. Lessor does hereby lease to Lessee, and Lessee
does hereby lease from Lessor, those certain premises (the "Premises")
consisting of approximately 54,700 square feet of floor area in the building
known and numbered as Xxxxxxxxxxxxxx Xxxxxxx 00, 00000 Xxxxxxxx, Xxxxxxx (the
"Building"), together with all rights, privileges, appurtenances and amenities
belonging to or in any way appertaining to the Premises. The Premises are shown
outlined in red on the floor plan attached hereto as EXHIBIT A and incorporated
herein by this reference. The Building and the parcel of real property on which
the Building is located are hereinafter collectively referred to as the
"Property."
2. TERM. The term of this Lease shall be for a period of ten (10) years
(the "Term"), commencing on October 1, 1993 (the "Commencement Date") and
continuing through and including September 30, 2003; provided, however, that
Lessee shall have the right to terminate this Lease at any time upon no less
than thirty (30) days' prior written notice to Lessor.
3. RENT. Lessee hereby agrees to pay rent to Lessor in an amount equal to
192,000.00 DM per annum, calculated at the rate of 3.51 DM per square foot (the
"Rent"). All Rent shall be paid monthly in advance on the first day of each
calendar month. Rent for any partial month shall be prorated on a daily basis..
4. USE. Lessee may use and occupy the Premises for any lawful purpose.
5. MAINTENANCE.
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5.1 BY LESSOR. Lessor shall, at Lessor's sole cost and expense,
maintain throughout the Term of this Lease the foundation, floorslab, exterior
walls, load-bearing interior walls, structural portions, roof, gutters,
downspouts, doors, heating, ventilation and air conditioning ("HVAC") equipment
and electrical wiring of the Building, and all utility lines, pipes and plumbing
serving but located outside of the Building (including without limitation all
underground utility lines, pipes an plumbing), in good, clean, safe and, with
respect to the roof, watertight condition and repair. Lessor shall also perform,
at Lessor's sole cost and expense, all landscaping of the Property and all
maintenance of all paved areas located on the Property, including without
limitation all snow and ice removal therefrom. Lessor shall make all repairs and
replacements without, to the extent practicable, interfering with the conduct of
Lessee's business. If during such repairs or replacements the Premises are
rendered wholly or partially unsuitable for
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the operation of Lessee's business, there shall be an equitable abatement of
Rent until such time as such repairs and replacements have been completed.
Notwithstanding anything to the contrary contained herein, in no event shall
Lessor be obligated to make any repairs or replacements which are required as
the result of the negligence or willful misconduct of Lessee, its agents,
employees, representatives or contractors, or the failure of Lessee to perform
any of its obligations under this Lease, all of which repairs and replacements
shall be made by Lessee at Lessee's sole cost and expense.
5.2 BY LESSEE. Lessee shall, at Lessee's sole cost and expense,
maintain in good condition and repair throughout the Term of this Lease all
non-structural, interior portions of the Premises the maintenance of which is
not the responsibility of Lessor under Subsection 5.1 above. Notwithstanding
anything to the contrary contained herein, in no event shall Lessee be obligated
to make any repairs or replacements which would constitute items of expense
properly chargeable to "capital account under generally accepted accounting
principles consistently applied ("GAAP") or which are required as the result of
the negligence or willful misconduct of Lessor, its agents, employees,
representatives or contractors, or the failure of Lessor to perform any of its
obligations under this Lease, all of which repairs and replacements shall be
made by Lessor at Lessor's sole cost and expense.
6. LEGAL REQUIREMENTS. Lessor agrees that, during the Term of this Lease,
Lessor shall, at Lessor's sole cost and expense, promptly observe and comply
with, and conform the Premises to, all present and future ordinances, laws,
rules and regulations affecting the Premises whether the same are in force and
effect at the time of the Commencement Date or may in the future be passed,
enacted, or directed (collectively, "Legal Requirements"), and Lessor shall pay
all costs , expenses, liabilities, losses, damages, fines, penalties, claims and
demands, including without limitation reasonable attorneys' fees, that may in
any manner arise out of or be imposed because of the failure of Lessor to comply
with the provisions of this Section 6. Notwithstanding the foregoing, Lessee
shall comply, at Lessee's sole cost and expense, with all Legal Requirements to
the extent such compliance is necessitated by reason of the special nature of
Lessee's particular and specific use of the Premises. Each party shall have the
right, upon giving notice to the other, to contest any obligations imposed upon
such party pursuant to the provisions of this Section 6 and to defer its
respective compliance during the pendency of such contest, provided the
enforcement of such Legal Requirement is stayed during such contest and such
contest will not subject the other party to criminal penalty or interfere with
Lessee's use and occupancy of the Premises or jeopardize the title to the
Property. Each party shall cooperate reasonably with the other in any such
contest.
7. UTILITIES. Lessee agrees to pay to Lessor, as additional rent, all
charges for electricity, gas, water, garbage, sewage, telephone and other
utilities used or consumed in the Premises.
8. TAXES, ASSESSMENT AND INSURANCE.
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8.1 TAXES AND ASSESSMENTS. Lessor agrees to pay, at Lessor's sole
cost and expense, all taxes and special and general assessments which may be
levied upon the Property
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during the Term hereof at the time when the same become due and payable. Lessee
agrees to pay, at Lessee's sole cost and expense, all taxes and special and
general assessments which may be levied upon Lessee's personal property located
upon the Premises during the Term of this Lease at the time when the same become
due and payable.
In addition, Lessee agrees to pay to Lessor, as additional rent, with
respect to each tax year or portion thereof included in the Term, Lessee's Pro
Rata Share (as hereinafter defined) of the real estate taxes (exclusive of
betterment and special assessments) that are applicable to the Property during
the Term (the "Real Estate Taxes"). Lessee's Pro Rata Share shall be a
percentage equal to that proportion which the floor area of the Premises bears
to the total floor area of the Building. Lessee will pay to Lessor, within
thirty (30) days following Lessee's receipt of a copy of the applicable tax xxxx
therefor, Lessee's Pro Rata Share of the Real Estate Taxes covered by such xxxx.
If this Lease shall not be in force and effect for all of a particular tax year,
Lessee's payment of Real Estate Taxes as provided for herein shall be pro-rated
so that the amount payable by Lessee shall be based on the actual number of days
that this Lease shall be in force and effect during such tax year. If Lessor
shall obtain or receive any abatement, refund or rebate in Real Estate Taxes
theretofore paid by Lessee under this Lease, Lessor shall promptly forward to
Lessee Lessee's Pro Rata Share thereof, less Lessee's Pro Rata Share of the cost
incurred by Lessor in obtaining the same. Lessee shall not, in any event, be
liable for any interest or penalty charges payable with respect to any Real
Estate Taxes. The term "Real Estate Taxes" shall in no event be deemed to
include any income, excess profits, excise, franchise, estate, succession,
inheritance, gift, mortgage lien, documentary stamp or transfer taxes.
8.2 INSURANCE. Lessee agrees to carry and maintain in full force and
effect during the Term of this Lease, at Lessee's sole cost and expense, with
reputable companies duly authorized to transact business in the Federal Republic
of Germany, (i) public liability insurance naming Lessor as an Additional
Insured (to the extent of Lessee's negligence) and covering bodily injury and
property damage liability, with limits of coverage of not less than $1,000,000
for each person and $1,000,00 the aggregate for bodily injury or death for each
accident, and $1,000,000 for property damage for each accident, and (ii) a
policy of All-Risk insurance covering all Lessee Alterations (as defined in
Section 9 below) on a full replacement cost basis. Lessor agrees to carry and
maintain in full force and effect during the Term of this Lease, at Lessor's
sole cost and expense, a policy of All-Risk insurance, with extended coverage
endorsement, insuring the Building on a full replacement cost basis (excluding
any Lessee Alterations, which shall be insured by Lessee as aforesaid). Each
party shall, upon request, furnish to the other party certificates of all
insurance required to be maintained by such party under this Lease.
Notwithstanding anything to the contrary contained in this Lease, Lessor and
Lessee each hereby waives all rights of recovery against the other party, and
such other party's insurance carrier (by way of subrogation or otherwise), for
all losses, damages or injuries to the Property, any improvements thereon or any
personal property of either party therein, to the extent such waiver does not
invalidate the insurance coverage of either party and to the extent such losses,
damages or injuries are covered by insurance the damaged party is required to
carry hereunder or otherwise elects to maintain; provided, however, that the
foregoing waiver by either party shall not apply with respect to any loss,
damage or injury to the extent caused by the negligence or willful misconduct of
the other party, its agents, employees, representatives or contractors.
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9. ALTERATIONS. Lessee shall have the right to make non-structural,
interior alterations, additions, betterments or improvements to the Premises
without Lessor's consent; provided, however, that any such alterations,
additions, betterments or improvements which may have an impact on the exterior
walls or roof of the Building shall be subject to Lessor's prior consent, which
consent shall not be unreasonably withheld, conditioned or delayed. Any and all
alterations, additions, betterments and improvements made by Lessee ("Lessee
Alterations") shall be at Lessee's sole cost and expense and in compliance with
all applicable ordinances, laws, rules and regulations. Lessee agrees to remove
or bond over any mechanics', materialmen's or other liens created against or
imposed upon the Property, or any part thereof, as a result of any Lessee
Alterations. All Lessee Alterations shall become the property of Lessor upon the
expiration or earlier termination of this Lease. Lessee's trade fixtures,
equipment and personal property located on the Premises, however installed or
located, shall be and remain the property of Lessee and may be removed at any
time by Lessee from the Premises.
10. CONDEMNATION. If any part of the Premises shall be taken for public
use by right of eminent domain or transferred by agreement under threat of such
taking, this Lease shall terminate as of the earlier of the date of such taking
or agreement or the date title is vested in the condemnor or transferee. All
rights to damages or compensation with respect to such taking shall belong to
Lessor in all cases, except that Lessee shall have the right to prove and
collect in a separate action the value of the trade fixtures and Lessee
Alterations installed by it and moving expenses. In the event of the termination
of this Lease under the provisions of this Section 10, all Rent paid in advance
shall be apportioned and returned to Lessee as of the date of such termination.
Notwithstanding the foregoing, in the event that only a part of the Premises
shall be so taken and the part not so taken shall, in Lessee's opinion, be
sufficient for the operation of Lessee's business, Lessee, at its election, may
retain the part not so taken and this Lease shall continue in full force and
effect with a reduction in Rent in corresponding proportion to the reduction in
square footage. In the event of a partial taking where Lessee elects to continue
this Lease in accordance with the provisions of the immediately preceding
sentence, Lessor shall promptly restore, at Lessor's sole cost and expense, the
remainder of the Premises as nearly equivalent as practicable to its condition
immediately prior to such taking. If Lessor fails to so restore the Premises
within ninety (90) days from the date that possession of the portion of the
Premises taken is delivered to the condemning authority (including any and all
periods of Excusable Delay), then, in such event, Lessee may elect to terminate
this Lease by no less than ten (10) days' prior written notice to Lessor given
no later than thirty (30) days after the expiration of the aforesaid ninety
(90)-day period.
11. CASUALTY. In the event that less than fifty percent (50%) of the
Premises is damaged or destroyed by fire, the elements, or any other cause or
casualty, Lessor shall proceed with due diligence to repair the Premises
(excluding any Lessee Alterations) to a condition as nearly equivalent as
practicable to their condition immediately prior to such damage or destruction.
Within fifteen (15) days of such damage or destruction, Lessor shall notify
Lessee if the same can be so repaired within sixty (60) days of such damage or
destruction. If such repairs are not, or if Lessor notifies Lessee that the same
cannot be, completed as aforesaid within said sixty (60)-day period (including
any and all periods of Excusable Delay), Lessee may, at Lessee's
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option, terminate this Lease as of the date of such damage or destruction upon
written notice to Lessor given no less than five (5) business days after
Lessee's receipt of Lessor's notice or the expiration of said sixty (60)-day
period, as the case may be. Upon termination of this Lease, all Rent paid in
advance shall be apportioned as of the date of the damage or destruction.
In the event that more than fifty percent (50%) of the Premises is damaged
or destroyed by fire, the elements, or other cause or casualty, Lessor or Lessee
shall have the option to terminate this Lease upon written notice given to the
other party no later than ten (10) business days after the date of the
occurrence of such damage or destruction. Any such termination shall be
effective as of the date of such damage or destruction. If neither party elects
to exercise its option to terminate, Lessor shall proceed with due diligence to
repair the Premises (excluding any Lessee Alterations) to a condition as nearly
equivalent as practicable to their condition immediately prior to such damage or
destruction. Within fifteen (15) days of such damage or destruction, Lessor
shall notify Lessee if the same can be so repaired within ninety (90) days of
such damage or destruction. If such repairs are not, or if Lessor notifies
Lessee that the same cannot be, completed as aforesaid within said ninety
(90)-day period (including any and all periods of Excusable Delay), Lessee may,
at Lessee's option, terminate this Lease as of the date of such damage or
destruction upon written notice to Lessor given no less than five (5) business
days after Lessee's receipt of Lessor's notice or the expiration of said ninety
(90)-day period, as the case may be. Upon termination of this Lease, all Rent
paid in advance shall be apportioned as of the date of the damage or
destruction. A just proportion of the Rent according to the nature and extent of
the damage shall be abated until the completion of any restoration performed by
Lessor pursuant to this Section 11.
12. SUBORDINATION. This Lease shall be subject and subordinate to the lien
of any first mortgage of the entire fee interest of the Property to a bona fide
lending, thrift or banking institution, pension fund or insurance company to
provide construction and/or permanent financing and any renewals, modifications
or extensions thereof, provided that a Subordination, Recognition and
Non-Disturbance Agreement (a "Subordination Agreement") is executed,
acknowledged and delivered by such mortgagee to Lessee. Such Subordination
Agreement must be in form suitable for recording and must contain substantially
the following provisions:
(a) The mortgagee consents to and approves this Lease;
(b) Lessee shall not be named or joined as a party defendant in any
suit, action or proceeding for the foreclosure of the mortgage or to
enforce any rights under the mortgage or note or other obligation secured
thereby;
(c) The possession by Lessee of the Premises and Lessee's rights
thereto shall not be disturbed, affected or impaired by, nor will this
Lease or the Term be terminated or otherwise affected by, (i) any suit,
action or proceeding upon the mortgage or the note or other obligation
secured thereby, or the foreclosure of the mortgage or the enforcement of
any rights under the mortgage or any other documents held by the mortgagee,
or by any judicial sale or execution or other sale of the Prop or by any
deed given in lieu of foreclosure, or by the exercise of any other rights
given to the mortgagee by any other
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documents or as a matter of law or (ii) any default under the mortgage or
the note or other obligation secured thereby;
(d) If the mortgagee takes possession of the Property or starts
collecting rent or becomes the owner of the Property by reason of
foreclosure of the mortgage or otherwise, or if the Property shall be sold
as a result of any action or proceeding to foreclose the mortgage or by a
deed given in lieu of foreclosure, this Lease shall continue in full force
and effect, without necessity for executing any new lease, as a direct
lease between Lessee, as tenant thereunder, and the mortgagee or t owner of
the Property, as landlord thereunder, upon all of the same terms,
covenants, and provisions contained in this Lease, and in such event the
mortgagee or new owner shall be bound to Lessee under all of the terms,
covenants and provisions of this Lease for the remainder of the Term
hereof, which terms, covenants and provisions such mortgagee or new owner
hereby agrees to assume and perform;
(e) The mortgagee must acknowledge and agree that all trade fixtures,
equipment and personal property owned by Lessee located or installed in or
on the Premises, regardless of the manner or mode of attachment, shall be
and remain the property of Lessee and may be removed by Lessee at any time.
In no event (including a default under this Lease or the mortgage) shall
the mortgagee have any liens, rights or claims in Lessee's property unless
such property or any part thereof shall be deem fixtures; and the mortgagee
expressly waives all rights of levy, distraint, or execution with respect
to said property; and
(f) Such Subordination Agreement shall bind and inure to the benefit
of and be enforceable by the parties thereto and their respective heirs,
personal representatives, successors and assigns.
The term "mortgage", as used herein, includes mortgages, deeds of trust or
other similar instruments and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof. In the event of the existence of
any mortgage at the time this Lease is executed and to which this Lease would
otherwise be subordinate, Lessor shall obtain a Subordination Agreement in the
form set forth above simultaneously with, or before the date of, Lessee's
execution of this Lease.
13. LESSOR'S WARRANTIES. To induce Lessee to execute this Lease, and in
consideration thereof, Lessor represents, warrants and covenants as follows:
(a) Lessor has good fee simple title to the Property, including the
Premises.
(b) As of the Commencement Date, (i) the Premises shall be in
compliance with all applicable laws, codes, ordinances, orders, rules and
regulations of any governmental or other public authority, and (ii) there shall
be no restrictions or other legal impediments, either imposed by law (including
without limitation applicable zoning and building codes or ordinances) or by
instrument, which would prevent the use of the Premises for the intended uses
hereunder.
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(c) This Lease and the Premises are not in violation of the provisions
of any instrument executed by Lessor or any instrument which places any
restrictions or burdens on the Premises.
14. ASSIGNMENT AND SUBLETTING. Lessee may not assign this Lease or sublet
the Premises, in whole or in part, without the express written consent of
Lessor.
15. LESSEE'S DEFAULT.
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15.1 EVENT OF DEFAULT. Each of the following events shall constitute
an "Event of Default" of Lessee:
(a) Lessee's failure to pay when due any payment of Rent or other
sum which it is obligated to pay by any provision of this Lease, which failure
continues for ten (10) days after written notice thereof by Lessor to Lessee;
and
(b) Lessee's failure to perform any of its other obligations under
the provisions of this Lease, which failure continues for thirty (30) days after
written notice thereof by Lessor to Lessee (or, if such failure cannot
reasonably be cured in thirty (30) days, if Lessee fails to commence to cure the
same within said thirty (30)-day period and thereafter diligently to prosecute
such cure to completion).
15.2 LESSOR'S REMEDIES. If any Event of Default occurs, Lessor shall
have the right, at the option of Lessor, to terminate this Lease upon three (3)
days written notice to Lessee, and thereupon to re-enter and take possession of
the Premises. If any Event of Default occurs, Lessor shall further have the
right, at its option, from time to time, without terminating this Lease, to
re-enter and relet the Premises, or any part thereof, as the agent and for the
account of Lessee upon such terms and conditions as Lessor may deem advisable or
satisfactory, in which event the rents received on such re-letting shall be
applied first to the expenses of such re-letting and collection including, but
not limited to, necessary renovation and alterations of the Premises, reasonable
attorneys' fees, any real estate commissions paid, and thereafter toward payment
of all sums due or to become due to Lessor hereunder, and if a sufficient sum
shall not be thus realized or secured to pay such sums and other charges, (i) at
Lessor's option, Lessee shall pay Lessor any deficiency immediately upon demand
therefor, and Lessor may bring an action therefor as such deficiency shall
arise, or (ii) at Lessor's option, the present value of the entire deficiency,
which is subject to ascertainment for the remaining Term of this Lease, less the
amount Lessee proves could have been reasonably avoided by Lessor, shall be
immediately due and payable by Lessee. Lessor shall not, in any event, be
required to pay Lessee any surplus of any sums received by Lessor on a
re-letting of the Premises in excess of the Rent provided in this Lease.
If any Event of Default occurs, Lessor, in addition to other rights and
remedies it may have, shall have the right in accordance with applicable law to
remove all or any part of Lessee's property from the Premises and any property
removed may be stored in any public warehouse or elsewhere at the cost of, and
for the account of, Lessee, and Lessor shall not be responsible for
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the care or safekeeping thereof whether in transport, storage or otherwise, and
Lessee hereby waives any and all claims against Lessor for loss, destruction
and/or damage or injury which may be occasioned by any of the aforesaid acts.
No such re-entry or taking possession of the Premises by Lessor shall be
construed as an election on Lessor's part to terminate this Lease unless a
written notice of such intention is given to Lessee. Notwithstanding any such
re-letting without termination, Lessor may at all times thereafter elect to
terminate this Lease for such previous Event of Default. Notwithstanding
anything to the contrary contained herein, Lessor agrees to use reasonable
efforts to mitigate its damages following the occurrence of an Event of Default.
16. LESSOR'S DEFAULT. In the event of a default by Lessor under this
Lease, which default is not cured within sixty (60) days after written notice
thereof by Lessee to Lessor, Lessee may, but shall not be obligated to, cure
such default and reimburse itself for the cost thereof out of payments
thereafter accruing hereunder (with any unreimbursed balance remaining upon the
expiration or earlier termination of this Lease to be promptly paid by Lessor to
Lessee).
17. ENVIRONMENTAL. Lessor agrees to indemnify, defend and hold harmless
Lessee, its parent, subsidiaries and affiliates, and their respective officers,
directors, shareholders and employees, from and against any and all liabilities,
losses, damages, suits, actions, causes of action, costs, expenses (including
without limitation reasonable attorneys' fees and disbursements and court
costs), penalties, fines, demands, judgments, claims or liens (including without
limitation liens or claims imposed under any environmental legislation) arising
from or in connection with the presence at the time of Lessee's taking
possession of the Premises of Hazardous Materials (as hereinafter defined) on,
in or under, or the subsequent removal thereof from, the Property.
Lessee agrees to indemnify, defend and hold harmless Lessor from and
against any and all liabilities, losses, damages, suits, actions, causes of
action, costs, expenses (including without limitation reasonable attorneys' fees
and disbursements and court costs), penalties, fines, demands, judgments, claims
or liens (including without limitation liens or claims imposed under any
environmental legislation) arising from or in connection with the use, storage,
release or discharge by Lessee of Hazardous Materials on, in or under, or the
subsequent removal thereof from, the Property.
For purposes of this Section 17, the term "Hazardous Materials" shall
include without limitation (A) any petroleum product, any flammable, explosive
or radioactive material, or any hazardous or toxic waste, substance or material,
including without limitation substances defined as "hazardous substances",
"hazardous materials," "solid waste" or "toxic substances" under any laws
relating to hazardous or toxic materials and substances, air pollution
(including noise and odors), water pollution, liquid and solid waste,
pesticides, drinking water, community and employee health, environmental land
use management, stormwater, sediment control, nuisances, radiation, wetlands,
endangered species, environmental permitting or petroleum products, which would
be applicable to the Property if the same were located in the Commonwealth of
Massachusetts, USA, which laws may include, but not be limited to, the Federal
Insecticide,
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Fungicide, and Rodenticide Act, as amended; the Toxic Substances Control Act;
the Clean Water Act; the National Environmental Policy Act, as amended; the
Solid Waste Disposal Act, as amended; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986; the Hazardous Materials Transportation Act, as
amended; the Resource Conservation and Recovery Act, as amended; the Clean Air
Act, as amended; the Emergency Planning and Community Right-to-Know Act, as
amended; the Occupational Safety and Health Act, as amended; comparable state
laws and ordinances; and all rules and regulations promulgated pursuant to such
laws and ordinances; and (B) any other substances or materials which are subject
to comparable regulation by the Federal Republic of Germany or any other public
or governmental authority having jurisdiction over the Property.
The provisions of this Section 17 shall survive the expiration or earlier
termination of this Lease.
18. INDEMNIFICATION. Lessee shall indemnify, defend with competent and
experienced counsel and hold harmless Lessor from and against any and all
damages, liabilities, actions, causes of action, suits, claims, demands, losses,
costs and expenses (including without limitation reasonable attorneys' fees and
disbursements and court costs) to the extent arising from or in connection with
the negligence or willful misconduct of Lessee, its agents, employees,
representatives or contractors.
Lessor shall indemnify, defend with competent and experienced counsel and
hold harmless Lessee, its parent, subsidiaries and affiliates, and their
respective officers, directors, shareholders and employees, from and against any
and all damages, liabilities, actions, causes of action, suits, claims, demands,
losses, costs and expenses (including without limitation reasonable attorneys'
fees and disbursements and court costs) to the extent arising from or in
connection with the negligence or willful misconduct of Lessor, its agents,
employees, representatives or contractors.
The party seeking indemnification under this Section (the "Indemnified
Party") shall provide prompt written notice of any third party claim to the
party from whom indemnification is sought (the "Indemnifying Party"). The
Indemnifying Party shall have the right to assume exclusive control of the
defense of such claim or, at the option of the Indemnifying Party, to settle the
same. The Indemnified Party agrees to cooperate reasonably with the Indemnifying
Party in connection with the performance of the Indemnifying Party's obligations
under this Section.
The provisions of this Section shall survive the expiration or earlier
termination of this Lease.
19. PREVAILING PARTY. If any action at law or in equity is brought to
enforce or interpret the provisions of this Lease, the prevailing party in such
action shall be entitled to reimbursement of the reasonable attorneys' fees and
disbursements and court costs incurred by said prevailing party in connection
with such action.
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20. EXCUSABLE DELAY. Except as otherwise expressly provided herein, in any
case where either party hereto is required to perform any act, delays caused by
or resulting from acts of God, war, civil commotion, labor difficulties,
shortages of labor, materials or equipment, government regulations, or other
causes beyond such party's reasonable control (individually, an "Excusable
Delay") shall not be counted in determining the time during which the
performance of such act shall be completed, whether such time be designated by a
fixed date, a fixed time or "a reasonable time."
21. BROKERAGE. Each of the parties hereto represents and warrants to the
other that there are no claims for brokerage commissions or finder's fees in
connection with the execution of this Lease. Each party shall indemnify and hold
harmless the other party from and against any and all claims for brokerage fees,
commissions or other charges arising from the dealings of such party in
connection with this Lease.
22. HOLDING OVER. Lessor agrees that no holding over by Lessee after the
expiration of this Lease shall operate to extend or renew this Lease, and that
any such holding over shall be construed as a tenancy from month to month at one
hundred fifty percent (150%) of the monthly Rent in effect when such holding
over shall have commenced, and such tenancy shall be subject to all the terms,
conditions, covenants and agreements of this Lease.
23. QUIET ENJOYMENT. Lessor agrees that, so long as Lessee is not in
default hereunder beyond the expiration of all applicable notice and cure
periods, Lessee may peaceably and quietly have, hold and enjoy the Premises
during the Term of this Lease, as the same may be extended, without any manner
of hindrance, disturbance or molestation.
24. SUCCESSORS AND ASSIGNS. It is understood and agreed by and between the
parties hereto that the agreements, covenants, terms, conditions, provisions and
undertakings in this Lease shall extend to and be binding upon the permitted
assigns and successors-in-interest of the respective parties hereto, as if they
were in every case named and expressed, and shall be construed as covenants
running with the land; and wherever reference is made to either of the parties
hereto, it shall be held to include and apply also to the heirs, personal
representatives, beneficiaries, successors and permitted assigns of such party,
as if in each and every case so expressed.
25. NOTICES. Whenever, by the terms of this Lease, notice, demand or other
communication shall or may be given to either party, the same shall be in
writing and addressed as follows:
If to Lessor:
Thermo Instrument Systems GmbH
Xxxxxxxxxxxxxx Xxxxxxx 00
00000 Xxxxxxxx
Xxxxxxx
Attention: President
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with a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
X.X.X.
Attention: General Counsel
If to Lessee:
ESM Xxxxxxxx Instruments Strahlen und Umweltmesstechnik GmbH
Xxxxxxxxxxxxxx Xxxxxxx 00
00000 Xxxxxxxx
Xxxxxxx
Attention: President
with a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
X.X.X.
Attention: General Counsel
or to such other address or addresses as shall from time to time be designated
by written notice by either party to the other as herein provided. All notices
shall be sent by registered or certified mail, postage pre-paid and return
receipt requested, or by Federal Express or other comparable courier providing
proof of delivery, and shall be deemed duly given and received (i) if mailed, on
the third business day following the mailing thereof, or (ii) if sent by
courier, the date of its receipt (or, if such day is not a business day, the
next succeeding business day).
26. YIELD UP. Lessee agrees on or before the expiration date of the Term
of this Lease, as the same may be extended, to remove its trade fixtures,
equipment and personal property, to repair any damage caused by such removal, to
surrender all keys to the Premises and to yield up the Premises in the same
order and repair in which Lessee is obligated to maintain the Premises by the
provisions of this Lease, reasonable wear and tear and damage by casualty or
taking excepted.
27. MISCELLANEOUS. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, U.S.A.. This
Lease constitutes the entire agreement between Lessor and Lessee with respect to
the subject matter hereof and shall not be supplemented, amended, varied or
modified in any manner except by an instrument in writing signed by duly
authorized representatives of both parties. No delay or omission on the part of
either party to this Lease in requiring performance by the other party or in
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exercising any right hereunder shall operate as a waiver of any provision hereof
or of any right hereunder, and the waiver, omission or delay in requiring
performance or exercising any right hereunder on any one occasion shall not be
construed as a bar to or waiver of such performance or right on any future
occasion. Any and all rights and remedies which either party may have under this
Lease, at law or in equity, shall be cumulative and shall not be deemed
inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law. Section
headings and the organization of this Lease are for descriptive purposes only
and shall not control or alter the meaning of this Lease. The individuals
executing this Lease hereby represent and warrant that they are empowered and
duly authorized to so execute this Lease on behalf of the parties they
represent.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as a sealed
instrument as of the date first above written.
LESSOR:
THERMO INSTRUMENT SYSTEMS GMBH
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
Managing Director
LESSEE:
ESM XXXXXXXX INSTRUMENTS STRAHLEN
UND UMWELTMESSTECHNIK GMBH
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Xxxxxx Xxxxx
Managing Director
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