Exhibit 2.6
SUBLEASE
THIS SUBLEASE (this "Sublease") is made as of October 10,
1997, by and between THERMO TERRATECH INC., a Delaware
corporation ("Sublandlord"), and HOLCROFT L.L.C., a Delaware
limited liability company ("Subtenant").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Agreement of
Lease dated as of December 31, 1985 (as amended, the
"Xxxxxxxxx"), by and between W & C Investment Co.
("Overlandlord"), successor-in-interest to Claridge Properties
Ltd., and TMO, Inc. ("Overtenant"), successor-in-interest to
Thermo Electron Corporation, Overlandlord currently leases to
Overtenant certain premises known and numbered as 00000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, and more particularly described in the
Xxxxxxxxx (the "Entire Premises"); and
WHEREAS, pursuant to the terms of that certain Sublease
dated as of March 30, 1986 (as amended, the "Oversublease"), by
and between Overtenant and Sublandlord, successor-in-interest to
Holcroft/Xxxxxx, Inc., Overtenant currently subleases to
Sublandlord the Entire Premises; and
WHEREAS, Sublandlord desires to further sublease to
Subtenant varying portions of the Entire Premises upon the terms
and subject to the conditions more particularly set forth herein;
NOW, THEREFORE, in consideration of the 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 Sublease Premises.
1.1 Upon the terms and subject to the conditions
hereinafter set forth, Sublandlord agrees to demise to Subtenant
the following premises:
(a) During Subterm A (as defined in Section 2
below), a portion of the Entire Premises consisting of
approximately 96,000 square feet and delineated in red on the
Site Plan attached hereto as Exhibit A and incorporated herein by
this reference (the "Sublease Premises A");
(b) During Subterm B (as defined in Section 2
below), the Sublease Premises A, together with an additional
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portion of the Entire Premises consisting of approximately 37,000
square feet and delineated in blue on the Site Plan attached
hereto as Exhibit A (collectively, the "Sublease Premises B");
and
(c) During Subterm C (as defined in Section 2
below), the Sublease Premises B, together with an additional area
consisting of approximately 37,000 square feet and comprising the
balance of the Entire Premises.
The term "the Sublease Premises" as used in this Sublease shall
mean and refer to (i) the Sublease Premises A during Subterm A,
(ii) the Sublease Premises B during Subterm B and (iii) the
Entire Premises during Subterm C. Subtenant shall have the right
(in common with others during Subterm A and Subterm B, and
exclusively during Subterm C) to use the parking and other common
areas serving the Entire Premises.
1.2 Notwithstanding the foregoing, Subtenant shall
have the right at any time during Subterm B to elect, upon
written notice to Sublandlord (the "Expansion Notice"), to add to
the Sublease Premises B the then unleased balance of the Entire
Premises, effective as of the date of Sublandlord's receipt of
the Expansion Notice; provided, however, that Subtenant's
aforesaid right of expansion shall not be exercisable if
Sublandlord has, prior to its receipt of the Expansion Notice
from Subtenant, signed a sublease or letter of intent with a
third party for the subleasing of such space.
2. Term. The term of this Sublease shall commence on
October 10, 1997 (the "Commencement Date") and shall continue for
the following consecutive periods:
(a) The period from the Commencement Date through and
including October 31, 1997 ("Subterm A");
(b) The period from November 1, 1997 through and
including October 31, 1998 ("Subterm B"); and
(c) The period from November 1, 1998 through and
including December 31, 2004 ("Subterm C");
provided, however, that if Subtenant elects to
exercise its expansion option under Section 1.2
above, Subterm C shall commence as of the date of
Sublandlord's receipt of the Expansion Notice.
Subterm A, Subterm B and Subterm C are hereinafter collectively
referred to as the "Term".
3. Annual Fixed Rent. Subtenant shall pay to
Sublandlord, in lawful money of the United States, without any
set-off or deduction whatsoever, annual fixed rent (the "Annual
Fixed Rent") at the following rates:
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Annual Fixed
Period Rent Rate
(a) Subterm A and Subterm B: $228,500
(b) Subterm C: The annual fixed
rental payable by
Overtenant to
Overlandlord under
Article 3 of the
Xxxxxxxxx.
The Annual Fixed Rent shall be payable in twelve (12) equal
monthly installments in advance on the first day of each calendar
month during the Term hereof; provided, however, that the parties
agree that the installment of Annual Fixed Rent payable with
respect to Subterm A shall be paid upon execution of this
Sublease and that such installment shall be calculated as if
Subterm A commenced on October 1, 1997. In the event that the
Term expires, or this Sublease is otherwise terminated in
accordance with its terms, on a date other than the last day of a
calendar month, the final monthly installment of Annual Fixed
Rent shall be pro-rated accordingly on a per diem basis. All
payments of Annual Fixed Rent, additional rent and other charges
under this Sublease shall be made to Sublandlord at its address
set forth in Section 17 below, or at such other address or
addresses as Sublandlord may from time to time designate.
4. Insurance.
4.1 Subtenant shall obtain on or before the
Commencement Date, and shall keep in effect at all times during
the Term hereof, the following insurance coverage with respect to
the Sublease Premises:
(a) Comprehensive general liability insurance insuring
against claims for bodily injury, death or property damage
occurring on, in or about the Sublease Premises, written on an
occurrence basis and having a combined single limit not less than
$5,000,000.00;
(b) Workers' Compensation Insurance, in amounts
required by applicable law, covering all persons working at or in
the Sublease Premises;
(c) Fire and Extended Coverage Insurance in an amount
adequate to cover the actual cash value of all of Subtenant's
personal property, trade fixtures, tenant improvements, equipment
and the like located on the Sublease Premises; and
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(d) Such other insurance as Overlandlord may
reasonably require.
All such insurance shall be in responsible companies
qualified to do business in the State of Michigan, and Subtenant
shall deliver to Sublandlord, prior to the time such insurance is
required to be maintained, certificates of such insurance
evidencing the coverage required hereunder. The insurance
referenced in clause (a) above shall name Sublandlord,
Overtenant, Overlandlord and any Mortgagee (as defined in Section
3A.02 of the Xxxxxxxxx) as additional insureds, and shall provide
that the same may only be canceled or amended upon no less than
ten (10) days' prior written notice to said additional insureds.
Notwithstanding anything to the contrary contained herein,
Sublandlord and Subtenant each hereby waives all rights of
recovery against the other party, and such other party's
insurance company (by way of subrogation or otherwise), for all
losses, damages or injuries to the Sublease Premises or Entire
Premises, any improvements thereon or any personal property of
either party therein, to the extent such waiver does not
invalidate any insurance coverage of either party; 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.
4.2 During Subterm A and Subterm B, Subtenant shall
pay to Sublandlord, as additional rent, Subtenant's Pro Rata
Share (as hereinafter defined) of the cost incurred by
Sublandlord in maintaining the insurance coverage required under
Article 7 of the Xxxxxxxxx. During Subterm C, Subtenant shall
pay to Sublandlord, as additional rent, the full amount of the
cost incurred by Sublandlord in maintaining the aforesaid
insurance coverage. For purposes of this Sublease, Subtenant's
Pro Rata Share at any given time during the Term hereof shall be
a percentage equal to the ratio of the then total square footage
of the Sublease Premises to the total square footage of the
Entire Premises.
4.3 Payment of all additional rent under this Section
4 shall be made by Subtenant to Sublandlord within ten (10) days
after demand therefor.
5. Additional Charges.
5.1 During Subterm A and Subterm B, Subtenant shall
pay to Sublandlord, as additional rent, Subtenant's Pro Rata
Share of all Impositions (as defined in Section 4.01 of the
Xxxxxxxxx) payable to Overlandlord under Article 4 of the
Xxxxxxxxx. During Subterm C, Subtenant shall pay to Sublandlord,
as additional rent, the full amount of all Impositions payable to
Overlandlord under Article 4 of the Xxxxxxxxx.
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5.2 During Subterm A and Subterm B, Subtenant shall
pay to Sublandlord, as additional rent, Subtenant's Pro Rata
Share of all charges payable to Overlandlord under Article 5 of
the Xxxxxxxxx, except for utility charges which shall be payable
in accordance with the following provisions of this Section 5.2.
During Subterm A, Subtenant shall pay to Sublandlord, as
additional rent, all charges for electricity, gas, water, sewage,
garbage, telephone and other utilities (collectively,
"Utilities") used or consumed in the Sublease Premises, which
charges shall be based upon Subtenant's estimated usage as
determined by Sublandlord in its reasonable discretion. From and
after the commencement date of Subterm C, Subtenant shall pay,
directly to the applicable provider thereof, all charges for
Utilities used or consumed in the Entire Premises.
5.3 Payment of all additional rent under this Section
5 shall be made by Subtenant to Sublandlord within ten (10) days
after demand therefor.
6. Use. Subtenant shall have the right to use the
Sublease Premises only for those uses permitted under Article 2
of the Xxxxxxxxx. Subtenant shall conduct its business
operations in the Sublease Premises in a first class manner and
so as not to disturb the quiet enjoyment or interfere with the
business operations of any other tenant or occupant of the
building in which the Sublease Premises are located. Subtenant
shall not commit or suffer to be committed any waste upon the
Sublease Premises and agrees not to injure, overload, deface or
otherwise damage the Sublease Premises. Subtenant shall not
permit the emission of any objectionable noise, vibration, odor
or fumes from the Sublease Premises, nor make any use of the
Sublease Premises which is offensive, noxious, or liable to
create a nuisance or to invalidate or increase the premiums for
any insurance thereon maintained by Overtenant and/or
Overlandlord. In its use and occupancy of the Sublease Premises,
Subtenant shall comply, at Subtenant's sole cost and expense,
with the requirements of all applicable zoning, building, fire,
health and other codes, statutes, regulations, rules, orders,
ordinances and laws of any federal, state or local governmental
or other public authority (including without limitation any
requirements related to the issuance of a certificate of
occupancy for the Sublease Premises). Subtenant, promptly after
obtaining knowledge thereof, will notify Sublandlord, and any
other persons designated by Sublandlord, of any action or
proceeding affecting the Sublease Premises.
7. Alterations. Subtenant shall not make any
alterations, additions or improvements to the Sublease Premises
without the prior written consent of Sublandlord, which consent
will not be unreasonably withheld; provided, however, that it is
understood and agreed that the granting of Sublandlord's consent
under this Section 7 with respect to any proposed alteration,
addition or improvement shall be conditioned upon Sublandlord's
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receipt of Overlandlord's consent to the same, to the extent
required by the terms of the Xxxxxxxxx, and further provided that
the making by Subtenant of any such alteration, addition or
improvement shall be in compliance with all applicable provisions
of Article 11 of the Xxxxxxxxx. Notwithstanding the foregoing,
in the event that any proposed alteration, addition or
improvement is approved by Overlandlord and Overlandlord further
agrees in writing that the same need not be removed upon the
expiration or earlier termination of the Xxxxxxxxx, Sublandlord's
consent to the making of such alteration, addition or improvement
shall not be required.
8. Maintenance and Repair.
8.1 During Subterm A and Subterm B, Sublandlord shall,
at its sole cost and expense, maintain the Sublease Premises in
good condition and repair; provided, however, that to the extent
any repairs are required due to the negligence or willful
misconduct of Subtenant, its agents, employees, representatives
or contractors, the same shall be made by Subtenant at
Subtenant's sole cost and expense. Notwithstanding anything to
the contrary contained herein, Subtenant shall be solely
responsible for janitorial cleaning of the Sublease Premises and
garbage and trash disposal therefrom. Subtenant shall provide,
at Subtenant's sole cost and expense, reasonable security
protection for the Sublease Premises.
8.2 During Subterm C, Subtenant shall, at its sole
cost and expense, maintain the Sublease Premises, and all
sidewalks, grounds, parking and other areas, vaults, chutes,
sidewalk hoists, railings, gutters, water and sewer connections,
alleys and curbs in front of or adjacent to the Sublease
Premises, in good and safe order and condition, all in accordance
with Article 10 of the Xxxxxxxxx, and shall further perform all
other obligations of the lessee under said Article 10.
9. Fire and other Casualty. If the whole or any part of
the Sublease Premises shall be damaged by fire or other casualty
and neither the Xxxxxxxxx nor the Oversublease is terminated on
account thereof, this Sublease shall remain in full force and
effect and Annual Fixed Rent and all other charges payable
hereunder shall not xxxxx unless there is an abatement of Fixed
Rent and Additional Rent under the terms of the Xxxxxxxxx, and
then only to the extent such abatement is allocable to the
Sublease Premises.
10. Subordination. This Sublease shall be fully
subordinate to (i) the Xxxxxxxxx and all extensions or
modifications thereof, (ii) any Mortgage (as defined in Section
3A.02 of the Xxxxxxxxx) on the Sublease Premises or any part
thereof, and (iii) the Oversublease. The foregoing provisions
shall be self-operative and no further instrument of
subordination shall be necessary; provided, however, that
Subtenant agrees to execute any and all documents or instruments
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required by Overlandlord under the Xxxxxxxxx, the holder of any
such Mortgage or Overtenant, or their respective counsel, to
evidence such subordination. A true and complete copy of each of
the Xxxxxxxxx and Oversublease are attached hereto as Exhibit B-1
and Exhibit B-2, respectively. The following provisions of the
Xxxxxxxxx are incorporated herein by reference, as they relate to
the Term hereof and to the Sublease Premises, with the same force
and effect as if they were fully set forth herein, except as to
those matters otherwise provided for herein: Articles 2, 3
(except for Section 3.01), 3A (except for the words "is a net
lease" in line one of Section 3A.01), 4 (except for Section
4.04), 5, 6, 9 (but only to the extent applicable to Sections
10.01 and 12.01 of the Xxxxxxxxx), 10 and 11 (but only to the
extent applicable to Sections 10.01 and 12.01 of the Xxxxxxxxx
and Section 7 of this Sublease), Section 12.01 (except for the
phrase commencing in line 20 of Section 12.01 with words
"provided, however, that the provisions of this" and continuing
through the end of Section 12.01), Section 12.02 (but only the
last sentence thereof), Section 12.03 (except for the insert
denoted by an asterisk in line 9), Articles 13, 16 (except for
the balance of the first sentence of Section 16.01 from and after
the comma in line 2 thereof), 17, 19, 21, 23, 24, 25, 27, 30 (but
only to the extent applicable to Section 23 of this Sublease),
31, 32 and 33 (except for Section 33.09). Subtenant hereby
assumes, and covenants and agrees to perform, all of the
obligations of the lessee under the Xxxxxxxxx to the extent such
obligations are incorporated herein by reference and relate to
the Sublease Premises during the Term hereof. To the extent that
any provision in the Xxxxxxxxx incorporated herein by reference
conflicts with any provisions of this Sublease, the provisions of
this Sublease shall be controlling. Sublandlord agrees to
perform its obligations as tenant under the Oversublease, except
to the extent such obligations are assumed by Subtenant
hereunder. Subject to Section 16 below, if for any reason the
term of the Xxxxxxxxx or of the Oversublease is terminated prior
to the expiration date of this Sublease, this Sublease shall
thereupon terminate, and Sublandlord shall not be liable to
Subtenant by reason thereof.
11. Covenants Regarding Xxxxxxxxx.
(a) Subtenant covenants and agrees not to do or permit
to be done any act of commission or omission which would
constitute a violation or default under the Oversublease and/or
the Xxxxxxxxx.
(b) Each party hereto promptly shall deliver to the
other party copies of all notices, requests, demands or other
communications which relate to the Sublease Premises or the use
or occupancy thereof after receipt of the same from Overlandlord
or others.
(c) Sublandlord shall not incur any liability
whatsoever to Subtenant for any injury, loss, damage (whether
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direct, consequential or incidental) or inconvenience incurred or
suffered by Subtenant as a result of the exercise by Overlandlord
of any of the rights reserved to Overlandlord under the
Xxxxxxxxx, or as a result of the exercise by Overtenant of any of
the rights reserved to Overtenant under the Oversublease, nor
shall such exercise constitute a constructive eviction or default
by Sublandlord hereunder, except to the extent, if any, such
injury, loss, damage or inconvenience is the result of the
negligence or willful misconduct of Sublandlord.
12. Representations. Subtenant represents that it has
made a thorough examination and inspection of the Entire Premises
and is familiar with the condition thereof. Subtenant hereby
agrees that it is entering into this Sublease without any
representations or warranties by Sublandlord, its agents,
representatives, employees, servants, brokers or any other person
as to the present or future condition of the Entire Premises or
the appurtenances thereto or any improvements therein or thereon.
It is agreed that Subtenant does and will accept the Sublease
Premises "as is" and Sublandlord shall have no obligation to
perform any work therein except as expressly set forth in this
Sublease.
13. Assignment and Subletting.
(a) Subtenant, for itself, its successors and assigns,
expressly covenants that it shall not assign, whether by
operation of law or otherwise, or pledge or otherwise encumber
this Sublease, or sublet all or any part of the Sublease Premises
without obtaining the prior written consent of Sublandlord.
Sublandlord agrees that its consent to any proposed subletting of
the 37,000 square foot area referenced in Section 1.1.(c) above
shall not be unreasonably withheld, conditioned or delayed.
Sublandlord reserves the right to transfer and assign its
interest in and to this Sublease to any entity or person who
shall succeed to Sublandlord's interest in and to the
Oversublease.
(b) Consent by Sublandlord to any assignment, transfer
or subletting to any party shall not be construed as a waiver or
release of Subtenant from the terms of any covenant or its
primary responsibility under this Sublease, nor shall consent to
one assignment, transfer or sublease to any person, partnership,
firm or corporation be deemed to be a consent to any subsequent
assignment, transfer or subletting to another person,
partnership, firm or corporation.
14. Quiet Enjoyment. Subject to the provisions of this
Sublease, Subtenant, upon paying the Annual Fixed Rent and all
other sums and charges herein provided, and observing and keeping
all covenants, agreements and conditions of this Sublease on its
part to be observed and kept, shall quietly have and enjoy the
Sublease Premises during the Term of this Sublease.
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15. End of Term. If Subtenant shall remain in possession
of the Sublease Premises or any part thereof after the expiration
or prior termination of the Term hereof, the parties agree that
no such holding over by Subtenant shall operate to extend or
renew this Sublease, and that any such holding over shall be
construed as a tenancy-at-will at two hundred percent (200%) of
the Annual Fixed Rent (on a per diem basis) in effect when such
holding over shall have commenced, and such tenancy shall
otherwise be subject to all the terms, conditions, covenants and
agreements of this Sublease. Subtenant further agrees to pay to
Sublandlord any additional amounts payable by Sublandlord to
Overtenant under the Oversublease by reason of any such holding
over by Subtenant.
16. Default.
16.1 In the event that Subtenant shall default in the
payment of Annual Fixed Rent, additional rent or any other charge
payable hereunder, or shall default in the performance or
observance of any of the terms, conditions and covenants of this
Sublease, Sublandlord, in addition to and not in limitation of
any rights otherwise available to it, shall have the same rights
and remedies with respect to such default as are provided to
Overlandlord under the Xxxxxxxxx with respect to defaults by the
lessee thereunder, with the same force and effect as though all
such provisions relating to any such default or defaults were set
forth herein in their entirety, and Subtenant shall have all of
the obligations of the lessee under the Xxxxxxxxx with respect to
such default or defaults.
16.2 In the event of a default by Subtenant in the
performance of any of its non-monetary obligations hereunder,
Sublandlord may, at its option, at any time thereafter and
without waiving any other remedies for such default contained
herein or in the Xxxxxxxxx as incorporated herein or at law or in
equity, give written notice to Subtenant that if such default is
not cured, or the cure not commenced, within twenty (20) days
after receipt of such notice by Subtenant, and if so commenced is
not thereafter pursued diligently to completion, Sublandlord may
cure such default for the account of Subtenant, and any amount
paid or incurred by Sublandlord in so doing shall be deemed paid
or incurred for the account of Subtenant and Subtenant agrees
promptly to reimburse Sublandlord therefor and save Sublandlord
harmless therefrom; provided, however, that Sublandlord may cure
any such default as aforesaid prior to the expiration of any
waiting period if reasonably necessary to protect Sublandlord's
interest under the Oversublease or to prevent injury or damage to
persons or property.
17. Attornment. Notwithstanding anything to the contrary
contained herein, to the full extent required by Overlandlord,
Subtenant shall attorn to Overlandlord for the duration of the
Term of this Sublease, as the same may be extended, if the
Xxxxxxxxx and Oversublease are terminated for any reason.
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18. Notices. Whenever, by the terms of this Sublease,
notice, demand or other communication shall or may be given to
either party, the same shall be in writing and addressed:
If to Sublandlord:
Thermo TerraTech Inc.
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
If to Subtenant:
Holcroft L.L.C.
00000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
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 service 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).
19. Indemnification. Subtenant hereby agrees to
indemnify, defend and hold harmless Sublandlord, its parent,
subsidiaries and affiliates, and their respective officers,
directors, shareholders and employees, from and against any and
all claims, demands, judgments, actions, causes of action, suits,
liabilities, damages, losses, costs and expenses (including
without limitation reasonable attorneys' fees and disbursements
and court costs) arising out of or in connection with (i)
Subtenant's use and occupancy of the Sublease Premises (except to
the extent, if any, such claims, demands, judgments, actions,
causes of action, suits, liabilities, damages, losses, costs or
expenses are caused by the negligence or willful misconduct of
Sublandlord), (ii) the negligence or willful misconduct of
Subtenant, its agents, employees, representatives or contractors,
or (iii) the failure by Subtenant to perform, observe or fulfill
any of Subtenant's covenants, agreements, representations or
warranties under this Sublease. In case any action or proceeding
is brought against Sublandlord by reason of any of the above,
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Sublandlord shall give written notice thereof to Subtenant, and
Subtenant may resist or defend such action or proceeding at its
sole cost and expense with counsel reasonably acceptable to
Sublandlord. If Subtenant fails to resist or defend such action
or proceeding, Sublandlord may do so or, upon not less than ten
(10) days' notice to Subtenant, may settle or compromise the
same, and, in such event, Subtenant shall pay to Sublandlord as
additional rent hereunder all payments made by, and all expenses
(including without limitation reasonable attorneys' fees and
disbursements and court costs) incurred by, Sublandlord.
20. Surrender. At the expiration or earlier termination
of this Sublease, Subtenant shall surrender the Sublease Premises
to Sublandlord broom clean, with all alterations, additions and
improvements thereto, in as good condition as on the date of
delivery of possession thereof to Subtenant or as the Sublease
Premises may be put in during the Term hereof, reasonable wear
and tear and damage by casualty excepted; provided, however, that
at Sublandlord's request, Subtenant shall remove, at Subtenant's
sole cost and expense, any and all alterations, additions and
improvements specified by Sublandlord. If Subtenant fails to
remove any such alterations, additions or improvements on or
before the later to occur of the termination of this Sublease or
the twentieth (20th) day following such request, Sublandlord may
remove the same and deliver the same to any place of business of
Subtenant or any warehouse, and Subtenant shall pay the cost of
such removal, delivery and warehousing, together with interest
thereon at the maximum rate permitted by law, to Sublandlord upon
demand.
21. Environmental Indemnification. Subtenant agrees to
indemnify, defend and hold harmless Sublandlord 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 so-called
"Superfund" or other environmental legislation) arising from or
in connection with the use, storage, release or discharge by
Subtenant of Hazardous Materials (as hereinafter defined) on the
Sublease Premises and/or the Entire Premises.
For purposes of this Section 20, the term "Hazardous
Materials" shall include without limitation 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 applicable 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 and petroleum
11PAGE
products, which laws may include, but not be limited to, the
Federal Insecticide, 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 all rules and regulations promulgated
pursuant to such laws and ordinances.
22. Consents. Sublandlord's refusal to consent to or
approve any matter or thing, whenever Sublandlord's consent or
approval is required under this Sublease or under the Xxxxxxxxx
as incorporated herein, shall be deemed reasonable if
Overlandlord has refused or failed to give its consent to such
matter or thing.
23. Option to Extend. Provided that Subtenant shall not
be in default of its obligations under this Sublease, Subtenant
shall have an option to extend the Term of this Sublease for one
(1) additional period of five (5) years (the "Renewal Period"),
which option shall be exercisable by written notice to
Sublandlord given no later than November 1, 2003. Upon receipt
of such notice, Sublandlord shall exercise its corresponding
option to renew the Oversublease. All of the terms, covenants
and provisions of this Sublease shall apply to such Renewal
Period, except that the Annual Fixed Rent payable with respect to
such Renewal Period shall be equal to the annual Fixed Rent
payable to Overlandlord under Article 30 of the Xxxxxxxxx. In
the event that Subtenant elects to exercise its option to extend
under this Section 23, Subtenant shall be responsible for the
payment of all costs payable by the lessee under Section 30.04 of
the Xxxxxxxxx. During the Renewal Period, all references in this
Sublease to the Term shall be deemed to mean the original Term as
extended by the Renewal Period. Subtenant shall have no further
right to extend the Term of this Sublease following the
expiration of the Renewal Period.
24. Direct Lease. Subtenant agrees to use its best
efforts to negotiate the execution, on or before the second
anniversary of the Commencement Date hereunder, of a direct lease
by Overlandlord to Subtenant of the Entire Premises upon such
terms as may then be commercially reasonable for leases of
comparable properties in the Livonia, Michigan area (the "Direct
Lease"), together with the termination of the Xxxxxxxxx and the
full release of Overtenant from its obligations thereunder. This
Sublease shall automatically terminate upon the effective date of
the termination of the Xxxxxxxxx.
25. Miscellaneous.
12PAGE
25.1 Governing Laws. This Sublease shall be governed
by and construed in accordance with the laws of the State of
Michigan.
25.2 Entire Agreement. This Sublease constitutes the
entire agreement between Sublandlord and Subtenant 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 both parties.
25.3 Waiver. No delay or omission on the part of
either party to this Sublease in requiring performance by the
other party or in 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.
25.4 Remedies Cumulative. Any and all rights and
remedies which either party may have under this Sublease, 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.
25.5 Broker. 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 this Sublease.
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 the indemnifying party
in connection with this Sublease.
25.6 Consent to Sublease. The effectiveness of this
Sublease is conditioned upon the prior written consent of
Overtenant to the subletting of the Sublease Premises to
Subtenant in accordance with the terms hereof.
25.7 Survival. It is understood and agreed that the
provisions of Sections 18 and 20 above shall survive the
expiration or earlier termination of this Sublease.
25.8 Personal Property. All furnishings, fixtures,
equipment, effects and personal property of every kind, nature
and description of Subtenant, and of all persons claiming by,
through or under Subtenant, which, during the Term of this
Sublease or any occupancy of the Sublease Premises by Subtenant,
or anyone claiming by, through or under Subtenant, may be on the
Sublease Premises or elsewhere in the Entire Premises, shall at
the sole risk and hazard of Subtenant and, if the whole or any
13PAGE
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 borne by
Sublandlord except to the extent caused by the negligence or
willful misconduct of Sublandlord, its agents, employees,
representatives or contractors.
25.9 Headings. Section headings and the organization
of this Sublease are for descriptive purposes only and shall not
control or alter the meaning of this Sublease.
25.10 Successors and Assigns. This Sublease shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
25.11 Authority. The individuals executing this
Sublease hereby represent and warrant that they are empowered and
duly authorized to so execute this Sublease on behalf of the
parties they represent.
14PAGE
IN WITNESS WHEREOF, the parties hereto have executed this
Sublease under seal as of the date first set forth above.
SUBLANDLORD:
THERMO TERRATECH INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
SUBTENANT:
HOLCROFT L.L.C.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
15PAGE
CONSENT TO SUBLEASE
Pursuant to Section 5.1 of the Oversublease attached as
Exhibit B-2 hereto, the undersigned hereby consents to the
subletting of the Sublease Premises described herein on the terms
and conditions contained in the within Sublease. The undersigned
further agrees to perform its obligations as lessee under the
Xxxxxxxxx, except to the extent the same are assumed by
Sublandlord pursuant to the terms of the Oversublease.
TMO, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
