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EXHIBIT 10.29
SUBLEASE
Agreement made this 13th day of October, 1998, between ESA, Inc.,
(hereinafter "Sublessor") and Genomic Solutions, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx
X, Xxx Xxxxx, Xxxxxxxx 00000 (hereinafter "Sublessee").
WITNESSETH
WHEREAS, on or about January 21, 1994, Teachers Realty Corporation leased
certain property (hereinafter the "Premises") in Chelmsford, Massachusetts to
Sublessor pursuant to a written lease, a copy of which is attached hereto as
Exhibit A, (the "Master Lease");
WHEREAS, Teachers has transferred its interest in the Premises to W9/TIB
Real Estate Limited Partnership (the "Landlord");
WHEREAS, Sublessee desires to sublease a part of the Premises from
Sublessor and Sublessor is willing to sublet a part of the Premises to
Sublessee;
NOW THEREFORE, for valuable consideration each to the other paid, the
receipt and sufficiency of which are hereby acknowledged, Sublessor and
Sublessee hereby agree as follows:
1. Demised Premises and Term.
A. Sublessor hereby leases to Sublessee and Sublessee hereby sublets from
Sublessor that portion of the Premises consisting of approximately
5,360 square feet of space shown as cross-hatched on Exhibit B
including Subtenant's prorated share of common areas as described more
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particularly in the Master Lease (hereinafter the "Demised Premises")
for a term of sixth months (hereinafter the "Term") commencing on
and ending , unless sooner terminated as herein
provided. Notwithstanding the provisions of Article 14.29 of the Master
Lease, Sublessee shall have no right to extend the Term except as
specifically provided in this Sublease.
B. At the end of the first six (6) months, and at the end of each six (6)
months thereafter, the Term of this Sublease shall be automatically
extended upon the same terms and conditions as herein contained unless
one party gives written notice to the other that it is terminating this
Sublease at the end of the then existing Term, such notice to be given
not less than thirty (30) days prior to the end of the Term.
C. Sublessee shall have as appurtenant to the Demised Premises the right
to use, in common with Sublessor and others entitled thereto, the
driveways, roadways, hallways, elevators and stairways necessary for
access to the Demised Premises.
2. Basic Rent. During the Term, Sublessee shall pay to Sublessor, as Basic
Rent for the Demised Premises rent of Thirty-five Thousand and 00/100 ($35, 000)
Dollars annually, in equal monthly installments of Two Thousand Nine Hundred
Sixteen and 67/100 ($2,916.67) Dollars, payable in advance on the first day of
each and every month. All payments shall be due without billing or demand and
without deduction, set-off or counterclaim, except insofar as Sublessor is
entitled to, and actually receives,
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a set off, deduction or counterclaim from or against the Landlord in which event
sublessee shall be entitled to its proportionate share of any such set off,
counterclaim or deduction, if such set off, counterclaim or deduction relates to
the Demised Premises. If the Term commences or ends other than on the first day
of a month, then the rent for such month shall be prorated for such fractional
period.
3. Additional Rent. In addition to the Basic Rent to be paid by Sublessee,
Sublessee shall pay to Sublessor, during the Term of this Sublease, as
additional rent (hereinafter "Additional Rent") an amount equal to seven percent
(7%) of all costs, charges and expenses (i) imposed on Sublessor in the Master
Lease including, but not limited to, charges for Taxes and Operating Expenses as
provided in Articles VIII and IX of the Master Lease, which Sublessor, as Tenant
under the Master Lease, is obligated to pay pursuant to the terms of the Master
Lease, other than Basic Rent as defined in Article III of the Master Lease and
(ii) incurred by Sublessor for utility, telephone and telecommunications,
cleaning and maintenance services provided to the Premises and for copier and
fax transmission charges provided in the Premises. Sublessor shall provide
Sublessee with all calculations of, and demands for, any such costs, charges,
expenses and Additional Rent provided to Sublessor by Landlord.
4. Additional Covenants of Sublessee and Sublessor.
A. Except as otherwise expressly provided herein, all of the terms,
covenants and conditions of the Master Lease are incorporated herein by
reference and made a part hereof with the same force and effect as if
set forth in their entirety, including, specifically, all of the
provisions of Article
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6 of the Master Lease which are specifically applicable to Sublessee as
provided in Article 6.1 (d) of the Master Lease, provided that the
terms and conditions hereof shall be controlling whenever the terms and
conditions of the Master Lease are contradictory to or inconsistent
with the terms and conditions hereof, and provided further that those
incorporated provisions of the Master Lease which are protective and
for the benefit of Landlord shall in this Sublease be deemed to be
protective and for the benefit of both Landlord and Sublessor, that
references therein to "Landlord" and "Tenant" shall be deemed to refer
to "Sublessor" and "Sublessee", respectively, that references therein
to "this lease" shall be deemed to refer to "this Sublease" and that
references therein to the "leased premises" or "Premises" shall be
deemed to refer to the "Demised Premises." Sublessee covenants and
agrees to be bound by the same terms and conditions as Sublessor as
tenant under the Master Lease is now bound or may hereafter be bound
under the Master Lease, and by all amendments and modifications
thereof, and to observe, keep and perform all of the terms, covenants,
agreements and conditions contained in the Master Lease to be performed
on the part of Sublessor as a tenant thereunder, excepting the
obligation to pay rent to Landlord and the obligations as provided for
in Articles 1.2 except for the definition of "Permitted Uses," IV,
14.29, 14.30 and 14.17, in such a manner as will not cause a breach of
the Master Lease and neither to do nor cause to be
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done, nor suffer, nor permit any act or thing to be done which would or
might cause the master Lease or the rights of Sublessor as tenant
thereunder to be cancelled, terminated, forfeited or surrendered, or
which would or might make Sublessor liable for any damages, claims or
penalties. The foregoing agreement of Sublessee to observe and be bound
by the covenants and agreements of Tenant under the Master Lease shall
accrue to the benefit of Sublessor as if Sublessor were Landlord under
the Master Lease, and shall include, by way of illustration but not
limitation, Sublessee's agreement to obtain Sublessor's permission for
any and all activities which may, under the Master Lease, be taken only
with the permission of Landlord.
B. To the maximum extent that this agreement may be made effective
according to law, Sublessee agrees that it will protect and indemnify
Sublessor and save Sublessor harmless from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Sublessor by
reason of (i) any accident, injury to or death of persons or damage to
or loss of property, by theft or otherwise, occurring on or about the
Demised Premises or any part thereof, unless arising out of the
negligence of Sublessor or Sublessor's agents or employees, and (ii)
any failure on the part of Sublessee to perform, fulfill or observe any
of Sublessee's
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representations, warranties or agreements set forth in this Sublease.
In case any action, suit or proceeding is brought against Sublessor by
reason of any such occurrence, Sublessee, upon Sublessor's request,
shall at Sublessee's expense, cause such action, suit or proceeding to
be resisted and defended by counsel designated by Sublessor.
C. This Sublease and all of the terms, covenants, representations,
warranties, agreements and conditions hereof are in all respects
subject and subordinate to the Master Lease.
D. Notwithstanding anything contained in this Sublease to the contrary,
Sublessor shall not have any obligation to construct, maintain, alter
or repair the Premises, the Demised Premises, or any parking area or
other facility or improvement thereon or appurtenant thereto or to
provide Sublessee with any service of any kind or description
whatsoever, nor shall Sublessor be responsible for the performance of
Landlord's obligations under the Master Lease including, without
limitation, Landlord's obligations described in Articles IV, 7.1 and
14.30 of the Master Lease, or be liable in damages or otherwise for any
negligence of Landlord or for any damage or injury suffered by
Sublessee as a result of any act or failure to act by Landlord or any
default by Landlord in fulfilling its obligations under the Master
Lease. If Landlord shall default in any of its obligations to
Sublessor, Sublessor shall cooperate with Sublessee,
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upon request by Sublessee and at Sublessee's sole cost and expense, in
enforcing Sublessor's rights against Landlord under the Master Lease.
E. Sublessor shall not incur any liability whatsoever to Sublessee for any
injury, inconvenience, incidental or consequential damages incurred or
suffered by Sublessee as a result of the exercise by Landlord of any of
the rights reserved to Landlord under the Master Lease, nor shall such
exercise constitute a constructive eviction or a default by Sublessor
hereunder.
F. The Demised Premises are being leased in an "as is" condition".
G. Subject to the terms of the Sublease, Sublessee shall use the Demised
Premises only for the Permitted Uses.
H. Notwithstanding the provisions of the Article 14.27 of the Master
Lease, Sublessee shall not have any right to place a sign on the
exterior of, or which is visible from, the exterior of the Premises or
the Demised Premises. Sublessee shall not place any interior sign in
the Premises without the written consent of Sublessor, which consent
shall not be unreasonably withheld or delayed.
5. Defaults by Sublessee.
A. In the event that Sublessee shall default in the payment of Basic Rent
or Additional Rent hereunder, or default in the performance or
observance of any of the terms, conditions and covenants of this
Sublease, Sublessor, in addition to and not in limitation of any rights
otherwise available to it, shall
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have the same rights and remedies with respect to such default as are
provided to Landlord under the Master Lease with respect to defaults by
Tenant thereunder, with the same force and effect as though all such
provisions relating to any such default or defaults were herein set
forth in full, and Sublessee shall have all of the obligations of
Tenant under the Master Lease with respect to such default.
B. Sublessor may cure such default for the account of Sublessee, and any
amount paid or incurred by Sublessor in so doing shall be deemed paid
or incurred for the account of Sublessee and Sublessee agrees to
reimburse Sublessor therefor and save Sublessor harmless therefrom;
provided, that Sublessor may cure any such default as aforesaid prior
to the expiration of any waiting period if reasonably necessary to
protect Sublessor's interests under the Master Lease or to prevent
injury or damage to persons or property. If Sublessee shall fail to
reimburse Sublessor upon demand for any amount paid for the account of
Sublessee hereunder, said amount shall be added to and become due as a
part of the next payment of Basic Rent due hereunder.
C. Notwithstanding anything to the contrary herein contained, for the
purpose of determining the occurrence of events of default hereunder,
the periods of ten (10) days and thirty (30) days set forth in Article
XIII of the Master Lease shall be five (5) days and fifteen (15) days,
respectively.
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6. Termination of Sublease. This Sublease shall terminate upon any
termination of the Master Lease for any reason whatsoever which deprives Tenant
under the Master Lease of possession of the Premises, without any liability
therefor upon the part of Sublessor to Sublessee and with the same force and
effect as if the date of such termination had expressly been provided in this
Sublease as the date of termination hereof.
7. Assignment. Sublessee shall not assign this Sublease, nor sublet or
permit the Demised Premises or any portion thereof to be used by others.
8. Warranties and Representations. Sublessee hereby represents and
warrants that in entering into this Sublease, Sublessee has not relied upon or
been induced by any statements or representations of any person with respect to
the physical condition of the Demised Premises or with respect to any other
matter affecting the Demised Premises or this Sublease, but has relied solely
upon such investigations, examinations and inspections as Sublessee has chosen
to make or have made. Sublessee acknowledges that Sublessee has been afforded
the opportunity for full and complete investigation, examination and inspection.
9. Separate and Independent Activities of Sublessee and Sublessor.
Sublessee and Sublessor and their respective employees and invitees shall in all
respects operate separately and independently of each other, and nothing
contained herein shall be deemed in any way to constitute Sublessee and
Sublessor as partners or joint or co-venturers.
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10. Covenant of Quiet Enjoyment. Sublessee, upon paying the Basic
Rent, and all Additional Rent and other charges herein provided for, and
observing and keeping all covenants, agreements, and conditions of this Sublease
on its part to be kept, shall quietly have and enjoy the Demised Premises
during the term of this Sublease without hindrance by anyone claiming by,
through or under Sublessor as such, subject, however, to the terms of this
Sublease. Sublessor specifically disclaims any additional covenant of quiet
enjoyment, either express or implied.
11. [Intentionally deleted.]
12. [Intentionally deleted.]
13. Miscellaneous.
A. Effect. This Sublease shall be binding upon the parties hereto,
their executors, administrators, heirs, successors and assigns.
B. Applicable Law. This Sublease shall be deemed made and shall be
governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts.
C. Modification. Neither this Sublease nor any provision thereof may
be waived, modified, amended, discharged or terminated, except by
an instrument in writing signed by both parties, and then only to
the extent set forth in such instrument.
D. Landlord's Approval. The obligations of the parties hereunder are
subject to the written approval of Landlord under the Master
Lease. If, for any reason whatsoever, Landlord under the Master
Lease refuses to consent
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to this Sublease within thirty (30) days after the date of execution
hereof, this Sublease shall be void and of no force and effect and neither
party shall have recourse against the other hereunder.
E. Severability. If any term or provision of this Sublease or the application
thereof to any person or circumstance shall to any extent be held invalid
or unenforceable, the remainder of this Sublease or the application of such
term or provision to other persons or circumstances shall not be affected
thereby, and each term and provision of this Sublease shall be valid and
enforceable to the fullest extent permitted by law.
F. Sublessor's Consent. Sublessor's refusal to consent to or to approve any
matter or thing, whenever, Sublessor's consent or approval is required
under this Sublease or the Master Lease, shall be deemed reasonable if
Landlord under the Master Lease has refused to give such consent or
approval.
G. No Broker. Sublessee hereby represents and warrants that it has not dealt
with any broker in connection with the transactions contemplated in this
Sublease.
H. Sublessor's Obligations. Sublessor covenants and agrees, for itself and its
successors and assigns, and for the benefit of Sublessee and its successors
and assigns, that it shall perform and observe all the terms, covenants and
conditions of the Master Lease, and that it shall do
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nothing, or not allow any situation to occur, which will have the effect of
creating a breach or default under the Master Lease.
1. Third Party Beneficiaries. The obligations undertaken by Sublessor and
Sublessee in this Sublease are for the benefit of Sublessor and Sublessee
only, and neither any creditor of Sublessor or Sublessee, the Landlord, nor
any other party (other than a successor in interest to Sublessee or
Sublessor), shall have the right to rely on or enforce the provisions of
this Sublease as a third-party beneficiary or otherwise.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
on the day and year first above written.
SUBLESSOR:
ESA, Inc.
By: /s/ Xxxxxx XxXxxxxx
---------------------
SUBLESSEE
Genomic Solutions, Inc.
By: [sig]
---------------------
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EXHIBIT A
LEASE
LANDLORD: Teachers Realty Corporation
TENANT: ESA, Inc., a Massachusetts Corporation
PREMISES: 00 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx
DATED: As of January ___, 1994
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TABLE OF CONTENTS
ARTICLE CAPTION PAGE
I. BASIC LEASE PROVISIONS 1
1.1 Introduction 1
1.2 Basic Data 1
1.3 Additional Definitions 2
II. PREMISES AND APPURTENANT RIGHTS 4
2.1 Lease of Premises 4
2.2 Appurtenant Rights and Reservations 4
III. BASIC RENT 4
3.1 Payment 4
IV. COMMENCEMENT AND CONDITION 5
4.1 Commencement Date 5
4.2 Preparation of the Premises 6
4.3 Conclusiveness of Landlord's Performance 8
4.4 Tenant's Delays 9
V. USE OF PREMISES 10
5.1 Permitted Use 10
5.2 Installation and Alterations by Tenant 11
VI. ASSIGNMENT AND SUBLETTING 13
6.1 Prohibition 13
VII. RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES; SERVICES TO BE 15
FURNISHED BY LANDLORD
7.1 Landlord Repairs 15
7.2 Tenant's Agreement 16
7.3 Floor Load - Heavy Machinery 17
7.4 Building Services 17
7.5 Electricity 18
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TABLE OF CONTENTS
ARTICLE CAPTION PAGE
VIII. REAL ESTATE TAXES 19
8.1 Payment on Account of Real
Estate Taxes 19
8.2 Abatement 19
8.3 Alternate Taxes 20
IX OPERATING EXPENSES 21
9.1 Definitions 21
9.2 Tenant Payments 21
9.3 22
X INDEMNITY AND PUBLIC LIABIITY INSURANCE 22
10.1 Tenant's Indemnity 22
10.2 Public Liability Insurance 23
10.3 Tenant's Risk 23
10.4 Injury Caused by Third Parties 23
10.5 Landlord's Insurance 24
XI LANDLORD'S ACCESS TO PREMISES 24
11.1 Landlord's Rights 24
XII. FIRE, EMINENT DOMAIN, ETC. 24
12.1 Abatement of Rent 24
12.2 Landlord's Right of Termination 25
12.3 Restoration 25
12.4 Award 25
XIII. DEFAULT 26
13.1 Tenant's Default 26
13.2 Landlord's Default 28
XIV. MISCELLANEOUS PROVISIONS 28
14.1 Extra Hazardous Use 28
14.2 Waiver 29
14.3 Covenant of Quiet Enjoyment 29
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TABLE OF CONTENTS
ARTICLE CAPTION PAGE
14.4 Landlord's Liability 29
14.5 Notice to Mortgagee or Ground Lessor 30
14.6 Assignment of Rents and Transfer
of Title 30
14.7 Rules and Regulations 31
14.8 Additional Charges 31
14.9 Invalidity of Particular Provisions 31
14.10 Provisions Binding, Etc. 32
14.11 Recording 32
14.12 Notices 32
14.13 When Lease Becomes Binding 32
14.14 Paragraph Headings 33
14.15 Rights of Mortgagee or
Ground Lessor 33
14.16 Status Report 33
14.17 Security Deposit 33
14.18 Remedying Defaults 35
14.19 Holding Over 35
14.20 Waiver of Subrogation 36
14.21 Surrender of Premises 36
14.22 Intentionally Omitted 36
14.23 Brokerage 37
14.24 Special Taxation Provisions 37
14.25 Hazardous Materials 37
14.26 Governing Law 39
14.27 Intentionally Omitted 39
14.28 Net Lease 40
14.29 Option to Extend 40
14.30 4500 Permit 43
14.31 Access Termination Right 44
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LEASE
Preamble
THIS INSTRUMENT IS A LEASE, dated as of January , 1994 in which the
Landlord and the Tenant are the parties hereinafter named, and which
relates to the building (the "Building") known and numbered as 00 Xxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx. The parties to this instrument hereby
agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION, The following terms and provisions set forth basic data and,
where appropriate, constitute definitions of the terms hereinafter listed:
1.2 BASIC DATA.
LANDLORD: Teachers Realty Corporation
LANDLORD'S ORIGINAL ADDRESS:
c/o Finard & Company, Inc.
Three Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
TENANT: ESA, Inc., a Massachusetts corporation
TENANT'S ORIGINAL ADDRESS: 00 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
GUARANTOR: N/A
BASIC RENT:
LEASE YEAR BASIC RENT (PER ANNUM) MONTHLY PAYMENT
---------- ----------------------- ---------------
1 $305,067.84 $25,422.32
2 $305,067.84 $25,422.32
3 $333,956.84 $27,829.74
4 $333,956.84 $27,829.74
5 $377,290.34 $31,440.87
6 $377,290.34 $31,440.87
7 $391,734.84 $32,644.57
8 $391,734.84 $32,644.57
9 $409,068.24 $34,089.02
10 $409,068.24 $34,089.02
PREMISES RENTABLE AREA: Approximately 57,778 square feet.
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PERMITTED USES: To the extent permitted by applicable law and local zoning
ordinances and by-laws, office, light manufacturing, analytical testing
laboratory and light research and development, but specifically excluding
any use which would cause any portion of the Premises to be deemed a "place
of public accommodation" as defined in the Americans with Disabilities Act
of 1990, as amended.
ESCALATION FACTOR: 100%.
INITIAL TERM: Ten (10) Lease Years commencing on the Commencement Date.
SECURITY DEPOSIT: $700,000.00 in the form of a Letter of Credit subject to
reduction pursuant to Section 14.17 hereof
1.3 ADDITIONAL DEFINITIONS.
MANAGER: Finard & Company, Inc.
BUILDING RENTABLE AREA: 57,778 rentable square feet.
BUSINESS DAYS: All days except New Year's Day, Washington's Birthday,
Patriot's Day, Memorial Day, Independence Day, Labor Day, Columbus Day,
Thanksgiving Day, Christmas Day (and the following day when any such day
occurs on Sunday).
COMMENCEMENT DATE: As defined in Section 4.1.
DEFAULT OF TENANT: As defined in Section 13.1.
ESCALATION CHARGES: The amounts prescribed in Sections 8.1 and 9.2.
ESCALATION FACTOR COMPUTATION: Premises Rentable Area divided by the
Building Rentable Area.
FORCE MAJEURE: Collectively and individually, strike or other labor
trouble, fire or other casualty, governmental preemption of priorities or
other controls in connection with a national or other public emergency or
shortages of, or inability to obtain, fuel, supplies or labor resulting
therefrom, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control.
INITIAL PUBLIC LIABILITY INSURANCE: $1,000,000 per person; $3,000,000 per
occurrence (combined single limit) for property damage, bodily injury or
death.
LEASE YEAR OR LEASE YEAR: Each consecutive 12 calendar month
period immediately following the Commencement Date, but if the
Commencement Date shall fall on other than the first day of a calendar
month, then such term
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shall mean each consecutive twelve calendar month period commencing with
the first day of the first full calendar month of the Initial Term. The
first lease year shall include any partial month between the Commencement
Date and the first day of the first full calendar month immediately
following the Commencement Date.
OPERATING EXPENSES: As set forth in Section 9.1.
OPERATING YEAR: As defined in Section 9.1.
PREMISES: The Building as shown on Exhibit A annexed hereto.
PROPERTY: The Building and the land parcel on which it is located
(including adjacent sidewalks).
TAX YEAR: As defined in Section 8.1.
TAXES: As determined in accordance with Section 8.1.
TENANTS REMOVABLE PROPERTY: As defined in Section 5.2.
CONSTRUCTION DOCUMENT DELIVERY DATE: March 7, 1994.
CONSTRUCTION DOCUMENTS: Shall mean detailed architectural plans and
specifications indicating all work, alterations and improvements to be
performed in the Building by Landlord. Such construction documents will
include and not be limited to architectural plans and details and
design/build plans and outline specifications indicating mechanical
plumbing and electrical requirements.
TERM OF THIS LEASE: The Initial Term and any extension thereof in
accordance with the provisions hereof.
UTILITY EXPENSES: As defined in Section 9.1.
EXHIBITS: The following Exhibits are annexed to this Lease
and incorporated herein by this reference:
Exhibit A - Plan showing Premises
Exhibit B - Intentionally Omitted
Exhibit C - Rules and Regulations
Exhibit D - Intentionally Omitted
Exhibit E - Operating Expense
Exhibit F - Tenant's Janitorial Specifications
Exhibit G - Tenant's Approved Signage
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ARTICLE II
PREMISES AND APPURTENANT RIGHTS.
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for
the Term of this Lease and upon the terms and conditions hereinafter
set forth, and Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
appurtenant to the Premises, the exclusive right (subject to the
rights of Landlord under this Lease and any mortgagee of the Property)
to use the Property, and permit its invitees to use the public or
common lobbies, hallways, the parking area located on the Property and
the common walkways necessary for access to the Building, and if the
portion of the Premises on any floor includes less than the entire
floor, the common toilets, corridors and elevator lobby of such floor.
Tenant shall also have the right in common with others from time to
time entitled thereto to use Alpha Road and that certain "40' Access
Easement" and "Var. Width Access Easement" shown (the "Access
Easements") on that certain Subdivision Plan of Land recorded in the
Middlesex (North) Registry of Deeds in Plan Book 134, Plan 31 for
vehicular and pedestrian access to and egress from the Property.
Tenant shall have no other appurtenant rights and all such rights
shall always be subject to reasonable rules and regulations from time
to time established by Landlord pursuant to Section 14.7 (and of which
Tenant has notice) and to the right of Landlord to designate and
change from time to time areas and facilities so to be used.
(b) During such times, if any, as Tenant is not the only occupant of
the Building, Tenant agrees that Landlord shall have the right to
place in the Premises (but in such manner as to reduce to a minimum
interference with Tenant's use of the Premises) interior storm
windows, subcontrol devices (by way of illustration, an electric sub
panel, etc.), utility lines, pipes, equipment and the like, in, over
and upon the Premises. Tenant shall install and maintain, as Landlord
may require, proper access panels in any hung ceilings or walls as may
be installed by Tenant in the Premises to afford access to any
facilities above the ceiling or within or behind the walls.
ARTICLE III
BASIC RENT
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
Landlord, commencing on the Commencement Date without offset,
abatement, deduction or demand, the Basic Rent. Such Basic Rent shall
be payable in equal monthly installments, in advance, on the first day
of each
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and every calendar month during the Term of this Lease, at Landlord's
Original Address, or at such other place as Landlord shall from time to
time designate by notice to Tenant, in lawful money of the United States.
In the event that during any 12 calendar month period, Tenant shall fail to
pay any installment of Basic Rent within ten (10) days after the due date
thereof on two occasions then, Tenant shall thereafter pay, in addition to
any Escalation Charges or other additional charges due under this Lease, an
administrative fee equal to 5% of the overdue payment on each such
subsequent occasion.
(b) Basic Rent for any partial month shall be pro-rated on a daily basis,
and if the first day on which Tenant must pay Basic Rent shall be other
than the first day of a calendar month, the first payment which Tenant
shall make to Landlord shall be equal to a proportionate part of the
monthly installment of Basic Rent for the partial month from the first day
on which Tenant must pay Basic Rent to the last day of the month in which
such day occurs, plus the installment of Basic Rent for the succeeding
calendar month.
ARTICLE IV
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. Subject to the limitations hereafter set forth, the
Commencement Date shall be the last to occur of (i) that date which is 31
days after August 1, 1994 (such date as it may be extended pursuant to the
terms of this Lease being the "Construction Completion Date"), or (ii) the
day which is 30 days after the date on which the Premises are "ready for
occupancy" as provided in Section 4.2. The Tenant shall, upon demand of the
Landlord, execute a certificate confirming the Commencement Date as it is
determined in accordance with the provisions of this Section 4.1.
Landlord shall allow Tenant to enter the Premises on the Substantial
Completion Date (as determined by Landlord) for purposes of Tenant setting
up its work stations and equipment and performing trial runs of its testing
and manufacturing equipment. Notwithstanding that the Commencement Date
shall not occur until a subsequent date, Tenant shall, from and after the
date of such entry, be bound by the terms, covenants, provisions and
agreements contained in the Lease (except the obligation to pay Basic Rent
and Taxes) during such period prior to the Commencement Date (said period
being the "Early Occupancy Period") including, without limitation the
provisions of Article X and Article V. Tenant shall also be responsible for
all costs for utilities used and consumed in the Premises during the Early
Occupancy Period. Nothing contained herein shall be deemed or construed to
mean that Tenant may occupy the Premises for the Permitted Use during the
Early Occupancy Period. Any occupancy of all or any part of the Premises by
Tenant for the Permitted Uses (other than the limited purpose of setting up
work stations and equipment and performing trial runs on testing
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and manufacturing equipment) shall result in the Commencement Date
occurring regardless of the condition or state of completion of Landlord's
Work and Tenant shall permit Landlord to continue to perform Landlord's
Work in the Premises. Tenant shall not interfere in any regard with
Landlord's completion of Landlord's Work and hereby agrees to be bound by
the direction of Landlord's contractor or the Construction Manager (as
hereafter defined) in the event of any conflicts between the Landlord's
Work and the work being performed by Tenant.
4.2 PREPARATION OF THE PREMISES (a) Tenant agrees to deliver the Construction
Documents to Landlord not later than the Construction Document Delivery
Date. Tenant hereby agrees to engage Facility Planning and Management, Inc.
(the "Architect") for architectural work and an engineering consultant
mutually acceptable to Landlord and Tenant for engineering work in
connection with developing Construction Documents and Tenant's Plans.
Landlord shall have the right to review and approve the contract and scope
of work for the contract with the Architect.
Landlord shall have the right to review and approve (if acceptable) or
reject (if not acceptable) the Construction Documents with respect to the
impact of the proposed improvements described therein on the Building's
structure and mechanical, electrical and plumbing systems. Landlord's
review and approval of Construction Documents shall not be unreasonably
withheld or delayed provided however, Landlord may reject any aspect of the
Construction Documents or Tenant's Plans if Landlord determines that such
plans call for work or improvements which will have a material adverse
affect on the Base Building Systems. Landlord shall approve or reject (with
detailed comments) any aspect of the Construction Documents within 5 days
after receipt of same from Tenant. If Landlord shall approve all aspects of
such Construction Documents then, the Landlord shall cause its Construction
Manager to commence the Bidding Process (as hereafter defined). If Landlord
shall reject any aspect of the Construction Documents then, Tenant shall
cause its Architect to make such revisions to the Construction Documents as
were described in Landlord's notice of rejection. Tenant shall resubmit
such revised Construction Documents to Landlord within 5 days after
Tenant's receipt of Landlord's comments. Thereafter, Landlord shall have a
period of 5 days to review such re-submitted Construction Documents.
Landlord and Tenant hereby agree that they shall complete and agree upon
the content of the Construction Documents on or before the date which is 15
days after the Construction Document Delivery Date. Once approved by
Landlord and Tenant, the final Construction Documents as approved by
Landlord and Tenant shall be deemed to be "Tenant's Plans" for all purposes
under this Lease.
Upon finalization and approval of Tenant's Plans by Landlord and Tenant,
Landlord shall cause its Construction Manager to solicit bids (the "Bidding
Process") for the work required by Tenant's Plans calling for an AIA
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Guaranteed Maximum Price Contract. Landlord shall have the right to select
the contractors and workmen performing Landlord's Work but shall use good
faith efforts to select the lowest bid submitted by a qualified responsible
contractor.
Upon completion of the Bidding Process, the Construction Manager shall
promptly provide Tenant with a statement of all Construction Costs (as
hereafter defined) necessary to complete the Premises in accordance with
Tenant's Plans (a "Construction Cost Statement"). The Construction Cost
Statement shall be submitted to Tenant within 30 days after finalization of
the Tenant's Plans. Tenant shall notify Landlord in writing within seven
(7) days of Tenant's receipt of such Construction Cost Statement, of either
its approval thereof and its authorization to Landlord to proceed with
construction in accordance with Tenant's Plans or any changes in Tenant's
Plans. In the event Tenant elects the latter alternative (namely, to change
Tenant's Plans), Landlord shall within seven (7) days of receipt of said
changes in Tenant's Plans quote to Tenant all changes in Construction Costs
resulting from the changes in Tenant's Plans in the form of a revised
Construction Cost Statement. Tenant shall, on or before the seventh (7th)
day following the receipt by Tenant of the revised Construction Cost
Statement, give written authorization to Landlord to proceed with the
construction in accordance with Tenant's Plans and the Construction Cost
Statement as modified. Tenant shall reimburse Landlord, for OBS Costs (as
said term is hereafter defined) in the manner hereafter set forth. Landlord
and Tenant hereby agree that the changes to Tenant's Plans by Tenant as
contemplated by this paragraph (provided that they are made within the
required time periods) shall not be construed as "Tenant's Delays" pursuant
to Section 4.4(a)(iii) hereof.
Landlord shall bear the Construction Costs (as hereafter defined) necessary
to perform Landlord's Work (as said term is hereinafter defined) in an
amount which shall not exceed One Million One Hundred Fifty Five Thousand
Five Hundred Sixty and No/100ths ($1,155,560.00) Dollars (the "Allowance").
All Construction Costs associated with performing Landlord's Work in excess
of the Allowance ("OBS Costs") shall be borne by Tenant and paid as and
when Tenant is billed therefor by Landlord. As used herein, the term
"Construction Costs" shall mean (i) the total cost for all work, materials,
supplies, labor, overhead, permits, approvals, general conditions and
alterations of existing Building systems (if required) necessary to
complete Landlord's Work (ii) the cost of architectural and engineering
fees incurred in connection with developing Contract Documents and Tenant's
Plans and (iii) a construction management and oversight fee equal to 3% of
the total amount of the Construction Costs described in clauses (i) and
(ii) hereof (including the amount of any OBS Costs) payable to Finard &
Company, Inc. (the "Construction Manager") for the construction of the
Premises in accordance with Tenant's Plans. It is agreed and understood
that the maximum amount which Landlord will be required to advance under
this Lease in connection with Landlord's Work is the amount of the
Allowance and Landlord shall retain any unused portion of the Allowance.
Any failure by Tenant to pay
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when due any amount required in this paragraph shall entitle the Landlord
to the same rights and remedies as a failure by Tenant to pay Basic Rent
when due.
Landlord shall exercise all reasonable efforts to complete the work
("Landlord's Work") necessary to prepare the Premises for Tenant's
occupancy substantially in the manner shown on the Tenant's Plans, but
Tenant shall have no claim against Landlord for failure to timely complete
such Landlord's Work. Landlord shall perform Landlord's Work in accordance
with all applicable Laws, including without limitation the ADA (as
hereafter defined). Notwithstanding the foregoing to the contrary, it is
agreed that Landlord shall not be required to bring the Building elevator
system into compliance with the ADA. Unless the Premises shall become a
place of public accommodation" (as defined in the ADA), Tenant shall not be
required to bring the elevator system into compliance with the requirements
of the ADA.
(b) The Premises shall be deemed "ready for occupancy" on the first
Business Day (the "Substantial Completion Date") as of which (i) Landlord's
Work has been completed except for items of work (and, if applicable,
adjustment of equipment and fixtures) which can be completed after
occupancy has been taken without causing undue interference with Tenant's
use of the Premises (i.e., so called "punch list" items) and (ii) Landlord
shall have obtained a Certificate of Occupancy (temporary or otherwise) for
the Premises. Landlord and Tenant shall agree upon a punch-list on or
before the date the Premises are "ready for occupancy". Landlord shall
complete all punch-list items within 30 days after completion of such
written punch-list and Tenant shall afford Landlord access to the Premises
for such purposes. Tenant shall have a period of seven days following the
expiration of such 30 day period within which to give Landlord written
notice of any matter set forth on the punch-list that has not been
performed.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Except for Landlord's Work, the
Premises are being leased in their condition, "as is" without warranty or
representation by Landlord. Tenant acknowledges that it has inspected the
Premises and common areas of the Building and, except for Landlord's Work,
has found the same to be satisfactory. In the event that during the first
120 days after the Commencement Date, Tenant shall provide Landlord with
written notice of a latent defect in the performance of Landlord's Work
which defect could not have been discovered at the time of creation of the
punch-list as set forth above, then Landlord shall remedy such claimed
defect within 60 days after such notice.
For purposes of this Article IV, the term "Landlord's Work" shall mean and
include such work and repairs (the "Landlord's Mechanical Work") as are
necessary in order to bring the Building HVAC System (exclusive of systems
installed by Tenant) and its elevator system into good operating condition.
The costs associated with performing Landlord's Mechanical Work shall not
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be charged against the Allowance. Landlord shall not be required to bring
the Building Elevator System or any component thereof into compliance with
the ADA.
4.4 TENANT'S DELAYS. (a) If a delay shall occur in the Substantial Completion
Date as the result of:
(i) any request by Tenant that Landlord delay in the commencement or
completion of Landlord's Work for any reason; or
(ii) failure of Tenant to complete and deliver Construction Documents on or
before the Construction Document Delivery Date or any failure of Tenant to
authorize Landlord to proceed with Landlord's Work as and when provided in
this Lease; or
(iii) any change by Tenant in Tenant's Plans (except as permitted by the
5th paragraph of Section 4.2(a) hereof with respect to changes pertaining
to the Construction Cost Statement) once approved by Landlord or any
failure by Tenant to respond to any request for approval of Construction
Cost Statement or modifications thereto within the time and manner provided
in this Lease; or
(iv) any other act or omission of Tenant or its officers, partners, agents,
servants or contractors; or
(v) any reasonably necessary displacement of any of Landlord's Work from
its place in Landlord's construction schedule resulting from any of the
causes for delay referred to in clauses (i), (ii), (iii) or (iv) of this
paragraph and the fitting of such Work back into the schedule;
then, in any such event, Tenant shall, from time to time and within ten
(10) days after written demand therefor, pay to Landlord for each day the
Substantial Completion Date is delayed by reason of the delays referred to
in clauses (i), (ii), (iii), (iv) and (v) above, an amount equal to one day
of Basic Rent (pro-rated on a daily basis) for each such day of delay.
(b) If a delay in the Substantial Completion Date, or if any substantial
portion of such delay, is the result of Force Majeure, and such delay would
not have occurred but for a delay described in paragraph (a), such delay
shall be deemed added to the delay described in that paragraph.
(c) The delays referred to in paragraphs (a) and (b) are herein referred to
collectively and individually as "Tenant's Delay".
(d) If, as a result of Tenant's Delay, the Substantial Completion Date is
delayed in the aggregate for more than one hundred twenty (120) days,
Landlord may (but shall not be required to) at any time thereafter
terminate this Lease by giving written notice of such termination to Tenant
and
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thereupon this Lease shall terminate without further liability or
obligation on the part of either party, except that Tenant shall pay to
Landlord the cost theretofore incurred by Landlord in performing Landlord's
Work, plus an amount equal to Landlord's out-of-pocket expenses incurred in
connection with this Lease, including, without limitation, brokerage and
legal fees, together with any amount required to be paid pursuant to
paragraph (a) through the effective termination date.
(e) The Construction Completion Date shall automatically be extended for
the period of any delays caused by Tenant's Delay or Force Majeure.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
occupied by Tenant only for Permitted Uses.
(b) Tenant agrees to conform to the following provisions during the Term of
this Lease:
(i) Intentionally Omitted;
(ii) Except as provided in Section 14.27 hereof, Tenant will not place
on the exterior of the Premises (including both interior and exterior
surfaces of doors and interior surfaces of windows) or on any part of the
Building outside the Premises, any signs, symbol, advertisements or the
like visible to public view outside of the Premises. Landlord will not
unreasonably withhold consent for signs or lettering on the entry doors to
the Premises provided such signs conform to building standards adopted by
Landlord and Tenant has submitted a sketch of the sign to be placed on such
entry doors.
(iii) Tenant shall not perform any act or carry on any practice which
may injure the Premises, or any other part of the Building, or cause
offensive odors or loud noise or constitute a nuisance or menace to any
other tenant or tenants or other persons in the Building;
(iv) Tenant shall, in its use and occupancy of the Premises, comply
with the requirements of all applicable governmental laws, rules and
regulations including, without limitation, the Americans with Disabilities
Act of 1990, as amended and any regulations promulgated thereunder; and
(v) Tenant shall continuously (except for regularly scheduled annual
shut-downs) occupy the Premises for the Permitted Uses and for no other
purposes.
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5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions or improvements in or to the Premises without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. Any such alterations, additions or improvements shall
(i) be in accordance with complete plans and specifications prepared by
Tenant and approved in advance by Landlord; (ii) be performed in a good and
workmanlike manner and in compliance with all applicable laws; (iii) be
performed and completed in the manner required in Section 5.2(d) hereof;
(iv) be made at Tenant's sole expense and at such times as Landlord may
from time to time designate; and (v) become a part of the Premises and the
property of Landlord except as provided in Section 14.21 hereof. It is
agreed and understood that Landlord shall have the right to review and
approve all changes to any plans which Landlord shall have approved
pursuant to this Section 5.2(a). It is also agreed and understood that
Landlord shall not be deemed to be unreasonable in denying its consent to
alterations, additions and improvements to the Premises which affect "Base
Building Systems" (as said term is hereafter defined). Landlord may
condition the granting of its consent to alterations and improvements by
Tenant upon the requirement that Tenant remove any such alteration or
improvement (repairing any damage) upon expiration or earlier termination
of the Term of this Lease. Notwithstanding the provisions of the first
sentence of this Section 5.2(a) and Section 5.2(a)(i) to the contrary, but
subject to all other terms and provisions of this Lease including, without
limitation, all other provisions of Section 5.2(a), (b), (c), (d), (e) and
(f), Landlord's consent shall not be required with respect to minor
alterations or improvements which (a) do not affect "Base Building
Systems" and (b) have an aggregate cost of completion of less than
$10,000.00 per occurrence.
As used herein, the term "Base Building Systems" shall mean (i) any
mechanical, electrical or plumbing system or component of the Building
(including the Premises) (ii) the exterior of the Building (iii) the
Building HVAC distribution system (iii) any fire safety prevention/
suppression system and (iv) the roof or any structural element or component
of the Building.
(b) All articles of personal property and all business fixtures, machinery
and equipment and furniture owned or installed by Tenant solely at its
expense in the Premises ("Tenant's Removable Property") shall remain the
property of Tenant and may be removed by Tenant at any time prior to the
expiration of this Lease, provided that Tenant, at its expense, shall
repair any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any labor
or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for any such labor or materials shall attach to
or affect the reversion or other estate or interest of Landlord in and to
the Premises. Whenever and as often as any mechanic's lien shall have been
filed
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against the Premises based upon any act or interest of Tenant or of anyone
claiming through Tenant, Tenant shall forthwith take such actions by
bonding, deposit or payment as will remove or satisfy the lien.
(d) All of the Tenant's alterations, additions and installation of
furnishings shall be coordinated with any work being performed by Landlord
and in such manner as to maintain harmonious labor relations and not damage
the Property or interfere with Building construction or operation or
Landlord's Work and, except for installation of furnishings, shall be
performed by contractors or workmen first approved by Landlord, which
approval shall not be unreasonably withheld or delayed. Installation and
moving of furnishings, equipment and the like shall be performed only with
labor compatible with that being employed by Landlord for work in or to the
Building and Tenant shall not employ or permit the use of any labor or
otherwise take any action which might result in a labor dispute involving
personnel providing services in the Building. Except for work by Landlord's
general contractor, Tenant before its work is started shall: secure all
licenses and permits necessary therefor; deliver to Landlord a statement of
the names of all its contractors and subcontractors and the estimated cost
of all labor and material to be furnished by them; and cause each
contractor to carry workmen's compensation insurance in statutory amounts
covering all the contractor's and subcontractor's employees and
comprehensive public liability insurance and property damage insurance with
such limits as Landlord may reasonably require but in no event less than a
combined single limit of Two Million and No/100ths ($2,000,000.00) Dollars
(all such insurance to be written in companies approved by Landlord and
insuring Landlord and Tenant as well as the contractors), and to deliver to
Landlord certificates of all such insurance. Tenant agrees to pay promptly
when due the entire cost of any work done on the Premises by Tenant, its
agents, employees, or independent contractors, and not to cause or permit
any liens for labor or materials performed or furnished in connection
therewith to attach to the Premises or the Property and immediately to
discharge any such liens which may so attach and, at the request of
Landlord to deliver to Landlord security satisfactory to Landlord against
Liens arising out of the furnishing of such labor and material. Upon
completion of any work done on the Premises by Tenant, its agents,
employees, or independent contractors, Tenant shall promptly deliver to
Landlord original lien releases and waivers executed by each contractor,
subcontractor, supplier, materialmen, architect, engineer or other party
which furnished labor, materials or other services in connection with such
work and pursuant to which all liens, claims and other rights of such party
with respect to labor, material or services furnished in connection with
such work are unconditionally released and waived.
(e) In connection with the performance of any alterations, improvements,
changes or additions to the Premises as contemplated by Section 5.2 of
this Lease, in the event that any such improvement, alteration, change or
addition to the Premises to be performed by Tenant ("Work") affects
so-called "Base
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Building Systems" and to the extent that such Work is not performed by
Landlord or a general contractor employed directly by Landlord, Tenant
hereby agrees to use the services of a construction management firm
designated by Landlord to oversee, coordinate and review all aspects of any
such Work. The cost and expense of the services of such construction
manager shall be borne by Tenant but only to the extent that such costs and
expenses are comparable to and competitive with the costs and -expenses
charged by other firms engaged in construction management and oversight
services in the general geographic location of the Building for services of
a similar scope and type.
(f) Tenant hereby assigns to Landlord all benefits, rights and agreements
granted to Tenant (whether now existing or hereafter arising) in connection
with any warranty or guaranty arising out of any work, alterations,
improvements, appliances or equipment installed in or within the Premises
by Tenant (but only to the extent that such Property shall become the
Property of Landlord). Landlord shall have the right to enforce such
rights, benefits and agreements (i) in the event that Tenant is obligated
to do so and shall refuse after written request from Landlord or (ii) upon
the occurrence of a Default of Tenant.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise, neither this Lease nor the
term and estate hereby granted, nor any interest herein or therein, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred and that
neither the Premises nor any part thereof will be encumbered in any manner
by reason of any act or omission on the part of Tenant, or used or
occupied, by anyone other than Tenant, or for any use or purpose other than
a Permitted Use, or be sublet (which term, without limitation, shall
include granting of concessions, licenses and the like) in whole or in
part, or be offered or advertised for assignment or subletting.
(b) The provisions of paragraph (a) of this Section shall apply to a
transfer (by one or more transfers) of a majority of the stock (except to
the extent that stock of Tenant is publicly traded) or partnership
interests, or other evidences of ownership of Tenant as if such
transfer were an assignment of this Lease; but such provisions shall not
apply to transactions with an entity into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are
transferred or to any entity which controls or is controlled by Tenant or
is under common control with Tenant, provided that in any of such events
(i) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting
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principles at least equal to the net worth of Tenant immediately prior to
such merger, consolidation or transfer, (ii) proof satisfactory to Landlord
of such net worth shall have been delivered to Landlord at least 10 days
prior to the effective date of any such transaction, and (iii) the assignee
agrees directly with Landlord, by written instrument in form satisfactory
to Landlord, to be bound by all the obligations of Tenant hereunder
including, without limitation, the covenant against further assignment or
subletting.
(c) If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may, at any time
and from time to time, collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to the rent and
other charges herein reserved, but no such assignment, subletting,
occupancy, collection or modification of any provisions of this Lease shall
be deemed a waiver of this covenant, or the acceptance of the assignee,
subtenant or occupant as a tenant or a release of the original named Tenant
from the further performance by the original named Tenant hereunder. No
assignment or subletting hereunder shall relieve Tenant from its
obligations hereunder and Tenant shall remain fully and primarily liable
therefor. No assignment or subletting, or occupancy shall affect the
Permitted Uses.
(d) In connection with any request by Tenant for consent to assignment or
subletting, Tenant shall submit to Landlord in writing: (i) the name of the
proposed assignee or subtenant, (ii) such information as to its financial
responsibility and standing as Landlord may reasonably require, and (iii)
all terms and provisions upon which the proposed assignment or subletting
is to be made. Upon receipt from Tenant of such request and information,
the Landlord shall have an option (sometimes hereinafter referred to as the
"option" or "Take Back Option") to be exercised in writing within thirty
(30) days after its receipt from Tenant of such request and information, if
the request is to assign the Lease or to sublet all of the Premises, to
cancel or terminate this Lease, or, if the request is to sublet a portion,
of the Premises only, to cancel and terminate this Lease with respect to
such portion, in each case, as of the date set forth in Landlord's notice
of exercise of such option, which shall be not less than sixty (60) nor
more than one hundred twenty (120) days following the giving of such
notice; in the event Landlord shall exercise such option, Tenant
shall surrender possession of the entire Premises, or the portion
which is the subject of the option, as the case may be, on the date set
forth in such notice in accordance with the provisions of this Lease
relating to surrender of Premises at the expiration of the Term. If this
Lease shall be cancelled as to a portion of the Premises only, Basic Rent
and Escalation Charges shall thereafter be abated proportionately according
to the ratio the number of square feet of the portion of the space
surrendered bears to the size of the Premises. As additional rent, Tenant
shall 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. If Landlord shall not exercise its option
pursuant to the foregoing provisions, Landlord will not unreasonably delay
or
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withhold its consent to the assignment or subletting to the party referred
to upon all the terms and provisions set forth in Tenant's notice to
Landlord, provided that the terms and provisions of such assignment or
subletting shall specifically make applicable to the assignee or sublessee
all of the provisions of this Article VI of the Lease so that Landlord
shall have against the assignee or sublessee all rights with respect to any
further assignment or subletting which are set forth in Article VI of the
Lease as amended hereby except that no such assignee or sublessee shall
have any right to further assign or sublet the Premises. In any case where
Landlord consents to an assignment of this Lease, Landlord shall be
entitled to receive 75% of all amounts received by Tenant as consideration
for such assignment. Further, in any case where Landlord consents to a
subletting, Landlord shall be entitled to receive 75% of all Subleasing
Overages (as said term is hereinafter defined). As used herein, the term
"Subleasing Overages" shall mean, for each period in question, all amounts
received by Tenant in excess of Basic Rent, Escalation Charges and other
items of additional rent reserved under this Lease attributable to the
space sublet (including, without limitation, all lump sum payments made in
connection therewith).
(e) Provided that Tenant is not in default in the performance or observance
of any term covenant or provision contained in this Lease to be performed
or observed by Tenant, Landlord shall not be permitted to exercises the
Take Back Option in connection with a request by Tenant for Landlords
consent for subletting of up to 15,000 square feet (in the aggregate) of
the Premises for a term of not greater than two years. All other provisions
of this Article VI (including the requirement for Landlord's Consent) shall
be applicable to any such request.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease, Landlord
agrees to keep in good order, condition and repair the roof, exterior
public areas of the Property, exterior walls, the structure of the
Building, the HVAC system serving the Premises (exclusive of any special
HVAC systems which are not installed by Landlord after completion of
Landlord's Work), building elevators, fire suppression and life safety
systems, all insofar as they affect the Premises, except that Landlord
shall in no event be responsible to Tenant for the condition of glass in
the Premises or for the doors (or related glass and finish work) leading to
the Premises, or for any condition in the Premises or the Property caused
by any act or neglect of Tenant, its agents, employees, invitees or
contractors. Landlord shall not be responsible to make any improvements or
repairs to the Building other than as expressly provided in this Section
7.1 unless expressly provided otherwise in this
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Lease. Landlord shall cause the landscaped areas of the Property to be
maintained in an attractive appearance and shall cause snow and ice to be
removed from the parking areas (including sidewalks and entry ways) on the
Property. Landlord shall also perform repairs and striping to the parking
areas. All costs and expenses incurred by Landlord in performing its
obligations under this Section 7.1 shall be included in Operating Expenses
(as said term is hereafter defined) except that Tenant shall, as an
additional charge hereunder and within thirty (30) days after being
invoiced by Landlord, reimburse Landlord directly for all costs and
expenses incurred by Landlord in repairing or maintaining the roof top HVAC
units servicing the Premises.
(b) Landlord shall never be liable for any failure to make repairs which
Landlord has undertaken to make under the provisions of this Section 7.1 or
elsewhere in this Lease, unless Tenant has given notice to Landlord of the
need to make such repairs, and Landlord has failed to commence to make such
repairs within a reasonable time after receipt of such notice, given the
nature of the repair as it pertains to interference with Tenant's use and
enjoyment of the Premises, or fails to proceed with reasonable diligence
to complete such repairs.
(c) Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option be furnished from time
to time, in whole or in part, by employees of Landlord or by the Manager of
the Property or by one or more third persons.
7.2 TENANT'S AGREEMENT. (a) Tenant will, at its sole cost and expense, keep
neat and clean and maintain in good order, condition and repair the
Premises and the Property and every part thereof including all mechanical,
electrical and plumbing systems, excepting only those repairs for which
Landlord is responsible under the terms of this Lease, reasonable wear and
tear of the Premises, and damage by fire or other casualty and as a
consequence of the exercise of the power of eminent domain; and shall
surrender the Premises, at the end of the Term, in such condition. Without
limitation of the foregoing, Tenant hereby agrees, at its sole cost and
expense, to (i) repair and maintain all. all lights within the Premises and
all parking area lights on the Property and (ii) repair and maintain all
plumbing, mechanical and electrical systems except for those matters which
are Landlord's obligation pursuant to Section 7.1. Without limitation,
Tenant shall, at its sole cost and expense, continually during the Term of
this Lease maintain the Premises in accordance with all statutes, laws,
codes and ordinances from time to time in effect including, without
limitation, the Americans with Disabilities Act of 1990, as amended and all
directions, rules and regulations of the proper officers of governmental
agencies having jurisdiction, and of the applicable Board of Fire
Underwriters, and shall, at Tenant's own expense, obtain all permits,
licenses and the like required by applicable law. Notwithstanding the
foregoing or the provisions of Article XII, Tenant shall be responsible for
the cost of repairs which may be necessary by reason of damage to the
Building
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caused by any act or neglect of Tenant or its agents, employees,
contractors or invitees (including any damage by fire or any other casualty
arising therefrom). Tenant shall be responsible for the payment of all
charges for electricity, gas or other utilities used or consumed in the
Premises. Tenant shall be responsible for the removal and disposal of all
refuse and waste generated from the Premises and shall maintain a dumpster
service contract with a reputable dumpster service company throughout the
Term of this Lease. The location of such dumpster shall be subject to the
reasonable approval of Landlord. In no event shall such dumpster be visable
from the street or interfere with the use of the parking or loading areas
on the Property and shall be in compliance with all applicable codes,
by-laws and ordinances.
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the same
with reasonable dispatch after such demand, Landlord may (but shall not be
required to do so) make or cause such repairs to be made (the provisions of
Section 14.18 being applicable to the costs thereof) and shall not be
responsible to Tenant for any loss or damage that may accrue to Tenant's
stock or business by reason thereof. Notwithstanding the foregoing,
Landlord may elect to take action hereunder immediately and without notice
to Tenant if Landlord reasonably believes an emergency to exist.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon any
floor in the Premises exceeding the floor load per square foot of area
which such floor was designed to carry or which is allowed by law. Business
machines and mechanical equipment shall be placed and maintained by Tenant
at Tenant's expense in settings sufficient, in Landlord's reasonable
judgment, to absorb and prevent vibration, noise and annoyance.
(b) If such safe, machinery, equipment, freight, bulky matter or fixtures
requires special handling, Tenant agrees to employ only persons holding a
Master Rigger's License to do such work, and that all work in connection
therewith shall comply with applicable laws and regulations. Any such
moving shall be at the sole risk and hazard of Tenant, and Tenant will
exonerate, indemnity and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly
from such moving.
7.4 BUILDING SERVICES. (a) Tenant shall be responsible for obtaining water and
sewer service for the Premises and shall make arrangements with the
applicable utility for such service, including water for fire suppression
systems. Tenant shall be responsible for the cost of all water and sewer
charges assessed to the Premises or the Property.
(b) Landlord reserves the right upon not less than 24 hours advance notice
(except in the case of emergency when, no notice shall be required) to
curtail,
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suspend, interrupt and/or stop the supply of water, sewage, electrical
current, cleaning, and other services, and to curtail, suspend, interrupt
and/or stop use of entrances and/or lobbies serving access to the Building,
without thereby incurring any liability to Tenant, when necessary by reason
of accident or emergency, or for repairs, alterations, replacements or
improvements in the reasonable judgment of Landlord necessary, or when
prevented from supplying such services or use by strikes, lockouts,
difficulty in obtaining materials, accidents or any other cause beyond
Landlord's control, or by laws, orders or inability, by exercise of
reasonable diligence, to obtain electricity, water, gas, steam, coal, oil
or other suitable fuel or power. No diminution or abatement of rent or
other compensation, nor any direct, indirect or consequential damages shall
or will be claimed by Tenant as a result of, nor shall this Lease or any of
the obligations of Tenant be affected or reduced by reason of, any such
interruption, curtailment, suspension or stoppage in the furnishing of the
foregoing services or use, irrespective of the cause thereof. Failure or
omission on the part of Landlord to furnish any of the foregoing services
or use shall not be construed as an eviction of Tenant, actual or
constructive, nor entitle Tenant to an abatement of rent, nor to render the
Landlord liable in damages, nor release Tenant from prompt fulfillment of
any of its covenants under this Lease. To the extent when its reasonable
control, Landlord shall use good faith efforts to restore any service or
utility suspended or curtailed by Landlord hereunder.
7.5 UTILITIES. Landlord shall permit Landlord's existing wires, pipes, risers,
conduits and other electrical equipment of Landlord to be used for the
purpose of providing electrical service to the Premises. Tenant shall
purchase and receive electric current for the Premises directly from the
utility company serving the Building. Tenant shall be responsible for all
costs and expenses of providing electricity and all other utilities to the
Building and the parking areas on the Property and shall arrange directly
with each respective utility for service and direct billing to Tenant.
Landlord shall not be responsible for any such utility bills. Tenant
covenants and agrees that its electrical usage and consumption and that its
total connected load will not exceed the maximum load from time to time
permitted by applicable governmental regulations nor the design criteria of
the existing Building electrical capacity. Landlord shall not in any way be
liable or responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur if, during the Term of this Lease, either the
quantity or character of electric current is changed or electric current is
no longer available or suitable for Tenant's requirements due to a factor
or cause beyond Landlord's control. Tenant shall purchase and install all
lamps, tubes, bulbs, starters and ballasts. Tenant shall pay all charges
for electricity, gas and other utilities used or consumed in the Premises.
Tenant shall bear the cost of repair and maintenance of any electric or gas
meter used or to be installed in (or serving) the Premises.
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ARTICLE VIII
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this
Article, the term "Tax Year" shall mean the twelve-month period commencing
on the July 1 immediately preceding the Commencement Date and each
twelve-month period thereafter commencing during the Term of this Lease;
and the term "Taxes" shall mean all real estate taxes, special assessments
and betterment assessments assessed with respect to the Property for any
Tax Year.
(b) Tenant shall pay to Landlord, as an Escalation Charge, an amount equal
to (i) Taxes for each Tax Year (or partial Tax Year) falling within the
Term of this Lease, multiplied by (ii) the Escalation Factor, such amount
to be apportioned for any fraction of a Tax Year in which the Commencement
Date falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of Taxes shall be made monthly
and at the time and in the fashion herein provided for the payment of Basic
Rent. The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the time real estate tax payments are due a sum equal
to Tenant's required payments, as estimated by Landlord from time to time,
on account of Taxes for the then current Tax Year. Promptly after receipt
by Landlord of bills for such Taxes, Landlord shall advise Tenant of the
amount thereof and the computation of Tenant's payment on account thereof.
If estimated payments theretofore made by Tenant for the Tax Year covered
by such bills exceed the required payments on account thereof for such
Year, Landlord shall credit the amount of overpayment against subsequent
obligations of Tenant on account of Taxes (or refund such overpayment if
the Term of this Lease has ended and Tenant has no further obligation to
Landlord); but if the required payments on account thereof for such Year
are greater than estimated payments theretofore made on account thereof for
such Year, Tenant shall make payment to Landlord within 30 days after being
so advised by Landlord. Landlord shall have the same rights and remedies
for the non-payment by Tenant of any payments due on account of Taxes as
Landlord has hereunder for the failure of Tenant to pay Basic Rent.
Notwithstanding the foregoing to the contrary and provided that there shall
exist no Default of Tenant hereunder, if at the time of reconciliation with
respect to any Tax Year, there is an overpayment of estimated amounts by
Tenant hereunder, all amounts in excess of the equivalent of 2 months of
such payments shall be reimbursed directly to Tenant. The balance of such
overpayments shall be credited as herein provided.
8.2 ABATEMENT, If Landlord shall receive any tax refund or reimbursement of
Taxes or sum in lieu thereof with respect to any Tax Year which is not due
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to vacancies in the Building, then out of any balance remaining thereof
after deducting Landlord's expenses reasonably incurred in obtaining such
refund, Landlord shall, provided there does not then exist a Default of
Tenant, credit an amount equal to such refund or reimbursement or sum in
lieu thereof (exclusive of any interest) multiplied by the Escalation
Factor against the obligations of Tenant next falling due under this
Article VIII; provided, that in no event shall Tenant be entitled to
receive a credit equal to more than the payments made by Tenant on account
of real estate taxes for such Year pursuant to paragraph (b) of Section
8.1. Provided that (i) Tenant has paid all amounts payable by Tenant
pursuant to this Article VIII as and when same shall be due and (ii) Tenant
shall not be in default (beyond applicable notice and cure periods, if any)
in the performance or observance of any term, covenant or condition
contained in this Lease to be performed or observed by Tenant, upon the
written request of Tenant, Landlord shall (at the sole cost and expense of
Tenant) apply for and thereafter diligently prosecute to completion,
petitions for abatement of Taxes in future Tax Years. It is agreed and
understood that it any such petition for abatement of taxes requested by
Tenant shall be denied, the Landlord's costs and expenses incurred in
connection with preparation and prosecution of any such petition or any
further appeals, including, without limitation, reasonable attorneys fees
and consultants fees shall be paid by Tenant as an additional charge under
this Lease within 30 days after written demand for payment of such sums by
Landlord. If such petition is successful, the provisions of the first
sentence of this Section 8.2 shall apply. In no event shall Tenant ever be
permitted to file a petition for an abatement or refund of Taxes whether in
its own name or on behalf of Landlord unless Landlord shall consent to such
filing in writing, which consent may be granted or denied by Landlord in
its sole and absolute discretion.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall replace the
current method of assessment of real estate taxes in whole or in part, or
the type thereof, or if additional types of taxes are imposed upon the
Property or Landlord relating to the Property, Tenant agrees that Tenant
shall pay a proportionate share of the same as an additional charge
computed in a fashion consistent with the method of computation herein
provided, to the end that Tenant's share thereof shall be, to the maximum
extent practicable, comparable to that which Tenant would bear under the
foregoing provisions.
(b) If a tax (other than Federal or State net income or franchise tax) is
assessed on account of the rents or other charges payable by Tenant to
Landlord under this Lease, Tenant agrees to pay the same as an additional
charge within ten (10) days after billing therefor, unless applicable law
prohibits the payment of such tax by Tenant.
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ARTICLE IX
OPERATING EXPENSES
9.1 DEFINITIONS. For the purposes of this Article, the following terms shall
have the following respective meanings:
(i) Operating Year: Each calendar year in which any part of the Term
of this Lease shall fall.
(ii) Operating Expenses: The aggregate costs or expenses reasonably
incurred by Landlord with respect to the operation, administration, repair,
maintenance and management of the Property all as set forth in Exhibit E
annexed hereto, provided that, if during any portion of the Operating Year
for which Operating Expenses are being computed, less than all of Building
Rentable Area was occupied by tenants or if Landlord is not supplying all
tenants with the services being supplied hereunder, actual Operating
Expenses incurred shall be reasonably extrapolated by Landlord on an item
by item basis to the estimated Operating Expenses that would have been
incurred if the Building were fully occupied for such Year and such
services were being supplied to all tenants, and such extrapolated amount
shall, for the purposes hereof, be deemed to be the Operating Expenses for
such Year.
(iii) Utility Expenses: Intentionally Omitted.
9.2 TENANT'S PAYMENTS, (a) Tenant shall pay to Landlord, as an Escalation
Charge, an amount equal to (i) Operating Expenses for each Operating Year
(or partial Operating Year) falling within the Term of this Lease
multiplied by (ii) the Escalation Factor, such amount to be apportioned for
any partial Operating Year in which the Commencement Date falls or the Term
of this Lease ends.
(b) Tenant hereby agrees to pay all costs and expenses with respect to
Utilities (including electricity, gas, water, sewer, telephone) used and
consumed on the Property (including the Premises) and shall arrange with
each such utility for service and direct billing to Tenant..
(c) Estimated payments by Tenant on account of Operating Expenses shall be
made monthly and at the time and in the fashion herein provided for the
payment of Basic Rent. The monthly amount so to be paid to Landlord shall
be sufficient to provide Landlord by the end of each Operating Year a sum
equal to Tenant's required payments, as estimated by Landlord from time to
time during each Operating Year, on account of Operating Expenses for such
Operating Year. After the end of each Operating Year, Landlord shall submit
to Tenant a reasonably detailed accounting of Operating Expenses for such
Year, and Landlord shall certify to the accuracy thereof and Landlord shall
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also provide Tenant with a projected budget for the then current Operating
Year. If estimated payments theretofore made for such Year by Tenant exceed
Tenant's required payment on account thereof for such Year, according to
such statement, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant with respect to Operating Expenses (or
refund such overpayment if the Term of this Lease has ended and Tenant has
no further obligation to Landlord), but, if the required payments on
account thereof for such Year are greater than the estimated payments (if
any) theretofore made on account thereof for such Year, Tenant shall make
payment to Landlord within thirty (30) days after written notice from
Landlord. Landlord shall have the same rights and remedies for the
nonpayment by Tenant of any payments due on account of Operating Expenses
as Landlord has hereunder for the failure of Tenant to pay Basic Rent.
Provided that there shall then exist no Default of Tenant hereunder, if at
the time of reconciliation with respect to any Operating Year, there is an
overpayment of estimated amounts by Tenant hereunder, all amounts in excess
of the equivalent of two months of such payments shall be reimbursed
directly to Tenant. The balance of such overpayments shall be credited as
hereinabove provided.
9.3 Within 90 days after Tenant's receipt of the statement described in Section
9.2(c) hereof with respect to a final accounting for any Operating Year and
provided that Tenant has paid all Operating Expenses billed by Landlord to
Tenant on account of such Operating Year, Tenant shall have the right to
inspect Landlord's books and records with respect to Operating Expenses for
such Operating Year. Such inspection shall take place at the place where
Landlord maintains its books and records for the Property in the ordinary
course.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to defend, indemnify and save
harmless Landlord from and against all claims, loss, liability, costs and
damages of whatever nature arising from any default by Tenant under this
Lease and the following: (i) from any accident, injury, death or damage
whatsoever to any person, or to the property of any person, occurring in or
about the Premises; (ii) from any accident, injury, death or damage
occurring outside of the Premises but on the Property, where such accident,
damage or injury results or is claimed to have resulted from an act or
omission on the part of Tenant or Tenant's agents, employees, invitees or
independent contractors; or (iii) in connection with the management or use
of the Premises or of any business conducted therein, or any thing or work
whatsoever done,
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or any condition created (other than by Landlord) in or about the
Premises; and, in any case, occurring after the date of this Lease, until
the end of the Term of this Lease, and thereafter so long as Tenant is in
occupancy of the Premises. Nothing contained herein shall be deemed or
construed to exculpate Landlord from its own negligence or the negligence
of Landlord's agents, servants or employees. This indemnity and hold
harmless agreement shall include indemnity against all costs, expenses and
liabilities incurred in, or in connection with, any such claim or
proceeding brought thereon, and the defense thereof, including, without
limitation, reasonable attorneys' fees and costs at both the trial and
appellate levels. The provisions of this Section 10.1 shall survive the
expiration or any earlier termination of this Lease.
10.2 PUBLIC LIABILITY INSURANCE, Tenant agrees to maintain in full force from
the date upon which Tenant first enters the Premises for any reason,
throughout the Term of this Lease, and thereafter so long as Tenant is in
occupancy of any part of the Premises, a policy of general liability and
property damage insurance (including broad form contractual liability and
completed operations coverage) under which Landlord, Manager (and such
other persons as are in privity of estate with Landlord as may be set out
in notice from time to time) and Tenant are named as additional insureds.
Tenant's insurance shall include coverage for the contractual liability of
Tenant to indemnify Landlord as required in this Article X. Each such
policy shall be non-cancellable and non-amendable with respect to Landlord,
Manager and Landlord's said designees without thirty (30) days' prior
notice to Landlord and shall be in at least the amounts of the Initial
Public Liability Insurance specified in Section 1.3 or such greater amounts
as Landlord shall from time to time request, and a duplicate original or
certificate thereof shall be delivered to Landlord.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made effective
according to law, Tenant agrees to use and occupy the Premises and to use
such other portions of the Property as Tenant is herein given the right to
use at Tenant's own risk; and Landlord shall have no responsibility or
liability for any loss of or damage to Tenant's Removable Property or for
any inconvenience, annoyance, interruption or injury to business arising
from Landlord's making any repairs or changes which Landlord is permitted
by this Lease or required by law to make in or to any portion of the
Premises or other sections of the Property, or in or to the fixtures,
equipment or appurtenances thereof. Tenant shall carry "all-risk" property
insurance on a "replacement cost" basis (including so-called improvements
and betterments), and provide a waiver of subrogation as required in
Section 14.20. The provisions of this Section 10.3 shall be applicable from
and after the execution of this Lease and until the end of the Term of this
Lease, and during such further period as Tenant may use or be in occupancy
of any part of the Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement may be
made effective according to law, Tenant agrees that
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Landlord shall not be responsible or liable to Tenant, or to those claiming
by, through or under Tenant, for any loss or damage that may be occasioned
by or through the acts or omissions of persons occupying adjoining premises
or any part of the premises adjacent to or connecting with the Premises or
any part of the Property or otherwise. The provisions of this Section 10.4
shall survive the expiration or any earlier termination of this Lease.
10.5 LANDLORD'S INSURANCE. To the extent available at commercially reasonable
rates, Landlord shall maintain and keep in effect throughout the term of
this Lease (a) insurance against loss or damage to the Building by fire or
other casualty as may be included within either fire and extended coverage
insurance or "all-risk" insurance in an amount equal to the full
replacement cost of the Building (exclusive of foundations) and (b)
comprehensive general liability insurance in amounts reasonably determined
by Landlord. Such coverage may be effected directly and/or through the use
of blanket insurance coverage covering more than one location and may
contain such deductibles as Landlord may elect.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. Landlord shall have the right upon reasonable advance
notice to Tenant (except in the case of an emergency where no notice shall
be required) to enter the Premises at all reasonable hours for the purpose
of inspecting or making repairs to the same, and Landlord shall also have
the right to make access available at all reasonable hours (except in the
case of an emergency where no notice shall be required) to prospective or
existing mortgagees, purchasers of any part of the Property. Landlord shall
also have the right during the last year of the Term of this Lease to show
the Premises to prospective tenants. In exercising its rights pursuant to
this Section 11.1, Landlord shall, to the extent within its reasonable
control, use good faith efforts to avoid unreasonable interference with
Tenant's use of the Premises.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or casualty,
Basic Rent and Escalation Charges payable by Tenant shall xxxxx
proportionately for the period in which, by reason of such damage, there is
substantial interference with Tenant's use of the Premises, having regard
to the extent to which Tenant may be required to discontinue Tenant's use
of all or a portion of the Premises, but such abatement or reduction shall
end if and when Landlord shall have substantially restored the Premises
(excluding any
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alterations, additions or improvements made by Tenant pursuant to Section
5.2) to the condition in which they were prior to such damage. If the
Premises shall be affected by any exercise of the power of eminent domain,
Basic Rent and Escalation Charges payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the loss
of use thereof suffered by Tenant. In no event shall Landlord have any
liability for damages to Tenant for inconvenience, annoyance, or
interruption of business arising from such fire, casualty or eminent
domain.
12.2 LANDLORD'S RIGHT OF TERMINATION. If the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially damaged"
meaning damage of such a character that the same cannot, in ordinary
course, reasonably be expected to be repaired within sixty (60) days from
the time the repair work would commence), or if any part of the Building is
taken by any exercise of the right of eminent domain, then Landlord shall
have the right to terminate this Lease (even if Landlord's entire interest
in the Premises may have been divested) by giving notice of Landlord's
election so to do within sixty (60) days after the occurrence of such
casualty or the effective date of such taking, whereupon this Lease shall
terminate thirty (30) days after the date of such notice with the same
force and effect as if such date were the date originally established as
the expiration date hereof.
12.3 RESTORATION. If this Lease shall not be terminated pursuant to Section
12.2, Landlord shall thereafter use due diligence to restore the Premises
(excluding any alterations, additions or improvements made by Tenant) to
proper condition for Tenant's use and occupation, provided that Landlord's
obligation shall be limited to the amount of insurance proceeds available
therefor. If, for any reason, such restoration shall not be substantially
completed within seven (7) months after the expiration of the 60-day period
referred to in Section 12.2, Tenant shall have the right to terminate this
Lease by giving notice to Landlord thereof within thirty (30) days after
the expiration of such period (as so extended). Upon the giving of such
notice, this Lease shall cease and come to an end without further liability
or obligation on the part of either party unless, within such 30-day
period, Landlord substantially completes such restoration. Such right of
termination shall be Tenant's sole and exclusive remedy at law or in equity
for Landlord's failure so to complete such restoration.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to
the Property and the leasehold interest hereby created, and to compensation
accrued or hereafter to accrue by reason of such taking, damage or
destruction, and by way of confirming the foregoing, Tenant hereby grants
and assigns, and covenants with Landlord to grant and assign to Landlord,
all rights to such damages or compensation. Nothing contained herein shall
be construed to prevent Tenant from, at its sole cost and expense,
prosecuting a separate condemnation proceeding with respect to a claim for
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the value of any of Tenant's Removable Property installed in the
Premises by Tenant at Tenant's expense and for relocation expenses,
provided that such action shall not affect the amount of compensation
otherwise recoverable by Landlord from the taking authority.
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this
Lease any one or more of the following events (herein referred to as a
"Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation
Charges or other sums payable as additional charges hereunder when due
and such failure shall continue for ten (10) days after written notice
of such failure from Landlord to Tenant; or
(ii) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be performed or
observed, or Tenant shall desert or abandon the Premises or the
Premises shall become, or appear to have become vacant (regardless
whether the keys shall have been surrendered or the rent and all other
sums due shall have been paid), and Tenant shall fail to remedy the
same within thirty (30) days after notice to Tenant specifying such
neglect or failure, or if such failure is of such a nature that Tenant
cannot reasonably remedy the same within such thirty (30) day period,
Tenant shall fail to commence promptly to remedy the same and to
prosecute such remedy to completion with diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law directed against Tenant;
or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any petition or answer
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any present
or future Federal, State or other statute, law or regulation for the
relief of debtors, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all
or any substantial part of its properties, or shall admit in writing
its inability to pay its debts generally as they become due; or
(v) A petition shall be filed against Tenant in bankruptcy or
under any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief
under any present or
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future Federal, State or other statute, law or regulation and shall
remain undismissed or unstayed for an aggregate of sixty (60) days
(whether or not consecutive), or if any debtor in possession (whether
or not Tenant) trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties or of the Premises shall be
appointed without the consent or acquiescence of Tenant and such
appointment shall remain unvacated or unstayed for an aggregate of
sixty (60) days (whether or not consecutive);
then in any such case, Landlord may terminate this Lease by notice to
Tenant, and thereupon this Lease shall come to an end as fully and
completely as if such date were the date herein originally fixed for
the expiration of the Term of this Lease, and Tenant will then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
(b) If this Lease shall be terminated as provided in this Article, or
if any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may, upon notice to Tenant,
re-enter the Premises, either by summary proceedings, ejectment or
otherwise, and remove and dispossess Tenant and all other persons and
any and all property from the same, as if this Lease had not been made,
and Tenant hereby waives the service of notice of intention to re-enter
or to institute legal proceedings to that end.
(c) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of
such termination, and thereafter Tenant, until the end of what would
have been the Term of this Lease in the absence of such termination,
and whether or not the Premises shall have been relet, shall be liable
to Landlord for, and shall pay to Landlord, as liquidated current
damages, the Basic Rent, Escalation Charges and other sums which would
be payable hereunder if such termination had not occurred, less the net
proceeds, if any, of any reletting of the Premises, after deducting all
expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, advertising, expenses of employees,
alteration costs and expenses of preparation for such reletting. Tenant
shall pay such current damages to Landlord monthly on the days which
the Basic Rent would have been payable hereunder if this Lease had not
been terminated.
(d) At any time after such termination, whether or not Landlord shall
have collected any such current damages, as liquidated final damages
and in lieu of all such current damages beyond the date of such demand,
at Landlord's election Tenant shall pay to Landlord an amount equal to
the excess, if any, of the Basic Rent, Escalation Charges and other
sums as hereinbefore provided which would be payable hereunder from the
date of such demand (assuming that, for the purposes of this paragraph,
annual payments by Tenant on account of Taxes, Utility Expenses and
Operating Expenses would
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be the same as the payments required for the immediately preceding
Operating or Tax Year) for what would be the then unexpired Term of
this Lease if the same had remained in effect, over the then fair net
rental value of the Premises for the same period.
(e) In the case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceeding or otherwise, Landlord may (i)
re-let the Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms which may at Landlord's
option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term of this Lease and
may grant concessions or free rent to the extent that Landlord
considers advisable and necessary to re-let the same and (ii) may make
such reasonable alterations, repairs and decorations in the Premises as
Landlord in its sole judgment considers advisable and necessary for the
purpose of reletting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in no
event be liable in any way whatsoever for failure to re-let the
Premises, or, in the event that the Premises are re-let, for failure to
collect the rent under such re-letting.
(f) Intentionally Omitted.
(g) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to
which Landlord may at any time be entitled to lawfully, and Landlord
may invoke any remedy (including the remedy of specific performance)
allowed at law or in equity as if specific remedies were not herein
provided for.
(h) All reasonable costs and expenses incurred by or on behalf of
Landlord (including, without limitation, attorneys' fees and expenses)
in enforcing its rights hereunder or occasioned by any Default of
Tenant shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default of the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligation within a period
of time reasonably required to correct any such default, after notice
by Tenant to Landlord specifying wherein Landlord has failed to perform
any such obligations.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE. Subject to the provisions of Section 14.27 hereof,
Tenant covenants and agrees that Tenant will not do or permit
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anything to be done in or upon the Premises, or bring in anything or
keep anything therein, which shall increase the rate of property or
liability insurance on the Premises or of the Building above the
standard rate applicable to premises being occupied for Permitted Uses;
and Tenant further agrees that, in the event that Tenant shall do any
of the foregoing, Tenant will promptly pay to Landlord, on demand, any
such increase resulting therefrom, which shall be due and payable as an
additional charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of
any action or non-action on the part of the other, no matter how long
the same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of the other's rights hereunder. Further, no
waiver at any time of any of the provisions hereof by Landlord or
Tenant shall be construed as a waiver of any of the other provisions
hereof, and a waiver at any time of any of the provisions hereof shall
not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any
action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's or Tenant's consent
or approval to or of any subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account of the earliest installment of any payment
due from Tenant under the provisions hereof. The acceptance by Landlord
of a check for a lesser amount with an endorsement or statement
thereon, or upon any letter accompanying such check, that such lesser
amount is payment in full, shall be given no effect, and Landlord may
accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Basic Rent and Escalation
Charges and observing, keeping and performing all of the other terms
and provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the term hereof, without hindrance or
ejection by any persons lawfully claiming under Landlord to have title
to the Premises superior to Tenant; the foregoing covenant of quiet
enjoyment is in lieu of any other covenant, express or implied.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically agreed
that Landlord nor any of Landlord's officers, directors, shareholders,
employees or agents (original or successor) shall ever be personally
liable for any such judgment, or for the payment of any monetary
obligation to Tenant. The provision contained in the foregoing sentence
is not intended to, and shall
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not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's successors in
interest, or to take any action not involving the personal liability of
Landlord or any of its officers, directors, shareholders, employees or
agents (original or successor) to respond in monetary damages from
Landlord's assets other than Landlord's equity interest in the
Property.
(b) With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to
furnish the same when prevented from doing so by Force Majeure, strike,
lockout, breakdown, accident, order or regulation of or by any
governmental authority, or failure of supply, or inability by the
exercise of reasonable diligence to obtain supplies, parts or employees
necessary to furnish such services, or because of war or other
emergency, or for any cause beyond Landlord's reasonable control, or
for any cause due to any act or neglect of Tenant or Tenant's servants,
agents, employees, licensees or any person claiming by, through or
under Tenant; nor shall any such failure give rise to any claim in
Tenant's favor that Tenant has been evicted, either constructively or
actually, partially or wholly.
(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by
Tenant from whatever cause.
(d) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same may be made during normal
business hours and Landlord shall have no liability for damages to
Tenant for inconvenience, annoyance or interruption of business arising
therefrom. To the extent within its reasonable control, Landlord shall
use good faith efforts to avoid unnecessary interference with the
Tenant's use of the Premises.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any
person, firm or other entity that it holds a mortgage or a ground lease
which includes the Premises, no notice from Tenant to Landlord alleging
any default by Landlord shall be effective unless and until a copy of
the same is given to such holder or ground lessor (provided Tenant
shall have been furnished with the name and address of such holder or
ground lessor), and the curing of any of Landlord's defaults by such
holder or ground lessor shall be treated as performance by Landlord.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
assignment by Landlord of Landlord's interest in this Lease, or the
rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage on property which
includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage,
shall never be treated as an assumption by such holder of any of the
obligations of Landlord hereunder unless such holder shall, by notice
sent to Tenant, specifically
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otherwise elect and that, except as aforesaid, such holder shall be
treated as having assumed Landlord's obligations hereunder only upon
foreclosure of such holder's mortgage and the taking of possession of
the Premises which are to be performed or observed from and after the
date of such transfer.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases
Landlord's entire interest in the Property back to the seller thereof
be treated as an assumption by operation of law or otherwise, of
Landlord's obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title, for
performance of Landlord's obligations hereunder. In any such event,
this Lease shall be subject and subordinate to the lease to such
purchaser. For all purposes, such seller-lessee, and its successors in
title, shall be the Landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in the event
of any transfer of title to the Property by Landlord, Landlord shall
thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder which are to be
performed or observed from and after the date of such transfer.
14.7 RULES AND REGULATIONS. Tenant shall abide by rules and regulations set
forth in Exhibit C attached hereto and those rules and regulations from
time to time established by Landlord, it being agreed that such rules
and regulations will be established and applied by Landlord in a non-
discriminatory fashion. Landlord agrees to use reasonable efforts to
insure that any such rules and regulations are uniformly enforced, but
Landlord shall not be liable to Tenant for violation of the same by any
other tenant or occupant of the Building, or persons having business
with them. In the event that there shall be any conflict between such
rules and regulations and the provisions of this Lease, the provisions
of this Lease shall control. Which are to be performed after the date
of such transfer.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums under
this Lease designated or payable as an additional charge, Landlord
shall have the same rights and remedies as Landlord has hereunder for
failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by Law.
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14.10 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms
hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if
Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and assigns. Each term and each provision of
this Lease to be performed by Tenant shall be construed to be both a
covenant and a condition. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to assignment
by Tenant, but has reference only to those instances in which Landlord
may later give consent to a particular assignment as required by those
provisions of Article VI hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but each party
hereto agrees, on the request of the other, to execute a so-called
notice of lease in form recordable and complying with applicable law
and reasonably satisfactory to Landlord's attorneys. In no event
shall such document set forth the rent or other charges payable by
Tenant under this Lease; and any such document shall expressly state
that it is executed pursuant to the provisions contained in this
Lease, and is not intended to vary the terms and conditions of this
Lease.
14.12 NOTICES. Whenever, by the terms of this Lease, notices, consents or
approvals shall or may be given either to Landlord or to Tenant, such
notices, consents or approvals shall be in writing and shall be sent by
registered or certified mail, return receipt requested, postage
prepaid:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address with a copy Addressed to Landlord at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx (or to such other
address as may from time to time hereafter by designated by Landlord by
like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original
Address and thereafter to the Premises (or to such other address or
addresses as may from time to time hereafter be designated by Tenant by
like notice.)
All such notices shall be effective when deposited in the United States
Mail within the Continental United States, provided that the same are
received in ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and this Lease expressly supersedes any proposals
or other written documents relating hereto. This Lease may be modified
or altered only by written agreement between Landlord and Tenant, and
no act or omission of any
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employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
14.14 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein
shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction, or meaning of the provisions of this
Lease.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate
to any mortgage or ground lease from time to time encumbering the
Premises, whether executed and delivered prior to or subsequent to the
date of this Lease, if the holder of such mortgage or ground lease
shall so elect. If this Lease is subordinate to any mortgage or ground
lease and the holder thereof (or successor) shall succeed to the
interest of Landlord, at the election of such holder (or successor)
Tenant shall attorn to such holder and this Lease shall continue in
full force and effect between such holder (or successor) and Tenant.
Tenant agrees to execute such instruments of subordination or
attornment in confirmation of the foregoing agreement as such holder
may request, and Tenant hereby appoints such holder as Tenant's
attorney-in-fact to execute such subordination or attornment agreement
upon default of Tenant in complying with such holder's request.
Notwithstanding anything to the contrary contained in this Section
14.15, Tenant shall not be required to subordinate this Lease to any
mortgage or the lien of any mortgage or sale and leaseback, nor shall
the subordination provided herein be self-operative unless the holder
of such mortgage or ground lease, as the case may be, shall enter into
an agreement with Tenant, recordable in form, to the effect that in the
event of foreclosure of, or similar action taken under, such mortgage
or ground lease, Tenant's possession of the Premises under this Lease
shall not be terminated or disturbed by such mortgageholder or ground
lessor or anyone claiming under such mortgageholder or ground lessor,
as the case may be, so long as Tenant shall not be in default under
this Lease. The form of any such agreement shall be the form required
by any such mortgagee or ground lessor.
14.16 STATUS REPORT. Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees,
ground lessors, or the like, the then current status of performance
hereunder, either party, on the request of the other made from time to
time, will, within 21 days after request, furnish to Landlord, or the
holder of any mortgage or ground lease encumbering the Premises, or to
Tenant, as the case may be, a statement of the status of any matter
pertaining to this Lease, including, without limitation,
acknowledgement that (or the extent to which) each party is in
compliance with its obligations under the terms of this Lease.
14.17 SECURITY DEPOSIT. Upon Landlord providing Tenant with a copy of the
4500 Permit (as defined in Section 14.30 hereof) and upon expiration of
the 20 day appeal period applicable to the issuance of the 4500 Permit,
Tenant shall
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deposit with Landlord a Letter of Credit in the amount and form
hereafter described (the "Letter of Credit") to be held and, as
applicable, presented, drawn upon and the proceeds thereof retained and
applied by Landlord as security for the faithful payment, performance
and observance by Tenant of the terms, covenants, provisions,
conditions and agreement of Tenant under and pursuant to this Lease. It
is agreed and understood that in the event of the occurrence of a
Default of Tenant, Landlord may present for payment and draw upon the
Letter of Credit and Landlord may use, apply or retain the whole or any
part of the amounts available to be drawn under the Letter of Credit to
the extent required for the payment of any Basic Rent, Escalation
Charges, additional rent or any other sum which Landlord may expend or
be entitled to the payment of by reason of any Default of Tenant or any
failure of tenant to pay, perform or observe any term, covenant,
condition or provision of this Lease, including without limitation, any
late charges, interest payments or any damages or deficiency in the
re-letting of the Premises whether said damages or deficiency occurred
before or after summary proceedings or other re-entry by Landlord.
If Landlord shall present, draw upon and apply or retain all or any
portion of the amounts evidenced by the Letter of Credit, Tenant shall
immediately replenish and reinstate the amount available to be drawn
under the Letter of Credit or cause a substitute Letter of Credit in
the form and amount required by this Lease to be re-issued so that at
all times during the Term of this Lease, Landlord shall be entitled to
draw upon the entire dollar amount of the Letter of Credit in the
amounts required hereunder notwithstanding any prior presentation and
draw thereon.
The Letter of Credit must at all times be an "irrevocable clean"
commercial Letter of Credit in the amount required by this Lease and
payable through a New York City, New York Bank, acceptable to Landlord
in Landlord's sole discretion. In addition, the Letter of Credit shall
be payable solely to the benefit of the Landlord from time to time
under this Lease and shall be automatically renewable and, upon the
direction of Landlord, transferable to and payable for the benefit of
any successor Landlord under the Lease. The Letter of Credit shall be
and remain presentable and payable for the time period beginning on the
date of this Lease through and including the date which is the last to
occur of (i) the date which is 60 days after the last day of the Term
of this Lease or (ii) the date which is 60 days after the date of
delivery of the entire Premises to Landlord in accordance with the
terms and provisions of this Lease or (iii) 60 days after the last of
Tenant's monetary obligations to Landlord under this Lease have been
satisfied in full. Tenant shall bear all costs and expenses in
connection with procuring the Letter of Credit and maintaining it in
full force and effect for the time periods required hereunder. In the
event of a sale or other transfer of the Building, Tenant shall, at its
sole cost and expense, cause the Letter of Credit, in the form required
hereunder, to be issued to and for the benefit of such transferee or
purchaser, as designated by Landlord.
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indirect (including any loss of a tenant or rental income), sustained
by reason of any such holding over. Otherwise, such holding over shall
be on the terms and conditions set forth in this Lease as far as
applicable.
14.20 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the
following provision shall not make it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business
in the locality in which the Property is located (even though extra
premium may result therefrom) Landlord and Tenant mutually agree that
any property damage insurance carried by either shall provide for the
waiver by the insurance carrier of any right of subrogation against the
other, and they further mutually agree that, with respect to any damage
to property, the loss from which is covered by insurance then being
carried by them, respectively, the one carrying such insurance and
suffering such loss releases the other of and from any and all claims
with respect to such loss to the extent of the insurance proceeds paid
with respect thereto.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of
the Term of this Lease, Tenant shall peaceably quit and surrender to
Landlord the Premises in neat and clean condition and in good order,
condition and repair, together with all alterations, additions and
improvements which may have been made or installed in, on or to the
Premises prior to or during the Term of this Lease, excepting only
ordinary wear and use and damage by fire or other casualty for which,
under other provisions of this Lease, Tenant has no responsibility of
repair and restoration. Tenant shall remove (i) all of Tenant's
Removable Property and, to the extent specified by Landlord at the time
of approval of Tenant's Plans or at the time of the Landlord's consent
thereto, all alterations and additions made by Landlord (in connection
with Landlord's Work) or Tenant and all partitions wholly within the
Premises whether made by Landlord or Tenant; and shall repair any
damage to the Premises or the Building caused by such removal. Any
Tenant's Removable Property which shall remain in the Building or on
the Premises after the expiration or termination of the Term of this
Lease shall be deemed conclusively to have been abandoned, and either
may be retained by Landlord as its property or may be disposed of in
such reasonable manner as Landlord may see fit, at Tenant's sole cost
and expense. Without limitation of the foregoing, upon expiration or
earlier termination of this Lease, Tenant shall, at its sole cost and
expense, (i) remove all exhaust hoods and related duct work (regardless
of whether installed as part of Landlord's Work, or otherwise) and (ii)
remove all so-called "case work" designated as "to be removed" by
Landlord in writing at the time of Landlord's approval of Tenant's
Plans from the Premises and shall repair any damage to the Building or
Premises resulting from the removal of the matters defined in (i) and
(ii) hereof (ie. restoring same to condition prior to installation).
14.22 SUBSTITUTE SPACE. Intentionally Omitted.
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14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
broker in connection with the consummation of this Lease other than
Xxxxx Xxxxxx Xxxxx & Partners (""Broker") and, in the event of any
brokerage claims against Landlord predicated upon prior dealings with
Tenant, Tenant agrees to defend the same and indemnify Landlord against
any such claim (except any claim by the Broker which Landlord agrees to
pay per separate arrangements with the Broker).
14.24 SPECIAL TAXATION PROVISIONS RELATING TO LANDLORD'S TAX STATUS. Landlord
shall have the right at any time and from time to time, to unilaterally
amend the provisions of this Lease if Landlord is advised by its
Counsel that all or any portion of the monies paid by Tenant to
Landlord hereunder are, or may be deemed to be, unrelated business
income within the meaning of the United States Internal Revenue Code,
or regulation issued thereunder, and Tenant agrees that it will execute
all documents or instruments necessary to effect such amendment or
amendments, provided that no such amendment shall result in Tenant
having to pay in the aggregate more money on account of its occupancy
of the demised premises under the provisions of this Lease as so
amended and provided further, that no such amendment or amendments
shall result in Tenant receiving under the provisions of this Lease
less services than it is entitled to receive nor services of a lesser
quality. Anything contained in the foregoing provisions of this Lease
(including, without limitation, Article VI hereof) to the contrary
notwithstanding, neither Tenant nor any other person having an interest
in the possession, use, occupancy or utilization of the Premises, shall
enter into any lease, sublease, license, concession or other agreement
for use, occupancy, utilization of space in the Premises which provides
for rental or other payment for such use, occupancy or utilization of
space, in whole or in part, on the net income or profits derived by any
person from the Premises leased, used, occupied or utilized (other than
an amount based on a fixed percentage or percentage of receipts for
sales) and any such recorded lease, sublease, license, concession or
other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy
or utilization of any part of the Premises.
14.25 HAZARDOUS MATERIALS. (a) Tenant shall not (either with or without
negligence) cause or permit the escape, disposal, release or threat of
release of any biologically or chemically active (or inert) or other
Hazardous Materials (as said term is hereafter defined) on, in, upon or
under the Property or the Premises. Nothing contained in the preceding
sentence shall be deemed or construed to prohibit Tenant from disposing
of Hazardous Materials provided that such disposal does not occur on,
in, upon or under the Property or the Premises and such Hazardous
Materials shall be transported from the Property and disposed of in
accordance with all applicable statutes, laws, rules, regulations and
ordinances. Tenant shall not allow the generation, storage, use or
disposal of such Hazardous Materials in any manner not sanctioned by
law or by any applicable permit, license or governmental approval
issued to Tenant or by the highest standards
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prevailing in the applicable industry for the generation, storage, use
and disposal of such Hazardous Materials, nor allow to be brought onto
the Property or the Premises any such Hazardous Materials except for
use in the ordinary course of Tenant's business.
Hazardous Materials shall include, without limitation, any material or
substance which is (i) petroleum, (ii) asbestos, (iii) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act, 33 U.S.C. SS 1251 et seq. (33 U.S.C. SS 1321) or
listed pursuant to SS 307 of the Federal Water Pollution Control Act
(33 U.S.C. SS 1317), (iv) defined as a "hazardous waste" pursuant to
Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
SS 6901 et seq. (42 U.S.C. SS 6903), (v) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. SS 9601 et seq.
(42 U.S.C. SS 9601), as amended, or (vi) defined as "oil" or a
"hazardous waste", a "hazardous substance", a "hazardous material" or a
"toxic material" under any other law, rule or regulation applicable to
the Property, including, without limitation, Chapter 21E of the
Massachusetts General Laws, as amended.
If any lender or governmental agency shall ever require testing to
ascertain whether or not there has been any release of Hazardous
Materials on the Property or the Premises, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as
additional charges but only if such requirement is the result of the
acts or omissions of Tenant or Tenant's. agents, servants, employees,
invitees or independent contractors or in any manner results from
Tenant's use of the Premises.
In all events, Tenant shall indemnify and save Landlord harmless from
and against all liabilities, claims, losses, costs, damages, penalties,
fines and expenses (including, without limitation, reasonable fees of
attorneys and consultants) which may be made, assessed against or
otherwise incurred by Landlord as the result of any release, threat of
release or unlawful storage or disposal of Hazardous Materials in,
upon, under or from the Premises or the Property if such release,
threat of release or unlawful storage or disposal is caused by Tenant
or Tenant's agents, servants, employees, contractors or invitees or
arising out of Tenant's operations on the Property or in the Premises.
Landlord expressly reserves the right, exercisable at any time and from
time to time, to have its agents or contractors enter the Premises
and/or the Property to perform regular inspections and testing as to
the presence or existence of Hazardous Materials therein; provided,
however, that in exercising its right to enter and perform inspections
and testing, Landlord shall use good faith efforts to avoid
unreasonable interference with Tenant's use of the Premises. The
covenants, agreements and indemnity set forth in this Section 14.25(a)
shall survive the expiration or earlier termination of the Term of this
Lease.
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(b) Landlord hereby agrees to indemnify and hold Tenant harmless from
and against any and all "Remediation Costs" (as hereafter defined)
sustained or incurred by Tenant in the event that Tenant is required by
any state or federal court or administrative agency to effect a
remediation and clean-up of Hazardous Materials now existing or
hereafter located on the Premises or Property unless such Hazardous
Materials are present or released on the Property or the Premises as
the result of (i) the acts or omissions of Tenant or any of Tenant's
agents, servants, employees, contractors or invitees or (ii) Tenants
operations on the Property. As used herein, the term "Remediation
Costs" shall mean all reasonable costs or expenses of remediation and
clean-up of such Hazardous Materials which Tenant may incur as the
result of an order of the Massachusetts Department of Environmental
Protection, the U.S. Environmental Protection Agency, any State or
Federal Court of competent jurisdiction or any regulatory agency of
competent jurisdiction requiring that Tenant effect a remediation of
Hazardous Materials on the Property provided that the presence or
existence of such Hazardous Materials is not the result of (i) the acts
or omissions of Tenant or any of Tenant's agents, servants, employees,
contractors or invitees or (ii) Tenant's operations on the Property.
The provisions of this Section 14.25(b) shall survive any termination
or expiration of the Term of this Lease.
14.26 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts,
as the same may from time to time exist.
14.27 PERMITTED SIGNAGE. Subject to the terms and conditions hereafter set
forth and to all applicable building codes, ordinances, by-laws, zoning
codes and land use restrictions, Landlord has agreed that Tenant may
(to the extent permitted by applicable law) erect one sign on the
exterior facade of the Premises and one "monument sign" on the Property
in the front of the Building (the "Exterior Signs"). It is hereby
expressly agreed and understood that the Exterior Signs shall consist
only of Tenant's name and logo and shall be in the form, size and style
set forth in Exhibit G hereof. In addition, Tenant shall be permitted
to erect "parking" and "Delivery" indicator signs ("Directional
Signs") with the consent of Landlord. Landlord hereby reserves the
right to review and approve the content, size, color, manner of
illumination and location of the Exterior Signs and the Directional
Signs, which approval may be granted or denied by Landlord and with
such additional conditions as Landlord may deem appropriate in its
discretion.
Tenant shall be responsible (at its sole cost and expense) for
obtaining all necessary governmental permits, approvals and
authorizations for the approved Exterior Signs and Directional Signs.
Copies of all such permits, approvals and authorizations shall be
delivered to Landlord prior to Tenant performing any work. In addition,
Tenant shall, at its sole cost and expense,
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(i) pay for all work and materials, permits, and approvals necessary
for the erection of the Exterior Signs and Directional Signs (ii)
continuously throughout the Term of this Lease, maintain and repair the
Exterior Signs and Directional Signs and (iii) upon any expiration or
earlier termination of the Term of this Lease, remove the Exterior
Signs and Directional Signs from the Property, repairing any and all
damage to the Building and Premises and the Property resulting from the
installation and removal of such Exterior Signs and Directional Signs.
It is expressly agreed and understood that Landlord shall not be
responsible for any costs or expenses in any way pertaining or related
to the installation, repair, maintenance or removal of the Exterior
Signs and Directional Signs. The provisions of Article V of the Lease
shall be applicable to Tenant's installation of the Exterior Signs and
Directional Signs. Landlord makes no representation or warranty as to
whether the Exterior Signs and Directional Signs will be permitted by
applicable laws, ordinances or codes.
14.28 NET LEASE. This is, and is intended to be, a Net Lease, and
accordingly, except as expressly otherwise provided for herein, all
charges, assessments and impositions made upon the Property and all
costs, expenses and other obligations paid or incurred by Landlord of
any kind or nature whatsoever in insuring, maintaining and/or repairing
the Premises or the Building or the Property or any additions to the
Building shall be included in determining Landlord's costs of which
Tenant is obligated to pay a pro rata share or the entirety, as the
case may be, as provided hereinabove.
14.29 OPTION TO EXTEND. Tenant shall have the right and option, which said
option and right shall not be severed from this Lease or separately
assigned, mortgaged or transferred, to extend the Initial Term for one
(1) additional consecutive period of five (5) years (hereinafter
referred to as the "Extension Period"), provided that (a) Tenant shall
give Landlord notice of Tenant's exercise of such option at least
twelve (12) full calendar months prior to the expiration of the Initial
Term (b) no Default of Tenant shall exist at the time of giving each
applicable notice and the commencement of the applicable Extension
Period and (c) the Original Tenant named herein is itself occupying the
entire Premises both at the time of giving the applicable notice and at
the time of commencement of such Extension Period. Except for the
amount of Basic Rent (which is to be determined as hereinafter
provided), all the terms, covenants, conditions, provisions and
agreements in the Lease contained shall be applicable to the additional
period through which the Term of this Lease shall be extended as
aforesaid, except that there shall be no further options to extend the
Term nor shall Landlord be obligated to make or pay for any
improvements to the Premises nor pay any inducement payments of any
kind or nature. If Tenant shall give notice of its exercise of such
option to extend in the manner and within the time period provided
aforesaid, the Term of this Lease shall be extended upon the giving of
each such notice without the requirement of any further attention on
the part of either Landlord or Tenant
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except as may be required in order to determine Basic Rent as hereafter
set forth. Landlord hereby reserves the right, exercisable by Landlord
in its sole discretion, to waive (in writing) any condition precedent
set forth in clauses (a), (b) or (c) above.
If Tenant shall fail to give timely notice of the exercise of any such
option as aforesaid, Tenant shall have no right to extend the Term of
this Lease, time being of the essence of the foregoing provisions. Any
termination of this Lease Agreement shall terminate the rights hereby
granted Tenant.
The Basic Rent payable for each twelve (12) month period during the
Extension Period shall be the Fair Market Rental Value (as said term is
hereinafter defined) as of commencement of the Extension Period but in
no event less than the Basic Rent per annum payable for and with
respect to the last 12 calendar months of the Initial Term. "Fair
Market Rental Value" shall be computed as of the beginning of the
Extension Period at the then current annual rental charges, including
provisions for subsequent increases and other adjustments, for
extensions of existing leases then currently being negotiated or
executed in comparable space and buildings located in Chelmsford, MA.
In determining Fair Market Rental Value, the following factors, among
others, shall be taken into account and given effect: size of the
premises, escalation charges then payable under the Lease, location of
the premises, location of the building, allowances or lack of
allowances (if any) and lease term. In no event shall the Basic Rent
payable with respect to any Lease Year during the Extension Period be
less than the Basic Rent payable during the last 12 calendar months of
the Initial Term.
Dispute as to Fair Market Value. Landlord shall initially designate the
Fair Market Rental Value and shall furnish data in support of such
designation. If Tenant disagrees with Landlord's designation of the
Fair Market Rental Value, Tenant shall have the right, by written
notice given to Landlord within thirty (30) days after Tenant has been
notified of Landlord's designation, to submit such Fair Market Rental
Value to arbitration as follows: Fair Market Rental Value shall be
determined by agreement between Landlord and Tenant but if Landlord and
Tenant are unable to agree upon the Fair Market Rental Value at least
ten (10) months prior to the date upon which the Fair Market Rental
Value is to take effect, then the Fair Market Rental Value shall be
determined by appraisal as follows: The Landlord and Tenant shall each
appoint a Qualified Appraiser (as said term is hereinafter defined) at
least nine (9) months prior to the commencement of the period for which
Fair Market Rental Value is to be determined and shall designate the
Qualified Appraiser so appointed by notice to the other party. The two
appraisers so appointed shall meet within ten (10) days after both
appraisers are designated in an attempt to agree upon the Fair Market
Rental Value for the applicable Extension Period and if, within fifteen
(15) days after both appraisers are designated, the two appraisers do
not agree upon the Fair Market Rental Value, then each appraiser shall,
not later than thirty (30) days after both appraisers have been chosen,
deliver a written report to both the Landlord
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and Tenant setting forth the Fair Market Rental Value as determined by
each such appraiser taking into account the factors set forth in this
Section 14.29. If the lower of the two determinations of Fair Market
Rental Value as determined by such two appraisers is equal to or
greater than 90% of the higher of the Fair Market Rental Value as
determined by such two appraisers, the Fair Market Rental Value shall
be deemed to be the average of such Fair Market Rental Value as set
forth in such two determinations. If the lower determination of Fair
Market Rental Value is less than 90% of the higher determination of
Fair Market Rental Value, the two appraisers shall promptly appoint a
third Qualified Appraiser and shall designate such third Qualified
Appraiser by notice to Landlord and Tenant. The cost and expenses of
each appraiser appointed separately by Tenant and Landlord shall be
borne by the party who appointed the appraiser. The cost and expenses
of the third appraiser shall be shared equally by Tenant and Landlord.
If the two appraisers cannot agree on the identity of the third
Qualified Appraiser at least five (5) months prior to commencement of
the period for which Fair Market Rental Value is to be determined, then
the third Qualified Appraiser shall be appointed by the American
Arbitration Association ("AAA") sitting in Boston, Massachusetts and
acting in accordance with its rules and regulations. The costs and
expenses of the AAA proceeding shall be borne equally by the Landlord
and Tenant. The third appraiser shall promptly make its own independent
determination of Fair Market Rental Value for the Premises taking into
account the factors set forth in this Section 14.29 and shall promptly
notify Landlord and Tenant of his determination. If the determinations
of the Fair Market Rental Value of any two of the appraisers shall be
identical in amount, said amount shall be deemed to be the Fair Market
Rental Value for the Premises. If the determinations of all three
appraisers shall be different in amount, the average of the two nearest
in amount shall be deemed the Fair Market Rental Value. The Fair Market
Rental Value of the subject space determined in accordance with the
provisions of this Section shall be binding and conclusive on Tenant
and Landlord. As indicated above, in no event shall the Fair Market
Rental Value be less than the Basic Rent applicable to the 12 calendar
month period immediately preceding the commencement of the Extension
Period. As used herein, the term "Qualified Appraiser" shall mean any
disinterested person (a) who is employed by an appraisal firm of
recognized competence in the greater Boston area, (b) who has not less
than ten (10) years experience in appraising and valuing properties of
the general location, type and character as the Premises, and (c) who
is either a Senior Real Property Appraiser of the Society of Real
Estate Appraisers or a member of the Appraisal Institute (or any
successor organization). Notwithstanding the foregoing, if either party
shall fail to appoint its appraiser within the period specified above
(such party referred to hereinafter as the "Failing Party"), the other
party may serve notice on the Failing Party requiring the Failing Party
to appoint its appraiser within ten (10) days of the giving of such
notice and if the Failing Party shall not respond by appointment of its
appraiser within said ten (10) day period, then the appraiser appointed
by the other party shall be the sole appraiser whose determination of
Fair Market Rental Value shall be binding and
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conclusive upon Tenant and Landlord. If, for any reason, Fair Market
Rental Value shall not have been determined by the time of commencement
of the Extension Period and until such rent is determined, Tenant shall
pay Basic Rent during the Extension Period in an amount (the "Interim
Rent") as specified by Landlord's appraiser and upon receipt of a final
determination of Fair Market Rental Value as hereinabove set forth, any
overpayment or underpayment of Interim Rent shall be paid promptly to
the party entitled to receive the same.
14.30 4500 PERMIT. Upon execution and delivery of this Lease by Tenant,
Landlord shall promptly file and use good faith efforts to promptly
obtain an application for a Special Permit pursuant to Section 4500 of
the Town of Chelmsford Zoning By-law (the "4500 Permit"). In the event
that (i) Landlord's application for the 4500 Permit is denied or (ii)
Landlord shall, for any reason, fail to obtain the 4500 Permit on or
before the date which is 90 days after the date of execution of this
Lease by Tenant (as evidenced by the signature page of this Lease) or
(iii) after issuance of the 4500 Permit, any party shall, for any
reason, file an appeal objecting to the issuance of the 4500 Permit,
Landlord shall promptly provide Tenant with written notice of such
denial, failure to obtain or appeal of the issuance of the 4500 Permit
(a "Notice of Denial"). Upon the giving of a Notice of Denial, Landlord
and Tenant shall each have the right to terminate this Lease by written
notice to the other party (a "4500 Termination Notice") given no later
than 7 Business Days after the giving of the Notice of Denial by
Landlord, which termination shall be effective immediately upon receipt
by the addressee provided that such notice is duly given pursuant to
Section 14.12 of this Lease. In the event that either party shall give
the other a 4500 Termination Notice within the time and manner herein
provided, time being of the essence, this Lease, and all of the rights
and obligations of the parties hereunder shall cease and come to an end
and this Lease shall have no further force or affect. Tenant hereby
agrees to cooperate with Landlord in connection with the application
for the 4500 Permit including, without limitation, the provision of
information and documentation regarding the content of the Construction
Documents which may be necessary for prosecution of the application.
All costs and expenses incurred by Landlord including, without
limitation, all application fees, engineering fees, legal fees and
architectural fees shall be borne by Landlord but shall be paid through
and as a portion of the Allowance (as defined in Article IV) in the
event that the Lease shall not be terminated pursuant to the provisions
of this Section 14.30.
Tenant hereby agrees to promptly commence its preparation of the
Construction Documents and hereby agrees that it shall bear all costs
and expenses attributable to preparation of the Construction Documents
in the event this Lease shall be terminated by either party pursuant to
the provisions of this Section 14.30. Nothing contained herein shall be
deemed to delay or extend the Construction Document Delivery Date (as
defined in Article I hereof).
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It is agreed and understood that Landlord need not appeal any decision
of the Planning Board in the event that the Landlord's application for
the 4500 Permit is denied (or deemed denied) in the first instance by
the Planning Board, it being agreed and understood that Landlord need
only file an application for such 4500 Permit, appear at the applicable
hearing and await the decision of the Planning Board. It is agreed and
understood that no further appeals or further action need be taken by
L'12andlord in connection with obtaining such 4500 Permit. In no event
shall Tenant file an application for Special Permit pursuant to Section
4500 of the Town of Chelmsford Zoning By-law.
14.31 ACCESS TERMINATION RIGHT. Vehicular access and egress to and from the
Property is presently provided over Alpha Road and the Access Easements
(as defined in Section 2.2 hereof). Alpha Road is presently a dedicated
public way over a portion of its course and a private way over the
remainder of its course. In the event that access and egress to and
from the Property over Alpha Road or the Access Easements shall be
terminated and Landlord is unable to provide Tenant with alternative
vehicular access and egress to and from the Property, the Tenant shall
have the right, subject to the terms and provisions of this Section
14.31, to terminate this Lease by written notice to Landlord (an
"Access Termination Notice"). Upon the giving of an Access Termination
Notice by Tenant, this Lease shall terminate effective as of the 180th
day following the giving of such Access Termination Notice unless,
within such 180 day period, Landlord shall provide Tenant with
alternative legal vehicular access and egress to the Property to and
from a public way or shall restore vehicular access to and from a
public way over Alpha Road and the Access Easements. Tenant shall
promptly give Landlord notice of any claim by and party that Tenant is
prohibited from using Alpha Road or the Access Easements for access to
and egress from the Property.
From and after the date of an Access Termination Notice, Basic Rent and
Escalation Charges payable by Tenant hereunder shall xxxxx
proportionately for the period in which, by reason of such termination
of access to and from the Property, there is interference with Tenant's
use of the Premises having regard to the nature and extent to which
Tenant may be required to discontinue Tenant's use of all or any
portion of the Premises due to the termination of legal means of access
and egress to and from the Property. Such abatement or reduction
shall end when Landlord shall restore such legal access to and from a
public way with alternative or substituted legal access (temporary or
otherwise). In no event shall Landlord have any liability for damages
to Tenant for any inconvenience, annoyance or interruption of business
arising from such termination of access to and from the Property. The
abatement of rent and the right of termination provided in this
paragraph shall be Tenant's sole and exclusive right and remedy against
Landlord arising from any termination of legal means of access to and
from the Property for any reason.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in
multiple copies, each to be considered an original hereof, as of the
date first set forth above.
TENANT:
ESA, INC.
Dated: JAN. 21, 1994 By: [SIG]
-------------- ------------------------------
Its: President
------------------------------
By: [SIG]
------------------------------
Its: Vice President
------------------------------
LANDLORD:
TEACHERS REALTY CORPORATION
Dated: By: /s/ XXXXXXXX X. XXXXXXXX
-------------- ------------------------------
Its: ASSISTANT SECRETARY
------------------------------
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[FLOOR PLAN]
First Floor
Vacant
00 XXXXX XXXX
XXXXXXXXXX, XX
57,778 sf
62
EXHIBIT A
[FLOOR PLAN]
Second Floor
Vacant
00 XXXXX XXXX
XXXXXXXXXX, XX
57,778 sf
63
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, paved and/or landscaped areas shall not be obstructed or
encumbered by Tenant or used for any purpose other than ingress and egress to
and from the demised premises
2. No sign, advertisement, notice or other lettering shall, be exhibited,
inscribed, painted or affixed by Tenant on any p of the demised premises or
Building so as to be visible from outside the demised premises without the
prior written consent Landlord, which will not be unreasonably withheld
or delayed
In the event of the violation of this paragraph, Landlord may
remove same without any liability, and may charge expense incurred in such
removal to Tenant, as additional rent
3. Except as otherwise expressly provided in this Lease
No awnings, curtains, blinds, shades, screens or other projections shall
be attached to or hung in, or used in connection with, any window of the demised
premises or any outside wall the Building without the prior
written consent of Landlord, w will not be unreasonably withheld or delayed
so long as said awning or other item conforms to similar items installed in
o upon other portions of the Building. Such awnings, curtains, blinds, shades,
screens or other projections must be of a a type, design and color, and
attached in the manner, approved Landlord.
4. The water and wash closets and other plumbing fixtures sha11 not be used
for any purposes other than those for which were designed and constructed, and
no sweepings, rubbish, raq , acids, chemicals, process water, cooling water
or like substances shall be deposited therein. Said plumbing fixtures and the
plumbing system of the Building shall be used only for the discharge of
so-called sanitary waste. All damage resulting in any misuse of said fixtures
and/or plumbing system by Tenant of anyone claiming under Tenant shall be borne
by Tenant.
5. Tenant must, upon the termination of its tenancy, to Landlord all
locks, cylinders and keys to the demised pre , and any offices therein.
6. Tenant shall keep any sidewalks and planters in fr the demised
promises reasonably free and clear of litter and refuse, regardless of the
source thereof.
7. Tenant shall, tit Tenant's expense, provide artificial light and
electric current for the employees of Landlord and Landlord's contractors while
making repairs or alterations in demised promises.
64
8. Tenant shall not make, or permit to be made, any unseemly or disturbing
odors or noises or disturb or interfere with occupants of the Building or those
having business with the whether by use of any musical instrument,
radio, machine, or in any other way.
9. Canvassing, soliciting, and peddling in the Building a prohibited and
Tenant shall cooperate to prevent the same.
10. Tenant shall keep the demised premises free at all ti of pests,
rodents and other vermin, and Tenant shall keep all trash and rubbish stored in
containers of a type approved by Landlord, such containers to be kept at
locations designated by Landlord. Tenant shall cause such containers to be
emptied whenever necessary to prevent them from overflowing or from producing
any objectionable odors.
11. Landlord reserves the right to rescind, alter, waive and/or establish
any reasonable rules and regulations of uniform application to all tenants
which, in its judgement, are necessarily desirable or proper for its best
interests and the best interest of the occupants of the Building.
12. The access roads, driveways, entrances and exits shall not be
obstructed or encumbered by Tenant or used for any purposes other than ingress
and egress.
65
EXHIBIT E
(ITEMS INCLUDED IN OPERATING EXPENSES)
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred
for wages, salaries and other compensation for services, payroll, social
security, unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization, retirement
plans and group insurance, uniforms and working clothes and the cleaning
thereof, and expenses imposed on Landlord or Landlord's agents in
connection with the operation, repair, maintenance of the Property, and
its mechanical systems including, without limitation, day and night
supervisors, janitors, carpenters, engineers, mechanics, electricians
and plumbers and personnel engaged in supervision of any of the persons
mentioned above: provided that, if any such employee is also employed on
other property of Landlord, such compensation shall be suitably
allocated by Landlord among the Property and such other properties.
2. The cost of services, materials and supplies furnished or used in the
operation, repair, maintenance, cleaning, and protection of the Property
including, without limitation, fees and assessments, if any, imposed
upon Landlord, or charged to the Property, by any governmental agency or
authority or other duly authorized private or public entity on account
of public safety services, transit, housing, police, fire, sanitation
or other services or purported benefits.
3. The cost of replacements for tools and other similar equipment used in
the repair, maintenance, cleaning and protection of the Property,
provided that, in the case of any such equipment used jointly on other
property of Landlord, such costs shall be allocated by Landlord among
the Property and such other properties.
4. Premiums for insurance against damage or loss to the Building from such
hazards as shall from time to time be generally required by
institutional mortgagees in the Boston area for similar properties,
including, but not by way of limitation, insurance covering loss of rent
attributable to any such hazards, and public liability insurance.
5. If during the Term of this Lease, Landlord shall make a capital
expenditure, the total cost of which is not properly includable in
Operating Expenses for the Operating Year in which it was made, there
66
shall nevertheless be included in such Operating Expenses for the
Operating Year in which it was made and in Operating Expenses for each
succeeding Operating Year, an annual charge-off of such capital
expenditure. The annual charge-off shall be determined by dividing the
original capital expenditure plus an interest factor, reasonably
determined by Landlord, as being the interest rate then being charged
for long-term mortgages, by institutional lenders on like properties
within the locality in which the Building is located, by the number of
years of useful life of the capital expenditure, and the useful life
shall be determined reasonably by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time of
making such expenditure.
6. Betterment or special assessments provided the same are apportioned
equally over the longest period permitted by law.
7. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance and
protection of the Property.
8. Management Fees payable to contractors or managers for operation and
management of the Building. All management fees not directly related to
the management, operation, maintenance, administration or upkeep of the
Property shall be excluded from Operating Expenses.
9. Intentionally Omitted;
10. Usual and customary management fees and other reasonable legal or other
professional fees relating to the operation and management of the
Property.
67
EXHIBIT F
TENANT'S JANITORIAL SPECIFICATIONS
EACH VISIT
1. Empty all trash.
2. Replace liners as needed.
3. Empty and wash all ashtrays.
4. Dust all flat surfaces and cleared desks.
5. Clean glass doors.
6. Clean kitchen and coffee areas.
7. Thoroughly clean restrooms and restock with soap and
paper supplies.
8. Vacuum all carpeting.
9. Dust mop tile floors.
10. Damp mop tile floors.
11. Spray buff tile floors: as needed.
12. Turn off all lights, lock doors and leave premises
in orderly condition.
The above services are to be performed by Tenant Monday-Friday of each
week.
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EXHIBIT G
SIGN ON BUILDING
[ESA INC. LOGO]
Individual bird (blue) and letters (silver)-backlit
MONUMENT SIGN
[ESA INC. LOGO]
ESA Laboratories, Inc.
00 Xxxxx xxxx
Blue metal sign with white
letters on black/bronze posts
69
EXHIBIT "J"
FORM OF TENANT ESTOPPEL CERTIFICATE
Landlord: Teachers Realty Corporation
Tenant: ESA, Inc.
Premises: 00 Xxxxx Xxxx Xxxxxxxxxx, XX
Original Lease Dated: January 21, 1994
Amendments:
The undersigned Tenant under the above-referenced Lease as Amended (the "Lease")
hereby confirms to W9/TIB Real Estate Limited Partnership ("Purchaser"), as the
prospective purchaser of the real property of which the premises demised under
the Lease is a part (the "Premises"), and to the Lender providing financing to
Purchaser in connection with any loan secured by a mortgage of such real
property ("Lender"), as follows:
1. Tenant is the tenant under a lease covering the Premises. A true
and correct copy of the Lease covering the premises. A true and
correct copy of the Lease and all amendments thereto are attached
thereto.
2. The term of the lease commenced on September 1, 1994 and expires
on August 31, 2004. Tenant is in possession of the Premises.
3. The rent under the Lease has been paid through October 31, 1997.
No rents have been prepaid more than thirty (30) days in advance
of their due date except as provided by the Lease, and Tenant has
not asserted and has no actual knowledge of any claim against the
Landlord under the Lease that might be set-off or credited
against future accruing rents.
4. All obligations and conditions under the Lease to be performed to
date by Landlord have been satisfied, including, without
limitation, any construction and/or work -letter obligations,
except as follows: N/A
Tenant has on deposit with the Landlord a security deposit in the
amount of $ Letter of Credit, current amount $75,000.
5. To the best of the undersigned's knowledge, there is no existing
event of default on the part of the Landlord.
6. There exists no default on the part of Tenant.
70
7. The Lease is valid and in full force and effect and represents
the entire agreement between the parties, and the Lease has
(check one):
(X) not been amended, modified, supplemented, extended, renewed
or assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned as set forth in the agreements set forth on page 1 of
this certificate.
9. Tenant has not assigned, transferred, or pledged the Lease or any
interest therein or sublet any portion of the Premises except
N/A.
10. The address for notices to be sent to Tenant is as set forth in
the Lease.
Tenant: ESA, Inc.
Dated: October 28, 1997. By: /s/ Xxxxxx XxXxxxxx
---------------------- ----------------------------------
Name: Xxxxxx XxXxxxxx
--------------------------------
Title: President
-------------------------------
71
EXHIBIT B
DEMISED PREMISES
[FLOOR PLAN]
Second Floor Plan
