EXHIBIT 10.14
LEASE AGREEMENT
THIS AGREEMENT, made this 19th day of August [initialed], 2003, by and
between AIRTIGHT II, LLC, having an address of 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000 (hereinafter referred to as "Landlord"), and ALLEGRO MICROSYSTEMS,
INC., having an address of 000 Xxxxxxxxx Xx, Xxxxxxxxxx, XX 00000 (hereinafter
referred to as "Tenant").
WITNESSETH:
THAT Landlord, for and in consideration of the rentals and covenants
hereinafter mentioned on the part of Tenant, its successors and assigns to be
performed, has leased, and by these presents does lease, unto Tenant, and Tenant
does hereby take and hire from Landlord upon and subject to the conditions
hereinafter expressed the entire premises located at 000 Xxxxxxxxx Xx,
Xxxxxxxxxx, XX 00000, consisting currently of 97,135 rentable square feet
(consisting of 11,747 sf on the first floor, 42,717 sf on the second floor,
42,671 sf on the third floor plus the expansion space described below in the
amount of 11,398 square feet) which premises are described as set forth in
Exhibit "A" annexed hereto and the lands appurtenant thereto consisting of
approximately 29 acres and made a part hereof and also shown as Lot 848-7 on a
plan of land entitled "Tax Map 848, Lot 7, Subdivision Plan of Land owned by:
Airtight II, L.L.C., Perimeter Road, Manchester, NH, prepared for Xxxxx Hotel
Management, Inc." dated January 24, 2001, revised through April 9, 2001,
prepared by X.X. Xxxxx, Inc. and recorded in the Hillsborough County Registry of
Deeds as Plan No. 31126 (hereinafter referred to as the "PREMISES"), together
with access to and from the PREMISES across the interior and exterior common
ways, if any, and use of the all parking areas, of 000 Xxxxxxxxx Xx.
IT IS FURTHER understood and agreed by and between the parties hereto as
follows:
ARTICLE 1
TERM
The term of this lease shall be Fifteen (15) year(s) commencing upon
reasonable completion of the fit up work as described in exhibit "A" and
Tenant's legal occupancy of said Premises which shall not be later than the date
that the City of Manchester issues a certificate of occupancy for the entire
building (which date is hereinafter referred to as the Commencement Date) and
ending at noon on the Fifteenth Anniversary of the Commencement Date.
ARTICLE 2
FIXED RENT AND ADDITIONAL RENT
Tenant covenants to pay to Landlord at the commencement of the lease a net
annual basic rental of Nine Hundred Twenty Two Thousand Seven Hundred Eighty Two
Dollars And Fifty Cents ($922,782.50) ($9.50 per square foot subject to the
escalations as outlined below), in equal monthly installments of Seventy Six
Thousand Eight Hundred Ninety Eight Dollars and Fifty Four Cents ($76,898.54)
(hereinafter referred to as the "Fixed Rent") as follows:
Tenant shall pay base rent on 97,135 square feet only and shall pay the
operating and tax expenses on the entire building for the first twenty four (24)
months, Thereafter, Tenant shall pay
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base rent on the entire building consisting of 108,533 square feet. If, however,
Tenant occupies the additional 11,398 square feet prior to the 24 month period,
the base rent will be adjusted to include the additional space. Upon Tenant's
occupancy of the additional space, Landlord shall either perform additional
fit-up at a cost no greater than $100,000.00 or perform no additional fit-up and
credit Tenant $100,000.00 against its rental obligations.
In years 6 through 15, Tenant shall also pay additional rent upon the land at a
rate $50,000.00 per year and, if tenant elects to build out additional space at
the property, the additional land rent rate shall be $75,000.00 regardless of
the extent of the build out. Said build out shall be of the same character and
quality of the premises as of the Commencement Date and shall become property of
the Landlord upon expiration of this lease.
Fixed Rent shall be payable in advance on the first (1st) day of each and every
calendar month of the term hereof (hereinafter sometimes referred to as "Rent
Days") at the above address of Landlord or at such other place as may hereafter
be designated by Landlord.
Fixed Rent shall be paid to Landlord, without notice or demand and without
deduction, set-off or other charge therefrom or against the same, for and during
each and every lease year of the term of this Lease.
Tenant shall also pay "Additional Rent" consisting of all taxes, assessments,
utility costs, repair costs, maintenance and grounds-keeping costs including
janitorial, snow removal and landscaping costs, insurance and management fees
relating to the Premises which shall be due and payable when due from the
billing entity and the management fees shall be due on the Rent Days without any
set-off or deduction. The management fee shall be equal to Four Percent (4%) of
the base rent as it exists from time to time. In the event of Tenant's default
in payment Landlord shall have (in addition to any remedies granted Landlord
hereunder for Fixed Rent) all remedies provided by law for non-payment of rent.
Rent for any period of less than one (1) month shall be adjusted pro-rata.
ARTICLE 3
ADJUSTMENTS TO FIXED RENT
Fixed Rent shall be subject to adjustment during the term hereof beginning on
the Commencement Date and on each subsequent anniversary of that date (each of
which is hereinafter referred to as the "Adjustment Date").
Year(s) $/Square Foot Monthly Rent
------- ------------- ------------
1-5 $9.50 $76,898.54 without additional 11,398 and
$85,921.95 with additional 11,398 square feet
6-10 $10.45 $94,514.15
11-15 $11.49 $103,920.34
Additionally, in years 6 through 15 or any extensions of this lease, Tenant
shall pay the land rent at the rate of $4,166.66 month without the build-out and
$6,250.00 with the build out discussed in Article 2 above.
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ARTICLE 4
TAXES, ASSESSMENTS AND CHARGES
Tenant shall pay as Additional Rent, all real estate taxes, water and sewer
assessments and any other assessments or substitutes therefor attributable to
any portion of the term hereof. Tenant shall also pay to the appropriate taxing
authority the amount of all assessments, impositions and taxes made, levied or
assessed against or imposed upon any and all property of Tenant.
If at any time during the term of this Lease the methods of taxation prevailing
at the execution hereof shall be changed or altered so that in lieu of or as a
supplement to or a substitute for the whole or any part of the real estate taxes
or assessments now or from time to time hereafter levied, assessed or imposed by
applicable taxing authorities, there shall be imposed (i) a tax, assessment,
levy, imposition or charge, wholly or partially as a capital levy or otherwise,
on the rents received from the PREMISES, or (ii) a tax, assessment, levy
(including but not limited to any municipal, state or federal levy), imposition
or charge measured by or based in whole or in part upon the PREMISES and imposed
upon Landlord, or (iii) a license fee measured by the rent payable under this
Lease, then all such taxes, assessments, levies, impositions and/or charges, or
the part thereof so measured or based shall be deemed to be included in the
general real estate taxes and assessments payable by Tenant pursuant hereto, to
the extent that such taxes, assessments, levies, impositions and charges are
solely related to the Premises and Tenant shall pay and discharge the same as
herein provided in respect of the payment of general real estate taxes and
assessments. Items payable by Tenant pursuant to the provisions of this Article
are sometimes referred to in this Lease as "impositions". The aforementioned
adjustment would not apply to any taxes on income.
Tenant shall have the right to seek an abatement of the real estate taxes and
Landlord shall have the obligation to cooperate with Tenant in its efforts to
achieve any reduction in said taxes. Tenant shall also have the right, with
reasonable notice to the Landlord, to negotiate assessments with the Tax
Assessor's Office prior to the imposition of said assessment which includes the
right to negotiate for an agreed assessment without the requirement of seeking a
formal abatement.
ARTICLE 5
INSURANCE
Section 1. Tenant shall procure and maintain at Tenant's sole cost and expense
prior to the commencement of the lease and thereafter, throughout the term of
this Lease the following insurance with respect to the PREMISES:
(a) Comprehensive single limit general public liability insurance against claims
for personal injury, death, or property damage occurring upon, in or about the
PREMISES, such insurance to afford protection to the limit of not less than Five
Million ($5,000,000.00) Dollars; and
(b) Casualty and fire insurance policies with full extended coverage provisions
with respect to the PREMISES including the entire structure and all of Tenants
personal property, in an amount not less than the full replacement cost of the
buildings and improvements thereon, but in no
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event less than the amount sufficient to avoid the effect of the co-insurance
provisions of the applicable policy or policies.
Section 2. All policies required under the provisions of Section 1 of this
Article 5 shall name Landlord as an additional insured and upon request of
Landlord, shall also name any mortgage holder as a loss payee.
Section 3. Neither Landlord, its servants, agents or employees, nor any
mortgagee of the PREMISES shall be liable or responsible for, and Tenant hereby
releases Landlord, its servants, agents or employees and each mortgagee of the
PREMISES from, all liability and responsibility to Tenant and any person
claiming by, through or under Tenant, for any injury, loss or damage to any
person or property in or around the PREMISES or to Tenant's business
irrespective of the cause of such injury, loss or damage except as occasioned by
the willful misconduct or negligence of the Landlord and not covered by
applicable policies of insurance as provided for in this Lease.
Section 4. All such insurance will be issued by a company or companies
authorized to do business in New Hampshire and satisfactory to Landlord, and all
such policies (or certificates therefor) shall be delivered to Landlord and
shall provide for at least twenty (20) days prior written notice to Landlord of
cancellation, except with respect to cancellation on account of non-payment of
premiums, which provide for a Ten (10) day notice of cancellation.
ARTICLE 6
REPAIRS
Section 1. Tenant throughout the term of this Lease, at its sole cost and
expense, shall take good care of the PREMISES and keep same in good, tenantable
order and condition, and shall promptly at Tenant's own cost and expense, make
all necessary repairs thereto and replacements thereof, including the repair and
replacement of (a) all windows and plate glass in the PREMISES, (b) all the
floors whether finished or sub-floors, and (c) the heating, air conditioning,
plumbing, electrical, water, sewer, and other utility service systems serving
the PREMISES, except repairs and replacements necessitated by damage by fire or
other insured casualty or condemnation (which shall be governed by the
provisions of Article 15 and 16 of this Lease) and further excepting therefrom
those items Landlord is expressly obligated to repair as provided for herein by
specific warranties of the Landlord in this Article 6. Tenant shall maintain all
equipment which is part of the PREMISES in good and operable condition, except
for ordinary wear and tear, and unavoidable casualties.
Landlord hereby warrants that the HVAC System on the first and second floors of
the Premises shall be in good working order at the commencement of the lease per
the specifications contained within exhibit "A" and hereby warrants same for the
first year of the lease including payment of all costs associated with necessary
repairs and replacement of same.
Landlord further warrants that it shall be responsible for any roof repairs
aggregating more than $10,000.00 in any year of the lease for the first five
years of this lease. Tenant shall notify Landlord of the contractors it is
utilizing to perform the work and, if the costs of repairs will
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obligate Landlord to incur costs as provided for above in this subparagraph,
Landlord shall have the option to hire contractors of its choice to perform the
repairs.
Section 2. All repairs required to be made by Tenant to the mechanical,
electrical, heating, ventilating, air conditioning or other systems of the
PREMISES shall be performed in a good and workmanlike manner, shall be at least
equal in quality, utility and usefulness to the condition at the commencement of
this Lease, shall be of a first-class, modern character and shall not diminish
the overall value of the PREMISES. All such repairs, replacements and renewals
in connection with the PREMISES shall, immediately upon the expiration or
earlier termination of the term hereof, be and become the property of Landlord
without payment therefor by Landlord and shall be surrendered to Landlord upon
the expiration or earlier termination of the term hereof. Upon the expiration or
earlier termination of the term hereof, Tenant shall surrender the PREMISES to
Landlord in good order, condition and repair, except for ordinary wear and tear,
and unavoidable casualties.
Landlord shall not be responsible to Tenant or any other party whatsoever for
any loss of or damage to property, or injury to persons occurring in or about
the PREMISES by reason of any existing or future condition, defect, matter or
thing in the PREMISES, except to the extent occasioned by misconduct or
negligence of Landlord, its servants, agents or employees, or any mortgagee, and
not covered by applicable policies of insurance required to be maintained by
Tenant pursuant to this Lease. In the event that Tenant shall fail or neglect to
make any necessary repairs as and to the extent required of Tenant pursuant to
this Lease, then Landlord or its agents may, without any obligation so to do,
after thirty (30) days notice to Tenant and upon Tenant's failure to cure the
same within said thirty (30) days, enter the PREMISES and make said repairs at
the cost and expense of Tenant, and in case of Tenant's failure to pay therefor,
the said cost and expense shall be added to the next month's rent together with
interest at twelve percent (12%) per annum (or the maximum amount permitted by
law, whichever shall be less), as Additional Rent and shall be due and payable
as such.
Section 3. Tenant shall be responsible for repairs and maintenance for all
exterior and interior areas of the Premises, grounds and building maintenance,
snow removal, trash removal and maintenance of one (1) entrance way sign at the
entrance to the Premises. With respect to the snow removal, Tenant acknowledges
that it shall be responsible for removal of the snow from the intersection of
Perimeter Road and its access-way to the Premises. Tenant shall also be
permitted to receive a proportionate amount of the costs of snow removal from
the owners of the adjoining hotel property to the extent that the removal is
related to the portion of the access road utilized by the hotel and its guests.
ARTICLE 7
COMPLIANCE WITH LAW
Tenant throughout the term of this Lease at Tenant's sole cost and expense,
shall promptly comply with all laws and ordinances and the orders, rules,
regulations and requirements of all Federal, State and Municipal governments and
appropriate departments, commissions, boards and officers thereof and the
orders, rules and regulations of any Board of Fire Underwriters or similar body
or agency where the PREMISES are situated, or any body, now or hereafter
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constituted, exercising similar functions, foreseen or unforeseen, ordinary or
extraordinary, relating to the PREMISES or to Tenant's use and occupancy
thereof.
Tenant will observe and comply with the requirements of the carriers of any
policy of insurance respecting the PREMISES and the requirements of all policies
of public liability, fire, casualty and all other policies of insurance at any
time in force with respect to the PREMISES.
In the event that Tenant shall fail or neglect to comply with any of the
aforesaid obligations, then Landlord without obligation so to do, after thirty
(30) days notice to Tenant and upon Tenant's failure to cure the same within
said thirty (30) days, may enter the PREMISES and effect compliance at the cost
and expense of Tenant, and in case of Tenant's failure to pay therefor, the said
cost and expense shall be added to the next month's rent, together with interest
at twelve percent (12%) per annum, (or the maximum amount permitted by law,
whichever shall be less) as Additional Rent and shall be due and payable as
such.
ARTICLE 8
ALTERATIONS AND IMPROVEMENTS
With respect to any alterations or additions not defined in Exhibit "A", Tenant
shall have the right during the term of this Lease to make such alterations or
additions to the PREMISES as Tenant shall deem necessary or desirable in
connection with the requirements of its business, which alterations and
additions shall be made in all cases subject to the following conditions which
Tenant shall observe and perform, unless said alterations or improvements are
not material, in which case, the Landlord's approval shall not be required. An
alteration shall be conclusively deemed to be material in the event that it
changes any structural component of the building, changes the exterior
(including windows) of the building, changes the roof of the building or costs
in excess of $25,000.00.
(a) No material alteration or addition shall be undertaken until Tenant has
obtained Landlord's prior written approval which the Landlord may not
unreasonably withhold.
(b) No material alteration or addition shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required from time to
time, all permits and authorizations of the various governmental agencies having
jurisdiction thereover. Landlord agrees to join in the application for such
permits or authorizations whenever such action is necessary.
(c) All alterations and additions when completed shall be of such a character as
not to reduce, or otherwise adversely affect the value of the PREMISES, nor to
reduce the size of the building, the cubic content thereof, nor change the
character of the PREMISES. Tenant shall make all repairs to and replacements of
such alterations and additions made by it in and to the PREMISES.
(d) All work done by Tenant shall be done promptly, in a good and workmanlike
manner, and in compliance with the building and zoning laws of the municipality
in which the PREMISES are located and in compliance with all laws, ordinances,
order, rules, regulations and requirements of all federal, state and municipal
governments and the appropriate departments, commissions, boards and officers
thereof, and in accordance with the orders, rules and regulations of the Board
of Fire Underwriters where the PREMISES are situated or any other body
exercising similar
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functions and having jurisdiction thereof; said alterations or additions shall
be constructed and completed free of liens for labor and material supplied or
claimed to have been supplied to the PREMISES.
(e) Tenant shall at Tenant's sole cost and expense, at all times when any work
is in process in connection with any Tenant alterations or additions after the
Commencement Date, maintain Builders Risk casualty insurance policy coverage in
the amount of the full replacement cost thereof, and Statutory Workmen's
Compensation Insurance covering all persons employed in connection with the work
and with respect to whom death or injury claims could be asserted against
Landlord, Tenant or the PREMISES, general liability insurance for the mutual
benefit of Tenant and Landlord by obtaining policies of insurance with the same
limitations of coverages as set forth in Article 5, during the period of such
construction. All such insurance will be issued by a company or companies
authorized to do business in New Hampshire and satisfactory to Landlord, and all
such policies (or certificates therefor) shall be delivered to Landlord and
shall provide for at least twenty (20) days prior written notice to Landlord of
cancellation, except with respect to cancellation on account of non-payment of
premiums, which provide for a Ten (10) day notice of cancellation.
(f) All alterations and additions made or installed by Tenant shall be and
become the property of Landlord without payment therefor by Landlord, and shall
be surrendered to Landlord upon the expiration or sooner termination of the term
of this Lease, unless Landlord requires Tenant to remove the same at Tenant's
expense prior to the expiration or sooner termination of the Lease, and in such
event Tenant shall restore the PREMISES to the condition it was in prior to the
installation of the said improvements or alterations and additions. If Tenant
shall not be in default of any of its obligations under this Lease and all prior
defaults shall have been fully cured at the termination of the term hereof,
Tenant shall have the right to remove its trade fixtures as shown in the
attached exhibit "C" and personal property from the PREMISES provided, however,
that Tenant shall, at its own cost and expense, repair any damage caused by such
removal and shall have restored the PREMISES to the condition that it was in
prior to the installation of Tenant's said trade fixtures and personal property,
reasonable wear and tear excepted.
Except as above specifically contemplated, Tenant shall not in any manner make
or suffer to be made any additions or alterations to or of the PREMISES.
Notwithstanding anything in the foregoing to the contrary, Tenant shall be free
at all times to bring its own furniture, equipment, and other personal property
on the PREMISES, use the same on the PREMISES and remove the same from the
PREMISES upon the termination or expiration of this Lease; provided their
removal does not cause any damage to the PREMISES.
ARTICLE 9
MECHANIC'S LIENS
Tenant shall not suffer or permit any liens, mechanics' liens, mechanics'
notices of intention, or the like to be filed against the PREMISES or any part
thereof by reason of work, labor, services, equipment or materials supplied or
claimed to have been supplied to or on behalf of Tenant or anyone holding the
PREMISES or any part thereof through Tenant. Before any persons or
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entities perform any work or supply any materials to the PREMISES which could
form the basis for a mechanic's lien, Tenant shall utilize its best efforts to
require such persons or entities to waive their mechanic's lien rights, said
waiver to be done in writing and conspicuously. If any such liens, mechanics'
liens, mechanics' notices of intention, or the like shall at any time be filed
against the PREMISES, Tenant shall cause the same to be discharged of record
within thirty (30) days after the date of filing the same, or if Landlord shall
by written agreement with Tenant, permit same to remain undischarged, Tenant
shall post an insurance company surety bond providing for and securing due
payment thereof and saving Landlord harmless and indemnifying it with respect
thereto. Tenant shall not have any right whatsoever to subject the interests of
Landlord in the PREMISES or in the fee simple title thereto to any mechanics'
liens or other liens whatsoever and nothing contained in this Lease shall be
deemed to operate as an expense or implied consent to Tenant to subject the
interests of Landlord to any such lien or liens.
ARTICLE 10
WASTE
Tenant covenants not to permit the PREMISES to fall into disrepair or to do or
suffer any waste or damage, disfigurement or injury to the PREMISES, or permit
or suffer any stationary overloading of the floors thereof.
ARTICLE 11
INSPECTION BY LANDLORD
Section 1. Tenant agrees to permit Landlord and the authorized representatives
of Landlord to enter the PREMISES during usual business hours of Tenant: (a) for
the purpose of inspecting the same and (b) if Landlord so elects, but without
any obligation so to do, and if Tenant has failed to do so within a reasonable
time, for the purpose of making any necessary repairs to the PREMISES and
performing any work therein which may be reasonably necessary to comply with any
laws, ordinances, rules, regulations or requirements of any public authority or
of the Board of Fire Underwriters or any similar body, or which may be
reasonably necessary to prevent waste or deterioration in connection with the
PREMISES. Nothing herein shall imply any duty upon the part of Landlord to do
any work which, under any provision of this Lease, Tenant may be required to
perform, and the performance thereof by Landlord shall not constitute a waiver
by Landlord of Tenant's default in failing to perform the same. Landlord may,
during the progress of any such work in the PREMISES, keep and store upon the
PREMISES all necessary materials, tools and equipment. Landlord shall not in any
event be liable for inconvenience, annoyance, disturbance, loss of business or
other damage to Tenant by reason of making such repairs or the performance of
any such work in the PREMISES, or on account of bringing materials, supplies and
equipment into or through the PREMISES during the course thereof, and the
obligations of Tenant under his lease shall not thereby be affected in any
manner whatsoever; provided always, however, that to the extent that Landlord
elects to perform or is obligated to perform any such repairs pursuant to the
provisions of this Lease, Landlord agrees that (to the extent reasonably
practicable under the circumstances) Landlord shall use its best efforts to
cause such repairs to be performed in such a way as to cause a minimum of
inconvenience to Tenant on the operation of Tenant's business in the PREMISES
and to cause the said work to be accomplished in as expeditious a manner as is
reasonably practicable.
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Section 2. During the final six (6) months of the term. Landlord is hereby given
the right at any time during usual business hours and upon prior notice to
Tenant to enter the PREMISES and to exhibit the same for the purposes of sale
and/or lease. Landlord shall be entitled to show PREMISES to potential buyers
and/or prospective tenants and to display on the PREMISES in such manner as not
unreasonably to interfere with Tenant's business the usual "For Sale" or "To
Let" signs and Tenant agrees that such signs may remain, unmolested, upon the
PREMISES. Tenant shall provide Landlord with a list of competitors. When showing
the Premises to Tenant's competitors, Landlord shall use reasonable to notify
the Tenant of such showing 10 days prior to same, if practical.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
Section 1. Provided that this Lease shall be in good standing and that Tenant
shall not be in default of any of its obligations hereunder, Tenant may, without
Landlord's consent, assign this Lease or sublet the PREMISES to any subsidiary
or parent corporation of the Tenant or to any corporation into or with which the
Tenant or its parent or subsidiary corporation shall be duly merged, converted
or consolidated under any statutory proceeding, provided that the total assets
and net worth of such assignee, after such consolidation or merger, shall be
more than that of Tenant immediately prior to such consolidation or merger, and
provided further that such successor shall execute an instrument in writing
reasonably satisfactory to Landlord's counsel fully assuming all of the
obligations and liabilities imposed upon Tenant hereunder and shall deliver the
same to Landlord. No such assignment or subletting shall operate to relieve
Tenant from any liability hereunder.
Section 2. Tenant shall have the further right to sublease all or a portion(s)
of the Premises from time to time to other Tenants provided that the Tenant
remains primarily liable to Landlord under the terms of this lease and that the
sub-lessee use of the premises is compatible with the general quality and image
of the building.
Section 3. Should Tenant at any time during the term hereof desire to assign
this Lease or sublet the PREMISES to a party(ies) other than a party(ies) under
Section 1 of this Article 12, Tenant shall furnish Landlord with thirty (30)
days or more advance written notice (prior to the date of such proposed
assignment) specifying therein the date of such proposed assignment or
subletting, the name and address of the proposed assignee or subtenant, and if a
corporation or partnership, its principals and the nature of the business
proposed to be conducted in the PREMISES by said assignee or subtenant. If
Tenant assigns this Lease or sublets the PREMISES without previously obtaining
Landlord's consent with respect to the sub-lessee's compatible use of the
Premises and sublessee's compatibility with the general quality and image of the
building, Landlord, by giving notice to the Tenant within thirty (30) days after
receipt of notice thereof, shall have the option to cancel and terminate this
Lease effective as of the date of such assignment or subletting or as of the
last day of the thirty (30) day notice period mentioned in this sentence,
whichever date shall be later. Landlord's failure to exercise its option as
contemplated by this Section 3 shall NOT be deemed to constitute Landlord's
consent to Tenant's proposed assignment of this Lease of the PREMISES or any
part thereof. Landlord shall NOT in any event whatsoever be deemed to be
obligated to consent to any proposed assignment of this Lease or subletting of
the PREMISES.
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Section 4. Without limiting any of the provisions of Article 17, if pursuant to
the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease or sublet the
PREMISES notwithstanding the restrictions contained in this Lease, adequate
assurance of future performance by an assignee or subtenant expressly permitted
under such Code shall be deemed to mean the deposit of cash security in an
amount equal to the sum of one year's Fixed Rent plus an amount equal to the
Additional Rent for the lease year preceding the year in which such assignment
or subletting is intended to become effective, which deposit shall be held by
Landlord for the balance of the Term, without interest, as security for the full
performance of all of Tenant's obligations under this Lease.
Provided that any sublessee commences its sublease prior to the twelfth year of
the Commencement Date of this lease, such sublessee shall be permitted to
utilize the option terms as provided for herein.
ARTICLE 13
UTILITIES
Section 1. Tenant agrees, at its own sole cost and expense, to pay, or cause to
be paid immediately when due, all utility charges separately metered to it
including for electricity, light, heat, power, sewer, water, telephone or other
communication service, and to indemnify the Landlord and save it harmless
against any liability therefor or damages on such account. Landlord shall not in
any event be liable to Tenant or responsible to Tenant for any stoppage or
interruption in any utility service furnished to the PREMISES or for the failure
to obtain or inability to obtain any energy source or fuel of any type or nature
whatsoever. No such stoppage or inability of Tenant to obtain any such energy
source or fuel shall operate to constitute a constructive eviction of Tenant or
relieve Tenant of its obligations to pay rent under this Lease.
Section 2. Tenant shall pay, as Additional Rent, Landlord's cost for all
utilities serving the Premises including, but not limited to, water and sewer
charges and heat, power and electricity.
Tenant shall have the bills made out to it and shall pay same directly.
ARTICLE 14
HOLD HARMLESS AND INDEMNIFICATION
Section 1. This Lease is made upon the express condition that Tenant agrees to
save Landlord harmless from and indemnify it against all liabilities, penalties,
losses, damages, costs, expenses, causes of action, claims and/or judgments
arising by reason of any injury in or about the PREMISES to any person or
persons, including without limitation, Tenant, its servants, agents and
employees, and damage in or about the PREMISES to any property of any kind
whatsoever, and to whomsoever belonging, including without limitation, damage to
property of Tenant, its servants, agents and employees, and other parties, which
such injury to persons or damage to property occurs as a result of or from any
cause or causes whatsoever, including, without limitation, damage from water
and/or steam leakage into or upon the PREMISES or its appurtenances, during the
term of this Lease or any occupancy hereunder, except to the extent occasioned
by the sole misconduct or negligence of Landlord, its servants, agents or
employees,
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or any mortgagee, and not covered by policies of insurance required to be
maintained by Tenant pursuant to this Lease.
"Tenant, as a material part of the consideration to be rendered to Landlord,
hereby waives all claims against Landlord for damages to goods, equipment,
improvements, wares and merchandise in, upon or about the PREMISES and for
injuries to Tenant, its servants, agents, employees or third persons in or about
the PREMISES from any cause arising at any time, except to the extent occasioned
by the sole misconduct or negligence of Landlord, its servants, agents or
employees, or any mortgagee, and not covered by applicable policies of insurance
required to be maintained by Tenant pursuant to this Lease.
Section 2. If Landlord is made a party defendant to any litigation concerning a
claim whereon Tenant has same duty to hold Landlord free and harmless from and
to indemnify Landlord as set forth in paragraph 1, then Tenant shall hold
Landlord harmless from all costs including, but not limited to, attorney's fees,
and liability by reason thereof incurred by Landlord in connection with such
litigation and all taxable court costs regardless of whether any such claim is
meritorious or lacking in merit.
Section 3. Tenant's obligations under this Article 14 are conditioned on
Landlord's giving written notice to Tenant of any claim or demand by a third
party which Landlord has determined has given rise to or could reasonably give
rise to a claim for indemnification pursuant to this Article 14 within thirty
(30) days after Landlord receives notice thereof. Tenant shall then have a
reasonable time (not to exceed thirty (30) days) after receipt of such written
notice from Landlord in which to retain counsel reasonably satisfactory to
Landlord to defend such third party claim or demand on behalf of Landlord. In
such case, Landlord shall make available to Tenant and its agents and
representatives all records and other materials which are reasonably required in
the defense of such third party claim or demand and shall otherwise cooperate
with and assist Tenant in the defense of such third party claim or demand. So
long as Tenant is defending such third party claim or demand in good faith,
Landlord shall not settle or compromise such third party claim or demand. In the
event of any third party claim or demand for which Landlord is entitled to
indemnification hereunder, Tenant shall pay all legal fees and other costs and
expenses incurred by Tenant as the same become due, and Tenant shall pay on
demand any non-appealable judgment or other resulting obligation of such third
party claim or demand.
To the extent that Tenant has an obligation to indemnify the Landlord for any
such claims as specified above, Tenant shall have the right to compromise same.
ARTICLE 15
CASUALTY
In case of total or partial destruction of the PREMISES by fire, the elements,
or other insured causes during the term of this Lease, the term hereby created
shall not terminate and shall nonetheless continue subject to the provisions of
this Article 15.
If the PREMISES shall be damaged by fire, the elements, or other insured cause,
in whole or in part, then Landlord, its successors or assigns, agree to repair
the same with reasonable
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promptness, provided always however and upon the express condition that there
are funds available to Landlord from casualty insurance policy proceeds actually
paid to and received by Landlord for such repair work and provided further that
such duty to repair by Landlord shall at all times be subject to the approval
and consent of the then mortgagee and the willingness of such mortgagee to make
the proceeds of casualty insurance policies payable to such mortgagee available
to Landlord for such purposes, and subject to the terms and conditions of any
mortgage affecting the PREMISES. Tenant shall give immediate written notice to
Landlord of any such fire or other damage to the PREMISES. In the event that a
mortgagee refuses to rebuild, Tenant shall be given notice of same within 20
days of Landlord's notice of same and shall further be notified whether Landlord
has the ability and will, in fact, rebuild or repair the premises. If Landlord
will not rebuild the premises, the lease shall immediately terminate retroactive
to the casualty date. If Landlord will rebuild or repair, and can not do so
within 120 days, the lease will terminate upon Tenant's notice to Landlord of
Tenant's desire to terminate the lease provided that Tenant gives Landlord
written notice of same within 10 days of its receipt of Landlord's notice.
Upon the occurrence of any damage to the PREMISES by fire, the elements or other
insured cause, Landlord shall select an architect or engineer to prepare a
report as to the reasonable time necessary to repair or restore the said damage.
Said report shall be furnished to Tenant within thirty (30) days from the date
of such damage. If in the opinion of such architect or engineer, the PREMISES
have been damaged to such an extent as to make the majority thereof wholly
untenantable period of one hundred twenty (120) days or more from the date of
the issuance of such report by the architect or engineer, then and in such event
Landlord or Tenant may terminate the within Lease by written notice to the other
party served within ten (10) days after the issuance of the report by the
architect or engineer. Upon the exercise of the option herein granted, this
Lease shall terminate and be of no further force or effect whatsoever.
Provided that this Lease shall not have been terminated in accordance with the
provisions of this Article, Landlord agrees that it shall complete all repair
and restoration work within a period of 150 days from and after the date of
issuance of any such report by the architect or engineer. In the event that
Landlord shall not have substantially completed its work within that time period
(subject to unavoidable delays) Tenant may terminate this Lease Agreement at any
time after the expiration of such one hundred fifty (150) day period and prior
to substantial completion by Landlord of its work in connection with the repair
and restoration by serving Landlord with thirty (30) days prior written notice
thereof. Landlord may vitiate the effect of such notice by substantially
completing its work within such thirty (30) day period.
Anything contained in this Lease to the contrary notwithstanding, in the event
that the PREMISES or any part thereof shall be damaged or destroyed by fire or
other casualty rendering the Thirty Three (33) percent of the Premises unusable,
the Landlord shall have the right to elect, within twenty (20) days after
receipt by Landlord of written notice from Tenant of such event, not to repair
the same, whereupon Landlord shall, within such time period, serve written
notice upon Tenant of Landlord's election to terminate this Lease and thereupon
the term of this Lease shall expire and the Tenant shall forthwith quit and
surrender the PREMISES.
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The Fixed Rent and Additional Rent, or a just proportionate part thereof,
according to the nature and extent of the damages sustained, shall be suspended
or abated until Landlord shall have repaired or restored the PREMISES hereunder.
Landlord's obligations in connection with any repair and/or restoration work
shall and are hereby strictly limited to the replacement of the basic building
as let by Landlord to Tenant, including the fit-up as shown in the attached
exhibit "A" as of the Commencement Date of the term hereof and in no event shall
Landlord be obligated to replace, repair or restore any improvements to the
PREMISES or alterations thereof installed therein by or on behalf of Tenant nor
shall Landlord be obligated in any event whatsoever to replace, repair or
restore Tenant's leasehold improvements, personal property, furniture, fixtures,
equipment or the like.
ARTICLE 16
CONDEMNATION/EMINENT DOMAIN
Section 1. This Lease shall terminate: (1) if the entire PREMISES shall be taken
by condemnation or eminent domain; or (2) at the option of Tenant (exercisable
by notice given to Landlord within thirty (30) days after the date of any such
taking) if a material part of the PREMISES shall be taken in any condemnation or
eminent domain proceeding(s).
Upon the termination of this Lease by reason of condemnation or eminent domain,
Tenant shall be liable only for the payment of Fixed Rent and Additional Rent
and other charges herein, pro-rated to the date of such termination, and
Landlord shall refund any payment in excess thereof to Tenant.
Section 2. Tenant may, if permitted by law, make any application for any award
which might be independently payable to it in connection with Tenant's moving
expenses, business dislocation damages or for the taking of Tenant's leasehold
improvements. Tenant waives its right to and agrees that it shall not (i) make
any other claim in or with respect to any condemnation or eminent domain
proceedings whatsoever or otherwise, or (ii) make any claim against Landlord in
any other action for the value of the unexpired portion of this Lease or the
term hereof. Except as above specifically provided, the total amount of all
condemnation awards shall be the sole and exclusive property of the Landlord,
and Tenant shall not participate therein or in the negotiation thereof or have
any rights whatsoever with respect to the awards or the proceeds of any such
proceedings.
Section 3. In the event that any part of the PREMISES is taken in any
condemnation or eminent domain proceedings and this Lease is not terminated
pursuant to Section 1 hereof, then this Lease shall remain in full force and
effect as to such remaining portion. Subject to the availability of the proceeds
of any award for reconstruction and restoration, Landlord shall promptly
reconstruct and restore the portion of the building upon the PREMISES remaining
after such taking to the same condition as initially demised hereunder. In no
event shall Landlord be obligated to expend any sums for such rebuilding or
restoration in excess of the amount of money actually paid to and received by
Landlord from any condemning authority, net of all expenses, which expenses
shall include any payments required to be made to any mortgagee of the PREMISES
under the terms of its mortgage. The balance of any such proceeds shall, after
completion of restoration and reconstruction, be retained by Landlord.
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ARTICLE 17
BANKRUPTCY/INSOLVENCY AND DEFAULT OF TENANT
Section 1. If, during the term of this Lease, Tenant shall materially default in
performance of any of the covenants of this Lease (other than the covenants for
the payment of Fixed Rent and/or Additional Rent), or if the PREMISES becomes
vacant or deserted for a period of more than six (6) months, or if Tenant shall
fail to move into or take possession of the PREMISES within fifteen (15) days
after the Commencement Date, or if any executions or attachments 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 in any such event Landlord may
give to Tenant notice of any default or of the happening of any contingency in
this Article referred to, and if at the expiration of thirty (30) days after
such notice is given the default or the contingency upon which said notice was
based shall continue to exist, Landlord, at its option may terminate this Lease,
and upon such termination Tenant will quit and surrender the PREMISES to
Landlord, but Tenant shall nonetheless remain liable under the terms and
conditions hereof as herein provided.
Section 2. If Tenant shall default in the payment of the Fixed Rent or
Additional Rent, or any part of the same, and if such default shall continues
for a period in excess of five (5) days and Landlord Notifies Tenant of same and
Tenant does not pay within three (3) of its receipt of said notice, the
delinquent and overdue amount, an additional late charge of five percent (5%)
shall be due as provided in Article 30 below, and if at the end of five (5)
business days after such notice is given the default in the payment of the Fixed
Rent, Additional Rent or late charge shall continue to exist, Landlord may
immediately thereafter terminate this Lease but Tenant shall nonetheless remain
liable under the terms and conditions hereof as herein provided.
Section 3. Upon any termination of this Lease, Landlord or Landlord's agents
and/or servants may immediately or at any time thereafter re-enter the PREMISES
and remove all persons and all or any property therefrom either by summary
proceedings or by any suitable action or proceedings at law and may repossess
said PREMISES together with all additions and alterations thereto, without such
re-entry and repossession working a forfeiture or waiver of the rents to be paid
and the covenants to be performed by Tenant during the full term hereof. In the
event of termination of this Lease by reason of the occurrence of any of the
events described in this Article, or in the event of the termination of this
Lease by summary proceedings or under provisions of law now or at any time
hereafter in force by reason of or based upon or arising out of a default under
or breach of this Lease on the part of Tenant, or upon Landlord's recovering
possession of the PREMISES in any circumstances whatsoever, whether with or
without legal proceedings, by reason of or based upon or arising out of a
default under or breach of this lease on the part of Tenant, Landlord may, at
its option, at any time and from time to time relet the PREMISES, or any part or
parts thereof, for the account of Tenant or otherwise, and receive and collect
the rents therefor, applying the same first to the payment of such expenses as
Landlord may have incurred in recovering possession of the PREMISES, including
the legal expenses and reasonable attorneys' fees, and expenses of putting the
same into good order or condition or preparing or altering the same for
re-rental and all other expenses, commissions and charges paid, assumed or
incurred by Landlord in reletting the PREMISES or in connection with a
termination of this Lease by reason of Tenant's default and then to the
fulfillment of the
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covenants of Tenant hereunder. Any such reletting herein provided for may be, at
Landlord's option, for the remainder of the term of this Lease or for a longer
or shorter period and/or for a higher or lower rent and/or with the granting of
concessions, provided Landlord shall use reasonable efforts to obtain a
reasonable rent and otherwise to mitigate its damages. In any such case and
whether or not the PREMISES, or any part thereof be relet, Tenant shall pay to
Landlord the Fixed Rent, Additional Rent and all other charges required to be
paid by Tenant pursuant to this Lease up to the time of such termination of this
Lease, or of such recovery of possession of the PREMISES by Landlord, as the
case may be, together with such expenses as Landlord may incur for attorneys'
fees, brokerage fees and the cost of putting the PREMISES in good order or for
preparing same for re-rental, and thereafter Tenant covenants and agrees, if
required by Landlord, to pay to Landlord until the expiration date of the term
of this Lease, as herein provided, as and for liquidated damages the equivalent
of the amount of all the Fixed Rent reserved herein, Additional Rent and all
other charges required to be paid by Tenant, less the net avails of reletting,
if any, and the same shall be due and payable by Tenant to Landlord on each of
the Rent Days herein provided. In computing such liquidated damages there shall
be added to the deficiency such expenses as Landlord may incur in connection
with re-letting, such as legal expenses, attorneys' fees, brokerage,
advertising, and for keeping the PREMISES in good order or for preparing the
same for re-letting. Landlord shall be entitled to retain any overage received
as a result of its re-letting of the PREMISES.
Section 4. No expiration or termination of the Lease term pursuant to the
provisions of this Article or by operation of law, or otherwise (except as
expressly provided herein), and no repossession of the PREMISES or any part
thereof pursuant to this Article, or otherwise, shall relieve Tenant of its
liabilities and obligations hereunder, all of which shall survive such
expiration, termination or repossession.
Section 5. If Tenant fails to pay any sums due Landlord pursuant to the
provisions of this Lease, or perform any other material act on its part to be
made or performed, as in this Lease provided, except as specifically provided to
the contrary herein, then Tenant shall be deemed in default and Landlord may
(but shall not be obligated to do so) terminate this Lease if such default shall
continue for more than thirty (30) days after written notice thereof from
Landlord, without waiving or releasing Tenant from any obligation of Tenant in
this Lease contained, and/or Landlord may make payment or perform any other act
on the part of Tenant to be made and performed, as in this Lease provided, in
such manner and to such extent as Landlord may deem desirable, and in exercising
any such rights Landlord may pay necessary and incidental and reasonable costs
and expenses, employ counsel and incur and pay reasonable attorneys' fees. All
sums so paid by Landlord and all necessary and incidental costs and expenses
incurred by Landlord in connection with the performance of any such act by
Landlord, together with interest computed thereon at the rate of twelve percent
(12%) per annum (or the maximum legal rate of interest applicable to such
obligations, if any, then prevailing, whichever shall be less), from the date of
the making of such expenditure by Landlord shall be deemed Additional Rent
hereunder and, unless otherwise expressly provided, shall be payable to Landlord
upon demand or at the option of Landlord, may be added to Fixed Rent or
Additional Rent then due or thereafter becoming due under this Lease, and Tenant
covenants to pay any such sum or sums, with interest as aforesaid, and Landlord
shall have, in addition to any other right or remedy, the same rights and
remedies in the event of nonpayment thereof by Tenant as in the case of default
by Tenant in the payment of Fixed Rent.
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Section 6. If this Lease shall terminate by reason of the occurrence of any
default of Tenant or any contingency mentioned in this Article, Landlord shall
at its option and election be entitled, notwithstanding any other provision of
this Lease, or any present or future law, to recover from Tenant or Tenant's
estate (in lieu of all monetary claims against Tenant for damages, additional
rents, impositions and other charges) as damages for loss of the bargain and not
as a penalty, a lump sum which at the time of such termination of this Lease
equals the then present worth of the Fixed Rent and all other charges payable by
Tenant hereunder that were unpaid or would have accrued for the balance of the
term, less the fair and reasonable rental value of the PREMISES as determined by
any fact finder on a suit on same, for the balance of such term, such lump sum
being discounted to the date of termination at the rate of ten percent (10%) per
annum, unless any statute or rule of law governing the proceeding in which such
damages are to be proved shall limit the amount of such claim capable of being
so proved, in which case Landlord shall be entitled to prove as and for
liquidated damages by reason of such breach and termination of this Lease, the
maximum amount which may be allowed by or under any such statute or rule of law.
Nothing herein contained shall limit or prejudice Landlord's right to prove and
obtain as liquidated damages arising out of such breach or termination the
maximum amount to be allowed by or under any such statute or rule of law which
may govern the proceedings in which such damages are to be proved.
Section 7. No receipt of payment by Landlord from Tenant, after the termination
of this Lease, as herein provided, shall reinstate, continue or extend the term
or operate as a waiver of the right of Landlord to recover possession of the
PREMISES, it being agreed that, upon termination, any and all payments collected
shall be on account of Tenant's obligations hereunder.
ARTICLE 18
NOTICES
All notices, demands and requests which may or are required to be given to
either party to the other shall be in writing and shall be served by personal
service or by Federal Express or Express Mail. All notices, demands and requests
by Landlord to Tenant shall be sent to Tenant at the PREMISES addressed
attention to Xxxx Xxx, with a copy by regular mail to Xxxx Xxxxxxxx, general
counsel, at 000 Xxxxxxxxx Xxxxxx, XX Xxx 00000, Xxxxxxxxx, XX 00000 and at such
other place as Tenant may, from time to time, designate in a written notice to
Landlord.
All notices, demands and requests by Tenant to the Landlord shall be sent to
Landlord at address first shown above with a copy to Xxxxx X. Xxxxxxxx, Xx. xx
00 Xxxxx Xxxxxx in Xxxxxxxxxx, XX 00000 or at such other place or to such other
parties as Landlord may from time to time designate in written notice to Tenant.
ARTICLE 19
LESSER AMOUNT OF RENT
No payment by Tenant or receipt by Landlord of a lesser amount than the monthly
Fixed Rent and Additional Rent herein stipulated shall be deemed to be other
than on account of the earliest Fixed Rent or Additional Rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord
16
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy in this Lease or at
law provided.
ARTICLE 20
QUIET ENJOYMENT
Section 1. Landlord covenants and agrees that it has and will have at the
commencement of the term of this Lease full right and power to execute and
perform this Lease and to grant the estate demised herein and the right to sell
if the option is exercised. Landlord further covenants that it will not lease or
use any other portion of the Premises throughout the term of this Lease.
Section 2. Landlord covenants and warrants that Tenant, upon paying the Fixed
Rent, Additional Rent and all charges herein provided for and observing and
keeping the covenants, agreements and conditions of this Lease on its part to be
kept, shall lawfully and quietly hold, occupy and enjoy the PREMISES during the
term of this Lease, without hindrance or molestation of Landlord or of any
person or persons claiming under Landlord, and Landlord covenants and agrees
that it will defend Tenant in such peaceful and quiet use and possession of the
PREMISES against the claims of all such persons and corporations.
ARTICLE 21
LIMITATION OF LANDLORD'S LIABILITY
The term "Landlord" as used in this Lease, so far as covenants and/or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners at the time in question of the fee of the
PREMISES and in the event of any transfer or transfers of the title to such fee
Landlord herein named (and in the case of any subsequent transfers or
conveyances the then grantor) shall be automatically freed and relieved from and
after the date of such conveyance or transfer of all liability for the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed, provided that any funds in the hands of
such Landlord or the then grantor at the time of such transfer, in which Tenant
has an interest, shall be turned over to the grantee and any amount then due and
payable to Tenant by Landlord or the then grantor under any provisions of this
Lease, shall be paid to Tenant. Further, in the event of any transfer or
transfers of title of such fee, whether by liquidation or otherwise, then, by
such transfer, the transferee shall assume and accept all of the obligations of
Landlord herein.
ARTICLE 22
ESTOPPEL NOTICES
Tenant agrees at any time and from time to time upon not less than ten (10) days
prior written request by Landlord to execute, acknowledge and deliver to
Landlord a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications that the same is in
full force and effect as modified and stating the modifications), the
Commencement Date of the term hereof, the dates to which the Fixed Rent and
other charges have been paid in advance, if any, and whether the Landlord is in
default hereunder, it being
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intended that any such statement delivered pursuant to this Article may be
relied upon by any prospective purchaser of Landlord's interests herein.
ARTICLE 23
REMEDIES
The specified remedies to which Landlord and Tenant may resort under the terms
of this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Landlord or Tenant may be lawfully
entitled in case of any breach or threatened breach by Landlord or Tenant of any
provisions of this Lease. The failure of Landlord or Tenant to insist in any one
or more cases upon the strict performance of any of the covenants of this lease
or to exercise any option herein contained shall not be construed as a waiver or
a relinquishment for the future of such covenant or option. A receipt by
Landlord of rent with knowledge of the breach of any covenant hereof shall not
be deemed a waiver of such breach, and no waiver by Landlord or Tenant of any
provision of this Lease or of any breach shall be deemed to have been made
unless expressed in writing and signed by Landlord or Tenant (as the case may
be). In addition to the other remedies in this Lease provided, Landlord or
Tenant shall be entitled to the restraint by injunction of the violation or
attempted or threatened violation, of any of the covenants, or provisions of
this Lease.
ARTICLE 24
UNAVOIDABLE DELAYS
In the event that Landlord or Tenant shall be delayed or prevented from
performing any of its obligations pursuant to the provisions of this Lease
(other than Tenant's obligation to pay money) due to governmental action, or
lack thereof, or due to shortages of or unavailability of materials and/or
supplies, labor disputes, strikes, slow downs, job actions, picketing, secondary
boycotts, fire or other casualty, delays in transportation, acts of God, failure
to comply or inability to comply with any orders or request of any governmental
agencies or authorities, acts of declared or undeclared war, public disorder,
riot or civil commotion, or due to any other cause beyond the reasonable control
of such party, then such party shall in any or all such events be excused from
its obligation to perform and comply with such provisions of this Lease for a
period of time commensurate with any delay so caused, without any liability to
the other party therefor whatsoever, and all time periods provided for herein
for performance of any such obligations shall be extended for a period of time
commensurate with any such delay.
ARTICLE 25
SUBORDINATION
Tenant covenants that its rights under this Lease are now and will be
subordinate to the operations and effect of the mortgage now existing and/or any
subsequent mortgage hereafter existing (all of which may be referred to in this
Lease as "Mortgage") upon the PREMISES or any part or portion there of without
any further written document from Tenant; however, Tenant agrees to execute any
instrument required by Landlord in furtherance of the provisions hereof and
provided that and any mortgagees or successor owners shall be bound by the terms
of this lease unless same is in default.
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ARTICLE 26
NOTICES OF DEFAULT
Tenant agrees that any default notice served upon Landlord shall also be served
upon any mortgagee of the PREMISES, the name(s) of which Landlord shall have
furnished to Tenant theretofore. Tenant further agrees that Landlord's
mortgagee(s) shall have and be deemed to have the same period of time to cure
any of Landlord's defaults pursuant to the provisions of this Lease as Landlord
shall be granted pursuant to the provisions of this Lease.
ARTICLE 27
NOTICE OF LEASE
Upon the request of either of the parties hereto, the parties agree to execute a
notice of this Lease for purposes of recording in the County in which the
PREMISES are located, in the form required by law. Said notice shall not amend,
alter or modify any of the terms, covenants or conditions of this Lease. The
purpose of such form shall be to furnish notice of the existence of this Lease
to any prospective purchasers or mortgagees of the PREMISES or assignees of the
interests of either party hereto or to any other party having an interest in the
PREMISES.
ARTICLE 28
USE
It is specifically understood and agreed that no part of the PREMISES shall, at
any time, be used for any purpose other than general office, testing and light
manufacturing, product development, warehousing, distribution and laboratory
testing and that the use shall not emit or produce loud noises, vibrations,
noxious fumes or odors that would constitute a nuisance to neighboring
landowners and shall not constitute a nuisance or be unlawful.
ARTICLE 29
CONDITION OF PREMISES
The PREMISES are being leased by Landlord to Tenant, and shall be delivered to
Tenant, in their present condition "as is" and Landlord shall not be obligated
to perform any additional work of any type or nature whatsoever in connection
with said PREMISES in order to prepare same for Tenant's use or occupancy,
except as may be specified in Exhibit A. Tenant shall, at its own sole cost and
expense, obtain any and all zoning and other governmental permits required in
connection with the operation of its business in the PREMISES for the use(s)
herein specified or permitted. Landlord represents that it is not aware of any
specific permits required for Tenant's intended use of the Premises. Landlord
further represents that to the best of its knowledge and consistent with its
experience with the City of Manchester, the issuance of a Certificate of
Occupancy is the equivalent of the City certifying that there are no code
violations at the Premises.
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ARTICLE 30
LATE CHARGES
In the event that any installation of Fixed Rent or Additional Rent shall be
delinquent and overdue for a period in excess of five (5) days and Landlord
Notifies Tenant of same and Tenant does not pay within three (3) of its receipt
of said notice, the delinquent and overdue amount, a "late charge" of five cents
($.05) for each dollar ($1.00) so delinquent and overdue shall be due to
Landlord for the purpose of defraying the Landlord's expenses incident to
handling such delinquent payment. This charge shall be in addition to, and not
in lieu of, any other remedy which the Landlord may have and is in addition to
any reasonable fees and charges of any attorney which the Landlord may employ to
enforce the Landlord's remedies in connection with any default hereunder,
whether such remedy(ies) shall be authorized herein, or by law.
Such "late charge", if not previously paid, shall at the option of the Landlord,
be added to and become a part of the succeeding monthly installment of Fixed
Rent to be made under this Lease.
ARTICLE 31
MISCELLANEOUS
(a) The covenants and agreements herein contained shall bind and inure to the
benefit of Landlord and Tenant, their heirs, executors, administrators,
successors and assigns.
(b) If any provision of this Lease or the application thereof to any person or
circumstance shall be invalid or unenforceable, the remainder of this Lease
shall not be affected thereby.
(c) Whenever herein the singular number is used, the same shall include the
plural, and the masculine gender shall include the feminine and the neuter
genders.
(d) The enumeration anywhere in this Lease of any right or remedy of either
party shall not be construed as an exclusion or substitution of any other rights
or remedies conferred under this Lease or applicable by law.
(e) This Lease shall not be modified or canceled except by a writing subscribed
to by the parties.
(f) The submission of this Lease for examination does not constitute a
reservation of or option for the PREMISES and this Lease becomes effective as a
lease only upon execution and delivery thereof by Landlord and Tenant.
(g) This Lease shall be governed by and in accordance with the laws of the State
of New Hampshire.
(h) Landlord acknowledges receipt of $100,000.00 paid by Tenant towards its
initial rent obligations to be immediately credited against rent as same becomes
due.
(i) As an additional remedy, Landlord shall, upon execution of this Lease,
deposit $100,000.00 to be held in escrow by Tenant's counsel, Xxxxxxx Xxxxxxxx,
which may be used to complete agreed to fit-up as provided for in attachment "A"
in the event that Landlord does not perform
20
the fit-up as agreed. This deposit shall be returned to Landlord sixty days
after the Commencement Date.
(j) Landlord shall not lease any portion of the Premises to any third party.
(k) Tenant shall be permitted to move into the third floor of the Premises prior
to the Commencement Date and shall be obligated to pay a proportionate share of
Rent and Additional Rent upon such occupancy. Additional Rent during this period
which is prior to the Commencement Date shall include Tenant's proportionate
share of Landlord's costs of operating the Premises, including, insurance,
taxes, utilities, water and sewer charges, maintenance, repairs and
grounds-keeping.
ARTICLE 32
OPTION TO PURCHASE
During the 6 though 15 years of this lease, Tenant shall have the option to
purchase the Premises. In years 6 through 10, the option to purchase price shall
be $13,157,000.00 without the expansion space and $13,435,000.00 with the
expansion space. In years 11 through 15, the option to purchase price shall be
$14,412,000.00 without the expansion/build-out space and $14,689,000.00 with the
expansion/build-out space.
The option to purchase as stated herein is assignable.
To exercise the option, Tenant shall notify Landlord of its intention to
exercise same, a Purchase and Sales Agreement in standard form will be executed
within 30 days thereafter and the closing shall take place within 60 days
thereafter.
Upon such sale, the Landlord shall indemnify and hold harmless the Tenant from
any and all costs incurred by Tenant on account of any Hazardous Waste as
commonly defined by governmental agencies located upon the Premises at the time
of the closing (date of transfer of fee interest from Landlord to Tenant)
provided that Tenant did not generate or cause the waste to become present upon
the Premises and provided further that Tenant does not directly request orders
of any governmental authority to mandate a remediation or clean up plan unless
same is required by law. This indemnification shall expire and be of no further
force or effect on the Fifteenth Anniversary of the closing date (date of
transfer of fee interest from Landlord to Tenant) on the Premises. Tenant
acknowledges receipt of the following:
1. Xxxxxxx, A Lockheed Xxxxxx Company, ASTM Phase I, Environmental
Resource Management, 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX, dated May 10,
1999,
2. Engineering Evaluation of Contamination Report, Former Xxxxxxx Air
Force Station, Manchester Airport, dated July 1997,
3. Draft, Supplemental Remedial Investigation at the Former Xxxxxxx Air
Force Station, dated February 5, 1998.
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The indemnification shall be limited to the cost of remediation which shall
include any engineering plans, environmental consultant fees (including
studies), testing fees, attorney fees, actual remediation, fines and shall not
encompass such items as loss of value of premises unless the Landlord fails to
perform the required remediation in reasonable dispatch.
ARTICLE 33
WAIVER OF SUBROGATION RIGHTS
The Tenant and Landlord hereby waive all rights of recovery against the other
and the other's agents, employees or other representatives, for any loss,
damages or injury of any nature whatsoever to property or persons for which the
other is insured. The Tenant shall obtain from the insurance carriers providing
insurance pursuant to the terms of this lease such waivers and Landlord shall
procure such waivers from any additional insurance carrier covering the Premises
or liabilities of Landlord with respect to the Premises.
ARTICLE 34
SURRENDER OF PREMISES
At the expiration of said term, the Tenant shall quit and surrender possession
of the said PREMISES to the Landlord. The Landlord shall have the right during
the last ninety (90) days of the term hereof to make a comprehensive inspection
of the PREMISES. In the event any repairs must be made by Tenant the same shall
be made prior to the expiration of the lease term.
ARTICLE 35
HOLDOVER
In the event Tenant does not surrender the PREMISES at the expiration of the
term, Tenant's continued occupancy shall be subject to Landlord's rights to
re-enter the PREMISES and remove all persons and any property therefrom either
by summary proceedings or by any suitable action or proceedings at law or in
equity. Nevertheless, Tenant, while it continues occupancy after the expiration
of the term hereof, shall remain liable for all Fixed Rent, Additional Rent and
charges payable hereunder as if the term had been extended, but during such
period of occupancy the Fixed Rent shall be two (2) times what had been due
hereunder prior to the expiration of the terms.
ARTICLE 36
GUARANTY
See guaranty attached hereto as exhibit "B". Tenant shall have the ability to
terminate the guarantee attached hereto upon the placement of a cash escrow in
the equal amount of the then Guaranteed Amount or a performance bond. The
parties also agree to reasonably agree to other suitable substitutes for the
guarantee.
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ARTICLE 37
INVALIDITY OF PROVISIONS
If any term or provision of this Lease or the application hereof to any person
or circumstance shall, to any extent, be invalid or unenforceable, or
subsequently become 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 except to the extent that such
invalidity causes a material change to the benefits and obligations hereunder.
ARTICLE 38
RENEWAL OPTIONS
Tenant shall have the option to renew the lease for three consecutive 5 year
terms at a basic rental rate of Eighty Percent (80%) of the then fair market
rental rate but in no event, less than the rate for the previous lease year. In
order to exercise each option, Tenant shall notify Landlord in writing, of its
decision to exercise the option prior to 6 months in advance of the termination
of the then lease term, time being of the essence.
In order to determine the then fair market rental rate, the parties, if they can
not agree, shall submit the issue to binding arbitration wherein each party will
choose one arbitrator and the two arbitrators shall choose a third. The evidence
of fair market rental value shall be submitted to the panel and a decision by
the majority of the panel shall be binding upon the parties.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF these presents have been signed, sealed and delivered
the day and year first above written.
ALLEGRO MICROSYSTEMS, INC.
/s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------- ------------------------------------
WITNESS Xxxxxx Xxxxxxxxxx, President
AIRTIGHT II, LLC
/s/ [illegible] By: /s/ Xxxxxx Xxxxxxxx
------------------------------------- ------------------------------------
WITNESS Xxxxxx Xxxxxxxx, Member
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