EXHIBIT 11.2
SUBLEASE
THIS SUBLEASE (the "Sublease") is dated for reference purposes as of
September 16th, 1998, and is made by and between XXX RESEARCH CORPORATION, a
Delaware corporation ("Sublessor"), and ULTRATECH STEPPER, INC., a Delaware
corporation ("Sublessee"). Sublessor and Sublessee hereby agree as follows:
1. RECITALS: This Sublease is made with reference to the fact that
Xxxxxx X. Xxxxxxxx, of Cambridge, Middlesex County, Massachusetts, a
proprietorship, as landlord ("Master Lessor"), and Sublessor, as tenant,
entered into that certain undated Lease, commencing as of September 1, 1996
(the "Master Lease"), with respect to, among other things, that certain
premises consisting of approximately 65,240 square feet of space comprising
approximately fifty-nine percent (59%) of the rentable area of the building
located at 00 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the "Building,"). A
copy of the Master Lease is attached hereto as EXHIBIT A and incorporated by
reference herein. The Master Lease also includes as part of the premises
thereunder approximately 19,117 square feet of rentable area in a building
located at 65 (but sometimes referred to as "53") Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx ("00 Jonspin Premises") which is not subject to this Sublease.
2. PREMISES: Sublessor hereby leases to Sublessee, and Sublessee
hereby leases from Sublessor, the portion of the premises under the Master
Lease which is referred to therein as 16 Jonspin Road, including, but not
limited to, the Building and the Sublessor's rights under the Master Lease to
the nonexclusive use of the common areas (hereinafter the "Subleased
Premises"). Sublessee's lease of the Subleased Premises, together with the
appurtenant right to use the common areas, is expressly conditioned upon and
subject to the continuing compliance by Sublessee with (i) all of the terms
and conditions of this Sublease, (ii) all of the terms and conditions of the
Master Lease, except for the payment of Rent thereunder, which are assumed by
Sublessee hereunder, (iii) all rules and regulations reasonably established
by the Master Lessor pursuant to the Master Lease, and (iv) all laws and
private restrictions, easements and other matters of public record affecting
the Subleased Premises. The Subleased Premises do not include the 65 Jonspin
Premises or any of Sublessor's appurtenant rights thereto.
3. TERMS:
3.1 TERM. The term (the "Term") of this Sublease shall be
for a period commencing on the "Commencement Date", as hereafter defined, and
ending on August 31, 2001 (the "Expiration Date"), except to the extent that
this Sublease is sooner terminated pursuant to its terms or the Master Lease
is sooner terminated pursuant to its terms. For purposes of this Sublease,
the Commencement Date shall be the date on which Sublessor has (i) vacated
the Subleased Premises and tendered possession thereof to Sublessee sanitized
and decontaminated from any chemicals or other contaminants and broom clean
as required by Section 25 of the Master Lease, and (ii) delivered to
Sublessee an environmental closure report, and (iii) obtained the written
consent of the Master Lessor to this Sublease.
3.2 NO OPTION TO EXTEND. The parties hereby acknowledge that
the expiration date of the Master Lease is August 31, 2001, and that
Sublessee has no option to extend the Term of this Sublease. Upon Sublessee's
acceptance of the Subleased Premises and payment of the First Month's Rent,
Sublessor agrees to enter into an amendment of the Master Lease with the
Master Lessor deleting Sublessor's option to extend the Term of the Master
Lease in order to enable Master Lessor and Sublessee to enter into a direct
lease of the Subleased Premises which will commence upon the termination of
this Sublease.
3.3 EARLY POSSESSION. If Sublessor permits Sublessee to
occupy the Subleased Premises prior to the Commencement Date, such occupancy
(i) shall be subject to all of the provisions of this Sublease, except the
obligation to pay Rent and (ii) shall not advance the Expiration Date of this
Sublease.
3.4 HOLDOVER. The parties hereby acknowledge that the
expiration date of the Master Lease is August 31, 2001, and that it is therefore
critical that Sublessee surrender the Subleased Premises to Sublessor no later
than the Expiration Date in accordance with Section 17 hereof. In the event that
Sublessee does not surrender the Subleased Premises by the Expiration Date in
accordance with Section 17 hereof, Sublessee shall, and hereby agrees to,
indemnify, defend (with counsel reasonably acceptable to Sublessor) and hold
harmless Sublessor from and against any and all claims, costs, losses, damages
and liabilities ("Claims") resulting from Sublessee's delay in surrendering the
Subleased
Premises and Sublessee shall pay Sublessor holdover (i) Base Monthly Rent
equal to one hundred fifty percent (150%) of the Base Monthly Rent (as such
term is defined in Subsection 4.1 hereinbelow) payable under this Sublease
during the last month of the Term, and (ii) Additional Rent (as such term is
defined in Section 4.2 hereinbelow).
4. RENT:
4.1 BASE MONTHLY RENT. Sublessee shall pay to Sublessor as
base rent for the Subleased Premises for each month during the Term the
amount of Thirty-nine Thousand Four Hundred Fifteen and 83/100ths Dollars
($39,415.83) per month ("Base Monthly Rent"). Base Monthly Rent shall be paid
to Sublessor on or before the first (1st) day of each month of the Term. Base
Monthly Rent and Additional Rent (as defined in Subsection 4.2 below) for any
period during the Term hereof which is for less than one month of the Term
shall be a pro rata portion of the monthly installment based on a 30-day
month. Base Monthly Rent and Additional Rent shall be payable without notice
or demand (except as otherwise provided herein) and without any deduction,
offset, or abatement, in lawful money of the United States of America. Base
Monthly Rent and Additional Rent shall be paid directly to Sublessor at Xxx
Research Corporation, Accounts Receivable Department, 0000 Xxxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000, or such other address as may be designated in
writing by Sublessor.
4.2 ADDITIONAL RENT. In addition to Base Monthly Rent,
Sublessee shall pay to Sublessor all amounts payable with respect to the
Subleased Premises by Sublessor to Master Lessor under the Master Lease
(other than Base Monthly Rent), including, but not limited to, all amounts
payable to Master Lessor as "Additional Rent" (as set forth in Section 4 of
the Master Lease). All monies other than Base Monthly Rent required to be
paid by Sublessee under this Sublease, including, without limitation, any
amounts payable by Sublessor to the Master Lessor as "Additional Rent" shall
be deemed additional rent ("Additional Rent") for purposes of this Sublease
and shall be paid to Sublessor within ten (10) days of receipt from Sublessor
of written notice and copy of the Master Lessor's statement for each item of
Additional Rent. Base Monthly Rent and Additional Rent are collectively
referred to herein as "Rent". Upon receipt from the Master Lessor of a
reconciliation of Additional Rent payable for the current lease year
(pursuant to Section 4(IV) of the Master Lease), Sublessor and Sublessee
shall prorate between them any credit and allocate any underpayment due on
the basis of the number of months of the Sublease Term which are included in
the applicable lease year. Within eight (8) days of receipt of the Master
Lessor's billing for any underpayment, Sublessee shall pay Sublessee's share
of such underpayment to Sublessor as hereinabove provided. Notwithstanding
anything in this Subsection 4.2 to the contrary, Sublessee shall not be
liable hereunder for the payment of any amounts payable by Sublessor to
Master Lessor under the Master Lease as a result of Sublessor's default under
the Master Lease unless Sublessor's default was directly or indirectly caused
in whole or in part by Sublessee's failure to perform in a timely manner any
of Sublessee's duties or obligations under this Sublease.
4.3 PAYMENT OF FIRST MONTH'S RENT. Upon execution of this
Sublease, Sublessee shall pay to Sublessor ("First Month's Rent") the sum of
Thirty-nine Thousand Four Hundred Fifteen and 83/100ths Dollars ($39,415.83),
which shall constitute Base Monthly Rent for the first full calendar month of
the Term for which Rent is due as hereafter provided. No Rent shall be due or
payable for the first thirty (30) calendar days of the Term commencing on the
Commencement Date. On or before the thirty-first (31st) day of the Term
(unless the Commencement Date is on the first day of a calendar month)
Sublessee shall pay to Sublessor pro-rata Rent for the remaining calendar
days of the month in which the thirty-first (31st) day of the Term falls and
First Month's Rent shall be applied to the next succeeding calendar month.
5. (Intentionally Omitted)
6. REPAIRS:
6.1 AS IS. The parties acknowledge and agree that, except as
provided in Subsection 6.2 hereof, Sublessee is subleasing the Subleased
Premises on an "AS IS" basis, and acknowledge and agree that, except as provided
in Section 26 hereof Sublessor has made no representations or warranties with
respect to the condition of the Subleased Premises as of the Commencement Date,
or with respect to the Building's compliance or non-compliance with applicable
laws, ordinances, codes, rules, orders, directions and regulations of lawful
governmental authorities, including, without limitation, the Americans with
Disabilities Act of 1990. Except as set forth in Subsection 6.2 below,
Sublessor shall have no obligation whatsoever to make or pay the cost of any
alterations, improvements or repairs to the Subleased Premises, including,
without limitation, any improvement or repair required to comply with any
law, regulation, building code or ordinance (including the Americans with
Disabilities Act of 1990). If Master Lessor shall fail to perform any of its
obligations in accordance with the terms of the Master Lease (including,
without limitation, its obligations to make repairs), Sublessor, upon receipt
of written notice from Sublessee, shall attempt to enforce such obligations
of Master Lessor under the Master Lease(without requiring Sublessor to spend
more than a nominal sum, which nominal sum shall be limited to all costs
associated with the preparation of and transmittal to Master Lessor of
documentation from Sublessor or Sublessor's attorneys detailing the
obligations to be performed by Master Lessor under the Master Lease). If,
after receipt of written request from Sublessee, Sublessor shall fail or
refuse to take action for the enforcement of Sublessor's rights against
Master Lessor with respect to the Subleased Premises ("Action"), Sublessee
shall have the right to take such Action in its own name. If any Action
against Subleased Premises in Sublessee's name shall be barred by reason of
lack of privity, nonassignability or otherwise, Sublessee may take such
Action in Sublessor's name; provided that Sublessee has obtained the prior
written consent of Sublessor, which consent shall not be unreasonably
withheld or delayed; and provided, further, that Sublessee shall indemnify,
protect, defend by counsel reasonably satisfactory to Sublessor and hold
Sublessor harmless from and against any and all claims, demands, actions,
suits, proceedings, libilities, obligations, losses, damages, judgements,
costs and expenses (including, without limitation, reasonable attorneys'
fees) which Sublessor may incur or suffer by reason of such Action. If a
default by Subleased Premises under the terms of the Master Lease shall
result in the excuse of Sublessor from the performance of any of its
obligations to be performed under the Master Lease or result in any reduction
or abatement in the base rent or additional rent to be paid by Sublessor
thereunder, then Sublessee shall be excused from the performance of a
corresponding obligation and/or shall be entitled to a corresponding
reduction in or abatement of the Rent to be paid by Sublessee hereunder.
6.2. SUBLESSOR'S OBLIGATIONS. Sublessor shall, at its sole
cost and expense, perform the following repairs only to the Building and its
systems:
6.2.1. On the Commencement Date, all existing plumbing,
lighting, heating, ventilating and air conditioning systems and sprinkler
systems, parking areas, and the building exterior within the Subleased
Premises shall be in good working order. Provided that Sublessee has
given Sublessor written notice within thirty (30) days after the
Commencement Date of any such item which was not in good working order on
the Commencement Date, Sublessor shall, at its sole cost and expense,
place such item in good working order.
7. INDEMNITY:
7.1. SUBLESSEE'S OBLIGATION. Except as provided in Section 14
hereof and except to the extent caused by the gross negligence or willful
misconduct of Sublessor, its agents, employees, contractors or invitees,
Sublessee shall indemnify, defend (with counsel reasonably acceptable to
Sublessor), protect and hold Sublessor harmless from and against any and all
Claims (including reasonable attorneys' and professionals' fees), caused by
or arising in connection with: (i) the use or occupancy of the Subleased
Premises by Sublessee; (ii) the negligence or willful misconduct of Sublessee
or its employees, contractors, agents or invitees; or (iii) a breach of
Sublessee's obligations under this Sublease or the provisions of the Master
Lease assumed by Sublessee hereunder. Sublessee's indemnification of
Sublessor shall survive termination of this Sublease.
7.2. SUBLESSOR'S OBLIGATION. Except as provided in Section 14
hereof and except to the extent caused by the negligence or willful
misconduct of Sublessee, its agents, employees, contractors or invitees, or a
breach of Sublessee's obligations under this Sublease, Sublessor shall
indemnify, defend (with counsel reasonably acceptable to Sublessee), protect
and hold Sublessee harmless from and against any and all reasonable Claims
(including reasonable attorneys' and professionals' fees), caused by or
arising in connection with: (i) a breach of Sublessor's obligations under
this Sublease; (ii) a breach of Sublessor's obligations as tenant under the
Master Lease; or (iii) the gross negligence or willful misconduct of
Sublessor or its agents, employees, contractors or invitees occurring on or
about the Subleased Premises. Sublessor's indemnification of Sublessee shall
survive termination of this Sublease.
8. RIGHT TO CURE DEFAULTS:
8.1. SUBLESSOR'S RIGHTS. If Sublessee fails to pay any sum of
money to Sublessor, or fails to perform any other act on its part to be
performed hereunder, then Sublessor may, but shall not be obligated to, after
passage of any applicable notice and cure periods, make such payment or
perform such act. All such sums paid, and all reasonable costs and expenses
of performing any such act, shall be deemed Additional Rent payable by
Sublessee to Sublessor upon demand, together with interest thereon at the
rate stated in Section 18 of the Master Lease ("Interest Rate"), from the
date of the expenditure until repaid.
8.2. SUBLESSEE'S RIGHTS. Provided that Sublessee is not in
default of any of its obligations under this Sublease, if Sublessor fails to
perform any act on its part to be performed by Sublessor under the Master
Lease, then Sublessee may, but shall not be obligated to, after thirty (30)
days from the date of Sublessee's written notice to Sublessor and Master
Lessor identifying the failure, and after the passage of any notice and cure
periods, perform such act. All such sums paid, and all reasonable costs and
expenses of performing any such act, shall be payable promptly by Sublessor
to Sublessee, together with interest thereon at the Master Lease Interest
Rate, from the date of the expenditure until repaid.
9. ASSIGNMENT AND SUBLETTING: Subject to the terms and conditions
of Article 10 of the Master Lease, Sublessee may not assign this Sublease,
sublet the Subleased Premises, transfer any interest of Sublessee therein or
permit any use of the Subleased Premises by another party (collectively,
"Transfer"), without the prior written consent of Sublessor (which shall not
be unreasonably withheld, conditioned or delayed and Master Lessor. A consent
to one Transfer shah not be deemed to be a consent to any subsequent
Transfer. Any Transfer without such consent shall be void and, at the option
of Sublessor, shall terminate this Sublease. Sublessor's and Master Lessor's
waiver or consent to any assignment or subletting shall be ineffective unless
set forth in writing, and Sublessee shall not be relieved from any of its
obligations under this Sublease unless the consent expressly so provides.
10. USE:
10. 1. PERMITTED USE. Subject to the provisions of Article 3 of
the Master Lease, Sublessee shall use the Subleased Premises only for office,
light industrial, light manufacturing or light assembly purposes, or for any
other lawful purpose related to the business operations of Sublessee.
Sublessee shall not use the Subleased Premises in any manner which would
constitute a violation of the Master Lease.
10.2. HAZARDOUS MATERIALS. Except as permitted by the Master
Lease and applicable law, Sublessee shall not use, store, transport or
dispose of any Hazardous Materials in or about the Subleased Premises.
Without limiting the generality of the foregoing, Sublessee, at its sole
cost, shall comply with all laws and all provisions of the Master Lease
relating to Hazardous Materials. If Hazardous Materials are discovered at or
about the Subleased Premises, and such Hazardous Materials were used, stored,
transported or disposed of by Sublessee, then Sublessee, at its sole expense,
shall promptly take all action necessary to return the Subleased Premises to
the condition existing prior to the appearance of the Hazardous Material.
Sublessee shall indemnify, defend (with counsel reasonably acceptable to
Sublessor), and Master Lessor and hold Sublessor and Master Lessor harmless
from and against all Claims, investigations, detoxifications, remediations,
removals, and expenses of every type and nature (including reasonable
attorneys' and other professionals' fees), to the extent caused by the use,
storage, transportation, release, disposal, discharge or emission of
Hazardous Materials at or about the Subleased Premises during the Term of
this Sublease by Sublessee or its agents, contractors, invitees or employees.
For purposes of this Sublease, "Hazardous Materials" shall have the same
meaning as is given that term in the Master Lease.
10.3. NO INJURY TO PREMISES; REGULATIONS. Sublessee shall not
do or permit anything to be done in or about the Subleased Premises which
would (i) damage the Subleased Premises, or (ii) unreasonably vibrate or
shake, or overload, or impair the efficient operation of the Subleased
Premises or the sprinkler systems, heating, ventilating or air conditioning
equipment, or utilities systems located therein. Sublessee shall not store
any materials, supplies, finished or unfinished products, or articles of any
nature outside of the Subleased Premises. For purposes of this Sublease and
the
Master Lease, Sublessee shall comply with all reasonable rules and
regulations promulgated from time to time by either Sublessor or Master
Lessor.
11. EFFECT OF CONVEYANCE: As used in this Sublease, the term
"Sublessor" means the holder of the tenant's interest under the Master Lease.
In the event of any assignment, transfer or termination of the Sublessor's
interest under the Master Lease, which is consented to in writing by Master
Lessor, Sublessor shall be and hereby is entirely relieved of all covenants
and obligations of Sublessor hereunder accruing after the effective date of
such transfer (except for its indemnification obligation pursuant to
Subsection 7.2 hereof), and it shall be deemed and construed, without further
agreement between the parties, that (i) in the event of any assignment or
transfer, the assignee or transferee, as applicable, has assumed and shall
carry out all covenants and obligations thereafter to be performed by
Sublessor hereunder, or (ii) in the event of a termination, this Sublease
shall also be terminated. Sublessor shall transfer and deliver any Security
Deposit of Sublessee to the assignee or transferee of the tenant's interest
under the Master Lease, and only thereupon shall Sublessor be discharged from
any further liability with respect thereto.
12. DELIVERY AND ACCEPTANCE: If Sublessor is unable to deliver
possession of the Subleased Premises to Sublessee on or before the
Commencement Date for any reason whatsoever, then this Sublease shall neither
be void nor voidable, nor shall Sublessor be liable to Sublessee for any loss
or damage; provided, however, that in such event, Rent, if otherwise then
payable hereunder, shall xxxxx until Sublessor delivers possession of the
Subleased Premises to Sublessee. By taking possession of the Subleased
Premises, Sublessee shall conclusively be deemed to have accepted the
Subleased Premises in its "as is", then-existing condition, without any
warranty whatsoever of Sublessor with respect thereto, except as otherwise
set forth in Sections 6.18 and 26 hereof.
13. IMPROVEMENTS: No alteration or improvements shall be made to
the Subleased Premises except in accordance with the Master Lease, and with
the prior written consent, when required by the Master Lease, of both Master
Lessor and Sublessor. Sublessor shall not unreasonably withhold Sublessor's
consent to any alteration or improvement which has been consented to in
writing by Master Lessor.
14. RELEASE: Sublessor and Sublessee hereby release each other from
any injury to persons, damage to property or loss of any kind which is caused
by or results from any risk insured against under any valid insurance policy
carried by either party which contains a waiver of subrogation by the
insurer; provided, however, that the liability shall be released only to the
extent that the damages are covered by such insurance, and only if the
insurance permits a partial release. This release shall be in effect only so
long as the applicable insurance policy contains a clause to the effect that
this release shall not affect the right of the insured to recover under the
policy. Each party shall use its best efforts to cause each insurance policy
obtained by it to provide that the insurer waives all right of recovery
against the other party and its agents and employees in connection with any
damage or injury covered by the policy, and each party shall notify the other
party if it is unable to obtain a waiver of subrogation. Except to the extent
of the gross negligence or willful misconduct of Sublessor, its agents,
employees, contractors or invitees, Sublessor shall not be liable to
Sublessee, nor shall Sublessee be entitled to terminate this Sublease or to
xxxxx Rent for any reason, including, without limitation: (i) failure or
interruption of any utility system or service; (ii) failure of Master Lessor
to maintain the Subleased Premises as may be required under the Master Lease;
or (iii) penetration of water into or onto any portion of the Subleased
Premises. The obligations of Sublessor shall not constitute the personal
obligations of the officers, directors, trustees, partners, joint venturers,
members, owners, stockholders, or other principals or representatives of the
Sublessor.
15. DEFAULT: Sublessee shall be in material default of its
obligations under this Sublease ("Event of Default") if any of the following
events occur:
15.1. Sublessee fails to pay any Rent when due, when such
failure continues for three (3) business days after Sublessee's receipt or
refusal of written notice from Sublessor to Sublessee that any such sum is
due; or
15.2. Sublessee fails to perform any term, covenant or
condition of this Sublease (except those requiring payment of Rent) and fails
to cure such breach within seven (7) days after delivery of a written notice
specifying the
nature of the breach; provided, however, that if more than seven (7) days
reasonably are required to remedy the failure, then Sublessee shall not be in
default if Sublessee commences the cure within the seven (7) day period and
thereafter diligently prosecutes the cure to completion; or
15.3. Sublessee makes a general assignment of its assets for
the benefit of its creditors, including attachment of, execution on, or the
appointment of a custodian or receiver with respect to, a substantial part of
Sublessee's property or any property essential to the conduct of its
business; or
15.4. Sublessee vacates the Subleased Premises; or
15.5. A petition is filed by or against Sublessee under the
bankruptcy laws of the United States or any other debtors' relief law or
statute, unless such petition is dismissed within sixty (60) days after
filing; or
15.6. A court directs the winding up or liquidation of
Sublessee; or
15.7. A substantial part of Sublessee's property or any
property essential to the conduct of its business is attached or executed
upon and not released from the attachment or execution within sixty (60)
days; or
15.8. A custodian or receiver is appointed for a substantial
part of Sublessee's property or any property essential to the conduct of its
business and not discharged within sixty (60) days; or
15.9. Sublessee commits any other act or omission which
constitutes an event of default under Article 18 of the Master Lease, which
has not been cured after delivery of written notice and passage of the
applicable grace period provided in the Master Lease as modified, if at all,
by the provisions of this Sublease.
16. REMEDIES: In the event of any default by Sublessee, Sublessor
shall have all remedies provided pursuant to Article 18 of the Master Lease
and by applicable law. Sublessor may resort to its remedies cumulatively or
in the alternative.
17. SURRENDER: Prior to expiration of this Sublease, Sublessee
shall remove all of its trade fixtures and shall surrender the Subleased
Premises to Sublessor in good condition, in compliance with the Master Lease
and Subsection 10.2 hereof, reasonable wear and tear excepted. In no event
shall Sublessee have any obligation to remove any alterations or improvements
that were not installed in the Subleased Premises by Sublessee. If the
Subleased Premises are not so surrendered, then Sublessee shall be liable to
Sublessor for all Claims incurred by Sublessor in returning the Subleased
Premises to the required condition, plus interest thereon at the Interest
Rate.
18. BROKER: Sublessor recognizes CB Xxxxxxx Xxxxx, Inc. as
Sublessee's representing broker and agrees that this broker will be paid by
Sublessor a commission of three percent (3%) of gross rentals of the Sublease
on a cash-out basis, to be paid one-half upon mutual execution of this
Sublease and one-half upon Sublessee's occupancy of the Subleased Premises.
Sublessor and Sublessee each represent to the other that they have dealt with
no other real estate brokers, finders, agents or salesmen in connection with
this transaction. Each party, agrees to hold the other party harmless from
and against all claims for brokerage commissions, finder's fees or other
compensation made by any other agent, broker, salesman or finder as a
consequence of said party's actions or dealings with such agent, broker,
salesman, or finder. Neither Sublessee nor Master Lessor shall be responsible
for payment of any brokerage commission in connection with the transaction
contemplated by this Sublease.
19. NOTICES: Unless at least five (5) days' prior written notice is
given in the manner set forth in this Section, the address of each party and
Master Lessor for all purposes connected with this Sublease shall be that
address set forth below their signatures at the end of this Sublease (except
that the address for payment of Rent is set forth in Subsection 4.1 hereof).
All notices, demands or communications in connection with this Sublease shall
be (a) personally delivered; or (b) properly addressed and either (i)
submitted to an overnight courier service, charges prepaid, or (ii) deposited
in the mail (registered or certified, return receipt requested, and postage
prepaid). All notices given to Master Lessor under the Master
Lease shall be considered received only when delivered in accordance with the
Master Lease to all parties hereto at the addresses set forth below their
signatures at the end of this Sublease. Notices shall be deemed effective
upon receipt or refusal to accept delivery.
20. AMENDMENT: This Sublease may not be amended except by the
written agreement of Sublessor and Sublessee, with written consent by Master
Lessor.
21. AUTHORITY TO EXECUTE: Sublessee and Sublessor each represent
and warrant to the other that each person executing this Sublease on behalf
of each party is duly authorized to execute and deliver this Sublease on
behalf of that party.
22. INCORPORATION BY REFERENCE: The terms and conditions of this
Sublease shall include the following specifically identified sections of the
Master Lease, which are incorporated into this Sublease as if fully set
forth, except that: (i) each reference in such incorporated sections to
"Lease" shall be deemed a reference to "Sublease"; (ii) each reference to the
"Premises" shall be deemed a reference to the "Subleased Premises"; (iii)
each reference to "Landlord" and "Tenant" shall be deemed a reference to
"Sublessor" and "Sublessee," respectively, except as otherwise expressly set
forth herein; (iv) with respect to work, services, repairs, restoration,
insurance or the performance of any other obligation of Master Lessor under
the Master Lease, the sole obligation of Sublessor to Sublessee shall be to
request the same in writing from Master Lessor as and when requested to do so
by Sublessee, and to use Sublessor's reasonable efforts (without requiring
Sublessor to spend more than a nominal sum) to obtain Master Lessor's
performance; (v) with respect to any obligation of Sublessee to be performed
under this Sublease, except to the extent a grace period is explicitly
provided for herein wherever the Master Lease grants to Sublessor a specified
number of days to perform its obligations under the Master Lease, except as
otherwise provided herein, Sublessee shall have three (3) fewer days to
perform the obligation (except in the event that only five (5) days are
granted to Sublessor to cure, in which case Sublessee shall have two (2)
fewer days), including, without limitation, curing any defaults (unless
otherwise expressly provided in this Sublease); and (vi) with respect to any
approval required to be obtained from the "Landlord" under the Master Lease,
such consent must be obtained from both Master Lessor and Sublessor, and the
approval of Sublessor may be withheld if Master Lessor's consent is not
obtained; provided, however, that Sublessor shall not unreasonably withhold
Sublessor's consent to any request of Sublessee which has been consented to
in writing by Master Lessor.
4(II), 5 (EXCLUDING THE FIRST SENTENCE), 6, 7, 8 (EXCLUDING THE
FIRST SENTENCE), 9, 11, 12, 13 (EXCEPT THAT THE TERM "LESSOR" IN
THE FIRST SENTENCE SHALL READ "MASTER LESSOR"), 14, 15, 17, 18,
21, 22, 25, 27 AND 28.
23. ASSUMPTION OF OBLIGATIONS: This Sublease is and at all times
shall be subject and subordinate to the Master Lease and the rights of Master
Lessor thereunder. If for any reason the term of the Master Lease is amended
or terminated prior to the expiration date of this Sublease, this Sublease
shall thereupon be amended or terminated and neither Sublessor nor Master
Lessor shall be liable to Sublessee by reason thereof unless such termination
is due to the wrongful acts or omissions of Sublessor or Master Lessor,
respectively. Sublessee hereby expressly assumes and agrees with respect to
Sublessor only (i) to comply with all provisions of the Master Lease which
are assumed by Sublessee hereunder, and (ii) to perform all the obligations
on the part of the "Tenant" to be performed under the terms of the Master
Lease during the term of this Sublease which are assumed by Sublessee
hereunder. In the event of a conflict between the provisions of this Sublease
and the Master Lease, as between Sublessor and Sublessee, the provisions of
this Sublease shall control.
24. CONDITIONS PRECEDENT: This Sublease and Sublessor's and
Sublessee's obligations hereunder are not effective until the written consent
of Master Lessor is obtained. If such written consent has not been received
within ten (10) business days of the date of this Sublease, Sublessee may
terminate this Sublease upon written notice thereof to Sublessor given not
later than fifteen (15) business days after the date of this Sublease, and
neither party shall have any continuing obligation to the other with respect
to the Premises; provided Sublessor shall return the Security Deposit any
other prepaid amounts, if previously delivered to Sublessor, to Sublessee.
25. SUBLESSOR'S COVENANTS: Except as expressly set forth in this
Sublease or required under the Master Lease, Sublessor covenants and agrees
that it shall not enter, without the prior written consent of Sublessee,
which consent may be withheld in Sublessee's sole discretion, any termination
of or amendment to the Master Lease which prevents or materially adversely
affects the use by Sublessee of the Subleased Premises in accordance with the
terms of this Sublease, materially increases the obligations of Sublessee
under this Sublease or materially restricts Sublessee's rights under this
Sublease. Sublessor further covenants and agrees that so long as Sublessee is
not then in default under this Sublease beyond any applicable notice and cure
period, Sublessor will perform and discharge all of its duties and
obligations under the Master Lease to the extent that such are not the duty
or obligation of Sublessee pursuant to this Sublease.
26. SUBLESSOR'S REPRESENTATIONS AND WARRANTIES: As an inducement to
Sublessee to enter this Sublease, to the Sublessor's actual knowledge,
Sublessor represents and warrants with respect to the Subleased Premises that:
26. 1. The Master Lease is in full force and effect, and there
exists under the Master Lease no default or event of default by either Master
Lessor or Sublessor, nor has there occurred any event which, with the giving
of notice or passage of time, or both, could constitute such a default or
event of default.
26.2. There are no pending or threatened actions, suits or
proceedings before any court or administrative agency against Sublessor or
against Master Lessor or third parties which could, in the aggregate,
adversely affect the Subleased Premises or any part thereof or the ability of
Master Lessor to perform its obligations under the Master Lease or of
Sublessor to perform its obligations under this Sublease, and Sublessor is
not aware of any facts which might result in any such actions, suits or
proceedings.
26.3. There is no pending or threatened condemnation or similar
proceeding affecting the Subleased Premises or any portion thereof, and
Sublessor has no knowledge that any such action currently is contemplated.
26.4. Sublessor has not received any notice from any insurance
company of any defects or inadequacies in the Subleased Premises or any part
thereof which could adversely affect the insurability of the Subleased
Premises or the premiums for the insurance thereof.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the day and
year first above written.
SUBLESSEE SUBLESSOR
ULTRATECH STEPPER, INC., a Delaware XXX RESEARCH CORPORATION,
corporation a Delaware corporation
By: w/s/XXXXXXX X. XXXXXX III By:
---------------------------------- ----------------------------------
Printed Name: Xxxxxxx X. Xxxxxx III Printed Name:
------------------------
Its: Senior VP Finance, CFO Its:
---------------------------------
Address: 00 Xxxxxxx Xxxx Address: Facilities Department
Xxxxxxxxxx, XX 00000 0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx Xxxxx
Telephone: Telephone: (000) 000-0000
CONSENT TO SUBLEASE
Master Lessor hereby acknowledges receipt of a copy of this Sublease,
and consents to the terms and conditions of this Sublease, but without
releasing Sublessor, as "Tenant" under the Master Lease, from its liability
under the Master Lease. By this consent, Master Lessor shall not be deemed in
any way to have entered into the Sublease or to have waived the provisions of
the Master Lease which require Master Lessor's prior written consent to any
subsequent assignments or subletting of the Subleased Premises or any portion
thereof.
Master Lessor further agrees that, notwithstanding anything to the
contrary in the Master Lease, Master Lessor shall deliver to Sublessee at the
Subleased Premises written notices of any defaults under the Master Lease at
the same time such written notices are sent to Sublessor as set forth in the
Master Lease. Upon default of the Sublessor, Sublessee shall have, in
addition to the time granted to Sublessor under the Master Lease, (i) an
additional period of five (5) days to cure any monetary default and (ii) an
additional period of thirty (30) days to cure any non-monetary default
provided that if such default cannot reasonably be cured within such period
Sublessee shall have such reasonable period as may be required to cure the
default if Sublessee within said thirty (30) day period commences and then in
good faith diligently continues to cure the default.
Master Lessor hereby acknowledges and certifies to Sublessor and
Sublessee that: (i) the document attached hereto as EXHIBIT A is a full,
true, and correct copy of the Master Lease; (ii) the Master Lease is in full
force and effect; (iii) there exists under the Master Lease no default or
event of default by either Master Lessor or Sublessor nor has there occurred,
to the knowledge of Master Lessor, any event which, with the giving of notice
or passage of time, or both, could constitute such a default or event of
default, and (iv) none of the existing tenant improvements are required to be
removed at the end of the Master Lease Term.
Master Lessor further acknowledges and agrees that Section 27 of the
Master Lease shall not apply to Sublessee or to any of Sublessee's property
which is' in the Subleased Premises.
MASTER LESSOR:
XXXXXX X. XXXXXXXX of Cambridge, Middlesex
County, Massachusetts, a proprietorship.
By:
---------------------------------
PRINTED
Name:
-------------------------------
Its:
--------------------------------
Address:
----------------------------
----------------------------
----------------------------
Attention:
--------------------------
Telephone:
--------------------------
EXHIBIT A
MASTER LEASE
COMMERCIAL LEASE
In consideration of the covenants herein contained, XXXXXX X. XXXXXXXX of
Cambridge Middlesex County, Massachusetts, a proprietorship, hereinafter
called LESSOR, does hereby lease to XXX RESEARCH CORPORATION hereinafter
called LESSEE, the following described premises, hereinafter called the
leased premises: 00 XXXXXXX XXXX, XXXXXXXXXX, XX containing approximately
65,240 square feet and 00 XXXXXXX XXXX, XXXXXXXXXX, XX containing
approximately 19,117 square feet.
TO HAVE AND TO HOLD the leased premises for a term of five years commencing
at noon on September 1, 1996 and ending at noon on August 31, 2001 unless
sooner terminated as herein provided. LESSOR and LESSEE now covenant and
agree that the following terms and conditions shall govern this lease during
the term hereof and for such further time as LESSEE shall hold the leased
premises.
1. RENT: LESSEE shall pay to LESSOR base rent at the rate of
_____________ for 00 Xxxxxxx Xxxx and __________for 00 Xxxxxxx Xxxx, X.X.
dollars per year, drawn on a U.S. bank, payable in advance in monthly
installments of $___________ and on the first day in each calendar month in
advance, the first monthly payment to be made on or before September 1, 1996,
including payment in advance of appropriate fractions of a monthly payment
for any portion of a month at the commencement or end of said lease term. All
payments shall be made to LESSOR or agent at 000 Xxxxxxx Xxx., Xxxxxxxxx, XX
00000, or at such other place as LESSOR shall from time to time in writing
designate.
2. SECURITY DEPOSIT: INTENTIONALLY DELETED
3. USE OF PREMISES: LESSEE use of the leased premises shall include
any configuration of a.) all lawful general office purposes, b.) all lawful
light industrial purposes, c.) all lawful light manufacturing and light
assembly purposes, and d.) all lawful purposes related to the business
operations of LESSEE.
4. ADDITIONAL RENT: LESSEE shall pay to LESSOR as additional rent a
proportionate share (based on square footage leased by LESSEE as compared
with the total leaseable square footage of the building of which the leased
premises are a part) of any real estate taxes levied against the land and
building of which the leased premises are a part. LESSEE shall make payment
within thirty (30) days of written notice including invoice and copy of tax
xxxx from the LESSOR that such taxes are payable, and any additional rent
shall be pro-rated should the lease terminate before the end of any tax year.
LESSEE's proportionate share of each building should be specified , along
with the total rentable area for each such building (See Exhibit D). In the
event that said building was not assessed as a completed building as of the
aforementioned date, then the base assessment shall be as of the first date
when the building is assessed as a completed structure. LESSEE shall not be
responsible for late charges arising from LESSOR's late payment of said
taxes. LESSOR will charge LESSEE as "Additional Rent" customary as set forth
on Exhibit A affixed to this lease and incorporated into its terms of
reference common area maintenance ("CAM") charges. Notwithstanding the
foregoing, such additional rental charges shall at all times be limited to
the following conditions:
I.) In no event will LESSEE be obligated to pay its pro rata share of
any increases in CAM charges in excess of four percent (4.0%) on a non
cumulative basis of the previous years base amount for any discrete CAM cost
component which is deemed to "reasonably controllable by LESSOR". Within the
context of this provision, all CAM charges are deemed to be reasonably
controllable by LESSOR except those associated with a.) real estate taxes,
b.) common area utilities, c.) and common area insurance premiums. LESSEE
shall not be responsible for late charges arising from LESSOR's late payment
of real estate taxes.
II.) LESSEE will directly maintain all base building mechanical systems
and electrical service within the Leased Premises. LESSEE's obligation is to
maintain building systems or portions of systems which serve the leased
premises.
LESSEE shall provide at its sole cost and expense, or cause to be
provided via reasonable service contracts, all normal and customary
preventive maintenance to all such building mechanical and electrical systems
during the term of the lease. LESSEE also agrees to provide to LESSOR copies
of all preventive maintenance agreements entered into with respect to the
terms of this paragraph.
III.) The CAM services which are permitted to be charged to LESSEE
during the initial lease term shall be in substantial accordance with EXHIBIT
A - CAM SERVICES attached to the lease agreement. The EXHIBIT A -CAM SERVICES
specify both the CAM services to be provided to LESSEE and LESSOR's
reasonable estimate of what the actual pro-rated CAM costs will be during the
first year of the lease term (the "CAM Base Year"). Notwithstanding the
forgoing, and for the purposes of projecting the cost of ice and snow removal
during the first lease year only, LESSOR will use the averaged time period of
"Winter 93/94 and Winter 94/95" for such cost projection. LESSEE will pay to
LESSOR as Additional Rent calculated and payable by LESSEE to LESSOR on a
quarterly averaged basis, its projected CAM charges during the first year of
the lease term based on the projected CAM Base Year. Said CAM costs shall be
charged to LESSEE on a prorated basis according to the square footage
occupied reflecting the portion of the building occupied by LESSEE.
IV.) Within ninety (90) days after the end of the first lease year
anniversary and continuing on each anniversary thereafter, LESSOR will submit
to LESSEE a CAM reconciliation statement which specifies the actual CAM costs
incurred for the North Wilmington Industrial Park (EXHIBIT D) in which the
premises are a part as compared with the sum of quarterly CAM payments made
by LESSEE to LESSOR. To the extent that the sum of quarterly CAM payments
made by LESSEE per the CAM Base Year are in excess of the pro-rated actual
CAM costs incurred for the Park, LESSOR will provide to LESSEE a rent credit
equal to the amount of the overpayment for the next rental period following.
Alternatively, if the sum of quarterly CAM payments made by LESSEE per the
CAM Base Year are less than the pro-rated actual CAM costs actually incurred
by the Park, Lessee will pay to Lessor the full amount of the difference as
increased Additional Rent (subject to the provision of 4.I above). LESSEE
shall not be obligated to pay to LESSOR any CAM cost pass throughs for any
one or more lease years related to costs which are presented to LESSEE within
twelve (12) months after the end of any one lease year or portion thereof.
5. UTILITIES: LESSOR shall provide equipment per LESSOR's building
standard specifications to heat the leased premises in season and to cool all
areas between May 1 and November 1. LESSEE shall pay all charges for heat and
electricity used on the leased premises. LESSEE shall pay LESSOR for all
water and sewer use as determined by LESSOR either by a separate water meter
serving the leased premises, or as a proportionate share of water and sewer
charges for the entire building of which the leased premises are a part if
not separately metered. LESSEE shall pay all cost for providing and
installing a separate water meter if LESSEE deems necessary. LESSEE also
shall pay LESSOR a proportionate share of any other fees and charges relating
in any way to water or sewer use at the building. No plumbing, construction
or electrical work of any type shall be done without LESSOR's prior written
approval which will not be unreasonably withheld, conditioned or delayed
and/or the appropriate municipal permit.
6. COMPLIANCE WITH LAWS: LESSEE acknowledges that no trade,
occupation, activity or work shall be conducted in the leased premises or use
made thereof which may be unlawful, noisy, offensive, or contrary to any
applicable statute, regulation, ordinance or bylaw. LESSEE shall keep all
employees working in the leased premises covered with Worker's Compensation
Insurance and shall obtain any licenses and permits necessary for LESSEE's
occupancy. LESSEE shall be responsible for insuring that it's business
operations within the leased premises and any alterations by LESSEE which are
allowed hereunder to be in full compliance with any applicable statute,
regulation, ordinance or bylaw.
7. FIRE, CASUALTY, EMINENT DOMAIN: Should a substantial portion of the
leased premises, or of the property of which they are a part, be substantially
damaged by fire or other casualty, or be taken by eminent domain, LESSOR may
elect to terminate this lease. When such fire, casualty, or taking renders the
leased premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and LESSEE may elect to terminate
this lease if: (a) LESSOR fails to give written notice within thirty (30) days
of the event of casualty of intention
to restore the leased premises, or (b) LESSOR fails to restore the leased
premises to a condition substantially suitable for their intended use within
ninety (90) days of said fire, casualty or taking. LESSOR reserves all rights
for damages or injury to the leased premises for any taking by eminent
domain, except for damage to LESSEE's property or equipment. For the purposes
of this lease substantially unsuitable for the intended use means that
LESSEE's business activities cannot be consistently carried on for a period
of 90 consecutive days. LESSEE may terminate the lease or portion thereof in
any affected building in the event that greater than twenty-five (25%)
percent of the leased area in such building is rendered un-occupiable or
taken via eminent domain for greater than 90 days.
8. MAINTENANCE OF PREMISES: LESSOR will be responsible to pay at its
sole cost and expense for all structural and roof maintenance of the leased
premises, but specifically excluding damage caused by the careless,
malicious, willful, or negligent acts of LESSEE or LESSEE's operation and
chemical, water or corrosion damage from any source due to LESSEE's
operation. LESSEE agrees to maintain at its expense all other aspects of the
leased premises in substantially the same condition as they are at the
commencement of the term or as they may be put in during the term of this
lease, normal wear and tear and damage by fire or other casualty only
excepted, and whenever necessary, to replace light bulbs, plate glass and
other glass therein, acknowledging that the leased premises are now in good
order and the light bulbs and glass whole. LESSEE will property control or
vent all solvents, degreasers, smoke, odors etc., and shall not cause the
area surrounding the leased premises to be in anything other than a neat and
clean condition, depositing all waste in appropriate receptacles. LESSEE
shall be solely responsible for any damage to plumbing equipment, sanitary
lines, or any other portion of the building. LESSEE shall not knowingly or
through acts of negligence permit the leased premises to be overloaded,
damaged, stripped or defaced, nor suffer any waste, and will not keep animals
within the leased premises. All maintenance provided by LESSOR shall be
during LESSOR's normal business hours.
9. ALTERATIONS: Except as provided for in Paragraph 30 herein, LESSEE
shall not make structural alterations or additions of any kind to the leased
premises, but may make non-structural alterations provided LESSOR consents
thereto in writing with such consent not to be unreasonably withheld
conditioned or delayed. LESSOR will respond to LESSEE's request for approval
on a timely basis and within thirty (30) days. All such allowed alterations
shall be at LESSEE's expense and shall conform with LESSOR's construction
specifications which are similar and like quality and design as in 00 Xxxxxxx
Xxxx. If LESSOR provides any services or maintenance for LESSEE in connection
with such alterations or otherwise under this lease, any just invoice will be
promptly paid. LESSEE shall not permit any mechanics' liens, or similar
liens, to remain upon the leased premises in connection with work of any
character performed or claimed to have been performed at the direction of
LESSEE and shall cause any such lien to be released or removed forthwith
without cost to LESSOR. Any alterations or additions shall become part of the
leased premises and the property of LESSOR all equipment owned by LESSEE not
structurally a component and all trade fixtures owned by LESSEE, shall at all
times remain the property of LESSEE subject to LESSEE removing same and
restoring any resultant damage to the leased area at the end of the lease
term. None of the improvements constructed by LESSOR shall be subject to a
restoration obligation on the part of LESSEE. Any alterations completed by
LESSOR shall be LESSOR's "building standard" unless noted otherwise. LESSOR
shall have the right at any time to change the arrangement of parking areas,
stairs, walkways or other common areas of the building of which the leased
premises are a part provided that such changes do not materially diminish the
aesthetics or operational ease of LESSEE's leasehold interest.
10. ASSIGNMENT OR SUBLEASING: LESSEE shall not assign this lease or sublet or
allow any other firm or individual to occupy the whole or any part of the
leased premises without LESSOR's prior written consent which shall not be
unreasonably withheld, conditioned or delayed. LESSOR will respond to
LESSEE's request within thirty (30) days. LESSOR shall not be able to with
hold approval for assignment or sublet based on the fact that LESSOR has
prime space within the park available for lease. Notwithstanding such
assignment or subleasing, LESSEE shall remain liable to LESSOR for the
payment of all rent and for the full performance of the covenants and
conditions of this lease. LESSEE shall pay LESSOR promptly for reasonable
legal and administrative expenses incurred by LESSOR in connection with any
consent requested hereunder by LESSEE. Such approval shall not be required if
such assignment or sublease is to a parent, subsidiary or other organization
affiliated with LESSEE. In the event such assignment or sublease shall result
in excess profits after reasonable administrative expenses have been
deducted, such profits shall be split equally between
LESSEE and LESSOR. Said administrative costs shall not include vacancy,
promotional materials, A & E fees, permits or commissions that are related to
said sublease.
11. SUBORDINATION: This lease shall be subject and subordinate to any
and all mortgages and other instruments in the nature of a mortgage, now or
at any time hereafter, and LESSEE shall, when requested, within thirty (30)
days of receipt by LESSEE execute and deliver such written instruments as
shall be necessary to show the subordination of this lease to said mortgages
or other such instruments in the nature of a mortgage. LESSOR shall obtain a
non-disturbance agreement for any pertinent mortgagee or future mortgagee the
substance of which shall state that LESSEE shall not be disturbed and
LESSEE's leasehold interest shall not be diminished in terms of operational
or contractual benefits in its possession of the leased premises as long as
LESSEE is not in default in the terms of this lease.
12. LESSOR'S ACCESS: LESSOR or agents of LESSOR may at any reasonable
time enter to view the leased premises, to make repairs and alterations as
LESSOR should elect to do for the leased premises, the common areas or any
other portions of the building of which the leased premises are a part, to
make repairs which LESSEE is required but has failed to do after applicable
notice and cure period and to show the leased premises to others. LESSOR
agrees to give 24 hour notice except for making emergency repairs and be
subject to LESSEE's security requirements. LESSOR's access for marketing
purposes should be limited to the last six months of the lease term or as
soon as LESSEE has given notice of its intention to vacate.
13. SNOW REMOVAL: The plowing of snow from all roadways, accessways
and unobstructed parking and loading areas shall be at the sole
responsibility of LESSOR and paid for by LESSEE subject to the provisions of
4.1 herein. The control of snow and ice on all steps serving the leased
premises and all other areas not readily accessible to plows shall be the
sole responsibility of LESSEE. Notwithstanding the foregoing, however, LESSEE
shall hold LESSOR and OWNER harmless from any and all claims by LESSEE's
agents, representatives, employees, callers of invitees for damage or
personal injury resulting in any way from snow or ice an any area serving the
leased premises except in the case of negligence or willful misconduct caused
by LESSOR.
14. ACCESS AND PARKING: LESSEE shall have the right without additional
charge to use parking facilities provided for the leased premises in common
with others entitled to the use thereof. Said parking areas plus any stairs,
walkways, elevators or other common areas shall in all cases be considered a
part of the leased premises to the extent that they are utilized by LESSEE,
or LESSEE's employees, agents, callers or invitees. LESSEE will not obstruct
in any manner any portion of the building or the walkways or approaches to
said building. LESSEE will use reasonable efforts and LESSEE will not permit
any employee or business invitee to violate this or any other covenant or
obligation of LESSEE. Unregistered or disabled vehicles, or storage trailers
of any type, may not be parked at any time except that construction trailers
and dumpsters and equipment on the grounds are expressly permitted and must
be removed within ten (10) days of substantial completion of construction.
LESSOR shall not be responsible for providing any security services for the
leased premises.
15. FIRE INSURANCE: LESSEE shall not knowingly permit any use of the
leased premises which will adversely affect or make voidable any insurance on
the property of which the leased premises are a part, or on the contents of
said property, or which shall be contrary to any law or regulation from time
to time established by the Insurance Services Office (or successor), local
Fire Department, LESSOR's insurer, or any similar body. LESSEE shall on
demand reimburse LESSOR, all extra insurance premiums determined to have been
caused by LESSEE's use of the leased premises which currently to LESSOR's
knowledge does not adversely effect insurance rates or make insurance
voidable.
16. BROKERAGE: LESSEE warrants and represents to LESSOR that LESSEE
has utilized only The Staubach Company as their exclusive representative with
respect to this lease and LESSEE agrees to indemnify LESSOR against any
brokerage claims arising from an alleged dual representation of LESSEE under
this lease. LESSOR warrants and represents to LESSEE that LESSOR has employed
Xxxxxxx X. Xxxxx as agent in connection with the letting of the leased
premises.
LESSOR shall pay brokerage commission The Staubach Company as the
exclusive representative of LESSEE in the amount of one dollar and eighty
eight cents ($1.88) per rentable square foot leased at 00 Xxxxxxx Xxxx and
one dollar and & fifty cents ($1.50) per rentable square fact at 00 Xxxxxxx
Xxxx. Such commissions shall be due and payable to The Staubach Company and
Xxxxxxx Xxxxx in full upon mutual execution and ratification by LESSOR and
LESSEE of such a new lease.
17. SIGNS: LESSOR authorizes, and LESSEE, at LESSEE's expense agrees
to erect signage for the leased premises in accordance with the by laws and
ordinances of Town of Wilmington for style, size, location, etc. LESSEE shall
obtain the prior written consent of LESSOR which shall not be unreasonably
withheld or conditioned or delayed before erecting any sign on the leased
premises and any permits required by the Town of Wilmington. LESSEE may
install comparable signage for 00 Xxxxxxx Xxxx as exists at 00 Xxxxxxx Xxxx
subject to local and municipal ordinances. All signage rights are assignable
to assignees and/or successors of LESSEE.
18. DEFAULT AND ACCELERATION OF RENT: In the event that: (a) LESSEE
shall default in the observance or performance of any of LESSEE's covenants,
agreements, or obligations hereunder, other than substantial monetary
payments as provided below, and such default shall not be corrected within
ten (10) days after written notice thereof or (b) LESSEE vactes the leased
premises, then LESSOR shall have the right thereafter, while such default
continues and without demand or further notice, to re-enter and take
possession of the leased premises, to declare the term of this lease ended,
and to remove LESSEE's effects, without being guilty of any manner of
trespass, provided such LESSOR entry complies with all applicable statutes
and without prejudice to any remedies which might be otherwise used for
arrears of rent or other default or breach of the lease. If LESSEE shall
default in the payment of the rent taxes, or any substantial invoice for
goods and/or services or other sum herein specified, and such default shall
continue for ten (10) days after written notice thereof, and, because both
parties agree that nonpayment of said sums when due is a substantial breach
of the lease, and, because the payment of rent in monthly installments is for
the sole benefit and convenience of LESSEE, then in addition to the foregoing
remedies the entire balance of rent which is due hereunder shall become
immediately due and payable as liquidated damages. LESSOR, without being
under any obligation to do so and without thereby waving any default may
remedy same for the account and at the expense of LESSEE. If LESSOR pays or
incurs any obligations payment of money in connection therewith such sums
paid or obligations incurred plus interest and costs, shall be paid to LESSOR
by LESSEE as additional rent. Any sums received by LESSOR from or on behalf
of LESSEE at any time shall be applied first to any unamortized improvements
completed for LESSEE's occupancy, then to offset any outstanding invoice or
other payment due to LESSOR, with the balance applied to outstanding rent.
LESSEE agrees to pay reasonable attorney's fees and/or administrative costs
incurred by LESSOR in enforcing any or all obligations of LESSEE under this
lease at any time provided that LESSOR is the prevailing party. LESSEE shall
pay LESSOR interest at the rate of eighteen (18%) percent per annum on any
payment from LESSEE to LESSOR which is past due.
19. NOTICE: Any notice from LESSOR to LESSEE relating to the leased
premises or to the occupancy thereof shall be deemed duly served when served
by constables or sent to the leased premises by certified mail, return
receipt requested, postage prepaid, addressed to LESSEE Attention: Facilities
Manager.. Any notice from LESSEE to LESSOR relating to the leased premises or
to the occupancy thereof shall be deemed duly served when served by constable
or delivered to LESSOR by certified mail, return receipt requested, postage
prepaid, addressed to LESSOR at 000 Xxxxxxx Xxx., Xxxxxxxxx, XX 00000 or at
LESSOR's last designated address. No oral notice or representation shall have
any force or effect. Time is of the essence in service of any notice.
20. OCCUPANCY: in the event that LESSEE takes possession of said
leased premises prior to the start of said term, LESSEE will perform and
observe all of LESSEE's covenants from the date upon which LESSEE takes
possession except the obligation for the payment of extra rent for any period
of less than one month. Provided that LESSEE gives to LESSOR not less than
six (6) months advance written notice prior to the end of the initial lease
term, LESSEE will have a one (1) time right to holdover in the Premises at
the end of the initial lease term for three (3) months at 100 % of the then
current Base Rent and Additional Rent in effect immediately prior to lease
expiration. After the aforementioned three (3) month period, the Base Rent
will be 150% of the immediately prior Base Rent and 100 % of the then current
Additional Rent in effect immediately prior to the expiration of the holdover
period. Holdover thereafter shall be on a month-to-month basis terminable by
either party with ninety (90) days prior notice. All other terms of this
lease shall remain in
effect during this holdover period, it being understood between the parties
that such extended occupancy is as a tenant at sufferance and is solely for
the benefit and convenience of LESSEE and as such has greater rental value.
LESSEE's control or occupancy of all or any part of the leased premise beyond
noon an the last day of any monthly rental period shall constitute LESSEE's
occupancy for an entire additional month, and increased rent as provided in
this section shall be due and payable immediately in advance. LESSOR's
acceptance of any payment for LESSEE during such extended occupancy shall not
alter LESSEE's status as a tenant at sufferance.
21. FIRE PREVENTION: LESSEE agrees to use every reasonable precaution
against fire and agrees to provide and maintain approved, labeled fire
extinguishers, emergency lighting equipment and exit signs and complete any
other modifications within the leased premises as required or recommended by
the Insurance Services Office (or successor organization), OSHA, the local
Fire Department, or any similar body.
22. OUTSIDE AREA: No goods, equipment, or things of any type or
description shall be held or stored outside the leased premises at any time
without prior written consent from LESSOR. Placement of construction trailers
and related dumpsters and equipment on the grounds are permitted during
construction projects in a designated area and must be removed within ten
(10) days of substantial completion. LESSOR consents to the existing LN 2
Tank and the existing trash compactor unit. Any additional goods equipment or
things left outside the leased premises without LESSOR's prior written
consent shall be deemed abandoned and may be removed at LESSEE's expense with
30 days prior notice by LESSOR.
23. ENVIRONMENT: LESSEE will so conduct and operate the leased
premises as not to interfere in any way with the use and enjoyment of other
portions of the same or neighboring buildings by others by reason of odors,
smoke, smells, noise, pets, accumulation of garbage or trash, vermin or other
pests, and will at its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from solvents, degreasers, cutting
oils, propellants, etc. which may be present at the leased premises. No
hazardous materials or wastes shall be stored, disposed of, or allowed to
remain at the leased premises at any time, and LESSEE shall be solely
responsible for any and all corrosion or other damage associated with the
use, storage and/or disposal of same by LESSEE. LESSOR recognizes the LESSEE
uses and stores on site certain controlled and hazardous substances in the
ordinary course of its business and such continued use will at all times be
permitted subject to all local, state, and federal laws copies of permits and
licenses shall be delivered to LESSOR upon receipt.
24. RESPONSIBILITY: Except in the case of negligence, willful
misconduct of breach of lease by LESSOR, LESSOR shall not be held liable to
anyone for loss or damage caused in any way by the use, leakage, seepage or
escape of water from any source, or for the cessation of any service rendered
customary to said premises or buildings, or agreed to by the terms of this
lease, due to any accident, the making of repairs, alterations or
improvement, labor difficulties, weather conditions, mechanical breakdowns,
trouble or scarcity in obtaining fuel electricity, service or supplies from
the sources from which they are usually obtained for said building or any
cause beyond LESSOR's immediate control. Not withstanding the forgiving
LESSOR agrees to use its reasonable best efforts to restore such services to
the leased premises in a prompt and timely manner.
25. SURRENDER: LESSEE shall at the termination of this lease remove
all of LESSEE's goods and effects from the leased premises. LESSEE shall
deliver to LESSOR the leased premises and all keys and locks thereto, all
fixtures and equipment connected therewith, and all alterations, additions
and improvements made to or upon the leased premises, whether completed by
LESSEE, LESSOR or others, including but not limited to any offices
partitions, window blinds, floor coverings (including computer floors),
plumbing fixtures, air conditioning equipment and ductwork of any type,
exhaust fans or heaters, water coolers, burglar alarms, telephone wiring,
telephone equipment, air or gas distribution piping, compressors, overhead
cranes, hoists, trolleys or conveyors, counters, shelving or signs attached
to walls or floors, all electrical work, including but not limited to
lighting fixtures of any type, wiring, conduit, EMT, transformers,
distribution panels, raceways, outlets and disconnects, and furnishings or
equipment which have been bolted, welded, nailed, screwed, glued or otherwise
attached to any wall, floor or ceiling, or which have been directly wired to
any portion of the electrical system or which have been plumbed to the water
supply, drainage or venting systems serving the leased
premises. LESSEE shall deliver the leased premises sanitized and/or
decontaminated from any chemicals or other contaminants, and broom clean and
in the same condition as they were at the commencement of this lease or any
prior lease between the parties for the leased premises, or as they were
modified during said term with LESSOR's written consent reasonable wear and
tear and damage by fire or other casualty only excepted. In the event of
LESSEE's failure to remove any LESSEE's property from the leased premises
upon termination of the lease, LESSOR is hereby authorized, without liability
to LESSEE for loss or damage thereto, and at the sole risk of LESSEE, to
remove and store any such property at LESSEE's expense, or to retain same
under LESSOR's control, or to sell at public or private sale (without
notice), any or all of the property not so removed and to apply the net
proceeds of such sale to the payment of any sum due hereunder, or to destroy
such abandoned property. In no case shall the leased premises be deemed
surrendered to LESSOR until the termination date provided herein or such
other date as may be specified in a written agreement between the parties,
notwithstanding the delivery of any keys to LESSOR.
26. GENERAL: (a) The invalidity or unenforceability of any provision
of this lease shall not affect or render invalid or unenforceable any other
provision hereof (b) The obligations of this lease shall run with the land,
and this lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that LESSOR and
OWNER shall be liable only for obligations occurring while current LESSOR,
OWNER, or master LESSEE are owners of the premises. (c) Any action or
proceeding arising out of the subject matter of this lease shall be brought
by LESSEE within one year after the cause of action has accrued and only in a
court of the Commonwealth of Massachusetts. (d) If LESSOR is not the owner
(OWNER) of the leased premises, LESSOR represents that said OWNER has agreed
to be bound by the terms of this lease unless LESSEE is in default hereof.
(e) This lease is made and delivered in the Commonwealth of Massachusetts and
shall be interpreted, construed, and enforced in accordance with the laws
thereof. (f) This lease was the result of negotiations between parties of
equal bargaining strength, and when executed by both parties shall constitute
the entire agreement between said parties. No other oral or written
representation shall have any effect hereon, and this agreement may not be
altered, extended or amended except by written agreement attached hereto or
as otherwise provided herein. (g) Notwithstanding any other statements
herein, LESSOR makes no warranty, express or implied, concerning the
suitability of the leased premises for LESSEE's intended use. (h) LESSEE
agrees that if LESSOR does not deliver possession of the leased premises as
herein provided for any reason, LESSOR shall not be liable for any damages to
LESSEE for such failure, but LESSOR agrees to use reasonable efforts to
deliver possession to LESSEE at the earliest possible date, and a
proportionate abatement of rent for such time as LESSEE may be deprived of
possession of said leased premises shall be LESSEE's sole remedy. (i) Neither
the submission of this lease form, not the prospective acceptance of the
security deposit and/or rent shall constitute a reservation of or option for
the leased premises, or an offer to lease, it being expressly understood and
agreed that this lease shall not bind either party in any manner whatsoever
until it has been executed by both parties. (j) LESSEE shall not be entitled
to exercise any option contained herein if LESSEE is in default of any terms
or conditions hereof. (k) The headings in this lease are for convenience only
and shall not be considered part of the terms hereof. LESSEE's trade fixtures
shall not be construed to be a part of this paragraph. All improvements
constructed by LESSOR shall not be subject to restoration.
27. SECUIUTY AGREEMENT: LESSEE hereby grants LESSOR a continuing
security interest in all existing or hereafter acquired property of LESSEE
which is in the leased premises to secure the payment of rent, the cost of
leasehold improvements, and the performance of any other obligations of
LESSEE under this lease. Default in payment or performance of any of LESSEE's
obligations hereunder is a default under this Security Agreement, and shall
entitle LESSOR to immediately exercise all of the rights and remedies of a
Secured Party under the Uniform Commercial Code. LESSEE also agrees to
execute a UCC-1 Financing Statement and any other financing agreement
required by LESSOR in connection with this security interest.
28. WAIVERS, ETC.: No consent or waiver, express or implied, by LESSOR, or
LESSEE to or of any breach of any covenant, condition or duty of LESSEE or
LESSOR shall be construed as a consent or waiver to or of any other breach of
the same or any other covenant, condition or duty. If LESSEE is several
persons, several corporations or a partnership, LESSEE's obligations are
joint or partnership and also several. Unless repugnant to the context,
"LESSOR"
and "LESSEE" mean the person or persons, natural or corporate, named above as
LESSOR and as LESSEE respectively, and their respective heirs, executors,
administrators, successors and assigns.
29. ADDITIONAL PROVISIONS:
29.1 LESSOR FUNDED WORK TO THE PREMISES -16 JONSPIN ROAD
(a) None. Premises to be lease "as-is". (b) Notwithstanding the
foregoing in (a) above, LESSOR will at all times during the
initial lease term be responsible, at its sole cost and expense,
for repairs and maintenance of 1.) base building structural
systems 2.) roof system, and 3.) base building mechanical and
electric systems, (c) It is agreed that with respect to all
construction work to be done in the Premises that does not involve
specialty technical expertise uniquely related to LESSEE's
business, that LESSOR acting as a general contractor will be
notified by Lessee of such planned work and be invited to
competitively bid on all such planned construction work. While
Tenant will in no event be obligated to award any such work to
Lessor Lessee agrees to give Lessor fair and objective
consideration for the award of such work that does not involve
specialty technical expertise uniquely related to LESSEE's
business.
29.2 (a) LESSOR agrees to use its best efforts to assist LESSEE in
securing local and/or municipal approvals for an expansion to the
base building per LESSEE's concept drawings attached hereto as
EXHIBIT B - TENANTS BUILDING ENPANSION. To the extent that such
approval is achieved, LESSOR agrees to work in good faith with
LESSEE to develop and approve plans and specifications to
undertake such expansion to the base building.
(b) Such base building expansion is to be undertaken in
substantial accordance with to-be-developed building plans which
are to be jointly created by LESSOR and LESSEE and reasonably
approved by LESSOR. LESSEE will provide and manage all planning
and construction services related to such expansion. LESSOR will
respond to LESSEE's request for plan approval within ten (10)
days. (c) All costs related to planning and construction such
building expansion are to borne solely by LESSEE.
(d) In consideration of 29.2c above, LESSOR shall not assess on
LESSEE any rental charge, CAM charge, use charge, or any other
charge related to LESSEE construction and use of the expansion
area during the initial leased term or during subsequent renewal
periods. Notwithstanding the forgoing, LESSEE will pay as
Additional Rent any increased real estate taxes that are assessed
on Park or Leased Premises as a result of such new construction
undertaken by LESSEE. (e) It agreed that with respect to all
construction work to be done in the Premises that does not involve
specialty technical expertise uniquely related to LESSEE's
business, that LESSOR acting as a general contractor will be
notified by LESSEE of such planned work and be invited to
competitively bid on all such planned construction work. While
LESSEE will in no event be obligated to award such work to LESSOR,
LESSEE agrees to give to LESSOR fair and objective consideration
for the award of such work that does not involve specialty
technical expertise uniquely related to LESSEE's business.
(f) It is agreed and understood that LESSOR may elect at its sole
discretion, to have LESSEE remove the subject expansion to the
base building and restore the building and the site to
substantially its similar condition as existed prior to the
construction of such expansion area. LESSOR's right hereunder
shall commence when LESSEE's lease or renewal period terminates.
All costs associated with such removal and restoration shall be
borne solely by LESSEE. This provisions of paragraph 29.2e. above
apply under this provision.
29.3 LESSOR FUNDED WORK - 65 JONSPIN READ (a) As part of and included
in the Base Rent, Lessor shall provide to Lessee a refurbishment
allowance of two dollars and fifty cents ($2.50) per rentable
square foot ($47,792.25) to be used to perform any refurbishment
items required by Lessee in the Premises. Such funds shall be made
available to Lessee by Lessor as of the date that Lessor and
Lessee have mutually executed and ratified a legally binding
agreement. (b) Lessor will at all times during the initial lease
term be responsible, at its sole cost and expense for repairs and
maintenance of 1.) base building structural system, 2.) roof
system, and 3.) base building mechanical and electric systems, (c)
same as 29.2 above.
29.4 LESSEE FUNDED INTERIOR RENOVATIONS (a) LESSOR agrees to use its
best efforts to assist LESSEE in securing local and/or municipal
approvals for the contemplated interior renovations to the
premises. (b) Such interior renovations are to be undertaken in
substantial accordance with developed renovation plans which
are to be created by LESSEE and reasonably approved by LESSOR.
LESSEE will provide and manage all planning and construction
services related to such expansion. (c) All costs related to
planning and constructing such renovations are to borne solely by
LESSEE notwithstanding the provisions above, except as provided
above in 29.3.
29.5 Lessee shall have the Right of First Refusal on all other space
controlled and/or owned by LESSOR in the Park which may become
available during the lease term or any extensions thereto at a
Base Rent equal to the lessor of 1.) 95% of then current market
leasing rate being offered to prospective tenants or 2.) the then
current Base Rent in effect for LESSEE plus one dollar ($1.00) per
square foot. LESSEE shall have five (5) business days from the
date of notice of space availability by LESSOR to LESSEE to elect
to lease such additional space. LESSOR shall have no
responsibility to the Staubach Company for any future commissions
regarding XXX Research Corporation with regards to additional
space.
29.6 LESSEE shall have the right to renew the lease for one(1)
additional five (5) year term at 95% of the then prevailing Fair
Market Value including adjustment being made for all applicable
market concessions and transaction expense for comparable
industrial real estate locate in Wilmington, Massachusetts. A
three (3) broker arbitration method shall be used for renewal rent
determination if LESSOR and LESSEE fail to agree on fair market
rental rate.
29.7 It is hereby understood and agreed that LESSOR agrees subject to
plan approval by LESSOR and the Town of Wilmington to allow LESSEE
to construct additional mezzanine level office space of
approximately 6,600 square feet to be determined when
construction is completed at 00 Xxxxxxx Xxxx. In consideration of
LESSEE paying one hundred percent (100%) of the cost of
construction and improvements, LESSOR will not charge LESSEE rent
for this space during the initial term of this lease. However,
during the renewal and/or extension of this lease the rental rate
for the newly constructed mezzanine level space and only this
space shall be added to the base rent at a pre determined rate of
$5.25 per square foot. LESSEE will be responsible for all
additional CAM costs for this space during the initial term and/or
any extensions thereof.
IN WITNESS WHEREOF, LESSOR AND LESSEE have hereunto set their hands and
common seals and intended to be legally bound hereby this ___day of
_____________19____.
LESSOR: LESSEE:
By: By:
------------------------------------ -----------------------------------
Xxxxxx X Xxxxxxxx, Owner President
EXHIBIT A
COMMON AREA MAINTENANCE CHARGES
To help determine the common area base charges an average of snow plowing
costs were taken from the Winter of 93/94 and the Winter of 94/95. In
addition, the current contracts from Xxx Research were also taken into
consideration therefore the following price structure will be in effect for
the new lease term.
Landscaping .18p.s.f
Snowplowing .15p.s.f.
Insurance
Real Estate Taxes Tenant's Responsibility
