EXHIBIT 10.1
LEASE AGREEMENT
THIS LEASE AGREEMENT is dated this 15th day of January, 2003
between LIT INDUSTRIAL LIMITED PARTNERSHIP ("Landlord") and the Tenant named
below.
TENANT: Sundance Publishing, LLC
ADDRESS AND PHONE NO: Xxx Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000
GUARANTOR: Haights Cross Communications, Inc.
ADDRESS AND PHONE NO: 00 Xxx Xxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000
(000) 000-0000
PREMISES: That portion of the Building, containing
approximately 150,000 rentable square feet,
as shown on EXHIBIT A, situated on a portion
of that certain real property legally
described in EXHIBIT A-1 attached hereto.
PROJECT: The Building and the real property
consisting of approximately 36.5 acres of
land located at Xxx Xxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxxx.
BUILDING: The industrial building located at Xxx
Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxx
containing approximately 311,702 rentable
square feet of floor area.
TENANT'S PROPORTIONATE
SHARE: 48.12 %
LEASE TERM: Beginning on the Commencement Date and
ending on the last day of the sixty-third
(63rd) full calendar month after the Rent
Commencement Date. It is agreed that no Base
Rent is due from Tenant for the months of
April, May and June, 2003, corresponding to
months 1-3 in the Monthly Base Rent table
below.
OPTION TO EXTEND: One (1) five (5) year option to extend, as
more particularly described in Paragraph 33.
COMMENCEMENT DATE: January 15, 2003.
RENT COMMENCEMENT DATE: April 1, 2003.
MONTHLY BASE RENT:
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MONTHS ANNUAL RATE PER SQ. FT. MONTHLY BASE RENT
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1-3 Zero Dollars Zero Dollars
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4-15 $ 5.40 $ 67,500.00
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16-27 $ 5.50 $ 68,750.00
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28-39 $ 5.75 $ 71,875.00
----------------------------------------------------
40-51 $ 5.75 $ 71,875.00
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52-63 $ 6.00 $ 75,000.00
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1. Utilities: To be paid separately in
INITIAL ESTIMATED accordance with Paragraph 7 herein.
MONTHLY OPERATING
EXPENSE PAYMENTS: 2. Common Area Charges: $ 2,795.83
(estimates only and
subject to adjustment to 3. Taxes: $ 5,326.67
actual costs and expenses 4. Insurance: $ 812.50
according to the
provisions of this Lease) 5. Management Fee: $ 1,737.17
TOTAL INITIAL ESTIMATED
MONTHLY OPERATING EXPENSE
PAYMENTS: $ 10,672.17
INITIAL MONTHLY BASE RENT
AND OPERATING EXPENSE
PAYMENTS: $ 78,172.17
SECURITY DEPOSIT: $ 135,000.00
BROKERS: Insignia/ESG and CB Xxxxxxx Xxxxx/Whittier
Partners
ADDENDA: Rules and Regulations; Exhibit A (Premises);
Exhibit A-1 (Legal Description of Real
Property); Exhibit B (Construction
Addendum); Exhibit C (Environmental
Reports); Parking Plan; Right of First
Offer; Guaranty
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1. GRANTING CLAUSE. In consideration of the obligation
of Tenant to pay rent as herein provided and in consideration of the other
terms, covenants, and conditions hereof, Landlord leases to Tenant, and Tenant
leases from Landlord, the Premises, to have and to hold for the Lease Term,
subject to the terms, covenants and conditions of this Lease.
2. ACCEPTANCE OF PREMISES. (a) Except as may otherwise
be expressly provided in the Construction Addendum attached hereto, Tenant shall
accept the Premises on the Commencement Date in its "AS-IS" condition, subject
to all applicable laws, ordinances, regulations, covenants and restrictions, and
Landlord shall have no obligation to perform or pay for any repair or other work
therein. Landlord has made no representation or warranty as to the suitability
of the Premises for the conduct of Tenant's business, and Tenant waives any
implied warranty that the Premises are suitable for Tenant's intended purposes.
TENANT ACKNOWLEDGES THAT (1) IT HAS INSPECTED AND ACCEPTS THE PREMISES IN AN "AS
IS, WHERE IS" CONDITION (UNLESS OTHERWISE EXPRESSLY PROVIDED IN A CONSTRUCTION
ADDENDUM ATTACHED HERETO, IF ANY), (2) LANDLORD HAS MADE NO WARRANTY,
REPRESENTATION, COVENANT, OR AGREEMENT WITH RESPECT TO THE MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OF THE PREMISES, (3) NO REPRESENTATIONS AS TO
THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER, REMODEL OR IMPROVE THE
PREMISES HAVE BEEN MADE BY LANDLORD (UNLESS OTHERWISE EXPRESSLY PROVIDED IN A
CONSTRUCTION ADDENDUM ATTACHED HERETO, IF ANY), AND (4) THERE ARE NO
REPRESENTATIONS OR WARRANTIES, EXPRESSED, OR IMPLIED, THAT EXTEND BEYOND THE
DESCRIPTION OF THE PREMISES. Except as provided in Paragraph 10 and the
Construction Addendum, in no event shall Landlord have any obligation for any
defects in the Premises or any limitation on its use. The taking of possession
of the Premises shall be conclusive evidence that Tenant accepts the Premises
and that the Premises were in good condition at the time possession was taken
except for items that are Landlord's responsibility under Paragraph 10 and the
Construction Addendum, and any punchlist items agreed to in writing by Landlord
and Tenant.
(b) Landlord shall deliver the Premises to Tenant vacant,
broom clean, free from all contents, subject to the provision of Section 12(f),
with the demolition and removal of the spray booth, tool area and wire mesh
partition completed and all electrical and mechanical systems and services in
the warehouse portion of the Premises related to such demolition properly
terminated, and all Building systems, including but not limited to structural
elements (roof, foundation, walls, parking, etc.), interior and exterior glass,
plumbing, fire sprinkler system, sewage treatment, electrical power, interior
and exterior lighting, fire alarms, heating and cooling equipment, and all dock
doors and equipment serviced, if necessary, and in good operating condition.
Tenant shall have a period of sixty (60) days from the beginning of the
applicable equipment operational season to notify Landlord of any problems with
any of the above-listed systems.
(c) Tenant shall have a right of first offer to lease
additional space at the Project in accordance with the provisions of the Right
of First Offer exhibit attached hereto.
(d) Notwithstanding anything contained in this Lease to
the contrary, Tenant shall have a one-time right to terminate this Lease if a
building permit for the Tenant Improvements shown and described in the plans and
specifications delivered by Landlord to the Building Inspector for the Town of
Northborough on January 8, 2003 is not issued by February 7, 2003. Tenant may
exercise its right hereunder by delivering written notice of its election to
terminate this Lease to Landlord no later than February 12, 2003, unless the
building permit is issued prior to Landlord's receipt of such notification, in
which case such notification shall be of no force or effect. If Tenant fails to
notify Landlord of its election to terminate this Lease in accordance with the
foregoing provisions, Tenant's right to terminate this Lease shall be deemed
waived and of no further force or effect.
3. USE. (a) The Premises shall be used only for the
purpose of receiving, storing, shipping and selling (but limited to wholesale
sales) products, materials and merchandise made and/or distributed by Tenant and
related general office use and for such other lawful purposes as may be
incidental thereto (the "Permitted Use"); however, no retail sales may be made
from the Premises. Tenant shall not conduct or give notice of any auction,
liquidation, or going out of business sale on the Premises. Tenant will use the
Premises in a careful, safe and proper manner and will not commit waste,
overload the floor or structure of the Premises or subject the Premises to use
that would damage the Premises. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise, or vibrations to emanate from the
Premises, or take any
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other action that would constitute a nuisance or would disturb, unreasonably
interfere with, or endanger Landlord or any tenants of the Project. Except as
otherwise set forth in Section 14, outside storage, including without
limitation, storage of trucks and other vehicles, is prohibited without
Landlord's prior written consent.
(b) Tenant, at its sole expense, shall use and occupy the
Premises in compliance with all laws, including, without limitation, the
Americans With Disabilities Act, orders, judgments, ordinances, regulations,
codes, directives, permits, licenses, covenants and restrictions now or
hereafter applicable to the Premises (collectively, "Legal Requirements"). The
Premises shall not be used as a place of public accommodation under the
Americans With Disabilities Act or similar state statutes or local ordinances or
any regulations promulgated thereunder, all as may be amended from time to time.
Tenant shall, at its expense, make any alterations or modifications, within or
without the Premises, that are required by Legal Requirements related to
Tenant's specific use or occupation of the Premises. Tenant will not use or
permit the Premises to be used for any purpose or in any manner that would void
Tenant's or Landlord's insurance, increase the insurance risk, or cause the
disallowance of any sprinkler credits. If any increase in the cost of any
insurance on the Premises or the Project is caused by Tenant's use or occupation
of the Premises, or because Tenant vacates the Premises, then Tenant shall pay
the amount of such increase to Landlord. Any entrance into or occupation of the
Premises by Tenant prior to the Commencement Date shall be subject to all
obligations of Tenant under this Lease, other than the obligation to pay Rent.
(c) Tenant shall have access to the Premises from and
after the execution by both parties of this Lease, at Tenant's sole risk and
expense, for the purpose of planning, design and implementation of the Tenant's
data and telecommunication infrastructure and office space modifications
(subject to Landlord's prior approval, which shall not be unreasonably withheld,
conditioned or delayed), upon reasonable advance notice to Landlord and provided
that Tenant furnishes Landlord with a certificate of insurance evidencing
Tenant's commercial general liability insurance coverage prior to entry upon the
Property.
(d) Tenant and its employees and invitees shall have the
non-exclusive right to use, in common with others, any areas designated by
Landlord from time to time as common areas for the use and enjoyment of all
tenants and occupants of the Project including, without limitation, common
access from public streets, common driveways and the parking areas shown on the
Parking Plan attached as an exhibit hereto, subject to such reasonable rules and
regulations as Landlord may promulgate from time to time which Landlord agrees
to enforce against tenants of the Project in a non-discriminatory manner.
4. BASE RENT. Tenant shall pay Base Rent in the amount
set forth on the first page of this Lease. The first payable month's Base Rent,
the Security Deposit, and the first payable monthly installment of estimated
Operating Expenses (as hereafter defined) shall be due and payable on the date
hereof, and Tenant promises to pay to Landlord in advance, without demand,
deduction or set-off, monthly installments of Base Rent, in accordance with the
Monthly Base Rent table, on or before the first day of each calendar month
succeeding the Rent Commencement Date. Payments of Base Rent for any fractional
calendar month shall be prorated. All payments required to be made by Tenant to
Landlord hereunder shall be payable at such address as Landlord may specify from
time to time by written notice delivered in accordance herewith. Tenant shall
have no right at any time to xxxxx, reduce, or set-off any rent due hereunder
except where expressly provided in this Lease. Tenant acknowledges that late
payment by Tenant to Landlord of any rent due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of such costs being
extremely difficult and impractical to determine. Therefore, if Tenant is
delinquent in any monthly installment of Base Rent, estimated Operating Expenses
or other sums due and payable hereunder for more than five (5) days after
written notice from Landlord, provided, however, that Tenant shall be entitled
to only one (1) such written notice per calendar year and thereafter no written
notice shall be required, Tenant shall pay to Landlord on demand a late charge
equal to five percent (5%) of such delinquent sum. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as a penalty.
5. SECURITY DEPOSIT. Tenant shall pay the Security
Deposit under this Lease simultaneously with the execution and delivery of this
Lease to Landlord. The Security Deposit shall be held by Landlord as security
for the performance of Tenant's obligations under this Lease. The Security
Deposit is not an advance rental deposit or a measure of Landlord's damages in
case of Tenant's default. Upon each occurrence of an Event of Default
(hereinafter defined), Landlord may use all or part of the Security Deposit to
pay delinquent payments due under this Lease, and the cost of any damage,
injury, expense or liability caused by such Event of Default, without
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prejudice to any other remedy provided herein or provided by law. Tenant shall
pay Landlord on demand the amount that will restore the Security Deposit to its
original amount. Landlord's obligation respecting the Security Deposit is that
of a debtor, not a trustee; no interest shall accrue thereon. The Security
Deposit shall be the property of Landlord, but shall be paid to Tenant within
thirty (30) days after the expiration or earlier termination of the Lease Term,
after first deducting any amounts owed for unpaid monetary obligations or
chargeable for other unperformed obligations of Tenant under this Lease.
Landlord shall be released from any obligation with respect to the Security
Deposit upon transfer of this Lease and the Premises to a person or entity
assuming Landlord's obligations under this Lease, including this Paragraph 5.
6. OPERATING EXPENSE PAYMENTS. (a) During each month of
the Lease Term, commencing on the first day of the fourth (4th) month after the
Rent Commencement Date, on the same date that Base Rent is due, Tenant shall pay
to Landlord an amount equal to 1/12 of the annual cost, as estimated by Landlord
from time to time, of Tenant's Proportionate Share (hereinafter defined) of
Operating Expenses for the Project. Payments thereof for any fractional calendar
month shall be prorated.
(b) The term "Operating Expenses" means all costs and
expenses incurred by Landlord with respect to the ownership, maintenance, repair
and operation of the Project including, but not limited to costs of: common area
utilities; maintenance, repair and replacement of all portions of the Project
(except that Landlord is responsible for all costs and expenses for replacement
of the roof and parking areas as provided in Xxxxxxxxx 00, Xxxxxx being
responsible only for Tenant's Proportionate Share of the cost of roof and
parking area repairs), including without limitation, mowing, snow removal,
landscaping, and exterior painting; the cost of maintaining utility lines, fire
sprinklers and fire protection systems, exterior lighting and mechanical and
building systems serving the Building or Project; amounts paid to contractors
and subcontractors for work or services performed in connection with any of the
foregoing; fees payable to tax consultants and attorneys for consultation and
contesting taxes, environmental insurance or environmental management fees; the
cost of any insurance deductibles for insurance required to be maintained by
Landlord hereunder; reasonable property management fees payable to a property
manager, including any affiliate of Landlord, provided that such fees shall in
no event exceed three percent (3%) of gross revenues, or if there is no property
manager, an administration fee of fifteen percent (15%) of Operating Expenses
payable to Landlord; security services, if any; trash collection, sweeping and
removal; and additions or alterations made by Landlord to the Project or the
Building in order to comply with Legal Requirements first in effect after the
date of this Lease (other than those expressly required herein to be made by
Tenant) or to reduce Operating Expenses as reasonably determined by Landlord
provided that the cost of such additions or alterations that are required to be
capitalized for federal income tax purposes shall be amortized on a straight
line basis over a period equal to the lesser of the useful life thereof for
federal income tax purposes or ten (10) years and included in Operating Expenses
only to the extent of the amortized amount for the respective calendar year. In
addition, Operating Expenses shall include (i) Taxes (hereinafter defined) for
each calendar year during the Lease term, and (ii) the cost of premiums for
insurance maintained by Landlord for the Project for each calendar year during
the Lease term. If during any portion of the year for which Operating Expenses
are being computed, less than all of the Building was occupied by tenants, or
Landlord was not supplying all tenants with the services being supplied under
this Lease, actual Operating Expenses shall be extrapolated reasonably by
Landlord on an item by item basis to the estimated Operating Expenses that would
have been incurred if the Building were fully occupied for such Operating Year
and such services were being supplied to all tenants. In the event that Landlord
constructs an additional Building or other structure on the Project, Operating
Expenses under this Lease shall only include the portion of Project Operating
Expenses that are reasonably allocable to the Building, including, without
limitation, the Building's share of Taxes that are assessed against the entire
Project, taking into consideration the relative value of the Building and any
new building or structure constructed on the Project.
(c) Notwithstanding the foregoing, Operating Expenses do
not include
(i) Any cost or expense to the extent to which
Landlord is paid or reimbursed (other than as a payment for Operating
Expenses), including, but not necessarily limited to, (i) work or
services performed for any tenant (including Tenant) at such tenant's
cost, (ii) the cost of any item for which Landlord is paid or
reimbursed by insurance, warranties, service contracts, condemnation
proceeds or otherwise, (iii) increased insurance or taxes assessed
specifically to any tenant of the Building, (iv) charges (including
applicable taxes) for electricity, water and other utilities for which
Landlord is entitled to reimbursement from any tenant, (v) the cost of
any HVAC, janitorial or other services provided to Tenants on an
extra-cost basis after regular
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business hours, and (vi) environmental management fees incurred for
services required by Landlord's lender or because of another tenant or
for which Landlord is indemnified by other tenants or third-parties;
(ii) Salaries and bonuses of officers and
executives of Landlord and administrative employees above the grade of
property manager or building supervisor and Landlord's general
overhead;
(iii) The cost of any work or service performed on
an extra-cost basis for any tenant of the building (including Tenant);
(iv) The cost of any work or services performed
for any other property other than the Building;
(v) Interest on debt or principal amortization
payments or any other payments on any mortgage or any other payments
under any ground lease;
(vi) Any fees, costs and commissions incurred in
procuring or attempting to procure other tenants, including, but not
necessarily limited to brokerage commissions, finder's fees, attorney's
fees and expenses and entertainment cost and travel expenses and any
costs of advertising or promotion of the Building;
(vii) Any cost included in Operating Expenses
representing an amount paid to a person, firm, corporation or other
entity related to Landlord which is in excess of the amount which would
have been paid on an arms-length basis in the absence of such
relationship;
(viii) Any costs of painting or decorating of any
interior parts of the Building occupied or occupiable by tenants;
(ix) Costs, expenses, depreciation or
amortization for capital repairs and capital replacements required to
be made by Landlord under Paragraph 10 of this Lease. The cost of any
repairs or replacements which are classified as capital improvements
under generally accepted accounting principles shall be amortized with
interest over the lesser of the useful life of the improvement or ten
(10) years and included in Operating Expenses only to the extent of the
amortized amount for the respective calendar year.;
(x) Any costs necessary to cure any violation of
any law, ordinance or regulation applicable to the Building, existing
as of the commencement date of this Lease or to remediate any release
of Hazardous Materials on or about the Premises to the extent caused by
Landlord, its agents or employees or to remediate any environmental
condition existing as of the commencement date of this Lease, including
the removal of, or other steps taken with respect to, asbestos located
in the Building, unless such condition was caused by Tenant;
(xi) Depreciation of the Building or any part
thereof;
(xii) Replacement or contingency reserves or any
bad debt loss, rent loss or reserves for bad debts or rent loss;
(xiii) Expenses for renovating any tenant's
premises, including Tenant;
(xiv) Legal or other professional fees relating to
leasing, financing, tenant disputes or other services not related to
the normal maintenance, cleaning, repair or protection of the Building;
(xv) costs, expenses and fees relating to
solicitation of, advertising for and entering into leases and other
occupancy arrangements for space in the Building, including but not
limited to legal fees, space planners' fees, real estate brokers'
leasing commissions and advertising expenses;
(xvi) costs of defending any lawsuits with any
mortgagee (except as the actions of Tenant may be in issue), costs of
selling, syndicating, financing, mortgaging or hypothecating any of
Landlord's interest in the Building, costs of any disputes between
Landlord and its employees (if any) not engaged in Building operation,
disputes of Landlord with Building management, or outside fees paid in
connection with disputes with other tenants or adjacent property
owners; and
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(xvii) costs, expenses or judgments occasioned by
casualty, injury or damage, to the extent that such costs, expenses or
judgments are or are required to be covered by insurance to be
maintained by Landlord under this Lease.
(d) Landlord shall maintain books and records of
Operating Expenses for a period of two (2) years following the end of each
calendar year. Within ninety (90) days after the end of each year, Landlord
shall deliver to Tenant a year end reconciliation of Operating Expenses incurred
for such year. Within sixty (60) days following Tenant's receipt of such year
end reconciliation of Operating Expenses and upon ten (10) days' prior written
notice, so long as no Event of Default has occurred under this Lease, Tenant or
Tenant's independent certified public accountant (which accountant shall be
subject to Landlord's reasonable approval and shall not be compensated in whole
or in part on a contingency basis) shall have the right to audit Landlord's
books and records relating to the prior year's Operating Expenses at a mutually
convenient time at Landlord's local office, if one exists, or if none exists, at
Landlord's main offices. Tenant agrees to provide to Landlord copies of any and
all reports, summaries, conclusions, and other results of such audit within ten
(10) days following Tenant's receipt thereof. If the audit discloses that the
total amount invoiced to Tenant after year-end reconciliation for such year
exceeds the actual Operating Expenses and Landlord reasonably concurs with such
audit results, Landlord shall credit the amount of overpayment towards any
outstanding Base Rent, Operating Expenses or any other amounts due under this
Lease, and then to Tenant's next due payment of Operating Expenses, or if this
Lease has expired, Landlord shall promptly refund the same to Tenant. If such
audit discloses that the total amount invoiced to Tenant after year-end
reconciliation for such year is less than Tenant's Proportionate Share of
Operating Expenses, Tenant shall pay the same to Landlord within ten (10) days
after receipt of the audit results. Tenant and Tenant's accountant shall keep
the results of any such audit confidential as to all parties other than
Landlord, and shall enter into a commercially reasonable written confidentiality
agreement prior to conducting such audit at Landlord's request. For purposes of
calculating Tenant's Proportionate Share of Operating Expenses, a year shall
mean a calendar year except the first year, which shall begin on the
Commencement Date, and the last year, which shall end on the expiration of this
Lease.
(e) Tenant's "Proportionate Share" shall be the
percentage set forth on the first page of this Lease as Tenant's Proportionate
Share as reasonably adjusted by Landlord in the future for changes in the
physical size of the Premises or the Building. The estimated Operating Expenses
for the Premises set forth on the first page of this Lease are only estimates
and Landlord makes no guaranty or warranty that such estimates will be accurate.
7. UTILITIES. Tenant shall pay, commencing on the
Commencement Date, for all water, gas, electricity, heat, light, power,
telephone, sewer, sprinkler services, refuse and trash collection, and other
utilities and services used on the Premises, all maintenance charges for
utilities, and any storm sewer charges or other similar charges for utilities
imposed by any governmental entity or utility provider, together with any taxes,
penalties, surcharges or the like pertaining to Tenant's use of the Premises.
Tenant shall pay its share of all charges for jointly metered utilities based
upon consumption, as reasonably determined by Landlord without administrative
xxxx-ups. Tenant agrees to limit use of water and sewer for normal restroom use.
Tenant and Landlord acknowledge and agree that (i) a dedicated electric service
to the Premises exists that is separately metered by the electric utility
company; and Tenant shall pay for use of electricity directly to the electric
utility company; (ii) an existing gas service to the Premises will be submetered
by Landlord and Tenant shall pay to Landlord for its actual usage at the same
rate as is applicable to Landlord without administrative xxxx-ups; (iii) water
service is currently provided to the Premises and Tenant shall pay its
Proportionate Share of water usage in the Premises based upon the current use of
the Building and shall have the right to install at Tenant's expense a water
check meter; and (iv) an existing septic system is servicing the Building and
Tenant shall pay its Proportionate Share for use of the sewage treatment system
as part of Operating Expenses, but shall not be responsible for capital repairs
and hazardous waste clean-up costs of the sewage treatment system unless the
necessity for such capital repairs and hazardous waste clean-up costs is caused
by Tenant. No interruption or failure of utilities shall result in the
termination of this Lease or the abatement of rent; provided, however, that if
the interruption or cessation of utilities occurs or continues as a result of
the negligence or wrongful conduct of the Landlord or Landlord's agents,
servants, employees or contractors and the Premises are not usable by Tenant for
the conduct of Tenant's business as a result thereof, Base Rent and applicable
Operating Expenses shall be abated for the period which commences five (5)
business days after the date Tenant gives to Landlord written notice of such
interruption until such time as the utilities required for the conduct of
Tenant's business are restored provided, however, that if any part of the
Premises is reasonably useable for Tenant's normal business operations or if
Tenant conducts all or any part of its operations in any portion of the Premises
notwithstanding such interruption, then the
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amount of each daily abatement of Base Rent and applicable Operating Expenses
shall only be proportionate to the nature and extent of the interruption of
Tenant's normal operations or ability to use the Premises.
8. TAXES. Landlord shall pay all taxes, assessments and
governmental charges (collectively referred to as "Taxes") that either (a)
accrue against the Project during the Lease Term if such Taxes are payable in
advance, or (b) are assessed against the Project during the Lease Term if such
Taxes are payable in arrears, provided that if Landlord shall construct another
building or structure on the Project, taxes, assessments and governmental
charges under this Lease shall be limited to the amounts reasonably allocable to
the Building. Taxes shall be included as part of the Operating Expenses charged
to Tenant pursuant to Paragraph 6 hereof during each year of the Lease Term,
based upon Landlord's reasonable estimate of the amount of Taxes, and shall be
subject to reconciliation and adjustment pursuant to Paragraph 6 once the actual
amount of Taxes is known. Landlord may contest by appropriate legal proceedings
the amount, validity, or application of any Taxes or liens thereof and any costs
incurred in the successful prosecution of such contest may be included as part
of Taxes. All capital levies or other taxes assessed or imposed on Landlord upon
the rents payable to Landlord under this Lease and any franchise, excise,
transaction, sales or privilege tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents from the Premises and/or the Project
or any portion thereof shall be included as part of the Operating Expenses
charged to Tenant pursuant to Paragraph 6 hereof during each year of the Lease
Term, based upon Landlord's reasonable estimate of the amount of such taxes,
assessments, levies or charges and shall be subject to reconciliation and
adjustment pursuant to Paragraph 6 once the actual amount of such taxes,
assessments, levies or charges is known; provided, however, in no event shall
Tenant be liable for any net income taxes imposed on Landlord unless such net
income taxes are in substitution for any Taxes payable hereunder. If any such
tax or excise is levied or assessed directly against Tenant, then Tenant shall
be responsible for and shall pay the same at such times and in such manner as
the taxing authority shall require. Tenant shall be liable for all taxes levied
or assessed against any personal property or fixtures placed in the Premises,
whether levied or assessed against Landlord or Tenant, and if any such taxes are
levied or assessed against Landlord or Landlord's property and (a) Landlord pays
them or (b) the assessed value of Landlord's property is increased thereby and
Landlord pays the increased taxes, then Tenant shall pay to Landlord such taxes
within thirty (30) days after Landlord's request therefor.
9. INSURANCE. (a) Landlord shall maintain all risk
property insurance covering the full replacement cost of the Building (excluding
foundations), less a commercially reasonable deductible if Landlord so chooses
and commercial general liability insurance in commercially reasonable amounts,
but in no event less than the amounts required to be carried by Tenant
hereunder. Landlord may, but is not obligated to, maintain such other insurance
and additional coverages as it may deem necessary, including, but not limited
to, flood insurance, and rent loss insurance. All such insurance shall be
included as part of the Operating Expenses charged to Tenant pursuant to
Paragraph 6 hereof. The Project or Building may be included in a blanket policy
(in which case the cost of such insurance allocable to the Project or Building
will be determined by Landlord based upon the insurer's cost calculations).
Tenant shall also reimburse Landlord for any increased premiums or additional
insurance which Landlord reasonably deems necessary as a result of Tenant's use
of the Premises provided that Landlord's insurer specifically identifies
Tenant's operations in the Premises as the cause of such increased premiums or
additional insurance.
(b) Effective as of the earlier of: (1) the date Tenant
enters or occupies the Premises; or (2) the Commencement Date, and continuing
during the Lease Term, Tenant, at its expense, shall obtain and maintain in full
force the following insurance coverage: (i) all risk property insurance covering
the full replacement cost of all personal property and removable trade fixtures
installed or placed in the Premises by Tenant or for Tenant's benefit; (ii)
worker's compensation insurance with no less than the minimum limits required by
law; (iii) employer's liability insurance with such limits as required by law;
and (iv) commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $2,000,000, for a total minimum
combined general liability and umbrella limit of $3,000,000 for property damage,
personal injuries, or deaths of persons occurring in or about the Premises.
Landlord may from time to time require reasonable increases in any such limits
so as to maintain similar coverage to that customarily maintained by prudent
owners of comparable properties. The commercial liability policies shall name
Landlord and Landlord's agents as additional insureds, insure on an occurrence
and not a claims-made basis, be issued by insurance companies which are
reasonably acceptable to Landlord, not be cancelable unless thirty (30) days
prior written notice shall have been given to Landlord, and contain a
contractual liability endorsement. Any policy issued to Landlord providing
duplicate or similar coverage shall be deemed excess over Tenant's policies.
Such certificates
8
evidencing coverage shall be delivered to Landlord by Tenant at least ten (10)
days prior to the Commencement Date and at least fifteen (15) days prior to each
renewal of said insurance, provided, however, that at Landlord's request, Tenant
shall provide copies of the policies evidencing the coverage required herein. If
Tenant fails to comply with the foregoing insurance requirements or to deliver
to Landlord certificates evidencing the coverage required herein, Landlord, in
addition to any remedy available pursuant to this Lease or otherwise, may, but
shall not be obligated to, obtain such insurance and Tenant shall pay to
Landlord on demand the premium costs thereof, plus an administrative fee of
fifteen percent (15%) of the cost.
(c) The all risk property insurance obtained by Landlord
and Tenant shall include a waiver of subrogation by the insurers and all rights
based upon an assignment from its insured, against Landlord or Tenant, their
officers, directors, employees, managers, agents, invitees and contractors, in
connection with any loss or damage thereby insured against. The failure of a
party to insure its property shall not void this waiver. Notwithstanding
anything to the contrary contained herein, Tenant hereby waives any claims
against Landlord, and its officers, directors, employees, managers, agents,
invitees and contractors for any loss or damage insured against or required to
be insured against hereunder (whether by self-insurance or otherwise),
regardless of whether the negligence or fault of Landlord caused such loss.
Landlord hereby waives any claims against Tenant, and its officers, directors,
employees, managers, agents, invitees and contractors for any loss or damage
insured against or required to be insured against hereunder to the extent
insurance proceeds are received therefor, regardless of whether the negligence
or fault of Tenant caused such loss; however, Landlord's waiver shall not apply
to any deductible amounts maintained by Landlord under its insurance.
10. LANDLORD'S REPAIRS. This Lease is intended to be a
net lease; accordingly, Landlord's maintenance and repair obligations are
limited to the costs and expenses for replacement of the Building's roof and
parking areas and maintenance of the foundation piers and structural members of
the exterior walls, reasonable wear and tear and uninsured losses and damages
caused by Tenant, its agents, employees and contractors excluded. The term
"walls" as used in this Paragraph 10 shall not include windows, glass or plate
glass, doors or overhead doors, special store fronts, dock bumpers, dock plates
or levelers, or office entries, all of which shall be maintained by Tenant.
Tenant shall promptly give Landlord written notice of any repair required by
Landlord pursuant to this Paragraph 10, after which Landlord shall have a
reasonable opportunity to repair such item. Landlord shall also maintain in good
repair and condition the parking areas and other common areas of the Building
and the Project, including, but not limited to common utilities located outside
of the Premises, driveways, alleys, landscape and grounds surrounding the
Premises, the cost of such maintenance and repair to be paid in accordance with
Paragraph 6 hereof.
11. TENANT'S REPAIRS. (a) Subject to Landlord's
obligation in this Lease, Tenant, at its sole expense, shall repair, replace and
maintain in good condition all portions of the Premises and all areas,
improvements and systems exclusively serving the Premises including, without
limitation, dock, dock equipment and loading areas, dock doors, plumbing, water,
and sewer lines located in the Premises, doors, ceilings, windows, interior
walls, and the interior side of demising walls, and heating, ventilation and air
conditioning systems, and other building and mechanical systems exclusively
serving the Premises. Such repair and replacements include capital expenditures
and repairs whose benefit may extend beyond the Term, provided, however, if
during the last two (2) years of the initial Lease Term, Tenant is required to
replace the HVAC system or mechanical and building systems exclusively serving
the Premises and such system has a useful life according to generally accepted
accounting standards that will extend beyond the term of this Lease, Landlord
shall reimburse Tenant within thirty (30) days after the date that Tenant
delivers to Landlord the certificate required under subsection (c) of this
Section 11 a fraction of Tenant's actual out-of-pocket costs of such system
replacement, the numerator of which shall equal the estimated useful life (in
years) of such system less the number of years remaining in the Lease Term
(including the Extension Term if applicable) subsequent to the installation of
such system, and the denominator of which shall be the estimated useful life (in
years) of such system. Maintenance and repair of the heating, ventilation and
air conditioning systems and other mechanical and building systems serving the
Premises, and any repairs to the roof, shall be at Tenant's expense pursuant to
maintenance service contracts entered into by Tenant. The scope of services and
contractors under such maintenance contracts shall be subject to Landlord's
prior written approval which shall not be unreasonably withheld or delayed.
(b) In the event that any repair or maintenance
obligation required to be performed by Tenant hereunder may affect the
structural integrity of the Building (e.g., roof, foundation, structural members
of the exterior walls), prior to commencing any such repair, Tenant shall
provide Landlord with written notice of the necessary repair or maintenance and
a brief
9
summary of the structural component or components of the Building that may be
affected by such repair or maintenance. Within ten (10) business days after
Landlord's receipt of Tenant's written notice, Landlord shall have the right,
but not the obligation, to elect to cause such repair or maintenance to be
performed by Landlord, or a contractor selected and engaged by Landlord, but at
Tenant's sole cost and expense. The foregoing sentence is not intended to
obligate Tenant to pay for repairs or maintenance to those structural items
which are Landlord's responsibility pursuant to Paragraph 10 above, but shall
only require Tenant to pay for the repair and maintenance to such structural
components to the extent such repair or maintenance is necessitated due to the
performance of Tenant's repair and maintenance obligations pursuant to this
Paragraph 11.
(c) Within the fifteen (15) day period prior to the
expiration or termination of this Lease, Tenant shall deliver to Landlord a
certificate from an engineer reasonably acceptable to Landlord certifying that
the hot water equipment and the HVAC system are then in good repair and working
order excepting reasonable wear and tear.
(d) If Tenant fails to perform any repair or replacement
for which it is responsible, Landlord may perform such work and be reimbursed by
Tenant within twenty (20) days after demand therefor. Subject to Paragraphs 9
and 15, Tenant shall bear the full cost of any repair or replacement to any part
of the Building or Project that results from damage caused by Tenant, its
agents, contractors, or invitees and any repair that benefits only the Premises.
12. TENANT-MADE ALTERATIONS AND TRADE FIXTURES. (a) Any
alterations, additions, or improvements made by or on behalf of Tenant to the
Premises ("Tenant-Made Alterations") shall be subject to Landlord's prior
written consent, which shall not be unreasonably withheld or delayed, and shall
be made at Tenant's sole cost and expense. Tenant shall cause, at its expense,
all Tenant-Made Alterations to comply with insurance requirements and with Legal
Requirements and shall construct at its expense any alteration or modification
required by Legal Requirements as a result of any Tenant-Made Alterations.
Landlord shall provide to Tenant all specifications and CAD drawings in
Landlord's possession for the Building and the Premises, the existing fire alarm
and fire sprinkler system, and the card access, HVAC and electrical systems.
Notwithstanding the foregoing, Tenant may make non-structural, interior
Tenant-Made Alterations without Landlord's consent provided (i) Tenant provides
written notice to Landlord prior to the commencement of such non-structural,
interior Tenant-Made Alterations; (ii) the aggregate cost of all Tenant-Made
Alterations does not exceed $25,000.00 for any twelve (12) month period; and
(iii) Tenant secures all permits, licenses and approvals required to construct
and/or install such Tenant-Made Alterations and provides to Landlord a copy of
the same. Tenant shall not have the right, without Landlord's prior written
consent, which shall not be unreasonably withheld or delayed, to make any
Tenant-Made Alterations that (x) affect the structural components or exterior of
the Building (including without limitation, roof membrane, the dock and loading
areas, truck doors, entry doors or windows), or the mechanical, plumbing or
building systems of the Building, or (y) are visible from outside the Premises
or Building.
(b) All Tenant-Made Alterations shall be constructed in a
good and workmanlike manner by contractors reasonably acceptable to Landlord and
only good grades of materials shall be used. All plans and specifications for
any Tenant-Made Alterations shall be submitted to Landlord for its approval,
which shall not be unreasonably withheld or delayed. Landlord may monitor
construction of the Tenant-Made Alterations. Tenant shall reimburse Landlord for
its actual, reasonable third-party costs in reviewing plans and specifications
and in monitoring construction not to exceed $2,000.00. Landlord's right to
review plans and specifications and to monitor construction shall be solely for
its own benefit, and Landlord shall have no duty to see that such plans and
specifications or construction comply with applicable laws, codes, rules and
regulations.
(c) Tenant shall provide Landlord with the identities and
mailing addresses of all persons performing work or supplying materials, prior
to beginning such construction, and Landlord may post on and about the Premises
notices of non-responsibility pursuant to applicable law. Tenant shall furnish
security or make other arrangements reasonably satisfactory to Landlord to
assure payment for the completion of all work free and clear of liens (it being
agreed by Landlord that Tenant obtaining lien waivers from all contractors
engaged by Tenant to perform Tenant's initial fit-out and racking work shall
satisfy this requirement) and provide certificates of insurance for worker's
compensation and other coverage in amounts and from an insurance company
satisfactory to Landlord protecting Landlord against liability for personal
injury or property damage during construction. Upon completion of any
Tenant-Made Alterations, Tenant shall deliver to Landlord sworn statements
setting forth the names of all contractors and subcontractors who did work on
the Tenant-Made Alterations and final lien waivers from all such contractors and
subcontractors.
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(d) Upon surrender of the Premises, all Tenant-Made
Alterations and any leasehold improvements constructed by Landlord or Tenant
shall remain on the Premises as Landlord's property, except to the extent
Landlord requires removal at Tenant's expense of any such items or Landlord and
Tenant have otherwise agreed in writing in connection with Landlord's consent to
any Tenant-Made Alterations. Prior to the expiration or termination of this
Lease, Tenant, at its sole expense, shall repair any and all damage caused by
such removal.
(e) Tenant, at its own cost and expense and without
Landlord's prior approval, may erect such racks, shelves, bins, machinery and
trade fixtures (collectively "Trade Fixtures") in the ordinary course of its
business provided that such items do not alter the basic character of the
Premises, do not overload or damage the Premises, and may be removed without
injury to the Premises, and the construction, erection, and installation thereof
complies with all Legal Requirements and with Landlord's requirements set forth
above. Prior to the expiration or termination of this Lease, Tenant, at its sole
expense, shall remove its Trade Fixtures and shall repair any and all damage
caused by such removal.
(f) Landlord shall allow Tenant to use the card access
system hardware, fiber, CATS and CAT3 data and voice wiring and associated patch
panels and plate, HVAC equipment and controls, fire alarm, PA system and the
built-in reception area furniture currently on the Premises, in their "as is"
condition, at no additional cost to Tenant, provided, however, that Tenant's
right to use the existing furniture, furnishings, the existing telephone system
(switch, telephone sets, etc.) and card access system software is subject to the
Trustee's rights under the involuntary bankruptcy filing against Folio, Inc.
filed in United States Bankruptcy Court, Worcester, Massachusetts Docket Number
02-47640 to claim and remove such items. Tenant acknowledges and agrees that
Landlord has made no representations or warranties of any kind whatsoever with
respect to the condition or fitness for any particular purpose of such fixtures,
furniture and equipment and that Tenant, and not Landlord, shall be responsible
at Tenant's sole cost and expense for any repairs or maintenance required in
connection therewith.
13. SIGNS. All signs, decorations, advertising media,
blinds, draperies and other window treatment or bars or other security
installations visible from outside the Premises shall be subject to Landlord's
prior written approval and shall conform in all respects to Landlord's
requirements. Tenant shall not make any changes to the exterior of the Premises,
install any exterior lights, decorations, balloons, flags, pennants, banners, or
painting, or erect or install any signs, windows or door lettering, placards,
decorations, or advertising media of any type which can be viewed from the
exterior of the Premises, without Landlord's prior written consent which shall
not be unreasonably withheld or delayed. Landlord shall not be required to
notify Tenant of whether it consents to any sign until it (a) has received
detailed, to-scale drawings thereof specifying design, material composition,
color scheme, and method of installation, and (b) has had a reasonable
opportunity to review them. Upon surrender or vacation of the Premises, Tenant
shall have removed Tenant's signs and repair, paint, and/or replace the building
facia surface to which its signs are attached. Tenant shall obtain all
applicable governmental permits and approvals for sign and exterior treatments.
Notwithstanding the foregoing, Landlord shall remove all of the previous
tenant's existing signage prior to the Commencement Date and Tenant shall be
permitted to install new signs on the existing exterior sign mount and on the
exterior of the Premises subject to the requirements hereunder and under the
Town of Northborough By-Laws.
14. PARKING. Tenant shall be entitled to park
automobiles, and trailers overnight in the designated areas for trailer parking,
in common with other tenants of the Project in those areas designated for
nonreserved parking; provided, however, that Landlord will designate ten (10)
parking spaces in proximity with the Premises' entrance as "visitor parking
spaces", all as shown on the Parking Plan attached hereto. Landlord may allocate
parking spaces among Tenant and other tenants in the Project at Landlord's
reasonable discretion. Landlord shall not be responsible for enforcing Tenant's
parking rights against any third parties.
15. RESTORATION. (a) If at any time during the Lease Term
the Premises are damaged by a fire or other casualty, Landlord shall notify
Tenant within thirty (30) days after such damage as to the amount of time
Landlord reasonably estimates it will take to restore the Premises. If the
restoration time is estimated to exceed 180 days from the date Landlord receives
all permits, approvals, and licenses required to begin reconstruction, either
Landlord or Tenant may elect to terminate this Lease upon notice to the other
party given no later than thirty (30) days after Landlord's notice. If neither
party elects to terminate this Lease or if Landlord estimates that restoration
will take 180 days or less, then, subject to receipt of sufficient insurance
proceeds, Landlord shall promptly restore the Premises excluding Tenant's
personal property and trade fixtures, subject to delays arising from the
collection of insurance proceeds or from Force Majeure
11
events provided, however if, despite Landlord's reasonable efforts, such repairs
are not actually completed within one hundred eighty (180) days from
commencement of the repairs, then Landlord shall use commercially reasonable
efforts to relocate or find replacement space for the tenant in the Project
until such repairs are completed, but if Landlord is unable to do so within such
one hundred eighty (180) day period, then Tenant shall have the right to
terminate this Lease within 30 days after the expiration of such one hundred
eighty (180) day period. Tenant at Tenant's expense shall promptly perform after
completion of Landlord's restoration and delivery of the Premises to Tenant,
subject to delays arising from the collection of insurance proceeds, or from
Force Majeure events, all repairs or restoration not required to be done by
Landlord and shall promptly re-enter the Premises and commence doing business in
accordance with this Lease. Notwithstanding the foregoing, either party may
terminate this Lease upon thirty (30) days written notice to the other if the
Premises are damaged during the last year of the Lease Term and Landlord
reasonably estimates that it will take more than thirty (30) days to repair such
damage.
(b) If the Premises are destroyed or substantially
damaged by any peril not covered by the insurance required to be maintained by
Landlord or any Landlord's mortgagee requires that insurance proceeds be applied
to the indebtedness secured by its mortgage (defined hereinafter), Landlord may
terminate this Lease by delivering written notice of termination to Tenant
within thirty (30) days after such destruction or damage or such requirement is
made known by any such Landlord's mortgagee, as applicable, whereupon all rights
and obligations hereunder shall cease and terminate, except for any liabilities
of Tenant which accrued prior to Lease termination.
(c) If such damage or destruction is caused by the act(s)
or omission(s) of Tenant, its employees, agents or contractors, Tenant shall pay
to Landlord with respect to any damage to the Premises and/or Project the amount
of the commercially reasonable deductible under Landlord's insurance policy
within ten (10) days after presentment of Landlord's invoice. Base Rent and
Operating Expenses shall be abated for the period of repair and restoration in
the proportion which the area of the Premises, if any, which is not usable by
Tenant bears to the total area of the Premises. Such abatement shall be the sole
remedy of Tenant, and except as provided herein, Tenant waives any right to
terminate the Lease by reason of damage or casualty loss.
16. CONDEMNATION. If any part of the Premises or the
Project should be taken for any public or quasi-public use under governmental
law, ordinance, or regulation, or by right of eminent domain, or by private
purchase in lieu thereof (a "Taking" or "Taken"), and (a) the Taking would
prevent or materially interfere with Tenant's use of the Premises, (b) in
Landlord's judgment would materially interfere with or impair its ownership or
operation of the Project or (c) as a result of such Taking, Landlord's mortgagee
accelerates the payment of any indebtedness securing all or a portion of the
Project, then upon written notice by Landlord this Lease shall terminate and
Base Rent shall be apportioned as of said date. If part of the Premises shall be
Taken, and this Lease is not terminated as provided above, the Base Rent payable
hereunder during the unexpired Lease Term shall be reduced to such extent as may
be fair and reasonable under the circumstances, and Landlord shall restore the
Premises to its condition prior to the Taking; provided, however, Landlord's
obligation to so restore the Premises shall be limited to the award Landlord
receives in respect of such Taking that is not required to be applied to the
indebtedness secured by a mortgage. In the event of any such Taking, Landlord
shall be entitled to receive the entire price or award from any such Taking
without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant's
interest, if any, in such award. Tenant shall have the right, to the extent that
same shall not diminish Landlord's award, to make a separate claim against the
condemning authority (but not Landlord) for such compensation as may be
separately awarded or recoverable by Tenant for moving expenses and damage to
Tenant's Trade Fixtures, if a separate award for such items is made to Tenant.
17. ASSIGNMENT AND SUBLETTING. (a) Without Landlord's
prior written consent, which shall not be unreasonably withheld or delayed,
Tenant shall not assign this Lease or sublease the Premises or any part thereof
or mortgage, pledge, or hypothecate its leasehold interest or grant any
concession or license within the Premises (each being a "Transfer") and any
attempt to do any of the foregoing shall be void and of no effect. For purposes
of this Paragraph 17, a transfer of more than fifty percent (50%) of the
ownership interests of Tenant shall be deemed a Transfer of this Lease unless
such ownership interests are publicly traded. Notwithstanding the above, Tenant
may assign or sublet the Premises, or any part thereof, to any entity
controlling Tenant, controlled by Tenant or under common control with Tenant (a
"Tenant Affiliate"), without the prior written consent of Landlord; provided,
however, Tenant shall provide at least ten (10) days written notice prior to
assigning this Lease to, or entering into any sublease with, any Tenant
Affiliate. Tenant shall reimburse Landlord for all of Landlord's reasonable
out-of-pocket expenses in connection with any Transfer, other than to a Tenant
Affiliate. Upon Landlord's receipt of Tenant's written
12
notice of a desire to assign this Lease or sublet more than fifty percent (50%)
of the Premises (other than to a Tenant Affiliate), Landlord may, by giving
written notice to Tenant within thirty (30) days after receipt of Tenant's
notice, terminate this Lease with respect to the space described in Tenant's
notice, as of the date specified in Tenant's notice for the commencement of the
proposed assignment or sublease. Landlord agrees not to unreasonably withhold or
condition its consent to a proposed assignment of this Lease or subletting of
the Premises to a party which (i) is, in the reasonable judgment of Landlord, of
a character or reputation or is engaged in a business which would not be harmful
to the image and reputation of the Project and can reasonably be expected to
perform the obligations of "Tenant" hereunder; (ii) will not use the Premises in
a manner that would conflict with any exclusive use agreement or other similar
agreement entered into by Landlord with any other tenant of the Project; and
(iii) proposes to use the Premises so as to not materially increase the
pedestrian or vehicular traffic to the Premises or the Project. Without limiting
the foregoing, Landlord may withhold its consent (and it shall not be deemed
unreasonable), to any such assignment or subletting of the Premises to any party
(A) which is a governmental entity (or subdivision or agency thereof), (B) would
use the Premises, in whole or in part, for other than Tenant's permitted use
hereunder, (C) which is a prospective tenant that has delivered to, or received
from, Landlord a written proposal to lease space in the Project before Tenant or
its agent contacts such party, (D) which is an occupant of the Project or
another project owned by Landlord at the time of such request and Landlord has
space available to lease in the Project or in another project owned by Landlord,
or (E) which intends to use, store, or generate any Hazardous Materials in, on
or about the Premises. Landlord's agreement not to unreasonably withhold its
consent to a sublease shall apply only to the first sublease under this Lease,
and Landlord may withhold its consent in its sole discretion to any further or
subsequent sublease by any subtenant.
Provided no Event of Default has occurred under this Lease, Tenant may,
without Landlord's prior written consent, but with at least fifteen (15) days
prior written notice to Landlord, assign this Lease to an entity into which
Tenant is merged or consolidated or to an entity to which substantially all of
Tenant's assets are transferred or a controlling share of Tenant's stock is
transferred, provided (x) such merger, consolidation, or transfer of assets or
stock is for a good business purpose and not principally for the purpose of
transferring Tenant's leasehold estate, and (y) the assignment or successor
entity has a net worth calculated according to generally accepted accounting
principles at least equal to the net worth of Tenant immediately prior to such
merger, consolidation, or transfer.
(b) Notwithstanding any Transfer, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at all times
remain fully responsible and liable for the payment of the rent and for
compliance with all of Tenant's other obligations under this Lease (regardless
of whether Landlord's approval has been obtained for any such Transfer). In the
event that the rent due and payable by a sublessee or assignee (or a combination
of the rental payable under such sublease or assignment plus any bonus or other
consideration therefor or incident thereto) exceeds the rental payable under
this Lease after first deducting Tenant's expenses to obtain such assignment or
sublease, then Tenant shall be bound and obligated to pay Landlord as additional
rent hereunder fifty percent (50%) of such excess rental and other excess
consideration within thirty (30) days following receipt thereof by Tenant.
(c) If this Lease is assigned or if the Premises is
subleased (whether in whole or in part) or in the event of the mortgage, pledge,
or hypothecation of Tenant's leasehold interest or grant of any concession or
license within the Premises or if the Premises be occupied in whole or in part
by anyone other than Tenant, then upon a default by Tenant hereunder Landlord
may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom
the leasehold interest was hypothecated, concessionee or licensee or other
occupant and, except to the extent set forth in the preceding subparagraph,
apply the amount collected to the next rent payable hereunder; and all such
rentals collected by Tenant shall be held in trust for Landlord and immediately
forwarded to Landlord. No such transaction or collection of rent or application
thereof by Landlord, however, shall be deemed a waiver of these provisions or a
release of Tenant from the further performance by Tenant of its covenants,
duties, or obligations hereunder. Any approved assignment or sublease shall be
expressly subject to the terms and conditions of this Lease. Landlord's consent
to any Transfer shall not waive Landlord's rights as to any subsequent
Transfers.
18. INDEMNIFICATION. (a) Tenant agrees to indemnify,
defend (with counsel reasonably acceptable to Landlord) and hold harmless
Landlord, and Landlord's agents, employees and contractors, from and against any
and all claims, demands, losses, liabilities, causes of action, suits,
judgments, damages, costs and expenses (including attorneys' fees) arising from
any occurrence on the Premises, the use and occupancy of the Premises, or from
any activity, work, or thing done, permitted or suffered by Tenant in or about
the Premises or due to any other
13
act or omission of Tenant, its subtenants, assignees, invitees, employees,
contractors and agents, or from Tenant's failure to perform its obligations
under this Lease (other than any loss arising from the sole or gross negligence
or willful misconduct of Landlord or its agents), EVEN THOUGH CAUSED OR ALLEGED
TO BE CAUSED BY THE JOINT, COMPARATIVE, OR CONCURRENT NEGLIGENCE OR FAULT OF
LANDLORD OR ITS AGENTS, AND EVEN THOUGH ANY SUCH CLAIM, CAUSE OF ACTION, OR SUIT
IS BASED UPON OR ALLEGED TO BE BASED UPON THE STRICT LIABILITY OF LANDLORD OR
ITS AGENTS. THIS INDEMNITY PROVISION IS INTENDED TO THE EXTENT PERMITTED BY
APPLICABLE LAW TO INDEMNIFY LANDLORD AND ITS AGENTS AGAINST THE CONSEQUENCES OF
THEIR OWN NEGLIGENCE OR FAULT AS PROVIDED ABOVE WHEN LANDLORD OR ITS AGENTS ARE
JOINTLY, COMPARATIVELY, OR CONCURRENTLY NEGLIGENT WITH TENANT. This indemnity
provision shall survive termination or expiration of this Lease. The furnishing
of insurance required hereunder shall not be deemed to limit Tenant's
obligations under this Paragraph 18.
(b) Landlord agrees to indemnify, defend and hold
harmless Tenant, and Tenant's agents, employees and contractors, from and
against any and all claims, demands, losses, liabilities, causes of action,
suits, judgments, damages, costs and expenses (including reasonable attorneys'
fees) resulting from claims by third parties for injuries to any person and
damage to or loss of property occurring in or about the Project and arising
solely from the negligence or intentional misconduct of Landlord, its employees,
contractors, or agents.
This indemnity provision shall survive termination or expiration of this Lease.
The furnishing of insurance required hereunder shall not be deemed to limit
Landlord's obligations under this Paragraph 18.
19. INSPECTION AND ACCESS. Landlord and its agents,
representatives, and contractors may enter the Premises at any reasonable time
upon reasonable prior notice to inspect the Premises and to make such repairs as
may be required or permitted pursuant to this Lease and for any other business
purpose. Landlord and Landlord's representatives may enter the Premises upon
reasonable prior notice during business hours for the purpose of showing the
Premises to prospective purchasers or, during the last nine (9) months of the
Lease Term, to prospective tenants. Landlord may erect a suitable sign on the
Project stating that the Project is available for sale. During the last nine (9)
months of the Lease Term, Landlord may erect a suitable sign on the Project
stating the Premises are available to let, but only in the location designated
for such a sign on the Parking Plan attached hereto. Landlord may grant
easements, make public dedications, designate common areas and create
restrictions on or about the Premises, provided that no such easement,
dedication, designation or restriction interferes with Tenant's use or occupancy
of the Premises. At Landlord's request, Tenant shall execute such instruments as
may be necessary for such easements, dedications or restrictions.
20. QUIET ENJOYMENT. If Tenant shall perform all of the
covenants and agreements herein required to be performed by Tenant, Tenant
shall, subject to the terms of this Lease, at all times during the Lease Term,
have peaceful and quiet enjoyment of the Premises against any person claiming
by, through or under Landlord, but not otherwise.
21. SURRENDER. No act by Landlord shall be an acceptance
of a surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless it is in writing and signed by Landlord. Upon
termination of the Lease Term or earlier termination of Tenant's right of
possession, Tenant shall surrender the Premises to Landlord in the same
condition as received, broom clean, ordinary wear and tear and casualty loss and
condemnation covered by Paragraphs 15 and 16 excepted. Any trade fixtures, and
personal property not so removed by Tenant as permitted or required herein shall
be deemed abandoned and may be stored, removed, and disposed of by Landlord at
Tenant's expense, and Tenant waives all claims against Landlord for any damages
resulting from Landlord's retention and disposition of such property. All
obligations of Tenant hereunder not fully performed as of the termination of the
Lease Term shall survive the termination of the Lease Term, including without
limitation, indemnity obligations, payment obligations with respect to Operating
Expenses and all obligations concerning the condition and repair of the
Premises.
22. HOLDING OVER. If Tenant fails to vacate the Premises
after the termination of the Lease Term, Tenant shall be a tenant at will or at
sufferance, and Tenant shall pay, in addition to any other rent or other sums
then due Landlord, a daily base rental equal to 150% of the Base Rent in effect
on the expiration or termination date. Tenant shall also be liable for all
Operating Expenses incurred during such holdover period. In addition, Tenant
shall be liable for all damages (including attorneys' fees and expenses) of
whatever type (including consequential damages) incurred by Landlord as a result
of such holding over. No holding over by Tenant,
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whether with or without consent of Landlord, shall operate to extend this Lease
except as otherwise expressly provided, and this Paragraph 22 shall not be
construed as consent for Tenant to retain possession of the Premises.
23. EVENTS OF DEFAULT. Each of the following events shall
be an event of default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any installment of Base Rent
or any other payment required herein when due, and such failure shall continue
for a period of five (5) days or more after Landlord has given written notice to
Tenant that such payment is past due, provided that such notice from Landlord
shall be in lieu of, and not in addition to, any notice of default required by
applicable law; and provided, further, Landlord shall be obligated to give only
two (2) such notices per twelve (12) month period, with subsequent payment
default to be an Event of Default if such failure to pay shall continue for a
period of five (5) days or more from the date such payment is due (without any
notice).
(ii) Tenant or any guarantor or surety of Tenant's
obligations hereunder shall (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to have an
order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property (collectively a
"proceeding for relief"); (C) become the subject of any proceeding for relief
which is not dismissed within sixty (60) days of its filing or entry; or (D) die
or suffer a legal disability (if Tenant, guarantor, or surety is an individual)
or be dissolved or otherwise fail to maintain its legal existence (if Tenant,
guarantor or surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant
pursuant to this Lease shall be cancelled or terminated or shall expire or shall
be reduced or materially changed, except, in each case, as permitted in this
Lease.
(iv) There shall occur any assignment, subleasing or other
transfer of Tenant's interest in or with respect to this Lease except as
otherwise permitted in this Lease.
(v) Tenant shall fail to discharge or bond over any lien
placed upon the Premises in violation of this Lease within thirty (30) days
after any such lien or encumbrance is filed against the Premises.
(vi) Tenant shall fail to execute any instrument of
subordination or attornment or any estoppel certificate within the time periods
set forth in Paragraphs 27 and 29 respectively following Landlord's request for
the same.
(vii) Tenant shall breach any of the requirements of
Paragraph 30 and such failure shall continue for a period of five (5) days or
more after notice from Landlord to Tenant unless such default is not reasonably
susceptible of cure within five (5) days, then after such period of time as is
reasonably necessary to cure such default, not to exceed ninety (90) days so
long as Tenant promptly commences such cure within said five (5) day period and
diligently prosecutes the same to completion.
(viii) Tenant shall fail to comply with any provision of
this Lease other than those specifically referred to in this Paragraph 23, and
except as otherwise expressly provided herein, such default shall continue for
more than thirty (30) days after Landlord shall have given Tenant written notice
of such default, unless such default is not reasonably susceptible of cure
within thirty (30) days, then after such period of time as is reasonably
necessary to cure such default, not to exceed ninety (90) days so long as Tenant
promptly commences such cure within said thirty (30) day period and diligently
prosecutes the same to completion.
24. LANDLORD'S REMEDIES. (a) Upon each occurrence of an
Event of Default and so long as such Event of Default shall be continuing,
Landlord may at any time thereafter at its election: terminate this Lease or
Tenant's right of possession, (but Tenant shall remain liable as hereinafter
provided) and/or pursue any other remedies at law or in equity. Upon the
termination of this Lease or termination of Tenant's right of possession, it
shall be lawful for
15
Landlord, without formal demand or notice of any kind, to re-enter the Premises
by summary dispossession proceedings or any other action or proceeding
authorized by law and to remove Tenant and all persons and property therefrom.
If Landlord re-enters the Premises, Landlord shall have the right to keep in
place and use, or remove and store, all of the furniture, fixtures and equipment
at the Premises.
(b) If Landlord terminates this Lease, Landlord may
recover from Tenant the sum of: all Base Rent and all other amounts accrued
hereunder to the date of such termination; the cost of reletting the whole or
any part of the Premises, including without limitation brokerage fees and/or
leasing commissions incurred by Landlord, and costs of removing and storing
Tenant's or any other occupant's property, repairing, altering, remodeling, or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants, and all reasonable expenses incurred by Landlord in pursuing its
remedies, including reasonable attorneys' fees and court costs; and an amount in
cash equal to the then present value of the Base Rent and other amounts payable
by Tenant under this Lease as would otherwise have been required to be paid by
Tenant to Landlord during the period following the termination of this Lease
measured from the date of such termination to the expiration date stated in this
Lease less the then present value of the fair net rental value of the Premises
for the same period taking all market factors into account, including vacancy
rates. Such present value shall be calculated at a discount rate equal to the
90-day U.S. Treasury xxxx rate at the date of such termination.
(c) If Landlord terminates Tenant's right of possession
(but not this Lease), Landlord shall use commercially reasonable efforts to
relet the Premises for the account of Tenant for such rent and upon such terms
as shall be satisfactory to Landlord without thereby releasing Tenant from any
liability hereunder and without demand or notice of any kind to Tenant;
provided, however, that hiring a reputable leasing broker to lease the premises
and cooperating in good faith with such broker shall satisfy the requirement
that Landlord use commercially reasonable efforts to relet and (i) Landlord
shall not be obligated to accept any prospective tenant proposed by Tenant,
unless such proposed tenant meets all of Landlord's leasing criteria and (ii)
Landlord shall have the right to lease any other space controlled by Landlord
first. For the purpose of such reletting Landlord is authorized to make any
repairs, changes, alterations, or additions in or to the Premises as Landlord
deems reasonably necessary or desirable. If the Premises are not relet, then
Tenant shall pay to Landlord as damages a sum equal to the amount of the rental
reserved in this Lease for such period or periods, plus the cost of recovering
possession of the Premises (including attorneys' fees and costs of suit), the
unpaid Base Rent and other amounts accrued hereunder at the time of
repossession, and the costs incurred in any attempt by Landlord to relet the
Premises. If the Premises are relet and a sufficient sum shall not be realized
from such reletting [after first deducting therefrom, for retention by Landlord,
the unpaid Base Rent and other amounts accrued hereunder at the time of
reletting, the cost of recovering possession (including attorneys' fees and
costs of suit), all of the costs and expense of repairs, changes, alterations,
and additions, the expense of such reletting (including without limitation
brokerage fees and leasing commissions) and the cost of collection of the rent
accruing therefrom] to satisfy the rent provided for in this Lease to be paid,
then Tenant shall immediately satisfy and pay any such deficiency. Any such
payments due Landlord shall be made upon demand therefor from time to time and
Tenant agrees that Landlord may file suit to recover any sums falling due from
time to time. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect in writing to terminate this Lease for such
previous breach.
(d) Exercise by Landlord of any one or more remedies
hereunder granted or otherwise available shall not be deemed to be an acceptance
of surrender of the Premises and/or a termination of this Lease by Landlord,
whether by agreement or by operation of law. Any law, usage, or custom to the
contrary notwithstanding, Landlord shall have the right at all times to enforce
the provisions of this Lease in strict accordance with the terms hereof; and the
failure of Landlord at any time to enforce its rights under this Lease strictly
in accordance with same shall not be construed as having created a custom in any
way or manner contrary to the specific terms, provisions, and covenants of this
Lease or as having modified the same. Tenant and Landlord further agree that
forbearance or waiver by Landlord to enforce its rights pursuant to this Lease
or at law or in equity, shall not be a waiver of Landlord's right to enforce one
or more of its rights in connection with any subsequent default. A receipt by
Landlord of rent or other payment with knowledge of the breach of any covenant
hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of
any provision of this Lease shall be deemed to have been made unless expressed
in writing and signed by Landlord. To the greatest extent permitted by law,
Tenant waives the service of notice of Landlord's intention to re-enter or to
institute legal proceedings to that end, and also waives all right of redemption
in case Tenant shall be dispossessed by a judgment or by warrant of any court or
judge. The terms "enter," "re-enter," "entry" or "re-entry," as used in this
Lease, are not restricted to their technical legal meanings. Any reletting of
the
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Premises shall be on such terms and conditions as Landlord in its sole
discretion may determine (including without limitation a term different than the
remaining Lease Term, rental concessions, alterations and repair of the
Premises, lease of less than the entire Premises to any tenant and leasing any
or all other portions of the Project before reletting the Premises). Landlord
shall not be liable, nor shall Tenant's obligations hereunder be diminished
because of, Landlord's failure to relet the Premises or collect rent due in
respect of such reletting.
25. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord
shall not be in default hereunder unless Landlord fails to perform any of its
obligations hereunder within thirty (30) days after written notice from Tenant
specifying such failure (unless such performance will, due to the nature of the
obligation, require a period of time in excess of thirty (30) days, then after
such period of time as is reasonably necessary). All obligations of Landlord
hereunder shall be construed as covenants, not conditions; and Tenant may not
terminate this Lease for breach of Landlord's obligations hereunder, provided,
however, that the foregoing shall not be deemed a waiver by Tenant of any of its
rights at law or in equity. All obligations of Landlord under this Lease will be
binding upon Landlord only during the period of its ownership of the Premises
and not thereafter. The term "Landlord" in this Lease shall mean only the owner,
for the time being of the Premises, and in the event of the transfer by such
owner of its interest in the Premises, such owner shall thereupon be released
and discharged from all obligations of Landlord thereafter accruing, but such
obligations shall be binding during the Lease Term upon each new owner for the
duration of such owner's ownership. Any liability of Landlord under this Lease
or arising out of the relationship between Landlord and Tenant shall be limited
solely to Landlord's interest in the Building and the proceeds, rent and other
income therefrom, and in no event shall any personal liability be asserted
against Landlord in connection with this Lease nor shall any recourse be had to
any other property or assets of Landlord.
26. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY
RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT
ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
27. SUBORDINATION. (a) This Lease and Tenant's interest
and rights hereunder are and shall be subject and subordinate at all times to
the lien of any first mortgage, now existing or hereafter created on or against
the Project or the Premises, and all amendments, restatements, renewals,
modifications, consolidations, refinancing, assignments and extensions thereof,
without the necessity of any further instrument or act on the part of Tenant.
Tenant agrees, at the election of the holder of any such mortgage, to attorn to
any such holder. The provisions of this Paragraph 27 shall be self-operative and
no further instrument shall be required to effect such subordination or
attornment; however, Tenant agrees to execute, acknowledge and deliver such
instruments, confirming such subordination and such instruments of attornment as
shall be requested by any such holder within ten (10) days of such request.
Tenant's obligation to furnish each such instrument requested hereunder in the
time period provided is a material inducement for Landlord's execution of this
Lease and any failure of Tenant to timely deliver each instrument shall be
deemed an Event of Default.
(b) Notwithstanding the foregoing, any such holder may at
any time subordinate its mortgage to this Lease, without Tenant's consent, by
notice in writing to Tenant, and thereupon this Lease shall be deemed prior to
such mortgage without regard to their respective dates of execution, delivery or
recording and in that event such holder shall have the same rights with respect
to this Lease as though this Lease had been executed prior to the execution,
delivery and recording of such mortgage and had been assigned to such holder.
The term "mortgage" whenever used in this Lease shall be deemed to include deeds
of trust, security assignments and any other encumbrances, and any reference to
the "holder" of a mortgage shall be deemed to include the beneficiary under a
deed of trust.
(c) Tenant shall not seek to enforce any remedy it may
have for any default on the part of Landlord without first giving written notice
by certified mail, return receipt requested, specifying the default in
reasonable detail to any mortgage holder whose address has been given to Tenant,
and affording such mortgage holder a reasonable opportunity to perform
Landlord's obligations hereunder. Notwithstanding any such attornment or
subordination of a mortgage to this Lease, the holder of any mortgage shall not
be liable for any acts of any previous landlord, shall not be obligated to
install any tenant improvements, and shall not be bound by any amendment to
which it did not consent in writing nor any payment of rent made more than one
month in advance.
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(d) Notwithstanding the foregoing, Tenant shall not be
required to subordinate this Lease to a Mortgage or attorn to a successor under
a Mortgage, nor shall the subordination provided herein be self-operative with
respect to a Mortgage, unless the Holder thereof shall enter into an agreement
with Tenant to the effect that in the event that the Holder or any other party
shall succeed to the interest of Landlord hereunder pursuant to such Mortgage,
Tenant's right to possession of the Premises shall not be disturbed and Tenant's
other rights hereunder shall not be adversely affected by any foreclosure of
such Mortgage and any Successor under the Mortgage shall succeed to Landlord's
rights and obligations under this Lease. Such agreement shall be in a
commercially reasonable written instrument in form satisfactory to Tenant and
Holder in their reasonable discretion. Landlord represents that the Premises are
not encumbered by any Mortgage as of the date hereof except that certain
mortgage held by Connecticut General Life Insurance Company (CIGNA) dated July,
2002 (the "Existing Mortgage"). Landlord agrees to use diligent efforts to
provide the agreement described above from the holder of the Existing Mortgage
within a reasonable time after the execution of this Lease.
28. MECHANIC'S LIENS. Tenant has no express or implied
authority to create or place any lien or encumbrance of any kind upon, or in any
manner to bind the interest of Landlord or Tenant in, the Premises or to charge
the rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Landlord harmless from all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the interest of Landlord in the Premises or under
this Lease. Tenant shall give Landlord immediate written notice of the placing
of any lien or encumbrance against the Premises and cause such lien or
encumbrance to be discharged within thirty (30) days of the filing or recording
thereof; provided, however, Tenant may contest such liens or encumbrances as
long as such contest prevents foreclosure of the lien or encumbrance and Tenant
causes such lien or encumbrance to be bonded or insured over in a manner
satisfactory to Landlord within such thirty (30) day period.
29. ESTOPPEL CERTIFICATES. Each party agrees, from time
to time, within ten (10) days after request of the other, to execute and deliver
to the requesting party, or its designee, an estoppel certificate stating that
this Lease is in full force and effect, the date to which rent has been paid,
that neither Landlord nor Tenant is in default hereunder (or if so, specifying
in detail the nature of any such default), the termination date of this Lease
and such other matters pertaining to this Lease as may be requested by the
requesting party. Tenant's obligation to furnish each estoppel certificate in a
timely fashion is a material inducement for Landlord's execution of this Lease
and any failure of Tenant to timely deliver each estoppel certificate shall be
deemed an Event of Default. No cure or grace period provided in this Lease shall
apply to Tenant's obligation to timely deliver an estoppel certificate. Tenant
hereby irrevocably appoints Landlord as its attorney in fact to execute on its
behalf and in its name any such estoppel certificate if Tenant fails to execute
and deliver the estoppel certificate within ten (10) days after Landlord's
written request thereof.
30. ENVIRONMENTAL REQUIREMENTS. (a) Except for Hazardous
Material contained in products used by Tenant in de minimis quantities for
ordinary cleaning and office purposes, Tenant shall not permit or cause any
party to bring any Hazardous Material upon the Premises or transport, store,
use, generate, manufacture, dispose, or release any Hazardous Material on or
from the Premises without Landlord's prior written consent. Tenant, at its sole
cost and expense, shall operate its business in the Premises in strict
compliance with all Environmental Requirements and all requirements of this
Lease. Tenant shall complete and certify to disclosure statements as reasonably
requested by Landlord from time to time relating to Tenant's transportation,
storage, use, generation, manufacture, or release of Hazardous Materials on the
Premises, and Tenant shall promptly deliver to Landlord a copy of any notice of
violation relating to the Premises or Project of any Environmental Requirement.
(b) The term "Environmental Requirements" means all
applicable present and future statutes, regulations, ordinances, rules, codes,
judgments, permits, authorizations, orders, policies or other similar
requirements of any governmental authority, agency or court regulating or
relating to health, safety, or environmental conditions on, under, or about the
Premises or the environment, including without limitation, the following: the
Comprehensive Environmental Response, Compensation and Liability Act; the
Resource Conservation and Recovery Act; the Clean Air Act; the Clean Water Act;
the Toxic Substances Control Act and all state and local counterparts thereto,
and any common or civil law obligations including, without limitation,
18
nuisance or trespass, and any other requirements of Paragraphs 4 and 31 of this
Lease. The term "Hazardous Materials" means and includes any substance,
material, waste, pollutant, or contaminant that is or could be regulated under
any Environmental Requirement or that may adversely affect human health or the
environment, including, without limitation, any solid or hazardous waste,
hazardous substance, asbestos, petroleum (including crude oil or any fraction
thereof, natural gas, synthetic gas, polychlorinated biphenyls (PCBs), and
radioactive material). For purposes of Environmental Requirements, to the extent
authorized by law, Tenant is and shall be deemed to be the responsible party,
including without limitation, the "owner" and "operator" of Tenant's "facility"
and the "owner" of all Hazardous Materials brought on the Premises by Tenant,
its agents, employees, contractors or invitees, and the wastes, by-products, or
residues generated, resulting, or produced therefrom.
(c) Tenant, at its sole cost and expense, shall remove
all Hazardous Materials stored, disposed of or otherwise released by Tenant, its
assignees, subtenants, agents, employees, contractors or invitees onto or from
the Premises, in a manner and to a level satisfactory to Landlord in its sole
discretion, but in no event to a level and in a manner less than that which
complies with all Environmental Requirements and does not limit any future uses
of the Premises or require the recording of any deed restriction or notice
regarding the Premises. Tenant shall perform such work at any time during the
period of the Lease upon written request by Landlord or, in the absence of a
specific request by Landlord, before Tenant's right to possession of the
Premises terminates or expires. If Tenant fails to perform such work within the
time period specified by Landlord or before Tenant's right to possession
terminates or expires (whichever is earlier), Landlord may at its discretion,
and without waiving any other remedy available under this Lease or at law or
equity (including without limitation an action to compel Tenant to perform such
work), perform such work at Tenant's cost. Tenant shall pay all costs incurred
by Landlord in performing such work within ten (10) days after Landlord's
request therefor. Such work performed by Landlord is on behalf of Tenant and
Tenant remains the owner, generator, operator, transporter, and/or arranger of
the Hazardous Materials for purposes of Environmental Requirements. Tenant
agrees not to enter into any agreement with any person, including without
limitation any governmental authority, regarding the removal of Hazardous
Materials that have been disposed of or otherwise released onto or from the
Premises without the written approval of the Landlord.
(d) Tenant shall indemnify, defend, and hold Landlord
harmless from and against any and all losses (including, without limitation,
diminution in value of the Premises or the Project and loss of rental income
from the Project), claims, demands, actions, suits, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
remediation, removal, repair, corrective action, or cleanup expenses), and costs
(including, without limitation, actual attorneys' fees, consultant fees or
expert fees) and including, without limitation, removal or management of any
asbestos brought into the Premises or disturbed in breach of the requirements of
this Paragraph 30, (regardless of whether such removal or management is required
by law) which are brought or recoverable against, or suffered or incurred by
Landlord as a result of any release of Hazardous Materials by Tenant or any
breach of the requirements under this Paragraph 30 by Tenant, its agents,
employees, contractors, subtenants, assignees or invitees, regardless of whether
Tenant had knowledge of such noncompliance. The obligations of Tenant under this
Paragraph 30 shall survive any termination of this Lease.
(e) Landlord shall have access to, and a right to perform
inspections and tests of, the Premises to determine Tenant's compliance with
Environmental Requirements, its obligations under this Paragraph 30, or the
environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord's prior notice to Tenant and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to Tenant's
operations. Such inspections and tests shall be conducted at Landlord's expense,
unless such inspections or tests reveal that Tenant has not complied with any
Environmental Requirement, in which case Tenant shall reimburse Landlord for the
reasonable cost of such inspection and tests. Landlord's receipt of or
satisfaction with any environmental assessment in no way waives any rights that
Landlord holds against Tenant. Tenant shall promptly notify Landlord of any
communication or report that Tenant makes to any governmental authority
regarding any possible violation of Environmental Requirements or release or
threat of release of any Hazardous Materials onto or from the Premises. Tenant
shall, within five (5) days of receipt thereof, provide Landlord with a copy of
any documents or correspondence received from any governmental agency or other
party relating to a possible violation of Environmental Requirements or claim or
liability associated with the release or threat of release of any Hazardous
Materials onto or from the Premises.
(f) In addition to all other rights and remedies
available to Landlord under this Lease or otherwise, Landlord may, in the event
of a breach of the requirements of this Paragraph
19
30 that is not cured within thirty (30) days following notice of such breach by
Landlord, require Tenant to provide financial assurance (such as insurance,
escrow of funds or third party guarantee) in an amount and form satisfactory to
Landlord. The requirements of this Paragraph 30 are in addition to and not in
lieu of any other provision in the Lease.
(g) Other than as disclosed in that certain environmental
site assessment report identified on Exhibit C attached hereto (the
"Environmental Report"), a copy of which has been provided to Tenant, to
Landlord's current actual knowledge, neither Landlord nor any third party has
generated, disposed of, released, nor found any Hazardous Materials on or about
the Premises in violation of Environmental Requirements. It is understood by
Tenant, however, that Landlord has not made any independent investigations to
confirm the accuracy of the Environmental Report or the foregoing
representation, and Landlord makes no representation or warranty as to the
accuracy or completeness of the Environmental Report. Tenant agrees to keep the
Environmental Report confidential and not to disclose the contents thereof to
any other party without the prior written consent of Landlord. Landlord has
received no notice that any municipality or any governmental or
quasi-governmental authority has determined that there are any violations of the
Environmental Requirements with respect to the Premises.
(h) Landlord agrees not to bring any Hazardous Material
upon the Premises or transport, store, use, generate or manufacture or release
any Hazardous Material in or about the Premises without Tenant's prior written
consent. Landlord shall indemnify, defend and hold Tenant harmless from and
against any and all direct losses, claims, demands, actions, suits, damages,
expenses, and costs (including, without limitation, actual attorneys' fees,
consultant fees or expert fees) which are brought or recoverable against, or
suffered or incurred by Tenant as a result of any release of Hazardous Materials
on or about the Premises or the Project to the extent caused by Landlord, its
agents or employees, and for which Landlord is obligated to remediate in
accordance with any Environmental Requirements. The obligations of Landlord
under this Paragraph 30 shall survive any termination of this Lease.
31. RULES AND REGULATIONS. Tenant shall, at all times
during the Lease Term and any extension thereof, comply with all reasonable
rules and regulations at any time or from time to time established by Landlord
covering use of the Premises and the Project. The current rules and regulations
are attached hereto. In the event of any conflict between said rules and
regulations and other provisions of this Lease, the other terms and provisions
of this Lease shall control. Landlord shall not have any liability or obligation
for the breach of any rules or regulations by other tenants in the Project.
32. SECURITY SERVICE. Tenant acknowledges and agrees
that, while Landlord may (but shall not be obligated to) patrol the Project,
Landlord is not providing any security services with respect to the Premises and
that Landlord shall not be liable to Tenant for, and Tenant waives any claim
against Landlord with respect to, any loss by theft or any other damage suffered
or incurred by Tenant in connection with any unauthorized entry into the
Premises or any other breach of security with respect to the Premises.
33. EXTENSION OPTION. (a) Provided that this Lease is
then in full force and effect and further provided that Tenant is not then in
default, beyond the expiration of any applicable grace periods, under any of the
terms, covenants or conditions of the Lease on Tenant's part to be observed or
performed, Tenant shall have one option to extend this Lease and the Lease Term
for an extended term (the "Extension Term") of five (5) years commencing on the
date next following the last day of the original Lease Term and ending, unless
sooner terminated pursuant to the terms, covenants or conditions of the Lease or
pursuant to law, on the day immediately preceding the fifth (5th) anniversary of
the commencement date of the Extension Term. Said option to be exercisable only
by written notice given by Tenant to Landlord at least nine (9) months prior to
the last day of the original Lease Term. If Tenant exercises such option in
accordance with the provisions and limitations of this Paragraph 33, this Lease
and the Lease Term shall be extended for such term upon all of the then
applicable terms, covenants and conditions contained in this Lease, except that
the Base Rent for the entire Extension Term shall be at an annual rate
determined as set forth below, it being understood that such Base Rent shall be
payable in equal monthly installments, in advance, just as in the case of the
original Lease Term. The Base Rent for the Extension Term shall be at the
greater of (i) the Base Rent in effect at the end of the original Lease Term or
(ii) ninety-five percent (95%) of the Market Rent, to be determined as follows:
Landlord shall provide Tenant with Landlord's written designation of what it
believes to be the fair market rental value of the Premises for the Extension
Term taking into consideration other similar industrial buildings in the
Building's competitive submarket as defined by local commercial real estate
brokerage firms, and considering all applicable economic terms and concessions
(hereinafter, the "Market Rent"), such
20
written designation to be sent to Tenant within thirty (30) days after receipt
by Landlord of notice of Tenant's exercise of its option with respect to the
Extension Term. If Tenant disagrees with Landlord's designation of the Market
Rent and if the parties are otherwise unable to agree within twenty (20) days
after receipt of Landlord's designation, then Tenant may initiate the following
arbitration process to determine the Market Rent by sending written notice
thereof to the Landlord within fourteen (14) days after the expiration of such
twenty (20) day period. If Tenant fails to initiate this arbitration process as
aforesaid, time being of the essence, then Landlord's designation of Market Rent
(as set forth in Landlord's notice) shall be conclusive. In order to be
effective, Tenant's notice to Landlord initiating the arbitration process shall
specify the name and address of the person designated to act as an arbitrator on
its behalf. Within fourteen (14) days after the designation of Tenant's
arbitrator, Landlord shall give notice to Tenant specifying the name and address
of the person designated to act as an arbitrator on its behalf. If Landlord
fails to notify Tenant of the appointment of its arbitrator within the time
above specified, then the appointment of the second arbitrator shall be made in
the same manner as hereinafter provided for the appointment of a third
arbitrator in a case where two arbitrators are appointed hereunder and the
parties are unable to agree upon such appointment. The two arbitrators so chosen
shall meet within ten (10) days after the second arbitrator is appointed, and
if, within fifteen (15) days after the second arbitrator is appointed, the two
arbitrators shall not agree upon a determination, they shall together appoint a
third arbitrator. In the event of their being unable to agree upon such
appointment within fifteen (15) days after the appointment of the second
arbitrator, the third arbitrator shall be selected by the parties themselves if
they can agree thereon within a further period of fifteen (15) days. If the
parties do not so agree, then either party, on behalf of both and on notice to
the other, may request such appointment by the American Arbitration Association
(or any organization successor thereto) in accordance with its rules then
prevailing.
(b) Each party shall pay the fees and expenses of the one of the
two original arbitrators appointed by or for such party, and the fees and
expenses of the third arbitrator and all other expenses (not including the
attorneys fees, witness fees and similar expenses of the parties which shall be
borne separately by each of the parties) of the arbitration shall be borne by
the parties equally.
(c) If a third arbitrator is chosen as provided above, then such
three arbitrators shall collectively determine the Market Rent and render a
written certified report of their determination to both Landlord and Tenant
within fifteen (15) days after appointment of the third arbitrator if such third
arbitrator is appointed pursuant to this Paragraph 33.
(d) Each of the arbitrators selected as herein provided shall have
at least ten (10) years experience in the leasing and renting of industrial
space in industrial buildings in Worcester County, Massachusetts. In addition,
the third arbitrator (if any) shall be an independent party not affiliated in
any way with either Landlord or Tenant.
(e) Each of the three arbitrators shall indicate his view of the
Market Rent. The number furthest from the middle number shall be disregarded and
the remaining two numbers shall be averaged. The resulting average shall be
deemed to be the Market Rent for purposes of this paragraph. Tenant may cancel
its exercise of this option to extend the term of this Lease, if Tenant is
dissatisfied with the determination of Market Rent through the foregoing
arbitration process. In order to cancel its exercise of this option as
aforesaid, Tenant must send written notice to Landlord within seven (7) days
after the determination by the arbitrators of Market Rent, and in such notice
Tenant must state that it is so canceling its exercise of this extension option.
(f) Time is of the essence with respect to the exercise of the
option contained herein. Tenant shall not have the right to give any notice
exercising such option after the expiration of the applicable time limitation
set forth herein, and any notice given after such time limitation purporting to
exercise such option shall be void and of no force or effect.
34. FORCE MAJEURE. Neither Landlord nor Tenant shall be
held responsible for delays in the performance of its obligations hereunder
(other than Tenant's monetary obligations hereunder) when caused by strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, delay in issuance of permits, enemy or
hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of Landlord ("Force Majeure").
21
35. ENTIRE AGREEMENT. This Lease constitutes the complete
and entire agreement of Landlord and Tenant with respect to the subject matter
hereof. No representations, inducements, promises or agreements, oral or
written, have been made by Landlord or Tenant, or anyone acting on behalf of
Landlord or Tenant, which are not contained herein, and any prior agreements,
promises, negotiations, or representations are superseded by this Lease. This
Lease may not be amended except by an instrument in writing signed by both
parties hereto.
36. SEVERABILITY. If any clause or provision of this
Lease is illegal, invalid or unenforceable under present or future laws, then
and in that event, it is the intention of the parties hereto that the remainder
of this Lease shall not be affected thereby. It is also the intention of the
parties to this Lease that in lieu of each clause or provision of this Lease
that is illegal, invalid or unenforceable, there be added, as a part of this
Lease, a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
37. BROKERS. Tenant represents and warrants that it has
dealt with no broker, agent or other person in connection with this transaction
and that no broker, agent or other person brought about this transaction, other
than the Brokers set forth on the first page of this Lease, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims by any other
broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to this leasing
transaction. Landlord represents and warrants that it has dealt with no broker,
agent or other person in connection with this transaction and that no broker,
agent or other person brought about this transaction, other than the Brokers set
forth on the first page of this Lease, and Landlord agrees to indemnify and hold
Tenant harmless from and against any claims by any broker, agent or other person
claiming a commission or other form of compensation by virtue of having dealt
with Landlord with regard to this leasing transaction, including the Brokers.
38. MISCELLANEOUS. (a) Any payments or charges due from
Tenant to Landlord hereunder shall be considered rent for all purposes of this
Lease.
(b) If and when included within the term "Tenant," as
used in this instrument, there is more than one person, firm or corporation,
each shall be jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under
this Lease shall be in writing and shall be sent by registered or certified
mail, return receipt requested, or by a reputable national overnight courier
service, postage prepaid, or by hand delivery and, if to Tenant, addressed to
Tenant at the address for Tenant noted on the first page of this Lease, and if
to Landlord, addressed to Landlord at c/o Crow Holdings Industrial Trust, 0000
XxXxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxxxxx,
with a copy to Xxxxx and Xxxx LLP, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000-0000, Attention: Xxxx Xxxxxx/Xxxxx Xxxxxxxxx. Either party may by
notice given aforesaid change its address for all subsequent notices. Except
where otherwise expressly provided to the contrary, notice shall be deemed given
upon delivery.
(d) Except as otherwise expressly provided in this Lease
or as otherwise required by law, Landlord retains the absolute right to withhold
any consent or approval.
(e) At Landlord's request from time to time Tenant shall
furnish Landlord with true and complete copies of Guarantor's most recent annual
and quarterly financial statements prepared by Guarantor or Guarantor's
accountants and any other financial information or summaries that Guarantor
typically provides to its lenders or shareholders. Such annual statements shall
be audited by an independent certified public accountant at Guarantor's sole
cost and expense. Landlord shall hold such financial statements and information
in confidence, and shall not disclose the same except: (i) to Landlord's lenders
or potential lenders, (ii) to potential purchasers of all or a portion of the
Project, (iii) otherwise as reasonably necessary for the operation of the
Project or administration of Landlord's business or (iv) if disclosure is
required by any judicial or administrative order or ruling.
(f) Neither this Lease nor a memorandum of lease shall be
filed by or on behalf of Tenant in any public record.
(g) Each party acknowledges that it has had the
opportunity to consult counsel with respect to this Lease, and therefore, the
normal rule of construction to the effect that any
22
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Lease or any exhibits or amendments hereto.
(h) The submission by Landlord to Tenant of this Lease
shall have no binding force or effect, shall not constitute an option for the
leasing of the Premises, nor confer any right or impose any obligations upon
either party until execution of this Lease by both parties.
(i) Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires. The
captions inserted in this Lease are for convenience only and in no way define,
limit or otherwise describe the scope or intent of this Lease, or any provision
hereof, or in any way affect the interpretation of this Lease.
(j) Any amount not paid by Tenant within five (5) days
after its due date in accordance with the terms of this Lease shall bear
interest from such due date until paid in full at the lesser of the highest rate
permitted by applicable law or fifteen percent (15%) per year. It is expressly
the intent of Landlord and Tenant at all times to comply with applicable law
governing the maximum rate or amount of any interest payable on or in connection
with this Lease. If applicable law is ever judicially interpreted so as to
render usurious any interest called for under this Lease, or contracted for,
charged, taken, reserved, or received with respect to this Lease, then it is
Landlord's and Tenant's express intent that all excess amounts theretofore
collected by Landlord be credited on the applicable obligation (or, if the
obligation has been or would thereby be paid in full, refunded to Tenant), and
the provisions of this Lease immediately shall be deemed reformed and the
amounts thereafter collectible hereunder reduced, without the necessity of the
execution of any new document, so as to comply with the applicable law, but so
as to permit the recovery of the fullest amount otherwise called for hereunder.
(j) Construction and interpretation of this Lease shall
be governed by the laws of the state in which the Project is located, excluding
any principles of conflicts of laws.
(k) Time is of the essence as to the performance of all
obligations of either party under this Lease.
(l) All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. In the event of any
conflict between such exhibits or addenda (other than the rules and regulations)
and the terms of this Lease, such exhibits or addenda shall control. In the
event of a conflict between the rules and regulations attached hereto and the
terms of this Lease, the terms of this Lease shall control.
(m) If either party should prevail in any litigation
instituted by or against the other related to this Lease, the prevailing party,
as determined by the court, shall receive from the non-prevailing party all
costs and reasonable attorneys' fees (payable at standard hourly rates) incurred
in such litigation, including costs on appeal, as determined by the court.
39. LIMITATION OF LIABILITY OF LANDLORD'S PARTNERS, AND
OTHERS. Tenant agrees that any obligation or liability whatsoever of Landlord
which may arise at any time under this Lease, or any obligation or liability
which may be incurred by Landlord pursuant to any other instrument, transaction,
or undertaking contemplated hereby, shall not be personally binding upon, nor
shall resort for the enforcement thereof be had to the property of the
constituent partners of Landlord or any of their respective directors, officers,
representatives, employees or agents, regardless of whether such obligation or
liability is in the nature of contract, tort, or otherwise.
23
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease as of the day and year first above written.
TENANT:
SUNDANCE PUBLISHING COMPANY, INC.
By:____________________________
Name:__________________________
Title:_________________________
LANDLORD:
LIT INDUSTRIAL LIMITED PARTNERSHIP, A
DELAWARE LIMITED PARTNERSHIP, FORMERLY
KNOWN AS CROW FAMILY HOLDINGS INDUSTRIAL
LIMITED PARTNERSHIP
By: LIT Holdings GP, LLC, a Delaware
limited liability company, its
general partner
By: Lion Industrial Properties, L.P.,
a Delaware limited partnership,
its sole member
By: LIT GP Sub, LLC, a Delaware
limited liability company, its
general partner
By: Lion Industrial Trust, a Maryland
real estate investment trust, its
manager
By:_______________________________
Name:_____________________________
Title:____________________________
24
RULES AND REGULATIONS
In the event of a conflict between the following Rules and
Regulations and the terms of the Lease to which this Addendum is attached, the
terms of the Lease shall control.
1. The sidewalk, entries, and driveways of the Project
shall not be obstructed by Tenant, or its agents, or used by them for any
purpose other than ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including
antennas, outdoor furniture, etc., in the parking areas, landscaped areas or
other areas outside of its Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be
allowed in the offices, halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project
or adjoining buildings by the use of any radio or musical instrument or by the
making of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other
electric connections in the Premises, Landlord or its agent will direct the
electrician as to where and how the wires may be introduced; and, without such
direction, no boring or cutting of wires will be permitted. Any such
installation or connection shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas
engine or boiler, or other mechanical apparatus in the Premises, except as
specifically approved in the Lease. The use of oil, gas or inflammable liquids
for heating, lighting or any other purpose is expressly prohibited. Explosives
or other articles deemed extra hazardous shall not be brought into the Project.
7. Parking any type of recreational vehicles is
specifically prohibited on or about the Project. Except for the overnight
parking of operative vehicles or as expressly permitted in the Lease, no vehicle
of any type shall be stored in the parking areas at any time. In the event that
a vehicle is disabled, it shall be removed within 48 hours. There shall be no
"For Sale" or other advertising signs on or about any parked vehicle. All
vehicles shall be parked in the designated parking areas in conformity with all
signs and other markings. All parking will be open parking, and no reserved
parking, numbering or lettering of individual spaces will be permitted except as
specified by Landlord.
8. Tenant shall maintain the Premises free from rodents,
insects and other pests.
9. Landlord reserves the right to exclude or expel from
the Project any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs or who shall in any manner do any act in
violation of the Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness. Landlord shall not be responsible to Tenant for any loss
of property on the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any
defects in the water, lawn sprinkler, sewage, gas pipes, electrical lights and
fixtures, heating apparatus, or any other service equipment affecting the
Premises.
12. Tenant shall not permit storage outside the Premises,
including without limitation, outside storage of trucks and other vehicles, or
dumping of waste or refuse or permit any harmful materials to be placed in any
drainage system or sanitary system in or about the Premises.
13. All moveable trash receptacles provided by the trash
disposal firm for the Premises must be kept in the trash enclosure areas, if
any, provided for that purpose.
14. No auction, public or private, will be permitted on
the Premises or the Project.
15. No awnings shall be placed over the windows in the
Premises except with the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping
or cooking or for any immoral or illegal purposes or for any purpose other than
that specified in the Lease. No gaming devices shall be operated in the
Premises.
17. Tenant shall ascertain from Landlord the maximum
amount of electrical current which can safely be used in the Premises, taking
into account the capacity of the electrical wiring in the Project and the
Premises and the needs of other tenants, and shall not use more than such safe
capacity. Landlord's consent to the installation of electric equipment shall not
relieve Tenant from the obligation not to use more electricity than such safe
capacity.
18. Tenant assumes full responsibility for protecting the
Premises from theft, robbery and pilferage.
19. Tenant shall not install or operate on the Premises
any machinery or mechanical devices of a nature not directly related to Tenant's
ordinary use of the Premises and shall keep all such machinery free of
vibration, noise and air waves which may be transmitted beyond the Premises.
20. Tenant shall not introduce, disturb or release
asbestos or PCBs onto or from the Premises.
21. Tenant shall at all times conduct its operations in a
good and workmanlike manner, employing best management practices to minimize the
threat of any violation of Environmental Requirements.
EXHIBIT A
PREMISES
EXHIBIT A-1
LEGAL DESCRIPTION OF REAL PROPERTY
That certain parcel of land shown as Lot 1A on a plan entitled "Plan of Land in
Northborough, MA," dated July 16, 2002, by Xxxxxxx Survey Co. & Assoc. Inc.,
recorded with the Worcester County Registry of Deeds on August 14, 2002 in Plan
Book 784, Plan 80, commonly known as One Xxxxxx Road, Northborough, Worcester
County, Massachusetts.
EXHIBIT B
CONSTRUCTION ADDENDUM
(CONSTRUCTION ALLOWANCE)
ATTACHED TO AND A PART OF LEASE AGREEMENT
DATED JANUARY 15, 2003 BETWEEN
LIT INDUSTRIAL LIMITED PARTNERSHIP (LANDLORD)
AND
SUNDANCE PUBLISHING COMPANY, INC. (TENANT)
FOR XXX XXXXXX XXXX, XXXXXXXXXXXX, XX
(a) Landlord agrees to furnish or perform or cause to be performed
those items of construction and those improvements ("Tenant Improvements")
specified below:
1. Remodel lighting in a portion of the warehouse space based on storage racks
layout shown on the Proposed Warehouse Layout drawing dated November 8,
2002, as revised.
2. Landlord shall cause to be prepared and submit to the local authorities for
review and approval engineering drawings, specifications and calculations
for fire sprinkler system modification in the warehouse portion of the
Premises as required by all applicable codes and regulations and cause to
be prepared "as-built" drawings for the system layout as required for these
calculations.
3. Implement the modifications of the fire sprinkler system in the warehouse
portion of the Premises as described above.
4. Cause to be prepared and submit to the local authorities for review and
approval architectural drawings, specifications and calculations showing
the means of egress and exit distance, exit lights, exit signs, fire alarm
pull stations, fire alarm system annunciation devices, etc., as required by
all applicable codes and regulations and local authorities for the
warehouse portion of the Premises.
5. Design and implement modifications to the fire alarm system based on the
architect's drawings described above and as required by all applicable
codes and regulations, including but not limited to relocation and addition
of fire alarm pull stations, horns/strobes, exit signs, etc.
6. Remove unused, abandoned PVC and steel piping suspended from the
structural steel below roof in the warehouse portion of the Premises.
Landlord shall pay for the Tenant Improvements up to a maximum amount of
$108,060.00 (the "Construction Allowance"). In the event the cost of the Tenant
Improvements exceeds the Construction Allowance, such overage shall be borne
exclusively by Tenant and Tenant shall, within thirty (30) days after written
demand therefor, reimburse Landlord for costs and expenses for the Tenant
Improvements exceeding the Construction Allowance. Landlord makes no
representation or warranty whatsoever as to the total cost of the Tenant
Improvements and Tenant acknowledges that the cost of the Tenant Improvements
may exceed the Construction Allowance.
The Landlord shall obtain competitive bids for the Tenant Improvements listed in
1-6 above for review by Tenant, and implement this work using the lowest cost
contractors without cost xxxx-ups, or otherwise proceed as agreed upon by
Landlord and Tenant. Tenant shall have the option to hire and manage contractors
to implement this work, in which case Landlord shall reimburse Tenant for costs
and expenses for the Tenant Improvements up to the amount of the Construction
Allowance within thirty (30) days after receipt of an invoice for such costs and
such other documentation as Landlord may
reasonably request to substantiate such costs. If the Tenant does so, Landlord
shall have the right to review such contract or contracts.
(b) If required by any code, regulation, governmental agency or
the ADA, Landlord shall be responsible for the design and installation of a
passenger elevator in the Premises, but only in the case that it shall be
required by a third party. If such an action shall be initiated by a third
party, Tenant and Landlord shall cooperate with such third party in finding and
implementing any reasonable alternate solutions that meet compliance to mitigate
the requirement for vertical transportation. If such installation of a passenger
elevator will be required due to Tenant's proposed use of the office portion of
the Premises as a place of public accommodation, Tenant shall be responsible for
the cost of such design and installation.
(c) The Tenant intends to use the warehouse portion of the
Premises for storage of class III product with less than 5% plastics on racks up
to 19 feet high from the floor. If required by any applicable code, regulation
or appropriate local authorities, the Landlord, at Landlord's sole cost and
expense, shall upgrade the existing fire protection system in the warehouse
portion of the Premises as required to obtain a certificate of occupancy for the
Premises.
(d) If required by any code, regulation or governmental agency,
the Landlord shall be responsible for the cost of work to upgrade the Building
systems inside and outside of the Premises to comply with all applicable codes
and regulations, including ADA, for Tenant's occupancy. If such work will be
required due to Tenant's proposed modifications or change of use of the
Premises, Tenant shall be responsible for the cost of such upgrades.
EXHIBIT C
ENVIRONMENTAL REPORTS
1. "Phase I Environmental Site Assessment of Equity Industrial Partners
Portfolio, Xxx Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxx, 00000," prepared by EMG
and dated October 8, 1998 (the "EMG Report").
2. "Phase I Environmental Site Assessment: One Xxxxxx Road
Office/Warehouse Facility, Xxx Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxx XXXXX
Engineering No. 01-2205-1.0," prepared by EFI and dated December 2001 (the "EFI
Report").
PARKING PLAN
(see attached)
RIGHT OF FIRST OFFER
ATTACHED TO AND A PART OF LEASE AGREEMENT
DATED JANUARY 15, 2003 BETWEEN
LIT INDUSTRIAL LIMITED PARTNERSHIP (LANDLORD)
AND
SUNDANCE PUBLISHING COMPANY, INC. (TENANT)
FOR XXX XXXXXX XXXX, XXXXXXXXXXXX, XX
(a) "Offered Space" shall mean any space in the industrial
building located at Xxx Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxx containing
approximately 310,000 rentable square feet of floor area, other than the
Premises leased to Tenant under this Lease.
(b) Provided that as of the date of the giving of the Offer Notice
(as defined hereinafter), (x) Tenant is the Tenant originally named herein, (y)
Tenant actually occupies all of the Premises originally demised under this Lease
and any premises added to the Premises, and (z) no Event of Default or event
which but for the passage of time or the giving of notice, or both, would
constitute an Event of Default has occurred and is continuing, if at any time
during the Lease Term any lease for any portion of the Offered Space shall
expire and if Landlord intends to market the Offered Space to prospects for
lease with third parties (a "Proposed Tenant") other than the tenant then
occupying such space (or its affiliates), Landlord shall first allow Tenant the
right to include the Offered Space within the Premises.
(c) Such offer shall be made by Landlord to Tenant in a written
notice (the "Offer Notice") which notice shall designate the space being offered
and shall specify the terms for such Offered Space that Landlord intends to
submit to prospective tenants in an effort to market the Offered Space. Tenant
may accept the offer set forth in the Offer Notice by delivering to Landlord an
unconditional acceptance ("Tenant's Notice") of such offer within five (5)
business days after delivery by Landlord of the Offer Notice to Tenant. Time
shall be of the essence with respect to the giving of Tenant's Notice. If Tenant
does not accept (or fails to timely accept) an offer made by Landlord pursuant
to the provisions of this Addendum with respect to the Offered Space designated
in the Offer Notice, Landlord shall be under no further obligation with respect
to such space by reason of this Addendum. In order to send the Offer Notice,
Landlord does not need to have negotiated a lease with any particular Proposed
Tenant but may merely have determined on what basis it will market the Offered
Space to Proposed Tenants. Tenant must make its decision with respect to the
Offered Space as long as it has received a description of such material economic
terms.
(d) Tenant must accept all Offered Space offered by Landlord at
any one time if it desires to accept any of such Offered Space and may not
exercise its right with respect to only part of such space. In addition, if
Landlord desires to lease more than just the Offered Space to one tenant,
Landlord may offer to Tenant pursuant to the terms hereof all such space which
Landlord desires to lease, and Tenant must exercise its rights hereunder with
respect to all such space and may not insist on receiving an offer for just the
Offered Space.
(e) If Tenant at any time declines any Offered Space offered by
Landlord, Tenant shall be deemed to have irrevocably waived all further rights
under this Addendum, and Landlord shall be free to lease the Offered Space to
any Proposed Tenant including on terms which may be less favorable to Landlord
than those set forth in the Offer Notice.
GUARANTY
Property Address: Xxx Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxx
Date of Lease: January 15, 2003
1. In order to induce LIT Industrial Limited Partnership ("Landlord") to
execute the Lease to which this Guaranty is attached (the "Lease") with Sundance
Publishing Company, Inc. ("Tenant") for the Demised Premises in Northborough,
Massachusetts, the undersigned (whether one or more than one) has guaranteed and
by this instrument does hereby guarantee the full payment and performance of all
liabilities, obligations, and duties, (including, but not limited to, payment of
Rent) imposed upon Tenant under the terms of the Lease, as if the undersigned
has executed the Lease as Tenant thereunder.
2. The undersigned hereby waives notice of acceptance of this guarantee and all
other notices in connection herewith or in connection with the liabilities,
obligations, and duties guaranteed hereby, including notices of default by
Tenant under the Lease.
3. The undersigned further agrees that Landlord shall not be first
required to enforce against Tenant or any other person any liability,
obligation, or duty guaranteed hereby before seeking enforcement thereof against
the undersigned. Suit may be brought and maintained against the undersigned by
Landlord to enforce any liability, obligation, or duty guaranteed hereby without
joinder of Tenant or any other person. The liability of the undersigned shall
not be affected by any indulgence, compromise, settlement, or variation of terms
which may be extended to Tenant by Landlord or agreed upon by Landlord and
Tenant, and shall not be impaired, modified, changed, released, or limited in
any manner whatsoever by any impairment, modification, change, release, or
limitation of the liability of Tenant or its estate in bankruptcy, or of any
remedy for the enforcement thereof, resulting from the operation of any present
or future provision of the United States Bankruptcy Code, or any similar law or
statute of the United States or any State thereof. Landlord and Tenant, without
notice to or consent by the undersigned, may at any time or times enter into
such extensions, amendments, assignments, subleases, or other covenants
respecting the Lease as they may deem appropriate; and the undersigned shall not
be released thereby, but shall continue to be fully liable for the payment and
performance of all liabilities, obligations, and duties of Tenant under the
Lease as so extended, amended, assigned or otherwise modified.
4. It is understood that other agreements similar to this guarantee may, at
Landlord's sole option and discretion, be executed by other persons with respect
to the Lease. This guarantee shall be cumulative of any such agreements and the
liabilities and the obligations of the undersigned hereunder shall in no event
be affected or diminished by reason of such agreements. Moreover, in the event
Landlord obtains another signature of more than one guarantor on this page or by
obtaining additional guarantee agreements, or both, the undersigned agrees that
Landlord, in Landlord's sole discretion, may (i) bring suit against all
guarantors of the Lease, jointly and severally, or against any one or more of
them; (ii) compound or settle with one or more of the guarantors for such
consideration as Landlord may deem proper; and (iii) release one or more of the
guarantors from liability. The undersigned further agrees that no such action
shall impair the rights of Landlord to enforce the Lease against any remaining
guarantor or guarantors, including the undersigned.
5. This agreement shall be binding upon the undersigned Guarantor and the
successors, heirs; executors, and administrators of the Guarantor, and shall
inure to the benefit of Landlord and Landlord's heirs, executors,
administrators, successors and assigns.
Executed this ____ day of January, 2003, effective as of the effective day of
the Lease.
GUARANTOR: Haights Cross Communications, Inc.
By: ______________________________________
(Signature)
Name:
Title:
Address:
Phone:
