Exhibit 10.10
L E A S E
ARTICLE I
1.1 Subjects Referred To.
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Each reference in this Lease to any of the following subjects shall be construed
to incorporate the data stated for that subject in this Section 1.1.
Effective Date of this Lease: December 1, 2000
Premises: The buildings and the land upon which it is located
known as and numbered 00 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx
Xxxxxxxxx. The land is further described on Exhibit A
attached hereto.
Landlord: Kristiania Corporation
00 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Tenant: Storage Computer Corporation
00 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Initial Term: Five (5) years, commencing on the Commencement Date,
plus any fraction of a month in which the Commencement
Date occurs.
Extension Options: Five years at then Fair Market Value
Commencement Date: January 1, 2001
Fixed Rent for Initial Term: 1/st/ year $25,000.00 per month. For the
next four years, each year the monthly
rental shall be increased by the
nationally measured Consumer Price Index.
Fixed Rent for Extension Term: See Section 4.2.2
Permitted Uses: Manufacturing and office uses and other uses
customarily incidental thereto.
Commercial General
Liability Insurance Limits: $1,000,000.00
Combined single limit per occurrence of $2,000,000,
plus umbrella coverage of $2,000,000.
Property Insurance: Full replacement cost - see Section 4.3.4.1
Security Deposit: None
1.2 Exhibits.
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The Exhibits listed below in this section are
incorporated in this Lease by reference and are to be
construed as a part of this Lease.
EXHIBIT A. Description of Land
1.3 Table of Articles and Sections.
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ARTICLE I 1
1.1 Subjects Referred To........................................ 1
1.2 Exhibits.................................................... 2
1.3 Table of Articles and Sections.............................. 2
ARTICLE II........................................................... 7
2.1 Premises ................................................... 7
2.2 Term........................................................ 7
2.3 Options to Extend........................................... 7
ARTICLE III.......................................................... 7
3.1 Commencement Date........................................... 7
ARTICLE IV
4.1 Net Lease................................................... 8
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4.2 The Fixed Rent............................................... 8
4.2.1 Initial Term................................................. 8
4.2.2 Extension Term............................................... 8
4.3 Additional Rent.............................................. 9
4.3.1 Real Estate Taxes............................................ 9
4.3.2 Betterment Assessments....................................... 10
4.3.3 Tax Payments................................................. 10
4.3.4 Insurance.................................................... 10
4.3.5 Utilities.................................................... 12
4.3.6 Operating Expenses........................................... 12
4.3.7 Capital Expenditures......................................... 13
4.3.8 Payment to Mortgage.......................................... 13
ARTICLE V............................................................. 13
5.1 Affirmative Covenants........................................ 13
5.1.1 Perform Obligations.......................................... 13
5.1.2 Use.......................................................... 13
5.1.3 Repair and Maintenance....................................... 13
5.1.4 Compliance with Law.......................................... 13
5.1.5 Indemnification.............................................. 14
5.1.6 Landlord's Right to Enter.................................... 14
5.1.7 Personal Property at Tenant's Risk........................... 14
5.1.8 Yield Up..................................................... 15
5.1.9 Estoppel Certificate......................................... 15
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5.1.10 Garbage, Trash and Refuse................................... 15
5.1.11 Outdoor Maintenance......................................... 15
5.2 Negative Covenants.......................................... 16
5.2.1 Assignment and Subletting................................... 16
5.2.2 Overloading and Nuisance.................................... 17
5.2.3 Hazardous Materials......................................... 17
5.2.4 Installation, Alterations or Additions...................... 18
5.2.5 Signs....................................................... 19
5.2.6 Compliance with Insurance Regulations....................... 19
ARTICLE VI........................................................... 19
6.1 Quiet Enjoyment............................................. 19
6.2 Payments ................................................... 19
ARTICLE VII.......................................................... 19
7.1 Termination................................................. 19
7.2 Restoration................................................. 20
7.3 Award....................................................... 21
ARTICLE VIII......................................................... 21
8.1 Events of Default........................................... 21
8.2 Remedies ................................................... 22
8.3 Remedies Cumulative......................................... 23
8.4 Landlord's Right to Cure Tenant's Defaults.................. 23
8.5 Emergency Conditions........................................ 24
8.6 Effect of Waivers of Default................................ 24
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8.7 No Waiver, etc................................................... 24
8.8 No Accord and Satisfaction....................................... 24
ARTICLE IX................................................................ 24
9.1 Rights of Mortgage Holders....................................... 24
9.2 Lease Superior or Subordinate to Mortgages....................... 25
9.3 Non-Disturbance From Present Mortgage............................ 25
9.4 Other Provisions Relating to Mortgages........................... 25
ARTICLE X................................................................. 26
10.1 Notices From One Party to the Other.............................. 26
10.2 Lease Not to be Recorded......................................... 26
10.3 Limitation of Landlord's Liability............................... 26
10.4 Force Majeure.................................................... 26
10.5 Applicable Law and Construction.................................. 27
10.7 Interest ........................................................ 27
10.8 Security Deposit................................................. 27
10.9 Voting Control of Tenant......................................... 27
10.10 Partnership...................................................... 28
10.11 Entire Agreement................................................. 28
10.12 Captions, Etc.................................................... 28
10.13 Partial Invalidity............................................... 28
10.14 Legal Expenses................................................... 28
10.15 Notice of Lease.................................................. 29
10.16 Confidential Information......................................... 29
10.17 Cumulative Remedies.............................................. 29
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10.18 Submission Not an Offer.......................................... 29
10.19 Corporate Authority.............................................. 29
10.20 Waiver of Trial by Jury.......................................... 29
10.21 Transferee Liability............................................. 29
10.22 Counterparts..................................................... 29
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ARTICLE II
Premises and Term
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2.1 Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
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Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, including, as
appurtenant thereto, the right to park in the parking lot on or
appurtenant to the Premises, to use the loading docks and service areas
thereon and to use and enjoy any and all rights of pedestrian and
vehicular access and egress over all driveways, roads, sidewalks and ways
bounding or servicing the Premises. The Premises are subject to the
encumbrances, restrictions and easements, if any, and shall have the
benefit of, as appurtenant thereto, the rights and easements, if any, all
as further described in the Title Commitment attached as Exhibit B. The
Premises are further subject to all building and zoning laws, ordinances
and governmental regulations now or hereafter in effect.
2.2 Term. TO HAVE AND TO HOLD for a term (the "Term") beginning on the
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Commencement Date (as determined pursuant to Section 3.1) and continuing
for the Term, as described in Section 1.1, unless sooner terminated as
hereinafter provided. A "Lease Year", as used herein, shall mean the
twelve (12) month period commencing on the first day of the first full
month of the Term, or on each anniversary thereof during the Term.
2.3 Options to Extend. Tenant shall have an option to extend the Initial Term
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for one (1) successive period of five (5) years (the "Extension Term"),
provided (i) no material default in the obligations of Tenant under this
Lease shall exist at either the time such option is exercised or the time
such Extension Term begins (which condition Landlord may waive in writing)
remaining uncured beyond any applicable grace period and (ii) Tenant shall
give notice to Landlord of its exercise of such option not less than
twelve (12) months prior to the expiration of the Initial Term. All of the
terms and provisions of this Lease shall be applicable during the
Extension Term, except that (a) Tenant shall have no option to extend the
Term of the Lease beyond the last Extension Term provided herein and (b)
Fixed Rent for an Extension Term shall be determined as provided in
Section 4.2.2 hereof.
ARTICLE III
Commencement Date
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3.1 Commencement Date: The Commencement Date of this Lease is January 1, 2001.
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ARTICLE IV
Rent
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4.1 Net Lease. This Lease is a net lease and the Fixed Rent, Additional Rent
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and all other sums payable hereunder to or on behalf of the Landlord
shall be paid without notice or demand and without set off, except as
specifically provided herein. It is intended that, except where
specifically provided herein, Tenant and not Landlord shall bear all
costs incurred in connection with the operation and maintenance of the
Premises.
4.2 The Fixed Rent.
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4.2.1 Initial Term. From and after the Commencement Date during the Initial
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Term, Tenant covenants and agrees to pay Fixed Rent, as set forth in
Section 1.1, to Landlord at the Original Address of Landlord or at such
other place or to such other person or entity as Landlord may by notice
in writing to Tenant from time to time direct, in equal monthly
installments, in advance, on the first day of each calendar month
included in the Term; and for any portion of a calendar month as of the
Commencement Date or at the end of the Term, at the then applicable
rate, payable in advance for such portion.
4.2.2 Extension Term. For an Extension Term, Fixed Rent and monthly
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installments shall be as agreed or at Fair Market Rent as determined in
accordance with the following procedures, however, in no event shall the
Fair Market Rent for the Extended Term be less than the Fixed Rent
during the last year of the Initial Term . Upon Tenant's request given
not earlier than three (3) months prior to the last date by which Tenant
is to give notice of an election to extend, Landlord shall designate the
proposed Fixed Rent for the Extension Term, if the option were
exercised. If Tenant disagrees with Landlord's designation of the
proposed Fixed Rent, then Tenant shall have the right, by notice given
within fifteen (15) days after Tenant has been notified of Landlord's
designation, to submit the determination of the applicable Fixed Rent to
arbitration as follows: If the parties shall not have agreed upon the
Fixed Rent for the Extension Term within fifteen (15) days after
Tenant's notice, then the Fair Market Rent ("Fair Market Rent") shall be
determined by an appraiser acceptable to both Landlord and Tenant who
shall be a member of the M.A.I. or A.S.R.E.C. (or successor professional
organizations) and shall have at least ten (10) years experience
appraising commercial property in the Greater Boston area. Landlord and
Tenant shall share equally the expense of the appraiser. If the parties
can not agree on an appraiser within ten (10) days of Tenant's notice,
then either party may, with notice to the other, apply to the then
governing board of A.S.R.E.C. (or any successor organization) for such
appointment. "Fair Market Rent" shall be computed as of the applicable
date at then general market conditions for comparable space used for the
Permitted Uses, taking into account and giving effect, in determining
comparability, without limitation, to such considerations as size,
location, age and condition. Neither party shall be deemed under any
compulsion to rent or lease space. The arbitrator shall not have the
right to modify any other provision of the Lease except Fixed Rent.
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4.3 Additional Rent. Tenant covenants and agrees to pay, as Additional Rent,
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taxes, betterment assessments, insurance costs, utility charges,
operating expenses, special taxes and certain capital expenditures with
respect to the Premises as provided in this Section 4.3 as follows:
4.3.1 Real Estate Taxes.
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(a) Tenant shall pay all taxes levied or assessed by, or becoming payable to
the municipality or any governmental authority having jurisdiction of the
Premises, for or in respect of the Premises or which may become a lien on
the Premises, for each tax period partially or wholly included in the
Term, such payments to be made in the manner provided in Subsection 4.3.3
of this Section 4.3. For any fraction of a tax period included in the
Term at the beginning or end thereof, Tenant shall pay the fraction of
taxes so levied or assessed or becoming payable which is allocable to
such included period and such obligation shall be deemed to survive
expiration or termination of the Lease.
If at least twenty (20) days prior to the last day for filing an
application for abatement of real estate taxes for any tax year, Tenant
shall give notice to Landlord that it desires to file an application for
abatement of real estate taxes for such tax year and if within ten (10)
days after the receipt of such notice Landlord shall not give notice to
Tenant that it shall file such application, Tenant shall have the right
either in its own name or in the name of Landlord but at its own cost and
expense to file such application. If within ten (10) days after receipt
by Landlord of such notice by Tenant, Landlord shall give Tenant notice
that it shall file such application, Landlord shall file the same prior
to the expiration of the time for the filing of the same at its own cost
and expense. In any event, if any abatement by whoever prosecuted shall
be obtained, the cost and expense of obtaining the same shall be a first
charge upon such abatement. If Tenant shall file an application for
abatement pursuant to the provisions of this paragraph, Tenant shall
prosecute the same to final determination with diligence and shall not,
without Landlord's consent, settle, compromise or discontinue the same
except that Tenant may discontinue the prosecution of the same at any
time after giving Landlord notice thereof and a reasonable opportunity to
assume prosecution of the same. If Landlord shall file an application for
abatement for any tax year, Landlord shall prosecute the same to final
determination with diligence and shall not without Tenant's consent,
settle, compromise, or discontinue the same except that Landlord may
discontinue the prosecution of the same at any time after giving Tenant
notice thereof and a reasonable opportunity to assume prosecution of the
same. If either party shall prosecute an application for an abatement,
the other will cooperate and furnish any pertinent information in its
files reasonably required by the prosecuting party. Such real estate
taxes and other charges shall nonetheless be paid on the date upon which
they shall be due and payable. Landlord, if requested by Tenant, shall
cooperate to the extent required by law in such proceeding, but all
expenses incurred by Landlord in connection with such cooperation shall
be promptly reimbursed to Landlord by Tenant. In every case, any refund,
rebate, credit or abatement of real estate taxes shall be equitably
apportioned between the parties with due regard to the duties and rights
of each under this Lease, after first reimbursing for their respective
costs and expenses in the contest or other proceeding, the parties
participating in such contest or proceeding.
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(c) Nothing contained in this Lease shall, however, require Tenant to pay
any franchise, corporate, estate, inheritance, succession, capital levy
or transfer tax of Landlord, or any income, profits or revenue tax or
charge (except as provided by law or except for a tax upon rents as
provided below) upon the rent payable by Tenant under this Lease;
provided, however, that if, at any time during the Term hereof, the
present system of ad valorem taxation of real property shall be changed
(which change is applicable to all owners of real estate within the
applicable taxing district, generally) so that in lieu of, or in
addition to, the whole or any part thereof, there shall be assessed on
Landlord a capital levy or other tax on the Fixed Rent, Additional Rent
or other charges payable by Tenant hereunder, or if there shall be
assessed on Landlord a federal, state, county, municipal, or other
local income, franchise, excise or similar tax, assessment, levy or
charge measured by or based, in whole or in part, upon the Fixed Rent,
Additional Rent or other charges payable by Tenant hereunder (as
opposed to a general tax on income), then any and all of such taxes,
assessments, levies or charges, to the extent that the same would be
payable if the Premises were the only property of Landlord subject to
same, shall be deemed to be included in the taxes to be paid by Tenant
pursuant to this subsection 4.3.1. but only to the extent billed to and
payable by Landlord on account of the Premises. Landlord agrees to
furnish Tenant promptly with a copy of each tax xxxx when and as
received.
4.3.2 Betterment Assessments. Tenant shall pay each installment of all
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public, special or betterment assessments levied or assessed by or
becoming payable to any municipality or other governmental authority
having jurisdiction of the Premises, for or in respect of the Premises
for each installment period partially or wholly included in the term,
such payments to be made to Landlord in the manner provided in
Subsection 4.3.3 of the Section 4.3. For any fraction of an installment
period included in the term at the beginning or end thereof, Tenant
shall pay to Landlord the fraction of such installment allocable to
such included period. Tenant's obligations with respect to betterment
assessments shall apply only to the extent an installment period would
be partially or wholly included in the term if the assessment were paid
over the longest period permitted by law. Such obligation shall be
deemed to survive expiration or termination of the Lease. Tenant shall
have the same rights regarding abatement of betterments as are provided
in Subsection 4.3.1 with respect to real estate taxes.
4.3.3 Tax Payments. Tenant shall, as Additional Rent, pay taxes and
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betterment assessments required under Sections 4.3.1 and 4.3.2 to
Landlord or, if requested by Landlord, to its mortgagee on or before
the fifteenth (15th) day prior to the last day on which such taxes and
assessments may be paid without interest or penalty. Landlord shall
promptly furnish Tenant with receipted tax bills or such other evidence
of such payment as Tenant may reasonably request.
4.3.4 Insurance. Tenant shall, at its expense, as Additional Rent, take out
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and maintain throughout the Term the following insurance protecting
Landlord and, where applicable, its mortgagee(s) of which Tenant shall
have had notice:
4.3.4.1 (a) Comprehensive General Liability insurance indemnifying against all
claims and demands for death or any injury to person or damage to
property which may be claimed to have occurred on the Premises in
amounts which shall, at the beginning of the Term, be at least equal to
the limits set forth in Section 1.1, and, which, from time to time
during the Term, shall be for such higher limits, if any, as Landlord
shall require, provided such higher limits are customarily carried in
the
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area in which the Premises are located on property similar to the
Premises and used for similar purposes; (b) Cause of Loss - Special
Form, property insurance, and builders risk insurance during periods of
construction, on a full replacement value, agreed amount basis, with
increased cost of construction and difference in condition
endorsements, and a Utility Services endorsement, and, if the property
is in a flood hazard zone, flood coverage to the extent the same is
available at reasonable rates, insuring the Building and its rental
value; (d) Rents Loss insurance in the amount of one year's Fixed Rent
and Additional Rent; (d) insurance against loss or damage from
sprinklers and from leakage or explosions or cracking of boilers, pipes
carrying steam or water, or both, pressure vessels or similar
apparatus, in such form and amounts as Landlord shall specify; (e)
insurance against such other hazards and in such amounts as may from
time to time reasonably be required by any bank, insurance company or
other lending institution holding a mortgage on the Building, or as
Landlord may reasonably require, but Tenant shall not be obligated to
provide and maintain any such additional insurance with coverage and
limits in excess of those customarily carried in the area in which the
Premises are located on property similar to the Premises and used for
similar purposes; (f) if a holder of a mortgage so requires, earthquake
insurance; and (g) workers' compensation insurance with statutory
limits covering all of Tenant's employees working at the Premises.
4.3.4.2 All such policies shall be obtained from responsible companies
qualified to do business and in good standing in Massachusetts or New
Hampshire. Tenant agrees to furnish Landlord and then holders of
mortgages of the Premises of which Tenant shall have had notice with
certificates (and, if requested by Landlord or such mortgagees, with
copies of the policies) evidencing all such insurance coverage prior to
the beginning of the Term hereof and evidencing renewal thereof at
least ten (10) days prior to the expiration of any such policy.
4.3.4.3 All policies of insurance required under the provisions of this Section
shall, where apt (but not policies solely covering Tenant's trade
fixtures and personal property), name Landlord and the then holders of
mortgages of the Premises (as to whom Tenant shall have had notice) as
insureds, loss payees or as an additional insureds, as applicable, and
the policies shall provide that no cancellation or modification thereof
shall be effected until thirty (30) days' notice of cancellation or
modification is provided to Landlord and any such mortgagee named
therein. All policies shall state that any loss shall be payable in
accordance with the policy terms notwithstanding any act or negligence
of Tenant, its agents or employees and shall be written by companies
carrying a rating of A - X or better according to the standards set by
A.M. Best Company (or a similar rating by an equivalent rating
company). Not less frequently than annually, Tenant shall furnish
Landlord with a written certificate addressed to Landlord by Tenant's
insurance agent or insurer to the effect that the aforesaid insurance
is in force.
4.3.4.4 All insurance (except Workers' Compensation) which is carried by either
party with respect to the Premises or to furniture, furnishings,
fixtures or equipment therein or alterations or improvements thereto,
whether or not required, shall include, where apt, provisions which
either designate the other party as one of the insureds or deny to the
insurer acquisition by subrogation of rights of recovery against the
other party to the extent such rights have been waived by the insured
party prior to occurrence of loss or injury, insofar as, and to the
extent that such provisions may be effective without making it
impossible to obtain insurance coverage from responsible companies
qualified to do business in the Commonwealth of Massachusetts or New
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Hampshire(even though extra premium may result therefrom) and without
voiding the insurance coverage in force between the insurer and the
insured party. On reasonable request, each party shall be entitled to
have copies or certificates of policies containing such provisions.
Each party, on behalf of itself and its insurers, hereby waives all
rights of recovery against the other for loss or injury against which
the waiving party is protected by insurance (or for which a party self-
insures) containing said provisions, reserving, however, any rights
with respect to any excess of loss or injury over the amount recovered
by such insurance.
4.3.4.5 The proceeds of insurance attributable to a Casualty shall be applied
or distributed in the manner and order of priority as is and to such
persons provided in Article VII.
4.3.5 Utilities. Tenant shall make arrangements for service and shall pay
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directly to the public utility or other agency charged with the
collection thereof all charges for telephone, electricity, water, gas
and other utilities or services used or consumed on the Premises,
whether designated as a charge, tax, assessment, fee or otherwise, all
such charges to be paid as the same from time to time become due. It is
understood and agreed that Tenant shall make its own arrangements for
the installation or provision of all utilities and that Landlord shall
be under no obligation to furnish any utilities to the Premises and
shall not be liable for any interruption or failure in the supply of
any such utilities to the Premises, nor shall Tenant be entitled to an
abatement or reduction of rent on account of any such interruption or
failure.
4.3.6 Operating Expenses. Tenant shall, at all times, manage and maintain the
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Premises and shall pay all costs and expenses incurred thereby. Without
limitation, Tenant shall, at its expense: (a) maintain, for its own
benefit and for the benefit of Landlord and any then holders of
mortgages of the Premises of which Tenant shall have had notice, all
insurance described in Section 4.3.4 or otherwise required by Landlord
or such mortgagee(s) (but only to the extent such additional coverage
is customarily required for comparable leases and buildings); (b) pay
directly (or to Landlord where so required) all utility charges and
real estate taxes or taxes in lieu thereof, personal property taxes,
assessments for public betterments or public improvements and all other
similar governmental taxes, impositions and charges on or affecting the
Premises, or any portion thereof; (c) plow snow from and treat ice on
the sidewalks, parking lot and loading areas, if any, abutting the
Premises and keep any sidewalks, parking lot and loading areas clean
and free of rubbish and debris; (d) keep the Building, including,
without limitation, the safety, heating, plumbing, electrical, air-
conditioning and mechanical systems, exterior walls, glass, doors,
roof, foundation, and other structural components of the Building in
good order, condition and repair and (e) cause garbage and refuse to be
removed daily or more often, as the need requires, in order to maintain
the Premises in a safe and sanitary condition. Except as provided in
Article VII hereof, Tenant shall make all repairs and replacements and
perform or cause to be performed all other work necessary for the
foregoing purposes, whether the same may be ordinary or extraordinary,
foreseen or unforeseen. Anything herein to the contrary
notwithstanding, Landlord may at its option (but without obligation) at
any time after Tenant shall fail to perform, fulfill or observe any
agreement or obligation of Tenant set forth in any provision of this
Lease (but only after expiration of any applicable grace period
continuing after notice from Landlord to Tenant specifying such
failure), or such shorter notice as shall be appropriate in the event
of an emergency, pay and perform any or all of the agreements and
obligations of Tenant under this Lease and require Tenant, as
Additional Rent, to reimburse Landlord for same.
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4.3.7 Capital Expenditures. In the event that capital improvements are
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required to be made in order to comply with applicable laws, ordinances
or regulations (including, without limitation, Title III of the ADA) now
or hereafter enacted, or, where reasonably necessary, to repair or
replace the structure, equipment, systems or components of the Building,
Tenant shall cause such improvement(s) to be made at its sole cost and
expense. The making of any such improvements shall be subject to
obtaining Landlord's approval, which shall not be unreasonably withheld
or delayed.
4.3.8 Payment to Mortgagee. Landlord reserves the right to provide in any
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Mortgage given by it of the Premises that some or all rents, issues, and
profits and all other amounts of every kind payable to the Landlord
under this Lease shall be paid directly to the Mortgagee for Landlord's
account and Tenant covenants and agrees that it will, after receipt by
it of notice from Landlord designating such Mortgagee to whom payments
are to be made by Tenant, pay such amounts thereafter becoming due
directly to such Mortgagee until excused from such obligation by notice
from such Mortgagee.
ARTICLE V
Tenant's Additional Covenants
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5.1 Affirmative Covenants. Tenant covenants at all times beginning with
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Tenant's first entry into the Premises, during the Term and for such
further time as Tenant occupies the Premises or any part thereof:
5.1.1 Perform Obligations. To perform promptly all of the obligations of
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Tenant set forth in this Lease; and to pay when due the Fixed Rent and
Additional Rent and all charges, rates and other sums which by the
provisions of this Lease are to be paid by Tenant.
5.1.2 Use. To use the Premises only for the Permitted Uses, and from time to
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time to procure all licenses and permits necessary therefor, at Tenant's
sole expense.
5.1.3 Repair and Maintenance. Except as otherwise provided in Article VII, to
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keep the Premises in good order, condition and repair, reasonable use
and wear only excepted; and to make all repairs and replacements and to
do all other work necessary for the foregoing purposes whether the same
may be ordinary or extraordinary, foreseen or unforeseen. Tenant's
obligations regarding the undertaking and payment of capital
expenditures related to the above obligations shall be governed by
Section 4.3.7. Tenant shall maintain HVAC and elevator service contracts
(if an elevator is required) in form and with a contractor or provider
of such service reasonably satisfactory to Landlord.
5.1.4 Compliance with Law. To make all repairs, alterations, additions or
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replacements to the Premises required by any law or ordinance or any
order or regulation of any public authority now or hereafter enacted
(unless the Premises are "grandfathered" so that such improvements are
not required to be made); to keep the Premises equipped with all safety
appliances so required; and to comply with the orders and regulations of
all governmental authorities with respect to zoning, building, fire,
health and other codes, regulations, ordinances or laws now or hereafter
applicable
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to the Premises (including, without limitation, the ADA as now or
hereafter in effect) except that Tenant may defer compliance so long as
the validity of any such law, ordinance, order or regulation shall be
contested by Tenant in good faith and by appropriate legal proceedings
and provided that such contest operates to postpone enforcement and
provided that Tenant shall indemnify Landlord against any loss, cost or
expense on account thereof.
5.1.5 Indemnification. To save Landlord harmless, and to exonerate and
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indemnify Landlord from and against any and all claims, liabilities or
penalties asserted by or on behalf of any person, firm, corporation or
public authority (i) on account of injury, death, damage or loss to
person or property in or upon the Premises or arising out of any
delivery to or service supplied on, at or to the Premises for the
benefit of or at the request of Tenant or persons claiming by, through
or under Tenant or to Tenant's invitees, except if the same was caused
by the negligence, fault or misconduct of Landlord, its agents,
employees, contractors and other persons for whose conduct Landlord is
responsible or (ii) on account of the presence or release of Hazardous
Materials caused by Tenant or otherwise arising due to the failure of
Tenant to comply with applicable laws, regulations and requirements as
to Hazardous Materials, or (iii) on account of the failure of Tenant to
comply with the ADA, or (iv) on account of or based upon anything
whatsoever done on the Premises, except if the same was caused by the
negligence, fault or misconduct of Landlord, its agents, employees,
contractors or other persons for whose conduct Landlord is responsible,
or (v) on account of any default by Tenant under the terms of this
Lease. In respect of all of the foregoing, Tenant shall indemnify
Landlord from and against all costs, expenses (including reasonable
attorneys' fees), and liabilities incurred in or in connection with any
such claim, action or proceeding brought thereon; and, in case of any
action or proceeding brought against Landlord by reason of any such
claim, Tenant, upon notice from Landlord and at Tenant's expense, shall
resist or defend such action or proceeding and employ counsel therefor
reasonably satisfactory to Landlord. Landlord agrees that defense by
counsel provided by Tenant's insurer, where applicable, shall be
satisfactory to Landlord.
5.1.6 Landlord's Right to Enter. To permit Landlord and its agents upon
-------------------------
reasonable advance notice to enter upon and examine the Premises at
reasonable times (or when reasonably necessary in order to effect
repairs or remedy conditions applicable to an emergency, as provided in
Section 8.5 in which case notice, which may be oral, shall be such as is
reasonable under the circumstances) and to show the Premises (except
entry to show to prospective tenants shall not be permitted, except in
the last twelve (12) months of the Term), and, when and if permitted or
required under the provisions of this Lease, to make repairs to the
Premises, provided that Landlord undertakes to minimize as much as
reasonably practicable any interference with Tenant's business conducted
on the Premises.
5.1.7 Personal Property at Tenant's Risk. Tenant shall cause to be insured at
----------------------------------
full replacement value all of the furnishings, fixtures, equipment,
effects and property of every kind, nature and description of Tenant and
of all persons claiming by, through or under Tenant which, during the
Term of this Lease or any occupancy of the Premises by Tenant or anyone
claiming under Tenant, may be on the Premises, and all of the same shall
be at the sole risk and hazard of Tenant and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by
the leakage or bursting of water pipes, steam pipes, or other pipes, by
theft or from any other cause, no part of said loss or damage is to be
charged to or to be borne by Landlord, except that Landlord shall
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in no event be indemnified or held harmless or exonerated from any
liability to Tenant or to any other person, for any injury, loss, damage
or liability resulting from negligence, fault or misconduct of Landlord,
its agents, employees and contractors.
5.1.8 Yield Up. Upon the expiration of the Term or the earlier termination of
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this Lease: to surrender all keys to the Premises; to remove, at
Landlord's request, all of its trade fixtures and personal property in
and signs on the Premises; to remove all leasehold improvements and
installations made by Tenant; to repair all damage caused by such
removal and to yield up the Premises, including all leasehold
improvements made by Tenant and not required to be removed by Tenant,
broom-clean and in the same good order and repair in which Tenant is
obliged to keep and maintain the Premises by the provisions of this
Lease. Any removable property not so removed shall be deemed abandoned
and may be removed and disposed of and the damage resulting from such
removal repaired by Landlord in such manner as Landlord shall determine
at the sole cost and expense of Tenant, which obligation shall be deemed
to survive expiration or termination of the Lease. In no event shall
Tenant remove any HVAC or other Building components or systems except in
connection with the repair and replacement thereof, and only if replaced
with comparable items.
5.1.9 Estoppel Certificate. Upon not less than fifteen (15) days' prior
--------------------
written request by Landlord, to execute, acknowledge and deliver to
Landlord a statement in writing certifying, if applicable, that this
Lease is unmodified and in full force and effect, that Landlord is not
in default and that Tenant has no defenses, offsets or counterclaims
against its obligations to pay the Fixed Rent and Additional Rent and
any other charges and to perform its other covenants under this Lease
(or, if there have been any modifications, that the Lease is in full
force and effect as modified and stating the modifications and, if there
are any defenses, offsets or counterclaims, setting them forth in
reasonable detail), and the dates to which the Fixed Rent and Additional
Rent and other charges have been paid. Any such statement delivered
pursuant to this Subsection 5.1.9 may be relied upon by any prospective
purchaser or mortgagee of the Premises, or any prospective assignee of
such mortgage. Upon not less than fifteen (15) days' prior written
request by Tenant, Landlord agrees to execute, acknowledge and deliver
to Tenant a similar estoppel certificate, in a form reasonably
acceptable to Landlord.
5.1.10 Garbage, Trash and Refuse. To store garbage, trash and refuse in secure
-------------------------
and adequately sized containers and to cause such garbage, trash and
refuse to be removed daily, or more often, where required in order to
maintain the Premises in a safe, clean and sanitary condition, to take
reasonable precautions to limit or eliminate odors emanating from
garbage, trash and refuse generated and stored at the Premises and to
"police" areas where garbage, trash and refuse is stored so as to remove
any spillage promptly as the same may occur.
5.1.11 Outdoor Maintenance. To plow snow form and treat ice on the sidewalks,
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parking lot and loading areas, if any, abutting the Premises; keep any
sidewalks, parking lot and loading areas clean and free of rubbish and
debris; repave and restripe the parking lot when and as reasonably
necessary; maintain and, where reasonably necessary; replace any outdoor
lighting and security systems; and maintain any landscaped areas in good
and attractive condition.
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5.2 Negative Covenants. Tenant covenants at all times during the Term and
------------------
such further time as Tenant occupies the Premises or any part thereof:
5.2.1 Assignment and Subletting.
-------------------------
(a) Not to assign, transfer, mortgage or pledge this Lease or to sublease all
or any part of the Premises or suffer or permit this Lease or the
leasehold estate hereby created or any other rights arising under this
Lease to be assigned, transferred or encumbered, in whole or in part,
whether voluntarily, involuntarily or by operation of law, or permit the
occupancy of the Premises by anyone other than Tenant without the prior
written consent of Landlord as hereinafter provided. The foregoing
notwithstanding, Tenant may, without consent of Landlord, sublease or
assign to a Related Entity, provided that Tenant shall remain liable
under this Lease after such assignment to the same extent as before,
which liability shall be primary. As used herein, a "Related Entity"
shall be an entity which is owned and controlled by Storage Computer
Corporation and, in fact, managed by them. For the purposes hereof,
"ownership" shall consist of more than 50% of all financial interest and
more than 50% of the voting interest and "control" shall mean the power
to direct management and operations or to elect or replace persons having
such power. Written notice of any such transfer shall be given to
Landlord prior to such transfer, together with sufficient documentation
so that Landlord can reasonably determine that the transfer is to a
Related Entity.
(b) In the event Tenant desires to assign this Lease or sublet any portion or
all of the Premises for which consent of Landlord is required, Tenant
shall notify Landlord in writing of Tenant's intent to assign this Lease
or sublet the Premises and the proposed assignee or subtenant and the
proposed effective date of such subletting or assignment, and shall
request in such notification that Landlord consent thereto. Such notice
shall be accompanied by (i) a detailed memorandum containing all of the
terms of the proposed assignment or sublease signed by Tenant and the
proposed transferee, (ii) a certified balance sheet and income and
expense statement for the most recent complete fiscal year of such
proposed transferee (or in the case of a proposed sublessee, written
evidence reasonably acceptable to Landlord that there has been no adverse
change in Tenant's financial position since the inception of the Lease),
(iii) a detailed statement of such proposed transferee's business history
and business use, and (iv) a plan of the space which is to be the subject
of the transfer, if less than the entire Premises. Landlord's consent
shall not be unreasonably withheld to an assignment, or to a subletting,
and shall be given (or a rejection given, with specific reasons stated)
by notice within fifteen (15) days after Tenant's notification and
delivery of such information respecting the proposed assignee or
subtenant as Landlord shall reasonably request. Any approved assignment
or sublease shall be only for the Permitted Uses.
(c) The parties hereby agree that it shall be reasonable under this Lease and
under any applicable law for Landlord to withhold consent to any proposed
transfer, where one or more of the following applies: (i) the proposed
transferee is of a character or reputation or engaged in a business which
is not consistent with the quality or reputation of the Premises or the
general area in which the Premises are located; (ii) the proposed
transferee does not have a reasonable financial condition (including,
without limitation, net worth) in relation to the obligations to be
assumed in connection with the transfer; (iii) Tenant has committed and
failed to cure a material default at the time Tenant requests consent to
the proposed transfer; (iv) the portion of the
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Premises as proposed to be configured or the portion remaining after the
transfer, or both together, is/are reasonably estimated by Landlord to
result in excessive costs to Landlord which will not be fully
reimbursed. A sublessee or assignee may use the Premises, or applicable
portion thereof, for any lawful purpose if such sublessee or assignee is
a bona fide third party, but Tenant or any Related Entity, shall be
restricted to the Permitted Use only. The foregoing shall not be deemed
exhaustive of the grounds upon which Landlord may reasonably refuse
consent. If Landlord consents thereto, no such subletting or assignment
shall in any way impair the continuing primary liability of Tenant
hereunder, and no consent to any subletting or assignment in a
particular instance shall be deemed to be a waiver of the obligation to
obtain the Landlord's written approval in the case of any other
subletting or assignment. Tenant shall reimburse Landlord promptly, as
Additional Rent, for reasonable legal and other expenses incurred by
Landlord in connection with any request by Tenant for consent to any
assignment or subletting.
(d) If for any assignment or sublease consented to by Landlord hereunder
Tenant receives rent or other consideration, either initially or over
the term of the assignment or sublease, in excess of the Fixed Rent and
Additional Rent called for hereunder, or in case of a sublease or
assignment of part, in excess of such Fixed Rent and Additional Rent
fairly allocable to the part, after appropriate adjustments to assure
that all other payments called for hereunder are appropriately taken
into account, Tenant shall pay to Landlord, as Additional Rent, fifty
percent (50%) of such excess over Fixed Rent and Additional Rent payable
hereunder. Such payment to Landlord shall be made promptly after receipt
by Tenant of rent or other consideration on account of the assignment or
sublease. Tenant shall be responsible, at its sole expense, for the
payment of all Fix Up Expenses (including, without limitation, brokers
fees, legal fees, the cost of any build out for such assignee or
sublessee and amounts paid to Landlord in reimbursement to Landlord of
third-party expenses incurred in connection with the approval of
assignments or subleases) incurred in connection therewith.
5.2.2 Overloading and Nuisance. Not to injure, overload, deface or otherwise
------------------------
harm the Premises; nor commit any nuisance; nor permit the emission of
any objectionable noise or odor; nor make, allow or suffer any waste;
nor make any use of the Premises which is improper, offensive or
contrary to any law or ordinance or which will invalidate any of the
insurance required to be provided hereunder.
5.2.3 Hazardous Materials Anything herein contained to the contrary,
-------------------
notwithstanding, Tenant may store on or bring to the Premises small
amounts of oil or Hazardous Materials in quantities customarily used by
businesses conducting similar operations provided that in so doing,
Tenant shall comply with all applicable legal requirements and with the
highest standards prevailing in the industry for the storage and use of
the same. Tenant shall not bring or permit to be brought or transferred
into or keep in or on the Premises, or dump, flush or otherwise dispose
of any Hazardous Materials (as hereinafter defined) or any inflammable,
combustible or explosive fluid, material, chemical or substance, into
the drainage, sewage or waste disposal systems serving the Premises or
cause or permit any unusual or other objectionable odors to emanate from
or permeate the Premises; nor to generate, store, use, release, spill or
dispose of any Hazardous
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Materials in or on the Premises or the land, or to transfer any
Hazardous Materials from the Premises to any other location; and not to
commit or suffer to be committed in or on the Premises any act which
would require any reporting or filing of any notice with any
governmental agency pursuant to any statutes, laws, codes, ordinances,
rules or regulations, present or future, applicable to the Premises or
to Hazardous Materials.
Tenant agrees that if it or anyone claiming under it shall generate, store,
release, spill, dispose of or transfer to the Premises any Hazardous
Materials, it shall forthwith remove the same, at its sole cost and
expense, in the manner provided by all applicable Environmental Laws,
regardless of when such Hazardous Materials shall be discovered.
Furthermore, Tenant shall pay any fines, penalties or other assessments
imposed by any governmental agency with respect to any such Hazardous
Materials and shall forthwith repair and restore any portion of the
Premises or land which it shall disturb in so removing any such
Hazardous Materials to the condition which existed prior to Tenant's
disturbance thereof.
Tenant agrees to deliver promptly to Landlord any notices, orders or similar
documents received from any governmental agency or official concerning
any violation of any Environmental Laws or with respect to any Hazardous
Materials affecting the Premises.
For purposes of this Lease, the term "Hazardous Materials" shall mean and
include any oils, petroleum products, asbestos and any other toxic or
hazardous wastes, materials and substances which are defined, determined
or identified as such in any Environmental Laws, or in any judicial or
administrative interpretation of Environmental Laws. "Environmental
Laws" shall mean any and all federal, state, local and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, codes,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to the
environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or Hazardous Materials or wastes into the environment including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or Hazardous Materials or wastes or the cleanup or other
remediation thereof.
The obligations of Tenant contained in this Section 5.2.3 shall survive the
expiration or termination of this Lease.
5.2.4 Installation, Alterations or Additions. Not to make any installations,
--------------------------------------
alterations or additions in, to or on the Premises without on each
occasion obtaining the prior written consent of Landlord, which shall
not be unreasonably withheld or delayed, and then only pursuant to plans
and specifications approved by Landlord in advance in each instance;
provided, however, that if Tenant wishes to make non-structural
alterations or improvements having a cost or value not to exceed Twenty
Five Thousand Dollars ($25,000), then the requirement of obtaining
Landlord's consent shall not apply. Tenant shall pay when due the entire
cost of any work to the Premises undertaken by Tenant so that the
Premises shall at all times be free of liens for labor and materials. If
any mechanics' liens or other encumbrances relative to such work shall
be filed against the Premises, Tenant shall bond off or discharge the
same within ten (10) business days
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of notice thereof. Tenant shall procure all necessary licenses and
permits at Tenant's sole expense before undertaking such work. Tenant
shall also comply with Exhibit B, which shall be applicable to any
original and all subsequent construction. All such work shall be done in
a good and workmanlike manner employing materials of good quality and so
as to conform with all applicable zoning, building, fire, health and
other codes, regulations, ordinances and laws. Tenant shall save
Landlord and any mortgagee harmless and indemnified from all injury,
loss, claims or damage to any person or property occasioned by or
arising out of such work.
5.2.5 Signs. Not to place any signs on the Building or elsewhere on the
-----
Premises, except such as are permitted by law. Such signs shall be
maintained in good repair by Tenant and shall conform to applicable
requirements of public authorities. Tenant shall, at its expense, obtain
all licenses and permits applicable to such sign(s).
5.2.6 Compliance with Insurance Regulations. Not to do or permit to be done
-------------------------------------
any act or thing upon the Premises which will invalidate or be in
conflict with the terms of the Massachusetts standard form of fire,
boiler, sprinkler, water damage or other insurance policies covering the
Premises and the fixtures and property therein. Tenant shall, at its own
expense, comply with all rules, regulations, and requirements of the
National Board of Fire Underwriters or any state or other similar body
having jurisdiction.
ARTICLE VI
Landlord's Covenants
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6.1 Quiet Enjoyment. Landlord agrees that upon Tenant's paying the rent and
---------------
performing and observing the agreements, conditions and other provisions
on its part to be performed and observed, Tenant shall and may peaceably
and quietly have, hold and enjoy the Premises during the Term hereof
without any manner of hindrance or molestation from Landlord, subject,
however, to the terms and provisions of this Lease.
6.2 Payments. Unless paid directly by Tenant as required or permitted
--------
herein, Landlord shall cause all taxes and betterment assessments to be
paid when and as funds are furnished by Tenant under Section 4.3.3 and
furnish Tenant with a copy of the receipted tax xxxx or such other
evidence of payment as Tenant may reasonably request.
ARTICLE VII
Casualty or Taking
------------------
7.1 Termination. In the event that a substantial or integral portion of the
-----------
Premises shall be taken by any public authority or for any public use or
destroyed by the action of any public authority (a "Taking"), then this
Lease may be terminated by either Landlord or Tenant, at Landlord's or
Tenant's option, by notice to the other within sixty (60) days of notice
of the Taking, effective as of the effective date of the Taking. As used
herein, "substantial or integral" shall mean at least thirty percent
(30%) of the gross floor area of the Building or, additionally, as to
Tenant's right to terminate, such portion of the Building (even though a
lesser percentage than provided above) if the effect of the Taking is
that Tenant can no longer reasonably conduct business operations in
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the Premises. In the event that any of the Premises shall be destroyed
or damaged by fire or casualty (a "Casualty") and if a mutually
acceptable architect, engineer or contractor (who shall have at least
five (5) years experience in the construction of buildings comparable to
the Building) shall determine within thirty (30) days after such
Casualty that the cost of the restoration equals or exceeds eighty
percent (80%) of the replacement cost of the Premises immediately
preceding the Casualty (or, if such Casualty occurs in the last three
(3) years of the Term and the cost of restoration equals or exceeds
fifty percent (50%) of the replacement cost) or that the restoration
will require in excess of one (1) year from the date of the Casualty to
restore the Premises, then this Lease may be terminated by Landlord or
Tenant, at Landlord's or Tenant's option, by notice to the other party
within thirty (30) days after such determination.
In the event of a termination on account of a Casualty, the proceeds of
insurance recovered on account thereof (and the amount, if any, of any
deductible applicable thereto, which shall be contributed by Tenant)
shall be applied first to repayment in full of the indebtedness secured
by any then first mortgage of the Premises to an institutional lender
and next to be paid or applied to Tenant for the loss relating to the
then unamortized value of the capital improvements made by Tenant (but
not personal property) amortized on a straight line basis over the
Initial Term, prior to any payment to Landlord.
7.2 Restoration. In the event of a Taking or a Casualty, and unless or until
-----------
Landlord or Tenant shall exercise an election to terminate provided in
Section 7.1, this Lease shall continue in force and a just proportion of
the Fixed Rent, Additional Rent and other charges hereunder, according
to the nature and extent of the damages sustained by the Premises, but
not in excess of the net proceeds of insurance recovered under the rent
continuation insurance carried pursuant to Section 4.3.4, shall be
abated until the Premises, or what may remain thereof, shall be put in
proper condition for the conduct of Tenant's business. Upon the
occurrence of a Casualty, if there is no institutional mortgage,
Landlord and Tenant shall jointly adjust the loss and the proceeds of
the insurance shall be paid into a joint account in a financial
institution acceptable to both of them. The proceeds shall be released
out of said account, from time to time, at such time and in such manner
as is mutually acceptable (the parties acting reasonably) but solely for
the purpose of restoration as provided herein. At the election of an
institutional lender holding a first mortgage of the Premises, such
lender, instead of Landlord, shall be permitted to adjust the loss and
hold and disburse the proceeds jointly with Tenant (the parties acting
reasonably) and such lender may hold such proceeds pending disbursement
but subject to the obligation to restore, subject to such reasonable
limitations as such lender and Tenant shall agree upon. Unless the Lease
has been terminated pursuant to Section 7.1, Landlord covenants to cause
the Premises to be restored to substantially the condition they were in
immediately prior to the Casualty or Taking, subject to zoning and
building laws or ordinances then in existence with reasonable diligence
at Landlord's expense; provided, however, that Landlord's obligations
with respect to restoration shall be limited to the net proceeds of
insurance recovered or damages awarded for such Casualty or Taking and
made available for restoration by Landlord's mortgagee, subject to the
foregoing. Tenant shall augment the amount available for restoration by
paying to or for the account of Landlord or if there is such an
institutional lender, to such lender unless it otherwise directs, the
amount of any deductible applicable to the policy or policies. "Net
proceeds of insurance recovered or damages awarded" refers to the gross
amount of such insurance or damages (and the amount, if any, contributed
by Tenant on account of any deductible under the applicable
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policy), less the reasonable expenses of Landlord in connection with the
collection of the same, including, without limitation, fees and expenses
for legal and appraisal services. If the Premises shall not have been
restored, where restoration is required pursuant to the foregoing,
within one (1) year from the date of the casualty, other than for force
majeure as provided in Section 10.4 (including, without limitation, any
delay in adjusting the loss and receiving the insurance proceeds), then
upon written notice to Landlord, Tenant shall have the right to cause
such restoration to be completed itself, instead of Landlord, in which
event the insurance proceeds (or balance remaining thereof) shall be
made available to Tenant out of said account in the same manner as
provided above and Tenant shall have no obligation to pay Fixed Rent
hereunder from the expiration of said one (1) year period until the
restoration has been completed and an occupancy permit issued. If Tenant
exercises such right, Tenant agrees diligently to prosecute the
restoration, subject to force majeure.
7.3 Award. Irrespective of the form in which recovery may be had by law, all
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rights to damages or compensation for any Taking, unless released for
the purposes of restoration, shall be applied, first to repayment of the
indebtedness then secured by a first mortgage of the Premises. After
payment to the first mortgagee as aforesaid, Tenant shall be entitled to
receive out of the proceeds of any award on account of the Taking, the
value of the then unamortized capital improvements (but not personal
property) made by Tenant at Tenant's expense (amortized on a straight
line basis over the Initial Term) before any payment to Landlord.
Subject to the foregoing priorities and Tenant's rights as aforesaid,
Tenant hereby grants to Landlord and the first mortgagee all of Tenant's
rights to such damages and compensation and covenants to deliver such
further assignments thereof as Landlord or such mortgagee may from time
to time request. Tenant (or anyone claiming through Tenant) may make a
claim separate and independent from Landlord for the value of Tenant's
personal property and Tenant's moving and relocation expenses, provided
that payment of the separate award to Tenant does not reduce Landlord's
award from the Taking authority as to the value of the Premises, but the
foregoing shall not affect the priorities with respect to such proceeds
set forth in this Article VII.
ARTICLE VIII
Defaults
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8.1 Events of Default.
-----------------
(a) If Tenant shall default in the performance of any of
its obligations to pay the Fixed Rent or Additional Rent hereunder and
if such default shall continue for ten (10) days after notice from
Landlord designating such default (provided, however, that if notice of
any such failure of payment shall have been given at least twice in the
twelve (12) month period next preceding such failure to pay, such notice
need not be given and such failure to pay without notice shall
constitute a default by Tenant) or if within thirty (30) days after
notice from Landlord to Tenant specifying any other default or defaults,
Tenant has not commenced diligently to correct the default or defaults
so specified or has not thereafter diligently pursued such correction to
completion (provided, however, that there shall be no extension of time
beyond such thirty (30) day period for the curing of any such default
unless Tenant (i) shall specify in a written notice to Landlord given
prior to the expiration of the thirty (30) day period,
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the cause on account of which the default cannot be cured within such
period and shall advise the Landlord of its intention to institute all
steps necessary to cure the default pursuant to a schedule approved by
Landlord in writing, and (ii) shall duly institute and thereafter
diligently prosecute to completion the cure of such default; and
provided, further, however, that the thirty (30) day or longer grace
period provided above shall not be applicable to emergency conditions
where more expeditious action is required to alleviate danger to persons
or property which may result on account of a failure of performance by
Tenant and in such situation, the applicable grace period shall be such
time as is reasonable under the circumstances for corrective work to be
accomplished so as to xxxxx the dangerous condition) or (b) there occurs
an unauthorized change in the ownership of Tenant or an unauthorized
transfer of the leasehold interest, or any portion thereof in violation
of the provisions of Section 10.8, or (c) unless due to a Casualty or
Taking, Tenant shall abandon or vacate the Premises or any substantial
portion thereof, or (d) if any assignment shall be made by Tenant for
the benefit of creditors, or (e) if Tenant's leasehold interest shall be
taken on execution, or (f) if a petition is filed by Tenant for
liquidation, or for reorganization or an arrangement under any provision
of any bankruptcy law or code as then in force and effect, or (g) if an
involuntary petition under any of the provisions of any bankruptcy law
or code is filed against Tenant and such involuntary petition is not
dismissed within ninety (90) days thereafter, then, and in any of such
cases, Landlord and the agents and servants of Landlord lawfully may, in
addition to and not in derogation of any remedies for any preceding
breach of covenant, immediately or at any time thereafter, without
demand or notice, enter into and upon the Premises or any part thereof
in the name of the whole or mail a notice of termination addressed to
Tenant in accordance with Section 10.1 hereof, and repossess the same as
of Landlord's former estate and expel Tenant and those claiming through
or under Tenant and remove its and their effects without being deemed
guilty of any manner of trespass and without prejudice to any remedies
which might otherwise be used for arrears of rent or prior breach of
covenant, and upon such entry or mailing as aforesaid this Lease shall
terminate, and Landlord, without notice to Tenant, may store Tenant's
effects, and those of any person claiming through or under Tenant, at
the expense and risk of Tenant, and, if Landlord so elects, may sell
such effects at public auction or private sale and apply the net
proceeds to the payment of all sums due to Landlord from Tenant, if any,
and pay over the balance, if any, to Tenant.
8.2 Remedies.
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(a) In the event that this Lease is terminated on account
of a default of Tenant under any of the provisions contained in Section
8.1 or shall be otherwise terminated for breach of any obligation of
Tenant, and subject to subparagraph (c) hereof, Tenant shall pay as an
additional and cumulative obligation after any such termination
punctually to Landlord all the sums which Tenant covenants in this Lease
to pay and the reasonable costs of performing Tenant's obligations under
this Lease in the same manner and to the same extent and at the same
time as if this Lease had not been terminated, which obligation shall be
deemed to have survived such termination.
(b) As an alternative to the remedy set forth in (a) above,
at Landlord's election, exercisable by notice within a year following
the effective date of termination under Section 8.1, Tenant covenants to
pay to Landlord the total aggregate Fixed Rent reserved for the balance
of the then Term (exclusive of any unexercised Extension Terms)
remaining at the time
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of payment, less the fair market rental value of the Premises for the
remainder of the Term estimated as of the date of termination, taking into
account reasonable projections of vacancy time required to re-lease the
Premises, discounted to present value at a rate equal to the then U.S.
Prime Rate of Interest, as published in the Wall Street Journal as of the
date of the landlord's exercise.
(c) In calculating the amounts to be paid by Tenant
hereunder under subparagraph (a) above, Tenant shall be credited with the
net proceeds of any rent obtained by Landlord by reletting the Premises,
after deducting all Landlord's reasonable expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commissions, fees for legal services and reasonable expenses of preparing
the Premises for such reletting, it being agreed by Tenant that Landlord
may relet the Premises or any part or parts thereof, for a term or terms
which may, at Landlord's option reasonably exercised, to be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the applicable Term (excluding any unexercised Extension Terms)
and for such consideration or rent as Landlord shall be able, in the
exercise of reasonable diligence, to obtain. Notwithstanding anything to
the contrary herein, Landlord shall not be required to (i) use methods or
procedures other than its usual methods and procedures for finding a tenant
or tenants for comparable space; (ii) lease the Premises in preference to
space in the Building or in any other property owned by Landlord; (iii)
lease the Premises at rents lower than the rate at which Landlord would
otherwise offer such space to a third party; (iv) make improvements to the
Premises at Landlord's expense; and (v) lease the Premises for any purpose
or use other than specifically permitted by this Lease. Landlord shall not
be liable to Tenant for Landlord's failure to re-lease the Premises despite
the exercise of reasonable efforts, and no such re-leasing shall relieve
Tenant of its obligations under the terms of this Lease, including, without
limitation, the payment of rent as set forth herein.
(d) Nothing contained in this Lease shall, however, limit or
prejudice the right of Landlord to prove for and obtain in proceedings for
bankruptcy or insolvency by reason of the termination of this Lease, an
amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, the damages are
to be proved, whether or not the amount be greater, equal to, or less than
the amount of the loss or damages referred to above.
(e) Tenant shall pay, as Additional Rent, Landlord's reasonable
costs and expenses incurred in successfully enforcing Tenant's obligations
under this Lease, which obligation shall survive termination or expiration
of the Lease.
8.3 Remedies Cumulative. Any and all rights and remedies which either
-------------------
party may have under this Lease, and at law and equity, shall be cumulative
and shall not be deemed inconsistent with each other, and any two or more
of all such rights and remedies may be exercised at the same time insofar
as permitted by law.
8.4 Landlord's Right to Cure Tenant's Defaults. Landlord may, but
------------------------------------------
shall not be obligated to, cure any material default by Tenant under this
Lease but, only after notice and the expiration of the applicable grace
period, except as provided in Section 8.5. All costs and expenses incurred
by Landlord, including reasonable attorneys' fees, in curing such default
shall
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be paid, as Additional Rent, by Tenant to Landlord on demand, together
with interest thereon from the date of payment by Landlord to the date of
payment by Tenant.
8.5 Emergency Conditions. If necessary by reason of emergency to
--------------------
protect the interest of either party in the Premises (such as to prevent a
forfeiture or foreclosure of such interest or deprivation of appurtenant
rights thereunder) or to prevent the interruption or further interruption
of the conduct of business in the Premises or the providing of services or
access and egress critical to Tenant's ability to operate its business at
the Premises, or to prevent injury to persons or damage to property (any
or all of the foregoing being an "Emergency Condition"), either party may
cure a default by the other at the expense and for the account of the
other, prior to the expiration of the applicable grace period but only
after notice to the other party (which may be oral) and such opportunity
as is reasonable under the circumstances to cause the cure thereof by such
other party.
8.6 Effect of Waivers of Default. Any consent or permission either by
----------------------------
Landlord or Tenant to any act or omission which otherwise would be a
breach of any covenant or condition herein on the other to be performed or
observed, shall not in any way be held or construed (unless expressly so
declared) to operate so as to impair the continuing obligation of the
other party to perform or observe any covenant or condition herein, or
otherwise, except as to the specific instance, operate to permit similar
acts or omissions.
8.7 No Waiver, etc. The failure of either party to seek redress for
--------------
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease shall not be deemed a waiver of such violation nor
prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation.
No consent or waiver, express or implied, by either party to or of any
breach of any agreement or duty shall be construed as a waiver or consent
to or of any other breach of the same or any other agreement or duty.
8.8 No Accord and Satisfaction. No acceptance by Landlord of a lesser
--------------------------
sum than the Fixed Rent, Additional Rent or any other charge then due
shall be deemed to be other than on account of the earliest installment of
such rent or charge due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent or other
charge be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy in this Lease
provided.
ARTICLE IX
Rights of Mortgage Holders
9.1 Rights of Mortgage Holders. The word "mortgage" as used herein
--------------------------
includes mortgages, deeds of trust or other similar instruments evidencing
other voluntary liens or encumbrances, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. The word
"holder" shall mean a mortgagee, and any subsequent holder or
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holders of a mortgage. Upon entry and taking possession of the Premises for the
purpose of foreclosure, such holder shall have all the rights of Landlord. No
such holder of a mortgage shall be liable either as mortgagee or as assignee, to
perform, or be liable in damages for failure to perform, any of the obligations
of Landlord unless and until such holder shall enter and take possession of the
Premises. Tenant agrees on request of Landlord to execute and deliver from time
to time any agreement which may reasonably be necessary to implement the
provisions of this Section 9.1.
9.2 Lease Superior or Subordinate to Mortgages. The rights and interest of
------------------------------------------
Tenant under this Lease shall be (i) subject or subordinate to any present or
future mortgage or mortgages and to any and all advances to be made thereunder,
and to the interest of the holder thereof in the Premises or any property of
which the Premises are a part, if such holder (or Landlord at the request of
such holder), shall request Tenant to subject or subordinate the rights and
interest of Tenant under this Lease to such mortgage, or (ii) prior to any
present or future mortgage or mortgages, if such holder (or Landlord, at the
request of such holder), shall request Tenant, to give the rights and interest
of Tenant under this Lease priority to such mortgage; in the event of either of
such elections and upon notification by Landlord to that effect, the rights and
interest of Tenant under this Lease shall be deemed to be subordinate to, or
have priority over, as the case may be, said mortgage or mortgages, irrespective
of the time of execution or time of recording of any such mortgage or mortgages;
provided that, in the case of subordination of this Lease to any future
mortgages, the holder thereof agrees not to disturb the possession of Tenant, so
long as Tenant is not in material default hereunder, after notice and the
expiration of the applicable grace period. Tenant agrees it will, upon request
of Landlord, execute, acknowledge and deliver any and all instruments reasonably
necessary to give effect to or notice of such subordination or priority.
9.3 Non-Disturbance From Present Mortgage. Landlord agrees to obtain from
-------------------------------------
the holder(s) of present mortgage(s), if any, in effect at or prior to the
commencement of the Term an agreement that the possession of Tenant will not be
disturbed and containing such other provisions as Tenant deems acceptable.
9.4 Other Provisions Relating to Mortgages. No Fixed Rent, Additional Rent
--------------------------------------
or any other charge shall be paid more than fifteen (15) days prior to the due
date thereof and payments made in violation of this provision shall (except to
the extent that such payments are actually received by a mortgagee (or its agent
or servicer) be a nullity as against such mortgagee and Tenant shall be liable
for the amount of such payments to such mortgagee.
In the event of any act or omission by Landlord which would give Tenant the
right to terminate this Lease or to claim a partial or total eviction or to
exercise self-help rights (except as to an Emergency Condition under Section
8.5), Tenant shall not exercise any such right (a) until it shall have given
notice, in the manner provided in Section 10.1, of such act or omission to the
holder of any mortgage encumbering the Premises whose name and address shall
have been furnished to Tenant in writing, and (b) until the time period provided
in this Lease for remedying such act or omission shall have elapsed following
the giving of such notice, and (c) such additional time, if any, as is
reasonably necessary in order for the holder of such mortgage to enter into
possession in order to effect such cure, provided that following the giving of
such
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notice, Landlord or such holder (after entering into possession) shall, with
reasonable diligence, have commenced and continued to remedy such act or
omission or to cause the same to be remedied.
In the event any proceedings are brought for the foreclosure of, or in the
event of exercise of the power of sale under, any mortgage now or hereafter
encumbering the Premises, Tenant shall attorn to the purchaser upon such
foreclosure or sale or upon any grant of a deed in lieu of foreclosure and
recognize such purchaser as Landlord under this Lease.
ARTICLE X
Miscellaneous Provisions
10.1 Notices From One Party to the Other. All notices required or
-----------------------------------
permitted hereunder shall be in writing and addressed, if to the Tenant, at the
Original Address of the Tenant or such other address as Tenant shall have last
designated by notice in writing to Landlord and, if to Landlord, at the Original
Address of Landlord or such other address as Landlord shall have last designated
by notice in writing to Tenant. Any notice shall be deemed duly given and served
(whether or not accepted for delivery) when mailed to such address postage
prepaid, by registered or certified mail, return receipt requested, or, in the
alternative, when entrusted to any recognized delivery service which provides
receipts for delivery or if sent by facsimile, provided that if notice is not
given by mail or hand delivery, a confirmation copy is sent by mail or hand
delivery as aforesaid.
10.2 Lease Not to be Recorded. Tenant agrees that it will not record this
------------------------
Lease. Both parties shall, upon the request of either, execute and deliver for
recording a notice or short form of this Lease in such form, if any, as may be
permitted by applicable statute.
10.3 Limitation of Landlord's Liability. Tenant agrees from time to time
----------------------------------
to look only to Landlord's interest in the Premises and in the rents, issues and
profits thereof accruing after enforcement is sought, and in proceeds of
insurance on account of a Casualty and proceeds of a Taking ("Reachable
Interest") for satisfaction of any claim against Landlord hereunder and not to
any other property or assets of Landlord. If Landlord from time to time
transfers its interest in the Premises, then from and after each such transfer
Tenant shall look solely to the Reachable Interest of each of Landlord's
transferees for the performance of all of the obligations of Landlord hereunder
arising on or after such transfer. The obligations of Landlord shall not be
binding on any trustees, partners or beneficiaries of Landlord or of any
successor, individually, but only upon Landlord's or such successor's Reachable
Interest in the Premises.
10.4 Force Majeure. Except as otherwise expressly provided herein, the
-------------
failure of either party to perform the obligations, covenants and agreements in
this Lease contained shall be excused during such period as the party failing to
perform is unable to do so by reason of Acts of God, war, civil commotion, fire,
flood or other casualty, labor difficulties, shortages of labor, materials or
equipment, government regulations, unusually severe weather, or other causes
beyond such party's reasonable control; provided, however, Tenant shall not be
excused from its obligations hereunder to pay Fixed Rent, Additional Rent and
obligations which involve the
-26-
payment of money by reason of any of the foregoing matters contained in this
Section 10.4, and neither Landlord nor Tenant shall be excused from any of its
obligations hereunder by reason of its financial difficulties.
10.5 Applicable Law and Construction. This Lease shall be governed by and
-------------------------------
construed in accordance with the laws of the State of New Hampshire and, if any
provisions of this Lease shall to any extent be invalid, the remainder of this
Lease shall not be affected thereby. There are no oral or written agreements
between Landlord and Tenant affecting this Lease. This Lease may be amended, and
the provisions hereof may be waived or modified, only by instruments in writing
executed by Landlord and Tenant. The titles of the several Articles and Sections
contained herein are for convenience only and shall not be considered in
construing this Lease. Unless repugnant to the context, the words "Landlord" and
"Tenant" appearing in this Lease shall be construed to mean those named above
and their respective heirs, executors, administrators, successors and assigns,
and those claiming through or under them respectively.
10.6 Interest. Any amount due from one party to the other hereunder,
--------
including on account of a default, shall bear interest at the lesser of (i) two
percent (2%) above the Prime Rate published by The Wall Street Journal on the
-----------------------
date closest to the date such payment was required to be made hereunder or, if
higher, default interest rate on Landlord's mortgage financing or (ii) the
highest legal rate permitted under the laws of the Commonwealth of
Massachusetts.
10.7 Security Deposit. If any amount is specified in Section 1.1 as a
----------------
security deposit, Tenant shall pay the same to Landlord upon the execution of
this Lease. Landlord acknowledges receipt from Tenant of said security deposit
to be held by Landlord as security without interest for and during the Term,
which deposit shall be returned to Tenant at the termination of this Lease,
provided there has been no breach of the undertakings of Tenant. In no instance
shall the amount of the security deposit be considered a measure of liquidated
damages. All or any part of the security deposit may be applied by Landlord in
total or partial satisfaction of any default by Tenant. The application of all
or any part of the security deposit to any obligation or default of Tenant under
this Lease shall not deprive Landlord of any other rights or remedies Landlord
may have, nor shall such application by Landlord constitute a waiver by
Landlord. If all or any part of the security deposit is applied to an obligation
of Tenant hereunder, Landlord shall have the right to call upon Tenant to
restore the security deposit to its original amount by giving notice to Tenant
and Tenant shall immediately restore the security deposit by payment thereof to
Landlord. Tenant shall not have the right to call upon Landlord to apply all or
any part of the security deposit to cure any default or fulfill any obligation
of Tenant, but such use shall be solely at the discretion of Landlord. Upon any
conveyance by Landlord of its interest under this Lease, the security deposit
may be turned over by Landlord to Landlord's grantee or transferee and upon any
such delivery of the security deposit, Tenant hereby releases Landlord herein of
any and all liability with respect to the security deposit, its application and
return and Tenant agrees to look solely to such grantee or transferee and it is
further understood that this provision shall also be for the benefit of and be
binding upon subsequent grantees and transferees.
10.8 Voting Control of Tenant. If at any time during the term of this
------------------------
Lease, Tenant is:
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(a) a corporation or a trust (whether or not having shares of
beneficial interest) and there shall occur any change in the identity of any of
the persons then having power to control the election or appointment of the
directors, trustees or other persons exercising like functions and managing the
affairs of Tenant; or
(b) a partnership or association or otherwise not a natural person
(and is not a corporation or a trust) and there shall occur any change in the
identity of any of the persons who then are members of such partnership or
association or who comprise Tenant.
Tenant shall so notify Landlord and Landlord may terminate this Lease by
notice to Tenant given within ninety (90) days thereafter. If Tenant fails to so
notify Landlord, Landlord may terminate at any time following the occurrence of
(a) or (b) above. This Section 10.8 shall not apply if the initial Tenant named
herein is a corporation and the outstanding voting stock thereof is listed on a
recognized securities exchange.
Partnership. Landlord shall not in any way nor for any purpose be deemed or
become a partner of Tenant in the conduct of its business or otherwise, or a
joint venturer or a member of a joint enterprise with Tenant by reason of
entering into this Lease.
10.9 Entire Agreement. This Lease and any exhibits or riders attached
----------------
hereto and forming a part hereof set forth all the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than as herein set
forth. Except as herein otherwise provided, no subsequent alteration, amendment,
change or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by them.
10.10 Captions, Etc. The captions, section numbers, article numbers and
--------------
index appearing in this Lease are inserted only as a matter of convenience and
in no way define, limit, construe or describe the scope or intent of such
sections or articles of this Lease, nor in any way affect this Lease.
10.11 Partial Invalidity. If any term, covenant or condition of this Lease
------------------
or the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Lease or the application of such
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby and such
term, covenant or condition of this Lease shall be valid and shall be enforced
to the fullest extent permitted by law.
10.12 Legal Expenses. In case suit be brought for recovery of possession of
--------------
the Premises for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of Tenant to be kept or performed and a breach shall be
established or Landlord shall otherwise prevail, Tenant shall pay to Landlord
all reasonable fees and expenses incurred therefore. If Tenant shall bring suit
to enforce any obligation of Landlord hereunder and such breach shall be
established or Tenant
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shall otherwise prevail, Landlord shall pay Tenant all reasonable fees and
expenses incurred therefor.
10.13 Notice of Lease. Tenant shall not record this Lease without a written
---------------
consent of Landlord. However, upon the request of either party hereto, the other
party shall join in the execution of a memorandum, notice or so-called "short
form" of this Lease in accordance with general laws of the State of New
Hampshire for the purpose of recordation. Said memorandum, notice or short form
of this Lease shall describe the parties, the Premises and the term and shall
incorporate this Lease by reference.
10.14 Confidential Information. Landlord and Tenant hereby agree that the
------------------------
terms and provisions of this Lease (except such terms and provisions as may be
set forth in any notice or certificate expressly allowed hereunder) shall be
kept strictly confidential and shall not be disclosed to third parties without
the prior written consent of the other party, except if pursuant to the order of
a court or governmental agency of competent jurisdiction related to proceedings
in which a party hereto is required to disclose.
10.15 Cumulative Remedies. The specific remedies to which Landlord may
-------------------
resort under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of this Lease. In addition to the other remedies provided in this Lease,
Landlord shall be entitled to the restraint by injunction of the violation or
attempted or threatened violation of any of the covenants, conditions or
provisions of this Lease or to a decree compelling specific performance of any
such covenants, conditions or provisions.
10.16 Submission Not an Offer. The submission of this Lease or a summary of
-----------------------
some or all of its provisions for examination does not constitute a reservation
of or option for the Premises or an offer to lease, it being understood and
agreed that neither Landlord nor Tenant shall be legally bound with respect to
the leasing of the Demised Premises unless and until this Lease has been
executed and delivered by both Landlord and Tenant.
10.17 Corporate Authority. The undersigned officer of Tenant hereby
-------------------
warrants and certifies to Landlord that Tenant is a corporation duly organized
and in good standing under the laws of the State of Delaware and is authorized
to do business in the State of New Hampshire and to execute and deliver this
Lease. The undersigned officer of Tenant hereby further warrants and certifies
to Landlord that he or she, as such officer, is authorized and empowered to bind
the corporation to the terms of this Lease by his or her signature hereto.
10.18 Waiver of Trial by Jury. The parties hereto shall and they hereby do
-----------------------
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matters whatsoever arising out of
or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises and/or any claim of injury or
damage.
10.19 Transferee Liability. If the Landlord shall sell the Premises or
--------------------
transfer its interest in this Lease to a buyer or transferee who will assume and
agree to perform and observe the
-29-
obligations, covenants and conditions by the Landlord herein to be performed or
observed, the Landlord, from and as of the date of such sale or transfer, shall
be forever released and discharged from any and all of its obligations
thereafter arising hereunder.
10.20 Counterparts. This Lease may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument, and any of the parties or
signatories hereto may execute this Lease by signing any such counterpart.
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WITNESS the execution hereof under seal on the day and year first above
written.
Landlord:
Kristiania Corporation
By /s/ Xxxxxxxx Goudlandez
-------------------------------
Title President
----------------------------
Tenant:
Storage Computer Corporation
By /s/ Xxxxxx Xxxxxxx
-------------------------------
Title President
----------------------------
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EXHIBIT A
DESCRIPTION OF LAND
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