1
EXHIBIT 10.4
EXECUTION COPY
Exchange.3078329.5
LEASE AGREEMENT BETWEEN
W9/TIB REAL ESTATE LIMITED PARTNERSHIP,
AS LANDLORD, AND
XXXXXX AUTOMATION, INC., AS TENANT
DATED JANUARY 31, 2000
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BASIC LEASE INFORMATION
Lease Date: January 31, 2000
Tenant: XXXXXX AUTOMATION, INC., a Delaware corporation
Landlord: W9/TIB REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership
Premises: The entire building containing approximately
80,407 rentable square feet commonly known as 00
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the
"BUILDING"), and whose street address is 00 Xxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx and the Land
(hereinafter defined) and all other improvements located
thereon, including, without limitation, the parking and
loading areas on the Land, and the walkways and
driveways providing access to the Building and such
parking and loading areas. The Premises are outlined on
the plan attached to the Lease as Exhibit A. The land on
which the Building is located (the "LAND") is described
on Exhibit B. The term "Building" includes the Land and
the driveways, parking facilities and similar
improvements on the Land. Provided that neither this
Lease nor the 00 Xxxxxxxxx Xxxxx Lease (as hereinafter
defined) has expired or been earlier terminated and that
both of said Leases are in full force and effect, Tenant
may use the parking and loading areas located on the
Land and the parking and loading areas located on the
Land (as such term is defined in the 00 Xxxxxxxxx Xxxxx
Lease).
Term: Approximately one hundred twenty- three (123)
months, commencing on April 1, 2000 (the "COMMENCEMENT
DATE") and ending at 5:00 p.m. on June 30, 2010, subject
to adjustment and earlier termination as provided in the
Lease.
Basic Rent: Basic Rent shall be the following amounts for the
following periods of time:
Lease Month Annual Basic Rent Monthly Basic Rent
1-36 $824,171.75 $68,680.98
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37-60 $ 904,578.75 $75,381.56
61-84 $ 984,985.75 $82,082.15
85-123 $1,065,392.75 $88,782.73
As used herein, the term "LEASE MONTH" shall mean
each calendar month during the Term (and if the
Commencement Date does not occur on the first day of a
calendar month, the period from the Commencement Date to
the first day of the next calendar month shall be
included in the first Lease Month for purposes of
determining the duration of the Term and the monthly
Basic Rent rate applicable for such partial month).
Security Deposit: $1,000,000.00
Rent: Basic Rent, Taxes, Additional Rent, and all other
sums that Tenant may owe to Landlord or otherwise be
required to pay under the Lease.
Permitted Use: Subject to and to the extent permitted by all
applicable Laws, general office use, research and
development, light manufacturing, and warehousing and
distribution.
Initial Liability
Insurance Amount: $3,000,000.00
Maximum Construction
Allowance: $10.00 per rentable square foot.
Tenant's Address:
Following Commencement Date: Prior to Commencement Date:
---------------------------- ---------------------------
00 Xxxxxxxxx Xxxxx 00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000 Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx, C.E.M., Attn: Xxxxxxx Xxxxxx, C.E.M,
Manager of Corporate Facilities Manager of Corporate Facilities
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With a copy to: With a copy to:
--------------- ---------------
Xxxxx Xxxxxxx Xxxxx & Xxxxx Xxxxxxx Freed &
Gesmer, P.C. Gesmer, P.C.
One Financial Center Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq. Attn: Xxxx X. Xxxxxxx, Esq.
Landlord's Address: For all Notices: With a copy to:
---------------- ---------------
Archon Group, X.X. Xxxxxx, Xxxx & Xxxxxxx
0000 X Xxxxxx XX, Xxxxx 000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx Xxxxxxxxx, P.C.
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The foregoing Basic Lease Information is incorporated into and made a part of
the Lease identified above. If any conflict exists between any Basic Lease
Information and the Lease, then the Lease shall control.
LANDLORD:
W9/TIB REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: W9/TIB Gen-Par, Inc., a Delaware
corporation, its general partner
By:
Name:
Title:
TENANT:
XXXXXX AUTOMATION, INC., a
Delaware corporation
By:
Name:
Title:____
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TABLE OF CONTENTS
Page
1. Definitions and Basic Provisions 1
2. Lease Grant 1
3. Term 1
4. Rent 1
(a) Payment 1
(b) Operating Costs; Taxes; Electrical Costs 2
5. Delinquent Payment; Handling Charges 5
6. Security Deposit 5
7. Landlord's Obligations 7
(a) Services 7
(b) Landlord's Maintenance Obligations 8
(c) Excess Utility Use 9
(d) Restoration of Services; Abatement 9
(e) Landlord's Compliance with Applicable Legal Requirements 10
8. Improvements; Alterations; Repairs; Maintenance. 10
(a) Improvements; Alterations 10
(b) Repairs; Maintenance 11
(c) Performance of Work 12
(d) Mechanic's Liens 12
(e) Utilities 12
(f) Floor Load; Heavy Machinery 12
9. Use 13
10. Assignment and Subletting 13
(a) Transfers 13
(b) Consent Standards 13
(c) Request for Consent 14
(d) Conditions to Consent 14
(e) Cancellation 14
(f) Additional Compensation 15
(g) Permitted Transfers 15
11. Insurance; Waivers; Subrogation; Indemnity 16
(a) Tenant's Insurance 16
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(b) Landlord's Insurance 16
(c) Waiver of Negligence; No Subrogation 16
(d) Indemnity 17
12. Subordination; Attornment; Notice to Landlord's Mortgagee 17
(a) Subordination 17
(b) Attornment 17
(c) Notice to Landlord's Mortgagee 17
(d) Landlord's Mortgagee's Protection Provisions 17
(e) Subordination, Non-Disturbance and Attornment Agreement 18
13. Rules and Regulations 18
14. Condemnation 19
(a) Total Taking 19
(b) Partial Taking - Tenant's Rights 19
(c) Partial Taking - Landlord's Rights 19
(d) Award 19
15. Fire or Other Casualty 19
(a) Repair Estimate 19
(b) Landlord's and Tenant's Rights 19
(c) Landlord's Rights 20
(d) Repair Obligation 20
16. Personal Property Taxes 20
17. Events of Default 21
18. Remedies 22
19. Payment by Tenant; Non-Waiver 23
(a) Payment by Tenant 23
(b) No Waiver 23
20. Landlord's Lien 23
21. Surrender of Premises 23
22. Holding Over 24
23. Certain Rights Reserved by Landlord 24
24. [intentionally omitted] 25
25. Miscellaneous 25
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(a) Landlord Transfer 25
(b) Landlord's Liability 25
(c) Force Majeure 25
(d) Brokerage 25
(e) Estoppel Certificates 26
(f) Notices 26
(g) Separability 26
(h) Amendments; and Binding Effect 26
(i) Quiet Enjoyment 26
(j) No Merger 26
(k) No Offer 27
(l) Entire Agreement 27
(m) Waiver of Jury Trial 27
(n) Governing Law 27
(o) Joint and Several Liability 27
(p) Financial Reports 27
(q) Landlord's Fees 28
(r) Telecommunications 28
(s) Confidentiality 28
(t) Hazardous Materials 28
(u) List of Exhibits 29
(v) Time of Essence 29
(w) Signage 29
(x) Access 29
(y) Failure of Tenant to Continuously Occupy the Premises 29
(z) Rooftop Equipment 30
(aa) Notice of Lease 31
(bb) Landlord's Authority, Etc. 31
(cc) Fiber Optic Lines 31
26. Other Provisions 31
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LEASE
THIS LEASE AGREEMENT (this "LEASE") is entered into as of January 31,
2000, between W9/TIB REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership ("LANDLORD"), and XXXXXX AUTOMATION, INC., a Delaware corporation
("TENANT").
1. DEFINITIONS AND BASIC PROVISIONS. The definitions and basic provisions
set forth in the Basic Lease Information (the "BASIC LEASE INFORMATION")
executed by Landlord and Tenant contemporaneously herewith are incorporated
herein by reference for all purposes. Additionally, the following terms shall
have the following meanings when used in this Lease: "LAWS" means all federal,
state, and local laws, rules and regulations, all court orders, governmental
directives, and governmental orders, and all restrictive covenants affecting the
Property, and "LAW" shall mean any of the foregoing; "AFFILIATE" means any
person or entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
party in question; "TENANT PARTY" means any of the following persons: Tenant;
any assignees claiming by, through, or under Tenant; any subtenants claiming by,
through, or under Tenant; and any of their respective agents, contractors,
employees, and invitees; and "INCLUDING" means including, without limitation.
2. LEASE GRANT. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises.
3. TERM. Landlord shall deliver possession of the Premises to Tenant
promptly after each party executes this Lease (the "ESTIMATED DELIVERY DATE").
If the Premises are not delivered to Tenant on the Estimated Delivery Date, then
(a) Landlord shall not be in default hereunder or be liable for damages
therefor, and (b) Tenant shall accept possession of the Premises when Landlord
tenders possession thereof to Tenant. By occupying the Premises, Tenant shall be
deemed to have accepted the Premises in their condition as of the date of such
occupancy. Tenant shall execute and deliver to Landlord, within ten days after
Landlord has requested the same, an amendment substantially in the form of
Exhibit E hereto confirming the Commencement Date and the expiration date of the
initial Term, that Tenant has accepted the Premises, and that Landlord has
performed all of its obligations with respect to the Premises.
4. RENT.
(a) PAYMENT. Tenant shall timely pay to Landlord Basic Rent and all
additional sums to be paid by Tenant to Landlord under this Lease, without
notice, deduction or set off, except as otherwise expressly set forth herein, at
Landlord's address provided for in this Lease or as otherwise specified by
Landlord and shall be accompanied by all applicable state and local sales or use
taxes. Basic Rent, adjusted as herein provided, shall be payable monthly in
advance. The first monthly installment of Basic Rent shall be payable
contemporaneously with the execution of this Lease;
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thereafter, Basic Rent shall be payable on the first day of each month beginning
on the first day of the second full calendar month of the Term. The monthly
Basic Rent for any partial month at the beginning of the Term shall equal the
product of 1/365 of the annual Basic Rent in effect during the partial month and
the number of days in the partial month from and after the Commencement Date,
and shall be due on the Commencement Date.
(b) OPERATING COSTS; TAXES; ELECTRICAL COSTS.
(1) Tenant shall pay all of the Operating Costs (defined
below) ("ADDITIONAL RENT"). Landlord may make a good faith estimate of the
Additional Rent to be due by Tenant for any calendar year or part thereof during
the Term, and Tenant shall pay to Landlord, on the Commencement Date and on the
first day of each calendar month thereafter, an amount equal to the estimated
Additional Rent for such calendar year or part thereof divided by the number of
months therein. From time to time (but not more than twice in any Lease Year),
Landlord may estimate and re-estimate the Additional Rent to be due by Tenant
and deliver a copy of the estimate or re-estimate to Tenant, which estimate
shall itemize each increased cost. Thereafter, the monthly installments of
Additional Rent payable by Tenant shall be appropriately adjusted in accordance
with the estimations so that, by the end of the calendar year in question,
Tenant shall have paid all of the Additional Rent as estimated by Landlord. Any
amounts paid based on such an estimate shall be subject to adjustment as herein
provided when actual Operating Costs are available for each calendar year.
(2) The term "OPERATING COSTS" shall mean all expenses and
disbursements (subject to the limitations set forth below) that Landlord incurs
in connection with the ownership, operation, and maintenance of the Premises,
determined in accordance with sound accounting principles consistently applied,
including, but not limited to, the following costs: (A) wages and salaries
(management fees, which management fees shall not exceed fair market management
fees for comparable buildings in the Greater Boston area) of all employees
engaged in the operation, maintenance, and security of the Premises, including
taxes, insurance and benefits relating thereto; (B) all supplies and materials
used in the operation, maintenance, repair, replacement, and security of the
Premises; (C) costs for improvements made to the Premises which, although
capital in nature, are expected to reduce the normal operating costs (including
all utility costs) of the Premises, as well as capital improvements made in
order to comply with any law hereafter promulgated by any governmental authority
and capital improvements related to roof replacement and replacement of rooftop
HVAC units, as amortized over the useful economic life of such improvements as
determined by Landlord in its reasonable discretion; (D) cost of all utilities,
except the cost of utilities reimbursable to Landlord by Tenant other than
pursuant to a provision similar to this Section 4.(b); (E) insurance expenses;
(F) repairs, replacements, and general maintenance of the Premises; (G) service
or maintenance contracts with independent contractors for the operation,
maintenance, repair, replacement, or security of the Premises (including,
without limitation, alarm service, window cleaning, and elevator maintenance);
and (H) accounting fees incurred by Landlord for the accounting services
performed in connection with the Premises.
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Operating Costs shall not include costs for (i) capital
improvements made to the Premises, other than capital improvements described in
Section 4.(b)(2)(C) and except for items which are generally considered
maintenance and repair items, such as painting of common areas, replacement of
carpet in elevator lobbies, and the like; (ii) repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant or other third parties;
(iii) interest, amortization or other payments on loans to Landlord or any
ground lease rent; (iv) depreciation; (v) leasing commissions; (vi) legal
expenses for services, other than those that benefit the Building tenants
generally (e.g., tax disputes); (vii) Taxes (defined below); (viii) franchise or
federal income taxes imposed on or measured by the income of Landlord from the
operation of the Building; (ix) any cost or expense to the extent to which
Landlord is paid or reimbursed (other than as a payment for Operating Costs);
(x) salaries and bonuses of officers and executives of Landlord; (xi) any fees,
costs, and commissions incurred in procuring or attempting to procure tenants
including, but not necessarily limited to brokerage commissions, finders fees,
attorney's fees and expenses, entertainment costs and travel expenses; (xii) the
cost of advertising or promotion for the Building; (xiii) any capital cost
necessary to cure any violation of any law, ordinance or regulation applicable
to the Building existing as of the date of the Lease or to remediate any
environmental condition (existing as of the date of the Lease); (xiv) reserves;
(xv) Landlord's charitable or political contributions; (xvi) Landlord's travel
or entertainment expenses; (xvii) depreciation of the Building; (xviii) provided
Tenant is not in default of any provisions of this Lease beyond all applicable
notice and cure periods, fines or penalties arising solely out of Landlord's
breach of any obligation hereunder; and (xix) all costs incurred to perform the
work outlined in the HVAC Replacement/Repair Specifications (as that term is
hereinafter defined in Exhibit D).
(3) Tenant shall also pay all of the Taxes for each year and
partial year falling within the Term in the same manner as provided above for
Additional Rent with regard to Operating Costs. "TAXES" shall mean taxes,
assessments, and governmental charges whether federal, state, county or
municipal, and whether they be by taxing districts or authorities presently
taxing or by others, subsequently created or otherwise, and any other taxes and
assessments attributable to the Premises (or its operation), excluding, however,
penalties and interest thereon and federal and state taxes on income (if the
present method of taxation changes so that in lieu of the whole or any part of
any Taxes, there is levied on Landlord a capital tax directly on the rents
received therefrom or a franchise tax, assessment, or charge based, in whole or
in part, upon such rents for the Premises, then all such taxes, assessments, or
charges, or the part thereof so based, shall be deemed to be included within the
term "TAXES" for purposes hereof). Taxes shall include the costs of consultants
retained in an effort to lower taxes and all costs incurred in disputing any
taxes or in seeking to lower the tax valuation of the Premises. For property tax
purposes, Tenant waives all rights to protest or appeal the appraised value of
the Premises, as well as the Building, and all rights to receive notices of
reappraisement. Taxes shall be deemed payable over the longest period allowed by
law. Tenant may file for and prosecute tax abatements pertaining to the Premises
only after it has notified Landlord that Tenant desires Landlord pursue a tax
abatement and
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Landlord elects not to pursue such a tax abatement and so notifies Tenant in
writing. If Tenant files for and prosecutes a tax abatement pertaining to the
Premises, Tenant shall simultaneously provide Landlord with all filings made
with the taxing authorities and with any other information reasonably requested
by Landlord.
(4) Intentionally Omitted.
(5) By April 1 of each calendar year, or as soon thereafter as
reasonably practicable, Landlord shall furnish to Tenant a statement of
Operating Costs for the previous year, and of the Taxes for the previous year
(the "OPERATING COSTS AND TAX STATEMENT"). If the Operating Costs and Tax
Statement reveals that Tenant paid more for Operating Costs than the actual
amount for the year for which such statement was prepared, or more than its
actual share of Taxes for such year, then Landlord shall promptly credit or
reimburse Tenant for such excess; likewise, if Tenant paid less than Tenant's
actual Additional Rent or Taxes due, then Tenant shall promptly pay Landlord
such deficiency.
(6) Provided (A) Tenant is not in default hereunder, and (B)
Tenant has paid Landlord the Operating Costs in question, Tenant shall have the
right, exercisable not more than once each Lease Year, to examine Landlord's
books and records relating to Operating Costs for the prior Lease Year only.
Such examination shall be performed (i) at Landlord's office, (ii) at Tenant's
sole cost and expense, (iii) upon prior reasonable written notice to Landlord,
(iv) during normal business hours, and (v) within sixty (60) days after receipt
of the Operating Costs and Tax Statement. In the event Tenant's examination
reveals a discrepancy, Landlord shall promptly (but no later than thirty (30)
days) reimburse Tenant for the amount of any overpayment. If Tenant's
examination of Landlord's books and records reveals an overcharge of more than
five percent (5%), Landlord shall, within thirty (30) days after receipt of a
written invoice, reimburse Tenant for the reasonable costs of such audit. In
conducting such audit, Tenant shall use an independent certified public
accountant experienced in auditing Operating Costs, which accountant shall be
paid on an hourly basis (and not on a contingency or success fee basis). Such
audit shall be conducted in accordance with generally accepted rules of auditing
practices. Any information obtained by Tenant pursuant to the provisions of this
Section 3(b)(6) shall be treated as confidential.
(c) BILLING FOR ELECTRICITY. Tenant shall pay (as hereinafter
described) for the use of all electrical service to the Premises. Tenant shall
be billed directly by such utility company and Tenant agrees to pay each xxxx
promptly in accordance with its terms, and upon default in making any such
payment which continues for more than ten (10) days after written notice to
Tenant, Landlord may pay such charges and collect the same from Tenant. In the
event for any reason Tenant cannot be billed directly, Landlord shall forward
each xxxx received with respect to the Building to Tenant, which Tenant shall
pay within thirty (30) days of receiving each such xxxx unless the terms of the
each such xxxx specify otherwise.
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5. DELINQUENT PAYMENT; HANDLING CHARGES. All past due payments required of
Tenant hereunder shall bear interest from the date due until paid at the lesser
of fifteen percent per annum or the maximum lawful rate of interest;
additionally, if Tenant fails to make any payment due hereunder more than once
in any Lease Year, Landlord may charge Tenant a fee equal to 5% of the
delinquent payment to reimburse Landlord for its cost and inconvenience incurred
as a consequence of Tenant's delinquency. In no event, however, shall the
charges permitted under this Section 5 or elsewhere in this Lease, to the extent
they are considered to be interest under applicable Law, exceed the maximum
lawful rate of interest.
6. SECURITY DEPOSIT. Contemporaneously with the execution of this Lease,
Tenant shall pay to Landlord the Security Deposit, which Security Deposit shall
be the same Security Deposit held under this Lease and under the 00 Xxxxxxxxx
Xxxxx Lease (as hereinafter defined in Section 17(b)) and shall be held by
Landlord to secure Tenant's performance of its obligations under this Lease and
under the 00 Xxxxxxxxx Xxxxx Lease. If, for whatever reason, either this Lease
or the 00 Xxxxxxxxx Xxxxx Lease terminates prior to the stated expiration date
and/or the Term of only one of said Leases is extended and no further
obligations are due and owing under the expired and/or terminated Lease, the
Security Deposit shall continue to secure Tenant's obligations under the
applicable Lease which has not expired and/or terminated. The Security Deposit
is not an advance payment of Rent or a measure or limit of Landlord's damages
upon an Event of Default (defined in Section 17). Landlord may, from time to
time following an Event of Default and without prejudice to any other remedy,
use all or a part of the Security Deposit to perform any obligation Tenant fails
to perform hereunder. Following any such application of the Security Deposit,
Tenant shall pay to Landlord on demand the amount so applied in order to restore
the Security Deposit to its original amount. Provided that Tenant has performed
all of its obligations hereunder, Landlord shall, within 30 days after the Term
ends, return to Tenant the portion of the Security Deposit which was not applied
to satisfy Tenant's obligations. The Security Deposit may be commingled with
other funds, and no interest shall be paid thereon. If Landlord transfers its
interest in the Premises and the transferee assumes Landlord's obligations under
this Lease, then Landlord may assign the Security Deposit to the transferee or
return same to Tenant and Landlord thereafter shall have no further liability
for the return of the Security Deposit.
In lieu of a cash Security Deposit, simultaneously with the execution and
delivery of this Lease, Tenant may deliver to Landlord an irrevocable and
unconditional standby letter of credit made payable to Landlord, its successors
and assigns, in the sum of $1,000,000.00 (the "LETTER OF CREDIT"), in the form
of the sample letter of credit attached hereto as Exhibit J or in such other
form as is reasonably acceptable to Landlord, which shall secure the performance
by Tenant of all obligations on the part of Tenant hereunder. The issuer of the
Letter of Credit shall be a banking institution with at least a rating of A and
otherwise reasonably acceptable to Landlord. Although Landlord shall only have
the right to draw under the Letter of Credit as set forth herein, under the
terms of the Letter of Credit, the sole condition to Landlord's draw upon the
Letter of Credit shall be presentment to the issuer thereof, prior to or on the
expiration date, of a demand for payment. The Letter of Credit shall be
self-renewing from year to year during the Term
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of this Lease so as to expire no earlier than thirty (30) days following the
Lease expiration date and shall contain such other customary terms as Landlord
requires in its reasonable discretion. It is agreed: (i) that the Letter of
Credit may be drawn upon to cure any Event of Default that may exist, without
prejudice to any other remedy or remedies which Landlord may have on account
thereof, and upon Landlord's demand, Tenant shall reimburse the issuer for the
amount so drawn so that the Letter of Credit will be restored to its original
amount; (ii) subject to the provisions of clause (iv) below, that the Letter of
Credit may be drawn upon if the Letter of Credit has not been extended or
renewed without amendment at least forty-five (45) days prior to any
then-current expiration date thereof; (iii) that if the rating of the issuer of
the Letter of Credit at any time drops below A, then, within sixty (60) days of
Landlord's demand, Tenant shall replace the Letter of Credit with another Letter
of Credit in a form reasonably acceptable to Landlord and with an issuer with a
rating of at least an A and otherwise reasonably acceptable to Landlord;
Landlord may draw on the existing Letter of Credit if, after Landlord requests
that Tenant replace the Letter of Credit as aforesaid, Landlord is not provided
with a substitute Letter of Credit in a form, and from an issuer, satisfactory
to Landlord as provided above upon the earlier of (x) the expiration of said
sixty-day period or (y) at least forty-five (45) days prior to the then-current
expiration date of the Letter of Credit; (iv) if at any time, but in any event,
at least sixty (60) days prior to the expiration of the Letter of Credit, Tenant
may seek Landlord's consent to switch issuers of the Letter of Credit provided
the prospective issuer has a rating of at least an A and is otherwise reasonably
acceptable to Landlord and the new form of Letter of Credit satisfies the
requirements of Landlord hereunder and is otherwise reasonably acceptable to
Landlord; Landlord may draw on the existing Letter of Credit if, after Tenant
requests Landlord's consent to switch issuers as aforesaid, Landlord is not
provided with a substitute Letter of Credit in a form, and from an issuer,
satisfactory to Landlord in its sole and absolute discretion at least forty-five
(45) days prior to the then-current expiration date of the Letter of Credit; (v)
that should the Premises be conveyed by Landlord, the Letter of Credit or any
portion thereof shall be assigned to Landlord's grantee, and if the same be
assigned as aforesaid, Tenant hereby releases Landlord from any and all
liability with respect to the Letter of Credit and its application or return,
and Tenant agrees to look to such grantee for such application or return,
provided such grantee assumes Landlord's obligations under this Lease (including
this Section 6); and (vi) that the Letter of Credit shall be returned to Tenant
upon the later of (a) thirty (30) days after the expiration of the Term or any
renewal or extension thereof, or (b) the date Tenant has vacated the Premises
and surrendered possession thereof to Landlord at the expiration of the Term or
any extension thereof as provided herein and has paid Landlord all sums due and
owing under this Lease.
Notwithstanding any of the foregoing provisions of this Section 6 to the
contrary, if Tenant has a Tangible Net Worth of at least $165,000,000.00 on the
eighteenth (18th) month after the Commencement Date (the "REDUCTION DATE"), the
Security Deposit (or the applicable Letter or Credit) shall be reduced by
$500,000.00, provided that on the Reduction Date (i) the Lease is in full force
and effect, (ii) no Event of Default exists, (iii) no Event of Default has
occurred, and (iv) Tenant has not assigned this Lease to anyone other than a
Permitted Transferee. If on the Reduction Date the Security Deposit (or the
applicable Letter of Credit) shall not be reduced because one or more of the
conditions set
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forth in clauses (i), (ii) or (iii) above cease to exist on the Reduction Date,
the Security Deposit (or applicable Letter of Credit) shall not be reduced
during any succeeding calendar year. If on the Reduction Date the Security
Deposit (or applicable Letter of Credit) shall not be reduced because only the
condition set forth in clause (iv) above (as opposed to the conditions set forth
in any of clauses (i), (ii) or (iii) above) ceases to exist on the Reduction
Date and/or Tenant does not have a Tangible Net Worth of at least
$165,000,000.00 on the Reduction Date, the Security Deposit (or applicable
Letter of Credit) shall be so reduced on the date that Tenant has achieved a
Tangible Net Worth of $165,000,000.00, provided the conditions set forth in
clauses (i), (ii), (iii) and (iv) above exist on such date. If the Security
Deposit (or applicable Letter of Credit) is reduced pursuant to the foregoing
provisions, Landlord shall return the amount of the reduction if Tenant paid the
Security Deposit in cash or Tenant may replace and/or amend the Letter of Credit
accordingly.
If Tenant initially provides Landlord with a cash Security Deposit, Tenant
may replace such cash Security Deposit with a Letter of Credit in accordance
with the provisions of the preceding paragraph. Upon Landlord's receipt of a
Letter of Credit satisfying the terms and conditions of the preceding paragraph,
Landlord shall promptly return the cash Security Deposit to Tenant.
For the purposes of this Section 6, a rating of at least A (or its
equivalent) shall mean that such issuer has a rating of at least A (or its
equivalent) from two (2) of the following four (4) rating agencies: Fitch
Investors Service, Xxxxx'x Investor Service, Standard & Poor's Corporation and
Duff & Xxxxxx.
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7. LANDLORD'S OBLIGATIONS
(a) SERVICES. Landlord shall furnish to Tenant the following
services (the cost of which services shall be considered Operating Costs): (1)
water at those points of supply to the Building as currently exist; (2) heated
and refrigerated air conditioning as appropriate, at such temperatures and in
such amounts as are standard for comparable buildings in the vicinity of the
Building; (3) janitorial service (which janitorial service shall include service
to the interior and exterior of the Building and the Premises and shall include
the services customarily provided to comparable properties by reputable
professional management companies, including, without limitation, maintenance,
repairs and replacement of (u) the parking area associated with the Building and
located on the Premises, (v) all grass, shrubbery and other landscape treatments
on the Premises, (w) the exterior of the Building (including painting), (x)
sprinkler systems and sewage lines, and (y) any other maintenance, repair or
replacement items normally associated with the foregoing) to the Premises on
weekdays, other than holidays, for Building-standard installations and such
window washing as may from time to time be reasonably required; (4) elevators
for ingress and egress to the floors of the Building, provided that Landlord may
reasonably limit the number of operating elevators during non-business hours and
holidays if any person(s) other than Tenant or any assignees or sublessees of
Tenant permitted hereunder occupies any portion of the Premises; and (5)
electrical current for equipment that does not require more than 110 volts and
whose electrical energy consumption does not exceed normal office usage. While
Tenant is the sole occupant of the Building, Tenant may, with Landlord's prior
written consent (which consent shall not be unreasonably withheld or delayed),
substitute at Tenant's expense any of the providers of the services described in
this Section 7.(a) with reputable, licensed (if applicable) third party service
providers located in the area in which the Building is located; provided,
however, Tenant shall provide Landlord with copies of all contracts with any
such service provider and said contracts shall be in form and substance
reasonably satisfactory to Landlord. If, in accordance with the provisions of
the preceding sentence, Tenant engages (at its own cost) providers for all of
the services to be provided by Landlord under this Section 7.(a), the management
fee included in Operating Costs shall be reduced to the greater of (i) $1,300.00
per month or (ii) one and one-quarter percent (1 1/4%) of the gross revenues
derived by Landlord from the Premises. If Tenant engages providers of the
services set forth in this Section 7.(a) as aforesaid and any such services are
provided, in Landlord's reasonable discretion, at an unsatisfactory level as
would customarily be provided to comparable buildings, Landlord may, upon at
least twenty (20) days prior written notice to Tenant (except in the event of an
emergency or in situations where Landlord's prompt action is necessary to
prevent damage or deterioration to any portion of the Premises, in which case,
no advance notice shall be required) elect to provide such services and the
management fee shall no longer be reduced; provided, however, to the extent the
twenty-day grace period exists, Landlord's election shall be deemed null and
void and of no further force and effect if Tenant causes the services being
performed at an unsatisfactory level to be performed at a satisfactory level
within the twenty-day period.
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Landlord and Tenant hereby acknowledge and agree that, as of the
Commencement Date, Tenant shall engage providers of the services set forth in
this Section 7.(a). If Tenant is engaging providers of such services in
accordance with the provisions of this Lease, Landlord may perform periodic
inspections of the Building and all such inspection costs shall be considered an
Operating Cost and paid by Tenant in accordance with Section 4 above. However,
upon sixty (60) days prior written notice to Landlord, Tenant may elect to have
Landlord provide such services.
(b) LANDLORD'S MAINTENANCE OBLIGATIONS. This Lease is intended to be
a net lease; accordingly, Landlord's maintenance obligations (other than those
set forth in Section 7(a), if applicable) are limited to the repair, maintenance
and replacement of the Building's roof and the repair, maintenance and
replacement of the foundation and structural members of exterior walls (the
"BUILDING'S STRUCTURE"); Landlord shall not be responsible for (1) any such work
until Tenant notifies Landlord of the need therefor in writing, (2) for
alterations to the Building's Structure required by applicable law because of
Tenant's use of the Premises (which alterations shall be Tenant's
responsibility), (3) any such work caused by Tenant's negligence or its failure
to comply with the provisions of this Lease, or (4) any costs incurred by
Landlord in connection with the repair, maintenance and/or replacement of the
roof, which repair, maintenance and/or replacement costs shall be considered an
Operating Cost and paid by Tenant in accordance with Section 4 above. The
Building's Structure does not include skylights, windows, glass or plate glass,
doors, special fronts, or office entries, all which shall be maintained by
Tenant. Landlord's liability for any defects, repairs, replacements or
maintenance for which Landlord specifically is responsible for under this Lease
shall be limited to the cost of performing the work. Notwithstanding any
provisions of this Lease to the contrary, Landlord may replace the roof and the
roof membrane at any time, but shall be required to replace the roof and the
roof membrane if the cost to repair the roof and the roof membrane over an
aggregate twelve-month period exceeds $30,000.00 provided that such repair work
is not necessitated by either a catastrophic failure caused by severe weather
events or any act or omission by or on behalf of any Tenant Party.
(c) EXCESS UTILITY USE. Landlord shall not be required to furnish
electrical current for equipment that requires more than the electrical capacity
currently provided in the Building (the "BASE BUILDING ELECTRICAL CAPACITY"). If
Tenant's requirements for consumption of electricity exceed the Base Building
Electrical Capacity, Landlord shall, at Tenant's expense, make reasonable
efforts to supply such service through the then-existing feeders and risers
serving the Building, and Tenant shall pay to Landlord the cost of such service
within ten days after Landlord has delivered to Tenant an invoice therefor.
Landlord may determine the amount of such additional consumption and potential
consumption by any verifiable method, including installation of a separate meter
in the Premises installed, maintained, and read by Landlord, at Tenant's
expense. Tenant shall not install any electrical equipment requiring special
wiring or requiring voltage in excess of the Base Building Electrical Capacity
unless approved in advance by Landlord. The use of electricity in the Building
shall not exceed the capacity of existing feeders and risers to or wiring in the
Building. Any risers or wiring required to meet Tenant's excess electrical
requirements shall, upon Tenant's written request, be installed
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by Landlord, at Tenant's cost, if, in Landlord's judgment, the same are
necessary and shall not cause permanent damage to the Building or the Premises,
cause or create a dangerous or hazardous condition, or entail excessive or
unreasonable alterations, repairs, or expenses. If Tenant uses machines or
equipment in the Building which affect the temperature otherwise maintained by
the air conditioning system or otherwise overload any utility, Landlord may
install supplemental air conditioning units or other supplemental equipment in
the Building, and the cost thereof, including the cost of installation,
operation, use, and maintenance, shall be paid by Tenant to Landlord within ten
(10) days after Landlord has delivered to Tenant an invoice therefor.
(d) RESTORATION OF SERVICES; ABATEMENT. Landlord shall use
reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render Landlord liable for
any damages caused thereby, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of Tenant's obligations hereunder. If, however,
Tenant is prevented from using the Premises for more than fifteen (15)
consecutive business days because of the unavailability of any such service and
such unavailability was not caused by a Tenant Party, then Tenant shall, as its
exclusive remedy be entitled to a reasonable abatement of Rent for each
consecutive day (after such 15-day period) that Tenant is so prevented from
using the Premises.
(e) LANDLORD'S COMPLIANCE WITH APPLICABLE LEGAL REQUIREMENTS.
Landlord shall comply with all legal requirements directly applicable to the
structural elements of the Building; but only to the extent that a failure to so
comply shall materially affect the Building, Tenant's use thereof or Tenant's
access thereto or results in Tenant being held responsible for the violation.
Landlord may contest in good faith the validity or application of any legal
requirements with which Landlord may be obligated to comply. Notwithstanding the
foregoing, all expenses incurred by Landlord to comply with all such legal
requirements enacted after the date of this Lease shall be considered an
Operating Cost and paid by Tenant in accordance with Section 4 above.
8. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.
(a) IMPROVEMENTS; ALTERATIONS. Improvements to the Premises shall be
installed at Tenant's expense only in accordance with plans and specifications
which have been previously submitted to and approved in writing by Landlord. No
alterations or physical additions in or to the Premises may be made without
Landlord's prior written consent, which shall not be unreasonably withheld or
delayed; however, Landlord may withhold its consent to any alteration or
addition that would affect the Building's structure or its HVAC, plumbing,
electrical, or mechanical systems. Notwithstanding the foregoing, Tenant may
from time to time make alterations, additions or improvements to the Building,
without the consent of Landlord and without Landlord's approval of plans,
provided: (i) the cost thereof shall not exceed Twenty-Five Thousand Dollars
($25,000.00) in the aggregate in any consecutive twelve-month period; (ii)
Tenant shall, prior to commencing any such alterations, additions and/or
improvements in the Building in connection therewith, furnish Landlord with a
complete set of plans and specifications
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for any such alterations, additions and/or improvements; (iii) such alterations,
additions and/or improvements shall not involve or affect the exterior or the
structure of the Building or any of the mechanical or plumbing systems of the
Building or the base building electrical system, as such base building
electrical system exists after Tenant's installation of the Work (but such
alterations may include minor electrical alterations not affecting the base
building electrical system); and (iv) Tenant shall comply with all requirements
of this Lease with respect to such alterations, additions and/or improvements
other than obtaining the prior approval of Landlord. Tenant shall not paint or
install lighting or decorations, signs, window or door lettering, or advertising
media of any type on or about the Premises without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed; however, Landlord
may withhold its consent to any such painting or installation which would affect
the appearance of the exterior of the Building or of any common areas of the
Building. Notwithstanding any provisions of the preceding sentence to the
contrary, if Tenant is the sole occupant of the Building, Landlord's prior
written consent shall only be required with respect to the painting or
installation of lighting or decorations, signs, window or door lettering, or
advertising media of any type on or about the Premises which would affect the
exterior of the Building. All alterations, additions, and improvements shall be
constructed, maintained, and used by Tenant, at its risk and expense, in
accordance with all Laws; Landlord's approval of the plans and specifications
therefor shall not be a representation by Landlord that such alterations,
additions, or improvements comply with any Law. Landlord shall cooperate with
Tenant in obtaining any permits or licenses sought by Tenant in connection with
the Premises provided Landlord shall never be required to pay any out-of-pocket
expenses in connection therewith.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the Premises in a
clean, safe, and operable condition as exists after the construction of the Work
(as hereinafter defined) and any other alterations, additions or improvements
performed by Tenant, reasonable wear and tear and damage by fire, other casualty
and eminent domain excepted, consistent with the operation of a first class
building consistent with the Permitted Use, and shall not permit or allow to
remain any waste or damage to any portion of the Premises. If Tenant elects to
engage providers for all services in accordance with Section 7.(a) above, Tenant
shall enter into preventative maintenance/service contract(s) with maintenance
contractor(s) reasonably approved by Landlord for servicing the landscaping of
the Premises and all air conditioning, heating and ventilating equipment,
elevators and other equipment located within or serving the Premises. All
preventative maintenance/service contracts shall be in form and substance
reasonably satisfactory to Landlord and shall provide that the maintenance
contractor shall provide Landlord with quarterly reports respecting the
maintenance of the subject equipment. Upon request from Landlord, Tenant shall
provide Landlord with copies of all such preventative maintenance/service
contracts maintained by Tenant. Irrespective of whether or not Tenant elects to
engage providers for all services in accordance with Section 7.(a) above, Tenant
shall repair or replace, subject to Landlord's reasonable direction and
supervision, any improvement or system installed by Tenant within the Premises
and any damage to the Building caused by Tenant, Tenant's transferees, or their
respective agents, contractors, or invitees. If Tenant fails to make such
repairs or
20
replacements within fifteen (15) days (or such shorter period of time required
to prevent any damage from occurring to the Premises) after the occurrence of
such damage, then Landlord may, after written notice to Tenant, make the same at
Tenant's cost. Notwithstanding any provisions of this Lease to the contrary, if
the cost to repair one of the existing rooftop HVAC units exceeds twenty-five
percent (25%) of the replacement cost for such unit, Landlord shall pay for such
replacement cost within twenty (20) business days after satisfaction of the
following terms and conditions: (i) Landlord and Tenant agree in writing on any
such replacement cost, on the specification of the new rooftop unit, and on the
contractor to install such new unit; (ii) Tenant shall ensure such new unit is
installed in accordance with applicable Laws; (iii) Tenant shall not be in
default under this Lease; (iv) this Lease shall be in full force and effect; (v)
Tenant has provided Landlord with evidence reasonably satisfactory to Landlord
that the new unit has been installed in accordance with applicable Laws; (vi)
Tenant has maintained and repaired such unit in accordance with the provisions
of this Lease; and (vii) such replacement costs shall be considered an Operating
Cost and paid by Tenant in accordance with Section 4 above.
(c) PERFORMANCE OF WORK. All work described in this Section 8 shall
be performed only by Landlord or by contractors and subcontractors reasonably
approved in writing by Landlord. Tenant shall cause all contractors and
subcontractors to procure and maintain insurance coverage naming Landlord as an
additional insured against such risks, in such amounts, and with such companies
as Landlord may reasonably require. All such work shall be performed in
accordance with all Laws and in a good and workmanlike manner so as not to
damage the Building (including the Premises, the structural elements, and the
plumbing, electrical lines, or other utility transmission facility). All such
work which may affect the Building's HVAC, electrical, plumbing, other
mechanical systems, or structural elements must be approved by the Building's
engineer of record, at Tenant's expense and, at Landlord's election, must be
performed by Landlord's usual contractor for such work, unless otherwise
approved by Landlord.
Tenant shall provide sworn statements, including the names, addresses and
copies of contracts for all contractors, and upon completion of any work shall
promptly furnish Landlord with sworn owner's and contractor's statements and
full and final waivers of lien covering all labors and materials included in the
work in question.
(d) MECHANIC'S LIENS. Tenant shall not permit any mechanic's liens
to be filed against the Premises or the Building for any work performed,
materials furnished, or obligation incurred by or at the request of Tenant. If
such a lien is filed, then Tenant shall, within ten days after Landlord has
delivered notice of the filing thereof to Tenant, either pay the amount of the
lien or diligently contest such lien and deliver to Landlord a bond or other
security reasonably satisfactory to Landlord. If Tenant fails to timely take
either such action, then Landlord may pay the lien claim, and any amounts so
paid, including expenses and interest, shall be paid by Tenant to Landlord
within ten days after Landlord has invoiced Tenant therefor.
21
(e) UTILITIES. Tenant shall obtain and pay for all water, gas,
electricity, heat, telephone, sewer, sprinkler charges and other utilities and
services used at the Premises, together with all taxes, penalties, surcharges,
and maintenance charges pertaining thereto. To the extent Tenant is not billed
directly for any such utilities, any amounts payable by Tenant under this
Section shall be due within ten (10) days after Landlord has invoiced Tenant
therefor.
(f) FLOOR LOAD; HEAVY MACHINERY. (i) Tenant shall not place a load
upon any floor in the Building exceeding the floor load per square foot of area
which such floor was designed to carry or which is allowed by law. Landlord
reserves the right to prescribe the weight and position of all heavy business
machines and mechanical equipment, including safes, which shall be placed so as
to distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient, in
Landlord's judgment, to absorb and prevent vibration, noise and annoyance.
Tenant shall not move any safe, heavy machinery and/or heavy equipment into or
out of the Building without Landlord's prior consent, not to be unreasonably
withheld, conditioned or delayed, which consent may include a requirement to
provide insurance, naming Landlord as an insured, in such amounts as Landlord
may deem reasonable.
(ii) If such safe, machinery, equipment, freight, bulky matter
or fixtures requires special handling, Tenant agrees that all work in connection
therewith shall comply with applicable laws and regulations. Any such moving
shall be at the sole risk and hazard of Tenant, and Tenant will exonerate,
indemnify and save Landlord harmless against and from any liability, loss,
injury, claim or suit resulting directly or indirectly from such moving.
9. USE. Tenant shall occupy and use the Premises only for the Permitted
Use, and for no other purposes, and shall comply with all Laws relating to the
use, condition, access to, and occupancy of the Premises. The population density
within the Premises as a whole shall at no time exceed one person for each 200
rentable square feet in the Premises. The Premises shall not be used for any use
which is disreputable, creates extraordinary fire hazards, or results in an
increased rate of insurance on the Building or its contents, or for the storage
of any Hazardous Materials. If, because of a Tenant Party's acts, the rate of
insurance on the Building or its contents increases, then Tenant shall pay to
Landlord the amount of such increase on demand, and acceptance of such payment
shall not waive any of Landlord's other rights. If Tenant fails to cease or
remediate such acts within five (5) days after Landlord's request that Tenant do
so, then such acts shall be an Event of Default. Tenant shall conduct its
business and control each other Tenant Party so as not to create any nuisance or
unreasonably interfere with other tenants or Landlord in its management of the
Building.
10. ASSIGNMENT AND SUBLETTING
(a) TRANSFERS. Except as provided in Section 10.(g), Tenant shall
not, without the prior written consent of Landlord, (1) assign, transfer, or
encumber this Lease
22
or any estate or interest herein, whether directly or by operation of law, (2)
permit any other entity to become Tenant hereunder by merger, consolidation, or
other reorganization, (3) if Tenant is an entity other than a corporation whose
stock is publicly traded, permit the transfer of an ownership interest in Tenant
so as to result in a change in the current control of Tenant, (4) sublet any
portion of the Premises, (5) grant any license, concession, or other right of
occupancy of any portion of the Premises, or (6) permit the use of the Premises
by any parties other than Tenant (any of the events listed in Section 10.(a)(1)
through 10.(a)(6) being a "TRANSFER").
(b) CONSENT STANDARDS. Landlord shall not unreasonably withhold,
condition or delay its consent to any assignment or subletting of the Premises,
provided that the proposed transferee is creditworthy, has a good reputation in
the business community, will use the Premises for the Permitted Use (thus,
excluding, without limitation, uses for credit processing and telemarketing) and
will not use the Premises in any manner that would conflict with any exclusive
use agreement or other similar agreement entered into by Landlord with any other
tenant of the Building, is not a governmental entity, or subdivision or agency
thereof, and is not another occupant of the Building or person or entity with
whom Landlord is negotiating to lease space in the Building; otherwise, Landlord
may withhold its consent in its sole discretion.
(c) REQUEST FOR CONSENT. If Tenant requests Landlord's consent to a
Transfer, then Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and other credit
information; and general references sufficient to enable Landlord to determine
the proposed transferee's creditworthiness. Landlord shall approve such request,
or indicate its basis for refusing consent, within thirty (30) days after
receipt of such request and receipt of all of the information enumerated in the
preceding sentence. Concurrently with Tenant's notice of any request for consent
to a Transfer, Tenant shall pay to Landlord a fee of $750 to defray Landlord's
expenses in reviewing such request, and Tenant shall also reimburse Landlord
immediately upon request for its reasonable attorneys' fees incurred in
connection with considering any request for consent to a Transfer.
(d) CONDITIONS TO CONSENT. If Landlord consents to a proposed
Transfer, then the proposed transferee shall deliver to Landlord a written
agreement whereby it expressly assumes Tenant's obligations hereunder; however,
any transferee of less than all of the space in the Premises shall be liable
only for obligations under this Lease that are properly allocable to the space
subject to the Transfer for the period of the Transfer. No Transfer shall
release Tenant from its obligations under this Lease, but rather Tenant and its
transferee shall be jointly and severally liable therefor. Landlord's consent to
any Transfer shall not waive Landlord's rights as to any subsequent Transfers.
If an Event of Default occurs while the Premises or any part thereof are subject
to a Transfer, then Landlord, in addition to its other remedies, may collect
directly from such transferee all rents becoming due to Tenant and apply such
rents against Rent. Tenant
23
authorizes its transferees to make payments of rent directly to Landlord upon
receipt of notice from Landlord to do so. Tenant shall pay for the cost of any
demising walls or other improvements necessitated by a proposed subletting or
assignment.
(e) CANCELLATION. Landlord may, within 30 days after submission of
Tenant's written request for Landlord's consent to an assignment or subletting,
cancel this Lease as to the portion of the Premises proposed to be sublet or
assigned as of the date the proposed Transfer is to be effective. If Landlord
cancels this Lease as to any portion of the Premises, then this Lease shall
cease for such portion of the Premises and Tenant shall pay to Landlord all Rent
accrued through the cancellation date relating to the portion of the Premises
covered by the proposed Transfer. Thereafter, Landlord may lease such portion of
the Premises to the prospective transferee (or to any other person) without
liability to Tenant.
(f) ADDITIONAL COMPENSATION. Tenant shall pay to Landlord,
immediately upon receipt thereof, seventy-five percent (75%) of the excess of
(1) all compensation received by Tenant for a Transfer less the costs reasonably
incurred by Tenant with unaffiliated third parties in connection with such
Transfer (i.e., brokerage commissions, tenant finish work, and the like) over
(2) the Rent allocable to the portion of the Premises covered thereby.
(g) PERMITTED TRANSFERS. Notwithstanding Section 10.(a), Tenant may
Transfer all or part of its interest in this Lease or all or part of the
Premises (a "PERMITTED TRANSFER") to the following types of entities (a
"PERMITTED TRANSFEREE") without the written consent of Landlord:
(1) an Affiliate of Tenant;
(2) any corporation, limited partnership, limited liability
partnership, limited liability company or other business entity in which
or with which Tenant, or its corporate successors or assigns, is merged or
consolidated, in accordance with applicable statutory provisions governing
merger and consolidation of business entities, so long as (A) Tenant's
obligations hereunder are assumed by the entity surviving such merger or
created by such consolidation; and (B) the Tangible Net Worth of the
surviving or created entity is not less than the greater of (i) the
Tangible Net Worth of Tenant as of the date hereof, or (ii) the Tangible
Net Worth of Tenant at the time of any such Permitted Transfer; or
(3) any corporation, limited partnership, limited liability
partnership, limited liability company or other business entity acquiring
all or substantially all of Tenant's assets if such entity's Tangible Net
Worth after such acquisition is not less than the greater of (i) the
Tangible Net Worth of Tenant as of the date hereof, or (ii) the Tangible
Net Worth of Tenant at the time of any such Permitted Transfer.
24
Tenant shall promptly notify Landlord of any such Permitted Transfer.
Tenant shall remain liable for the performance of all of the obligations of
Tenant hereunder, or if Tenant no longer exists because of a merger,
consolidation, or acquisition, the surviving or acquiring entity shall expressly
assume in writing the obligations of Tenant hereunder. Additionally, the
Permitted Transferee shall comply with all of the terms and conditions of this
Lease, including the Permitted Use, and the use of the Premises by the Permitted
Transferee may not violate any other agreements affecting the Premises, the
Building, Landlord or other tenants of the Building. At least 30 days after the
effective date of any Permitted Transfer, Tenant agrees to furnish Landlord with
copies of the instrument effecting any of the foregoing Transfers and
documentation establishing Tenant's satisfaction of the requirements set forth
above applicable to any such Transfer. The occurrence of a Permitted Transfer
shall not waive Landlord's rights as to any subsequent Transfers. "TANGIBLE NET
WORTH" means the excess of total assets over total liabilities, in each case as
determined in accordance with generally accepted accounting principles
consistently applied ("GAAP"), excluding, however, from the determination of
total assets all assets which would be classified as intangible assets under
GAAP including, without limitation, goodwill, licenses, patents, trademarks,
trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted
Transferee shall be subject to Landlord's prior written consent (which Landlord
may grant or deny in its sole discretion).
11. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY
(a) TENANT'S INSURANCE. Tenant shall maintain throughout the Term
the following insurance policies: (1) commercial general liability insurance in
amounts of $3,000,000 per occurrence or such other amounts as Landlord may from
time to time reasonably require, insuring Tenant, Landlord, Landlord's agents
and their respective Affiliates against all liability for injury to or death of
a person or persons or damage to property arising from the use and occupancy of
the Premises, (2) insurance covering the full value of Tenant's property and
improvements, and other property (including property of others) in the Premises,
(3) contractual liability insurance sufficient to cover Tenant's indemnity
obligations hereunder (but only if such contractual liability insurance is not
already included in Tenant's commercial general liability insurance policy), (4)
worker's compensation insurance, containing a waiver of subrogation endorsement
acceptable to Landlord, and (5) business interruption insurance. Tenant's
insurance shall provide primary coverage to Landlord when any policy issued to
Landlord provides duplicate or similar coverage, and in such circumstance
Landlord's policy will be excess over Tenant's policy. Tenant shall furnish to
Landlord certificates of such insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages required hereunder, and
Tenant shall obtain a written obligation on the part of each insurance company
to notify Landlord at least 30 days before cancellation or a material change of
any such insurance policies. All such insurance policies shall be in form, and
issued by companies, reasonably satisfactory to Landlord.
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(b) LANDLORD'S INSURANCE. Landlord shall carry throughout the Term
of this Lease fire and extended coverage insurance on the Building for at least
90% of the full replacement value.
(c) WAIVER OF NEGLIGENCE; NO SUBROGATION. Landlord and Tenant each
waives any claim it might have against the other for any injury to or death of
any person or persons or damage to or theft, destruction, loss, or loss of use
of any property (a "LOSS"), to the extent the same is insured against under any
insurance policy that covers the Building, the Premises, Landlord's or Tenant's
fixtures, personal property, leasehold improvements, or business, or is required
to be insured against under the terms hereof, REGARDLESS OF WHETHER THE
NEGLIGENCE OF THE OTHER PARTY CAUSED SUCH LOSS; however, Landlord's waiver shall
not include any deductible amounts on insurance policies carried by Landlord.
Each party shall cause its insurance carrier to endorse all applicable policies
waiving the carrier's rights of recovery under subrogation or otherwise against
the other party.
(d) INDEMNITY. Subject to Section 11.(c), Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorneys' fees) arising from (1)
any Loss arising from any occurrence on the Premises during the Term or any
holdover by Tenant or any person or entity deriving rights from Tenant beyond
the expiration of the Term (other than any Loss arising out of a breach of
Tenant's obligations under Section 25.(t), which shall be subject to the
indemnity in such section) except to the extent caused by the negligence or
fault of Landlord or its agents or (2) Tenant's failure to perform its
obligations under this Lease except to the extent caused by the negligence or
fault of Landlord or its agents. This indemnity provision shall survive
termination or expiration of this Lease. If any proceeding is filed for which
indemnity is required hereunder, Tenant agrees, upon request therefor, to defend
the indemnified party in such proceeding at its sole cost utilizing counsel
reasonably satisfactory to the indemnified party.
12. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE
(a) SUBORDINATION. This Lease shall be subordinate to any deed of
trust, mortgage, or other security instrument, or any ground lease, master
lease, or primary lease (any such security instrument or lease, a "MORTGAGE"),
that now or hereafter covers all or any part of the Premises (the mortgagee
under any such mortgage or the lessor under any such lease is referred to herein
as a "LANDLORD'S MORTGAGEE"). Any Landlord's Mortgagee may elect, at any time,
unilaterally, to make this Lease superior to its mortgage, ground lease, or
other interest in the Premises by so notifying Tenant in writing. Provided
Tenant receives a Non-Disturbance Agreement from each such Mortgagee, Tenant
shall execute agreements confirming the subordination or superiority of this
Lease to any Mortgage upon Landlord or Landlord's Mortgagee's reasonable
request.
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(b) ATTORNMENT. Provided Tenant receives a Non-Disturbance Agreement
from such party, Tenant shall attorn to any party succeeding to Landlord's
interest in the Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming such attornment as
such party may reasonably request.
(c) NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek to enforce
any remedy it may have for any default on the part of Landlord without first
giving written notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Landlord's Mortgagee whose address has
been given to Tenant, and affording such Landlord's Mortgagee a reasonable
opportunity to perform Landlord's obligations hereunder.
(d) LANDLORD'S MORTGAGEE'S PROTECTION PROVISIONS. If Landlord's
Mortgagee shall succeed to the interest of Landlord under this Lease, Landlord's
Mortgagee shall not be: (1) liable for any act or omission of any prior lessor
(including Landlord); (2) bound by any rent or additional rent or advance rent
which Tenant might have paid for more than the current month to any prior lessor
(including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment unless such rent is actually received by
Landlord's Mortgagee; (3) bound by any security or advance rental deposit made
by Tenant which is not delivered or paid over to Landlord's Mortgagee and with
respect to which Tenant shall look solely to Landlord for refund or
reimbursement; (4) bound by any termination, amendment or modification of this
Lease made without Landlord's Mortgagee's consent and written approval, except
for those terminations, amendments and modifications permitted to be made by
Landlord without Landlord's Mortgagee's consent pursuant to the terms of the
loan documents between Landlord and Landlord's Mortgagee; (5) subject to the
defenses which Tenant might have against any prior lessor (including Landlord);
and (6) subject to the offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (A) are expressly
provided in this Lease, (B) relate to periods of time following the acquisition
of the Building by Landlord's Mortgagee, and (C) Tenant has provided written
notice to Landlord's Mortgagee and provided Landlord's Mortgagee a reasonable
opportunity to cure the event giving rise to such offset event. Landlord's
Mortgagee shall have no liability or responsibility under or pursuant to the
terms of this Lease or otherwise after it ceases to own an interest in the
Building. Nothing in this Lease shall be construed to require Landlord's
Mortgagee to see to the application of the proceeds of any loan, and Tenant's
agreements set forth herein shall not be impaired on account of any modification
of the documents evidencing and securing any loan.
(e) SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT.
Simultaneously upon Tenant's execution of this Lease, Tenant shall execute a
Subordination, Non-Disturbance and Attornment Agreement in the form attached
hereto as Exhibit K. Landlord shall return a fully executed Subordination,
Non-Disturbance and Attornment Agreement in the form attached hereto as Exhibit
K, executed by Landlord and the Lender named therein to Tenant as soon as
reasonably possible. Landlord shall
27
use reasonable efforts (which efforts shall not require the expenditure of funds
or the threat (or commencement) of litigation) to obtain a so-called
"nondisturbance agreement" from any future Landlord's Mortgagee in the form
attached hereto as Exhibit K or another form reasonably acceptable to Tenant and
such Landlord's Mortgagee or other institutional lenders (either the form
attached hereto as Exhibit K or such other reasonably acceptable form being
herein referred to as the "NON-DISTURBANCE AGREEMENT"). The subordination of
Tenant's rights hereunder to any future Landlord's Mortgagee under Section
12.(a) and the attornment of Tenant to any future Landlord Mortgagee under
Section 12.(b) shall be conditioned upon such future Landlord's Mortgagee's
execution and delivery of a Non-Disturbance Agreement.
13. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations of the Building which are attached hereto as Exhibit C. Landlord
may, from time to time, change such rules and regulations for the safety, care,
or cleanliness of the Building and related facilities, provided that such
changes are applicable to all tenants of the Building and will not unreasonably
interfere with Tenant's use of the Premises. Tenant shall be responsible for the
compliance with such rules and regulations by each Tenant Party.
14. CONDEMNATION.
(a) TOTAL TAKING. If the entire Building or Premises are taken by
right of eminent domain or conveyed in lieu thereof (a "TAKING"), this Lease
shall terminate as of the date of the Taking.
(b) PARTIAL TAKING - TENANT'S RIGHTS. If any part of the Building
becomes subject to a Taking and such Taking will prevent Tenant from conducting
its business in the Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than 180 days, then Tenant
may terminate this Lease as of the date of such Taking by giving written notice
to Landlord within 30 days after the Taking, and Rent shall be apportioned as of
the date of such Taking. If Tenant does not terminate this Lease, then Rent
shall be abated on a reasonable basis as to that portion of the Premises
rendered untenantable by the Taking.
(c) PARTIAL TAKING - LANDLORD'S RIGHTS. If any material portion, but
less than all, of the Building becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a Taking to a Landlord's
Mortgagee, then Landlord may terminate this Lease by delivering written notice
thereof to Tenant within 30 days after such Taking, and Rent shall be
apportioned as of the date of such Taking. If Landlord does not so terminate
this Lease, then this Lease will continue, but if any portion of the Premises
has been taken, Rent shall xxxxx as provided in the last sentence of Section
14.(b).
(d) AWARD. If any Taking occurs, then Landlord shall receive the
entire award or other compensation for the land on which the Building is
situated, the Building, and other improvements taken, and Tenant may separately
pursue a claim (to
28
the extent it will not reduce Landlord's award) against the condemnor for the
value of Tenant's personal property which Tenant is entitled to remove under
this Lease, moving costs, loss of business, and other claims it may have.
15. FIRE OR OTHER CASUALTY
(a) REPAIR ESTIMATE. If the Premises or the Building are damaged by
fire or other casualty (a "CASUALTY"), Landlord shall, within 90 days after such
Casualty, deliver to Tenant a good faith estimate (the "DAMAGE NOTICE") of the
time needed to repair the damage caused by such Casualty.
(b) LANDLORD'S AND TENANT'S RIGHTS. If a material portion of the
Premises or the Building is damaged by Casualty such that Tenant is prevented
from conducting its business in the Premises in a manner reasonably comparable
to that conducted immediately before such Casualty and Landlord estimates that
the damage caused thereby cannot be repaired within two hundred ten (210) days
after the Casualty, then Tenant may terminate this Lease by delivering written
notice to Landlord of its election to terminate within 30 days after the Damage
Notice has been delivered to Tenant. If Tenant does not so timely terminate this
Lease, then (subject to Section 15.(c)) Landlord shall repair the Building or
the Premises, as the case may be, as provided below, and Rent for the portion of
the Premises rendered untenantable by the damage shall be abated on a reasonable
basis from the date of damage until the completion of the repair, unless a
Tenant Party caused such damage, in which case, Tenant shall continue to pay
Rent without abatement.
(c) LANDLORD'S RIGHTS. If a Casualty damages a material portion of
the Building, and Landlord makes a good faith determination that restoring the
Premises would be uneconomical, or if Landlord is required to pay any insurance
proceeds arising out of the Casualty to a Landlord's Mortgagee, then Landlord
may terminate this Lease by giving written notice of its election to terminate
within 30 days after the Damage Notice has been delivered to Tenant, and Basic
Rent and Additional Rent shall be abated as of the date of the Casualty.
(d) REPAIR OBLIGATION. If neither party elects to terminate this
Lease following a Casualty, then Landlord shall, within a reasonable time after
such Casualty, begin to repair the Building and the Premises and shall proceed
with reasonable diligence to restore the Building and Premises to substantially
the same condition as they existed immediately before such Casualty; however,
Landlord shall not be required to repair or replace any of the furniture,
equipment, fixtures, and other improvements which may have been placed by, or at
the request of, Tenant or other occupants in the Building or the Premises, and
Landlord's obligation to repair or restore the Building or Premises shall be
limited to the extent of the insurance proceeds actually received by Landlord
for the Casualty in question. If the Premises are not substantially restored
within two hundred ten (210) days after a Casualty, Tenant shall have the right
to terminate this Lease upon at least sixty (60) days prior written notice;
provided, however, if Landlord substantially
29
restores the Premises within said sixty-day period, Tenant's termination notice
shall be null and void and the provisions of this Lease shall remain in full
force and effect.
16. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes levied
or assessed against personal property, furniture, or fixtures placed by Tenant
in the Premises. If any taxes for which Tenant is liable are levied or assessed
against Landlord or Landlord's property and Landlord elects to pay the same, or
if the assessed value of Landlord's property is increased by inclusion of such
personal property, furniture or fixtures and Landlord elects to pay the taxes
based on such increase, then Tenant shall pay to Landlord, upon demand, the part
of such taxes for which Tenant is primarily liable hereunder; however, Landlord
shall not pay such amount if Tenant notifies Landlord that it will contest the
validity or amount of such taxes before Landlord makes such payment, and
thereafter diligently proceeds with such contest in accordance with law and if
the non-payment thereof does not pose a threat of loss or seizure of the
Building or interest of Landlord therein or impose any fee or penalty against
Landlord.
17. EVENTS OF DEFAULT. Each of the following occurrences shall be an
"EVENT OF DEFAULT":
(a) Tenant's failure to pay Rent within five days after Landlord has
delivered notice to Tenant that the same is due; however, an Event of Default
shall occur hereunder without any obligation of Landlord to give any notice if
Landlord has given Tenant written notice under this Section 17.(a) on more than
one occasion during the twelve (12) month interval preceding such failure by
Tenant;
(b) an Event of Default occurs under that certain Lease Agreement
dated January 31, 2000 by and between Landlord and Tenant with respect to the
premises known and numbered as 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
(the "15 XXXXXXXXX DRIVE LEASE");
(c) Tenant abandons the Premises or any substantial portion thereof;
(d) Tenant fails to comply with the Permitted Use set forth herein
and the continuance of such failure for a period of five (5) days after Landlord
has delivered to Tenant written notice thereof;
(e) Tenant fails to provide any estoppel certificate within the time
period required under Section 25.(e) and such failure shall continue for five
days after written notice thereof from Landlord to Tenant;
(f) Tenant's failure to perform, comply with, or observe any other
agreement or obligation of Tenant under this Lease and the continuance of such
failure for a period of more than 30 days after Landlord has delivered to Tenant
written notice thereof; provided that if the default is of such a nature that it
may not be reasonably cured within thirty (30) days, then no Event of Default
shall occur hereunder if Tenant commences curing within such thirty (30) day
period and thereafter diligently and
30
continuously pursues such cure to completion within a period of not more than
seventy-five (75) days after the delivery of such notice; and
(g) The filing of a petition by or against Tenant (the term "TENANT"
shall include, for the purpose of this Section 17.(g), any guarantor of Tenant's
obligations hereunder) (1) in any bankruptcy or other insolvency proceeding; (2)
seeking any relief under any state or federal debtor relief law; (3) for the
appointment of a liquidator or receiver for all or substantially all of Tenant's
property or for Tenant's interest in this Lease; or (4) for the reorganization
or modification of Tenant's capital structure; however, if such a petition is
filed against Tenant, then such filing shall not be an Event of Default unless
Tenant fails to have the proceedings initiated by such petition dismissed within
90 days after the filing thereof.
18. REMEDIES. Upon an Event of Default, Landlord may, in addition to all
other rights and remedies afforded Landlord hereunder, take any of the following
actions:
(a) Terminate this Lease by giving Tenant written notice thereof, in
which event Tenant shall pay to Landlord the sum of (1) all Rent accrued
hereunder through the date of termination, (2) all amounts due under Section
19.(a), and (3) an amount equal to (A) the total Rent that Tenant would have
been required to pay for the remainder of the Term plus Landlord's estimate of
aggregate expenses of reletting to the Premises, discounted to present value at
a per annum rate equal to the "Prime Rate" as published on the date this Lease
is terminated by The Wall Street Journal, Northeast Edition, in its listing of
"Money Rates," minus one percent, similarly discounted, minus (B) the then
present fair rental rate value of the Premises for such period;
(b) Terminate Tenant's right to possess the Premises without
terminating this Lease by giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (1) all Rent and other amounts accrued
hereunder to the date of termination of possession, (2) all amounts due from
time to time under Section 19.(a), and (3) all Rent and other net sums required
hereunder to be paid by Tenant during the remainder of the Term, diminished by
any net sums thereafter received by Landlord through reletting the Premises
during such period, after deducting all out-of-pocket costs incurred by Landlord
in reletting the Premises. Landlord shall use reasonable efforts to relet the
Premises on such terms as Landlord in its sole discretion may determine
(including a term different from the Term, rental concessions, and alterations
to, and improvement of, the Premises); however, Landlord shall not be obligated
to relet the Premises before leasing other portions of the Building. Landlord
shall not be liable for, nor shall Tenant's obligations hereunder be diminished
because of, Landlord's failure to relet the Premises or to collect rent due for
such reletting. Tenant shall not be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring an action against Tenant to
collect amounts due by Tenant, without the necessity of Landlord's waiting until
the expiration of the Term. Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this Lease, all actions taken
by Landlord
31
to dispossess or exclude Tenant from the Premises shall be deemed to be taken
under this Section 18.(b). If Landlord elects to proceed under this Section
18.(b), it may at any time elect to terminate this Lease under Section 18.(a);
or
(c) Additionally, upon five (5) days prior written notice, Landlord
may alter locks or other security devices at the Premises to deprive Tenant of
access thereto, and Landlord shall not be required to provide a new key or right
of access to Tenant.
Any and all remedies set forth in this Lease: (i) shall be in addition to
any and all other remedies Landlord may have at law or in equity; (ii) shall be
cumulative except as otherwise expressly provided herein; and (iii) may be
pursued successively or concurrently as Landlord may elect. The exercise of any
remedy by Landlord shall not be deemed an election of remedies or preclude
Landlord from exercising any other remedies in the future. Notwithstanding the
foregoing, Landlord shall only recover its damages allowed hereunder once.
19. PAYMENT BY TENANT; NON-WAIVER
(a) PAYMENT BY TENANT. Upon any Event of Default, Tenant shall pay
to Landlord all costs incurred by Landlord (including court costs and reasonable
attorneys' fees and expenses) in (1) obtaining possession of the Premises, (2)
removing and storing Tenant's or any other occupant's property, (3) repairing,
restoring, altering, remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant, (4) if Tenant is dispossessed of the
Premises and this Lease is not terminated, reletting all or any part of the
Premises (including brokerage commissions, cost of tenant finish work, and other
costs incidental to such reletting), (5) performing Tenant's obligations which
Tenant failed to perform, and (6) enforcing, or advising Landlord of, its
rights, remedies, and recourses arising out of the Event of Default. To the full
extent permitted by law, Landlord and Tenant agree the federal and state courts
of the state in which the Premises are located shall have exclusive jurisdiction
over any matter relating to or arising from this Lease and the parties' rights
and obligations under this Lease.
(b) NO WAIVER. Landlord's acceptance of Rent following an Event of
Default shall not waive Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such
term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of the Rent that is due.
20. LANDLORD'S LIEN. Intentionally omitted, provided that the deletion of
this Section shall not be construed to be a waiver of Landlord's lien rights
provided by law.
32
21. SURRENDER OF PREMISES. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, free of Hazardous Materials placed on the Premises during the
Term, broom-clean, reasonable wear and tear (and condemnation and Casualty
damage not caused by Tenant, as to which Sections 14 and 15 shall control)
excepted, and shall deliver to Landlord all keys to the Premises. Provided that
Tenant has performed all of its obligations hereunder, Tenant may remove all
unattached trade fixtures, furniture, and personal property placed in the
Premises or elsewhere in the Building by Tenant (but Tenant may not remove any
such item which was paid for, in whole or in part, by Landlord or any wiring or
cabling unless Landlord requires such removal). Additionally, at Landlord's
option, Tenant shall remove such alterations, additions, improvements, trade
fixtures, personal property, equipment, wiring, cabling, and furniture as
Landlord may request; however, Tenant shall not be required to remove any
addition or improvement to the Premises if Landlord has specifically agreed in
writing that the improvement or addition in question need not be removed. Tenant
shall repair all damage caused by such removal. All items not so removed shall,
at Landlord's option, be deemed to have been abandoned by Tenant and may be
appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord
without notice to Tenant and without any obligation to account for such items;
any such disposition shall not be considered a strict foreclosure or other
exercise of Landlord's rights in respect of the security interest granted under
Section 20. The provisions of this Section 21 shall survive the end of the Term.
22. HOLDING OVER. If Tenant fails to vacate the Premises at the end of the
Term, then Tenant shall be a tenant at will and, in addition to all other
damages and remedies to which Landlord may be entitled for such holding over,
Tenant shall pay, in addition to the other Rent, a daily Basic Rent equal to the
greater of (a) 150% of the daily Basic Rent payable during the last month of the
Term, or (b) 125% of the prevailing rental rate in the Building for similar
space. The provisions of this Section 22 shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Landlord provided herein
or at law. If Tenant fails to surrender the Premises upon the termination or
expiration of this Lease, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord
harmless from all loss, costs (including reasonable attorneys' fees) and
liability resulting from such failure, including, without limiting the
generality of the foregoing, any claims made by any succeeding tenant founded
upon such failure to surrender, and any lost profits to Landlord resulting
therefrom.
23. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's occupancy of the
Premises, Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise, in and
about the Building, or
33
any part thereof; to enter upon the Premises (after giving Tenant reasonable
notice thereof, which may be oral notice, except in cases of real or apparent
emergency, in which case no notice shall be required) and, during the
continuance of any such work, to temporarily close doors, entryways, public
space, and corridors in the Building; to interrupt or temporarily suspend
Building services and facilities; to change the name of the Building; and to
change the arrangement and location of entrances or passageways, doors, and
doorways, corridors, elevators, stairs, restrooms, or other public parts of the
Building;
(b) To take such reasonable measures as Landlord deems advisable for
the security of the Building and its occupants; evacuating the Building for
cause, suspected cause, or for drill purposes; temporarily denying access to the
Building; and closing the Building after normal business hours and on Sundays
and holidays, subject, however, to Tenant's right to enter when the Building is
closed after normal business hours under such reasonable regulations as Landlord
may prescribe from time to time; and
(c) To enter the Premises at reasonable hours to show the Premises
to prospective purchasers, lenders, or, during the last 12 months of the Term,
tenants.
24. [INTENTIONALLY OMITTED]
25. MISCELLANEOUS.
(a) LANDLORD TRANSFER. Landlord may transfer any portion of the
Building and any of its rights under this Lease. If Landlord assigns its rights
under this Lease, then Landlord shall thereby be released from any further
obligations hereunder arising after the date of transfer, provided that the
assignee assumes Landlord's obligations hereunder in writing.
(b) LANDLORD'S LIABILITY. The liability of Landlord to Tenant for
any default by Landlord under the terms of this Lease shall be limited to
Tenant's actual direct, but not consequential, damages therefor and shall be
recoverable only from the interest of Landlord in the Building, and Landlord
shall not be personally liable for any deficiency. This Section shall not limit
any remedies which Tenant may have for Landlord's defaults which do not involve
the personal liability of Landlord.
(c) FORCE MAJEURE. Other than for Tenant's obligations under this
Lease that can be performed by the payment of money (e.g., payment of Rent and
maintenance of insurance), whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or restrictions, or any
other causes of any kind whatsoever which are beyond the control of such party.
34
(d) BROKERAGE. Neither Landlord nor Tenant has dealt with any broker
or agent in connection with the negotiation or execution of this Lease, other
than Xxxxx & Xxxxx Management Services, Inc. and CRESA Partners, whose
commission shall be paid by Landlord. Tenant and Landlord shall each indemnify
the other against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any broker or agent claiming the
same by, through, or under the indemnifying party.
(e) ESTOPPEL CERTIFICATES. From time to time, Tenant shall furnish
to any party designated by Landlord, within ten days after Landlord has made a
request therefor, a certificate signed by Tenant confirming and containing such
factual certifications and representations as to this Lease as Landlord may
reasonably request. Unless otherwise required by Landlord's Mortgagee or a
prospective purchaser or mortgagee of the Building, the initial form of estoppel
certificate to be signed by Tenant is attached hereto as Exhibit F.
(f) NOTICES. All notices and other communications given pursuant to
this Lease shall be in writing and shall be (1) mailed by first class, United
States Mail, postage prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address specified in the Basic Lease
Information, (2) hand delivered to the intended address, (3) sent by a
nationally recognized overnight courier service, or (4) sent by facsimile
transmission during normal business hours followed by a confirmatory letter sent
in another manner permitted hereunder. All notices shall be effective upon
delivery to the address of the addressee. The parties hereto may change their
addresses by giving notice thereof to the other in conformity with this
provision.
(g) SEPARABILITY. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby and in lieu of such clause
or provision, there shall be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable.
(h) AMENDMENTS; AND BINDING EFFECT. This Lease may not be amended
except by instrument in writing signed by Landlord and Tenant. No provision of
this Lease shall be deemed to have been waived by Landlord unless such waiver is
in writing signed by Landlord, and no custom or practice which may evolve
between the parties in the administration of the terms hereof shall waive or
diminish the right of Landlord to insist upon the performance by Tenant in
strict accordance with the terms hereof. The terms and conditions contained in
this Lease shall inure to the benefit of and be binding upon the parties hereto,
and upon their respective successors in interest and legal representatives,
except as otherwise herein expressly provided. This Lease is for the sole
benefit of Landlord and Tenant, and, other than Landlord's Mortgagee, no third
party shall be deemed a third party beneficiary hereof.
(i) QUIET ENJOYMENT. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for
35
the Term, without hindrance from Landlord or any party claiming by, through, or
under Landlord, but not otherwise, subject to the terms and conditions of this
Lease.
(j) NO MERGER. There shall be no merger of the leasehold estate
hereby created with the fee estate in the Premises or any part thereof if the
same person acquires or holds, directly or indirectly, this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(k) NO OFFER. The submission of this Lease to Tenant shall not be
construed as an offer, and Tenant shall not have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
(l) ENTIRE AGREEMENT. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter hereof and supersedes
all oral statements and prior writings relating thereto. Except for those set
forth in this Lease, no representations, warranties, or agreements have been
made by Landlord or Tenant to the other with respect to this Lease or the
obligations of Landlord or Tenant in connection therewith. The normal rule of
construction that any ambiguities be resolved against the drafting party shall
not apply to the interpretation of this Lease or any exhibits or amendments
hereto.
(m) WAIVER OF JURY TRIAL. To the maximum extent permitted by law,
Landlord and Tenant each waive right to trial by jury in any litigation arising
out of or with respect to this Lease.
(n) GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are located.
(o) JOINT AND SEVERAL LIABILITY. If Tenant is comprised of more than
one party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease.
(p) FINANCIAL REPORTS. Within 15 days after Landlord's request,
Tenant will furnish Tenant's most recent audited financial statements (including
any notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may have been
prepared by an independent certified public accountant or, failing those,
Tenant's internally prepared financial statements. If Tenant is a publicly
traded corporation, Tenant may satisfy its obligations hereunder by providing to
Landlord Tenant's most recent annual and quarterly reports. Tenant will discuss
its financial statements with Landlord and will give Landlord access to Tenant's
books and records in order to enable Landlord to verify the financial
statements. Landlord will not disclose any aspect of Tenant's financial
statements that Tenant designates to Landlord as confidential except (1) to
Landlord's Mortgagee or prospective purchasers of the Building, (2) in
litigation between Landlord and Tenant, and (3) if required by court order.
Tenant shall not be required to deliver the financial statements required under
this Section 25.(p) more than once in any 12-month
36
period unless requested by Landlord's Mortgagee or a prospective buyer or lender
of the Building or an Event of Default occurs.
(q) LANDLORD'S FEES. Whenever Tenant requests Landlord to take any
action not required of it hereunder or give any consent required or permitted
under this Lease, Tenant will reimburse Landlord for Landlord's reasonable
out-of-pocket costs payable to third parties and incurred by Landlord in
reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within ten days after
Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action.
(r) TELECOMMUNICATIONS. Tenant and its telecommunications companies,
including but not limited to local exchange telecommunications companies and
alternative access vendor services companies shall have no right of access to
and within the Building, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless, and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent (which consent shall not
be unreasonably withheld or delayed). Notwithstanding any provisions of this
Section 25.(r) to the contrary, and provided Tenant obtains Landlord's prior
written consent as aforesaid, Tenant may make or perform certain installations
affecting Tenant's telecommunications systems provided that: (i) any such
installations only affect the Premises; (ii) no such installations affect any of
the Building HVAC, mechanical, electrical or plumbing systems; (iii) Tenant
shall promptly repair and restore any damage caused by any such installation;
and (iv) upon Landlord's request, at the earlier termination or expiration of
this Lease, Tenant shall restore the Premises to the condition that existed on
the date of this Lease.
(s) CONFIDENTIALITY. Tenant acknowledges that the terms and
conditions of this Lease are to remain confidential for Landlord's benefit, and
may not be disclosed by Tenant to anyone, by any manner or means, directly or
indirectly, without Landlord's prior written consent. The consent by Landlord to
any disclosures shall not be deemed to be a waiver on the part of Landlord of
any prohibition against any future disclosure.
(t) HAZARDOUS MATERIALS. The term "HAZARDOUS MATERIALS" means any
substance, material, or waste which is now or hereafter classified or considered
to be hazardous, toxic, or dangerous under any Law relating to pollution or the
protection or regulation of human health, natural resources or the environment,
or poses or threatens to pose a hazard to the health or safety of persons on the
Premises or in the Building. Tenant shall not use, generate, store, or dispose
of, or permit the use, generation, storage or disposal of Hazardous Materials on
or about the Premises or the Building except in a manner and quantity necessary
for the ordinary performance of Tenant's business, and then in compliance with
all Laws. If Tenant breaches its obligations under this
37
Section 25.(t), Landlord may immediately take any and all action reasonably
appropriate to remedy the same, including taking all appropriate action to clean
up or remediate any contamination resulting from Tenant's use, generation,
storage or disposal of Hazardous Materials. Tenant shall defend, indemnify, and
hold harmless Landlord and its representatives and agents from and against any
and all claims, demands, liabilities, causes of action, suits, judgments,
damages and expenses (including reasonable attorneys' fees and cost of clean up
and remediation) arising from Tenant's failure to comply with the provisions of
this Section 25.(t). This indemnity provision shall survive termination or
expiration of the Lease.
(u) LIST OF EXHIBITS. All exhibits and attachments attached hereto
are incorporated herein by this reference.
Exhibit A - Outline of Premises
Exhibit B - Legal Description of Building
Exhibit C - Building Rules and Regulations
Exhibit D - Tenant Finish-Work: Allowance
Exhibit D-1 - HVAC Replacement/Repair Specifications
Exhibit E - Amendment No. 1
Exhibit F - Form of Tenant Estoppel Certificate
Exhibit G - Renewal Option
Exhibit H - [Intentionally Omitted]
Exhibit I - Rent Abatement Provisions
Exhibit J - Sample Letter of Credit
Exhibit K - Form of Subordination, Non-Disturbance and
Attornment Agreement
(v) TIME OF ESSENCE. Time is of the essence of this Lease and each
and all of its provisions.
(w) SIGNAGE. Tenant may install, at Tenant's risk and expense, one
(1) sign on the exterior facade of the Building, one (1) sign (4 feet x 4 feet)
on the ground in front of the main entrance of the Building, and one (1) company
identification/directional sign in the same location as the existing company
identification/directional sign and at a size no bigger than such existing sign,
in accordance with all Laws and subject to Landlord's prior approval and
consent, which approval and consent shall not be unreasonably withheld,
conditioned or delayed.
(x) ACCESS. Tenant shall have twenty-four (24) hour access to the
Premises seven (7) days a week (subject to force majeure, emergency, etc.).
(y) FAILURE OF TENANT TO CONTINUOUSLY OCCUPY THE PREMISES. If, for
more than one hundred eighty (180) consecutive days or more than one hundred
eighty (180) days in a three hundred sixty-five (365) day period, Tenant (1)
vacates the Premises or (2) fails to continuously operate its business therein,
Landlord may terminate the Lease upon giving written notice to Tenant as of the
date specified in such notice. If Landlord
38
terminates this Lease, then this Lease shall terminate and neither party shall
have any further obligations hereunder as of the terminate date except as
otherwise provided herein and Tenant shall pay to Landlord all Rent accrued
through the termination date. Thereafter, Landlord may lease the Premises (or
any portion thereof) to any person without liability to Tenant.
(z) ROOFTOP EQUIPMENT. Tenant may install, at Tenant's risk and
expense and to be used solely by Tenant, a dish style antennae of no more than
five (5) feet in diameter (the "ROOFTOP EQUIPMENT") on the roof of the Building
at a location approved by Landlord. The Rooftop Equipment shall be used only by
Tenant. Before installing the Rooftop Equipment, Tenant shall submit to Landlord
for its approval (which approval shall not be unreasonably withheld, conditioned
or delayed to the extent such plans and specifications do not reflect
alterations which affect the exterior or structure of the Building or its HVAC,
plumbing or mechanical systems or its base building electrical system) plans and
specifications which (A) specify in detail the design, location and size of the
Rooftop Equipment (and, with respect to the Rooftop Equipment, such
specifications shall also contain the frequency of such equipment) and (B) are
sufficiently detailed to allow for the installation of the Rooftop Equipment in
a good and workmanlike manner and in accordance with all laws, regulations,
restrictions (governmental or otherwise) and architectural guidelines in effect
for the area in which the Building is located as they may be amended from time
to time (the "LEGAL REQUIREMENTS"). None of the Rooftop Equipment shall protrude
more than five (5) feet above the elevation of the roof on which it is installed
and all such equipment must be painted in a color reasonably acceptable to
Landlord to minimize visibility. If Landlord approves of such plans, Tenant
shall install (in a good and workmanlike manner), maintain and use the Rooftop
Equipment in accordance with all Legal Requirements and shall obtain all
consents and permits required for the installation and operation thereof; copies
of all such permits and evidence of such consents must be submitted to Landlord
before Tenant begins to install the Rooftop Equipment. Tenant shall thereafter
maintain all permits necessary for the maintenance and operation of the Rooftop
Equipment while it is on the Building and operate and maintain the Rooftop
Equipment in such a manner so as not to unreasonably interfere with any
equipment (including any other satellite, antennae, or other transmission
facility) on the Building's roof or in the Building. Landlord may require that
Tenant screen the Rooftop Equipment with a parapet or other screening device
reasonably acceptable to Landlord. All electrical usage for the Rooftop
Equipment shall be separately metered or, at Landlord's election, shall be
placed on the same electrical meter as the Premises. Tenant shall maintain the
Rooftop Equipment and screening device in good repair and condition. Landlord
may relocate the Rooftop Equipment to another location on the roof of the
Building at its sole cost and expense upon prior written notice to Tenant so
long as the new location does not materially interfere with Tenant's reception
received by the satellite or antennae, unless said relocation is requested
because the Rooftop Equipment is unreasonably interfering with other equipment
on the Building's roof or in the Building (in which case Tenant shall pay for
the cost of such relocation). Upon Landlord's written request (but not
otherwise), Tenant shall, at its risk and expense, remove the Rooftop Equipment
(including all wiring related thereto), within five (5) days after the
occurrence of any of the following events:
39
(i) the termination of Tenant's right to possess the Premises; (ii) the
termination of the Lease; (iii) the expiration of the Term; or (iv) the Premises
shall be vacated by Tenant and any and all assignees and/or sublessees approved
by Landlord hereunder. If Tenant fails to do so, Landlord may remove all or any
part of the Rooftop Equipment and store or dispose of it in any manner Landlord
deems appropriate without liability to Tenant; Tenant shall reimburse Landlord
for all costs incurred by Landlord in connection therewith within ten (10) days
after Landlord's request therefor. Tenant shall repair any damage to the
Building caused by or relating to the Rooftop Equipment, including that which is
caused by its installation, maintenance, use, or removal and shall indemnify
Landlord against all liabilities, losses, damages, and costs arising from the
installation, maintenance, use, or removal of the Rooftop Equipment (UNLESS THE
LIABILITIES, LOSSES, DAMAGES, AND COSTS IN QUESTION WERE CAUSED BY LANDLORD'S
SOLE OR GROSS NEGLIGENCE OR WILFUL MISCONDUCT). All work relating to the Rooftop
Equipment shall, at Tenant's expense, be coordinated with Landlord's roofing
contractor so as not to affect any warranty for the Building's roof and shall
not penetrate the roof.
(aa) NOTICE OF LEASE. Tenant agrees not to record this Lease and,
subject to the provisions of Section 25.(s) above, to keep the terms of this
Lease confidential, but each party hereto agrees, at the request of the others
to execute a so-called Notice of Lease in recordable form complying with
applicable law and reasonably satisfactory to Landlord's attorneys. In no event
shall such document set forth the Rent or other charges payable by Tenant
hereunder.
(bb) LANDLORD'S AUTHORITY, ETC. Landlord represents and warrants
that (i) it is the record owner of the Premises in fee simple, (ii) it has full
right and authority to execute this Lease, and (iii) this Lease does not
conflict with any other agreement to which Landlord is bound.
(cc) FIBER OPTIC LINES. Subject to the provisions of Section 8
above, Tenant, at its sole cost and expense and with Landlord's prior written
consent (which consent shall not be unreasonably withheld or delayed), may
install underground fiber optic lines within the Premises. Notwithstanding any
provisions of this Section 25.(cc) to the contrary, Landlord shall not be deemed
to have unreasonably withheld its consent to any installation that would affect
the Building's structure or its HVAC, plumbing, electrical, or mechanical
systems. Tenant shall promptly repair and restore any damage caused by any such
installation and, upon Landlord's request, at the earlier termination or
expiration of this Lease, Tenant shall restore the Premises to the condition
that existed on the date of this Lease. Any and all such installations of fiber
optic lines shall comply with all applicable Laws.
26. OTHER PROVISIONS. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT'S OBLIGATION
TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE
PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS
40
HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL
CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
41
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this Lease Agreement to be duly executed as
a Massachusetts instrument under seal as of the day and year first above
written.
TENANT:
XXXXXX AUTOMATION, INC., a
Delaware corporation
By:
Name:
Title:
LANDLORD:
W9/TIB REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership
By: W9/TIB Gen-Par, Inc., a Delaware
corporation, its general partner
By:
Name:
Title:
42
EXHIBIT A
OUTLINE OF PREMISES
43
EXHIBIT B
LEGAL DESCRIPTION OF BUILDING
A parcel of land in Chelmsford, Middlesex County, Massachusetts, lying on the
northeasterly side of Turnpike Road being shown as Lot E-1 on a plan entitled
"Plan of Land in Chelmsford, Massachusetts, prepared for Xxxxxxx X. and Xxxxxxx
X. Xxxxx, Scale: 1" = 40', Xxxxx 0, 0000, Xxxxxxx/Xxxxxx Engineering, Inc.,
Consulting Engineers & Planners, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx"
recorded with the Middlesex County North District Registry of Deeds in Plan Book
139 as Plan 34, being described as follows:
Beginning at the southerly corner of said Lot E-1 on the northeasterly side of
Turnpike Road at a corner of land now or formerly owned by the Town of
Chelmsford.
Thence running by Turnpike Road N 40 52' 46" W 272.00 feet;
Thence running by Turnpike Road N 44 32' 33" W 132.34 feet;
Thence running by Turnpike Road N 42 13' 28" W 289.27 feet;
Thence running by land now or formerly of Xxxxxxx X. and Xxxxxxx X. Xxxxx N 49
11' 07" E 299.68 feet;
Thence running by Xxxxxxxxx Drive southeasterly and northeasterly along a line
curving to the left, having a radius of 62.50 feet, a distance of 185.52 feet;
Thence running by Xxxxxxxxx Drive northeasterly along a line curving to the
right, having a radius of 25.00 feet, a distance of 9.72 feet;
Thence running by land now or formerly of Xxxxxxx X. and Xxxxxxx X. Xxxxx on
said plan S 42 48' 14" E 304.30 feet;
Thence running by land now or formerly of Xxxxxxx X. and Xxxxxxx X. Xxxxx S 16
22' 50" W 58.75 feet;
Thence running by land now or formerly of Xxxxxxx X. and Xxxxxxx X. Xxxxx on
said plan S 20 33' 12" E 145.74 feet;
Thence running by land now or formerly of Xxxxxxx X. and Xxxxxxx X. Xxxxx on
said plan S 46 00' 59" E 112.57 feet;
Thence running by land now or formerly of Xxxxxxx X. and Xxxxxxx X. Xxxxx on
said plan S 00 59' 56" E 43.72 feet.
44
EXHIBIT C
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by Tenant or used by Tenant for purposes other
than ingress and egress to and from the Premises and for going from one to
another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or deposited therein. Damage resulting to any such fixtures or
appliances from misuse by Tenant or its agents, employees or invitees, shall be
paid by Tenant.
3. No signs, advertisements or notices shall be painted or affixed on or
to any windows or doors or other part of the Building without the prior written
consent of Landlord. No curtains or other window treatments shall be placed
between the glass and the Building standard window treatments.
4. Tenant shall provide all door locks into the Premises, at the cost of
Tenant, and Tenant shall not place any additional door locks in the Premises
without providing Landlord with a key for such locks. Tenant shall furnish to
Landlord a reasonable number of keys to the Premises, at Tenant's cost.
5. Landlord may prescribe reasonable weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner reasonably
acceptable to Landlord which may include the use of such supporting devices as
Landlord may require. All damages to the Building caused by the installation or
removal of any property of Tenant, or done by Tenant's property while in the
Building, shall be repaired at the expense of Tenant.
6. Corridor doors, when not in use, shall be kept closed to the extent
required by applicable law. Nothing shall be swept or thrown into the corridors,
halls, elevator shafts or stairways. No birds or animals shall be brought into
or kept in, on or about the Premises. No portion of the Premises shall at any
time be used or occupied as sleeping or lodging quarters.
7. Tenant shall cooperate with Landlord's employees in keeping the
Premises neat and clean.
8. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
45
9. Tenant shall not use or keep in the Building any flammable or explosive
fluid or substance.
10. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from the Premises or public or common areas regardless of
whether such loss occurs when the area is locked against entry or not.
11. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
12. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expense of
the owner or driver. Tenant shall indemnify, hold and save harmless Landlord of
any liability arising from the towing of any vehicles belonging to a Tenant
Party.
46
EXHIBIT D
TENANT FINISH-WORK: ALLOWANCE
1. Except as set forth in this Exhibit, Tenant accepts the Premises in
their "AS-IS" condition on the date that this Lease is entered into.
Notwithstanding the foregoing sentence, Landlord shall, at its sole cost and
expense, perform the following: (a) replace the landscape timbers as necessary;
(b) repair the sidewalk in front of the main entrance to the Building; and (c)
recaulk and reseal the Building. Further, and subject to the provisions of this
Section 1, Landlord agrees to pay to replace the four (4) rooftop HVAC units
known as units 4, 8, 9 and 12 and to repair the other existing HVAC rooftop
units in accordance with the specifications attached hereto as Exhibit D-1
(collectively, the "HVAC REPLACEMENT/REPAIR SPECIFICATIONS"). Landlord intends
to bid out the repair work enumerated in the HVAC Replacement/Repair
Specifications and to pay to Tenant, in accordance with the provisions of this
Section 1, the sum that would be required to be paid to the lowest bidder (the
"HVAC REPAIR ALLOWANCE") to perform such work. Tenant desires to have Thermo
Engineering, Inc. perform the work enumerated in the HVAC Replacement/Repair
Specifications, and shall be responsible for ensuring that Thermo Engineering,
Inc. performs such work in accordance with said Specifications. After completion
of such work in accordance with the HVAC Replacement/Repair Specifications,
Landlord shall pay to Tenant the HVAC Repair Allowance within twenty (20)
business days from Tenant's written request for the same provided that: (a)
Tenant shall not be in default under the Lease; (b) the Lease shall be in full
force and effect; and (c) Tenant has provided Landlord with evidence reasonably
satisfactory to Landlord that the work enumerated in the HVAC Replacement/Repair
Specifications have been completed in accordance with said Specifications.
2. Tenant shall provide to Landlord for its approval final working
drawings, prepared by an architect that has been approved by Landlord (which
approval shall not unreasonably be withheld, delayed or conditioned), of all
alterations, improvements and installations that Tenant proposes to construct,
install and complete in the Premises; such working drawings shall include the
partition layout, ceiling plan, electrical outlets and switches, telephone
outlets, drawings for any modifications to the mechanical and plumbing systems
of the Building, and detailed plans and specifications for the construction of
the alterations, improvements and installations called for under this Exhibit in
accordance with all applicable governmental laws, codes, rules, and regulations.
If any of Tenant's proposed construction work will affect the Building's HVAC,
electrical, mechanical, or plumbing systems, then the working drawings
pertaining thereto must be approved by the Building's engineer of record.
Landlord's approval or disapproval, as the case may be, of the final working
drawings (inclusive of any approval required by the Building's engineer of
record) shall be completed within ten (10) business days of Landlord's receipt
of such working drawings. If Landlord disapproves the final working drawings,
Landlord shall specify the reasons for such disapproval in writing to Tenant.
Landlord's approval of such working drawings shall not be unreasonably withheld,
delayed or conditioned, provided that (a) they comply with all applicable laws,
rules, and regulations, (b) such working drawings are sufficiently detailed to
allow construction of the alterations, improvements and installations in a good
47
and workmanlike manner, (c) the alterations, improvements and installations
depicted thereon conform to the rules and regulations promulgated from time to
time by Landlord for the construction of tenant alterations, improvements and
installations (a copy of which has been delivered to Tenant), and (d) the
alterations, improvements and installations do not affect the Building's
Structure or any of its HVAC, electrical, mechanical or plumbing systems. As
used herein, "WORKING DRAWINGS" shall mean the final working drawings approved
by Landlord, as amended from time to time by any approved changes thereto, and
"WORK" shall mean all alterations, improvements and installations to be
constructed in accordance with and as indicated on the Working Drawings.
Landlord's approval of the Working Drawings shall not be a representation or
warranty of Landlord that such drawings are adequate for any use or comply with
any law, but shall merely be the consent of Landlord thereto. Landlord shall, at
Tenant's request, sign the Working Drawings to evidence its review and approval
thereof. All changes in the Work must receive the prior written approval of
Landlord (which approval shall not be withheld, delayed or conditioned), and in
the event of any such approved change Tenant shall, upon completion of the Work,
furnish Landlord with an accurate, reproducible "as-built" plan of the
improvements as constructed.
3. The Work shall be performed only by contractors and subcontractors
approved in writing by Landlord, which approval shall not be unreasonably
withheld or delayed. All contractors and subcontractors shall be required to
procure and maintain insurance against such risks, in such amounts, and with
such companies as Landlord may reasonably require. Certificates of such
insurance, with paid receipts therefor, must be received by Landlord before the
Work is commenced. Promptly upon Landlord's approval of the Working Drawings and
delivery of the Premises to Tenant, Tenant shall commence the construction of
the Work and diligently and continuously pursue the completion of the same. The
Work shall be performed in a good and workmanlike manner free of defects, shall
conform strictly with the Working Drawings, and shall be performed in such a
manner and at such times as not to interfere with or delay Landlord's other
contractors, the operation of the Building, and the occupancy thereof by other
tenants. All contractors and subcontractors shall contact Landlord and schedule
time periods during which they may use Building facilities in connection with
the Work (e.g., elevators, excess electricity, etc.).
4. The entire cost of performing the Work (including, without limitation,
design of the Work and preparation of the Working Drawings, costs of
construction, labor and materials, electrical usage during construction,
additional janitorial services, general tenant signage, related taxes and
insurance costs, all of which costs are herein collectively called the "TOTAL
CONSTRUCTION COSTS") in excess of the Construction Allowance (as hereinafter
defined) shall be paid by Tenant.
5. Landlord shall provide to Tenant a construction allowance (the
"CONSTRUCTION ALLOWANCE") equal to the lesser of (a) $10.00 per rentable square
foot in the Premises or (b) the Total Construction Costs, as adjusted for any
approved changes to the Work.
48
Subject to the terms and conditions of this Lease, Landlord shall pay the
Construction Allowance to Tenant for the purpose of financing a portion of the
Work. As conditions to Tenant's right to receive the Construction Allowance: (i)
Tenant shall not be in default under the Lease; (ii) the Lease shall be in full
force and effect; (iii) the Work, or a portion of the Work, shall be, in
Landlord's reasonable discretion, substantially complete; (iv) Tenant shall
furnish to Landlord: (A) if the entire Work is substantially complete, a
Certificate of Occupancy respecting the Premises; and (B) such evidence as
Landlord may reasonably require to evidence that all persons furnishing or
supplying labor and materials in connection with the construction of the Work,
or in the case of completion of a portion of the Work, have been paid and that
no lien exists of record with respect thereto; and (v) Tenant shall not request
any portion of the Construction Allowance more than once a month. Landlord shall
fund the Construction Allowance within twenty (20) business days from Tenant's
written request for the same provided that Tenant has complied with the
requirements set forth in the preceding sentence. Upon paying the full amount of
the Construction Allowance to Tenant in accordance with the provisions hereof,
Landlord shall have no further obligation to extend any credit to Tenant.
6. In consideration for Landlord's management and supervision of services
performed in connection with the Work, Tenant shall pay to Landlord, within ten
(10) business days after demand therefor, the actual costs incurred by Landlord
to review and approve the Working Drawings and/or any drafts and/or
modifications thereto and to review the construction of the Work.
49
EXHIBIT D-1
HVAC REPLACEMENT/REPAIR SPECIFICATIONS
Specific repairs required of individual rooftop units:
RTU 1:-Replace condenser fan motor and blade.
-Replace crankcase heater.
-Repair filter access panel.
RTU 2:-Repair economizer damper linkage.
-Replace indoor blower.
RTU 3:-No repairs needed.
RTU 4:-This unit will be replaced with a comparable unit (includes new curb,
electrical/gas connections).
RTU 5:-Replace combustion motor and wheel.
-Replace indoor blower bearing housing.
-Replace enthalpy switch.
-Replace disconnect switch.
RTU 6:-Install new suction unloader.
-Repair refrigerant leak at high-pressure switch.
-Replace six (6) burners.
-Replace economizer motor.
-Repair return-air linkage.
-Repair filter access panel.
RTU 7:-Replace sixteen (16) burners.
-Install second stage heat wire at thermostat.
-Repair economizer motor.
-Repair filter access panel.
RTU 8:-This unit will be replaced with a comparable unit (includes new curb,
electrical/gas connections).
RTU 9:-This unit will be replaced with a comparable unit (includes new curb,
electrical/gas connections).
XXX 00: -Replace six (6) burners.
-Repair economizer motor.
-Rewire unit to have compressors operate when cooling stage is on.
XXX 00: -Replace sixteen (16) burners.
-Repair economizer damper.
XXX 00: -This unit will be replaced with a comparable unit (includes new
curb, electrical/gas connections).
XXX 00: -Reset low voltage breaker.
50
-Rewire unit to have compressor and economizer operate when cooling
stage is on.
-Repair liquid line at cap tube distributor.
-Repair economizer.
-Replace disconnect switch.
XXX 00: -Replace twelve (12) burners.
-Replace combustion blower motor and wheel.
-Replace disconnect switch.
XXX 00: -Replace set of rusted compressor overloads.
-Replace condenser fan motor and blade.
-Replace five (5) burners.
-Replace disconnect switch.
XXX 00: -Replace condenser fan motor and blade.
-Replace six (6) burners.
-Replace enthalpy and disconnect switches.
A/C 17: Telephone Room
-No repairs needed.
A/C 18: -Replace condenser fan motor and blade.
-Install new contactor, run cap and time delay in electrical panel.
A/C 19: Stand-up unit in room at rear of building.
- No repairs needed.
A/C 20: Shipping
-No repairs needed.
UH 1: Shipping
-Install new thermostat.
UH 2: Shipping
-Replace draft inducer motor.
Area Heater:High Bay
- No repairs needed.
51
EXHIBIT E
AMENDMENT NO. 1
This Amendment No. 1 (this "AMENDMENT") is executed as of ,
2000 between W9/TIB REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership ("LANDLORD"), and XXXXXX AUTOMATION, INC., a Delaware corporation
("TENANT"), for the purpose of amending the Lease Agreement between Landlord and
Tenant dated January 31, 2000 (the "LEASE"). Capitalized terms used herein but
not defined shall be given the meanings assigned to them in the Lease.
AGREEMENTS
For valuable consideration, whose receipt and sufficiency are
acknowledged, Landlord and Tenant agree as follows:
1. CONDITION OF PREMISES. Tenant has accepted possession of the Premises
pursuant to the Lease. Any improvements required by the terms of the Lease to be
made by Landlord have been completed to the full and complete satisfaction of
Tenant in all respects and Landlord has fulfilled all of its duties under the
Lease with respect to such initial tenant improvements. Furthermore, Tenant
acknowledges that the Premises are suitable for the Permitted Use.
2. COMMENCEMENT DATE. The Commencement Date of the Lease is
______________, 2000. If the Commencement Date set forth in the Lease is
different than the date set forth in the preceding sentence, then the
Commencement Date as contained in the Lease is amended to be the Commencement
Date set forth in the preceding sentence.
3. EXPIRATION DATE. The Term is scheduled to expire on
, 199___. If the scheduled expiration date of the initial Term as set
forth in the Lease is different than the date set forth in the preceding
sentence, then the scheduled expiration date as set forth in the Lease is hereby
amended to the expiration date set forth in the preceding sentence.
4. CONTACT NUMBERS. Tenant's telephone number in the Premises is .
Tenant's telecopy number in the Premises is .
5. RATIFICATION. Tenant hereby ratifies and confirms its obligations under
the Lease, and represents and warrants to Landlord that it has no defenses
thereto. Additionally, Tenant further confirms and ratifies that, as of the date
hereof, the Lease is and remains in good standing and in full force and effect,
and Tenant has no claims, counterclaims, set-offs or defenses against Landlord
arising out of the Lease or in any way relating thereto or arising out of any
other transaction between Landlord and Tenant.
6. BINDING EFFECT; GOVERNING LAW. Except as modified hereby, the Lease
shall remain in full effect and this Amendment shall be binding upon Landlord
and Tenant and their respective successors and assigns. If any inconsistency
exists or arises between the terms of this Amendment and the terms of the Lease,
the terms of this Amendment shall prevail. This Amendment shall be governed by
the laws of the State in which the Premises is located.
52
7. COUNTERPARTS. This Amendment may be executed in multiple counterparts,
each of which shall constitute an original, but all of which shall constitute
one document.
Executed as of the date first written above.
TENANT:
XXXXXX AUTOMATION, INC., a
Delaware corporation
By:
Name:
Title:
LANDLORD:
W9/TIB REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership
By: W9/TIB Gen-Par, Inc., a Delaware
corporation, its general partner
By:
Name:
Title:
53
EXHIBIT F
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned is the Tenant under the Lease (defined below) between
W9/TIB REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership, as
Landlord, and the undersigned as Tenant, of the Premises located at 00 Xxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx, and hereby certifies as follows:
1. The Lease consists of the original Lease Agreement dated as of ,
199___ between Tenant and Landlord ['s predecessor-in-interest] and the
following amendments or modifications thereto (if none, please state "none"):
The documents listed above are herein collectively referred to as the "LEASE"
and represent the entire agreement between the parties with respect to the
Premises. All capitalized terms used herein but not defined shall be given the
meaning assigned to them in the Lease.
2. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Section 1 above.
3. The Term commenced on , 2000 and the Term expires, excluding any
renewal options, on , 200__, and Tenant has no option to purchase all
or any part of the Premises or the Building or, except as expressly set forth in
the Lease, any option to terminate or cancel the Lease.
4. Tenant currently occupies the Premises described in the Lease and
Tenant has not transferred, assigned, or sublet any portion of the Premises nor
entered into any license or concession agreements with respect thereto except as
follows (if none, please state "none"):
5. All monthly installments of Basic Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through. The current monthly installment of Basic Rent is $ .
54
6. All conditions of the Lease to be performed by Landlord necessary to
the enforceability of the Lease have been satisfied and Landlord is not in
default thereunder. In addition, Tenant has not delivered any notice to Landlord
regarding a default by Landlord thereunder.
7. As of the date hereof, there are no existing defenses or offsets, or,
to the undersigned's knowledge, claims or any basis for a claim, that the
undersigned has against Landlord and no event has occurred and no condition
exists, which, with the giving of notice or the passage of time, or both, will
constitute a default under the Lease.
8. No rental has been paid more than thirty (30) days in advance and no
security deposit has been delivered to Landlord except as provided in the Lease.
9. If Tenant is a corporation, partnership or other business entity, each
individual executing this Estoppel Certificate on behalf of Tenant hereby
represents and warrants that Tenant is a duly formed and existing entity
qualified to do business in the state in which the Premises is located and that
Tenant has full right and authority to execute and deliver this Estoppel
Certificate and that each person signing on behalf of Tenant is authorized to do
so.
10. There are no actions pending against Tenant under any bankruptcy or
similar laws of the United States or any state.
11. Other than in compliance with all applicable laws and incidental to
the ordinary course of the use of the Premises, the undersigned has not used or
stored any hazardous substances in the Premises.
12. All tenant improvement work to be performed by Landlord under the
Lease has been completed in accordance with the Lease and has been accepted by
the undersigned and all reimbursements and allowances due to the undersigned
under the Lease in connection with any tenant improvement work have been paid in
full.
13. Tenant acknowledges that this Estoppel Certificate may be delivered to
Landlord, Landlord's Mortgagee or to a prospective mortgagee or prospective
purchaser, and their respective successors and assigns, and acknowledges that
Landlord, Landlord's Mortgagee and/or such prospective mortgagee or prospective
purchaser will be relying upon the statements contained herein in disbursing
loan advances or making a new loan or acquiring the property of which the
Premises are a part and that receipt by it of this certificate is a condition of
disbursing loan advances or making such loan or acquiring such property.
Executed as of , 199 .
TENANT:
55
XXXXXX AUTOMATION, INC., a
Delaware corporation
By:
Name:
Title:_____
56
EXHIBIT G
RENEWAL OPTION
Provided no Event of Default exists and Tenant is occupying the entire
Premises at the time of such election, Tenant may renew this Lease for one
additional period of five (5) years, by delivering written notice of the
exercise thereof to Landlord not earlier than fifteen (15) months nor later than
twelve (12) months before the expiration of the Term. The Basic Rent payable for
each month during such extended Term shall be the prevailing rental rate (the
"PREVAILING RENTAL RATE"), at the commencement of such extended Term, for
renewals of space of equivalent quality, size, utility and location, with the
length of the extended Term and the credit standing of Tenant to be taken into
account. Within thirty (30) days after receipt of Tenant's notice to renew,
Landlord shall deliver to Tenant written notice of the Prevailing Rental Rate
and shall advise Tenant of the required adjustment to Basic Rent, if any, and
the other terms and conditions offered. Tenant shall, within ten (10) days after
receipt of Landlord's notice, notify Landlord in writing whether Tenant accepts
or rejects Landlord's determination of the Prevailing Rental Rate. If Tenant
timely notifies Landlord that Tenant accepts Landlord's determination of the
Prevailing Rental Rate (and failure of Tenant to notify Landlord within the time
period prescribed above shall be deemed acceptance) or if, after a timely
rejection by Tenant of such determination, the Prevailing Rental Rate is
determined according to the procedures set forth in this Exhibit, then, on or
before the commencement date of the extended Term, Landlord and Tenant shall
execute an amendment to this Lease extending the Term on the same terms provided
in this Lease, except as follows:
(a) Basic Rent shall be adjusted to the Prevailing Rental Rate;
(b) Tenant shall have no further renewal option unless expressly
granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their
then-current condition, and Landlord shall not provide to Tenant any
allowances (e.g., moving allowance, construction allowance, and the like)
or other tenant inducements.
If Tenant rejects Landlord's determination of the Prevailing Rental Rate, Tenant
may, but only within ten (10) days after receipt of Landlord's notice, require
by written notice to Landlord that the determination of Prevailing Rental Rates
be made by brokers. In such event, within ten (10) days thereafter, each party
shall select a qualified commercial real estate broker with at least ten (10)
years experience in appraising property and buildings in the city or submarket
in which the Premises are located. The two brokers shall give their opinion of
Prevailing Rental Rates within ten (10) days after their retention. In the event
the opinions of the two brokers differ and, after good faith efforts over the
succeeding ten (10) day period, they cannot mutually agree, the brokers shall
immediately and jointly appoint a third broker with the qualifications specified
above. This third broker shall immediately (within five (5) days) choose either
the determination of
57
Landlord's broker or Tenant's broker and such choice of this third broker shall
be final and binding on Landlord and Tenant. Each party shall pay its own costs
for its real estate broker. The parties shall equally share the costs of any
third broker. The parties shall immediately confirm the renewal term, Basic Rent
and the other terms and conditions so determined, in writing.
Tenant's rights under this Exhibit shall terminate if (1) this Lease or
Tenant's right to possession of the Premises is terminated, (2) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premises, (3)
Tenant fails to timely exercise its option under this Exhibit, time being of the
essence with respect to Tenant's exercise thereof, or (4) Landlord determines,
in its sole but reasonable discretion, that Tenant's financial condition or
creditworthiness has materially deteriorated since the date of this Lease.
58
EXHIBIT H
[Intentionally Omitted]
59
EXHIBIT I
RENT ABATEMENT PROVISIONS
Basic Rent shall be conditionally abated during the first three (3) months
of the Term. Commencing with the fourth (4th) month of the Term, Tenant shall
make Basic Rent payments as otherwise provided in the Lease. Notwithstanding
such abatement of Basic Rent (a) all other sums due under the Lease, including
Additional Rent and Tenant's share of Taxes shall be payable as provided in the
Lease, and (b) any increases in Basic Rent set forth in the Lease shall occur on
the dates scheduled therefor.
The abatement of Basic Rent provided for in this Exhibit is conditioned
upon Tenant's full and timely performance of all of its obligations under the
Lease. If at any time during the Term an Event of Default by Tenant occurs, then
the abatement of Basic Rent provided for in this Exhibit shall immediately
become void, and Tenant shall promptly pay to Landlord, in addition to all other
amounts due to Landlord under this Lease, the full amount of all Basic Rent
herein abated.
60
EXHIBIT J
SAMPLE LETTER OF CREDIT
Beneficiary/Landlord: Issuance Date:
W9/TIB Real Estate Limited Partnership. ______________________, 2000
c/o Archon Group, L.P.
0000 X Xxxxxx XX, Xxxxx 000 Irrevocable Standby Letter
Xxxxxxxxxx, XX 00000 of Credit No. _______________
Applicant/Accountee/Tenant: Credit Amount:
Xxxxxx Automation, Inc. USD $_____________________
00 Xxxxxxxxx Xxxxx Up to an Aggregate Thereof
Xxxxxxxxxx, XX 00000-0000 Date and Place of Expiry:
_______________, _____
At Our Counters in Boston, MA
Ladies and Gentlemen:
We hereby issue our irrevocable standby letter of credit in your favor for
the account of the applicant for an aggregate amount not to exceed
_______________________________US DOLLARS available for payment by presentation
of your draft(s) drawn on ourselves at sight, and accompanied by the following
documents:
1. Your statement/certificate, on your letterhead, signed by a person
purporting to be your authorized officer/representative, appropriately completed
in the following form:
A. "The undersigned, an authorized officer/representative of W9/TIB Real
Estate Limited Partnership (the "Landlord"), hereby certifies with regard to
__________ standby letter of credit no. __________ that Xxxxxx Automation, Inc.
(the "Tenant") is in default relative to the Lease Agreement dated January 31,
2000 (the "Lease") by and between Landlord and Tenant and such default has
continued uncured beyond all applicable notice and grace periods."
OR
B. "We are in receipt of _______________ Notice of Non-Extension of its
letter of credit no. _______________ and Xxxxxx Automation, Inc. (the "Tenant")
has failed to provide a replacement letter of credit reasonably acceptable to us
as of the date of our drawing and the Tenant remains liable to us pursuant to
the Lease."
2. The original of this letter of credit (for endorsement of drawing),
which will be returned unless the credit is fully utilized.
61
Partial drawings are permitted.
Draft(s) must indicate the name of the issuing bank, the letter of credit
number and must be presented at this office (the address specified below).
It is a condition of this letter of credit that it shall be deemed
automatically extended without amendment for an additional period of one year
from the present or each future expiration date hereof, but not beyond July 31,
2010, unless at least forty-five (45) days prior to any such expiration date we
notify you by certified mail, that we elect not to so extend this letter of
credit for any such additional period. Upon receipt by you of such notice, you
may draw hereunder your draft(s) at sight on ourselves for the then full amount
of this letter of credit accompanied by your statement as specified above.
This letter of credit is transferable in its entirety, but not in part, to
any successor landlord under the Lease and may be successively transferred. If
it is your intention to transfer your interest hereunder, kindly return the
letter of credit to us for appropriate endorsement and furnish us with your
instructions. Please note your signature on your request for transfer must be
authenticated by your bank. (Transfer form is attached.) In the event of
transfer all required documents are to be signed by the transferee.
This letter of credit sets forth in full the terms of our obligations to
you, and our undertaking shall not in any way be amended or amplified by
reference to any documents, instruments or any agreement referred to herein or
to which this letter of credit related, and such reference, if any, shall not be
deemed to incorporate herein by reference any document, instrument or agreement.
Except as otherwise expressly stated herein, this letter of credit is
subject to the International Standby Practices (ISP98), the International
Chamber of Commerce, Publication No. 590, and shall, as to matters not governed
by ISP98, be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
We engage with you that all draft(s) drawn under and in compliance with
the terms and conditions of this letter of credit shall be duly honored on
presentation to us at our office at _______________, Boston, MA _______, Attn:
_______________, ____ Floor on or before the expiring date as specified above or
any automatically extended date herein before set forth.
Very truly yours,
By: _______________________________
Name:
Title:
62
TRANSFER
This form is to be used where a Letter of Credit is transferred
in its entirety and no substitution of invoices is involved.
Date
Re: Credit issued or advised by
-----------------------------
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably transfers to:
(Name of Second Beneficiary)
(Address)
(Name of Advising Bank)
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
I. By this transfer, all rights of the undersigned beneficiary in such Letter
of Credit are transferred to the Second Beneficiary and the Second Beneficiary
shall have the sole rights as beneficiary thereof, including sole rights
relating to any amendment, whether increases or extensions or other amendments
and whether now existing or hereafter made. All amendments are to be advised
direct to the Second Beneficiary without necessity of any consent of or notice
to the undersigned beneficiary.
63
The advice of such Letter of Credit is returned herewith, and we ask you
to endorse the transfer on the reverse thereof, and forward it direct to the
Second Beneficiary with your customary notice of transfer, or advise the letter
of credit to the Second Beneficiary by telex/SWIFT.
SIGNATURE AUTHENTICATED Very truly yours,
(Bank)
By: ______________________________
(Authorized Signature) Name:
Title:
64
EXHIBIT K
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This AGREEMENT is made and entered into as of ___________________, 2000,
by and among LaSalle National Bank, as Trustee for GS Mortgage Securities
Corporation II Commercial Mortgage Pass-Through Certificates, Series 0000-XXXX0
("Xxxxxx"), W9/TIB Real Estate Limited Partnership ("Landlord") and Xxxxxx
Automation, Inc.
("Tenant").
1. RECITALS.
1.1 Mortgage. Lender is the holder of a Promissory Note dated
________________, 19__, in the original principal amount of $_________________
of Landlord, which is secured, inter alia, by a Mortgage and Security Agreement
(the "Mortgage") and Assignment of Lease and Rents (the "Lease Assignment")
covering premises more particularly described in the Mortgage (the "Premises").
1.2 Lease. Landlord and Tenant entered into a Lease dated January
31, 2000 (the "Lease"), whereby Landlord demised to Tenant a portion of the
Premises (the "Demised Premises").
2. CONSIDERATION. The terms of the Lease constitute a material inducement
to Lender's consent thereto and entering into and performing this Agreement.
3. SUBORDINATION OF THE LEASE. This Lease shall be and is hereby made
subject and subordinate to the Mortgage.
4. NON-DISTURBANCE. Lender shall not, in the exercise of any right,
remedy, or privilege granted by the Mortgage or the Lease Assignment, or
otherwise available to Lender at law or in equity, disturb Tenant's possession
under the Lease so long as:
(a) Tenant is not in default beyond any applicable grace periods under any
provision of the Lease or this Agreement at the time Lender exercises any such
right, remedy or privilege; and
(b) The Lease at that time is in force and effect according to its
original terms, or with such amendments or modifications as Lender shall have
approved, if such approval is required by the terms of the Mortgage or the Lease
Assignment; and
(c) Tenant thereafter continues to fully and punctually perform all of its
obligations under the Lease without default thereunder beyond any applicable
cure period; and
(d) Tenant attorns to or at the direction of Lender, as provided in
Paragraph 5. Without limiting the foregoing, and so long as the foregoing
conditions are met, Lender
65
agrees that (i) Tenant will not be named as a party to any foreclosure or other
proceeding instituted by Lender to enforce the terms of the Mortgage or the
Lease Assignment; (ii) any sale or other transfer of the Demised Premises or of
the Landlord's interest in the Lease, pursuant to foreclosure or any voluntary
conveyance or other proceeding in lieu of foreclosure, will be subject and
subordinate to Tenant's possession under the Lease; and (iii) the Lease will
continue in force and effect according to its original terms, or with such
amendments as Lender shall have approved, if such approval is required by the
terms and conditions of the Mortgage or the Lease Assignment.
5. ATTORNMENT. Tenant shall attorn to Lender, to any receiver or similar
official for the Demised Premises appointed at the instance and request, or with
the consent, of Lender and to any person who acquires the Demised Premises, or
the Landlord's interest in the Lease, or both, pursuant to Lender's exercise of
any right, remedy or privilege granted by the Mortgage, or otherwise at law or
in equity. Without limitation, Tenant shall attorn to any person or entity that
acquired the Demised Premises pursuant to foreclosure of the Mortgage, or by any
proceeding or voluntary conveyance in lieu of such foreclosure, or from Lender,
whether by sale, exchange or otherwise. Any attornment to anyone other than
Lender shall be conditioned upon Tenant receiving a non-disturbance from such
entity.
Upon any attornment under this Paragraph 5, the Lease shall continue in
full force and effect as a direct lease between Tenant and the person or entity
to whom Tenant attorns, except that such person or entity shall not be:
(i) liable for any breach, act or omission of any prior landlord; or
(ii) subject to any offsets, claims or defenses which Tenant might have
against any prior landlord; or
(iii) bound by any rent or additional rent or other payment in lieu of
rent which Tenant might have paid to any prior landlord more than 30 days in
advance of its due date under the Lease or which such person or entity has
physical possession of; or
(iv) bound by any amendment or modification of the Lease made without
Lender's written consent, where such consent is required by the Mortgage; or
(v) bound by any notice given by Tenant to Landlord, whether or not such
notice is given pursuant to the terms of the Lease, unless a copy thereof was
then also given to Lender; or
(vi) be liable for any security deposit or other sums held by any prior
landlord, unless actually received.
The person or entity to whom Tenant attorns shall be liable to Tenant under the
Lease only during such person or entity's period of ownership, and such
liability shall not continue or survive as to the transferor after a transfer by
such person or entity of its interest in the Lease and the Demised Premises.
66
6. REPRESENTATIONS AND WARRANTIES.
6.1 Joint and Several. Landlord and Tenant hereby jointly and
severally represent and warrant to Lender as follows regarding the Lease:
(a) A true and correct copy of the Lease (inclusive of all riders and
exhibits thereto) is attached to the counterpart of this Agreement being
delivered to Lender. There are no other oral or written agreements,
understandings or the like between Landlord and Tenant relating to the Demised
Premises or the Lease transaction.
(b) The term of the Lease is expected to commence on April 1, 2000.
(c) Under the Lease, Tenant shall be obligated to pay rent without present
right of defense or offset, at the rate of $68,680.98 per month commencing July
1, 2000. Rent is paid through and including N/A , 2000. No rent has been paid
more than 30 days in advance, and Tenant has no claim against the Landlord for
any deposits or other sums.
(d) The Lease has not been modified, altered or amended in any respect.
(e) All of the improvements contemplated by the Lease have been entirely
completed as required therein.
(f) The addresses for notices to be sent to Tenant and Landlord are as set
forth in the Lease.
(g) To Tenant's knowledge, Tenant has no right of first refusal, option or
other right to purchase the Premises or any part thereof, including, without
limitation, the Demised Premises.
6.2 Several. Landlord and Tenant severally represent and warrant to Lender
with respect to themselves, but not with respect to the other:
(a) The execution of the Lease was duly authorized, the Lease was properly
executed and is in full force and effect and is valid, binding and enforceable
against Tenant and Landlord and there exists no default, nor state of facts
which with notice, the passage of time, or both, could ripen into a default, on
the part of either Tenant or Landlord.
(b) There has not been filed by or against nor, to the best of the
knowledge and belief of the representing party, is there threatened against or
contemplated by, Landlord or Tenant, a petition in bankruptcy, voluntary or
otherwise, any assignment for the benefit of creditors, any petition seeking
reorganization or arrangement under the bankruptcy laws of the United States or
of any state thereof, or any other action brought under said bankruptcy laws.
67
(c) There has not been any assignment, hypothecation or pledge of the
Lease or rents accruing under the Lease, other than pursuant to the Mortgage and
the Lease Assignment. Tenant makes the representation set forth in this
subparagraph only to its best knowledge and belief.
7. RENTS. Landlord and Tenant jointly and severally acknowledge that the
Lease Assignment provides for the direct payment to Lender of all rents and
other monies due and to become due to Landlord under the Lease upon the
occurrence of certain conditions as set forth in the Lease Assignment without
Lender's taking possession of the Demised Premises or otherwise assuming
Landlord's position or any of Landlord's obligations under the Lease. Upon
receipt from Lender of written notice to pay all such rents and other monies to
or at the direction of Lender, Landlord authorizes and directs Tenant thereafter
to make all such payments to or at the direction of Lender, releases Tenant of
any and all liability to Landlord for any and all payment so made, and shall
defend, indemnify and hold Tenant harmless from and against any and all claims,
demands, losses, or liabilities asserted by, through or under Landlord (except
by Lender) for any and all payments so made. Upon receipt of such notice, Tenant
thereafter shall pay all monies then due and becoming due from Tenant under the
Lease to or at the direction of Lender, notwithstanding any provision of the
Lease to the contrary. Tenant agrees that neither Lender's demanding or
receiving any such payments, nor Lender's exercising any other right, remedy,
privilege, power or immunity granted by the Mortgage or the Lease Assignment,
will operate to impose any liability upon Lender for performance of any
obligation of Landlord under the Lease unless and until Lender elects otherwise
in writing. Such payments shall continue until Lender directs Tenant otherwise
in writing.
Tenant agrees not to pay any rent under the Lease more than 30 days in
advance without Lender's consent. The provisions of this Paragraph 7 will apply
from time to time throughout the term of the Lease.
8. CURE. If Tenant becomes entitled to terminate the Lease or offset,
withhold or xxxxx rents because of any default by Landlord, then Tenant shall
give Lender written notice specifying Landlord's default. Lender then shall have
the right, but not the obligation, to cure the specified default within the
following time periods:
(a) Fifteen days after receipt of such notice with respect to defaults
that can be cured by the payment of money; or
(b) Thirty days after receipt of such notice with respect to any other
default; unless the cure requires Lender to obtain possession of the Demised
Premises, in which case such thirty day period shall not commence until Lender
acquires possession, so long as Lender proceeds promptly to acquire possession
of the Demised Premises with due diligence, by foreclosure of the Mortgage or
otherwise.
Nothing contained in this Paragraph 8 shall require Lender to commence or
continue any foreclosure or other proceedings, or, if Lender acquires possession
of the Demised Premises, to continue such possession, if all defaults specified
by Tenant in its notice are
68
cured. Possession by a receiver, or other similar official appointed at the
instance, or with the consent, of Lender shall constitute possession by Lender
for all purposes under this Paragraph 8.
9. ESTOPPEL LETTERS. Whenever reasonably requested by Lender, Landlord and
Tenant from time to time shall severally execute and deliver to or at the
direction of Lender, and without charge to Lender, one or more written
certifications of all of the matters as set forth in Paragraph 6, whether Tenant
has exercised any renewal option or options and any other information the Lender
may reasonably require to confirm the current status of the Lease, including,
without limitation, a confirmation that the Lease is and remains subordinated as
provided in this Agreement.
10. CASUALTY AND EMINENT DOMAIN. Landlord and Tenant jointly and severally
agree that the Mortgage permits Lender, at its option, to apply to the
indebtedness from time to time secured by the Mortgage any and all insurance
proceeds payable with respect to any casualty loss at the Demised Premises and
any and all awards or other compensation that may be payable for the
condemnation of all or any portion of the Demised Premises, or any interest
therein, or by way of negotiated settlement or conveyance in lieu of
condemnation; and Landlord and Tenant jointly and severally consent to any such
application by Lender. Notwithstanding the foregoing, Landlord and Lender agree
that any and all insurance or condemnation proceeds payable with respect to
Tenant's property or the interruption or relocation of Tenant's business (except
for rental loss insurance proceeds) will be paid to Tenant, so long as they do
not reduce the proceeds otherwise payable to Lender.
11. NOTICES. All notices, demands, and other communications that must or
may be given or made in connection with this Agreement must be in writing and,
unless receipt is expressly required, will be deemed delivered or made 5 days
after having been mailed by registered or certified mail, return receipt
requested, or by express mail, in any event with sufficient postage affixed, and
addressed to the parties as follows:
TO LENDER: c/o AMRESCO Services, L.P.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: Private Sector Servicing
TO LANDLORD: W9/TIB Real Estate Limited Partnership
c/o Archon Group, L.P.
0000 X Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
TO TENANT: Xxxxxx Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx, C.E.M., Manager of
Corporate Facilities
69
Such addresses may be changed by notice pursuant to this Paragraph 11; but
notice of change of address is effective only upon receipt. Landlord and Tenant
jointly and severally agree that they will furnish Lender with copies of all
notices relating to the Lease. All communications to Lender shall reference
"AMRESCO Loan No.: __________ ".
12. SUCCESSORS AND ASSIGNS. As used in this Agreement, the word "Tenant"
shall mean Tenant and any subsequent holder or holders of an interest under the
Lease, as the text may require, provided that the interest of such holder is
acquired in accordance with the terms and provisions of the Lease and the word
"Lender" shall mean Lender or any other subsequent holder or holders of the
Mortgage or any party acquiring title to the Demised Premises by purchase at a
foreclosure sale, by deed of the Lender, or otherwise. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of Landlord, Tenant and
Lender, their legal representatives, successors and assigns. The terms Lease,
Mortgage and Lease Assignment shall include any and all amendments,
modifications, replacements, substitutions, extensions, renewals and supplements
thereto.
13. FURTHER ASSURANCES. Landlord and Tenant from time to time shall
execute and deliver at Lender's request all instruments that may be necessary or
appropriate to evidence their agreement hereunder provided such instrument
neither increases Tenant's obligations or decreases its rights under the Lease.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument.
15. SEVERABILITY. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision, and any determination that the application of any provision of
this Agreement to any person or to any person or to particular circumstances is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LENDER:
LASALLE NATIONAL BANK, as Trustee for GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1998-GSFL1
By: AMRESCO Services, L.P.,
its authorized agent
By: AMRESCO Mortgage Capital, Inc.,
its general partner
By:_____________________________
Name:___________________________
Title: Servicing Officer
LANDLORD:
W9/TIB REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership
By: W9/TIB Gen-Par, Inc., a Delaware
corporation, its general partner
By:
Name:
Title:
TENANT:
XXXXXX AUTOMATION, INC.
By: __________________________________
Name:
Title:
71
STATE OF ____________ )
)
COUNTY OF __________ ) _____________ ___, 2000
Then personally appeared the above-named _________________________________,
__________________________________ of AMRESCO Mortgage Capital, Inc., as general
partner of AMRESCO Services, L.P., as authorized agent for LaSalle National
Bank, as Trustee for GS Mortgage Securities Corporation II Commercial Mortgage
Pass-Through Certificates, Series 1998-GSFL1, and acknowledged the foregoing
instrument to be his/her free act and deed and the free act and deed of Bankers
Trust Company of California, N.A., before me,
_________________________________
(Seal)
Notary Public
My commission expires:
STATE OF ____________ )
)
COUNTY OF __________ ) _____________ ___, 2000
Then personally appeared the above-named _________________________________,
__________________________________ of W9/TIB Gen-Par, Inc., as General Partner
of W9/TIB Real Estate Limited Partnership, and acknowledged the foregoing
instrument to be his/her free act and deed, the free act and deed of W9/TIB
Gen-Par, Inc., and the free act and deed of W9/TIB Real Estate Limited
Partnership, before me,
_________________________________
(Seal)
Notary Public
My commission expires:
STATE OF )
)
COUNTY OF ) __________ __, 2000
Then personally appeared the above-named ________________________________,
______________________________________ of Xxxxxx Automation, Inc., and
acknowledged the foregoing instrument to be his/her free act and deed and the
free act and deed of Xxxxxx Automation, Inc., before me,
_________________________________
(Seal)
Notary Public
My commission expires:
72
LIST OF DEFINED TERMS
Page
----
00 Xxxxxxxxx Xxxxx Lease 21
Additional Rent 2
Affiliate 1
Amendment E-1
AS-IS D-1
Basic Lease Information 1
Basic Rent i
Building i
Building's Structure 8
Casualty 19
Commencement Date i
Construction Allowance D-2
Damage Notice 19
Estimated Delivery Date 1
Event of Default 21
GAAP 16
Hazardous Materials 28
HVAC Repair Allowance D-1
HVAC Replacement/Repair Specifications D-1
including 1
Land i
Landlord 1
Landlord's Mortgagee 17
Law 1
Laws 1
Lease 1
Lease Month ii
Letter of Credit 5
Loss 16
Non-Disturbance Agreement 18
Operating Costs 2
Operating Costs and Tax Statement 4
Permitted Transfer 15
Permitted Transferee 15
Permitted Use ii
Premises i
Prevailing Rental Rate G-1
Reduction Date 7
Rent ii
Rooftop Equipment 30
Security Deposit ii
Taking 19
Tangible Net Worth 15
Taxes 3
Tenant 1
Tenant Party 1
73
Tenant's Proportionate Share ii
Term i
Total Construction Costs D-2
Transfer 13
Work X-0
Xxxxxxx Xxxxxxxx X-0
