Exhibit 99.8
LEASE BETWEEN
WM REALTY MANAGEMENT, LLC, LANDLORD
AND
RANOR, INC., TENANT
TABLE OF CONTENTS
Page
1. THE LEASED PREMISES 1
2. TERM 2
2.a. OPTIONS TO EXTEND TERM 2
3. FIXED ANNUAL MINIMUM RENTAL 4
4. UTILITIES 6
5. ADDITIONAL RENT 6
6. USE 8
7. COMPLIANCE WITH LAWS AND AGREEMENTS 9
8. MAINTENANCE AND REPAIR 9
9. CHANGES, ALTERATIONS AND NEW CONSTRUCTION BY THE TENANT 10
10. INDEMNITY AND PUBLIC LIABILITY INSURANCE 12
11. INSURANCE FOR DAMAGE OR DESTRUCTION AND WORKER'S COMPENSATION 13
12. CONDEMNATION 16
13. REMOVAL OF TENANT'S PROPERTY 17
14. SUBORDINATION, NON-DISTURBANCE, NOTICE TO LESSORS AND MORTGAGEES 17
15. NON-WAIVER 19
16. QUIET ENJOYMENT 19
17. ASSIGNMENT AND SUBLETTING 19
18. ENTRY BY LANDLORD 21
19. TENANT'S DEFAULT 21
20. TAX APPEALS AND CONTESTS 24
21. SIGNS 25
22. SURRENDER OF PREMISES 25
23. BROKER 25
24. "LANDLORD" DEFINED 25
25. TENANT'S PAYMENTS 26
26. RIGHT TO CURE DEFAULTS 26
27. COVENANT AGAINST LIENS 27
28. WAIVER OF REDEMPTION 27
29. LANDLORD'S AND TENANT'S CERTIFICATES 28
30. WAIVER OF TRIAL BY JURY 28
31. NET LEASE 00
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00. XXXXXXXXXXXXX XXXXXXXXXX 00
00. LATE CHARGES 33
34. ENVIRONMENTAL LAWS 34
35. [INTENTIONALLY DELETED] 35
36. TRANSFER TAXES 35
37. OPTION TO PURCHASE 35
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LEASE
THIS LEASE is entered into this 24th day of February, 2006 by and between
WM Realty Management, LLC, a Massachusetts limited liability company having an
address at One Bella Drive (a/k/a 00 Xxxx Xxxx Xxxx), Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000 (hereinafter called "Landlord") and Ranor, Inc., a Delaware corporation
having an address at One Bella Drive, (a/k/a 00 Xxxx Xxxx Xxxx) Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter called "Tenant").
Upon the terms and subject to the conditions hereinafter set forth,
Landlord leases to Tenant and Tenant leases from Landlord, the property
hereinafter described:
1. THE LEASED PREMISES.
(a) The property hereby leased to Tenant is a portion of that certain
premises known as One Bella Drive (a/k/a 00 Xxxx Xxxx Xxxx), Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Land") situated in the City of Westminster,
Commonwealth of Massachusetts as more particularly described in the metes and
bounds description annexed hereto as Exhibit "A", together with the buildings
and other improvements now or hereafter located thereon (collectively, the
"Improvements").
(b) The Land and Improvements leased hereunder, together with all
Landlord's right, title and interest, if any, in and to all easements and other
appurtenances thereto, hereinafter sometimes collectively referred to as the
"Leased Premises", are demised in their "as is" condition as of the
"Commencement Date" (as hereinafter defined) without representation or warranty
by Landlord, except as specifically provided in this Lease, and let subject to
(a) the existing state of the title thereof as of the date of this Lease, (b)
any state of facts which may be shown by an accurate survey or physical
inspection of the Leased Premises, (c) all zoning regulations, restrictions,
rules and ordinances, building restrictions and other laws and regulations now
in effect or hereafter adopted by any governmental authority having jurisdiction
over the Leased Premises, and all agreements, licenses, easements, covenants,
restrictions and other matters which affect the Leased Premises, the title
thereto, or the use, enjoyment, occupancy or possession thereof, and (d) with
respect to the Improvements, their condition as of the date of this Lease,
without representation or warranty by Landlord. Tenant represents and warrants
to Landlord that Tenant has examined the title to and the physical condition of
the Leased Premises prior to the execution and delivery of this Lease and has
found the same to be satisfactory for all purposes hereof, and Tenant accepts
the title and condition of the Leased Premises in their respective, present
condition "as is".
(c) Landlord makes no representation or warranty with respect to the
condition of the Leased Premises or its fitness or availability for any
particular use and Landlord shall not be liable for any latent or patent defect
therein.
(d) The Leased Premises constitutes a portion of the entire parcel of land
owned by Landlord which is described in Exhibit B to this Agreement, which land
is referred to as the "Entire Parcel."
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2. TERM.
The term (the "term" or the "Term") of this Lease shall be for a
period commencing on the date of this Lease (the "Commencement Date") and
terminating on the date (the "Expiration Date") which is the last day of the
calendar month in which the fifteenth (15th) anniversary of the Commencement
Date occurs, or on such earlier date upon which said term may expire or be
terminated pursuant to any of the conditions of limitation or other provisions
of this Lease or pursuant to the provisions of any present or future
constitution, law, statute, ordinance, rule, regulation, other governmental
order or controlling judicial determination of any Federal, State, local,
municipal or other governmental body, agency or authority having or asserting
jurisdiction over the Leased Premises and all departments, commissions, boards
and officers thereof (collectively the "Laws").
2.a. OPTIONS TO EXTEND TERM
(1) Tenant shall have an option (the "Option") to extend the term of
this Lease for two (2) additional terms of five (5) years on each such option
(each as the "Option Term") to begin respectively upon the first day next
succeeding either the Expiration Date, or the expiration of the preceding Option
Term, upon the same terms, conditions and provisions as are provided for in this
Lease (other than the provisions of this Section 2.a. except that the Minimum
Rent payable pursuant to Section 2.a. hereof for each Option Term shall be the
greater of (i) the Minimum Rent payable under this Lease immediately prior to
either the Expiration Date, or the expiration of the preceding Option Term, or
(ii) the fair market rent for the Leased Premises (hereinafter "FMV") on either
the Expiration Date,or the expiration of the preceding Option Term (each the
"Rent Appraisal Date").
(2) The FMV shall be determined by the mutual written agreement of
Landlord and Tenant. In the event that Landlord and Tenant shall not have
reached mutual agreement as to the FMV on or before the sixtieth (60th) day
following the Rent Appraisal Date, but Landlord's determination of the FMV is
less than twenty percent (20%) greater than Tenant's determination of the FMV
(which respective determinations shall be based on blind written bids submitted
at the end of the sixty (60) day period by each of Landlord and Tenant to the
other), the FMV will be the average of Landlord's and Tenant's respective
determinations. In the event that Landlord and Tenant shall not have reached
mutual agreement as to the FMV on or before the sixtieth (60th) day following
the Rent Appraisal Date and Landlord's determination of the FMV is more than
twenty percent (20%) greater than Tenant's determination of the FMV, then
Landlord and Tenant each shall, no later than the seventy-fifth (75th) day
following the Rent Appraisal Date, select a Real Estate Appraiser, as
hereinafter defined. If either party shall fail to so appoint a Real Estate
Appraiser, the one Real Estate Appraiser so appointed shall proceed to determine
the FMV. In the event that the Real Estate Appraisers selected by Landlord and
Tenant agree as to the FMV, said determination shall be binding on Landlord and
Tenant. In the event that the Real Estate Appraisers selected by Landlord and
Tenant cannot agree as to the FMV on or before the one hundred fifth (105th) day
following the Rent Appraisal Date, then said Real Estate Appraisers shall
jointly select a third Real Estate Appraiser, provided that if they cannot agree
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on the third Real Estate Appraiser on or before the one hundred twentieth
(120th) day following the Rent Appraisal Date, then said third Real Estate
Appraiser shall be selected in accordance with the rules prescribed by the
American Arbitration Association in the Commonwealth of Massachusetts (or any
successor thereto). The FMV shall then be determined by the third Real Estate
Appraiser no later than the one hundred fiftieth (150th) day following the Rent
Appraisal Date and said determination shall be binding on Landlord and Tenant
provided however that if the third Real Estate Appraiser shall determine a FMV
which is lower than the FMV designated by both of the other two Real Estate
Appraisers, then the FMV which is the lower FMV designated by one of the other
two Real Estate Appraisers shall be the FMV as determined hereunder. The term
"Real Estate Appraiser" shall mean a fit and impartial person having not less
than five (5) years experience as an appraiser of leasehold estates relating to
first class office space in the Worcester, Massachusetts area. The appraisal
shall be conducted in accordance with the provisions of this Section and, to the
extent not inconsistent herewith, in accordance with the prevailing rules of the
American Arbitration Association in Massachusetts or any successor thereto. The
final determination of the Real Estate Appraiser(s) shall be in writing and
shall be binding and conclusive upon the parties, each of which shall receive
counterpart copies thereof. In rendering such decision the Real Estate
Appraiser(s) shall not add to, subtract from or otherwise modify the provisions
of this Lease. The fees and expenses of the Real Estate Appraiser selected by
Landlord and Tenant shall be shared equally by Landlord and Tenant.
(3) The Option may be exercised only by Tenant giving written notice
to Landlord of Tenant's said Option by certified mail, return receipt requested,
not more than fifteen (15) nor less than twelve (12) months prior to either the
Expiration Date of the Term, or the expiration of the preceding Option Term (the
"Exercise Notice"). Upon Tenant's giving of the Exercise Notice, the term of
this Lease shall be extended automatically upon the terms and conditions
(subject to Section 2.a.(1)) herein specified, without the execution of an
extension agreement or other instrument. If Tenant shall not give Landlord the
Exercise Notice at the time and in the manner set forth above, the Option shall
terminate and be deemed waived by Tenant. Time is of the essence as to the date
for the giving of the Exercise Notice.
(4) In rendering the determination of FMV the real estate
appraiser(s) shall assume or take into consideration as appropriate all of the
following: (a) Landlord and Tenant are typically motivated; (b) the Landlord and
prospective tenant are well informed and well advised and each is acting in what
it considers its own best interest; (c) a reasonable time under then-existing
market conditions is allowed for exposure of the Leased Premises on the open
market; (d) the rent is unaffected by concessions, special financing amounts
and/or terms, or unusual services, fees, costs or credits in connection with the
leasing transaction; (e) the Leased Premises are fit for immediate occupancy and
use "as is" and require no additional work by Landlord and that no work has been
carried out therein by the Tenant, its subtenant, or their predecessors in
interest during the Term which has diminished the rental value of the Leased
Premises; (f) in the event the Leased Premises have been destroyed or damaged by
fire or other casualty, they have been fully restored; (g) that the Leased
Premises are to be let with vacant possession and subject to the provisions of
this Lease; and (h) market rents then being charged for comparable space in
other similar office buildings in the same area. In rendering such decision and
award, the arbitrators shall not modify the provisions of this Lease. The
decision and award of the real estate appraisers shall be in writing and shall
be final and conclusive on all parties and counterpart copies thereof shall be
delivered to each of said parties. Judgment may be had on the decision and award
of the arbitrators so rendered in any court of competent jurisdiction.
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(5) Notwithstanding the foregoing provisions of this Section 2.a.,
if on the date that Tenant exercises the Option, or if on any subsequent date up
to and including the date upon which the extension of the Term commences, Tenant
is in default, beyond any applicable notice and grace periods, in the payment of
fixed annual rent or additional rent hereunder, or is in default in the
performance of any of the other terms, conditions or provisions of this Lease,
Tenant's exercise of the Option and the extension of the Term contemplated
thereby shall, at the option of Landlord exercised by written notice to Tenant,
be rendered null and void and shall be of no further force and effect and Tenant
shall have no other additional right to exercise such Option, which shall be
deemed waived by Tenant.
(6) If Tenant exercises the Option, then, at Landlord's request,
Tenant agrees within ten (10) days after request is made, to execute,
acknowledge and deliver to Landlord an instrument in form and substance
satisfactory to Landlord, confirming (i) the fixed annual rent payable under
this Lease, unless Tenant is then, in good faith, disputing same in accordance
with the provisions of this Section 2.a., in which case Tenant agrees to
execute, acknowledge and deliver a separate instrument satisfactory to Landlord
confirming the fixed annual rent as finally determined, (ii) the expiration date
of the term, and (iii) the other modifications provided for in this Section
2.a., but no such instrument shall be required in order to make the provisions
hereof effective.
(7) Time shall be of the essence with respect to the exercise of the
Option by Tenant.
3. FIXED ANNUAL MINIMUM RENTAL.
Tenant covenants to pay Landlord, without previous demand therefor and
without any setoff, abatement or deduction whatsoever of any kind in lawful
money of the United States which is legal tender at the time of payment a net
fixed annual minimum rent (the "Minimum Rental") for each year of the Term of
this Lease, at the office of Landlord or such other place as Landlord may
designate from time to time, payable in advance on or before the first (1st) day
of each and every calendar month during the Term as follows:
(a) Commencing on the Commencement Date through the last day of the month
in which the first anniversary of the Commencement Date occurs (the "Initial
Term"): Four Hundred Thirty Eight Thousand Dollars ($438,000), payable in
initial equal monthly installments of Thirty Six Thousand Five Hundred Dollars
($36,500).
(b) Commencing on the first day next succeeding the expiration of the
Initial Term, the above fixed annual monthly rental rate shall be adjusted upon
the first day of each successive lease year following the expiration of the
Initial Term in the manner set forth below:
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(i) Definitions: For the purposes of this Article, the
following definitions shall apply:
(1) The term "Base Year" shall mean 2006.
(2) The term "Price Index" shall mean the "Consumer
Price Index" for All Urban Consumers as published by the United States
Department of Labor for the Boston, Massachusetts Metropolitan area, or a
successor or substitute index appropriately adjusted.
(3) The term "Price Index for the Base Year" shall mean
the average Price Index for the Base Year.
(c) Effective as of January of each year subsequent to the Base Year, there
shall be made a cost of living adjustment of the Minimum Rental payable
hereunder. The January adjustment shall be based on such percentage difference
between the Price Index for the preceding month of December and the Price Index
for the Base Year.
(d) In the event the Price Index for December in any calendar year during the
term of this lease reflects an increase over the Price Index for the Base Year,
then the fixed annual rent herein provided to be paid as of the January 1st,
following such month of December (unchanged by any adjustments under this
Article) shall be multiplied by the percentage difference between the Price
Index for September and the Price Index for the Base Year, and the resulting sum
shall be added to such fixed annual rent, effective as the commencement date of
each applicable, successive lease year. Said adjusted fixed annual rent shall
thereafter be payable hereunder, in equal monthly installments, until it is
readjusted pursuant to the terms of this lease.
The following illustrates the intentions of the parties hereto as to the
computation of the aforementioned cost of living adjustment in the annual rent
payable hereunder:
Assuming that said fixed annual rent is $10,000, that the Price
Index for the Base Year was 102.0 and that the Price Index for the
month of December in a calendar year following the Base Year was
105.0, then the percentage increase thus reflected, i.e., 2.941%
(3.0/102.0) would be multiplied by $10,000, and said fixed annual
rent would be increased by $294.10 effective as of January 1st of
said calendar year.
In the event that the Price Index ceases to use 1982-84=100 as the basis
of calculation, or if a substantial change is made in the terms or number of
items contained in the Price Index, then the Price Index shall be adjusted to
the figure that would have been arrived at had the manner of computing the Price
Index in effect at the date of this lease not been altered. In the event such
Price Index (or a successor or substitute index) is not available, a reliable
governmental or other non-partisan publication evaluating the information
theretofore used in determining the Price Index shall be used.
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(e) The statement of the cost of living adjustment to be furnished by Landlord
shall consist of data prepared for Landlord by Landlord's accountant(s). The
statements thus furnished to Tenant shall constitute a final determination as
between Landlord and Tenant of the cost of living adjustment for the periods
represented thereby.
(f) In no event shall the fixed annual rent originally provided to be paid under
this lease exclusive of the adjustments under this Section be reduced by virtue
of this Section.
(g) Any delay or failure of Landlord in computing or billing for the rent
adjustments hereinabove provided, shall not constitute a waiver of or in any way
impair the continuing obligation of Tenant to pay such rent adjustments
hereunder.
(h) Notwithstanding any expiration or termination of this lease prior to the
lease expiration date (except in the case of a cancellation by mutual agreement)
Tenant's obligation to pay rent as adjusted under this Section shall continue
and shall cover all period up to the lease expiration date, and shall survive
any expiration or termination of this lease.
4. UTILITIES.
Tenant shall furnish, at its own expense, all utilities of every type and
nature required by it in its use of the Leased Premises and shall pay or cause
to be paid, when due, all bills for water, sewerage, heat, gas, electricity and
other utilities, if any, used on, in connection with, or chargeable against the
Leased Premises until the termination of this Lease and all bills for utility
charges relating to the Leased Premises or the use thereof and imposed on users
of utilities, whether or not such charges shall relate to services or benefits
available to the Tenant during the term of this Lease, and the Tenant shall
indemnify and save harmless the Landlord from and against any loss, cost and
expense in connection therewith.
5. ADDITIONAL RENT.
(a) It is the purpose and intent of Landlord and Tenant that the rent
payable hereunder shall be absolutely net to Landlord so that this Lease shall
yield, net to Landlord, the Minimum Rental due during the term of this Lease.
(b) Tenant covenants to pay, before any fine, penalty, interest or cost
may be added thereto for the non-payment thereof, as additional rent, all taxes,
assessments (including but not limited to, all assessments for public
improvements or benefits, whether or not commenced or completed within the term
of this Lease and so-called business improvement district taxes or assessments)
water, sewer and other rents, rates and charges, charges for public utilities,
excises, levies, license and permit and inspection fees and other governmental
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever, which at any time during the term
of this Lease may have been or may be assessed, levied, confirmed, imposed upon,
or grow to become due or payable out of or in respect of, or become a lien on,
the Leased Premises or any part thereof or any appurtenance thereto, any
personal property, the rent and income received by Tenant from subtenants, any
use, possession or occupation of the Leased Premises, or rentals or sales
therefrom or activity conducted therein, such franchises as may be appurtenant
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to the use or occupation of the Leased Premises (all of the foregoing, together
with any and all Premiums (as hereinafter defined), and together with any and
all penalties, fines and/or interest thereon, being hereinafter sometimes
collectively referred to as "Impositions", and any of the same being hereinafter
sometimes referred to as an "Imposition"). Nothing herein contained shall
require Tenant to pay income taxes assessed against Landlord, or any capital
levy, corporate franchise, excess profits, estate, succession, inheritance or
transfer taxes of Landlord, unless such taxes are imposed or levied upon or
assessed as a total or partial substitute for, or in lieu of, any other
Imposition required to be paid by Tenant pursuant to this Section 5(b), in which
event same shall be deemed Impositions and shall be paid by Tenant; provided,
however, that if at any time during the term of this Lease, the method of
taxation shall be such that there shall be levied, assessed or imposed on
Landlord in lieu of, or in addition to, the foregoing, a capital levy, gross
receipts or other tax directly on the rents received therefrom and/or a
franchise tax or an assessment, levy or charge measured by or based, in whole or
in part, upon such rents, the Leased Premises (including, but not limited to the
acquisition, leasing, use, or value thereof) or the present or any future
Improvements on the Leased Premises or the construction thereof and/or measured
in whole or in part by Landlord's income from the Leased Premises if in
computing such income there is not allowed as a deduction any significant
portion of the depreciation or interest deductions allowed for federal income
tax purposes, then all such taxes, assessments, levies and charges, or the part
thereof so measured or based, shall be deemed to be included within the term
"Imposition" for the purposes hereof, but only to the extent that such taxes
would be payable if the Leased Premises were the only property of Landlord, and
Tenant shall pay and discharge the same as herein provided in respect of the
payment of Impositions. Tenant shall furnish to Landlord, promptly after payment
of any real estate taxes or Premiums, and, with respect to any other
Impositions, promptly upon request of Landlord, official receipts or other
satisfactory proof evidencing payment of such Imposition. In addition, Tenant
shall furnish to Landlord semi-annually, throughout the term of this Lease, a
certificate executed by an executive officer of Tenant, stating that all
Impositions have been paid to date. Landlord shall have the right, at Landlord's
option, to require Tenant to: (i) promptly deposit with Landlord funds for the
payment of current Impositions required to be paid by Tenant hereunder; and (ii)
deposit one-twelfth (1/12th) of the amount which would be sufficient at all
times to pay the Impositions payable, or estimated by Landlord or any Mortgagee
to be payable, during the ensuing twelve (12) months and all additional funds
required for the payment of any Imposition shall also be deposited with Landlord
on the first day of the month during which or at the end of which an Imposition
is due and payable without interest, penalty or liability and any interest
earned on such funds and made available to Landlord shall accrue for the benefit
of Tenant and may be applied by Landlord against any other sum then or which may
become due hereunder from Tenant to Landlord. No sum collected by Landlord under
this Paragraph 5 shall constitute a trust fund and all of such sums may be
commingled with other assets of Landlord.
(c) At Landlord's option, if at any time during the term of this Lease,
Tenant has been delinquent in making payments of Impositions or utility charges,
the failure of payment of which may result in a lien on the Leased Premises,
then Tenant agrees that, upon notice to the Tenant, Landlord may be the receiver
of all bills for Impositions, utilities and any other operating expenses
appurtenant to the Leased Premises, the failure of payment of which may
constitute or result in a lien on the Leased Premises. If Landlord so elects,
Tenant agrees to execute any and all documentation necessary or required and
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otherwise cooperate with Landlord to effectuate such receipt by Landlord. If
Landlord receives such bills, Tenant shall pay to Landlord, as additional rent
hereunder all such sums (subject to proration as specifically provided in this
Lease) within the later of (x) fifteen (15) days after billing by Landlord to
Tenant or (b) twenty (20) days prior to the date on which such bills are payable
to the applicable payees. Until such time as Landlord becomes the receiver of
such bills, Tenant will deliver to Landlord a copy of such bills with three days
of receipt thereof and deliver to Landlord proof of payment of such bills
simultaneously with Tenant's remittal thereof.
(d) Notwithstanding anything else herein to the contrary, in the event
that any portion of the Entire Parcel not forming part of the Leased Premises
shall be improved by Landlord or by any tenant or other occupant of such portion
of the Entire Parcel, and such improvement increases the real property taxes and
other charges assessed (as described in subparagraph 5(b)) against the Entire
Parcel, then from and after such date and with respect to any such assessment
relating to improvements on the Entire Parcel, Tenant shall be obligated to pay
only that portion of the real property taxes and other charges assessed against
improvements that are situated on the Leased Premises.
6. USE.
(a) Tenant shall be permitted to use the Leased Premises for
manufacturing, warehousing, office space and any other permitted use, subject,
however, to compliance with all Federal, State and local laws, zoning
ordinances, the orders, rules and regulations of the Board of Fire Insurance
Underwriters and any similar bodies having or asserting jurisdiction over the
Leased Premises now in effect or hereafter adopted by any governmental authority
having or asserting jurisdiction, and such conditions, restriction and other
encumbrances, if any, to which the Leased Premises are subject at the time of
execution and delivery of this Lease (collectively, hereinafter referred to as
the "Laws").
(b) Tenant shall not use or occupy or permit the Leased Premises to be
used or occupied, nor do or permit anything to be done in or on the Leased
Premises or any part thereof, in a manner that would in any way violate any of
the Laws or any certificate of occupancy affecting the Leased Premises or make
void or voidable any insurance then in force with respect thereto, or that may
interfere in any way with the ability to obtain at regular rates fire or other
insurance thereon required to be furnished hereunder by Tenant, or that will
cause or be likely to cause injury to any of the Improvements, or that will
constitute a public or private nuisance or waste. Nothing contained in this
Lease and no action or inaction by Landlord shall be deemed or construed to mean
that Landlord has granted to Tenant any right, power or permission to do any act
or to make any agreement that may create, give rise to, or be the foundation
for, any right, title, interest, lien, charge or other encumbrance upon the
estate of Landlord in the Leased Premises.
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7. COMPLIANCE WITH LAWS AND AGREEMENTS.
(a) Tenant shall, throughout the term of this Lease, and at Tenant's sole
cost and expense, promptly comply or cause compliance: (i) with all Federal,
State, and local laws, whether present or future, foreseen or unforeseen,
ordinary or extraordinary, and whether or not the same shall be presently within
the contemplation of Landlord and Tenant or shall involve any change of
governmental policy, or require structural or extraordinary repairs,
alterations, or additions, and irrespective of the cost thereof, which may be
applicable to the Leased Premises, and (ii) with any agreements, contracts,
easements and restrictions (collectively, the "Restrictions") affecting the
Leased Premises or any part thereof or the ownership, occupancy or use thereof
(x) existing on the date hereof other than, except as otherwise provided herein,
any mortgage given by Landlord, or (y) hereafter created by Tenant, or consented
to or requested by Tenant.
(b) Except as expressly provided in this Lease, no abatement, diminution,
setoff or reduction in Minimum Rental, additional rent or any other charges
required to be paid by Tenant pursuant hereto shall be claimed by or allowed to
Tenant for any inconvenience or interruption, cessation, or loss of business
caused directly or indirectly, by any present or future Laws, or by priorities,
rationing or curtailment of labor or materials, or by war, civil commotion,
strikes or riots, or any manner or thing resulting therefrom, or by any other
cause or causes beyond the control of Landlord or Tenant, nor shall this Lease
be affected by any such causes; and, except as expressly provided in this Lease,
no diminution in the amount of the space used by Tenant caused by legally
required changes in the construction, equipment, fixtures, motors, machinery,
operation or use of the Leased Premises shall entitle Tenant to, any abatement,
diminution or reduction of the rent or any other charges required to be paid by
Tenant pursuant to the terms of this Lease.
8. MAINTENANCE AND REPAIR.
(a) Tenant shall with reasonable promptness throughout the term of this
Lease, at Tenant's cost and expense, take good care of and maintain the Leased
Premises and all roadways, sidewalks and curbs, if any, on, adjacent and
appurtenant thereto, in good order and repair, and shall promptly remove all
accumulated snow, ice and debris from any and all roadways, sidewalks and curbs
located upon or appurtenant to the Leased Premises and from any and all other
sidewalks and curbs adjacent to the Leased Premises.
(b) Tenant shall not commit or suffer to be committed any waste upon or
about the Leased Premises, and shall promptly at its cost and expense, make all
necessary replacements, restorations, renewals and repairs to the Leased
Premises and appurtenances thereto, whether interior or exterior, structural or
non-structural, ordinary or extraordinary, and foreseen or unforeseen, which
repairs, restorations, renewals and replacements shall, to the extent possible,
be at least equivalent in quality to the original work or the property replaced,
as the case may be. Tenant shall not make any claim or demand upon or bring any
action against the Landlord for any loss, cost, injury, damage or other expense
caused by any failure or defect, structural or non-structural, of the Leased
Premises or any part thereof.
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(c) Landlord shall not under any circumstances be required to build any
improvements on the Leased Premises, or to make repairs, replacements,
alterations or renewals of any nature or description to the Leased Premises or
to any of the Improvements, whether interior or exterior, ordinary or
extraordinary, structural or non-structural, foreseen or unforeseen, or to make
any expenditure whatsoever in connection with this Lease or to inspect or
maintain the Leased Premises in any way. Tenant hereby waives the right to make
repairs, replacements, renewals or restorations at the expense of Landlord
pursuant to any Laws.
9. CHANGES, ALTERATIONS AND NEW CONSTRUCTION BY THE TENANT.
(a) Tenant, at its sole cost and, expense, shall have the right at any
time and from time to time during the term of this Lease to make changes and
alterations to the building or buildings on the Leased Premises or to construct
improvements, thereon or repair any building damaged destroyed or taken (all of
the foregoing, including the Construction Addition, are hereinafter collectively
called "Tenant Changes" and any of the foregoing is called a "Tenant Change"),
subject, however, in all cases, to the following:
(i) Landlord's prior written consent shall be required in each
instance of any Tenant Change involving the structure structural integrity
or exterior of any building (which consent shall not be unreasonably
withheld; it shall not be unreasonable for Landlord to withhold such
consent if the same shall be in violation of any Mortgage or if any
Mortgagee shall not give its consent to the same where such Mortgagee is
entitled to give such consent by the terms of its Mortgage).
(ii) No Tenant Change shall be undertaken until the Tenant shall
have procured and paid for all required permits and authorizations of all
municipal departments and governmental subdivisions having jurisdiction
and until all originals of which are delivered to Landlord.
(iii) Any Tenant Change involving an estimated cost of more than One
Hundred Thousand Dollars ($100,000.00) shall be conducted under the
supervision of a licensed architect or engineer selected by Tenant and
shall be made in accordance with detailed plans and specifications (the
"Plans and Specifications").
(iv) Any Tenant Change shall be made promptly and in a good
workmanlike manner and in compliance with all applicable permits and
authorizations and building and zoning laws and all Laws and in accordance
with the orders, rules and regulations of the Board of Fire Insurance
Underwriters and any other body hereafter exercising similar functions
having or asserting jurisdiction over the Leased Premises.
(v) Tenant shall pay the cost of any Tenant Change in cash or its
equivalent, so that the Leased Premises are at all times free of liens for
labor or materials supplied or claimed to have been supplied to the Leased
Premises.
(vi) Except with respect to Tenant's personal property, any such
Tenant Change shall immediately upon incorporation into the Leased
Premises be and become the property of the Landlord, subject to the
leasehold rights of Tenant hereunder.
(vii) Tenant shall carry all necessary Worker's Compensation
Insurance and shall furnish Landlord with evidence of any all such
coverage.
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(viii) If any Tenant Change is undertaken by Tenant pursuant to the
provisions of Section 11 or 12 of this Lease, then each request for
payment shall be made on thirty (30) days' prior notice to Landlord and
Mortgagee and shall be accompanied by a certificate to be made by the
supervising architect or engineer, stating (a) that all of the work
completed has been done in material compliance with the approved Plans and
Specifications, (b) that the sum requested is justly required to reimburse
the Tenant for payments by Tenant to, or is justly due to, the contractor,
subcontractors, materialmen, laborers, engineers, architects or other
persons rendering services or materials for the work (giving a brief
description of such services and materials), and that all persons or
entities that could otherwise claim a lien on any portion of or interest
in the Leased Premises by reason of having rendered any services or
materials for such work have either been paid in full and/or have duly,
effectively and irrevocably waived and released all rights to any such
liens, and that, when added to all sums previously paid out by the
Landlord, such sum may not exceed ninety (90%) percent of the value of the
work done to the date of such certificate, with final payment of the
balance of the cost of the work to be made upon certification by the
supervising architect or engineer as to completion in accordance with the
approved Plans and Specifications. The amount of such proceeds remaining
in the hands of the Landlord must be sufficient on completion of the work
to pay for the same in full (giving in such reasonable detail as Landlord
may require an estimate of the cost of such completion).
(ix) If any Tenant Change resulting from a Casualty or Condemnation
involving an estimated cost in excess of Fifty Thousand ($50,000.00)
Dollars is undertaken by Tenant pursuant to the provisions of this Lease,
then each request for reimbursement shall be accompanied by waivers of
lien which shall be satisfactory to Landlord and any Mortgagee, covering
that part of the work for which payment or reimbursement is being
requested and by a search prepared by a title company or licensed
abstractor or by other evidence, satisfactory to Landlord and Mortgagee,
that there has not been filed with respect to any part of the Leased
Premises any mechanics' or other lien or instrument for the retention of
title in respect of any of the work not discharged of record, and, if and
as requested by, and satisfactory to, Landlord or any Mortgagee, title
policy endorsements sufficient to evidence the foregoing and insure the
priority of the requesting party's interest in the Leased Premises.
(x) If any Tenant Change involving an estimated cost in excess of
Fifty Thousand ($50,000.00) Dollars is undertaken by Tenant pursuant to
the provisions of this Section 9 or of Section 11 or 12 of this Lease,
then the request for any payment after the work has been completed shall
be accompanied by such certificates permits and licenses required by any
Laws and such other instruments and agreements as Landlord or any
Mortgagee shall require.
(xi) No Tenant Change shall impair the structural integrity of any
building.
(xii) Tenant recognizes that the use of the Leased Premises as a
manufacturing facility is a legal non-conforming use under applicable
zoning laws and regulations. No Tenant Change shall impair the legal
non-conforming use status of the Leased Premises. Further, in the event of
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a Tenant Change resulting from a Casualty, the Leased Premises shall be
restored in a manner such that the use of the Leased Premises after such
Tenant Change will continue to be a legal non-conforming use under
applicable zoning laws and regulations.
(xiii) In connection with any Tenant Change undertaken pursuant to
the provisions of this Section 9 or of Section 11 or 12 of this Lease,
Landlord, if required by any Mortgagee, may require Tenant to post a
reasonable bond or other security, as shall be reasonably satisfactory to
such Mortgagee, to insure the lawful, safe and expedient completion of
such Tenant Change.
10. INDEMNITY AND PUBLIC LIABILITY INSURANCE.
(a) Tenant shall at all times indemnify Landlord for, defend Landlord
against, and save Landlord harmless from any liability, loss, cost, injury,
damage or other expense or risk whatsoever that may occur or be claimed by or
with respect to any person(s) or property on the Leased Premises and resulting
from the use, misuse, occupancy, possession or vacancy of the Leased Premises by
Tenant or any concessionaires, subtenants or other persons claiming through or
under Tenant, or their respective agents, employees, licensees, invitees, guests
or other such persons, or from the condition of the Leased Premises. Tenant
shall, at its cost and expense, defend against any and all such actions, claims
and demands and shall indemnify Landlord for all reasonable costs, expenses, and
liabilities it may incur in connection therewith. Landlord shall not in any
event whatsoever be liable for any injury or damage to the Leased Premises or to
Tenant or to any concessionaires, subtenants or other persons claiming through
or under Tenant, or their respective agents, employees, licensees, invitees,
guests or other such persons or to, any property of any such persons. Tenant
shall not make any claim or demand upon or institute any action against the
Landlord as result of such injury or damage unless such injury or damage
resulted from Landlord's (or Landlord's employees, agents, contractors, invitees
and others who are on the premises at the request or Landlord) negligence or
acts or omissions.
(b) Tenant, at its cost and expense, shall obtain and maintain in force
throughout the term of this Lease, comprehensive general liability insurance
against any loss, liability or damage on, about or relating to the Leased
Premises, with limits of not less than Five Million ($5,000,000.00) Dollars for
death or injuries to one person and not less than Five Million ($5,000,000.00)
Dollars for death or injuries to two or more persons in one occurrence, and not
less than Two Million Five Hundred Thousand ($2,500,000.00) Dollars for damage
to property (all of the foregoing being hereinafter sometimes collectively
referred to as the "Liability Insurance"). All such Liability Insurance obtained
and maintained by Tenant shall name Landlord, any Mortgagee and Tenant as the
insured parties therein and shall be obtained and maintained from and with a
reputable and financially sound insurance company(ies) acceptable to Landlord,
authorized to issue such insurance in the Commonwealth of Massachusetts.
(c) The policies of insurance required under this Lease shall contain an
agreement by the insurer that it will not cancel or modify such policy except
after sixty (60) days' prior written notice to Landlord and any mortgagees by
certified mail, return receipt requested. Not less than sixty (60) days prior to
the expiration of such any insurance policy, Tenant shall deliver to Landlord a
certificate evidencing the replacement or renewal thereof.
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(d) Tenant shall furnish Landlord and any Mortgagee with duplicate
originals (or original certificates) of such insurance policies, including
renewal and replacement policies, together with written evidence that the
premiums therefor have been paid. It is understood and agreed that said policies
may be blanket policies covering other locations operated by Tenant, its
affiliates or subsidiaries, provided that such blanket policies otherwise comply
with the provisions of this Section 10.
(e) Tenant shall comply, notwithstanding any other provision, with the
requirements of any ground lease and any mortgages relating to the insurance and
to the proceeds of insurance maintained and required to be maintained by Tenant
pursuant to the provisions of Sections 10 and 11 of this Lease.
(f) All such insurance described in subparagraph (b) of this Section 10
shall:
(i) be obtained from and maintained with reputable and financially
sound insurance company(ies) acceptable to Landlord and any Mortgagees,
authorized to issue such insurance in the Commonwealth of Massachusetts;
(ii) be on and/or contain such terms and conditions as shall be
satisfactory to Landlord and to any Mortgagees; and
(iii) contain an agreement by the insurer that it will not cancel or
modify such policy except after sixty (60) days' prior written notice to
Landlord and any Mortgagees by certified mail, return receipt requested.
11. INSURANCE FOR DAMAGE OR DESTRUCTION AND WORKER'S COMPENSATION.
(a) Tenant shall, throughout the term of this Lease, at its own cost and
expense, obtain and maintain in full force and effect and in the name of Tenant,
Landlord (as additional insured and loss payee), and, if so requested by
Landlord, any Mortgagees (as additional insured and loss payee, as its interest
may appear) (except that Landlord and any Mortgagee need not be named on any
Worker's Compensation policy) as their respective interests may appear:
(i) all risk insurance, together with a so called "terrorism"
endorsement, including but not limited to collapse, loss or damage
occasioned by fire, the perils included in the so-called extended coverage
endorsement, vandalism and malicious mischief, and water damage covering
the Improvements and all replacements and additions thereto, and all
fixtures, equipment and other personal property therein; the foregoing
coverage shall be provided in amounts sufficient to provide one hundred
(100%) percent of the full replacement cost of the Improvements and shall
be determined from time to time, at Tenant's expense, at the request of
the Landlord, by any appraiser selected by Tenant and approved by Landlord
and the insurance carrier;
(ii) if a sprinkler system shall be located in the Leased Premises,
sprinkler leakage insurance in amounts reasonably satisfactory to Landlord
and any Mortgagees;
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(iii) boiler and machinery broad form policy insurance covering
explosions in respect of steam and pressure boilers and similar apparatus,
if any, located on the Leased Premises in an amount equal to one hundred
(100%) percent of the full replacement cost of the Improvements;
(iv) war risk insurance as and when such insurance is obtainable
from the United States Government or any agency or instrumentality
thereof, and a state of war or national or public emergency exists or
threatens, and in an amount not less than the full insurable value of the
Leased Premises;
(v) the Liability Insurance as provided in Section 10 of this Lease;
(vi) Worker's Compensation insurance subject to statutory limits or
better in respect of any work or other operations on about the Leased
Premises;
(vii) during the performance of any construction, broad form
Builder's All-Risk insurance; and
(viii) rent insurance on the "All Risks of Physical Loss" basis in
an amount equal to one (1) year of the then current Minimum Rental and
Impositions.
(b) All such insurance described in subparagraph (a) of this Section 11
shall:
(i) be obtained from and maintained with reputable and financially
sound insurance company(ies) acceptable to Landlord and any Mortgagees,
authorized to issue such insurance in the Commonwealth of Massachusetts;
(ii) be on and/or contain such terms and conditions as shall be
satisfactory to Landlord and to any Mortgagees;
(iii) provide that the proceeds of any loss shall be payable to
Landlord (but to be held in escrow by any recognized financial institution
selected by Landlord), or, if Landlord so requests, to any Mortgagees in
accordance with this Lease;
(iv) contain an agreement by the insurer that it will not cancel or
modify such policy except after thirty (30) days' prior written notice to
Landlord and any Mortgagees by certified mail, return receipt requested;
and
(v) contain an agreement that any loss otherwise payable thereunder
shall be payable notwithstanding any act or negligence of Landlord or
Tenant which might, absent such agreement, result in a forfeiture of all
or part of the payment of such loss.
(c) Not less than thirty (30) days prior to the expiration of any such
insurance policy, Tenant shall deliver to Landlord and any Mortgagee a
certificate evidencing the replacement or renewal thereof.
(d) Tenant shall furnish Landlord and any Mortgagees with duplicate
originals (or original certificates) together with true copy(ies) of all
insurance policies described in subparagraph (a) of this Section 11, including
renewal and replacement policy(ies), together with written evidence that the
premiums therefor (the "Premiums") have been paid. It is understood and agreed
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that said policies may be blanket policies covering other locations operated by
Tenant, its affiliates or subsidiaries, provided that such blanket policies
otherwise comply with the provisions of this Section 11, and provided further
that such policies shall provide for a reserved amount thereunder with respect
to the Leased Premises so as to assure that the amount of insurance required by
the provisions of this Section 11 will be available notwithstanding any losses
with respect to other property covered by such blanket policies.
(e) If any portion of the Leased Premises is damaged or destroyed by fire
or other casualty, Tenant shall forthwith give notice thereof to Landlord and
Tenant shall, at its cost and expense, forthwith repair, restore, rebuild or
replace the damaged or destroyed Improvements, fixtures or equipment, and
complete the same as soon as reasonably possible, to the condition they were in
prior to such damage or destruction, except for such changes in design or
materials as may then be required by Law. Landlord, in such event, shall, to the
extent and at the times the insurer and any Mortgagees make the proceeds of the
insurance available, reimburse Tenant for the costs of making such repairs,
restoration, rebuilding and replacements, provided further that said
reimbursements need be made only under such conditions that Landlord and any
Mortgagees are assured that at all times the Leased Premises shall be free of
liens or claims of liens by reason of such work, and provided further that the
portion of the proceeds paid out at any time shall not exceed the value of the
actual work and materials incorporated in the repaired, restored, rebuilt or
replaced Leased Premises and that the conditions described in Section 9 are
complied with and that Landlord shall not disburse insurance proceeds for any
purpose other than for expenses incurred by Tenant to replace the Leased
Premises. To the extent, if any, that the proceeds of insurance made available
as aforesaid are insufficient to pay the entire cost of making such repairs,
restoration, rebuilding and replacements, and notwithstanding the expiration or
termination of the term of this Lease, Tenant shall pay the amount by which such
costs exceed the insurance proceeds made available as aforesaid. Any surplus of
insurance proceeds over the cost of restoration, net of all expenses incurred by
Landlord in connection with the administration thereof, shall be paid over to
Landlord. Notwithstanding the foregoing, if such damage or destruction shall
occur during the last three years of this Lease, Tenant may, on notice given
within one hundred twenty (120) days after the date of the casualty, terminate
this Lease, in which event Tenant shall have no obligation to re-build.
(f) In the event of any damage to or destruction of the Leased Premises,
Tenant shall promptly notify Landlord and any Mortgagees and shall file prompt
proof of loss to the relevant insurance company(ies).
(g) The obligation to pay the rent provided for herein and to otherwise
perform Tenant's obligations hereunder shall be abated during the period that
the Leased Premises are unusable following damages to the Leased Premises.
(h) The provisions and requirements of all of Section 9 shall apply with
respect to any repairing, restoring, rebuilding or replacing made pursuant to
Section 11; and same shall be made in accordance with the Plans and
Specifications to the extent required hereunder.
(i) As to any loss or damage which may occur upon the property of a party
hereto and be collected under any insurance policy(ies), such party hereby
releases the other from any and all liability for such loss or damage to the
extent of such amounts collected.
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(j) Tenant shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be furnished by Tenant
under Sections 10 and 11 of this Lease, unless Landlord, and with respect to the
insurance described in Section 11, and any Mortgagees designated by Landlord,
are included therein as named insured, with loss payable as in said Sections,
provided. Tenant shall immediately notify Landlord whenever any such separate
insurance is taken out and shall deliver to Landlord Lessor duplicate originals
thereof, or original certificates evidencing the same with true copies thereof,
as provided in this Lease.
12. CONDEMNATION
(a) In the event that at any time during the term of this Lease, title to
the whole or materially all of the Improvements on the Leased Premises shall be
taken by the exercise of the right of condemnation or eminent domain or by
agreement between Landlord and those authorized to exercise such right, this
Lease shall terminate and expire on the date of such taking (herein called the
"Taking Date") and the rent provided to be paid by the Tenant shall be
apportioned and paid to the Taking Date.
(b) If (i) thirty-five (35%) percent or more of the gross area of the
Improvements on the Leased Premises shall be taken, or (ii) substantially all
reasonable means of ingress and egress to and from the Leased Premises are
permanently eliminated by reason of such a taking, then and in any of such
events, Landlord and Tenant shall each have the right to terminate this Lease on
the next day for payment of Minimum Rental occurring at least one hundred twenty
(120) days after notice to the other given within ninety (90) days after the
Taking Date.
(c) In the event of any taking of the Leased Premises and if this Lease
shall not terminate as provided in subsection 12(a) and 12(b) above, then this
Lease shall continue unaffected (except as hereinafter specifically otherwise
provided) and Landlord shall be entitled to all awards, damages, consequential
damages and compensation for such taking, and Tenant shall not be entitled to
share in any such award or have any claim against Landlord for any part thereof,
provided: (i) Landlord shall to the extent the award paid with respect to the
Leased Premises is made available to Landlord, reimburse Tenant for its cost of
demolition, repair, rebuilding and restoration to return the Improvements to a
tenantable condition, as and when expended, and paid in like manner and subject
to the provisions and conditions contained in Section 9 above, which provisions
and conditions shall be deemed to apply to such demolition, repair, rebuilding
and restoration; (ii) the Minimum Rental payable by Tenant to Landlord annually
under Section 3 hereof, from and after the date of restoration of the Leased
Premises, shall be reduced to reflect the percentage of the usable space taken.
In the event of any taking which does not result in a termination of this Lease,
Tenant shall promptly make such demolition, repair, rebuilding and restoration
as are necessary to return the Leased Premises to a tenantable condition (in
accordance with the Plans and Specifications, to the extent same is
practicable), and in the event that the cost of such demolition, repair,
rebuilding and restoration shall exceed the Net Award collected by the Landlord,
Tenant shall pay the deficiency. Notwithstanding anything stated to the contrary
herein, in the event of any taking of the Leased Premises and if this Lease
shall not terminate as provided in subsection 12(a) and 12(b) above, and this
Lease continues unaffected (except as hereinafter specifically otherwise
provided), Landlord's Mortgagee shall have the right to cause Landlord to apply
all awards, damages, consequential damages and compensation for such taking
towards paying down any outstanding principal debt in connection with the Leased
Premises, owed by Landlord to Landlord's Mortgagee.
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(d) In the event Landlord is advised of an impending condemnation,
Landlord shall give notice of such fact to Tenant and Tenant, at its election,
shall be entitled to participate in any negotiations or litigation with the
condemning authority.
(e) Notwithstanding the foregoing, Tenant, at its cost and expense, shall
be entitled to separately claim, in any condemnation proceeding, any damages
payable for movable trade fixtures paid for and installed by Tenant (or any
persons claiming under Tenant) without any contribution or reimbursement
therefor by Landlord, and for Tenant's loss of business, and for Tenant's
relocation costs; provided Landlord's award is not reduced or otherwise
adversely affected thereby. Tenant shall make no claim for the value of its
leasehold estate.
13. REMOVAL OF TENANT'S PROPERTY.
Provided Tenant is not then in default hereunder, Tenant shall have the
right, at any time during the term of this Lease, to remove "Tenant's Property",
consisting of machinery, trade equipment, business and trade fixtures, and other
trade equipment placed, installed, supplied or made by it in or on the Leased
Premises at Tenant's cost and expense (without any contribution or reimbursement
therefore by Landlord), and which may be removed without material injury to the
Leased Premises; provided, however, that any damage to the Leased Premises or
any part thereof occasioned by such removal shall be repaired by Tenant at
Tenant's cost and expense. As used herein and hereafter, the term "Tenant's
Property" shall not include or be deemed to include any item now or hereafter
installed in or on the Leased Premises that is an integral part of the
improvements, including, without limiting the generality of the foregoing,
heating, ventilating, and air conditioning plants and systems, electrical and
plumbing fixtures and systems and other like equipment and fixtures, if any.
14. SUBORDINATION, NON-DISTURBANCE, NOTICE TO LESSORS AND MORTGAGEES.
(a) This Lease, and all rights of Tenant hereunder are and shall be
subject and subordinate in all respects to any other underlying and ground
leases (the "Ground Lease") of all or any portions of the Leased Premises, now
or hereafter existing (collectively, the "Superior Leases" and the holder(s)
thereof are hereinafter referred to collectively as the "Superior Lessors") and
to all mortgages which may now or hereafter affect all or any portions of the
Leased Premises and/or the Ground Lease (individually, a "Mortgage" and
collectively, the "Mortgages" and the Mortgagee(s) thereof are hereinafter
referred to collectively as the "Mortgagees"), to each and every advance made or
hereafter to be made under such Mortgages, and to all renewals, modifications,
replacements and extensions of the Superior Leases and the Mortgages and
spreaders and consolidations of such Mortgages; provided, that, as to any
Superior Leases (a) existing as of the date hereof and (b) entered into by
Landlord as lessor and/or Mortgages encumbering Landlord's Land or any part
thereof that become liens of record after the date of this Lease, the Superior
Lessors and/or Mortgagees thereunder shall each enter into a non-disturbance
agreement, in favor of Tenant, to provide that in the event its said Mortgage
shall be foreclosed or its said Superior Lease shall be terminated, as the case
may be, and provided, however, that if there is no uncured Event of Default
hereunder, this Lease shall not terminate on account thereof so long as Tenant
continues to pay rents reserved in this Lease and otherwise performs and
observes in all material respects the terms, covenants, conditions and
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provisions of this Lease to be performed and observed by or on behalf of Tenant
thereunder, and provided, further, that Tenant shall be entitled to exercise all
of its rights under the Lease. At the request of the Superior Lessor or
Mortgagee such non-disturbance agreement also may contain the provisions
referenced in paragraph (c) below and shall be in such form as it reasonably
requires. The provisions of this subsection (a) shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver any instruments that
Landlord, the Superior Lessors or the Mortgagees or any of their respective
successors in interest, may reasonably request to evidence such subordination.
If any Mortgagees shall, from time to time, so require, this Lease shall be
prior in lien to the lien of its or their respective Mortgages.
(b) In the event of any act or omission of Landlord which would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
terminate this Lease, or to claim a partial or total eviction, Tenant shall not
exercise such right (i) until it has given written notice of such act or
omission to each Mortgagee, and the Superior Lessors whose names and addresses
shall previously have been furnished to Tenant in writing, and (ii) unless such
act or omission shall not have been cured within thirty (30) days after notice
from Tenant unless such act or omission is not capable of being remedied by
Landlord or any Mortgagee or the Superior Lessors within such thirty (30) day
period, a cure has been commenced within such period and completed with a
reasonable period of time thereafter.
(c) If the Ground Lessor or the Superior Lessors or a Mortgagee shall
succeed to the rights of Landlord under this Lease whether through possession of
foreclosure action or delivery of a new lease or deed, then at the request of
such party so succeeding to Landlord's rights (herein sometimes called
"Successor Landlord") and upon such Successor Landlord's written agreement to
accept Tenant's attornment which such Successor Landlord shall agree to accept
if so requested by Tenant, Tenant shall attorn to and recognize such Successor
Landlord as Tenant's Landlord under this Lease, and shall promptly execute and
deliver any instrument that such Successor Landlord may reasonably request to
evidence such attornment. Tenant hereby irrevocably appoints Landlord the
attorney-in-fact of Tenant to execute and deliver such instrument on behalf of
Tenant, should Tenant refuse or fail to do so promptly after request, such power
being coupled with an interest. Upon such attornment, this Lease shall continue
in full force and effect as, and as if it were, a direct lease between the
Successor Landlord and Tenant upon all of the terms, covenants and conditions
set forth in this Lease, and all such terms, covenants and conditions shall be
applicable after such attornment except that the Successor Landlord shall:
(i) not be liable for any previous act or omission of Landlord under
this Lease,
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(ii) not be subject to any offset, not expressly provided for in
this Lease, which shall have theretofore accrued or which may thereafter
accrue to Tenant against Landlord, and
(iii) not be bound by any previous modification of this Lease, not
expressly provided for in this Lease, other than a modification of this
Lease executed by Landlord and Tenant prior to the execution of any
Superior Lease or Mortgage, or by any previous prepayment of more than one
month's Minimum Rental, unless such modification or prepayment shall have
been expressly approved in writing by the Superior Lessors or the
Mortgagee(s) through or by reason of which the Successor Landlord shall
have succeeded to the rights of Landlord under this Lease.
15. NON-WAIVER.
Neither a failure by the Landlord to exercise any of its options
hereunder, nor failure to enforce its rights or seek its remedies upon any
default, nor the acceptance by the Landlord of any rent accruing before or after
any default, shall effect or constitute a waiver of the Landlord's right to
exercise such option, to enforce such right, or to seek such remedy with respect
to that default or to any prior or subsequent default. The remedies provided in
this Lease shall be cumulative and shall not in any way abridge, modify or
preclude any other rights or remedies to which the Landlord may be entitled
either at law or in equity.
16. QUIET ENJOYMENT.
If Tenant pays rent it is obligated hereunder to pay, and observes all
other terms, covenants and conditions hereof, it may peaceably and quietly have,
hold and enjoy the Leased Premises during the term of this Lease, subject,
however, to all the terms of this Lease. No failure by Landlord to comply with
the foregoing covenant shall give Tenant any right to cancel or terminate this
Lease or to xxxxx, reduce or make any deduction from or offset against any rent
or any other sum payable under this Lease, or to fail to perform any other
obligations of Tenant hereunder.
17. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign, sublet the whole or any portion of the Leased
Premises, or otherwise transfer the Leased Premises without the prior written
consent of Landlord which shall not be unreasonably withheld or delayed;
provided, however, that it shall not be unreasonable for Landlord to withhold
such consent if the same shall be in violation of any Mortgage or if any
Mortgagee shall not give its consent to the same where such Mortgagee is
entitled to give such consent by the terms of its Mortgage; provided, further,
that if required by such Mortgagee with respect to any request to assign this
Lease, the consent to the assignment shall be conditioned upon the agreement of
Tenant to remain liable under the Lease. If Tenant shall desire to obtain
Landlord's consent to any such transfer, Tenant shall give written notice
thereof to Landlord, which notice shall be accompanied by (i) a conformed or
photostatic copy of the proposed assignment or sublease, (ii) a statement
setting forth in reasonable detail the identity of the proposed assignee or
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sublessee, the nature of its business and its proposed use of the Leased
Premises, and (iii) current financial information with respect to the proposed
assignee or sublessee, including, without limitation, its most recent financial
report, if available, and such other information as Landlord may reasonably
request. The consent of Landlord shall not be required in connection with an
assignment of this Lease pursuant to a merger or consolidation of Tenant into
another entity or in connection with the sale by Tenant of all or substantially
all of its business and assets or a transfer to a parent or subsidiary of
Tenant.
(b) Subject to the requirements set forth in Section 17(a) hereof, Tenant
may assign this Lease or sublet the Premises upon condition that:
(i) Any assignment shall transfer to the assignee all of Tenant's
rights in, and interest under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease
must be in full force and effect without any breach or default thereunder
beyond applicable notice and grace periods on the part of the Tenant and
without the existence of any condition, matter or state of fact which,
with the giving of notice or the passage of time, or both, would
constitute an Event of Default hereunder.
(iii) Any assignee shall assume, by written, recordable instrument,
in form and content satisfactory to Landlord, the due performance of all
of Tenant's obligations under this Lease including any accrued obligations
at the time of the assignment. A copy of the assignment and assumption
agreement, both in form and content satisfactory to Landlord, fully
executed and acknowledged by the assignee, together with a certified copy
of a properly executed corporate resolution (if the assignee be a
corporation) authorizing such assumption agreement, shall be sent to
Landlord within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by
Tenant and the sublessee shall be mailed to Landlord within ten (10) days
from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the
provisions, terms, covenants and of this Lease and the Tenant-assignor and
such assignee(s) shall continue to be and remain liable hereunder, it
being expressly understood and agreed that no assignment or subletting of
the Leased Premises shall, in any way, relieve Tenant or any subsequent
assignee(s) from the performance of any of the agreements, terms,
covenants and conditions of this Lease.
(vi) Each sublease shall contain provisions to the effect that (A)
such sublease is only for the actual use and occupancy by the sublessee,
and (B) such sublease is subject and subordinate to all of the terms,
covenants and conditions of this Lease and to all of the rights of
Landlord thereunder, and (C) in the event this Lease shall terminate
before the expiration of such sublease, the subtenant thereunder will, at
Landlord's option, attorn to Landlord and waive any rights the subtenant
may have to terminate the sublease or to surrender possession thereunder,
as a result of the termination of this Lease.
(c) Notwithstanding anything contained in this Lease to the contrary and
notwithstanding any consent by Landlord to any sublease of the Leased Premises
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or to any assignment of this Lease or any portion thereof, no subtenant shall
assign its sublease nor further sublease the Leased Premises or any portion
thereof, and no assignee shall further assign its interest in this Lease nor
sublease the Leased Premises or any portion thereof, without Landlord's prior
written consent in each of such cases.
(d) Tenant's failure to comply with all of the provisions and conditions
of this Section 17 and all of the subsections hereof shall (whether or not
Landlord's consent is required under this Section), at Landlord's option, render
any purported assignment or subletting null and void and of no force or effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold
estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such
estate shall be null and void and of no force and effect without the consent of
Landlord.
18. ENTRY BY LANDLORD.
Landlord, any Superior Lessor(s) and any Mortgagee(s), and their
respective duly authorized representatives shall have the right to enter the
Leased Premises at all reasonable times and upon reasonable prior notice for the
purposes of:
(a) inspecting the condition of same, and making such repairs,
alterations, additions, or improvements thereto as may be necessary or desirable
if Tenant fails to do so as required hereunder (but the Landlord shall have no
duty whatsoever to make any such inspections, repairs, alterations, additions,
or improvements); and
(b) exhibiting the same to persons who may wish to purchase or lease the
same, and, during the last six (6) months of the term of this Lease, placing a
notice of reasonable size on the Leased Premises offering the same or any part
thereof for sale or for rent.
19. TENANT'S DEFAULT.
The following shall be defined and deemed as an "Event of Default": (a) if
Tenant shall default in the payment of the Minimum Rental or any additional rent
or any other sum due hereunder and if Tenant shall fail to cure said default
within five (5) days after same is due; or, (b) if Tenant shall default in the
performance or observance of any term, obligation, covenant or condition to be
performed or observed by Tenant under this Section 19 or under any of Sections
6(b) 10, 11, 17 or 27(a) of this Lease and such failure or default shall
continue for thirty (30) days after notice thereof from Landlord; or (c) if
Tenant shall default in the performance or observance of any term, obligation,
covenant or condition to be performed or observed by Tenant under subsection
7(a)(ii) and if Tenant shall fail to cure said default prior to the expiration
of any grace or cure period, if any, provided in the Restriction the failure to
comply with which constitutes Tenant's default under said subsection 7(a)(ii);
or (d) if Tenant shall default in the performance or observance of any other
term, obligation, covenant or condition to be performed or observed by Tenant
under this Lease and if Tenant shall fail to cure said default within twenty
(20) days after receipt of notice of said default from Landlord, or if said
default shall reasonably require longer than twenty (20) days to cure, if Tenant
shall fail to commence to cure said default within twenty (20) days after
receipt of notice thereof and continuously prosecute the curing of the same to
completion with due diligence, or (e) if Tenant shall make an assignment of its
property for the benefit of creditors or shall institute any proceedings
relating to it or its property under any bankruptcy or insolvency laws of any
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jurisdiction or shall petition to any court for, or consent to, the appointment
of a receiver, trustee or assignee of it or any part of its property, or (f) if
an order for relief under any provisions of the Bankruptcy Reform Act of 1978,
as same may be amended, shall be entered against Tenant and is not stayed or
dismissed within ninety (90) days, or (g) if Tenant shall be declared bankrupt
or insolvent according to law, or (h) if any bankruptcy or insolvency
proceedings shall be commenced against Tenant and shall not be stayed or
dismissed within ninety (90) days thereafter, or (i) if a receiver, trustee, or
assignee shall be appointed without the consent of Tenant in any bankruptcy or
insolvency proceedings of Tenant or the property of Tenant and shall not be
stayed or discharged within ninety (90) days thereafter, or (j) if Tenant shall
be liquidated or dissolved, or shall begin proceedings toward its liquidation or
dissolution, or shall, in any manner, permit the divestiture of substantially
all of its assets, or (k) if, as a result of any failure by Tenant (other than
as otherwise provided in this Section 19) to perform or observe any of the
terms, obligations, covenants or conditions to be performed or observed by it
under this Lease, a breach or default shall have occurred and be continuing
under any Superior Lease or Mortgage. The word "Tenant" as used in subsections
(e), (f), (g), (h), (i), (j) and (k) of this Section 19 shall mean the then
holder of the Tenant's interest in this Lease hereunder and/or other persons who
or which are liable for any of Tenant's obligations under this Lease. Any
defaults in Tenant's liabilities or obligations under this Lease occasioned by
any acts or failures to act by any persons having or claiming any right, title
and interest in or to the Leased Premises by, through or under Tenant, shall be
deemed the default of Tenant hereunder. If this Lease is terminated pursuant to
this section 19, Tenant waives (i) the benefit of any Laws exempting property
from liability for rent or for debt, and (ii) the service of any notice which
may be required by any Laws.
In case of the occurrence of any Event of Default hereinbefore provided,
Landlord shall have the immediate right of reentry and may remove all persons
and property from the Leased Premises by summary proceedings, lawful force or
otherwise. In addition, in the event of the occurrence of any Event of Default
(whether or not Landlord shall elect to reenter or to take possession pursuant
to legal proceedings or pursuant to any notice provided for by Laws) Landlord
shall have the right, at its option, to terminate this Lease on not less than
two (2) days notice to Tenant and upon the giving of said notice, this Lease and
the term hereof shall cease and expire on the date set forth in said notice as
if the date were the expiration date originally set forth herein and/or it may
from time to time, whether or not this Lease be terminated, make such
alterations and repairs as may be reasonably necessary in order to relet the
Leased Premises or any part(s) thereof for such term or terms (which may extend
beyond the term of this Lease) and at such rental(s) and upon such other terms
and conditions as Landlord in its sole discretion may deem advisable; upon each
such reletting all rentals received by the Landlord from such reletting shall be
applied, first, to the payment of any indebtedness (other than rents due
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hereunder) of Tenant to Landlord, second, to the payment of any costs and
expenses of such reletting, including, without limitation, brokerage fees (at no
greater than customary rates in the area in which the Leased Premises is
located) and reasonable attorneys' fees and of the cost of such alterations and
repairs, third, to the payment of rents due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of future
rents and other payments required to be made by Tenant hereunder as the same may
become due and payable hereunder, with the right reserved to Landlord to bring
such action(s) or proceedings(s) for the recovery of any deficits remaining
unpaid without being obliged to await the end of the term for a final
determination of Tenant's account; and the commencement or maintenance of any
one or more actions shall not bar Landlord from bringing other or subsequent
actions for further accruals pursuant to the provisions of this Section. If such
rentals received from such reletting during any month be less than that to be
paid during that month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly subject to
Landlord's right of action(s) or proceedings as aforesaid. No such reentry or
taking possession of the Leased Premises by Landlord shall be construed as an
election on its part to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach. Should Landlord at any time terminate this Lease for
any breach, in addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of such breach as damages for loss of
the bargain and not as a penalty, including the cost of recovering the Leased
Premises, reasonable attorneys' fees, and including the worth, at the time of
such termination, of the excess, if any, of the amount of rental and charges
equivalent to the rental and charges reserved in this Lease for the remainder of
the then term of this Lease, over the aggregate rental value of the Leased
Premises for the remainder of such term, all of which shall be immediately due
and payable from Tenant to Landlord. If any Laws shall validly limit the amount
of the damages provided for in the immediately preceding sentence to less than
the amount above agreed upon, Landlord shall be entitled to the maximum amount
allowable under such Laws. In the event the Tenant does not comply with its
obligations under this Lease, Landlord shall also have the right to appropriate
injunctive relief. The rights and remedies whether herein or anywhere else in
this Lease provided shall be cumulative, and the exercise of any one right or
remedy shall not preclude the exercise of or act as a waiver of any other right
or remedy of Landlord hereunder, or which may be existing at law, or in equity
or by statute or otherwise. In addition to the foregoing, Tenant, and its
successors and assigns, shall at all times indemnify Landlord for, defend
Landlord against and save Landlord harmless from any liability, loss, cost,
injury, damage or other expense or risk whatsoever (including, without
limitation, attorneys' fees and expenses), directly or indirectly, arising out
of, resulting from or otherwise in connection with the failure for any reason on
the part of Tenant to perform, observe or comply with any of the covenants,
conditions and obligations under this Lease to be performed, observed or
complied with by Tenant, and/or (ii) the failure for any reason of any
representation, warranty or covenant given by Tenant in connection with the
execution of this Lease by Landlord to be materially true, complete and
accurate, including, without limitation, any representation, warranty or
covenant given or made by Tenant under that certain Contract of Purchase and
Lease executed by and between Landlord or its predecessor-in-interest, as
purchaser, and Tenant or its predecessor-in-interest, as seller, respecting the
acquisition of the Leased Premises by Landlord and contemporaneously with the
consummation of which this Lease was executed, all of which representations,
warranties and covenants are hereby incorporated by reference herein this Lease.
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20. TAX APPEALS AND CONTESTS.
(a) Tenant shall have the right, at its cost and expense, to contest the
amount or validity, in whole or in part, of any Imposition of any kind by
appropriate proceedings diligently conducted in good faith, but no such contest
shall be carried on or maintained by Tenant after the time limit for the payment
of any Imposition unless the Tenant, at its option: (i) shall pay the amount
involved under protest; or (ii) shall procure and maintain a stay of all
proceedings to enforce any collection of any Imposition, together with all
penalties, interest, costs and expenses, by a deposit of a sufficient sum of
money, or by such undertaking, as may be required or permitted by law to
accomplish such stay, if any; or (iii) shall deposit with Landlord or the Ground
Lessor or any Superior Lessor or Mortgagee, as security for the performance by
the Tenant of its obligations hereunder with respect to such Impositions, such
security in amounts equal to such contested amount and such other security as
may be demanded by the Landlord or the Ground Lessor or any Superior Lessor or
Mortgagee to insure payment of such contested Imposition and all penalties,
interest, costs and expenses which may accrue during the period of the contest.
Upon the termination of any such proceedings, it shall be the obligation of
Tenant to pay the amount of such Imposition or part thereof, as finally
determined in such proceedings, the payment of which may have been deferred
during the prosecution of such proceedings, together with any costs, fees
(including counsel fees), interest, penalties or other liabilities in connection
therewith, whereupon the Landlord shall arrange to have returned to the Tenant,
with any interest (less an administrative fee of one (1%) percent per annum)
earned thereon and made available for such return, all amounts, if any, held by
or on behalf of Landlord which were deposited by the Tenant in accordance with
the provisions hereof.
(b) Tenant shall have the right, at its cost and expense, to seek a
reduction in the valuation of the Leased Premises as assessed for tax purposes
and to prosecute any action or proceeding in connection therewith. Provided
Tenant is not in default hereunder beyond any applicable notice and grace
periods, beyond any applicable notice and grace periods, Tenant shall be
authorized to collect any tax refund of any tax paid by Tenant obtained by
reason thereof and to retain the same (except for tax refunds for any period
prior to the date hereof).
(c) Landlord agrees that whenever Landlord's cooperation is required in
any of the proceedings brought by Tenant as aforesaid, Landlord will reasonably
cooperate therein, provided same shall not entail any cost, liability or expense
to Landlord and Tenant will pay, indemnify and save Landlord harmless of and
from, any and all liabilities, losses, judgments, decrees, costs and expenses
(including all reasonable attorneys' fees and expenses) in connection with any
such contest and will, promptly after the final settlement, fully pay and
discharge the amounts which shall be levied, assessed, charged or imposed or be
determined to be payable therein or in connection therewith, and Tenant shall
perform and observe all acts and obligations, the performance of which shall be
ordered or decreed as a result thereof. No such contest shall subject Landlord
or the Ground Lessor or any Superior Lessor or Mortgagee to the risk of any
material civil liability or the risk of any criminal liability and Tenant shall
give such reasonable indemnity or security to Landlord, any Superior Lessor and
any Mortgagee as may reasonably be demanded by any of them to insure compliance
with the foregoing provisions of this Section 20.
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21. SIGNS.
Tenant may, during the term of this Lease, upon obtaining any and all
necessary permits from governmental authorities, paint or erect and maintain, at
its cost and expense, signs of such dimensions and materials as it may
reasonably deem appropriate in or about the Leased Premises. Tenant shall remove
all such signs and any damage caused by such removal shall promptly be repaired
by Tenant, all at Tenant's sole cost and expense, upon the termination of its
occupancy of the Leased Premises.
22. SURRENDER OF PREMISES.
Except in the case of condemnation described in subsection 12(a), at the
expiration or sooner termination of the term of this Lease, Tenant shall
surrender the Leased Premises in good condition, reasonable wear and tear
excepted, and shall surrender all keys for the Leased Premises to Landlord at
the place then fixed for the payment of rent and shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the Leased Premises. Tenant
shall within thirty (30) days of such time remove all Tenant's Property and
shall repair any damage to the Leased Premises caused thereby, and any or all of
such property not so removed shall, at Landlord's option, become the exclusive
property of Landlord or be disposed of by Landlord, at Tenant's cost and
expense, without further notice to or demand upon Tenant. If the Leased Premises
be not surrendered as and when aforesaid, Tenant shall indemnify Landlord
against loss or liability resulting from the delay by Tenant in so surrendering
the Leased Premises including, without limitation, any claims made by any
succeeding occupant founded on such delay. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of this Lease.
23. BROKER.
Tenant represents and warrants to Landlord that it has not dealt with any
broker or person acting as broker, finder or salesperson in connection with this
Lease. The execution and delivery of this Lease by Landlord shall be conclusive
evidence that Landlord has relied upon the foregoing representation and
warranty. Tenant shall indemnify and hold Landlord harmless from and against any
and all claims for commission, fee or other compensation by any Person who has
dealt with Tenant in connection with this Lease and for any and all costs
incurred by Landlord in connection with such claims, including, without
limitation, reasonable attorneys' fees and disbursements. The provisions of this
Article 23 shall survive the Expiration Date.
24. "LANDLORD" DEFINED.
(a) The term "Landlord" as used in this Lease, means only the owner of the
Leased Premises for the time being, so that in the event of any sale or other
transfer of the Leased Premises, Landlord shall be and hereby is entirely freed
and relieved of all liabilities and obligations of Landlord hereunder, and it
shall be deemed without further agreement between the parties and any successor
of Landlord, that such successor has assumed and agreed to perform and observe
all liabilities and obligations of Landlord hereunder.
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(b) Notwithstanding anything contained herein to the contrary, it is
specifically understood and agreed that there shall be no personal liability on
any of Landlord's stockholder, members, partners, officers, directors, employees
or agent in respect of any of the terms, covenants, conditions or provisions of
this Lease, and in the event of a breach or default by Landlord of any of its
liabilities and obligations under this Lease, Tenant and any persons claiming
by, through or under Tenant shall look solely to the equity of the Landlord in
the Leased Premises for the satisfaction of Tenant's and such persons' remedies
and claims for damages.
25. TENANT'S PAYMENTS.
Each and every payment and expenditure, other than Minimum Rental and
other than costs for any additions, alterations, repairs, replacements and
improvements to the Improvements, which are required to be paid by Tenant under
this Lease shall be deemed to be additional rent hereunder, whether or not the
provisions requiring payment of such amounts specifically so state, and shall be
payable, unless otherwise provided in this Lease, on demand by Landlord and in
the case of the non-payment of any such amount, Landlord shall have, in addition
to all of its other rights and remedies, all of the rights and remedies
available to Landlord hereunder or by Laws in the case of non-payment of Minimum
Rental. Unless expressly otherwise provided in this Lease, the performance and
observance by Tenant of all the terms, covenants and conditions of this Lease to
be performed and observed by Tenant hereunder shall be performed and observed by
Tenant at Tenant's sole cost and expense. Tenant agrees to pay or reimburse
Landlord, on demand, for any reasonable costs and expenses that may be incurred
by Landlord or any Superior Lessor or Mortgagee in connection with its or their
review of any instrument or documents requested by Tenant pursuant to this Lease
or relating to the Leased Premises including but not limited to the costs and
expenses of making such investigations as Landlord and said entities shall deem
appropriate and the reasonable legal fees and disbursements of Landlord and said
entities and their counsel. All payments of Minimum Rental hereunder shall be
made to Landlord by check, as Landlord may direct, at the address set forth in
the beginning hereof unless otherwise provided herein or at such other address
as may be designated by Landlord, or by wire transfer of federal funds to an
account or accounts designated by Landlord.
26. RIGHT TO CURE DEFAULTS.
If Tenant shall fail to fully comply with any of its liabilities or
obligations under this Lease (including, without limitation, its obligation to
make repairs, maintain various policies of insurance, comply with all Laws and
pay all Impositions and bills for utilities), then three (3) days after the
giving of written notice of such breach to Tenant (except that prior written
notice shall not be required in the event of an emergency) Landlord shall have
the right, at its option, to cure such breach at Tenant's cost and expense.
Tenant agrees to reimburse Landlord (as additional rent) for all losses, costs,
damages and expenses resulting therefrom or incurred in connection therewith,
together with interest thereon from demand at the Default Rate, promptly upon
demand.
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27. COVENANT AGAINST LIENS.
(a) If, because of any act or omission (or alleged act or omission) of
Tenant, any mechanic's or other lien, charge or order for the payment of money
or other encumbrances shall be filed or imposed against Landlord, the Ground
Lessor, any Superior Lessor, any Mortgagee and/or any portion of the Leased
Premises (whether or not such lien, charge, order or encumbrance is valid or
enforceable as such), Tenant shall, at its cost and expense, cause same to be
discharged of record or bonded within thirty (30) days after notice to Tenant of
the filing or imposition thereof; and Tenant shall indemnify and defend Landlord
against and save Landlord harmless from all losses, costs, damages, expenses,
liabilities, suits, penalties, claims, demands and obligations, including,
without limitation, reasonable counsel fees, resulting therefrom. If Tenant
fails to comply with the foregoing provisions, Landlord shall have the option in
addition to its other rights or remedies of discharging or bonding any such
lien, charge, order or encumbrance, and Tenant agrees to reimburse Landlord (as
additional rent) for all losses, costs, damages and expenses resulting therefrom
or incurred in connection therewith, together with interest thereon (at a rate
equal to the "Default Rate") promptly upon demand.
(b) All materialmen, contractors, artisans, mechanics, laborers and any
other persons now or hereafter furnishing any labor, services, materials,
supplies or equipment to Tenant with respect to any portion of the Leased
Premises, are hereby charged with notice that they must look exclusively to
Tenant to obtain payment for same. Notice is hereby given that Landlord shall
not be liable for any labor, services, materials, supplies or equipment
furnished or to be furnished to the Tenant upon credit, and that no mechanic's
or other lien for any such labor, services, materials, supplies or equipment
shall attach to or affect the estate or interest of Landlord in and to the
Leased Premises.
28. WAIVER OF REDEMPTION.
It is understood by Tenant that Landlord is unwilling to enter into any
lease of the Leased Premises unless the statutory rights of redemption after a
dispossess proceeding and to a second further trial after an action in ejectment
shall be waived by Tenant (unless such second or further trial results from an
Appellate Court decision reversing the decision of the first trial) and Tenant
being willing to waive all such rights of redemption conferred by statute in
order that it may secure a lease, Tenant covenants and agrees that in the event
of an action for ejectment or any other action or proceeding to dispossess,
terminating this Lease, the right of redemption provided or permitted by any
Laws and the right to any second or further trial provided or permitted by any
laws, shall be and hereby are expressly waived (unless such second or further
trial results from an Appellate Court decision reversing the decision of the
first trial). Tenant hereby expressly waives the service of any notice in
writing of intention to reenter as provided for or may be provided for in and by
the laws of the State in which the Leased Premises is located, as the same may
from time to time exist.
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29. LANDLORD'S AND TENANT'S CERTIFICATES.
Landlord and Tenant shall, each without charge at any time and from time
to time, within ten (10) days after request by the other party, certify by
written instrument, duly executed, acknowledged and delivered to the Ground
Lessor, any Superior Lessor, Mortgagee, assignee of any Mortgages or purchaser,
or any proposed Mortgagee, or proposed assignee or sub-tenant of Tenant or any
other person, firm or corporation specified by Landlord or Tenant:
(a) That this Lease is unmodified and in full force and effect (or, if
there has been modification, that the same is in full force and effect as
modified and stating the modifications);
(b) Whether or not there are then existing any breaches or defaults by the
other party under any of the terms of this Lease and specifying such breach or
default or any setoffs or defenses against the enforcement of any of the
agreements, terms, covenant or conditions of this Lease upon the part of the
Landlord or Tenant, as the case may be, to be performed or complied with (and,
if so, specifying the same and the steps being taken to remedy the same); and
(c) The dates, if any, to which the rental(s) and other charges under this
Lease have been paid in advance.
30. WAIVER OF TRIAL BY JURY.
Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other, upon any matters
whatsoever arising out of or in any way connected with this Lease, Tenant's use
or occupancy of the Leased Premises, and/or any claim of injury or damage. It is
further mutually agreed that in the event Landlord commences any summary
proceeding for non-payment of Minimum Rental or additional rent, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding.
31. NET LEASE.
This is an absolutely net lease, and, except as otherwise specifically
provided in Section 11 or 12 of this Lease, this Lease shall not terminate nor
shall Tenant have any, right to terminate this Lease; nor shall Tenant be
entitled to any abatement, deduction, deferment, suspension or reduction of, or
setoff, defense or counterclaim against, any rentals, charges, or other sums
payable by Tenant under this Lease; nor shall the respective obligations of
Landlord and Tenant be otherwise affected by reason of damage to or destruction
of the Leased Premises from whatever cause, any taking by condemnation, eminent
domain or by agreement between Landlord and those authorized to exercise such
rights, the lawful or unlawful prohibition of Tenant's use of the Leased
Premises, the interference with such use by any persons, corporations or other
entities, or by reason of any eviction by paramount title, or by reason of
Tenant's acquisition of ownership of the Leased Premises otherwise than pursuant
to an express provision of this Lease, or by reason of any default or breach of
any warranty by Landlord under this Lease or any other agreement between
Landlord and Tenant, or to which Landlord and Tenant are parties, or for any
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other cause whether similar or dissimilar to the foregoing, any Laws to the
contrary notwithstanding; it being the intention that the obligations of
Landlord and Tenant hereunder shall be separate and independent covenants and
agreements and that the Minimum Rental, additional rent and all other charges
and sums payable by Tenant hereunder shall continue to be payable in all events
unless the obligations to pay the same shall be terminated or abated pursuant to
the express provisions of this Lease; and Tenant covenants and agrees that it
will remain obligated under this Lease in accordance with its terms, and that it
will not take any action to terminate, cancel, rescind or void this Lease,
notwithstanding the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding up or other proceedings
affecting Landlord or any assignee of, or successor to Landlord, and
notwithstanding any action with respect to this Lease that may be taken by a
trustee or receiver of Landlord or any assignee of, or successor to, Landlord or
by any court in any such proceeding.
32. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Any notice, exercise of option or election, communication,
request or other document or demand required or permitted under this Lease shall
be in writing and shall be given to Landlord or Tenant by Federal Express or
other similar national, reputable, overnight courier which provides proof of
delivery, registered or certified mail, return receipt requested, postage
prepaid, to the parties at the address listed below:
(i) to the Landlord as follows:
WM Realty Management, LLC
One Bella Drive (a/k/a 00 Xxxx Xxxx Xxxx)
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Manager
And Copy to:
Katsky Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx P.C.
(ii) to the Tenant as follows:
Ranor, Inc.
One Bella Drive (a/k/a 00 Xxxx Xxxx Xxxx)
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, President
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And Copy to:
Katsky Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx P.C.
Either party may, from time to time, change the address at which such written
notices, exercise of options or elections, communications, requests, or other
documents or demands are to be mailed, by giving the other party(ies) written
notice of such changed address, pursuant to the terms hereinabove set forth.
Tenant shall send copies of any and all said notices and other communications
addressed to Landlord, to any Mortgagees and Superior Lessors, who shall be
designated by Landlord, in the same manner as notices are required to be sent to
Landlord, and at such addresses as Landlord may from time to time designate by
notice to Tenant. Contemporaneously with the execution of this Lease, Landlord
is providing Tenant with the name, address and contact person for the Mortgagee
with respect to the Leased Premises, and Tenant acknowledges receipt of such
notice.
(b) RELATIONSHIP OF THE PARTIES. It is the intention of the parties hereto
to create the relationship of Landlord and Tenant, and no other relationship
whatsoever, and unless expressly otherwise provided herein, nothing herein shall
be construed to make the parties hereto liable for any of the debts, liabilities
or obligations of the other party.
(c) APPLICABILITY. Whenever a provision in this Lease is stated to apply
to the term of this Lease, or words of similar import, the same shall be deemed
to mean and include any Option Term as well, unless specific reference is made
to such provisions as having applicability only to all or any portions of the
Initial Term and/or any Option Term.
(d) GOVERNING LAWS. This Lease shall be governed exclusively by the
provisions hereof and by, and shall be construed in accordance with, the laws of
the Commonwealth of Massachusetts.
(e) INVALIDITY OF PARTICULAR PROVISION. If any term or provision of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term and provision of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
(f) WAIVER. Failure on the part of either party to complain of any action
or non-action on the part of the other party, no matter how long the same may
continue, shall never be deemed to be a waiver by either party of any of its
rights hereunder. Acceptance by Landlord of Minimum Rental, additional rent or
any other charges paid by Tenant hereunder shall not be or be deemed to be a
waiver by Landlord of any default by Tenant, whether or not Landlord knows of
such default. No waiver at any time of any of the provisions hereof by either
party shall be construed as a waiver of any of the other provisions hereunder
and a waiver at any time of any of the provisions hereof shall not be construed
as a waiver at any subsequent time of the same provisions.
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(g) COUNTERPARTS. This Lease may be executed in several counterparts, each
of which shall be deemed an original, and such counterparts shall constitute but
one and the same instrument.
(h) SOLE AGREEMENT. This Lease sets forth all the promises, inducements,
agreements, conditions and understandings between Landlord and Tenant relative
to the demise of the Leased Premises, and there are no promises, agreements,
conditions or understandings, either oral or written, express or implied between
them, other than as herein incorporated or set forth with respect to such
demise. Except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant, unless reduced to writing and signed by the party(ies) to be charged
therewith.
(i) SHORT FORM OF LEASE. A short form of Lease for recording purposes
only, in form satisfactory to Landlord's counsel, shall, simultaneously with the
execution hereof, and at any time hereafter upon the request of Landlord, be
executed by Landlord and Tenant in recordable form.
(j) CAPTIONS. The captions of the several Sections and subsections of this
Lease and table of contents are not a part of the context hereof and shall be
ignored in construing this Lease. They are intended only as aids in locating
various provisions hereof.
(k) SUCCESSORS AND ASSIGNS. Except as may be expressly otherwise provided
herein, the terms, covenants and conditions hereof shall inure to the benefit of
and shall be binding upon Landlord and its successors and assigns and the terms,
covenants and conditions hereof shall inure to the benefit of and shall be
binding upon Tenant and its successors and permitted assigns.
(l) NO MERGER. There shall be no merger of this Lease, or the leasehold
estate created by this Lease, with any other estate or interest in the Leased
Premises, or any part thereof, by reason of the fact that the same person, firm,
corporation or other entity may acquire or own or hold, directly or indirectly,
(i) this Lease or the leasehold estate created by this Lease, or any interest in
this Lease or in any such leasehold estate, and (ii) any such other estate or
interest in the Leased Premises or any part thereof; and no such merger shall
occur unless and until all persons, corporations, firms and other entities
having an interest (including a security interest) in (i) this Lease or the
leasehold estate created by this Lease; and (ii) any such other estate or
interest in the Leased Premises or any part thereof, shall join in a written
instrument effecting such merger and shall duly record the same.
(m) RIGHTS OF SUPERIOR LESSOR. Any rights provided herein for the benefit
of any Mortgagees shall apply with equal force and effect for the benefit of the
Ground Lessor and any Superior Lessors as if expressly so stated in each
instance.
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(n) OWNERSHIP OF LEASED PREMISES. Tenant acknowledges that the Leased
Premises are the property of Landlord and that Tenant has only the right to the
possession and use thereof upon the terms, covenants and conditions set forth in
this Lease.
(o) ENCROACHMENTS, RESTRICTIONS, ETC. If any of the Improvements shall, at
any time during the Term hereof, encroach upon any property, street or right of
way adjoining or adjacent to the Leased Premises, or shall violate the
agreements or conditions contained in any restrictive covenant or other
agreement affecting the Leased Premises, or any part thereof, or shall hinder or
obstruct any easement or right-of-way to which the Leased Premises are subject,
or shall impair the rights of others under such easement or right-of-way, then
promptly upon the request of the Landlord at the behest of any persons affected
by any such encroachment, violation, hindrance, obstruction or impairment,
Tenant shall, at its cost and expense, either (i) obtain valid and effective
waivers or settlements of all claims, liabilities and damages resulting from
each such encroachment, violation, hindrance, obstruction or impairment, whether
the same shall affect Landlord or Tenant, or (ii) make such changes in the
Improvements and take such other actions as shall be necessary to remove such
encroachments, hindrances or obstructions and to end such violations or
impairments, including, if necessary, but only with Landlord's prior written
consent, the alteration or removal of any of the Improvements. Any such
alteration or removal consented to by Landlord shall be made by Tenant in
accordance with the requirements of Section 9, above. Tenant's obligations under
this subsection 32(o) shall survive the expiration or sooner termination of this
Lease.
(p) ACCEPTANCE OF SURRENDER. No surrender to Landlord of this Lease or of
the Leased Premises, or any part thereof, or of any interest therein, shall be
valid or effective unless agreed to and accepted in writing by Landlord and
consented to in writing by any and all Mortgagees and the Ground Lessor and any
Superior Lessors, and no act or omission by Landlord or any representative or
agent of Landlord, other than such a written acceptance by Landlord, consented
to as aforesaid, shall constitute an acceptance of any such surrender.
(q) CONSENT BY LANDLORD. Wherever in this Lease Landlord agrees not to
unreasonably withhold its consent or approval, or words of like import, Tenant
agrees that it shall not be unreasonable for Landlord to withhold, such consent
or approval (i) if by granting such consent or approval Landlord shall be in
violation of any Mortgage, the Ground Lease or any Superior Lease, or (ii) the
Ground Lessor, and Superior Lessor or any Mortgagee shall not give its consent
or approval thereto where its consent or approval is required or where the
Ground Lessor, or any Superior Lessor or any Mortgagee is entitled to give its
consent or approval by the terms of the Ground Lease, any Superior Lease or its
Mortgage. Anything herein contained to the contrary notwithstanding, any consent
or approval given by Landlord in or pursuant to the terms of this Lease with
respect to any act or matter to which the Ground Lessor, any Superior Lessor or
a Mortgagee is entitled by the terms of the Ground Lease, any Superior Lease or
its Mortgage to consent or approve shall be of no force or effect, and shall be
deemed to have been withheld, unless accompanied by the written consent or
approval of the Ground Lessor, any Superior Lessor or Mortgagee. In the event
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that a claim or adjudication is made that Landlord has acted unreasonably or
unreasonably delayed acting in any case where by law or under this Lease it has
an obligation to act reasonably or promptly, Landlord shall not be liable for
any monetary damages, and Tenant's remedies shall be limited to injunctive
relief or declaratory judgment. Any dispute relating to the withholding or delay
of consent by Landlord may be determined, at Tenant's option, under the
Expedited Procedures provisions of the Commercial Arbitration Rules of the
American Arbitration Association (presently Rules 53 through 57); provided,
however, that with respect to any such arbitration, (i) the list of arbitrators
referred to in Rule 54 shall be returned within five (5) business days from the
date of mailing, (ii) the parties shall notify the American Arbitration
Association, by telephone, within four (4) days of any objections to the
arbitrator appointed and will have no right to object if the arbitrator so
appointed was on the list submitted by the American Arbitration Association and
was not objected to in accordance with the second sentence of Rule 54, (iii) the
Notice of Hearing referred to in Rule 55 shall be four (4) days in advance of
the hearing, (iv) the hearing shall be held within seven (7) days after the
appointment of the arbitrator, and (v) the arbitrator shall have no right to
award damages. Judgment upon any decision rendered in any arbitration held
pursuant to this Article shall be final and binding upon Landlord and Tenant,
whether or not a judgment shall be entered in any Court. Each party shall pay
its own counsel fees and expenses, if any, in connection with any arbitration
under this Article, including the expenses and fees of any arbitrator selected
by it in accordance with the provisions of this Article, and the parties shall
share all other expenses and fees of any such arbitration. The arbitrators shall
be bound by the provisions of this Lease, and shall not add to, subtract from or
otherwise modify such provisions.
(r) HOLDOVER. If Tenant should remain in occupancy of the Leased Premises
after the expiration of the lease term, Tenant shall (i)for the first sixty days
of such occupancy, pay Minimum Rental equal to one hundred fifty (150%) percent
and thereafter two hundred (200%) percent of the Minimum Rental payable
hereunder for the last year of the Initial Term or the Option Term, as the case
may be, prorated for the period that Tenant remains in occupancy, (ii) pay all
additional rent required hereunder, and (iii) otherwise comply with the terms of
this Lease. Nothing herein is intended to grant Tenant the option to remain in
occupancy at such rental or limit Landlord's remedies in such event.
(s) All sums of money or charges of any kind payable by Tenant to Landlord
pursuant to this Lease, other than Minimum Rental are items of "additional rent"
and Landlord shall have the same rights with respect to the collection thereof
and the enforcement of payment thereof as Landlord has with respect to the
payment of Minimum Rental.
33. LATE CHARGES.
(a) Tenant hereby acknowledges that late payment by Tenant to Landlord of
rent and other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be difficult to
ascertain. Such costs include, but are not limited to, processing and accounting
charges, and late charges which may be imposed on Landlord by the term of any
mortgage or trust deed encumbering the Leased Premises. Accordingly, if any
installment of rent or any other sum due from Tenant shall not be received by
Landlord or Landlord's designee within five (5) days after the date on which
such sum is due, Tenant shall pay to Landlord a late charge equal to 6% of such
overdue amount. The parties hereby agree that such late charge represents a fair
and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
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(b) Any amount due Landlord not paid within ten (10) days after the date
on which such amount is due shall bear interest from the due date of such amount
at a rate (the "Default Rate") equal to the lesser of (i) the maximum rate of
interest permitted under the laws of the Commonwealth of Massachusetts or (ii)
the greater of (A) eighteen percent (18%) per annum or (B) the rate per annum
which is four percent (4%) above the prime rate of Citibank, N.A. Payment of
such interest shall not excuse or cure any default by Tenant under this Lease.
34. ENVIRONMENTAL LAWS.
The term "Environmental Laws" shall mean all Federal, State and local laws
including statutes, regulations, ordinances, codes, rules and other governmental
restrictions and requirements relating to the discharge of air pollutants, water
pollutants or process waste water or otherwise relating to the environment or
hazardous substances including, but not limited to, the Federal Solid Waste
Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the
Federal Resource Conservation and Recovery Act of 1976 ("RCRA"), the Federal
Comprehensive Environmental Responsibility Cleanup and Liability Act of 1980
("CERCLA"), regulations of the Environmental Protection Agency, regulations of
the Nuclear Regulatory Agency, and regulations of any federal or state
department of natural resources or environmental protection agency now or at any
time hereafter in effect.
Tenant covenants and agrees to comply in all material respects with
applicable Environmental Laws and provide to Landlord, immediately upon receipt,
copies of any correspondence, notice, pleading, citation, indictment, complaint,
order, decree, or other document from any source asserting or alleging a
circumstance or condition which requires or may require a financial contribution
by Tenant or Landlord or a cleanup, removal, remedial action, or other response
by or on the part of Tenant or Landlord under Environmental Laws or which seeks
damages or civil, criminal or punitive penalties from Tenant or Landlord for an
alleged violation of Environmental Laws. In the event of any such circumstance,
Tenant agrees, at its expense and at the request of Landlord to permit an
environmental audit solely for the benefit of Landlord, the Ground Lessor, the
Superior Lessors or the Mortgagees, to be conducted by Landlord or the Ground
Lessor, the Superior Lessors or the Mortgagees or an independent agent selected
by Landlord or the Ground Lessors, the Superior Lessors or the Mortgagees and
which may not be relied upon by Tenant for any purpose. This provision shall not
relieve Tenant from conducting its own environmental audits or taking any other
steps necessary to comply with Environmental Laws. If in the opinion of Landlord
or the Ground Lessor or any Superior Lessor or a Mortgagee there exists any
uncorrected violation by Tenant of an Environmental Law or any condition which
requires, or may require, a cleanup, removal or other remedial action by the
Tenant under any Environmental Laws, and such cleanup, removal or other remedial
action is not completed within ninety (90) days from the date of written notice
from Landlord to Tenant, the same shall at the option of the Landlord constitute
an Event of Default.
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Tenant shall indemnify and hold Landlord, the Ground Lessor, any Superior
Lessor and any Mortgagee harmless from and against, and the Tenant hereby agrees
to reimburse Landlord, the Ground Lessor, any Superior Lessor and any Mortgagee
with respect to, any and all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including attorneys, fees and court costs) of
any and every kind or character, known or unknown, fixed or contingent, asserted
against, incurred by or required to be paid by Landlord, the Ground Lessor, any
Superior Lessor and any Mortgagee at any time and from time to time from and
after the Commencement Date of this Lease by reason of or arising out of the
ownership, construction, occupancy, operation, use or maintenance of the Leased
Premises resulting in or giving rise to a breach or violation of any
Environmental Laws. This indemnity applies, without limitation, to any violation
of any Environmental Law and any and all matters arising out of any act,
omissions, event or circumstance existing or occurring (including without
limitation, the presence on the Leased Premises or release from the Leased
Premises of hazardous substances or solid waste disposed of or otherwise
released, regardless of whether the act, omission, event or circumstance
constituted a violation of any Environmental Law at the time of its existence or
occurrence. The terms "hazardous substance" and "release" shall have the
meanings specified in CERCLA and the terms "solid waste" and "disposed" shall
have the meanings specified in RCRA. However, in the event either CERCLA or RCRA
is amended so as to broaden the meaning of any term defined thereby, such
broader meaning shall apply subsequent to the effective date of the amendment
and provided further, to the extent that the laws of the Commonwealth of
Massachusetts establish a meaning for "hazardous substance", "release", "solid
waste", or "disposed" which is broader than that specified in either CERCLA or
RCRA, such broader meaning shall apply.
35. [INTENTIONALLY DELETED]
36. TRANSFER TAXES.
Tenant agrees that Tenant shall be liable for any and all state and local
transfer taxes, payable in connection with this Lease, including, without
limitation, by virtue of the fact that this Lease is a lease coupled with the
granting of the Option to Purchase. Tenant agrees to deliver to Landlord,
simultaneously with the execution of this Lease, applicable state and local
transfer tax returns duly executed and acknowledged, together with a check or
checks for the applicable transfer taxes. Tenant agrees to indemnify and hold
Landlord harmless from and against any losses, costs or expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred by
Landlord as a result of Tenant's failure to pay the applicable transfer taxes .
37. OPTION TO PURCHASE.
(a) Landlord hereby grants Tenant the option the purchase (the "Option to
Purchase") the Entire Parcel, such being Landlord's entire ownership position
including assignment of underlying leases, exercisable at any time beginning one
year and one day from the date hereof and extending through the Term at
Appraised Value. Said Option may be exercised only if Tenant is in compliance in
all material respects with the terms and conditions of this Lease at the time of
exercise. Appraisals of the Premises shall be obtained by two local recognized
MAI appraisers, one chosen by Tenant and one chosen by Landlord, who shall value
the Premises at fair market value. Once the appraisals are complete, the parties
shall compare the two valuations. If the valuations are within ten percent (10%)
of each other, then the valuation of the Premises shall be the average of the
two appraisals. If the valuations are more than ten percent [10%] of each other,
and the parties cannot agree upon a valuation, then the two appraisers appointed
above shall appoint a third MAI appraiser to appraise the Premises at fair
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market value. Once the third appraisal is completed, the Appraised Value of the
Premises shall be the average of the appraisals. Notwithstanding the foregoing,
in the event that all or any part of the Entire Parcel is subject to a first
Mortgage, if required by the Mortgagee, the purchase price payable pursuant to
the Option to Purchase shall not be less than (i) Landlord's costs associated
with the closing of the sale pursuant to the Option to Purchase and (ii) the
principal, the accrued interest and any other sums that may then be due and
owing to Mortgagee under the Mortgage (including Mortgagee's reasonable
attorneys' fees) on the intended date of closing, as set forth in the Exercise
Notice, as hereinafter defined. The Option to Purchase is exercisable upon
notice (the "Exercise Notice") given by Tenant to Landlord, not less than six
months prior to the intended date of closing. If Tenant elects to exercise the
Option to Purchase, the Entire Parcel shall be conveyed by Landlord to Tenant by
Bargain & Sale Deed with Covenants against Grantor's Acts (or equivalent) and
the Entire Parcel will be delivered at the closing thereof in its then "as-is"
condition, without representation or warranty by Landlord, and subject to all
then-existing title encumbrances, except that Landlord agrees that Landlord will
discharge all mortgages, liens and other title encumbrances that are in a
liquidated amount only if and to the extent the same encumber the Entire Parcel
other than due to the acts or omissions of Tenant or Tenant's agents, servants
and employees. The purchase price shall be paid by good certified check of
Tenant or official check issued by any bank, savings bank, trust company or
savings and loan association having a banking office in the Commonwealth of
Massachusetts, unendorsed and payable to the order of Landlord, or as Landlord
may otherwise direct. The closing will take place at the offices of Landlord or
Landlord's attorneys. The Option to Purchase is personal to Tenant only and may
not be assigned by Tenant. Tenant agrees to pay all state and local transfer
taxes payable in connection with the transfer of the Entire Parcel pursuant to
the Option to Purchase.
(b) Notwithstanding the foregoing provisions of this Paragraph 37, if on
the date that Tenant exercises the Option to Purchase, or if on any subsequent
date up to and including the date upon which the closing on the sale of the
Entire Parcel occurs, there is an Event of Default (beyond any cure period) of
the nature which would adversely affect Landlord subsequent to the transfer of
the Entire Parcel to Tenant, Tenant's exercise of the Option to Purchase shall,
at the option of Landlord exercised by written notice to Tenant, be rendered
null and void and shall be of no further force and effect and Tenant shall have
no other additional right to exercise such Option to Purchase, which shall be
deemed waived by Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed and delivered
this Lease as of the day and year first above written.
Landlord:
WM REALTY MANAGEMENT, LLC
By:
------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
Tenant:
RANOR, INC.
By:
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman
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EXHIBIT A
Leased Premises - Legal Description
Beginning at a Massachusetts Highway Bound on the northeasterly sideline of
Massachusetts Xxxxxxx Xxxxx 0, the same being a point on the southwesterly
line of the property herein described:
Thence running N 67 degrees 11' 12" E a distance of one hundred eighty three and
14/100 feet (183.14') to a point;
Thence running along a curve to the right with a radius of nine thousand, six
hundred eighty and 00/100 feet (9,680') and an arc length of three hundred
thirty eight and 84/100 feet (338.84') to a point;
Thence turning and running S 51 degrees 15' 52" E a distance of eight Hundred
Five and 00/100 feet (805.00') to a point, the previous three courses
running along said Route 2;
Thence turning and running N 43 degrees 29' 19" E a distance of three hundred
seventy three and 45/100 feet (373.45') to a point;
Thence turning and running N 43 degrees 20' 01" W a distance of four hundred ten
and 55/100 feet (410.55') to a point;
Thence turning and running N 43 degrees 42' 52" W a distance of three hundred
fifty two and 99/100 feet (352.99') to a point;
Thence turning and running N 44 degrees 39' 47" W a distance of one hundred
sixty eight and 27/100 feet (168.27') to a point;
Thence turning and running N 43 degrees 32' 02" E a distance of three hundred
forty two and 95/100 feet (342.95') to a point;
Thence turning and running S 47 degrees 05' 15" E a distance of one hundred
thirty two and 91/100 feet (132.91') to a point;
Thence turning and running N 41 degrees 21' 42" E a distance of one hundred ten
and 29/100 feet (110.29') to a point;
Thence turning and running S 56 degrees 08' 09" E a distance of two hundred
twenty and 97/100 feet (220.97') to a point;
Thence turning and running S 40 degrees 26' 57" E a distance of three hundred
thirty five and 45/100 feet (335.45') to a point, the previous ten courses
running along land now or formerly of Xxxxxxxxx Xxx Xxxxx;
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Thence turning and running N 41 degrees 38' 44" E a distance of two hundred
ninety one and 02/100 feet (291.02') along land now or formerly of Xxxxxxx
and Xxxxxx Xxxxxx to a point;
Thence turning and running N 29 degrees 33' 07" W a distance of two hundred five
and 15/100 feet (205.15') to a point;
Thence turning and running N 40 degrees 35' 11" W a distance of one hundred four
and 07/100 feet (104.07') to a point;
Thence turning and running N 42 degrees 28' 54" W a distance of one hundred
twenty nine and 16/100 feet (129.16') to a point;
Thence turning and running N 35 degrees 39' 06" W a distance of one hundred
eighty eight and 65/100 feet (188.65') to a point;
Thence turning and running N 31 degrees 06' 51" W a distance of two hundred
fifty one and 14/100 feet (251.14') to a point;
Thence turning and running N 27 degrees 26' 04" W a distance of sixty one and
15/100 feet (61.15') to a point;
Thence turning and running N 22 degrees 54' 11" W a distance of one hundred
forty eight and 62/100 feet (148.62') to a point;
Thence turning and running N 26 degrees 52' 49" W a distance of one hundred
eleven and 39/100 feet (111.39') to a point, the previous eight courses
running along the westerly sideline of Town Farm Road;
Thence turning and running S 66 degrees 40' 26" W a distance of eighty nine and
96/100 feet (89.96') to a point;
Thence turning and running N 45 degrees 34' 34" W a distance of thirty two and
83/100 feet (32.83') to a point;
Thence turning and running N 55 degrees 49' 30" W a distance of one hundred
thirty five and 24/100 feet (135.24') to a point;
Thence turning and running N 63 degrees 22' 02" W a distance of one hundred
seven and 27/100 feet (107.27') to a point;
Thence turning and running N 15 degrees 12' 22" W a distance of one hundred
ninety two and 38/100 feet (192.38') to a point;
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Thence turning and running N 17 degrees 50' 41" W a distance of seventy seven
and 59/100 feet (77.59') to a point;
Thence turning and running N 17 degrees 27' 14" W a distance of thirty two and
14/100 feet (32.29') to a point, the previous seven courses running along
land now or formerly of Xxxx and Xxxxx Xxxxxx:
Thence turning and running N 52 degrees 28' 25" W a distance of one hundred two
and 96/100 feet (102.96') to a point;
Thence turning and running N 40 degrees 22' 19" W a distance of two hundred
sixty one and 03/100 feet (261.03') to a point, the previous two courses
running along land now or formerly of Xxxxxxx Xxxxx, III.;
Thence turning and running S 42 degrees 58' 02" W a distance of ninety five and
70/100 feet (95.70') along land now or formerly of Xxxxx Xxxxxxx, to a
point;
Thence turning and running S 45 degrees 45' 11" W a distance of five hundred
seventy nine and 39/100 feet (579.39') along land now or formerly of Von
Xxxx and Xxxxx Xxxxx, to a point;
Thence turning and running S 42 degrees 41' 35" W a distance of sixty six and
93/100 feet (66.93') to a point;
Thence turning and running S 47 degrees 25' 31" E a distance of three hundred
eighty and 54/100 feet (380.54') to a point, the previous two courses
running along land now or formerly of Von Xxxx and Xxxxx Xxxxx and land
now or formerly of Xxxxxxx Xxxxx;
Thence turning and running S 44 degrees 18' 02" W a distance of two hundred
eighty four and 79/100 feet (284.79') to a point;
Thence turning and running S 43 degrees 45' 40" W a distance of two hundred
ninety seven and 48/100 feet (297.48') to a point, the previous two
courses running along land now or formerly of Xxxx Xxxxxxxx Trustee;
Thence turning and running S 43 degrees 11' 23" W a distance of two hundred
forty three and 10/100 feet (243.10') along land now or formerly of Xxxxx
Xxxxxxx, to a point;
Thence turning and running S 28 degrees 07' 12" W a distance of three hundred
twenty six and 61/100 feet (326.61') along land now or formerly of Xxxxxx
and Xxxxxxx Xxxxx, to a point on the northeasterly sideline of said Route
2;
Thence turning and running S 53 degrees 12' 03" E a distance of one hundred
ninety seven and 00/100 feet (197.00') to a point;
-40-
Thence turning and running N 36 degrees 47'57" E a distance of ten and 00/100
feet (10.00') to a point;
Thence turning and running N 53 degrees 12' 03" E a distance of two hundred
thirty eight and 95/100 feet (238.95') to a point;
Thence turning and running along a curve to the left with a radius of nine
thousand eight hundred twenty five and 00/100 feet (9825.00') with an arc
length of sixty one and 05/100 feet (61.05') to a point;
Thence turning and running S 36 degrees 47' 57" W a distance of ten and 00/100
feet (10.00') to a point;
Thence turning and running along a curve to the left with a radius of nine
thousand eight hundred thirty five and 00/100 feet (9835.00') with an arc
length of one hundred ninety eight and 00/100 feet (198.00') to the point
of beginning. The previous six courses running along said Route 2.
Above locus is subject to and with the benefit of any and all easements, rights,
restrictions and encumbrances of record in so far as the same are still in
force and applicable.
The parcel herein described contains 2,662,834 square feet (61.1303 acres).
Said locus is shown on a plan entitled "Plan of Property for Xxxxxx X.
Xxxxxxxxx, Westminster, Mass." dated June 1973 and revised August 1973, by
Xxxxx X. Xxxxx, C.E., and recorded with Worcester Northern District
Registry of Deeds in Plan Book 180, Page 21. For Xxxxxxxxx title see deed
of Xxxxxxxx Xxxxxxxxx and Xxxx X. Xxxxxxxx to Xxxxxx X. Xxxxxxxxx and
Bella X. Xxxxxxxxx dated July 19, 1973 and recorded in Worcester Northern
District Registry of Deeds Book 1115, Page 4 and Deed of Xxxx X. Xxxxx,
Trustee of Xxxxx Realty Trust to Xxxxxx X. Xxxxxxxxx and Bella X.
Xxxxxxxxx dated July 7, 1973 and recorded in Worcester Northern District
Registry of Deeds, Book 1114, Page 597.
LESS AND EXCEPTING THE FOLLOWING:
Beginning at the southwesterly corner of said parcel on the westerly side of
Town Farm Road, at the northeasterly corner of land of Xxxxxxx X. and
Xxxxxx X. Xxxxxx:
Thence running by said Xxxxxx land S 41 degrees 38' 44" W, 291.02 feet to a bolt
in a rock at land of Xxxxxxxxx Xxx Xxxxx Xxxxxx;
Thence turning and running by said Xxxxx Xxxxxx land N 40 degrees 26' 57" W,
335.45 feet;
Thence turning and running still along said Xxxxx Xxxxxx land N 56 degrees 08'
09" W, 170.00 feet to other land of WM Realty Management, LLC;
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Thence turning and running N 59 degrees 53' 01" E, 369.94 feet along said WM
Realty Management LLC land to the westerly side of Town Farm Road;
Thence turning and running S 35 degrees 39' 06" E, 21.00 feet;
Thence turning and running S 42 degrees 28' 54" E, 129.16 feet;
Thence turning and running S 40 degrees 35' 11" E, 104.07 feet;
Thence turning and running S 29 degrees 33' 07" E, 205.15 feet to the point of
beginning, said last 4 courses along the westerly side of Town Farm Road.
Containing 154,601 sq. ft. or 3.55 acres.
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EXHIBIT B
Entire Parcel - Legal Description
Beginning at a Massachusetts Highway Bound on the northeasterly sideline of
Massachusetts Xxxxxxx Xxxxx 0, the same being a point on the southwesterly
line of the property herein described:
Thence running N 67 degrees 11' 12" E a distance of one hundred eighty three and
14/100 feet (183.14') to a point;
Thence running along a curve to the right with a radius of nine thousand, six
hundred eighty and 00/100 feet (9,680') and an arc length of three hundred
thirty eight and 84/100 feet (338.84') to a point;
Thence turning and running S 51 degrees 15' 52" E a distance of eight Hundred
Five and 00/100 feet (805.00') to a point, the previous three courses
running along said Route 2;
Thence turning and running N 43 degrees 29' 19" E a distance of three hundred
seventy three and 45/100 feet (373.45') to a point;
Thence turning and running N 43 degrees 20' 01" W a distance of four hundred ten
and 55/100 feet (410.55') to a point;
Thence turning and running N 43 degrees 42' 52" W a distance of three hundred
fifty two and 99/100 feet (352.99') to a point;
Thence turning and running N 44 degrees 39' 47" W a distance of one hundred
sixty eight and 27/100 feet (168.27') to a point;
Thence turning and running N 43 degrees 32' 02" E a distance of three hundred
forty two and 95/100 feet (342.95') to a point;
Thence turning and running S 47 degrees 05' 15" E a distance of one hundred
thirty two and 91/100 feet (132.91') to a point;
Thence turning and running N 41 degrees 21' 42" E a distance of one hundred ten
and 29/100 feet (110.29') to a point;
Thence turning and running S 56 degrees 08' 09" E a distance of two hundred
twenty and 97/100 feet (220.97') to a point;
Thence turning and running S 40 degrees 26' 57" E a distance of three hundred
thirty five and 45/100 feet (335.45') to a point, the previous ten courses
running along land now or formerly of Xxxxxxxxx Xxx Xxxxx;
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Thence turning and running N 41 degrees 38' 44" E a distance of two hundred
ninety one and 02/100 feet (291.02') along land now or formerly of Xxxxxxx
and Xxxxxx Xxxxxx to a point;
Thence turning and running N 29 degrees 33' 07" W a distance of two hundred five
and 15/100 feet (205.15') to a point;
Thence turning and running N 40 degrees 35' 11" W a distance of one hundred four
and 07/100 feet (104.07') to a point;
Thence turning and running N 42 degrees 28' 54" W a distance of one hundred
twenty nine and 16/100 feet (129.16') to a point;
Thence turning and running N 35 degrees 39' 06" W a distance of one hundred
eighty eight and 65/100 feet (188.65') to a point;
Thence turning and running N 31 degrees 06' 51" W a distance of two hundred
fifty one and 14/100 feet (251.14') to a point;
Thence turning and running N 27 degrees 26' 04" W a distance of sixty one and
15/100 feet (61.15') to a point;
Thence turning and running N 22 degrees 54' 11" W a distance of one hundred
forty eight and 62/100 feet (148.62') to a point;
Thence turning and running N 26 degrees 52' 49" W a distance of one hundred
eleven and 39/100 feet (111.39') to a point, the previous eight courses
running along the westerly sideline of Town Farm Road;
Thence turning and running S 66 degrees 40' 26" W a distance of eighty nine and
96/100 feet (89.96') to a point;
Thence turning and running N 45 degrees 34' 34" W a distance of thirty two and
83/100 feet (32.83') to a point;
Thence turning and running N 55 degrees 49' 30" W a distance of one hundred
thirty five and 24/100 feet (135.24') to a point;
Thence turning and running N 63 degrees 22' 02" W a distance of one hundred
seven and 27/100 feet (107.27') to a point;
Thence turning and running N 15 degrees 12' 22" W a distance of one hundred
ninety two and 38/100 feet (192.38') to a point;
Thence turning and running N 17 degrees 50' 41" W a distance of seventy seven
and 59/100 feet (77.59') to a point;
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Thence turning and running N 17 degrees 27' 14" W a distance of thirty two and
14/100 feet (32.29') to a point, the previous seven courses running along
land now or formerly of Xxxx and Xxxxx Xxxxxx:
Thence turning and running N 52 degrees 28' 25" W a distance of one hundred two
and 96/100 feet (102.96') to a point;
Thence turning and running N 40 degrees 22' 19" W a distance of two hundred
sixty one and 03/100 feet (261.03') to a point, the previous two courses
running along land now or formerly of Xxxxxxx Xxxxx, III.;
Thence turning and running S 42 degrees 58' 02" W a distance of ninety five and
70/100 feet (95.70') along land now or formerly of Xxxxx Xxxxxxx, to a
point;
Thence turning and running S 45 degrees 45' 11" W a distance of five hundred
seventy nine and 39/100 feet (579.39') along land now or formerly of Von
Xxxx and Xxxxx Xxxxx, to a point;
Thence turning and running S 42 degrees 41' 35" W a distance of sixty six and
93/100 feet (66.93') to a point;
Thence turning and running S 47 degrees 25' 31" E a distance of three hundred
eighty and 54/100 feet (380.54') to a point, the previous two courses
running along land now or formerly of Von Xxxx and Xxxxx Xxxxx and land
now or formerly of Xxxxxxx Xxxxx;
Thence turning and running S 44 degrees 18' 02" W a distance of two hundred
eighty four and 79/100 feet (284.79') to a point;
Thence turning and running S 43 degrees 45' 40" W a distance of two hundred
ninety seven and 48/100 feet (297.48') to a point, the previous two
courses running along land now or formerly of Xxxx Xxxxxxxx Trustee;
Thence turning and running S 43 degrees 11' 23" W a distance of two hundred
forty three and 10/100 feet (243.10') along land now or formerly of Xxxxx
Xxxxxxx, to a point;
Thence turning and running S 28 degrees 07' 12" W a distance of three hundred
twenty six and 61/100 feet (326.61') along land now or formerly of Xxxxxx
and Xxxxxxx Xxxxx, to a point on the northeasterly sideline of said Route
2;
Thence turning and running S 53 degrees 12' 03" E a distance of one hundred
ninety seven and 00/100 feet (197.00') to a point;
Thence turning and running N 36 degrees 47'57" E a distance of ten and 00/100
feet (10.00') to a point;
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Thence turning and running N 53 degrees 12' 03" E a distance of two hundred
thirty eight and 95/100 feet (238.95') to a point;
Thence turning and running along a curve to the left with a radius of nine
thousand eight hundred twenty five and 00/100 feet (9825.00') with an arc
length of sixty one and 05/100 feet (61.05') to a point;
Thence turning and running S 36 degrees 47' 57" W a distance of ten and 00/100
feet (10.00') to a point;
Thence turning and running along a curve to the left with a radius of nine
thousand eight hundred thirty five and 00/100 feet (9835.00') with an arc
length of one hundred ninety eight and 00/100 feet (198.00') to the point
of beginning. The previous six courses running along said Route 2.
Above locus is subject to and with the benefit of any and all easements, rights,
restrictions and encumbrances of record in so far as the same are still in
force and applicable.
The parcel herein described contains 2,662,834 square feet (61.1303 acres).
Said locus is shown on a plan entitled "Plan of Property for Xxxxxx X.
Xxxxxxxxx, Westminster, Mass." dated June 1973 and revised August 1973, by
Xxxxx X. Xxxxx, C.E., and recorded with Worcester Northern District
Registry of Deeds in Plan Book 180, Page 21. For Xxxxxxxxx title see deed
of Xxxxxxxx Xxxxxxxxx and Xxxx X. Xxxxxxxx to Xxxxxx X. Xxxxxxxxx and
Bella X. Xxxxxxxxx dated July 19, 1973 and recorded in Worcester Northern
District Registry of Deeds Book 1115, Page 4 and Deed of Xxxx X. Xxxxx,
Trustee of Xxxxx Realty Trust to Xxxxxx X. Xxxxxxxxx and Bella X.
Xxxxxxxxx dated July 7, 1973 and recorded in Worcester Northern District
Registry of Deeds, Book 1114, Page 597.
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