Exhibit 10.16
OFFICE BUILDING LEASE
THIS LEASE AGREEMENT (this "Lease") is made as of this 21st day of
December, 2001, by and between Merkle, Soupcoff, & Xxxxxxxxxx, Inc., a New
Hampshire corporation ("Landlord"), and Environmental Power Corporation, a
Delaware corporation ("Tenant").
ARTICLE 1
PREMISES
In consideration of the rent hereinafter reserved and of the covenants
hereinafter contained, Landlord does hereby lease to Tenant, and Tenant does
hereby lease from Landlord, that certain portion of Unit 4 of Xxxxxxxx Park
West Condominiums (the "Condominiums") as shown on the floor plan attached
hereto as Exhibit A (the "Premises") located in the office building at 1 Cate
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Street, Portsmouth, New Hampshire (the "Building") as more particularly
described on Exhibit A hereto. The total agreed rentable square footage of the
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Premises is 2,818 square feet. Tenant shall also have the right to use the
common areas appurtenant to the Premises and, on an as-available basis, the
parking spaces in the Building's parking lot, subject to rules and regulations
promulgated from time to time by the Board of Directors of the Condominiums.
ARTICLE 2
TERM AND EXTENDED TERM
2.1 The term of this Lease (the "Term") shall commence on the
"Commencement Date" (as defined below) and shall terminate at 12:00 o'clock
midnight, local time on the "Termination Date" (as defined below). The Term is
scheduled to commence on March 1, 2002 (the "Scheduled Commencement Date"), and
terminate on February 28, 2007, unless adjusted as provided below.
2.2 Landlord agrees to cause the Premises to be completed in
accordance with the plans, specifications and agreement approved by both
parties and attached hereto as Exhibit B ("Landlord's Work"). Landlord's Work
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shall be completed at the cost and expense of Landlord unless otherwise
specified herein. Landlord's Work may be done with such minor variations as
Landlord may deem advisable, so long as such variations will not materially
interfere with Tenant's intended use of the Premises. "Substantial Completion"
of the Premises shall occur when Landlord certifies in writing to Tenant that
Landlord's Work has been substantially completed and possession of the Premises
has been delivered from Landlord to Tenant, notwithstanding a requirement that
Landlord complete "punch list" or similar corrective work, and notwithstanding
that any work that is the responsibility of the Tenant may not be completed.
Upon completion of Landlord's Work, Landlord shall certify in writing to Tenant
the total cost and expense incurred by Landlord in performing Landlord's Work
("Landlord's Build-Out Cost") and provide Tenant with a reasonable opportunity
to verify such cost and expense. Other
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than Landlord's Work, and except as specifically set forth in this Lease,
Landlord shall have no obligation to make any improvements or modifications to
the Premises.
2.3 The "Commencement Date" of this Lease shall be the later of
the date of Substantial Completion, as defined above, or the Scheduled
Commencement Date, as defined above. The Tenant, by taking possession of the
Premises, shall be deemed to have agreed that the Premises are then in a
satisfactory order, repair and condition, except as set forth on a list
prepared by Landlord and Tenant prior to occupancy, and Tenant shall provide
Landlord, upon request, a written acknowledgment of acceptance. If Tenant, for
whatever reason, occupies the Premises prior to the Commencement Date, then all
terms and conditions of this Lease shall apply to such occupancy, with the
exception of Tenant's obligation to pay Rent, which unless otherwise agreed to
in writing by Landlord and Tenant, shall not commence until the Commencement
Date. If Landlord, for any reason whatsoever, fails to deliver possession of
Premises to Tenant on the Scheduled Commencement Date, this Lease shall not be
void or voidable nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom, unless such failure is due to Landlord's willful
misconduct. Should the actual Commencement Date be later than the Scheduled
Commencement Date, Tenant's obligation to pay Rent shall not commence until the
Commencement Date, and the Termination Date shall be extended by the same
period as the Commencement Date extended past the Scheduled Commencement Date.
Provided, however, that if Landlord, for whatever reason, is unable to deliver
possession of the Premises to Tenant within thirty (30) days after the
Scheduled Commencement Date, Tenant, in Tenant's sole discretion, may terminate
this Lease by forwarding written notice of such termination to Landlord, in
accordance with the notice provision of this Lease, not later than sixty (60)
days following the Scheduled Commencement Date. If this Lease is terminated
pursuant to the terms of this Section 2.3, Landlord shall refund to Tenant any
Security Deposit or payment of Base Rent Tenant may have previously deposited
with, or paid to Landlord, but the parties shall not otherwise have any
liability or obligation to each other; if Tenant elects not to terminate this
Lease pursuant to the terms of this Section 2.3, then the Commencement Date and
Termination Date of this Lease shall be determined as otherwise set forth in
this Section 2.3.
2.4 Provided Tenant is not in default of the terms of this Lease
beyond the expiration of applicable notice and cure periods at the time notice
is given to Landlord as hereinafter provided, upon expiration of thirty (30)
months following the Commencement Date, Tenant shall have the option to
terminate this Lease upon not less than one hundred eighty (180) days prior
written notice to Landlord. In the event Tenant elects to terminate this Lease
pursuant to this Section 2.4, the Termination Date of this Lease shall be the
date specified in such notice to Landlord (or if such date specified is less
than 180-days from the date of such notice, then such date which is 180-days
from the date of such notice), and Tenant shall pay to Landlord, on or before
the adjusted Termination Date, the un-amortized portion of Landlord's Build-Out
Cost and Commissions (as defined in Article 23). The un-amortized portion of
Landlord's Build-Out Cost and Commissions shall be determined as of the
adjusted Termination Date on the basis of straight-line amortization of
Landlord's Build-Out Cost and Commissions over a 60-month period beginning on
the Commencement Date.
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ARTICLE 3
RENT
3.1 Tenant hereby covenants and agrees to pay to Landlord as rent
for the Premises (all of which is collectively referred to as "Rent") all of
the following:
(a) An annual base rent ("Base Rent") in the amount of Sixty Six
Thousand Two Hundred Forty Dollars ($66,240.00), payable in monthly installments
of Five Thousand Five Hundred Twenty Dollars ($5,520.00). Each monthly
installment of Base Rent shall be paid in advance on the first day of each month
during each calendar year, or portion thereof (with appropriate adjustment for
any calendar year which does not fall totally within the Term), during the Term;
provided, however, that the installment of Base Rent payable for the first full
calendar month of the Term shall be due and payable upon execution of this Lease
and
(b) Additional rent ("Additional Rent") in the amount of any
payment referred to as such in any portion of this Lease which accrues while
this Lease is in effect (which shall include any and all charges or other
amounts which Tenant is obligated to pay Landlord under this Lease, other than
Base rent).
3.2 Base rent and all Additional Rent as provided for under this
Lease shall be paid promptly when due, in cash or by check, in lawful money of
the United States of America, without notice or demand and without deduction,
diminution, abatement or set off of any amount or for any reason whatsoever,
payable to Landlord, and delivered to its offices at the address as stated in
Article 24 or to such other person and place as may be designated by notice in
writing from Landlord to Tenant from time to time. If Tenant shall present to
Landlord more than twice during the Term checks or drafts not honored by the
institution upon which they are issued, then Landlord may require that future
payments of Rent and other sums thereafter payable be made by certified or
cashier's check.
3.3 Other remedies for non-payment of Rent notwithstanding, any
installment of Rent which is not paid within ten (10) days after the due date
shall be subject, at Landlord's option each month, to a late charge equal to
five percent (5%) of the amount due, which shall be payable as Additional Rent.
Any installment of Base rent or Additional Rent not paid within thirty (30) days
from the date due shall accrue interest at the rate of four percent higher than
the rate published by the Wall Street Journal (or any successor publication)
from time to time as the prime rate (the "Prime Rate") (but in no event higher
than the maximum rate allowed by law) until paid in full, which interest shall
be deemed Additional Rent.
3.4 No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly installments of Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated Rent nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
Rent be deemed an accord and satisfaction, and Landlord may accept such check
for payment without prejudice to Landlord's right to recover the balance of
such Rent or to pursue any other rent be provided in this Lease.
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3.5 Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord the sum of Eleven Thousand Forty Dollars ($11,040.00) as a
security deposit (the "Security Deposit"). The Security Deposit (which shall not
bear interest to Tenant) shall be considered as security for the payment and
performance of the obligations, covenants, conditions and agreements contained
herein. The Security Deposit shall not constitute an advance payment of any
amounts owed by Tenant under this Lease, or a measure of damages to which
Landlord shall be entitled upon a breach of this Lease by Tenant or upon
termination of this Lease. Landlord may, without prejudice to any other remedy,
use the Security Deposit to the extent necessary to remedy any default in the
payment of Base rent or Additional Rent or to satisfy any other obligation of
Tenant hereunder, and Tenant shall promptly, on demand, restore the Security
Deposit to its original amount. If Landlord transfers its interest in the
Premises during the Term, Landlord may assign the Security Deposit to the
transferee who shall become obligated to Tenant for its return pursuant to the
terms of this Lease, and thereafter Landlord shall have no further liability for
its return.
3.6 Tenant's pro rata share of the increases in Common Area
Expenses (as defined in Article 4) and increases in Real Estate Taxes (as
defined in Article 5) is agreed to be sixty-five and twenty-six one hundredths
percent (65.26%).
3.7 It is agreed by Landlord and Tenant that no Rent for the use,
occupancy or utilization of the Premises shall be, or is, based in whole or in
part on the net income or profits derived by any person from the Building or the
Premises, and Tenant further agrees that it will not enter into any sublease,
license, concession or other agreement for any use, occupancy or utilization of
the Premises which provides for rent or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the Premises so leased, used, occupied or utilized. Nothing in
the foregoing sentence, however, shall be construed as permitting or
constituting Landlord's approval of any sublease, license, concession, or other
use, occupancy, or utilization agreement not otherwise approved by Landlord in
accordance with the provisions of Article 13 hereof.
ARTICLE 4
COMMON AREA EXPENSES ESCALATION AND UTILITIES
4.1 Tenant shall pay to Landlord, as Additional Rent, Tenant's pro
rata share, as specified in Section 3.6, of the amount by which the Common Area
Expenses for the Comparison Year exceed the Common Area Expenses for the Base
Year. The term "Common Area Expenses" shall mean any and all expenses and costs
assessed by the Board of Directors of the Condominiums against Xxxx 0 of the
Condominiums, including any amounts designated as reserves which are assessed
on a continuing basis. The term "Common Area Expenses" shall not include any
special or extraordinary assessments for capital expenditures. Tenant shall pay
each month, in advance, as Additional Rent, one-twelfth of Landlord's estimate
of Tenant's annual obligation under this Article 4. Such payments shall in no
way limit Tenant's annual obligation. If the total of such monthly installments
paid is less than Tenant's total obligation, Tenant shall pay the difference
within 30 days of its receipt of Landlord's statement. Any overpayment shall be
credited to Tenant's obligation for the next succeeding period. The term "Base
Year" shall mean the calendar year in which the Term commences. The term
"Comparison Year" shall mean
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the then applicable period of twelve (12) months commencing on January 1st of
each year and ending on December 31st of each year.
4.2 If the Termination Date or sooner termination of this Lease
shall not coincide with the end of a Comparison Year, then in computing the
amount payable under this Article 4 for the period between the commencement of
the applicable Comparison Year in question and the Termination Date or sooner
termination of this Lease, the amount that would have been due from Tenant for
the full year, if Tenant had been a tenant for the entire Comparison Year,
shall be prorated over the portion of the Comparison Year that Tenant is a
tenant in the Building. Tenant's obligation to pay any additional rent under
this Article 4 which is not paid as of the expiration or sooner termination of
the Lease shall survive the expiration or sooner termination of this Lease.
4.3 Tenant shall pay, as Additional Rent, directly to the proper
authorities charged with the collection thereof, all charges for water, sewer,
gas, electricity, telephone and other utilities or services used or consumed on
the Premises (except, in each case, to the extent such utilities or services are
included as part of the Common Area Expenses), all such charges to be paid as
the same from time to time become due. It is understood and agreed that Tenant
shall make its own arrangements for such utilities and that Landlord shall be
under no obligation to furnish any utilities to the Premises and shall not be
liable for any interruption or failure in the supply or any such utilities to
the Premises. In the event any such utilities or services are not separately
metered or measured for the Premises, the charges therefor shall be allocated to
Tenant on the basis of the percentage the agreed rentable square footage of the
Premises bears to the total rentable square footage of the premises being served
by such utilities or services.
4.4 Nothing contained in this Article 4 shall be construed at any
time to reduce the Rent payable hereunder below the amount stipulated in
Articles 3 and 5 of this Lease.
ARTICLE 5
REAL ESTATE TAXES ESCALATION
5.1 Tenant shall pay to Landlord, as Additional Rent, Tenant's pro
rata share, as specified in Section 3.6, of the amount by which Real Estate
Taxes for or attributable to the then current Real Estate Tax Year exceeds the
Base Real Estate Taxes. If the system of real estate taxation shall be altered
or varied and any new tax or levy shall be levied or imposed on said land,
Building and improvements, and/or Landlord, in substitution for Real Estate
Taxes presently levied or imposed on immovables in the jurisdiction where the
Building is located, then any such new tax or levy shall be included within the
term "Real Estate Taxes". Tenant shall pay each month, in advance, as
Additional Rent, one-twelfth of Landlord's estimate of Tenant's annual
obligation under this Article 5. If the total of such monthly installments paid
is less than Tenant's total obligation, Tenant shall pay the difference within
30 days of its receipt of Landlord's statement. Any overpayment shall be
credited to Tenant's obligation for the next succeeding period. The term "Real
Estate Taxes" means all taxes, rates and assessments, general or special,
levied or imposed with respect to Unit 4 of the Condominiums (including all
taxes, rates and assessments, general or special, levied or imposed for school,
public betterment and/or general or local improvements. The term "Base Real
Estate Taxes" means the Real Estate Taxes
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for the tax year during which this Lease commences. The term "Real Estate Tax
Year" means each successive twelve (12) month period following and
corresponding to the period in respect of which the Real Estate Taxes are
established, irrespective of the period or periods which may from time to time
in the future be established by competent authority for the purposes of levying
or imposing Real Estate Taxes.
5.2 Real Estate Taxes which are being contested by Landlord shall
nevertheless be included for purposes of the computation of the liability of
Tenant under Section 5.1 hereof; provided however, that in the event that Tenant
shall have paid any amount of Additional Rent pursuant to this Article 5 and
Landlord shall thereafter receive a refund of any portion of any Real Estate
Taxes on which such payment shall have been based, Landlord shall pay to Tenant
the appropriate portion of such refund. Landlord shall have no obligation to
contest, object or litigate the levying or imposition of any Real Estate Taxes
and may settle, compromise, consent to, waive or otherwise determine in its
discretion any Real Estate Taxes without consent or approval of Tenant.
5.3 Nothing contained in this Article 5 shall be construed at any
time to reduce the Rent payable hereunder below the amount stipulated in
Articles 3 and 4 of this Lease.
5.4 It is understood and agreed that Tenant shall not be liable
for any addition to the Real Estate Taxes solely by reason of Landlord's
failure to pay Real Estate Taxes when due.
5.5 If the Termination Date or sooner termination of this Lease
shall not coincide with the end of a Real Estate Tax Year, then in computing
the amount payable under this Article 5 for the period between the commencement
of the applicable Real Estate Tax Year in question and the Termination Date or
sooner termination of this Lease, the amount that would have been due from
Tenant for the full year, if Tenant had been a tenant for the entire Real
Estate Tax Year, shall be prorated over the portion of the Real Estate Tax Year
that Tenant is a tenant in the Building. Tenant's obligation to pay any
additional rent under this Article 5 which is not paid as of the expiration or
sooner termination of the Lease shall survive the expiration or earlier
termination of this Lease.
ARTICLE 6
USE OF PREMISES
Tenant covenants to use the Premises only for business or professional
office purposes and for no other purpose, subject to and in accordance with all
applicable zoning and other governmental regulations. Tenant, at its own
expense, shall comply with and promptly carry out all orders, requirements or
conditions imposed by the ordinances, laws and regulations of all of the
governmental authorities having jurisdiction over the Premises, which are
occasioned by or required in the conduct of Tenants business within the Premises
and to obtain all licenses, permits and the like (other than a certificate of
occupancy, which Landlord shall maintain in effect throughout the term of the
Lease) required to permit Tenant to occupy the Premises. Landlord makes no
representation or warranty with respect to the condition of the Building.
Landlord agrees to deliver the Premise to Tenant in conformity with the plans
and specifications set forth on Exhibit B hereto. Tenant shall not permit the
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Premises, or any part thereof, to be
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used for any disorderly, unlawful or hazardous purpose, nor as a source of
annoyance or embarrassment to Landlord or other tenants, nor for any purpose
other than herein before specified, nor for the manufacture of any commodity
therein, without the prior written consent of Landlord.
ARTICLE 7
REPAIRS AND MAINTENANCE
7.1 Subject to the provisions hereinafter contained with regard to
damage by fire or other casualty and Section 7.2, Landlord agrees to maintain
the Premises in good order and repair during the Term, unless damage thereto
shall have been caused by the act or neglect of Tenant, its agents, employees,
contractors or invitees, in which case, the same shall be required by and at the
expense of Tenant. If Tenant fails to make such repairs promptly, Landlord, at
its option, may make such repairs and Tenant shall pay Landlord on demand
Landlord's actual costs in making such repairs plus a fee of ten percent (10%)
to cover Landlord's overhead. Landlord shall not be liable to Tenant for any
damage or inconvenience and Tenant shall not be entitled to any abatement or
reduction of Rent by reason of any repairs, alterations or additions made by
Landlord under this Lease, provided that Landlord shall not unreasonably
interfere with the conduct of Tenant's business in the Premises.
7.2 Tenant shall maintain the non-structural portions of the
interior of the Premises in good repair and condition, damages by causes
reasonably beyond Tenant's control and ordinary wear and tear excepted.
ARTICLE 8
LANDLORD'S SERVICES
Landlord covenants and agrees to take all reasonable action as may be
necessary to assure that the Board of Directors of the Condominiums fulfills its
obligations to provide services to its members (and that such services are
provided to Tenant) as set forth in the Declaration and By-Laws of the
Condominiums, on substantially the same basis as provided to other tenants of
the Building, including, but not limited to, (i) elevator service, (ii)
janitorial service for common areas, (iii) landscaping, (iv) snow removal, (v)
rubbish removal, (vi) HVAC maintenance and repair, and (vii) exterior window
washing (bi-annual). Tenant hereby acknowledges and agrees that Landlord shall
not be liable in any way for any damage or inconvenience caused by the cessation
or interruption of such heating, air-conditioning, electricity, elevator or
janitor service or if occasioned by fire, accident, strikes, necessary
maintenance, alterations or repairs, or other causes beyond Landlord's control
and Tenant shall not be entitled to any abatement or reduction of Rent by reason
thereof, unless such cessation or interruption renders the Premises unfit for
use and occupancy and continues for a period of fifteen (15) days, in which case
Tenant shall be entitled to an abatement of Rent for the period thereafter that
such cessation or interruption continues.
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ARTICLE 9
TENANT'S AGREEMENT
Tenant covenants and agrees: (a) not to obstruct or interfere with the
rights of other tenants, or injure or annoy them or those having business with
them, or conflict with the fire laws or regulations, or with any insurance
policy upon the Building or any part thereof, or with any statutes, rules or
regulations now existing or subsequently enacted or established by the local,
state or federal governments and Tenant shall be answerable for all nuisances
caused or suffered on the Premises, or caused by Tenant in the Building, or on
the approaches thereto; (b) not to place a load on any floor exceeding the floor
load which such floor was designed to carry in accordance with the plans and
specifications of the Building, and not to install, operate or maintain in the
Premises any safe or heavy item of equipment except in such manner and in such
location as Landlord shall prescribe so as to achieve a proper distribution of
weight; (c) not to strip, overload, damage or deface the Premises, hallways,
stairways, elevators, parking facilities or other public areas of the Building,
or the fixtures therein or used therewith, nor to permit any hole to be made in
any of the same; (d) not to suffer or permit any trade or occupation to be
carried on or use made of the Premises which shall be unlawful, noisy,
offensive, or injurious to any person or property, or such as to increase the
danger of fire or affect or make void or voidable any insurance on the Building,
or which may render any increased or extra premium payable for such insurance,
or which shall be contrary to any law or ordinance, rule or regulation from time
to time established by any public authority; (e) not to move any furniture or
equipment into or out of the Premises except at such times and in such manner as
Landlord may from time to time designate, (f) not to place upon the interior or
exterior of the Building, or any window or any part thereof or door of the
Premises, any placard, sign, lettering, window covering or drapes, except as
permitted pursuant to this Lease and except as such and in such place and manner
as shall have been first approved in writing by Landlord, and to use Building
standard signage on its suite entry door, which shall be installed at Tenant's
cost; (g) to park vehicles only in the area from time to time designated by
Landlord; (h) to conform to all rules and regulations from time to time
established by the appropriate insurance rating organization and to all
reasonable rules and regulations from time to time established by the Board of
Directors of the Condominiums and Landlord (provided that such rules and
regulations shall not increase Tenant's obligations under this Lease or decrease
Tenant's rights under this Lease); (i) to be responsible for the cost of removal
of Tenant's bulk trash during occupancy and move-out, (j) not to conduct nor
permit in the Premises either the generation, treatment, storage or disposal of
any hazardous substances and materials or toxic substances of any kind as
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. 6901 et seq.), any
regulations adopted under these acts, or any other present or future federal,
state, county or local laws or regulations concerning environmental protection,
and Tenant shall prohibit its assignees, sublessees, employees, agents and
contractors (collectively, "Permitees") from doing so and Tenant shall
indemnify, defend and hold Landlord and its agents harmless from all loss,
costs, foreseeable and unforeseeable, direct or consequential; damages;
liability; fines; prosecutions; judgments; litigation; and expenses, including
but not limited to, clean-up costs, court costs and reasonable attorneys' fees
arising out of any violation of the provisions of this Article by Tenant or its
Permitees. A copy of the rules and regulations adopted by the Board of Directors
of the
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Condominiums (including those contained in the By-Laws of the Condominiums)
which are referenced in Section (h) above, are attached hereto as Exhibit C.
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ARTICLE 10
ALTERATIONS
Tenant shall not paint the Premises or make any alterations, additions,
or other improvements in or to the Premises or install any equipment of any kind
that shall require any alterations or additions or affect the use of the
Building's water system, heating system, plumbing system, air-conditioning
system, electrical system or other mechanical system, or install any telephone
antennae on the roof, in the windows or upon the exterior of the Building
without the prior written consent of Landlord, such consent not to be
unreasonably withheld or delayed. If any such alterations or additions are made
by Tenant without Landlord's consent, Landlord may correct or remove them and
Tenant shall be liable for any and all costs and expenses incurred by Landlord
in the correction or removal of such work. All plans and specifications for any
such work shall be prepared by Tenant at Tenant's expense and shall thereafter
be submitted to Landlord for its review. No such work shall be commenced by
Tenant without the prior written consent of Landlord and the approval by
Landlord of any contractor of subcontractor to be engaged by Tenant to perform
such work. All work with respect to such alterations and additions shall be done
in a good and workmanlike manner and diligently prosecuted to completion to the
end that Premises shall at all times be a complete unit except during the period
necessarily required for such work. Tenant shall not permit a mechanic's lien(s)
to be placed upon the Premises or the Building as a result of any alterations or
improvements made by it and agrees, if any such lien be filed on account of the
acts of Tenant, promptly to pay the same. If Tenant fails to discharge such lien
within ten (10) days of its filing, then, in addition to any other right or
remedy of Landlord, Landlord may, at its election, discharge the lien. Tenant
shall pay on demand any amount paid by Landlord for the discharge or
satisfaction of any such lien, and all attorneys' fees and other costs and
expenses of Landlord incurred in defending any such action or in obtaining the
discharge of such action or in obtaining the discharge of such lien, together
with all necessary disbursements in connection therewith. Tenant hereby
expressly recognizes that in no event shall it be deemed the agent of Landlord
and no contractor of Tenant shall by virtue of its contract be entitled to
assert any lien against the Premises or Building. All alterations or additions
shall become a part of the realty and surrendered to Landlord upon the
expiration or termination of this Lease, unless Landlord shall at the time of
its approval of such work require removal or restoration on the part of Tenant
as a condition of such approval.
ARTICLE 11
HOLD HARMLESS
11.1 Other than as a result of the gross negligence of Landlord,
Landlord's willful misconduct or Landlord's failure to perform its obligations
under this Lease, Landlord shall not be liable for any damage to, or loss of,
property in the Premises belonging to Tenant, its employees, agents, visitors,
licensees or other persons in or about the Premises, or for damage or loss
suffered by the business of Tenant, from any cause whatsoever, including,
without limiting the generality thereof, such damage or loss resulting from
fire, steam, smoke, electricity, gas,
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water, rain, ice or snow, which may leak or flow from or into any part of the
Premises, or from the breakage, leakage, obstruction or other defects of the
pipes, wires, appliances, plumbing, air-conditioning or lighting fixtures of
the same, whether the said damage or injury results from conditions arising
upon the Premises or upon other portions of the Building of which the Premises
are a part, or from other sources. Landlord shall not be liable in any manner
to Tenant, its agents, employees, invitees or visitors for any injury or damage
to Tenant, Tenant's agents, employees, invitees or visitors, or their property,
caused by the criminal or intentional misconduct, or by any act or neglect of
third parties or of Tenant, Tenants agents, employees, invitees or visitors, or
of any other tenant of the Building. Tenant covenants that no claim shall be
made against Landlord by Tenant, or by any agent or servant of Tenant, or by
others claiming the right to be in the Premises or in the Building through or
under Tenant, for any injury, loss or damage to the Premises or to any person
or property occurring upon the Premises from any cause other than the gross
negligence of Landlord, Landlord's willful misconduct or Landlord's failure to
perform its obligations under this Lease. In no event shall Landlord be liable
to Tenant for any consequential damages sustained by Tenant arising out of the
loss or damage to any property of Tenant.
11.2 Subject to the waiver of subrogation provisions contained in
this Lease, Tenant covenants and agrees to save Landlord and Landlord's agents
harmless and indemnified, and to defend Landlord and Landlord's agents from all
loss, damage, liability or expense of any kind including without limitation
attorneys' fees and court costs incurred, suffered or claimed by any person
whomsoever, or for any damage or injury to any persons or property from any
cause whatsoever, by reason of the use or occupancy by Tenant, its agents,
employees, invitees or visitors of the Premises, or of the Building unless
caused solely by the gross negligence of Landlord.
11.3 The provisions of this Article 11 shall survive the expiration
or earlier termination of this Lease.
ARTICLE 12
INSURANCE
12.1 Tenant shall, at its cost and expense, obtain and maintain at
all times during the Term, for the protection of Landlord and Tenant, Public
Liability Insurance (Comprehensive General Liability or Commercial General
Liability) including Contractual Liability Insurance, with a combined personal
injury and property damage limit of not less than One Million Dollars
($1,000,000.00) for each occurrence and not less than Two Million Dollars
($2,000,000.00) in the aggregate, insuring against all liability of Tenant and
its representatives arising out of and in connection with Tenant's use or
occupancy of the Premises. Landlord shall be named as an additional insured.
12.2 Tenant shall, at its cost and expense, obtain and maintain at
all times during the Term, fire and extended coverage insurance on the contents
of the Premises, including any leasehold improvements made by Tenant in an
amount sufficient so that no co-insurance penalty shall be invoked in case of
loss.
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12.3 Tenant shall increase its insurance coverage, as required, but
not more frequently than each calendar year if, in the opinion of Landlord or
any mortgagee of Landlord, the amount of public liability and/or property
damage insurance coverage at that time is not adequate.
12.4 All insurance required under this Lease shall be issued by
insurance companies licensed or authorized to do business in the State of New
Hampshire. Such companies shall have a policyholder rating of at least "A" and
be assigned a financial size category of at least "Class X" as rated in the most
recent edition of "Best's Key Rating Guide" for insurance companies. Each policy
shall contain an endorsement requiring thirty (30) days written notice from the
insurance company to Landlord before cancellation or any change in the coverage,
scope or amount of any policy. Each policy, or a certificate showing it is in
effect, together with evidence of payment of premiums, shall be deposited with
Landlord on or before the Commencement Date, and renewal certificates or copies
of renewal policies shall be delivered to Landlord at least thirty (30) days
prior to the expiration date of any policy.
12.5 If any of Landlord's insurance policies shall be canceled or
cancellation shall be threatened or the coverage thereunder reduced or
threatened to be reduced in any way because of the use of the Premises or any
part thereof by Tenant or any assignee or subtenant of Tenant or by anyone
Tenant permits on the Premises (other than for the uses permitted hereunder),
and if Tenant fails to remedy the condition within forty-eight (48) hours after
notice thereof, Landlord may at its option either terminate this Lease or enter
upon the Premises and attempt to remedy such condition, and Tenant shall
promptly pay the cost thereof to Landlord. Landlord shall not be liable for any
damage or injury caused to any property of Tenant or of others located on the
Premises from such entry. If any of Tenant's insurance policies shall be
canceled or cancellation shall be threatened or the coverage thereunder reduced
or threatened to be reduced in any way because of the use of the Premises or any
part thereof by Landlord or by any other tenant of the Building, and if Landlord
fails to remedy the condition within forty-eight (48) hours after notice
thereof, Tenant may at its option terminate this Lease.
12.6 All policies covering real or personal property which either
party obtains affecting the Premises shall include a clause or endorsement
denying the insurer any rights of subrogation or recovery against the other
party to the extent rights have been waived by the insured before the
occurrence of injury or loss. Landlord and Tenant hereby waive any rights of
subrogation or recovery against the other for damage or loss to their
respective property due to hazards covered or which should be covered by
policies of insurance obtained or which should be or have been obtained
pursuant to this Lease, to the extent of the injury or loss covered thereby
assuming that any deductible shall be deemed to be insurance coverage.
ARTICLE 13
ASSIGNMENT AND SUBLETTING
13.1 Tenant shall not assign, transfer, mortgage or encumber this
Lease or sublet the Premises without obtaining the prior written consent of
Landlord, nor shall any assignment or transfer of this Lease be effectuated by
operation of law or otherwise without the prior written consent of Landlord, in
any such case, such consent not to be unreasonably withheld or delayed. In the
event that Tenant desires to assign this Lease, sublet the Premises, or permit
occupancy or
11
use of the Premises or any part thereof by another party or parties, Tenant
shall provide Landlord with thirty (30) days advance written notice of Tenant's
bona fide proposed assignment or subletting of all or any part of the Premises
and shall provide Landlord with such information concerning the assignee or
subletee as Landlord may reasonably request (provided that any such request is
given within three (3) business days of Landlord's receipt of Tenant's
assignment and sublease notice). Landlord shall have the right, at its option
during said thirty (30) day period, to (a) release Tenant from this Lease for
such space (i.e. terminate the Lease with respect to such space), or (b)
consent or refuse to consent (stating a reasonable basis for such refusal) to
Tenants assignment or subletting of such space and to continue this Lease in
full force and effect as to the entire Premises. The consent by Landlord to any
assignment, transfer, or subletting to any party other than Landlord shall not
be construed as a waiver or release of Tenant from the terms of any covenant or
obligation under this Lease nor shall the collection or acceptance of Rent from
any such assignee, transferee, subtenant or occupant constitute a waiver or
release of Tenant from any covenant or obligation contained in this Lease, nor
shall such assignment or subletting be construed to relieve Tenant from giving
Landlord said thirty (30) days notice, nor from obtaining the consent in
writing of Landlord to any further assignment or subletting (which consent
shall not be unreasonably withheld or delayed). In the event that Tenant
defaults hereunder Tenant hereby assigns to Landlord any and all rent due from
any subtenant of Tenant and hereby authorizes each such subtenant to pay said
rent directly to Landlord. Without limiting the generality of the foregoing,
if Landlord consents to an assignment pursuant to this Article 13, Landlord may
condition its consent upon the entry by such transferee into an agreement (in
form and substances satisfactory to Landlord) with Landlord, by which such
transferee assumes all of Tenant's obligations hereunder, and Landlord shall
release Tenant from any further obligation under this Lease.
13.2 Notwithstanding the foregoing provisions of this Article 13,
this Lease may be assigned, or the Premises may be sublet, in whole, but not in
part, in each case without Landlord's consent, to any entity into or with which
Tenant may be merged or consolidated or to any entity which shall be an
affiliate, subsidiary, parent or successor of Tenant. If there shall be an
assignment or subletting to an entity referred to in the immediately preceding
sentence, the foregoing provisions of this Article 13, with respect to
assignment or subletting, shall then apply to such entity. For purposes of this
Article 13, (i) an "entity" shall mean a corporation, limited liability
company, limited partnership or partnership, (ii) an "affiliate" shall mean any
entity which, directly or indirectly, controls or is controlled by or is under
common control with Tenant, (iii) "control" shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such entity, whether through the ownership of voting securities
or by contract or otherwise, (iii) a "subsidiary" shall mean any entity not
less than fifty percent (50%) of whose outstanding capital stock, membership
interests or other ownership interests shall, at the time, be owned directly or
indirectly, by Tenant, (iv) a "successor" of Tenant shall mean (x) a entity in
which or with which Tenant, its successors or assigns, is merger or
consolidated, and in accordance with applicable statutory provisions contained
in the instruments of merger or consolidation, the liabilities of parties
participating in such merger or consolidation are assumed by the entity
surviving such merger or created by such consolidation, or (y) an entity
acquiring this Lease and a substantial portion of the property and assets of
Tenant, its successors or assigns, or (z) any successor to a successor entity
becoming such by either of the methods described in clauses (x) or (y).
Acquisition by Tenant, its
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successors or assigns of a substantial portion of the assets, together with the
assumption of all or substantially all the obligations and liabilities of any
entity, shall be deemed a merger of such entity into Tenant for purposes of
this Article 13. Notwithstanding any assignment or subletting pursuant to this
Section 13.2, Tenant shall remain fully bound to Landlord by the provisions of
this Lease.
ARTICLE 14
LANDLORD'S RIGHT OF ACCESS
14.1 Landlord may, at any time during Tenants occupancy, during
reasonable business hours enter either to view the Premises or to show the same
to others, or to facilitate repairs to the Premises, or to introduce, replace,
repair, alter or make new or change existing connections from any fixtures,
pipes, wires, ducts, conduits or other construction therein, or remove, without
being held responsible therefor, placards, signs, lettering, window or door
coverings and the like not expressly consented to by Landlord.
14.2 Landlord may, during the last one hundred eighty (180) days of
the Term, enter the Premises free from hindrance or control of Tenant to show
the Premises to prospective tenants at times which shall not unreasonably
interfere with Tenant's business. If Tenant shall vacate the Premises during
the last month of the Term, Landlord shall have the unrestricted right to enter
the same after Tenant's moving to commence preparations for the succeeding
tenant or for any other purpose whatsoever, without affecting Tenant's
obligation to pay Rent for the full Term.
ARTICLE 15
FIRE CLAUSE
15.1 In the event the Premises or any part thereof, the elevators,
hallways, stairways or other approaches thereto, becomes damaged or destroyed by
fire or other casualty from any cause so as to render said Premises and/or
approaches unfit for use and occupancy, a just and proportionate part of the
Rent according to the nature and extent of the damage or injury to said Premises
and/or approaches, shall be suspended or abated until said Premises and/or
approaches have been put in as good condition for use and occupancy as at the
time immediately prior to such damage or destruction. Landlord shall proceed, at
its expense and as expeditiously as may be practicable, to repair the damage
unless, because of the substantial extent of the damage or destruction, Landlord
should decide not to repair or restore the Premises, in which event and at
Landlord's option Landlord may terminate this Lease forthwith by giving Tenant a
written notice of its intention to terminate within thirty (30) days after the
date of the fire or other casualty. If Landlord elects to repair the damage,
Landlord shall use reasonable efforts to minimize the disruption to Tenant
during such repairs. Landlord shall not be obligated to repair, restore or
replace any fixture, improvement, alteration, furniture or other property owned,
installed or made by Tenant, all of which shall be repaired, restored or
replaced by Tenant.
15.2 If (i) Landlord fails to give notice to Tenant within thirty
(30) days of after the date of the fire or other casualty of its intention to
restore or repair the Premises, or terminate this Lease, or (ii) the Premises
can not be restored and repaired as provided in Section 15.1 within a
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period of ninety (90) days after the date of the fire or other casualty, or
(iii) Landlord fails to restore or repair the Premises within ninety (90) days
after the date of the fire or other casualty, Tenant shall have the right, upon
notice to Landlord, to terminate this Lease.
15.3 Tenant shall immediately notify Landlord of any damage to the
Premises caused by fire or any other casualty.
15.4 No damages, compensation, or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Premises or the Building. Subject
to the provisions of Section 15.1, Landlord shall diligently proceed to have
such repairs made promptly.
ARTICLE 16
CONDEMNATION
16.1 This Lease shall be terminated and the Rent shall be abated to
the date of such termination in either of the following events: (a)
condemnation of the Premises, the Building or any part thereof by any competent
authority under right of eminent domain for any public or quasi-public use or
purpose; or (b) condemnation by competent authority under right of eminent
domain for any public or quasi-public use or purpose of twenty-five percent
(25%) or more of the Building in which the Premises are located. The forcible
leasing by any competent authority of any portion of the Building other than
the Premises shall have no effect upon this Lease. In case of any taking or
condemnation, whether or not the Term shall cease and terminate, the entire
award shall be the property of Landlord, and Tenant hereby assigns to Landlord
all its right, title and interest in and to any such award. Tenant however,
shall be entitled to claim, prove and receive in the condemnation proceeding
such awards as may be allowed for fixtures and other equipment installed by it,
but only if such awards shall be made by the court in addition to (and shall in
no manner whatsoever reduce) the award made by it to Landlord for the land and
improvements or part thereof so taken.
16.2 In the event of a temporary taking or condemnation of all or
any part of the Premises for any public or quasi-public use or purpose, this
Lease shall be unaffected and Tenant shall continue to pay in full Base Rent
and all Additional Rent payable for any such period. In the event of any such
temporary taking, notwithstanding the provisions of Section 16.1, Tenant shall
be entitled to claim, prove and receive the portion of the award for such
taking that represents compensation for use or occupancy of the Premises during
the Term, and Landlord shall be entitled to appear, claim, prove and receive
the portions of the award that represent the cost of restoration of the
Premises and the use or occupancy of the Premises after the end of the Term.
ARTICLE 17
DEFAULTS AND REMEDIES
17.1 It is hereby mutually agreed that: (a) if Tenant shall fail
(i) to pay Rent or other sums which Tenant is obligated to pay by any provision
of this Lease, when and as it is due and payable hereunder to Landlord, and
such failure continues for more than five (5) business days
14
after Tenant's receipt of notice thereof from Landlord (provided, that Landlord
shall not be required to provide Tenant with the notice and five-day period
more than twice in any twelve (12) month period, and thereafter each subsequent
failure to timely pay such sums shall immediately constitute an event of
default), or (ii) to keep and perform each and every covenant, condition and
agreement herein contained on the part of Tenant to be kept and performed, and
such failure continues for more than fifteen (15) days after Tenant's receipt
of notice thereof from Landlord and Tenant has not commenced diligently to
correct such default; or (b) if Tenant shall abandon the Premises and stop
paying rent; or (c) if the estate hereby created shall be taken by execution or
other process of law; or (d) if Tenant shall (i) generally not pay Tenant's
debts as such debts become due, (ii) become insolvent, (iii) make an assignment
for the benefit of creditors, (iv) file, be the entity subject to, or acquiesce
in a petition in any court (whether or not filed by or against Tenant pursuant
to any statute of the United States or any state and whether or not for a
trustee, custodian, receiver, agent, or other officer for Tenant or for all or
any portion of Tenant's property) in any proceeding whether bankruptcy,
reorganization, composition, extension, arrangement, insolvency proceedings, or
otherwise then, and in each and every such case, from thenceforth and at all
times thereafter, at the sole option of Landlord, Landlord may:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to do so, Landlord may
without notice and without prejudice to any other remedy Landlord may have,
enter upon and take possession of the Premises and expel or remove Tenant and
its effects without being liable to prosecution or any claim for damages
therefor; and Tenant shall indemnify Landlord for all loss and damage which
Landlord may suffer by reason of such termination, whether through the inability
to re-let the Premises or otherwise including any loss of Rent for the remainder
of the Term.
(b) Terminate this Lease, in which event Tenant's event of default
should be considered a total breach of Tenant's obligations under this Lease and
Tenant immediately shall become liable for such damages for such breach, in an
amount equal to the total of (1) the costs of recovering the Premises; (2) the
unpaid Rent earned as of the date of termination, plus interest thereon at a
rate per annum from the due date equal to four percent (4%) over the Prime Rate,
provided, however, that such interest shall never exceed the highest lawful
rate; and (3) all other sums of money and damages owing by Tenant to Landlord.
Tenant's right of possession shall cease and terminate and Landlord shall be
entitled to possession of the Premises and shall remove all persons and property
therefrom and reenter the Lease without further demand of Rent or demand of
possession of the Premises, either with or without process of law and without
becoming liable to prosecution therefor, any notice to quit or intention to
reenter being hereby expressly waived by Tenant.
(c) Declare the present worth (as of the date of such default) of
the entire balance of Rent for the remainder of the Term to be due and payable,
and collect such balances in any manner not inconsistent with applicable law.
For the purpose of this Section 17.1, "present worth" shall be computed by
discounting the entire balance to present worth at a discount rate equal to one
(1) percentage point above the discount rate then in effect at the Federal
Reserve Bank nearest the location of the Building.
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(d) Pursue any combination of such remedies and/or other remedy
available to Landlord on account of such default under applicable law. In the
event of any reentry or retaking of the Premises by Landlord and/or any
termination of this Lease by Landlord, Tenant shall nevertheless remain in all
events liable and answerable for the Rent to the date of such retaking, reentry
or termination and Tenant shall also be and remain answerable in damages for the
deficiency or loss of Rent as well as all related expenses which Landlord may
thereby sustain in respect to the balance of the Term, and, in such case,
Landlord reserves full power, which is hereby acceded to by Tenant, to let said
Premises for the benefit of Tenant, in liquidation and discharge, in whole or in
part, as the case may be, of the liability of Tenant under the terms and
provisions of this Lease, and damages and related expenses, at the option of
Landlord, may be recovered by it at the time of the retaking and reentry or in
separate actions, from time to time, as Tenant's obligation to pay Rent would
have accrued if the Term had continued, or from time to time as said damages and
related expenses shall have been made more easily ascertainable by reletting of
the Premises, or such action by Landlord may, at the option of Landlord, be
deferred until the expiration of the Term, in which latter event the cause of
action shall not be deemed to have accrued until the date of the termination of
the Term.
17.2 The provisions of this Article 17 are subject to the
bankruptcy laws of the United States of America which may, in certain cases,
limit the rights of Landlord to enforce some of the provisions of this Article
in proceedings thereunder. To the extent that limitations exist by virtue
thereof, the remaining provisions hereof shall not be affected thereby but
shall remain in full force and effect. The provisions of this Article 17 shall
be interpreted in a manner which results in a termination of this Lease in each
and every instance, and to the fullest extent and at the earliest moment that
such termination is permitted under the federal and state bankruptcy laws, it
being of prime importance to Landlord to deal only with tenants who have, and
continue to have, a strong degree of financial strength and financial stability.
17.3 All rents received by Landlord in any re-letting after
Tenant's default shall be applied, first to the payment of such expenses as
Landlord may have incurred in recovering possession of the Premises and in
re-letting the same (including brokerage fees), second to the payment of any
costs and expenses incurred by Landlord, either for making the necessary
repairs (including fitting up the space for such re-letting) to the Premises or
in curing any default on the part of Tenant of any covenant or condition herein
made binding upon Tenant. Any remaining rent shall then be applied toward the
payment of Rent due from Tenant, together with interest and penalties as
defined in Section 3.3, and Tenant expressly agrees to pay any deficiency then
remaining. Landlord shall in no event be liable in any way whatsoever (nor
shall Tenant be entitled to any set off) for Landlord's failure to re-let the
Premises, and Landlord, at its option, may refrain from terminating Tenant's
right of possession, and in such case may enforce against Tenant the provisions
of this Lease for the full Term.
17.4 In the event Tenant defaults in the performance of any of the
terms, covenants, agreements or conditions contained in this Lease and Landlord
places in the hands of an attorney or collection agency the enforcement of all
or any part of this Lease, the collection of any Rent due or to become due or
recovery of the possession of the Premises, Tenant agrees to pay Landlord's
costs of collection and enforcement including reasonable attorneys' fees,
whether suit is actually filed or not.
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ARTICLE 18
SUBORDINATION CLAUSE
This Lease shall be subject and subordinate at all times to the lien of
any mortgage or other encumbrance(s) which may now or which may at any time
hereafter be made upon the Premises or any portion thereof, or upon Landlord's
interest therein. This clause shall be self operative, and no further instrument
of subordination shall be required to effect the subordination of this Lease.
Nonetheless, in confirmation of such subordination, Tenant shall execute and
deliver such further instrument(s) subordinating this Lease to the lien of any
such mortgage or any other encumbrance(s) as shall be desired by any mortgagee
or party secured or proposed to be secured thereby. If the interests of Landlord
under this Lease shall be transferred by reason of foreclosure or other
proceedings for enforcement of any mortgage on the Premises, Tenant shall be
bound to the transferee at the option of the transferee, under the terms,
covenants and conditions of this Lease for the remaining Term, including any
extensions or renewals, with the same force and effect as if the transferee were
Landlord under this Lease, and, if requested by such transferee, Tenant agrees
to attorn to the transferee as its Landlord. The holder of any mortgage
encumbering the Premises shall have the right, unilaterally, at any time to
subordinate fully or partially its mortgage or other security instrument to this
Lease on such terms and subject to such conditions as such holder may consider
appropriate in its discretion. Upon request Tenant shall execute and deliver an
instrument confirming any such full or partial subordination.
ARTICLE 19
SURRENDER OF POSSESSION
Upon the expiration or earlier termination of the Term, Tenant shall
surrender the Premises and all keys, security cards and locks connected
therewith to Landlord in good order and repair (ordinary wear and tear, or
damage by fire or casualty and damage for which Landlord is responsible pursuant
to the terms of this Lease excepted). Subject to the provisions of Article 10,
any and all improvements, repairs, alterations and all other property attached
to or otherwise installed upon the Premises (i), shall, immediately upon the
completion of the installation thereof, be and become Landlord's property
without payment therefor by Landlord, and (ii) shall be surrendered to Landlord
upon the expiration or earlier termination of the Term, except that any
machinery, equipment and movable trade fixtures installed by Tenant and used in
the conduct of the Tenant's trade or business (rather than to service the
Premises generally) and all other personalty of Tenant shall remain Tenant's
property and shall be removed by Tenant upon the expiration or earlier
termination of the Term, and Tenant shall promptly thereafter fully repair any
damage to the Premises or the Building caused by such installation or removal
thereof.
ARTICLE 20
TENANT HOLDING OVER
If Tenant or any person claiming through Tenant shall not immediately
surrender possession of the Premises at the expiration or earlier termination of
the Term, Landlord shall be entitled to recover compensation for such use and
occupancy at one hundred fifty percent (150%) of the Base rent and Additional
Rent payable hereunder just prior to the expiration or earlier
17
termination of the Term. Landlord shall also continue to be entitled to retake
or recover possession of the Premises as herein before provided in case of
default on the part of Tenant, and Tenant shall be liable to Landlord for any
loss or damage it may sustain by reason of Tenant's failure to surrender
possession of the Premises immediately upon the expiration or earlier
termination of the Term. Tenant hereby agrees that alt the obligations of
Tenant and all rights of Landlord applicable during the Term shall be equally
applicable during such period of subsequent occupancy.
ARTICLE 21
ESTOPPELS
Tenant shall, without charge therefor, at any time and from time to
time, within five (5) days after request by Landlord, execute, acknowledge and
deliver to Landlord a written estoppel certificate certifying to Landlord, any
mortgagee, assignee of a mortgagee, or any purchaser of the Premises, or any
other person designated by Landlord, as of the date of such estoppel
certificate: (a) that Tenant is in possession of the Premises; (b) that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that this Lease is in full force and effect as modified and
setting forth such modification); (c) whether or not to the best of Tenant's
knowledge there are then existing setoffs or defenses against the enforcement of
any right or remedy of Landlord, or any duty or obligation of Tenant hereunder
(and, if so, specifying the same in detail); (d) the amount of the Base Rent and
the dates through which Base Rent and Additional Rent have been paid, (e) that
Tenant has no knowledge of any then uncured defaults on the part of Landlord
under this Lease (or if Tenant has knowledge of any such uncured defaults,
specifying the same in detail); (f) that Tenant has no knowledge of any event
having occurred that authorizes the termination of this Lease by Tenant (or if
Tenant has such knowledge, specifying the same in detail); (g) the amount of any
Security Deposit held by Landlord; and (h) such reasonable other information
requested by Landlord, such mortgagee, assignee of such mortgagee, such
purchaser or such other person. Failure to deliver the certificate within five
(5) days after request by Landlord shall be conclusive upon Tenant for the
benefit of Landlord and any successor to Landlord that this Lease is in full
force and effect and has not been modified except as may be represented by the
party requesting the certificate.
ARTICLE 22
LIEN ON TENANT'S PROPERTY
To protect Landlord in the event Tenant defaults hereunder, Tenant
hereby grants to Landlord a continuing security interest for all Rent and other
sums of money becoming due hereunder from Tenant, and upon all goods, wares,
chattels, fixtures, furniture and other personal Building of Tenant which are or
may be located on the Premises and the proceeds thereof, none of which may be
removed from the Premises without Landlord's consent so long as any Rent or
other such sum from time to time owed to Landlord hereunder remains unpaid.
Tenant shall, on its receipt of a written request therefor from Landlord,
execute such financing statements, continuation statements and other instruments
as are necessary or desirable, in Landlord's judgment, to perfect such security
interest.
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ARTICLE 23
BROKERS
Except for commissions which may be payable by Landlord to Xxxxxxx Real
Estate and Coldstream Real Estate Advisors (collectively, "Commissions"), Tenant
and Landlord each represents and warrants that it has not entered into any
agreement with, nor otherwise had any dealings with, any broker or agent in
connection with the negotiation or execution of this Lease which could form the
basis of any claim by any such broker or agent for a brokerage fee or
commission, finder's fee, or any other compensation of any kind or nature in
connection herewith, and Tenant and Landlord each shall indemnify, defend and
hold the other harmless from and against any costs (including, but not limited
to, court costs and attorneys' fees), expenses, or liability for commissions or
other compensation claimed by any broker or agent with respect to this Lease
which arises out of any agreement or dealings between Tenant and any such agent
or broker.
ARTICLE 24
NOTICES AND DEMANDS
All notices required or permitted hereunder shall be deemed to have
been given if mailed in any United States Post Office by certified or registered
mail, postage prepaid, return receipt requested, addressed to Landlord or Tenant
respectively, at the following addresses or to such other addresses as the
parties hereto may designate to the other in writing from time to time:
TENANT:
If given prior to the Commencement Date:
Environmental Power Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, CEO
If given after the Commencement Date:
Environmental Power Corporation
0 Xxxx Xxxxxx, Xxxx 0
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, CEO
LANDLORD:
Merkle, Soupcoff, & Xxxxxxxxxx, Inc.
0 Xxxx Xxxxxx, Xxxx 0X
Xxxxxxxxxx, XX 00000
Attn: Business Manager
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ARTICLE 25
QUIET ENJOYMENT
Landlord covenants and agrees that upon Tenant paying the Rent, the
Additional Rent and any other charges due and payable and observing and
performing all the terms, covenants and conditions on Tenant's part to be
observed and performed, Tenant may peaceably and quietly enjoy the Premises
hereby demised, subject, nevertheless, to the terms and conditions of this Lease
and to any mortgages and deeds of trust hereinbefore mentioned.
ARTICLE 26
WAIVER OF TRIAL BY JURY
LANDLORD AND TENANT EACH AGREE TO, AND THEY HEREBY DO, WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE
OR OCCUPANCY OF THE PREMISES AND ANY CLAIM OF INJURY OR DAMAGE, AND ANY
STATUTORY REMEDY.
ARTICLE 27
MISCELLANEOUS
27.1 This Lease shall be construed and governed by the laws of the
State of New Hampshire. Should any provision of this Lease and/or its conditions
be illegal or not enforceable, it or they shall be considered severable, and
this Lease and its conditions shall remain in force and be binding upon the
parties hereto as though said provision or provisions had not been included.
27.2 The term "Tenant" shall include legal representatives,
successors and permitted assigns.
27.3 No waiver or breach of any covenant, condition or agreement
herein contained shall operate as a waiver of the covenant, condition or
agreement itself, or of any subsequent breach thereof.
27.4 Notwithstanding anything to the contrary contained in this
Lease, Tenant shall look only to Landlord's ownership in the Premises for
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process requiring the payment of money by Landlord in the event of any
default by Landlord hereunder, and no other property or assets of the
principals of Landlord, disclosed or undisclosed, shall be subject to levy,
execution or the enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder or Tenant's use or occupancy of the Premises. No personal
liability or personal responsibility is assured by, nor shall at any time be
asserted or enforceable against Landlord, its principals, or their respective
heirs, legal representatives, successors and assigns on account of this Lease
or any covenant, undertaking, or
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agreement of Landlord contained herein. If any provision of this Lease either
expressed or implied obligates Landlord not to unreasonably withhold its
consent or approval, an action for declaratory judgment or specific performance
shall be Tenant's sole right and remedy in any dispute as to whether Landlord
has breached such obligation. Landlord's remedies for a breach of this Lease by
Tenant shall determined under Article 17 of this Lease.
27.5 TENANT AND LANDLORD EXPRESSLY AGREE THAT THERE ARE NO IMPLIED
WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH
EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
27.6 This Lease shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. This provision shall not be deemed to
grant Tenant any right to assign this Lease or sublet the Premises or any part
thereof other than as provided in Article 13 hereof.
27.7 It is understood and agreed by and between the parties hereto
that this Lease contains the final and entire agreement between said parties,
and that they shall not be bound by any terms, statements, conditions or
representations, oral or written, express or implied, not herein contained.
This Lease may not be modified orally or in any manner other than by written
agreement signed by the parties hereto.
27.8 Every agreement contained in this Lease is, and shall be
construed as a separate and independent agreement. If any term of this Lease or
the application thereof to any person or circumstances shall be invalid and
unenforceable, the remaining provisions of this Lease, the application of such
term to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected.
27.9 Whenever a period of time is herein prescribed for action to
be taken by Landlord, or Tenant, neither Tenant nor Landlord shall be liable or
responsible for, and there shall be excluded from the computation for any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations or restrictions, or any
other cause of any kind whatsoever which is beyond its reasonable control.
27.10 The submission of this Lease to Tenant shall not be construed
as an offer nor shall Tenant have any rights with respect thereto unless
Landlord executes a copy of this Lease and delivers same to Tenant.
27.11 If, in connection with obtaining financing for the Premises,
any lender shall request modifications to this Lease as a condition for such
financing, Tenant will not unreasonably withhold, delay, or defer its consent
thereto, provided that such modifications do not increase the obligations of
Tenant or decrease the rights of Tenant hereunder or materially adversely
affect either the leasehold interest hereby created or Tenant's use and
enjoyment of the Premises.
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27.12 All times, whenever stated in this Lease, are declared to be
of the essence of this Lease.
27.13 Tenant's use of the Premises in accordance with the terms of
this Lease shall not result in a violation of the Declaration of the
Condominiums, the By-Laws of the Condominiums or any rules and regulations
adopted as of the date hereof by the Board of Directors of the Condominiums.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands
and seals, by their duly authorized officers, as of the day and year first above
written.
LANDLORD:
MERKLE, SOUPCOFF, & XXXXXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxx Xxxxxx Title: President
--------------------------- ------------------------------
Witness
TENANT:
ENVIRONMENTAL POWER
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx Xxx Title: Chairman and CEO
--------------------------- -----------------------------
Witness
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EXHIBIT A
DESCRIPTION AND FLOOR PLAN
EXHIBIT B
LANDLORD'S WORK
EXHIBIT C
RULES AND REGULATIONS OF THE CONDOMINIUMS
