1
Exhibit 10.55
LEASE AGREEMENT
BETWEEN
STORM XXXXXXX, INC.
AND
CREATIVE BIOMOLECULES
2
LEASE AGREEMENT
THIS AGREEMENT made this 15th day of May, 1998 by and between Storm
Xxxxxxx, Inc. (hereinafter referred to as "Landlord") and Creative Biomolecules
(hereinafter referred to as "Tenant").
W I T N E S E T H:
THAT Landlord, for and in consideration of the rentals and covenants
hereinafter mentioned on the part of Tenant, its successors and assigns to be
performed, has leased, and by these presents does lease, unto Tenant, and Tenant
does hereby take and hire from Landlord upon and subject to the conditions
hereinafter expressed the premises described as the westerly portion of the
"Building" located on lots 8 and 9 at The Xxxxxx Park in Xxxxxx, Vermont, and
consisting of approximately 9,200 square feet. Said premises are shown outlined
in red on Exhibit "A" annexed hereto and made a part hereof (hereinafter
referred to as the "Premises").
IT IS FURTHER understood and agreed by and between the parties
hereto as follows:
ARTICLE 1
TERM
A. TERM - The initial term (the "term") of this Lease shall be for a
period of three (3) years beginning on May 15, 1998 and ending on April 15,
2001.
B. OPTIONS TO EXTEND LEASE - Provided that Tenant is not, and has
not been, in default or in breach of its lease obligations as set forth herein,
Tenant shall have the right to extend the terms of this Lease for two (2)
additional terms of five (5) years each, under the same terms and conditions as
set forth herein except that the rent for each year of said renewal term shall
be as set forth in Article 2 below. To exercise an option to extend, the Tenant
must give the Landlord written notice of its intention to exercise such option
no later than 120 days prior to the expiration date of the prior term. Upon the
exercise of an option by Tenant, Tenant shall execute any documentation required
by Landlord to memorialize said extension including, but not limited to, any
estoppel certificates.
3
ARTICLE 2
FIXED RENT AND ADDITIONAL RENT
A. BASE RENT - The term "lease year" shall mean the period of twelve
(12) months commencing on May 1, 1998 and ending on the following April 30,
1999, and each successive period of twelve months thereafter during the term of
this Lease.
Landlord agrees that Tenant shall not pay base rent for the
period beginning May 1, 1998 and ending on July 31, 1998 (three months) in
consideration for Tenant's agreement to make the improvements to the Premises
identified on Exhibit B as referenced in Article 7 hereof.
Except for the waiver of the first three months rent as described
above, the Tenant shall pay to the Landlord the base rent of Forty-Eight
Thousand, Three Hundred Dollars ($48,300) per lease year in twelve (12) monthly
installments of Four Thousand Twenty-Five Dollars ($4,025) each payable in
advance on the first day of each month during the term of this Lease, at
Landlord's original address, or at such other place as Landlord shall from time
to time designate by written notice, with adjustments at the beginning of years
two and three and for any renewal term in accordance with Section 2B below.
In the event Tenant exercises the option or options described
above to extend the Lease Term, the Base Rent for each respective option term
(four (4) through eight (8) and years nine (9) through thirteen (13)) will be
based upon the last years rent for the prior lease term increased by the
Consumer Price Index set forth in Section 2B. Said rent shall constitute the
rent of the first year of each option term and shall thereafter be increased for
each year of each option term based upon the Consumer Price Index calculation
set forth in Section 2B.
The Tenant's failure to pay any rent due under the terms of this
Lease for a period of ten (10) days following the due date of said payment
shall, in addition to all other remedies or penalties otherwise available to
Landlord, require the payment of an amount equal to five percent (5%) of the
amount due Landlord for the defaulted payment, This five percent (5%) payment
shall be deemed rent.
B. ADJUSTMENTS TO BASE RENT - At the beginning of the second lease
year of the term, the annual base rent shall be increased by the percentage
increase for the preceding lease year in the All Urban Boston Region "All Items"
Consumer Price Index published by the United States Department of Labor, Bureau
of Labor Statistics ("CPI") or in an amount equal to four percent (4%),
2
4
whichever is greater. At the beginning of the third lease year and at the
beginning of each lease year thereafter and for any renewal period, the annual
base rent for the preceding year shall be increased annually by the percentage
increase in the CPI during the prior lease term immediately preceding the lease
year for which the base rent is being adjusted. The base rent adjustment shall
be the greater of the CPI increase as calculated above or four percent (4%).
If the CPI is changed so that the base year of the CPI differs
from that used as of the commencement of this Lease, the CPI shall be converted
in accordance with the conversion factor published by the United States
Department of Labor, Bureau of Labor Statistics. If the CPI is discontinued or
revised while this Lease is in effect, such other government index or
computation with which it is replaced shall be used in order to obtain
substantially the same result as would be obtained if the CPI had not been
discontinued or revised.
C. TENANT'S SHARE OF INCREASES IN INSURANCE, REAL ESTATE TAXES AND
OTHER COSTS - The Tenant shall be responsible for and shall pay the Landlord as
additional rent an amount equal to the Landlord's total costs for each of the
following costs attributable to the leased Premises for each lease year. The
Tenant's share of the Landlord's costs attributable to the leased Premises
equals 57.14% of the Landlord's total costs.
1. Fire and Casualty Insurance (see Paragraph 3F below).
2. Real Estate Taxes and Assessments Attributable to the
Building and the Land Upon which it is Situated (see
Paragraph 4 below).
3. Trash Removal Charges (see Paragraph 5 below).
4. Water Charges Assessed by the Town of Hartford (see Paragraph
5 below).
5. Sewer Charges Assessed by the Town of Hartford (see Paragraph
5 below).
6. Snow Plowing Charges.
7. Such other charges, costs or expenses payable by Landlord and
directly attributable to Tenant's use and possession of the
Premises.
The Landlord shall xxxx the Tenant for any amount of additional
rent due to the Landlord as a result of the costs of such items; such xxxx or
bills shall include a statement showing the actual underlying costs to the
Landlord for such items for the lease year in question and the calculation by
which the Landlord determines the amount due on the leased Premises as
additional
3
5
rent. Landlord shall xxxx Tenant on a quarterly basis. Each such xxxx shall be
payable within twenty days of issuance by the Landlord. All charges provided for
in this paragraph shall be collectible as rent, the nonpayment of which shall
entitle Landlord to all rights and remedies to which Landlord is entitled for
the nonpayment of rent pursuant to the terms of this Lease Agreement.
Excluded from additional rent under Article 2(C) of the Lease are
late charges, interest or other penalties or expenses incurred as a result of
Landlord's acts and omissions; charges incurred by Landlord for services,
supplies, or equipment purchased or leased for other real estate of Landlord;
depreciation and amortization on the Building; expenses for services provided
solely to other tenants or occupants and not to Tenant; costs to refurbish any
other Premises in order to lease said other Premises to a present or new tenant;
overhead and profit increments paid to Landlord or its subsidiaries or
affiliates; commercial concessions; repairs or other work occasioned by fire,
windstorm or other casualty of an insurable nature or other work paid from
insurance or condemnation proceeds; costs for correcting code violations;
capital improvements; and expenses attributable to increasing the size of the
Building or Common Areas.
ARTICLE 3
INSURANCE
The Tenant shall maintain with responsible companies reasonably
approved by the Landlord:
A. Liability insurance, with contractual liability endorsement
against all claims, demands or actions for personal injury to or death of any
one person in an amount of not less than Two Million Dollars and for injury to
or death of not more than one person in any one accident or occurrence to the
limit of not less than Three Million Dollars and/or damage to property in an
amount not less than Five Hundred Thousand Dollars for personal property and
Three Million Dollars for damage to real property, made by or on behalf of any
person, arising from, related to or in any way connected with the conduct and
operation of the Tenant's business, including the uses, storage or
transportation of hazardous or toxic materials in the leased Premises, or caused
by actions or omissions to act, where there is a duty to act, of the Tenant, its
agents, servants and contractors.
B. Casualty and fire insurance policies with full extended coverage
provisions with respect to the Premises in an amount not less than the full
replacement cost of the Premises and improvements thereon, but in no event less
than the amount sufficient to avoid the effect of the co-
4
6
insurance provisions of the applicable policy or policies.
C. Boiler insurance policies of insurance, against loss or damage
arising from incidents relating to the heating systems, electrical systems, gas
pipes, gas and/or oil boilers, other pressure vessels, high pressure and/or oil
piping and machinery, if any, installed in the building and improvements, in an
amount reasonably satisfactory to Landlord.
D. Business interruption and/or loss of rental value insurance
policies on an actual loss sustained basis in such amounts as are reasonably
satisfactory to the Landlord.
E. The Landlord shall not be liable to the Tenant for loss or damage
from any cause whatsoever to machinery and equipment, furnishings, fixtures,
inventory or other personal property, except arising from or relating to the
negligent acts of Landlord or its employees, contractors or agents.
F. The Landlord shall carry and shall pay for such additional fire
and other casualty insurance on the structure as Landlord deems advisable in
such amounts as may be necessary to replace or repair the structure and
improvements thereto, subject to reimbursement by the Tenant for the cost of
said insurance, as provided under Xxxxxxxxx 0X xxxxx.
X. The Tenant shall obtain, if available, a waiver from any
insurance carrier with which the Tenant carries insurance against fire and other
casualties covering the Tenant's property and merchandise releasing its right of
subrogation as against the Landlord. Similarly, the Landlord shall obtain, if
available, a waiver from any insurance on the structure, releasing the
Landlord's right of subrogation as against the Tenant.
All of said insurance as identified in subsections A, B, C and D
above shall name the Landlord as a co-insured thereunder and shall be in a form
satisfactory to the Landlord and shall provide that it shall not be subject to
cancellation, termination, or modification except after at least ten (10) days
prior written notice to the Landlord. All policies required or duly executed
certificates for the same shall be deposited with the Landlord upon execution of
this Lease and upon renewals of said policies not less than fifteen (15) days
prior to the expiration of the term of such coverage. All such policies or
certificates shall be delivered with satisfactory evidence of the payment of the
premium therefore. The Tenant may carry any of the foregoing insurance as part
of a blanket policy maintained by the Tenant covering other locations.
5
7
ARTICLE 4
REAL ESTATE TAXES
The Landlord shall pay all real estate taxes assessed against the
leased Premises during the term of this Lease subject to reimbursement by the
Tenant as provided under Paragraph 2.C.2 above. Tenant shall reimburse Landlord
for any other assessments or fees which may in the future be levied against the
use of the Premises by the Town of Hartford or any other governing body or
public utility including, but not limited to real estate or ad valorem taxes.
Tenant shall also pay to the appropriate taxing authority the amount
of all assessments, impositions and taxes made, levied or assessed against or
imposed upon any and all property of Tenant.
If at any time during the term of this Lease the methods of taxation
prevailing at the execution hereof shall be changed or altered so that in lieu
of or as a supplement to or a substitute for the whole or any part of the real
estate taxes or assessments now or from time to time hereafter levied, assessed
or imposed by applicable taxing authorities, there shall be imposed (i) a tax,
assessment, levy, imposition or charge, wholly or partially as a capital levy or
otherwise, on the rents received from the Premises, or (ii) a tax, assessment,
levy (including but not limited to any municipal, state or federal levy),
imposition or charge measured by or based in whole or in part upon the Premises
and imposed upon Landlord, or (iii) a license fee measured by the rent payable
under this Lease, then all such taxes, assessments, levies, impositions and/or
charges, or the part thereof so measured or based shall be deemed to be included
in the general real estate taxes and assessments payable by Tenant pursuant
hereto, to the extent that such taxes, assessments, levies, impositions and
charges would be payable if the Premises were the only property of Landlord
subject thereto, and Tenant shall pay and discharge the same as herein provided
in respect of the payment of general real estate taxes and assessments.
The Tenant, after notice to the Landlord, may contest in good faith,
by appropriate proceedings conducted promptly at the Tenant's expense, in the
Tenant's name or (whenever necessary) in the Landlord's name, any such taxes,
assessments, duties or charges and the Landlord agrees to cooperate reasonably
with the Tenant and to execute any documents or pleadings reasonably required
for such purpose, provided that the Landlord shall not incur any expense or
6
8
liability in connection therewith. The Tenant may defer payment of the contested
tax, assessment, duty or charge pending such contest, provided that the Tenant
shall deposit with the Landlord a sum which shall be at least equal to the
amount of the payment so deferred plus estimated penalties and interest thereon,
and provided further that the Landlord may, upon reasonable notice to Tenant,
pay such contested item or items out of any sums so deposited in case of undue
delay in the prosecution of such contest or if the protection of the property or
of the Landlord's interest therein shall, in the reasonable judgment of the
Landlord, require such payment. The Tenant may not, however, defer payment of
such contested item unless the Tenant shall procure and deliver to the Landlord
a written agreement, in form reasonably satisfactory to the Landlord, signed by
the holder or holders of any mortgage covering the demised Premises, to the
effect that no default will be declared under such mortgage by reason of such
deferment. When any such contested item shall have been paid or cancelled, any
sums so deposited to cover the same and not applied by the Landlord as aforesaid
shall be repaid to the Tenant without interest. Any tax refund shall be the
property of the Tenant to the extent to which it may be based on a payment made
by the Tenant.
ARTICLE 5
WATER AND SEWER CHARGES, TRASH REMOVAL CHARGES,
HEAT AND ELECTRICITY CHARGES
The Landlord shall provide and/or bear the expense of water and
sewer charges, trash and snow removal charges, subject to reimbursement by
Tenant as provided under Paragraph 2.C. above. The Tenant shall provide and/or
bear and be solely responsible for all electrical expenses and any expenses
necessary for the providing of heat for the Premises.
ARTICLE 6
REPAIR AND MAINTENANCE OBLIGATIONS
A. Except as provided in Article 6(C), the Tenant shall at its own
cost and expense, at all times, keep the leased Premises in good order,
condition and repair. The said obligations for maintenance and repair shall
include, but not be limited to, all interior partitions, doors, door closures,
fixtures, equipment and appurtenances thereto (including the lighting,
electrical, heating, plumbing and air conditioning systems), signs, floor
coverings, windows, interior walls and ceilings.
B. All repairs required to be made by Tenant shall be performed in a
good and
7
9
workmanlike manner, shall be at least equal in quality, utility and usefulness
to the condition at the commencement of this Lease, shall be of a first-class
character and shall not diminish the overall value of the Premises. All such
repairs, replacements and renewals in connection with the Premises shall,
immediately upon the expiration or earlier termination of the term hereof, be
and become the property of Landlord without payment therefor by Landlord and
shall be surrendered to Landlord upon the expiration or earlier termination of
the term hereof. Upon the expiration or earlier termination of the term hereof,
Tenant shall surrender the Premises to Landlord in good order, condition and
repair, except for ordinary wear and tear.
In the event that Tenant shall fail or neglect to make any
necessary repairs as and to the extent required of Tenant pursuant to this
Lease, then Landlord or its agent may, without any obligation so to do, after
thirty (30) days' notice to Tenant and upon Tenant's failure to cure the same
within said thirty (30) days, enter the Premises and make said repairs at the
cost and expense of Tenant, and in case of Tenant's failure to pay therefor, the
said cost and expense shall be payable on demand together with interest at nine
percent (9%) per annum (or the maximum amount permitted by law, whichever shall
be less).
C. Landlord shall maintain, replace and repair when necessary the
exterior of the structure including, but not limited to, the roof, exterior
walls, and all exterior service pipes and mains which service the lease
Premises, the parking areas and other common areas, unless any of the above is
damaged or the need to repair any of the above is caused by the acts of Tenant,
its agents, employees or business invitees.
ARTICLE 7
ALTERATIONS
Except as set forth in Exhibit B attached hereto Tenant shall not
make or cause to be made any alterations, additions or improvements in or make
any changes with respect to the leased Premises without first obtaining the
Landlord's written approval and consent, which such approval and consent shall
not be unreasonably withheld or delayed. Any such additions, alterations or
improvements approved by the Landlord shall be completed in a workmanlike manner
and in accordance with complete construction plans and specifications approved
by the Landlord, and all work shall conform to any and all government
regulations, rules or laws related to said improvements.
8
10
A. No alteration or addition shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required from time to
time, all permits and authorizations of the various governmental agencies having
jurisdiction thereover. Landlord agrees to join in the application for such
permits or authorizations whenever such action is necessary.
B. All alterations and additions when completed shall be of such a
character as not to reduce, or otherwise adversely affect the value of the
Premises, nor to reduce the size of the building, the cubic content thereof, nor
change the character of the Premises. Tenant or its contractors shall make all
repairs to and replacements of such alterations and additions made by it in and
to the Premises.
C. All work done by Tenant shall be done promptly, in a good and
workmanlike manner, and in compliance with the building and zoning laws of the
municipality in which the Premises are located and in compliance with all laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments and the appropriate departments, commissions, boards
and officers thereof, and in accordance with the orders, rules and regulations
of the Board of Fire Underwriters where the Premises are situated or any other
body exercising similar functions and having jurisdiction thereof; said
alterations or additions shall be constructed and completed free of liens for
labor and material supplied or claimed to have been supplied to the Premises.
D. Tenant shall at Tenant's sole cost and expense, at all times when
any work is in process in connection with any alterations or additions, maintain
Builders Risk casualty insurance policy coverage in the amount of the full
replacement cost thereof, and Statutory Workmen's Compensation Insurance
covering all persons employed in connection with the work and with respect to
whom death or injury claims could be asserted against Landlord, Tenant or the
Premises, general liability insurance with the same limitations of coverages as
set forth in Article 3, during the period of construction. All such insurance
will be issued by a company or companies authorized to do business in Vermont
and satisfactory to Landlord, and all such policies (or certificates therefor)
shall be delivered to Landlord and shall provide for at least ten (10) days'
prior written notice to Landlord of cancellation.
E. All alterations and additions made or installed by Tenant shall
be and become the property of Landlord without payment therefor by Landlord, and
shall be surrendered to Landlord upon the expiration or sooner termination of
the term of this Lease. If Tenant shall not be in default
9
11
of any of its obligations under this Lease and all prior defaults shall have
been fully cured at the termination of the term hereof, upon the termination of
the lease term or any renewal thereof, Tenant shall have the right to remove its
trade fixtures and personal property from the Premises provided, however, that
Tenant shall, at its own cost and expense, repair any damage caused by such
removal and shall have restored the Premises to the condition that it was in
prior to the installation of Tenant's said trade fixtures and personal property.
F. Notwithstanding the above, Tenant shall have the right, at is own
expense and without Landlord's consent, to decorate the Premises and to make any
non-structural alterations and changes less than $1,500 per alteration or
change, as it shall deem expedient to the better conduct of its business,
provided that (a) such alterations and/or changes do not injure the structural
safety of either the Premises or the Building, and in no way diminish the value
of either, and (b) such alterations and/or changes are done in a good and
workmanlike manner, employing materials of good quality and complying with all
proper governmental requirements.
G. Landlord agrees at its sole cost and expense to: (1) Hard pack
the rear driveway and parking apron areas; and (2) Build a new shed type roof,
front step and associated stone work at the front entryway of the leased
Premises. All work to be done by Landlord shall be done promptly, in a good and
workmanlike manner, and in compliance with the building and zoning laws of the
municipality in which the Premises are located and in compliance with all laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments and the appropriate departments, commissions, boards
and officers thereof.
ARTICLE 8
MECHANICS' LIENS
Tenant shall not suffer or permit any liens, mechanics' liens,
mechanics' notices of intention, or the like to be filed against the Premises or
any part thereof by reason or work, labor, services, equipment or materials
supplied or claimed to have been supplied to or on behalf of Tenant or anyone
holding the Premises or any part thereof through Tenant. Before any persons or
entities perform any work or supply any materials to the Premises which could
form the basis for a mechanics' lien, Tenant shall require such persons or
entities to waive their mechanics' lien rights, said waiver to be done in
writing and conspicuously. If any such liens, mechanics' liens, mechanics'
notices of intention, or the
10
12
like shall at any time be filed against the Premises, Tenant shall cause the
same to be discharged of record within thirty (30) days after the date of filing
the same, or if Landlord shall by written agreement with Tenant, permit same to
remain undischarged, Tenant shall post an insurance company surety bond
providing for and securing due payment thereof and saving Landlord harmless and
indemnifying it with respect thereto. Tenant shall not have any right whatsoever
to subject the interests of Landlord in the Premises or in the fee simple title
thereto to any mechanics' liens or other liens whatsoever and nothing contained
in this Lease shall be deemed to operate as an express or implied consent to
Tenant to subject the interests of Landlord to any such lien or liens.
ARTICLE 9
COMPLIANCE WITH LAW
Tenant throughout the term of this Lease at Tenant's sole cost and
expense, shall promptly comply with all laws and ordinances and the orders,
rules, regulations and requirements of all federal, state and municipal
governments and appropriate departments, commissions, boards and officers
thereof and the orders, rules and regulations of any Board of Fire Underwriters
or similar body or agency where the Premises are situated, or any body, now or
hereafter constituted, exercising similar functions, foreseen or unforeseen,
ordinary or extraordinary, relating to the Premises or to Tenant's use and
occupancy thereof.
Tenant will observe and comply with the requirements of the carriers
of any reasonable policy of insurance respecting the Premises of which Tenant
has written notice, and the requirements of all policies of public liability,
fire, casualty and other policies of insurance at any time in force with respect
to the Premises.
In the event that Tenant shall fail or neglect to comply with any of
the aforesaid obligations, then Landlord without any obligation so to do, after
thirty (30) days' notice to Tenant and upon Tenant's failure to cure the same
within said thirty (30) days, may enter the Premises and effect compliance at
the cost and expense of Tenant, and in case of Tenant's failure to pay therefor,
the said cost and expense shall be payable on demand, together with interest at
nine percent (9%) per annum.
Landlord hereby represents to Tenant that, to the best of Landlord's
knowledge, the Landlord's land and building have received all necessary permits
and approvals for occupancy and the Landlord has received no notice of any
violation of any said permit or approval. Landlord further
11
13
represents to Tenant that the driveways, sidewalks and parking areas will
throughout the term hereof comply with all laws, ordinances, rules and
regulations of any permitting authorities, and Landlord shall hold Tenant
harmless from any costs, liability, losses or damages (including reasonable
legal fees) arising out of any failure to so comply, unless failure to comply
shall be a result of the acts or omissions of Tenant or its agents or employees.
ARTICLE 10
CONDITION OF PREMISES
The Tenant acknowledges that it has knowledge of the condition of the leased
Premises and that no representation as to the condition or the repair thereof
has been made by Landlord and that no repairs, alterations or renovations are to
be made by the Landlord except as set forth herein.
ARTICLE 11
INSPECTION BY LANDLORD
A. Tenant agrees to permit Landlord and the authorized
representatives of Landlord, upon reasonable advance notice, to enter the
Premises during usual business hours of Tenant in a manner not to unreasonably
interfere with Tenant's business: (i) for the purpose of inspecting the same,
and (ii) if Landlord so elects, but without any obligation so to do, and if
Tenant has failed to do so within a reasonable time, for the purpose of making
any necessary repairs to the Premises and performing any work therein which may
be reasonably necessary to comply with any laws, ordinances, rules, regulations
or requirements of any public authority or of the Board of Fire Underwriters or
any similar body, or which may be reasonably necessary to prevent waste or
deterioration in connection with the Premises. Nothing herein shall imply any
duty upon the part of Landlord to do any work which, under any provision of this
Lease Tenant may be required to perform, and the performance thereof by Landlord
shall not constitute a waiver by Landlord of Tenant's default in failing to
perform the same. Landlord may, during the progress of any such work in the
Premises, keep and store upon the Premises all necessary materials, tools and
equipment. Landlord shall not in any event be liable for inconvenience,
annoyance, disturbance, loss of business or other damage to Tenant by reason of
making such repairs or the performance of any such work in the Premises, or on
account of bringing materials, supplies and equipment into or through the
Premises during the course thereof, and the obligations of Tenant under this
Lease shall not thereby
12
14
be affected in any manner whatsoever; provided always, however, that to the
extent that Landlord elects to perform or is obligated to perform any such
repairs pursuant to the provisions of this Lease, Landlord agrees that (to the
extent reasonably practicable under the circumstances) Landlord shall use its
best efforts to cause such repairs to be performed in such a way as to cause a
minimum of inconvenience to Tenant in the operation of Tenant's business in the
Premises and to cause the said work to be accomplished in as expeditious a
manner as is reasonably practicable.
B. During the final six (6) months of the term, Landlord is hereby
given the right at any time during usual business hours and upon prior
reasonable notice to Tenant to enter the Premises and to exhibit the same for
the purposes of sale and/or lease. Landlord shall be entitled to show the
Premises to potential buyers and/or prospective tenants and to display on the
Premises in such manner as not unreasonably to interfere with Tenant's business
the usual "For Sale" or "To Let" signs and Tenant agrees that such signs may
remain, unmolested, upon the Premises.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
A. Provided that this Lease shall be in good standing and that
Tenant shall not be in default of any of its obligations hereunder, Tenant may,
without Landlord's consent, hereafter assign this Lease or sublet the Premises
to any subsidiary or parent corporation of the Tenant or to any corporation into
or with which the Tenant or its parent or subsidiary corporation shall be duly
merged, converted or consolidated under any statutory proceeding, provided that
the total assets and net worth of such assignee, after such consolidation or
merger, shall be equal to or more than that of Tenant immediately prior to such
consolidation or merger, and provided further that such successor shall execute
an instrument in writing reasonably satisfactory to Landlord's counsel fully
assuming all of the obligations and liabilities imposed upon Tenant hereunder
and shall deliver the same to Landlord. No such assignment or subletting shall
operate to relieve Tenant from any liability hereunder.
B. Unless Landlord shall have given its prior written consent
thereto, which consent Landlord agrees it shall not unreasonably withhold or
delay, subject to the consent of its mortgagee(s), and except as provided in
Article 12(A), Tenant may not assign, mortgage, pledge, encumber or otherwise
transfer this Lease or sublet the Premises. In the event that this Lease shall
13
15
be assigned or the Premises sublet, then and in that event and in addition to
any other remedies for breach available to Landlord, all of the net proceeds,
avails and profits of any such assignment or subletting shall be paid to and
shall constitute the sole and exclusive property of the Landlord herein.
C. Should Tenant at any time during the term hereof desire to assign
this Lease or sublet the Premises to a party other than a party under Section A.
of this Article 12, Tenant shall furnish Landlord with thirty (30) days or more
advance written notice (prior to the date of such proposed assignment)
specifying therein the date of such proposed assignment or subletting, the name
and address of the proposed assignee or subtenant, and if a corporation or
partnership, its principals and the nature of the business proposed to be
conducted in the Premises by said assignee or subtenant. If Tenant assigns this
Lease or sublets the Premises without previously obtaining Landlord's consent as
aforesaid, Landlord, by giving notice to the Tenant within thirty (30) days
after receipt of notice thereof, shall have the option to cancel and terminate
this Lease effective as of the date of such assignment or subletting or as of
the last day of the thirty (30) day notice period mentioned in this sentence,
whichever date shall be later. Landlord's failure to exercise its option as
contemplated by this section C. shall not be deemed to constitute Landlord's
consent to Tenant's proposed assignment of this Lease of the Premises or any
part thereof. Landlord shall not in any event whatsoever be deemed to be
obligated to consent to any proposed assignment of this Lease or subletting of
the Premises.
D. Without limiting any of the provisions hereof, if pursuant to the
Federal Bankruptcy Code (or any similar law hereafter enacted having the same
general purpose), Tenant is permitted to assign this Lease or sublet the
Premises notwithstanding the restrictions contained in this Lease, adequate
assurance of future performance by an assignee or subtenant expressly permitted
under such Code shall be deemed to mean the deposit of cash security in an
amount equal to the sum of one year's fixed rent plus an amount equal to the
additional rent for the lease year preceding the year in which such assignment
or subletting is intended to become effective, which deposit shall be held by
Landlord for the balance of the term, without interest, as security for the full
performance of all of Tenant's obligations under this Lease.
14
16
ARTICLE 13
UTILITIES
Tenant agrees, at its own sole cost and expense, to pay, or cause to
be paid immediately when due, all utility charges separately metered to it
including for electricity, light, heat, power, telephone or other communication
service, and to indemnify the Landlord and save it harmless against any
liability therefor or damages on such account. Landlord shall not in any event
be liable to Tenant or responsible to Tenant for any stoppage or interruption in
any utility service furnished to the Premises or for the failure to obtain or
inability to obtain any energy source or fuel of any type or nature whatsoever,
unless such stoppage or interruption results from the negligent acts of Landlord
or its employees or contractors. No such stoppage or inability of Tenant to
obtain any such energy source or fuel shall operate to constitute a constructive
eviction of Tenant or relieve Tenant of its obligations to pay rent under this
Lease.
ARTICLE 14
REMEDIES FOR BREACH OR DEFAULT
A. FAILURE TO PAY RENT AND BANKRUPTCY OR INSOLVENCY -If the Tenant
shall fail to pay the rent as it falls due and that failure shall continue for a
period of fifteen (15) days, or in the case of the filing of a bankruptcy or
insolvency proceeding by or of the Tenant, the Tenant shall be deemed to have
breached the Lease, and the Landlord shall be entitled forthwith and without
notice to its remedies as herein set forth.
B. OTHER DEFAULT - If the Tenant shall otherwise default in its
obligations hereunder, the Landlord before seeking its remedies shall give the
Tenant notice of the default in writing and within thirty (30) days thereafter
the Tenant shall remedy such default. If within such period of thirty (30) days
the Tenant has not remedied the default, the Tenant shall be deemed to have
breached the Lease and the Landlord shall forthwith and without further notice
be entitled to its remedies as hereinafter set forth.
Upon the Landlord's failure or neglect to perform or observe any of
its covenants contained herein, the Tenant agrees to give written notice of such
failure or neglect to the Landlord, and if the latter does not cure or remedy
the failure or neglect complained within thirty (30) days after such notice has
been transmitted in accordance hereof, or if the Building, or the estate created
hereby shall
15
17
be taken on execution or by other process of law, or if a petition shall be
filed by or against the Landlord under the Federal Bankruptcy Act or acts
amendatory thereof or supplemental thereto, and shall not be dissolved within
sixty (60) days after filing, or if any assignment shall be made of the
Landlord's property for the benefit of creditors, or if a receiver or similar
officer shall be appointed to take charge of all or any part of the Landlord's
property by a court of competent jurisdiction, and such assignment or
receivership shall not be removed within sixty (60) days, the Tenant shall have
the right to terminate this Lease.
C. REMEDIES - In case of the breach of this Lease by the Tenant, the
Landlord may terminate this Lease by giving notice of the termination in writing
to the Tenant, and upon delivery of such notice of termination the Landlord may
enter upon the leased Premises or any part thereof and repossess the same as of
the Landlord's former estate, and expel the Tenant and those claiming through or
under the Tenant and remove the effects of either or both (forcibly if
necessary) without being guilty of any manner of trespass and without prejudice
to any remedies for arrears of rent or preceding breach of condition or
agreement, and without prejudice to any remedies the Landlord has to repossess
itself of the leased Premises by process of law or to recover damages for such
breach or default, including loss of future rents and profits. The parties
hereto stipulate that neither the Tenant's breach or default, the giving of a
notice of termination, or the repossession of the Premises by the Landlord shall
relieve Tenant from rental obligations for the full term of this Lease. The
Tenant shall pay to the Landlord all the Landlord's costs, losses, damages and
expenses, including attorney's fees, occasioned by the Tenant's failure to
surrender possession at such time as the Landlord may lawfully demand possession
thereof.
ARTICLE 15
HOLD HARMLESS AND INDEMNIFICATION
This Lease is made upon the express condition that Tenant agrees to
save Landlord harmless from and indemnify it against any and all claims of
whatever nature arising from (a) Tenant's use of the Premises, (b) the conduct
of Tenant's business, including, but not limited to Tenant's use, if any, of any
hazardous materials, substances or products, or (c) any activities, work, or
things done, committed, or suffered by Tenant in or about the Premises. Tenant
shall further indemnify and hold Landlord harmless from and against any and all
claims arising from (i) any breach or default of the
16
18
performance of any obligation on Tenant's part required to be performed under
the terms of this Lease, or (ii) any negligent or intentional act or omission of
Tenant or any of Tenant's agents, employees, representatives, contractors,
customers, or visitors. If any action or proceeding shall be brought against
Landlord by reason of any such claim identified, Landlord shall notify Tenant
thereof, and Tenant, upon notice from Landlord, shall defend the same at
Tenant's expense, including attorneys' fees. Tenant, as a material part of the
consideration to Landlord under this Lease, hereby assumes all risk of damage to
property or injury to persons in or about the Premises arising from any such
cause and Tenant hereby waives all claims in respect thereof against Landlord.
Landlord covenants and agrees to indemnify Tenant and hold Tenant
harmless of any and all damages for injuries to persons or property relating to
the building and common areas when such damages are solely occasioned by any
failure of Landlord to perform any of the terms, covenants and conditions
hereof, or are occasioned by the negligent act of Landlord or its agents,
contractors, employees or invitees.
ARTICLE 16
CASUALTY
In case of total or partial destruction of the Premises by fire, the
elements, or other insured causes during the term of this Lease, the term hereby
created shall not terminate and shall nonetheless continue.
If the Premises shall be damaged by fire, the elements, or other
insured cause, in whole or in part, then Landlord, its successors or assigns,
agree to repair the same with reasonable promptness, provided always however and
upon the express condition that there are funds available to Landlord from
casualty insurance policy proceeds actually paid to and received by Landlord for
such repair work and provided further that such duty to repair by Landlord shall
at all times be subject to the approval and consent of the then mortgagee and
the willingness of such mortgagee to make the proceeds of casualty insurance
policies payable to such mortgagee available to Landlord for such purposes, and
subject to the terms and conditions of any mortgage affecting the Premises.
Tenant shall give immediate written notice to Landlord of any such fire or other
damage to the Premises.
Upon the occurrence of any damage to the Premises by fire, the
elements, or other insured cause, Landlord and Tenant shall mutually agree upon
an architect or engineer to prepare a report
17
19
as to the reasonable time necessary to repair or restore the said damage. Said
report shall be furnished to Tenant within thirty (30) days from the date of
such damage unless the preparation of the report is delayed by the acts or
omissions of Tenant. If in the opinion of such architect or engineer, the
Premises have been damaged to such an extent as to make the building thereof
wholly untenantable for a period of forty-five (45) days or more from the date
of the issuance of such report by the architect or engineer, then and in such
event Landlord or Tenant may terminate within ten (10) days after the issuance
of the report by the architect or engineer. Upon the exercise of the option
herein granted, this Lease shall terminate and be of no further force or effect
whatsoever. For the purposes of this agreement, "untenantable" shall mean that
the Premises have been materially damaged and Tenant is not able to use the
Premises in a manner substantially consistent with Tenant's business.
Provided that this Lease shall not have been terminated in
accordance with the provisions of this Article, Landlord agrees that it shall
complete all repair and restoration work within a period of sixty (60) days from
and after the date of issuance of any such report by the architect or engineer.
In the event that Landlord shall not have substantially completed its work
within that time period (subject to unavoidable delays) Tenant may terminate
this Lease Agreement at any time after the expiration of such sixty (60) day
period and prior to substantial completion by Landlord of its work in connection
with the repair and restoration by serving Landlord with thirty (30) days' prior
written notice thereof. Landlord may vitiate the effect of such notice by
substantially completing its work within such thirty (30) day period.
Anything contained in this Lease to the contrary notwithstanding, in
the event that the Premises or any part thereof shall be damaged or destroyed by
fire or other casualty, the Landlord shall have the right to elect, within
twenty (20) days after receipt by Landlord of written notice from Tenant of such
event, not to repair the same, whereupon Landlord shall, within such time
period, serve written notice upon Tenant of Landlord's election to terminate
this Lease and thereupon the term of this Lease shall expire and the Tenant
shall forthwith quit and surrender the Premises.
The base rent and additional rent, or a just and proportionate part
thereof, according to the nature and extent of the injuries sustained, shall be
suspended or abated until Landlord shall have repaired or restored the Premises
hereunder.
18
20
Landlord's obligations in connection with any repair and/or
restoration work shall be to repair the Premises to the same condition as
existed at the time of the damage so long as there are funds available to
Landlord from casualty insurance policy proceeds actually paid to and received
by Landlord for such repair work and provided further that such duty to repair
by Landlord shall at all times be subject to the approval and consent of the
then mortgagee and the willingness of such mortgagee to make the proceeds of
casualty insurance policies payable to such mortgagee available to Landlord for
such purposes, and subject to the terms and conditions of any mortgage affecting
the Premises. In no event whatsoever shall Landlord be required to replace,
repair or restore Tenant's personal property, furniture, fixtures, equipment or
the like.
ARTICLE 17
PERMITTED USE
A. Tenant agrees that the Premises shall be used and occupied by
Tenant only for office and warehouse space;
B. Tenant shall not perform any act or carry on any practice which
may damage the Premises, or any other property in the area, or cause any
offensive odors or unreasonably loud noises or constitute a nuisance or a menace
to, or otherwise interfere with other properties in the area;
C. Tenant shall not introduce any hazardous or toxic materials onto
the property without first complying with all applicable, federal, state and
local laws or ordinances pertaining to the storage, use or disposal of such
materials including, but not limited to, obtaining proper permits; and Tenant
shall respond to all reasonable requests by Landlord or its agents for
information relating to Tenant's handling and storage of hazardous materials on
the Premises in a timely manner;
D. Without derogating from the foregoing, if Tenant's storage, use
or disposal of hazardous or toxic materials on the property results in (1)
contamination of the soil or surface or ground water or (2) loss or damage to
person(s) or property, then Tenant agrees to clean up the contamination or pay
for such cleanup, at Landlord's option, and indemnify, defend and hold Landlord
harmless from and against any claims, suits, causes of action, penalties, civil
fines, costs and fees, including attorneys' fees, arising from or connection
with any such contamination, loss or damage. This provision shall survive the
termination of this Lease;
E. Tenant shall, in its use of the Premises, comply with the
requirements of all applicable
19
21
governmental laws, rules and regulations.
ARTICLE 18
RIGHTS OF MORTGAGEE
A. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all mortgages which may now or hereafter affect the
property whether or not such mortgages shall also cover other lands and/or
buildings, to each and every advance made or hereafter to be made under such
mortgages, and to all renewals, modifications, replacements and extensions of
such mortgages and all consolidations of such mortgages, provided that, with
respect to any such mortgage hereafter placed on the property, Landlord shall
deliver to Tenant an agreement by such holder to the effect that, subject to
qualifications of the type set forth in the second sentence of paragraph B
hereof, all of Tenant's rights hereunder shall be recognized by such holder.
Such subordination shall be automatic and without need for any additional action
or documentation. Without derogating from the foregoing, in confirmation of such
subordination, and subject to the foregoing condition, Tenant shall promptly
execute, acknowledge and deliver any instrument that Landlord or the holder of
any such mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination. Landlord agrees to request
the holder of any existing mortgage on the property to deliver an agreement by
such holder to the effect that, subject to the qualifications of the type set
forth in the second sentence of paragraph B hereof, that such holder recognizes
all of Tenant's rights hereunder. Any mortgage to which this Lease is, at the
time referred to, subject and subordinate, is herein called "Superior Mortgage"
and the holder of a Superior Mortgage is herein called "Superior Mortgagee".
B. If any Superior Mortgagee or the nominee or designee of any
Superior Mortgagee shall succeed to the rights of Landlord (for the purposes of
this paragraph B, the "Preceding Landlord") under this Lease, whether through
possession or foreclosure action or delivery of a new deed, or otherwise, then
Tenant shall attorn to and recognize such party (herein called "Successor
Landlord") so succeeding to the Preceding Landlord's rights as Tenant's Landlord
under this Lease and, upon such Successor Landlord's request, Tenant shall
promptly execute and deliver any instrument that such Successor Landlord may
reasonably request to evidence such attornment provided that such Successor
Landlord give Tenant a written agreement to accept Tenant's
20
22
attornment and recognizes Tenant's rights under this Lease (subject to the
qualifications hereinafter set forth). Upon such attornment, this Lease shall
continue in full force and effect as a direct lease between the Successor
Landlord and Tenant upon all of the terms, conditions and covenants as are set
forth in this Lease, except that the Successor Landlord (unless formerly the
Landlord under this Lease or its nominee or designee) shall not be (1) liable in
any way to Tenant for any act or omission, neglect or default on the part of the
Preceding Landlord under this Lease; (2) responsible for any monies owning by or
on deposit with the Preceding Landlord to the credit of Tenant; (3) subject to
any counterclaim or setoff which theretofore accrued to Tenant against the
Preceding Landlord; (4) bound by any modification of this Lease subsequent to
such Superior Mortgage which was not approved in writing by the Superior
Mortgagee, or by any previous prepayment of Base Rent for more than one (1)
month which was not approved in writing by the Superior Mortgagee; (5) liable to
the Tenant beyond the Successor Landlord's interest in the property and the
rents, income, receipts, revenues, issues and profits issuing from such
property; (6) responsible for the performance of any work to be done by the
Preceding Landlord under this Lease to render the Premises ready for occupancy
by the Tenant; (7) required to remove any person occupying the Premises or any
part thereof, except if such person claims by, through or under the Successor
Landlord.
ARTICLE 19
CONDEMNATION/EMINENT DOMAIN
A. This Lease shall terminate: (1) if the entire Premises shall be
taken by condemnation or eminent domain; or (2) at the option of Tenant
(exercisable by notice given to Landlord within thirty (30) days after the date
of any such taking) if a material part of the Premises shall be taken in any
condemnation or eminent domain proceeding(s).
Upon the termination of this Lease by reason of condemnation or
eminent domain, Tenant shall be liable only for the payment of fixed rent, and
additional rent and other charges herein, prorated to the date of such
termination, and Landlord shall refund any payment in excess thereof to Tenant.
B. Tenant may, if permitted by law, make any application for any
award which might be independently payable to it in connection with Tenant's
moving expenses, business dislocation damage or for the taking of Tenant's
leasehold improvements, provided that no such application or any award
21
23
rendered pursuant thereto shall operate to diminish any award which would
otherwise be payable to Landlord. Tenant waives its right to and agrees that it
shall not (i) make any other claim in or with respect to any condemnation or
eminent domain proceedings whatsoever or otherwise, or (ii) make any claim
against Landlord in any other action for the value of the unexpired portion of
this Lease or the term hereof. Except as above specifically provided, the total
amount of all condemnation awards shall be the sole and exclusive property of
the Landlord, and Tenant shall not participate therein or in the negotiation
thereof or have any rights whatsoever with respect to the awards or the proceeds
of any such proceedings.
C. In the event that any part of the Premises is taken in any
condemnation or eminent domain proceedings and this Lease is not terminated
pursuant to Section A. hereof, then this Lease shall remain in full force and
effect as to such remaining portion. Subject to the availability of the proceeds
of any award for reconstruction and restoration, Landlord shall promptly
reconstruct and restore the portion of the building upon the Premises remaining
after such taking to the same condition as initially demised hereunder. In no
event shall Landlord be obligated to expend any sums for such rebuilding or
restoration in excess of the amount of money actually paid to and received by
Landlord from any condemning authority, net of all expenses, which expenses
shall include any payments required to be made to any mortgagee of the Premises
under the terms of its mortgage. The balance of any such proceeds shall, after
completion of restoration and reconstruction, be retained by Landlord.
ARTICLE 20
NOTICES
All notices, demands and requests which may or are required to be
given by either party to the other shall be in writing and shall be served by
personal service or by certified mail, return receipt requested and such notices
shall be deemed to be given hereunder upon the earlier of actual receipt or two
(2) days following deposit in the United States Post Office, certified mail,
return receipt requested. All notices, demands and requests by Landlord to
Tenant shall be sent to Tenant at the Premises, with a copy by regular mail to
Xxxxxx Xxxxxx, Vice President and General Counsel, at Creative Biomolecules,
Inc., 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, with a copy by regular
mail to Xxxxxx Xxxxxx, at Creative Biomolecules, Inc., 0 Xxxxxxxxxx Xxxxx, Xxxx
Xxxxxxx,
22
24
New Hampshire 03784, or at such other place as Tenant may, from time to time,
designate in a written notice to Landlord.
All notices, demands and requests by Tenant to the Landlord shall be
sent to Landlord at Storm Xxxxxxx, Inc. at XX Xxx 000, Xxxxxxx, Xxxxxxx
00000-0000, with a copy by regular mail to X. Xxxxxx Esq., at Hershenson,
Carter, Xxxxx & XxXxx, XX Xxx 000, Xxxxxxx, Xxxxxxx 00000-0000, or at such other
place or to such other parties as Landlord may, from time to time, designate in
a written notice to Tenant.
ARTICLE 21
LESSER AMOUNT OF RENT
No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly base rent and additional rent herein stipulated shall be deemed to
be other than on account of the earliest base rent or additional 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 or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease or at law
provided.
ARTICLE 22
QUIET ENJOYMENT
A. Landlord covenants and agrees that it has and will have at the
commencement of the term of this Lease full right and power to execute and
perform this Lease and to grant the estate demised herein.
B. Landlord covenants and warrants that Tenant, upon payment the
base rent, additional rent and all charges herein provided for and observing and
keeping the covenants, agreements and conditions of this Lease on its part to be
kept, shall lawfully and quietly hold, occupy and enjoy the Premises during the
term of this Lease, without hindrance or molestation of Landlord or of any
person or persons claiming under Landlord, and Landlord covenants and agrees
that it will defend Tenant in such peaceful and quiet use and possession of the
Premises against the claims of all such persons and corporations.
23
25
ARTICLE 23
REMEDIES
The specified remedies to which Landlord and Tenant may resort under
the terms of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which Landlord or Tenant may be
lawfully entitled in case of any breach or threatened breach by Landlord or
Tenant of any provisions of this Lease. The failure of Landlord or Tenant to
insist in any one or more cases upon the strict performance of any of the
covenants of the Lease or to exercise any option herein contained shall not be
construed as a waiver or a relinquishment for the future of such covenant or
option. A receipt by Landlord of rent with knowledge of the breach of any
covenant hereof shall not be deemed a waiver of such breach, and no waiver by
Landlord or Tenant of any provision of this Lease or of any breach shall be
deemed to have been made unless expressed in writing and signed by Landlord or
Tenant (as the case may be). In addition to the other remedies in this Lease
provided, Landlord or Tenant shall be entitled to the restraint by injunction of
the violation or attempted or threatened violation, of any of the covenants, or
provisions of this Lease.
ARTICLE 24
NOTICE OF LEASE
Upon the request of either of the parties hereto, the parties agree
to execute a notice of this Lease for purposes of recording in the county in
which the Premises are located, in the form required by law. Said notice shall
not amend, alter or modify any of the terms, covenants or conditions of this
Lease. The purpose of such form shall be to furnish notice of the existence of
this Lease to any prospective purchasers or mortgagees of the Premises or
assignees of the interests of either party hereto or to any other party having
an interest in the Premises.
ARTICLE 25
CONDITION OF PREMISES
The Premises are being leased by Landlord to Tenant, and shall be
delivered to Tenant, in their present condition "as is" and Landlord shall not
be obligated to perform any additional work of any type or nature whatsoever in
connection with said Premises in order to prepare same for Tenant's use or
occupancy. Tenant shall, at its own sole cost and expense, obtain any and all
zoning and other governmental permits required in connection with the operation
of its business in the Premises for the
24
26
use(s) herein specified or permitted, including any building permits and
certificates of occupancy.
ARTICLE 26
SURRENDER OF PREMISES
At the expiration of said term or any renewal term, the Tenant shall
quit and surrender possession of the said Premises to the Landlord. The Landlord
shall in addition to all other rights of inspection have the right during the
last ninety (90) days of the term hereof to make a comprehensive inspection of
the Premises. In the event any repairs must be made by Tenant the same shall be
made prior to the expiration of the lease term.
ARTICLE 27
HOLDOVER
In the event Tenant does not surrender the Premises at the
expiration of the term, Tenant's continued occupancy shall be subject to
Landlord's rights to re-enter the Premises and remove all persons and any
property therefrom either by summary proceedings or by any suitable action or
proceedings at law or in equity. Nevertheless, Tenant, while it continues
occupancy after the expiration of the term hereof, shall remain liable for all
base rent, additional rent and charges payable hereunder as if the term had been
extended, but during such period of occupancy the fixed rent shall be two (2)
times what had been due hereunder prior to the expiration of the term.
ARTICLE 28
SECURITY
The Tenant has this day deposited with the Landlord the sum of Eight
Thousand and Fifty Dollars ($8,050.00) as security for the payment of the rent
hereunder and the full and faithful performance by the Tenant of the covenants
and conditions on the part of the Tenant to be performed. Said sum shall be
returned to the Tenant, without interest, after the expiration of the term
hereof, provided that the Tenant has fully and faithfully performed all such
covenants and conditions and is not in arrears in rent. During the term hereof,
the Landlord may, if the Landlord so elects, have recourse to such security, to
make good any default by the Tenant, in which event the Tenant shall, on demand,
promptly restore said security to its original amount. Liability to repay said
security to the Tenant shall run with the reversion and title to said Premises,
whether any change in ownership thereof be by voluntary alienation or as the
result of judicial sale, foreclosure or other proceedings,
25
27
or the exercise of a right of taking or entry by any mortgagee. The Landlord
shall assign or transfer said security for the benefit of the Tenant, to any
subsequent owner or holder of the reversion or title to said Premises, in which
case the assignee shall become liable for the repayment thereof as herein
provided, and the assignor shall be deemed to be released by the Tenant from all
liability to return such security. This provision shall be applicable to every
alienation or change in title and shall in no wise be deemed to permit the
Landlord to retain the security after termination of the Landlord's ownership of
the reversion of title. The Tenant shall not mortgage, encumber or assign said
security without the written consent of the Landlord.
ARTICLE 29
INVALIDITY OF PROVISIONS
If any term or provision of this Lease or the application hereof to
any person or circumstance shall, to any extent, be invalid or unenforceable, or
subsequently become 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, except that in the event such
invalidity or unenforceability has the effect of increasing Landlord's
obligations or decreasing Landlord's benefits, including but not limited to
fixed rent or any additional rent, then Landlord shall have the option of
terminating this Lease.
ARTICLE 30
ESTOPPEL CERTIFICATES
Within ten (10) days following any written request which Landlord
may make from time to time to Tenant hereto, the Tenant shall execute and
deliver to the Landlord, any prospective purchaser, mortgagee or prospective
mortgagee, ground lessor or prospective ground lessor, a sworn statement
certifying as to:
A. The Commencement Date of this Lease;
B. The fact that this Lease is unmodified or, if this Lease has been
modified, the extent of such modification, and that this Lease is in full force
and effect, as modified and that the Lease represents the entire agreement
between Landlord and Tenant with respect to the Premises;
C. The date to which the base rent has been paid and the amount of
such base rent and
26
28
additional rent;
D. The fact that there are no current defaults under this Lease nor
any events or conditions which, with the giving of notice or the lapse of time
or both, would constitute a default, by the Landlord, and that the Tenant, to
the best of the Tenant's knowledge, has no existing defense, offsets, liens,
claims or credits under this Lease or against any amounts payable under this
Lease;
E. The amount of any deposit held by Landlord;
F. The fact that Tenant has not assigned, pledged or transferred any
interest in the Lease or sublet any portion of the Premises or, if Tenant has so
assigned, pledged, transferred or sublet, the extent of such assignment, pledge,
transfer or subletting;
G. To the best of the Tenant's knowledge, all of Landlord's
obligations with respect to the installation of improvements to the Premises to
prepare them for Tenant's use have been satisfied (or the extent to which they
have not been satisfied);
H. That no actions, whether voluntary or otherwise, are pending
against Tenant under any bankruptcy laws of the United States or any state
thereof; and
I. Such other matters reasonably requested by the Landlord. Tenant
and Landlord acknowledge that any statement delivered pursuant to this Article
may be relied upon by any such party, and the Tenant shall be liable for all
loss, cost or expense resulting from or caused by any material misstatement
contained in such estoppel certificate, or the failure to deliver the estoppel
certificate. Tenant hereby irrevocably appoints Landlord, as attorney-in-fact
for Tenant, with full power and authority to execute and deliver in the name of
Tenant such estoppel certificate if Tenant fails to deliver the same within such
ten (10) day period, and such shall be fully binding on Tenant, if Tenant fails
to deliver a contrary certificate within five (5) days after receipt by Tenant
of a copy of the certificate executed by Landlord on behalf of Tenant.
ARTICLE 31
MISCELLANEOUS
A. The covenants and agreements herein contained shall bind and
inure to the benefit of Landlord and Tenant, their heirs, executors,
administrators, successors and assigns.
B. If any provision of this Lease or the application thereof to any
person or circumstance shall be invalid or unenforceable, the remainder of this
Lease shall not be affected thereby.
27
29
C. Whenever herein the singular number is used, the same shall
include the plural, and the masculine gender shall include the feminine and the
neuter genders.
D. The enumeration anywhere in this Lease of any right or remedy of
either party shall not be construed as an exclusion or substitution of any other
rights or remedies conferred under this Lease or applicable by law.
E. This Lease shall not be modified or cancelled except by a writing
subscribed to by the parties.
F. This Lease shall be governed by and in accordance with the laws
of the State of Vermont.
IN WITNESS WHEREOF, these presents have been signed, sealed and
delivered the day and year first above written.
LANDLORD:
BY: /s/ Xxxx Xxxxxxxxxx
--------------------
TENANT:
BY: /s/ Xxxxxx X. Xxxxxx
--------------------
BY:
28
