LEASE AGREEMENT
FROM
ONE CENTER PLACE LIMITED PARTNERSHIP,
LANDLORD
TO
SENCORP SYSTEMS, INC.
TENANT
PREMISES:
400 XXXX'X XXXX ROAD, BARNSTABLE (HYANNIS), MASSACHUSETTS
DATED: , 2002
* * * *
The mailing, delivery or negotiation of this Lease by Tenant or its
agent, broker, or attorney shall not be deemed an offer by Tenant to enter into
this Lease or to enter into any other relationship with Landlord, whether on the
terms contained herein or on any other terms. This Lease shall not be binding
upon Tenant, and Tenant shall not have any obligations or liabilities or
Landlord any rights with respect thereto, or with respect to the Premises,
unless and until Tenant has executed and delivered this Lease. Until such
execution and delivery of this Lease, Tenant may terminate all negotiation and
discussion of the subject matter hereof, without cause and for any reason,
without recourse or liability.
* * * *
TABLE OF CONTENTS
PAGE
----
1. Definitions...................................................................................................1
2. Premises Demised..............................................................................................2
3. Term..........................................................................................................3
4. Rental........................................................................................................3
5. Delivery of Possession........................................................................................3
6. Condition of Premises.........................................................................................3
7. Security Deposit..............................................................................................3
8. Use...........................................................................................................5
9. Compliance with Legal Requirements............................................................................6
10. Environmental Compliance......................................................................................6
11. Repairs and Maintenance.......................................................................................7
12. Insurance.....................................................................................................8
13. Taxes.........................................................................................................8
14. Payment of Taxes..............................................................................................9
16. Alterations...................................................................................................9
17. Assignment and Sublease by Tenant; Transfer of Landlord's Interest...........................................11
18. Damage or Destruction........................................................................................14
19. Eminent Domain...............................................................................................14
20. Insurance....................................................................................................15
21. Subrogation and Waiver.......................................................................................15
22. Indemnity....................................................................................................16
1
23. Interest and Late Payments
24. Subordination and Non-Disturbance...........................................................................17
25. Landlord's Right of Entry...................................................................................18
26. Signs.......................................................................................................18
27. Use of the Roof and Building Structure......................................................................18
28. Tenant's Default; Rights and Remedies.......................................................................19
29. Landlord's Default; Rights and Remedies.....................................................................20
30. Holding Over................................................................................................21
31. Quiet Enjoyment.............................................................................................21
32. Mutual Representation of Authority..........................................................................21
33. Landlord's Claims...........................................................................................22
34. Real Estate Brokers.........................................................................................22
35. Attorneys' Fees.............................................................................................22
36. Estoppel Certificate........................................................................................22
37. Recordable Notice of Lease..................................................................................23
38. Contraction Option..........................................................................................23
39. Options to Renew............................................................................................23
40. Confidentiality.............................................................................................24
41. Governing Law...............................................................................................25
42. Severability................................................................................................25
43. Origination Of Document.....................................................................................25
44. Notices.....................................................................................................25
46. Entire Agreement............................................................................................26
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49. Surrender of Premises.......................................................................................27
50. Furniture...............................................................................................27
51. Parking Area............................................................................................27
EXHIBIT A THE PREMISES..........................................................................................29
EXHIBIT B THE LAND..............................................................................................30
EXHIBIT C ......................................................................................................36
EXHIBIT D SUBORDINATION AND NON-DISTURBANCE AGREEMENT - LENDER..................................................37
EXHIBIT A (TO SNDA)..............................................................................................47
EXHIBIT B (TO SNDA)..............................................................................................48
EXHIBIT E LANDLORD'S SUPERIOR INTERESTS.........................................................................55
EXHIBIT F RULES AND REGULATIONS FOR USE OF THE COMMUNICATION EQUIPMENT..........................................56
EXHIBIT G PARKING AREA..........................................................................................58
SCHEDULE I GOVERNMENTAL LICENSES................................................................................59
SCHEDULE II INTENTIONALLY DELETED................................................................................60
SCHEDULE III PERSONAL PROPERTY...................................................................................61
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made this day of June, 2002 by and
between ONE CENTER PLACE LIMITED PARTNERSHIP, a Massachusetts Limited
Partnership, having an office at 000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000
("Landlord") and SENCORP SYSTEMS, INC. INC., a Delaware corporation ("Tenant"),
having an office at c/o DT Industries, Inc. 000 X. Xxxxx Xxxxxx, Xxxxxx Xxxx
00000 attn: DennisDockins.
W I T N E S S E T H:
1. Definitions.
The following terms are defined in the paragraphs listed below:
TERM PARAGRAPH
---- ---------
Additional Rent 4(a)
Alterations 16(a)
Cash Deposit 7(a)(i)
Casualty 18(a)
Commencement Date 3
Contraction Date 38(a)
Contraction Notice 38(a)
Contraction Option 38(a)
Contraction Terms 38(b)
Deposit L/C 7(a)(ii)
Event of Default 28(a)
Expiration Date 3
Fair Market Rent 39(b)
Fixed Rent 4(a)
Fixtures 16(f)
Governmental Licenses 2(c)
Hazardous Substances 10(b)
Impositions 13(a)(i)(1)
Insurance Costs 12
Interest Rate 11(b)
Landlord's Rental Notice 39(c)
Landlord Estoppel 17(e)
Legal Requirements 9
Listed Broker 34(a)
Net Rent 28(f)(ii)
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Parking Area 51
Personal Property 2(a)
Premises 2(a)
Primary Term 3(a)
Qualified Instrument 17(e)
Qualified Real Estate
Appraiser 39(f)
Referee 39(d)
Rent 4(a)
Security Deposit 7(a)
Substantial Damage 18(a)
Substantial Taking 19(a)
Superior Interest 24
Taking 19(a)
Taxes 13(a)(i)
Tenant Affiliate 17(d)
Tenant's Property 16(g)
Term 3
2. Premises Demised.
(a) Landlord hereby leases and demises to Tenant, and Tenant hereby leases
from Landlord, the following land and improvements: (i) a parcel of land legally
described on EXHIBIT B attached hereto and commonly known as 400 Xxxxx Xxxx
Road, Barnstable (Hyannis), Massachusetts ("Land"), and (ii) those certain
buildings outlined on the schematic plan attached hereto as EXHIBIT A containing
approximately 155,000 rentable square feet and the other improvements located on
the Land ((i) and (ii) are hereinafter collectively referred to as "Premises"),
together with any Landlord's interest in and to and all personal property
located within the Premises and necessary for the performance of Tenant's
operations within the Premises.
(b) Landlord hereby grants to Tenant during the Term, a license to use on a
non-exclusive basis, the Governmental Licenses (as defined below) to the extent
that the same may be necessary for Tenant's use and occupancy of the Premises in
accordance with the terms of this Lease, including all Governmental Licenses
required for the performance by Tenant of its maintenance and repair obligations
hereunder. Landlord agrees to reasonably cooperate with Tenant in the
enforcement of any rights under the Governmental Licenses upon Tenant's request
and at Tenant's sole cost. As used herein, the term "Governmental Licenses"
shall mean those permits, licenses and approvals issued by any governmental or
quasi-governmental agency or body to Tenant relating to the Premises, which
Governmental Licenses are set forth on SCHEDULE I attached hereto.
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3. Term.
The primary term of this Lease (the "Primary Term") shall commence on 12:00
a.m. on June _________ 2002 (the "Commencement Date") and shall expire at 11:59
p.m. on June ______ 2012 (the "Expiration Date"). As used in this Lease, "Term"
shall mean the Primary Term and any duly exercised renewal term.
4. Rental.
Based upon ONE HUNDRED FIFTY FIVE THOUSAND (155,000) rentable square feet
in the Premises, Tenant agrees to pay Landlord monthly rent based upon the
following schedule. Tenant will pay four dollars and eighty cents($4.80) per
square foot per year, which will escalate ten cents (.10) per square foot per
year through year five (5). Tenant shall pay a rental rate equal to $5.25 per
square foot per year, beginning in year six (6) increasing five cents per year
with the last year's (year 10) rental rate of $5.45 per square foot.
YEAR RATE/SQ. FT. PER MONTH
---- ------------ ---------
One $4.80 $62,000.00
Two $4.90 $63,291.67
Three $5.00 $64,583.33
Four $5.10 $65,875.00
Five $5.20 $67,166.67
Six $5.25 $67,812.50
Seven $5.30 $68,548.33
Eight $5.35 $69,104.16
Nine $5.40 $69,750.00
Ten $5.45 $70,395.83
Rent shall be payable monthly in advance in installments due on the first day of
each month of the Primary Term. Tenant shall also pay all other sums of money
that shall become due from Tenant under this Lease other than Fixed Rent
("Additional Rent"). As used in this Lease, "Rent" shall mean Fixed Rent and
Additional Rent. Rent for any partial month during the Term shall be prorated on
a per diem basis.
Options:
Tenant will have two (2) five (5) year options to renew the Lease. Should these
renewal options be exercised, Tenant shall be responsible for the repair or
maintenance of the HVAC system in an amount not to exceed $3,000.00 per unit
within said HVAC system, including the cost of any service contract.
Tenant shall be responsible for the repair and/or replacement of the roof of the
premises during the first ten (10) years of the primary term. Responsibility
for the repair and/or
6
replacement of the roof during subsequent option terms will be as follows, as
determined by Landlord and Tenant in a commercially prudent manner:
1st Five year Option to renew:
Any roof repair or replacement costs deemed necessary by Landlord and
Tenant will be allocated as follows: 60% responsibility for the Landlord
and 40% responsibility for the Tenant.
2nd Five year Option to renew:
Any roof repair/replacement costs deemed necessary by Landlord and Tenant
will be allocated as follows: 75% responsibility for the Landlord and 25%
responsibility for the Tenant.
It is agreed the lease rate for each renewal period will be a "market lease
rate", to be determined pursuant to the procedures set forth in the Lease
Agreement. It is agreed however, the lease rate will not go below $4.80 per
square foot during any lease renewal term.
5. Delivery of Possession.
Landlord shall deliver possession of the Premises to Tenant on the
Commencement Date.
6. Condition of Premises.
Subject to the other terms and conditions of this Lease, Tenant shall take
possession of the Premises in their "AS IS", "WHERE IS" condition.
7. Security Deposit.
(a) Tenant shall deposit with Landlord a security deposit in an amount
equal to one months rent.
The foregoing is referred to herein as the "Security Deposit". The Security
Deposit hereunder shall be deposited by Tenant with Landlord on the Commencement
Date in cash (the "Cash Deposit") . Provided no Event of Default has occurred
and is continuing, Tenant shall have the right one or more times during the Term
hereof, upon no less than thirty (30) days notice to Landlord, to substitute the
form of Security Deposit. Landlord shall have the right regardless of the
exercise of any other remedy the Landlord may have by reason of an Event of
Default by Tenant, to apply the Security Deposit to cure any Event of Default of
Tenant of its obligations under this Lease, including without limitation, any
sum which Landlord may spend or may be required to spend by reason of an Event
of Default by Tenant. If Landlord applies any part of the Security Deposit to
7
cure any Event of Default of Tenant, Tenant shall within ten (10) days of demand
deposit with Landlord the amount so applied so that Landlord shall have the full
deposit on hand at all times during the Term of this Lease. In the event of a
bona fide sale of the Premises, subject to this Lease, Landlord shall have the
right to transfer the Security Deposit to the transferee and upon such transfer,
Landlord shall be considered released by Tenant from all liability for the
return of the security transferred (provided that such successor landlord has
agreed, in writing, to be bound by the terms of this Lease); and provided that
the security deposit is transferred by Landlord Tenant agrees to look solely to
the new landlord for the return of the transferred Security Deposit, and it is
agreed that the provisions of this section 7(a) shall apply to every transfer or
assignment made of the security to a new landlord. The Security Deposit (less
any portions thereof used, applied or retained by Landlord in accordance with
the provisions of this Paragraph 7) shall be returned to Tenant provided Tenant
has fully and faithfully complied with this Lease throughout its Term in
accordance with the provisions herein thirty (30) days after the Expiration Date
or earlier termination of this Lease, together with any interest accrued on any
Cash Deposit.
(b) When Tenant delivers to Landlord the Security Deposit in the form of a
Cash Deposit, such Cash Deposit shall be maintained in a segregated interest
bearing account in the name of Landlord; the interest on which shall accrue to
the benefit of Landlord.
(c) Intentionally Deleted.
(d) Intentionally Deleted.
(e) Intentionally Deleted
(f) Intentionally Deleted
8. Use.
Tenant shall have the right to use and occupy the Premises for industrial
warehousing, research and development, light manufacturing and assembly, and
general office use and uses accessory to or incidental to the foregoing, and for
any other purpose consistent with Legal Requirements (hereinafter defined
Permitted Use). Tenant shall have the right to use the Premises for the
foregoing uses twenty-four (24) hours per day, seven (7) days per week.
9. Compliance with Legal Requirements.
Tenant shall comply with all applicable Legal Requirements insofar as they
pertain solely to the particular manner in which Tenant shall use the Premises
as distinguished from industrial warehousing, research and development, light
manufacturing and assembly, and general office use. Landlord shall comply with
Legal Requirements in every other case with respect to the Premises, including
cases where Legal Requirements mandate repairs, alterations, changes or
additions to the Premises not caused by Tenant's particular
8
use thereof. As used herein, the term "Legal Requirements" shall mean any and
all certificates, permits and approvals, required by any of the foregoing,
applicable laws, statutes, ordinances, orders, codes, rules and regulations of
all federal, state, county, city and local governmental or quasi-governmental
bodies, departments and agencies, relating to the Premises or any part thereof.
10. Environmental Compliance.
(a) Tenant agrees to comply with all applicable Legal Requirements
pertaining to the environmental condition of the Premises ("Environmental Legal
Requirements") insofar as they pertain solely to the particular manner in which
Tenant shall use the Premises. Landlord agrees to comply with all applicable
Environmental Legal Requirements insofar as they pertain to the Premises.
(b) Except in accordance with applicable Environmental Legal Requirements,
Tenant shall not generate, store, handle, transport, treat, dispose of or use on
the Premises hazardous or toxic substances or wastes as such terms are defined
under any applicable Environmental Legal Requirement ("Hazardous Substances").
(c) Tenant shall defend, indemnify and save Landlord harmless from any
claims, fines, penalties, liabilities, losses, damages, costs and expenses
(including reasonable attorneys' fees, expert witness fees and other costs of
defense) which arise from Tenant's breach of its representations, warranties,
covenants and agreements contained in this Paragraph 10.
(d) Landlord represents, warrants and covenants that any generation,
handling, transportation, treatment, disposal or use of Hazardous Substances
that will occur on the Premises at all times during the Term will be in
compliance with all applicable Legal Requirements, subject only to Tenant's
obligations set forth in Paragraphs 10(a) through 10(c). Landlord shall defend,
indemnify and save Tenant harmless from any claims, fines, penalties,
liabilities, losses, damages, costs and expenses (including reasonable
attorneys' fees, expert witness fees and other costs of defense) which arise
from Landlord's breach of its representation, warranty, covenant and agreement
contained in Paragraph 10(a) and this Paragraph 10(d) and from any presence,
injection, escape, xxxxx, dump, leak, spill, release, discharge, disposal or
emission of Hazardous Substances that may occur on the Premises from and after
the Commencement Date that does not result from Tenant's breach of its
obligations under Paragraphs 10(a) through 10(c). Landlord represents and
warrants that to Lanlord's knowledge the premises are free of hazardous
substances.
11. Repairs and Maintenance.
(a) During the the Primary Term and options, Tenant shall perform
diligently, promptly and in a first class and good and workmanlike manner in
compliance with all applicable Legal Requirements, all maintenance, repairs and
replacements to the
9
structural components of the Premises, including without limitation the parking
lots and areas (including asphalt replacement).
(b) Intentioanlly Deleted.
(c) Intentionally Deleted.
(d) Except as otherwise provided in this Lease, and subject to Section 4,
during the Term, Tenant shall, at its sole expense, be responsible for all
maintenance, repairs and replacements to the Premises, including, without
limitation: (i) the plumbing, lawn and fire sprinkler systems of the Premises,
including electrical and mechanical lines and equipment associated therewith;
(ii) heating, ventilation and air conditioning systems and electrical and
mechanical lines and equipment associated therewith and life safety systems on
the Premises; (iii) the elevators of the Premises; (iv) the parking lots and
areas, including their lighting systems, the structural components and asphalt
replacement; (v) the exterior improvements to the Premises, including parking
lots and areas, walkways, shrubbery and landscaping and the removal of all
rubbish, snow and ice from the exterior improvements; (vi) the glass including
cleaning and replacements and exterior doors; (vii) all interior and exterior
lighting (including fixtures and bulbs); and (viii) all Alterations. Tenant
shall perform such maintenance diligently, promptly and in a first class and
good and workmanlike manner in compliance with all applicable Legal
Requirements.
(e) Tenant agrees to maintain a service contract with a reputable
contractor for the heating, ventilation and air conditioning systems of the
Premises during the Term. Tenant shall keep all HVAC equipment in good working
condition. Tenant agrees to maintain the roof and keep it free of leaks.
12. Insurance.
Tenant covenants and agrees to reimburse Landlord for Landlord's reasonable
out-of-pocket costs incurred by Landlord for the insurance set forth in
Paragraphs 20(a) and 20(b) (collectively, "Insurance Costs") within twenty (20)
days of receipt of Landlord's statement of Insurance Costs. Such statement shall
contain a computation or information relating to the Insurance Costs asserted by
Landlord to be due pursuant to the provisions of this Lease, and containing back
up data reasonably sufficient for Tenant to verify the computation of Insurance
Costs.
13. Taxes.
(a) For purposes of Paragraphs 13 and 14 the following definitions shall
apply.
(i) "Taxes" shall mean:
(1) All real estate taxes, assessments (special or otherwise),
sewer and water rents, rates and charges, and any other governmental levies,
impositions and
10
charges of a similar nature (but not including, income taxes, franchise, capital
or stock taxes, gift or inheritance taxes or any other tax imposed upon or
measured by Landlord's income or profits) ("Impositions"), which may be levied,
assessed or imposed on or in respect of all or any part of the Premises, whether
or not the same constitute one or more tax lots. If, however, by law, any
assessment may be divided and paid in annual installments, then, for the
purposes of this definition, (i) such assessment shall be deemed to have been so
divided and to be payable in the maximum number of annual installments permitted
by law, and (ii) there shall be deemed included in Taxes for each year, the
annual installment of such assessment becoming payable during such year,
together with interest payable during such year on such annual installment and
on all installments thereafter becoming due as provided by law, all as if such
assessment had been so divided.
(2) If at any time during the Term the methods of taxation
prevailing at the date hereof shall be altered so that in lieu of or as a
substitute for the whole or any part of the Impositions now levied, assessed or
imposed on all or any part of the Premises, there shall be levied, assessed or
imposed (i) an Imposition based on the income or rents received therefrom
whether or not wholly or partially as a capital levy or otherwise, or (ii) an
Imposition measured by or based in whole or in part upon all or any part of the
Premises and imposed on Landlord, then all such Impositions shall be deemed to
be Taxes.
(b) If, as a result of any application or proceeding or otherwise, there
should be a reduction in the Taxes for any calendar year in respect of which
Tenant shall have previously paid such Taxes, Tenant shall be entitled to such
refund. The provisions of this Paragraph 13(b) shall survive the Expiration Date
or earlier termination of this Lease.
(c) Tenant shall have the right to contest the validity or the amount of
any Taxes by appropriate proceedings in the applicable jurisdiction, and may
defer payments of such obligations, pay same under protest, or take such other
steps as Tenant may deem appropriate, provided the foregoing does not subject
Landlord to any penalties, result in a lien on the Premises for unpaid Taxes or
materially adversely affect Landlord's interest in or financing of the Premises.
Landlord shall cooperate in the institution and prosecution of any such
proceedings and will execute any documents required therefor without cost or
expense to Tenant. The expense of such proceedings shall be borne by Tenant and
any refunds or rebates secured shall belong to Tenant.
14. Payment of Taxes.
(a) Tenant covenants and agrees to pay or to cause to be paid, before any
fine, penalty, interest, or cost may be added thereto for the nonpayment
thereof, all Taxes that become a lien upon or become payable in respect of the
Premises during the Term of this Lease.
(b) Tenant covenants to furnish to the Landlord within ten (10) days after
Landlord requests the same in writing, original receipts of the appropriate
taxing
11
authority, or photostatic copies or duplicate originals thereof, evidencing
payment of all Taxes due prior to such requests.
(c) Landlord shall furnish to Tenant, within ten (10) days of the receipt
by Landlord, copies of all bills for all taxes levied on the Premises and
payable by Tenant but delivered to Landlord.
15. Utilities and Maintenance Fee. During the Term, Tenant acknowledges
that it is solely responsible for all costs and expenses associated with
distributing, installing, arranging for and obtaining its utilities with respect
to the Premises from the local utility companies servicing the Premises, as well
as for paying for all costs associated with the use of such utilities in the
Premises, which costs shall be payable to the utility companies providing such
services in a prompt and timely manner. Tenant acknowledges that Landlord shall
have no obligation of any kind to provide utility service to the Premises or to
perform any alterations or work in connection therewith provided, however, that
Landlord shall reasonably cooperate with Tenant's efforts to secure the
installation and continue the operation of all utilities servicing the Premises.
Tenant acknowledges that it is solely responsible for all condominium fees,
costs and expenses associated with the annual maintenance fee payable to
Independence Park, Inc. with respect to the Premises.
16. Alterations.
(a) Tenant may, at its own expense, and without Landlord's prior consent,
make such changes, alterations, additions or improvements to the Premises
("Alterations") and install such Tenant's Property in the Premises as will, in
the judgment of Tenant, better adapt the same for its needs, provided that
Tenant complies with the following provisions:
(i) The Alterations shall not result in a violation of or require a
change in any certificate of occupancy applicable to the Premises.
(ii) The outside appearance of the Premises shall not be materially
adversely affected; in the reasonable judgment of Landlord and Tenant such
Alterations shall not weaken or impair the structure, or materially reduce the
value of the Premises.
(iii) The proper functioning of the building equipment shall not be
materially adversely affected in the reasonable judgment of Landlord and Tenant.
(iv) At Landlord's request, Tenant shall submit to Landlord three (3)
copies of final plans and specifications for the Alterations.
(v) Upon completion of any Alterations (other than decorations),
Tenant shall upon Landlord's request deliver to Landlord three (3) copies of the
"as-built" plans for such Alterations.
12
(vi) In the event that the cost of the Alteration exceeds Fifty
Thousand Dollars ($50,000), Tenant shall notify Landlord in writing of such
Alterations prior to commencement of such Alteration.
(b) With respect to any Alterations that do not comply with Paragraphs
16(a)(i) through 16(a)(iii), Tenant must obtain Landlord's prior written consent
which shall not be unreasonably withheld, delayed or qualified.
(c) Tenant agrees that all Alterations shall at all times comply with all
applicable Legal Requirements and that Tenant, at its expense, shall (i) obtain
all necessary municipal and other governmental permits, authorizations,
approvals and certificates for the construction of such Alterations, (ii)
deliver a copy of such items to Landlord and (iii) cause all Alterations to be
constructed in a good and workmanlike manner.
(d) Throughout the making of all Alterations (other than mere decorations),
Tenant, at its expense, shall carry or cause its contractors to carry (i)
workers' compensation insurance in statutory limits covering all persons
employed in connection with such Alterations, and (ii) general commercial
liability insurance covering any occurrence in or about the Premises in
connection with such Alterations which complies with the requirements of
Paragraph 20.
(e) Subject to the other terms of this Paragraph 16(e), Tenant shall
indemnify Landlord against liability for any and all mechanics' and other liens
filed in connection with the Alterations. Subject to the other terms of this
Paragraph 16(e), Tenant, at its expense, shall procure the discharge of any such
lien within ninety (90) days after the filing thereof against any part of the
Premises. If Tenant fails to discharge or bond over any such lien within such
ninety (90) day period, then, in addition to any other right or remedy, Landlord
may, upon giving fifteen (15) days prior written notice to Tenant, discharge the
same either by paying the amount claimed to be due or by deposit or bonding
proceedings if Tenant has not discharged the lien within the fifteen (15) day
notice period provided herein. Any amount so paid by Landlord, and all costs and
expenses incurred by Landlord in connection therewith, shall be payable by
Tenant fifteen (15) days after written notice to Tenant.
(f) Subject to Paragraph 16(g) below and except for items constituting
Tenant's Property, all Alterations and appurtenances attached to or built into
the Premises at the commencement of or during the Term, whether or not at the
expense of Tenant, and whether or not Landlord's consent is required
(collectively "Fixtures"), shall be and remain a part of the Premises, shall be
deemed the property of Landlord as of the date such Fixtures are completed,
attached to or built into the Premises and shall not be removed by Tenant.
Subject to the foregoing, Fixtures shall include electrical, plumbing, heating
and sprinkling equipment, fixtures, outlets, venetian blinds, partitions, gates,
doors, vaults, paneling, molding, shelving, radiator enclosures, cork, rubber,
linoleum and composition floors, ventilating, silencing, air conditioning and
cooling equipment, and all
13
fixtures, equipment and appurtenances located on and used in the maintenance and
operation of the Premises. Any Alterations which shall involve the removal of
any Fixtures that are not outdated or obsolete shall be promptly replaced, at
Tenant's expense and free of superior title, liens, security interests and
claims, with like property, of at least equal quality and value. Under no
circumstances, shall Tenant be required at any time to remove or restore (i) any
Alterations that do not require Landlord's consent, (ii) any Alterations that do
require Landlord's consent, unless Landlord, at the time it gives such consent,
expressly requires in writing removal or restoration of such Alterations; or
(iii) any partitions, flooring, floor covering, pipes, wires, conduits running
through a floor, ceiling, or partition, provided these are cut off or capped in
accordance with all applicable Legal Requirements.
(g) Notwithstanding anything contained in this Lease to the contrary,
including without limitation, Paragraph 16(f), the following property ("Tenant's
Property") shall be and remain the property of Tenant: (i) any and all fixtures,
equipment and other property used in connection with the operation of Tenant's
business within the Premises, including property that may be affixed to the
Premises ; (ii) moveable laboratory equipment; and (iii) custom-made chemical
hoods (if any) used in Tenant's laboratory work; and, (iv) all additional
personal property owned or leased by Tenant. Tenant shall have the right, at
Tenant's option, to remove the Tenant's Property from the Premises upon the
expiration or earlier termination of this Lease in accordance with the
requirements of this Paragraph 16 and Paragraph 49.
17. Assignment and Sublease by Tenant; Transfer of Landlord's Interest.
(a) Except as set forth in Paragraph 17(h), Tenant may, with the prior
written consent of the Landlord, which shall not be unreasonably withheld,
delayed or qualified, assign this Lease or sublet the whole or any part of the
Premises. It shall be deemed unreasonable for Landlord to withhold its consent
if such assignment or sublease meets all of the following conditions:
(i) Tenant is not in default of its obligations under this Lease
beyond any applicable cure period;
(ii) the assignee assumes all of the obligations of this Lease, or the
sublessee agrees that its sublease and its interest in the Premises are subject
and subordinate to the terms and conditions of this Lease;
(iii) such assignment or sublease will not permit the use of the
Premises for any purpose forbidden by this Lease; and
(iv) Tenant furnishes Landlord with the name of the proposed assignee
or sublessee and the basic business terms of the proposed assignment or sublease
and copies of the proposed assignment or sublease.
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(b) Any assignment of this Lease or any sublease of the Premises shall not
relieve Tenant of any of its obligations under this Lease.
(c) Landlord's failure to respond within fifteen (15) days after receipt of
Tenant's request and the information specified in Paragraph 17(a)(iv) shall be
deemed approval of the proposed assignment or sublease.
(d) The consent of the Landlord need not be obtained if the assignment or
sublease is to (i) any present or future parent, subsidiary or affiliate
(including any wholly-owned subsidiary thereof) of Tenant, (ii) any other entity
which acquires all or a part of a business operation of Tenant being conducted
within the Premises, (iii) a corporation or other business entity into which or
with which Tenant shall be merged, consolidated or reorganized, or (iv) any
other entity which forms a joint venture or other business arrangement with
Tenant to acquire all or a part of a business operation of Tenant being
conducted within the Premises (collectively a "Tenant Affiliate"). Tenant shall
give Landlord written notice of any assignment to a Tenant Affiliate, including
the effective date of the assignment. Landlord acknowledges that the Premises
may be occupied by one or more Tenant Affiliates and their employees and that
such use of the Premises shall not be considered an assignment or sublease,
unless Tenant elects to treat it as such. Any of Landlord's representations,
warranties, covenants, agreements, guarantees and indemnities made for the
benefit of Tenant or any rights or privileges granted by Landlord to Tenant
shall also inure to the benefit of such Tenant Affiliate and its employees.
(e) Intentionally omitted.
(f) Landlord may transfer its right, title and interest in and to the
Premises and its rights under this Lease and the other documents relating
thereto with respect to such Premises, on the following terms and conditions
(each of which shall be satisfied prior to the effective date of the transfer):
(i) such transfer shall be in compliance with all Legal Requirements;
(ii) Landlord shall have given at least ten (10) days' prior notice to
Tenant of such transfer, which notice shall contain such information and
evidence as shall be reasonably necessary to establish compliance with this
Paragraph 17(f) and the name and address of the transferee for notices and
payment of rent;
(iii) Landlord and the transferee shall each have delivered to Tenant
an Officer's Certificate to the effect that the conditions to the proposed
transfer prescribed by this Paragraph 17 (f) to be met by the transferor or the
transferee, respectively, have been satisfied;
(iv) the transferee shall have assumed in writing the obligations of
Landlord under this Lease arising after the date of such transfer and a copy of
the lease assumption documentation shall have been delivered to Tenant; and
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(v) in the event the transferee is an "employee benefit plan" or a
related trust as defined in Section 3(3) of ERISA or a "plan" or related trust
as defined in Section 3(3) of ERISA or Section 4975(e)(1) of the Code, the
transferee shall have delivered to Tenant (A) an Officer's Certificate to the
effect that its acquisition of the Premises will not result in a "non-exempt
prohibited transaction" under Section 4975 of the IRC or Section 406 of ERISA
and (B) an agreement to the effect that if in the future its ownership of the
Premises is about to become such a "non-exempt prohibited transaction" it shall
sell its interest in the Premises in accordance with this Paragraph 17(f)(v)
prior thereto or such later date as may be permitted by an exemption obtained
from the Department of Labor;
(g) Paragraph 17(f) of this Lease shall not apply to a transfer at a
foreclosure sale in connection with the foreclosure of any lien held by a lender
on the Premises or a transfer of the ownership interest in a member or other
beneficial owner of Landlord to a "mezzanine lender" (as such term customarily
in defined in the commercial lending industry); provided, however, that
Paragraph 17(f) shall apply to any deed-in-lieu of such foreclosure where this
Lease remains in full force and effect.
(h) Notwithstanding anything to the contrary contained in this
Paragraph 17, Tenant may, without the prior written consent of the Landlord,
sublet the whole or any portion of Building 60 during the Term.
18. Damage or Destruction.
(a) If the Premises shall be so damaged by fire, other casualty, acts of
God or the elements (a "Casualty") so that they cannot be restored or made
suitable for Tenant's business needs in Tenants commercially reasonable
judgement within one hundred eighty (180) days from the date of the Casualty
("Substantial Damage"), either Landlord or Tenant may terminate this Lease by
written notice given to the other party within thirty (30) days after the date
of the Casualty. If the Lease is so terminated, the termination shall be
effective as of the date of the Casualty and the Rent shall xxxxx from that
date, and any Rent paid for any period beyond such date shall be refunded to
Tenant.
(b) If this Lease is not terminated as provided in Paragraph l8(a), then
Landlord shall, at its sole cost and expense and in compliance with all
applicable Legal Requirements, restore the Premises as speedily as practical to
the condition existing prior to the Substantial Damage. During the restoration
period, the Rent shall xxxxx for the period during which the Premises or any
part thereof is not suitable for the conduct of Tenant's business, in Tenant's
commercially reasonable judgment. If only a portion of the Premises is damaged,
the Rent shall xxxxx proportionately based upon the portion of the Premises that
is not suitable for the conduct of Tenant's business, in Tenant's commercially
reasonable judgment.
(c) If Landlord does not restore the Premises as required in Paragraph
18(b) within one hundred eighty (180) days after the date of the Substantial
Damage, Tenant
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may terminate this Lease without incurring any liability to Landlord subsequent
to the Substantial Damage, provided (i) Tenant gives Landlord not less than
thirty (30) days prior written notice, and (ii) Landlord does not complete the
restoration during such thirty (30) day period. If the Substantial Damage occurs
during the last twelve (12) months of the Primary Term or any renewal term,
Tenant may terminate this Lease without any liability to Landlord subsequent to
the Substantial Damage, provided Tenant gives Landlord not less than thirty (30)
days prior written notice.
19. Eminent Domain.
(a) If there is a taking of the Premises by right or threat of eminent
domain (a "Taking") which results in the remainder of the Premises being unable
to be restored to a condition suitable for the conduct of Tenant's business, in
Tenant's commercially reasonable judgment, within ninety (90) days from the date
of the Taking ("Substantial Taking"), this Lease shall terminate. In such event,
the Rent shall xxxxx from the date of the Taking, and any Rent for any period
beyond such date shall be returned to Tenant.
(b) If there shall be a Taking which does not constitute a Substantial
Taking, this Lease shall not terminate but Landlord shall, at its sole cost and
expense, and in accordance with all applicable Legal Requirements with due
diligence, restore the Premises as speedily as practical to its condition before
the Taking. During the restoration period, the Rent shall xxxxx for the period
during which the Premises or any part thereof is not suitable for the conduct of
Tenant's business, in Tenant's commercially reasonable judgment. If only a
portion of the Premises is taken, the Rent shall xxxxx proportionately based
upon the portion of the Premises that is not suitable for the conduct of
Tenant's business, in Tenant's commercially reasonable judgment.
(c) Tenant shall not be entitled to any part of the payment or award for a
Taking, provided that Tenant may file a claim for any loss of Tenant's Property;
moving and relocation expenses; or for damages for cessation or interruption of
Tenant's business, provided such claim will not diminish Landlord's recovery.
20. Insurance.
(a) Landlord shall maintain, and Tenant shall pay for, during the Term,
with solvent and responsible companies, fire insurance, with standard "all risk"
coverage for the Premises. Such coverage shall equal one hundred percent (100%)
of the replacement cost of the buildings and any parking facility, exclusive of
excavation, footings and foundations.
(b) Landlord shall maintain, and Tenant shall pay for, during the Term,
with solvent and responsible companies, comprehensive general liability
insurance covering injuries occurring on the Premises, which shall provide for a
combined coverage for bodily injury and property damage in an amount not less
than Two Million Five Hundred
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Thousand and 00/100 Dollars ($2,500,000). Such insurance shall name Tenant as an
additional insured.
(c) Tenant shall maintain, at its expense, during the Term, comprehensive
general liability insurance for the Premises in a combined coverage for bodily
injury and property damage in an amount not less than Two Million Five Hundred
Thousand and 00/100 Dollars ($2,500,000). Such insurance shall name Landlord,
Cape Cod Bank & Trust of Massachusetts and any other mortgagee of which Landlord
has advised Tenant in writing, as additional insureds under such policy.
(d) Tenant shall maintain such worker's compensation insurance as is
required by applicable law.
(e) The policy or policies evidencing such insurance for Paragraphs
20(a),(b) and (c) shall provide that they may not be canceled or amended without
thirty (30) days prior written notice being given to the party for whose benefit
such insurance has been obtained. Prior to the Commencement Date, each party
shall submit to the other insurance certificates demonstrating the required
policies are in effect.
21. Subrogation and Waiver.
To the extent permitted by the terms of the insurance policies obtained by
it, each of the parties hereby releases each other and their respective
authorized representatives from any claims for injury to any person or damage to
the Premises that are caused by or result from risks insured against under any
all risk or fire insurance policies carried by either of the parties or required
to be carried by either of the policies under the terms of this Lease. Each
party to the extent possible shall obtain, for each policy of insurance,
provisions permitting waiver of any claim against the other party for loss or
damage within the scope of the insurance and each party to the extent permitted,
for itself and its insurer, waives all such insured claims against the other
party. If such waiver or agreement shall not be, or shall cease to be,
obtainable without additional charge or at all, the insured party shall so
notify the other party promptly after notice thereof. If the other party shall
agree in writing to pay the insurer's additional charge therefor, such waiver or
agreement shall (if obtainable) be included in the policy.
22. Indemnity.
(a) Subject to Paragraph 21 above, Tenant shall defend, indemnify and save
harmless the Landlord, its affiliates, and their officers, directors,
shareholders and partners, against all claims, liabilities, losses, fines,
penalties, damages, costs and expenses (including reasonable attorneys' fees and
other costs of litigation) because of injury, including death, to any person, or
damage or loss of any kind to any property caused by Tenant, or any failure on
the part of Tenant to perform its obligations under this Lease, except to the
extent caused by the negligence or willful misconduct of Landlord, or Landlord's
employees, contractors, agents or representatives.
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(b) Subject to Paragraph 21 above, Landlord shall defend, indemnify and
save harmless the Tenant and Tenant Affiliates, their officers, directors,
shareholder and partners, against all claims, liabilities, losses, fines,
penalties, damages, costs and expenses (including reasonable attorneys' fees and
other costs of litigation) because of injury, including death, to any person, or
damage or loss of any kind to any property caused by any action or omission of
Landlord, or any failure on the part of Landlord, to perform its obligations
under this Lease, except to the extent caused by the negligence or willful
misconduct of Tenant, or Tenant's employees, contractors, agents or
representatives.
(c) The indemnities and limitations set forth in this Paragraph 22 shall
survive the expiration or earlier termination of this Lease.
23. Interest and Late Payments
If Tenant is late in making any payment whatsoever due to Landlord from
Tenant under this Lease for seven (7) or more days, then interest shall become
due and owing to Landlord on such payment from the date upon which it was due,
which interest shall be computed at the rate of 18% per annum.
In addition to any amount Tenant shall be required to pay to Landlord, if
Tenant is late in making any payment whatsoever due to Landlord from Tenant
under this Lease for ten (10) or more days, then, upon receipt of written notice
from Landlord, Tenant shall pay to Landlord an administrative fee in the amount
of five (5%) percent of the amount overdue to cover Landlord's costs and
expenses to administer such overdue payment.
24. Subordination and Non-Disturbance.
Landlord may subordinate Tenant's interest in this Lease to the lien of any
mortgage or deed of trust which may now or hereafter be placed on the Premises.
Landlord shall obtain and deliver to Tenant from any future mortgagee, trustee,
fee owner, prime lessor or any person having an interest in the Premises
superior to this Lease (a "Superior Interest"), a written subordination and
non-disturbance agreement in recordable form substantially in the form of
EXHIBIT D attached hereto providing that so long as Tenant performs all of the
terms, covenants and conditions of this Lease and agrees to attorn to the
mortgagee, beneficiary of the deed of trust, purchaser at a foreclosure sale,
prime lessor or fee owner, Tenant's rights under this Lease shall not be
disturbed and shall remain in full force and effect for the Term, and Tenant
shall not be joined by the holder of any mortgage or deed of trust in any action
or proceeding to foreclose thereunder. Landlord represents and warrants that, as
of the date hereof, the only Superior Interest to this Lease is set forth on
EXHIBIT E. Landlord shall cause all entities holding a Superior Interest to
deliver to Tenant, on or prior to the
19
Commencement Date, a non-disturbance agreement in accordance with this Paragraph
24.
25. Landlord's Right of Entry.
(a) Landlord has the right to enter the Premises at any reasonable time
upon three (3) days prior written notice to Tenant, or without written notice
(but with prior verbal notice, if reasonably practical) in case of emergency,
for the purpose of performing maintenance, repairs, and replacements to the
Premises as are permitted under this Lease.
(b) During business hours and upon reasonable notice to Tenant, Landlord
may, during the Term, show the Premises to prospective purchasers and
mortgagees, and, during the six (6) months prior to expiration of this Lease, to
prospective tenants.
(c) In exercising its rights under this Xxxxxxxxx 00, Xxxxxxxx shall not
interfere with or disrupt the normal operation of Tenant's business. Landlord,
and any third parties entering the Premises at Landlord's invitation or request
shall at all times strictly observe Tenant's rules relating to security on the
Premises. Tenant shall have the right, in its sole discretion, to designate a
representative to accompany Landlord, or any third parties, while they are on
the Premises.
26. Signs.
Tenant shall be permitted to place its name on the exterior doors or other
customary locations on the Premises. Tenant shall be entitled to have outdoor
signs identifying Tenant placed on the Premises, at Tenant's sole cost and
expense, and in compliance with applicable Legal Requirements, it being
acknowledged by Landlord that Tenant's existing signage on the Premises
satisfies Landlord's standards for signage on the Premises.
27. Use of the Roof and Building Structure.
Tenant and Tenant Affiliates shall have the right to use the roof of the
Premises and building structure for installation and use of one or more
microwave dishes or other communications radio antenna and associated equipment
("Communication Equipment"). Tenant shall have no obligation to pay Rent for
such right, but Tenant shall, at its sole cost and expense, maintain any
Communication Equipment in good condition and repair, and comply with the terms
and conditions set forth on EXHIBIT F for use of the roof and building
structure.
28. Tenant's Default; Rights and Remedies.
(a) The occurrence of any one or more of the following matters constitutes
an "Event of Default" by Tenant under this Lease:
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(i) failure by Tenant to pay Fixed Rent within fifteen (15) days after
receipt of written notice of such failure to pay on the due date.
(ii) failure by Tenant to pay Additional Rent within twenty (20) days
after receipt of written notice of such failure to pay on the due date.
(iii) failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure continues for
thirty (30) days after receipt of written notice from Landlord to Tenant, except
that if the default cannot be cured within the thirty (30) day period, it shall
not be considered an Event of Default if Tenant commences to cure such default
within such thirty (30) day period and proceeds diligently thereafter to seek to
effect such cure, provided that such default shall not continue beyond an
additional ninety (90) day period.
(b) Upon an event of default by Tenant:
(i) Landlord may terminate this Lease, by giving Tenant not less than
fifteen (15) days' written notice of the Landlord's election to do so, in which
event the Term shall end, and all right, title and interest of the Tenant
hereunder shall expire, on the date stated in such notice; or
(ii) Landlord may terminate the right of the Tenant to possession of
the Premises without terminating the Lease by giving not less than fifteen (15)
days' written notice to Tenant.
(c) If this Lease and the Term and estate hereby granted shall terminate
for an Event of Default as provided in Paragraph 28(b), then:
(i) Landlord and Landlord's agents may thereupon re-enter the Premises
or any part thereof by summary proceedings or by any other applicable proceeding
and may repossess the Premises and dispossess Tenant and any other persons
therefrom and remove any and all of its or their property and effects from the
Premises.
(ii) Landlord, at its option, may relet the whole or any part of the
Premises from time to time, either in the name of Landlord or otherwise, to such
tenant(s), for such term(s) ending before, on or after the Expiration Date, at
such reasonable rental(s) and upon such other reasonable conditions, which may
include reasonable concessions and free rent periods, as Landlord may reasonably
determine to be necessary. Landlord shall use reasonable efforts to relet the
Premises or parts thereof. Landlord may make such reasonable repairs,
improvements, alterations, additions, decorations and other physical changes in
and to the Premises as Landlord, in its reasonable discretion, considers
advisable or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability.
21
(d) Should this Lease be terminated as provided in Paragraph 28(b), or by
or under any other proceeding, or if Landlord shall re-enter the Premises,
Landlord shall be entitled to recover, and Tenant shall pay, as and for agreed
damages therefor, the then cost of restoring the Premises to substantially the
same condition as that in which Tenant has agreed to surrender them to Landlord
on the Expiration Date.
(e) If an Event of Default by Tenant or any person claiming through or
under Tenant of any of the terms of this Lease should occur, Landlord shall be
entitled to seek to enjoin such default and shall have the right to invoke any
right allowed at law or in equity, by statute or otherwise, as if re-entry,
summary proceedings or other specific remedies were not provided for in this
Lease, except that Landlord shall not have any right to place a lien on any of
Tenant's Property and Landlord expressly waives and releases any right to obtain
such lien.
(f) Should this Lease be terminated by Landlord as provided herein:
(i) Tenant shall pay to Landlord all Rent to the date upon which this
Lease shall have been terminated.
(ii) Tenant shall be liable for and shall pay to Landlord, as damages,
any deficiency between (A) the rent that would have been payable hereunder for
the period which otherwise would have constituted the unexpired portion of the
Term and (B) the net amount, if any, of rents ("Net Rent") collected under any
reletting effected pursuant to the provisions of this Paragraph 28 for any part
of such period (first deducting from the rents collected under any such
reletting all of Landlord's reasonable expenses in connection with the
termination of this Lease or Landlord's re-entry, including all reasonable
repossession costs, brokerage commissions, legal expenses, alteration costs and
other reasonable expenses of preparing the Premises for such reletting). Such
deficiency shall be paid in monthly installments by Tenant on the days specified
in this Lease for the payment of installments of Fixed Rent.
(g) In no event shall Tenant be entitled (A) to receive any excess of any
Net Rent under Paragraph 28(f) over the sums payable by Tenant to Landlord
hereunder or (B) in any suit for the collection of damages pursuant to this
Paragraph 28 to a credit in respect of any Net Rent from a reletting except to
the extent that such Net Rent is actually received by Landlord. Should the
Premises or any part thereof be relet in combination with other space, then a
proper apportionment on a square foot area basis shall be made of the rent
received from such reletting and the reasonable expenses of reletting.
29. Landlord's Default; Rights and Remedies.
(a) The occurrence of the following constitutes an "Event of Default" by
Landlord under this Lease:
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failure by Landlord to observe or perform any covenant, agreement,
condition or provision of this Lease, if such failure shall continue for thirty
(30) days after receipt of written notice from Tenant to Landlord, except that
if such default reasonably cannot be cured within such thirty (30) day period,
it shall not be considered an Event of Default if Landlord commences to cure the
default within the thirty (30) day period and proceeds diligently thereafter to
seek to effect such cure, provided that such default shall not continue beyond
an additional thirty (30) day period, and provided that in a situation requiring
immediate response, Tenant need only give Landlord such notice as is practical
under the circumstances.
(b) If an Event of Default by Landlord occurs, Tenant shall have the right,
but not the obligation, to spend any monies to cure such Event of Default. If
Tenant spends any money to cure such Event of Default by Landlord, then Tenant
shall also be entitled to interest on such expenditure at the Interest Rate.
(c) If an Event of Default by Landlord occurs, Tenant shall have all rights
and remedies available at law or in equity, including the right to set off
against Rent the amount required to cure such Event of Default, plus interest on
such expenditure at the Interest Rate.
30. Holding Over.
Should Tenant remain in possession of the Premises after the expiration of
this Lease, Tenant shall be a tenant from month-to-month of the Premises, under
all the terms and conditions of this Lease for the first thirty (30) days of the
holdover and thereafter at a Fixed Rent of one hundred twenty-five percent
(125%) of the then applicable Fixed Rent prorated on a daily basis. Such
month-to-month tenancy may be terminated by either Landlord or Tenant as of the
end of any calendar month upon at least thirty (30) days prior written notice.
31. Quiet Enjoyment.
Landlord covenants that if and for so long as Tenant pays the Rent and
performs the covenants and conditions hereof, Tenant shall peaceably and quietly
have, hold and enjoy the Premises for the Term.
32. Mutual Representation of Authority.
(a) Landlord and Tenant represent and warrant to each other that each has
full right, power and authority to enter into this Lease without the consent or
approval of any other entity or person and each party makes these
representations knowing that the other party will rely thereon.
23
(b) The signatories on behalf of Landlord and Tenant further represent and
warrant that each has full right, power and authority to act for and on behalf
of Landlord and Tenant in entering into this Lease.
33. Landlord's Claims.
Any claims by Landlord must be presented in writing by Landlord to Tenant
within thirty (30) days after expiration or termination of this Lease or shall
be deemed irrevocably waived.
34. Real Estate Brokers.
(a) Tenant represents that Tenant has dealt directly with and only with
Xxxx Corporation International Industrial Real Estate of Avon, Connecticut (the
"Listed Broker") (whose commission shall be paid by Tenant pursuant to separate
agreement), in connection with this Lease and agrees to defend, indemnify and
save harmless Landlord against all claims, liabilities, losses, damages, costs
and expenses (including reasonable attorneys' fees and other costs of defense)
arising from Tenant's breach of this representation.
(b) Except for Tenant's breach of Paragraph 34(a), Landlord hereby agrees
to defend, indemnify and save harmless Tenant against all claims, liabilities,
losses, damages, costs and expenses (including reasonable attorneys' fees and
other costs of defense) arising from the claims or demands of the Listed Broker
and any other brokers or finders for any commission alleged to be due any such
brokers or finders in connection with this Lease or the transactions
contemplated hereby.
(b) Intentionally deleted.
35. Attorneys' Fees.
Intentionally Deleted.
36. Estoppel Certificate.
(a) Tenant agrees, upon not less than ten (10) business days prior written
request by Landlord, to deliver to Landlord a statement in writing signed by
Tenant certifying (i) that this Lease is unmodified and in full force and effect
(or if there have been modifications, identifying the modifications); (ii) the
date upon which Tenant began paying Fixed Rent and the date to which the Fixed
Rent has been paid; (iii) that, to the best of Tenant's knowledge, the Landlord
is not in default under any provision of this Lease, or, if in default, the
nature thereof; and (iv) that, except as set forth in such certificate, there
has been no prepayment of Fixed Rent other than that provided for in this Lease.
24
(b) Landlord, upon not less than ten (10) business days prior written
request from Tenant, shall furnish a statement in writing to Tenant covering the
matters set forth in Paragraph 36(a), to the extent applicable to Landlord.
37. Recordable Notice of Lease.
Landlord and Tenant agree not to record this Lease, but each party agrees,
on or prior to the Commencement Date, to execute a notice of lease in recordable
form and in compliance with applicable law.
38. Intentionally deleted
39. Options to Renew.
(a) Landlord hereby grants to Tenant the exclusive and irrevocable option
to renew this Lease for two (2) additional terms of three (5) years each by
giving Landlord written notice at least twelve (12) months prior to the
Expiration Date of the Primary Term or any applicable renewal period.
(b) The renewal shall be on the same terms and conditions as this Lease,
except that the Fixed Rent shall be Fair Market Rent. "Fair Market Rent" shall
mean (i) rent in comparable buildings in the relevant competitive market
including concessions offered to new tenants such as free rent, tenant
improvement allowances, moving allowances and other such concessions; (ii) the
amount of space and length of term taken by the Tenant; (iii) the credit
worthiness and quality of the Tenant; and (and (iv) the lack of any requirement
that the Landlord pay broker's commission or Tenant improvement allowances to
retain Tenant.
(c) Within thirty (30) days after Tenant exercises any of its options to
renew, Landlord will advise Tenant of its determination (which shall be made
reasonably) of Fair Market Rent for the renewal term. If Landlord and Tenant
cannot agree on the rental rate for the renewal term within thirty (30) days of
the date that Landlord provides Tenant with Landlord's written determination of
Fair Market Rent, then within thirty (30) days after such failure to reach
agreement, Landlord shall furnish to Tenant a notice in writing ("Landlord's
Rental Notice") stating what Landlord perceives to be the Fair Market Rent
projected to the commencement date of the renewal term. Landlord's Rental Notice
shall be accompanied by an opinion from a Qualified Real Estate Appraiser
stating the appraiser's opinion of Fair Market Rent and that it has been
determined in accordance with this Paragraph 39.
(d) If Tenant disagrees with the estimate of Fair Market Rent submitted by
Landlord with Landlord's Rental Notice, then within thirty (30) days after
receipt of Landlord's Rental Notice, Tenant shall have the right to submit to
Landlord an appraisal by a Qualified Real Estate Appraiser of Fair Market Rent
effective as of the commencement date of the renewal term. If the higher
estimate is not more than one
25
hundred five percent (105%) of the lower estimate, the Fair Market Rent shall be
established as the average of the two appraisals. If the higher estimate is more
than one hundred five percent (105%) of the lower estimate, the two Qualified
Real Estate Appraisers acting on behalf of Landlord and Tenant, shall, within
fifteen (15) days after Tenant's appraisal has been submitted, jointly appoint a
third Qualified Real Estate Appraiser (the "Referee"). If the two Qualified Real
Estate Appraisers are unable to agree upon the selection of a Referee, then the
Referee shall be selected within fifteen (15) days thereafter by an arbitrator
pursuant to the rules of the American Arbitration Association.
(e) The Referee shall, within thirty (30) days after appointment, render
his decision which decision shall be strictly limited to choosing one of the two
determinations made by the two appraisers chosen by Landlord and Tenant with
respect to Fair Market Rent. The decision of the Referee shall be binding upon
Landlord and Tenant and shall constitute the Fixed Rent for the applicable
renewal term. Landlord and Tenant shall each pay for their own appraisal, and
the cost of the Referee shall be shared equally by Landlord and Tenant.
(f) As used in this Paragraph, the term "Qualified Real Estate Appraiser"
shall mean a licensed appraiser who has at least five (5) years' full time
commercial real estate appraisal experience in the geographic area in which the
Premises are located.
40. Confidentiality.
Landlord shall not make, nor shall it authorize any broker or other entity
to make, any public announcement or press release concerning this transaction
unless it has received Tenant's written consent, which will not be unreasonably
withheld or delayed.
41. Governing Law.
This Lease shall be construed and interpreted in accordance with the laws
of the state where the Premises are located, except for its conflict of law
rules.
42. Severability.
If any of the terms or conditions of this Lease are determined to be
invalid, void or illegal, such determination shall in no way affect or
invalidate any of the other provisions of this Lease.
43. Intentionally omitted.
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44. Notices.
Any notice, consent, request or other communication (collectively
"Notices") given pursuant to this Lease must, unless otherwise provided herein,
be in writing, and may, unless otherwise in this Lease expressly provided be
given or be served by depositing the same in the United States mail, postage
prepaid, and certified and addressed to the party to be notified, with return
receipt requested, or by overnight express mail with a reliable, nationally
recognized overnight courier, or by delivery of the same in person, addressed to
the party to be notified as follows:
If to Tenant: SENCORP SYSTEMS, INC. Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Lease Administration
with copies to:
DT Industries
Attn: Xxxxxx Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attn: General Counsel
Real Estate
If to Landlord: ONE CENTER PLACE LIMITED PARTNERSHIP
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Notices delivered by hand shall be effective upon receipt, and if such delivery
is rejected, such rejection of delivery shall be considered receipt. Notices by
mail (except overnight express mail) shall be effective three (3) days after the
date mailed. Notices by overnight express mail shall be effective one (1) day
after delivery to the overnight mail service. Either party may at any time
change its address for Notices hereunder by delivering or mailing, as aforesaid,
to the other party a Notice stating the change and setting forth the changed
address.
45. Counterparts.
This Agreement may be signed in counterparts and each such counterpart
shall be deemed to be an original. Any signature, witness's signature, or both,
appearing on a counterpart of this Lease shall be deemed to appear on all other
counterparts of this
27
Lease. This Lease shall only be and become effective upon its unconditional
delivery by and between the parties hereto.
46. Entire Agreement.
This Lease constitutes the entire agreement between the parties, there
being no other terms, oral or written, except as herein expressed. No
modification of this Lease shall be binding on the parties unless it is in
writing and signed by both parties hereto.
47. Limitation of Liability.
Anything in this Lease to the contrary notwithstanding, the liability of
Tenant to Landlord in the performance by Tenant of its obligations under this
Lease and for any default by Tenant hereunder shall be limited to the assets of
Tenant, it being intended that neither Tenant's agents, shareholders, officers,
directors, partners, or principals (disclosed or non-disclosed) shall be
personally liable for any amounts due under this Lease.
Anything in this Lease to the contrary notwithstanding, the liability of
Landlord to Tenant in the performance by Landlord of its obligations under this
Lease and for any default by Landlord hereunder shall be limited to the assets
of Landlord, it being intended that neither Landlord's agents, shareholders,
officers, directors, partners, or principals (disclosed or non-disclosed) shall
be personally liable for any amounts due under this Lease.
48. Interpretation.
(a) Whenever in this Lease any words of obligation or duty are used, such
words or expressions shall have the same force and effect as though made in the
form of covenants.
(b) Words of any gender used in this Lease shall be held to include any
other gender, and words in the singular number shall be held to include the
plural, when the sense requires.
(c) The headings and captions contained in this Lease are inserted for
convenience of reference only, and are not to be deemed part of or to be used in
construing this Lease.
(d) The covenants and agreements herein contained shall, subject to the
provisions of this Lease, bind and inure to the benefit of Landlord, its
successors and assigns, and Tenant, its successors and permitted assigns except
as otherwise expressly provided herein.
49. Surrender of Premises.
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Upon the expiration or earlier termination of this Lease, Tenant shall
peaceably leave and surrender the Premises to Landlord in substantially the same
condition in which the Premises was at the Commencement Date, except as
repaired, rebuilt, restored, altered, replaced or added to as permitted by any
provision of this Lease, and except for ordinary wear, tear and use.
50. Intentionally Deleted
51. Intentionally deleted.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as
of the day and year first above written.
WITNESS: ONE CENTER PLACE LIMITED PARTNERSHIP
Landlord
By: /s/ Authorized Signatory
------------------------ ---------------------------
Name:
----------------------
Title:
---------------------
WITNESS: SENCORP SYSTEMS, INC. INC.
Tenant
By: /s/ Authorized Signatory
------------------------ ---------------------------
Name:
----------------------
Title:
---------------------
GUARANTEE
FOR GOOD AND VALUABLE CONSIDERATION THE RECEIPT WHEREOF IS HEREBY ACKNOWLEDGED,
DT INDUSTRIES, A DELAWARE CORPORATION WITH A USUAL PLACE OF BUSINESS AT 000 XXXX
XXXXX XXXXXX, XXXXXX, XXXX 00000 WHOSE RESIDENT AGENT IS XXXXXX XXXXXXX HEREBY
GUARANTEES WITHOUT CONDITION OR LIMITATION THE OBLIGATIONS OF THE TENANT
PURSUANT TO THIS LEASE AGREEMENT.
DT INDUSTRIES
GUARANTOR
By: /s/ Authorized Signatory
---------------------------
Name:
----------------------
Title:
---------------------
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