EXHIBIT 10.7
INDUSTRIAL SPACE LEASE
FOR
LUMONICS CORPORATION
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DATED: March 30, 1992
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LEASE INDEX
Page
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ARTICLE I. BASIC TERMS
Section 1.1 A. Address of Landlord.................................. 1
B. Address of Tenant.................................... 1
C. Premises............................................. 1
D. Building............................................. 1
E. Guarantor (s)........................................ 1
F. Lease Term........................................... 1
G. Lease Year........................................... 1
H. Rent................................................. 2
I. Base Rent............................................ 2
J. Security Deposit..................................... 2
K. Tenant's Proportionate Share......................... 2
L. Permitted Uses....................................... 2
M. Broker(s)............................................ 2
Section 1.2 Effect of Reference to Basic Terms................... 2
ARTICLE II. GRANT AND TERM
Section 2.1 Premises............................................. 2
Section 2.2 Term................................................. 2
Section 2.3 Possession........................................... 2
ARTICLE III. RESERVATIONS BY LANDLORD
Section 3.1 Roof, Walls, Utilities, etc.......................... 3
Section 3.2 Other Reservations................................... 3
ARTICLE IV. RENT
Section 4.1 Base Rent............................................ 3
Section 4.2 Increased Real Estate Taxes.......................... 4
Section 4.3 Fire and Extended Coverage Insurance Premiums........ 5
Section 4.4 Heating, Ventilation and Air Conditioning Maintenance 5
Section 4.5 Common Area Expenses................................. 5
Section 4.6 Payment of Additional Rent........................... 7
Section 4.7 Service Charge....................................... 7
ARTICLE V. USE
Section 5.1 Purpose.............................................. 7
Section 5.2 Prohibition of Use................................... 7
ARTICLE VI. UTILITIES AND SERVICES
Section 6.1 Utilities and Services............................... 8
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ARTICLE VII. QUIET ENJOYMENT
Section 7.1 Quiet Enjoyment........................................ 8
ARTICLE VIII. ASSIGNMENT AND SUBLETTING
Section 8.1 Assignment and Subletting.............................. 8
ARTICLE IX. DAMAGE OR DESTRUCTION
Section 9.1 Restoration............................................ 8
Section 9.2 Termination of Lease; Abatement of Rent................ 9
ARTICLE X. LANDLORD'S RIGHTS
Section 10.1 Landlord's Rights...................................... 9
ARTICLE XI. HOLDING OVER
Section 11.1 Holding Over........................................... 10
ARTICLE XII. SIGNS AND ADVERTISEMENTS
Section 12.1 Signs and Advertisements............................... 10
ARTICLE XIII. MORTGAGE AND TRANSFER
Section 13.1 Mortgage and Transfer.................................. 11
ARTICLE XIV. EMINENT DOMAIN
Section 14.1 Eminent Domain......................................... 11
ARTICLE XV. LANDLORD'S INABILITY TO PERFORM
Section 15.1 Landlord's Inability to Perform........................ 11
ARTICLE XVI. BANKRUPTCY OR INSOLVENCY
Section 16.1 Bankruptcy or Insolvency............................... 12
ARTICLE XVII. COMMON AREAS
Section 17.1 Common Areas........................................... 16
ARTICLE XVIII. COMPLETION AND ACCEPTANCE OF PREMISES, MAINTENANCE
AND CARE
Section 18.1 Completion and Acceptance.............................. 16
Section 18.2 Maintenance and Repair by Tenant....................... 16
Section 18.3 Maintenance and Repair by Landlord..................... 17
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ARTICLE XIX. LANDLORD'S RIGHT TO CURE
Section 19.1 Landlord's Option to Cure; Reimbursement by
Tenant................................................ 17
ARTICLE XX. ALTERATIONS AND ADDITIONS, MECHANICS' LIENS
Section 20.1 Alterations and Additions.............................. 18
Section 20.2 Mechanics' Liens....................................... 18
ARTICLE XXI. INSURANCE
Section 21.1 Public Liability, Property Damage, Insurance........... 18
Section 21.2 Fire and Extended Coverage Insurance................... 19
Section 21.3 Mutual Subrogation..................................... 19
Section 21.4 Indemnification of Landlord............................ 19
ARTICLE XXII. USE OF COMMON AREAS BY TENANT
Section 22.1 Use of Common Areas.................................... 20
ARTICLE XXIII. DEFAULT AND REMEDIES
Section 23.1 Defaults............................................... 20
Section 23.2 Remedies Cumulative.................................... 22
Section 23.3 No Waiver.............................................. 22
Section 23.4 No Reinstatement....................................... 22
Section 23.5 Default Under Other Leases............................. 22
ARTICLE XXIV. DEFINITION OF LANDLORD
Section 24.1 Landlord Means Owner................................... 22
ARTICLE XXV. NOTICES
SECTION 25.1 Notices................................................ 23
ARTICLE XXVI. SECURITY DEPOSIT
SECTION 26.1 Security Deposit....................................... 23
ARTICLE XXVII. SUBORDINATION OR SUPERIORITY
SECTION 27.1 Subordination or Superiority........................... 23
ARTICLE XXVIII. MISCELLANEOUS
Section 28.1 Persons Bound.......................................... 24
Section 28.2 Partial Invalidity..................................... 24
Section 28.3 Captions............................................... 24
Section 28.4 No Option.............................................. 24
Section 28.5 Brokers................................................ 25
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Section 28.6 Waiver Of Jury......................................... 25
Section 28.7 Tenant's Statement..................................... 25
Section 28.8 Estoppel Certificate................................... 25
Section 28.9 Short Form Lease....................................... 25
Section 28.10 Time of Essence........................................ 25
Section 28.11 Relationship of Parties................................ 26
Section 28.12 Law Applicable......................................... 26
Section 28.13 Guarantee.............................................. 26
ARTICLE XXIX. RIDER
Section 29.1 Rider.................................................. 26
ARTICLE XXX. ENTIRE AGREEMENT
Section 30.1 Entire Agreement....................................... 26
PROPERTY NO. _____
INDUSTRIAL SPACE LEASE
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(Single Building Project)
THIS LEASE, made as of the 17/th/ day of March, 1992, by and between the
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TRAVELERS INSURANCE COMPANY, a Connecticut Corporation, hereinafter called
"Landlord", and Lumonics Corporation, a(n) Michigan Corporation, hereinafter
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called "Tenant";
ARTICLE I - BASIC TERMS
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1.1 A. Address of Landlord:
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The Travelers Insurance Company
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c/o Welsh Companies, Inc.
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11200 W. 78/th/ Street
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Xxxx Xxxxxxx, XX 00000
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or such other address as may from time to time be designated by
Landlord in writing.
B. Address of Tenant:
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Lumonics Corporation
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0000 Xxxxx Xxx Xxxx
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Xxxx Xxxxxxx, XX 00000
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or such other address as may from time to time be designated by Tenant
in writing.
C. Premises. Approximately 69,034 square feet of space in the Building
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as shown on Exhibit "A" attached hereto.
D. Building. The Building in which the Premises are located, the common
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address of which is 0000-0000 Xxxxx Xxx Xxxx, Xxxx Xxxxxxx, XX 00000.
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The legal description of the parcel of land on which the building is
situated is attached as Exhibit "B".
E. Guarantor(s).
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F. Lease Term. The period of time commencing on April 1, 1992 (the
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"Commencement Date") and expiring on March 31, 1999, unless sooner
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terminated as set forth herein.
G. Lease Year. That twelve (12) month period commencing on the
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Commencement Date and ending on the twelve-month anniversary of the
Commencement Date and each consecutive twelve-month period thereafter
during the Lease Term.
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H. Rent. All sums, moneys or payments required to be paid by Tenant to
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Landlord pursuant to this Lease, whether designated as "Base Rent",
"Additional Rent", or otherwise.
I. Base Rent. $2,059,992.00 for the Lease Term, payable as follows: See
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Section 31.1 of Lease Rider
1. $ ______ per annum ($ _____ per month) for the period from _____
through _______________;
2. $ ______ per annum ($ _____ per month) for the period from _____
through______________;
J. Security Deposit: $19,387.00.
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K. Tenant's Proportionate Share: See Rider.
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L. Permitted Uses: Office/Warehouse/Manufacturing
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M. Broker(s): Welsh Companies, Inc.
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1.2 Effect of Reference to Basic Terms. Each reference in this Lease to any
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of the Basic Terms contained in Section 1.1 shall be construed to incorporate
into such reference all of the definitions set forth in Section 1.1.
ARTICLE II - GRANT AND TERM
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2.1 Premises. In consideration of the rents, convenants, agreements and
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conditions hereinafter provided to be paid, kept, performed and observed,
Landlord leases to the Tenant and Tenant hereby hires from Landlord the Premises
described in Section 1.1 (C).
2.2 Term. Tenant shall have and hold the Premises for and during the Lease
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Term described in Section 1.1 (F), subject to the payment of the Rent and to the
full and timely performance by Tenant of the convenants and conditions
hereinafter set forth.
2.3 Possession. Except as otherwise expressly provided herein (or by written
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instrument signed by Landlord), Landlord shall deliver possession of the
Premises to Tenant on or before the Commencement Date in their condition as of
the execution and delivery hereof, reasonable wear and tear excepted. If
Landlord gives possession prior to the Commencement Date, such occupancy shall
be subject to all the terms and conditions of this Lease. If Landlord shall be
unable to deliver possession of the Premises on the Commencement Date by reason
of the fact that work required
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to be done by Landlord hereunder, if any, has not been completed for any reason,
because a prior tenant has failed to deliver up possession of the Premises, or
for any other cause beyond the control of Landlord, Landlord shall not be
subject to any liability for the failure to give possession on said date, nor
shall the validity of this Lease or the obligations of Tenant hereunder be in
any way affected. Under such circumstances, unless the delay is the fault of
Tenant, Rent and other charges hereunder shall not commence until the later of
the date possession of the Premises is given or the Commencement Date.
ARTICLE III - RESERVATIONS BY LANDLORD
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3.1 Roof, Walls, Utilities, etc. Landlord accepts and reserves the roof and
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exterior walls of the Building, and further reserves the right to place,
install, maintain, carry through, repair and replace such utility lines, pipes,
wires, appliances, tunneling and the like in, over, through and upon the
Premises as may be reasonably necessary or advisable for the servicing of the
Premises or any other portions of the Building or the parcel of land described
in Exhibit "B".
3.2 Other Reservations. Notwithstanding any provision in this Lease to the
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contrary, it is agreed that Landlord reserves the right, without invalidating
this Lease or modifying any provision thereof, at any time, and from time to
time, (i) to make alterations, changes, and additions to the Building, (ii) to
add additional areas to the Building and/or to exclude areas therefrom, (iii) to
construct additional buildings and other improvements, (iv) to remove or
relocate the whole or any part of any building or other improvement, so long as
such changes do not negatively impact tenants use or economic value of the
Premises. It is further understood that the existing layout of the Building,
and any appurtenant walks, roadways, parking areas, entrances, exits, and other
improvements shall not be deemed to be a warranty, representation or agreement
on the part of Landlord that same will remain exactly as presently built, it
being understood and agreed that Landlord may change the number, dimensions and
locations of the walks, buildings and parking spaces a Landlord shall deem
proper. All such common areas shall at all times be subject to the exclusive
control and management of Landlord.
ARTICLE IV - RENT
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4.1 Base Rent. Tenant covenants to pay without notice, deduction, set-off or
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abatement to Landlord the Base Rent specified in Section 1.1 (l) in lawful money
of the United States in equal consecutive monthly installments in advance on the
first day of each and every month during the Lease Term. Rent for any partial
month shall be prorated on a per diem basis. Rent shall be payable to Landlord
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at Landlord's address shown at Section 1.1
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(A) above or such other place as Landlord may designate from time to time in
writing. Tenant shall pay the first full month's Base Rent upon execution of
this Lease. All payments of Rent shall be made without deduction, set off,
discount or abatement in lawful money of the United States.
4.2 Real Estate Taxes. During the Lease Term or any renewals, extensions or
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holding over, Tenant shall pay to Landlord, as Additional Rent, Tenant's
Proportionate Share of all real property taxes (including extraordinary and/or
special assessments) which may be levied or assessed by any lawful authority
against the Building and the parcel of land described in Exhibit "B" during any
and each Lease Year. In addition, Tenant shall pay to Landlord prior to
delinquency all taxes assessed against the value of any improvements made by
Tenant, or of any machinery, equipment, fixtures, inventory or other personal
property or assets of Tenant contained in the Premises or related to Tenant's
use of the Premises. A tax xxxx or true copy thereof submitted by Landlord to
Tenant shall be conclusive evidence of the amount of taxes assessed or levied,
as well as of the items taxed. If a tax or excise on rents or other tax, however
described, is levied or assessed against Landlord on account of or measured by,
in whole or in part, the Rent expressly reserved under this and any other leases
or leasehold interests in the Building, as a substitute for or addition to, in
whole or in part, taxes assessed or imposed on the Premises, the Building or the
parcel of land described in Exhibit "B", such tax or excise on rents or other
tax shall be included as a part of the real property taxes covered hereby, but
only to the extent of the amount thereby which is lawfully assessed or imposed
as a direct result of Landlord's ownership of this Lease or of the Rent accruing
under this Lease, or of the other leases or leasehold interests in the Building.
The above described taxes to be paid by Tenant shall be estimated by
Landlord, and 1/12/th/ of such estimated taxes for each Lease Year shall be paid
monthly on the first day of each and every month during the Lease Term in
addition to Base Rent. An annual accounting to include a copy of the paid tax
bills shall be made promptly after receipt by Landlord of such tax bills for
each Lease Year at which time Tenant shall pay any additional tax due or
Landlord shall apply any overpayment made by Tenant as a credit toward the next
Lease Year's tax obligations of Tenant or at the end of the Lease Term shall
return any such overpayments to Tenant provided Tenant has no Rent then due to
Landlord, whichever event is applicable. In any event, upon notice by Landlord,
Tenant shall pay any additional tax due with the next monthly installment of
Base Rent. Landlord shall have the same rights and remedies for Tenant's failure
to pay real estate taxes as Landlord has for Tenant's failure to pay Base Rent.
If some method or type of taxation shall replace the current method of
assessment of real estate taxes, in whole or part, or the type hereof, or if
additional types of taxes are
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imposed upon the Premises, the Building or the parcel of land described in
Exhibit "B", or if Landlord is required to supplement real estate taxes due to
legal limits imposed thereon, Tenant agrees that Tenant shall pay an equitable
share of the same as Additional Rent computed in a fashion consistent with the
method of computation herein provided, to the end that Tenant's share thereof
shall be, to the maximum extent practicable, comparable to that which Tenant
would bear under the foregoing provisions.
If the Lease Term shall commence or end during a tax calendar year (tax
calendar year shall mean each annual period for which ad valorem real estate
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taxes are assessed and levied) of which only part is included in the Lease Term,
the amount of such Additional Rent shall be equitably prorated to cover only the
period of time within the tax calendar year during which the Lease shall be in
effect. All references herein to Real Estate Taxes for a particular tax
calendar year shall be deemed to refer to the Real Estate Taxes levied, assessed
or otherwise imposed for such tax calendar year without regard to when such Real
Estate Taxes are payable.
4.3 Fire and Extended Coverage Insurance Premiums. During the Lease Term or
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any renewal, extension, or holding over thereof, Tenant shall pay to Landlord as
Additional Rent, as part of Common Area Expenses, Tenant's Proportionate Share
of the cost of the premium for the fire and extended coverage insurance
described in Section 21.2.
4.4 Heating, Ventilation and Air Conditioning Maintenance. During the Lease
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Term or any renewal, extension, or holding over thereof, in the event Landlord
elects to enter into service and maintenance agreements for the heating,
ventilation and air conditioning systems as more fully described in Section
18.2, Tenant shall pay to Landlord, as Additional Rent, as part of Common Area
Expenses, Tenant's Proportionate Share of Landlord's cost and expense of such
service and maintenance agreements and repairs to the heating, ventilating and
air conditioning equipment and controls servicing the Premises. Landlord shall
not enter into a maintenance and service agreement if tenant provides Landlord
with a maintenance and service plan acceptable to Landlord.
4.5 Common Area Expenses. During the Lease Term or any renewal, extension or
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holding over thereof Tenant will pay to Landlord, as Additional Rent, Tenant's
Proportionate Share of the Common Area Expenses pertaining to the Building and
the parcel of land described in Exhibit "B", as defined below.
For the purpose of this Section 5.5 the term "Common Area Expenses" means
Landlord's total costs and expenses incurred in owning, operating,
maintaining and repairing the common facilities hereinafter defined,
including but without limitation by enumeration, costs for all electricity,
gas, water or fuel used in connection with the operation, maintenance, use
and repair of the common facilities; the amount paid for all electricity
furnished to the common
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facilities to light the parking lots or for any other purpose; the amount
paid for all labor and/or wages and other payments including costs to
Landlord of workers' compensation and disability insurance, payroll taxes,
welfare and fringe benefits made to janitors employees, contractors and
subcontractors of Landlord involved in the operation and maintenance of the
common facilities; managerial, administrative, and telephone expenses
related to operation and maintenance of the common facilities; the total
charges of and independent contractors employed in the care, operation,
maintenance, cleaning and landscaping; the amount paid for all supplies,
tools, replacement parts of components, equipment and necessities which are
occasioned by everyday wear and tear; the amount paid for premiums for all
insurance required from time to time by Landlord or Landlord's mortgagees
and the pro-rata costs of machinery and equipment purchased or leased by
Landlord to perform its common area maintenance obligations. To the extent
that Landlord elects to provide services which are not separately metered
or directly billed to Tenant, such as water and trash hauling, the costs of
such services shall be included in Common Area Expenses. Common Area
Expenses shall not, however, include interest on debt, capital retirement
of debt, depreciation, costs properly chargeable to the capital account,
except for capital expenditures which reduce other operating expenses or
such capital expenditures that are required by changes in any governmental
law or regulation in which case such expenditures, plus interest on the
unamortized principal investment at ten percent (10%) per annum, shall be
amortized over the life of the improvements, and such costs shall be
directly chargeable by Landlord to Tenant in Tenant's Proportionate Share.
Suitable adjustments in Common Area Expenses incurred shall be made in the
determination of Tenant's Proportionate Share for any period during the
Lease Term which is less than a full calendar year. Payments by Tenant on
account of Tenant's Proportionate Share of such Common Area Expenses shall
be made monthly and at the time and in the fashion herein provided for the
payment of Base Rent. The amounts to be so paid to Landlord shall be an
amount from time to time estimated by Landlord to be sufficient to cover,
in the aggregate, a sum equal to Tenant's Proportionate Share of such
Common Area Expenses for each calendar year during the Lease Term. Promptly
after the end of each calendar year during the Lease Term, Landlord shall
submit to Tenant a reasonably detailed accounting of Common Area Expenses
for such calendar year, and Landlord shall certify to the accuracy thereof.
If payments theretofore made for such calendar year by Tenant exceed
Tenant's Proportionate Share of Common Area Expenses, according to such
statement, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant (or refund such overpayment, if the Lease
Term had ended and Tenant has no
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further obligation to Landlord); but, if Tenant's Proportionate Share of
Common Area Expenses is greater than payments theretofore made on account
for such period, Tenant shall make suitable payment to landlord promptly
after being so advised by Landlord but in no event later than the date on
which the next monthly installment of Base Rent is due.
4.6 Payment of Additional Rent. In addition to the Base Rent, all other
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payments to be made by Tenant pursuant to this Lease shall be deemed to be and
shall become additional rent hereunder (hereinafter sometimes referred to as
"Additional Rent"), whether or not the same be designated as such and Landlord
shall have the same remedies for failure to pay the same as for non-payment of
Base Rent. Any Additional Rent payable by Tenant pursuant to this Lease shall
be paid upon billing by Landlord or at the time and in the manner as may
otherwise be provided in this Lease.
4.7 Service Charge. Tenant's failure to make any monetary payment required of
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Tenant hereunder within ten (10) days of the due date thereof shall, result in
the imposition of a service charge for such late payment in the amount of one
and one-half percent (1 1/2%) of the amount due for each month or fraction
thereof (or such lesser percentage as may be the maximum amount permitted by
law) from the date due until paid.
ARTICLE V - USE
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5.1 Purpose. The Premises hereby leased shall be used by and/or at the
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sufferance of Tenant only for the non-residential purposes set forth in Section
1.1 (L) above and for no other purposes. Tenant shall, at Tenant's expense,
promptly comply with all applicable statutes, ordinances, rules, regulations,
orders and requirements in effect during the Lease Term or any part thereof
regulating the use by Tenant of the Premises. Tenant shall not use or permit
the use of the Premises in any manner that will tend to create waste or a
nuisance, or will tend to unreasonably disturb other tenants in the Building.
5.2 Prohibition of Use. If use of the Premises should at any time during the
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Lease Term be prohibited by law or ordinance or other governmental regulation,
or prevented by injunction, this Lease shall not be thereby terminated, nor
shall Tenant be entitled by reason thereof to surrender the Premises or to any
abatement or reduction in rent, nor shall the respective obligations of the
parties hereto be otherwise affected.
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ARTICLE VI - UTILITIES AND SERVICES
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6.1 Utilities and Services. Tenant shall contract in its own name and timely
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pay for all charges for electricity, gas, water, fuel, sewer charges, telephone,
trash hauling, and any other services or utilities used in, servicing or
assessed against the Premises, unless otherwise herein expressly provided, and
shall indemnify, defend and save Landlord harmless from and against any
liability or damages on such account.
ARTICLE VII - QUIET ENJOYMENT
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7.1 Quiet Enjoyment. Landlord covenants that Tenant, on paying the Rent herein
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provided and keeping, performing and observing the covenants, agreements and
conditions herein required of Tenant, shall peaceably and quietly hold and enjoy
the Premises for the Lease Term subject, however, to the terms and conditions of
this Lease.
ARTICLE VIII - ASSIGNMENT AND SUBLETTING
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8.1 Assignment and Subletting. Tenant shall not assign or hypothecate this
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Lease nor sublet or otherwise transfer its interest in all or any part of the
Premises without the prior written consent of Landlord which consent shall not
be unreasonably withheld. If Tenant wishes to assign this Lease or sublet all or
any part of the Premises it shall give notice in writing (by certified mail or
by personal delivery) of such intention to Landlord, furnishing Landlord with a
copy of the proposed assignment or sublease document and with full information
as to the identity and financial status of the proposed assignee or subtenant.
Thereupon, Landlord shall have, within thirty (30) days of receipt of such
notice, the right to terminate this Lease or to approve or reject such
assignment or subletting by written notice to Tenant. If no such response is
given, Landlord shall be deemed to have elected to approve the assignment or
subletting. If such assignment or subletting is so approved and the rents under
such an assignment or sublease are greater than the rents provided for herein,
then Landlord shall have the further option either (a) to convert the assignment
or sublease into a prime lease and receive all of the rents, in which case
Tenant will be relieved of further liability hereunder and under the proposed
assignment or sublease; or (b) to require Tenant to remain liable under this
Lease, in which event Tenant shall be entitled to retain one-half of such excess
rents.
ARTICLE IX - DAMAGE OR DESTRUCTION
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9.1 Restoration. If the Premises or the Building or any part thereof is
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damaged by fire or other casualty, cause or condition whatsoever as to be
substantially untenantable and Landlord shall
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determine not to restore said Premises or Building, Landlord may, by written
notice to Tenant given within sixty (60) days after such damage, terminate this
Lease as of the date of the damage. If this Lease is not terminated as above
provided and if the Premises are made partially or wholly untenantable as
aforesaid, Landlord, at its expense, shall restore the same with reasonable
promptness to the condition in which Landlord furnished the Premises to Tenant
at the commencement of the term of this Lease as to those items that were
provided at Landlord's expense without any reimbursement by Tenant. Landlord
shall be under no obligation to restore any alterations, improvements or
additions to the Premises made by Tenant or paid for by Tenant, including, but
not limited to, any of the initial tenant finish done or paid for by Tenant or
any subsequent changes, alterations or additions made by Tenant.
9.2 Termination of Lease: Abatement of Rent. If, as a result of fire or other
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casualty, cause or condition whatsoever the Premises are made partially or
wholly untenantable and, if Landlord has not given the sixty (60) day notice
above provided for and fails within one hundred twenty (120) days after such
damage occurs to eliminate substantial interference with Tenant's use of the
Premises or substantially to restore same, Tenant may terminate this Lease as of
the end of said one hundred twenty (120) days by written notice to Landlord
given not later than five (5) days after expiration of said one hundred twenty
(120) day period. If the Premises are rendered totally untenantable but this
Lease is not terminated, all Rent shall xxxxx from the date of the fire or other
relevant cause or condition until the Premises are ready for occupancy and
reasonably accessible to Tenant. If a portion of the Premises untenantable, Rent
shall be prorated on a per diem basis and apportioned in accordance with the
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portion of the Premises which is usable by Tenant until the damaged part is
ready for Tenant's occupancy. In all cases, due allowance shall be made for
reasonable delay caused by adjustment of insurance loss, strikes, labor
difficulties or any cause beyond Landlord's reasonable control. For the purposes
of this Lease, the Premises shall be considered tenantable so long as and to the
extent that the Premises are occupied. In any event, Tenant shall be responsible
for the removal, or restoration, when applicable, of all its damaged property
and debris from the Premises, up request by Landlord, or reimburse Landlord for
the cost of removal.
ARTICLE X - LANDLORD'S RIGHTS
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10.1 Landlord's Rights. Landlord reserves the following rights:
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(a) To change the name of the Building without notice or liability to
tenant;
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(b) During the last ninety (90) days of the Lease Term or any renewal or
extension thereof, or at any time if Tenant has vacated the Premises,
to decorate, remodel, repair, alter or otherwise prepare the Premises
for re-occupancy; so long as said work does not adversely effect the
utility of the Premises, does not unreasonably interfere with Tenants
use of the Premises and does not alter the layout of the Premises
without first obtaining Tenants permission, which shall not be
unreasonably withheld;
(c) To exhibit the Premises to others and to display "For Lease" signs on
the Premises during the last six months of the Lease Term or any
renewal or extension thereof; so long as the "For Lease" sign does not
obstruct existing signs or cause an unsafe situation;
(d) To remove abandoned or unlicensed vehicles and vehicles that are
unreasonably interfering with the use of the parking lot by others and
charge the responsible tenant for the expense of removing said
vehicles;
(e) To take any and all measures, including making inspections, repairs,
alterations, additions and improvements to the Premises or to the
Building as may be necessary or desirable for the safety, protection
or preservation of the Premises or the Building or Landlord's
interests, or as may be necessary or desirable in the operation
thereof. Landlord shall give prior notice to Tenant when possible
except in the case of an emergency and shall attempt not to
unreasonably interfere with Tenants use of the Premises.
Landlord may enter upon the Premises for the purpose of exercising any or all of
the foregoing rights hereby reserved without being deemed guilty of an eviction
or disturbance of Tenant's use or possession and without being liable in any
manner to Tenant.
ARTICLE XI - HOLDING OVER
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11.1 Holding Over. In the event of a holding over by Tenant after expiration or
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termination of this Lease without the consent in writing of Landlord, Tenant
shall be deemed a tenant at sufferance and shall pay rent for such occupancy at
the rate of 150% of the last-current Base Rent and Additional Rent, prorated for
the entire holdover period, plus all attorneys' fees and expenses incurred by
Landlord in enforcing its rights hereunder, plus any other damages occasioned by
such holding over. Except as otherwise agreed, any holding over with the
written consent of Landlord shall constitute Tenant a month-to-month tenant.
ARTICLE XII - SIGNS AND ADVERTISMENTS
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12.1 Signs and Advertisements. Tenant shall not put upon nor permit to be put
------------------------
upon any part of the Premises or the Building, any signs, billboards or
advertisements whatever in any location or any form without the prior written
consent of Landlord.
-10-
ARTICLE XIII - MORTGAGE AND TRANSFER
------------------------------------
13.1 Mortgage and Transfer. Landlord shall have the right to transfer,
---------------------
mortgage, pledge or otherwise encumber, assign and convey, in whole or in part,
the Premises, the Building, the parcel of land described in Exhibit "B", this
Lease, and all or any part of the rights now or hereafter existing and all rents
and amounts payable to Landlord under the provisions hereof. Nothing herein
contained shall limit or restrict any such rights.
ARTICLE XIV - EMINENT DOMAIN
----------------------------
14.1 Eminent Domain. If the Premises or such substantial part thereof as
--------------
reasonably renders the remainder unfit for the intended uses shall be taken by
any competent authority under the power of eminent domain or be acquired for any
public or quasi-public use or purpose, the Lease Term shall cease and terminate
upon the date when the possession of said Premises or the part thereof so taken
shall be required for such use or purpose and without apportionment of the award
and Tenant shall have no claim against Landlord for the value of the then
unexpired Lease Term. If any condemnation proceeding shall be instituted in
which it is sought to take any part of the Building or to change the grade of
any street or alley adjacent to the Building and such taking or change of grade
makes it necessary or desirable to remodel the Building to conform to the
changed grade, Landlord shall have the right to terminate this Lease after
having given written notice of termination to Tenant not less than ninety (90)
days prior to the date of termination designated in the notice. In either of
said events, Rent at the then current rate shall be apportioned as of the date
of the termination. No money or other consideration shall be payable by
Landlord to Tenant for the right of termination and Tenant shall have no right
to share in any condemnation award or in any judgment for damages cause by any
taking or the change of grade. The condemnation award shall be paid to and be
the sole property of Landlord whether the award shall be made as compensation as
diminuation of the value of the leasehold estate or the fee of the Premises or
otherwise. Nothing in this Section shall preclude an award being made to Tenant
for or depreciation to and cost of removal of Tenant's equipment or fixtures, or
Tenant's relocation expenses.
ARTICLE XV - LANDLORD'S INABILITY TO PERFORM
--------------------------------------------
15.1 Landlord's Inability to Perform. If, by reason of inability to obtain and
-------------------------------
utilize labor, materials or supplies; circumstances directly or indirectly the
result of a state of war or national or local emergency; any laws, rules,
orders, regulations or requirements of any governmental authority now or
hereafter in force; strikes or riots; accident in, damage to
-11-
or the making of repairs, replacements, or improvements to the Premises or any
of the equipment thereof; or by reason of any other cause beyond the reasonable
control of Landlord, Landlord shall be unable to perform or shall be delayed in
the performance of any covenant to supply any service, such nonperformance or
delay in performance shall not render Landlord liable in any respect for damages
to either person or property, constitute a total or partial eviction,
constructive or otherwise, work an abatement of rent or relieve Tenant from the
fulfillment of any covenant or agreement contained in this Lease.
ARTICLE XVI - BANKRUPTCY OR INSOLVENCY
--------------------------------------
16.1 Bankruptcy or Insolvency. The following shall apply in the event of the
------------------------
bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against,
Tenant under Chapter 7 of the Bankruptcy Code, and the trustee of
Tenant elects to assume this Lease for the purpose of assigning it,
the election or assignment, or both, may be made only if all of the
terms and conditions of subparagraph (b) and (d) below are satisfied.
If the trustee fails to elect to assume this Lease for the purpose of
assigning it within sixty (60) days after his appointment, this Lease
will be deemed to have been rejected. Landlord shall then immediately
be entitled to possession of the Premises without further obligation
to Tenant or the trustee, and this Lease will be canceled. Landlord's
right to be compensated for damages in the bankruptcy proceeding,
however, shall survive.
(b) If Tenant files a petition for reorganization under Chapter 11 or 13
of the Bankruptcy Code or a proceeding that is filed by or against
Tenant under any other chapter of the Bankruptcy Code is converted to
a Chapter 11 or 13 proceeding and Tenant's trustee or Tenant as a
debtor-in-possession fails to assume this Lease within sixty (60) days
from the date of filing of the petition or conversion, the trustee or
the debtor-in possession will be deemed to have rejected this Lease.
Landlord shall then immediately be entitled to possession of the
Premises without further obligation to Tenant or the trustee, and this
Lease will be cancelled. Landlord's right to be compensated for
damages in the bankruptcy proceeding, however, shall survive. To be
effective, an election to assume this Lease must be in writing and
addressed to Landlord and, in Landlord's business judgment, all of the
following conditions, which Landlord and Tenant acknowledge to be
commercially reasonable, must have been satisfied:
-12-
(i) The trustee or the debtor-in-possession has cured or has
provided to Landlord adequate assurance, as defined in this
subparagraph (b), that:
(a) The trustee will cure all monetary defaults under this
Lease within ten (10) days from the date of the
assumption; and
(b) The trustee will cure all non-monetary defaults under this
Lease within thirty (30) days from the date of the
assumption.
(ii) The trustee or the debtor-in-possession has compensated
Landlord, or had provided to Landlord adequate assurance, as
defined in this subparagraph (b), that within ten (10) days
from the date of the assumption Landlord will be compensated
for any pecuniary loss it incurred arising from the default of
Tenant, the trustee, or the debtor-in-possession as recited in
Landlord's written statement of pecuniary loss sent to the
trustee or the debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided Landlord
with adequate assurance of the further performance of each of
Tenant's obligations under the Lease; provided, however, that:
(a) the trustee or debtor-in-possession will also deposit with
Landlord, as security for the timely payment of Rent, an
amount equal to three months' Base Rent and other monetary
charges accruing under this Lease.
(b) If not otherwise required by the terms of this Lease, the
trustee or the debtor-on-possession will also pay in
advance, on each day that the Base Rent is payable, one-
twelfth (1/12) of Tenant's annual obligations under the
Lease for all Additional Rent as defined in the Lease.
(c) From and after the date of assumption of this Lease, the
trustee or debtor-in-possession will pay the annual Base
Rent payable under this Lease in advance in equal monthly
installments on each day that the Base Rent is payable.
(d) The obligations imposed upon the trustee or the debtor-in-
possession will continue for Tenant after the completion
of bankruptcy proceedings.
-13-
(iv) Landlord has determined that the assumption of the Lease will
not:
(a) Breach any provision in any other lease, mortgage,
financing agreement, or other agreement by which Landlord
is bound relating to the building; or
(b) Disrupt, in Landlord's judgment, the tenant mix of the
Building or any other attempt by Landlord to provide a
specific variety of tenants in the Building that, in
Landlord's judgment, would be most beneficial to all of
the tenants of the Building and would enhance the image,
reputation, and profitability of the Building.
(v) For purposes of this subparagraph (b), "adequate assurance"
means that:
(a) Landlord will determine that the trustee or the debtor-in-
possession has, and will continue to have, sufficient
unencumbered assets after the payment of all secured
obligations and administrative expenses to assure Landlord
that the trustee or the debtor-in-possession will have
sufficient funds to fulfill Tenant's obligations under
this Lease and to keep the Premises properly staffed with
sufficient employees to conduct a fully operational,
actively promoted business on the Premises; and
(b) An order will have been entered segregating sufficient
cash payable to Landlord and/or a valid and perfected
first lien and security interest will have been granted in
property of Tenant, trustee, or debtor-in-possession that
is acceptable for value and kind to Landlord, to secure to
Landlord the obligation of the trustee or debtor-in-
possession to cure the monetary or non-monetary defaults
under this Lease within the time periods set forth above.
(c) In the event that this lease is assumed by a trustee
appointed for Tenant or by Tenant as debtor-in-possession
under the provisions of this subparagraph (b) and,
thereafter, Tenant is either adjudicated a bankrupt or
files a subsequent petition for arrangement under chapter
II of the Bankruptcy Code, then Landlord may terminate, at
its option, this
-14-
Lease and all Tenant's rights under it, by giving written notice
of Landlord's election to terminate.
(d) If the trustee or the debtor-in-possession has assumed the Lease,
under the terms of subparagraphs (a) or (b) above, and elects to
assign Tenant's interest under this Lease or the estate created
by that interest to any other person, that interest or estate may
be assigned only of Landlord acknowledges in writing that the
intended assignee has provided adequate assurance, as defined in
this subparagraph (b) (V), of future performance of all of the
terms, covenants, and condition of this Lease to be performed by
Tenant.
(i) For the purposes of this Article XVI, "adequate assurance of future
performance" means that Landlord has ascertained that each of the
following conditions has been satisfied:
(a) The assignee has submitted a current financial statement, audited
by a certified public accountant, that shows a net worth and
working capital in amounts determined by Landlord to be
sufficient to assure the future performance by the assignee of
Tenant's obligations under this Lease;
(b) If requested by Landlord, the assignee will obtain guarantees, in
form and substance satisfactory to Landlord, from one or more
persons who satisfy Landlord's standards of creditworthiness;
(c) Landlord has obtained all consents or waivers from any third
party required under any lease, mortgage, financing arrangement,
or other agreement by which Landlord is bound, to enable Landlord
to permit the assignment;
(d) When, pursuant to the Bankruptcy Code, the trustee or the debtor-
in-possession is obligated to pay reasonable use and occupancy
charges for the use of all or part of the Premises, the charges
will not be less than the Base Rent as defined in this Lease and
other monetary obligations of Tenant, including Additional Rent
as defined herein.
-15-
(e) Neither Tenant's interest in the Lease nor any estate of Tenant
created in the Lease will pass to any trustee, receiver, assignee
for the benefit of creditors, or any other person or entity, or
otherwise by operation of law under the laws of any state having
jurisdiction of the person or property of Tenant, unless Landlord
consents in writing to the transfer. Landlord's acceptance of
Rent or any other payments from any trustee, receiver, assignee,
person, or other entity will not be deemed to have waived, or
waive, the need to obtain Landlord's consent or Landlord's right
to terminate this Lease for any transfer of Tenant's interest
under this Lease without that consent.
ARTICLE XVII - COMMON AREAS
---------------------------
17.1 Common Areas. The term "Common Areas" means all the areas of the Building
------------
or the parcel of land described in Exhibit "B" not intended for renting and,
instead, designed for the common use and benefit of Landlord and all or
substantially all of the tenants, their employees, agents, customers and
invitees. The Common Areas include, but not by way of limitation, parking lots,
rail spurs, truck courts, landscaped and vacant areas, driveways, walks and
curbs with facilities appurtenant to each as such areas may exist from time to
time. Landlord shall operate and maintain the Common Areas, the cost of which
shall be reimbursed by Tenant to Landlord as provided for herein. Landlord
hereby grants to Tenant the non-exclusive revocable use of the Common Areas by
Tenant, Tenant's employees, agents, customers and invitees, which use shall be
subject at all times to such reasonable, uniform and non-discriminatory rules
and regulations as may from time to time be established by Landlord.
ARTICLE XVIII - COMPLETION AND ACCEPTANCE OF PREMISES MAINTENANCE AND CARE
--------------------------------------------------------------------------
18.1 Completion and Acceptance. Tenant acknowledges that it will examine the
-------------------------
Premises before taking possession hereunder. Unless Tenant furnishes Landlord
with a notice in writing specifying any defect in the construction of the
Premises within ten (10) days after taking possession, such taking of possession
shall be conclusive evidence as against Tenant that at the time thereof the
Premises were in good order and satisfactory condition.
18.2 Maintenance and Repair by Tenant. Tenant shall be responsible for all
--------------------------------
maintenance and repair to the Premises of
-16-
whatsoever kind or nature that is not hereinafter set forth specifically as the
obligation of Landlord. Tenant shall take good care of the Premises and
fixtures, and keep them in good repair and free from filth, overloading, danger
of fire or any pest or nuisance, and repair any damage or breakage done by
Tenant or Tenant's agents, employees or invitees, including damage done to the
Building by Tenant's equipment or installations. Tenant shall be responsible
for the repair and replacement of all glass and plate glass on the Premises.
Tenant shall furnish and pay for the upkeep, maintenance, repair and periodic
servicing of the heating, ventilation and air conditioning system servicing the
Premises, except that Landlord, at Landlord's option, may elect to enter into a
service contract for the heating, ventilation and air conditioning equipment for
periodic inspection of such equipment and if Landlord so elects, Tenant shall
pay as Additional Rent, as part of Common Area Expenses, Tenant's Proportionate
Share of the cost and expense of the service and inspection provided pursuant to
such contract. At the end of the Lease Term or any renewal thereof, Tenant
shall quit and surrender the Premises broom clean in as good condition as when
received by Tenant, normal wear and tear excepted. In the event Tenant fails to
maintain the Premises as provided for herein Landlord shall have the right, but
not the obligation, to perform such maintenance as is required of Tenant in
which event Tenant shall promptly reimburse Landlord for its cost in providing
such maintenance or repairs together with a ten percent (10%) charge for
Landlord's overhead. There shall be no overhead charge in connection with the
servicing of the heating, air conditioning and ventilation equipment if Landlord
has elected to provide such service under this Section.
18.3 Maintenance and Repair by Landlord. During the Lease Term, Landlord shall
----------------------------------
keep and maintain the roof, exterior walls (excluding glass or plate glass),
gutters and downspouts of the Building in good condition and repair, the cost of
which shall be reimbursed by Tenant to Landlord as provided in Section 17.1
hereof. Landlord shall be under no obligation and shall not be liable for any
failure to make repairs that are Landlord's responsibility herein until and
unless Tenant notifies Landlord in writing of the necessity therefor, in which
event Landlord shall have a reasonable time thereafter to make such repairs.
Landlord reserves the right to the exclusive use of the roof and exterior walls
of the Building which Landlord is so obligated to maintain and repair. If any
portion of the Premises which Landlord is obligated to maintain or repair is
damaged by the negligence of Tenant, its agents, employees or invitees, then
repairs necessitated by such damage shall be paid for by Tenant.
ARTICLE XIX - LANDLORD'S RIGHT TO CURE
--------------------------------------
19.1 Landlord's Option to Cure: Reimbursement by Tenant. Landlord may, but
--------------------------------------------------
shall not be obligated to, cure any default by
-17-
Tenant (specifically including, but not by way of limitation, Tenant's failure
to obtain insurance, make repairs, or satisfy lien claims); and whenever
Landlord so elects, all costs and expenses paid by Landlord in curing such
default, including without limitation reasonable attorneys' fees, shall be
deemed Additional Rent and shall be due on the next rent date after such
payment, together with interest (except in the case of said attorneys' fees) at
the highest rate then payable by Tenant in the state in which the Premises are
located or in the absence of such a maximum rate at the rate of eighteen percent
(18%) per annum, from the date of the advance to the date of repayment by Tenant
to Landlord.
ARTICLE XX - ALTERATIONS AND ADDITIONS, MECHANICS' LIENS
--------------------------------------------------------
20.1 Alterations and Additions. Tenant shall not make any alterations,
-------------------------
improvements, or additions to the Premises without the prior written consent and
approval of plans therefor by Landlord. Alterations, improvements or additions
so made by either of the parties upon the Premises, except movable furniture and
equipment placed in the Premises at the expense of Tenant, shall be the property
of Landlord and shall remain upon and be surrendered with the Premises as a part
thereof at the termination of this Lease, without disturbance, molestation,
injury or damage, unless Landlord elects to require Tenant to remove such
alterations or improvements from the Premises. In the event damage to the
Premises or the Building shall be caused by moving said furniture and equipment
in or out of the Premises, said damage shall be promptly repaired at the cost of
Tenant.
20.2 Mechanics' Liens. Tenant shall not cause or permit any mechanics' liens
----------------
or other liens to be placed upon the Premises or the Building or the parcel of
land described in Exhibit "B" during the Lease Term, and in case of the filing
of any such lien or claim therefor, Tenant shall promptly discharge same;
provided, however, that Tenant shall have the right to contest the validity or
amount of any such lien upon its prior posting of security with Landlord, which
security, in Landlord's sole reasonable judgment, must be adequate to pay and
discharge any such lien in full plus Landlord's reasonable estimate of its legal
fees and other expenses. Tenant agrees to pay all legal fees and other costs
incurred by Landlord because of any mechanics' or other liens attributable to
Tenant being placed upon the Premises, the Building or the parcel of land
described in Exhibit "B".
ARTICLE XXI - INSURANCE
-----------------------
21.1 Public Liability and Property Damage Insurance. Tenant covenants and
----------------------------------------------
agrees to procure from companies satisfactory to Landlord and to maintain on the
Premises at all times during the Lease Term, or any renewal, extension, or
holding over thereof, at
-18-
its own cost, a policy or policies of comprehensive public liability and
property damage insurance, insuring Landlord, Landlord's property manager and
Tenant, as their respective interests may appear, against all claims for
personal injury, including death, and property damage, including use thereof,
with not less than $2,000,000.00 combined single limit for both bodily injury
and property damage. Such policy or policies of insurance shall contain a
provision for not less than thirty (30) days prior written notice to Landlord
and any mortgagee of Landlord in the event of cancellation or material
modification of the terms and conditions thereof. Such insurance may be
provided under a blanket policy, provided that an endorsement naming Landlord
and Landlord's property manager as additional insureds is attached thereto. In
addition to the foregoing, Tenant shall maintain insurance against such other
perils and in such amounts as Landlord may from time to time reasonably require.
21.2 Fire and Extended Coverage Insurance. Landlord shall, throughout the Lease
------------------------------------
Term, or any renewal, extension, or holding over thereof, maintain fire and
extended coverage insurance on the property owned by Landlord located on the
Premises in such amounts and with such deductibles as Landlord shall reasonably
determine. Landlord shall not in any way or manner insure any property of Tenant
or any property that may be in the Premises but not owned by Landlord.
21.3 Mutual Subrogation. Landlord and Tenant do each hereby release the other
------------------
from any and all liability or responsibility (to the other or anyone claiming
through or under them by way of subrogation or otherwise) for any loss or damage
to property caused by fire, any of the extended coverage perils or any other
insured peril, even if such fire or other casualty shall have been caused by the
fault or negligence of the other party or anyone for whom such party may be
responsible, provided, however, that this lease shall be applicable and in force
and effect only with respect to loss or damage occurring during such time as
Landlord's and Tenant's policies shall contain a clause or endorsement to the
effect only that any such release shall not adversely affect or impair said
policies or prejudice the right of the releaser to recover thereunder. Landlord
and Tenant each agree that its policies will include such a clause or
endorsement. Tenant shall comply with all insurance regulations so the lowest
fire, lightning, explosion, extended coverage and liability insurance rates may
be obtained; and nothing shall be done or kept in or on the Premises by Tenant
which will cause an increase in the premium for any such insurance on the
Premises or on the Building of which the Premises are a part or on any contents
located therein, over the rate usually obtained for the proper use of the
Premises permitted by this Lease or which will cause cancellation of any such
insurance.
21.4 Indemnification of Landlord. Tenant shall indemnify and defend Landlord
---------------------------
and save it harmless from and against any and all loss (including loss of rents
payable by
-19-
Tenant or other tenants) and against all claims, actions, damages, liability and
expenses in connection with loss of life, bodily and personal injury or damage
to the Building arising from any occurrence in, upon or at the Premises or any
part thereof (including without limitation computer data loss), or occasioned
wholly or in part by any act or omission of Tenant, its agents, contractors,
employees, servants, licensees, concessionaires or invitees or by anyone
permitted to be on the Premises by Tenant. Tenant assumes all risks of and
Landlord shall not be liable for injury to person or damage to property
resulting from the condition of the Premises or from the bursting or leaking of
any and all pipes, utility lines, connections, or air conditioning or heating
equipment in, on or about the Premises, or from water, rain or snow which may
leak into, issue or flow from any part of the Building. Tenant agrees, at all
times, to defend, indemnify and hold Landlord harmless against all actions,
claims, demands, costs, damages or expenses of any kind which may be brought or
made against Landlord or which Landlord may pay or incur by reason of Tenant's
occupancy of the Premises or its negligent performance of or failure to perform
any of its obligations under this Lease. In case Landlord shall without fault
on its part, be made a party to any litigation commenced by or against Tenant,
then Tenant shall defend, indemnify, defend and hold Landlord harmless and shall
pay all costs, expenses and reasonable attorneys' fees incurred by or on behalf
of Landlord in connection with such litigation.
ARTICLE XXII - USE OF COMMON AREAS BY TENANT
--------------------------------------------
22.1 Use of Common Areas. Tenant shall not use any part of the Building
-------------------
exterior to the Premises or the parcel of land described in Exhibit "B" for
outside storage. No trash, crates, pallets, or refuse shall be permitted
anywhere outside of the Building by Tenant except in enclosed metal containers
to be located as directed by Landlord. Tenant shall not park any trucks or
trailers, loaded or empty, except in front of the docks on the concrete apron
provided for such purposes. Tenant shall not park or permit parking of vehicles
overnight anywhere about the Building's parking areas without the prior written
consent of Landlord.
ARTICLE XXIII - DEFAULT AND REMEDIES
------------------------------------
23.1 Defaults. In the event:
--------
(a) Tenant shall at any time fail to pay any item of Rent when due; or
(b) Tenant shall fail to keep, perform or observe any other covenant,
agreement, condition or undertaking hereunder and shall fail to remedy
such default within ten (10) days after written notice thereof has
been
-20-
mailed by Landlord to Tenant; or if such default is one that will take
longer than ten (10) days to remedy, Tenant fails to commence curing
such default within ten (10) days and/or fails diligently to pursue
such cure to completion; or
(c) The Premises shall be vacated or abandoned by Tenant;
Landlord shall have the right, without further notice or demand, to re-
enter and take exclusive possession of the Premises, with or without force
or legal process, and to refuse to allow Tenant to enter the same or have
possession thereof; to change the locks on the doors to the Premises; take
possession of any furniture or other property in or upon the Premises
(Tenant hereby waiving the benefit of all exemptions by law), sell the same
at public or private sale without notice and apply the proceeds thereof to
the costs of sale, payment of damages and payment of the Rent due under
this Lease; all without being liable to Tenant for any damages or to any
prosecution therefor; and
(i) As agent of Tenant to relet the Premises for the balance of the
Lease Term or for a shorter or longer term and receive the
rents therefor, applying them first to the payment of the
expense of such reletting and, second, to the payment of
damages suffered to the Premises and Rent due and to become due
under this Lease, Tenant remaining liable for and hereby
agreeing to pay Landlord and deficiency; or
(ii) To cancel and terminate the remaining Lease Term, re-enter and
take possession of the Premises free of this Lease and
thereafter this Lease shall be null and void and the rent in
such case shall be apportioned and paid on and up to the date
of such entry. Thereafter both parties shall be released and
relieved from and of any and all obligations thereafter to
accrue hereunder. Tenant shall be liable for all loss and
damage resulting from such breach or default; or
(iii) To treat such default as an anticipatory breach of this Lease
and, as liquidated damages for such default, be entitled to the
difference, if any, between the some which, at the time of such
termination for anticipatory breach represents the then present
worth (computed at seven percent per year) of the excess
aggregate Rent payable hereunder that would have accrued over
the balance of the Lease Term (including extensions) had such
Lease Term not been prematurely terminated, over the aggregate
market rental value of the Premises over the Lease Term
(including
-21-
renewals) that the Lease would have run had it not been
prematurely terminated.
23.2 Remedies Cumulative. All rights and remedies provided in this Lease for
-------------------
Landlord's protection shall be cumulative and in addition to any other rights
and remedies provided by law. Landlord shall be entitled to recover from Tenant
its reasonable attorneys' fees incurred in enforcing its rights hereunder.
23.3 No Waiver. A waiver by Landlord of a breach or default by Tenant under the
---------
terms and conditions of this Lease shall not be construed to be a waiver of any
subsequent breach or default or of any other term or condition of this Lease,
and the failure of Landlord to assert any breach or to declare a default by
Tenant shall not be construed to constitute a waiver thereof so long as such
breach or default continues unremedied.
23.4 No Reinstatement. No receipt of money by Landlord from Tenant after the
----------------
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the Premises
shall reinstate, continue or extend the Lease Term or affect any such notice,
demand or suit.
23.5 Default Under Other Leases. A default under this Lease shall, at
--------------------------
Landlord's option, be deemed a default under any other leases between Landlord
and Tenant for space in the Building. Likewise, a default under any other such
lease between Landlord and Tenant shall, at Landlord's option, be deemed a
default under this Lease.
ARTICLE XXIV - DEFINITION OF LANDLORD
-------------------------------------
24.1 Landlord Means Owner. The term "Landlord" as used in this Lease, so far
--------------------
as covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners at the time in question of
the fee of the Premises, and in the event of any transfer or transfers of the
title to such fee, Landlord herein named (and in case of any subsequent
transfers or conveyances, the then grantor) shall be automatically freed and
relieved, from and after the date of such transfer or conveyance, of all
liability as respects the performance of any covenants or obligations on the
part of Landlord contained in this Lease thereafter to be performed; provided
that any funds in the hands of such Landlord or the then grantor at the time of
such transfer, in which Tenant has an interest, shall be turned over to the
grantee, and any amount then due and payable to Tenant by Landlord or the then
grantor under any provisions of this Lease, shall be paid to Tenant.
-22-
ARTICLE XXV - NOTICES
---------------------
25.1 Notices. Except as otherwise herein provided, whenever by the terms of
-------
this Lease notice shall or may be given either to Landlord or to Tenant, such
notice shall be in writing and shall be deemed to have been properly served if
hand-delivered or sent by certified mail, return receipt requested, postage
prepaid, to Landlord at the place where Rent is payable and to Tenant at the
Premises. The date of such hand-delivery or mailing shall be deemed the date of
service.
ARTICLE XXVI - SECURITY DEPOSIT
-------------------------------
26.1 Security Deposit. Tenant herewith deposits with Landlord the sum set
---------------
forth in Section 1.1 (J) as security for the performance by Tenant of every
covenant and condition of this Lease. Said deposit may be commingled with other
funds of Landlord and shall bear no interest. If Tenant shall default with
respect to any covenant or condition of this Lease, Landlord may apply the whole
or any part of such security deposit to the payment of any sum in default or any
sum which Landlord may be required to spend by reason of Tenant's default. This
includes, but is not limited to, applying the security deposit first to any
restoration and/or cleanup costs necessary over and above normal wear and tear
of the vacated space. It is understood that the security deposit is not to be
considered as the last month's Base Rent under this Lease. Should Tenant comply
with all of the covenants and conditions of this Lease, the security deposit or
any balance thereof shall be returned to Tenant after the expiration of the
Lease Term.
ARTICLE XXVII - SUBORDINATION OR SUPERIORITY
--------------------------------------------
27.1 Subordination or Superiority. If the mortgagee or trustee named in any
----------------------------
first mortgage or first trust deed hereafter made shall agree that, if it
becomes the owner of the Premises by foreclosure or deed in lieu of foreclosure,
it will recognize the rights and interests of Tenant under this Lease and not
disturb Tenant's use and occupancy of the Premises if and so long as Tenant is
not in default under this Lease (which agreement may, at such mortgagee's
option, require attornment by Tenant), then all or a portion of the rights and
interests of Tenant under this Lease shall be subject and subordinate to such
first mortgage or first trust deed and to any and all advances to be made
thereunder, and to the interest thereon, and all renewals, replacements and
extensions thereof. Any such mortgagee or trustee may elect that, instead of
making this Lease subject and subordinate to its first mortgage or first trust
deed, the rights and interests of Tenant under this Lease shall have priority
over the lien of its mortgage or trust deed. Tenant agrees that it will, within
ten (10) days after demand in writing, execute and deliver whatever
-23-
instruments may be required, either to make this Lease subject and subordinate
to such a mortgage or trust deed, or to give this Lease priority over the lien
of the mortgage or trust deed, whichever alternative may be elected by the
mortgagee or trustee. If Tenant fails to execute and deliver any such
instrument, Tenant does hereby make, constitute and irrevocably appoint Landlord
as its attorney in fact, in its name, place and stead so to do.
ARTICLE XXVIII - MISCELLANEOUS
------------------------------
28.1 Persons Bound. The agreements, covenants and conditions of this Lease
-------------
shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of each of the parties hereto, except
that no assignment, encumbrance or subletting by Lessee, unless permitted by the
provisions of this Lease, without the written consent of Landlord, shall vest
any right in the assignee, encumbrancee or sublessee of Tenant. If there be
more than one Tenant herein named, the provisions of this lease shall be
applicable to and binding upon such Tenants jointly and severally, as well as
their heirs, legal representatives, successors and assigns.
28.2 Partial Invalidity. If any term, covenant, condition or provision of this
-----------------
Lease or the application thereof to any person or circumstance shall, to any
extent be invalid, unenforceable or violate a party's legal rights, then such
term, covenant, condition or provision shall be deemed to be null and void and
unenforceable, however, all other provisions of this Lease, or the application
of such term or provision to persons or circumstances other than those to which
such forms of provision is held invalid, unenforceable or violative of legal
rights, shall not be affected thereby, and each and every other term, condition,
covenant and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
28.3 Captions. The headings and captions used throughout this Lease are for
--------
convenience and reference only and shall in no way be held to explain, modify,
amplify, or aid in the interpretation, construction or meaning of any provisions
in this Lease. The words "Landlord" and "Tenant" wherever used in this Lease
shall be construed to mean plural where necessary, and the necessary grammatical
changes required to make the provisions hereof apply either to corporations,
partnerships or individuals, men or women, shall in all cases be assumed as
though in each case fully expressed.
28.4 No Option. Submission of this instrument for examination does not
---------
constitute a reservation of or option for the Premises. This instrument does
not become effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
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28.5 Brokers. Tenant represents that it has dealt directly with and only with
-------
the broker or brokers set forth at Item 1.1 (M) of Basic Terms, and that Tenant
knows of no other broker who negotiated this Lease or is entitled to any
commission or fee in connection herewith. Tenant covenants and agrees to pay,
hold harmless, defend and indemnify Landlord from and against any and all cost,
expense or liability for any compensation, commissions and charges claimed by
any other broker or agent pertaining to Tenant's having entered into this Lease.
28.6 Waiver of Jury. Landlord and Tenant agree that, to the extend permitted
--------------
by law, each shall and hereby does waive trial by jury in any action, proceeding
or counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this Lease.
28.7 Tenant's Statement. Tenant shall furnish to Landlord, within ten (10)
------------------
days after written request therefor from Landlord, a copy of Tenant's then most
recent audited and certified financial statement. It is mutually agreed that
Landlord may deliver a copy of such statements to any mortgagee or prospective
mortgagee of Landlord, or any prospective purchaser of the Property but
otherwise Landlord shall treat such statements and information contained therein
as confidential.
28.8 Estoppel Certificate. Tenant shall at any time and from time to time upon
--------------------
not less than ten (10) days prior written request from Landlord, execute,
acknowledge and deliver to Landlord, in form reasonably satisfactory to Landlord
and/or Landlord's, mortgagee, a written statement certifying (if true) that
Tenant has accepted the Premises, that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), that Landlord is
not in default thereunder, the date to which Rent has been paid in advance, if
any, and such other accurate certifications as may reasonably be required by
Landlord or Landlord's mortgagee, agreeing to give copies to any mortgagee of
Landlord of all notices by Tenant to Landlord and agreeing to afford Landlord's
mortgagee a reasonable opportunity to cure any default of Landlord. It is
intended that any such statement delivered pursuant to this Section may be
relied upon by any prospective purchaser or mortgagee of the Premises and their
respective successors and assigns.
28.9 Short Form Lease. This Lease shall not be recorded, but the parties
----------------
agree, at the request of either of them, to execute a Short Form Lease for
recording, containing the names of the parties, the legal description and the
Lease Term.
28.10 Time of Essence. Time is of the essence of this Lease, and all
---------------
provisions herein relating thereto shall be strictly construed.
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28.11 Relationship of Parties. Nothing contained herein shall be deemed or
-----------------------
construed by the parties hereto, or by any third party, as creating the
relationship of principal and agent or of partnership, or of joint venture, by
the parties hereto, it being understood and agreed that no provision contained
in this Lease nor any acts of the parties hereto shall be deemed to create any
relationship other than the relationship of Landlord and Tenant.
28.12 Law Applicable. This Lease shall be construed and enforced in accordance
--------------
with the laws of the state where the Premises are located.
28.13 Guarantee. In the event a guarantee is executed in connection with this
----- ---------
Lease, said guarantee shall be deemed a part of this Lease.
ARTICLE XXIX - RIDER
--------------------
29.1 Rider. Rider consisting of 5 pages, with paragraphs numbered 31.1
----- ---- -----
through 45.1 consecutively, is attached hereto and made a part hereof.
----
ARTICLE XXX - ENTIRE AGREEMENT
------------------------------
30.1 Entire Agreement. This Lease contains the entire agreement between the
----------------
parties and no modification of this Lease shall be binding upon the parties
unless evidenced by an agreement in writing signed by Landlord and Tenant after
the date hereof. If there be more than one Tenant named herein, the provisions
of this Lease shall be applicable to and binding upon such Tenants jointly and
severally.
IN WITNESS WHEREOF, the parties have signed triplicate counterparts hereof as of
the date and year hereinabove set forth.
TENANT LANDLORD
LUMONICS CORPORATION THE TRAVELERS INSURANCE COMPANY,
a Michigan Corporation a Connecticut Corporation
By: "Xxxxx X. Xxxxxx"
____________________ --------------------------------
Its: Xxxxx X. Xxxxxx, Director
By: "X.X. Xxxxxxx" Attest: "Xxxxxx Xxxxxxx"
-------------------- --------------------------------
Xxxxxx X. Xxxxxxx Its: Xxxxxx Xxxxxxx, Assistant Secretary
Its: President
Attest: ____________________
Its: ____________________
VP Finance & Admin.
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RIDER TO INDUSTRIAL SPACE LEASE
DATED MARCH 30, 1992
BY AND BETWEEN
THE TRAVELERS INSURANCE COMPANY, LANDLORD
AND
LUMONICS CORPORATION, TENANT
The following changes are made to the referenced Lease, which additions shall
supersede any inconsistent provision in such Lease:
31.1 Base Rent
---------
1. $232,644.00 per annum ($19,387.00 per month) for the period from April
1, 1992, through March 31, 1994.
2. $310,656.00 per annum ($25,888.00 per month) for the period from April
1, 1994, through March 31, 1997.
3. $331,368.00 per annum ($27,614.00 per month) for the period from April
1, 1997, through March 31, 1999.
32.1 Tenant's Proportionate Share
----------------------------
It is acknowledged that the Building is located on a single tax parcel made
up of two buildings known as 0000-0000 Xxxxx Xxx Xxxx and 6680-6690 Shady
Oak Road, Eden Prairie, Minnesota, consisting of a total of 208,244 square
feet and legally described on Exhibit "B".
Tenant's proportionate share shall be as follows:
A. Real Estate Taxes:
Real estate taxes shall be prorated over the entire 208,244 square
feet. Tenant's proportionate share is 33.15%.
B. All Other Prorated Expenses:
These expenses shall be based on Tenant's proportionate share of the
building expenses for the building at 0000-0000 Xxxxx Xxx Xxxx, Xxxx
Xxxxxxx, Xxxxxxxxx. Common Area for the Building is shown on Exhibit
"C". Tenant's proportionate share is 100%.
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33.1 Tenant Improvements
-------------------
A. Landlord shall construct those improvements in Premises desired by
Tenant all in accordance with the instructions of Tenant ("Tenant
Improvements"). Tenant shall, on or before May 15, 1992, advise
Landlord of its desired Tenant Improvements and Landlord shall
thereafter cause all necessary architectural and mechanical plans,
drawings and specifications, ("Plans") to be prepared for the
construction of Tenant Improvements. Plans shall be subject to
Landlord's and Tenant's written approval. Once approved, Plans shall
not be changed without Landlord's and Tenant's written consent.
B. Landlord shall contribute toward the cost of constructing Tenant
Improvements an amount up to Sixty Six Thousand and 00/100
($66,000.00) ("Improvement Allowance"). Tenant shall pay all costs of
constructing Tenant Improvements which exceed the Improvement
Allowance ("Excess Costs"). Tenant shall pay Excess Costs to Landlord
prior to the commencement of construction of Tenant Improvements;
C. If completion of the Tenant Improvements is delayed as a result of:
i. Tenant's request for materials, finishes or installation that
require significant lead times;
ii. The performance by Tenant or any person, firm or corporation
employed by Tenant and the completion of any work by Tenant or
said person, from or corporation; or
iii. Any other act or omission by Tenant or its agents including, but
not limited to, requests for changes in Plans;
the payment of Rent shall not be affected or deferred on account of
such delay. Landlord shall use reasonable efforts to complete Tenant
Improvements as soon as practical.
34.1 Cash Payment
------------
Landlord shall provide Tenant with $50,000.00 cash to be used by Tenant in
any way Tenant shall see fit. Said payment shall be made to Tenant within
thirty (30) days of the Lease Commencement Date.
35.1 Common Area Expenses
--------------------
With respect to 1992, Tenant shall be required to pay to Landlord during
the Lease Term and in the manner provided in Lease Agreement (except as
provided below) the lesser of:
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35.1 Common Area Expenses (Cont'd)
A. Tenant's Proportionate Share of the actual Common Area Expenses
pertaining to the Building; and
B. an amount equal to the product of $.65 and the net rentable area of
the Premises.
For the calendar years 1993 and thereafter, Tenant shall pay, as
Additional Rent the lesser of:
i. One hundred four percent (104%) of the Additional Rent payable in the
immediately prior calendar year; and
ii. an amount equal to One hundred percent (100%) of Tenant's
Proportionate Share of the Common Area Expenses pertaining to the
Building.
All property insurance expenses, water and sewer expenses and real estate
tax expenses are not subject to the above stated 4% annual escalation
limit and shall be charged to Tenant based on tenant's prorata share as
set forth in the Lease.
36.1 Lease Contingency
-----------------
This Lease is contingent upon Landlord terminating the existing Lease with
Retail Holdings for the space at 0000 Xxxxx Xxx Xxxx, Xxxx Xxxxxxx,
Xxxxxxxxx, effective April 1, 1992. Landlord shall notify Tenant in
writing when said Lease termination is finalized. This Lease shall be null
and void if said Lease Termination is not finalized by April 8, 1992.
37.1 Termination of Existing Lease
-----------------------------
Upon commencement of this Lease Agreement on April 1, 1992, the existing
Lease for Tenants space at 0000 Xxxxx Xxx Xxxx, Xxxx Xxxxxxx, XX, dated
March 16, 1984, and amended November 6, 1985, October 31, 1988, and
September 5, 1991, shall terminate and have no further force or effect.
38.1 Right to Sublease Space
-----------------------
Landlord hereby grants Tenant the Right to Sublease a portion of the
Premises to Retail Holdings for a sixty (60) day period commencing on
April 1, 1992, and terminating May 31, 1992.
39.1 Special Assessments Section 4.2 shall be amended to provide as follows:
-------------------
In the event there are extraordinary or special assessments levied against
the Building or Project of which the Building is a part, Landlord shall
elect to pay such extraordinary or special assessments over the longest
period of time possible, as set by Hennepin County or the City of Eden
Prairie, and shall include in Taxes only these extraordinary or special
assessments accruing during the Lease Term.
-3-
40.1 Common Area Expense
-------------------
No Capital Expenses will be considered Common Area Expenses and passed
through to Tenant.
41.1 Prohibition of Use Section 5.2 of Lease Agreement shall be modified to
------------------
provide as follows:
A. If the prohibition of the use of the Premises is the result of the
particular use or intensity of use of the Premises by Tenant, the
Lease shall not be terminated;
B. subject to Landlord's right to contest the enforcement of such
prohibition by appropriate legal proceedings, if the use of the
Premises for office, warehousing and light manufacturing generally is
prohibited, Tenant may, as its sole remedy, terminate this Lease,
effective upon the issuance of the final order of a government or
court of competent jurisdiction prohibiting the use thereof (unless
Landlord contests such order and the effect of Landlord's contest is
to stay the enforcement of such order). Thereafter, neither Landlord
not Tenant shall be liable to the other pursuant to this Lease
Agreement.
42.1 Restoration
-----------
If the Premises or Building or any part thereof is damaged by fire or
other casualty to the extent that the cost of repair is less than thirty
percent (30%) of the fair market value of the Premises or twenty percent
(20%) of the fair market value of the Building immediately prior to such
damage or destruction, and such damage or destruction was caused by any
event required to be covered by insurance hereunder, then Landlord shall,
at Landlord's sole cost, repair such damage, as soon as reasonably
possible, and this Lease shall continue in full force and effect.
The time period of "Sixty (60) days" shall be changed to "Forty-five (45)
days"
43.1 Termination of Lease: Payment of Rent
--------------------
The time period of "Sixty (60) days" shall be changed to "Forty-five (45)
days" and two references to "One hundred Twenty (120) days" shall be
changed to "Ninety (90) days".
44.1 Eminent Domain
--------------
Any award made as compensation for the loss or removal of or damage to
Tenant's trade fixtures and removable personal property shall belong to
the Tenant, so long as the receipt of such award does not reduce the award
that would be payable to the Landlord on the taking of the Leasehold and
Fee Estate and Landlord's improvements constructed thereon. Tenant shall
not receive any award for the taking of its Leasehold Estate.
-4-
45.1 Common Area - Parking
-----------
Tenant shall be entitled to approximately 140 parking stalls as shown on
Exhibit "C" of this Lease. The area outlined shall constitute common area
of the building.
TENANT: LUMONICS CORPORATION LANDLORD: THE TRAVELERS
(a Michigan Corporation) INSURANCE COMPANY
(a Connecticut Corporation)
BY: "X.X. Xxxxxxx" BY: "Xxxxx X. Xxxxxx"
------------------------ -------------------------
ITS: President ITS: Xxxxx X. Xxxxxx, Director
------------------------ -------------------------
DATE: 3/31/92 DATE: April 2, 1992
------------------------ -------------------------
-5-
EXHIBIT "A"
[MAP APPEARS HERE]
-6-
EXHIBIT "B"
LEGAL DESCRIPTION
-----------------
XXX 0, XXXXX 0, XXXXX XXX XXXXXXXXXX XXXX THIRD ADDITION, ACCORDING TO THE PLAT
THEREOF ON FILE AND OF RECORD IN THE OFFICE OF THE COUNTY RECORDER, IN AND FOR
HENNEPIN COUNTY, MINNESOTA.
-3-
EXHIBIT "C"
[MAP APPEARS HERE]
-4-
STATE OF Illinois )
--------
)
COUNTY OF Dupage )
------
Before me, a Notary Public in and for said County and State, on this day,
personally appeared Xxxxx X. Xxxxxx and Xxxxxx Xxxxxxx to me know to be the
--------------- --------------
identical persons who subscribed the name of THE TRAVELERS Insurance COMPANY, a
---------
Connecticut corporation to the foregoing instrument as its Director and
----------- --------
Assistant Secretary who, being by me duly sworn, did state that they are the
Director and Assistant Secretary of said corporation, that the seal affixed to
--------
said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed by them on behalf of said corporation by
authority of its Board of Directors, and said Director and Assistant Secretary
acknowledged to me that they executed the same for the uses, purposes, and
consideration therein set forth and in the capacity therein stated as their free
and voluntary act and deed as the free and voluntary act and deed of said
corporation.
Given under my hand and seal of office this 2 day of April, 1992.
- -----
-------------------------------
"Official Seal"
Xxxxxxxx X. Xxxxxxx
Notary Public State of Illinois
My Commission Expires
8/25/92
-------------------------------
"Xxxxxxxx X. Xxxxxxx"
--------------------
Xxxxxxxx X. Xxxxxxx
Notary Public
My Commission Expires:
August 25, 1992
---------------
-5-
(TENANT CORPORATE ACKNOWLEDGMENT)
STATE OF Minnesota )
---------
) ss.
COUNTY OF Hennepin )
--------
On this 31st day of March, 1992, before me appeared Xxxxxx X. Xxxxxxx, to
---- ----------- -----------------
me personally known, who being by me duly sworn, did say that (he) (she) is the
President of Lumonics Corporation, the corporation that executed the within and
--------- --------------------
foregoing instrument and that said instrument was signed in behalf of said
corporation by authority of its Board of Directors, and said President
---------
acknowledged said instrument to be the free act and deed of said corporation.
"Xxxxx X. Xxxxxxx"
------------------
Notary Public
Hennepin County
--------
My commission expires:
April 5, 1996
-------------
------------------------------------
Seal
Xxxxx X. Xxxxxxx
Notary Public-Minnesota
Hennepin County
My Commission Expires April 5, 1996
------------------------------------
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