Exhibit 10.6
THIRD AMENDMENT
TO
LEASE BETWEEN BRUKER INSTRUMENTS, INC., LESSOR
AND
BRUKER DALTRONICS, INC., LESSEE
FOR THE PREMISES AT
00 XXXXXXX XXXXX, XXXXXXXXX, XXXXXXXXXXXXX
Amendment to Amended Lease Agreement dated as of June 27, 1996 (the "Lease")
between Bruker Instruments, Inc., Lessor and Bruker Daltronics, Inc., Lessee,
for the property known as and numbered 00 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
1. WHEREAS, the Lease defines the term as through October 31, 1999; and
WHEREAS, the Lessor and Lessee wish to extend the term to renew annually
automatically;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Article II, Paragraph 1 of the Lease is hereby modified to:
TO HAVE AND TO HOLD the Demised Premises under the Tenant for the term
of one year, automatically renewing annually unless terminated in
writing with 90 days written notice by either party.
2. Article II, Paragraph 2 of the Lease is hereby DELETED.
3. All other provisions of the Lease remain unchanged and the parties
hereto ratify the Lease as amended hereby.
Executed as an instrument under seal as of the 25th day of January, 1999.
Lessor:
BRUKER INSTRUMENTS, INC.
/signature/
Duly Authorized
Lessee:
BRUKER DALTRONICS, INC.
/signature/
Duly Authorized
SECOND AMENDMENT
TO
LEASE BETWEEN BRUKER INSTRUMENTS, INC., LESSOR
AND
BRUKER DALTRONICS, INC., LESSEE
FOR THE PREMISES AT
00 XXXXXXX XXXXX, XXXXXXXXX, XXXXXXXXXXXXX
Amendment to Amended Lease Agreement dated as of January 15, 1998 (the "Lease")
between Bruker Instruments, Inc., Lessor and Bruker Daltronics, Inc., Lessee,
for the property known as and numbered 00 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
1. WHEREAS, the Lease defines the rentable space as Seventeen Thousand
Five Hundred Ninety-five (17,595); and
WHEREAS, the Lessor and Lessee wish to increase the rentable space;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
2. Article I, Paragraph 1 of the Lease is hereby modified by changing
"Seventeen Thousand Five Hundred Ninety-five (17,595)" to "Twenty-Nine
Thousand Five Hundred Thirty-five (29,535)".
3. Article III, Paragraph (a) of the Lease is hereby modified by changing
"One Hundred Thirty One Thousand Nine Hundred Sixty-two and 44/100
($131,962.44)" to "Two Hundred Twenty One Thousand Two Hundred Twenty
and 00/100 ($221,220.00)".
4. All other provisions of the Lease remain unchanged and the parties
hereto ratify the Lease as amended hereby.
Executed as an instrument under seal as of the 25th day of January, 1999.
Lessor:
BRUKER INSTRUMENTS, INC.
/signature/
Duly Authorized
Lessee:
BRUKER DALTRONICS, INC.
/signature/
Duly Authorized
2
FIRST AMENDMENT
TO
LEASE BETWEEN BRUKER INSTRUMENTS, INC., LESSOR
AND
BRUKER DALTRONICS, INC., LESSEE
FOR THE PREMISES AT
00 XXXXXXX XXXXX, XXXXXXXXX, XXXXXXXXXXXXX
Amendment to Lease Agreement dated as of June 27, 1996 (the "Lease") between
Bruker Instruments, Inc., Lessor and Bruker Daltronics, Inc., Lessee, for the
property known as and numbered 00 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx.
WHEREAS, the Lease defines the rentable space as Sixteen Thousand Six Hundred
Eighty-three (16,683); and
WHEREAS, the Lessor and Lessee wish to increase the rentable space;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Article I, Paragraph 1 of the Lease is hereby modified by changing
"Sixteen Thousand Six Hundred Eighty-three (16,683)" to "Seventeen
Thousand Five Hundred Ninety-five (17,595)".
2. Article III, Paragraph (a) of the Lease is hereby modified by changing
"One Hundred Twenty Five Thousand One Hundred Twenty-two and 50/100
($125,122.50)" to "One Hundred Thirty One Thousand Nine Hundred
Sixty-two and 44/100 ($131,962.44)".
3. All other provisions of the Lease remain unchanged and the parties
hereto ratify the Lease as amended hereby.
Executed as an instrument under seal as of the 15th day of January, 1998.
Lessor:
BRUKER INSTRUMENTS, INC.
/signature/
Duly Authorized
Lessee:
BRUKER DALTRONICS, INC.
/signature/
Duly Authorized
3
INDENTURE OF LEASE
THIS INDENTURE made this 27th day of June, 1996 by and between BRUKER
INSTRUMENTS, INC., a Massachusetts corporation with principal offices located at
00 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, as sub-landlord (hereinafter referred to
as the "Landlord"), and BRUKER ANALYTICAL SYSTEMS, INC., a Massachusetts
corporation, having a usual place of business at 00 Xxxxxxx Xxxxx, Xxxxxxxxx, XX
00000 as sub-tenant (hereinafter referred to as the "Tenant").
RECITAL
Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx, Trustees of Umbrina Realty Trust
(the "Trust") entered into a Lease Agreement dated as of April 1, 1993 with the
Landlord (the "Lease Agreement"), whereby Landlord leased the premises known as
and numbered 00 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the "Property").
W I T N E S S E T H:
ARTICLE I - PREMISES. The Landlord does by these presents demise and
lease unto the Tenant and the Tenant does hereby hire from the Landlord, upon
and subject to the terms and provisions of this Lease for the term hereinafter
set forth, the following premises (hereinafter sometimes called the "Demised
Premises"): approximately Sixteen Thousand Six Hundred Eighty-three (16,683)
rentable square feet of space in the Property, all as more particularly shown on
the plan attached hereto as EXHIBIT A, as well as the right to use in common
with other tenants Thirty-three and 2/10 percent (33.2%) of the parking spaces
provided for the Building (as hereinafter defined). The Demised Premises are
demised and leased subject to:
(a) The rights of parties in possession and the existing state of
title thereof as of the commencement of the term of this Lease;
(b) All zoning regulations, restrictions, rules and ordinances,
building restrictions and other laws and regulations now in effect or hereafter
adopted by any governmental authority having jurisdiction; and
(c) Taxes, assessments, easements, claims of easements and
encumbrances, as of the date of commencement of the term of this Lease.
The Demised Premises are leased herewith together with the right to
use, in common with others entitled thereto, the hallways, stairways, loading
areas and elevators, if any, necessary for access to, egress from and use of the
Demised Premises.
The Property in which the Demised Premises are situated may be
sometimes referred to herein as the "Building". The Building, together with all
other improvements situated upon the land known and numbered as 00 Xxxxxxx
Xxxxx, Xxxxxxxxx, described in
4
EXHIBIT B attached hereto and made a part hereof, shall be sometimes
collectively referred to herein as "Landlord's Property."
ARTICLE II - TERM. TO HAVE AND TO HOLD the Demised Premises unto the
Tenant for the term of Three (3) years and four (4) months commencing on July 1,
1996 and terminating on October 31, 1999, both dates inclusive.
Provided that Landlord has extended the Lease Agreement, and provided,
further that at the times of exercise, and at the end of the then present term,
(i) there exists no Default, as hereinafter defined, beyond applicable notice
and cure periods, and (ii) this Lease is still in force and effect, Tenant shall
have the right to extend the Term hereof upon all of the same terms, conditions,
covenants and agreements herein contained (except for Rent, which shall be
adjusted as set forth in Article III, below) for two (2) successive terms of
three (3) years each. The said two (2) extension terms are hereinafter referred
to as the "First Extension Term" and the "Second Extension Term", respectively.
Tenant may extend this Lease by providing the Landlord written notice of its
election to extend not less than four (4) months prior to the expiration of the
then current term.
ARTICLE III - RENT.
(a) Fixed Annual Rent: Tenant agrees to pay to Landlord fixed
annual rent, One Hundred Twenty Five Thousand One Hundred Twenty-two and 50/100
($125,122.50) dollars, payable in equal monthly installments commencing on July
1, 1996 and on the first day of each calendar month of the term of this Lease in
advance, without deduction, counterclaim or set-off.
(b) FIRST EXTENDED TERM: The fixed annual rent for the First
Extended Term shall be adjusted in accordance with changes in the Consumer Price
Index (hereinafter called the "Price Index"). The Price Index shall mean the
average for "All Items" Series A, for "Urban Wage Earners and Clerical Workers,
Boston, Massachusetts", as promulgated by the Bureau of Labor Statistics of the
U.S. Department of Labor. The fixed annual rent for the First Extended Term
shall be adjusted in accordance with the following provisions:
(i) The Price Index as of July, 1996 shall be
designated the Base Price Index.
(ii) Promptly after the commencement of the First
Extended Term, the fixed annual rent shall be adjusted so that the ratio of the
Price Index for the first month following the commencement of the First Extended
Term to the adjusted rent shall be the same as the ratio of the Base Price Index
to the fixed annual rent for the original Term; and
(iii) No such adjustment shall reduce the fixed annual
rent below the highest fixed annual rent during the original Term.
5
(c) SECOND EXTENDED TERM: The fixed annual rent for the Second
Extended Term shall be adjusted in accordance with changes in the Price Index.
The fixed annual rent for the Second Extended Term shall be adjusted in
accordance with the following provisions:
(i) The Price Index as of November, 1999 shall be
designated the Base Price Index.
(ii) Promptly after the commencement of the Second
Extended Term, the fixed annual rent shall be adjusted so that the ratio of the
Price Index for the first month following the commencement of the Second
Extended Term to the adjusted rent shall be the same as the ratio of the Base
Price Index to the fixed annual rent for the First Extended Term; and
(iii) No such adjustment shall reduce the fixed annual
rent below the highest fixed annual rent during the First Extended Term.
In the event that a substantial change is made in the method of
establishing such Price Index, then the Price Index shall be adjusted to the
figure that would have resulted had no change occurred in the manner of
computing such Price Index. In the event that such Price Index (or a successor
substitute index) is not available, a reliable governmental or other nonpartisan
publication evaluating the information theretofore used in determining the Price
Index shall be used in lieu of such Price Index.
Tenant may exercise its option to extend the Term of this Lease for the
First Extended Term, and, thereafter, extend the First Extended Term of this
Lease for the Second Extended Term, by providing Landlord with written notice
thereof not less than four (4) months prior to the expiration of the then
current term.
Tenant also agrees to pay as Additional Rent (as hereinafter defined),
any and all sums which may become due by reason of an omission or failure of the
Tenant to comply with any of the terms, covenants, provisions, obligations and
conditions of this Lease, together with all damages, costs and expenses which
the Landlord may suffer or incur by reason of any omission or failure, including
without limitation, attorneys fees, plus interest calculated at the highest rate
allowable by law.
Rent and other sums of money provided to be paid by the Tenant to the
Landlord shall be paid to the Landlord at the place to which notices to the
Landlord are required to be sent as provided in ARTICLE XXIV, below, or to such
other person or address as the Landlord shall from time to time designate by
written notice to the Tenant.
Tenant also agrees to pay, as additional rent, any and all sums which
may become due by reason or an omission or failure of the Tenant to comply with
any of the terms, covenants, provisions, obligations and conditions of this
Lease, together with all damages, costs and expenses which the Landlord may
suffer or incur by reason of any omission or failure, including without
limitation, attorneys fees and expenses.
6
ARTICLE IV - NET - NET - NET LEASE. All costs, taxes, and all other
expenses based upon or arising out of the possession, and/or use of the Demised
Premises shall be borne solely by the Tenant without any exception, limitation,
or reservation whatsoever except as otherwise specifically provided in this
Lease. It is the intention of the parties that all rent, additional rent and
other payments provided for in this Lease shall be 100% net to the Landlord and
shall not be diminished in any manner whatsoever except as otherwise
specifically provided herein.
ARTICLE V - TENANT'S COVENANTS. The Tenant agrees with the Landlord
that during the term of this Lease and for such further time as the tenant or
any person claiming through or under it shall hold the Demised Premises or any
part thereof that:
(1) the Tenant shall pay punctually to the Landlord the rent and
additional rent reserved herein, and all other sums that may
become due and payable by the tenant hereunder, at the times
and in the manner set forth in this Lease;
(2) the Tenant shall pay all charges for heat, water, sewer, gas,
electricity, telephone and other utilities or services used
or consumed upon the Demised Premises, whether called a
charge, tax, assessment, fee or otherwise, including, without
limitation, water and sewer charges and taxes, if any, all
such charges to be paid as the same from time to time become
due and, in any event, before the same shall become
delinquent. In the event any of the utilities servicing the
Demised Premises are not separately metered, the Tenant shall
pay its Proportionate Share (as hereinafter defined) of such
utility costs as provided in ARTICLE VI of this Lease. In no
event shall the Landlord be liable to the Tenant in damages
or otherwise for any interruption, curtailment or suspension
of any utility services, nor shall Tenant be entitled to any
abatement of rent by reason of the same.
(3) the Tenant shall keep the Demised Premises and the fixtures
therein, and also all of the doors and windows thereof in the
same condition they now are or may be put in hereafter,
reasonable wear and tear, damage by fire and other
unavoidable casualty only excepted, and the Landlord shall be
under no obligation to make any repairs, renovations,
alterations or improvements to the Demised Premises, the
Building or the Landlord's Property (except as herein
specifically provided otherwise);
(4) the Tenant shall not permit any hole to be drilled which may
weaken the structure of the Building. Upon the removal of any
fixtures, equipment or signs so installed by the Tenant, the
Tenant shall restore the stone, brickwork, and walls,
ceilings and floors to
7
the condition they were in prior to the installation, except
as otherwise specifically provided in herein;
(5) if the Tenant, or its employees, agents, invitees, licensees,
or anyone claiming under the Tenant or the whole or any part
of any property of every kind, nature and description
belonging to the Tenant or anyone claiming by, through or
under the Tenant shall be injured, lost or damaged by theft,
fire, explosion, falling plaster, gas, electricity,
electrical disturbance, water, rain, snow, stream, all leaks
(including, but not limited to, leaks from any part of the
Building, the pipes, appliances, plumbing works, the roof,
street, subsurface or any other place), or from any cause
whatsoever, whether similar or dissimilar to the foregoing,
no part of said injury, loss or damage is to be borne by the
Landlord;
(6) other than those arising due to Landlord's own negligence or
willful deeds, the Tenant agrees to and does hereby indemnify
and save the Landlord harmless from and against any and all
claims, losses, damages, liability, suits, costs, fees and
expenses, including, without limitation, reasonable
attorneys' fees and expenses, arising out of or in connection
with the Tenant's use or occupancy of the Demised Premises,
the Building or the Landlord's Property and any act or
omission of the Tenant, its agents, contractors, invitees,
licensees, servants, or employees; or resulting from the
failure of the Tenant to perform and discharge its covenants
and obligations under this Lease. If the Landlord is, except
due to its own negligence, made a party to any litigation or
legal claim (without regard to whether any litigation is
commenced) asserted by or against the Tenant, or by or
against any parties in possession of the Demised Premises, or
any party thereof claiming under the Tenant, the Tenant shall
pay all costs, including without limitation, reasonable
counsel fees, incurred by the Landlord in connection with
such litigation and in connection with enforcing this
indemnification;
(7) the Tenant covenants that all furnishings, trade fixtures,
effects and personal property of every kind, nature and
description belonging to the Tenant and all parties claiming
by, through or under the Tenant which, during the term of
this Lease or any occupancy of the Demised Premises by the
Tenant or anyone claiming by, through or under the Tenant,
may be upon or within the Demised Premises, shall be at the
sole risk and hazard of theft; and if the whole or any part
thereof shall be destroyed or damaged by fire, explosion,
falling plaster, steam gas, electricity, electrical
disturbance, water, rain, snow, all leaks (including, but not
limited to, leaks from any part of the Building, the pipes,
appliances,
8
plumbing works, the roof, street, subsurface, or any other
place), theft, or from any other cause whatsoever, no part of
said loss or damage is to be charged to or to be borne by the
Landlord, except as may be caused by the negligence or
intentional acts of the Landlord;
(8) no trade or occupation shall be carried on upon or within the
Demised Premises, nor will any use be made thereof which
shall be unlawful, improper, offensive or contrary to any law
of the Commonwealth of Massachusetts, or any law or ordinance
from time to time in force of the Town of Billerica, or rules
or regulations of the Board of Fire Underwriters, or which
shall be injurious to any person or property;
(9) the Tenant shall not: permit any practice which will create
any nuisance; overload, deface or injure the Demised
Premises, the Building or the Landlord's Property; commit or
suffer any waste; dump, flush, or in any way introduce any
hazardous or toxic substances into the sewage or other waste
disposal system serving the Demised Premises, the Building or
the Landlord's Property; generate, store, use or dispose of
inflammable, hazardous or toxic substances in or about the
Demised Premises, the Building or the Landlord's Property; or
make such use of the Demised Premises, the Building or the
Landlord's Property as to disturb, by obnoxious odors, noises
or otherwise, the Landlord, or any of the Landlord's other
tenants in the Building.
(10) nothing shall be done upon or within the Demised Premises,
the Building or the Landlord's Property which increases, in
any way, the rate of fire insurance or creates any extra
premiums for any such insurance, or increases the rate of
other casualty or liability insurance or prevents the
obtaining of any such insurance on the building or on the
property kept therein, or which renders void or voidable any
such policy of insurance; provided that if the rate of any
such insurance is increased or extra premiums are made
payable by reason of anything done or permitted to be done by
the Tenant on the Demised Premises, the Tenant shall pay such
increase or extra premiums on demand;
(11) unless covered by casualty insurance, the Tenant shall keep
in good condition, at its own expense, with glass for the
same kind and quality as that which may be damaged or broken,
all the glass now or hereafter in the demised Premises,
whether broken by accident, the elements or any other cause;
9
(12) the Tenant shall comply promptly with all laws, rules,
regulations, requirements and orders of public authorities,
local boards of fire underwriters and similar organizations
having jurisdiction which are applicable to the Demised
Premises, Tenant's use and occupancy thereof and/or the
Tenant's business operation;
(13) the Tenant shall maintain in full force and effect as of the
date it takes possession of the Demised Premises and during
the term, of this Lease, at its sole cost and expense, the
following insurance policies: (i) comprehensive public
liability and property damage insurance indemnifying and
insuring the Landlord, the Landlord's Mortgagee, if required
by the Landlord, and the Tenant against all claims and
demands for personal injury liability (including, without
limitation, bodily injury, sickness, disease and death) or
damage to property which may be claimed to have occurred
upon, within or about the Demised Premises, the Building and
the Landlord's Property, with combined single limits of not
less than One Million Dollars ($1,000,000,000), with such
insurance to include products and completed operations and
(ii) fire and casualty insurance, covering loss of or damage
to all furnishings, trade fixtures, effects and other
personal property located within the Demised Premises, on an
all risk of loss basis, in amounts equal to the full
replacement cost thereof.
The Landlord and the Landlord's Mortgagee, if required by the
Landlord, shall be named as an additional named insured on
all insurance policies required hereunder, with full privity
of contract including the right to participate in any loss
adjustment. The Tenant may maintain such insurance under a
blanket policy affecting the Demised Premises and other
premises of the Tenant or any business organization
affiliated with the Tenant. The Tenant shall furnish the
Landlord with copies of said insurance policies and
satisfactory evidence of the payment of the premiums thereon.
The Tenant shall furnish the Landlord with Certificates of
Renewal at least thirty (30) days prior to the expiration of
each such insurance policy. The Tenant shall pay promptly
when due the premiums on said insurance policies. All
insurance policies required hereunder shall contain
provisions providing that the policies. All insurance
policies required hereunder shall contain provisions
providing that the policies may not be canceled or modified
without at least thirty (30) days prior written notice to the
Landlord and that the Landlord shall be notified of any
non-payment of premium.
The Landlord may from time to time increase the minimum
limits of insurance required pursuant to the provisions of
this paragraph
10
(13). Tenant also agrees to keep all of its employees covered
by workmen's compensation insurance in the required statutory
amounts and such other insurance in such amounts and upon
such terms as the Landlord may, from time to time, reasonably
require.
(14) the Tenant shall not permit any non-structural repairs,
installations, alterations, additions, improvements or
removals (collectively, the "Alterations") to be made to the
Demised Premises without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld or
delayed. All permitted Alterations made by the tenant to the
Demised Premises shall be made at Tenant's sole cost and
expense and shall belong to the Tenant during the term hereof
and, unless otherwise specifically provided by the Landlord,
shall become the property of the Landlord and shall remain
upon and be surrendered with the Demised Premises as a part
thereof at the termination of this Lease. The tenant agrees
that it shall procure all necessary permits before making any
such permitted non-structural Alternations. The Landlord
agrees that it shall co-operate with the Tenant in obtaining
such permits, provided, however, all costs and expenses
incident to Landlord's cooperation (including without
limitation, reasonable attorneys fees and costs) shall be
paid by Tenant upon demand.
Tenant shall not make any structural Alternations to the
Demised Premises or the Building without the prior written
consent of the Landlord, which, at Landlord's sole option may
be withheld or denied for any reason, or for not reason.
With regard to all structural and non-structural Alterations
that have been consented to by the Landlord, the Tenant
shall: (i) submit to Landlord compete plans and
specifications for the work; (ii) deliver to the Landlord a
statement of the names of all contractors and subcontractors
and the estimated cost of all labor and material to be
furnished by them; (iii) require each contractor and
subcontractor to carry workmen's compensation insurance, in
statutory amounts, covering all of the contractor's and
subcontractor's employees and comprehensive public liability
and property damage insurance with combined single limits of
not less than One Million Dollars ($1,000,000,000) with such
insurance policies to include contractual liability, products
and completed operations, naming the Landlord and Tenant as
additional named insureds; and (iv) require the contractors
and subcontractors to deliver to the Landlord certificates of
insurance for all such required insurance. The Tenant agrees
that all Alterations done by it or anyone claiming under it
will be done in a good and workmanlike manner, that the same
will be done in conformity
11
with the plans and specifications approved by the Landlord.
The Tenant shall repair any and all damage, caused by or
resulting from, any such Alterations, including, without
limitation, the filling of holes. The Tenant agrees to save
the Landlord harmless from, and indemnify the Landlord
against any and all claims for injury, loss or damage to
persons or property caused by or resulting from the doing of
any such work which indemnification shall include the payment
of Landlord's reasonable attorneys' fees and expenses
incurred in connection with such claims and in enforcing this
indemnification. The Tenant agrees to pay promptly when due
all charges for labor and materials in connection with any
work done by the Tenant or anyone claiming under the Tenant
upon the Demised Premises so the Demised Premises shall, at
all times, be free of liens for such work;
(15) the Tenant shall not permit any sign to be place upon the
outside of the building except such sign, and in such place
and manner as shall have been first approved by the Landlord
in writing. Whatever signs shall be placed upon the Building
shall be attached in a good and workmanlike manner and in
conformity with all laws, ordinances, regulations and orders
for ht time being in force of all public authorities having
jurisdiction. The Tenant shall indemnify and same harmless
the Landlord from an and all claims for injury or damage to
person or property caused by the installation, maintenance or
removal of any signs attached by the Tenant;
(16) the Tenant shall not assign, mortgage, pledge or transfer by
operation of law or otherwise convey this Lease or any
interest therein, or sublet the Demised Premises or any part
thereof without first obtaining on each occasion the written
consent of the Landlord, which consent, at Landlord's sole
option, may be withheld or denied for any reason or for no
reason.
If the Tenant shall be a corporation, a transfer of more than
forty-nine (49%) of the voting stock of said corporation,
either at one time, or in the aggregate shall be deemed to be
an assignment of this Lease unless such stock is listed for
sale to the public on a recognized stock exchange or such
transfer is made in connection with a bona fide public
offering. Such a transfer shall be permitted in connection
with a merger or consolidation of Tenant with or into another
corporation, if immediately subsequent to such merger or
consolidation, the net worth of the surviving corporation
shall be at least one hundred twenty-five percent (125%) of
the net worth of Tenant immediately prior thereto. Net worth
in all instances to be determined by a Certified Public
Accountant using generally
12
accepted accounting principals, consistently applied.
Notwithstanding the foregoing , the Tenant may assign the
Lease to a parent, subsidiary or affiliate corporation,
subject to the continued liability of the Tenant, as set
forth below.
The Tenant may not, in any event, assign, sublet or otherwise
transfer this Lease if it is in default of any of the terms,
covenants or conditions of this Lease. No assignment,
sublease or other transfer by the Tenant, even though
consented to by the Landlord, shall, in any manner, diminish
or limit the liability of the Tenant to the Landlord under
the terms, covenants and conditions of this Lease, and such
liability shall remain and continue in full force and effect
as if the Tenant had never entered into any assignment,
sublease or transfer. The Tenant shall remain and continue to
be unconditionally and primarily liable for the performance
of all obligations of this Lease including without
limitation, the obligation to pay all rent. The acceptance by
the Landlord of rent or the performance of any of the other
obligations of this Lease from an assignee, subtenant or
transferee shall not be deemed a release of the Tenant from
any of its obligations or an acknowledgment of any assignment
or sublease.
Any attempted assignment, transfer, mortgage, grant of
security interest, sublease, or other conveyance of this
Lease or any interest therein, except as permitted by the
provisions of this Paragraph 16, shall be void. If, for any
assignment or sublease of this Lease, the Tenant receives
rent or other consideration, either initially or over the
term of the assignment or sublease, in excess of the rent
called for hereunder, or in case of sublease of part, in
excess of such rent fairly allocable to the part, after
appropriate adjustments to assure that all other payments
called for hereunder are appropriately taken into account,
the Tenant shall pay to Landlord as additional rent, the full
excess of each such payment of rent or other consideration
received by Tenant promptly after its receipt.
(17) the Tenant shall not do or cause anything to be done whereby
the Demised Premises, the Building or the Landlord's Property
shall be encumbered by any lien, attachment or other
encumbrance, and shall, whenever and as often as any lien,
attachment, or encumbrance is filed against the Demised
Premises, the Building or the Landlord's Property as a result
of any acts by the Tenant or anyone claiming under the
Tenant, or any work performed or claimed to have been
performed by or for the benefit of the Tenant, cause the same
to be canceled and discharged of record, by payment, bond or
otherwise, within ten (10) days after the date of the filing
thereof. If any such lien is not discharged and released
13
within said ten (10) days, then the Landlord shall have the
right, but not the obligation, to take such action as it
deems desirable to remove such lien, and the Tenant shall
indemnify and reimburse the Landlord for any costs incurred
in connection therewith;
(18) if the Tenant or anyone claiming under the Tenant shall
remain in possession of the Demised Premises or any part
thereof after the expiration or sooner termination of this
Lease without any agreement in writing between the Landlord
and the Tenant with respect thereto, prior to acceptance of
rent by the Landlord, the person remaining in possession
shall be deemed a tenant at sufferance and after acceptance
of rent by the Landlord, the person remaining in possession
shall be deemed a monthly tenant at will, subject to the
provisions of this Lease insofar as the same may be made
applicable to a tenancy at will; provided, however, that if
annual rent shall be payable during the term of this Lease at
different rates at different times, annual rent during such
period as such person shall continue to hold the Demised
Premises or any part thereof shall be payable at twice the
highest rate payable during the term hereof. In no event
shall any tenancy for years or from year to year be created
unless by an agreement by and between the Landlord and Tenant
in writing;
(19) the Tenant shall at all times during the term of this Lease
and at its own expense, keep and maintain the Demised
Premises in good order, repair and condition, including,
without limiting the foregoing, keeping the Demised Premises
in good, safe, reasonably neat and attractive condition, both
interior and exterior;
(20) the Tenant agrees that it and its employees and others
connected with Tenant's operations at the Demised Premises
will abide by all reasonable rules and regulations with
respect to the building from time to time established by
Landlord by written notice to Tenant.
ARTICLE VI - TENANTS PROPORTIONATE SHARE. Tenant shall, during the term
of this Lease, pay to Landlord, as additional rent, Tenant's proportionate share
of all real estate impositions, public assessments, insurance costs and
Operational Expenses, all as hereinafter defined, with respect to Landlord's
Property as provided in this ARTICLE VI. It is agreed that Thirty-three and 2/10
percent (33.2%) will be Tenant's proportionate share of all additional rent and
items provided for in this ARTICLE VI ("Tenant's Proportionate Share").
(A) Tenant shall pay to Landlord Tenant's Proportionate Share of (i)
the real estate impositions for all tax periods wholly included in the term of
this Lease and (ii) for any fraction of a tax period included in the term of
this Lease at the beginning or end, the corresponding fraction of the real
estate impositions assessed for the period. All such
14
payments shall be made within ten (10) days after Landlord shall have notified
Tenant of the amount of such impositions (such notice to include a copy of the
tax bills involved), except that payment for the period in which the term of
this Lease shall end shall be made not later than the termination date of this
Lease, and if the amount is not then determinable shall be made on the basis of
the last prior imposition, with readjustment as soon as the correct amount is
determinable. the term "real estate impositions" as used herein shall be deemed
to constitute the real estate taxes on Landlord's Property (including, without
implied limitation, the Building and the Demised Premises), expenses of any
proceedings for abatement or reduction of taxes and assessments (less any
abatements or refunds received and attributable to a tax period or fraction
thereof included during the term of this Lease), and any use or occupancy or
similar tax with respect to the Landlord's Property. The foregoing provisions of
this ARTICLE VI are predicated upon the present system of taxation in the
Commonwealth of Massachusetts. If taxes upon rentals shall be substituted, in
whole or in part, for the present and valorem real estate taxes, then Tenant's
Proportionate Share of taxes (as set forth above) shall be based upon such taxes
on rentals to the extent to which the same shall be a substitute for present and
valorem real estate taxes. Further, if there is any other change in the system
of taxation (other than as set out immediately above) which is in substitution
of the present system, Tenant shall be responsible for its fair and equitable
share thereof, taking into account the prorations provided for in this ARTICLE
VI.
(B) In the event of any public special or betterment assessments for
improvements hereafter installed, Tenant shall pay to Landlord Tenant's
Proportionate Share thereof, as follows:
If Landlord is permitted by law to pay the assessments in
installments, Tenant shall pay to Landlord Tenant's Proportionate Share
of the first installment within thirty (30) days after Landlord shall
have notified Tenant of such assessment and the amount of the first
installment. Thereafter, at least fifteen (15) days before subsequent
installments become due, Tenant shall pay to Landlord Tenant's
Proportionate Share of each installment, including interest, coming due
during the term of this Lease, and shall pay to Landlord not later than
the end of the term of this Lease for any fraction of an installment
period at the end of the term, the corresponding fraction of Tenant's
Proportionate Share of the installment, including interest, for the
period.
If Landlord is not permitted to pay any such assessments in
installments, Tenant shall pay to Landlord Tenant's Proportionate Share
of the full amount thereof within sixty (60) days after Landlord shall
have notified Tenant of the amount of the assessment.
Tenant shall have no liability for any installment due or deemed
to be due after the expiration of the term hereof except as such
installment relates to any period of time falling within the term of
this Lease.
15
(C) Tenant shall pay to Landlord Tenant's Proportionate Share of all
costs and expenses of every kind and nature paid or incurred by the Landlord
(including appropriate reserves) in operating, maintaining, insuring, managing,
equipping, policing and securing (if and to the extend provided by the Landlord)
the common areas of the Building and Landlord's Property and the Demised
Premises. Such costs and expenses (the "Operational Expenses") shall include,
but shall not be limited to, the cost of scheduled trash and refuse compacting
and removal; water and sewer and other utility charges servicing the common
areas of the Building and Landlord's Property and the Demised Premises (unless
the utilities servicing the Demised Premises are separately metered, in which
event, the Tenant shall pay all such utility costs directly to the utility
companies providing such services as indicated pursuant to the provisions of
ARTICLE V hereunder) and the cost of maintenance, repair and replacement of
utility systems serving the common areas of the Building and/or the Landlord's
Property (including, without limitation, water, sewer and storm water and other
utility lines, pipes and conduits); the cost of pumping, cleaning, repairing,
replacing and rebuilding all septic systems and leaching fields serving the
Landlord's Property; the cost of maintenance, repair and replacement of the
Landlord's signage; wages, salaries, fees and other compensation, payroll taxes,
contributions to any social security, unemployment insurance, pension or similar
fund and payments for other fringe benefits made to or on behalf of any and all
agents, employees, or contractors of the Landlord performing services rendered
in connection with the common areas of the Building and/or Landlord's Property;
fees for licenses and permits; costs of independent contractors performing
services with respect to the common areas of the Building and/or Landlord's
Property; supplies; depreciation of equipment used in the operation, repair and
maintenance of the Landlord's Property; premiums incurred by the Landlord with
respect to all insurance relating to the Building and/or Landlord's Property,
including, without limitation, fire and casualty insurance, public liability
insurance, workmen's compensation insurance, boiler and machinery insurance,
sprinkler leakage insurance, rent insurance and such other insurance as Landlord
shall elect to carry; cleaning costs for the common areas of the Building and/or
Landlord's Property, including without implied limitation, the facade, windows
and sidewalks and all Building common areas; costs incurred for the operation,
service, maintenance, inspection, repairs and alterations of and to the
Building, and the heating, air-conditioning (if any), ventilating, plumbing,
electrical and elevator systems (if any) of the Building, and the cost of labor,
materials, supplies and equipment used in connection with all of the aforesaid
items; management fees of the managing agent (if any) for the Building and the
Landlord's Property; all costs incurred by Landlord to comply with governmental
requirements whether Federal, State, or Municipal; capital expenditures
necessitated by casualties to the extent the same are not covered by insurance;
and reasonable legal and accounting fees and expenses incurred in connection
with the management and operation of the Building and Landlord's Property; but
there shall be excluded from such Operational Expenses the initial costs of
equipment properly chargeable to the capital account and depreciation of the
original cost of constructing the buildings upon the Landlord's Property and the
common area appurtenant thereto.
Tenant's Proportionate Share of the Operational Expenses shall be paid
in monthly installments, in the amount estimated by the Landlord from time to
time, in
16
advance of the first day of each and every calendar month during the term of
this Lease. Within one hundred twenty (120) days after the end of each calendar
year during the term hereof, Landlord shall furnish to Tenant a statement in
reasonable detail setting forth the computation of such total costs and
expenses; thereupon there shall be a prompt adjustment between Landlord and
Tenant, with payment to, or repayment by, Landlord, as the case may require, to
the end that Landlord shall receive the entire amount of Tenant's Proportionate
Share of said costs and expenses, and no more. Notwithstanding the foregoing, in
the event that Tenant shall have paid to Landlord an amount in excess of
Tenant's Proportionate Share of Operational Expenses, Landlord may, but shall
not be obligated to, credit any such excess payments against monthly
installments of Operational Expenses next coming due during the term hereof.
ARTICLE VII - MAINTENANCE AND REPAIRS. The Landlord agrees at its own
expense, expeditiously after receipt of notice from Tenant, to make all repairs
to the structure, exterior walls, walls between the Demised Premises and the
adjoining premises, foundation, common areas (including the glass entrance to
the Building) and roof of the Building, unless such repairs or alterations shall
be made necessary (i) by reason of any alterations, additions or improvements
made by the Tenant, (ii) by reason of any special use to which the Demised
Premises are put by the Tenant, (iii) by reason of the negligent or willful
misconduct of the Tenant or anyone claiming under Tenant or (iv) by the failure
of the Tenant to perform or observe some agreement or condition contained in
this Lease on the part of the Tenant to be performed or observed, in which event
the Tenant shall promptly make such repairs or alterations at its own expense.
As used in this Section, the expression "structure" means supporting columns and
beams and the expression "exterior walls" does not include windows, doors,
glass, or the frames of windows. All repairs which are required to be made to
the Demised Premises and which the Landlord is not obligated to make pursuant to
this Section shall be made by the Tenant, unless herein otherwise specifically
provided.
ARTICLE VIII - LANDLORD'S RIGHT OF ENTRY. The Landlord and its agents
shall have the right to enter into and upon the Demised Premises or any part
thereof during regular business hours, and in case of emergency, at any time:
(a) to examine the same;
(b) to order the removal of any signs not affixed in accordance
with the terms of this Lease (or to remove the same if said order shall not be
complied with within ten (10) days),
(c) to make any repairs or alterations to the Demised Premises as
the Landlord shall be expressly required to make or shall otherwise elect to
make, but nothing herein contained shall obligate the Landlord to make any
repairs or alterations to the Demised Premises except as in this Lease otherwise
provided; and
(d) to make any repairs, alterations or improvements or additions
to the Building and the Landlord's Property and to put through the Demised
Premises such
17
pipes, wires, conduits and appurtenances as may be necessary for effecting such
repairs, alterations, improvements or additions, provided that the same shall
not interfere unreasonably with the business of the Tenant and shall not
unreasonably restrict the space usable by the Tenant; and the Tenant shall not
be entitled to any abatement or reduction of rent by reason thereof. The Tenant
shall permit inspection of the Demised Premises at reasonable hours to
prospective purchasers and mortgagees, and, during the last twelve (12) months
of the term of this Lease, the Tenant shall permit inspection of the Demised
Premises at reasonable hours to prospective tenants and shall permit the usual
"To Let" or "For Sale" signs to be placed on the property; provided, however,
that such inspection or inspections shall not interfere unreasonably with the
business being conducted on the Demised Premises.
ARTICLE IX - DEFAULT. In the event that:
(1) the Tenant should default in the payment of the annual rent,
or additional rent or any part thereof, and such default
continues for five (5) days after the due date thereof; or
(2) the Tenant should default in the performance of any of the
other terms, covenants and conditions in this Lease contained
and on its part to be kept and performed and fail to correct
such default within twenty (20) days after the receipt of
written notice from the Landlord designating the nature of
such default, or if by reason of the nature of such default
it cannot be corrected within said twenty (20) days, Tenant
fails to commence to correct such default within said twenty
(20) days and thereafter diligently prosecute the correction
of the same to completion; or
(3) if any assignment shall be made by the Tenant of its property
for the benefit of creditors; or
(4) if the Tenant's leasehold interest shall be taken on
execution; or
(5) if proceedings shall be commenced by the Tenant in court of
bankruptcy or insolvency; or
(6) if the Tenant shall be declared bankrupt or insolvent
according to law; or
(7) if any proceedings shall be commenced against the Tenant in a
court of bankruptcy or insolvency and such proceedings shall
not have been dismissed within sixty (60) days;
then in any of said cases, Landlord shall have the right, at its sole election
either (i) without necessity or requirement for making an entry, to terminate
this Lease by notice in writing to Tenant, which shall take effect on the date,
prior to the expiration of
18
the term of this Lease, specified in Landlord's notice or (ii) enter into and
take possession of the Demised Premises (or any part thereof in the name of the
whole) without demand or notice and repossess the same as of the Landlord's
former estate, expelling Tenant and those claiming under it, forcibly, if
necessary, without being deemed guilty of any manner of trespass, provided that
such repossession shall not be construed to effect a termination of this Lease,
unless Landlord so declares as part of such entry, or sends Tenant a written
notice of termination as provided above. Any such termination or entry shall be
without prejudice to any remedy for arrears of rent or preceding breach of
contract.
If the Landlord shall terminate this Lease, or take possession of the
Demised Premises, as aforesaid, Tenant shall indemnify Landlord each month
against all loss of rent and all damages which Landlord may incur by reason of
any such termination between the time of termination and the expiration of the
term of the Lease, or at the election of Landlord, exercised at the time of the
termination or at any time thereafter, Tenant shall indemnify Landlord each
month until the exercise of the election against all loss of rent and other
obligations which Landlord may incur by reason of such termination during the
period between the time of the termination and the exercise of the election, and
upon the exercise of the election, Tenant shall pay to Landlord as damages such
amount as at the time of the exercise of the election represents the amount by
which the rental value of the Demised Premises for the period from the exercise
of the election until the expiration of the term shall be less than the amount
of rent and other payments provided herein to be paid by Tenant to Landlord
during said period. It is understood and agreed that at the time of the
termination or at any time thereafter Landlord may rent the Demised Premises,
and for a term which may expire after the expiration of the term of this Lease,
without releasing Tenant from any liability whatsoever, that Tenant shall be
liable for any reasonable expenses incurred by Landlord in connection with
obtaining possession of the Demised Premises, with removing from the Demised
Premises property of Tenant and persons claiming under it (including warehouse
charges), with putting the Demised Premises into good condition for reletting
and with any reletting, including, but without limitation, reasonable attorneys'
fees and brokers' fees, and that any monies collected from any reletting shall
be applied first to the foregoing expenses and then to the payment of rent and
all other payments due from Tenant to Landlord.
In lieu of the foregoing, the Landlord may elect to receive from the
Tenant and the Tenant agrees to pay to the Landlord, on demand, as liquidated
damages, a sum equal to the amount by which the sum of the rent, additional rent
and other payments called for under this lease for remainder of the term exceeds
the fair rental value of Demised Premises for the remainder of the term.
The word "Tenant" as used in clauses (3), (4)Less than (5), (6) and (7)
of this ARTICLE IX shall be deemed to mean either (a) the Tenant or (b) the
guarantor, if any, of the Tenant's obligations under this Lease.
ARTICLE X - CONDEMNATION, EMINENT DOMAIN. If, after the execution of
this Lease and before the expiration of the term hereof, any portion of the
Demised Premises shall be taken by right of eminent domain that reduces the
Demised
19
Premises to less than 15,000 rentable square feet of space, then this Lease and
the term hereof shall terminate as of the time when the Landlord shall be
divested of its interest in the Demised Premises, and annual fixed rent and all
additional rent and other charges payable hereunder shall be apportioned and
adjusted as of the date of termination.
If the term of this Lease shall not be terminated as aforesaid, then
the term of this Lease shall continue in full force and effect, and the Landlord
shall, within a reasonable time after possession is required for public use
(subject to delays due to difficulty in obtaining labor, materials, equipment,
government restrictions, labor difficulties, fires or to any other cause beyond
the Landlord's control and subject to the provisions of the applicable building
and zoning laws) repair and rebuild what may remain of the Demised Premises so
as to put the same into condition for use and occupancy by the Tenant. A just
proportion of the annual rent reserved herein, according to the nature and
extent of the injury to the Demised Premises, shall be suspended or abated until
what may remain of the Demised Premises shall be put in such condition by the
Landlord, and thereafter a just proportion of the annual rent reserved herein,
according to the nature and extent of the part so taken, shall be abated for the
balance of the term of this Lease; provided, however, that in connection with
the above obligation to repair and rebuild Landlord shall have no obligation to
expend more than the amount actually recovered as an award for such taking and
made available by any mortgage of the building and/or the Landlord's Property.
The Landlord reserves to itself, and the Tenant assigns to the
Landlord, all rights to damages accruing on account of any taking under the
power of eminent domain or by reason of any act of any public or quasi-public
authority for which damages are payable. The Tenant agrees to execute such
instruments of assignment as may be reasonably required by the Landlord in any
proceeding for the recovery of such damages if requested by the Landlord, and to
turn over to the Landlord any damages that may be recovered in such proceeding.
It is agreed and understood, however, that the Landlord does not reserve to
itself, and the Tenant does not assign to the Landlord, any damages payable for
reimbursement of the cost of moving Tenant's stock, fixtures and appliances to
the extent that such claim may be made independently by Tenant directly against
any taking authority without regard to and without diminishing Landlord's claim.
ARTICLE XI - DAMAGE AND/OR DESTRUCTION. In the event that the Demised
Premises shall be damaged or destroyed by fire, the elements, or other casualty,
then Tenant shall give immediate notice thereof to Landlord, and, except as
hereinafter otherwise provided, the Demised Premises shall be repaired or
restored by the Landlord as speedily as possible (but due allowance shall be
made for any reasonable or unavoidable delay arising in connection with the
adjustment of the fire loss or inability to procure labor or materials or any
other cause beyond the Landlord's control); provided, however, that in no event
shall Landlord be obligated (i) to expend for such repairs or restoration more
than the amount of proceeds of insurance actually recovered and made available
by any mortgagee of the Building or the Landlord's Property, nor shall Landlord
be obligated to repair or restore if not allowed by applicable zoning, building
or other such laws or (ii) to repair, reconstruct or replace Tenant's leasehold
improvements, furniture, fixtures, equipment or other personal property or goods
located upon or within the
20
Demised Premises. In the event that the damage to the Demised Premises should be
so extensive as to render the whole or any part thereof untenantable and
unsuitable for use and occupation by the Tenant, a just proportion of the annual
fixed rent hereinafter reserved, according to the nature and extent of the
injury to the Demised Premises, shall be suspended or abated until the Demised
Premises, shall be suspended or abated until the Demised Premises shall have
been repaired or restored by the Landlord (to the extent of the insurance
proceeds recovered and made available by Landlord's mortgagee(s) as aforesaid)
to substantially the same condition they were in immediately prior to such
casualty.
Notwithstanding anything contained in the foregoing paragraph to the
contrary, it is expressly agreed that if the Demised Premises are damaged or
destroyed to the extent of fifty percent (50%) or more of the insurable value of
the same, then the Landlord may terminate this Lease and the term hereof. In the
event the Building is damaged to the extent of thirty-three and one-third
percent (33 1/3%) or more of the insurable value of the same (regardless of
whether or not the Demised Premises shall be damaged or destroyed), then the
Landlord may terminate this Lease and the term hereof. In either case, the
election to terminate shall be by a notice given to the Tenant within sixty (60)
days after such damage or destruction and in the event of such notice this Lease
shall terminate on the thirtieth day after the giving of such notice of
termination.
Notwithstanding anything in this Article contained in the contrary, it
is expressly agreed and understood that if during the last Lease Year of the
term of this Lease the Demised Premises are damaged or destroyed to the extent
of fifteen percent (15%) or more of the insurable value of the same, then the
Landlord may terminate this Lease and the term hereof by notice given to the
Tenant within sixty (60) days after such damage or destruction and in the event
of such notice this Lease shall terminate on the thirtieth day after the giving
of the notice of such termination.
ARTICLE XII - QUIET ENJOYMENT. It is agreed that upon the Tenant,
paying the rent reserved and performing and observing the terms, agreements,
obligations, conditions, and provisions herein on its part to be performed and
observed, shall and may peaceably and quietly have, hold and enjoy the Demised
Premises during the term hereof without any manner of hindrance or molestation
from the Landlord, subject to the terms and conditions of any mortgages of
record now or at any time hereafter a lien or liens on the Building and/or the
Landlord's Property as to which mortgages this Lease is subordinate, subject to
the powers or condemnation and eminent domain of public and quasi-public
authorities, and subject further to any rights of the Landlord with respect to
any provision of this Lease.
ARTICLE XIII - RIGHT TO DEFAULT. If Tenant shall default in the
performance or observance of any agreement or condition in this Lease contained
on its part to be performed or observed other than an obligation to pay money,
and shall not cure such default within twenty (20) days after written notice
from Landlord, specifying the default (or if such default is not capable of
being cured within twenty (20) days, if Tenant shall not within said period
commence to cure such default and thereafter prosecute the curing of such
default to completion with due diligence), Landlord may, at
21
its option and without the obligation to do so, without waiving any claim for
damages for breach of agreement, at any time thereafter cure such default for
the account of Tenant, and any amount paid or any contractual liability incurred
by Landlord in so doing shall be deemed paid or incurred for the account of
Tenant, and Tenant hereby agrees to reimburse Landlord therefore or save
Landlord harmless therefrom; provided that Landlord may cure any such default as
aforesaid prior to the expiration of said grace period but after notice to
Tenant, if the curing of such default prior to the expiration of said grace
period is reasonably necessary to protect the real estate or Landlord's interest
therein, or to prevent injury or damage to persons or property. If Tenant shall
fail to reimburse Landlord upon demand for any amount paid for the account of
Tenant hereunder, said amount shall be added to and become due together with the
next payment of rent due hereunder.
ARTICLE XIV - APPLICABLE LAW AND CONSTRUCTION. This Lease shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts. If any term, covenant, condition or provision of this Lease or
the application thereof to any person or circumstances shall be declared
invalid, or unenforceable by the final ruling of a court of competent
jurisdiction having final review, the remaining terms, covenants, conditions and
provisions of this Lease and their application to persons or circumstances shall
not be affected thereby and shall continue to be enforced and recognized as
valid agreements of the parties, and in the place of such invalid or
unenforceable provision, there shall be substituted a like, but valid and
enforceable provision which comports to the findings of the aforesaid court and
must nearly accomplishes the original intention of the parties. It is the
intention of the parties hereto that if any provision of this Lease is capable
of two constructions, one of which would render the provision void and the other
of which would render the provision valid, then the provision shall be construed
in accordance with the construction which renders the provision valid.
There are no oral or written agreements between Landlord and Tenant
affecting this Lease. This Lease represents the entire Agreement between the
parties and it is agreed that no representations, warranties or understandings
other than those expressly set forth herein, have been made, and if so made,
were neither material nor relied upon.
This Lease may be modified only by instruments in writing executed by
Landlord and Tenant, and no act or omission of any employee or agent of the
Landlord shall alter, charge or modify any of the provisions hereof. It shall be
an absolute condition precedent in each instance that such written modification
be produced before either party may legally assert, rely upon or establish any
modification of this Lease.
The titles of the several Articles contained herein are included for
convenience and reference only and the words contained therein shall in no way
be held or deemed to define, limit, describe, explain, modify, amplify and/or
add to the interpretation, construction, or meaning of any provision of, or the
scope or intent of, this Lease.
The words "Landlord" and "Tenant" and the pronouns referring thereto,
as used in this Lease, shall mean, where the context requires or admits, the
persons named herein
22
as the Landlord and as the Tenant, respectively, and their respective heirs,
legal representatives, subsidiaries, successors and assigns, irrespective of
whether singular or plural, masculine, feminine or neuter.
ARTICLE XV - REMEDIES CUMULATIVE. No mention of this Lease of any
specific right or remedy shall preclude the Landlord from exercising any other
right or from maintaining any action, either at law or in equity. The remedies
available to the Landlord under this Lease, and at law or in equity, shall be
cumulative and, except as otherwise specifically provided in this Lease, the
exercise of one remedy shall not constitute an election or waiver of any other
remedy. In addition to other remedies provided in this Lease, the Landlord shall
be entitled to the restraint by injunction of the violation or attempted or
threatened violation of any covenants, conditions or provisions of this Lease or
to a decree compelling specific performance of any such covenants, conditions or
provisions.
ARTICLE XVI - WAIVER. No assent, express or implied, by the Landlord to
any breach of any agreements or conditions herein contained on the part of the
other to be performed or observed, and no waiver, express or implied, of any
such agreement or condition shall be deemed to be a waiver of or assent to any
succeeding breach of the same or any other agreement or condition; the
acceptance by the Landlord as to any breach shall not be construed as waiving
any of the Landlord's rights hereunder unless such waiver is in writing. No
payment by the Tenant or acceptance by the Landlord of a lesser amount than will
be due the Landlord from the Tenant shall be deemed to be anything but payment
on account, and the acceptance by the Landlord of a check for a lesser amount
with an endorsement or statement thereon or upon a letter accompanying said
check that said lesser amount is payment in full shall not be deemed an accord
and satisfaction, and the Landlord may accept said check without prejudice to
recover the balance due or pursue any other remedy.
ARTICLE XVII - SUBORDINATION. This Lease is and shall be subject and
subordinate to any mortgage, deed of trust or any instrument in the nature of a
mortgage now existing or hereafter placed upon the Demised Premises, the
Building and/or the Landlord's Property by the Landlord. Tenant agrees to
execute such documents as may be reasonably required to effectuate this
subordination. Tenant agrees to make such changes in this Lease as may be
reasonably required by the holders of any mortgage upon the Demised Premises,
the Building, and/or the Landlord's Property or any transferee which may
purchase all or a substantial part of Landlord's interest in the Demised
Premises, the Building, and/or the Landlord's Property; provided that such
changes may not increase the rent, additional rent or other payments due
hereunder or otherwise materially affect the obligations of Tenant hereunder.
After receiving written notice from any person, firm, or other entity,
that it holds a mortgage (which term shall include a deed of trust) which
includes as part of the mortgaged premises the Demised Premises, Tenant shall,
so long as such mortgage is outstanding, be required to give to such holder the
same notice as is required to be given to Landlord under the terms of this
Lease, but such notice may be given by Tenant to Landlord and such holder
concurrently. It is further agreed that such holder shall have
23
the same opportunity to cure any default, and the same time within which to
effect such curing, as is available to Landlord; and if necessary to cure such a
default, such holder shall have such access to the Demised Premises as shall be
required in connection therewith.
ARTICLE XVIII - ASSIGNMENTS BY LANDLORD. With respect to any assignment
by the Landlord of Landlord's interest in this Lease or the rent, additional
rent and other payments payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of any security interest in the Building
or the Landlord's Property, the Tenant hereby agrees:
(i) that the execution thereof of any such assignment by the
Landlord and the acceptance thereof by the holder shall never be deemed an
assumption by such holder of the obligations of the Landlord hereunder, unless
such holder shall, by written notice sent to the Tenant, expressly otherwise
elect; and
(ii) that except as aforesaid, such holder shall be treated as
having assumed the Landlord's obligations hereunder only upon the foreclosure of
such holder's mortgage or security interest, if any, the taking of possession of
the Demised Premises, the Building, or the Landlord's Property and upon written
notice to the Tenant.
ARTICLE XIX - LIMITATION OF LANDLORD'S LIABILITY. If at any time during
the term of this Lease, the landlord's interest hereunder shall be held by
anyone acting in a fiduciary capacity, then notwithstanding any other provision
of this Lease, Landlord's obligations hereunder shall not be binding upon such
fiduciary acts, but only upon such fiduciary in that capacity and upon the trust
estate.
The covenants of Landlord contained in this Lease shall be binding upon
each party holding the landlord's interest herein only with respect to breaches
occurring during the time of that party's ownership of the landlord's interest
hereunder. Nothing included in the terms of this Lease shall preclude the
Landlord from transferring in any manner all or any portion of the landlord's
interest under this Lease. In addition, Tenant specifically agrees to look
solely to Landlord's interest in the Landlord's Property for the satisfaction of
any claim or judgment against Landlord, it being specifically agreed that
neither Landlord, nor any person, partner, entity, firm or other beneficial
owner of Landlord, nor anyone claiming under Landlord shall ever be otherwise
liable for any such judgment. It is further understood and agreed that with
respect to any services to be furnished by Landlord to Tenant, Landlord shall in
no event be liable for failure to furnish the same when prevented from so doing
by strike, lockout, breakdown, accident, order or regulation of or by any
governmental authority, or failure of supply, or inability by the exercise of
reasonable diligence to obtain supplies, parts, or employees necessary to
furnish such services, or because of war or other emergency, or for any cause
beyond the Landlord's reasonable control, or for any cause to do any act or
neglect of the Tenant or its servants, agents, employees, licensees, or any
person, claiming by, through or under the Tenant, or any termination for any
reason of Landlord's occupancy of the premises from which the service is being
supplied by Landlord, and in no event shall the Landlord ever by liable to
Tenant for any indirect or consequential damages.
24
ARTICLE XX - PROVISIONS BIDING, ETC. Except as hereinafter provided
otherwise, the agreements and conditions in this Lease contained on the part of
the Landlord to be performed and observed shall be binding upon the Landlord and
its successors and assigns and those claiming through or under the Landlord and
shall inure to the benefit of the Tenant and its heirs, legal representatives,
successors and assigns (and those claiming through or under the Tenant); and the
agreements and conditions on the part of the Tenant to be performed and observed
shall be binding upon the Tenant and its heirs, legal representatives,
successors and assigns (and those claiming through or under the Tenant) and
shall inure to the benefit of the Landlord and its heirs, legal representatives,
successors and assigns (and those claiming through or under the Landlord).
Each term and each provision of this Lease to be performed by Tenant
shall be construed to be both a covenant and a condition. The reference
contained to successors and assigns of Tenant is not intended to constitute a
consent to assignment by Tenant, but as reference only to those instances in
which Landlord may later give written consent to a particular assignment as
required by the provisions of ARTICLE V hereof.
ARTICLE XXI - PERMITTED USES. The Tenant covenants and agrees to use
the Demised Premises only for light manufacturing, research and development and
sales and service of electronic equipment (but not to the general public) and
general office use, in any event subject to the Rules and Regulations (herein
the "Permitted Uses" and for no other purposes.
ARTICLE XXII - CONDITION OF THE DEMISED PREMISES WHEN SURRENDERED. Upon
the termination or expiration of this Lease, the Tenant shall peaceably and
quietly surrender possession of the Demised Premises to the Landlord in
broom-clean condition and in the same good order and repair in which the Tenant
is obligated to keep and maintain the Demised Premises by the provisions of this
Lease, normal wear and tear excepted. Any and all alterations, additions and
improvements which may have been made to or installed by the Tenant upon or
within the Demised Premises and which are in any manner attached to the floors,
walls and ceilings of the Demised Premises, shall remain upon or within the
Demised Premises and at the termination of this Lease shall be surrendered with
the Demised Premises as a part thereof and shall become the property of the
Landlord, unless the Landlord shall specifically direct the Tenant to remove any
such alternations, additions or improvements. Upon such direction, Tenant shall,
at its sole cost and expense, remove such property and promptly repair any and
all damages which may be caused by or result from either the original
installation or from the removal of such property from the Demised Premises.
All fixtures, signs, furniture, equipment and personal property which
may be located upon or within the Demised Premises (and are not subject to the
provisions of the foregoing paragraph), may, and at the Landlord's request must,
be removed by the Tenant from the Demised Premises upon the expiration or sooner
termination of this Lease. Furthermore, the Tenant hereby agrees to promptly
repair any and all damage which may be caused by or result from the installation
or placement of such property upon or within
25
the Demised Premises or by the removal of such property from the Demised
Premises. Any property not so removed shall be deemed abandoned and may be
removed and disposed of by Landlord in such manner as Landlord shall determine
and Tenant shall pay Landlord the entire cost and expense incurred by the
Landlord in effecting such removal and disposition and in making any incidental
repairs and replacements to the Demised Premises and for use and occupancy
during the period after the expiration of the term of this Lease and prior to
Tenant's performance of its obligations under this Article. Tenant shall and
does hereby indemnify Landlord against all loss, cost and damage resulting from
Tenant's failure and delay in surrendering the Demised Premises as herein above
provided.
The delivery of keys to or acceptance thereof by any employee of the
Landlord shall not operate as a termination of this Lease or a surrender of the
Demised Premises.
ARTICLE XXIII-SUBROGATION. The Landlord hereby releases the Tenant from
any and all liability for any loss or damage caused by fire or any of the
extended coverage casualties covered by Landlord's insurance, even if such fire
or other casualty shall be brought about by the fault or negligence of the
Tenant or its agents, provided; however, the this release shall be in force and
effect only with respect to loss or damage occurring during such time as the
Landlord's policies of fire and extended coverage insurance shall contain a
clause to the effect that his release shall not affect said policies or the
right of the Landlord to recover thereunder. The intent of this Article is to
preclude any action by Landlord's insurance carrier against Tenant under any
right of subrogation, but it is expressly understood that nothing contained in
this Article shall be deemed a release or waiver of any other rights which
Landlord may have against Tenant under this Lease including without limitation,
the right to seek damages in excess of insurance proceeds where legally
entitled. The Landlord agrees that its fire and extended coverage insurance
policies will include such a clause so long as the same is includable without
extra cost. If extra cost is chargeable therefor, the Landlord will advise the
Tenant thereof and of the amount thereof. The Tenant, at its election, may pay
the same, or waive the benefit of such a clause.
The Tenant hereby releases the Landlord from any and all liability for
any loss or damage caused by fire or any of the extended coverage casualties
covered by Tenant's insurance, even if such fire or other casualty shall be
brought by the fault or negligence of the Landlord or its agents; provided,
however, this release shall be in force and effect only with respect to loss or
damage occurring during such time as the Tenant's policies of fire and extended
coverage insurance shall contain a clause to the effect that this release shall
not affect said policies or the right of the Tenant to recover thereunder. The
intent of this Article is to preclude any action by Tenant's insurance carrier
against Landlord under any right of subrogation, but it is expressly understood
that nothing contained in this Article shall be deemed a release or waiver of
any other rights which Tenant may have against Landlord under this Lease
including without limitation, the right, subject to the limitation set forth in
ARTICLE XIX hereof, to seek damages in excess of insurance proceeds where
legally entitled. The Tenant agrees that its fire and extended coverage
insurance policies will include such a clause so long as the same is includable
without extra cost, or if extra cost is chargeable therefor, the Tenant will
advise the Landlord
26
thereof and of the amount thereof. The Landlord, at its election, may pay the
same, or waive the benefit of such a clause.
ARTICLE XXIV - NOTICES. All notices required or permitted to be given
hereunder shall be in writing and delivered by hand, telecopier, overnight
delivery carrier (with proof of delivery, such as Federal Express) or mailed
postage prepaid, by registered or certified mail, return receipt requested, if
sent to the Tenant, the same shall be addressed if to the Tenant:
Bruker Analytical Systems, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
or to such other address as the Tenant may hereafter designate in writing, and
if sent to the Landlord:
Bruker Instruments, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Treasurer
FAX: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx, Esq.
00 Xxxxx Xxxxxx - Xxxxx 0000
Xxxxxx, XX 00000
FAX: (000) 000-0000
or in the case of either party to such other address as shall be designated by
written notice given to the other party. Any such notice shall be deemed given
when so delivered by hand or if so mailed, when deposited with the U.S. Post
Service.
ARTICLE XXV - ESTOPPEL CERTIFICATE. The Tenant agrees from time to
time, within ten (10) days after a request by Landlord, to execute, acknowledge
and deliver to Landlord, any prospective purchaser or mortgagee or other party
designated by the Landlord, a written statement certifying (which statement may
be relied upon by any party receiving such statement) that this Lease is then in
full force and effect as modified and stating the modifications) and that the
Landlord is not in default hereunder (or if such shall not be the case, to
specify any default then existing).
ARTICLE XXVI - BROKERAGE. The Tenant warrants and represents that it
has not dealt with any broker or agent in connection with this Lease and agrees
to hold harmless and indemnify the Landlord of and from any and all claims for
any brokerage or finder's fee or compensation attributable to dealings with the
Tenant, together with any and all expenses incurred by Landlord in disputing
such claims and in enforcing this indemnification, including without limitation,
reasonable attorneys' fees and expenses.
27
ARTICLE XXVII - LEASE NOT TO BE RECORDED. Tenant agrees that it shall
not record this Lease.
ARTICLE XXVIII - AUTHORITY TO EXECUTE LEASE. The person signing this
Agreement on behalf of the Tenant materially represents that the Tenant is a
duly organized and existing corporation and has taken all steps necessary or
desirable to authorize the execution of this Lease and that upon the execution
hereof by him on behalf of the Tenant, this Lease shall be binding and
enforceable upon the Tenant.
WITNESS the execution of this instrument as a sealed instrument as of
the day and year first above written.
Witness: LANDLORD:
BRUKER INSTRUMENTS, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx, Vice President,
Duly authorized
Witness: TENANT:
BRUKER ANALYTICAL
SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------- ---------------------------------
Xxxxx Xxxxxxxx, its Treasurer,
hereunto duly authorized
28
Attachment A
[Diagram]
29
