EXHIBIT 10.20
LEASE
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BY AND BETWEEN
XXXXXX-XXXXX COMPANY ("LANDLORD")
AND
MEASUREMENT SPECIALTIES, INC.
("TENANT")
DATED: AS OF AUGUST 4,2000
LEASE
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This LEASE ("Lease") is made and entered into as of the date of the last
execution hereof by and between Xxxxxx-Xxxxx Company, a Delaware corporation
(hereinafter referred to as "Landlord") and Measurement Specialties, Inc., a New
Jersey corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H:
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For and in consideration of the covenants herein contained and upon the
terms and conditions herein set forth, intending to be legally bound hereby,
Landlord and Tenant agree as follows:
ARTICLE 1
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DESCRIPTION
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1.1 Landlord agrees to let to Tenant, and Tenant hereby leases from
Landlord the space and related improvements (all of which are hereinafter
collectively referred to as the "Premises" or the "Leased Premises") consisting
of approximately Sixty Two Thousand Five Hundred (62,500) square feet of
office/manufacturing/warehouse floor space, as depicted on the floor plan set
forth on Exhibit "A" attached hereto and made a part hereof, in an
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office/manufacturing/warehouse building with street address of 0000 Xxxxx Xxx,
Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as the "Building") located on
the real property described on Exhibit "B" attached hereto and made a part
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hereof (hereinafter referred to as the "Land"), together with the right to use,
in common with other tenants of the Building, the "Common Areas" (as defined in
Article 5 of this Lease). The Leased Premises consists of approximately Eighteen
Thousand Five Hundred (18,500) square feet of office floor space and
approximately Forty Four Thousand (44,000) square feet of
manufacturing/warehouse floor space.
1.2 Landlord shall have the obligation of constructing, at Landlord's cost
and expense and in compliance with all laws, a fire rated demising wall (the
"Demising Wall") separating the Leased Premises from the remainder of the
Building and the truck docks servicing the Leased Premises (the "Docks"). The
Demising Wall and the Docks shall be installed at the locations depicted on
Exhibit "A" attached hereto and made a part hereof. Within ninety (90) days of
the completion of the construction of the Demising Wall, Landlord shall cause
floor area of the Leased Premises to be measured and such measurement, which
shall be undertaken and calculated in accordance with the applicable BOMA
standards and methods of measurement for useable area shall become the basis for
determining the square footage of the floor area of the Leased Premises for all
purposes herein.
1.3 In addition to constructing the Demising Wall and the Docks,
Landlord shall install, at Landlord's costs and expenses, one access door for
shipping and receiving access and shall modify the parking lot to accommodate
the new shipping and receiving access door in the area depicted on the floor
plan set forth on Exhibit "A" attached hereto. Tenant shall pay all
other costs in connection with the buildout and setup of the Leased Premises,
including, but not limited to, all reasonable costs and expenses associated with
(a) the construction and completion of new office areas and other areas within
the Leased Premises, (b) the moving and relocation of all employees, equipment,
record storage, inventory storage and the relocation of employees to and from
the Leased Premises, within the Leased Premises, or to other space in the
Building, as the case may be.
ARTICLE 2
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TERM
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2.1 The term of this Lease shall commence on August 7, 2000 (the
"Commencement Date") and shall end on July 31, 2010, except that if the
expiration date falls on a Saturday, Sunday or legal holiday, then the term of
this Lease shall end on the business day next following the aforementioned date.
2.2 Provided Tenant is not in default hereunder, Tenant shall have the
right to extend the initial term of this Lease for two (2) consecutive periods
of five (5) years each (an "Extension Term"), upon the same terms and conditions
hereof except that the Base Rent (hereinafter defined) shall be as set forth in
Section 3.2 hereof, provided written notice of Tenant's election to extend is
given to Landlord at least two hundred seventy (270) days prior to the
expiration of the then current term hereof.
ARTICLE 3
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RENT
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3.1 During the initial term of this Lease, Tenant shall pay to Landlord
"Base Rent" as follows:
Base Rent Base Rent Annual Base Monthly
Office Mfg. Rent Installment From To
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$8.50 $4.50 $355,250 $29,604.17 8/04/00 7/31/01
8.84 4.68 369,460 30,788.33 8/01/01 7/31/02
9.19 4.87 384,295 32,024.58 8/01/02 7/31/03
9.56 5.06 399,500 33,291.67 8/01/03 7/31/04
9.94 5.26 415,330 34,610.83 8/01/04 7/31/05
10.34 5.47 431,970 35,997.50 8/01/05 7/31/06
10.76 5.69 449,420 37,451.67 8/01/06 7/31/07
11.19 5.92 467,495 38,957.92 8/01/07 7/31/08
11.63 6.16 486,195 40,516.25 8/01/08 7/31/09
12.10 6.40 505,450 42,120.83 8/01/09 7/31/10
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Base Rent shall be adjusted based on the measurement of the floor space of the
Leased Premises pursuant to Section 1.2 above. Landlord and Tenant shall confirm
such Base Rent by amendment hereto reflecting the actual measurement of the
floor space of the Leased Premises, the Base Rent as adjusted and the Tenant's
Pro Rata Share determined in accordance with Section 4.1 below.
3.2 Base Rent during the first Lease Year of the first Extension Term
shall be set at the market rate prevailing at the time ("Market Rent") and
thereafter shall be increased each Lease Year during such first Extension Term
by four percent (4%) of the Base Rent for the preceding Lease Year. The Base
Rent during the first Lease Year of the second Extension Term shall be set at
the market rate prevailing at that time and thereafter shall be increased each
Lease Year during such second Extension Term by four percent (4%) of the annual
Base Rent of the preceding Lease Year. Notwithstanding the foregoing, in no
event shall the Base Rent in the first year of any Extension Term be less than
the Base Rent for the last year of the preceding Term.
3.3 Landlord and Tenant shall endeavor to agree on Market Rent within
sixty (60) days of the date that Tenant exercises an option for a particular
Extension Term. If Landlord and Tenant cannot reach such agreement within such
sixty (60) day period, then Market Rent for the Extension Term in question shall
be established in the following manner: within thirty (30) days following the
expiration of such sixty (60) day period, Landlord and Tenant shall each select
and notify the other of its selection of, a qualified real estate broker ("Real
Estate Broker") for purposes of determining Market Rent. Market Rent for the
Leased Premises shall be the average of the Market Rents determined by such Real
Estate Brokers, provided that the Market Rent that each Real Estate Broker
arrives at is within ten percent (10%) of the other. Such Real Estate Brokers
shall each make their separate determination of Market Rent within forty-five
(45) days from the date the last Real Estate Broker is selected within the
thirty (30) day selection period aforesaid; provided, however, if Landlord or
Tenant, as the case may be, fails to make its selection within the thirty (30)
day period, then Market Rent shall be determined by the one (1) Real Estate
Broker selected. If the Market Rents determined by the two (2) Real Estate
Brokers are not within ten percent (10%) of each other, then the two (2) Real
Estate Brokers, within fifteen (15) days after the last determination of Market
Rent by such Real Estate Brokers, shall agree upon a third (3rd) Real Estate
Broker. Market Rent for the Premises for the Extension Term in question then
shall be determined by such third (3rd) Real Estate Broker within thirty (30)
days thereafter, but such Market Rent shall not be higher than the highest nor
lower than the lowest of the Market Rents determined by the two (2) Real Estate
Brokers. If the two (2) Real Estate Brokers are unable to agree upon the third
(3rd) Real Estate Broker, each shall write the name of a Real Estate Broker on a
piece of paper and blind draw shall be made to determine the third Real Estate
Broker.
3.4 Each monthly installment of Base Rent shall be payable to TRW
Sensors and Components, Inc. at 0000 Xxxxx Xxx, Xxxxxxx, Xxxxxxxx 00000, or such
other address as Landlord shall notify Tenant in writing, on the first day of
each and every month, without notice, offset, deduction or demand. If the term
of this Lease commences or ends other than on the first (1st) day of a month,
then the Rent for such partial month shall be prorated on a daily basis, based
on the number of days in the applicable month.
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3.5 If Tenant fails to pay any Base Rent or any other amount due
hereunder within five (5) days of the due date thereof, then in addition to and
not in lieu of any other right or remedy available to Landlord, Tenant shall pay
a late charge equal to five percent (5.0%) of the past due payment and, if any
such payment shall become more than fifteen (15) days past due, such payment
shall bear interest at an annual rate equal to the Interest Rate, as hereinafter
defined in Section 14 below, from the due date of such payment until paid.
ARTICLE 4
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OPERATING EXPENSES, TAXES AND ASSESSMENTS,
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INSURANCE PREMIUMS
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4.1 For the purpose of this Article, the term "Tenant's Pro Rata Share"
shall mean the percentage which the floor area of the Leased Premises is of the
total floor area of the Building, which percentage is estimated as being Fifty
Two and 8/100 percent (52.08%) subject to adjustment based on the measurement of
the Leased Premises pursuant to Section 1.2 above, and assuming that the
Building has a total floor area of One Hundred Twenty Thousand (120,000) square
feet. Floor area, with respect to the Building, means the average number of
square feet of leasable area in the Building from time to time designated by
Landlord for the exclusive use and occupancy of rent-paying tenants. Floor area,
with respect to the Building, shall be exclusive of the Common Areas.
4.2 During the term of this Lease, Landlord (a) shall pay and discharge
all taxes, including taxes on the rentals hereunder, special and general
assessments and other governmental impositions and charges of every kind and
nature whatsoever, extraordinary as well as ordinary, attributable to, levied
against, or with respect of the Land, Building and Common Areas, under or by
virtue of all present or future laws, ordinances, requirements, orders,
directives, rules or regulations of the Federal, state, county, town and city
governments and of all other governmental authorities whatsoever, together with
all interest and penalties thereon ("Taxes") and (b) shall maintain and pay for
liability, property and other insurance required or permitted to be provided by
Landlord under ARTICLE 11 below ("Insurance Premiums"). Tenant shall pay
Landlord for Tenant's Pro Rata Share of such Taxes and Insurance Premiums as
part of "Operating Expenses" (defined below). Landlord, in its sole discretion,
may contest Taxes or any portion thereof by legal proceedings as permitted by
law. Landlord's efforts to contest such taxes shall include such appellate
proceedings as Landlord deems prudent and reasonable under the circumstances
then obtaining. Landlord shall be reimbursed for the costs and expenses of any
such contest as part of Operating Expenses.
4.3 Tenant shall pay to Landlord within thirty (30) days after receipt
of Landlord's invoice therefor, as additional rent for the Calendar Year in
question, an amount equal to Tenant's Pro Rata Share of Operating Expenses.
Tenant's Pro Rata Share of Operating Expenses shall be estimated by Landlord
prior to the beginning of each calendar year and such estimated amounts shall be
paid by Tenant in equal monthly installments with each such installment being
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due and payable on the first day of each calendar month. Within sixty (60) days
after the end of each calendar year, Landlord shall deliver to Tenant a
statement of Landlord's actual Operating Expenses for such calendar year, and
the monthly installments paid or payable by Tenant therefor shall be adjusted
between Landlord and Tenant thereafter. Tenant shall pay to Landlord or Landlord
shall credit Tenant's account or provide Tenant with a refund if the Term has
expired, as the case may be, within thirty (30) days of Tenant's receipt of such
statement, such amounts as may be necessary to effect the aforesaid adjustment
between estimated and actual amounts for such calendar year.
4.4 For the purposes of Section 4.3 "Operating Expenses" shall mean the
costs and expenses paid or incurred by Landlord with respect to, in Landlord's
sole discretion, the use, operation, repair and maintenance of the Common Areas
(including the Land), the Building and the other improvements located on the
Land; such costs and expenses shall include, without limitation, Taxes,
Insurance Premiums, the costs of such items as: snow removal; parking lot
striping, sweeping, lighting and repair and maintenance of the parking lot and
driveways; repair and maintenance of the roof and structural components,
landscaping; police, base level security and fire protection services, if
provided; costs associated with legal compliance; management fees at prevailing
market rates for similar property in the Hampton, Virginia area; fire protection
and fire hydrant charges; water and sewer charges and other utility charges
including electrical, gas (other than utility charges, if any, for services
directly metered or submetered or specifically charged to tenants) and the
maintenance, repair and modification of all utility systems and any charges
associated with changing the provider of any utility; maintenance and repair of
underground storm, water and sanitary sewer lines; licenses and permit fees;
exterior maintenance and repair of the Building; the establishment of adequate
reserves for replacement; any amounts which Landlord must pay pursuant to any
Declarations, Restrictions, or similar property encumbrances currently affecting
the Land and all other costs and expenses paid or incurred by Landlord with
respect to use, operation, repair and maintenance of the Common Areas (including
the Land) the Building and the other improvements on the Land. Included in
Operating Expenses shall be a proportionate share of various costs and expenses
paid or incurred by Landlord which costs and expenses are to be allocated
between the Building and the separate building (the "Office Building") located
on the Land in such proportion as determined by Landlord in its reasonable
discretion to properly reflect such allocation.
Notwithstanding anything to the contrary herein, Operating Expenses shall
not include the following:
(a) Items which under generally accepted accounting principles
constitute capital expenditures (which shall include roof replacement but
not ordinary roof repairs), other than all costs and expenses associated
with the installation of equipment, machinery or other improvements for the
purpose of reducing energy consumption or other operating expenses,
provided that if Landlord shall purchase any such equipment, machinery or
other improvements, then the costs for the same shall be included in
Operating Expenses in the year such cost is incurred and in subsequent
years amortized on a straight-line basis over a period which is the lesser
of ten (10) years or the useful life of such equipment, machinery or other
improvement;
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(b) leasing commissions, tenant space preparation and relocation
costs, attorneys' fees, lease takeover costs and other costs and expenses
incurred in connection with negotiations or disputes with present or
prospective tenants or occupants together with advertising and promotional
costs relating to leasing;
(c) costs for utilities, services, work and other benefits which are
(i) directly charged to and reimbursed by Tenant or other tenants or
occupants, or (ii) provided selectively to other tenants or occupants for
their exclusive benefit and not offered to Tenant, or services or work
furnished to tenants (including Tenant) whether at such tenant's expense or
Landlord's expense, to the extent that such work or service is in excess of
any work or service that Landlord is obligated to furnish to Tenant at
Landlord's expense, or (iii) provided to other portions of the Building
leasable to tenants whether or not actually leased or occupied;
(d) amounts otherwise includable in Operating Expenses to the extent
the same are reimbursed to Landlord directly by Tenant, other tenants or
any other party;
(e) Landlord's off-site general and administrative overhead expenses,
except to the extent included in management fees or other items includable
in Operating Expenses hereunder;
(f) costs incurred due to Landlord's or another tenant's dispute or
violations of the terms of other leases in the Property;
(g) net income, estate, gift, franchise, profit, transfer, transfer
gains, succession, inheritance or "value added" or similar taxes so long as
the same are not in lieu of other taxes and assessments payable as
Operating Expenses hereunder;
(h) cost of any curative action required, or repair, replacement, or
alteration made by Landlord to remedy damage caused by or resulting from
the negligence of Landlord, its agents, contractors, servants or employees;
(i) interest, principal, points and fees on any mortgage or other
debt instrument encumbering all or any portion of the Property;
(j) superior lease rental or other lease payments related thereto;
(k) salaries, wages, benefits and related costs for employees above
the level of Building Manager not directly involved in the operation or
management of the Building;
(j) in the event any service (including management fees) or materials
are provided by any party affiliated with Landlord, the portion of the cost
thereof which is in excess of what the commercially competitive cost would
have been absent such relationship;
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(m) costs incurred with respect to a sale of any portion of the
Property or any interest therein;
(n) to the extent any costs includable in Operating Expenses are
incurred with respect to both the Building and other properties (including,
without limitation, salaries, fringe benefits and other compensation of
Landlord's personnel who provide services to both the Building and other
properties), there shall be excluded from Operating Expense a fair and
reasonable percentage thereof which is properly allocable to such other
properties as determined by Landlord in its reasonable discretion;
(o) the cost of any judgment, settlement, or arbitration award
resulting from any liability of Landlord arising from Landlord's
negligence, willful misconduct or contractual default of Landlord;
(p) any fine, penalty or other late charges or interest thereon
payable by Landlord.
4.5 For a period of one year after delivery to Tenant of Landlord's
statement of Operating Expenses pursuant to Section 4.3 above Landlord shall
keep and make available for inspection to Tenant, records, in reasonable detail,
of all Operating Expenses for the period covered by each such statement, and
shall permit Tenant and Tenant's representatives to examine such statements at
Landlord's office at any time during Landlord's normal business hours. If
Tenant's examination of such statements reveals any overcharge, and provided
Landlord does not dispute the same Landlord shall reimburse Tenant for the same,
within thirty (30) days after Tenant provides Landlord with the results of such
examination.
ARTICLE 5
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COMMON AREAS
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Tenant shall use the Common Areas solely for their intended uses on a
non-exclusive basis in concert with Landlord, the other tenants or occupants of
the Building, and their employees, agents, servants, customers and other
invitees in strict accordance with the rules and regulations, if any,
promulgated by Landlord with respect thereto. Landlord agrees that any
promulgated rules and regulations shall be applied to tenants in the Building in
a non-discriminatory manner. The term "Common Areas" shall mean all areas within
the Land and Building provided by Landlord for the common use and benefit of the
tenants or occupants of the Building, and their employees, agents, servants,
customers and other invitees, including by way of example and not by way of
limitation, driveways, parking areas, landscaped areas, truck service ways or
tunnels (if any), pedestrian ways (enclosed or open), courts, stairs, ramps and
sidewalks, common restrooms and common loading areas.
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ARTICLE 6
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USE
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6.1 Tenant shall use the Leased Premises as a light manufacturing and
warehouse facility and for no other purpose. Tenant shall not use the Leased
Premises so as to constitute a nuisance or cause the cancellation (or increase
the Insurance Premiums) of the insurance covering the Land, Common Areas, the
Building or Leased Premises. The use and occupancy of the Leased Premises shall
be subject to and consistent with the terms and provisions of that certain
PROTECTIVE PROVISIONS XXX XXXXXXXXX, XXXXXXX XXXXX XXXXXX, XXXXXXX, XXXXXXXX
dated November 21, 1986 (the "Protective Covenants") and entered into and
recorded by the Industrial Development Authority of the City of Hampton,
Virginia, a copy of which has been delivered to Tenant prior to the execution of
this Lease; to Landlord's actual knowledge, the use and occupancy of the
Property is currently in compliance with the Protective Covenants.
6.2 Tenant shall comply in all respects with all applicable
governmental laws, ordinances, codes, rules and regulations controlling or
regulating the use of the Land, Common Areas, Building and Leased Premises.
6.3 Tenant will not: (a) place or maintain any merchandise, trash,
refuse or other articles in any vestibule or entry of the Premises, on the
footwalks or corridors adjacent thereto or elsewhere on the exterior of the
Premises; (b) throw, discard or deposit any paper, glass or extraneous matter of
any kind, except in designated receptacles, or create litter or hazards of any
kind; (c) use any sound making device of any kind or create or produce in any
manner noise or sound that is prohibited or objected to by Landlord in the
exercise of its reasonable discretion; (d) permit accumulations of or burn
garbage, trash, rubbish or other refuse within or without the Premises; (e)
cause or permit odors to emanate or to be dispelled from the Premises; (f)
permit the parking of delivery vehicles so as to interfere with the use of any
driveway, footwalk, parking area or other Common Areas; (g) receive or ship
articles of any kind outside the designated loading areas for the Premises; (h)
parade, rally, patrol, picket, demonstrate or engage in any conduct that might
tend to interfere with or impede the use of the Common Areas; (i) use or permit
the use of the Premises, the Common Areas or any part thereof in a manner which
will violate the laws or regulations of any applicable instrumentality of
government, nor permit any part of the Premises to be used for any disreputable
or immoral purpose (j) conduct or permit to be conducted any auction, fire,
going out of business, bankruptcy, liquidation or other similar type sale in or
connected with the Premises; and (k) place a load upon any floor which exceeds
the floor load which the floor was designed to carry or overload any system or
equipment serving the Premises.
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ARTICLE 7
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REPAIRS AND MAINTENANCE: BUILDING SERVICES
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7.1 Landlord as part of Operating Expenses and except with respect to
Tenant's obligations hereunder shall perform, in Landlord's reasonable
discretion, maintenance, repairs and replacements to the Building and Common
Areas in a good and workmanlike manner, including exterior maintenance, roof
repairs and replacements, parking areas and building systems not located in or
exclusively serving the Leased Premises. In the event of a failure or breakdown
during normal working hours of a building system which failure or breakdown
substantially impairs the ability of Tenant to maintain production, Landlord
will endeavor to respond to Tenant in connection with such failure or breakdown
within two (2) hours of Landlord having knowledge thereof.
7.2 Landlord as part of Operating Expenses shall keep and maintain the
Building and the Common Areas in a clean, sightly and orderly condition,
reasonably free of accumulation of litter, dirt, rubbish, snow and ice.
7.3 Tenant shall, at Tenant's expense, make all repairs and
replacements in and to the Leased Premises including all improvements,
equipment, systems and installations which are located within the Premises or
exclusively serve the Leased Premises and shall maintain the Leased Premises, so
as to tender the Leased Premises to Landlord at Lease termination in
substantially the same condition as received, except for any alterations or
improvements permitted in accordance with Section 8 below, and except for
ordinary or normal wear and tear. Tenant shall at its expense: (a) maintain the
Premises in a clean, orderly and sanitary condition in good repair and
reasonably free of insects, rodents, vermin and other pests; (b) keep any
garbage, trash, rubbish or other refuse in rat-proof containers within the
interior of the Premises until removed; (c) keep all mechanical apparatus free
of vibration and noise which may be transmitted beyond the Premises; (d) comply
with all laws, ordinances, rules and reasonable recommendations of Landlord's
fire insurance rating organization now or hereafter in effect; (e) comply with
and observe all rules and regulations established by Landlord from time to time
which apply generally to tenants of the Building; (f) use and occupy the
Premises in a careful, safe and proper manner; (g) install and maintain all fire
extinguishing apparatus required by local regulations or the requirements of
Landlord's insurance underwriters.
7.4 Landlord shall furnish to Tenant, during Tenant's working hours,
the following utilities and other building services for Tenant's use and
occupancy of the Leased Premises:
(a) HEATING, VENTILATING AND AIR CONDITIONING. During Tenant's working
hours.
(b) WATER. Hot and cold water for ordinary office and lavatory
purposes.
(c) ELECTRICITY. Unless and until, if ever, electric current is
metered separately to the Leased Premises, Tenant shall obtain the electric
current used in the
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Leased Premises directly from Landlord and Tenant shall pay Landlord
therefor in accordance with ARTICLE 10 below.
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(d) CLEANING AND MAINTENANCE. Cleaning and maintenance of the Common
Areas as reasonably determined by Landlord, including the removal of
rubbish, trash and snow.
(e) REPAIR AND MAINTENANCE. Repair and maintenance as required under
this Lease.
(f) ADDITIONAL SERVICES. If Tenant requests any other utilities or
Building services in addition to those identified above, then Landlord,
may, but shall not be required to do so, furnish Tenant with such
reasonable additional utilities or Building services, and all costs and
expenses associated with respect thereto shall be borne by Tenant. Tenant
shall be separately billed therefor and shall reimburse Landlord within
thirty (30) days after receipt of an invoice for the same.
ARTICLE 8
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IMPROVEMENTS AND ALTERATIONS
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8.1 (a) Tenant shall not undertake, directly or indirectly, any
construction work, improvements or alterations, nor shall Tenant install
any equipment other than trade fixtures and personal property (all such
construction work, improvements, alterations and installations being
hereinafter collectively referred to as the "Work") without first obtaining
Landlord's written approval of the plans and specifications therefor.
Tenant shall prepare plans and specifications showing in detail all Work
Tenant is required or desires to undertake, directly or indirectly, in the
Premises and shall submit the same to Landlord for Landlord's approval. The
plans and specifications covering the Work shall be prepared at Tenant's
expense by an engineer or architect licensed to practice in the State of
Virginia. Tenant shall revise said plans and specifications in accordance
with Landlord's reasonable comments. When Landlord shall have approved said
plans and specifications, Tenant shall promptly submit the same to the City
of Hampton to obtain a building permit. Landlord and Tenant shall cooperate
with the officials of the City of Hampton and Tenant shall promptly and
diligently make such changes to the plans and specifications as may be
required to conform the same to the laws and ordinances applicable to
Tenant's Work. The approval by Landlord of Tenant's plans and
specifications shall not constitute the assumption of any liability on the
part of Landlord for their accuracy or their conformity with building code
requirements, and Tenant shall be solely responsible for such plans and
specifications. The approval by Landlord of Tenant's plans and
specifications shall not constitute a waiver by Landlord of the right
thereafter to require Tenant to amend the same to provide for omissions or
deficiencies therein later discovered by Landlord. If Tenant shall fail to
timely complete any portion of its Work on the Premises as required by this
Lease then Landlord may, in addition to
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any other rights and remedies it may have, complete such Work on behalf of
and for the account of Tenant upon seven (7) days prior written notice to
Tenant of its intention to do so. The costs and expenses incurred by
Landlord in completing the Work, together with interest at the Interest
Rate, shall be deemed to be additional rent, due and payable on demand;
(b) Tenant, without Landlord's approval, may make interior
non-structural alterations and improvements, provided that such alterations
and improvements do not damage or impair the structural integrity of the
Building or the systems servicing the Building including HVAC, electrical
and plumbing. Prior to making any nonstructural alteration or improvement
of a material nature (i.e. an improvement costing more than Thirty Thousand
Dollars ($30,000), Tenant shall notify Landlord of the same and Landlord
shall have the right to object in writing, within twenty (20) business days
thereof, to any such alteration or improvement and, if Landlord so objects
within such thirty (30) business day period and Tenant nonetheless installs
such alteration or improvement then, in addition to the other rights and
remedies of Landlord, upon the expiration or earlier termination of this
Lease, Landlord may require Tenant to remove such alteration or improvement
and restore, at Tenant's sole cost and expense, the Premises to their
condition as of the commencement of this Lease, ordinary wear and tear
excepted;
(c) None of the alterations or improvements which Tenant makes shall
change the character or use of the Leased Premises from that of office and
warehouse. If any change results in an increase in the office space by more
than Five Percent (5%) of the square footage of office space as of the
Commencement Date, the Base Rent for such amount in excess of five percent
(5%) shall be computed at the office rent rate as set forth in Section 3.1
above; and
(d) All items installed by Tenant shall be new and of building
standard quality. All Work, whether in the nature of erection,
construction, alteration or repair, permitted or required to be made by
Tenant, shall be performed and completed in a first class and workmanlike
manner, promptly, efficiently and competently by duly qualified and, if
necessary, licensed persons or entities without interference with or
disruption of the operations of other tenants or users of the Building, and
in accordance with all applicable laws, ordinances, rules, rulings,
regulations and requirements of any governmental authority having
jurisdiction over the Premises.
ARTICLE 9
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MECHANIC'S LIEN
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No Work which Landlord permits or requires Tenant to perform pursuant to
this Lease, whether in the nature of erection, construction, alteration or
repair, shall be deemed to be for the immediate use and benefit of Landlord so
that no mechanic's or other lien shall be allowed
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against the estate of Landlord by reason of any consent given by Landlord to
Tenant to improve the Premises. Tenant shall pay promptly all persons furnishing
labor or materials with respect to any work performed by or for Tenant in, on or
about the Premises in accordance with the terms agreed upon by Tenant and such
contractor. In the event any mechanic's or other lien shall at any time be filed
against the Premises, Land, Building or Common Areas or any interest therein by
reason of any labor, services or materials performed or furnished, or alleged to
be performed or furnished, to or for the benefit of Tenant or to anyone holding
the Premises through or under Tenant, Tenant shall cause the same to be
discharged of record or bonded to the satisfaction of Landlord within thirty
(30) days after notice of the filing thereof. If Tenant shall fail to cause such
lien to be so discharged or bonded within such thirty (30) day period, then, in
addition to any other right or remedy of Landlord, Landlord may, but shall not
be obligated to discharge the same by paying the amount claimed to be due or by
deposit or bonding proceedings, and the amount so paid by Landlord, including
reasonable attorney's fees incurred by Landlord in procuring the discharge of
such lien, together with interest thereon at the Interest Rate, shall be due and
payable by Tenant to Landlord upon demand as additional rent. Tenant shall
indemnify, defend and save Landlord harmless from and against any and all claims
(including but not limited to claims of unjust enrichment and claims based on
quasi-contract), actions, demands, damages, liability and expense, including
attorney's and other professional fees, arising from or related to, wholly or in
part, directly or indirectly, any labor, services or materials performed or
furnished or alleged to be performed or furnished to or for the benefit of
Tenant or to anyone holding the Premises through or under Tenant (except for
work described in and to performed by Landlord pursuant to Sections 1.2 and 1.3
above), regardless of whether such work or materials improved or increased the
value of the Premises.
ARTICLE 10
----------
SERVICES AND UTILITIES
----------------------
10.1 Except where required of Tenant hereunder, Landlord shall furnish,
supply and maintain subject to reimbursement as a part of Operating Expenses
equipment, lines, conduits and appurtenances necessary for the furnishing of
water, electricity, gas, telephone and storm and sanitary sewer service
connections to the Leased Premises.
10.2 As of the Commencement Date none of the utilities, other than
telephone, are separately metered to the Leased Premises. All charges for water,
electricity, gas, steam (if any) and storm and sanitary sewers used or consumed
by Tenant in the Leased Premises shall be determined, adjusted from time to time
and allocated in accordance with Exhibit "C" attached hereto and such charges
shall be payable by Tenant within ten (10) days of billing thereof by Landlord.
The interruption, curtailment or reduction of any utility or service maintained
in the Building shall not constitute constructive or partial eviction.
10.3 Landlord shall be entitled to charge a reasonable administrative
fee for meter readings and similar or related services in connection with
supplying utilities to the Premises and the Building not to exceed five percent
(5%) of the utility amounts so charged. Upon request,
12
Landlord shall provide Tenant meter readings for all invoices rendered for
electric current consumption, together with a copy of the rate schedule or
agreement pursuant to which Tenant is being charged.
ARTICLE 11
----------
INSURANCE: INDEMNITY: SUBROGATION
---------------------------------
11.1 Tenant shall, at Tenant's sole cost and expense, obtain and keep
in force during the term of this Lease a policy of commercial general liability
insurance insuring Tenant against liability for injury to persons and damage to
property arising out of Tenant's use, occupancy or maintenance of the Leased
Premises and surrounding common areas and land, with combined single limit
coverage of not less than One Million Dollars ($1,000,000) per occurrence,
naming Landlord and Landlord's Lender, if requested, as additional insureds.
11.2 Landlord shall obtain and keep in force during the term of this
Lease as part of Operating Expenses an occurrence-based policy of commercial
general liability insurance, insuring Landlord and Tenant, as an additional
insured, against liability for injury to persons or damage to property arising
out of the ownership, use, occupancy or maintenance of the Building and Common
Areas, with combined single limit coverage of not less than One Million Dollars
($1,000,000) per occurrence.
11.3 Landlord shall obtain and keep in force during the term of this
Lease as part of Operating Expenses a so-called "special form" policy or
policies of property insurance, covering loss or damage to the Building, the
Leased Premises (including Tenant's leasehold improvements) and Common Areas, in
the amount of the full replacement cost thereof, with boiler and machinery and
ordinance or law change coverage. To the extent that the waiver set forth in
Section 11.6 is permitted in the state in which the Leased Premises are located,
the foregoing policy or policies of insurance shall contain a clause to the
effect that the waiver in Section 11.6 shall not affect the right of the insured
party to recover under such policy or policies.
11.4 Any insurance required or permitted to be carried by a party
pursuant to this Lease may be in the form of "blanket" and/or "umbrella"
insurance coverage. Either party hereto shall, upon request from the other
party, provide a certificate of insurance and appropriate insurance policy
endorsement, if applicable, evidencing the existence and amounts of such
insurance as required according to Sections 11.1, 11.2 and 11.3 of this Lease.
11.5 Subject to Landlord's obligation to carry the insurance required
pursuant to Section 11.2 of this Lease, each party shall indemnify, protect,
defend and hold the other harmless from and against any damage suffered or
incurred on account of personal or bodily injury to any person or persons in the
Leased Premises, Building or Common Areas caused by the negligent act or
omission, or willful misconduct of the other.
13
11.6 Landlord and Tenant hereby waive all rights of recovery and causes
of action which either has or may have or which may arise hereafter against the
other for any damage to the Leased Premises, the Building, the Common Areas or
the property or business of either of them or of anyone claiming through either
of them, by way of subrogation or otherwise, caused by any of the perils
coverable (whether or not covered) by a special form policy of property
insurance or contents insurance (irrespective of whether or not such insurance
coverage is in fact carried or obtained); or by any other insurance for damage
to property carried by the party whose property was damaged; provided, however,
that the foregoing waiver shall apply only if and to the extent that a waiver of
subrogation for property damage is not prohibited in the state in which the
Leased Premises are located.
11.7 Subject to Section 11.6 above, Tenant shall indemnify, defend and
save Landlord harmless from and against any and all claims, actions, demands,
damages, liability and expense, including attorney's and other professional
fees, in connection with loss of life, personal injury and/or damage to property
arising from or related to, wholly or in part, directly or indirectly, the
construction by Tenant, its contractors, agents or representatives, occupancy or
use by Tenant of the Premises or any part thereof or any other part of the
Building and Common Areas, or arising from or related to, wholly or in part,
directly or indirectly, from any act or omission of Tenant, its officers,
agents, contractors, invitees or employees unless caused by Landlord's
negligence or willful misconduct. Unless caused by Landlord's negligence or
willful misconduct, Landlord and Landlord's agents and employees shall not be
responsible or liable to Tenant, Tenant's agents or employees or to anyone
claiming by, through or under Tenant and Tenant hereby waives all claims for
damage to person or property, loss of business and any and all other losses or
damages sustained by Tenant or any person claiming by, through or under Tenant
resulting, directly or indirectly, from one or more of the following, whether or
not Landlord may have any obligation under this Lease to repair or maintain the
same: (a) any equipment or appurtenances becoming out of repair; (b) injury
caused by wind, snow, ice, rain or any of the other elements; (c) any defect in
or failure of plumbing, heating, cooling or air conditioning equipment,
sprinkler systems, electric wiring or cable, gas, water and steam pipes, stairs,
rails or walks, broken glass, the backing up of any sewer pipe or downspout; (d)
the bursting, leaking or running of any tank, tub, washstand, water closet,
waste pipe, drain or any other pipe or tank; (e) the escape of steam or hot
water; (f) water, snow or ice being upon or coming through the roof, skylight,
trap door, stairs, walks or any other place upon or near the Premises; (g) the
falling of any fixture, plaster or stucco; and (h) any act, omission or
negligence of trespassers, thieves, cotenants or other persons. To the maximum
extent permitted by law, Tenant shall use and occupy the Premises, and use such
other portions of the Land, Building and Common Areas as Tenant is herein given
the right to use, at Tenant's own risk.
ARTICLE 12
----------
DESTRUCTION BY FIRE OR OTHER CASUALTY
-------------------------------------
12.1 (a) If the Building or the Premises is damaged or destroyed by
fire, the elements, or other peril, whether insured or uninsured (any of
such causes being referred
14
to herein as a "Casualty"), then Landlord and Tenant each shall have the
right, but not the obligation, by notifying the other in writing within
twenty (20) days after the date of such damage or destruction, to terminate
this Lease if (i) more than fifty percent (50%) of the floor area of the
Building is damaged or destroyed or (ii) such damage or destruction occurs
during the last year of the Term of this Lease or the last year of any
Extension Term and the cost to repair or restore the Leased Premises
exceeds $250,000; and
(b) If the Building or the Premises is damages or destroyed by
Casualty and the insurance proceeds available to Landlord on account of
such damage or destruction are not sufficient to restore the Premises and
the Building to substantially the same condition as prior to such damage or
destruction then Landlord shall have the right, but not the obligation, by
notifying Tenant in writing within twenty (20) days after the date of such
damage or destruction, to terminate this Lease.
If such notice is given, this Lease shall terminate as of the date of such
notice, Rental (other than any additional rent due Landlord resulting from
Tenant's failure to perform any of its obligations under this Lease) shall be
adjusted as of the date of such damage and destruction, and the parties shall be
relieved of all obligations and liabilities thereafter accruing.
12.2 If the Premises shall be damaged by Casualty but Landlord is not
entitled to or does not elect to terminate this Lease, then Landlord shall
promptly repair or replace the damaged portions of the Premises (excluding
Tenant's personal property or any leasehold improvements, additions or changes
to the Premises made or installed by or for Tenant other than those improvements
installed for Tenant by Landlord pursuant to Sections 1.2 and 1.3 above). If the
Premises shall not be rendered wholly or partially untenantable by such
Casualty, there shall be no abatement of rent. If, as the result of Casualty,
the Premises shall be rendered wholly or partially untenantable, in the
reasonable judgment of Landlord, then all rent (other than any additional rent
due Landlord resulting from Tenant's failure to perform any of its obligations
under this Lease) shall be abated proportionately as to the portion of the
Premises rendered untenantable (as reasonably determined by Landlord) during the
period of such untenantability. Landlord shall not be liable for interruption to
Tenant's business or for damage to or replacement or repair of Tenant's personal
property or any leasehold improvements installed in the Premises by Tenant.
ARTICLE 13
----------
CONDEMNATION
------------
13.1 (a) If the entire Premises shall be taken in appropriation
proceedings or under the power of eminent domain or shall be voluntarily
conveyed under threat of appropriation (hereinafter referred to as a
"Taking" and, in the past tense, as "Taken"), then this Lease shall
terminate on the date Tenant is required to yield possession of the
Premises to the condemning authority.
15
(b) Landlord and Tenant also shall have the right, but not the
obligation, by notifying the other party in writing within ninety (90) days
after a Taking to terminate this Lease effective as of the date possession
is required to be yielded to the condemning authority, in any of the
following circumstances:
(i) More than twenty five percent (25%) of the floor area of the
Building is Taken;
(ii) The number of parking spaces Taken reduces the number of
parking spaces below the number required by law and Landlord does not
deem it feasible to replace such parking spaces with other parking
spaces on the portion of the Land not Taken;
(iii) The net proceeds available to Landlord on account of such
Taking are not sufficient to repair and restore the Building, Common
Areas and the Premises and Landlord fails or refuses to undertake such
repair or restoration.
(c) If a portion only of the Premises shall be Taken and this Lease
is not terminated as provided for above, then Landlord shall repair and
restore, to a complete architectural unit, the portion of the Premises not
affected by the Taking.
(d) If a portion only of the Premises is Taken and this Lease is not
terminated, then this Lease shall terminate only as to the part of the
Premises so taken on the date Tenant is required to yield possession
thereof to the condemning authority and all Rental (other than any
additional rent due Landlord resulting from Tenant's failure to perform any
of its obligations under this Lease) shall be reduced proportionately as to
the portion of the Premises Taken. If this Lease is terminated, then Rental
(other than any Additional rental due Landlord resulting from Tenant's
failure to perform any of its obligations under this Lease) shall be
adjusted as of the date of such termination.
13.2 All compensation awarded for any Taking shall belong to and be
the sole property of Landlord; Tenant hereby assigning to Landlord all
rights with respect thereto; provided, however, nothing contained herein
shall prevent Tenant from applying for reimbursement from the condemning
authority (if permitted by law) for moving expenses, or the expenses of
removal of Tenant's trade fixtures, but if and only if the amount of such
award or other compensation is separately stated by the condemning
authority and does not reduce the amount otherwise recoverable from the
condemning authority by Landlord. Tenant, upon request of Landlord, shall
execute any and all releases, transfers or other documents as may be
required by Landlord or such condemning authority to effect and give
further evidence and assurances of the foregoing.
13.3 Any Taking or termination of this Lease, in whole or in part
pursuant to this Article, shall not operate as or be deemed an eviction of
Tenant or a breach of Landlord's covenant for quiet enjoyment.
16
ARTICLE 14
----------
DEFAULT
-------
14.1 If one or more of the following events shall occur:
(a) Tenant shall fail to pay any rent or any other sums due hereunder
within ten (10) days after written notice from Landlord provided such
notice shall not be required to be given more than two (2) times in any
twelve (12) month period.
(b) Tenant shall make an assignment for the benefit of creditors;
(c) Tenant shall file a petition or answer seeking reorganization or
arrangement under any of the laws of the United States relating to
bankruptcy or any other applicable statute;
(d) An attachment or execution shall be levied upon Tenant's property
or interest under this Lease, and shall not be satisfied or released within
thirty (30) days thereafter;
(e) An involuntary petition in bankruptcy shall be filed against
Tenant, or a receiver or trustee for all or any part of the property of
Tenant shall be appointed by any court, and such petition shall not be
withdrawn, dismissed or discharged, or such receiver or trustee removed,
within sixty (60) days from the filing or appointment thereof;
(f) The use of the Premises for any purpose other than the permitted
use hereunder;
(g) Tenant shall default in the performance or observance of any other
covenant, agreement, obligation, provision or condition to be kept or
performed by Tenant under the provisions of this Lease and such default
shall continue for thirty (30) days after Tenant's receipt of notice
thereof from Landlord; provided, however, that if the nature of such
default is such that more than thirty (30) days are reasonably required for
its cure, then Tenant shall not be deemed to be in default if Tenant
commences such cure within said thirty (30) day period and thereafter
diligently and continuously, in good faith, proceeds with such cure to
completion and the same is completed not later than ninety (90) days after
the date of default;
then Landlord shall have all of the following remedies:
(1) Landlord may proceed as it deems advisable to enforce the
provisions of this Lease at law or in equity;
(2) Landlord at any time thereafter may, at Landlord's option,
terminate this Lease upon five (5) days written notice to Tenant.
Tenant shall then quit and surrender the Leased Premises to Landlord,
but Tenant shall remain liable under this Lease;
17
(3) Pursuant to court order or other legal proceedings, Landlord
may reenter the Leased Premises and may repossess the Leased Premises.
Upon such reentry or repossession, Landlord may dispossess Tenant and
may remove Tenant from the Leased Premises without further notice to
Tenant;
(4) Landlord may cure the breach or default at Tenant's expense,
and all reasonable costs incurred by Landlord in curing the same, plus
interest on such costs at the Interest Rate, as hereinafter defined,
from the date of such expenditure(s) until reimbursed to Landlord,
shall be additional rent payable to Landlord on demand. In such
circumstances Landlord shall give written notice to Tenant as soon as
reasonably practicable subsequent to the exercise of self-help
remedies. Nothing in this Section 14.1 shall preclude Landlord's
exercise of self-help rights as otherwise expressly set forth in this
Lease.
(5) Landlord may proceed to collect all rents and other charges
owed by sublessees of Tenant and other occupants of the Leased
Premises directly from such parties, with such rents and other charges
collected by Landlord to be applied first towards satisfaction of
Tenant's obligations under this Lease with the balance (if any) to be
applied towards satisfaction of Tenant's obligations under its
subleases and other occupancy agreements affecting the Leased
Premises.
(6) In case of any reentry, termination of this Lease or
dispossession of Tenant's possession by summary proceedings or
otherwise,
(a) Tenant shall remain liable for (A) all Rent and damages
that may be due or sustained by Landlord up to the time this
Lease terminates or Landlord takes possession of the Leased
Premises, and the performance of all other obligations of Tenant
accruing under this Lease through such date (collectively,
"Accrued Damages"); (B) all reasonable costs, fees and expenses
(including reasonable attorney's fees and expenses and brokerage
commission and fees) incurred by Landlord in pursuit of its
remedies under this Lease and in leasing the Leased Premises to
others from time to time (the "Collection Damages") (all such
Accrued Damages and Collection Damages are referred to
collectively as the "Default Damages"); and (C) Future Damages
(as defined below).
At the sole election of Landlord, Future Damages shall be equal
to one of the following: (x) the amount (the "Deficiency") by
which (A) the Rent reserved under this Lease until the stated
expiration date of the then current Term exceeds (B) the amount
of rent, if any, that Landlord shall receive during the same
period from others to whom the Leased Premises may be rented,
from which Landlord may deduct all Default Damages owing to
Landlord; or (y) an amount equal to the present worth (as of the
18
date of such termination) of Rent which, but for the termination
of this Lease, would have become due during the remainder of the
Term, less the fair rental value of the Leased Premises for the
remainder of the Term, as determined by an independent real
estate appraiser selected by the Landlord and reasonably
acceptable to Tenant, in which case such Future Damages shall be
payable to Landlord in one lump sum on demand and shall bear
interest at the Interest Rate, as hereinafter defined, until
paid. For the purposes of this subparagraph, "present worth"
shall be computed by discounting such amount to present worth at
a discount rate equal to one percentage point above the discount
rate then in effect at the Federal Reserve Bank nearest to the
location of the Leased Premises.
All Default Damages and Future Damages shall bear interest at the
Interest Rate, as hereinafter defined, from the date when the
same accrue until paid. Tenant shall pay all Default Damages and
all Future Damages to Landlord immediately upon receipt of a
billing therefor; however, the amount of Rent which constitutes
Future Damages shall continue to be due and payable in full,
without any notice or billing required, in advance on the first
day of each month, and any proceeds of reletting that reduce
Tenant's Deficiency shall be appropriately credited to Tenant.
"Interest Rate" shall mean the "Prime Rate" (or generally
accepted successor index to Prime Rate) plus two percent (2.0%).
"Prime Rate" shall be the rate reported as such in the "Money
Rates" column of the Wall Street Journal or successor
---------------------
publication. Adjustments to the Interest Rate shall be effective
as of the date that the Prime Rate changes.
(b) Landlord may re-let all or part of the Leased Premises,
in one or more leases, either in Landlord's own right or as agent
for Tenant, accepting any rents then obtainable, for a term or
terms that may be greater or less than the balance of the Term of
this Lease, and Landlord may grant reasonable concessions or free
rent for a reasonable period of time without affecting Tenant's
liability for Rent under this Lease if such concessions and/or
free rent are reasonably required to induce tenants to enter into
leases.
(c) Landlord may make such alterations, repairs and
improvements to the Leased Premises that it considers advisable
and necessary in its reasonable business discretion, for the
purpose of reletting the Leased Premises, and the costs of such
work shall be considered Default Damages. Such alterations,
repairs and improvements shall not operate or be construed to
release Tenant from any liability under this Section.
19
(7) Any action taken by Landlord under this Section shall
not waive any right that Landlord might have against Tenant for
Rent reserved in this Lease or otherwise, and Tenant shall remain
responsible to Landlord for any cost, loss and damage suffered by
Landlord by reason of Tenant's default or breach.
14.2 If Tenant fails to pay, when due, for any repairs or improvements
to the Leased Premises made by Tenant (to the extent that such repairs were the
responsibility of Tenant hereunder), or if Tenant fails to pay any of the
charges that Tenant is obligated to pay by the terms of this Lease, or if Tenant
fails to make repairs that are Tenant's responsibility as herein provided, then
in addition to all other remedies provided by this Lease, Landlord may, but is
not obligated to, upon Tenant's failure to cure such default within thirty (30)
days after Tenant's receipt of notice from Landlord that specifies the
particular default complained of, pay any such charges and make such repairs,
and the amount or amounts so paid or expended therefor shall become due and
payable as additional rent immediately upon demand by Landlord.
14.3 The various rights and remedies reserved by Landlord by this
Lease, or allowed by law, shall be cumulative, and no delay or omission to
exercise any rights by Landlord shall be construed as a waiver of any default or
acquiescence therein. No waiver by Landlord or any breach of any provision of
this Lease shall be deemed for any purpose to be a waiver of any breach of any
other provision hereof, nor of any continuing or subsequent breach of the same
provision.
ARTICLE 15
----------
ASSIGNMENT AND SUBLETTING
-------------------------
15.1 Tenant shall not assign this Lease in whole or in part, nor sublet
the Leased Premises in whole or in part, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed. Except as permitted under Section 15.2 below, the within prohibition
against transfer without the Landlord's prior written consent includes any
subletting or assignment which would otherwise occur by operation of law,
merger, consolidation, reorganization, transfer or other change of Tenant's
corporate or proprietary structure, or an assignment, subletting to or by a
receiver or trustee in any federal or state bankruptcy, insolvency, or other
proceedings. The consent by Landlord to any assignment, subletting or other
transfer above described shall not constitute a waiver of the requirement for
such consent to any subsequent assignment, subletting or other transfer. Any
assignment, subletting or other transfer, even with the consent of Landlord,
shall not relieve Tenant from primary liability for the payment of rent or from
the primary obligation to keep and be bound by the terms, conditions and
covenants of this Lease.
15.2 Notwithstanding anything to the contrary herein, Tenant may,
without Landlord's prior written consent, but upon not less than ten (10) days
prior notice to Landlord, assign this Lease to, or sublet all or part of the
Premises to any entity which controls, is controlled by or under a common
control with Tenant, a "successor entity" or an "affiliate". For purposes of
this
20
Section, a "successor entity" shall mean (x) a corporation or other business
entity into which or with which Tenant, its successors or assigns, is merged or
consolidated, in accordance with applicable statutory provisions for the merger
or consolidation of corporations, provided that by operation of law or by
effective provisions contained in instruments of merger or consolidation, the
liabilities of the corporations or other business entities participating in such
merger or consolidation are assumed by the corporation or other business entity
surviving such merger or consolidation or (y) a corporation or other business
entity acquiring all or substantially all of the stock or any other ownership
interest of Tenant, or all or substantially all of the assets of Tenant, its
corporate successors or assigns, including the leasehold estate created by this
Lease, and assuming the obligations of Tenant under this Lease. For purposes of
this Section, an "affiliate" shall mean any entity which is controlled by,
controlling or under common control with the Tenant.
ARTICLE 16
----------
SIGNS
-----
Tenant may, but only with the consent of Landlord, which consent shall not
be unreasonably withheld, delayed or conditioned, attach to the Building or
other suitable places on the Leased Premises signs of reasonable size displaying
Tenant's name and business. Tenant agrees to have said signs comply with all
requirements of appropriate governmental authorities and the Protective
Covenants and to obtain all necessary permits or licenses with respect to said
signs. At the termination of this Lease, Tenant agrees to remove, at Tenant's
sole expense, all signs erected by Tenant and to repair any damage caused by
such removal.
ARTICLE 17
----------
ENVIRONMENTAL MATTERS
---------------------
17.1 Tenant represents, warrants and covenants as follows:
(a) Tenant shall not use, store, handle, manage, discharge, or
otherwise place or dispose of, or cause to be used, stored, handled,
managed, discharged, or otherwise placed or disposed of, on, in, into,
under or at the Premises, the Building or the Land any Hazardous Materials
in violation of any Environmental Law, or in a manner so as to be dangerous
to or adversely impact public health or the environment.
(b) Tenant shall remove, in accordance with applicable Environmental
Laws, any and all Hazardous Materials and unused manufacturing materials
which Tenant has caused or knowingly permitted to be placed, held, located
or disposed of in, on, under or at the Premises, the Building, or the Land
upon expiration or earlier termination of this Lease.
21
(c) Tenant shall keep the Premises, the Building and the Land and
every part thereof free from any lien or encumbrance, or judicial or
administrative order imposed pursuant to any Environmental Law as a result
of Tenant's actions or omissions during the Term.
(d) If Tenant fails to comply with the provisions of Article 17, or if
Tenant causes or contributes to any contamination of any media on, at or
under the Premises, the Building or the Land, including air, surface water,
groundwater, or soil, from Hazardous Materials, Tenant shall remedy such
non-compliance or contamination to the extent caused by or contributed to
by Tenant (including but not limited to the clean-up, removal and disposal
of the Hazardous Material causing the non-compliance or causing or
contributing to the contamination), and repair any damage to the Premises,
the Building or the Land in compliance with all applicable Environmental
Laws and within such period of time as is required by law, or if not
specified by law, as is reasonable under the circumstances. Upon an event
triggering Tenant's obligations under this provision, Tenant shall
immediately provide written notice to Landlord of such event and shall,
upon request of Landlord, provide Landlord with all relevant information
regarding the event, including all investigations, communications with
governmental authorities, work plans and evidence documenting compliance
with this provision.
(e) Tenant shall be solely responsible for the proper and lawful
disposition of all waste materials, including but not limited to solid
wastes and hazardous wastes (including universal wastes as defined in 40
CFR Section 273.6) generated, handled or stored by Tenant during the Term.
(f) Tenant shall indemnify and hold harmless Landlord from and against
any and all liabilities, damages, costs, claims, expenses, demands, and
actions arising out of: (i) Tenant's breach or violation of or
non-compliance with any Environmental Law applicable to Tenant's operations
or occupancy at the Premises, the Building or the Land during the Term; and
(ii) any order, deficiency notice, violation notice, clean-up request or
demand, or other remediation or removal requirement of, or any lien or
encumbrance, imposed by any judicial body or governmental authority having
jurisdiction under Environmental Laws relating to any Hazardous Materials
caused by Tenant's acts or omissions during the Term to be present on, in,
under or at the Premises. Notwithstanding anything else contained in this
Lease, this indemnity shall survive the expiration or earlier termination
of this Lease.
17.2 Definition of Hazardous Materials. The term "Hazardous Materials"
----------------------------------
shall mean any substance or waste containing hazardous substances, pollutants or
contaminants as those terms are defined in the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq., and any
-- ---
other substance regulated by any other Environmental Law or similarly defined or
identified in any other Environmental Law. This definition is intended to
include, but is not limited to, asbestos, asbestos-containing materials,
petroleum or petroleum-based products, polychlorinated biphenyls (PCBs) and
radon.
22
17.3 Definition of Environmental Laws. The term "Environmental Laws"
-----------------------------------
shall mean all applicable federal, state or local laws, rules, regulations,
ordinances, judgments, orders, decrees or by-laws governing the manufacture,
import, use, management, handling, storage, processing, release or disposal of
substances or wastes deemed by any governmental authority to be hazardous,
toxic, dangerous or injurious to public health or to the environment, including
those governing water quality, air quality, solid waste management, hazardous or
toxic substances, and the protection of health or the environment.
ARTICLE 18
----------
ACCESS TO LEASED PREMISES
-------------------------
Landlord shall have the right of access to the Leased Premises at
reasonable times during Tenant's normal business hours upon reasonable prior
notice (except in cases of emergency when no notice shall be required), for the
purposes of examination and inspection, making repairs, alterations or
improvements to the extent required or permitted herein, or exercising any of
the rights of Landlord under this Lease. Landlord may show the Leased Premises
to prospective purchasers and mortgagees and, during the nine (9) months prior
to the expiration of this Lease, to prospective tenants, at reasonable times
during Tenant's normal business hours upon reasonable prior notice to Tenant.
ARTICLE 19
----------
MORTGAGE SUBORDINATION:
-----------------------
NONDISTURBANCE; BANK'S RIGHT TO CURE
------------------------------------
19.1 Unless Lender shall otherwise elect as provided in Section 19.2,
Tenant's rights under this Lease are and shall remain subject and subordinate to
the operation and effect of any current or future Mortgage. Tenant's
acknowledgment and agreement of subordination provided for in this Section is
self-operative and no further instrument of subordination shall be required.
However, Tenant shall execute such further assurances and agreements of
subordination as shall be requisite or as may be requested from time to time by
Landlord or a Lender. In the event Tenant fails to execute any such further
assurance or agreement requested within ten (10) days after demand therefor,
Tenant does hereby make, constitute and irrevocably appoint Landlord as its
attorney-in-fact and in its name, place and stead for the purpose of executing
any such further assurance or agreement of subordination. Notwithstanding the
above, any such subordination shall provide that so long as Tenant timely pays
any rent or any other sums due under this Lease and is not otherwise in default
hereunder in any respect after the lapse of all applicable grace periods, the
holder of such mortgage, its successors and assigns will attorn to Tenant's
rights under this Lease, will not disturb Tenant's possession of the Leased
Premises.
19.2 If Lender shall so elect by written notice to Tenant or by the
recording of a unilateral declaration of subordination, this Lease and Tenant's
23
rights hereunder shall be superior and prior in right to the Mortgage of which
such Lender has the benefit, with the same force and effect as if this Lease had
been executed, delivered and recorded prior to the execution, delivery and
recording of such Mortgage, subject, nevertheless, to such reasonable conditions
as may be set forth in any such notice of declaration.
19.3 If any person shall succeed to all or part of Landlord's interest
in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease, or otherwise and if so requested or
required by such successor in interest, Tenant shall attorn to such successor in
interest and shall execute such agreement in confirmation of such attornment as
such successor in interest shall reasonably request.
19.4 "Mortgage" means (i) any lease of land only or of land and
buildings in a sale-leaseback transaction involving all or any part of the
Premises, or (ii) any mortgage, deed of trust or other security instrument
constituting a lien upon all or any part of the Premises, whether the same shall
be in existence as of the date hereof or created hereafter. "Lender" means a
party having the benefit of a Mortgage, whether as lessor, mortgagee, trustee or
noteholder.
19.5 Tenant agrees, upon the written request of Lender or Landlord, to
send to Lender a copy of all notices sent to Landlord which relate to any
claimed default by Landlord hereunder or otherwise relate to this Lease, other
than routine correspondence. Provided Lender or Landlord has provided Tenant
with such written request, Tenant may not terminate this Lease or exercise any
other remedies available to Tenant as a result of a default by Landlord
hereunder unless Tenant has sent to Lender, simultaneously with the sending of
the aforesaid notice to Landlord, a copy of the aforesaid notice to Landlord
relating to the claimed default by Landlord hereunder. Lender shall have the
right, but not the obligation, to cure any default of the Landlord under this
Lease and Tenant shall accept such performance by or on behalf of Lender as if
the same had been made by Landlord.
ARTICLE 20
----------
HOLDING OVER
------------
If Tenant shall, after the expiration of the term of this Lease or any
renewal or extension thereof, continue to occupy or remain in the Leased
Premises without a written agreement having been entered into, any such holding
over shall be deemed a tenancy at sufferance and otherwise subject to all of the
terms, conditions and covenants of this Lease to the extent they remain
applicable except that the Base Rent payable during such tenancy shall be equal
to one hundred fifty percent (150%) times the Base Rent in effect immediately
prior to Tenant's holding over. In addition to all of the rights of Landlord,
Landlord shall be specifically entitled to collect from Tenant any damages which
Landlord may suffer as a result of Landlord being unable to timely deliver the
Leased Premises to a new tenant as a result of Tenant's holding over.
24
ARTICLE 21
----------
NOTICE
------
Whenever this Lease calls for any request, notice, consent, approval or
demand to be given or served on either party to this Lease, such request,
notice, consent, approval or demand shall be in writing, shall specifically
reference the date of this Lease, the name of the original Landlord, the name of
the current Landlord and the address of the Leased Premises and shall be
delivered (a) personally, (b) by certified mail, return receipt requested, or
(c) by "next day" delivery service if receipted therefor, or (d) via facsimile
if a confirmation of such facsimile is received and such notice is also provided
by one of the other three methods, addressed as follows:
To Landlord: Xxxxxx Xxxxx Company
c/o TRW Automotive Electronics
00000 Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000_0000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Vice President, Finance
Copy to: Vice President and Assistant General Counsel
with a copy to: TRW Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Vice President, Real Estate
To Tenant: Measurement Specialties, Inc.
00 Xxxxxx Xxxxx Xx.
Xxxxxxxxx, Xxx Xxxxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Chairman
with a copy to:XxXxxxxx & English, LLP
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Tel: 000.000.0000
Fax: 000.000.0000
25
and
Xxxx X. Xxxxxx, Esq.
The Offices of Xxxx X. Xxxxxx
000 Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
or elsewhere, as the respective parties may from time to time designate in
writing. All notices shall be deemed given on the earlier of when received or
three (3) postal delivery days after depositing such notice, postpaid, in the
United States mail, one business day after such is deposited with a "next day"
delivery service or, if by facsimile, on the date reflected on the confirmation.
ARTICLE 22
----------
RECORDING - SHORT FORM LEASE
----------------------------
This Lease shall not be recorded by either party hereto. The parties will,
however, at any time at the request of either party, without charge, promptly
execute duplicate originals of an instrument, in recordable form, which will
constitute a short form of lease and which shall be used for the purpose of
giving public notice of this Lease by recording. Such short form of lease shall
set forth a description of the Leased Premises, the term of this Lease, any
options to extend or renew the term of this Lease, and any other portions
hereof, except the rental provisions (unless required by statute), as either
party may request. If either party fails or refuses to execute, acknowledge and
deliver a short form of lease in accordance with the requirements of this
Article within fifteen (15) days after the request of the other party to do so,
then the requesting party is hereby authorized, and is hereby appointed
attorney-in-fact with full power and authority, to execute, acknowledge and
deliver said short form of lease on behalf of and in the name of the other
party. All recording fees and taxes required to be paid in regard to such short
form of lease shall be paid by the party desiring to record such.
ARTICLE 23
----------
APPLICABLE LAW AND CONSTRUCTION OF PROVISIONS
---------------------------------------------
This Lease shall be governed by and construed under the laws of the State
of Virginia. The captions used in this Lease are for convenience only and do not
in any way modify, limit or amplify the terms and provisions hereof. The
language in all parts of this Lease shall in all cases be construed according to
its fair meaning and not strictly for or against either Landlord or Tenant, and
the construction of this Lease and any of its various provisions shall be
unaffected by any argument or claim, whether or not justified, that it has been
prepared, wholly or in substantial part, by or on behalf of either Landlord or
Tenant.
26
ARTICLE 24
----------
SEVERABILITY
------------
Any provision of this Lease that proves to be invalid, void or illegal
shall in no way affect, impair, or invalidate any other provision(s) hereof, and
such other provision(s) shall remain in full force and effect.
ARTICLE 25
----------
AUTHORITY
---------
Each individual executing this Lease hereby represents and warrants that
(a) the entity on whose behalf such individual is executing this Lease is duly
formed and validly existing, (b) the entity on whose behalf such individual is
executing this Lease has full right and authority to enter into this Lease, and
(c) such individual is duly authorized to execute this Lease on behalf of such
entity.
ARTICLE 26
----------
RELATIONSHIP OF PARTIES
-----------------------
The relationship between Landlord and Tenant created hereunder shall be
that of lessor and lessee and nothing shall be construed as creating any joint
venture or partnership.
ARTICLE 27
----------
INTENTIONALLY DELETED
---------------------
ARTICLE 28
----------
FORCE MAJEURE
-------------
Neither party hereto shall be required to perform any term, condition or
covenant of this Lease as long as such performance is delayed or prevented by
"Force Majeure", which shall mean "Acts of God, strikes, lockouts, material or
labor restrictions imposed by any governmental authority, shortage or materials,
civil riot or any other cause not reasonably within the control of such party
and which, by the exercise of due diligence, such party is unable, wholly or in
part, to prevent or overcome". Force Majeure shall not excuse either party from
the payment of any monies due pursuant to the terms of this Lease.
27
ARTICLE 29
----------
COUNTERPARTS
------------
This Lease may be executed in multiple counterparts, all of which shall
constitute one and the same Lease.
ARTICLE 30
----------
SUCCESSORS
----------
This Lease shall bind and inure to the benefit of the parties hereto, their
respective successors, assigns, heirs, executors and administrators, subject to
the provisions herein.
ARTICLE 31
----------
ENTIRE AGREEMENT
----------------
This Lease contains the entire agreement between the parties hereto
relating to the Leased Premises, and supersedes all prior agreements, and shall
not be modified in any manner except by an instrument in writing executed by the
parties or their respective successors in interest.
ARTICLE 32
----------
ESTOPPEL CERTIFICATES
---------------------
At any time and from time to time, within ten (10) days after either party
shall request the same, Tenant or Landlord, as the case may be, shall execute,
acknowledge and deliver to the other party and to such mortgagee, lender or
other party as may be designated by Tenant or Landlord, a certificate in the
form as Tenant or Landlord may request, with respect to matters relating to this
Lease or the status of performance of obligations of the parties hereunder as
may be requested by Tenant or Landlord.
ARTICLE 33
----------
SATELLITE ANTENNA
-----------------
33.1 If legally permitted, Tenant shall have the right to erect or
place a telecommunications dish antenna (the "Antenna") on the roof of the
Building in accordance with
28
the following provisions, which Antenna shall be designed in accordance with the
specifications to be provided by Tenant and approved by Landlord, Landlord's
approval not to be unreasonably withheld, conditioned or delayed. It is
expressly understood and agreed, in any event, that design specifications shall
include such modifications to the roof and shall be incorporated in the cost of
installation as herein provided. In the event such installation shall, in the
reasonable opinion of Landlord, impair the structural integrity of the roof,
roof membrane and/or Building, Landlord reserves the right to disapprove
Tenant's plans and specifications until the same shall be redesigned to
eliminate Landlord's objection. With respect to any such redesign of the roof,
any cost in connection with maintenance or repair which may thereafter be
occasioned as a direct result of the installation or operation of the Antenna or
by reason of the Antenna being located on the roof such as damage resulting to
the Antenna and/or Building from hurricane or high wind shall be paid for at the
sole cost and expense of the Tenant and shall not be included as part of the
Operating Expenses. Tenant shall furnish detailed plans and specifications for
the Antenna to Landlord for its approval, which approval shall not be
unreasonably withheld, conditioned or delayed, provided Landlord may condition
its consent by requiring that the Antenna be adequately screened or enclosed (at
Tenant's sole cost and expense) on the roof at such location as is designated by
Landlord in the least conspicuous location of all acceptable locations in which
the Antenna might be located.
33.2 Upon approval of Tenant's plans and specifications, the Antenna
shall be installed by Tenant at its sole cost and expense and utilizing
Landlord's roofing contractor, subject to reasonable supervision by Landlord
with respect thereto. Such cost and expense shall include obtaining any special
permits that may be required by governmental authority in connection with such
installation, including any reasonable cost attributable to the processing
thereof. Subsequent to the installation of the Antenna, Tenant shall comply with
applicable laws and keep the Premises free and clear from liens arising from or
related to Tenant's installation. Any cables, conduits or other physical
connections between the Antenna and the Premises shall be concealed within
permanent walls, floors, columns and ceilings of the Premises and the Building
and in the shafts of the Premises and the Building provided for such
installations, not damaging the appearance of the Premises or the Building. Any
installation or maintenance work performed by Tenant's, or at Tenant's
direction, shall be performed without unreasonably interfering with Landlord's
or any other tenant's use of the Building, and upon completion of such
installation and maintenance (initially and from time to time), Tenant shall
restore such portions of the Building to a condition reasonably comparable to
that existing prior to such installation or maintenance. Tenant shall be
responsible for procuring whatever licenses, approvals or permits may be
required for the installation and use of the Antenna and the related support
systems or operation of any equipment served thereby, and Landlord makes no
warranties whatsoever as to the permissibility of such systems under applicable
laws. Upon termination or expiration of this Lease and unless Landlord requests
Tenant to leave the Antenna, Tenant shall remove the Antenna installed by it, at
its expense, and shall repair and restore the Building to a condition comparable
to that existing prior to such installation other than the removal of cabling or
wiring within the walls of the Building.
29
ARTICLE 34
----------
LANDLORD'S REPRESENTATIONS
--------------------------
Landlord hereby represents and warrants that (i) to the Landlord's
knowledge, and except for any noncompliance resulting from Tenant's use or
activities at the Property, the Property is, and after completion of the
Landlord's construction, if any, will be, in compliance with all applicable
laws, rules and regulations (including but not limited to the Americans with
Disabilities Act), and (ii) so long as Tenant performs every obligation of
Tenant under this Lease, Tenant shall quietly enjoy the Premises without
hindrance by Landlord or anyone claiming under Landlord.
ARTICLE 35
----------
PARKING PRIVILEGES
------------------
Tenant, in consideration of leasing the Premises, is hereby entitled to one
hundred ninety-seven (197) parking spaces, of which thirty (30) may be reserved
as reflected on the drawing attached hereto as Exhibit "D"; any additional
parking spaces required or used by Tenant shall only be available after
obtaining Landlord's prior written approval. Tenant covenants and agrees to
comply with all reasonable rules and regulations which Landlord may from time to
time make to assure proper use of parking spaces by permitted users. Landlord's
remedies under such rules and regulations may include, but shall not be limited
to, the right to tow away at owner's expense any vehicles not parked in
compliance with these rules and regulations. Landlord shall have no obligation
to enforce Tenant's rights to the use of its reserved parking spaces and grants
Tenant the lawful authority to enforce such rights if Landlord elects not to
undertake such enforcement.
ARTICLE 36
----------
LANDLORD'S LIABILITY
---------------------
Notwithstanding anything to the contrary contained in this Lease, it is
expressly understood and agreed, such understanding and agreement being a
significant and material inducement to the execution of this Lease by Landlord,
that: (1) there shall be absolutely no personal liability of whatsoever nature
imposed upon Landlord, or any officer, director, partner, shareholder, member or
manager, as the case may be, of Landlord or their respective heirs, personal
representatives, successors or assigns, or any mortgagee in possession with
respect to any of the terms, covenants or conditions of this Lease; (ii) in the
event that Landlord shall commit a default or breach of any of the terms,
covenants or conditions hereof and Tenant shall obtain a judgment against
Landlord for such default or breach, Tenant's sole and exclusive remedy for the
enforcement and collection of such judgment shall be the institution of
foreclosure or other appropriate execution proceedings against the Property; and
(iii) regardless of whether or not the proceedings described in "(ii)"
immediately above shall result in a
30
complete satisfaction of Tenant's judgment, in no event (whether by proceedings
at law, in equity, administrative proceedings or otherwise) shall any deficiency
or other personal judgment be rendered or enforced against Landlord, its
successors and assigns, any officer, director, partner, shareholder, member or
manager of Landlord, whether their respective heirs, personal representatives,
successors or assigns, or any mortgagee in possession. Landlord shall have the
right to sell and convey its interest in the Property at any time during the
term of this Lease, subject to the rights of Tenant hereunder. In the event
Landlord sells and conveys its interest in the Property, the terms and
conditions of this Lease shall survive such sale and conveyance, provided,
however, the sale shall operate to release Landlord from any future liability
hereunder except for liability first arising or directly attributable to the
period prior to such sale and conveyance.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
respective dates shown below.
Witnessed By: LANDLORD:
XXXXXX-XXXXX COMIPANY
Sign:/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------- -----------------------------
Print: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
---------------------- ---------------------------
Sign:/s/ Xxxx X. Xxxxxxxx Title: Assistant Secretary
----------------------- --------------------------
Print: Xxxx X. Xxxxxxxx Date: as of August 4, 2000
-----------------------
TENANT:
MEASUREMENT SPECIALTIES, INC.
Sign:/s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------- -----------------------------
Print: Xxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx, Xx.
----------------------- Chairman and Chief Executive Officer
Sign:/s/ Xxxxxxx Xxxxxxxx as of August 4, 2000
-----------------------
Print: Xxxxxxx Xxxxxxxx
-----------------------
31
EXHIBIT "A"
-----------
FLOOR PLAN/SITE PLAN
--------------------
EXHIBIT A PAGE 2
----------------
[GRAPHIC OMITED]
EXHIBIT "B"
-----------
LEGAL DESCRIPTION
-----------------
EXHIBIT B
All of that land situated in the Xxxxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
containing 23.0000 acres and more particularly described as follows:
Beginning at a point on the west right-of-way line of Xxxxxxxx Boulevard
thence; S43'28'58"W, 21.87 feet to a point on the north right-of-way line of
Xxxxxx Farm Road; thence along the existing north right-of-way line of Xxxxxx
Xxxx Xxxx X00'00'00"X, 1,025.01 feet to the true point of beginning; thence
along the new north right-of-way line at Xxxxxx Farm Road and on a curve to the
left whose radius = 2,543.64 feet, central angle = 19'13'23, arc length = 853.40
feet, chord length = 849.40 feet, chord bearing S74'08'07"W, and tangent
distance = 430.75 feet to a point; thence continuing along the new north
right-of-way line of Xxxxxx Xxxx Xxxx X00'00'00"X, 219.23 feet to a point;
thence along the existing north right-of-way line of Xxxxxx Farm Road and on a
curve to the right whose radius 2,968.45 feet, central angle l4'02'43", arc
length = 727.67 feet, chord length 725.85 feet, chord bearing S71'32'47"W, and
tangent distance 365.67 feet to a point; thence N50'32'32"W, 85.35 feet to a
point on the east right-of-way line of the future North-South corridor road;
thence along the east right-of-way line of the future North-South corridor road
N00'20'48"E, 955.38 feet to a point; thence N89'39'12"W, 50.00 feet to a point
on the east property line of lands now are or formerly owned by the School Board
of the City of Hampton, Virginia; thence along the east property line of lands
now or formerly owned by the School Board of the City of Hampton, Virginia,
N00'20'48"E, 65.12 feet to a point; thence S89'39'12"E, 986.22 feet to a point
on the west property line of lands now or formerly owned by the Industrial
Development Authority of the City of Hampton, Virginia; thence along the west
property line of land now or formerly owned by the Industrial Development
Authority of the City of Hampton, Virginia, S05'58'22"W. 22.18 feet to a point;
thence continuing along the west properly line of lands now or formerly owned by
the Industrial Development Authority of the City of Hampton, Virginia,
S20'12'19"W, 70.10 feet to a point; thence continuing along the west property
line of lands now or formerly owned by the Industrial Development Authority of
the City of Hampton, Virginia, S20'43'20"E, 67.82 feet to point; thence
continuing along the west property line of lands now or formerly owned by the
Industrial Development Authority of the City of Hampton, Virginia, S11'13'24"E,
54.35 feet to a point; thence continuing along the west property line of lands
now or formerly owned by the Industrial Development Authority of the City of
Hampton, Virginia, S36'21'08"E, 36.83 feet to a point; thence continuing along
the west property line of lands now or formerly owned by the Industrial
Development Authority of the City of Hampton, Virginia, S18'37'l8"E, 64.00 feet
to a point; thence continuing along the west property line of lands now or
formerly owned by the Industrial Development Authority of the City of Hampton,
Virginia, S04'52'45"E, 64.67 feet to a point; thence continuing along the west
property line of lands now or formerly owned by the Industrial Development
Authority of the City of Hampton, Virginia, S53'38'55"E, 70.07 feet to a point;
thence continuing along the west property line of lands now of formerly owned by
the Industrial Development Authority of the City of Hampton, Virginia, on a
curve to the left whose radius = 1400.00 feet, central angle = 30'04'33", arc
length = 734.89 feet, chord length = 726.48 feet, chord bearing = S81'12'56"E
and tangent distance = 376.12 feet and returning to the true point of beginning.
EXHIBIT "C"
-----------
DETERMINATION, ADJUSTMENT AND
-----------------------------
ALLOCATION OF UTILITIES
-----------------------
Utility charges allocable to the Leased Premises and Tenant's use thereof,
with the exception of telephones, shall be determined, adjusted from time to
time and allocated in accordance with this Exhibit "C."
Within thirty (30) days after the Commencement Date, Landlord and Tenant
shall endeavor to agree upon the method and manner of charging utilities (other
than telephones) to Tenant (the "Sharing Formula"). The Sharing Formula shall be
used by the parties to determine Tenant's share of utility charges from and
after the Commencement Date. Landlord and Tenant shall endeavor to develop the
Sharing Formula directly between themselves by analyzing the utility consumption
in the Building at a time when the same is not occupied by Tenant as compared to
the utility consumption in the Building when the Building is occupied by Tenant.
In connection with such analysis Landlord and Tenant may engage an outside
consultant to assist them with such analysis and complete a utility usage
analysis for the Building that will include a recommended and appropriate
utility usage allocation between Landlord and Tenant.
At any time during the Term or any Extension Term, but not more often than
annually, either Landlord or Tenant may request in writing (the "Request Date")
that the Sharing Formula be adjusted, if the party requesting such adjustment
believes, in good faith, that the Sharing Formula no longer fairly and equitably
allocates the utility charges between Landlord and Tenant and thereupon Landlord
and Tenant shall endeavor to agree upon an appropriate modification to and
adjustment of the Sharing Formula. If the parties are unable to agree upon such
adjustment or modification within thirty (30) days of the request therefor, then
either party shall have the right to require that the Sharing Formula be
reviewed by an independent third party of recognized competency and experience
in the fields of utility and energy usage (the "Utilities Consultant") selected
jointly by Landlord and Tenant for the purposes of determining a fair and
equitable allocation of utility charges which determination may or may not be
consistent with the methods of determination employed by the parties in or with
respect to the Sharing Formula (the "Utilities Review"). If the parties are
unable to agree upon the selection of the Utilities Consultant, then such
selection shall be submitted to arbitration in accordance with the provisions
set forth below.
The Utilities Review shall be prepared and submitted to Landlord and Tenant
by the Utilities Consultant not later than forty-five (45) days after the
selection of the Utilities Consultant. Landlord and Tenant shall promptly review
the Utilities Review and provided that both Landlord and Tenant find the same to
be acceptable the Sharing Formula shall be modified accordingly effective as of
the Request Date.
If Landlord and Tenant should agree upon some, but not all, portions of the
Utilities Review, then the Sharing Formula shall be modified accordingly, to the
extent practicable, in
accordance with the agreed upon portions of the Utilities Review. With respect
to those portions, if any, of the Utilities Review that Landlord and Tenant have
not agreed upon or with respect to the entire Utilities Review if it is totally
rejected by either party, then for a period of thirty (30) days after the
issuance date of the Utilities Review, the parties shall endeavor to settle
their disagreements concerning the Utilities Review and if they are unable to do
so, then the matters that are in disagreement shall, at the request of either
party, be submitted to arbitration in Hampton, Virginia with The American
Arbitration Association which arbitration shall be held in accordance with the
Commercial Arbitration Rules of The American Arbitration Association. The costs
and expenses of the arbitrator shall be shared equally by Landlord and Tenant,
however, the cost and expenses incurred individually by Landlord and Tenant,
including legal and other professional fees, shall be the sole responsibility of
the party incurring the same.
2
