EXHIBIT 10.5
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
LEASE dated December 27, 2000
("Execution Date")
ARTICLE 1
REFERENCE DATA
1.1 Subjects Referred To
Each reference in this Lease to any of the following subjects
shall be construed to incorporate the data stated for that
subject in this Article:
LANDLORD: SPHOS, Inc.
MANAGING AGENT: SPHOS, Inc.
LANDLORD'S ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LANDLORD'S
REPRESENTATIVE: ▇▇▇▇ ▇▇▇▇▇▇▇
TENANT: Temptronic Corporation
(and address for ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
notice and billing) ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BUILDING ADDRESS: ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TERM COMMENCEMENT DATE: January 1, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ TENANT'S SPACE: 62,389 Square Feet
GROSS RENTABLE FLOOR
AREA OF THE
BUILDING: 62,389 Square Feet
TENANT'S PROPORTIONATE
SHARE: 100%
EXPIRATION DATE: February 28, 2011 (As same may be
extended by any validly exercised
Expansion option contained herein).
ANNUAL BASE RENT: As defined in Section 2.4 of this Lease
From January 1, 2001 through February
28, 2001:
$ 58,489.70 per month
From March 1,2001 through February 28,
2011:
$623,890.00 per annum
$ 51,990.83 per month
ADDITIONAL RENT: Any monies (including Landlord's
Operating Costs) which Landlord
is authorized to collect from Tenant
hereunder or which Tenant is otherwise
obligated to pay, which is not included
in Annual Base Rent.
SECURITY DEPOSIT: $200,000.00 irrevocable sight draft
Letter of Credit, providing that
upon submission of a statement from a
representative of Landlord stating that
the requested sum of money is due under
the lease, the sum will be paid under
the letter of credit. No other
conditions will be attached, unless
expressly previously approved in
writing by Landlord. The letter of
credit shall be issued by a bank
approved in writing by Landlord, shall
have a term of not less than one year
and shall be renewed for successive
terms of not less than one year each,
for the entire term of the Lease, at
least thirty (30) days prior to each
expiration or Landlord may draw down
the full amount of the letter of credit
and retain such sum as the security
deposit. If drawn down, an additional
letter of credit on the same terms for
the amount drawn down shall be
delivered to Landlord within ten
(10) days of any draw down. The
original of the letter of credit and
each renewal shall be deposited with
and held by Landlord or, at Landlord's
mortgagee's request, with such
mortgagee.
GUARANTOR: inTEST Corporation (listed on NASDAQ)
PERMITTED USES: Office, research and development,
Light manufacturing and warehousing
uses.
PUBLIC LIABILITY
INSURANCE:
BODILY INJURY: $5,000,000 per occurrence
PROPERTY DAMAGE: $5,000,000
Page 2 of 34
1.2 Exhibits . . . . . . . . . . . . . . . . . . . . . . . 3
EXHIBIT A - The Premises
EXHIBIT B - Construction
EXHIBIT C - Landlord Services
EXHIBIT D - Rules and Regulations
EXHIBIT E - Landlord's Initial Repairs
EXHIBIT F - Parking
EXHIBIT G - Guaranty
EXHIBIT H - Expansion Option
ARTICLE II - Premises, Term, Rent
2.1 The Premises . . . . . . . . . . . . . . . . . . . . . 6
2.2 Landlord's Reservations . . . . . . . . . . . . . . . . 6
2.3 Commencement of Term . . . . . . . . . . . . . . . . . 6
2.4 Monthly Fixed Rent Payments . . . . . . . . . . . . . . 6
2.5 Additional Rents . . . . . . . . . . . . . . . . . . . 7
ARTICLE III - Alterations and Construction
3.1 Condition of Premises . . . . . . . . . . . . . . . . . 8
3.2 Alterations and Additions by Tenant . . . . . . . . . . 8
3.3 Real Estate and/or Other Taxes
On Leasehold Improvements . . . . . . . . . . . . . . .10
3.4 Landlord's Right to Make Alterations . . . . . . . . .10
ARTICLE IV - Landlord's Covenants; Interruptions and Delays
4.1 Services Furnished by Landlord . . . . . . . . . . . .11
4.2 Structural Repairs . . . . . . . . . . . . . . . . . .11
4.3 Utilities . . . . . . . . . . . . . . . . . . . . . . .12
4.4 Tenant's Signage . . . . . . . . . . . . . . . . . . .12
4.5 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . .12
ARTICLE V - Tenant's Covenants
5.1 Payments . . . . . . . . . . . . . . . . . . . . . . .12
5.2 Maintenance, Repair and Yield Up. . . . . . . . . . . .12
5.3 Use . . . . . . . . . . . . . . . . . . . . . . . . . .13
5.4 Safety Appliances . . . . . . . . . . . . . . . . . . .14
5.5 Assignment; Sublease . . . . . . . . . . . . . . . . .14
Page 3 of 34
5.6 Indemnity; Insurance. . . . . . . . . . . . . . . . . .15
5.7 Personal Property at Tenant's Risk. . . . . . . . . . .16
5.8 Right of Entry. . . . . . . . . . . . . . . . . . . . .16
5.9 Floor Load; Prevention of Vibration and Noise . . . . .17
5.10 Personal Property Taxes . . . . . . . . . . . . . . . .17
5.11 Payment of Litigation Expense . . . . . . . . . . . . .17
5.12 Compliance with Insurance Regulations . . . . . . . . .17
ARTICLE VI - Casualty and Taking
6.1 Termination or Restoration; Rent Adjustment . . . . . .18
6.2 Eminent Domain. . . . . . . . . . . . . . . . . . . . .19
6.3 Temporary Taking. . . . . . . . . . . . . . . . . . . .19
6.4 Termination Upon Condemnation . . . . . . . . . . . . .19
ARTICLE VII - Default
7.1 Events of Default . . . . . . . . . . . . . . . . . . .20
7.2 Damages . . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE VIII - Miscellaneous
8.1 Notice of Lease, Consent of Approval;
Notices; Bind and Inure . . . . . . . . . . . . . . . .22
8.2 Landlord's Failure to Enforce . . . . . . . . . . . . .22
8.3 Acceptance of Partial Payments of Rent;
Delivery of Keys. . . . . . . . . . . . . . . . . . . .23
8.4 Cumulative Remedies . . . . . . . . . . . . . . . . . .23
8.5 Partial Invalidity. . . . . . . . . . . . . . . . . . .23
8.6 Self-Help . . . . . . . . . . . . . . . . . . . . . . .23
8.7 Tenant's Estoppel Certificate . . . . . . . . . . . . .24
8.8 Waiver of Subrogation . . . . . . . . . . . . . . . . .24
8.9 All Agreements Contained. . . . . . . . . . . . . . . .25
8.10 Brokerage . . . . . . . . . . . . . . . . . . . . . . .25
8.11 Submission Not an Option. . . . . . . . . . . . . . . .25
8.12 Applicable Law. . . . . . . . . . . . . . . . . . . . .25
8.13 Waiver of Jury Trial. . . . . . . . . . . . . . . . . .25
8.14 Holdover. . . . . . . . . . . . . . . . . . . . . . . .26
8.15 Requirements of Law - Fines and Penalties . . . . . . .26
Page 4 of 34
8.16 Inability to Perform - Exculpatory Clause . . . . . . .26
8.17 Parties Bound - Seisin of Title . . . . . . . . . . . .27
8.18 Security Deposit. . . . . . . . . . . . . . . . . . . .28
ARTICLE IX - Rights of Parties Holding Prior Interests
9.1 Lease Subordinate . . . . . . . . . . . . . . . . . . .29
9.2 Rights of Holder of Mortgage to Notice of
Default by Landlords and to Cure Same . . . . . . . . .30
ARTICLE X - Environmental Compliance
10.1 Environmental Conditions. . . . . . . . . . . . . . . .31
10.2 Tenant's Covenants Regarding Environmental
Compliance. . . . . . . . . . . . . . . . . . . . . . .31
10.3 Definitions . . . . . . . . . . . . . . . . . . . . . .33
10.4 Landlord's Environmental Indemnity. . . . . . . . . . .34
Page 5 of 34
ARTICLE II
PREMISES, TERM AND RENT
2.1 The Premises
Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the Lot and the premises, including all of the
Building, except as hereafter expressly reserved (collectively,
"the Premises") which the parties agree contains 62,389 gross
rentable square feet, comprising all of a building numbered ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, which building
contains 62,389 square feet of Gross Rentable Area,
substantially as shown on Exhibit A attached hereto. The term
"Building" means the building currently erected on the Lot by
Landlord, and the term "Lot" means all, and also any part of,
the land of approximately 8.310 acres described in Exhibit A in
whole or in part and subject to minor adjustments of the lot
boundaries.
2.2 Landlord's Reservations
Landlord retains the right to grant an easement over the
existing septic system area and some additional area for parking
for an adjoining parcel or parcels of property.
Such areas are shown on Exhibit A. Tenant shall not have
any right to park or otherwise utilize such easement area.
Landlord also reserves, for itself and others to whom it may
grant rights therein, the exclusive right to use or permit the
use of all or any portion of the roof of the Building for any
purpose.
2.3 Commencement of Term
Tenant shall have and hold the Premises for a period
commencing as of the date ("January 1, 2001") and Basic Rent
shall commence on January 1, 2001.
2.4 Monthly Fixed Rent Payments
Tenant shall pay, without any offset or demand (except as
expressly provided in this Lease), monthly installments of
1/12th of the Annual Base Rent in advance on the first day of
each month for each full calendar month of the Term, commencing
as of the Term Commencement Date, and the corresponding fraction
of said amounts for any fraction of a calendar month at the
beginning or end of the Term. Except for Annual Base Rental as
otherwise specifically provided herein, all sums, amounts, items
or charges payable by Tenant to Landlord under this Lease shall
be considered as additional rent.
All payments of Annual Base Rent and additional rent shall
be made to the Managing Agent, or to such other person as
Landlord may from time to time designate. Rental and any
additional rent due hereunder not paid within five (5) days
after the date due shall bear interest for each month or
fraction thereof from the due date until paid computed at the
annual rate of two (2) percentage points over the so-called
prime rate then currently from time to time charged by Chase
Manhattan Bank, or at any applicable lesser maximum legally
permissible rate for debts of this nature.
Page 6 of 34
In addition, should Tenant fail to pay when due rental and
any other sums due hereunder, Tenant acknowledges that Landlord
will incur additional administrative expenses which are
difficult to determine. Therefore, in such event, Landlord may
assess against Tenant, from and after the tenth (l0th,) day
following the date on which any sum shall be due and payable, a
late payment fee equal to five (5%) of the sum due from Tenant
to Landlord.
Landlord and Tenant hereby declare that, except as
otherwise expressly provided for herein, they intend that the
rent specified in this lease shall be completely net to the
Landlord in each year during the term hereof (including any
renewals or extensions hereof, if any) and that all costs,
expenses, and obligations of every kind relating to the demised
premises shall be the obligations of the Tenant.
2.5 Additional Rent.
Except as otherwise expressly provided herein, throughout
the entire term and any extensions or renewals hereof, Tenant
shall be responsible for and shall pay, as additional rent, all
costs, expenses, and obligations of every kind and nature,
foreseen and unforeseen, ordinary and extraordinary, relating to
the Premises (but excluding payments of any principal or
interest on any mortgage indebtedness obtained by Lessor)
including but not limited to all operating costs, expenses, and
obligations of every kind relating to or in respect of the
operation and maintenance of the Premises, all utilities,
building supplies, janitorial services, maintenance, traffic
signals, sewer line hook-ups, septic systems, landscaping,
paving, repairs and replacements, capital and otherwise (but
Landlord, shall be responsible, at its sole cost and expense,
for making repairs and replacements to the structural portions
of the Building only, unless, subject to Section 8.8 hereof,
such repairs and replacements shall be necessitated by any acts
or omissions of Tenant, its agents, employees, invitees,
contractors or visitors, in which event such repairs and
replacements shall be at the sole cost and expense of Tenant),
fire, hazard, liability and other insurance(s), all of which
except for this lease would have been chargeable against the
Premises with respect to the term hereof and payable by the
Landlord, real estate and personal property taxes, general and
special assessments, water, water meter, sewer rents, rates and
charges and all costs and charges for installing, repairing or
replacing water meters, and other governmental levies, fees,
rents and charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, of any kind and
nature whatsoever (all of which taxes, assessments, water
charges, and other governmental levies and charges are
hereinafter sometimes referred to as an "Imposition" or
collectively "Impositions"), which are assessed, levied,
confirmed, imposed or become a lien upon the Premises or any
parts thereof, or the personal property thereat of the Tenant or
become payable with respect thereto. It is the intention of the
parties hereto that, except as expressly provided herein to the
contrary, the rents reserved herein shall be received and
enjoyed by Landlord as a completely net sum. Tenant shall
promptly provide to Landlord, upon request, copies of receipted
tax bills, canceled checks or other evidence satisfactory to
Landlord evidencing that such Impositions, water and sewer
rents, other governmental charges and all other items for which
Page 7 of 34
Tenant is responsible have been timely paid. If Impositions or
other items are ever required by Landlord's mortgagee to be
escrowed in advance with said mortgagee, payments for said
Impositions shall be made to the Landlord in the manner provided
for the payment of rental, otherwise Tenant shall pay said
Impositions as set forth above. The Landlord shall notify the
Tenant as soon as possible as to the nature and extent of such
Impositions. After such notice, the Tenant shall pay any and all
such Impositions within the period of time provided for in any
mortgage(s) covering any portion of the Premises in order that
such mortgage(s) shall not be in default. The Tenant or
Landlord, may at its sole election contest any assessment or tax
on the Premises. However, notwithstanding the foregoing,
Tenant shall have the right to contest, at its own expense, by
appropriate legal proceedings conducted in good faith and with
due diligence, the amount or validity of such Impositions water
and sewer rents, or other governmental charges, provided that:
(a) Tenant has deposited cash with Landlord, as a reserve for
the payment thereof in such amount as Tenant may require; or, if
required by law, such Impositions shall have been paid, and (b)
such contest operates to prevent collection, stay any
proceedings which may be instituted to enforce payment of such
item, and prevent a sale of the Premises to pay such item. If,
by reason of any change in the method of taxation or in the
applicable government entity, a new or additional real estate
tax or other tax or governmental imposition, however designated,
is levied against Landlord, or the Premises, in substitution in
whole or in part for any item previously included in
Impositions, or in addition to any of the items then comprising
Impositions, every such new, additional, or redesignated item
shall be included in Imposition. Nothing herein or in this
Lease otherwise contained shall require or be construed to
require Tenant to pay any inheritance, estate, succession,
income or profit taxes, that are or may be imposed upon
Landlord, its successors or assigns, unless such taxes may be
levied upon the rent herein reserved in place of or in addition
to taxes upon the property herein demised.
ARTICLE III
TENANT ALTERATIONS AND CONSTRUCTION
3.1 Condition of Premises
Except as set forth on Exhibit - E attached hereto, and as
provided in the next sentence, Landlord shall deliver the
Premises in an "as is" condition as it presently exists.
Landlord shall have no obligation to demolish or do any
construction or other work in or to the Premises or to advance
any funds therefore, except that the heating, ventilating and
air conditioning system and septic system shall be in operating
condition (operational for the normal purposes of such systems)
at the date of commencement of Annual Base Rent payments and,
upon Tenant completing its alterations and obtaining a
certificate of occupancy, Landlord shall pay to Tenant as an
improvement allowance the sum of $257,977.
3.2 Alterations and Additions by Tenant
(a) This Section 3.2 shall apply before and during the
Term. Tenant shall not make any alterations or additions which
(a) involve or might affect any structural or exterior element
of the Building, or any facility serving any area of the
Page 8 of 34
Building, or (b) will require unusual expense to readapt the
Premises to normal office/light manufacturing use on Lease
termination or increase the cost of construction or of insurance
or taxes on the Building, except in accordance with plans and
specifications and a time schedule therefore first approved by
Landlord in writing, which approval shall not be unreasonably
withheld provided that all such alterations and additions to the
Premises by Tenant are of a quality which equal or exceed the
materials and specifications, new, of the existing Building and
any structural alterations shall be subject to Landlord's prior
written approval which may be granted or withheld by Landlord in
its sole discretion. No amendments or additions to Tenant's
approved plans shall be made without the prior written consent
of Landlord.
(b) All alterations and additions shall be part of the
Building unless and until Landlord shall specify the same for
removal pursuant to Section 5.2. Landlord may elect at the time
consent is given thereto (or at the expiration or sooner
termination of the Lease if no consent is required) to require
Tenant at the expiration or sooner termination of the term of
this Lease to restore the Premises to substantially the same
condition as existed at the Term Commencement Date.
(c) All of Tenant's alterations and additions and
installation of furnishings shall be coordinated with any work
which may be performed by Landlord in such manner as to not
damage the Premises or interfere with Building construction or
operation and, except for installation of furnishings, shall be
performed by workmen first approved by Landlord, which approval
shall not be unreasonably withheld or delayed. Tenant shall
defend, save harmless, exonerate and indemnify Landlord from all
injury, loss or damage to any person or property occasioned by
or growing out of such work performed by Tenant or Tenant's
contractors. Tenant agrees that it will not, either directly or
indirectly, use any contractors and/or materials if their use
will create any difficulty, whether in the nature of a labor
dispute or otherwise, with other contractors and/or labor
engaged by Tenant or Landlord or others in the construction,
maintenance and/or operation of the Building or any part
thereof. Tenant, before its work is started, shall: secure all
licenses and permits necessary therefore; deliver to Landlord a
statement of the names of all its contractors and subcontractors
and the estimated cost of all labor and material to be furnished
by them; and cause each contractor (and subcontractor unless
covered by contractor's insurance) to carry Workmen's
Compensation Insurance in statutory amounts covering all the
contractor's and subcontractor's employees, Automobile Liability
Insurance and comprehensive public liability insurance and
property damage insurance with such limits as Landlord may
reasonably require but in no event less than, with respect to
public liability insurance, $5,000,000.00 and with respect to
property damage insurance, $5,000,000.00 (all insurance to be
written by companies approved by Landlord and insuring Tenant
and Landlord and Landlord's lenders as additional insureds as
well as the contractors), and to deliver to Landlord
certificates of all such insurance. No installations or work
shall be undertaken or begun by Tenant until Tenant has made
provision for either written waivers of liens from all
contractors, laborers and suppliers of materials for such
installations or work, the filing of ▇▇▇▇ ▇▇▇▇▇ on behalf of
such contractors, laborers and suppliers, or other appropriate
protective measures, approved by Landlord and Tenant has
Page 9 of 34
procured appropriate surety payment and performance bonds which
shall name Landlord as an additional obligee and Tenant has
filed ▇▇▇▇ ▇▇▇▇(s),(in jurisdictions where available) on behalf
of such contractors, laborers and suppliers.
(d) In no event shall any material or equipment be
incorporated in or added to the Premises, so as to become a
fixture or otherwise a part of the Premises, in connection with
any such alteration, decoration, installation, addition or
improvement which is subject to any lien, charge, mortgage or
other encumbrance of any kind whatsoever or is subject to any
security interest or any form of title retention agreement. Any
mechanic's lien filed against the Premises for work claimed to
have been done for, or materials claimed to have been furnished
to, Tenant shall be discharged by Tenant within ten (10) days
after receipt of notice thereof, at Tenant's expense, by filing
the bond required by law or otherwise. If Tenant fails so to
discharge any lien, Landlord may do so at Tenant's expense and
Tenant shall reimburse Landlord for any expense or cost incurred
by Landlord in so doing within fifteen (15) days after rendition
of a ▇▇▇▇ therefore.
(e) All installations or work done by Tenant shall be at
its own expense and shall at all times comply with (i) laws,
rules, orders and regulations of governmental authorities having
jurisdiction thereof; (ii) orders, rules and regulations of any
Board of Fire Underwriters, or any other body hereafter
constituted exercising similar functions, and governing
insurance rating bureaus; (iii) Rules and Regulations of
Landlord, attached hereto as EXHIBIT D; (iv) plans and
specifications prepared by and at the expense of Tenant
theretofore submitted to and approved by Landlord. All
construction work required or permitted by this Lease shall be
done in a good and workmanlike manner. Tenant agrees to pay
promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees, or independent
contractors.
3.3 Real Estate and/or Other Taxes on Leasehold Improvements
If under Massachusetts (and/or local) law or regulations,
the tax assessor is required to include leasehold (real
property) improvements in determining the assessed value of the
Building, or otherwise imposes any taxes thereon or on the value
thereof, then to the extent that Tenant makes leasehold
improvements (including Tenant's original installation and
Tenant's subsequent alterations, additions, substitutions and
improvements), whether done prior to or after the commencement
of the Term of this Lease, Tenant shall pay the real estate
and/or other taxes attributable to the value of such excess
leasehold improvements throughout the Term of this Lease within
five (5) days after being billed therefore either directly or by
Landlord.
3.4 Landlord's Right to Make Alterations
With respect to those portions of the Building which
Landlord has the right to repair, pursuant to Section 4.2
hereof, or otherwise if not timely performed by Tenant, Landlord
reserves the right, exercisable by itself or its nominee, at any
time and from time to time without the same constituting an
actual or constructive eviction and without incurring any
liability to Tenant therefore or otherwise affecting Tenant's
Page 10 of 34
obligations under this Lease, to make such changes, alterations,
additions, improvements, repairs or replacements in or to the
Building and the fixtures and equipment thereof, as well as in
or to the street entrances, halls, passages, and stairways
thereof, as it may deem necessary if occasioned by Tenant's
failure to do so, all of such to be at the cost and expense of
Tenant, subject to the provisions of Section 8.8 below. Nothing
contained in this Section 3.3 shall be deemed to relieve Tenant
of any duty, obligation or liability of Tenant with respect to
making any repair, replacement or improvement or complying with
any law, order or requirement of any governmental or other
authority nor require Landlord to make any repairs.
Landlord shall not be liable to Tenant for any compensation
or reduction of rent by reason of inconvenience or annoyance or
for loss of business arising from the necessity of Landlord or
its agents entering the Premises for any of the purposes in this
Lease authorized, or for repairing the Premises or any portion
of the Building, however the necessity may occur, including, but
not limited to, the right, which is retained by Landlord to
enter the Premises to perform work for other portions of the
Building or to the Premises. Subject to Section 8.16, in case
Landlord is ever delayed from making any repairs, alterations or
improvements, or furnishing any services or performing any other
covenant or duty to be performed on Landlord's part, by reason
of any cause reasonably beyond Landlord's control, Landlord
shall not be liable to Tenant therefore, nor except as expressly
otherwise provided herein shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the
same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction
from the Premises.
Landlord reserves the right to stop any service or utility
system, when necessary by reason of accident or emergency, or
until necessary repairs have been completed; provided, however,
that in each instance of stoppage Landlord shall exercise
reasonable diligence to eliminate the cause thereof. Except in
case of emergency repairs Landlord will give Tenant reasonable
advance notice of any contemplated stoppage and will use
reasonable efforts to avoid unnecessary inconvenience to Tenant
by reason thereof.
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Services Furnished by Landlord
Landlord is not to furnish any services to the Premises,
all of the same, as provided above, are to be provided by Tenant
at Tenant's sole cost and expense.
4.2 Structural Repair
Throughout the Term of this Lease, Landlord, shall be
responsible, at its sole cost and expense, for making such
repairs and replacements to the structural portions of the
Building meaning the roof deck, foundation and structural steel
only unless such repairs or replacements shall be necessitated
by any acts or omissions of Tenant, its agents, employees,
invitees, contractors or visitors, in which event such repairs
Page 11 of 34
and replacements shall be at the sole cost and expense of
Tenant, subject to the provisions of Section 8.8 below.
4.3 Utilities.
Tenant shall pay for all gas, electricity, water and other
utilities to or for the Premises or the operations thereon or
therefrom, Prior to the commencement of each lease year during
the term hereof, Tenant shall pay any and all utility company
deposits that may be required. Tenant shall arrange, at its own
cost and expense, and pay for, janitorial service and trash
removal from the Premises and shall not permit any accumulation
of trash at the Premises, Building. Tenant may not use
electrical power in excess of the capacity of the electrical
system in the Building without Landlord's consent which may be
conditioned on Tenant paying the cost of increasing the capacity
of the existing electrical panels and transformers serving the
Premises, or the Building electrical risers, if necessary to
meet such additional demand.
4.4 Tenant's Signage
To provide and install, at Tenant's expense, any and all
tenant signage, which signage shall be subject to all relevant
governmental requirements, required approvals, consents,
licenses and prohibitions and to Landlord's prior written
approval which will not be unreasonably withheld or delayed.
4.5 Quiet Enjoyment
Landlord covenants that if, and so long as, Tenant keeps
and performs each and every covenant, agreement, term, provision
and condition herein contained on the part and on behalf of
Tenant to be kept and performed, Tenant shall quietly enjoy the
Premises from and against the claims of all persons claiming by,
through or under Landlord subject, nevertheless, to the
covenants, agreements, terms, provisions and conditions of this
Lease and to any instrument to which this Lease is subject and
subordinate.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the Term and such further time as
Tenant occupies any part of the Premises:
5.1 Payments
To pay when due all Annual Base Rent and additional rent
and all charges for utility services rendered to the Premises;
5.2 Maintenance, Repair and Yield Up
Except as otherwise provided in Article VI and Section 4.2,
throughout the Term of this Lease, Tenant shall be responsible,
at its sole cost and expense, for making such repairs and
replacements to the non-structural portions of the Building
(unless the necessity for structural repairs and replacements is
caused by the acts or omissions of Tenant, its agents,
employees, invitees, contractors or visitors in which event
Tenant shall be responsible, subject to Section 8.8 hereafter
for such structural repairs and replacements), and to any
Page 12 of 34
improvements on the Lot as may be necessary to keep them in the
same condition and repair as on the date hereof, reasonable wear
and tear and damage by eminent domain excepted (but in working
condition), and shall make all non-structural repairs and
replacements (unless the necessity for structural repairs and
replacements is caused by the acts or omissions of Tenant, its
agents, employees, invitees, contractors or visitors in which
event Tenant shall be responsible for such structural repairs
and replacements), and shall make all non-structural, exterior
and interior repairs, renewals and replacements of every nature
necessary to that end, including, without limitation, thereof
(other than the roof deck), HVAC system(s), the exterior walls
of the Building, interior and exterior repainting and
refurbishing, replacement of glass damaged or broken and floor
or wall coverings worn or damaged and shall keep all plumbing,
lighting, heating, air conditioning, electrical, sprinklers and
other utility and mechanical systems properly in the same
condition and repair as on the date hereof, reasonable wear and
tear and damage by eminent domain excepted (but in working
condition); and shall commence promptly and proceed diligently
with any repairs, maintenance or restoration required. All
repairs, maintenance and restoration work performed by Tenant,
pursuant to this Section 5.2, shall be of a quality at least
consistent with that of the Building new.
At the expiration or termination of this Lease; peaceably
to yield up the Premises and all alterations and additions
thereto in the same condition and repair as on the date hereof,
reasonable wear and tear and damage by eminent domain excepted
(but in working condition), first removing all goods and effects
of Tenant and with respect to alterations and additions Landlord
has required Tenant to remove at the time of their approval, or,
if so required by Landlord as to items whose approval was not
required by Landlord, to the extent specified by Landlord at the
time that Landlord approves Tenant's plans for the same, in
accordance with Article III to the Lease, all alterations and
additions made by Tenant and all partitions, and repairing any
damage caused by such removal and restoring the Premises and
leaving them clean and neat.
Tenant will remove any personal property from the Premises
upon or prior to the expiration or termination of this Lease and
any such property which shall remain in or on the Premises
thereafter shall be conclusively deemed to have been abandoned,
and may either be retained by Landlord as its property or sold
or otherwise disposed of in such manner as Landlord may see fit.
If any part thereof shall be sold, then Landlord may receive and
retain the proceeds of such sale.
5.3 Use
To use and occupy the Premises only for the Permitted Uses;
and not to injure or deface the Building or Lot, nor to cause,
permit or suffer in or on the Premises any auction sale, or
inflammable fluids or chemicals (except in accordance with all
applicable municipal, state or federal statutes, rules,
regulations and requirements of any applicable insurance company
or fire underwriters), or nuisance, or the emission from the
Premises of any objectionable noise or odor, nor, except as
herein set forth, to use or devote the Premises or any part
thereof for any purpose other than the Permitted Uses.
5.4 Safety Appliances
Page 13 of 34
To keep the Premises and all portions thereof equipped with
all safety appliances required by law or ordinance or any other
regulation of any public authority, and to procure all licenses
and permits required and, if requested by Landlord, to do any
work so required, it being understood that the foregoing
provisions shall not be construed to broaden in any way Tenant's
Permitted Uses.
5.5 Assignment; Sublease
Not without the prior consent of Landlord, which consent
shall not be unreasonably withheld or delayed, to assign,
mortgage, pledge or otherwise transfer this Lease or to make any
sublease, or to permit occupancy of the Premises or any part
thereof by anyone other than Tenant; any assignment or sublease
made without such consent shall be void (any assignment, sale or
transfer of any ownership interest in Tenant, beneficially or of
record, which results in the transfer of control of Tenant to
any entity other than inTEST Corporation, or an entity
controlled by controlling or under common control with inTEST
Corporation shall constitute an assignment); as additional rent,
Tenant shall reimburse Landlord promptly for reasonable legal
and other expenses incurred by Landlord in connection with any
request by Tenant for consent to assignment or subletting; no
assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint
and several with the assignee); and no consent to any of the
foregoing in a specific instance shall operate as a waiver in
any subsequent instance. A transfer of any ownership interest in
Tenant or issuance of any additional ownership interests in
Tenant which results in the transfer of control of Tenant to any
entity other than inTEST Corporation, or an entity controlled by
controlling or under common control with inTEST Corporation
shall constitute an assignment of this Lease. In the event of
any unreasonable withholding of consent, Landlord's sole
liability will be an order to grant its consent and Landlord
shall not be liable in any event for any consequential or other
damages.
In the event that any assignee or subtenant pays to Tenant
any amounts in excess of the Annual Base Rent and additional
rent then payable hereunder, or pro rata portion thereof on a
square footage basis for any portion of the Premises, Tenant
shall, after subtracting from such excess the reasonable
expenses incurred by Tenant in such assignment or subletting,
promptly pay one hundred (100%) percent of said excess to
Landlord as and when received by Tenant.
Notwithstanding the foregoing, it is hereby expressly
understood and agreed however, that Landlord's consent shall not
be required in connection with (1) the sale of all or
substantially all of the assets of Tenant, if Tenant is a
corporation, or (2) the assignment or transfer of this Lease,
and the term and estate hereby granted, to any corporation or
other entity controlled by, controlling or under common control
with Tenant or to any corporation into which Tenant is merged or
with which Tenant is consolidated, provided that such
corporation or other entity shall have a net worth at least
equal to that of Tenant immediately prior to such merger or
consolidation (such corporation being hereinafter called
"Assignee"), and is upon the express condition that, with
respect to a sale, merger or consolidation, Assignee and Tenant
Page 14 of 34
shall promptly execute, acknowledge and deliver to Landlord an
agreement in form and substance satisfactory to Landlord whereby
Assignee shall agree to be independently bound by and upon all
the covenants, agreements, terms, provisions and conditions set
forth in this Lease on the part of Tenant to be performed, and
whereby Assignee shall expressly agree that the provisions of
this Section 5.6 shall, notwithstanding such assignment or
transfer, continue to be binding upon it with respect to all
future assignments and transfers.
The listing of any name other than that of Tenant, whether
on the doors in the Building or on the Building directory, or
otherwise, shall not operate to vest in any such other person,
firm or corporation any right or interest in this Lease or in
the Premises or be deemed to effect or evidence any consent of
Landlord.
If this Lease be assigned, or if the Premises or any part
thereof be sublet or occupied by anybody other than Tenant,
Landlord may, at any time and from time to time, collect rent
and other charges from the assignee, subtenant or occupant, and
apply the net amount collected to the rent and other charges
herein reserved, then due and hereafter becoming due, but no
assignment, subletting, occupancy or collection shall be deemed
a waiver of this covenant, or the acceptance of the assignee,
subtenant or occupant as a tenant, or a release of Tenant from
the liability and obligation of further performance by Tenant of
covenants on the part of Tenant herein contained. Any consent by
Landlord to a particular assignment or subletting shall not in
any way diminish the prohibition stated in the first sentence of
this Section 5.6 or the continuing liability of the Tenant named
in Article 1 as the party-Tenant under this Lease. No assignment
or subletting or use of the Premises by an affiliate of Tenant,
or otherwise, shall affect the Permitted Uses for which the
Premises may be used as stated in Article 1.
5.6 Indemnity; Insurance
To defend with counsel first approved by Landlord, (which
approval shall not be unreasonably withheld) save harmless, and
indemnify Landlord from any liability for injury, loss, accident
or damage to any person or property, and from any claims,
actions, proceedings and expenses and costs in connection
therewith (including without limitation the defense thereof,
including reasonable counsel fees),(i) arising from (a) the
omission, fault, willful act, negligence or other misconduct of
Tenant, or of Tenant's employees, agents or contractors on or
about the Premises, or (b) from any use made or thing done or
occurring on the Premises not due to the omission, fault,
willful act, negligence or other misconduct of Landlord or of
Landlord's employees, agents, or contractors, or (ii) resulting
from the failure of Tenant to perform and discharge its
covenants and obligations under this Lease.
To maintain in responsible companies qualified to do
business, and in good standing in Massachusetts, (a) public
liability insurance covering the Premises insuring Landlord as
well as Tenant with limits which shall, at the commencement of
the Term, be at least equal to those stated in Article 1 and
from time to time during the Term shall be for such higher
limits, if any as are customarily carried in the ▇▇▇▇▇▇/▇▇▇▇▇▇▇
area with respect to similar properties; (b) Workmen's
Compensation Insurance with statutory limits covering all of
Page 15 of 34
Tenant's employees working in the Premises; (c) all risk
casualty insurance, with endorsement for difference in
conditions coverage, debris removal and demolition, in an amount
at least equal to the replacement cost new of the Building and
other improvements on the Premises; and (d) insurance protecting
Landlord against abatement or loss of rent in an amount equal to
at least all the Annual Base Rent and Additional Rent payable
for one (1) year under Article II, and to deposit promptly with
Landlord certificates for such insurance, and all renewals
thereof bearing the endorsement that the policies will not be
cancelled until after thirty (30) days' written notice to
Landlord. If Tenant fails, neglects or omits to give Landlord
certificates of renewal as set forth above, Landlord may, but
shall not be obligated to, obtain renewals of all such
insurance, at Tenant's cost and expense, and Tenant shall pay to
Landlord, upon demand, the cost expended by Landlord plus
interest thereon at the highest rate permitted by law, until the
full sum plus such interest is repaid to Landlord in full.
5.7 Personal Property at Tenant's Risk
That all of the furnishings, fixtures, equipment, effects
and property of every kind, nature and description of Tenant,
and all persons claiming by, through or under Tenant which,
during the continuance of this Lease or any occupancy of the
Premises by Tenant or anyone claiming under Tenant, may be on
the Building or on the Lot, shall be at the sole risk and hazard
of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, or other pipes,
by theft or from any other cause, no part of said loss or damage
is to be charged to or be borne by Landlord, except that
Landlord shall in no event be indemnified or held harmless or
exonerated from any liability to Tenant or to any person, for
any injury, loss, damage or liability to the extent such
indemnity, hold harmless or exoneration is prohibited by law,
unless, subject to Section 8.8 hereof, such damage or loss is
due to the negligence or willful misconduct of Landlord or those
for whom Landlord is legally responsible, in which case Landlord
shall bear loss or damage only to "ordinary office/light
manufacturing property" (as hereinafter defined) subject to
Section 8.8 hereof. For the purpose of this Section 5.7,
"ordinary office/light manufacturing property" shall mean
furniture, equipment and other tangible personal property of the
kind and quantity which may customarily be expected to be found
within comparable office/light manufacturing buildings in the
▇▇▇▇▇▇/▇▇▇▇▇▇▇ area, and excluding any unusually valuable or
exotic property, works of art, and the like.
5.8 Right of Entry
To permit Landlord and its agents: to examine the Premises
at reasonable times and, if Landlord shall so elect, to make any
repairs or replacements Landlord may deem necessary and to show
the Premises to prospective Tenants during the twelve months
preceding expiration of the Term and to prospective purchasers
and mortgagees at all reasonable times. Except in the event of
an emergency, Landlord shall give reasonable notice of any such
entry upon the Premises and shall use reasonable efforts to
minimize any interference with Tenant's use of the Premises
arising from any entry into the Premises by Landlord.
Page 16 of 34
Without incurring any liability to Tenant, Landlord may
permit access to the Premises and open the same, whether or not
Tenant shall be present, upon any demand or any receiver,
trustee, assignee for the benefit of creditors, sheriff,
▇▇▇▇▇▇▇▇ or court officer entitled to, or reasonably purporting
to be entitled to, such access for the purposes of taking
possession of, or removing, Tenant's property or for any other
lawful purposes (but this provision and any action by Landlord
hereunder shall not be deemed a recognition by Landlord that the
person or official making such demand has any right or interest
in or to this Lease, or in or to the premises), or upon demand
of any representation of the fire, police, building, sanitation
or other department of the city, state or federal governments.
5.9 Floor Load; Prevention of Vibration and Noise
Not to place a load upon the Premises exceeding an average
rate of 125 pounds of live load per square foot of floor area
(partitions shall be considered as part of the live load);
Landlord reserves the right to prescribe the weight and position
of all safes, files and heavy equipment which Tenant desires to
place in or on the Premises so as properly to distribute the
weight thereof; Tenant's business machines and mechanical
equipment which cause vibration or noise that may be transmitted
to the Building structure and/or other Building tenant's
premises shall be so installed, maintained and used by Tenant as
to eliminate such vibration or noise.
5.10 Personal Property Taxes
To pay promptly when due all taxes which may be imposed
upon Tenant's personal property (including without limitation,
fixtures and equipment) in or on the Premises to whomever
assessed.
5.11 Payment of Litigation Expenses
As additional rent, to pay all reasonable costs, counsel
and other fees incurred by either party in connection with the
successful enforcement by such party of any obligations of the
other party under this Lease. No party shall be obligated to
make any payment to the other party of any attorney's fees
incurred by the party claiming same unless judgment is entered
(final, beyond appeal) in favor of the party seeking
reimbursement in the lawsuit relating to such fees.
5.12 Compliance with Insurance Regulations
Not to do or permit to be done any act or thing upon the
Premises which will invalidate or be in conflict with the terms
of the Massachusetts standard form of fire, boiler, sprinkler,
water damage or other insurance policies covering the Premises
and the fixtures and property therein or thereon; Tenant shall,
at its own expense, comply with all rules, regulations, and
requirements of the National Board of Fire Underwriters or any
state or other similar body having jurisdiction, and shall not
knowingly do or permit anything to be done in or upon the
Premises in a manner which increases the rate of fire insurance
upon the Building or Lot or on any property or equipment located
therein or thereon.
ARTICLE VI
Page 17 of 34
CASUALTY AND TAKING
6.1 Termination or Restoration; Rent Adjustment
In case during the Term all or any material part of the
Building or the Lot are damaged materially by fire or other
casualty or by action of public or other authority in
consequence thereof, or are taken by eminent domain or Landlord
receives compensable damage by reason of anything lawfully done
in pursuance of public or other authority ("Taking"), Landlord
shall use best efforts, subject to the then applicable statutes,
building codes, zoning ordinances, and regulations of any
governmental authority and at the expense of Landlord (but only
to the extent of insurance proceeds made available to Landlord,
or proceeds made available to Landlord through a subsequent
refinancing of the Building which is closed within ninety (90)
days of the casualty or Taking, provided however, that in no
event shall Landlord have any obligation to refinance the
Building in order to make such proceeds available) to restore
the Premises, or in case of Taking what may remain thereof
(excluding in case of both casualty and Taking any items
installed or paid for by Tenant which Tenant is required to
remove pursuant to Section 5.2), restore the Premises to its
condition prior to such fire, casualty or Taking (subject to any
applicable building codes or applicable statutes and
regulations) and, in the case of a Taking, a just proportion
of the Annual Base Rent and additional rent shall be abated from
the date of such Taking until the Premises or such remainder
shall have been restored by Landlord in case of Taking which
permanently reduces the area of the Premises, a just proportion
of the Annual Base Rent and additional rent shall be abated for
the remainder of the Term.
If any portion of the Premises shall be damaged or
destroyed by fire or other casualty or by a Taking to the extent
that the operation of Tenant's business in the Premises in the
normal course is materially adversely affected, and if Landlord
shall fail to substantially restore the Premises to its
condition prior to such fire, casualty or Taking (subject to any
applicable building codes or applicable statutes and
regulations) within one hundred eighty (180) days after the date
thereof for any reason other than Tenant's fault, Tenant may
terminate this Lease by giving Landlord written notice as
follows:
(1) Said notice shall be given after said one hundred eighty
(180) day period.
(2) Said notice shall set forth an effective date which is
not earlier than thirty (30) days after Landlord receives
said notice.
(3) If said restoration is substantially complete on or
before the date thirty (30) days which thirty (30)-day
period shall be extended by the length of any delays caused
by Tenant or Tenant's contractors), after Landlord receives
such notice, said notice shall have no further force and
effect.
(4) If said restoration is not substantially complete on or
before the date thirty (30) days (which thirty (30) day
period shall be extended by the length of any delays caused
by Tenant or Tenant's contractors) after Landlord receives
Page 18 of 34
such notice, the Lease shall terminate as of said effective
date.
It is agreed that the Tenant shall not be entitled to any
abatement of rent, nor shall its obligations hereunder be
terminated during the term hereof, notwithstanding any
destruction or damage to the Premises, by any cause whatsoever.
However, if the amounts required to be paid for such rent are
received by Landlord from any Tenant's insurance proceeds, no
additional amounts for such items need be paid separately by
Tenant.
The foregoing provisions of this section are subject to the
rights of any mortgagee holding a mortgage on the Buildings or
any portions thereof.
6.2 Eminent Domain
Landlord reserves to itself any and all rights to receive
awards made for damages to the Premises and Building and Lot and
the leasehold hereby created, or any one or more of them, or the
loss thereof, accruing by reason of exercise of eminent domain
or by reason of anything lawfully done in pursuance of public or
other authority, including conveyance in lieu of eminent domain.
Tenant hereby releases and assigns to Landlord all Tenant's
rights to such awards, acknowledges and agrees that Tenant has
no, and shall have no, right or interest in and to any such
awards or any portion thereof or the right to any other
permitted award that would reduce the award to which the
Landlord would otherwise be entitled and further covenants to
deliver such further assignments and assurances thereof as
Landlord may from time to time request. Tenant hereby
irrevocably designates and appoints Landlord as its attorney-in-
fact to execute and deliver in Tenant's name and behalf all such
further assignments thereof.
6.3 Temporary Taking
In the event of taking of the Premises or any part thereof
for temporary use ("Temporary Taking"), (i) this Lease shall be
and remain unaffected thereby and rent shall not ▇▇▇▇▇, and (ii)
Tenant shall be entitled to receive for itself such portion or
portions of any award made for such use with respect to the
period of the taking which is within the Term, provided that if
such taking shall remain in force at the expiration or earlier
termination of this Lease, Tenant shall then pay to Landlord a
sum equal to the reasonable cost of performing Tenant's
obligations under Section 5.2 with respect to surrender of the
Premises and upon such payment shall be excused from such
obligations. Notwithstanding anything to the contrary herein
contained, in the event that the Premises or any part thereof,
are taken for a period of ninety (90) consecutive days or more,
and such taking materially adversely interferes with Tenant's
use of the Premises, such taking shall be deemed to be a Taking,
and not a Temporary Taking, for the purposes of Section 6.1.
6.4 Termination Upon Condemnation
(i) If all of the Premises are taken by a condemnation; or
(ii) if any part of the Premises is taken by a condemnation and
the remainder thereof is insufficient in Tenant's reasonable
opinion, for the reasonable operation of Tenant's business,
Page 19 of 34
then, in any such event, upon written notice given by Tenant
within thirty (30) days of the condemnation this Lease shall
terminate and all obligations hereunder shall cease as of the
date upon which possession is taken by the condemnor and the
Annual Base Rent and additional rent herein reserved shall be
apportioned and paid in full by Tenant to Landlord to that date
and all rent prepaid for periods beyond that date shall be
forthwith repaid by Landlord to Tenant.
ARTICLE VII
DEFAULT
7.1 Events of Default
If (a) Tenant shall neglect or fail to perform or observe
any of Tenant's covenants or agreements herein, including (x)
the obligation to pay, when due, Annual Base Rent or additional
rent, and such failure continues, in the case of Annual Fixed
Rent or additional rent, for more than ten (10) days, or (y) in
any other case, for more than thirty (30) days after receipt of
written notice from Landlord, and such additional time, if any,
as is reasonably necessary to cure the default if the default is
of such a nature that it cannot reasonably be cured in thirty
(30) days, provided however, that no such notice need be given
and no such default shall be curable if on two (2) prior
occasions within the same calendar year there had been a default
which had been cured after notice thereof had been given by
Landlord to Tenant as herein provided; or if Tenant (b) is not
paying its debts as such debts become due, becomes insolvent,
seeks relief under any chapter of the U.S. Bankruptcy Code (or
any insolvency or similar law of any jurisdiction), or (c)
proposes any dissolution, liquidation, composition, financial
reorganization or re-capitalization with creditors; or (d) makes
an assignment or trust mortgage for the benefit of creditors or
(e) if a receiver, trustee, custodian or similar agent is
appointed or takes possession with respect to any property or
business of Tenant, or (f) any event shall occur or any
contingency shall arise whereby this Lease, or the term and
estate thereby created, would (by operation of law or otherwise)
devolve upon or pass to any person, firm or corporation other
than Tenant, except as expressly permitted under Section 5.6
hereof then, in any such case, whether or not the Term shall
have begun, Landlord may immediately, or at any time while such
default exists and without further notice, terminate this Lease
by entry by Landlord or upon the giving of notice to Tenant, and
this Lease shall come to an end as fully and completely as if
such date were the date herein originally fixed for the
expiration of the Term, and Tenant shall then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
7.2 Damages
Upon the termination of this Lease under the provisions of
this Section 7, then Tenant shall pay to Landlord the rent and
other charges payable by Tenant to Landlord up to the time of
such termination, shall continue to be liable for any preceding
breach of covenant, and in addition, shall pay to Landlord as
damages, at the election of Landlord either: (x) the amount,
discounted to present value, by which, at the time of the
termination of this Lease (or at any time thereafter if Landlord
shall have initially elected damages under clause (y), below),
Page 20 of 34
(i) the aggregate of the rent and other charges projected over
the period commencing with such termination and ending on the
Expiration Date as stated in Section 1.1 exceeds (ii) the fair
market rental value of the premises for such period; or: (y)
amounts equal to the rent and other charges which would have
been payable by Tenant had this Lease not been so terminated,
payable upon the due dates therefore specified herein following
such termination and until the Expiration Date as specified in
Section 1.1, provided, however, if Landlord shall re-let the
Premises during such period, that Landlord shall credit Tenant
with the net rents received by Landlord from such re-letting,
such net rents to be determined by; first deducting from the
gross rents, as and when received by Landlord from such re-
letting the expenses incurred or paid by Landlord in terminating
this Lease, as well as the expenses of re-letting, including
altering and preparing the Premises for new tenants,
concessions, brokers' commissions, and all other similar and
dissimilar expenses properly chargeable against the Premises and
the rental therefrom, it being understood that any such re-
letting may be for a period equal to or shorter or longer than
the remaining term of this Lease; and provided, further, that
(i) in no event shall Tenant be entitled to receive any excess
of such net rents over the sums payable by Tenant to Landlord
hereunder and (ii) in no event shall Tenant be entitled in any
suit for the collection of damages pursuant to this clause to a
credit in respect of any rents from a re-letting except to the
extent that such net rents are actually received by Landlord
prior to the commencement of such suit. If the Premises or any
part thereof should be re-let in combination with other space,
then proper apportionment on a square foot area basis shall be
made of the rent received from such re-letting and of the
expenses of re-letting.
In calculating the rent and other charges under clause (x),
above, there shall be included, in addition to the Annual Base
Rent, any additional rent and all other considerations agreed to
be paid or performed by Tenant, on the assumption that all such
amounts and considerations would have remained constant (except
as herein otherwise provided) for the balance of the full term
hereby granted.
Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall be
deemed to require Landlord to postpone suit until the date when
the term of this Lease would have expired if it had not been
terminated hereunder.
Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any sums
or damages to which, in addition to the damages particularly
provided above, Landlord may lawfully be entitled by reason of
any default hereunder on the part of Tenant.
Landlord agrees to use reasonable efforts to re-let the
Premises after Tenant vacates the Premises in the event that the
Lease is terminated based upon a default by Tenant hereunder.
The listing of the Premises with a broker or brokers shall be
deemed to constitute "reasonable efforts".
Nothing contained in this Lease shall limit or prejudice
the right of Landlord to prove for and obtain in proceedings for
bankruptcy or insolvency by reason of the termination of this
Page 21 of 34
Lease, an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or
not the amount be greater, equal to, or less than the amount of
the loss or damages referred to above.
ARTICLE VIII
MISCELLANEOUS
8.1 Notice of Lease; Consent of Approval; Notices; Bind and
Inure
The titles of the Articles are for convenience only and are
not to be considered in construing this Lease. Tenant agrees
not to record this Lease, but upon request of either party both
parties shall execute and deliver a notice of this Lease in form
appropriate for recording or registration, and if this Lease is
terminated before the term expires, an instrument in such form
acknowledging the date of termination. Whenever any notice,
approval, consent, request or election is given or made pursuant
to this Lease it shall be in writing. Communications and
payments shall be addressed if to Landlord at Landlord's
Original Address or at such other address as may have been
specified by prior notice to Tenant, and if to Tenant, at
Tenant's Original Address or at such other place as may have
been specified by prior notice to Landlord. Any communication
so addressed shall be deemed duly given when mailed by
registered or certified mail, return receipt requested. If
Landlord by notice to Tenant at any time designates some other
person to receive payments or notices, all payments or notices
thereafter by Tenant shall be paid or given to the person
designated until notice to the contrary is received by Tenant
from Landlord. The obligations of this Lease shall run with the
land, and this Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors
and assigns, except that only the original Landlord named herein
shall be liable for obligations accruing before the beginning of
the Term, and thereafter the original Landlord named herein and
each successive owner of the Premises shall be liable only for
obligations accruing during the period of ownership.
8.2 Landlord's Failure to Enforce
The failure of Landlord to seek redress for violation of,
or to insist upon strict performance of, any covenant or
condition of this Lease, or with respect to such failure of
Landlord to enforce any of the Rules and Regulations and
Landlord's Covenants referred to in Section 5.4, whether
heretofore or hereafter adopted by Landlord, shall not be deemed
a waiver of such violation nor prevent a subsequent act which
would have originally constituted a violation. The receipt by
Landlord of Annual Base Rent or additional rent with knowledge
of the breach of any covenant of this Lease shall not be deemed
a waiver of such breach. No provision of this Lease shall be
deemed to have been waived by Landlord, or by Tenant, unless
such waiver be in writing signed by the party to be charged. No
consent or waiver, express or implied, by Landlord or Tenant, to
or of any breach of any agreement or duty shall be construed as
a waiver or consent to or of any other breach of the same or any
other agreement or duty.
8.3 Acceptance of Partial Payments of Rent; Delivery of Keys
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No acceptance by Landlord of a lesser sum than the Annual
Base Rent and additional rent then due shall be deemed to be
other than on account of the earliest installment of such rent
due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy in this
Lease provided. The delivery of keys to any employee of Landlord
or to Landlord's agent or any employee thereof shall not operate
as a termination of this Lease or surrender of the Premises.
8.4 Cumulative Remedies
The specific remedies to which Landlord may resort under
the terms of this Lease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which
it may be lawfully entitled in case of any breach or threatened
breach by Tenant of any provisions of this Lease. In addition to
other remedies provided in this Lease, Landlord shall be
entitled to the restraint by injunction of the violation or
attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease or to a decree compelling
specific performance of any such covenants, conditions or
provisions.
8.5 Partial Invalidity
If any term of this Lease, or the application thereof to
any person or circumstances, shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application
of such term to persons or circumstances other than those as to
which it is invalid or unenforceable shall not be affected
thereby, and each term of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
8.6 Self-Help
(a) If Tenant shall at any time default in the performance
of any obligation under this Lease, Landlord shall have the
right, upon prior written notice to Tenant, but shall not be
obligated, to enter upon the Premises and to perform such
obligation notwithstanding the fact that no specific provision
for such substituted performance by Landlord is made in this
Lease with respect to such default. In performing such
obligation, Landlord may make any payment of money or perform
any other act. All sums so paid by Landlord (together with
interest at the rate of 2 1/2 percentage points over the then
prevailing prime rate in New York as set by Chase Manhattan Bank
in New York plus Landlord's fee of fifteen (15%) percent of said
sums), but not in excess of any amounts permitted by law, and
all necessary incidental costs and expenses in connection with
the performance of any such act by Landlord, shall be deemed to
be additional rent under this Lease and shall be payable to
Landlord immediately on demand. Landlord may exercise the
foregoing rights without waiving any other of its rights or
releasing Tenant from any of its obligations under this Lease.
(b) Except as otherwise provided in this Lease in the event
Landlord fails to perform its obligations hereunder and such
failure continues for at least thirty (30) days after receipt by
Landlord of written notice from Tenant, Tenant may (but shall
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not be obligated to) perform such obligations and charge
Landlord for all reasonable costs and expenses incurred in
connection therewith.
8.7 Parties Estoppel Certificates
Each party agrees from time to time, upon not less than ten
(10) days' prior written request by the other party, to execute,
acknowledge and deliver to the requesting party a statement in
writing certifying that this Lease is unmodified and in full
force and effect and that, in the case of Tenant, has no
defenses, offsets or counterclaims against its obligations to
pay the Annual Base Rent, and additional rent and, as to both
parties, to perform its other covenants under this Lease and
that there are no uncured defaults of Landlord or Tenant under
this lease (or, if there have been any modifications that the
same is in full force and effect as modified and stating the
modifications and, if there are any defenses, offsets,
counterclaims, or defaults, setting them forth in reasonable
detail), and the dates to which the Annual Base Rent, additional
rent and other charges have been paid. Any such statement
delivered pursuant to this Section 8.7 may be relied upon by a
prospective purchaser or mortgagee of the Premises or any
prospective assignee of any mortgagee of the Premises. Time is
of the essence in respect of any such requested certificate,
both parties hereby acknowledging the importance of such
certificates in mortgage financing arrangements, prospective
sale and the like.
8.8 Waiver of Subrogation
In any case in which Tenant shall be obligated to pay to
Landlord any loss, cost, damage, liability, or expense suffered
or incurred by Landlord, Landlord shall allow to Tenant as an
offset against the amount thereof (i) the net proceeds of any
insurance collected by Landlord for or on account of such loss,
cost, damage, liability or expense, provided that the allowance
of such offset does not invalidate or prejudice the policy or
policies under which such proceeds were payable.
In any case in which Landlord or Landlord's agents shall be
obligated to pay to Tenant any loss, cost, damage, liability or
expense suffered or incurred by Tenant, Tenant shall allow to
Landlord and Landlord's agents as an offset against the amount
thereof (i) the net proceeds of any insurance collected by
Tenant for or on account of such loss, cost, damage, liability,
or expense, provided that the allowance of such offset does not
invalidate the policy or policies under which such proceeds were
payable and (ii) the amount of any loss, cost, damage, liability
or expense caused by a peril, covered by fire insurance with the
broadest form of property insurance generally available on
property in buildings of this type, whether or not actually
procured by Tenant.
The parties hereto shall each procure an appropriate clause
in, or endorsement on, any property insurance policy covering
the Premises and personal property, fixtures and equipment
located thereon and therein, pursuant to which the insurance
companies waive subrogation or consent to a waiver of right of
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recovery. Having obtained such clauses and/or endorsements each
party hereby agrees that it will not make any claim against or
seek to recover from the other for any loss or damage to its
property or the property of others resulting from fire or other
perils covered by such property insurance.
8.9 All Agreements Contained
This Lease contains all of the agreements of the parties
with respect to the subject matter thereof and supersedes all
prior dealings between them with respect to such subject matter.
Tenant acknowledges that neither Landlord nor any of its
purported representatives or agents has made (and Landlord
hereby specifically disclaims any and all) representations and
warranties of any kind or character as to the condition of the
Premises, either express or implied, including without
limitation, warranties of fitness for any purposes or any
particular use or commercial habitability.
8.10 Brokerage
Landlord and Tenant each warrant that they have had no
dealings with any broker or agent other than ▇▇▇▇▇▇▇▇ & Grew
Incorporated and Corporate Facilities Group LLC in connection
with the Lease and covenant to defend, hold harmless and
indemnify each other from and against any and all cost, expense
or liability, including the defense thereof including reasonable
legal fees and expenses, if any such warranty proves false.
Landlord hereby agrees to pay the brokerage fees due to ▇▇▇▇▇▇▇▇
& Grew Incorporated pursuant to a separate written agreement.
8.11 Submission Not an Option
The submission of this Lease or a summary of some or all of
its provisions for examination does not constitute a reservation
of or option for the Premises or an offer to lease.
8.12 Applicable Law
This Lease, and the rights and obligations of the parties
hereto, shall be construed and enforced in accordance with the
laws of the Commonwealth of Massachusetts.
8.13 Waiver of Jury Trial
Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the
parties hereto against the other, on or in respect to any matter
whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant hereunder,
Tenant's use or occupancy of the Premises, and/or claim of
injury or damages.
8.14 Holdover
If Tenant or anyone claiming under Tenant shall remain in
possession of the Premises or any part thereof after the
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expiration or prior termination of the term of this Lease
without any agreement in writing between Landlord and Tenant
with respect thereto, then, prior to the acceptance of any
payments for rent or use and occupancy by Landlord, the person
remaining in possession shall be deemed a tenant-at-sufferance
Whereas the parties hereby acknowledge that Landlord may need
the Premises after the expiration or prior termination of the
term of the Lease for other tenants and that the damages which
Landlord may suffer as the result of Tenant's holding over
cannot be determined as of the date of this Lease, in the event
that Tenant so holds over, Tenant shall pay to Landlord in
addition to all rental and other charges due and accrued under
the Lease prior to the date of termination, charges (based upon
the fair market rental value of the Premises) for use and
occupation of the Premises thereafter and, in addition to such
sums and any and all other rights and remedies which Landlord
may have at law or in equity, an additional use and occupancy
charge in the amount of two hundred percent (200%) of either the
Annual Base Rent and other charges calculated (on a daily basis)
at the highest rate payable under the terms of this Lease, but
measured from the day on which Tenant's hold-over commenced and
terminating on the day on which Tenant vacates the Premises or
the fair market rental value of the Premises for such period,
whichever is greater. Notwithstanding the foregoing, Landlord
shall have the right to elect to recover any other damages which
Landlord is permitted to recover under this Lease in lieu of
said liquidated damages by giving Tenant written notice of such
election. From and after the date on which Landlord gives Tenant
such notice, said liquidated damages shall cease to accrue and
Tenant shall be liable to Landlord for any damages recoverable
under this Lease which accrue thereafter.
8.15 Requirements of Law - Fines and Penalties
Tenant at its sole expense shall comply with all laws,
rules, orders and regulations, including, without limitation,
all energy-related requirements, of Federal, State, County and
Municipal Authorities and with any direction of any public
officer or officers, pursuant to law, which shall impose any
duty upon Landlord or Tenant with respect to or arising out of
Tenant's use or occupancy of the Premises. Tenant shall
reimburse and compensate Landlord for all expenditures made by,
or damages or fines sustained or incurred by, Landlord due to
nonperformance or noncompliance with or breach or failure to
observe any item, covenant, or condition of this Lease upon
Tenant's part to be kept, observed, performed or complied with.
If Tenant receives notice of any violation of law, ordinance,
order or regulation applicable to the Premises, it shall give
prompt notice thereof to Landlord.
8.16 Inability to Perform - Exculpatory Clause
This Lease and the obligations of Tenant to pay rent
hereunder and perform all the other covenants, agreements,
terms, provisions and conditions hereunder on the part of Tenant
to be performed shall in no way be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations
under this Lease or is unable to supply or is delayed in
supplying any service expressly or impliedly to be supplied or
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is unable to make or is delayed in making any repairs,
replacement, additions, alterations, improvements or decorations
or is unable to supply or is delayed in supplying any equipment
or fixtures if Landlord is prevented or delayed from so doing by
reason of strikes or labor troubles or any other similar or
dissimilar cause whatsoever beyond Landlord's reasonable
control, including but not limited to, governmental preemption
in connection with a national emergency or by reason of any
rule, order or regulation of any department thereof of any
governmental agency or by reason of the conditions of supply and
demand which have been or are affected by war, hostilities or
other similar or dissimilar emergency. In each such instance of
inability of Landlord to perform, Landlord shall exercise
reasonable diligence to eliminate the cause of such inability to
perform.
Tenant shall neither assert nor seek to enforce any claim
or breach of this Lease against any of Landlord's assets other
than Landlord's equity interest in the Building and in the
uncollected rents, issues and profits thereof, and Tenant agrees
to look solely to such interest for the satisfaction of any
liability of Landlord or Landlord's agents under this Lease or
otherwise, it being specifically agreed that in no event shall
Landlord (or any of the officers, trustees, directors, partners,
beneficiaries, joint venturers, members, stockholders or other
principals, agents or representatives, and the like, disclosed
or undisclosed, thereof) ever be personally liable for any such
liability. This paragraph shall not limit any right that Tenant
might otherwise have to obtain injunctive relief against
Landlord or to take any other action which shall not involve the
personal liability of Landlord to respond in monetary damages
from Landlord's assets other than the Landlord's interest in the
Building, as aforesaid.
In no event shall Landlord (or any of the officers,
trustees, directors, partners, beneficiaries, joint venturers,
members, managers, stockholders or other principals or
representatives and the like, disclosed or undisclosed, thereof)
ever be liable for consequential damages.
8.17 Parties Bound - Seisin of Title
The covenants, agreements, terms, provisions and conditions
of this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in
each instance where a party hereto is named or referred to,
except that no violation of the provisions of Section 5.6 hereof
shall operate to vest any rights in any successor or assignee of
Tenant and that the provisions of this Section 8.17 shall not be
construed as modifying the default provisions contained in
Article VII hereof.
If, in connection with or as a consequence of the sale,
transfer or other disposition of Landlord's interest in the
Premises, any party who is Landlord ceases to be the owner of
the reversionary interest in the Premises, Landlord shall be
entirely freed and relieved from the performance and observance
thereafter of all covenants and obligations hereunder on the
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part of Landlord to be performed and observed, it being
understood and agreed in such event (and it shall be deemed and
construed as a covenant running with the land) that the person
succeeding to Landlord's ownership of said reversionary interest
shall thereupon and thereafter assume, and perform and observe,
any and all of such covenants and obligations of Landlord.
8.18 Security Deposit.
The Security Deposit shall be paid by Tenant within five
(5) business days after execution of this Lease and shall be
held by Landlord as security for the performance by Tenant of
its covenants and agreements under this Lease. In the event that
cash is, at any time, held as the Security Deposit hereunder,
the holder thereof shall hold such cash in an interest bearing
segregated account for the benefit of the Tenant subject only to
the terms and conditions of this Lease. Upon the occurrence of
any default hereunder and the expiration of any grace period for
the cure thereof without such cure, Landlord may use such
portion of the Security Deposit as is necessary to cure such
default. In the event of any such draw down of the Security
deposit, Tenant shall replace the amount drawn down within ten
(10) days of receipt of notice thereof, by delivery of a sight
draft Letter of credit in substantially the form of the Letter
of Credit initially delivered hereunder or cash in the amount
drawn. At any time Landlord is holding cash as the Security
Deposit hereunder, Tenant shall have the right, in accordance
with the terms hereof, to replace such cash with a sight draft
Letter of Credit from a bank acceptable to Landlord and which
provides that draw downs may be made solely upon submission of a
statement from a representative of Landlord stating that Tenant
is in default under its Lease beyond any grace period and
Landlord is entitled to the amount claimed. Any Letter of Credit
shall have a term of not less than one (1) year and a
replacement Letter of Credit from a bank acceptable to Landlord
shall be delivered to Landlord at least thirty (30) days prior
to any expiration of any Letter of Credit or Landlord may draw
down the full proceeds of the Letter of Credit and hold the cash
as collateral security for Tenant's obligations under this
Lease. Upon replacement of cash with a Letter of Credit meeting
the Letter of Credit requirements set forth above, the Landlord
shall return the cash to Tenant. If Landlord shall transfer its
interest in the Premises, Landlord shall assign the Security
Deposit to the transferee. Any balance of the Security Deposit
remaining at the end of the Term after deduction of amounts owed
by Tenant hereunder shall be returned to Tenant within thirty
(30) days after the expiration of this Lease.
ARTICLE IX
RIGHTS OF PARTIES HOLDING PRIOR INTERESTS
9.1 Lease Subordinate
This Lease shall be subject and subordinate to any ground
or underlying lease or leases or any mortgage or mortgages now
or hereafter on the Lot or Building, or both, or any portions
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thereof, which are separately and together hereinafter in this
Article IX referred to as "the mortgaged premises", and to each
advance made or hereafter to be made under any mortgage(s), and
to all renewals, modifications, consolidation, replacements and
extensions thereof and all substitutions therefor. Tenant
acknowledges that, where applicable, any consent or approval
hereafter given by Landlord may be subject to the further
consent or approval of the holder of any such mortgage or lessor
under any ground or underlying lease; and the failure, delay or
refusal of such holder or lessor to give such consent or
approval shal1, notwithstanding anything to the contrary in this
Lease contained, constitute reasonable justification for
Landlord's withholding its consent or approval.
Landlord shall obtain from its present mortgagee of the
Premises a subordination, non-disturbance and attornment
agreement in such mortgagee's standard form, providing that,
among other things, for this subordination of this Lease to the
lien of such mortgage, providing for the Tenant to attorn to
such mortgage or its nominee, designee or successor in the event
of any foreclosure of its mortgage.
The foregoing subordination as it pertains to mortgages
hereafter made (which term includes any agreement modifying any
mortgage now in existence or hereafter made) is conditioned upon
the agreement of the mortgagee, to be delivered by it to Tenant,
wherein the mortgagee agrees in substance that so long as Tenant
is not in default beyond any applicable grace period under this
Lease or under the agreement with such mortgagee (i) the Tenant
will not be disturbed in Tenant's possession of the premises
under the terms of the Lease by any holder of the mortgage; (ii)
Tenant will not be joined in any action or proceeding to
foreclose the mortgage by any holder thereof. The giving of
such agreement by the mortgagee may be conditioned by it on the
reciprocal agreement by the Tenant to attorn to the holder of
the mortgage should it become vested with the Landlord's
interest in the Premises.
Such agreement may also contain provisions, at the option
of the holder of the mortgage to the effect that:
In the event that mortgagee succeeds to the interest of
Landlord under the Lease, or title to the Premises, then
mortgagee and any Successor shall assume and be bound by the
obligations of Landlord under the Lease which accrue from and
after such party's succession to Landlord's interest in the
Leased Premises, but mortgagee such Successor shall not be: (i)
liable for any act or omission of any prior landlord (including
Landlord), except to the extent that any such act or omission
constitutes a default under the Lease which continues after
mortgagee or any Successor succeeds to the interest of Landlord
under the Lease; (ii) liable for the retention, application or
return of any security deposit to the extent not paid over to
mortgagee; (iii) subject to any offsets or defenses which Tenant
might have against any prior landlord (including Landlord); (iv)
bound by any rent or additional rent which Tenant might have
paid for more than the current month to any prior landlord
(including Landlord); (v) bound by any amendment or modification
of the Lease made without mortgagee's or such Successor's prior
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written consent; or (vi) obligated to cure any defaults of any
prior landlord under the Lease which occurred prior to the date
on which mortgagee or such Successor succeeded to Landlord's
interest under the Lease. Tenant will agree that any person or
entity which at any time hereafter becomes the landlord under
the Lease, including without limitation, mortgagee or any
Successor, shall be liable only for the performance of the
obligations of the landlord under the Lease which arise or exist
during the period of its or their ownership of the Premises and
shall not be liable for any obligations of the landlord under
the Lease which arise prior to or subsequent to such ownership.
Tenant shall further agree that any such liability shall be
limited to the interest of mortgagee or such Successor in the
Property, and Tenant shall not be able to enforce any such
liability against any other assets of mortgagee or such
Successor. Tenant will agree to give notice to mortgagee of any
default by Landlord under the Lease, specifying the nature of
such default, and thereupon mortgagee shall have a reasonable
right for a reasonable time (but not the obligation) to cure
such default, and (if Tenant is entitled to terminate the Lease
or ▇▇▇▇▇ any rent payable thereunder by reason of such default)
Tenant shall not terminate the Lease or ▇▇▇▇▇ the rent payable
thereunder by reason of such default unless and until it has
afforded mortgagee such time after mortgagee's receipt of such
notice to cure such default, including time to pursue
foreclosure and obtaining of possession. It is specifically
agreed that Tenant shall not require mortgagee to cure any
default which is not susceptible of cure by mortgagee.
Tenant will covenant and agree that: (i) Tenant shall not
pay any rent or additional rent under the Lease more than one
month in advance; (ii) Tenant shall have no right to appear in
any foreclosure action under the mortgage; (iii) Tenant shall
not amend, modify, cancel or terminate the Lease without
mortgagee's prior written consent, and any attempted amendment,
modification, cancellation or termination of the Lease without
such consent shall be of no force or effect as to mortgagee;
(iv) Tenant shall not voluntarily subordinate the Lease to any
lien or encumbrance (other than the mortgage) without
mortgagee's prior written consent.
9.2 Rights of Holder of Mortgage to Notice of Defaults by
Landlord and to Cure Same.
No act or failure to act on the part of Landlord which
would entitle Tenant under the terms of this Lease, or by law,
to be relieved of Tenant's obligations hereunder or to
terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease
unless (i) Tenant shall have first given written notice of
Landlord's act or failure to act to Landlord's mortgagees of
record, if any, specifying the act or failure to act on the part
of Landlord which could or would give basis to Tenant's rights;
and (ii) such mortgagees after receipt of such notice, have
failed or refused to correct or cure the condition complained of
within a reasonable time thereafter; but nothing contained in
this Section 9.2 shall be deemed to impose any obligation on any
such mortgagees to correct or cure any condition. "Reasonable
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time" as used above means and includes a reasonable time to
obtain possession of the mortgaged premises if the mortgagee
elects to do so provided mortgagee acts diligently and a
reasonable time to correct or cure the condition if such
condition is determined to exist. In the event of the
enforcement by any landlord under any such ground or underlying
leases or mortgagee under such mortgage(s) of any remedies
provided under such leases or mortgages or by law, the Tenant
will, upon request of any person succeeding to the interest of
the Landlord thereunder as a result of such enforcement,
automatically become the Tenant of said successor in interest
without change in the terms or other provisions of this Lease,
provided, however, that said successor in interest shall not be
bound by: (i) any payment of rent or additional rent for more
than one month in advance, except prepayments in the nature of
security for the performance by Tenant of its obligations under
this lease, or (ii) any amendment or modification of this lease
without the consent of said landlord under any such leases or
mortgagee under any such mortgages or such successor in
interest. Upon request by such successor in interest, Tenant
shall execute and deliver an instrument or instruments
confirming such attornment.
ARTICLE X
ENVIRONMENTAL COMPLIANCE
10.1 Environmental Conditions
The parties acknowledge that certain hazardous substances
have been detected in groundwater beneath the premises which may
require the Landlord to undertake response actions pursuant to
Environmental Laws. Landlord agrees to undertake all such
response actions required in accordance with Environmental Laws.
To the extent practicable, consistent with Landlord's
responsibilities pursuant to Environmental Laws, no such
response actions shall interfere with Tenant's use of the
Premises or the exercise of any Tenant's rights hereunder.
Within 14 days of receipt of any test results or other data that
document environmental conditions at the Premises, Landlord
shall forward copies of all such results or data to Tenant.
Landlord shall further provide Tenant with a copy of all
documents and/or correspondence which Landlord submits to or
receives from the Massachusetts Department of Environmental
Protection (or other environmental agency) with respect to
environmental conditions at the Premises within 14 days of
submittal or receipt.
10.2 Tenant's Covenants Regarding Environmental Compliance
(a) Except under conditions permitted by applicable law,
Tenant will not use, generate, manufacture, produce, store,
release, discharge or dispose of on, under or about the Premises
or transport to or from the Premises any Hazardous Substance (as
defined below) or allow any other person or entity to do so.
Page 31 of 34
(b) Tenant shall not, in Tenant's use or occupancy of the
Premises, cause or allow to occur any violation of Environmental
Law (as defined below).
(c) Tenant shall notify Landlord of any release of oil or
Hazardous Substances at the same time and in the same manner as
it notifies the appropriate government entity of the release but
in no event later than ten business days after Tenant learns of
the release.
(d) Tenant shall give written notice to Landlord within
five business days of:
(i) any proceeding or inquiry by any governmental
authority with respect to the presence of any Hazardous
Substance on the Premises or the migration thereof from or to
other property;
(ii) all claims made or threatened by any third party
against Tenant or the Premises relating to any loss or injury
resulting from any Hazardous Substance; and
(iii) Tenant's discovery of any occurrence or condition
on any real property adjoining or in the vicinity of the
Premises that could cause the Premises or any part thereof to be
subject to the restrictions on the ownership, occupancy,
transferability or use of the Premises under any Environmental
Law.
(e) Provided that such participation does not interfere
with Tenant's use and enjoyment of the Premises, Landlord shall
have the right to join and participate in, as a party if it so
elects, any legal proceedings or actions initiated with respect
to the Premises in connection with any Environmental Law.
(f) Tenant shall protect, indemnify and hold harmless
Landlord, its directors, officers, employees, members, agents,
successors and assigns from and against any and all loss,
damage, cost, expense or liability (including reasonable
attorney fees and costs) directly or indirectly arising out of
or attributable to Tenant's use, generation, manufacture,
production, storage, release, threatened release, discharge or
disposal (or arising out of or attributable to use, generation,
manufacture, production, storage, release, threatened release,
discharge or disposal by Tenant's invitees, contractors and
those having similar relationship to Tenant) of a Hazardous
Substance on, under or about the Premises including without
limitation (i) all foreseeable consequential damages and (ii)
the costs of any required or necessary repair, cleanup or
detoxification of the Premises and the preparation and
implementation of any closure, remedial or other required plans.
The foregoing environmental indemnity shall survive the
expiration or termination of this Lease and/or any transfer of
all or any portion of the Premises, or of any interest in this
Lease, and shall be governed by the laws of the United States of
America and of the Commonwealth of Massachusetts.
(g) In the event that any investigation, site monitoring,
containment, clean up, removal, restoration or other remedial
work of any kind or nature (the "Remedial Work") is required
under any applicable local, state or federal law or regulation,
any judicial order, or by any governmental or non-governmental
entity or person because of, or in connection with, the release
of a Hazardous Substance in or into the air, soil, ground water,
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surface water or soil, vapor at, on, about, under or within the
Premises (or any portion hereof) by the Tenant, Tenant shall
within thirty (30) days after written demand for performance
thereof by Landlord (or such shorter period of time as may be
required under any applicable law, regulation, order or
agreement), commence and thereafter diligently prosecute to
completion, all such Remedial Work. All such Remedial Work shall
be performed by contractors approved in advance by Landlord,
which approval shall not be unreasonably withheld, and under the
supervision of a consulting engineer approved by Landlord. All
costs and expenses of such Remedial Work shall be paid by Tenant
including, without limitation, Landlord's reasonable attorney
fees and costs incurred in connection with monitoring or review
of such Remedial Work. In the event Tenant shall fail to timely
commence, or cause to be commenced, or fail to diligently
prosecute to completion, such Remedial Work, Landlord may, but
shall not be required to, cause such Remedial Work to be
performed and all costs and expenses thereof, or incurred in
connection therewith, together with interest at the highest rate
permitted by law, shall become immediately due and payable as
additional rent to the Landlord from the Tenant.
(h) Prior to the termination of the lease, but after
Tenant has moved out of the Premises, Tenant shall, at Tenant's
cost, engage an engineer to perform a site assessment on the
Premises. Landlord shall approve Tenant's engineer and the scope
of the site assessment, which approval shall not be unreasonably
withheld. Such site assessment shall not reveal the presence of
any Hazardous Substance which arose out of, or was attributable
to Tenant's use of the Premises during the term of the Lease. If
any such Hazardous Substance shall be so present, all required
remedial action shall be performed immediately by licensed
personnel approved by Landlord at Tenant's sole cost and
expense.
10.3 Definitions:
(a) "Environmental Law" means any present and future
federal, state or local law, statute, ordinance, or regulation
pertaining to health, industrial hygiene, or the environmental
conditions on, under or about the Premises, including without
limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA") as amended,
42 U.S.C. Sections 9601 et seq., Mass. Gen. Laws C. 21E, the
"Massachusetts Contingency Plan", 310 CMR 40.000, and the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42
U.S.C. Sections 6901 et seq.
(b) The term "Hazardous Substance" includes without
limitation;
(i) Those substances included within the definitions
of "hazardous substances," or "solid waste" in CERCLA, RCRA, and
the Hazardous Materials Transportation Act, 49 U.S.C. Sections
1801 et seq., and in the regulations promulgated pursuant to said
laws;
(ii) Those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and
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amendments thereto) or by the Environmental Protection Agency
(or any successor agency) as hazardous substances (40 CFR Part
302 and amendments thereto);
(iii) Such other substances, materials and wastes which
are or become regulated under applicable local, state or federal
law, or the United States government, or which are classified as
hazardous or toxic under federal, state, or local laws or
regulations; and
(iv) Any material, waste or substance which is (a)
asbestos, (b) polychlorinated biphenyls, (c) designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. Sections 1251 et seq. (33 U.S.C. Section 1321) or
listed pursuant to Section 307 of the Clean Water Act (33 U.S.C.
Section 1317), (d) explosives, or (e) radioactive materials.
10.4 Landlord's Environmental Indemnity:
Notwithstanding any other provision of this Lease to the
contrary, Landlord shall indemnify, defend and hold harmless the
Tenant from and against all liabilities, claims, losses, costs,
damages, penalties, fines, and expenses (including, without
limitation, necessary testing, site evaluation, expenses and
reasonable fees of attorneys and consultants but no
consequential damages in any event) relating to the Premises,
which may be made, assessed against, or otherwise incurred by
Tenant and which arise out of Environmental Laws, or otherwise
in connection with Hazardous Materials ("Claims") and which
arise out of (i) the present condition of the Premises, whether
or not intentional and whether or not discovered before the
execution of this Lease or (ii) subsequent conditions of the
Premises caused by Landlord or by a person or entity, other than
Tenant, whose action or omission that created such conditions
occurred in connection with its role as contractor to Landlord,
invitee of Landlord or other party having a similar relationship
to Landlord. Landlord's obligations under this Section shall
survive the termination or expiration of this Lease.
EXECUTED as a sealed instrument in two or more counterparts
on the day and year first above written.
LANDLORD: TENANT:
SPHOS, INC. TEMPTRONIC CORPORATION
BY:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- -----------------------
Its: President Its: President
Hereunto Duly Authorized
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