BOS2: 63298_2.28256.3
LEASE
BETWEEN
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, TRUSTEE
UNDER THE WILL OF
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
as Landlord
AND
MANCHESTER EQUIPMENT CO., INC.,
as Tenant
Dated: as of June 30, 1997
-i-
LEASE INDEX
Page
SCHEDULE..................................................................1
1. DEMISE AND TERM........................................................1
2. RENT...................................................................1
3. USE....................................................................1
4. CONDITION OF PREMISES..................................................1
5. BUILDING SERVICES......................................................1
6. RULES AND REGULATIONS..................................................1
7. CERTAIN RIGHTS RESERVED TO LANDLORD....................................1
8. MAINTENANCE AND REPAIRS................................................1
9. ALTERATIONS.............................................................1
10. INSURANCE..............................................................1
11. WAIVER AND INDEMNITY...................................................1
12. FIRE AND CASUALTY......................................................1
13. CONDEMNATION...........................................................1
14. ASSIGNMENT AND SUBLETTING..............................................1
15. SURRENDER..............................................................1
16. DEFAULTS AND REMEDIES..................................................1
17. HOLDING OVER...........................................................1
18. SECURITY DEPOSIT.......................................................1
19. [INTENTIONALLY OMITTED]................................................1
20. ESTOPPEL CERTIFICATES..................................................1
21. SUBORDINATION..........................................................1
22. QUIET ENJOYMENT........................................................1
23. BROKER.................................................................1
24. NOTICES................................................................1
25. DIRECTORY; SIGNS.......................................................1
26. PARKING................................................................1
27. MISCELLANEOUS..........................................................1
EXHIBIT "A" - FLOOR PLAN...................................................1
EXHIBIT "A-1" - LEGAL DESCRIPTION OF LAND..................................1
EXHIBIT "B" - RULES AND REGULATIONS........................................1
EXHIBIT "C" - TENANT IMPROVEMENT WORK......................................1
-18-
LEASE
THIS LEASE (this "Lease") is made as of the ______ day of June, 1997 by
and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee under the Will of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, having
an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Landlord"), and Manchester Equipment Co., Inc., a New York corporation having
an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant"), for
space in the building known as or located at ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ (such building, together with the land (the "Land") upon which it
is situated, being herein referred to as the "Building"). The Land is more
particularly described in Exhibit "A-1" attached hereto and incorporated herein
by this reference. The following schedule (the "Schedule") sets forth certain
basic terms of this Lease:
SCHEDULE
1. Premises: A portion of the first floor of the Building consisting of
approximately 3,008 rentable square feet of floor area as shown cross-hatched on
the floor plan (the "Floor Plan") attached hereto as Exhibit "A" and
incorporated herein by this reference.
2. Annual Minimum Rent: $48,128.00 per year for the first Lease Year
(as defined below); $48,128.00 per year for the second Lease Year; $48,128.00
per year for the third Lease Year; $51,136.00 per year for the fourth Lease
Year; and $51,136.00 per year for the fifth Lease Year.
3. Monthly Minimum Rent: $4,010.67 per month for each month during the
first Lease Year; $4,010.67 per month for each month during the second Lease
Year; $4,010.67 per month for each month during the third Lease Year; $4,261.33
per month for each month during the fourth Lease Year; and $4,261.33 per month
for each month during the fifth Lease Year.
4. Tenant's Operating Expenses Proportionate Share: Eleven and 38/100
percent (11.38%).
5. Tenant's Taxes Proportionate Share: Five and 69/100 percent (5.69%).
6. Base Expense Year: Calendar Year 1996 (i.e., January 1, 1996 -
December 31, 1996).
7. Base Tax Year:Fiscal Year 1997 (i.e., July 1, 1996 - June 30, 1997).
8. Security Deposit: $8,522.66.
9. Brokers: Rose Associates, Inc., ▇▇▇▇▇▇ & Company and ▇▇▇▇▇▇ Company.
10. Commencement Date: The earlier of (i) the date on which Tenant,
pursuant to permission therefor duly given by Landlord, commences use of the
Premises or any portion thereof, or (ii) the Substantial Completion Date (as
defined in Exhibit "C" attached hereto and incorporated herein by this
reference).
11. Expiration Date: The day prior to the fifth anniversary of the
Commencement Date.
12. Notice Address of Landlord: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
under the Will of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy in like manner to:
Rose Associates, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
13. Notice Address of Tenant:
Manchester Equipment Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy in like manner to:
▇▇▇▇▇ ▇▇▇▇, Esquire
▇▇▇▇▇▇▇ Rothtein & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy in like manner to:
Manchester Equipment Co., Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
1. DEMISE AND TERM. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises (the "Premises") described in Item 1 of the
Schedule and shown on the Floor Plan, subject to the covenants and conditions
set forth in this Lease, for a term (the "Term") commencing on the date (the
"Commencement Date") described in Item 10 of the Schedule and expiring on the
date (the "Expiration Date") described in Item 11 of the Schedule, unless
terminated earlier as otherwise provided in this Lease. Upon the determination
of the Commencement Date, Landlord and Tenant shall memorialize the Commencement
Date and the Expiration Date in a written instrument.
2. RENT.
(a) Definitions. For purposes of this Lease, the following terms shall
have the following meanings:
(i) "Base Expense Year" shall mean the year set forth in Item 6 of the
Schedule.
(ii) "Base Tax Year" shall mean the year set forth in Item 7 of the
Schedule.
(iii) "Base Expenses" shall mean the amount of Expenses (as defined
below) for the Base Expense Year.
(iv) "Base Taxes" shall mean the amount of Taxes (as defined below)
for the Base Tax Year.
(v) "Expenses" shall mean all expenses, costs and disbursements (other
than Taxes) paid or incurred by Landlord in connection with the ownership,
management, maintenance, operation, replacement and repair of the Building.
Expenses shall not include: (a) costs of tenant alterations; (b) costs of
capital improvements (except for costs of any capital improvements made or
installed for the purpose of reducing Expenses or made or installed pursuant to
governmental requirement or insurance requirement, which costs shall be
amortized by Landlord in accordance with sound accounting and management
principles); (c) interest and principal payments on mortgages (except interest
on the cost of any capital improvements for which amortization may be included
in the definition of Expenses) or any rental payments on any ground leases
(except for rental payments which constitute reimbursement for Taxes and
Expenses); (d) advertising expenses and leasing commissions; (e) any cost or
expenditure for which Landlord is reimbursed, whether by insurance proceeds or
otherwise, except through Adjustment Rent (as defined below); (f) the cost of
any kind of service furnished to any other tenant in the Building which Landlord
does not generally make available to all tenants in the Building; and (g) legal
expenses of negotiating leases. Expenses shall be determined on a cash or
accrual basis, as Landlord may elect.
(vi) "Lease Year" shall mean a one (1) year period commencing on the
Commencement Date or any anniversary thereof and expiring at midnight on the day
prior to the next anniversary thereof.
(vii) "Rent" shall mean Minimum Rent (as defined below), Adjustment
Rent and any other sums or charges due by Tenant hereunder.
(viii) "Taxes" shall mean all taxes, assessments and fees levied upon
the Building, the property of Landlord located therein or the rents collected
therefrom, by any governmental entity based upon the ownership, leasing, renting
or operation of the Building, including all costs and expenses of protesting any
such taxes, assessments or fees. Taxes shall not include any net income, capital
stock, succession, transfer, franchise, gift, estate or inheritance taxes;
provided, however, if at any time during the Term, a tax or excise on income is
levied or assessed by any governmental entity, in lieu of or as a substitute
for, in whole or in part, real estate taxes or other ad valorem taxes, such tax
shall constitute and be included in Taxes. For the purposes of determining Taxes
for any given year, the amount to be included for such year (a) from special
assessments payable in installments shall be the amount of the installments (and
any interest) due and payable during such year, and (b) from all other Taxes
shall at Landlord's election either be the amount accrued, assessed or otherwise
imposed for such year or the amount due and payable in such year.
(ix) "Tenant's Operating Expenses Proportionate Share" shall mean the
percentage set forth in Item 4 of the Schedule.
(x) Tenant's Taxes Proportionate Share" shall mean the percentage set
forth in Item 5 of the Schedule.
(b) Components of Rent. Tenant agrees to pay the following amounts to
Landlord at the office of the Building or at such other place as Landlord
designates:
(i) Minimum rent ("Minimum Rent") to be paid in monthly installments
in the amount set forth in Item 3 of the Schedule in advance on or before the
first day of each month of the Term, except that Tenant shall pay the first
month's Minimum Rent upon execution of this Lease.
(ii) Adjustment rent ("Adjustment Rent") in an amount equal to
Tenant's Proportionate Share of (a) the increase in Expenses for any calendar
year over the Base Expenses and (b) the increase in Taxes for any calendar year
over the Base Taxes. Prior to each calendar year, Landlord shall estimate the
amount of Adjustment Rent due for such year, and Tenant shall pay Landlord
one-twelfth of such estimate on the first day of each month during such year.
Such estimate may be revised by Landlord whenever it obtains information
relevant to making such estimate more accurate. After the end of each calendar
year, Landlord shall deliver to Tenant a report setting forth the actual
Expenses and Taxes for such calendar year and a statement of the amount of
Adjustment Rent that Tenant has paid and is payable for such year. Within thirty
(30) days after receipt of such report and statement, Tenant shall pay to
Landlord the amount of Adjustment Rent due for such calendar year minus any
payments of Adjustment Rent made by Tenant for such year. If Tenant's estimated
payments of Adjustment Rent exceed the amount due Landlord for such calendar
year, Landlord shall apply such excess as a credit against Tenant's other
obligations under this Lease or promptly refund such excess to Tenant if the
Term has already expired, provided Tenant is not then in default hereunder, in
either case without interest to Tenant.
(c) Payment of Rent. The following provisions shall govern the payment
of Rent: (i) if this Lease commences or ends on a day other than the first day
or last day of a calendar year, respectively, the Rent for the year in which
this Lease so begins or ends shall be prorated and the monthly installments
shall be adjusted accordingly; (ii) all Rent shall be paid to Landlord without
offset or deduction, and the covenant to pay Rent shall be independent of every
other covenant in this Lease; (iii) if during all or any portion of any year the
Building is not fully rented and occupied, Landlord may elect to make an
appropriate adjustment of Expenses for such year to determine the Expenses that
would have been paid or incurred by Landlord had the Building been fully rented
and occupied for the entire year and the amount so determined shall be deemed to
have been the Expenses Taxes for such year; (iv) any sum due from Tenant to
Landlord which is not paid within ten (10) days after the due date for such
payment shall bear interest from the date due until the date paid at the annual
rate of eighteen percent (18%) per annum, but in no event higher than the
maximum rate permitted by law (the "Default Rate"); and, in addition, Tenant
shall pay Landlord a late charge for any Rent payment which is not paid within
ten (10) days after its due date equal to five percent (5%) of such payment; (v)
if changes are made to this Lease or the Building changing the number of square
feet contained in the Premises or in the Building, Landlord shall make an
appropriate adjustment to Tenant's Proportionate Share; (vi) Tenant shall have
the right to inspect Landlord's accounting records relative to Expenses and
Taxes during normal business hours at any time within thirty (30) days following
the furnishing to Tenant of the annual statement of Adjustment Rent; and, unless
Tenant shall take written exception to any item in any such statement within
such thirty (30) day period, such statement shall be considered as final and
accepted by Tenant; (vii) in the event of the termination of this Lease prior to
the determination of any Adjustment Rent, Tenant's agreement to pay any such
sums and Landlord's obligation to refund any such sums (provided Tenant is not
in default hereunder) shall survive the termination of this Lease; (viii) no
adjustment to the Rent by virtue of the operation of the rent adjustment
provisions in this Lease shall result in the payment by Tenant in any year of
less than the Minimum Rent shown on the Schedule; (ix) Landlord may at any time
change the fiscal year of the Building; (x) each amount owed to Landlord under
this Lease for which the date of payment is not expressly fixed shall be due on
the same date as the Rent listed on the statement showing such amount is due;
(xi) if Landlord fails to give Tenant an estimate of Adjustment Rent prior to
the beginning of any calendar year, Tenant shall continue to pay Adjustment Rent
at the rate for the previous calendar year until Landlord delivers such
estimate; and (xii) if, after Tenant shall have made any payment of Adjustment
Rent to Landlord pursuant to Section 2(b), Landlord shall receive a refund of
any portion of Taxes paid by Tenant with respect to any tax period during the
Term of this Lease as a result of abatement of such Taxes by legal proceedings,
settlement or otherwise, Landlord shall credit to Tenant Tenant's Proportionate
Share of such refund (less the proportional pro rata reasonable expenses,
including reasonable attorneys' fees and appraisers' fees incurred by Landlord
in connection with obtaining such refund), as it relates to Taxes paid by Tenant
to Landlord with respect to any such period for which a refund is obtained.
3. USE. Tenant agrees that it shall occupy and use the Premises only as
business offices and for no other purposes. Tenant shall comply with all
federal, state and municipal laws, ordinances and regulations and all covenants,
conditions and restrictions of record applicable to Tenant's use or occupancy of
the Premises. Without limiting the foregoing, Tenant shall not cause, nor
permit, any hazardous or toxic substances to be brought upon, produced, stored,
used, discharged or disposed of in, on or about the Premises without the prior
written consent of Landlord and then only in compliance with all applicable
environmental laws.
4. CONDITION OF PREMISES. Tenant's taking possession of the Premises
shall be conclusive evidence that the Premises were in good order and
satisfactory condition when Tenant took possession. No agreement of Landlord to
alter, remodel, decorate, clean or improve the Premises or the Building (or to
provide Tenant with any credit or allowance for the same), and no representation
regarding the condition of the Premises or the Building or the suitability of
the Premises for Tenant's proposed use thereof, have been made by or on behalf
of Landlord or relied upon by Tenant, except as provided in Exhibit "C" attached
hereto and incorporated herein by this reference.
5. BUILDING SERVICES.
(a) Basic Services. Landlord shall furnish the following services: (i)
heating and air conditioning to provide a temperature condition required, in
Landlord's reasonable judgment, for comfortable occupancy of the Premises under
normal business operations, daily from 8:00 A.M. to 6:00 P.M. (Saturday from
8:00 A.M. to 12:00 P.M.), Sundays and holidays excepted; (ii) water for
drinking, and, subject to Landlord's approval, water at Tenant's expense for any
private restrooms and office kitchen requested by Tenant; (iii) men's and
women's restrooms at locations designated by Landlord and in common with other
tenants of the Building; (iv) daily janitorial service in the Premises and
common areas of the Building, weekends and holidays excepted; and (v) electrical
current other than for special lighting, equipment that requires more than 110
volts or other equipment whose electrical energy consumption exceeds normal
office usage.
(b) Telephones. Tenant shall arrange for telephone service directly
with one (1) or more of the public telephone companies servicing the Building
and shall be solely responsible for paying for such telephone service. If
Landlord acquires ownership of the telephone cables in the Building at any time,
Landlord shall permit Tenant to connect to such cables on such terms and
conditions as Landlord may prescribe. In no event does Landlord make any
representation or warranty with respect to telephone service in the Building,
and Landlord shall have no liability with respect thereto.
(c) Additional Services. Landlord shall not be obligated to furnish any
services other than those stated above. If Landlord elects to furnish services
requested by Tenant in addition to those stated above (including services at
times other than those stated above), Tenant shall pay Landlord's then
prevailing charges for such additional services. If Tenant shall fail to make
any such payment, Landlord may, without notice to Tenant and in addition to all
other remedies available to Landlord, discontinue any such additional services.
No discontinuance of any such additional service shall result in any liability
of Landlord to Tenant or be considered as an eviction or a disturbance of
Tenant's use of the Premises. In addition, if Tenant's concentration of
personnel or equipment adversely affects the temperature or humidity in the
Premises or the Building, Landlord may install supplementary air conditioning
units in the Premises; and Tenant shall pay for the cost of installation and
maintenance thereof.
(d) Failure or Delay in Furnishing Services. Tenant agrees that
Landlord shall not be liable for damages for failure or delay in furnishing any
service stated above if such failure or delay is caused, in whole or in part, by
any one or more of the events stated in Section 27(j) below, nor shall any such
failure or delay be considered to be an eviction or disturbance of Tenant's use
of the Premises, or relieve Tenant from its obligation to pay any Rent when due,
or from any other obligations of Tenant under this Lease.
6. RULES AND REGULATIONS. Tenant shall observe and comply and shall
cause its subtenants, assignees, invitees, employees, contractors and agents to
observe and comply, with the rules and regulations listed on Exhibit "B"
attached hereto and incorporated herein by this reference and with such
reasonable modifications and additions thereto as Landlord may make from time to
time. Landlord shall not be liable for failure of any person to obey such rules
and regulations. Landlord shall not be obligated to enforce such rules and
regulations against any person, and the failure of Landlord to enforce any such
rules and regulations shall not constitute a waiver thereof or relieve Tenant
from compliance therewith.
7. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, each of which Landlord may exercise without notice to Tenant and without
liability to Tenant, and the exercise of any such rights shall not be deemed to
constitute an eviction or disturbance of Tenant's use or possession of the
Premises and shall not give rise to any claim for set-off or abatement of rent
or any other claim: (a) to change the name or street address of the Building or
the suite number of the Premises; (b) to install, affix and maintain any and all
signs on the exterior or interior of the Building; (c) to make repairs,
decorations, alterations, additions, or improvements, whether structural or
otherwise, in and about the Building, and for such purposes to enter upon the
Premises, temporarily close doors, corridors and other areas in the Building and
interrupt or temporarily suspend services or use of common areas, and Tenant
agrees to pay Landlord for overtime and similar expenses incurred if such work
is done other than during ordinary business hours at Tenant's request; (d) to
retain at all times, and to use in appropriate instances, keys to all doors
within and into the Premises; (e) to grant to any person or to reserve unto
itself the exclusive right to conduct any business or render any service in the
Building; (f) to show or inspect the Premises at reasonable times and, if
vacated or abandoned, to prepare the Premises for reoccupancy; (g) to install,
use and maintain in and through the Premises, pipes, conduits, wires and ducts
serving the Building, provided that such installation, use and maintenance does
not unreasonably interfere with Tenant's use of the Premises; and (h) to take
any other action which Landlord deems reasonable in connection with the
operation, maintenance or preservation of the Building.
8. MAINTENANCE AND REPAIRS. Tenant, at its expense, shall maintain and
keep the Premises in good order and repair at all times during the Term. In
addition, Tenant shall reimburse Landlord for the cost of any repairs to the
Building necessitated by the acts or omissions of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents, to the extent Landlord
is not reimbursed for such costs under its insurance policies. Subject to the
preceding sentence, Landlord shall perform any maintenance or make any repairs
to the Building as Landlord shall desire or deem necessary for the safety,
operation or preservation of the Building, or as Landlord may be required or
requested to do by any governmental authority or by the order or decree of any
court or by any other proper authority.
Landlord, throughout the Term, shall keep and maintain or cause to be
kept and maintained in good order and repair the structural components of the
Building (including, without limitation, the roof and the roof membranes, the
exterior walls and the windows), all common areas of the Building, and all
Building systems (excluding only those non-standard portions of the Building
systems which are (a) located within the Premises and (b) service only the
Premises, which systems shall be maintained by Tenant in good order and repair
at all times during the Term).
9. ALTERATIONS.
(a) Requirements. Tenant shall not make any replacement, alteration,
improvement or addition to or removal from the Premises (collectively an
"alteration") without the prior written consent of Landlord, which consent shall
not be unreasonably withheld. In the event Tenant proposes to make any
alteration, Tenant shall, prior to commencing such alteration, submit to
Landlord for prior written approval: (i) detailed plans and specifications; (ii)
sworn statements, including the names, addresses and copies of contracts for all
contractors; (iii) all necessary permits evidencing compliance with all
applicable governmental rules, regulations and requirements; (iv) certificates
of insurance in form and amounts required by Landlord, naming Landlord and any
other parties designated by Landlord as additional insureds; and (v) all other
documents and information as Landlord may reasonably request in connection with
such alteration. Tenant agrees to pay Landlord's reasonable charges for review
of all such items and supervision of any alteration. Neither approval of the
plans and specifications nor supervision of the alteration by Landlord shall
constitute a representation or warranty by Landlord as to the accuracy,
adequacy, sufficiency or propriety of such plans and specifications or the
quality of workmanship or the compliance of such alteration with applicable law.
Tenant shall pay the entire cost of the alteration and, if requested by
Landlord, shall deposit with Landlord prior to the commencement of the
alteration, security for the payment and completion of the alteration in form
and amount required by Landlord. Each alteration shall be performed in a good
and workmanlike manner, in accordance with the plans and specifications approved
by Landlord, and shall meet or exceed the standards for construction and quality
of materials established by Landlord for the Building. In addition, each
alteration shall be performed in compliance with all applicable governmental and
insurance company laws, regulations and requirements. Each alteration shall be
performed by union contractors if required by Landlord and in harmony with
Landlord's employees, contractors and other tenants. Each alteration, whether
temporary or permanent in character, made by Landlord or Tenant in or upon the
Premises (excepting only Tenant's furniture, equipment and trade fixtures) shall
become Landlord's property and shall remain upon the Premises at the expiration
or termination of this Lease without compensation to Tenant; provided, however,
that Landlord shall have the right to require Tenant to remove such alteration
at Tenant's sole cost and expense in accordance with the provisions of Section
15 of this Lease.
(b) Liens. Upon completion of any alteration, Tenant shall promptly
furnish Landlord with sworn owner's and contractors statements and full and
final waivers of lien covering all labor and materials included in such
alteration. Tenant shall not permit any mechanic's lien to be filed against the
Building, or any part thereof, arising out of any alteration performed, or
alleged to have been performed, by or on behalf of Tenant. If any such lien is
filed, Tenant shall within ten (10) days thereafter have such lien released of
record or deliver to Landlord a bond in form, amount, and issued by a surety
satisfactory to Landlord, indemnifying Landlord against all costs and
liabilities resulting from such lien and the foreclosure or attempted
foreclosure thereof. If Tenant fails to have such lien so released or to deliver
such bond to Landlord, Landlord, without investigating the validity of such
lien, may pay or discharge the same; and Tenant shall reimburse Landlord upon
demand for the amount so paid by Landlord, including Landlord's expenses and
attorneys' fees.
10. INSURANCE. Tenant, at its expense, shall maintain at all times
during the Term the following insurance policies: (a) fire insurance, including
extended coverage, vandalism, malicious mischief, sprinkler leakage and water
damage coverage and demolition and debris removal, insuring the full replacement
cost of all improvements, alterations or additions to the Premises made at
Tenant's expense, and all other property owned or used by Tenant and located in
the Premises; (b) Commercial General Liability insurance, contractual liability
insurance and property damage insurance with respect to the Building and the
Premises, with limits to be set by Landlord from time to time but in any event
not less than $3,000,000.00 combined single limit for personal injury, sickness
or death or for damage to or destruction of property for any one occurrence; and
(c) insurance against such other risks and in such other amounts as Landlord may
from time to time reasonably require. The form of all such policies and
deductibles thereunder shall be subject to Landlord's reasonable prior approval.
All such policies shall be issued by insurers acceptable to Landlord and
licensed to do business in the State in which the Premises are located and shall
contain a waiver of any rights of subrogation thereunder. In addition, the
policies shall name Landlord and any other parties designated by Landlord as
additional insureds, shall require at least thirty (30) days' prior written
notice to Landlord of termination or modification and shall be primary and not
contributory. Tenant shall, at least ten (10) days prior to the Commencement
Date, and within ten (10) days prior to the expiration of each such policy,
deliver to Landlord certificates evidencing the foregoing insurance or renewal
thereof, as the case may be.
11. WAIVER AND INDEMNITY.
(a) Waiver. Tenant releases Landlord, its property manager and their
respective agents and employees from, and waives all claims for, damage or
injury to person or property and loss of business sustained by Tenant and
resulting from the Building or the Premises or any part thereof or any equipment
therein becoming in disrepair, or resulting from any accident in or about the
Building. This paragraph shall apply particularly, but not exclusively, to
flooding, damage caused by Building equipment and apparatus, water, snow, frost,
steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise
or vibration or the bursting or leaking of pipes, plumbing fixtures or sprinkler
devices. Without limiting the generality of the foregoing, Tenant waives all
claims and rights of recovery against Landlord, its property manager and their
respective agents and employees for any loss or damage to any property of
Tenant, which loss or damage is insured against, or required to be insured
against, by Tenant pursuant to Section 10 above, whether or not such loss or
damage is due to the fault or negligence of Landlord, its property manager or
their respective agents or employees, and regardless of the amount of insurance
proceeds collected or collectible under any insurance policies in effect.
(b) Indemnity. Tenant agrees to indemnify, defend and hold harmless
Landlord, its property manager and their respective agents and employees, from
and against any and all claims, demands, actions, liabilities, damages, costs
and expenses (including attorneys' fees), for injuries to any persons and damage
to or theft or misappropriation or loss of property occurring in or about the
Building and arising from the use and occupancy of the Premises or from any
activity, work, or thing done, permitted or suffered by Tenant in or about the
Premises (including, without limitation, any alteration by Tenant) or from any
breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed under this Lease or due to any
other act or omission of Tenant, its subtenants, assignees, invitees, employees,
contractors and agents. Without limiting the foregoing, Tenant shall indemnify,
defend and hold Landlord harmless from any claims, liabilities, damages, costs
and expenses arising out of the use or storage of hazardous or toxic materials
in the Building by Tenant. If any such proceeding is filed against Landlord or
any such indemnified party, Tenant agrees to defend Landlord or such party in
such proceeding at Tenant's sole cost by legal counsel reasonably satisfactory
to Landlord, if requested by Landlord.
12. FIRE AND CASUALTY. If all or a substantial part of the Premises or
the Building is rendered untenantable by reason of fire or other casualty,
Landlord may, at its option, either restore the Premises and the Building, or
terminate this Lease effective as of the date of such fire or other casualty.
Landlord agrees to give Tenant written notice within sixty (60) days after the
occurrence of any such fire or other casualty designating whether Landlord
elects to so restore or terminate this Lease. If Landlord elects to terminate
this Lease, Rent shall be paid through and apportioned as of the date of such
fire or other casualty. If Landlord elects to restore, Landlord's obligation to
restore the Premises shall be limited to restoring those improvements in the
Premises existing as of the date of such fire or other casualty which were made
at Landlord's expense and shall exclude any furniture, equipment, fixtures,
additions, alterations or improvements in or to the Premises which were made at
Tenant's expense. If Landlord elects to restore, Rent shall ▇▇▇▇▇ for that part
of the Premises which is untenantable on a per diem basis from the date of such
fire or other casualty until Landlord has substantially completed its repair and
restoration work, provided that Tenant does not occupy such part of the Premises
during said period.
13. CONDEMNATION. If the Premises or the Building is rendered
untenantable by reason of a condemnation (or by a deed given in lieu thereof),
then either party may terminate this Lease by giving written notice of
termination to the other party within thirty (30) days after such condemnation,
in which event this Lease shall terminate effective as of the date of such
condemnation. If this Lease so terminates, Rent shall be paid through and
apportioned as of the date of such condemnation. If such condemnation does not
render the Premises or the Building untenantable, this Lease shall continue in
effect and Landlord shall promptly restore the portion not condemned to the
extent reasonably possible to the condition existing prior to the condemnation.
In such event, however, Landlord shall not be required to expend an amount in
excess of the proceeds received by Landlord from the condemning authority.
Landlord reserves all rights to compensation for any condemnation. Tenant hereby
assigns to Landlord any right Tenant may have to such compensation, and Tenant
shall make no claim against Landlord or the condemning authority for
compensation for termination of Tenant's leasehold interest under this Lease or
interference with Tenant's business.
14. ASSIGNMENT AND SUBLETTING.
(a) Landlord's Consent. Tenant shall not, without the prior written
consent of Landlord: (i) assign, convey, mortgage or otherwise transfer this
Lease or any interest hereunder, or sublease the Premises, or any part thereof,
whether voluntarily or by operation of law; or (ii) permit the use of the
Premises by any person other than Tenant and its employees or any subsidiary of
Tenant and its employees. Any such transfer, sublease or use described in the
preceding sentence (a "Transfer") occurring without the prior written consent of
Landlord shall be void and of no effect. Landlord's consent to any Transfer
shall not constitute a waiver of Landlord's right to withhold its consent to any
future Transfer. Landlord's consent to any Transfer or acceptance of rent from
any party other than Tenant shall not release Tenant from any covenant or
obligation under this Lease. Landlord may require as a condition to its consent
to any assignment of this Lease that the assignee execute an instrument in which
such assignee assumes the obligations of Tenant hereunder. For the purposes of
this paragraph, the transfer (whether direct or indirect) of all or a majority
of the capital stock in a corporate Tenant (other than the shares of the capital
stock of a corporate Tenant whose stock is publicly traded) or the merger,
consolidation or reorganization of such Tenant and the transfer of all or any
general partnership interest in any partnership Tenant shall be considered a
Transfer. As used herein, the phrase "any subsidiary of Tenant" shall mean any
corporation or partnership that is wholly owned by Tenant.
(b) Standards for Consent. If Tenant desires the consent of Landlord to
a Transfer, Tenant shall submit to Landlord, at least sixty (60) days prior to
the proposed effective date of the Transfer, a written notice which includes
such information as Landlord may require about the proposed Transfer and the
transferee. If Landlord does not terminate this Lease, in whole or in part,
pursuant to Section 14.C below, Landlord shall not unreasonably withhold its
consent to any assignment or sublease. Landlord shall not be deemed to have
unreasonably withheld its consent if, in the judgment of Landlord: (i) the
transferee is of a character or engaged in a business which is not in keeping
with the standards or criteria used by Landlord in leasing the Building; (ii)
the financial condition of the transferee is such that it may not be able to
perform its obligations in connection with this Lease; (iii) the purpose for
which the transferee intends to use the Premises or portion thereof is in
violation of the terms of this Lease or the lease of any other tenant in the
Building; (iv) the transferee is a tenant of the Building; or (v) any other
bases which Landlord reasonably deems appropriate. If Landlord wrongfully
withholds its consent to any Transfer, Tenant's sole and exclusive remedy
therefor, shall be to seek specific performance of Landlord's obligation to
consent to such Transfer. If Landlord consents to any Transfer, Tenant shall pay
to Landlord all rent and other consideration received by Tenant in excess of the
Rent paid by Tenant hereunder for the portion of the Premises so transferred.
Such rent shall be paid as and when received by Tenant. In addition, Tenant
shall pay to Landlord any reasonable attorneys' fees and expenses incurred by
Landlord in connection with any proposed Transfer, whether or not Landlord
consents to such Transfer.
(c) Recapture. Landlord shall have the right to terminate this Lease as
to that portion of the Premises covered by a Transfer, except for a Transfer to
an Affiliate or to a Successor Entity, for which Landlord shall have no such
right to terminate. Landlord may exercise such right to terminate by giving
notice to Tenant at any time within thirty (30) days after the date on which
Tenant has furnished to Landlord all of the items required under Section 14.B
above. If Landlord exercises such right to terminate, Landlord shall be entitled
to recover possession of, and Tenant shall surrender such portion of, the
Premises (with appropriate demising partitions erected at the expense of Tenant)
on the later of (i) the effective date of the proposed Transfer, or (ii) sixty
(60) days after the date of Landlord's notice of termination. In the event
Landlord exercises such right to terminate, Landlord shall have the right to
enter into a lease with the proposed transferee without incurring any liability
to Tenant on account thereof. As used herein, the term "Affiliate shall mean any
entity which controls, is controlled by or is under common control with Tenant
and the phrase "Successor Entity" shall mean any entity which purchases all or
substantially all of the assets of Tenant or any entity which succeeds to
Tenant's business by merger, consolidation or other form of corporate
reorganization.
15. SURRENDER. Upon the expiration or earlier termination of the Term
or Tenant's right to possession of the Premises, Tenant shall return the
Premises to Landlord in good order and condition, ordinary wear and damage by
fire or other casualty excepted. If Landlord requires Tenant to remove any
alterations pursuant to Section 9, then such removal shall be done in a good and
workmanlike manner; and upon such removal Tenant shall restore the Premises to
its condition prior to the installation of such alterations. If Tenant does not
remove such alterations after request to do so by Landlord, Landlord may remove
the same and restore the Premises; and Tenant shall pay the cost of such removal
and restoration to Landlord upon demand. Tenant shall also remove its furniture,
equipment, trade fixtures and all other items of personal property from the
Premises prior to the termination of the Term or Tenant's right to possession of
the Premises. If Tenant does not remove such items, Tenant shall be conclusively
presumed to have conveyed the same to Landlord without further payment or credit
by Landlord to Tenant; or at Landlord's sole option such items shall be deemed
abandoned, in which event Landlord may cause such items to be removed and
disposed of at Tenant's expense, without notice to Tenant and without obligation
to compensate Tenant.
16. DEFAULTS AND REMEDIES.
(a) Default. The occurrence of any of the following shall constitute a
default (a "Default") by Tenant under this Lease: (i) Tenant fails to pay any
Rent when due and such failure is not cured within five (5) business days after
notice from Landlord; (ii) Tenant fails to perform any other provision of this
Lease and such failure is not cured within thirty (30) days (or immediately if
the failure involves a hazardous condition) after notice from Landlord; (iii)
the leasehold interest of Tenant is levied upon or attached under process of
law; (iv) Tenant or any guarantor of this Lease dissolves; (v) any voluntary or
involuntary proceedings are filed by or against Tenant or any guarantor of this
Lease under any bankruptcy, insolvency or similar laws and, in the case of any
involuntary proceedings, are not dismissed within thirty (30) days after filing.
(b) Right of Re-Entry. Upon the occurrence of a Default, Landlord may
elect to terminate this Lease, or, without terminating this Lease, terminate
Tenant's right to possession of the Premises, in either case by written notice
thereof to Tenant. Upon any such termination, Tenant shall immediately surrender
and vacate the Premises and deliver possession thereof to Landlord. Tenant
grants to Landlord the right, without notice to Tenant, to enter and repossess
the Premises and to expel Tenant and any others who may be occupying the
Premises and to remove any and all property therefrom, without being deemed in
any manner guilty of trespass and without relinquishing Landlord's rights to
Rent or any other right given to Landlord hereunder or by operation of law.
(c) Reletting. If Landlord terminates Tenant's right to possession of
the Premises without terminating this Lease, Landlord may relet the Premises or
any part thereof. In such case, Landlord shall use reasonable efforts to relet
the Premises on such terms as Landlord shall reasonably deem appropriate;
provided, however, Landlord may first lease Landlord's other available space and
shall not be required to accept any tenant offered by Tenant or to observe any
instructions given by Tenant about such reletting. Tenant shall reimburse
Landlord for the costs and expenses of reletting the Premises including, but not
limited to, all brokerage, advertising, legal, alteration and other expenses
incurred to secure a new tenant for the Premises. In addition, if the
consideration collected by Landlord upon any such reletting, after payment of
the expenses of reletting the Premises which have not been reimbursed by Tenant,
is insufficient to pay monthly the full amount of the Rent, Tenant shall pay to
Landlord the amount of each monthly deficiency as it becomes due. If such
consideration is greater than the amount necessary to pay the full amount of the
Rent, the full amount of such excess shall be retained by Landlord and shall in
no event be payable to Tenant.
(d) Termination of Lease. If Landlord terminates this Lease pursuant to
Section 16.B above, Landlord may recover from Tenant and Tenant shall pay to
Landlord, on demand, as and for liquidated and final damages, an accelerated
lump sum amount equal to the amount by which Landlord's estimate of the
aggregate amount of Rent owing from the date of such termination through the
Expiration Date plus Landlord's reasonable estimate of the aggregate expenses of
reletting the Premises, exceeds Landlord's reasonable estimate of the fair
rental value of the Premises for the same period (after deducting from such fair
rental value the time needed to relet the Premises and the amount of concessions
which would normally be given to a new tenant), both discounted to present value
at the rate of five percent (5%) per annum.
(e) Other Remedies. Landlord may but shall not be obligated to perform
any obligation of Tenant under this Lease; and, if Landlord so elects, all costs
and expenses paid by Landlord in performing such obligation, together with
interest at the Default Rate, shall be reimbursed by Tenant to Landlord on
demand. Any and all remedies set forth in this Lease: (i) shall be in addition
to any and all other remedies Landlord may have at law or in equity, (ii) shall
be cumulative, and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future.
(f) Bankruptcy. If Tenant becomes bankrupt, the bankruptcy trustee
shall not have the right to assume or assign this Lease unless the trustee
complies with all requirements of the United States Bankruptcy Code; and
Landlord expressly reserves all of its rights, claims, and remedies thereunder.
(g) Waiver of Trial by Jury. Landlord and Tenant waive trial by jury in
the event of any action, proceeding or counterclaim brought by either Landlord
or Tenant against the other in connection with this Lease.
17. HOLDING OVER. If Tenant retains possession of the Premises after
the expiration or earlier termination of the Term or Tenant's right to
possession of the Premises, Tenant shall pay Rent during such holding over at
double the rate in effect immediately preceding such holding over computed on a
monthly basis for each month or partial month that Tenant remains in possession.
Tenant shall also pay, indemnify and defend Landlord from and against all claims
and damages, consequential as well as direct, sustained by reason of Tenant's
holding over. The provisions of this Section do not waive Landlord's right of
re-entry or right to regain possession by actions at law or in equity or any
other rights hereunder, and any receipt of payment by Landlord shall not be
deemed a consent by Landlord to Tenant's remaining in possession or be construed
as creating or renewing any lease or right of tenancy between Landlord and
Tenant.
18. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall
deposit the security deposit set forth in Item 8 of the Schedule (the "Security
Deposit") with Landlord as security for the performance of Tenant's obligations
under this Lease. Landlord may use all or any part of the Security Deposit (i)
for the payment of any Rent not paid when due if such failure to pay is not
cured within five (5) business days after notice from Landlord, or (ii) for the
payment of any amount which Landlord may pay or become obligated to pay by
reason of a Default, or (iii) to compensate Landlord for any loss or damage
which Landlord may suffer by reason of a Default, or (iv) to compensate Landlord
for any loss or damage which Landlord may suffer or cost or expense Landlord may
incur by reason of Tenant's failure to perform its obligations under Section 15
of this Lease upon the expiration or earlier termination of the Term of this
Lease. If any portion of the Security Deposit is used, Tenant shall within five
(5) business days after written demand therefor deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its original amount.
Landlord shall not be required to keep the Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest on the Security
Deposit. In no event shall the Security Deposit be considered an advanced
payment of Rent, and in no event shall Tenant be entitled to use the Security
Deposit for the payment of Rent. If no default by Tenant exists hereunder, the
Security Deposit or any balance thereof shall be returned to Tenant within
thirty (30) days after the expiration of the Term and vacation of the Premises
by Tenant. Landlord shall have the right to transfer the Security Deposit to any
purchaser of the Building. Upon such transfer of the Security Deposit, Tenant
shall look solely to such purchaser for return of the Security Deposit; and
Landlord shall be relieved of any liability with respect to the Security
Deposit.
19. [INTENTIONALLY OMITTED].
20. ESTOPPEL CERTIFICATES. Tenant agrees that, from time to time upon
not less than ten (10) days' prior request by Landlord, Tenant shall execute and
deliver to Landlord a written certificate certifying: (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications, a
description of such modifications and that this Lease as modified is in full
force and effect); (ii) the dates to which Rent has been paid; (iii) that Tenant
is in possession of the Premises, if that is the case; (iv) that Landlord is not
in default under this Lease, or, if Tenant believes Landlord is in default, the
nature thereof in detail; (v) that Tenant has no off-sets or defenses to the
performance of its obligations under this Lease (or if Tenant believes there are
any off-sets or defenses, a full and complete explanation thereof); and (vi)
such additional matters as may be requested by Landlord, it being agreed that
such certificate may be relied upon by any prospective purchaser, mortgagee or
other person having or acquiring an interest in the Building. If Tenant fails to
execute and deliver any such certificate within ten (10) days after request,
Tenant shall be deemed to have irrevocably appointed Landlord as Tenant's
attorney-in-fact to execute and deliver such certificate in Tenant's name.
21. SUBORDINATION. This Lease is and shall be expressly subject and
subordinate at all times to (a) any present or future ground, underlying or
operating lease of the Building, and all amendments, renewals and modifications
to any such lease, and (b) the lien of any present or future mortgage or deed of
trust encumbering fee title to the Building and/or the leasehold estate under
any such lease. If any such mortgage or deed of trust be foreclosed, or if any
such lease be terminated, upon request of the mortgagee, beneficiary or lessor,
as the case may be, Tenant will attorn to the purchaser at the foreclosure sale
or to the lessor under such lease, as the case may be. The foregoing provisions
are declared to be self-operative and no further instruments shall be required
to effect such subordination and/or attornment; provided, however, that Tenant
agrees upon request by any such mortgagee, beneficiary, lessor or purchaser at
foreclosure, as the case may be, to execute such subordination and/or attornment
instruments as may be required by such person to confirm such subordination
and/or attornment on the form customarily used by such party. Notwithstanding
the foregoing to the contrary, any such mortgagee, beneficiary or lessor may
elect to give the rights and interests of Tenant under this Lease (excluding
rights in and to insurance proceeds and condemnation awards) priority over the
lien of its mortgage or deed of trust or the estate of its lease, as the case
may be. In the event of such election and upon the mortgagee, beneficiary or
lessor notifying Tenant of such election, the rights and interests of Tenant
shall be deemed superior to and to have priority over the lien of said mortgage
or deed of trust or the estate of such lease, as the case may be, whether this
Lease is dated prior to or subsequent to the date of such mortgage, deed of
trust or lease. In such event, Tenant shall execute and deliver whatever
instruments may be required by such mortgagee, beneficiary or lessor to confirm
such superiority on the form customarily used by such party. If Tenant fails to
execute any instrument required to be executed by Tenant under this Section 21
within ten (10) days after request, Tenant irrevocably appoints Landlord as its
attorney-in-fact, in Tenant's name, to execute such instrument.
22. QUIET ENJOYMENT. As long as no Default exists, Tenant shall
peacefully and quietly have and enjoy the Premises for the Term, free from
interference by Landlord, subject, however, to the provisions of this Lease. The
loss or reduction of Tenant's light, air or view will not be deemed a
disturbance of Tenant's occupancy of the Premises nor will it affect Tenant's
obligations under this Lease or create any liability of Landlord to Tenant.
23. BROKER. Tenant represents to Landlord that Tenant has dealt only
with the brokers set forth in Item 9 of the Schedule (the "Brokers") in
connection with this Lease and that, insofar as Tenant knows, no other broker
negotiated this Lease or is entitled to any commission in connection herewith.
Tenant agrees to indemnify, defend and hold Landlord, its property manager and
their respective employees harmless from and against any claims for a fee or
commission made by any broker, other than the Brokers, claiming to have acted by
or on behalf of Tenant in connection with this Lease.
24. NOTICES. All notices and demands to be given by one party to the
other party under this Lease shall be given in writing, mailed or delivered to
Landlord or Tenant, as the case may be, at the address or addresses set forth
above or at such other address as either party may hereafter designate. Notices
shall be delivered by hand or by United States certified or registered mail,
postage prepaid, return receipt requested, or by a nationally recognized
overnight air courier service. Notices shall be considered to have been given
upon the earlier to occur of actual receipt or two (2) business days after
posting in the United States mail.
25. DIRECTORY; SIGNS. Landlord will place Tenant's name on the Building
standard directory. Except for signs which are located wholly within the
interior of the Premises and which are not visible from the exterior of the
Premises, and except for signs on office doors, no sign shall be placed,
erected, maintained or painted by Tenant at any place upon the Premises or the
Building.
26. PARKING. Tenant shall have the right to use, in common with others
entitled thereto, the parking area associated with the Building, subject to such
terms, conditions and regulations as are from time to time applicable to users
of such parking area. Notwithstanding any of the foregoing to the contrary,
Tenant may not use any parking spaces in such parking area which have been
designated for exclusive use by other Building tenants. Tenant's right to use
the parking spaces in such parking area shall be on an unassigned, non-reserved
basis.
27. MISCELLANEOUS.
(a) Successors and Assigns. Subject to Section 14 of this Lease, each
provision of this Lease shall extend to, bind and inure to the benefit of
Landlord and Tenant and their respective legal representatives, successors and
assigns; and all references herein to Landlord and Tenant shall be deemed to
include all such parties.
(b) Entire Agreement. This Lease, and the riders and exhibits, if any,
attached hereto which are hereby made a part of this Lease, represent the
complete agreement between Landlord and Tenant; and Landlord has made no
representations or warranties except as expressly set forth in this Lease. No
modification or amendment of or waiver under this Lease shall be binding upon
Landlord or Tenant unless in writing signed by Landlord and Tenant.
(c) Time of Essence. Time is of the essence of this Lease and each and
all of its provisions.
(d) Execution and Delivery. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of space or
an option for lease, and it is not effective until execution and delivery by
both Landlord and Tenant. Execution and delivery of this Lease by Tenant to
Landlord shall constitute an irrevocable offer by Tenant to lease the Premises
on the terms and conditions set forth herein, which offer may not be revoked for
fifteen (15) days after such delivery.
(e) Severability. The invalidity or unenforceability of any provision
of this Lease shall not affect or impair any other provisions.
(f) Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are located.
(g) Attorneys' Fees. Tenant shall pay to Landlord all costs and
expenses, including reasonable attorneys fees, incurred by Landlord in enforcing
this Lease or incurred by Landlord as a result of any litigation to which
Landlord becomes a party as a result of this Lease.
(h) Delay in Possession. In no event shall Landlord be liable to Tenant
if Landlord is unable to deliver possession of the Premises to Tenant on the
Commencement Date for causes outside Landlord's reasonable control. If Landlord
is unable to deliver possession of the Premises to Tenant by the Commencement
Date, the Commencement Date shall be deferred until Landlord can deliver
possession to Tenant, and the Expiration Date shall be deferred for an equal
number of days.
(i) Joint and Several Liability. If Tenant is comprised of more than
one party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease.
(j) Force Majeure. Landlord shall not be in default hereunder and
Tenant shall not be excused from performing any of its obligations hereunder if
Landlord is prevented from performing any of its obligations hereunder due to
any accident, breakage, strike, shortage of materials, acts of God or other
causes beyond Landlord's reasonable control.
(k) [Intentionally Omitted]
(l) Captions. The headings and titles in this Lease are for convenience
only and shall have no effect upon the construction or interpretation of this
Lease.
(m) No Waiver. No receipt of money by Landlord from Tenant after
termination of this Lease or after the service of any notice or after the
commencing of any suit or after final judgment for possession of the Premises
shall renew, reinstate, continue or extend the Term or affect any such notice or
suit. No waiver of any default of Tenant shall be implied from any omission by
Landlord to take any action on account of such default if such default persists
or be repeated, and no express waiver shall affect any default other than the
default specified in the express waiver and then only for the time and to the
extent therein stated.
(n) No Recording. Tenant shall not record this Lease in any official
records. Landlord and Tenant shall, upon request of either, execute and deliver
a notice of this Lease in such recordable form as may be permitted by applicable
law.
(o) Definition of Landlord; Landlord's Liability. The term "Landlord"
is used herein to include the Landlord named above as well as its successors and
assigns, each of whom shall have the same rights, remedies, powers, authorities
and privileges as it would have had if it originally signed this Lease as
Landlord. Any such person, whether or not named herein, shall have no liability
hereunder after it ceases to hold title to the Premises except for obligations
which may have theretofore accrued. Neither Landlord, nor any trustee,
beneficiary, principal, employee or partner of Landlord, nor any owner of the
Building, whether disclosed or undisclosed, shall have any personal liability
with respect to any of the provisions of this Lease or the Premises, and neither
Landlord, nor any trustee, beneficiary, principal, employee or partner of
Landlord shall have any personal liability to Tenant for any liability of or
claim against Landlord under this Lease beyond the equity of Landlord in the
Building nor shall any recourse be had to any other property or assets of
Landlord.
(p) No Presumption Against Preparer; Freely Negotiated. Landlord and
Tenant hereby understand, agree and acknowledge that (i) this Lease has been
freely negotiated by both parties hereto and (ii) that, in any controversy,
dispute or contest with regard to the meaning, interpretation, validity or
enforceability of this Lease or any of the terms and provisions hereof, there
shall be no inference, presumption or conclusion drawn whatsoever against either
party hereto by virtue of that party (or its professional advisers) having
drafted this Lease or any portion thereof.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as a
sealed instrument as of the day and year first above written.
LANDLORD:
ss: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee under the Wil
of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and not individually
TENANT:
MANCHESTER EQUIPMENT CO., INC.,
a New York corporation
By:_ss: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
EXHIBIT "A"
FLOOR PLAN
(Floor plan attached)
EXHIBIT "A-1"
LEGAL DESCRIPTION OF LAND
A certain parcel of land together with the buildings thereon situated in that
part of Newton, Massachusetts, called ▇▇▇▇▇▇ Upper Falls and being shown as Lot
B on a plan entitled "Plan of Land in Newton, Mass.", prepared by ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and Son, Inc., dated May 29, 1962 duly recorded with the Middlesex South
District Registry of Deeds and bounded and described as follows:
NORTHEASTERLY by ▇▇▇▇▇▇▇▇▇ Street by five lines, one
hundred and 88/100 (100.88) feet, one
hundred eighty-two and 58/100 (182.58)
feet, two hundred ninety and 57/100
(290.57) feet, one hundred forty and
20/100 (140.20) feet, and sixty-seven and
95/100 (67.95) feet, respectively;
NORTHWESTERLY by Lot A on said plan, two hundred and
sixty-four (264) feet;
-------------
SOUTHERLY by the thread of the ▇▇▇▇▇▇▇ River, eight
--------- hundred forty-three (843) feet
more or less; and
EASTERLY by land of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as
indicated on said plan, by three lines,
sixty and 82/100 (60.82) feet,
eighty-eight and 20/100 (88.20) feet and
seven and 3/10 (7.3) feet, respectively.
EXHIBIT "B"
RULES AND REGULATIONS
1. Tenant shall not make any room-to-room canvas to solicit business
from other tenants in the Building and shall not exhibit, sell or offer to sell,
use, rent or exchange any item or services in or from the Premises unless
ordinarily included within Tenant's use of the Premises as specified in the
Lease.
2. Tenant shall not make any use of the Premises which may be dangerous
to person or property or which shall increase the cost of insurance or require
additional insurance coverage.
3. Tenant shall not paint, display, inscribe or affix any sign,
picture, advertisement, notice, lettering or direction or install any lights on
any part of the outside or inside of the Building, other than the Premises, and
then not on any part of the inside of the Premises which can be seen from
outside the Premises, except as approved by Landlord in writing.
4. Tenant shall not use the name of the Building in advertising or
other publicity, except as the address of its business, and, without Landlord's
prior written approval, which approval shall not be unreasonably withheld, shall
not use pictures of the Building in advertising or publicity.
5. Tenant shall not obstruct or place objects on or in sidewalks,
entrances, passages, courts, corridors, vestibules, halls, elevators and
stairways in and about the Building. Tenant shall not place objects against
glass partitions or doors or windows or adjacent to any open common space which
would be unsightly from the Building corridors or from the exterior of the
Building.
6. Bicycles shall not be permitted in the Building other than in
locations designated by Landlord.
7. Tenant shall not allow any animals, other than seeing eye dogs, in
the Premises or the Building.
8. Tenant shall not disturb other tenants or make excessive noises,
cause disturbances, create excessive vibrations, odors or noxious fumes or use
or operate any electrical or electronic devices or other devices that emit
excessive sound waves or are dangerous to other tenants of the Building or that
would interfere with the operation of any device or equipment or radio or
television broadcasting or reception from or within the Building or elsewhere,
and shall not place or install any projections, antennae, aerials or similar
devices outside of the Building or the Premises.
9. Tenant shall not waste electricity or water and shall cooperate
fully with Landlord to assure the most effective operation of the Building's
heating and air conditioning, and shall refrain from attempting to adjust any
controls except for the thermostats within the Premises. Tenant shall keep all
doors to the Premises closed.
10. Unless Tenant installs new doors to the Premises, Landlord shall
furnish two (2) sets of keys for all doors to the Premises at the commencement
of the Term. Tenant shall furnish Landlord with duplicate keys for any new or
additional locks on doors installed by Tenant. When the Lease is terminated,
Tenant shall deliver all keys to Landlord and will provide to Landlord the means
of opening any safes, cabinets or vaults left in the Premises.
11. Except as otherwise provided in the Lease, Tenant shall not install
in the Premises or Building any signal, communication, alarm or other utility or
service system or equipment without the prior written consent of Landlord, which
consent shall not be unreasonably withheld.
12. Tenant shall not use any draperies or other window coverings
instead of or in addition to the Building standard window coverings designated
and approved by Landlord for exclusive use throughout the Building.
13. Landlord may require that all persons who enter or leave the
Building identify themselves to watchmen, by registration or otherwise.
Landlord, however, shall have no responsibility or liability for any theft,
robbery or other crime in the Building. Tenant shall assume full responsibility
for protecting the Premises, including keeping all doors to the Premises locked
after the close of business.
14. Tenant shall not overload floors; and Tenant shall obtain
Landlord's prior written approval as to size, maximum weight, routing and
location of business machines, safes, and heavy objects. Tenant shall not
install or operate machinery or any mechanical devices of a nature not directly
related to Tenant's ordinary use of the Premises.
15. In no event shall Tenant bring into the Building inflammables such
as gasoline, kerosene, naphtha and benzene, or explosives or firearms or any
other articles of an intrinsically dangerous nature.
16. Furniture, equipment and other large articles may be brought into
the Building only at the time and in the manner designated by Landlord. Tenant
shall furnish Landlord with a list of furniture, equipment and other large
articles which are to be removed from the Building, and Landlord may require
permits before allowing anything to be moved in or out of the Building.
Movements of Tenant's property into or out of the Building and within the
Building are entirely at the risk and responsibility of Tenant.
17. No person or contractor, unless approved in advance by Landlord
(which appraisal shall not be unreasonably withheld), shall be employed to do
janitorial work, interior window washing, cleaning, decorating or similar
services in the Premises.
18. Tenant shall not use the Premises for lodging, cooking (except for
microwave reheating and coffee makers) or manufacturing or selling any alcoholic
beverages or for any illegal purposes.
19. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
20. Tenant shall cooperate and participate in all reasonable security
programs affecting the Building.
21. Tenant shall not loiter, eat, drink, sit or lie in the lobby or
other public areas in the Building. Tenant shall not go onto the roof of the
Building or any other non-public areas of the Building (except the Premises),
and Landlord reserves all rights to control the public and non-public areas of
the Building. In no event shall Tenant have access to any electrical, telephone,
plumbing or other mechanical closets without Landlord's prior written consent.
22. Tenant shall not use the freight or passenger elevators, loading
docks or receiving areas of the Building except in accordance with regulations
for their use established by Landlord.
23. Tenant shall not dispose of any foreign substances in the toilets,
urinals, sinks or other washroom facilities, nor shall Tenant permit such items
to be used other than for their intended purposes; and Tenant shall be liable
for all damage as a result of a violation of this rule.
24. If Tenant designates non-smoking areas in the Premises, Tenant
shall also designate sufficient smoking areas in the Premises for its employees,
and in no event shall Tenant allow its employees to use the public areas of the
Building as smoking areas.
EXHIBIT "C"
TENANT IMPROVEMENT WORK
1. On or before June 13, 1997, Tenant shall provide to Landlord for its
approval final working drawings ("final working drawings" shall mean the plans
prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, dated 6/9/97, subject to the agreed to revisions
evidenced by the diagram annexed hereto.) prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the
"Architect") of all improvements that Tenant proposes to have installed in the
Premises; such working drawings shall include the partition layout, ceiling
plan, electrical outlets and switches, telephone outlets, drawings for any
modifications to the mechanical and plumbing systems of the Building, and
detailed plans and specifications for the construction of the improvements
called for in this Exhibit "C", in accordance with all applicable governmental
laws, codes, rules and regulations. Landlord shall reasonably approve or
disapprove such working drawings within ten (10) days after their receipt by
Landlord. If Landlord disapproves such working drawings, Landlord shall specify
the reasons for such disapproval in reasonable particularity, and Tenant shall
cause the Architect to make conforming revisions thereto and resubmit such
working drawings to Landlord for re-review in accordance with the same procedure
set forth above, except that Landlord must complete its review and notify Tenant
of its approval or disapproval of such revised working drawings within seven (7)
days after their receipt by Landlord. Landlord and Tenant shall initial the
working drawings after the same have been finally approved by Landlord.
Landlord's approval of Tenant's working drawings shall not be unreasonably
withheld, provided that (a) they comply with all applicable governmental laws,
codes, rules and regulations, and (b) such working drawings are sufficiently
detailed to allow construction of the improvements specified therein in a good
and workmanlike manner. As used herein, the phrase "Tenant's Plans" shall mean
the final working drawings approved by Landlord pursuant to this Paragraph 1, as
amended from time to time by any changes thereto approved by Landlord, and the
phrase "Landlord's Work" shall mean the work specified in Tenant's Plans. All
changes in Tenant's Plans must receive the prior written approval of Landlord.
The total cost of preparation of Tenant's Plans shall be paid by Landlord within
thirty (30) days after receipt by Landlord of a detailed itemization of such
costs.
2. Promptly after Landlord's approval of Tenant's Plans, Landlord shall
in good faith solicit bids for the performance of Landlord's Work. Based upon
such bids, Landlord and Tenant shall select a contractor to construct Landlord's
Work. Promptly after the selection of such contractor, Landlord shall cause such
contractor to commence construction of Landlord's Work and to diligently
prosecute to completion the construction of Landlord's Work so as to prepare the
Premises for Tenant's occupancy on or prior to August 15, 1997, but Tenant shall
have no claim against Landlord for failure so to complete Landlord's Work by
such date, nor shall such failure affect the validity of this Lease. Landlord's
Work shall be performed in a good and workmanlike manner.
3. The "Substantial Completion Date" shall be the first business day as
of which Landlord's Work has been completed except for minor items of work (and,
if applicable, adjustment of equipment and fixtures) which do not materially
interfere with Tenant's use of the Premises for the purposes set forth in
Section 3 of the Lease and can be completed after occupancy has been taken
without causing undue interference with Tenant's use of the Premises (i.e.,
so-called "punch-list" items). Landlord shall complete as conditions permit all
"punch-list" items, and Tenant shall afford Landlord access to the Premises for
such purposes.
4. Except to the extent to which Tenant shall have given Landlord
notice not later than three (3) months from the Commencement Date of respects in
which Landlord has not performed Landlord's Work, Tenant shall have no claim
that Landlord has failed to perform any of Landlord's Work.
5. The total cost of construction of Landlord's Work shall be paid by
Landlord. Upon final completion of Landlord's Work, Landlord shall certify to
Tenant the total cost of construction of Landlord's Work and the total cost of
preparation of Tenant's Plans (such total cost of construction and preparation
being hereinafter referred to as the "Total Cost"). Landlord shall provide to
Tenant an allowance in the amount of $39,300.00 (the "Allowance") for the
construction of Landlord's Work, for the preparation of Tenant's Plans, and for
the preparation of the preliminary plan that was prepared by or on behalf of
Landlord with respect to the initial improvements to the Premises. If the Total
Cost exceeds the Allowance, Tenant shall reimburse Landlord for the amount of
such excess within ten (10) days after receipt by Tenant of the certification
referred to in the second sentence of this Paragraph 5, and such excess shall be
deemed to be additional Rent under this Lease.
6. Tenant shall pay to Landlord a construction management fee in the
amount of the lesser of (i) $3,000.00 and (ii) five percent (5%) of the total
cost of construction of Landlord's Work. Such construction management fee shall
be due and payable within thirty (30) days after the Substantial Completion Date
and shall be deemed to be additional Rent under the Lease.
7. With the prior consent of Landlord, Tenant may enter the Premises
prior to the Substantial Completion Date to undertake such work as Tenant may
choose to perform (subject to the provisions of Section 9 of this Lease) in
order to prepare the Premises for Tenant's occupancy. Such entry shall be at the
sole risk of Tenant. In no event shall Tenant use any contractor if Landlord
reasonably determines that such contractor will cause a labor dispute at the
Building, or otherwise materially interfere with any construction work being
performed by or on behalf of Landlord in or around the Building. Without
limiting the generality of the foregoing, Tenant shall comply with all
reasonable instructions issued by Landlord's contractors relative to the moving
of Tenant's equipment and other property into the Premises and shall pay any
actual fees or costs incurred by Landlord in connection therewith. If
noncompliance by Tenant with any instructions issued by Landlord's contractors
results in a work stoppage or other job action by any employees of such
contractors or subcontractors thereof performing work at the Building, Tenant
and its contractors shall cease performance of such work.