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Exhibit 10.11
LEASE AGREEMENT
ARTICLE I - BASIC LEASE PROVISIONS
Each reference in this Lease to titles or terms contained in Article I
shall be deemed to incorporate the applicable definitions or data. The Exhibits
attached to this Lease are incorporated by reference.
Date of Lease: April 6, 2000
Commencement Date: The later of August 1, 2000 or the date on
which possession of the Premises has been
delivered to Tenant and Substantial
Completion of Landlord's Work has been
achieved.
Landlord: Claremont Bridgewater I, LLC
Landlord's Mailing
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant: Envision Development Corporation
Tenant's Mailing
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Premises: Approximately 25,518 rentable square feet of
space, as shown on EXHIBIT A, on the third
floor of the building ("Building"),
currently containing approximately 74,000
rentable square feet of space, located in
Bridgewater, Plymouth County, Massachusetts,
with an address of One Lakeshore Center
("Property"). The Premises exclude elevator
shafts, stairs or other common elements of
the Building.
Term: Eighty-four (84) months commencing on the
Commencement Date, unless sooner terminated
or extended as provided herein.
Permitted Use: General offices and software development and
ancillary activities related thereto and
for no other use or purpose.
Base Rent:
Lease Years Per Sq. Ft. Annually Monthly
----------- ----------- -------- -------
1-5 $20.75 $529,498.50 $44,124.88
6-7 $22.25 $567,775.50 $47,314.63
Lease Year: Twelve (12) month period beginning on the
Commencement Date and each anniversary of the
Commencement Date; provided that if the Commencement
Date is not the first day of the calendar month, the
first Lease Year shall include the partial calendar
month at the beginning of the Term and subsequent
Lease Years shall commence on the anniversary of the
first day of the first full calendar month during the
Term.
Additional Rent: All sums, other than Base Rent, due from Tenant
pursuant to the terms of this Lease.
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Pro Rata Share: Initially (34.5%) percent. In the event that the
rentable square footage of either the Premises or the
Building is increased or decreased during the Term,
Tenant's Share shall be determined from time to time
during the Term by Landlord's architect and shall be
based on the ratio between the rentable square
footage of the Premises and the rentable square
footage of the space in the Building.
Utilities: Tenant shall have the right to use the utilities
which service the Premises as of the Commencement
Date. Tenant shall pay all electrical charges with
respect to the Premises, which shall be separately
metered by Landlord.
Broker: Atlantic Commercial Properties
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hunneman Commercial Brokers
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇
Security Deposit: See Section 11.17 hereof.
ARTICLE II - PREMISES
2.1 PREMISES. On the terms of this Lease, Landlord leases to Tenant,
and Tenant accepts from Landlord, the Premises.
2.2 COMMON AREAS. The term "Common Areas" shall mean all areas within
the Property which are available for the common use of tenants of the Property
from time to time, as designated by Landlord, and which are not leased or held
for the exclusive use of Tenant or other tenants including, but not limited to,
loading areas, hallways, entrances, exits, corridors and two (2) passenger
elevators. Landlord may, from time to time, change the size, location, nature
and use of any of the Common Areas, and convert Common Areas into leasable area
but shall use reasonable efforts not to materially and adversely alter access to
the Premises, shall use reasonable efforts to minimize disruption of Tenant's
business, and shall not reduce the parking ratio below that required by this
Lease. Tenant acknowledges that such activities may result in an inconvenience
or interruption to Tenant, but that Tenant shall not be entitled to (a) any
reduction in rent, except in the event that there is an interruption in Tenant's
ability to conduct business for in excess of a consecutive 24 hour period, or
(b) damages, notwithstanding any interference or interruption of Tenant's
business upon the Premises or any inconvenience caused by construction work.
Tenant shall have the non-exclusive right (in common with other
tenants, their employees, agents and invitees, and all others to whom Landlord
has granted or may grant such rights) to use the Common Areas for the intended
purposes, subject to reasonable rules and regulations established by Landlord
from time to time. Tenant shall abide by such rules and regulations, shall cause
others who use the Common Areas with Tenant's express or implied permission to
abide by Landlord's rules and regulations, and shall not interfere with the
rights of Landlord, other tenants or any other person entitled to use the Common
Areas. Landlord will enforce the rules and regulations in a consistent,
non-discriminatory fashion with all tenants, except where leases or
circumstances require otherwise. At any time, Landlord may close any Common Area
to perform any acts in the Common Area as, in Landlord's reasonable judgment,
are desirable to improve the Property or to protect Landlord's rights with
respect to the Property. Landlord shall maintain the Common Areas in good
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order, condition, replacement and repair, subject to reasonable wear and tear.
Landlord shall maintain parking spaces for Tenant's use from time to time, which
spaces may be provided in common with other tenants and occupants in the
Building from time to time on a first-come, first-serve basis. The number of
Tenant's parking spaces shall be calculated on the basis of four (4.0) spaces
per one thousand square feet of Premises rentable square footage.
ARTICLE III - TERM; LANDLORD'S AND TENANT'S WORK
3.1 TERM. This Lease is for the Term beginning on the Commencement
Date.
3.2 TENANT IMPROVEMENTS; CONDITION OF THE PREMISES. The tenant finish
improvements to be provided by Landlord for the Premises shall be described in a
set of plans and specifications to be developed by Landlord in cooperation with
Tenant ("Landlord's Work"). Landlord shall use reasonable efforts to achieve
Substantial Completion of Landlord's Work prior to the later to occur of (a) the
date which is 120 days after the date on which Landlord and Tenant approve in
writing a final set of plans and specifications (the "Plans"), or (b) August 1,
2000. As used herein, the term "Substantial Completion" shall mean completion of
Landlord's Work, subject to completion of punchlist details of construction or
mechanical adjustments which do not materially interfere with Tenant's work or
use of the Premises, and the obtaining of a Certificate of Occupancy for the
Premises if required by applicable law. At the time Landlord has completed
Landlord's Work, Landlord shall notify Tenant, and Tenant and Landlord shall
jointly inspect the Premises and prepare a punchlist of items to be completed,
if any. Landlord agrees to complete any such punchlist items with respect to
Landlord's Work within sixty (60) days after Substantial Completion of
Landlord's Work. Landlord and Tenant shall cooperate with each other in all
reasonable ways so as to coordinate their work and to achieve the completion of
the work. If Substantial Completion does not occur within one hundred twenty
(120) days after the later to occur of the dates specified in clauses (a) or (b)
of this sentence, as such period may be extended pursuant to Section 28(c)
hereof including, without limitation, because of delays caused by the action or
inaction of Tenant or due to long lead time items (the date as so extended being
referred to herein as the "Outside Delivery Date"), Tenant may elect to
terminate this Lease by giving written notice of such termination to Landlord on
or after the Outside Delivery Date. Such termination shall be effective thirty
(30) days after the receipt of such notice by Landlord unless Substantial
Completion occurs prior to the expiration of such thirty (30)-day period in
which event Tenant's termination notice shall be null and void and of no effect.
Landlord shall bear the cost of Landlord's Work, including, without limitation,
the costs of preparing the Plans and conducting other necessary architectural
and engineering work, up to a maximum of $740,000.00. Tenant shall be
responsible for the cost, if any, of Landlord's Work in excess of such amount,
and shall pay directly to Landlord's general contractor any such excess within
seven (7) business days of receipt by Tenant from Landlord of the invoice
therefor. In the event that the actual cost of Landlord's Work is less than
$740,000.00, Minimum Rent payable under this Lease shall be adjusted to reflect
the reduced cost of Landlord's Work.
Landlord's Work shall be done in a good and workmanlike manner using
first-class new materials and equipment, and in accordance with the requirements
of all applicable Laws and Insurance Regulations as defined in Section 5.1(a).
Subject to the completion of Landlord's Work, the Premises shall be
delivered "AS-IS", subject to all recorded matters, all applicable zoning, and
Laws and Insurance Regulations, as defined in Section 5.1(a), and Landlord shall
not be required to make any repairs or replacements (hereafter jointly
"Repairs") or improvements, alterations or additions (hereafter collectively
"Improvements") to the Premises. Tenant shall have the right to inspect the
Premises prior to delivery of the Premises to Tenant. Tenant's execution of this
Lease shall be deemed an acknowledgment that Tenant has inspected (or had the
opportunity to inspect) the Premises, is satisfied with the condition
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thereof and waives any existing defect in the condition of the Premises or
Property (latent or otherwise), subject to the completion of any necessary
punchlist items.
All Improvements, whether placed in or attached or made to the Premises
prior to or during the Term, shall become and be the property of Landlord and
shall be and remain part of the Premises as of the end of the Term, except any
trade fixtures of Tenant. Tenant shall be solely responsible for the repair of
the Improvements within the Premises except general building systems unless
required as a result of the negligence or willful misconduct of Tenant, its
employees, agents, contractors or invitees. In case of damage or destruction of
such Improvements during the Term of this Lease, Landlord shall have the right
to recover its loss from any insurance company which has insured the same.
3.3 TENANT'S WORK. Tenant's Work, if any, shall be done in a good and
workmanlike manner using first-class new materials and equipment, and in
accordance with the requirements of all applicable Laws and Insurance
Regulations as defined in Section 5.1(a). In the event that Tenant desires to
install communications lines (such as T1 and T3 lines), such installation shall
be at Tenant's sole cost and expense, and Tenant shall be required to post with
Landlord a deposit in the amount of not less than one (1) years service fees
depending upon the contract required by the Building's internet service
provider. In the event that Tenant is able to negotiate its own separate
contract with such internet service provider, then such deposit shall not be
required.
ARTICLE IV - RENT
4.1 BASE RENT AND ADDITIONAL RENT. Tenant shall pay Base Rent monthly,
in advance, on the Commencement Date and on the first day of each calendar month
thereafter. Additional Rent, which includes Operating Cost Rent, Tax Rent and
all other sums (except Base Rent) payable by Tenant, shall be paid when due. If
(i) Base Rent and/or any Additional Rent is not received by Landlord or
otherwise paid by the due date, or (ii) Tenant's check is not honored, and
because actual damages result from late payments and dishonored checks are
difficult to fix, Tenant agrees to pay $100.00 as liquidated damages for each
late payment or dishonored check provided Tenant shall not be required to pay
liquidated damages with respect to the first such failure unless same is not
cured within five (5) days after written notice from Landlord. In addition,
Landlord may charge interest from the initial due date at the rate of the lesser
of eighteen percent (18%) or the maximum legal rate on all amounts not paid or
received by Landlord within five (5) days of the due date. If two (2) or more of
Tenant's checks are dishonored, Landlord may demand all future payments be by
certified or bank check or money order. The late charge and interest payments do
not modify Tenant's obligation to pay Base Rent and Additional Rent when due,
nor is Landlord precluded from pursuing other remedies under the Lease or as are
otherwise available.
4.2 PAYMENT OF RENT. Tenant shall pay all Base Rent, Additional Rent
and costs of every kind relating to the Premises without notice, demand, setoff,
deduction, counterclaim, defense or abatement except as specifically provided in
the Lease.
4.3 TAX RENT. Tenant shall pay Tenant's Pro Rata Share of all Taxes in
excess of the Tax Base ("Tax Rent"). For purposes hereof, the Tax Base shall be
the Taxes for Tax Fiscal Year 2002 (July 1, 2001 through June 30, 2002, based on
the assessment as of January 1, 2001). Taxes shall include real estate taxes,
assessments, sales or use taxes, sewer entrance fees, rent taxes and other
public charges on or relating to the Property including, without limitation, the
Building, other improvements, land and personalty, taxes on rentals, and taxes
in addition to or in lieu of existing taxes, foreseen and unforeseen, ordinary
and extraordinary, and all reasonable costs related to attempts to secure a
refund or abatement (together called "Taxes"); provided Taxes shall not include
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franchise, estate, inheritance, succession, transfer, income or excess profits
taxes assessed on Landlord. Tenant also shall pay before the due date all taxes
attributable to its signs or personal property, and all Tax increases resulting
from Tenant's Improvements to the Premises. If less than ninety-five percent
(95%) of the Building is leased and occupied on the applicable Taxes assessment
date, then the Taxes for such year shall be extrapolated to reflect the Taxes
that would have been assessed had the Building been ninety-five percent (95%)
leased and occupied on the applicable Taxes assessment date.
Tenant's Pro Rata Share shall be based upon Taxes provided Landlord
first shall receive from any Tax refund all costs of securing the refund and, to
the extent Tenant paid Taxes for which the refund was received, Tenant then
shall be entitled to its Pro Rata Share of the balance. Landlord shall have sole
control of all tax abatement proceedings, and the pendency of abatement
proceedings or Landlord's withholding of tax payments shall not affect Tenant's
obligation to pay Taxes as provided herein.
If the Property or the Premises is not separately assessed, Landlord
shall reasonably determine Tenant's Pro Rata Share of Taxes based on the
assessor's worksheet and other reasonably available information.
Tax Rent shall be paid to Landlord monthly with Base Rent in the amount
which Landlord estimates, from time to time, will represent Tenant's Tax Rent.
Landlord shall notify Tenant of its actual Pro Rata Share after receipt of a Tax
▇▇▇▇, and any excess paid by Tenant shall be applied to Tenant's next Tax Rent
payment or refunded, at Landlord's election, or Tenant shall pay any deficiency
within thirty (30) days of such notice.
4.4 OPERATING COSTS RENT. Commencing on January 1, 2002, Tenant shall
pay Tenant's Pro Rata Share of all of the "Operating Costs" in excess of the
Operating Cost Base ("Operating Cost Rent"). The Operating Cost Base shall be
the Operating Costs for the period of January 1, 2001 through December 31, 2001.
(a) "Operating Costs" include all costs and expenses of every kind and
nature incurred by Landlord in operating, managing, equipping, lighting,
cleaning, maintaining, repairing and replacing the Premises, the Building and
the Property including, without limitation, costs for janitorial service,
rubbish removal, HVAC service, utilities, landscaping and snow removal; service
contracts with independent contractors including, but not limited to, elevator
and HVAC maintenance; management fees equal to six percent (6%) of all Rents,
Additional Rents and charges, wages, salaries, benefits, payroll taxes and
unemployment compensation insurance for employees of Landlord or any contractor
of Landlord engaged in the cleaning, operating, maintenance of security of the
Property; the cost of all of Landlord's insurance, including, without
limitation, casualty, liability and loss of rent insurance provided any and all
costs incurred by Landlord shall be properly allocated between the Building and
any other property of Landlord also benefitted. If less than ninety-five percent
(95%) of the Building is leased and occupied at any time during the calendar
year, then the Operating Costs for such year shall be extrapolated to reflect
the Operating Costs that would have been incurred had the Building been
ninety-five percent (95%) leased and occupied during such calendar year. In the
event that other buildings are constructed on the Property, the costs of
maintaining the access roads and other exterior Common Areas will be allocated
among all the buildings (including the Building) in accordance with the
leaseable square footage of such buildings. Operating Costs shall not include
financing expenses, real estate taxes, costs paid directly by individual tenants
to suppliers including tenant electricity and telephone costs. Operating Costs
shall not include any utilities which are separately metered to individual
tenants in the Building, the cost of build out or fit up for individual tenants
in the Building, Direct Reimbursable Expenses (as defined below) of the Tenant
or any other tenants, capital expenditures with respect to the Building made
within the first five (5) Lease Years, and initial construction costs of any
other improvements on the Property. In all Lease Years other than the first
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five (5) Lease Years, only that portion of any capital expenditures attributable
to any rental year (as determined by Landlord in accordance with its accounting
practices) shall be included in Operating Costs for that rental year.
(b) Operating Costs Rent shall be paid to Landlord monthly with Base
Rent in the amount which Landlord estimates, from time to time, will represent
Tenant's Operating Costs Rent. Landlord shall notify Tenant of its actual Pro
Rata Share within ninety (90) days of the end of each calendar year (provided
Landlord's failure to so notify Tenant shall not reduce Tenant's liability when
such notice is issued), and any excess paid by Tenant shall be applied shall be
applied to Tenant's next Operating Cost Rent payment or refunded, at Landlord's
election, or Tenant shall pay any deficiency within fifteen (15) days of such
notice.
(c) In addition to Operating Costs Rent, Tenant shall reimburse
Landlord for Tenant's Direct Reimbursable Expenses. Direct Reimbursable Expenses
means operating costs which can be attributable directly to the operating,
maintenance, repair and/or replacement of the premises of an individual tenant
or group of tenants. Such expenses include, but are not limited to, building
repairs, utilities, janitorial services, HVAC and similar expenses which would
otherwise qualify as operating costs. At Landlord's option and to the extent
Landlord deems feasible, Landlord may (but shall not be required to) charge
Direct Reimbursable Expenses, for which Tenant is responsible, directly to
Tenant or pro rata to those tenants for which such expenses were incurred, and
such expenses shall be due and payable within fifteen (15) days of receipt of a
▇▇▇▇. To the extent Landlord elects to charge tenant or a group of tenants for
Direct Reimbursable Expenses, the applicable amount shall not be included in
Operating Costs for the purposes of determining Tenant's Pro Rata Share so as to
eliminate duplication of charges. If Tenant requests that Landlord perform work
on Tenant's behalf, there shall be added to the cost of such work a ten percent
(10%) administrative fee.
ARTICLE V - TENANT'S COVENANTS AND LANDLORD'S OBLIGATIONS
5.1 GENERAL COVENANTS. In addition to Tenant's other Lease covenants,
Tenant shall, at its expense,
(a) use the Premises solely for the Permitted Use and for no other
purpose, procure all required licenses and permits (other than the building
permit for Landlord's Work and the certificate of occupancy with respect
thereto), and not use the Premises or Property in violation of any laws,
ordinances, orders or regulations of any public authority or of any insurer,
Board of Fire Underwriters, or similar insurance rating bureau having
jurisdiction over the Premises (hereafter collectively "Laws and Insurance
Regulations"), or in a manner which may be injurious to or adversely affect the
general character of the Property and not conduct any auction, bankruptcy or
similar sale thereon;
(b) comply with Landlord's sign criteria, if any, and sign criteria
imposed by applicable governmental authorities and, in connection therewith, and
any signs or lettering in the public corridors or on the doors or visible from
the exterior of the Premises must be submitted to Landlord and its architect for
written approval of the size, color, design and location of such signs or
lettering before installation, such approval not to be unreasonably withheld or
delayed (Landlord hereby agreeing that, subject to the provisions of this
paragraph, Tenant may place an exterior sign on the third floor at the northeast
corner of the Building);
(c) pay, as they become due, all charges for utilities for the Premises
and contract for same in Tenant's name, and Tenant acknowledges that the
electricity for lights, outlets and air conditioning for the Premises shall be
separately metered (the installation of such separate meters being part of
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Landlord's Work);
(d) keep the Premises in a neat, clean, sanitary condition and in good
order and repair (making replacements as necessary) including, without
limitation, doors, locks, hardware, carpets, walls, ceilings, lighting, windows,
plumbing, electrical, sewage, mechanical, air conditioning, ventilating and
heating equipment, and all fixtures and equipment appurtenant to the Premises,
provided that if Tenant makes capital expenditures necessary for repair or
replacement of the HVAC systems serving the Premises during the final two (2)
years of the Term (as extended), Landlord shall reimburse Tenant for the
unamortized cost of such capital expenditures at the end of the Term (based on
the useful life of the item). By way of example, if Tenant replaces the
compressor in the HVAC system on the first day of the sixth (6th) lease year of
the initial term at a cost of $1,000, and if the useful life of the compressor
is five (5) years, then Landlord would reimburse Tenant on the last day of the
Term for three-fifths of the cost of the compressor ($600), and Tenant would
bear the remainder of the cost ($400), which would represent the two (2) years
of use of the compressor of which Tenant had the benefit. In the foregoing
example, if Tenant exercised its option to extend the term for an additional
five-year period, then Tenant would bear 100% of the cost of the compressor.
(e) maintain kitchen areas and all similar areas in a clean and
sanitary condition free of all vermin, wash any dishes and perform any cleaning
necessary to maintain kitchen areas or any other areas in the Premises in which
beverages or foods may be prepared or dispensed; be responsible for any damage
to the Premises arising out of frozen sprinkler system pipes caused by Tenant's
failure to keep windows or doors in the Premises closed during cold weather;
replace broken glass with the same quality glass; and in any event at such times
as may reasonably be required to keep the Premises attractive in appearance; not
overload, damage or deface the Premises; properly store and dispose of all trash
using services (if any) designated by Landlord; and place and maintain business
machines and mechanical equipment and Tenant's other personal property in
settings sufficient to absorb and prevent vibration, noise and annoyance;
(f) make Improvements and Repairs of whatever nature required by Laws
or Insurance Regulations, except that Tenant shall not be required to make any
structural Improvements, unless required as a result of Tenant's Improvements to
or use of the Premises;
(g) pay for all repairs and replacements to the Premises, the Building
and the Property required by Tenant's misuse or negligence;
(h) not act in any manner which prevents Landlord or Tenant from
obtaining, or makes void or voidable, any insurance, or creates extra premiums
for or increases the rate of, insurance, and if Tenant causes extra premiums or
increased rates, Tenant will pay the increased cost to Landlord upon demand;
(i) not act in any manner which prevents Landlord or Tenant from
obtaining, or causes the revocation of, any government license, permit, or
authority, and if as a direct or indirect result of Tenant's business an
addition to or change in the same is required by Laws or Insurance Regulations,
Tenant shall pay for the addition or change;
(j) not use, permit or suffer anything to be done in the Premises or
anything to be brought into or kept in the Premises, in either case, which
occasions undue discomfort or annoyance to any other tenants or occupants of the
Building, or which in Landlord's reasonable judgment may tend to impair the
reputation or appearance of the Building or tend to interfere with the proper
and economic operation of the Building by Landlord, not use the Premises or any
part thereof, or permit the Premises or any part thereof to be used, for the
preparation or dispensing of food, whether by vending machines or otherwise,
provided that subject to the other terms and conditions of this Article and this
Lease, Tenant may install at its own expense so-called hot-cold water fountains,
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coffee makers, beverage vending machines, microwave ovens, refrigerators, sinks
and stoves ("kitchen areas") for the preparation of beverages and foods for
consumption on the Premises by Tenant's employees only, provided that no
cooking, frying, etc. are carried on in the Premises to such extent as requires
special exhaust venting, and provided further that the installation and
operation of such kitchen areas shall not result in any increase in Landlord's
insurance premiums or costs, unless such increase is fully paid for, in advance,
by Tenant, and Tenant hereby acknowledges that the Building is not engineered to
provide any such special venting;
(k) not assign, mortgage, license, transfer or encumber this Lease of
the Premises in whole or in part, or sublease all or any portion of the Premises
(each of the foregoing being a "Transfer") without Landlord's consent which
shall not be unreasonably withheld, and any purported Transfer shall be void and
confer no rights upon any third person unless Tenant first receives Landlord's
prior written consent. If there is a Transfer, Landlord may collect rent from
the transferee without waiving the prohibition against Transfers, accepting the
transferee, or releasing Tenant from full performance under this Lease, and, in
addition to any other remedies available to Landlord, Landlord shall have the
right to terminate this Lease on thirty (30) days written notice within sixty
(60) days after written notice from Tenant to Landlord of any Transfer, or
within one (1) year after Landlord first learns of the Transfer if no notice is
given. In addition, Landlord shall be entitled to fifty percent (50%) of all
consideration which Tenant receives from a sublessee or assignee (whether in a
lump sum, periodic installments or otherwise) in excess of the Base Rent and
Additional Rent due from Tenant under this Lease, less reasonable brokerage fees
incurred by Tenant in connection with such sublease or assignment; and
(l) abide by the Rules and Regulations attached as EXHIBIT B and any
other reasonable rules and regulations made by Landlord from time to time such
rules and regulations to be applied in a consistent, non-discriminatory fashion
for all tenants except where leases or circumstances require otherwise.
(m) provide security for the Premises and its own personnel.
(n) not make any improvements or install any equipment or furniture or
otherwise do anything in the Premises which would cause the load capacity (100
pounds live load) to be exceeded.
5.2 ENVIRONMENTAL COVENANTS.
(a) DEFINITION. As used in this Lease, the term "Hazardous Material"
means any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or including in the definition of "hazardous substances", "hazardous
wastes", "infectious wastes", "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances including, without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently found to
have adverse effects on the environment or the health and safety of persons.
(b) GENERAL PROHIBITION. Tenant shall not cause or permit any Hazardous
Material to be generated, produced, brought upon, used, stored, treated,
discharged, released, spilled or disposed of in the Premises by Tenant, its
affiliates, agents, employees, contractors, sublessees, assignees or invitees,
provided that Tenant may, in accordance with applicable law, use and store
hazardous materials in the amounts and of the types typically used in offices
for cleaning and for office machines and computer equipment. Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
actions (including, without limitation, remedial or enforcement actions of any
kind, administrative or judicial proceedings, and orders or judgments arising
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out of or resulting therefrom), costs, claims, damages (including, without
limitation, punitive damages), reasonable expenses (including, without
limitation, attorneys', consultants' and experts' fees, court costs and amounts
paid in settlement of any claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal injury, property damage, or contamination of, or adverse
effects upon, the environment, water tables or natural resources), liabilities
or losses arising from a breach of this prohibition by Tenant, its affiliates,
agents, employees, contractors, sublessees, assignees or invitees.
(c) NOTICE. In the event that Hazardous Materials are discovered in the
Premises, and any governmental agency or entity having jurisdiction over the
Premises requires the removal of such Hazardous Materials, Tenant shall be
responsible for removing those Hazardous Materials arising out of or related to
the use or occupancy of the Premises by Tenant or its affiliates, agents,
employees, contractors, sublessees, assignees or invitees but not those of its
predecessors. Notwithstanding the foregoing, Tenant shall not take any remedial
action in or about the Premises without first notifying Landlord of Tenant's
intention to do so and affording Landlord the opportunity to protect Landlord's
interest with respect thereto. Tenant immediately shall notify Landlord in
writing of: (i) any spill, release, discharge or disposal of any Hazardous
Material in, on or under the Premises, the Premises or any portion thereof, (ii)
any enforcement, clean-up, removal or other governmental or regulatory action
instituted, contemplated, or threatened (if Tenant has notice thereof) pursuant
to any Hazardous Materials Laws; (iii) any claim made or threatened by any
person against Tenant, the Premises, relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from or claimed to result from
any Hazardous Materials; and (iv) any reports made to any governmental agency or
entity arising out of or in connection with any Hazardous Materials in, on,
under or about or removed from the Premises, including any complaints, notices,
warnings, reports or asserted violations in connection therewith. Tenant also
shall supply to Landlord as promptly as possible, and in any event within five
(5) business days after Tenant first receives or sends the same, copies of all
claims, reports, complaints, notices, warnings or asserted violations relating
in any way to the Premises, the Premises or Tenant's use or occupancy thereof.
(d) SURVIVAL. The respective rights and obligations of Landlord and
Tenant under this subsection shall survive the expiration or earlier termination
of this Lease.
5.3 LANDLORD'S OBLIGATIONS.
(a) Landlord shall provide subject to such reimbursement as may be
provided for in Section 4.4:
1. Access to the Building (8:00 a.m. to 8:00 p.m. Monday
through Friday and 8:00 a.m. to 1:00 p.m. on Saturdays) on
business days (Sundays and Holidays are to be excepted) and at
all other times Landlord agrees to provide limited access to
the Building through mechanical systems.
2. Necessary elevator facilities during regular business hours
(8:00 a.m. to 8:00 p.m. Monday through Friday) on business
days and 8:00 a.m. to 1:00 p.m. on Saturdays (Sundays and
Holidays are to be excepted) and at all other times Landlord
agrees to provide limited automatic elevator service to the
Premises by at least one elevator.
3. Heat and cooling to the Common Areas on business weekdays
from 8:00 a.m. to 8:00 p.m. and on Saturdays from 8:00 a.m. to
1:00 p.m., when heat or cooling may reasonably be required for
the comfortable occupancy of the Building.
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4. Cleaning of the lobby, elevators, public corridors,
washrooms and stairs, and routine cleaning (such as dusting
and vacuuming) of the Premises, including routine trash
removal.
5. Hot and cold running water for washrooms and lavatories and
hot and cold running water to kitchen areas.
6. Electricity for normal lighting of the main lobby,
elevators, washrooms and stairs, but not for the Premises.
7. Shoveling of snow and sanding of ice at the entry and
sidewalks to the Building and plowing of parking areas and
access roads, and maintenance of landscape areas, plantings,
parking areas, and Common Area lighting.
8. Display of Tenant's firm name on the lobby directory as per
the Building standard.
ARTICLE VI - CONDITION OF PREMISES
6.1 IMPROVEMENTS. Landlord shall be responsible for the cost of
preparation of the initial floor plan for Tenant's Improvements prepared by
Dacon and the cost breakdown of the floorplan. Notwithstanding the foregoing,
Tenant may not make structural or non-structural Improvements to the Premises
(or create additional access points to common areas in the Building) without
Landlord's prior written consent which consent with respect to non-structural
Improvements shall not be unreasonably withheld or delayed. Landlord may
require, without limitation, that Tenant submit to Landlord in advance for
Landlord's approval detailed plans and specifications describing Tenant's
Improvements. Landlord shall present any objection to such plans and
specifications within thirty (30) days after their receipt by Landlord. Upon
approval of such plans and specifications by Landlord, Tenant shall construct
Tenant's Improvements. All work by Tenant shall be done at Tenant's own cost
(subject to Section 3.5 hereof), in a good and workmanlike manner, using
first-class materials and in accordance with all Laws and Insurance Regulations,
and any work which affects the structure of the Building or the Building systems
shall be performed so as not, in Landlord's sole judgment, to adversely affect
same. Tenant shall pay when due all charges for labor and materials in
connection with any work on the Premises. Tenant shall furnish indemnification
bonds against performance, liens, costs, damages and expenses in form and amount
satisfactory to Landlord. Tenant's Improvements shall be deemed Improvements. At
the end of the Term of this Lease, Tenant shall, at the option of Landlord,
remove any and all of Tenant's Improvements and restore the Premises to their
original configuration and condition (reasonable wear and tear excepted) to the
installation of Tenant's Improvements including, without limitation, cutting,
capping and disconnecting pipes and wires constituting Tenant's Improvements and
sealing them off in a safe and lawful manner flush with the applicable wall,
floor or ceiling, and redecorating the area consistent with the Improvements in
the Premises.
6.2 FIXTURES; YIELD-UP. Except as Landlord directs in writing, Tenant
shall remove its goods, effects, signs and trade fixtures, and peaceably
yield-up the Premises, broom-clean and in the same condition as at the
Commencement Date, reasonable wear and tear excepted, with all Repairs,
including painting and patching to the Premises required by such removal, having
been made and all utility lines left exposed or unconnected having been capped.
If Tenant fails to remove its property or to make the Repairs by the end of the
Term, Landlord may remove and store Tenant's property in a public warehouse at
Tenant's expense or sell same at public auction, and make the Repairs, and
Tenant promptly shall reimburse Landlord for its costs.
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6.3 MECHANIC'S LIEN. Tenant shall immediately discharge (by payment,
filing of bonds or otherwise) any mechanic's, materialmen's or other lien
against the Premises and/or Landlord's interest therein arising out of any
payment due, or purported to be due, for any labor, services, materials,
supplies, or equipment alleged to have been furnished to or for Tenant.
ARTICLE VII -
7.1 INSURANCE. TENANT shall maintain, at its sole expense, coverages in
the following amounts, and such additional types and amounts of insurance as
Landlord may reasonably require in accordance with customary practices, or as
may be required by Landlord's lender, including the following coverages:
(a) COMMERCIAL GENERAL LIABILITY INSURANCE covering the insured against
claims of Bodily Injury, Personal Injury and Property Damage arising out of
Tenant's operations, assumed liabilities or use of the Property and the
Premises, including the performance by Tenant of the indemnity agreements set
forth in Section 7.3 of this Lease, for limits of liability not less than: (i)
Bodily Injury and Property Damage Liability $1,000,000.00 Each Occurrence and
$3,000,000.00 Annual Aggregate and (ii) Personal Injury Liability $1,000,000.00
Each Occurrence and $3,000,000.00 Annual Aggregate, or combined single limit
coverage of $3,000,000.00 or in such higher limits as or may be reasonably
required by Landlord based upon inflation, increased liability awards,
recommendations of Landlord's professional insurance advisors and other relevant
factors or any Mortgagee, as hereinafter defined. Liability policies obtained
should be extended to include Contractual Liability, Personal Advertising
Injury, Products/Completed Operations, Host or Full Liquor Liability and Fire
Legal Liability.
(b) PROPERTY DAMAGE INSURANCE covering (i) all office furniture, trade
fixtures, office equipment, merchandise and all other items of Tenant's property
on the Premises installed by, for, or at the expense of Tenant, (ii) all Tenant
improvements, and (iii) all other improvements, alterations and additions to the
Premises. Such insurance shall be written on an "all risks" of physical loss or
damage basis, for the full replacement cost value new without deduction for
depreciation of the covered items and in amounts that meet any co-insurance
clauses of the policies of insurance, and shall include a vandalism and
malicious mischief endorsement, sprinkler leakage coverage and earthquake
coverage.
(c) BOILER AND MACHINERY INSURANCE. If during the Term of this Lease,
Tenant shall receive Landlord's prior written consent to operate on the Property
a boiler or other pressured vessels, Tenant shall, as a pre-condition to
installing the same, place and maintain Boiler Insurance with Limits of
Liability in an amount not less than $250,000.00 Per Occurrence or as needed,
and providing coverage for the full replacement value thereof.
(d) WORKER'S COMPENSATION/EMPLOYER'S LIABILITY INSURANCE. If the nature
of Tenant's use of the Premises requires that any or all of its employees be
provided coverage under State Worker's Compensation Insurance or similar
statutes, Tenant shall keep in force Worker's Compensation Insurance or similar
statutory coverage containing statutorily prescribed limits and Employer's
Liability with limits of at least $1,000,000.00 Bodily Injury by Accident for
Each Accident, $1,000,000.00 Bodily Injury by Disease for Each Person and
$1,000,000.00 Bodily Injury by Disease policy limit.
Landlord and Tenant acknowledge that insurance markets experience rapid
changes, and that insurance in the form and amounts described in this Lease may
not be available in the future. Therefore, if Tenant is unable to maintain the
insurance required under this Lease, Tenant shall remain obligated to maintain
insurance coverage which is customary and commercially reasonable in the
insurance industry for Tenant's type of business, as that coverage may change
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from time to time. Landlord makes no representation as to the adequacy of any
insurance required under this Lease and, as a result, Tenant shall obtain any
such additional insurance which Tenant deems necessary to protect Landlord and
Tenant. The amount and coverage of Tenant's insurance shall not limit Tenant's
liability nor relieve Tenant of any obligation under this Lease.
7.2 TENANT'S RISK. Except as modified by statute, all merchandise,
furniture, fixtures and property which may be on or about the Premises, Building
or Property shall be at the sole risk and hazard of Tenant.
7.3 GENERAL REQUIREMENTS. All insurance policies shall be with
companies qualified to do business in the state in which the Premises are
located and acceptable to Landlord, and shall name Landlord, and if Landlord so
requests, Landlord's mortgagee(s) and any other party, as insured parties on
casualty policies and additional named insureds on liability policies. In
addition, all liability insurance obtained by Tenant shall be (a) primary
insurance as to all claims thereunder and provide that any insurance carried by
Landlord is not excess and is non-contributing with any insurance of Tenant; (b)
contain cost liability endorsements or a severability of interest clause
acceptable to Landlord; (c) be written on an occurrence basis; and (d)
specifically cover the liability assumed by Tenant under this Lease including,
but not limited to, Tenant's obligations under Section 7.4. Tenant shall deliver
a copy of the policies or certificates of all insurance to Landlord prior to the
earlier of entry on the Premises or the Commencement Date, and copies of the new
policies or new certificates not later than thirty (30) days prior to the
expiration of each policy. Each policy shall provide (and the certificate shall
evidence) that it will not expire, or be cancelled or modified without thirty
(30) days prior written notice to Landlord and, if Landlord requests, to
Landlord's mortgagee(s). If Tenant fails to deliver a policy or certificate to
Landlord as required or if any policy is cancelled or modified during the term
without Landlord's consent, Landlord may obtain such insurance on behalf of
Tenant in which case Tenant shall reimburse Landlord, as additional rent, for
the cost of such insurance plus interest at the rate set forth in Section 4.1
within fifteen (15) days after receipt of a statement indicating the cost of
such insurance.
7.4 INDEMNITY. Tenant shall save Landlord harmless, and shall exonerate
and indemnify Landlord from all claims, liabilities, penalties and expenses
arising (a) in connection with death, injury and/or property damage on or
related to the Premises which Tenant acknowledges are, subject to the terms of
the Lease, under Tenant's exclusive or substantial control, charge, custody and
possession (except to the extent caused by any act or omission of Landlord, its
agents contractors, or employees), or (b) anywhere if caused wholly or in part
by any act or omission of Tenant, its officers, agents, employees, other
occupants of the Premises or Tenant's invitees. If Landlord is threatened with
or made a party to any litigation commenced by or against Tenant or any of the
above parties, or with respect to any matter described above, Tenant shall
indemnify and defend Landlord with counsel reasonably acceptable to Landlord or,
at Landlord's option, shall advance to Landlord all costs including reasonable
attorney's fees in connection with such litigation. All of the foregoing shall
be limited to the extent required by Law.
7.5 WAIVER OF SUBROGATION.
(a) Landlord and Tenant release each other and each other's officers,
directors, employees and agents from liability or responsibility for any loss or
damage to their respective property covered by valid and collectible insurance,
or which would have been covered if the party complied with the provisions of
this Lease. The release shall apply to the parties and anyone claiming through
or under the parties by way of subrogation or otherwise, and even if the
occurrence was caused by the fault or negligence of a party or anyone for whom a
party is responsible, provided the release shall be applicable only for loss or
damage occurring when the releasor's policies provide that the release shall not
adversely affect the policies or the releasor's recovery rights. Landlord and
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Tenant each agree that its policies will include such a provision if available
without extra cost, or if the other party pays the extra cost, and each promptly
shall notify the other of any extra cost.
(b) Notwithstanding any other provision of this Lease and subject to
applicable law, (i) Landlord shall not be liable to Tenant for any loss or
damage, whether or not such loss or damage is caused by the negligence of
Landlord, its agents, servants or employees, to the extent that such loss or
damage is covered by valid and enforceable insurance carried by Tenant; and (ii)
Tenant shall not be liable to Landlord for any loss or damage, whether or not
such loss or damage is caused by the negligence of Tenant or its agents,
servants or employees, to the extent that such loss or damage is covered by
valid and enforceable insurance carried by Landlord.
7.6 LANDLORD'S INSURANCE. Landlord represents and warrants to Tenant
that, on the date of this Lease, Landlord carries insurance with respect to the
Building and the Property of the types and in the amounts set forth on EXHIBIT C
hereto, and Landlord agrees to maintain throughout the Term such insurance or
such other insurance as may be required by Landlord's lender or as may be
customary for buildings similar to the Building.
ARTICLE VIII - CASUALTIES AND EMINENT DOMAIN
8.1 DAMAGE. If the Premises become untenantable in whole or part
because of fire or other casualty covered by insurance, or as the result of a
taking of, or damage to, the Premises or the Building as a result of the
exercise of any power of eminent domain, condemnation, or purchase under threat
or in lieu thereof ("Taking"), then unless the Lease is terminated in accordance
with Section 8.2, Landlord, with reasonable dispatch (but subject to delays for
adjustment of insurance proceeds and causes beyond Landlord's reasonable
control), shall repair the damage so that the Premises are in substantially the
same condition as on delivery of possession subject to rights of mortgagees,
zoning laws, and building codes then in existence, and provided Landlord shall
not be required to expend more than the net insurance proceeds Landlord receives
for damage to the Premises or the net Taking award attributable to the Premises.
"Net" means the insurance proceeds or award less all costs and expenses,
including adjusters and attorney's fees, of obtaining the same. Notwithstanding
the foregoing to the contrary, (a) Tenant shall be required to pay to Landlord
the amount of any deductible under Landlord's insurance policy if the casualty
is the result of the acts or omissions of Tenant, its subtenants, assignees or
the employee, agents, or visitors of any of such parties and (b) Landlord shall
have the right to require Tenant to perform all or any portion of the repair
which Landlord would otherwise make and Landlord shall reimburse Tenant for the
cost thereof. Tenant immediately shall give written notice to Landlord of any
damage to the Premises.
8.2 TERMINATION RIGHTS.
(a) If either the Premises or Building are damaged to the extent of 10%
or more of its insurable value, or by a risk not covered by Landlord's
insurance, or the cost of repair would excess $50,000.00, or the damage is of a
character that it cannot reasonably be repaired within sixty (60) days of the
date on which repair work commences, or
(b) If 25% or more of either (i) the floor area of the Building, or
(ii) the land which constitutes the Premises is Taken,
then Landlord may elect to terminate this Lease by written notice to Tenant (x)
within sixty (60) days after the damage or (y) within six (6) months of the date
on which the condemning authority has the right to possession ("Taking Date") in
which case the Lease shall terminate as of the Taking Date. If the entire
Premises are taken by eminent domain, except for temporary use, this Lease shall
terminate automatically as of the Taking Date.
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8.3 ABATEMENT. If a portion of the Premises is damaged or Taken, except
for temporary use, and this Lease is not terminated, the Base Rent and Tenant's
Pro Rata Share shall be reduced proportionately based on the area of the
Premises damaged and therefore not used by Tenant, or Taken, until the earlier
of when Landlord's Repairs to the Premises are completed or Tenant begins using
the damaged area.
8.4 TAKING FOR TEMPORARY USE. If the Premises is Taken for temporary
use, this Lease and Tenant's obligations shall continue, except to the extent
the Taking renders compliance impossible or impracticable.
8.5 DISPOSITION OF AWARDS. Except for any separate award for Tenant's
movable trade fixtures or relocation expenses which does not reduce Landlord's
award, all Taking awards to Landlord or Tenant shall be Landlord's property
without Tenant's participation. Tenant assigns to Landlord Tenant's share of
such award, waives any rights with respect to the loss of its leasehold interest
and the Premises, and agrees to execute such instruments as may be necessary to
confirm the assignment and to deliver to Landlord any such award recovered by
Tenant except the separate award described above.
ARTICLE IX - DEFAULTS AND REMEDIES
9.1 TENANT'S DEFAULT. The following conditions shall be considered a
"Default" by Tenant:
(a) failure to pay Base Rent or the scheduled amount of any Additional
Rent when due, provided that with the first failure to pay on any twelve (12)
month period, Tenant shall be entitled to written notice and five (5) day cure
period, or failure to pay any unscheduled payment of Additional Rent or any
other charge payable by Tenant to Landlord hereunder within fifteen (15) days of
receipt by Tenant of Landlord's notice that such amount is due; or
(b) Tenant's leasehold estate is taken by execution or other process of
law; or Tenant is liquidated, dissolved, commits an act of bankruptcy, is
declared bankrupt or insolvent according to law or admits in writing its
inability to pay debts generally as they become due, or an assignment of
Tenant's property is made for the benefit of creditors or a receiver, guardian,
conservator, trustee or assignee, or any other similar officer or person is
appointed to take charge of any part of Tenant's property; or any reorganization
or similar proceedings are commenced by or against Tenant under any bankruptcy
or insolvency law and not dismissed within sixty (60) days from its
commencement; or any court enters an order providing for the modification of
rights of Tenant's creditors; or
(c) vacating the Premises or closing for business for an aggregate
period during the Term exceeding thirty (30) days except for fire or casualties;
or
(d) a Transfer without Landlord's prior written consent; or
(e) failure to perform or observe any other Lease terms or covenants
for a period of thirty (30) days after notice, or if same shall reasonably take
longer than thirty (30) days, if Tenant fails to commence same promptly and to
complete same with due diligence; or
(f) any other breach for which the Lease gives Landlord the right of
termination.
If Tenant Defaults, Landlord may at any time until the Default is cured
either (1) terminate this Lease by written notice effective on the date of the
notice or on any date specified in the notice, or (2) without demand or notice,
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re-enter, take possession and repossess the Premises and, with a court order and
at Tenant's risk, expel Tenant and those claiming under Tenant and remove, store
and sell their effects at public action, all without prejudice to any remedies
for arrearages or preceding Defaults. The net proceeds of any sale shall be
applied to sums due to Landlord from Tenant and the balance paid to Tenant.
Tenant waives all statutory rights (including rights of redemption) to the
extent such rights may be lawfully waived. With or without terminating this
Lease, Landlord may re-let all or any part of the Premises from time to time for
periods (even if beyond the Term of this Lease), at such rental, and upon the
terms and conditions as Landlord deems advisable, and may make Improvements and
Repairs to the Premises. No re-entry or taking of possession by Landlord shall
terminate this Lease unless Landlord gives a written notice of such intention to
Tenant or a court of competent jurisdiction terminates the Lease.
9.2 DAMAGES. Tenant's liability and obligations under this Lease shall
survive termination or repossession, and Tenant shall pay as current damages the
Base Rent, Additional Rent and other sums up to what would have been the end of
the Term in the absence of the termination or repossession, with a credit for
the net proceeds, if any, Landlord receives from any reletting of the Premises,
after deducting all of Landlord's expenses in connection with the reletting
including, without limitation, expenses of preparing the Premises for the
reletting. Tenant shall pay the current damages to Landlord on the days Base
Rent would have been payable if not for the termination or repossession. In
addition, and notwithstanding any Lease provision or the termination of this
Lease, Tenant shall reimburse Landlord for any free rent and construction
allowance, and all other reasonable and customary expenses and liabilities
incurred by Landlord in connection with Tenant's Default including brokerage
commissions, reasonable attorneys' fees, and reasonable alteration costs.
Landlord shall have an obligation to use commercially reasonable efforts to
re-let the Premises and otherwise to use commercially reasonable efforts to
mitigate damages.
After any termination or repossession, whether or not Landlord has
collected any current damages, Tenant shall pay to Landlord, at Landlord's
option and on demand, liquidated final damages in lieu of all current damages
beyond the date final damages are paid. The final damages shall be the amount by
which (i) all rent and other charges which would be payable from the date to
which Tenant paid current damages through what would have been the unexpired
Term exceeds (ii) the then fair net rental value of the Premises for the same
period. If any law validly limits the amount of final liquidated damages to less
than described above, Landlord shall be entitled to the maximum amount legally
allowed. For purposes of this Section, the rent is Tenant's highest total Base
and Additional Rent due for any twelve (12) month period preceding the
termination or repossession.
9.3 LANDLORD'S SELF HELP. If Tenant Defaults, Landlord may, at its
option, without waiving its right to terminate this Lease or its claim for
damages, cure the Default, and Tenant shall reimburse Landlord for any amount
paid or contractual liability incurred by Landlord in doing so; provided
Landlord may immediately cure any Default or failure by Tenant to perform any
Lease obligation if the cure or performance is reasonably necessary to protect
the Premises or Landlord's interests, or to prevent injury or damage to persons
or property. If Tenant fails to reimburse Landlord upon demand, such amount
shall be added to the next payment of rent due without further notice. Landlord
agrees to give Tenant prior notice of Landlord's intention to enter the Premises
for the purposes of exercising such self-help right, except in case of
emergency.
9.4 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default
hereunder unless its default continues for thirty (30) days, or such additional
time as is reasonably required to correct its default, after Tenant has given
written notice to Landlord specifying the nature of the alleged default. If
Landlord is in default, Landlord shall use due diligence to commence curing the
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default within a reasonable time after receipt of notice thereof.
ARTICLE X - SUBORDINATION
10.1 SUBORDINATION. Tenant's rights and interests under this Lease
shall be (i) subject and subordinate to any existing or future mortgages, deeds
of trust, ▇▇▇▇▇▇▇▇▇, or similar instruments covering the Premises and to all
advances, modifications, renewals, replacements, and extensions ("Mortgages")
provided Tenant receives from each Mortgagee (which shall include ground lessor)
a Non-Disturbance Agreement whereby Tenant's rights to possess the Premises
shall not be disturbed in the event of a foreclosure of the applicable Mortgage,
or (ii) if the Mortgagee elects, prior to the lien of any present or future
Mortgagee. Tenant further shall attorn to and recognize any successor landlord,
whether through foreclosure or otherwise, as if the successor landlord were the
originally named Landlord. Tenant concurrently shall give Mortgagee the same
notices given to Landlord, and Mortgagee shall have the same opportunity and
rights to cure as is available to Landlord to cure a default provided Mortgagee
shall have an additional thirty (30) days after the expiration of Landlord's
cure period within which to commence a cure or such longer period as may be
reasonably necessary including, without limitation, any period of time
reasonably required for the Mortgagee to obtain possession of the Property or
the Premises from Landlord. Mortgagee's curing of any of Landlord's default
shall be treated as performance by Landlord. Although this Section shall be
self-executing and no further instrument shall be necessary, Landlord agrees to
give Tenant written notice of any Mortgages, and Tenant shall execute and
deliver any instruments Landlord reasonably requires for the above purposes,
provided that Tenant receives a Non-Disturbance Agreement from the Mortgagee as
set forth above. An assignment of lease or similar document shall not result in
the assignee having any liability until the assignee takes possession.
Notwithstanding the foregoing to the contrary, Landlord shall use reasonable
efforts to obtain a so-called "non-disturbance agreement" for Tenant from any
existing and future mortgagees.
10.2 REQUEST BY MORTGAGEE. If a Mortgagee or prospective Mortgagee
requests any Lease modifications which do not have a material adverse effect on
Tenant's rights, Tenant will enter into a written modification agreement in
recordable form (which shall have the same force as a Lease amendment) if the
Mortgagee forecloses or takes similar action. The modification shall not affect
the length of the Term or the size, use, or location of the Premises.
ARTICLE XI - MISCELLANEOUS PROVISIONS
11.1 PARTIES BOUND. Except as otherwise provided, the Lease agreements
and conditions to be performed and observed by Landlord or Tenant shall bind and
inure to the heirs, legal representatives, successors and assigns of each,
provided no reference to Tenant's successors and assigns will constitute a
consent to a Transfer by Tenant. If Tenant consists of more than one person or
entity, or if there is a guarantor, then all such persons, entities and
guarantors shall be jointly and severally liable and the word "Tenant," as used
in this Lease, including Article IX, includes such person, entities, and
guarantors. The word "Landlord" means only the owner, or the lessee if this
Lease becomes subject to an ▇▇▇▇▇▇▇▇▇, or the mortgagee in possession of the
Premises, for the time being, so that if the Premises is sold, a mortgagee takes
possession, or another becomes landlord, all prior landlords, including
Landlord, automatically shall be entirely relieved of all landlord covenants and
obligations accruing thereafter. If the entity which holds Landlord's interest
in this Lease is a trust, then the Landlord obligations shall be binding upon
the trustees of said trust, as trustees and not individually, and not upon the
trust estate.
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11.2 LANDLORD'S LIABILITIES AND ADDITIONAL RIGHTS.
(a) Landlord shall have no obligations or liability with respect to or
in any way connected with the Premises or the Building, or services to be
provided from same, except to the extent, if any, specifically set forth in the
Lease. Landlord shall not be deemed to have committed a breach of any repair
obligations unless it makes repairs negligently or fails to commence repairs
within a reasonable time after Landlord receives notice from Tenant, and
Landlord's liability in any case shall be limited to the cost of making the
required repairs.
(b) Landlord shall not be liable for indirect or consequential damages
for any reason, or for any inconvenience, interruption or consequences resulting
from the failure of utilities or any service, making repairs, improvements or
resulting from leaks of steam, gas, electricity, water, or any other substance
from pipes, wires or other conduits, or from the bursting or stoppage thereof,
or from leaks of water, snow, or rain from the plumbing, roof, or for wetness or
dampness for any reason.
(c) Tenant agrees for itself and each succeeding holder of Tenant's
interest, or any portion thereof, that any judgment, decree or award obtained
against Landlord, or any succeeding owner of Landlord's interest, which is
related to this Lease or the Premises, whether at law or in equity, shall be
satisfied out of Landlord's equity in the Premises, and further agrees to look
only such assets and to no other assets of Landlord for satisfaction. In no
event shall Tenant have the right to deduct any amount allegedly owed to Tenant
from any rent or other sums payable to Landlord hereunder, Tenant's sole remedy
being an independent action against Landlord for such claim.
(d) Landlord reserves the right at any time or times during the Term
and without charge, abatement or reduction in rent, after prior reasonable
notice to Tenant (except in the case of an emergency) (i) to examine the
Premises at reasonable times; (ii) to show the Premises at reasonable times
commencing six (6) months prior to the end of the Term; (iii) to put up "For
Sale" or "For Rent" signs, which signs Tenant shall not move, remove, block or
otherwise interfere with; (iv) to perform such work as may be required by this
Lease, any public authority, or to facilitate making repairs or improvements to
the Building, the Property or any portion thereof, provided that unless any such
work is of an emergency nature, Landlord shall give reasonable notice and shall
use reasonable efforts to minimize interference with Tenant's operations; (v) to
make repairs which Tenant fails to make promptly; and (vi) to enter upon the
Premises for the foregoing purposes.
11.3 COVENANTS AND CONDITIONS. Each term and each provision of this
Lease to be performed by Tenant shall be construed to be both a covenant and a
condition.
11.4 COSTS AND EXPENSES. Acts to be done by Tenant pursuant to this
Lease shall be at the cost and expense of Tenant unless a contrary intent is
expressed. In addition, Tenant shall reimburse Landlord for any costs or
expenses incurred in connection with enforcement of this Lease by Landlord.
11.5 HOLDING OVER. If Tenant or anyone claiming under it holds over
after end of the Term, the party shall, prior to Landlord's acceptance of rent,
be a tenant at sufferance, and, after Landlord's acceptance of rent, be a tenant
at will subject to the provisions of this Lease insofar as the same may be made
applicable to a tenancy at will; provided that Tenant shall pay Base Rent for
the period of such tenancy at the greater of 1.75 times the highest rate of Base
Rent payable during the Term or market rent, and, in addition, Tenant shall be
liable for all damages incurred by Landlord (including consequential damages) as
a result of the holding over.
11.6 QUIET ENJOYMENT. Provided Tenant timely pays all rent and performs
and observe the terms, conditions and covenants of the Lease, Tenant may
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peaceably and quietly have, hold and enjoy the Premises as provided in the
Lease, without hindrance or molestation from Landlord or anyone claiming legally
under Landlord, subject to the terms of this Lease and any instruments having
priority.
11.7 NO BROKERAGE. Tenant warrants and represents that it has dealt
with no broker in connection with this Lease except the Broker (if any). Tenant
agrees to defend and indemnify Landlord against any brokerage claims related to
this Lease other than by the Broker. Landlord shall pay all commissions due to
Broker in accordance with a separate agreement.
11.8 CERTIFICATES. Within ten (10) days after Landlord's request,
Tenant shall deliver to Landlord or to any prospective Mortgagee or purchaser
(a) an estoppel certificate in recordable form stating such information as
Landlord reasonably requests, and the certificate shall be binding on Tenant,
and (b) such financial statements as Landlord reasonably requires to verify the
net worth of Tenant or any Transferee or Guarantor of Tenant, and Tenant
represents and warrants that each such financial statement shall be true and
accurate as of the date thereof. All financial statements shall be confidential
and shall be used only for the purposes relating to this Lease or the Property.
Landlord agrees to deliver to Tenant within ten (10) days after Tenant's
request, an estoppel certificate stating whether this Lease is in full force and
effect and whether Landlord is aware of any defaults hereunder and providing
such other information as is reasonable and customary in a landlord's estoppel.
11.9 NOTICES. Any notice, consent, or other communication relating to
this Lease shall be given in writing and by hand, by registered or certified
mail or overnight express mail such as "Federal Express", postage or charges
prepaid, to the other party's Notice Address or for Tenant to the Premises, to
such other address or addresses as may be designated by the party by notice, and
if to a Mortgagee, to such address as the Mortgagee shall designate.
11.10 NO WAIVER. Landlord's or Tenant's failure to complain of any act
or omission of the other, no matter how long it continues, shall not be deemed a
waiver of any of Landlord's or Tenant's rights. Landlord's or Tenant's waiver,
express or implied, of any breach of this Lease shall not be deemed a waiver of
a breach of any other provision or a consent to any subsequent breach of the
same or any other provision. Landlord's or Tenant's consent to or approval to
any action on one occasion shall not be deemed a consent to or approval of any
other action or to such action on any subsequent occasion. Tenant's payment or
Landlord's acceptance of a lesser amount than is due from Tenant to Landlord
shall not be deemed anything but payment on account and Landlord's acceptance of
a check for a lesser amount with an endorsement or statement thereon or upon a
letter accompanying the check that the lesser amount is payment in full shall
not be deemed an accord and satisfaction, and Landlord may accept the check
without prejudice to recover the balance due or pursue any other remedy. All of
Landlord's and Tenant's rights and remedies under this Lease or by operation of
law, either at law or in equity, for any breach shall be distinct, separate,
cumulative and non-exclusive and shall not be deemed inconsistent with each
other.
11.11 FORCE MAJEURE. If Landlord's or Tenant's performance of any act
(other than the payment of money) is delayed, or prevented because of strikes,
lockouts, labor troubles, inability to procure materials, power failures,
restrictive Laws, riots, insurrection, war, collection of insurance proceeds or
taking awards or other causes beyond Landlord's or Tenant's reasonable control,
then Landlord's or Tenant's performance shall be excused for the period of the
delay and any time period shall be extended for an equivalent period.
11.12 RECORDING. Tenant shall not record this Lease, but may record a
memorandum in form acceptable to Landlord and Tenant hereof. Any breach of this
covenant shall cause this Lease to terminate automatically, if Landlord so
elects in writing.
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11.13 PARAGRAPH HEADINGS. All paragraph headings are for convenience
and reference only, and shall not be held to explain, modify, amplify or aid in
the construction, interpretation or meaning of the provisions of this Lease.
11.14 GOVERNING LAW. This Lease shall be governed by the laws of the
state in which the Premises are located.
11.15 SEPARABILITY; CONSTRUCTION AND INTERPRETATION. If any Lease term
or provision or the application thereof to any person or circumstance is invalid
or unenforceable, the remainder of this Lease, or the application of the term or
provision to other persons or circumstances shall not be affected, and the Lease
shall be valid and be enforced to the fullest extent permitted by law. If any
Lease provision is capable of two constructions, then the provision shall have
the meaning which renders it valid.
11.16 WHEN LEASE BECOMES BINDING; ENTIRE AGREEMENT. Landlord's
employees or agents have no authority to make or agree to make a lease or any
other agreement or undertaking, and the submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall become
effective and binding only upon the execution and delivery by both Landlord and
Tenant. All negotiations, considerations, representations, and understandings
between Landlord and Tenant are incorporated herein, and no oral statements or
prior or contemporaneous written matter, whether by the parties or otherwise,
which is not specifically incorporated herein shall be of any force or effect.
In entering into this Lease, Tenant relies solely upon the representations and
agreements contained herein. This Lease shall not be modified except by writing
executed by both parties and no act or omission of any employee or agent of
Landlord shall alter, change or modify any of the provisions hereof.
11.17 SECURITY DEPOSIT.Within seven (7) days after full execution and
delivery of this Lease by the parties hereto, Tenant shall deposit with Landlord
an irrevocable standby letter of credit in form and substance satisfactory to
Landlord in the amount of $650,000.00 (the "Security Deposit") as security for
the faithful performance and observance by Tenant of the terms, provisions and
conditions of this Lease. It is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this Lease, Landlord
may use, apply or retain the whole or any part of the Security Deposit to the
extent required for payment of any Rent or any other sum as to which Tenant is
in default or for any sum which Landlord may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms, covenants and
conditions of this Lease, including but not limited to any damage or deficiency
accrued before or after summary proceedings or other reentry by Landlord,
including the costs of such proceeding or reentry and further including, without
limitation, reasonable attorney's fees. It is agreed that Landlord shall always
have the right to apply the Security Deposit, or any part thereof, as aforesaid,
without notice and without prejudice to any other remedy or remedies which
Landlord may have, or Landlord may pursue any other such remedy or remedies in
lieu of applying the Security Deposit or any part thereof. No interest shall be
payable on the Security Deposit. If Landlord shall use, apply or retain the
Security Deposit in whole or in part and the Lease continues or Tenant's
occupancy continues in the Premises, Tenant shall within ten (10) days after
written notice form the Landlord make such further or other deposit of monies as
may be necessary to bring the balance of the deposit to a sum equal to the
initial Security Deposit. In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the Security Deposit shall be returned to Tenant within ninety (90) days
after the date fixed as the end of the Lease and after delivery of entire
possession of the Premises to Landlord in accordance with the terms of this
Lease. In the event of a sale or other transfer of the Building, or leasing of
the entire Building including the Premises subject to Tenant's tenancy
hereunder, Landlord shall transfer the Security Deposit then remaining to the
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vendee or lessee and Landlord shall thereupon be released from all liability for
the return of such Security Deposit to Tenant; and Tenant agrees to look solely
to the new Landlord for the return of said Security Deposit then remaining. The
holder of any mortgage upon the Building or Lot shall never be responsible to
Tenant for the Security Deposit or its application or return unless the Security
Deposit shall actually have been received in hand by such holder. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the Security Deposit and that neither Landlord nor its successors or assigns
shall be bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance. Notwithstanding the foregoing, in the event that Tenant,
during the term of this Lease, raises in excess of $25,000,000.00 in equity
capital, the amount of the Security Deposit required hereunder shall be reduced
to $325,000.00, and in the event that Tenant, during the term of this Lease,
raises in excess of $50,000,000.00 in equity capital, then Landlord agrees to
return the unused portion of the Security Deposit to Tenant. Landlord agrees to
notify Tenant in the event that Landlord intends to draw upon the Security
Deposit, but the giving of such notice shall not be a precondition to the
exercise of Landlord's rights to draw upon the Security Deposit.
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11.18 EXECUTION. This Lease may be executed in any number of original
counterparts. Each fully executed counterpart shall be deemed an original for
all purposes.
EXECUTED AS A SEALED INSTRUMENT.
LANDLORD:
CLAREMONT BRIDGEWATER I, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Claremont Bridgewater I, LLC
TENANT:
ENVISION DEVELOPMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Patch
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its
Print Name: ▇▇▇▇▇▇▇ ▇. Patch hereunto duly authorized
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