LEASE AGREEMENT BETWEEN
WHTR REAL ESTATE LIMITED PARTNERSHIP, AS LANDLORD, AND
NUR AMERICA, INC., AS TENANT
DATED AS OF JULY 10, 1998
TABLE OF CONTENTS
Page
1. LEASE GRANT .........................................................1
2. TERM ................................................................1
3. RENT ................................................................1
4. DELINQUENT PAYMENT; HANDLING CHARGES ................................4
5. SECURITY DEPOSIT ....................................................4
6. LANDLORD'S OBLIGATIONS; UTILITIES ...................................4
7. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE .....................6
8. USE .................................................................7
9. ASSIGNMENT AND SUBLETTING ...........................................7
10. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY ..........................8
11. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE ...........9
12. RULES AND REGULATIONS...............................................10
13. CONDEMNATION........................................................10
14. FIRE OR OTHER CASUALTY..............................................11
15. PERSONAL PROPERTY TAXES.............................................11
16. EVENTS OF DEFAULT...................................................12
17. REMEDIES............................................................12
18. PAYMENT BY TENANT; NON-WAIVER.......................................13
19. ENVIRONMENTAL PROTECTION............................................14
20. SURRENDER OF PREMISES...............................................15
21. HOLDING OVER........................................................15
22. CERTAIN RIGHTS RESERVED BY LANDLORD.................................16
23. SIGNS...............................................................16
24. PARKING; TRAILER....................................................16
25. MISCELLANEOUS.......................................................17
26. OTHER PROVISIONS....................................................20
EXHIBIT A - LEGAL DESCRIPTION OF THE LAND...............................23
EXHIBIT B - RULES AND REGULATIONS.......................................24
EXHIBIT C - TENANT FINISH WORK..........................................26
EXHIBIT D - RENEWAL OPTION..............................................28
EXHIBIT E - SITE PLAN...................................................29
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is hereby entered into as of July
10, 1998 by and between WHTR REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord"), and NUR AMERICA, INC., a Delaware corporation
("Tenant).
1. Lease Grant. Subject to the terms and provisions of this Lease,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the
entire building known as and located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
(the "Premises" or the "Building"). The parcel of land on which the Building is
located (the "Land") is described on Exhibit A. Also located on the Land is a
building known as and located at ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
(the "19-31 Building"). The term "Buildings" as used herein shall mean
collectively the Building and the 19-31 Building. The term "Property" as used
herein shall mean collectively the Buildings, the Land and all other
improvements now or hereafter located on the Land.
2. Term. The term of this Lease shall be one hundred twenty-three
(123) months commencing on August 1, 1998 (the "Commencement Date") and expiring
at 5:00 p.m., on October 31, 2008 (the "Term", which definition shall include
all renewals or extensions of the initial Term), unless earlier terminated
pursuant to the provisions of this Lease.
3. Rent
(a) Basic Rent. "Basic Rent" (herein so called) shall be the following
amounts for the following periods of time:
Time Period Monthly Basic Rent Annual Basic Rent
----------- ------------------ -----------------
August 1, 1998 - October 31, 2001 $2,800.00 $33,600.00
November 1, 2001 - October 31, 2003 $3,150.00 $37,800.00
November 1, 2003 - October 31, 2005 $3,500.00 $42,000.00
November 1, 2005 - October 31, 2008 $3,850.00 $46,200.00
(b) Payment. Tenant shall timely pay to Landlord Basic Rent and all
additional sums to be paid by Tenant to Landlord under this Lease (collectively,
the "Rent"), without deduction or set off, at Landlord's address provided for in
this Lease or as otherwise specified by Landlord. Basic Rent, adjusted as herein
provided, shall be payable monthly in advance, and shall be accompanied by all
applicable state and local sales or use taxes. The monthly installment of Basic
Rent for the fourth month of the Term shall be payable contemporaneously with
the execution of this Lease; thereafter, Basic Rent shall be payable on the
first day of each month beginning on the first day of the fifth full calendar
month of the Term. Basic Rent shall conditionally ▇▇▇▇▇ during the first three
(3) months of the Term. Notwithstanding such abatement of Basic Rent (i) all
other sums due under this Lease, including Additional Rent (as defined in
Section 3(c) below), shall be payable as provided in this Lease, and (ii) any
increases in Basic Rent set forth in this
Lease shall occur on the dates scheduled therefor. The abatement of Basic Rent
provided for in this Section 3(b) is conditioned upon Tenant's full and timely
performance of all of Tenant's obligations under this Lease. If at any time
during the Term an Event of Default (as defined in Section 16 below) occurs,
then the abatement of Basic Rent provided for in this Section 3(c) shall
immediately become void, and Tenant shall pay to Landlord upon demand, in
addition to all other amounts due to Landlord under this Lease, the full amount
of all Basic Rent herein abated.
(c) Additional Rent.
(1) Tenant shall pay, as additional rent (the "Additional Rent"), for
each calendar year or partial calendar year during the Term, an amount equal to
the sum of (i) Tenant's Proportionate Share (defined below) of the total
Operating Costs (defined below) (other than Building Operating Costs or 19-31
Building Operating Costs, each as defined below) for the calendar year in
question plus (ii) 100% of the Building Operating Costs for the calendar year in
question plus (iii) Tenant's Proportionate Share of the total Taxes (defined
below) for the calendar year in question. Landlord may collect such amount in a
lump sum, which shall be due within 30 days after Landlord furnishes to Tenant
the Operating Costs and Tax Statement (defined below). Alternatively, Landlord
may make a good faith estimate of the Additional Rent to be due by Tenant for
any calendar year or part thereof during the Term, and Tenant shall pay to
Landlord, on the Commencement Date and on the first day of each calendar month
thereafter, an amount equal to the estimated Additional Rent for such calendar
year or part thereof divided by the number of months therein. From time to time,
Landlord may estimate and re-estimate the Additional Rent to be due by Tenant
and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the
monthly installments of Additional Rent payable by Tenant shall be appropriately
adjusted in accordance with the estimations so that, by the end of the calendar
year in question, Tenant shall have paid all of the Additional Rent as estimated
by Landlord. Any amounts paid based on such an estimate shall be subject to
adjustment as herein provided when actual Operating Costs are available for each
calendar year.
(2) The phrase "Operating Costs" shall mean all expenses and
disbursements (subject to the limitations set forth below) that Landlord incurs
in connection with the ownership, operation, management, maintenance, repair and
replacement of the Property, determined in accordance with sound accounting
principles consistently applied, including, but not limited to, the following
costs: (A) wages and salaries (including management fees) of all employees
engaged in the operation, maintenance, and security of the Property, including
taxes, insurance and benefits relating thereto; (B) all supplies and materials
used in the operation, maintenance, repair, replacement, and security of the
Property; (C) costs for improvements made to the Property which, although
capital in nature, are expected to reduce the normal operating costs of the
Property, as well as capital improvements made in order to comply with any law
hereafter promulgated by any governmental authority, as amortized over the
useful economic life of such improvements as determined by Landlord in its
reasonable discretion; (D) cost of all utilities, except the cost of utilities
reimbursable to Landlord by the Property's tenants other than pursuant to a
provision similar to this Section 3.(d); (E) insurance expenses; (F) repairs,
replacements, and general maintenance of the Property; and (G) service or
maintenance contracts with independent contractors for the operation,
maintenance, repair, replacement, or security of
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the Property (including, without limitation, alarm service, window cleaning, and
elevator maintenance).
Operating Costs shall not include costs for (i) capital improvements
made to the Property, other than capital improvements described in Section
3.(d)(2)(C) and except for items which are generally considered maintenance and
repair items, such as painting of common areas, replacement of carpet in
elevator lobbies, and the like; (ii) repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant or other third parties;
(iii) interest, amortization or other payments on loans to Landlord; (iv)
depreciation; (v) leasing commissions; (vi) legal expenses for services, other
than those that benefit the Property's tenants generally (e.g., tax disputes);
(vii) renovating or otherwise improving space for occupants of the Buildings or
vacant space in the Buildings; (viii) Taxes (defined below), and (ix) federal
income taxes imposed on or measured by the income of Landlord from the operation
of the Property.
The phrase "Building Operating Costs" shall mean Operating Costs
attributable exclusively to the ownership, operation, management, maintenance,
repair and replacement of the Building.
The phrase "19-31 Building Operating Costs" shall mean Operating Costs
attributable exclusively to the ownership, operation, management, maintenance,
repair and replacement of the 19-31 Building.
(3) The term "Taxes" shall mean taxes, assessments, and governmental
charges whether federal, state, county or municipal, and whether they be by
taxing districts or authorities presently taxing or by others, subsequently
created or otherwise, and any other taxes and assessments attributable to the
Property (or its operation), excluding, however, penalties and interest thereon
and federal and state taxes on income (if the present method of taxation changes
so that in lieu of the whole or any part of any Taxes, there is levied on
Landlord a capital tax directly on the rents received therefrom or a franchise
tax, assessment, or charge based, in whole or in part, upon such rents for the
Property, then all such taxes, assessments, or charges, or the part thereof so
based, shall be deemed to be included within the term "Taxes" for purposes
hereof). Taxes shall include the costs of consultants retained in an effort to
lower taxes and all costs incurred in disputing any taxes or in seeking to lower
the tax valuation of the Property.
(4) By April 1 of each calendar year, or as soon thereafter as
practicable, Landlord shall furnish to Tenant a statement of Operating Costs and
Taxes for the previous calendar year (the "Operating Costs and Tax Statement").
If the Operating Costs and Tax Statement reveals that Tenant paid more for
Additional Rent than the actual amount due for the calendar year for which such
statement was prepared, then Landlord shall promptly credit (or reimburse if the
Lease has terminated and Tenant is not then in default hereunder) Tenant for
such excess; likewise, if Tenant paid less than the actual amount due, then
Tenant shall promptly pay Landlord such deficiency.
(5) As used herein, Tenant's "Proportionate Share" shall be 6.56%,
which is the percentage obtained by dividing the rentable square feet of floor
area in the Premises,
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which is stipulated to be 4,200 rentable square feet, by the total number of
square feet of floor area in the Buildings, which is stipulated to be 64,010
rentable square feet.
(6) If this Lease commences or ends on a day other than the first day
or last day of a calendar year, respectively, the Additional Rent for the
calendar year during which this Lease commences or ends shall be prorated.
4. Delinquent Payment; Handling Charges. All past due payments
required of Tenant hereunder shall bear interest from the date due until paid at
lesser of eighteen percent (18%) per annum (the "Interest Rate") or the maximum
lawful rate of interest; additionally, Landlord may charge Tenant a fee equal to
5% of the delinquent payment to reimburse Landlord for its cost and
inconvenience incurred as a consequence of Tenant's delinquency. In no event,
however, shall the charges permitted under this Section 4 or elsewhere in this
Lease, to the extent they are considered to be interest under law, exceed the
maximum lawful rate of interest.
5. Security Deposit. Contemporaneously with the execution of this
Lease, Tenant shall pay to Landlord $8,400.00 (the "Security Deposit"), which
shall be held by Landlord to secure Tenant's performance of its obligations
under this Lease. The Security Deposit is not an advance payment of Rent or a
measure or limit of Landlord's damages upon an Event of Default (defined in
Section 16). Landlord may, from time to time and without prejudice to any other
remedy, use all or a part of the Security Deposit to perform any obligation
Tenant fails to perform hereunder. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. Provided that
Tenant has performed all of its obligations hereunder, Landlord shall, within 30
days after the Term ends, return to Tenant the portion of the Security Deposit
which was not applied to satisfy Tenant's obligations. The Security Deposit may
be commingled with other funds, and no interest shall be paid thereon. If
Landlord transfers its interest in the Premises and the transferee assumes
Landlord's obligations under this Lease, then Landlord may assign the Security
Deposit to the transferee and Landlord thereafter shall have no further
liability for the return of the Security Deposit.
6. Landlord's Obligations; Utilities.
(a) Landlord's Maintenance Obligations. Landlord shall provide
janitorial services to the Premises on weekdays, other than holidays, for
Building-standard installations. Landlord shall maintain the common areas and
facilities of the Property in reasonably good order and condition, except for
damage caused by Tenant, or its employees, agents or invitees.
(b) Electricity. Electricity shall be distributed to the Premises by
the electric utility company servicing the Building; and Landlord shall permit
Landlord's wires and conduits, to the extent available, suitable and safely
capable, to be used for such distribution. Tenant at its cost shall make all
necessary arrangements with the electric utility company for metering and paying
for electric current furnished to the Premises.
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(c) Heat and Air Conditioning. Heat and air conditioning to the
Premises shall be provided by the gas and electric utility companies servicing
the Premises, and Landlord shall permit the heat and air conditioning units
within and/or on the roof of the Building which are dedicated to servicing the
Premises to be used for providing such heat and air conditioning. Tenant shall
make all arrangements with the gas and electric utility companies for the
furnishing of heat and air conditioning to the Premises and for metering and
paying for such service.
(d) Water and Sewer. Landlord shall provide to the Premises cold water
at a temperature supplied by the City of ▇▇▇▇▇▇ water mains for lavatory, toilet
and other approved purposes and hot water for lavatory purposes only from
regular Building supply at prevailing temperatures; provided, however, if Tenant
requires, uses or consumes water for any purpose (e.g., kitchen purposes, shower
facilities, etc.) other than lavatory and toilet purposes, Landlord may, at
Tenant's sole cost and expense, install a meter or meters to measure the water
so supplied, in which case Tenant shall, upon Landlord's request, reimburse
Landlord for the cost of the water (including heating and cooling thereof)
consumed in such areas and the sewer use charges resulting therefrom. All costs
and expenses incurred by Landlord in connection with furnishing water and sewer
service to the Premises shall be included as part of Operating Costs pursuant to
Section 3 above except for the cost of furnishing such services to the Premises
which are paid for directly by Tenant to Landlord pursuant to the preceding
sentence.
(e) Excess Utility Use. Landlord shall not be required to furnish
electrical current for equipment that requires more than 220 volts or other
equipment whose electrical energy consumption exceeds normal office usage.
Tenant shall not install any electrical equipment requiring special wiring or
requiring voltage in excess of 220 volts or otherwise exceeding Building
capacity unless approved in advance by Landlord. The use of electricity in the
Premises shall not exceed the capacity of existing feeders and risers to or
wiring in the Premises. Any risers or wiring required to meet Tenant's excess
electrical requirements shall, upon Tenant's written request, be installed by
Landlord, at Tenant's cost, if, in Landlord's judgment, the same are necessary
and shall not cause permanent damage to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, repairs, or expenses, or interfere with or disturb other tenants of
the Buildings. If Tenant uses machines or equipment in the Premises which affect
the temperature otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air conditioning units
or other supplemental equipment in the Premises, and the cost thereof, including
the cost of installation, operation, use, and maintenance, shall be paid by
Tenant to Landlord within ten days after Landlord has delivered to Tenant an
invoice therefor.
(f) Restoration of Services. Landlord shall use reasonable efforts to
restore any service required of it that becomes unavailable; however, such
unavailability shall not render Landlord liable for any damages caused thereby,
be a constructive eviction of Tenant, constitute a breach of any implied
warranty, or entitle Tenant to any abatement of Tenant's obligations hereunder.
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7. Improvements; Alterations; Repairs; Maintenance.
(a) Improvements; Alterations. Improvements to the Premises shall be
installed at Tenant's expense only in accordance with plans and specifications
which have been previously submitted to and approved in writing by Landlord. No
alterations or physical additions in or to the Premises may be made without
Landlord's prior written consent, which shall not be unreasonably withheld or
delayed; however, Landlord may withhold its consent to any alteration or
addition that would affect the Building's structure or its HVAC, plumbing,
electrical, or mechanical systems. Tenant shall not paint or install lighting or
decorations, signs, window or door lettering, or advertising media of any type
on or about the Premises without the prior written consent of Landlord, which
shall not be unreasonably withheld or delayed; however, Landlord may withhold
its consent to any such painting or installation which would affect the
appearance of the exterior of the Building or of any common areas of the
Property. All alterations, additions, or improvements made in or upon the
Premises shall, at Landlord's option, either be removed by Tenant prior to the
end of the Term (and Tenant shall repair all damage caused thereby), or shall
remain on the Premises at the end of the Term without compensation to Tenant.
All alterations, additions, and improvements shall be constructed, maintained,
and used by Tenant, at its risk and expense, in accordance with all Laws (as
defined in Section 24(s) below); Landlord's approval of the plans and
specifications therefor shall not be a representation by Landlord that such
alterations, additions, or improvements comply with any Law.
(b) Repairs, Maintenance. Tenant shall maintain the Premises in a good
and clean, safe and operable condition, and shall make all necessary repairs and
replacements of or to the Premises and shall not permit or allow to remain any
waste or damage to any portion of the Premises. Tenant shall repair or replace,
subject to Landlord's direction and supervision, any damage to the Property
caused by a Tenant Party (as defined in Section 25(s) below). If Tenant fails to
make such repairs or replacements within 15 days after the occurrence of such
damage, then Landlord may make the same at Tenant's cost. If any such damage
occurs outside of the Premises, then Landlord may elect to repair such damage at
Tenant's expense, rather than having Tenant repair such damage. The cost of all
repair or replacement work performed by Landlord under this Section 7 shall be
paid by Tenant to Landlord within 10 days after Landlord has invoiced Tenant
therefor.
(c) Performance of Work. All work described in this Section 7 shall be
performed only by Landlord or by contractors and subcontractors approved in
writing by Landlord. Tenant shall cause all contractors and subcontractors to
procure and maintain insurance coverage naming Landlord as an additional insured
against such risks, in such amounts, and with such companies as Landlord may
reasonably require. All such work shall be performed in accordance with all Laws
and in a good and workmanlike manner so as not to damage the Premises, the
Property, or the components thereof. Tenant shall provide sworn statements,
including the names, addresses and copies of contracts for all contractors, and
upon completion of any work shall promptly furnish Landlord with sworn owner's
and contractor's statements and full and final waivers of lien covering all
labors and materials included in the work in question.
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(d) Mechanic's Liens. Tenant shall not permit any mechanic's liens to
be filed against the Premises or the Property for any work performed, materials
furnished, or obligation incurred by or at the request of Tenant. If such a lien
is filed, then Tenant shall, within 10 days after Landlord has delivered notice
of the filing thereof to Tenant, either pay the amount of the lien or diligently
contest such lien and deliver to Landlord a bond or other security reasonably
satisfactory to Landlord. If Tenant fails to timely take either such action,
then Landlord may pay the lien claim, and any amounts so paid, including
expenses and interest, shall be paid by Tenant to Landlord within 10 days after
Landlord has invoiced Tenant therefor.
8. Use. Tenant shall continuously occupy and use the Premises only for
sales, administration and as a demonstration facility for wide format digital
printers and, subject to the provisions of Section 19 below, for the storage of
materials (including, without limitation, parts, inks, solvents and substrates)
and equipment in connection therewith (the "Permitted Use") and for no other use
or purpose and shall comply with all Laws relating to the use, condition, access
to, and occupancy of the Premises. The Premises shall not be used for any use
which is disreputable, creates extraordinary fire hazards, or results in an
increased rate of insurance on the Building or its contents. If, because of a
Tenant Party's acts, the rate of insurance on the Building or its contents
increases, then Tenant shall pay to Landlord the amount of such increase on
demand. Tenant shall conduct its business and control each other Tenant Party so
as not to create any nuisance or unreasonably interfere with other tenants or
Landlord in its management of the Property.
9. Assignment and Subletting.
(a) Transfers; Consent. Tenant shall not, without the prior written
consent of Landlord, (1) assign, transfer, or encumber this Lease or any estate
or interest herein, whether directly or by operation of law, (2) permit any
other entity to become Tenant hereunder by merger, consolidation, or other
reorganization, (3) if Tenant is an entity other than a corporation whose stock
is publicly traded, permit the transfer of an ownership interest in Tenant so as
to result in a change in the current control of Tenant, (4) sublet any portion
of the Premises, (5) grant any license, concession, or other right of occupancy
of any portion of the Premises, or (6) permit the use of the Premises by any
parties other than Tenant (any of the events listed in Section 9.(a)(1) through
9.(a)(6) being a "Transfer"). If Tenant requests Landlord's consent to a
Transfer, then Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and other credit
information; and general references sufficient to enable Landlord to determine
the proposed transferee's creditworthiness and character. Landlord shall not
unreasonably withhold its consent to any assignment or subletting of the
Premises, provided that the proposed transferee (A) is creditworthy, (B) has a
good reputation in the business community, (C) does not engage in business
similar to those of other tenants in the Buildings, and (D) is not another
occupant of the Buildings or person or entity with whom Landlord is negotiating
to lease space in the Buildings; otherwise, Landlord may withhold its consent in
its sole discretion. Concurrently with Tenant's notice of any request for
consent to a Transfer, Tenant shall pay to Landlord a fee of $500.00 to defray
Landlord's expenses in reviewing such request,
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and Tenant shall also reimburse Landlord immediately upon request for its
attorneys' fees incurred in connection with considering any request for consent
to a Transfer. If Landlord consents to a proposed Transfer, then the proposed
transferee shall deliver to Landlord a written agreement whereby it expressly
assumes Tenant's obligations hereunder; however, any transferee of less than all
of the space in the Premises shall be liable only for obligations under this
Lease that are properly allocable to the space subject to the Transfer for the
period of the Transfer. No Transfer shall release Tenant from its obligations
under this Lease, but rather Tenant and its transferee shall be jointly and
severally liable therefor. Landlord's consent to any Transfer shall not waive
Landlord's rights as to any subsequent Transfers. If an Event of Default occurs
while the Premises or any part thereof are subject to a Transfer, then Landlord,
in addition to its other remedies, may collect directly from such transferee all
rents becoming due to Tenant and apply such rents against Rent. Tenant
authorizes its transferees to make payments of rent directly to Landlord upon
receipt of notice from Landlord to do so. Tenant shall pay for the cost of any
demising walls or other improvements necessitated by a proposed subletting or
assignment.
(b) Cancellation. Landlord may, within 30 days after submission of
Tenant's written request for Landlord's consent to an assignment or subletting,
cancel this Lease as to the portion of the Premises proposed to be sublet or
assigned as of the date the proposed Transfer is to be effective. If Landlord
cancels this Lease as to any portion of the Premises, then this Lease shall
cease for such portion of the Premises and Tenant shall pay to Landlord all Rent
accrued through the cancellation date relating to the portion of the Premises
covered by the proposed Transfer. Thereafter, Landlord may lease such portion of
the Premises to the prospective transferee (or to any other person) without
liability to Tenant. Notwithstanding anything in this Section 9(b) to the
contrary, Tenant shall have a one-time right to sublease all or any part of the
Premises for a term not to exceed 12 months without Landlord having the right to
terminate this Lease pursuant to this Section 9(b); however, the provisions of
Section 9(a) and 9(c) shall apply to such sublease.
(c) Additional Compensation. Tenant shall pay to Landlord, immediately
upon receipt thereof, the excess of (1) all compensation received by Tenant for
a Transfer less the costs reasonably incurred by Tenant with unaffiliated third
parties in connection with such Transfer (i.e., brokerage commissions, tenant
finish work, and the like) over (2) the Rent allocable to the portion of the
Premises covered thereby.
10. Insurance; Waivers; Subrogation; Indemnity.
(a) Insurance. Tenant shall maintain throughout the Term the following
insurance policies: (1) commercial general liability insurance (in one or more
separate policies, including an umbrella liability policy) in amounts of
$2,000,000 per occurrence with $3,000,000 in the aggregate or such other amounts
as Landlord may from time to time reasonably require, insuring Tenant, Landlord,
Landlord's agents and their respective affiliates against all liability for
injury to or death of a person or persons or damage to property arising from the
use and occupancy of the Premises, (2) insurance covering the full value of
Tenant's property and improvements, and other property (including property of
others) in the Premises, (3) contractual liability insurance sufficient to cover
Tenant's indemnity obligations hereunder and (4) worker's compensation
insurance, containing a
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waiver of subrogation endorsement acceptable to Landlord. Tenant's insurance
shall provide primary coverage to Landlord when any policy issued to Landlord
provides duplicate or similar coverage, and in such circumstance Landlord's
policy will be excess over Tenant's policy. Tenant shall furnish to Landlord
certificates of such insurance and such other evidence satisfactory to Landlord
of the maintenance of all insurance coverages required hereunder, and Tenant
shall obtain a written obligation on the part of each insurance company to
notify Landlord at least 30 days before cancellation or a material change of any
such insurance policies. All such insurance policies shall be in form, and
issued by companies, reasonably satisfactory to Landlord.
(b) Waiver of Negligence; No Subrogation. Landlord and Tenant each
waives any claim it might have against the other for any injury to or death of
any person or persons or damage to or theft, destruction, loss, or loss of use
of any property (a "Loss"), to the extent the same is insured against under any
insurance policy that covers the Property, the Premises, Landlord's or Tenant's
fixtures, personal property, leasehold improvements, or business, or, in the
case of Tenant's waiver, is required to be insured against under the terms
hereof, regardless of whether the negligence of the other party caused such
Loss; however, Landlord's waiver shall not include any deductible amounts on
insurance policies carried by Landlord or to any coinsurance penalty which
Landlord may sustain. Each party shall cause its insurance carrier to endorse
all applicable policies waiving the carrier's rights of recovery under
subrogation or otherwise against the other party.
(c) Indemnity. Subject to Section 10.(b), Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorneys' fees) arising from (1)
any Loss arising from any occurrence on the Premises or (2) Tenant's failure to
perform its obligations under this Lease, except to the extent caused by the
negligence or willful misconduct of Landlord. This indemnity provision shall
survive termination or expiration of this Lease. If any proceeding is filed for
which indemnity is required hereunder, Tenant agrees, upon request therefor, to
defend the indemnified party in such proceeding at its sole cost utilizing
counsel satisfactory to the indemnified party.
11. Subordination; Attornment; Notice to Landlord's Mortgagee.
(a) Subordination. This Lease shall be subordinate to any deed of
trust, mortgage, or other security instrument, or any ground lease, master
lease, or primary lease, that now or hereafter covers all or any part of the
Premises (the mortgagee under any such mortgage or the lessor under any such
lease is referred to herein as a "Landlord's Mortgagee"). Any Landlord's
Mortgagee may elect, at any time, unilaterally, to make this Lease superior to
its mortgage, ground lease, or other interest in the Premises by so notifying
Tenant in writing.
(b) Attornment. Tenant shall attorn to any party succeeding to
Landlord's interest in the Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease, or otherwise, upon
such party's request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
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(c) Notice to Landlord's Mortgagee. Tenant shall not seek to enforce
any remedy it may have for any default on the part of Landlord without first
giving written notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Landlord's Mortgagee whose address has
been given to Tenant, and affording such Landlord's Mortgagee a reasonable
opportunity to perform Landlord's obligations hereunder.
12. Rules and Regulations. Tenant shall comply with the rules and
regulations of the Property which are attached hereto as Exhibit C. Landlord
may, from time to time, change such rules and regulations for the safety, care,
or cleanliness of the Property and related facilities, provided that such
changes will not unreasonably interfere with Tenant's use of the Premises.
Tenant shall be responsible for the compliance with such rules and regulations
by each Tenant Party. In the case of any conflict between the provisions of this
Lease and any such rules and regulations, the provisions of this Lease shall
control.
13. Condemnation.
(a) Total Taking. If the entire Property or Premises are taken by
right of eminent domain or conveyed in lieu thereof (a "Taking"), this Lease
shall terminate as of the date of the Taking.
(b) Partial Taking - Tenant's Rights. If any part of the Building
becomes subject to a Taking and such Taking will prevent Tenant from conducting
its business in the Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than 120 days, then Tenant
may terminate this Lease as of the date of such Taking by giving written notice
to Landlord within 30 days after the Taking, and Rent shall be apportioned as of
the date of such Taking. If Tenant does not terminate this Lease, then Rent
shall be abated on a reasonable basis as to that portion of the Premises
rendered untenantable by the Taking.
(c) Partial Taking - Landlord's Rights. If any material portion, but
less than all, of the Property becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a Taking to a Landlord's
Mortgagee, then Landlord may terminate this Lease by delivering written notice
thereof to Tenant within 30 days after such Taking, and Rent shall be
apportioned as of the date of such Taking. If Landlord does not so terminate
this Lease, then this Lease will continue, but if any portion of the Premises
has been taken, Rent shall ▇▇▇▇▇ as provided in the last sentence of Section
13.(b).
(d) Award. If any Taking occurs, then Landlord shall receive the entire
award or other compensation for the Property or the portion thereof taken, and
Tenant may separately pursue a claim (to the extent it will not reduce
Landlord's award) against the condemnor for the value of Tenant's personal
property which Tenant is entitled to remove under this Lease, the unamortized
cost of the Work (as defined in Exhibit D attached hereto) to the extent paid
for by Tenant, moving costs, loss of business, and other claims it may have.
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14. Fire or Other Casualty
(a) Repair Estimate. If the Premises or the Building are damaged by
fire or other casualty (a "Casualty ), Landlord shall, within 60 days after such
Casualty, deliver to Tenant a good faith estimate (the "Damage Notice") of the
time needed to repair the damage caused by such Casualty.
(b) Landlord's and Tenant's Rights. If a material portion of the
Premises or the Building is damaged by Casualty such that Tenant is prevented
from conducting its business in the Premises in a manner reasonably comparable
to that conducted immediately before such Casualty and Landlord estimates that
the damage caused thereby cannot be repaired within 180 days after the Casualty,
then Tenant may terminate this Lease by delivering written notice to Landlord of
its election to terminate within 30 days after the Damage Notice has been
delivered to Tenant. If Tenant does not so timely terminate this Lease, then
(subject to Section 14.(c)) Landlord shall repair the Building or the Premises,
as the case may be, as provided below, and Rent for the portion of the Premises
rendered untenantable by the damage shall be abated on a reasonable basis from
the date of damage until the completion of the repair.
(c) Landlord's Rights. If a Casualty damages a material portion of the
Building, and Landlord makes a good faith determination that restoring the
Premises would be uneconomical, or if Landlord is required to pay any insurance
proceeds arising out of the casualty to a Landlord's Mortgagee, then Landlord
may terminate this Lease by giving written notice of its election to terminate
within 30 days after the Damage Notice has been delivered to Tenant, and Basic
Rent and Additional Rent shall be abated as of the date of the Casualty.
(d) Repair Obligation. If neither party elects to terminate this Lease
following a Casualty, then Landlord shall, within a reasonable time after such
Casualty, begin to repair the Building and the Premises and shall proceed with
reasonable diligence to restore the Building and Premises to substantially the
same condition as they existed immediately before such Casualty; however,
Landlord shall not be required to repair or replace any of the furniture,
equipment, fixtures, and other improvements which may have been placed by, or at
the request of, Tenant or other occupants in the Building or the Premises, and
Landlord's obligation to repair or restore the Building or Premises shall be
limited to the extent of the insurance proceeds actually received by Landlord
for the Casualty in question.
15. Personal Property Taxes. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture, or fixtures placed by
Tenant in the Premises. If any taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and Landlord elects to pay the
same, or if the assessed value of Landlord's property is increased by inclusion
of such personal property, furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to Landlord, upon demand,
the part of such taxes for which Tenant is primarily liable hereunder; however,
Landlord shall not pay such amount if Tenant notifies Landlord that it will
contest the validity or amount of such taxes before Landlord makes such payment,
and thereafter diligently proceeds with such contest in accordance with law and
if the non-
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payment thereof does not pose a threat of loss or seizure of the Property or
interest of Landlord therein or impose any fee or penalty against Landlord.
16. Events of Default. Each of the following occurrences shall be an
"Event of Default":
(a) Tenant's failure to pay Rent within 5 days after Landlord has
delivered notice to Tenant that the same is due; however, an Event of Default
shall occur hereunder without any obligation of Landlord to give any notice if
Landlord has given Tenant written notice under this Section 16.(a) on more than
two occasions during the 12 month interval preceding such failure by Tenant;
(b) Tenant abandons the Premises or any substantial portion thereof;
(c) Tenant fails to provide any estoppel certificate as called for in
this Lease and such failure shall continue for 10 days after written notice
thereof from Landlord to Tenant;
(d) Tenant's failure to perform, comply with, or observe any other
agreement or obligation of Tenant under this Lease and the continuance of such
failure for a period of more than 30 days after Landlord has delivered to Tenant
written notice thereof; and
(e) The filing of a petition by or against Tenant (the term "Tenant"
shall include, for the purpose of this Section 16.(e), any guarantor of Tenant's
obligations hereunder) (1) in any bankruptcy or other insolvency proceeding; (2)
seeking any relief under any state or federal debtor relief law; (3) for the
appointment of a liquidator or receiver for all or substantially all of Tenant's
property or for Tenant's interest in this Lease; or (4) for the reorganization
or modification of Tenant's capital structure; however, if such a petition is
filed against Tenant, then such filing shall not be an Event of Default unless
Tenant fails to have the proceedings initiated by such petition dismissed within
90 days after the filing thereof.
11. Remedies. Upon an Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder, take any of the
following actions:
(a) Terminate this Lease by giving Tenant written notice thereof, in
which event Tenant shall immediately surrender and vacate the Premises and
deliver possession thereof to Landlord and shall pay to Landlord the sum of (1)
all Rent accrued hereunder through the date of termination, (2) all amounts
dues under Section 18.(a), and (3) an amount equal to (A) the total Rent that
Tenant would have been required to pay for the remainder of the Term plus
Landlord's estimate of aggregate expenses of reletting to the Premises, minus
(B) the then present fair rental rate value of the Premises for such period; or
(b) Terminate Tenant's right to possess the Premises without
terminating this Lease by giving written notice thereof to Tenant, in which
event Tenant shall immediately surrender and vacate the Premises and deliver
possession thereof to Landlord and shall pay to Landlord (1) all Rent and other
amounts accrued hereunder to the date of
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termination of possession (2) all amounts due from time to time under Section
18.(a), and (3) all Rent and other net sums required hereunder to be paid by
Tenant during the remainder of the Term, diminished by any net sums thereafter
received by Landlord through reletting the Premises during such period, after
deducting all costs incurred by Landlord in reletting the Premises. Landlord
shall use reasonable efforts to relet the Premises on such terms as Landlord in
its sole discretion may determine (including a term different from the Term,
rental concessions, and alterations to, and improvement of, the Premises);
however, Landlord shall not be obligated to relet the Premises before leasing of
the portions of the Buildings. Landlord shall not be liable for, nor shall
Tenant's obligations hereunder be diminished because of, Landlord's failure to
relet the Premises or to collect rent due for such reletting. Tenant shall not
be entitled to the excess of any consideration obtained by reletting over the
Rent due hereunder. Reentry by Landlord in the Premises shall not affect
Tenant's obligations hereunder for the unexpired Term; rather, Landlord may,
from time to time, bring an action against Tenant to collect amounts due by
Tenant, without the necessity of Landlord's waiting until the expiration of the
Term. Unless Landlord delivers written notice to Tenant expressly stating that
it has elected to terminate this Lease, all actions taken by Landlord to
dispossess or exclude Tenant from the Premises shall be deemed to be taken under
this Section 17.(b). If Landlord elects to proceed under this Section 17.(b) it
may at any time elect to terminate this Lease under Section 17.(a).
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. Notwithstanding the foregoing, Landlord shall only recover its
damages allowed hereunder once.
18. Payment by Tenant; Non-Waiver
(a) Payment by Tenant. Upon any Event of Default, Tenant shall pay to
Landlord all costs incurred by Landlord (including court costs and reasonable
attorneys' fees and expenses) in (1) obtaining possession of the Premises, (2)
removing and storing Tenant's or any other occupant's property, (3) repairing,
restoring, altering, remodeling, or otherwise putting the Premises into good
repair and condition, (4) reletting all or any part of the Premises (including
brokerage commissions), (5) performing Tenant's obligations which Tenant failed
to perform, and (6) enforcing, or advising Landlord of, its rights, remedies,
and recourses arising out of the Event of Default. To the full extent permitted
by law, Landlord and Tenant agree the federal and state courts of Massachusetts
shall have exclusive jurisdiction over any matter relating to or arising from
this Lease and the parties' rights and obligations under this Lease.
(b) No Waiver. Landlord's acceptance of Rent following an Event of
Default shall not waive Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such
term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument
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delivered in payment of Rent or any writing delivered in connection therewith;
accordingly, Landlord's acceptance of a partial payment of Rent shall not
constitute an accord and satisfaction of the full amount of the Rent that is
due.
19. Environmental Protection. Notwithstanding anything in this Lease
to the contrary, Tenant shall not cause or permit any Hazardous Substances (as
defined below) to be used, stored, handled, generated, transported,
manufactured, produced, released, discharged or disposed of in, on, under, or
about the Premises except for such Hazardous Substances as are normally utilized
in the operation of Tenant's Permitted Uses and are necessary to Tenant's
business thereof. Notwithstanding anything in this Lease to the contrary, any
such Hazardous Substances permitted on the Premises pursuant to the preceding
sentence, and all containers therefor, shall be used, kept, stored, transported
and disposed of in compliance with all Environmental Laws (as defined below).
Upon Landlord's request from time to time, Tenant shall provide Landlord with a
written list of all Hazardous Substances which Tenant has brought upon the
Premises, the approximate quantities of such Hazardous Substances and a detailed
written description of the methods by which Tenant stores, uses and disposes of
such Hazardous Substances. Landlord's right of access to the Premises under
Section 22 of this Lease shall include, without limitation, the right to make
inspections (without, however, any obligation to do so) to determine whether or
not Tenant is complying with the requirements of this Section 19.
Tenant shall indemnify, protect, hold harmless and defend (with
counsel selected by Tenant, but subject to Landlord's prior written approval,
which approval shall not be unreasonably withheld or delayed), Landlord and its
subsidiary corporations and investment entities (and each of their subsidiary
corporations and investment entities), predecessors and successors in interest,
assigns, officers, directors, employees, managers, agents, contractors and
servants, and each of them in all capacities including individually
(collectively, the "Landlord's Parties"), from and against all claims, costs,
damages (but not including consequential damages) (including, without
limitation, any and all amounts paid for settlement of claims, attorneys' fees
and consultant and expert fees), fines, judgments, penalties, losses,
liabilities and expenses suffered or incurred by Landlord's Parties, or any of
them, arising directly or indirectly out of the actual or suspected use,
storage, handling, generation, transportation, manufacture, production, release,
discharge or disposal of Hazardous Substances on, in, under or about the
Premises by Tenant and its successors in interest, assigns, subtenants,
officers, directors, employees, managers, agents and servants, or any of them.
The provisions of this paragraph shall survive the expiration or earlier
termination of the Term.
As used herein, "Hazardous Substances" shall mean any chemical,
compound, material, mixture or substance that is now or hereafter defined or
listed in, or otherwise classified pursuant to, any Environmental Laws as a
"hazardous substance", "hazardous material", "hazardous waste", "extremely
hazardous waste", "infectious waste", "toxic substance", "toxic pollutant" or
any other formulation intended to define, list, or classify substances by reason
of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity or toxicity, including any petroleum or petroleum products,
polychlorinated biphenyls, chlorofluorocarbons, asbestos, radon, natural gas,
natural gas liquids, liquefied natural gas or synthetic gas usable for fuel (or
mixtures of a natural gas and such synthetic gas). As used herein,
"Environmental Laws" means any and all present and future,
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federal, state and local laws, rules and regulations, requirements under permits
issued with respect thereto, and any other requirements of any federal, state
or local governmental authority relating to the environment, or to any Hazardous
Substance or to any activity involving Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. 9601 et. seq., as amended, the Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et. seq., as amended, the Clean Water Act, 33 U.S.C. 1251
et. seq., as amended, the Clean Air Act, 42 U.S.C. 7401 et. seq., as amended,
the Toxic Substance Control Act, 15 U.S.C. 2601 et. seq., as amended, the Safe
Drinking Water Act, 42 U.S.C. 300 f-j, as amended, and Massachusetts General
Laws Chapter 21E.
20. Surrender of Premises. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, broom-clean, reasonable wear and tear (and condemnation and
Casualty damage not caused by Tenant, as to which Sections 13 and 14 shall
control) excepted, and shall deliver to Landlord all keys to the Premises.
Provided that Tenant has performed all of its obligations hereunder, Tenant may
remove all unattached trade fixtures, furniture, and personal property placed in
the Premises by Tenant and any telephone switch, alarm system, exhaust system
and racking system installed by Tenant at its cost, and shall remove such
alterations, additions, improvements, trade fixtures, personal property,
equipment, wiring, and furniture as Landlord may request. Tenant shall repair
all damage caused by such removal. All items not so removed shall be deemed to
have been abandoned by Tenant and may be appropriated, sold, stored, destroyed,
or otherwise disposed of by Landlord without notice to Tenant and without any
obligation to account for such items. The provisions of this Section 20 shall
survive the end of the Term.
21. Holding Over. If Tenant fails to vacate the Premises at the end of
the Term, then Tenant shall be a tenant-at-sufferance and, in addition to all
other damages and remedies to which Landlord may be entitled for such holding
over, Tenant shall pay for use and occupancy of the Premises, in addition to the
other Rent, a daily Basic Rent equal to the greater of (a) 200% of the daily
Basic Rent payable during the last month of the Term, or (b) 200% of the
prevailing rental rate in the Building for similar space. The provisions of this
Section 21 shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord provided herein or at law. If Tenant fails to
surrender the Premises upon the termination or expiration of this Lease, in
addition to any other liabilities to Landlord accruing therefrom, Tenant shall
protect, defend, indemnify and hold Landlord harmless from all loss, costs
(including reasonable attorneys' fees) and liability resulting from such
failure, including, without limiting the generality of the foregoing, any claims
made by any succeeding tenant founded upon such failure to surrender, and any
lost profits to Landlord resulting therefrom.
22. Certain Rights Reserved by Landlord. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's occupancy of the
Premises, Landlord shall have the following rights:
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(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise, in and
about the Property, or any part thereof; at reasonable times after reasonable
prior oral or written notice to Tenant (except in the event of an emergency), to
enter upon the Premises and, during the continuance of any such work, to
temporarily close doors, entryways, public space, and corridors in the Property;
to interrupt or temporarily suspend Building services and facilities; to change
the name of the Building or the Property; and to change the arrangement and
location of entrances or passageways, doors, and doorways, corridors, elevators,
stairs, restrooms, or other public parts of the Property;
(b) To take such reasonable measures as Landlord deems advisable for
the security of the Property and its occupants; evacuating the Property for
cause, suspected cause, or for drill purposes; temporarily denying access to the
Property; and closing the Buildings after normal business hours and on Sundays
and holidays, subject, however, to Tenant's right to enter the Building when the
Building is closed after normal business hours under such reasonable regulations
as Landlord may prescribe from time to time; and
(c) After reasonable prior oral or written notice to Tenant, to enter
the Premises at reasonable hours to show the Premises to prospective purchasers,
lenders, or, during the last 6 months of the Term, tenants.
23. Signs. Except for signs which are located wholly within the
interior of the Premises and which are not visible from the exterior of the
Premises, no signs shall be placed, erected, maintained or painted by Tenant at
any place upon the Premises or the Property. Notwithstanding the foregoing,
subject to Landlord's approval as to the design, size and location thereof,
Tenant may erect 1 sign on the exterior of the Building.
24. Parking; Trailer. Subject to reasonable rules and regulations from
time to time made by Landlord but without charge to Tenant, Tenant shall have
the exclusive right to use for parking for its customers and invitees only those
parking spaces identified as the "Customer Parking Spaces" on the site plan
attached hereto as Exhibit E and incorporated herein by this reference (the
"Site Plan") and the exclusive right to use for parking for its employees and
officers only that area identified as the "Employee Parking Area" on the Site
Plan. Notwithstanding any other provisions of this Lease to the contrary, Tenant
shall have no right to park in any parking spaces located on the Land other than
the "Customer Parking Spaces" and other than those parking spaces within the
"Employee Parking Area".
Landlord hereby grants to Tenant the right throughout the Term to
maintain a trailer in the approximate location shown on the Site Plan. Tenant
shall have sole responsibility for the maintenance and repair of such trailer
and agrees to maintain such trailer in a good, clean and safe condition
throughout the Term. Tenant acknowledges and agrees that all of the terms and
provisions of this Lease applicable to Tenant's obligations with respect to the
Premises shall apply as well to such trailer including, without limitation, the
provisions of Section 10 of this Lease with respect to insurance and indemnity,
the provisions of Section 7 of this Lease with respect to the maintenance and
repair of such trailer, the provisions of Section 8 of this Lease with respect
to the permitted use of such trailer, the provisions of Section 19 of this Lease
with respect to Hazardous
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Substances used, stored, handled, generated, transported, manufactured,
produced, released, discharged or disposed of in, on, under or about such
trailer, and the provisions of Section 22 of this Lease with regard to the
reserved rights of Landlord. As provided in Section 20 of this Lease, at the
expiration or earlier termination of this Lease, Tenant shall remove such
trailer and restore the Property to its condition prior to the locating of such
trailer on the Property.
25. Miscellaneous.
(a) Landlord Transfer. Landlord may transfer any portion of the
Property and any of its rights under this Lease. If Landlord assigns its rights
under this Lease, then Landlord shall thereby be released from any further
obligations hereunder, provided that the assignee assumes Landlord's obligations
hereunder in writing.
(b) Landlord's Liability. The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to Tenant's
actual direct, but not consequential, damages therefor and shall be recoverable
only from the equity of Landlord in the Property, and Landlord shall not be
personally liable for any deficiency.
(c) Force Majeure. Other than for Tenant's obligations under this
Lease that can be performed by the payment of money (e.g., payment of Rent and
maintenance of insurance), whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or restrictions, or any
other causes of any kind whatsoever which are beyond the control of such party.
(d) Brokerage. Neither Landlord nor Tenant has dealt with any broker
or agent in connection with the negotiation or execution of this Lease, other
than ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇'▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ and Company (the "Brokers"). Tenant
and Landlord shall each indemnify the other against all costs, expenses,
attorneys' fees, and other liability for commissions or other compensation
claimed by any broker or agent claiming the same by, through, or under the
indemnifying party. Landlord shall be responsible for the payment of a brokerage
commission to the Brokers pursuant to a separate agreement or agreements between
Landlord and the Brokers.
(e) Estoppel Certificates. From time to time, Tenant shall furnish to
any party designated by Landlord, within 10 days after Landlord has made a
request therefor, a certificate signed by Tenant confirming and containing such
factual certifications and representations as to this Lease as Landlord may
reasonably request.
(f) Notices. All notices and other communications given pursuant to
this Lease shall be in writing and shall be (1) mailed by first class, United
States Mail, postage prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address specified next to their signature
block, (2) hand delivered to the intended address, or (3) sent by prepaid
telegram, cable, facsimile transmission, or telex followed by a confirmatory
letter. All notices shall be effective upon delivery to the address of the
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addressee. The parties hereto may change their addresses by giving notice
thereof to the other in conformity with this provision.
(g) Separability. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws, then the remainder of
this Lease shall not be affected thereby and in lieu of such clause or
provision, there shall be added as a part of this Lease a clause or provision as
similar in terms to such illegal, invalid, or unenforceable clause or provision
as may be possible and be legal, valid, and enforceable.
(h) Amendments; and Binding Effect. This Lease may not be amended
except by instrument in writing signed by Landlord and Tenant. No provision of
this Lease shall be deemed to have been waived by Landlord unless such waiver is
in writing signed by Landlord, and no custom or practice which may evolve
between the parties in the administration of the terms hereof shall waive or
diminish the right of Landlord to insist upon the performance by Tenant in
strict accordance with the terms hereof. The terms and conditions contained in
this Lease shall inure to the benefit of and be binding upon the parties hereto,
and upon their respective successors in interest and legal representatives,
except as otherwise herein expressly provided. This Lease is for the sole
benefit of Landlord and Tenant, and, other than Landlord's Mortgagee, no third
party shall be deemed a third party beneficiary hereof.
(i) Quiet Enjoyment. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the terms and
conditions of this Lease.
(j) No Merger. There shall be no merger of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof if the same
person acquires or holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the leasehold Premises or any interest in such
fee estate.
(k) No Offer. The submission of this Lease to Tenant shall not be
construed as an offer, and Tenant shall not have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
(l) Entire Agreement. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter hereof and supersedes
all oral statements and prior writings relating thereto. Except for those set
forth in this Lease, no representations, warranties, or agreements have been
made by Landlord or Tenant to the other with respect to this Lease or the
obligations of Landlord or Tenant in connection therewith. The normal rule of
construction that any ambiguities be resolved against the drafting party shall
not apply to the interpretation of this Lease or any exhibits or amendments
hereto.
(m) Waiver of Jury Trial. To the maximum extent permitted by law,
Landlord and Tenant each waive right to trial by jury in any litigation arising
out of or with respect to this Lease.
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(n) Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are located.
(o) 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.
(p) Financial Reports. Within 15 days after Landlord's request, Tenant
will furnish Tenant's most recent audited financial statements (including any
notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may have been
prepared by an independent certified, public accountant or, failing those,
Tenant's internally prepared financial statements. Tenant will discuss its
financial statements with Landlord and will give Landlord access to Tenant's
books and records in order to enable Landlord to verify the financial
statements. Landlord will not disclose any aspect of Tenant's financial
statements that Tenant designates to Landlord as confidential except (1) to
Landlord's lenders or prospective purchasers of the Building or Property, (2) in
litigation between Landlord and Tenant, and (3) if required by court order.
(q) Landlord's Fees. Whenever Tenant requests Landlord to take any
action or give any consent required or permitted under this Lease, Tenant will
reimburse Landlord for Landlord's reasonable costs incurred in reviewing the
proposed action or consent, including without limitation reasonable attorneys',
engineers' or architects' fees, within 10 days after Landlord's delivery to
Tenant of a statement of such costs. Tenant will be obligated to make such
reimbursement without regard to whether Landlord consents to any such proposed
action.
(r) Telecommunications. Tenant and its telecommunications companies,
including but not limited to local exchange telecommunications companies and
alternative access vendor services companies shall have no right of access to
and within the Building or Property, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless, and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent, which consent shall not
be unreasonably withheld or delayed.
(s) General Definitions. The following terms shall have the following
meanings: "Laws" means all federal, state, and local laws, rules and
regulations, all court orders, all governmental directives and governmental
orders, and all restrictive covenants affecting the Property, and "Law" means
any of the foregoing; "Affiliate" means any person or entity which, directly or
indirectly, controls, is controlled by, or is under common control with the
party in question; "Tenant Party" shall include Tenant, any assignees claiming
by, through, or under Tenant, any subtenants claiming by, through, or under
Tenant, and any agents, contractors, employees, invitees of the foregoing
parties; and "including" means including, without limitation.
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(t) Confidentiality. Tenant acknowledges that the terms and conditions
of this Lease are to remain confidential for Landlord's benefit, and may not be
disclosed by Tenant to anyone, by any manner or means, directly or indirectly,
without Landlord's prior written consent. The consent by Landlord to any
disclosures shall not be deemed to be a waiver on the part of Landlord of any
prohibition against any future disclosure.
(u) Notice of Lease. Tenant agrees not to record this Lease and to
keep the terms of this Lease confidential, but each party hereto agrees, at the
request of the others to execute a so-called Notice of Lease in recordable form
complying with applicable law and reasonably satisfactory to Landlord's
attorneys. In no event shall such document set forth the Rent or other charges
payable by Tenant hereunder.
(v) List of Exhibits. All exhibits and attachments attached hereto are
incorporated herein by this reference.
Exhibit A - Legal Description of the Land
Exhibit B - Rules and Regulations
Exhibit C - Tenant Finish-Work
Exhibit D - Renewal Option
Exhibit E - Site Plan
26. Other Provisions. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY
IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE
CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS
HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL
CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
27. Tenant's Right to Terminate. Tenant shall have the right
("Tenant's Termination Option") to terminate this Lease as of the last day of
the sixty-third month of the Term (the "Early Termination Date") pursuant to the
provisions of this Section 27. Tenant's Termination Option shall be exercised by
Tenant by written notice (the "Termination Notice") to Landlord at least twelve
(12) months prior to the Early Termination Date and by payment to Landlord of an
amount equal to the sum of (i) any past due Rent or other charges payable by
Tenant to Landlord hereunder as of the date of delivery of the Termination
Notice, plus (ii) $5,000.00, plus (iii) the unamortized portion (as of the Early
Termination Date) of the Excess Allowance (collectively, the "Termination
Payment"). As used herein, the phrase "Excess Allowance" shall mean $16,800.00.
In determining the amount for subparagraph (iii) above, such $16,800.00 shall be
amortized on a straight-line basis, with interest, at the annual rate of ten
percent (10%), over the period from the Commencement Date through and including
August 31, 2008. The Termination Payment shall be paid to Landlord
simultaneously with the giving of the Termination Notice. If Tenant fails timely
to give the Termination Notice, then Tenant shall have no further right to
terminate this Lease, time being of the essence with respect to exercise of
Tenant's Termination Option. Furthermore, if Tenant fails to pay to
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Landlord the Termination Payment simultaneously with the giving of the
Termination Notice, the Termination Notice shall not be effective and this Lease
shall continue in full force and effect. If Tenant properly exercises Tenant's
Termination Option by giving Landlord timely notice and paying Landlord the
Termination Payment simultaneously with the giving of the Termination Notice,
then this Lease shall expire on the Early Termination Date, unless terminated
earlier pursuant to the terms and provisions of this Lease.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto as caused this Lease to be duly executed as a
Massachusetts instrument under seal as of the day and year first above written.
TENANT:
NUR AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: VP Finance + CFO
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: __________________________________
LANDLORD:
WHTR REAL ESTATE LIMITED
PARTNERSHIP
By: WHTR INVESTORS, INC.,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Asst. Vice President
Address: c/o Archon Group, L.P.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention:___________________________________
Telecopy:___________________________________
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With a copy to:
The Archon Group, L.P.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Manager
Telecopy:___________________________________
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EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
That certain parcel of land situated in Newton, Middlesex County,
Massachusetts more particularly bounded and described as follows:
SOUTHEASTERLY: by ▇▇▇▇▇▇▇ Street one hundred sixty-eight and 23/100 (168.23)
feet;
SOUTHERLY: by lands now or formerly of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and of
New England Concrete Pipe Corp., four hundred fifty-seven
and 96/100 (457.96) feet;
NORTHWESTERLY: by land now or formerly of The New York, New Haven
and Hartford Railroad Company, four hundred and
thirty-eight (438.0) feet;
NORTHEASTERLY: by land now or formerly of ▇▇▇▇ ▇. ▇▇▇▇▇ et al, Trustees,
seventy-seven and 53/100 (77.53) feet;
EASTERLY: by the end of East Street, forty-seven and 78/100
(47.78) feet;
NORTHEASTERLY: by said East Street, two hundred eighty-five and
26/100 (285.26) feet.
All of said boundaries are determined by the Land Court to be located
as shown on a plan, as modified and approved by the Court, filed in the Land
Registration Office, a copy of a portion of which is filed with Middlesex South
Registry District of the Land Court in Registration Book 736, Page 186, with
Certificate 121336. Said plan is Plan No. 30536A.
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EXHIBIT B
RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises and
the Property:
1. Sidewalks, doorways, vestibules, halls, stairways, and other
similar areas shall not be obstructed by tenants or used by any tenant for
purposes other than ingress and egress to and from their respective leased
premises and for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Building without the prior
written consent of Landlord. No nails, hooks or screws shall be driven or
inserted in any part of the Building except by Building maintenance personnel.
No curtains or other window treatments shall be placed between the glass and the
Building standard window treatments.
4. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
5. Movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by tenants of any bulky material, merchandise
or materials which require use of elevators or stairways, or movement through
the Building entrances or lobby shall be conducted under Landlord's supervision
at such times and in such a manner as Landlord may reasonably require. Each
tenant assumes all risks of and shall be liable for all damage to articles moved
and injury to persons or public engaged or not engaged in such movement,
including equipment, property and personnel of Landlord if damaged or injured as
a result of acts in connection with carrying out this service for such tenant.
6. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner acceptable to
Landlord which may include the use of such supporting devices as Landlord may
require. All damages to the Building caused by the installation or removal of
any property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
7. Corridor doors, when not in use, shall be kept closed. Nothing
shall be swept or thrown into the corridors, halls, elevator shafts or
stairways. No birds or animals shall be brought into or kept in, on or about any
tenant's leased premises. No portion of any
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tenant's leased premises shall at any time be used or occupied as sleeping or
lodging quarters.
8. To ensure orderly operation of the Building, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
9. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
10. No machinery of any kind (other than normal office equipment)
shall be operated by any tenant on its leased area without Landlord's prior
written consent, nor shall any tenant use or keep in the Building any flammable
or explosive fluid or substance.
11. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
12. No vending or dispensing machines of any kind may be maintained in
any leased premises without the prior written permission of Landlord.
13. Tenant shall not conduct any activity on or about the Premises or
Property which will draw pickets, demonstrators, or the like.
14. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expense of
the owner or driver. Landlord may place a "boot" on the vehicle to immobilize it
and may levy a charge of $50.00 to remove the "boot". Tenant shall indemnify,
hold and save harmless Landlord of any liability arising from the towing or
booting of any vehicles belonging to a Tenant Party.
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EXHIBIT C
TENANT FINISH-WORK
1. Tenant hereby accepts the Premises in their "AS-IS" condition, and
Landlord shall have no obligation to perform any work therein (including,
without limitation, demolition of any improvements existing therein or
construction of any tenant finish-work or other improvements therein), and shall
not be obligated to reimburse Tenant or provide an allowance for any costs
related to the demolition or construction of improvements therein, except as
provided below in this Exhibit C.
2. Tenant shall provide to Landlord for its approval final working
drawings, prepared by an architect that has been approved by Landlord (which
approval shall not unreasonably be withheld), of all improvements that Tenant
proposes to install 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 under this Exhibit in accordance with all applicable
governmental laws, codes, rules, and regulations. If any of Tenant's proposed
construction work will affect the Building's HVAC, electrical, mechanical, or
plumbing systems, then the working drawings pertaining thereto must be approved
by the Building's engineer of record. Landlord's approval of such working
drawings shall not be unreasonably withheld, provided that (a) they comply with
all laws, rules, and regulations, (b) such working drawings are sufficiently
detailed to allow construction of the improvements in a good and workmanlike
manner, and (c) the improvements depicted thereon conform to the rules and
regulations promulgated from time to time by Landlord for the construction of
tenant improvements (a copy of which has been delivered to Tenant). As used
herein, "Working Drawings" shall mean the final working drawings approved by
Landlord, as amended from time to time by any approved changes thereto, and
"Work" shall mean all improvements to be constructed in accordance with and as
indicated on the Working Drawings. Landlord's approval of the Working Drawings
shall not be a representation or warranty of Landlord that such drawings are
adequate for any use or comply with any law, but shall merely be the consent of
Landlord thereto. Tenant shall, at Landlord's request, sign the Working Drawings
to evidence its review and approval thereof. All changes in the Work must
receive the prior written approval of Landlord, and in the event of any such
approved change Tenant shall, upon completion of the Work, furnish Landlord with
an accurate, reproducible "as-built" plan of the improvements as constructed.
3. The Work shall be performed only by contractors and subcontractors
approved in writing by Landlord, which approval shall not be unreasonably
withheld. Notwithstanding anything herein to the contrary, Landlord agrees that
the general contractor for the construction of the Work may be Allendale
Associates having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇. All contractors and subcontractors shall be required to procure
and maintain insurance against such risks, in such amounts, and with such
companies as Landlord may reasonably require. Certificates of such insurance,
with paid receipts therefor, must be received by Landlord before the
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Work is commenced. The Work shall be performed in a good and workmanlike manner
free of defects, shall conform strictly with the Working Drawings, and shall be
performed in such a manner and at such times as and not to interfere with or
delay Landlord's other contractors, the operation of the Building, and the
occupancy thereof by other tenants. All contractors and subcontractors shall
contact Landlord and schedule time periods during which they may use Building
facilities in connection with the Work (e.g., elevators, excess electricity,
etc.).
4. The entire cost of performing the Work (including, without
limitation, design of the Work and preparation of the Working Drawings, costs of
construction labor and materials, electrical usage during construction,
additional janitorial services, general tenant signage, related taxes and
insurance costs, all of which costs are herein collectively called the "Total
Construction Costs") in excess of the Construction Allowance (hereinafter
defined) shall be paid by Tenant. Landlord shall provide to Tenant a
construction allowance (the "Construction Allowance") equal to the lesser of (a)
$11.00 per rentable square foot in the Premises or (b) the Total Construction
Costs. Landlord shall pay to Tenant the Construction Allowance within thirty
(30) days after the Work has been substantially completed and Tenant has caused
to be delivered to Landlord (1) all invoices from contractors, subcontractors,
and suppliers evidencing the cost of performing the Work, together with lien
waivers from such parties, and a consent of the surety to the finished Work (if
applicable) and (2) a certificate of occupancy from the appropriate governmental
authority, if applicable to the Work, or evidence of governmental inspection and
approval of the Work.
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EXHIBIT D
RENEWAL OPTION
Provided no Event of Default exists and Tenant is occupying the entire
Premises at the time of such election, Tenant may renew this Lease for 1
additional period of 5 years, by delivering written notice of the exercise
thereof to Landlord not later than 12 months before the expiration of the Term.
On or before the commencement date of the extended Term, Landlord and Tenant
shall execute an amendment to this Lease extending the Term on the same terms
provided in this Lease, except as follows:
(a) The Basic Rent payable for each month during the extended
Term shall be the prevailing rental rate, at the commencement of such extended
Term, for space of equivalent quality, size, utility and location, with the
length of the extended Term and the credit standing of Tenant to be taken into
account, as determined by Landlord;
(b) Tenant shall have no further renewal options unless
expressly granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their
then-current condition, and Landlord shall not provide to Tenant any allowances
(e.g., moving allowance, construction allowance, and the like) or other tenant
inducements.
Tenant's rights under this Exhibit D shall terminate if (1) this Lease
or Tenant's right to possession of the Premises is terminated, (2) Tenant
assigns any of its interest in this Lease or sublets any portion of the Premises
or (3) Tenant fails to timely exercise its option under this Exhibit D, time
being of the essence with respect to Tenant's exercise thereof.
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EXHIBIT E
SITE PLAN
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