Exhibit 10.65
ZOOM GROUP LLC, AS LANDLORD,
AND
SATCON TECHNOLOGY CORPORATION, AS TENANT
DATED MAY 12, 2004
BASIC LEASE INFORMATION
Lease Date: May 12, 2004
Tenant: Satcon Technology Corporation, a
Delaware Corporation.
Landlord: ZOOM GROUP LLC, a Massachusetts
limited liability company
Premises: Approximately 27,894 rentable square
feet (the "Premises Rentable Area") on the sixth
(6th) floor of the building currently known as
Section A of Building 114 (the "BUILDING"), and
whose street address is ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇. The Premises are outlined on the plan
attached to the Lease as EXHIBIT A. The land on
which the Building is located (the "LAND") is
described on EXHIBIT B. The term "Building" includes
the Land and the driveways, parking facilities, and
similar improvements on the Land. Landlord and
Tenant stipulate that the number of rentable square
feet in the Premises set forth above shall be
binding upon them. Tenant also has a right to
thirteen (13) parking places on or adjacent to the
Building grounds.
Term: Eighty-four (84) months,
commencing on July 15, 2004 (the "COMMENCEMENT
DATE") and ending at 5:00 p.m. on July 31, 2011,
subject to adjustment and earlier termination as
provided in the Lease. Tenant shall have the option
to extend the Lease for two additional terms of five
(5) years each, subject to Lease terms.
Basic Rent: Basic Rent shall be the following
amounts for the following periods of time:
LEASE MONTH MONTHLY BASIC RENT
----------- ------------------
1 -12 $ 11,231
13-24 $ 11,864
25-36 $ 12,471
37-48 $ 13,108
49-60 $ 13,777
61-72 $ 14,199
73-84 $ 14,633
85-96 $ 15,356
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As used herein, the term "LEASE MONTH" shall mean
each calendar month during the Term (and if the
Commencement Date does not occur on the first day of
a calendar month, the period from the Commencement
Date to the first day of the next calendar month
shall be included in the first Lease Month for
purposes of determining the duration of the Term and
the monthly Basic Rent rate applicable for such
partial month).
Notwithstanding anything to the contrary above,
Basic Rent in the amount of $11,231 is waived for
Lease Months one and two and Basic Rent in the
amount of $3,843 is waived for Lease Months three
through eleven, inclusive.
Security Deposit: $34,000 pursuant to Section 6 herein.
Building Rentable Area: Represented by Landlord to be 280,562 square feet.
Rent: Basic Rent, Tenant's Proportionate
Share of Taxes, Additional Rent, and all other sums
that Tenant may owe to Landlord or otherwise be
required to pay under the Lease. Landlord's good
faith estimate of Additional Rent, as hereinafter
defined in Section 4(b), for the fiscal year at the
commencement of this lease shall be equal to
$811,021 equal to $2.89 per square foot of Building
Rentable Area.
Tenant's
Proportionate Share: 10.46 percent which is the percentage obtained
by dividing the Premises Rentable Area by 95% of the
Building Rentable Area.
Permitted Use: Corporate headquarters, energy testing
laboratory, machining and manufacture of motors,
energy products and associated operations.
Initial Liability
Insurance Amount: $3,000,000.00
Tenant's Address: Prior to Commencement Date: Following Commencement Date:
-------------------------- ----------------------------
SatCon Technology SatCon Technology
Corporation Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 27 Drydock Avenue
Attn: General ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
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Landlord's Address: For All Notices:
---------------
Zoom Group LLC
c/o North Star Management
▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
Boston MA. 02210
Tel. ▇▇▇.▇▇▇.▇▇▇▇
Fax. ▇▇▇.▇▇▇.▇▇▇▇
Email ▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Broker: None
The foregoing Basic Lease Information is incorporated into and made a part of
the Lease identified above. If any conflict exists between any Basic Lease
Information and the Lease, then the Lease shall control.
LANDLORD:
ZOOM GROUP LLC, A MASSACHUSETTS LIMITED LIABILITY
COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, its Manager
TENANT:
Satcon Technology Corporation, a Delaware
Corporation.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, its President and Chief
Executive Officer
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TABLE OF CONTENTS
-----------------
PAGE
1. DEFINITIONS AND BASIC PROVISIONS 7
2. LEASE GRANT 7
3. TERM 7
4. RENT 8
(a) PAYMENT 8
(b) OPERATING COSTS; TAXES, ELECTRICITY. 8
(c) BILLING FOR ELECTRICITY 10
5. DELINQUENT PAYMENT; HANDLING CHARGES 10
6. SECURITY DEPOSIT 10
7. LANDLORD'S OBLIGATIONS 12
(a) SERVICES 12
(b) EXCESS UTILITY USE 12
(c) RESTORATION OF SERVICES; ABATEMENT 13
8. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE. 13
(a) IMPROVEMENTS; ALTERATIONS 13
(b) REPAIRS; MAINTENANCE 13
(c) PERFORMANCE OF WORK 14
(d) MECHANIC'S LIENS 14
9. USE 14
10. ASSIGNMENT AND SUBLETTING 15
(a) TRANSFERS 15
(b) CONSENT STANDARDS 15
(c) REQUEST FOR CONSENT 15
(d) CONDITIONS TO CONSENT 15
(e) CANCELATION 16
(f) ADDITIONAL COMPENSATION 16
(g) PERMITTED TRANSFERS 16
11. INSURANCE; ▇▇▇▇▇▇▇; SUBROGATION; INDEMNITY 17
(a) INSURANCE 17
(b) WAIVER OF NEGLIGENCE; NO SUBROGATION 17
(c) INDEMNITY 17
12. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE 18
(a) SUBORDINATION 18
(b) ATTORNMENT 18
(c) NOTICE TO LANDLORD'S MORTGAGEE 18
(d) LANDLORD'S MORTGAGEE'S PROTECTION PROVISIONS. 18
13. RULES AND REGULATIONS 19
14. CONDEMNATION 19
(a) TOTAL TAKING 19
(b) PARTIAL TAKING - TENANT'S RIGHTS 19
(c) PARTIAL TAKING - LANDLORD'S RIGHTS 19
(d) AWARD 20
15. FIRE OR OTHER CASUALTY 21
(a) REPAIR ESTIMATE 21
(b) LANDLORD'S AND TENANT'S RIGHTS 21
(c) LANDLORD'S RIGHTS 21
(d) REPAIR OBLIGATION 21
16. PERSONAL PROPERTY TAXES 21
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17. EVENTS OF DEFAULT 22
18. REMEDIES 22
19. PAYMENT BY TENANT; NON-WAIVER 24
(a) PAYMENT BY TENANT 24
(b) NO WAIVER 24
20. LANDLORD'S LIEN ERROR! BOOKMARK NOT DEFINED.
21. SURRENDER OF PREMISES 24
22. HOLDING OVER 25
23. CERTAIN RIGHTS RESERVED BY LANDLORD 25
24. SUBSTITUTION SPACE ERROR! BOOKMARK NOT DEFINED.
25. MISCELLANEOUS 26
(a) LANDLORD TRANSFER 26
(b) LANDLORD'S LIABILITY 26
(c) FORCE MAJEURE 26
(d) BROKERAGE 26
(e) ESTOPPEL CERTIFICATES 26
(f) NOTICES 26
(g) SEPARABILITY 27
(h) AMENDMENTS; AND BINDING EFFECT 27
(i) QUIET ENJOYMENT 27
(j) NO MERGER 27
(k) NO OFFER 27
(l) ENTIRE AGREEMENT 27
(m) WAIVER OF JURY TRIAL 28
(n) GOVERNING LAW 28
(o) JOINT AND SEVERAL LIABILITY 28
(p) FINANCIAL REPORTS 28
(q) LANDLORD'S FEES 28
(r) TELECOMMUNICATIONS 28
(s) CONFIDENTIALITY 29
(t) HAZARDOUS MATERIALS 29
(u) LIST OF EXHIBITS 29
(v) TIME OF ESSENCE 30
(w) EDIC LEASE 30
(x) CONSENT OF EDIC 30
26. OTHER PROVISIONS 30
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LEASE
THIS
LEASE AGREEMENT (this "LEASE") is entered into as of May ___, 2004, by
and between ZOOM GROUP LLC, a Massachusetts limited liability company
("LANDLORD"), and
Satcon Technology Corporation, a Delaware corporation
("TENANT").
1. DEFINITIONS AND BASIC PROVISIONS. The definitions and basic provisions
set forth in the Basic Lease Information (the "BASIC LEASE INFORMATION")
executed by Landlord and Tenant contemporaneously herewith are incorporated
herein by reference for all purposes. Additionally, the following terms shall
have the following meanings when used in this Lease: "BUILDING'S STRUCTURE"
means the Building's exterior walls, roof, elevator shafts, footings,
foundations, structural portions of loadbearing walls, structural floors and
subfloors, and structural columns and beams; "BUILDING'S SYSTEMS" means the
Building's HVAC, lifesafety, plumbing, electrical, and mechanical systems;
"LAWS" means all federal, state, and local laws, rules and regulations, all
court orders, governmental directives, and governmental orders, and all
restrictive covenants of record affecting the Property, and "LAW" shall mean any
of the foregoing; "AFFILIATE" means any person or entity which, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with the party in question; "TENANT PARTY" means any of
the following persons: Tenant; any assignees claiming by, through, or under
Tenant; any subtenants claiming by, through, or under Tenant; and any of their
respective agents, contractors, employees, and invitees; and "INCLUDING" means
including, without limitation.
2. LEASE GRANT. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises and the right to use
common areas of the Building.
3. TERM. This Lease shall commence on July 15, 2004 (the "Commencement
Date") and remain in force and effect, subject to the parties rights and
obligations set forth herein, for an initial term of eighty-four (84) months,
ending July 31, 2011; the Tenant may renew this Lease for two additional terms
of five (5) years each, subject to the requirements herein. The Premises are to
be delivered to the Tenant on the Commencement Date." If the Premises are not
delivered to Tenant on the Commencement Date, then (a) Tenant's obligation to
pay Basic Rent and Additional Rent (as defined in Section 4) shall be waived
until Landlord tenders possession of the Premises vacant to Tenant, (b) Landlord
shall not be in default hereunder or be liable for damages therefor, and (c)
Tenant shall accept possession of the Premises when Landlord tenders possession
thereof to Tenant. By occupying the Premises, Tenant shall be deemed to have
accepted the Premises in their condition as of the date of such occupancy unless
Tenant notifies Landlord of a defect or deficiency in the condition of the
premises within thirty (30) days of occupancy. Tenant shall execute and deliver
to Landlord, within ten (10) days after ▇▇▇▇▇▇▇▇ has requested the same, an
amendment substantially in the form of EXHIBIT E hereto confirming the
Commencement Date and the expiration date of the
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Term, that ▇▇▇▇▇▇ has accepted the Premises, and that Landlord has performed all
of its obligations with respect to the delivery of the Premises.
4. RENT.
(a) PAYMENT. Tenant shall timely pay to Landlord Basic Rent and all
additional sums to be paid by Tenant to Landlord under this Lease, without
notice, 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. The first monthly installment of Basic Rent
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 second full calendar month of the Term. The monthly Basic Rent
for any partial month at the beginning of the Term shall equal the product of
1/365 of the annual Basic Rent in effect during the partial month and the number
of days in the partial month from and after the Commencement Date, and shall be
due on the Commencement Date.
(b) OPERATING COSTS; TAXES, ELECTRICITY.
(1) Tenant shall pay Tenant's Proportionate Share of the
Operating Costs (defined below) ("ADDITIONAL RENT"). 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 ▇▇▇▇▇▇ 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
reasonably 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 term "OPERATING COSTS" shall mean all reasonable
expenses and disbursements (subject to the limitations set forth below) that
Landlord incurs in connection with the ownership, operation, and maintenance of
the Building, determined in accordance with sound accounting principles
consistently applied, including, but not limited to, the following costs: (A)
wages and salaries of all employees engaged in the operation, maintenance, and
security of the Building, including taxes, insurance and benefits relating
thereto; (B) all supplies and materials used in the operation, maintenance,
repair, replacement, and security of the Building; (C) costs for improvements
made to the Building which, although capital in nature, are expected to reduce
the normal operating costs (including all utility costs) of the Building, as
well as capital improvements made in order to comply with (i) any law hereafter
promulgated by any governmental authority, or (ii) the EDIC Master Lease, as
amortized over the useful economic life of such improvements as determined by
Landlord in its reasonable discretion; (D) annual increases, if any, in the
fixed rent
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payable by Landlord under the EDIC Master Lease (E) cost of all utilities,
except the cost of utilities reimbursable to Landlord by the Building's tenants
other than pursuant to a provision similar to this Section 4.(b); (F) insurance
expenses, as required by the EDIC Master Lease or institutional mortgagee; and
(G) non-capital repairs, replacements, and general maintenance of the Building;
and (G) service or maintenance contracts with independent contractors for the
operation, maintenance, repair, replacement, or security of the Building
(including, without limitation, alarm service, window cleaning, and elevator
maintenance).
Operating Costs shall not include costs for (i) capital
improvements made to the Building, other than capital improvements described in
Section 4.(b)(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, painting and sealing and general maintenance of the
Building exterior windows and envelope as well as the parking lot, sidewalk and
related elements, 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 Building tenants generally (E.G., tax disputes);
(vii) renovating or otherwise improving space for occupants of the Building or
vacant space in the Building; (viii) Taxes (defined below); and (ix) federal
income taxes imposed on or measured by the income of Landlord from the operation
of the Building.
(3) Tenant shall also pay Tenant's Proportionate Share of the
Taxes (defined below) for each year and partial year falling within the Term in
the same manner as provided above for Additional Rent with regard to Operating
Costs. "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 Building (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 Building, 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 reasonable 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 Building. For property tax purposes, ▇▇▇▇▇▇ waives all rights
to protest or appeal the appraised value of the Premises, as well as the
Building, and all rights to receive notices of reappraisement.
(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
Electrical Costs for the previous year, and of the Taxes for the previous year
(the "OPERATING COSTS AND TAX STATEMENT"). If the Operating Costs and Tax
Statement reveals that ▇▇▇▇▇▇ paid more for Operating Costs or Electrical Costs
than the actual amount for the year for which such statement was prepared, or
more than its
9
actual share of Taxes for such year, then Landlord shall promptly credit or
reimburse Tenant for such excess; likewise, if Tenant paid less than Tenant's
actual Share of Additional Rent or proportionate share of Taxes due, then Tenant
shall promptly pay Landlord such deficiency.
(c) BILLING FOR ELECTRICITY. If none is currently installed,
Tenant shall install, at its sole cost and expense, a separate meter for
electricity in the Premises. Tenant shall pay (as hereinafter described) for the
use of all electrical service to the Premises. Tenant shall be billed directly
by such utility company and ▇▇▇▇▇▇ agrees to pay each bill promptly in
accordance with its terms, and upon default in making any such payment, Landlord
may pay such charges and collect the same from Tenant. In the event for any
reason Tenant cannot be billed directly, Landlord shall forward each bill
received with respect to the Building to Tenant of which Tenant shall pay its
proportionate share (as reasonably determined by Landlord based upon either
square footage or level of use) promptly and in accordance with its terms.
5. DELINQUENT PAYMENT; HANDLING CHARGES. If payment is not received
by the fifth day after the due date, all past due payments required of Tenant
hereunder shall bear interest from the date due until paid at the lesser of the
prime rate plus 2% or the maximum lawful rate of interest; additionally, if such
delinquency continues for a period of five (5) days after ▇▇▇▇▇▇ has received
written notice of non-receipt from the Landlord, 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 ▇▇▇▇▇▇'s delinquency. In no event,
however, shall the charges permitted under this Section 5 or elsewhere in this
Lease, to the extent they are considered to be interest under applicable Law,
exceed the maximum lawful rate of interest. Tenant shall be entitled to one
exemption per year from the interest and late charge.
6. SECURITY DEPOSIT. Contemporaneously with the execution of this
Lease, Tenant shall pay to Landlord 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 17). Landlord
may, from time to time following an Event of Default 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 ▇▇▇▇▇▇ has performed all of its obligations hereunder, Landlord
shall, within thirty (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.
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In lieu of a cash Security Deposit, Landlord may, in it sole discretion,
require Tenant to deliver, simultaneously with the execution and delivery of
this Lease, an irrevocable and unconditional standby letter of credit made
payable to Landlord, its successors and assigns, in the sum equal to the
Security Deposit (the "LETTER OF CREDIT"), substantially in the form of the
sample letter of credit attached hereto as EXHIBIT G or in such other form as is
reasonably acceptable to Landlord, drawn on a domestic commercial bank located
in Boston acceptable to Landlord, which shall secure the performance by Tenant
of all obligations on the part of Tenant hereunder. The issuer of the Letter of
Credit shall be a banking institution with at least a rating of A and otherwise
reasonably acceptable to Landlord. Although Landlord shall only have the right
to draw under the Letter of Credit as set forth herein, under the terms of the
Letter of Credit, the sole condition to Landlord's draw upon the Letter of
Credit shall be presentment to the issuer thereof, prior to or on the expiration
date, of a demand for payment. The Letter of Credit shall be self-renewing from
year to year during the Term of this Lease so as to expire no earlier than
thirty (30) days following the Lease expiration date and shall contain such
other customary terms as Landlord requires in its reasonable discretion. It is
agreed: (i) that the Letter of Credit may be drawn upon to cure any Event of
Default that may exist, without prejudice to any other remedy or remedies which
Landlord may have on account thereof, and upon ▇▇▇▇▇▇▇▇'s demand, Tenant shall
reimburse the issuer for the amount so drawn so that the Letter of Credit will
be restored to its original amount; (ii) subject to the provisions of clause
(iv) below, that the Letter of Credit may be drawn upon if the Letter of Credit
has not been extended or renewed without amendment at least forty-five (45) days
prior to any then-current expiration date thereof; (iii) that if the rating of
the issuer of the Letter of Credit at any time drops below A, then, within sixty
(60) days of Landlord's demand, Tenant shall replace the Letter of Credit with
another Letter of Credit in a form reasonably acceptable to Landlord and with an
issuer with a rating of at least an A and otherwise reasonably acceptable to
Landlord; Landlord may draw on the existing Letter of Credit if, after Landlord
requests that Tenant replace the Letter of Credit as aforesaid, Landlord is not
provided with a substitute Letter of Credit in a form, and from an issuer,
satisfactory to Landlord as provided above upon the earlier of (x) the
expiration of said sixty-day period or (y) at least forty-five (45) days prior
to the then-current expiration date of the Letter of Credit; (iv) if at any
time, but in any event, at least sixty (60) days prior to the expiration of the
Letter of Credit, Tenant may seek Landlord's consent to switch issuers of the
Letter of Credit provided the prospective issuer has a rating of at least an A
and is otherwise reasonably acceptable to Landlord and the new form of Letter of
Credit satisfies the requirements of Landlord hereunder and is otherwise
reasonably acceptable to Landlord; Landlord may draw on the existing Letter of
Credit if, after Tenant requests ▇▇▇▇▇▇▇▇'s consent to switch issuers as
aforesaid, Landlord is not provided with a substitute Letter of Credit in a
form, and from an issuer, satisfactory to Landlord in its sole and absolute
discretion at least forty-five (45) days prior to the then-current expiration
date of the Letter of Credit; (v) that should the Premises be conveyed by
Landlord, the Letter of Credit or any portion thereof shall be assigned to
Landlord's grantee, and if the same be assigned as aforesaid, Tenant shall pay
for any transfer fees charged by the issuer and hereby releases Landlord from
any and all liability with respect to the Letter of Credit and its application
or return, and ▇▇▇▇▇▇ agrees to look to such grantee for such application or
return, provided such grantee assumes Landlord's obligations under this Lease
(including this Section 6); and (vi) that the Letter of Credit shall be returned
to Tenant upon the later of (a) thirty (30) days after the expiration of the
Term or any
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renewal or extension thereof, or (b) the date Tenant has vacated the Premises
and surrendered possession thereof to Landlord at the expiration of the Term or
any extension thereof as provided herein and has paid Landlord all sums due and
owing under this Lease.
If Tenant initially provides Landlord with a cash Security Deposit, Tenant
may replace such cash Security Deposit with a Letter of Credit in accordance
with the provisions of the preceding paragraph. Upon ▇▇▇▇▇▇▇▇'s receipt of a
Letter of Credit satisfying the terms and conditions of the preceding paragraph,
Landlord shall promptly return the cash Security Deposit to Tenant.
For the purposes of this Section 6, a rating of at least A (or its
equivalent) shall mean that such issuer has a rating of at least A (or its
equivalent) from two (2) of the following four (4) rating agencies: Fitch
Investors Service, ▇▇▇▇▇'▇ Investor Service, Standard & Poor's Corporation and
Duff & ▇▇▇▇▇▇.
7. LANDLORD'S OBLIGATIONS
(a) SERVICES. Landlord shall use all reasonable efforts to furnish to
Tenant on weekdays (excluding national holidays) and Saturdays: (1) water at
those points of supply provided for general use of tenants of the Building; (2)
heat ("HVAC") as appropriate, at such temperatures and in such amounts as are
standard for comparable buildings in the vicinity of the Building; (3)
elevators, including existing freight elevators, for ingress and egress to the
floor on which the Premises are located, in common with other tenants, provided
that Landlord may reasonably limit the number of operating elevators during
non-business hours and holidays; and (4) electrical current during normal
business hours for equipment that does not require more than 110 volts and whose
electrical energy consumption does not exceed normal office usage. Landlord
shall maintain the common areas of the Building in reasonably good order and
condition, except for damage caused by a Tenant Party.
(b) EXCESS UTILITY USE. Landlord shall not be required to furnish
electrical current for equipment that requires more than 110 volts or other
equipment whose electrical energy consumption exceeds normal office usage. If
Tenant's requirements for or consumption of electricity exceed the electricity
to be provided by Landlord as described in Section 7.(a), Landlord shall, at
Tenant's expense, make reasonable efforts to supply such service through the
then-existing feeders and risers serving the Building and the Premises, and
Tenant shall pay to Landlord the cost of such service within ten (10) days after
Landlord has delivered to Tenant an invoice therefor. Landlord may determine the
amount of such additional consumption and potential consumption by any
verifiable method, including installation of a separate meter in the Premises
installed, maintained, and read by Landlord, at Tenant's expense. Tenant shall
not install any electrical equipment requiring special wiring or requiring
voltage in excess of 110 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 or additional, Landlord approved feeders and
risers to or wiring in the Premises. Landlord acknowledges that it has been
informed that Tenant has equipment that requires electrical power in excess of
what currently exists, including additional
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electrical power equipment to be located on the roof of the Building and
Landlord agrees that such equipment shall be permitted, subject to Landlord's
approval of the method of installation and electrical and building code
requirements. Any risers or wiring required to meet ▇▇▇▇▇▇'s excess electrical
requirements shall, upon ▇▇▇▇▇▇'s written request, be installed at Tenant's
cost, if, in Landlord's reasonable judgment, the same 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 Building.
(c) RESTORATION OF SERVICES; ABATEMENT. 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, except as provided in the next sentence, entitle Tenant to
any abatement of ▇▇▇▇▇▇'s obligations hereunder. If, however, ▇▇▇▇▇▇ is
prevented from using the Premises for more than twenty-five (25) consecutive
business days because of the unavailability of any such service and such
unavailability was not caused by a Tenant Party, then Tenant shall, as its
exclusive remedy be entitled to a reasonable abatement of Rent for each
consecutive day (after such 25-day period) that Tenant is so prevented from
using the Premises.
8. 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 that have been previously submitted to and approved in writing by
Landlord, which approval shall be governed by standards in the following
sentence. 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 adversely affect (in the reasonable discretion
of Landlord) (1) the Building's Structure or the Building's Systems (including
the Building's restrooms or mechanical rooms), (2) the exterior appearance of
the Building, or (3) the appearance of the Building's common areas or elevator
lobby areas. 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 Building. All
alterations, additions, and improvements shall be constructed, maintained, and
used by Tenant, at its risk and expense, in accordance with all Laws; Landlord's
consent to or approval of any alterations, additions or improvements (or the
plans therefor) shall not constitute a representation or warranty by Landlord,
nor Landlord's acceptance, that the same comply with sound architectural and/or
engineering practices or with all applicable Laws, and Tenant shall be solely
responsible for ensuring all such compliance. Notwithstanding the above,
▇▇▇▇▇▇▇▇ acknowledges that certain ductwork will be required on the rear
exterior of the Building (including the use of pre-existing ductwork on the rear
exterior of the Building) and Landlord agrees that such equipment shall be
permitted, subject to Landlord's approval of the method of installation
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and electrical and building code requirements. Landlord will be permitted to
utilize the pre-existing duct, providing that such use does not interfere with
▇▇▇▇▇▇'s use.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the Premises in
a clean, safe, and operable condition, 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
Building caused by a Tenant Party. Tenant shall maintain the interior surfaces
of the windows including painting and sealing in accordance with standards set
from time to time by Landlord, and Tenant shall seek and obtain Landlord's
written consent to conduct such maintenance prior to performing the work. If
Tenant fails to make such repairs or replacements within fifteen (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 8 shall be paid by Tenant to Landlord within ten (10) days after
Landlord has invoiced Tenant therefor. Tenant shall provide Landlord within
thirty (30) days following the Commencement Date (and then annually on the
anniversary of the Commencement Date), with copies of any service contracts for
Tenant owned HVAC equipment.
(c) PERFORMANCE OF WORK. All work described in this Section 8
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 Building (including the Premises, the Building's Structure and the
Building's Systems). All such work which may affect the Building's Structure or
the Building's Systems must be approved by the Building's engineer of record, at
▇▇▇▇▇▇'s expense and, at Landlord's election, must be performed by ▇▇▇▇▇▇▇▇'s
usual contractor for such work.
If ▇▇▇▇▇▇'s contractors or subcontractors perform the work, upon request by
the Landlord, Tenant shall provide contractor's final waivers of lien covering
all labors and materials included in the work in question.
(d) MECHANIC'S LIENS. Tenant shall not permit any mechanic's
liens to be filed against the Premises or the Building 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 ten (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 take reasonable and necessary steps to
remove the lien, and any reasonable amounts incurred, including expenses and
interest, shall be paid by Tenant to Landlord within ten (10) days after
Landlord has invoiced Tenant therefor.
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9. USE. Tenant shall occupy and use the Premises only for the Permitted
Use, and for no other purposes, and shall comply with all Laws relating to the
use, condition, access to, and occupancy of the Premises. The population density
within the Premises as a whole shall at no time exceed one person for each 200
rentable square feet in the Premises. The Premises shall not be used for any use
that is disreputable, creates extraordinary fire hazards, or results in an
increased rate of insurance on the Building or its contents, or for the storage
of any Hazardous Materials, except in accordance with all applicable laws and
regulations. If, because of a Tenant Party's acts, the rate of insurance on the
Building or its contents increases, Tenant shall pay to Landlord the amount of
such increase on demand, and acceptance of such payment shall not waive any of
Landlord's other rights. 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 Building.
10. ASSIGNMENT AND SUBLETTING
(a) TRANSFERS. Except as provided in Section 10.(g), 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 10.(a)(1) through 10.(a)(6) being a "TRANSFER").
(b) CONSENT STANDARDS. Subject to the provisions of Section 10.(e)
hereof, Landlord shall not unreasonably withhold its consent to any assignment
or subletting of the Premises, provided that the proposed transferee is
creditworthy, has a good reputation in the business community, will use the
Premises for the Permitted Use (thus, excluding, without limitation, uses for
credit processing and telemarketing) and will not use the Premises in any manner
that would conflict with any exclusive use agreement or other similar agreement
entered into by Landlord with any other tenant of the Building, is not a
governmental entity, or subdivision or agency thereof, and is not another
occupant of the Building or person or entity with whom Landlord is negotiating
to lease space in the Building; otherwise, Landlord may withhold its consent in
its sole discretion.
(c) REQUEST FOR CONSENT. If Tenant requests ▇▇▇▇▇▇▇▇'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. Concurrently with ▇▇▇▇▇▇'s notice of
any request for consent to a Transfer, Tenant
15
shall reimburse Landlord immediately upon request for its reasonable attorneys'
fees incurred in connection with considering any request for consent to a
Transfer.
(d) CONDITIONS TO CONSENT. 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. ▇▇▇▇▇▇▇▇'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.
(e) CANCELLATION. Except with respect to a Permitted Transfer under
10.(g) hereafter, Landlord may in its sole discretion, within thirty (30) days
after submission of ▇▇▇▇▇▇'s written request for Landlord's consent to an
assignment or subletting, cancel this Lease as to the portion of the Premises
and the period of time 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
cancellation. Thereafter, Landlord may lease such portion of the Premises to the
prospective transferee (or to any other person) without liability to Tenant.
(f) ADDITIONAL COMPENSATION. Except with respect to a Permitted
Transfer or in the case of the cancellation under the preceding paragraph,
Tenant shall pay to Landlord, immediately upon receipt thereof, seventy-five
percent (75%) of 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.
(g) PERMITTED TRANSFERS. Notwithstanding Section 10. (a), Tenant may
Transfer all or part of its interest in this Lease or all or part of the
Premises (a "PERMITTED TRANSFER") to the following types of entities (a
"PERMITTED TRANSFEREE") without the written consent of Landlord:
(1) an Affiliate of Tenant;
(2) any corporation, limited partnership, limited liability
partnership, limited liability company or other business entity in which or
with which Tenant, or its corporate successors or assigns, is merged or
consolidated, in accordance with applicable
16
statutory provisions governing merger and consolidation of business
entities, so long as Tenant's obligations hereunder are assumed by the
entity surviving such merger or created by such consolidation; or
(3) any corporation, limited partnership, limited liability
partnership, limited liability company or other business entity acquiring
all or substantially all of Tenant's assets so long as Tenant's obligations
hereunder are assumed by the acquiring entity.
Tenant shall promptly notify Landlord of any such Permitted Transfer.
Tenant shall remain liable for the performance of all of the obligations of
Tenant hereunder, or if Tenant no longer exists because of a merger,
consolidation, or acquisition, the surviving or acquiring entity shall expressly
assume in writing the obligations of Tenant hereunder. Additionally, the
Permitted Transferee shall comply with all of the terms and conditions of this
Lease, including the Permitted Use, and the use of the Premises by the Permitted
Transferee may not violate any other agreements of which ▇▇▇▇▇▇ has received
notice affecting the Premises, the Building, Landlord or other tenants of the
Building. At least thirty (30) days after the effective date of any Permitted
Transfer, ▇▇▇▇▇▇ agrees to furnish Landlord with copies of the instrument
effecting any of the foregoing Transfers and documentation establishing Tenant's
satisfaction of the requirements set forth above applicable to any such
Transfer. The occurrence of a Permitted Transfer shall not waive Landlord's
rights as to any subsequent Transfers.
11. INSURANCE; ▇▇▇▇▇▇▇; SUBROGATION; INDEMNITY
(a) INSURANCE. Tenant shall maintain throughout the Term the
following insurance policies: (1) commercial general liability insurance in
amounts of $3,000,000 per occurrence 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 obligations
hereunder (but only if such contractual liability insurance is not already
included in Tenant's commercial general liability insurance policy), (4)
worker's compensation insurance, containing a waiver of subrogation endorsement
acceptable to Landlord, and (5) business interruption insurance. 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, including the obligation on the part of each insurance company to
notify Landlord at least thirty (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
17
is insured against under any insurance policy that covers the Building, 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. 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 11.(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 (other than any Loss
arising out of a breach of Tenant's obligations under Section 25.(t), which
shall be subject to the indemnity in such section) or (2) Tenant's failure to
perform its obligations under this Lease, except to the extent caused by the
negligence or fault of Landlord or its agents. This indemnity provision shall
survive for a period of one (1) year from the termination or expiration of this
Lease. If any proceeding is filed for which indemnity is required hereunder,
▇▇▇▇▇▇ agrees, upon request therefor, to defend the indemnified party in such
proceeding at its sole cost utilizing counsel reasonably satisfactory to the
indemnified party.
12. 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
atornment as such party may reasonably request.
(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.
(d) LANDLORD'S MORTGAGEE'S PROTECTION PROVISIONS. If Landlord's
Mortgagee shall succeed to the interest of Landlord under this Lease, Landlord's
Mortgagee shall not be: (1)
18
liable for any act or omission of any prior lessor (including Landlord); (2)
bound by any security or advance rental deposit made by Tenant which is not
delivered or paid over to Landlord's Mortgagee and with respect to which Tenant
shall look solely to Landlord for refund or reimbursement; (3) bound by any
termination, amendment or modification of this Lease made without Landlord's
Mortgagee's consent and written approval, except for those terminations,
amendments and modifications permitted to be made by Landlord without Landlord's
Mortgagee's consent pursuant to the terms of the loan documents between Landlord
and Landlord's Mortgagee; (4) subject to the defenses which Tenant might have
against any prior lessor (including Landlord); and (5) subject to the offsets
which Tenant might have against any prior lessor (including Landlord) except for
those offset rights which (A) are expressly provided in this Lease (B) relate to
periods of time following the acquisition of the Building by Landlord's
Mortgagee, and (C) Tenant has provided written notice to Landlord's Mortgagee
and provided Landlord's Mortgagee a reasonable opportunity to cure the event
giving rise to such offset event. Landlord's Mortgagee shall have no liability
or responsibility under or pursuant to the terms of this Lease or otherwise
after it ceases to own an interest in the Building. Nothing in this Lease shall
be construed to require Landlord's Mortgagee to see to the application of the
proceeds of any loan, and Tenant's agreements set forth herein shall not be
impaired on account of any modification of the documents evidencing and securing
any loan.
(e) SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT. The
Landlord agrees to use its best efforts to have the holder of any mortgage or
deed of trust granted prior to this Lease and any such primary lessor, as the
case may be, including EDIC, enter into its usual nondisturbance agreement with
Tenant, or, in lieu thereof, provide the Tenant with an agreement by the terms
of which such holder or primary lessor agrees to recognize the rights of the
Tenant under this Lease in the event of foreclosure of such mortgage or deed of
trust or termination of such primary lease, respectively, so long as the Tenant
is not in default hereunder.
13. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations of the Building, 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 Building and related facilities, provided that such
changes are applicable to all tenants of the Building and will not unreasonably
interfere with ▇▇▇▇▇▇'s use of the Premises. Tenant shall be responsible for the
compliance with such rules and regulations by each Tenant Party.
14. CONDEMNATION.
(a) TOTAL TAKING. If the entire Building 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,
including that portion which includes parking for Tenant, 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 one hundred eighty (180)
19
days, then Tenant may terminate this Lease as of the date of such Taking by
giving written notice to Landlord within thirty (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 Building becomes subject to a Taking, Landlord shall
provide written notice thereof to Tenant within thirty (30) days after notice of
such Taking or intent to make a taking. If the Premises are, in the judgment of
the Tenant, no longer able to be utilized by Tenant due to the Partial Taking,
then this Lease shall terminate and Rent shall be apportioned as of the date
Tenant vacates the Premises. If the Landlord and ▇▇▇▇▇▇ agree that the Premises
are able to be utilized by ▇▇▇▇▇▇, 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 14. (b).
(d) AWARD. If any Taking occurs, then Landlord shall receive the
entire award or other compensation for the land on which the Building is
situated, the Building, and other improvements 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 ▇▇▇▇▇▇ is entitled
to remove under this Lease, moving costs, loss of business, and other claims it
may have.
20
15. 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 ninety (90) 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 two hundred seventy (270)
days after the Casualty, then Tenant may terminate this Lease by delivering
written notice to Landlord of its election to terminate within thirty (30) days
after the Damage Notice has been delivered to Tenant. If Tenant does not so
timely terminate this Lease, then (subject to Section 15.(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, unless a Tenant Party caused such damage, in which case, Tenant
shall continue to pay Rent without abatement.
(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 a material
portion of 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 thirty (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
▇▇▇▇▇▇▇▇'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.
16. 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 ▇▇▇▇▇▇ 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
21
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 ▇▇▇▇▇▇ 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-payment thereof does not pose a threat of loss or seizure of the
Building or interest of Landlord therein or impose any fee or penalty against
Landlord.
17. EVENTS OF DEFAULT. Each of the following occurrences shall be an
"EVENT OF DEFAULT":
(a) Tenant's failure to pay Rent within five (5) days after Landlord
has delivered notice to Tenant that the same has not been paid; 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
17. (a) on more than two occasions during the twelve (12) month interval
preceding such failure by Tenant;
(b) Tenant (1) abandons or vacates the Premises or any substantial
portion thereof or (2) fails to continuously operate its business in the
Premises unless Tenant has given notice thereof to Landlord and made
satisfactory arrangements with Landlord;
(c) Tenant fails to comply with the Permitted Use set forth herein
and the continuance of such failure for a period of five (5) days after ▇▇▇▇▇▇▇▇
has delivered to Tenant written notice thereof;
(d) Tenant fails to provide any estoppel certificate within the time
period required under Section 25.(e) and such failure shall continue for five
(5) days after written notice thereof from Landlord to Tenant;
(e) 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 thirty (30) days after Landlord has delivered
to Tenant written notice thereof; and
(f) The filing of a petition by or against Tenant (the term "TENANT"
shall include, for the purpose of this Section 17.(f), 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; however, if such a petition is
filed against Tenant, then such filing shall not be an Event of Default unless
▇▇▇▇▇▇ fails to have the proceedings initiated by such petition dismissed within
ninety (90) days after the filing thereof.
18. 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:
22
(a) Terminate this Lease by giving Tenant written notice thereof, in
which event Tenant shall pay to Landlord the sum of (1) all Rent accrued
hereunder through the date of termination, (2) all amounts due under Section
19.(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;
(b) Terminate ▇▇▇▇▇▇'s right to possess the Premises without
terminating this Lease by giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (1) all Rent and other amounts accrued
hereunder to the date of termination of possession, (2) all amounts due from
time to time under Section 19.(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 out-of-pocket costs incurred by Landlord
in reletting the Premises. The refusal or failure of Landlord to relet the
Premises or any part or parts thereof shall not release or affect Tenant's
liability for damages, provided however, that after the termination of this
Lease as a result of an Event of Default, 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), but in using such reasonable
efforts, Landlord shall not be required to (i) give priority to the reletting of
the Premises over the leasing of other portions of the Building, (ii) enter into
a lease with any proposed tenant that does not, in Landlord's reasonable
opinion, have sufficient financial resources or experience to operate the
Premises in a first-class manner, or (iii) lease the Premises for a rental less
than the current rental then prevailing for similar space in the Building.
Landlord shall not be liable for, nor shall Tenant's obligations hereunder be
diminished because of, ▇▇▇▇▇▇▇▇'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 ▇▇▇▇▇▇'s obligations hereunder for the
unexpired Term; rather, Landlord may, from time to time, bring an action against
Tenant to collect amounts due by ▇▇▇▇▇▇, 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 18. (b). If Landlord elects to
proceed under this Section 18. (b), it may at any time elect to terminate this
Lease under Section 18. (a); or
(c) Additionally, without notice, Landlord may alter locks or other
security devices at the Premises to deprive Tenant of access thereto, and
Landlord shall not be required to provide a new key or right of access to
Tenant.
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
23
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.
19. 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
condition acceptable to a new tenant, (4) if Tenant is dispossessed of the
Premises and this Lease is not terminated, reletting all or any part of the
Premises (including brokerage commissions, cost of tenant finish work, and other
costs incidental to such reletting), (5) performing Tenant's obligations which
▇▇▇▇▇▇ 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 the state in which the Premises are located 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. ▇▇▇▇▇▇▇▇'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 delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
▇▇▇▇▇▇▇▇'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.
21. 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, free of Hazardous Materials placed on the Premises during the
Term, broom-clean, reasonable wear and tear (and condemnation and Casualty
damage not caused by Tenant, as to which Sections 14 and 15 shall control)
excepted, and shall deliver to Landlord all keys to the Premises. Provided that
▇▇▇▇▇▇ has performed all of its obligations hereunder, Tenant may remove all
unattached trade fixtures, furniture, and personal property placed in the
Premises or elsewhere in the Building by Tenant (but Tenant may not remove any
such item which was paid for, in whole or in part, by Landlord or any wiring or
cabling unless Landlord requires such removal). Additionally, at Landlord's
option, Tenant shall remove such alterations, additions, improvements, trade
fixtures, personal property, equipment, wiring, cabling, and furniture as
Landlord may request to the extent same may be removed without damages to the
Premises; however, Tenant shall not be required to remove any addition or
improvement to the Premises if Landlord has
24
specifically agreed in writing that the improvement or addition in question need
not be removed. Tenant shall repair all damage caused by such removal. All items
not so removed shall, at Landlord's option, 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; any such disposition shall not be considered a strict
foreclosure or other exercise of Landlord's rights in respect of the security
interest granted under Section 20. The provisions of this Section 21 shall
survive the end of the Term for a period of one (1) year.
22. 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 a daily Basic Rent equal to the greater of (a) 150% of
the daily Basic Rent payable during the last month of the Term, or (b) 150% of
the prevailing rental rate in the Building for similar space. The provisions of
this Section 22 shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord provided herein or at law. If ▇▇▇▇▇▇ 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.
23. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the exercise of
such rights does not unreasonably interfere with ▇▇▇▇▇▇'s occupancy of the
Premises, Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise, in and
about the Building, or any part thereof; to enter upon the Premises (after
giving Tenant reasonable notice thereof, which may be oral notice, except in
cases of real or apparent emergency, in which case no notice shall be required)
and, during the continuance of any such work, to temporarily close doors,
entryways, public space, and corridors in the Building; to interrupt or
temporarily suspend Building services and facilities; to change the name of the
Building; and to change the arrangement and location of entrances or
passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or
other public parts of the Building; in all such cases, Landlord shall use
reasonable efforts not to interfere with Tenant's access, occupancy and use of
the Premises.
(b) To take such reasonable measures as Landlord deems advisable for
the security of the Building and its occupants; evacuating the Building for
cause, suspected cause, or for drill purposes; temporarily denying access to the
Building; and closing the Building after normal business hours and on Sundays
and holidays, subject, however, to Tenant's right to enter when the Building is
closed after normal business hours under such reasonable regulations as Landlord
may prescribe from time to time; and
25
(c) To enter the Premises at reasonable hours to show the Premises to
prospective purchasers, lenders, or, during the last 12 months of the Term,
tenants.
24. [Reserved]
25. MISCELLANEOUS.
(a) LANDLORD TRANSFER. Landlord may transfer any portion of the
Building 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 arising after the date of transfer, 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 interest of Landlord in the Building, and Landlord shall not be
personally liable for any deficiency. This Section shall not limit any remedies
that Tenant may have for Landlord's defaults that do not involve the personal
liability of Landlord.
(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 ▇▇▇▇▇▇ has dealt with any broker
or agent in connection with the negotiation or execution of this Lease, other
than North Star Management, whose commission shall be paid by Landlord. 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.
(e) ESTOPPEL CERTIFICATES. From time to time, Tenant shall furnish to
any party designated by Landlord, within ten (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. Unless otherwise required by ▇▇▇▇▇▇▇▇'s Mortgagee or a
prospective purchaser or mortgagee of the Building, the initial form of estoppel
certificate to be signed by Tenant is attached hereto as EXHIBIT F.
26
(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 in the Basic Lease
Information, (2) sent by a nationally recognized overnight courier service, or
(3) sent by facsimile transmission during normal business hours followed by a
confirmatory letter sent in another manner permitted hereunder. All notices
shall be effective upon delivery to the address of the 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 ▇▇▇▇▇▇. 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 ▇▇▇▇▇▇ 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
27
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 ▇▇▇▇▇▇ each waive right to trial by jury in any litigation arising
out of or with respect to this Lease.
(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 fifteen (15) days after ▇▇▇▇▇▇▇▇'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, ▇▇▇▇▇▇'s internally prepared financial statements. If Tenant is a
publicly traded corporation, Tenant may satisfy its obligations hereunder by
providing to Landlord ▇▇▇▇▇▇'s most recent filed annual and quarterly reports.
Tenant will discuss its financial statements with ▇▇▇▇▇▇▇▇ and, upon promise of
confidentiality, will give Landlord supporting material to enable Landlord to
verify the financial statements. Landlord will not disclose any non-public
aspect of Tenant's financial statements that Tenant designates to Landlord as
confidential except (1) to Landlord's Mortgagee or prospective purchasers of the
Building, but only if such persons agree in writing to maintain the
confidentiality of the financial information (2) in litigation between Landlord
and Tenant under an appropriate protective order, or (3) if required by court
order. Tenant shall not be required to deliver the financial statements required
under this Section 25. (p) more than once in any 12-month period unless
requested by Landlord's Mortgagee or a prospective buyer or lender of the
Building or an Event of Default occurs.
(q) LANDLORD'S FEES. Whenever Tenant requests Landlord to take any
action not required of it hereunder or give any consent required or permitted
under this Lease, ▇▇▇▇▇▇ will reimburse Landlord for Landlord's reasonable
out-of-pocket costs payable to third parties and incurred by Landlord in
reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within ten (10) days
after ▇▇▇▇▇▇▇▇'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, for the installation and operation of
telecommunications systems including but not limited to voice, video,
28
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.
(s) 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 ▇▇▇▇▇▇▇▇'s prior written consent, except as required by law.
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.
(t) HAZARDOUS MATERIALS. The term "HAZARDOUS MATERIALS" means any
substance, material, or waste which is now or hereafter classified or considered
to be hazardous, toxic, or dangerous under any Law relating to pollution or the
protection or regulation of human health, natural resources or the environment,
or poses or threatens to pose a hazard to the health or safety of persons on the
Premises or in the Building. Tenant shall not use, generate, store, or dispose
of, or permit the use, generation, storage or disposal of Hazardous Materials on
or about the Premises or the Building except in a manner and quantity necessary
for the ordinary performance of Tenant's business, and then in compliance with
all Laws. If Tenant breaches its obligations under this Section 25.(t), Landlord
may immediately take any and all action reasonably appropriate to remedy the
same, including taking all appropriate action to clean up or remediate any
contamination resulting from Tenant's use, generation, storage or disposal of
Hazardous Materials. Tenant shall defend, indemnify, and hold harmless Landlord
and its representatives and agents from and against any and all claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses (including
reasonable attorneys' fees and cost of clean up and remediation) arising from
▇▇▇▇▇▇'s failure to comply with the provisions of this Section 25.(t). This
indemnity provision shall survive termination or expiration of the Lease.
(u) AUTHORITY. Tenant (if a corporation, partnership or other
business entity) hereby represents and warrants to Landlord that Tenant is a
duly formed and existing entity qualified to do business in the state in which
the Premises are located, that ▇▇▇▇▇▇ has full right and authority to execute
and deliver this Lease, and that each person signing on behalf of Tenant is
authorized to do so. Landlord hereby represents and warrants to Tenant that
Landlord is a duly formed and existing entity qualified to do business in the
state in which the Premises are located, that Landlord has full right and
authority to execute and deliver this Lease, and that each person signing on
behalf of Landlord is authorized to do so.
(v) LIST OF EXHIBITS. All exhibits and attachments attached hereto
are incorporated herein by this reference.
Exhibit A - Floor Plan of Premises
Exhibit B - Legal Description of Building
Exhibit C - Building Rules and Regulations
29
Exhibit D - Tenant Finish Work: "As Is"
Exhibit E - Amendment No. 1
Exhibit F - Form of Tenant Estoppel Certificate
Exhibit G - Sample Letter of Credit
Exhibit H - Parking
Exhibit I - Excerpts from Master Lease
Exhibit J - Renewal Option
(w) TIME OF ESSENCE. Time is of the essence of this Lease and each
and all of its provisions.
(x) EDIC LEASE. ▇▇▇▇▇▇▇▇'s interest in the Building derives from a
lease (hereinafter referred to as the "MASTER LEASE") from EDIC to Landlord's
predecessor in interest, Drydock Associates. This Lease shall be in all respects
subject to the Master Lease, and if the Master Lease shall terminate during the
Term hereof for any reason whatsoever, then this Lease shall thereupon terminate
with the same force and effect as if the Term of this Lease had expired. If and
to the extent that the provisions of the Master Lease are modified by agreement
of Landlord and EDIC, Landlord shall notify Tenant of such modification, which
shall be deemed part of the Master Lease for purposes hereof. Tenant expressly
covenants and agrees not to do or permit to be done any act or thing in
violation of the Master Lease or to require Landlord to do or perform any act or
thing not authorized or permitted by the terms thereof. Whenever the obligations
of Landlord to Tenant would depend upon the obligations of EDIC to Landlord, the
maximum obligation of Landlord shall be to use reasonably diligent efforts to
obtain appropriate action on the part of EDIC. Without limiting the generality
of the foregoing, the parties shall comply with their respective obligations as
set forth in those sections of the Master Lease attached hereto as EXHIBIT I and
made a part hereof. Notwithstanding Section 17.04 of the Master Lease, Tenant
shall not be entitled directly or indirectly to any share of Net Cash Flow, Net
Proceeds of Sale or Net Proceeds of Financing or Refinancing, nor shall Tenant
have any interest in the Occupant Trust, all as further defined and set forth in
said Section. In no event shall the provisions of said Section or any other
provisions of this Lease or of the Master Lease be deemed or construed as
creating a partnership or joint venture between Landlord and Tenant.
(y) CONSENT OF EDIC. Whenever Tenant makes any request that requires,
either directly or as a condition of Landlord's consent, the consent of EDIC,
Tenant shall pay all costs, including without limitation reasonable attorneys'
fees, incurred by EDIC in connection therewith.
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
30
THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY
LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
31
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 has
caused this
Lease Agreement to be duly
executed as a Massachusetts instrument
under seal as of the day and year first
above written.
TENANT:
Satcon Technology Corporation, a Delaware Corporation
By:
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, its President and Chief Executive Officer
LANDLORD:
ZOOM GROUP LLC, a Massachusetts limited liability company
By:
------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, its Manager
EDIC:
For the purposes of approving this Lease:
ECONOMIC DEVELOPMENT AND INDUSTRIAL Address:
CORPORATION OF BOSTON ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-1007
By: Telecopier number: (617) 742-
----------------------------
4300
Name:
Title:
32
33
EXHIBIT A
FLOOR PLAN OF PREMISES
Sixth Floor
[FLOOR PLAN]
EXHIBIT B
LEGAL DESCRIPTION OF BUILDING
A parcel of land with the building thereon situated in the South Boston
District of the City of Boston, County of Suffolk, Commonwealth of
Massachusetts, within the Boston Marine Industrial Park ("BMIP"), and shown as
"Parcel 7, Area = 74,246 SF+/- "on a plan entitled "Plan Showing Proposed Lease
Lines of Property Owned by Economic Development and Industrial Corporation of
Boston, Boston (South) Massachusetts" dated August 21, 1987, by ▇▇▇▇▇▇▇▇
Engineering Co., Inc., bearing the certification of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Professional Land Surveyor, dated 10/2/87, to be recorded with Suffolk County
Registry of Deeds together with the notice of this Lease (the "Plan"), the same
being a portion of Parcel 3 shown on a plan entitled "Plan of Property Owned by
United States of America, Department of the Army, Dry Dock Avenue, Harbor
Street, Summer Street, Boston (South), Massachusetts" dated May 1983, by
▇▇▇▇▇▇▇▇ Engineering Co., Inc., recorded with said Deeds Book 10440, Page 80
(the "1983 Plan"), said Parcel 7 (the "Land") being more particularly described
according to the Plan as follows:
34
Beginning at a point on the southerly side of Dry Dock Avenue at the
northwesterly corner of the parcel herein described, said point being N 88 DEG.
23' 39" E and 2284.04 feet from the intersection of said southerly line of Dry
Dock Avenue with the southeasterly side line of Harbor Street;
THENCE N 88 DEG. 23' 39" E, along said southerly line of Dry Dock Avenue, a
distance of 313.69 feet to a point on Dry Dock Ave. (Ext.);
THENCE running by the line of said Dry Dock Ave. (Ext.), through land of
Economic Development and Industrial Corporation of Boston, on the following
three (3) courses:
Southeasterly, on a curve to the right, having a radius of 96.14 feet, an arc
distance of 82.93 feet, to a point of tangency;
S 01 DEG. 36' 21" E, a distance of 112.52 feet, to a point of curvature;
And southwesterly, on a curve to the right, having a radius of 31.00 feet, an
arc distance of 48.69 feet, to a point of tangency on the northerly line of
Black Falcon Avenue;
THENCE running S 88 DEG. 23' 39" W, along said northerly line of Black Falcon
Avenue, a distance of 316.29 feet, to a point at land, now or formerly of
Economic Development and Industrial Corporation of Boston;
THENCE running through land of said Economic Development and Industrial
Corporation of Boston, N 01 DEG. 36' 21" W, a distance of 216.54 feet, to the
point of beginning.
The above described parcel 7 contains 74,246 square feet, more or less.
Being a portion of the premises conveyed to Economic Development and
Industrial Corporation of Boston by United States of America by deed dated July
19, 1983 recorded with said Deeds Book 10440, Page 80.
35
EXHIBIT C
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
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 and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
5. 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.
6. 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 ▇▇▇▇▇▇▇▇'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.
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7. 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.
8. 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 tenant's leased premises shall at any time be
used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping its leased
premises neat and clean. Tenants shall not employ any person for the purpose of
such cleaning other than the Building's cleaning and maintenance personnel.
10. 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.
11. 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.
12. 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. Landlord acknowledges that it is aware that Tenant
will have and use milling, grinding and other manufacturing equipment, along
with a dynomometer and other testing and lab machines within the Premises and
that there may be small amounts of flammables. ▇▇▇▇▇▇ agrees to use and store
such equipment and flammables in a commercially responsible manner.
13. 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.
14. No vending or dispensing machines of any kind may be maintained in any
leased premises without the prior written permission of Landlord.
15. Tenant shall not conduct any activity on or about the Premises or
Building that will draw pickets, demonstrators, or the like.
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16. 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.
17. No tenant may enter into phone rooms, electrical rooms, mechanical
rooms, or other service areas of the Building unless accompanied by Landlord or
the Building manager.
EXHIBIT D
TENANT FINISH-WORK: AS-IS
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).
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EXHIBIT E
AMENDMENT NO. 1
This Amendment No. 1 (this "AMENDMENT") is executed as of _______________,
2004 between ZOOM GROUP LLC, a Massachusetts limited liability company
("LANDLORD"), and
Satcon Technology Corporation, a Massachusetts corporation
("TENANT"), for the purpose of amending the
Lease Agreement between Landlord and
Tenant dated _________________, 2004 (the "LEASE"). Capitalized terms used
herein but not defined shall be given the meanings assigned to them in the
Lease.
AGREEMENTS
For valuable consideration, whose receipt and sufficiency are
acknowledged, Landlord and ▇▇▇▇▇▇ agree as follows:
1. CONDITION OF PREMISES. ▇▇▇▇▇▇ has accepted possession of the Premises
pursuant to the Lease. Any improvements required by the terms of the Lease to be
made by Landlord have been completed to the full and complete satisfaction of
Tenant in all respects, and Landlord has fulfilled all of its duties under the
Lease with respect to such initial tenant improvements. Furthermore, Tenant
acknowledges that the Premises are suitable for the Permitted Use.
2. COMMENCEMENT DATE. The Commencement Date of the Lease is ____________,
2004. If the Commencement Date set forth in the Lease is different than the date
set forth in the preceding sentence, then the Commencement Date as contained in
the Lease is amended to be the Commencement Date set forth in the preceding
sentence.
3. EXPIRATION DATE. The Term is scheduled to expire on ______________,
2011, exclusive of any renewal options. If the scheduled expiration date of the
initial Term as set forth in the Lease is different than the date set forth in
the preceding sentence, then the scheduled expiration date as set forth in the
Lease is hereby amended to the expiration date set forth in the preceding
sentence.
4. CONTACT NUMBERS. Tenant's telephone number in the Premises is
___________. Tenant's telecopy number in the Premises is
5. RATIFICATION. Tenant hereby ratifies and confirms its obligations
under the Lease, and represents and warrants to Landlord that it has no defenses
thereto. Additionally, ▇▇▇▇▇▇ further confirms and ratifies that, as of the date
hereof, the Lease is and remains in good standing and in full force and effect,
and ▇▇▇▇▇▇ has no claims, counterclaims, set-offs or defenses against Landlord
arising out of the Lease or in any way relating thereto or arising out of any
other transaction between Landlord and Tenant.
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6. BINDING EFFECT; GOVERNING LAW. Except as modified hereby, the Lease
shall remain in full effect and this Amendment shall be binding upon Landlord
and Tenant and their respective successors and assigns. If any inconsistency
exists or arises between the terms of this Amendment and the terms of the Lease,
the terms of this Amendment shall prevail. This Amendment shall be governed by
the laws of the State in which the Premises is located.
7. COUNTERPARTS. This Amendment may be executed in multiple counterparts,
each of which shall constitute an original, but all of which shall constitute
one document.
Executed as of the date first written above.
TENANT:
Satcon Technology Corporation, a Delaware
Corporation.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, its President and
Chief Executive Officer
LANDLORD:
ZOOM GROUP LLC, A MASSACHUSETTS
LIMITED LIABILITY COMPANY
By:
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Its Manager
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EXHIBIT H
PARKING
Tenant shall have the exclusive right to use five (5) reserved parking spots on
the building grounds and the non-exclusive right to use eight (8) number of
parking spaces on the building grounds both at the market rate for such spaces
which at Lease Commencement was $100 for reserved spaces and $100 for
non-reserved spaces (the "base rates"). Tenant may request additional spaces
from time to time on a monthly basis and Landlord shall provide such spaces, if
available, at its then market rate. The cost of parking spaces on the building
grounds may not increase more than 5% per year from the base rates. As a tenant
within the Boston Marine Industrial Park, tenant has access to the parking
garage within the Park at its customary rates.
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