Exhibit 10.7
LEASE
BETWEEN
WE 10 SOUTHGATE
LLC
(“LANDLORD”)
AND
BINAX, INC.
(“TENANT”)
dated as of August 26,
2004
TABLE OF CONTENTS
LEASE
1.
Identifications
.
This LEASE made as of
August 26, 2004 by and between WE 10 SOUTHGATE LLC. , a
Delaware limited liability company (the “Landlord”),
having an address at c/o Winstanley Enterprises LLC, 150 Baker
Avenue Extension, Suite 303, Concord, Massachusetts 01742 and
BINAX, INC. , a Delaware corporation (the
“Tenant”), having an address at 217 Read Street,
Portland, Maine 04103.
2.
Lease; The Premises
.
(a)
From and after the Term Commencement
Date (as defined below), in consideration of the Basic Rent,
Additional Rent, and other payments and covenants of the Tenant
hereinafter set forth, and upon the following terms and conditions,
the Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord approximately 64,158 rentable square feet
of floor area located as shown on the floor plan attached hereto as
Exhibit A-1 (the “Premises”), in
that certain building (the “Building”) situated on that
certain parcel of land (the “Property”) known as and
numbered 10 Southgate Road, Scarborough, Maine, as more
particularly described in Exhibit A attached
hereto. Included within the definition of
“Property” is the Building. The Premises are
leased together with rights, in common with the Landlord and all
others (including any other tenant or tenants of the Building or
the Property, claiming under the Landlord or otherwise) from time
to time lawfully entitled thereto, to use the driveways, walkways,
parking area and other common areas of the Property for their
intended purposes.
(b)
In the event the Rentable Square
Footage of the Premises is adjusted due to an alteration or
adjustment of the common areas, Tenant’s Percentage (as
defined below) and the amount of Basic Rent payable shall be
adjusted on a pro rata basis. Promptly after such
adjustment, Landlord and Tenant shall enter into a memorandum that
sets forth the foregoing information and adjustments.
3.
Tenant Improvement
Work .
The Landlord shall complete certain
work in the Premises as set forth in Exhibit B
attached hereto (“Tenant Improvement Work”), the cost
of which shall be borne as set forth in
Exhibit B .
Tenant represents that Tenant has
inspected the Premises and the Building and is thoroughly
acquainted with their condition and takes the Premises “as
is,” subject to the completion of Tenant Improvement Work and
Landlord’s Base Building Work (as defined in
Section 37), and the taking of possession of the Premises by
Tenant shall be conclusive evidence that the Premises and the
Building were in satisfactory condition at the time possession was
taken by Tenant, subject, however, to the completion of Tenant
Improvement Work and Landlord’s Base Building Work.
Neither Landlord nor Landlord’s agents have made any
representations or promises with respect to the condition of the
Building, the Premises, the Property, or any other matter or thing
affecting or related to the Building or the Premises, except as
herein expressly set forth, and no rights, easements or licenses
are acquired by Tenant by implication or otherwise except as
expressly set forth in this Lease.
4.
Term .
The Term of this Lease shall
commence on the date hereof (the “Term Commencement
Date”), and shall expire, unless earlier extended or
terminated in accordance with the terms hereof, at the last day of
the seventh (7 th ) Lease Year, unless the term is
automatically extended for three additional Lease Years in
accordance with the provisions of Section 40 below. The
term Lease Year shall mean, for the first Lease Year, the period
from the Term Commencement Date through the date prior to the
Rent
1
Commencement Date (as defined below)
together with the period from the Rent Commencement Date through
the last day of the 12 th full month thereafter and each
Lease Year thereafter shall mean each 12 calendar month period
immediately following the expiration of the preceding Lease
Year.
5.
Use of the Premises; Licenses and
Permits .
The Tenant shall use the Premises
only for research and development, laboratory, manufacturing and
office use to the extent now and hereafter from time to time
permitted under applicable laws, by-laws, ordinances, codes, rules,
regulations, orders and other lawful requirements of governmental
bodies having jurisdiction. The Tenant, its subtenants, licensees,
invitees and any other users of the Premises shall apply in their
own names for and obtain at their own expense any and all licenses,
permits and other approvals which may be required from such
governmental bodies in connection with any particular use of the
Premises during the Term.
6.
Basic Rent; Additional
Rent .
Tenant’s obligation to pay
Basic Rent shall commence on the date which is the later to occur
of (i) May 1, 2005 or (ii) the date which is 30 days
after Landlord Substantially Completes (as defined in
Exhibit B ) the Tenant Improvement Work (the
“Rent Commencement Date”). Tenant shall pay
Additional Rent (as defined below) commencing on the Term
Commencement Date.
The Tenant shall pay Basic Rent to
the Landlord at an annual rate of:
|
Period
|
|
Rent Per RSF
|
|
Annual Basic Rent
|
|
Monthly Installment
|
|
|
Rent Commencement through Lease Year
4
|
|
$
|
13.48
|
|
$
|
864,849.84
|
|
$
|
72,070.82
|
|
|
Lease Years 5 – 7
|
|
$
|
14.23
|
|
$
|
912,968.34
|
|
$
|
76,080.70
|
|
In the event the Term is
automatically extended for another three Lease Years, the Basic
Rent shall be payable as set forth below:
|
Period
|
|
Rent Per RSF
|
|
Annual Basic Rent
|
|
Monthly Installment
|
|
|
Lease Years 4 – 7
|
|
$
|
13.48
|
|
$
|
864,849.84
|
|
$
|
72,070.82
|
|
|
Lease Years 8 – 10
|
|
$
|
8.25
|
|
$
|
529,303.50
|
|
$
|
44,108.63
|
|
In the event Tenant utilizes less
than all of Tenant’s Allowance (as defined in
Exhibit B ), then the Basic Rent shall be
decreased in accordance with the provisions of
Exhibit B . Basic Rent shall be payable in
advance on the first day of each month in equal installments to the
Landlord at the address set forth above or such other address as
the Landlord may thereafter specify by notice to the Tenant,
without counterclaim, deduction or defense and, except as otherwise
expressly provided herein, without set-off or abatement.
This Lease is intended by the
parties hereto to be a so-called triple “net” or
pass-through lease and, to the end that the Basic Rent shall be
received by the Landlord net of all costs and expenses related to
the Property, the Building and the Premises, except as expressly
set forth herein, the Tenant agrees to pay, in addition to the
Tenant’s obligations with respect to real estate taxes,
insurance premiums, management fees to the extent that such fees do
not exceed the costs of such fees rendered by qualified
unaffiliated third parties on a competitive basis, utilities costs,
costs of repairs and maintenance and other
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costs which are and to the extent
specifically set forth herein, to the Landlord upon demand as
Additional Rent, in the same manner as Basic Rent, any and all
charges, costs, expenses, and obligations of every kind and nature
whatever as the Landlord may from time to time actually incur in
good faith with regard to the Premises or the operation or
maintenance thereof, except as otherwise expressly agreed in this
Lease, including, without limiting the generality of the foregoing,
reasonable attorneys’ fees incurred by the Landlord in
connection with any amendments to, consents under and subleases and
assignments of this Lease requested by the Tenant and in connection
with the enforcement of rights and pursuit of the remedies of the
Landlord under this Lease (whether during or after the expiration
or termination of the Term of this Lease) and 73.36% or such other
percentage as the rentable square footage of the Premises bears to
the rentable square footage of the Building (currently 87,438
square feet) from time to time (“Tenant’s
Percentage”) of Common Expenses as hereinafter defined.
All operating expenses shall be customary and reasonable and
in no event shall there be any duplication of costs.
“Common Expenses” shall mean any and all charges, costs
and expenses of every kind and nature whatever, which the Landlord
may from time to time actually incur and the reasonable value,
based on competitive rates, of any materials and services which the
Landlord may provide in good faith with respect to the ownership,
operation and maintenance of the Building and the Property,
including, without limitation, (i) making repairs to and
undertaking maintenance of the Building and the Property, including
all alterations and improvements to the common areas of the
Property; (ii) providing utilities, including heat, water,
sewer, electricity, air conditioning and ventilation to the common
areas of the Property including taxes on such utilities;
(iii) providing water and sewer to the rentable areas of the
Building; (iv) providing watering, landscaping and lawn care
for the Property; (v) sanding, plowing and removal of snow and
ice from driveways, walkways and parking areas; (vi) premiums
paid and deductibles assessed with respect to insurance carried
with respect to damage or loss to the Building or the Property,
public liability and other insurance that may be carried by
Landlord and/or its affiliates to protect its or their interests
and legal liabilities in connection with the Building and/or the
Property, including, without limitation, business interruption,
loss of rents, environmental insurance; (vii) reasonable
administrative and management costs of the Landlord including
management fees to the extent that such fees do not exceed the
costs of such fees rendered by qualified unaffiliated third parties
on a competitive basis; and (viii) except as set forth below,
the cost of any capital repairs or replacements made to the
Property or the Building and of any machinery or equipment
installed in the Building which are made or become operational, as
the case may be, after the Term Commencement Date to properly
maintain the Building and the Property to a standard equivalent to
its current condition provided that such cost shall be reasonably
amortized over the useful life with interest on the unamortized
amount at a rate of interest reasonably determined by
Landlord. If the Building is not at least 95% occupied during
any calendar year or if Landlord is not supplying services to at
least 95% of the total Rentable Square Footage of the Building at
any time during a calendar year, Common Expenses shall, at
Landlord’s option, be determined as if the Building has been
95% occupied and Landlord had been supplying service to 95% of the
Rentable Square Footage of the Building during that calendar
year. The only costs that shall be adjusted in this manner
shall be variable Common Expenses where the amount of such expense
is directly related to the level of occupancy or the square footage
area receiving a particular service. (As an example of a
gross-up: Assume (i) the Property consists only of 4
equal tenant spaces, all occupied, each of which then has a
pro rata share of expenses of 25%; and (ii) the Landlord
has life safety inspections performed in each space at a cost of
$100.00 per space – for a total of $400.00 for all (it is a
variable cost, not a fixed cost for the building). Assume
then that 2 tenants vacate and Landlord then conducts life safety
only in the 2 remaining occupied spaces – still at $100.00
per space. Landlord’s cost is now $200.00. If one
tenant paid its pro rata share of 25%, it would pay only
$50.00 and Landlord would be unable to recoup all of its
cost. Landlord shall then “gross up” the
cost to be $400.00 and the tenant will pay its 25%, which equates
to the $100.00 cost Landlord actually incurs in delivering that
service to the tenant’s space.) Landlord shall not
utilize the foregoing “gross-up” provision to recover
fixed costs related to unleased space.
3
Commencing on the date (the
“Occupancy Date”) which is earlier to occur of
(i) April 1, 2005 or (ii) the date Tenant occupies
the Premises for any reason other than the performance of
Tenant’s Pre-occupancy Work (as defined in
Exhibit B), the Tenant shall prepay to the
Landlord monthly as Additional Rent, in the same manner as Basic
Rent, one-twelfth (1/12) of the total of all such amounts as the
Landlord may from time to time reasonably estimate will be payable
annually by the Tenant under this Lease with respect to Common
Expenses, which prepayments the Landlord agrees shall be applied,
without interest, to such amounts as actually become payable.
As soon as any such amounts so payable are actually determined but
in no event later than sixty (60) days after the end of each Lease
Year, appropriate adjustments of any overpayments and underpayments
shall be made. Landlord may make reasonable periodic
adjustments to the monthly installment amount of Additional Rent
payable by Tenant as set forth above.
If any payment of Basic Rent or
Additional Rent is not paid to the Landlord when due, then at the
Landlord’s option, upon written notice to Tenant and in
addition to all other remedies hereunder, the Tenant shall pay upon
demand to the Landlord as Additional Rent interest thereon at an
annual rate equal to the “Prime Rate” as announced by
The Wall Street Journal from time to time in effect plus
four percent (4%), such interest to be computed from the date such
Basic Rent or Additional Rent was originally due through the date
when paid in full.
Notwithstanding anything to the
contrary set forth herein, in no event shall Tenant be charged for
the following expenses which shall be solely the responsibility of
Landlord:
1.
Costs (including, without
limitation, related permit, license and inspection fees) of any
necessary alterations, repairs and maintenance in the Property and
Building and any related facilities and equipment occasioned by a
casualty or condemnation;
2.
Principal or interest payments on
any mortgages relating to the Premises;
3.
Costs of formation of Landlord and
the defense of its title to or interest in the Property and
Building;
4.
Expenses for which Landlord has
received or is entitled to any reimbursement by a third party,
including, without limitation, reimbursements from Tenant (such as
reimbursement for repairs) or pursuant to contractors’ or
others’ warranties;
5.
Costs and expenses related to
(i) executive salaries or salaries of service personnel to the
extent that such personnel perform services not in connection with
management, operation, repair or maintenance of the Property and
Building; and (ii) Landlord’s general overhead expenses
not related to the Property and Building;
6.
Costs, including marketing costs,
legal fees, space planners’ fees, advertising and promotional
expenses, and brokerage fees incurred in connection with the
original construction or development of the Building and costs,
including permit, license and inspection costs, incurred with
respect to the installation of tenant improvements made for new
tenants in the Building or incurred in renovating or otherwise
improving, decorating, painting or redecorating vacant space for
tenants or other occupants of the Building (excluding, however,
such costs relating to any common areas of the building or parking
facilities);
7.
Costs for which the Landlord is
reimbursed by any tenant or occupant of the Building or by
insurance by its carrier or any tenant’s carrier or by anyone
else, and electric power costs for which any tenant directly
contracts with the local public service company;
4
8.
Any bad debt loss, rent or reserves
for bad debts or rent loss (except to the extent incurred in
connection with this Lease);
9.
Costs associated with the operation
of the business of the partnership or entity which constitutes the
Landlord, as the same are distinguished from the costs of operation
of the Property (which shall specifically include, but not be
limited to, accounting costs associated with the operation of the
Property). Costs associated with the operation of the
business of the entity which constitutes the Landlord including
costs of company accounting and legal matters, costs of defending
any lawsuits with any mortgagee (except as the actions of the
Tenant may be in issue, costs of selling, syndicating, financing,
mortgaging or hypothecating any of the Landlord’s interest in
the Property, and costs incurred in connection with any disputes
between Landlord and its employees, between Landlord and Property
management, or between Landlord and other tenants or occupants, and
Landlord’s general corporate overhead and general and
administrative expenses;
10.
The wages and benefits of any
employee who does not devote substantially all of his or her
employed time to the Property unless such wages and benefits are
prorated to reflect time spent on operating and managing the
Property vis-à-vis time spent on matters unrelated to
operating and managing the Property; provided , that in no
event shall such expenses for purposes of this Lease include wages
and/or benefits attributable to personnel above the level of
Building manager or Building engineer;
11.
Except for a Property management fee
to the extent allowed above, overhead and profit increment paid to
the Landlord or to subsidiaries or affiliates of the Landlord for
services in the Building to the extent the same exceeds the costs
of such services rendered by qualified, first-class unaffiliated
third parties on a competitive basis;
12.
All items and services for which
Tenant or any other tenant in the Building reimburses Landlord or
which Landlord provides selectively to one or more tenants (other
than Tenant) without reimbursement;
13.
Costs other than those incurred in
ordinary maintenance and repair, for sculpture, paintings,
fountains or other objects of art;
14.
Any costs expressly excluded
elsewhere in this Lease;
15.
Rent for any office space occupied
by Property management personnel to the extent the size or rental
rate of such office space exceeds the size or fair market rental
value of office space occupied by management personnel of
comparable Buildings in the vicinity of the Building, with
adjustment where appropriate for the size of the applicable
project;
16.
Costs arising from the negligence or
willful misconduct of Landlord or its agents, employees, vendors,
contractors, or providers of materials or services, except those
engaged by Tenant;
17.
Costs incurred to comply with laws
relating to the removal of Hazardous Material (as defined under
applicable law) which was in existence in the Building or on the
Property prior to the Commencement Date, and was of such a nature
that a federal, state or municipal governmental authority, if it
had then had knowledge of the presence of such Hazardous Material,
in the state, and under the conditions that it then existed in the
Building or on the Property, would have then required the removal
of such Hazardous Material or other remedial or containment action
with respect thereto; costs incurred to remove, remedy, contain or
treat Hazardous Material, which Hazardous Material is brought into
the Building or onto the Property after the date hereof by Landlord
or any other tenant of the Building and is
5
of such a nature, at that time, that
a federal, state or municipal governmental authority, if it had
then had knowledge of the presence of such Hazardous Material, in
the state, and under the conditions that it then exists in the
Building or on the Property, would have then required the removal
of such Hazardous Material or other remedial or containment action
with respect thereto; and costs incurred to remove, remedy, contain
or treat Hazardous Material which is present in the Premises as of
the date hereof but which is disturbed or released after the date
hereof as a result of any actions of Tenant, so long as Tenant has
acted in compliance with the requirements of this Lease with
respect thereto (it being understood that any such costs which are
incurred as a result of Tenant’s actions which are not in
compliance with this Lease may be passed through to
Tenant);
18.
Costs arising from Landlord’s
charitable or political contributions;
19.
Any gifts provided to any entity
whatsoever, including, but not limited to, Tenant, other tenants,
employees, vendors, contractors, prospective tenants and
agents;
20.
The cost of any magazine, newspaper,
trade or other subscriptions;
21.
Amount, if any, paid as ground
rental for the Property by Landlord;
22.
Costs for items or services of a
nature which are provided to other tenants of the Building but
which are not provided to Tenant on account of Tenant’s
separate purchase of such items or services; and
23.
The cost of any service provided to
other tenants of the Building which are not provided to Tenant
including, without limitation, janitorial and related services
provided to tenants of office space located within the Building, so
long as such services are not being provided to Tenant.
24.
The cost of (i) capital repairs
and replacements of the roof, the driveways and parking lots;
(ii) performing repairs or making replacements of the
structural elements, structural walls and foundation of the
Building; and (iii) the cost of replacement of exterior
windows to the extent replacement is necessitated due to leaking or
other defect.
7.
Taxes .
Commencing on the Occupancy Date,
the Tenant shall prepay to the Landlord monthly, as Additional
Rent, in the same manner as Basic Rent, one-twelfth (1/12) of
Tenant’s Percentage of any and all real estate taxes,
betterment’s and special assessments or amounts in lieu or in
the nature thereof and any other taxes, levies, water rents, sewer
use charges and other excises, franchises, imposts and charges,
general and special (and the entire amount of any interest,
penalties and costs solely attributable to delayed payment of the
Tenant’s portion thereof where such delay is the fault of the
Tenant) of whatever name and nature, and whether or not now within
the contemplation of the parties hereto, which may now or hereafter
be levied, assessed or imposed by the United States of America, the
State of Maine, the County of Cumberland, the Town of Scarborough
or any other authority, or become a lien, upon all or any part of
the Property, the Building, the Premises, the use or occupation
thereof, or upon the Landlord and the Tenant in respect thereof, or
upon the basis of rentals thereof or therefrom (except for the
Landlord’s income, estate, gift or transfer taxes), or upon
the estate hereby created, or upon the Landlord by reason of
ownership of the reversion (collectively,
“Taxes”). Landlord agrees that such prepayments
shall be applied, without interest to such amounts as actually
become payable. As soon as any such amounts so payable are
actually determined, appropriate adjustments of any overpayments
and underpayments shall be made.
6
Subject to the rights of any
Mortgagees, the Landlord may, at the request of the Tenant or any
other tenant or tenants of the Building, use reasonable efforts to
obtain an abatement of or to contest or review by legal proceedings
or otherwise any such tax, levy, charge or assessment. In
such event the Tenant and such other tenants shall pay such tax,
levy, charge or assessment (under protest, if necessary). The
Tenant shall pay as Additional Rent the Tenant’s Percentage
of (i) any such tax, levy, charge or assessment that may be
determined to be due and (ii) any and all costs or expenses
(including reasonable attorneys’ fees) the Landlord may incur
in connection with any such proceedings. The Tenant shall be
entitled to share in any refund or abatement, net of such costs and
expenses, which may be made of any tax, levy, charge or assessment
in the same proportion that the same was paid by the Tenant or with
the Tenant’s funds.
8.
Insurance; Waivers of
Subrogation .
The Tenant shall, at its own cost
and expense, obtain and throughout the Term shall maintain, with
companies qualified to do business in Maine and acceptable to any
Mortgagees and reasonably acceptable to the Landlord, for the
benefit as additional insureds of the Landlord and any Mortgagees
as their respective interests may appear, ISO Simplified Commercial
General Liability insurance (with contractual liability rider) for
bodily injury or death and property damage occurring to, upon or
about the Premises. The limits of such liability insurance
shall be not less than $3,000,000 per occurrence, Bodily Injury
including death and $3,000,000 per occurrence, Property Damage
Liability of $3,000,000 combined single limit for Bodily Injury and
Property Damage Liability. After the first Lease Year,
Landlord may from time to time require Tenant to adjust its
insurance coverage to limit(s) that are customary and reasonable
for tenants in the market area in which the Building is
located. The risk of loss to all contents of, and personal
property and trade fixtures located in, the Premises is upon the
Tenant, and the Landlord shall have no liability with respect
thereto. Tenant agrees to deliver certificates of such
insurance to Landlord at the commencement of this Lease and not
less than thirty (30) days after Landlord’s request for a
copy of the same.
Landlord shall at all times during
the Term of this Lease and at Landlord’s sole cost and
expense (but which may be passed through to Tenant as a Common
Expense), obtain and keep in force insurance against loss or damage
to the Property or Building by fire and all other risks of physical
loss covered by standard “special perils” policies in
an amount not less then the full replacement cost of the
Building. Landlord agrees to deliver certificates of such
insurance to Tenant at the commencement of this Lease and
thereafter not less than thirty (30) days after Tenant’s
request for a copy of the same.
The Landlord and the Tenant each
hereby release the other from any liability for any loss or damage
to the Building, the Premises or other property and for injury to
or death of persons occurring on the Property or in the Building or
the Premises or in any manner growing out of or connected with the
Tenant’s use and occupation of the Premises, the Building or
the Property or the condition thereof, whether or not caused by the
negligence or other fault of the Landlord, the Tenant or their
respective agents, employees, subtenants, licensees, invitees or
assignees; provided, however, that this release (i) shall
apply notwithstanding the indemnities set forth in Section 14,
but only to the extent that such loss or damage to the Building or
other property or injury to or death of persons is covered by
insurance which protects the Landlord or the Tenant or both of them
as the case may be; (ii) shall not be construed to impose any
other or greater liability upon either the Landlord or the Tenant
than would have existed in the absence hereof; and (iii) shall
be in effect only to the extent and so long as the applicable
insurance policies provide that this release shall not affect the
right of the insureds to recover under such policies, which clauses
shall be obtained by the parties hereto whenever
available.
7
9.
Utilities .
Commencing on the Occupancy Date,
the Tenant shall be responsible for the cost of all utilities,
including without limitation for the electric, water, sewer, and
all utility costs incurred in connection with the operation of the
heating, ventilating and air conditioning units, which are
delivered to or consumed at the Premises.
If not separately metered, the
electric and gas shall be sub-metered or checkmetered and said
costs shall be paid directly to the utility company providing the
same or if the cost is not directly payable to the utility
companies supplying utilities or services, then the actual costs
incurred by Landlord, net of all discounts and rebates received by
Landlord in connection therewith shall be billed to Tenant and
payable by Tenant monthly to Landlord together with Tenant’s
payment of Basic Rent.
Tenant shall pay for, as part of
Common Expenses, all water and sewer consumed and utilized at the
Premises and the common areas. Tenant shall pay with respect
to each calendar year, or portion thereof, within the Term hereof,
an annual amount equal to the product of Tenant’s Percentage
and the cost to Landlord of all water consumed in and sewer usage
charges for the Building during such calendar year, or portion
thereof; provided, however, that Tenant shall have no obligation to
pay for any such costs (i) to the extent they arise from the
use of any utility or service supplied by Landlord to any other
occupant of the Building, or (ii) associated with utilities
and services of a type not provided to Tenant. Such annual
amount shall be payable in equal monthly installments as part of
Common Expenses, in advance, together with Tenant’s monthly
payment of Basic Rent. The cost to Landlord of all water and
sewer charges for the Building during any calendar year shall be
determined on the basis of the cost to Landlord in effect from time
to time pursuant to which Landlord shall then have purchased water
and paid for sewer charges for the entire Building. The
charges shall be adjusted, if necessary, from time to time (but not
more than one time in any calendar year) to appropriately reflect
the cost of such charges. In implementation and not in
limitation of the foregoing, Tenant shall, together with its
monthly payments of Basic Rent, pay to Landlord as additional rent
pro rata monthly installments on account of projected water and
sewer costs, as reasonably estimated by Landlord based upon the
most recent data available. If the total of Tenant’s
monthly payments for any calendar year, or portion thereof, is
greater than Tenant’s Percentage of the actual cost to
Landlord of all water and sewer for such calendar year or portion
thereof, Landlord shall refund the difference within thirty (30)
days. If the total of such monthly payments is less than
Tenant’s Percentage of the actual cost to Landlord of all
water and sewer for such calendar year, or portion thereof, Tenant
shall pay the difference to Landlord within thirty (30) days after
receipt of a bill therefore, provided that such bill is delivered
to Tenant within 30 days of calendar year end.
Landlord shall not be liable for the
reasonable interruption, curtailment, stoppage or suspension
of services and utilities when necessary by reason of accident or
emergency or suspension of utility services or when necessary for
repairs, alterations, replacements or improvements desirable or
necessary in the reasonable judgment of Landlord. Except as
set forth below, in the event of any such reasonable interruption,
curtailment, stoppage or suspension, there shall be no
diminution or abatement of rent, additional rent or other charges
due from Tenant to Landlord hereunder and Tenant’s
obligations hereunder shall not be affected or reduced, such
interruption, curtailment, stoppage or suspension shall not
constitute a constructive eviction of the Tenant, and the Landlord
shall have no responsibility or liability for any such
interruption, curtailment, stoppage or suspension. In
the event that any such interruption, curtailment, stoppage or
suspension continues for a period in excess of fourteen (14)
consecutive days, and so long as the interruption curtailment,
stoppage or suspension has not been caused by Tenant’s
negligent or willful act or omission, Tenant’s obligations
from and after the 14 th day to pay rent, additional
rent or other charges and all other costs and expenses herein shall
be equitably abated based on Tenant’s loss of use of the
Premises.
Electrical service to the Premises
may be furnished by one or more companies providing electrical
generation, transmission and distribution services, and the cost of
electricity may consist of
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several different components or
separate charges for such services, such as generation,
distribution and stranded cost charges. The Landlord shall
have the exclusive right to select any company providing electrical
service to the Premises, to aggregate the electrical service for
the Property and the Premises with other buildings, to purchase
electricity through a broker and/or buyers group and to change the
providers and manner of purchasing electricity.
10.
Repairs .
From and after the Occupancy Date,
and except as set forth in this Lease, the Tenant shall, at its own
cost and expense: (i) make interior non-structural repairs,
replacements and renewals necessary to keep the Premises in as good
condition, order and repair as the same are at the commencement of
the Term or thereafter may be put, reasonable wear and use and
damage by fire or other casualty only excepted (it being
understood, however, that the foregoing exception for reasonable
wear and use shall not relieve the Tenant from the obligation to
keep the Premises in good order, repair and condition),
(ii) perform maintenance, repair and replacement of the
heating, ventilating and air conditioning units servicing the
Premises (the “HVAC Units”) and maintain a service
contract for the HVAC Units exclusively serving the Premises with a
reputable HVAC service provider; (iii) make all other
repairs, replacements and renewals which are required due to the
negligence or willful misconduct of the Tenant, and (iv) keep
and maintain all portions of the Premises in a clean and orderly
condition, free of accumulation of dirt, rubbish, and other
debris. The Tenant shall provide customary cleaning and
rubbish removal service to the Premises on each business day as
required.
From and after the commencement of
and during the Term, the Landlord shall (i) make all necessary
repairs, replacements and renewals, interior and exterior,
structural and non-structural, to keep the roof of the Building
free of leaks and to maintain the foundation, pipes, conduits
serving the Premises, floor slabs and other structural supports of
the Building in good and sound condition; (ii) keep the
Building and all electrical, mechanical, plumbing and other
building systems and the parking areas, sprinklers and other
improvements on the Property in as good condition, order and repair
as the same are at the commencement of the Term or thereafter may
be put, as per paragraph 37, damage by fire or other casualty only
excepted; and (iii) keep the landscaping, sidewalks, common
areas and corridors, stairways, elevators and all other public
portions of the Property and Building in good order, condition and
repair and in a safe and clean condition free from ice and
snow. Except as otherwise expressly set forth herein, the
costs and expenses of Landlord’s repairs, replacements and
renewals shall be considered Common Expenses, subject to the
limitations contained therein (including, without limitation, the
requirement that certain expenses be capitalized).
Tenant shall not place a load upon
any floor of the Premises which exceeds the load per square foot
which such floor was designed to carry provided Landlord has
notified Tenant in writing of all such load limits.
Landlord shall have no liability to
Tenant nor shall Tenant’s covenants and obligations under
this Lease be reduced or abated in any manner whatsoever by reason
of any inconvenience, annoyance, interruption or injury to business
arising from Landlord’s making any repairs or changes which
Landlord is permitted to perform by this Lease, in or to any
portion of the Premises, or the Building and other improvements to
the Premises so long as Landlord uses commercially reasonable
efforts to minimize any resulting disruption to Tenant’s
access to and use of the Premises and provided that any such
interruption shall not exceed a period of time in excess of
fourteen days. If such interruption exceeds a period of fourteen
days, Tenant obligations to pay rents and fees hereunder shall be
equitably abated. Landlord shall provide Tenant with not less
than 48 hours written notice prior to Landlord’s entry into
the Premises to perform any repairs or changes, except in the event
of an emergency in which case only such notice, if any, as is
appropriate shall be given to Tenant.
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11.
Compliance with Laws and
Regulations .
Landlord covenants and agrees that,
as of the Term Commencement Date, the Premises and the Building
shall be in compliance in material respects with all laws effecting
the Premises and the Building, including, without limitation, the
American’s with Disabilities Act of 1990 and the Occupational
Safety and Health Act of 1970, as the same may be amended from time
to time (“OSHA”), applicable laws, by-laws, ordinances,
codes, rules, regulations, orders, and other lawful requirements of
the governmental bodies having jurisdiction over the Premises, and
the orders, rules and regulations of the Board of Fire
Underwriters where the Premises are situated. Landlord shall make
all repairs, alterations and additions which may be required by any
present or future laws, ordinances, orders or regulations of any
public authority having jurisdiction over the demised premises, but
only insofar as and to the extent they affect the portions of the
Building which Landlord is required to repair under the provisions
of this Lease. The obligations of Landlord herein shall
survive Tenant’s acceptance of the Premises.
Tenant shall throughout the Term
promptly comply or cause compliance with or remove or cure any
violation of any and all present or future laws which relate to
Tenant’s particular use of the Premises including without
limitation (“OSHA”), applicable laws, by-laws,
ordinances, codes, rules, regulations, orders, and other lawful
requirements of the governmental bodies having jurisdiction over
the Premises, and the orders, rules and regulations of the
Board of Fire Underwriters where the Premises are situated or any
other body hereafter constituted exercising similar functions,
which may be applicable to the Premises, the fixtures and equipment
therein or thereon or the use thereof; and the requirements of all
policies of public liability, fire and all other types of insurance
at any time in force with respect to the Premises, the Building or
the Property and the fixtures and equipment therein and
thereon.
Notwithstanding the foregoing,
Tenant shall not be liable or responsible for any repairs,
alterations and additions that may be required (i) to comply
with laws in effect as of the Commencement Date and (ii) by
any applicable laws, by-laws, ordinances, codes, rules,
regulations, orders, and other lawful requirements of the
governmental bodies having jurisdiction over the Premises, Building
or Property, but only insofar as and to the extent they effect the
portions of the same which Landlord is required to repair under the
provisions of this Lease.
12.
Alterations by Tenant
.
Except as otherwise set forth
herein, Tenant shall erect no signs and shall make no alterations,
additions or improvements in or to any portion of the Premises or
any portion of the Building or the Property without the
Landlord’s prior written consent and without first providing
the Landlord with suitable assurance of the Tenant’s
obligation to complete the same at no expense to the Landlord and
without any mechanics’ or materialmen’s lien upon the
Property. The Landlord agrees that its consent shall not be
unreasonably withheld, conditioned or delayed for interior,
non-structural alterations, additions and improvements to the
Premises consistent with the use of the Premises as contemplated
hereby; any such consents to interior, non-structural alterations,
additions and improvements may, if the Landlord so advises the
Tenant as part of or by notice at the time of any such consent, be
conditioned upon the Tenant’s being obligated to remove the
same at the expiration or termination of this Lease and to restore
the Premises to their condition prior to such alterations,
additions and improvements.
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13.
Landlord’s
Access .
The Tenant agrees to permit the
Landlord and any Mortgagees and their authorized representatives to
enter the Premises (i) at all reasonable times and with at
least 24 hours prior notice during usual business hours for the
purposes of inspecting the same, exercising such other rights as it
or they may have hereunder or under any mortgages and exhibiting
the same to other prospective tenants, purchasers or mortgagees and
(ii) at any time in the event of emergency.
14.
Indemnities and
Liability .
Except to the extent covered by
insurance maintained by Landlord and except to the extent caused by
the negligence or intentional misconduct of Landlord, its agents,
employees or contractors (including contractors undertaking the
Tenant Improvement Work) Tenant agrees to protect, defend (with
counsel approved by the Landlord), indemnify and save the Landlord
harmless from and against any and all claims and liabilities
including attorneys’ fees arising: (i) from the
Tenant’s or its employees, agents, invitees, assignees,
subtenants or contractors, conduct or management of or from any
work or thing whatsoever done by Tenant, its employees, agents,
invitees, assignees, licensees, subtenants or contractors in or
about the Premises during the Term and from any condition existing,
or any injury to or death of persons or damage to property
occurring or resulting from Tenant’s occupancy of the
Premises during the Term in or about the Premises; and
(ii) from any breach or default on the part of the Tenant in
the performance of any covenant or agreement on the part of the
Tenant to be performed pursuant to the terms of this Lease or from
any negligent act or omission on the part of the Tenant or any of
its agents, employees, subtenants, licensees, invitees or
assignees. The Tenant further agrees to indemnify the
Landlord from and against all costs, expenses (including reasonable
attorneys’ fees) and other liabilities incurred in connection
with any such indemnified claim or action or proceeding brought
thereon, any and all of which, if reasonably suffered, paid or
incurred by the Landlord, the Tenant shall pay promptly upon demand
to the Landlord as Additional Rent. Notwithstanding anything
in this Lease to the contrary, this indemnity provision shall
remain in effect and may be enforced whether or not Landlord is
made a party to any litigation, and shall survive the expiration or
earlier termination of the term of this Lease.
Except to the extent covered by
insurance maintained by Landlord and except to the extent caused by
the negligence or intentional misconduct of Landlord, its agents,
employees or contractors (including contractors undertaking the
Tenant Improvement Work) neither Landlord, nor any agent or
employee of Landlord, shall be liable for (a) loss of or
damage to any property of Tenant, or of any other person, entrusted
to any of Landlord’s agents or employees, (b) loss of or
damage to any property of Tenant or of any other person by theft or
otherwise, (c) any injury or damage to any person or property
resulting from fire, explosion, falling plaster, steam, gas,
electricity, dust, water or snow, or leaks from any part of the
Building or from the pipes, appliances or plumbing system, or from
the roof, street or subsurface or any other place or by dampness,
or from any other cause whatsoever, (d) any such damage caused
by other occupants or persons in the Building or by construction of
any private, public or quasi-public work, or (e) any latent
defect in the Premises or the Building.
Except to the extent covered by
insurance maintained by Landlord and except to the extent caused by
the negligence or intentional misconduct of Tenant, its agents,
employees or contractors, Landlord shall, during the term of this
Lease, indemnify and save harmless Tenant from and against any and
all claims and liabilities, including, without limitation,
attorneys’ fees, caused by: (i) from the
Landlord’s or its employees, agents, invitees, assignees,
subtenants or contractors, conduct or management of or from any
work or thing whatsoever done by Landlord, its employees, agents,
invitees, assignees, licensees, subtenants or contractors in or
about the Building or Property during the Term; and (ii) from
any breach or default on the part of the Landlord in the
performance of any covenant or agreement on the part of the
Landlord to be performed pursuant to the terms of this Lease or
from any
11
negligent act or omission on the
part of the Landlord or any of its agents, employees, subtenants,
licensees, invitees or assignees. Notwithstanding anything in
this Lease to the contrary, this indemnity provision shall remain
in effect and may be enforced whether or not Tenant is made a party
to any litigation, and shall survive the expiration or earlier
termination of the term of this Lease.
15.
Casualty Damage
.
Unless this Lease is terminated as
provided below, in the event of partial or total destruction of the
Premises during the Term by fire or other casualty, the Landlord
shall, as promptly as practicable after receipt of any insurance
proceeds available as a result of such casualty, repair,
reconstruct or replace the portions of the Premises destroyed as
nearly as possible to their condition prior to such destruction,
except that in no event shall the Landlord be obligated to expend
more for such repair, reconstruction or replacement than the
amounts of any such insurance proceeds actually received.
Commencing on the date of such casualty and during the period of
such repair, reconstruction and replacement there shall be an
equitable abatement of Basic Rent hereunder in proportion to the
loss of usable floor area in the Premises, provided, however, in
the event the damage is to the manufacturing area of the Premises,
then the Rent shall, in lieu of being based on the proportion of
lost floor area, be equitably abated due to the loss of use of the
facility. If it is not feasible for Tenant, in its reasonable
business judgment, to operate its business in the Premises during
any period of repair or restoration, Tenant may discontinue the
conduct of its business in the Premises during such period and all
Rent payable by Tenant shall cease, from the date that Tenant
closes its premises until the Premises shall have been restored as
nearly as practicable to its pre-damage condition.
If all or substantially all of the
Premises shall be destroyed by fire or other casualty such that
Tenant, in its reasonable judgment, deem the Premises unfit for the
feasible operation of Tenant’s business or if the Building is
so extensively destroyed by fire or other casualty that an
independent engineer or architect (the “Estimator”)
certifies that the Premises cannot reasonably be expected to be
susceptible of repair, reconstruction or replacement within a
period of two hundred ten (210) days from the date of the casualty,
or if any damage results from causes or risks not required to be
insured against by the Landlord hereunder or if any Mortgagee
refuses to make such net proceeds available for such repair,
reconstruction or replacement, the Landlord or Tenant may terminate
this Lease by giving written notice to the other party within
ninety (90) days after the date of such destruction. Provided
further, that if, despite diligent efforts, the Landlord has been
unable to restore the Premises to their condition prior to such
destruction within two hundred ten (210) days after the date of the
casualty, the Landlord or Tenant may terminate this Lease by
written notice to the other party. In the event of any such
notice of termination, this Lease shall terminate as of, and Basic
Rent and Additional Rent shall be appropriately apportioned through
and abated from and after, the date of such notice of
termination.
16.
Condemnation
.
If more than twenty-five percent
(25%) of the rentable square footage of the Premises, or more than
twenty percent (20%) of the rentable square footage of the
manufacturing area of the Premises, or more than twenty-five
percent (25%) of the parking area available for use by the Tenant
at the Property (which is not replaced by Landlord at a location
proximate to the Property and acceptable to the Tenant) shall be
taken by eminent domain or appropriated by public authority or if
the Tenant shall be deprived of suitable vehicular or pedestrian
access to the Premises or the Property by virtue of such a taking
or appropriation, the Landlord or the Tenant may terminate this
Lease by giving written notice to the other within thirty (30) days
after such taking or appropriation. In the event of such a
termination, this Lease shall terminate as of the date the Tenant
must surrender possession or, if later, the date the Tenant
actually surrenders possession, and the Basic Rent and Additional
Rent reserved shall be apportioned and paid to and as of such
date.
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If all or any part of the Premises
is taken or appropriated by public authority as aforesaid and this
Lease is not terminated as set forth above, the Landlord shall,
subject to the rights of any Mortgagees, apply any such damages and
compensation awarded (net of the costs and expenses, including
reasonable attorneys’ fees, incurred by the Landlord in
obtaining the same) to secure and close so much of the Premises as
remain and shall restore the Building to an architectural whole and
except that in no event shall the Landlord be obligated to expend
more for such replacement than the net amount of any such damages,
compensation or award which the Landlord may have received as
damages in respect of the Building and any other improvements
situated on the Property as they existed immediately prior to such
taking or appropriation; in such event there shall be an equitable
abatement of Basic Rent in proportion to the loss of usable floor
area in the Premises after giving effect to such restoration, from
and after the date the Tenant must surrender possession or, if
later, the date the Tenant actually surrenders
possession.
The Landlord hereby reserves, and
the Tenant hereby assigns to the Landlord, any and all interest in
and claims to the entirety of any damages or other compensation by
way of damages which may be awarded in connection with any such
taking or appropriation, except so much of such damages or award as
is specifically and separately awarded to the Tenant and expressly
attributable to trade fixtures or moving expenses of the
Tenant.
17.
Landlord’s Covenant of
Quiet Enjoyment .
The Landlord covenants that the
Tenant, upon paying the Basic Rent and Additional Rent provided for
hereunder and performing and observing all of the other covenants
and provisions hereof, may peaceably and quietly hold and enjoy the
Premises for the Term as aforesaid without molestation or
disturbance by or from Landlord or anyone acting by, through or
under Landlord, subject, however, to all of the terms and
provisions of this Lease and to the title matters of record as
listed on Exhibit D attached hereto.
18.
Tenant’s Obligation to
Quit .
The Tenant shall, upon expiration of
the Term or other termination of this Lease, leave and peaceably
and quietly surrender and deliver to the Landlord the Premises and
any replacements or renewals thereof broom clean and in the order,
condition and repair required by Section 10 hereof and the
other provisions of this Lease, except, however, that the Tenant
shall first remove any trade fixtures and equipment and any
alterations, additions and improvements which the Landlord has
required be removed pursuant to the terms of Section 12
hereof, restoring the Premises in each case to their condition
prior to the installation of such fixtures or the undertaking of
such alterations, additions or improvements, as the case may
be. If the Tenant shall fail timely to surrender the
Premises, Tenant shall pay, in addition to all costs and damages
suffered or incurred by Landlord, for use and occupancy an amount
at a rate equal to two (2) times the rate of Basic Rent in
effect immediately prior thereto until the Premises are surrendered
by the Tenant and delivered to the Landlord in accordance with this
Section 18.
If the Tenant shall fail so to
remove its fixtures, equipment, alterations, additions and
improvements, within ten business days after notice, they shall be
deemed abandoned by the Tenant and the Landlord may remove and
dispose of the same at the Tenant’s expense which shall be
paid as Additional Rent. The provisions of this
Section 18 shall expressly survive the termination or
expiration of this Lease.
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19.
Transfers of Tenant’s
Interest .
The Tenant shall not assign or
sublease or otherwise encumber all or any part of its interest in
this Lease, the Premises, or the estate hereby created, without in
each case first obtaining the prior written consent of the
Landlord, such approval not to be unreasonably withheld,
conditioned or delayed. In all events, the Landlord may
condition the consent to any sublease or assignment upon the
Tenant’s agreeing to pay to the Landlord fifty percent (50%)
of the consideration received by the Tenant for any such assignment
and fifty percent (50%) of the amount by which any rentals and
other amounts from time to time payable to or for the Tenant under
any subleases exceed the Basic Rent and Additional Rent from time
to time payable hereunder and upon the sublessee’s or
assignee’s agreement to obtain the consent of the Landlord to
any future or further sublease or assignment of its interest under
this Lease. Any attempted assignment without the consent of
the Landlord as contemplated hereby shall be void. A change
in ownership or power to vote of a majority of the outstanding
stock of the Tenant from the owners of such stock or those
controlling the power to vote of such stock shall constitute an
assignment for purposes of this Lease.
In all events the Tenant originally
named herein and any guarantor of the obligations of the Tenant
under this Lease shall, except to the extent of so much of the
Premises as the Landlord elects to lease directly to any proposed
sublease or assignee as above provided, remain primarily and
jointly and severally liable for, and any sublessee or assignee
shall in writing assume, the obligations of the Tenant under this
Lease.
The Tenant shall give the Landlord
at least 30 days’ prior written notice of its desire to
assign or sublet, which notice shall include reliable
informat
