Massachusetts-Marlborough-120 Bartlett Street Lease - One Hundred Twenty Bartlett Street Marlborough LLC and Evergreen Solar Inc.
LEASE
THIS INDENTURE OF LEASE dated as of the 26th day of January, 2004 is made
by and between One Hundred Twenty Bartlett Street Marlborough LLC. a
Massachusetts limited liability company with offices c/o Ram Management Co.,
Inc. at 121 Middle Street, Portland, Maine 04101 (hereinafter called the
"Landlord") and Evergreen Solar Incorporated a corporation with a place of
business at 259 Cedar Hill Street, Marlborough, Massachusetts 01732 prior to the
commencement of the lease term and 120 Bartlett Street, Marlborough, MA, 01752
after the commencement of the lease term (hereinafter called the "Tenant").
WITNESSETH that for and in consideration of the rents herein reserved and
the covenants and agreements herein contained and expressed and to be kept,
performed and fulfilled, the parties agree as follows:
Section 1. Premises. Landlord hereby demises and lets unto Tenant, and
Tenant hereby leases from Landlord a portion of the building at 120 BARTLETT
STREET, Marlborough, Massachusetts (the "Building"), the leased premises is
deemed to contain 23,839 rentable square feet of space (comprised of
approximately 4,864 square feet of existing air conditioned office area (the
"Office Space")) and an adjacent and contiguous 18,975 square foot
warehouse/production space (the "Warehouse Space") and being designated as Unit
#3 and shown as the building space highlighted on Exhibit A annexed hereto (the
"Premises") together with the right to use, in common with others, the common
entry, lobby area, and common restrooms and all easements and appurtenances,
necessary or desirable for access to and use of the Premises (as defined
herein). All of the land, buildings and improvements owned by Landlord and
described on Exhibit A-1 and all rights of way and easements appurtenant thereto
are herein referred to as the "Property". The Premises do not include any common
shafts, ducts and conduits passing through the Premises and building systems,
except to the extent such systems are contained wholly within and exclusively
serve the Premises, and Landlord shall retain responsibility for the repair and
maintenance of the same throughout the term of this Lease. Landlord's architect
shall conduct a remeasurement of the rentable area of the Premises which
remeasurement shall be in accordance with the current Building Owners and
Managers Association International ANSI Z 65.1 method of measurement, Copyright
1966 (the "BOMA METHOD"). If such remeasurement alters the rentable area set
forth above, then: (i) Fixed Rent provided in Section 4 shall be adjusted based
on the rates per rentable square foot per annum set forth in Section 4(a) of
this Lease; and (ii) Tenant's Proportionate Share, as defined below, and any
other allowance or charge provided for herein, shall be adjusted accordingly.
The Landlord's architect's determination shall be binding on the Landlord and
Tenant absent bad faith.
Upon execution of this Lease Landlord shall promptly commence and
thereafter diligently prosecute to completion, at Landlord's cost and expense,
the fit-up work in the Premises in accordance with the Specifications for
Landlord's Work as set forth on Exhibit B. To the extent that the Tenant
requests changes from the Specifications for Landlord's Work in Exhibit B which
increases the cost, the Tenant shall, pay such additional costs promptly within
thirty (30) days of Landlord's presentation of invoices or other evidence of the
work having been completed; provided, however, the Landlord agrees to amortize
such additional Tenant Improvements specifically as they relate to the Tenant's
potential need for new and customized overhead doors, dock levelers and seals,
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over the term of the Lease. With respect to any delay in the Commencement Date
caused by Tenant's revision to the Specifications for Landlord's Work, the
payment of rent shall commence as provided in Section 3. Landlord shall provide
Tenant with the contractor's proposed construction schedule including the
proposed date of Substantial Completion (as defined below) and shall keep Tenant
updated with respect to any changes in such construction schedule. Landlord
presently expects that such proposed date of Substantial Completion will be as
follows: (a) thirty (30) days after the execution of this Lease as to the
Warehouse Space; and (b) sixty (60) days after full execution of the Lease as to
the Office Space. Should the Landlord be unable to deliver either space for
occupancy by Tenant with the Landlord's Work having achieved Substantial
Completion on or before the noted date, a penalty of one and one-half (1.5)
times the per diem rental rate attributable to the square footage of the space
which is not delivered (i.e. 1.5 x $6.25 x 4,864sf/365 days = $124.93 for the
Office Space and 1.5 x $6.25 x 18,975sf/365 days = $487.37 for the Warehouse
Space) shall be credited to the Tenant for each day of delay, and in addition,
in the event delivery of either space is delayed beyond thirty (30) days of the
noted delivery date, Tenant shall have the right to terminate the Lease upon
written notice to Landlord provided that Tenant is not directly or indirectly
responsible for said delay for the respective space component and provided such
delay is not the result of a force majeure event as described in Section 39
below. Notwithstanding the foregoing, no penalty shall be due from Landlord and
no termination right shall vest in Tenant in the event parking is not made
available commensurate with the delivery of either the warehouse or office
spaces, provided the parking which is provided complies with applicable
municipal zoning requirements or is otherwise acceptable to the municipal
Building Commissioner. The date Tenant is notified of Substantial Completion of
the Warehouse Space shall be the Commencement Date. Other than the Landlord's
Work, the Tenant hereby accepts the Premises in its "as is" condition provided
the same are delivered "broom clean", free of all occupants.
"Substantial Completion" shall mean that all of the following conditions
have been satisfied: (i) Landlord has secured and delivered to Tenant a
temporary or permanent certificate of occupancy (or the substantial equivalent
under applicable state or local law) to permit full use and occupancy of the
Building, the Premises and the Common Areas for the purposes permitted under
this Lease; and (ii) construction of "Landlord's Work", as hereinafter defined
in Exhibit B, has been completed in all materials respect in accordance with the
plan shown on Exhibit A, subject to normal punch list items that will not
materially interfere with Tenant's business operations in the Premises.
Landlord's notification of substantial completion shall be binding on the
parties absent bad faith. A temporary certificate of occupancy shall satisfy the
requirement for clause (i) of Substantial Completion if the temporary
certificate of occupancy dons not interfere with Tenant's right to operate
within the Premises for the use permitted hereunder or materially interfere with
Tenant's operations. In all events where a temporary certificate of occupancy is
issued, Landlord shall diligently pursue completion of the conditions for
issuance of a permanent certificate of occupancy.
Upon Landlord's commencement of Landlord's Work, Tenant and its agents
shall have license hereunder to enter the Premises upon at least forty eight
(48) hours prior notice to Landlord to conduct additional tenant fitup work at
Tenant's sole cost, subject to all of the terms and conditions of Section 12
herein below. Tenant's and it's agents' presence at the premises shall not
interfere in any way whatsoever with the conduct of Landlord's Work. If any
interference occurs, the Landlord may revoke said license. All of Tenant's
contractors shall be required to carry liability insurance with such companies
qualified to do business in Massachusetts and in such amounts and
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against such risks as Landlord shall reasonably require and approve, naming
landlord as an additional insured. Tenant further hereby agrees to defend
indemnify and hold Landlord and its agents harmless against any loss, cost,
damage, mechanic's liens, claims or expense including attorney's fees and
defense costs which arise from or are related to Tenant's or its agents',
employees' or contractors' presence on the Premises prior to the Commencement
Date. This indemnity shall survive the termination of this Lease.
Within, thirty (30) days after the Commencement Date of this Lease the
Tenant shall provide the Landlord with a "punch list" of any items of incomplete
work or work that does not conform with the Specifications for Landlord's Work
relating to the Premises and Landlord shall cause its contractor to complete or
correct such items within a reasonable time after receipt of such notice. Any
work undertaken by Tenant pursuant to this Section shall be subject to all of
the provisions and requirements of Section 14 herein below. Other than
completion of such punch list items the Landlord shall not be responsible for
any further work or improvements with respect to the Property except that
Landlord shall, upon Tenant's request, cause any items of defective work or
materials to be corrected for a period of one (1) year from the Commencement
Date. Landlord shall only be responsible for performing the Specifications for
Landlord's Work, and all additional work necessary to make the Premises suitable
for Tenant's intended use thereof shall be performed by Tenant at its sole cost
and expense and in accordance with Section 14 hereof.
Section 2. Term. The term of this Lease shall be for a period of six (6)
years six (6) months (seventy-eight months) commencing on the date of the
Commencement Date and expiring on the last day of the month that is
seventy-eight (78) months from the date of the Commencement Date.
Section 3. Rent. Commencing three (3) months after the earlier to occur of
the Commencement Date or the date which would have been the Commencement Date,
but for a delay resulting from Tenant's revisions to the Specifications for
Landlord's Work referenced in Section 1 above (the "Rent Commencement Date") and
thereafter during the original term, Tenant shall pay to Landlord without
deduction or offset (except as specifically permitted hereunder or at law) rent
for the Premises monthly, in advance, on or before the first day of each month
(prorated for any partial month) as follows:
PERIOD RENT PER SQUARE FOOT ANNUAL RENT MONTHLY RENT
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From the Rent Commencement Date to $6.25 NNN/Annum $148,993.75 $12,416.15
the end of the term
Notwithstanding the foregoing, unless Landlord achieves Substantial
Completion of the Office Space on the same date as the Warehouse Space, then the
monthly rent shall be reduced by multiplying the rentable square footage of the
Office Space by $6.25 for the period of time between the date of Substantial
Completion of the Warehouse Space and the Office Space, however, such rent
reduction shall be applied only from and after the Rent Commencement Date.
Section 4. Additional Rent. Beginning, on the Rent Commencement Date,
Tenant shall pay to Landlord, as additional rent, Tenants Proportionate Share
(as hereinafter defined) of all of the
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costs of the Property, which costs may include but shall not be limited to i)
cleaning, maintenance and repair of the common areas, ii) clearing and snow
removal from parking area and access drives, iii) trash removal (if provided by
Landlord), iv) insurance carried by Landlord with respect to the Property, v)
real estate taxes. vi) landscaping, vii) management fees not to exceed five
percent (5.0%) of the Building's gross collected rents, viii) repairs and
maintenance of the buildings and improvements on the Property, ix) maintenance
and other costs related to water, sewer, storm drainage and other utility
service provided to the Property to the extent such utilities are not separately
metered to the Premises and other tenant premises in the Property, x)
maintenance of and cost of service contract on the sprinkler system, and xi)
other expenses as deemed necessary by Landlord except that the following
expenses shall be excluded: costs of Structural Repairs (as defined in Section
12 hereinbelow) and capital repairs, replacements or improvements to the
Building; costs of leasehold improvements for other tenants; costs of Landlord's
compliance with environmental laws (unless caused by Tenant); fees and expenses
(including legal and brokerage) for procuring new tenants for the Building or
enforcing other tenants' leases; costs of work or services provided to other
tenants of the Building that do not benefit Tenant; costs and expenses for which
Landlord has actually been reimbursed in the form of insurance proceeds or
warranty payments from other tenants; Building debt service and depreciation;
financing and refinancing costs in respect of any mortgage or security interest
placed upon the Building or any portion thereof, including payments of
principal, interest, finance or other charges, and any points and omissions in
connection therewith; costs (including, without limitation, attorneys' fees and
disbursements) incurred in connection with any judgment, settlement or
arbitration award resulting from any tort liability; rent or other charges
payable under any ground or underlying lease; costs of any item which are
reimbursed to Landlord by other tenants or third parties or which are properly
chargeable or attributable to a particular tenant or particular tenants; costs
of any additions to or expansions of the Property or the Building; costs of
repairs, restoration or replacements occasioned by fire or other casualty or
caused by the exercise of the right of eminent domain, whether or not insurance
proceeds or condemnation award proceeds are recovered or adequate for such
purposes; the cost of performing or correcting defects in the Landlord's Work,
or of otherwise correcting defects in the structural elements or components of
the Building; the cost to make improvements, alterations and additions to the
Building that are required in order to render the same in compliance with laws,
and governmental regulations existing as of the Commencement Date; any costs in
the nature of fees, fines or penalties arising out of Landlord's breach of any
obligation (contractual or at law, and including, without limitation, costs,
fines, interest, penalties and costs of litigation incurred as a result of late
payment of taxes and/or utility bills), including attorneys' fees related
thereto, except if such penalty or attendant cost is caused by Tenant's action
or default; any long term rental of equipment which, if purchased, would not be
includable in Operating Costs, other than items such as scaffolding which are
used on an occasional or sporadic basis in performing maintenance and repairs
and any cost resulting from the negligence of Landlord, its agents or employees.
The term "real estate taxes" as used in the paragraph shall be deemed to include
all assessments, impositions and other governmental charges, ordinary and
extraordinary, which may be levied, assessed or otherwise become a lien upon or
charge against the Property. Assessments may be included in real estate taxes in
a calendar year only on the basis of payment thereof over the longest
installment period permitted by the relevant taxing authority without premiums
or interest. In no event shall Tenant be obligated to pay any interest or
penalties imposed upon Landlord for late payment or otherwise. If the real
estate taxes for any calendar year are reduced after Tenant has paid its
proportionate share thereof,
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Landlord shall pay to Tenant or Tenant will be credited with Tenant's
proportionate share of the reduction against the next accruing installments of
the Rent until the credit is exhausted less any cost incurred by the Landlord to
obtain such reduction, including reasonable attorney's fees. Any real estate tax
increase or decrease for any calendar year during the Terra shall be apportioned
so that Tenant shall pay or receive its proportionate share of only that portion
of the real estate tax increase or decrease for such year as falls within the
term, as long as the Tenant is not in default of its obligations beyond
applicable cure periods (if any). Additional rent will be in monthly
installments, due with the monthly payments of the base rent, based on the
budget provided by Landlord to Tenant. During the first calendar year such
budgeted monthly installments shall be at the annual rate of $1.65 per square
foot (including management fees). Landlord shall reconcile actual costs and
expenses with the budget figures at least annually and make appropriate
adjustments with Tenant. As part of such annual reconciliation, the Landlord
shall provide Tenant with a detailed statement of actual costs and expenses
consisting of internally generated financial statements prepared by an in-house
financial professional within ninety (90) days after the end of each calendar
year, which detailed statement shall be deemed accurate by Tenant unless
Landlord receives written objection from Tenant within one hundred twenty (120)
days of receipt by Tenant of such statement. Upon request from Tenant within
said one hundred twenty (120) day period, Landlord shall provide to Tenant
backup documentation in support of the aforementioned statement of costs and
expenses, including copies of invoices, bills, general ledgers, internal
accounting documents, rent rolls, operating expense statements, budgets and real
estate tax bills. Tenant shall have the right to conduct at its sole cost and
expense an audit of Landlord's accounting of costs and expenses of the Property,
once per calendar year over the term of the Lease. Tenant shall have the right
to select its own auditor. If the results of an audit reveals that expenses are
overstated, Landlord shall reimburse said overcharges to Tenant within thirty
(30) days of Landlord's receipt of the audit results complete with supporting
documentation. Under no circumstances shall Landlord be responsible for payment
of any audit costs.
For the purposes of this Lease, Tenant's Proportionate Share is the
product of the area of the Premises divided by the leasable area of all
buildings on the Property. At the time of signing of this Lease, such Tenant's
Proportionate Share is expected to be Thirty and Eighty Nine hundredths percent
(30.89%), based on 23,839 square feet divided by 77,165 square feet. The RSF
shall be validated based on final measurements by Landlord's architect.
In the event Landlord constructs another building adjacent to the
Building, Tenant shall not incur any additional costs hereunder as a result of
the construction or operation of said additional building.
Section 5. Option to Extend. Subject to the terms and conditions in this
Section 5, Tenant shall have the option to extend the term of this Lease for one
(1) additional period of five (5) years commencing on the expiration of the
original term or the then extension term, upon all the terms and conditions of
this Lease except for Base Rent. Base Rent during the extended term shall be at
the greater of the Base Rent paid during the immediately preceding lease year;
or the then fair market rent ("Fair Market Rent") for the Premises as defined
below. Tenant may exercise its option to extend only if Tenant (i) is not then
in default in performance or observance of any term or condition of this Lease
beyond any applicable notice and cure periods, and (ii) is occupying at least
fifty percent (50%) of the entire Premises subject to this Lease. Tenant may
exercise its said options
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to extend only by delivering notice of its intent to extend the term hereof to
Landlord at least nine (9) months in advance of the expiration of the original
term, but no more than fifteen (15) months prior to the expiration of the then
term, failing which said option shall utterly expire, time being of the essence.
Following the exercise by Tenant of its option to extend the term hereof, all
references in this Lease to the term hereof, or expressions of similar import,
shall be deemed to refer to the term as so extended, subject to Tenant's
rescission right in the following paragraph. Upon request, Landlord agrees to
execute a separate instrument reflecting the terms of this Section 5.
The Fair Market Rent shall be determined as follows: Within thirty (30)
days after the Tenant's exercise of each option, Landlord shall furnish Tenant
in writing with notice of Landlord's determination of the amount of Base Rent
for the extended term. Within twenty (20) days after the date of Landlord's said
notice of the amount of Base Rent Tenant may either: (i) accept Landlord's
determination, (ii) rescind its exercise of the extension option, or (iii) elect
to determine the current market rate by appraisal. If Tenant elects appraisal,
each of the parties shall, within thirty (30) days thereafter, select an
appraiser, each of whom shall have at least five (5) years of experience in
appraising commercial properties in the greater Boston area, and the two
appraisers shall together select a third appraiser similarly qualified. The
three appraisers together shall attempt to agree on the current market rate of
Base Rent for the extended term, failing a unanimous decision, may determine
such figure by majority vote. The current market rate of Base Rent shall be
determined using data available for buildings similar in quality, services, use
and amenities as the Building that are located in the greater Marlborough area.
Landlord and Tenant shall share equally the charges for the appraiser for their
work performed pursuant to this paragraph unless the current market rate so
determined by appraisal is equal to or greater than the Base Rent originally
determined by Landlord, in which case all appraisal costs shall be paid by
Tenant. Following the exercise by Tenant of its option to extend the term
hereof, all references in this Lease to the term hereof, or expressions of
similar import, shall be deemed to refer to the term as so extended. The
decision and award of the appraiser(s) shall be final and conclusive on all
parties.
Section 6. Right of First Offer. If at any time during the initial term of
the Lease Landlord sends out a proposal ("Proposal") to, or receives an offer
(with terms acceptable to Landlord) ("Acceptable Offer") from any third party to
lease all or any portion of the adjacent office space containing approximately
3,118 rentable square feet ("ROFO Space"), Landlord agrees to give Tenant a
Right of First Offer to lease such space provided that Tenant is not in default
beyond notice and cure periods at such time, as follows: Landlord agrees to
provide Tenant with a copy of each Proposal it sends to and any Acceptable Offer
it receives from any third party. Tenant shall then have five (5) business days
in which to provide Landlord with a written offer to lease the ROFO Space
pursuant to the terms of the Proposal or Acceptable Offer, as the case may be.
In the event Tenant does not timely respond to Landlord with its own acceptable
offer (i.e. in strict adherence to the Proposal or Acceptable Offer terms),
Tenant's rights under this Section 6 shall automatically terminate with respect
to the particular Proposal or Acceptable Offer (as applicable) provided by
Landlord, but shall otherwise continue in full force and effect with respect to
any subsequent Proposals or Acceptable Offers (which contain terms materially
different from a Proposal or Acceptable Offer previously submitted to Tenant)
that Landlord sends to or receives from any third parties. Upon Tenant's
submission to Landlord of its acceptable offer, this Lease shall subsequently be
amended in writing identifying terms and conditions under which the ROFO Space
shall become part of the Premises. Landlord shall be obligated to deliver such
ROFO Space in "broom clean"
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condition, free of all occupants. Landlord and Tenant shall within ten (10)
business days thereafter execute a lease amendment providing for the
incorporation of the ROFO Space into the Premises on the terms set forth above.
Section 7. Payment of Rent and Late Charges. Payments due under Sections 3
and 4 above shall be made at Landlord's office at the address set forth in
Section 32, or such other place as Landlord may designate in writing, on of
before the first of each month. If the payment is not received by Landlord
within ten (10) days after the first day of each month, Landlord shall be
entitled to, and Tenant shall pay to Landlord a late fee equal to five percent
(5%) of the late payments and if payment is not received by the 15th of the
month, it shall also bear interest from the first of the month at the prime rate
published in the Wall Street Journal, as it may be adjusted from time to time,
plus 4% per annum, but in no event more than the highest rate of interest
allowed by applicable law. All payments under this Lease shall be paid to
Landlord without notice or demand, and without abatement, deduction,
counterclaim or set-off except for rent abatement permitted hereunder or at law.
Section 8. Security Deposit. Simultaneously with the execution of this
Lease, Tenant has deposited a security deposit in the sum of Twelve Thousand
Four Hundred Sixteen and Fifteen Hundredths Dollars ($12,416.15) (one month's
base monthly rent) (the "Deposit") with Landlord as security for the full and
faithful performance by Tenant of all of the terms and conditions of this Lease
required to be paid or performed by Tenant. Landlord may apply to any portion of
the Deposit for the payment of any payments of rent, additional rent or sums due
to Landlord hereunder for which Tenant is in default beyond any applicable
notice or grace period, to discharge any liens which Tenant fails to discharge
as required by Section 14 and Section 19 and for any damages to the Premises
(excluding reasonable wear and tear) caused by any affirmative or negligent act
by Tenant, its employees, servants or invitees not cured within any applicable
notice or cure period. Promptly following any application of the Deposit, Tenant
shall pay to Landlord an amount needed to restore the Deposit to its original
amount. Upon the expiration of this Lease and Tenant's vacating of the Premises,
Landlord shall return the Deposit to Tenant less any amounts applied by Landlord
to said rent or damages within 45 days.
Section 9. Taxes and Assessments. Landlord shall pay and discharge all
real estate taxes and levies, and charges and governmental impositions, duties
and charges of like kind and nature, which shall or may prior to or during the
term of this Lease be charged, laid, levied or imposed upon or become a lien or
liens upon the Building and the Property, subject to Tenant making the payments
of Additional Rent as required in Section 4 above. Upon Tenant's request,
Landlord shall provide Tenant with copies of invoices related to such real
estate taxes and charges. Tenant shall pay all personal property taxes and other
governmental impositions on its personal property and fixtures located at the
Premises. If the Landlord obtains an abatement of any such real estate taxes or
charges previously paid, a proportionate share of such abatement less the
reasonable fees and costs incurred in obtaining the same, if any, shall be
refunded to Tenant.
Section 10. Quiet Enjoyment. Landlord shall put Tenant in possession of
the Premises at the Commencement Date,, and Tenant, upon paying the rent and
observing the other covenants and conditions herein upon its part to be
observed, shall peaceably and quietly hold and enjoy the
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Premises without hindrance by, from or through Landlord or those claiming under
Landlord, subject to the terms of this Lease.
Section 11. Signs. Tenant shall not install or alter any exterior signs on
the Premises without the prior written approval of Landlord, which consent shall
not be unreasonably withheld if the Tenant's proposed signage is in conformance
with the following provisions and criteria of this Section 11. Any signs shall
be in compliance with all federal, state and local laws and ordinances and shall
conform with a uniform sign policy that Landlord may establish with respect to
the Property. Tenant shall maintain a sign at its sole cost and expense
identifying the name of its business in a location designated by Landlord at the
Premises and in a size and with an appearance approved by Landlord which
approval shall not be unreasonably withheld, conditioned or delayed.
Section 12. Repairs by Tenant. Landlord shall deliver the Premises and all
systems serving same in good and operational condition. Tenant shall, at its own
expense. be responsible for all maintenance and repairs to the Premises,
including, without limitation, light bulbs, ballasts, the heating, ventilating
and air conditioning systems, and alarm systems serving only the Premises, and
for all interior painting desired by Tenant and for the replacement of broken
glass within the Premises (which includes the exterior windows) except for
repairs required as a result of Landlord's negligent or intentional acts or
omissions. In the absence of or, upon the completion or expiration of any
applicable equipment manufacturers and distributors warranty obligations, Tenant
shall employ suitable contractors (approved by Landlord which approval shall not
be unreasonably withheld, conditioned or delayed) to perform maintenance of said
heating, ventilating and air conditioning systems that exclusively serves the
Premises (the "HVAC System"), and shall maintain an annual service contract at
the Premises' HVAC System and alarm system and Landlord shall be responsible for
replacement of any of such said systems if the condition thereof warrants such
repair, as determined by a professional engineer, unless such replacement is
required as a result of Tenant's inadequate maintenance, negligence or
intentional act or omission, in which case, replacement of said system(s) that
exclusively serve time Premises shall be at Tenant's sole cost and expense.
Tenant shall also promptly make any repairs lawfully required by any public
authority as a result of changes in statutes or regulations which become
effective subsequent to the beginning of the term of this Lease and which
repairs are required because of the particular use of the occupancy of the
Premises by Tenant or the manner in which it conducts its business therein. At
the expiration of this Lease or earlier termination hereof for any cause herein
provided for, Tenant shall deliver up the Premises to Landlord broom clean and
in the same condition and state of repair as at the beginning of the term
hereof, reasonable wear and tear, taking by eminent domain and damage due to
fire or other casualty insured against excepted.
Landlord makes no warranties or representations regarding indoor air
quality or condition within the Premises. Furthermore, Landlord shall have no
responsibility regarding indoor air quality or condition, such responsibility
being solely that of Tenant. Tenant has conducted or has had the opportunity to
conduct all testing regarding indoor air quality and condition, and hereby
releases Landlord for any claim therefore. In the event Tenant notifies Landlord
in writing that the indoor air quality or condition within the Leased Premises
is adversely impacting Tenant's use thereof as a result of operations of another
tenant at the Building, Landlord shall provide notice of such condition to said
other tenant within five (5) days of Tenant's notice to Landlord and make demand
upon said other tenant to remedy the air quality or condition problem to the
extent required by said other tenant
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under the terms of said other tenant's lease, and Landlord agrees to make
commercially reasonable efforts to obtain such tenant's compliance with the
terms of its lease.
In the event Tenant fails to make promptly any repairs required of Tenant
hereunder, or fails to perform any of its other obligations, Landlord may, at
its option, if such failure continues for more than twenty (20) days after
Landlord has provided notice to Tenant, or such longer period of time (not to
exceed ninety (90) days) if such repairs or obligations cannot be performed
within said twenty (20) day period, provided Tenant takes steps to make such
repairs or perform such obligations within said twenty (20) day period and is
diligently proceeding in good faith to effect same make such repairs or perform
such obligations to Tenant's account and the cost thereof will become an
obligation of Tenant under this Lease, payable within thirty (30) days of demand
and any such amount shall bear interest at the prime rate published in the Wall
Street Journal plus five percent (5.0%) per annum, as may from time to time be
determined, from the date of demand.
Section 13. Landlord's Maintenance. Landlord, at Landlord's sole cost and
expense (and not as a pass through item under Section 4 above), shall be
responsible for: (i) structural repair, replacement and maintenance of the
structural elements and components of the Building (i.e. foundation and exterior
and load bearing walls repair), (ii) roof replacement (but excluding roof
repairs), and (iii) repaving of the entire parking lot (expressly excluding
sealing, striping, filling of cracks or potholes, and other pavement repairs)
(hereinafter "Structural Repairs"). However, repairs to the non-structural
elements and components of the Building as well as maintenance of mechanical,
sewage, life/safety, electrical distribution, plumbing and other
Building-related systems which are not part of the Leased Premises, and repairs
to common areas and parking areas (but not repaving of the entire parking lot)
shall be conducted by Landlord, but may be included in the costs described in
clause (viii) of Section 4. In addition, Landlord shall be responsible for snow
and ice removal from the access roads, parking areas and walkways serving the
Building. The parties acknowledge that it is their intention that this Lease
shall otherwise be an absolute net lease, so-called, and that except with
respect to damage by fire or other casualty, Tenant has responsibility for all
non-structural maintenance and repair to the Premises (unless caused by the
gross negligence or willful misconduct of Landlord, its agents, employees or
contractors), together with payment of all reasonable costs and expense
associated with the premises excepting only: (a) costs relating to such
maintenance and repairs to the extent made necessary as a result of Landlord's
negligent or intentional actions or omissions, or (b) any responsibility
specifically accepted by Landlord hereunder.
The parties acknowledge that the Rent and Additions Rent is based in part
upon the services Landlord is obligated to provide. If, for any reason, Landlord
fails to provide any required service for more than five (5) consecutive
business days, or if there are five (5) or more interruptions of any required
continuous service in any given thirty (30) day period, then in any such case
the Rent shall abate equitably during the entire period of such interruption or
delay without regard to the notice and cure provisions.
Landlord shall maintain and operate the Building in accordance with
applicable laws. Landlord shall be responsible for the payment of any funds
needed to correct or change any system or structural element of the Property, so
as to comply with any laws, except where such change or
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expenditure is required on account of Tenant's occupancy or use of the Premises,
as provided in Section 12 hereinabove.
Section 14. Alterations and Additions. Tenant shall not make structural
alterations or additions to the Premises, but may make non-structural
alterations of less than $10,000 without Landlord's consent (but with notice to
Landlord). Any non-structural alterations exceeding $10,000 shall require
Landlord's consent thereto in writing, which consent shall not be unreasonably
withheld, conditioned or delayed. Tenant shall not make any penetrations of the
roof or exterior wall except for roof penetrations at a location approved by
Landlord and performed by a contractor approved by Landlord. Landlord may
require satisfactory evidence of available financing for any such alterations or
additions. All such allowed alterations shall be at Tenant's expense and shall
be in quality at least equal to the present construction. Tenant shall not
permit any mechanics' liens, or similar liens, to remain upon the Premises for
labor and material furnished to Tenant or claimed to have been furnished to
Tenant in connection with work of any character performed or claimed to have
been performed at the direction of Tenant and shall cause any such lien to be
released of record forthwith without cost to Landlord. Landlord shall either
consent or deny to such request to make any Alteration requiring consent within
ten (10) business days of such notice. Any denial must be in writing, and
provide reasonable explanation for the denial. Subject to the provisions of
Section 15, any alterations or improvements made by Tenant shall become the
property of Landlord at the termination of occupancy as provided herein.
Landlord reserves the right to require that Tenant demolish and remove, at
Tenant's sole expense, any alterations or improvements made by Tenant. Such
demolition and removal will be completed prior to Tenant vacating the premises
upon the expiration or termination of this Lease. Tenant shall provide the
Landlord with plans and specifications for all alterations and will provide
Landlord with monthly lien waivers from all materialmen, contractors and
subcontractors in accordance with Massachusetts law. Tenant shall have the right
to install, subject to the provisions and requirements of this Section 14, a
backup generator on the ground in a mutually agreeable location and satellite
dish antenna on the roof of the Building or adjacent to Premises, subject to
Landlord's prior written approval as to size, type and location, which approval
shall not be unreasonably withheld, conditioned or delayed. Landlord further
reserves the right to relocate same at Landlord's sole cost and expense so long
as such relocation is to a substantially equivalent location, and does not
materially impact Tenant's capacity to conduct normal business operations.
Section 15. Machinery, Equipment and Trade Fixtures. Tenant agrees that it
shall not install or remove any machinery, equipment, trade fixtures or
appurtenances thereto in the Premises that cannot be removed from the Premises
without material damage to the Premises and Tenant shall repair any such damage
upon removal. Tenant agrees that (a) all machinery and equipment, and
appurtenances thereto, installed in the Premises by Tenant, or by any employee,
agent or subcontractor of Tenant, or by any subtenant of Tenant, which may be
removed from the Premises without substantial damage to the Premises, and (b)
all furniture, furnishings and trade fixtures installed in the Premises, shall
be deemed to remain personal property and that all such machinery, equipment,
appurtenances, furniture and trade fixtures of Tenant or of any employee, agent
or subcontractor or subtenant of Tenant, must be removed, prior to the
expiration of this Lease or its earlier termination for any cause herein
provided for. Tenant shall repair any damage occasioned by such removal and
shall repair the Premises to its condition as at the beginning of the term
hereof, reasonable wear and tear, taking by eminent domain and damage due to
fire or other casualty insured
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against excepted. Any such property which is required to be removed pursuant to
the provisions hereof and which is not so removed prior to the expiration or
earlier termination of this Lease may be removed from the Premises by Landlord
and stored for the account of Tenant; and if Tenant shall fail to reclaim such
property within sixty (60) days following such expiration or earlier termination
of this Lease, such property shall be deemed to have been abandoned by Tenant
and may be appropriated, sold, destroyed, or otherwise disposed of by Landlord
without notice to Tenant and without obligation to account therefor. Tenant
shall pay to Landlord all reasonable costs incurred by Landlord in removing,
storing, selling, destroying or otherwise disposing of any such property.
Section 16. Utilities, Cleaning and Trash Removal. Provided Landlord has
separately metered the same at its cost prior to the Commencement Date, Tenant
shall make arrangements for, and shall pay when due all charges for (i) all
utilities, including but not limited to gas, electricity, heat, power, telephone
(ii) cleaning and janitorial services for the interior of the Premises, (iii)
trash removal services for all wastes from the Premises and (iv) any other
services supplied to Tenant at the Premises, and shall hold and save Landlord
harmless from any expense or liability connected therewith. Landlord shall be
under no responsibility to supply either hear or hot water to the Premises at
any time whatsoever. Other than water and sewer usage, Landlord at its sole cost
and expense will provide separately metered utility connections up to the
Premises. Landlord reserves the right to submeter the Tenant's Premises for the
Tenant's water and sewer usage if Landlord determines that the Tenant requires
heavy consumption of water. In no event shall Landlord be responsible or liable
to Tenant or anyone claiming under Tenant for failure or cessation of supply of
any utilities.
The Landlord shall maintain one set of men's and ladies' lavatories to be
used by Tenant and such costs shall be included prorata (with others having
rights to use the bathroom) in Tenant's common area charges.
Section 17. Use of the Premises.
(a) The Premises shall be used for office, light manufacturing,
light assembly, research and development, and, warehousing purposes, and for no
other purposes. In its use of the Premises, Tenant shall comply with all
statutes, ordinances and regulations applicable to the use thereof, including,
without limiting the generality of the foregoing, the Zoning Ordinance of the
Town of Marlborough, Massachusetts, as now in effect or as hereafter amended. In
addition, if the applicable governmental codes require or if the insurance
underwriters state that Tenant's use of the Premises requires that upgraded or
additional safety sprinklers or safety appliances be installed, and provides
written evidence of the increased risk of Tenant's use requiring such upgrades
or additions, Tenant shall furnish such items at its sole cost and expense. The
foregoing shall not relieve the Landlord from maintaining the Property as
required under this Lease.
(b) Tenant shall not injure or deface, or commit waste with respect
to the Premises, nor occupy or use the Premises in such manner as to constitute
a nuisance of any kind, nor for any purpose nor in any manner in violation of
any present or future laws, rules, requirements, orders, directions, ordinances
or regulations of any governmental or lawful authority including Boards of Fire
Underwriters. Tenant shall, immediately upon the discovery of any unlawful,
illegal, disreputable or extra hazardous use, take all necessary steps to
discontinue such use. Without
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limiting the foregoing, Tenant acknowledges that the operation or storage of
motor vehicles within the Premises is an extra hazardous use and is therefore
prohibited. Tenant shall pay all extra insurance premiums, which may be caused
by; (i) the occupancy or use (other than as permitted in subparagraph 17(a)
above) that Tenant may make of the Premises, or (ii) Tenant's manner of
operations within the uses described in subparagraph 17(a) above). Landlord
shall supply a letter from its insurer or agent verifying the Tenant's use as
the cause of the increased premiums.
(c) Tenant shall procure all licenses or permits required by any use
of the Premises by Tenant.
(d) Tenant, for itself, its customers and invitees, shall have the
non-exclusive right during the term of this lease to use in common with
Landlord, and others to who Landlord shall grant similar rights, for purposes of
ingress, egress and parking, the parking areas, roadways and other common areas
at the Property subject to such rules and regulations or as Landlord may
establish from time to time with respect to such parking areas, roadways, and
other common areas.
Landlord reserves the right to change the common area referred to herein,
and to construct additional improvements and buildings within the Property (or
sell a portion of the Property) and the parking areas and other common areas;
provided, however, that access to and from the Premises shall not thereby be
unreasonably interrupted or interfered with. In performing such changes Landlord
will use commercially reasonable efforts so as to avoid or minimize any
interference with Tenant's business. No such changes, or any of them, shall
invalidate or affect this lease, except that Landlord and Tenant shall, on
request by either, modify Exhibit A-1 to reflect such change.
Except as set forth below, Tenant shall not park storage trailers for any
extended period or store any items of its property on said exterior common
areas. Tenant shall have the exclusive right to use the areas immediately
adjacent to the loading docks to make deliveries to the loading docks. Tenant
shall not use more than two (2) parking spaces per thousand (1,000) square feet
of rented space (48 spaces total) at any time; including two (2) designated
parking spaces. Notwithstanding the above, Tenant may allow storage trailers to
park overnight (but never more than for 24 consecutive hours); provided however
Tenant shall immediately move and or remove such storage trailers upon demand of
Landlord to accommodate snow or ice removal. In addition, Tenant shall have the
right to maintain one (1) dumpster or trash compactor near the loading docks in
a specific location previously approved by Landlord.
(e) Tenant shall not permit any employee, servant, invitee or
visitor of Tenant to violate the covenants or obligations of Tenant hereunder.
Section 18. Subleasing - Assignment.
(a) Tenant shall not, without the prior written consent of the
Landlord assign or sublet the Premises or any portion thereof or mortgage,
pledge or encumber its leasehold interest hereunder. With respect to a sublet or
assignment, the Landlord's consent will not be unreasonably withheld,
conditioned or delayed if the subtenant's or assignee's use (if other than as
permitted hereunder), financial capacity, and parking requirements (if other
than as provided hereunder) are acceptable to Landlord. Landlord agrees to use
commercially reasonable discretion in assessing a
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potential subtenant's or assignee's financial capacity. Any request for such
consent shall be accompanied with reasonably detailed information regarding the
creditworthiness and business experience of the proposed assignee or subtenant.
Tenant shall reimburse Landlord for its reasonable legal fees incurred in
connection with any such consent requested by Tenant in an amount not to exceed
$2,500.00. In the event of such assignment or sublease, Tenant shall remain
liable to Landlord for all the rentals called for under the terms of this Lease
and for the performance of all covenants herein to be performed by Tenant.
(b) It is agreed that if Landlord shall consent to such assignment
or subletting, and Tenant shall thereupon assign this Lease or sublet all or any
portion of the Premises, then and in that event Tenant shall pay to Landlord, as
additional rent, (i) in the event of an assignment, the amount of all monies, if
any, which the assignee has agreed to and does pay to Tenant in consideration of
the making of such assignment, except that Tenant shall be entitled to retain
sums attributable to the purchase of Tenant's leasehold interest in the Premises
only in connection with the sale of all or substantially all of its assets or
stock; and (ii) in the event of a subletting, fifty (50) percent of the amount,
if any, by which the fixed base rent plus additional rent payable by the
subtenant to Tenant shall exceed the fixed base rent plus additional rent
allocable to that part of the Premises affected by such sublease pursuant to the
provisions of this Lease, plus the amounts, if any, payable by such subtenant to
Tenant pursuant to any side agreement as consideration (partial or otherwise)
for Tenant making such subletting, but less reasonable expenses incurred by
Tenant in either event, including brokerage and build out, but excluding
attorney's fees.
(c) Notwithstanding anything in this Section 18 to the contrary,
unless Tenant is not in incurable default hereunder and Tenant occupies at least
fifty percent (50%) of the Premises, Landlord shall have the right to require
that all (or any portion) of the Premises which Tenant proposes to sublease, or
as to which Tenant proposes to assign, except for those types of assignments
specifically permitted herein, be surrendered to Landlord for the term of the
proposed sublease or assignment in consideration of the appropriate pro rata
adjustment of, or cancellation of, the Tenant's obligations hereunder. Landlord
shall have fifteen (15) business days from notice of such proposed sublease or
assignment to notify Tenant of its intent to recapture the Premises. Tenant
shall have the right to assign or sublet this Lease to any entity controlling,
controlled by, or under common control with, Tenant, or in connection with an
entity into which Tenant has merged or an entity that purchases all or
substantially all of Tenant's assets or stock after notice to Landlord but
without the consent of Landlord, provided that Tenant shall remain fully liable
for all obligations hereunder.
Landlord shall have the right to assign this Lease or any of the
rights and benefits accruing to it thereunder to any mortgagee or any entity
that takes title to the Property.
Section 19. Mechanic's Lien. In the event of the filing in the
Southern Middlesex County Registry of Deeds of any notice of a builder's,
supplier's or mechanic's lien on the Premises arising out of any work performed
by or on behalf of Tenant, Tenant shall cause said lien to be released and
discharged without delay.
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Section 20. Liability.
(a) Except for injury or damage caused by the willful or negligent
act of Landlord, its servants or agents, employees or contractors or vendors,
Landlord shall not be liable for any injury or damage to any person happening on
or about the Premises or for any injury or damage to the Premises or to any
property of Tenant or to any property of any third person, firm, association or
corporation on or about the Premises. Tenant shall, except for injury or damage
caused as aforesaid, defend, indemnify and save Landlord harmless from and
against any and all liability and damages, costs and expenses, including
reasonable counsel fees, and from and against any and all suits, claims and
demands of any kind or nature, by and on behalf of any person, firm, association
or corporation, arising out of or based upon any incident, occurrence, injury or
damage which shall or may happen on or about the Premises and from and against
any matter or thing growing out of the condition, maintenance, repair,
alteration, use, occupation or operation of the Premises or the installation of
any property therein or the removal of any property therefrom.
(b) Except for injury or damage caused by the willful or negligent
act of Tenant, its servants, agents, employees, contractors, or vendors, Tenant
shall not be liable for any injury or damage to any person happening on or about
the areas outside the Premises or for any injury or damage to the areas outside
the Premises or to any property of Landlord or to any property of any third
person, firm, association or corporation on or about the areas outside the
Premises. Landlord shall, except for injury or damage caused by Tenant, its
servants, agents, employees, contractors or vendors, as aforesaid, defend,
indemnify and save Tenant harmless from and against any and all liability and
damages, costs and expenses, including reasonable counsel fees, and from and
against any and all suits, claims and demands of any kind or nature, by and on
behalf of any person, firm, association or corporation, arising out of or based
upon any incident, occurrence, injury or damage which shall or may happen on or
about the areas outside the Premises which is caused by Landlord's negligent or
intentional act or omission.
Provided Landlord maintains the policies of insurance required hereunder,
Tenant agrees to look solely to Landlord's interest in the Property and the
proceeds of any insurance policies maintained by Landlord that are available to
Tenant or Landlord, for recovering of any judgment or claim against Landlord. It
is understood and agreed that all covenants of Landlord contained in this Lease
shall be binding upon Landlord and Landlord's successors only with respect to
breaches during Landlord's and Landlord's successors' respective partnership of
Landlord's interest hereunder. In no event shall Landlord or Tenant ever be
liable hereunder to the other for any indirect, special, or consequential
damages suffered by either party or any other party from whatever cause.
Section 21. Liability Insurance. Tenant shall throughout the term hereof
procure and carry, at its expense, an umbrella or excess liability insurance
policy in the amount of at lease $5,000,000.00, and comprehensive liability
insurance on the Premises with insurance companies authorized to do business in
Massachusetts and reasonably acceptable to Landlord. Such insurance shall be
carried in the name of and for the benefit of Tenant with an additional insured
endorsement for the benefit of the Landlord and Landlord's mortgagee if
requested. The comprehensive liability insurance policy shall be written on an
"occurrence" basis; and shall provide coverage of at least $1,000,000.00 per
occurrence, at least $2,000,000.00 in the aggregate, and at least $1,000,000.00
in case of loss, destruction or damage to property. Tenant shall also maintain
workers' compensation
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insurance and commercial automobile insurance as required by applicable law.
Tenant shall furnish to Landlord a certificate of such insurance that shall
provide that the insurance indicated therein shall not be canceled without at
least thirty (30) days' written notice to Landlord.
During the Term of this Lease, Landlord shall maintain standard commercial
general liability insurance or equivalent form with a limit of not less than
$3,000,000.00 per occurrence and at least $3,000,000 in the aggregate. Such
insurance shall also: (i) include Tenant as a certificate holder; and (ii) be
primary with respect to any negligent acts of Landlord. Landlord shall also
maintain workers' compensation insurance and commercial automobile insurance as
and if required by applicable law.
Section 22. Fire and Extended Coverage Insurance. Landlord shall procure
and continue in force during the term hereof fire and extended coverage
insurance on the building containing the Premises in an amount equal to the
replacement value of the Building. Tenant shall procure and continue in force
during the term hereof, fire and extended coverage insurance on any and all
personal property and fixtures of Tenant which are situated in the Premises.
Landlord and Tenant hereby waive to the extent caused by or resulting from
risks insured against or required to be insured against hereunder, and then only
to the extent of the policy coverage limits that are required hereunder and all
property insurance policies carried by either party covering the Premises and/or
the Property, as applicable, including but not limited to contents, fire and
casualty insurance, shall expressly waive any right on the part of the insurer,
Landlord or Tenant (as applicable) against the other party and their respective
officers, directors, shareholders, managers, members, agents and employees. The
parties hereto agree that their policies will include such waiver clause or
endorsement so long as the same shall be obtainable without extra cost, or if
extra cost shall be charged therefor, so long as the other party pays such extra
cost. If extra cost shall be chargeable therefor, each party shall advise the
other thereof and of the amount of the extra cost, and the other party, at its
election, may pay the same, but shall not be obligated to do so. Each of the
parties hereby waives all claims for recovery from the other party for any loss
or damage to any of its property insured under such insurance policies not
containing such subrogation waivers.
Section 23. Condemnation, Destruction or Damage.
(a) If the Premises, or any material portion thereof, are taken by
eminent domain, or condemned for public use, this Lease may be terminated by
either party except as provided below, and any and all awards for such taking
shall be the exclusive property of Landlord. Nothing contained herein shall be
construed to preclude Tenant from prosecuting any claim directly against the
condemning authority in such condemnation proceedings for loss of business or
depreciation to, damage to, or cost of removal of, equipment and other personal
property belonging to Tenant, provided, however, that no such claim shall
diminish or otherwise adversely affect Landlord's award or the award to any
mortgagee.
(b) Within thirty (30) days after any destruction or damage to all
or a portion of the Premises, Landlord shall give Tenant a notice from a
reputable, licensed architect or engineer licensed in Massachusetts stating the
estimated date of completion of the restoration of the Premises (said date being
hereinafter referred to as the "Estimated Date"). In the event that the
Estimated Date is more than two hundred twenty five (225) days from the date of
such destruction or damage,
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this Lease shall terminate at the election of Landlord or Tenant by written
notification to the other within thirty (30) days of Landlord providing the
notice of the Estimated Date to Tenant and each party shall thereafter be
relieved of any further obligation to the other, except that Tenant shall be
liable for and shall promptly pay Landlord any rent then in arrears or Landlord
shall promptly rebate to Tenant a pro rata portion of any rent paid in advance.
In the event that the Estimated Date is less than two hundred twenty five (225)
days from the date of such destruction or damage or if Landlord or Tenant does
not elect to terminate this Lease pursuant to the immediately preceding
sentence, this Lease shall continue in effect in accordance with its terms; such
repairs and restoration shall, unless otherwise agreed by Landlord and Tenant,
be performed promptly by Landlord as closely as practicable to the condition
which existed as of the date of the damage (utilizing therefor the proceeds of
the insurance applicable thereto), and until such repairs and restoration have
been accomplished, a portion of the rent and additional rent shall abate in a
fair and equitable manner equal to the proportion of the Premises rendered
unusable by the damage. Landlord's obligation to restore shall not extend to any
of Tenant's personal property or trade fixtures or to any alterations,
improvements or additions made by Tenant, the restoration of which will be
Tenant's obligation. It is understood that Landlords obligation to restore,
replace or rebuild shall not exceed in amount the sum of the insurance proceeds
paid to it and/or released to it by any mortgagee with whom settlement was made.
Tenant agrees to execute and deliver to Landlord all instruments and documents
necessary to evidence the fact that the right to such insurance proceeds is
vested in Landlord by the damage. In addition, in the event that the restoration
of (i) the Premises, or (ii) services and utilities to be supplied to the
Premises are not in fact completed within two hundred twenty five (225) days
from the date of the fire or casualty, Tenant shall have the right to terminate
this Lease by giving written notice to Landlord within thirty (30) days of the
expiration of such two hundred twenty five (225) day period.
Section 24. Repossession by Landlord. At the expiration of this Lease or
upon the earlier termination of this Lease for any cause herein provided for,
Tenant shall peaceably and quietly quit the Premises and deliver possession of
the same to Landlord.
Section 25. Mortgage Lien. Tenant agrees that this Lease and all rights of
Tenant hereunder are and shall be subject and subordinate to the lien of (1) any
mortgage constituting a lien of the Property, or any part thereof, at the date
hereof, (2) the lien of any mortgage hereafter executed to a bank, trust company
or other recognized lending institution to provide permanent financing or
refinancing of the land and improvements containing the Premises, and (3) any
renewal, modification, consolidation or extension of any mortgage referred to in
clause (1) and (2). Tenant shall within at least ten (10) business days after
written notice, execute, acknowledge and deliver to Landlord without any expense
to Tenant, any and all instruments that may be necessary or proper to
subordinate this Lease and all rights of Tenant hereunder to the lien of a
mortgage referred to in (2) or (3) of the preceding sentence, provided the same
contain non-disturbance protections. Landlord shall use best efforts to provide
the Tenant with a usual and customary Subordination, Non Disturbance Agreement
("SNDA") prepared by Landlord's current lender or any subsequent lender.
Section 26. Environmental Matters.
(a) Tenant represents and warrants that it shall not use the
Premises for the Storage, Treatment or Disposal of Hazardous Wastes, except in
full compliance with all applicable
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laws, regulations and requirements of Governmental Authorities (as hereinafter
defined). For the purposes of this Lease, the terms Hazardous Waste, Storage,
Treatment and Disposal are defined by cumulative reference to the following
sources, as amended from time to time: (1) The Resource Conservation and
Recovery Act of 1976, 42 USC Section 6901 et seq (RCRA); (2) EPA Federal
Regulations promulgated thereunder and codified in 40 C.F.R. Parts 260-265 and
Parts 122-124; (3) Chapter 21C and 21E of the Massachusetts General Laws; and
regulations promulgated thereunder by any agency or department of the
Commonwealth of Massachusetts. Promptly, upon the request of Landlord, Tenant
shall provide Landlord with a list of all Hazardous Materials generated, stored,
treated, or used on the Premises.
(b) As used in this Section, the term "Hazardous Material" shall
mean any substance, water or material which has been determined by any state,
federal or local government authority to be capable of posing a risk of injury
to health, safety and property, including, but not limited to, all of those
materials, wastes and substances designated as hazardous or toxic by the U.S.
Environmental Protection Agency, the U.S. Department of Labor, the U.S.
Department of Transportation, and/or any other governmental agency, federal,
state, or local, now or hereafter authorized to regulate materials and
substances in the environment (collectively "Governmental Authority(ies)").
(c) Tenant agrees to take responsibility for any remedial action
required by Government Authorities having jurisdiction regarding any Hazardous
Material or Hazardous Waste owned, controlled, used or manufactured by Tenant,
or for which Tenant is otherwise legally responsible. Tenant shall pay all costs
in connection with any such investigation or remedial activity including,
without limitation, all installation, operation, maintenance, testing, and
monitoring costs, all power and utility costs and any and all pumping taxes or
fees that may be applicable to Tenant's activities. Tenant shall perform all
such work in a good, safe and workmanlike manner, in compliance with all laws
and regulations thereto, and shall diligently pursue any required investigation
and remedial activity until Tenant is allowed to terminate these activities by
those Government Authorities having jurisdiction.
(d) Tenant shall conduct any testing, monitoring, reporting and
remedial activities in connection with the Premises in a good, safe and
workmanlike manner, and in compliance with all laws and regulations applicable
thereto. Tenant shall promptly provide Landlord with copies of any testing
results and reports that are generated in connection with Tenant's activities
and that are submitted to any Government Authority.
(e) Tenant shall indemnify, hold harmless, and defend Landlord, its
officers, members, employees and agents (collectively "Indemnitees") against all
claims, demands, losses, liabilities, costs and expenses, including attorneys'
fees, (collectively "Liabilities") imposed upon or accruing against Indemnitees
as actual and direct costs of investigatory or remedial action required by any
Government Authority having jurisdiction or as damages to third persons for
personal injury or property damage arising from the existence of Hazardous
Material or Hazardous Waste referred to in subparagraph (c). Such Liabilities
shall include, without limitation: (i) injury or death to any person, (ii)
damage to or loss of use of any other property, (iii) the cost of any demolition
and rebuilding of the improvements containing the Premises, repair, or
remediation and the preparation of any closure or other activity required by any
Governmental Authority, (iv) any lawsuit brought or
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threatened, good faith settlement reached, or governmental order relating to the
presence, disposal, release or threatened release of any Hazardous Material or
Hazardous Waste referred to in subparagraph (c), on, from or under the land and
building containing the Premises and (v) the imposition of any liens on the land
and building containing the Premises arising from Tenant's activities on or
about the Premises or from the existence of Hazardous Material or Hazardous
Waste referred to in subparagraph (c).
(f) Tenant shall have no responsibility for Hazardous Waste or
Hazardous Materials existing on the Premises or in, on or under the Property on
the date that Tenant first takes occupancy of the Premises, except that Tenant
shall be responsible for any costs and expenses incurred by or assessed against
Landlord which result from Tenant's activities during the tenancy of Tenant.
(g) Tenant shall use its best efforts (including payment of money)
not to cause or suffer any lien to be recorded against the land and building
containing the Premises as a consequence of, or in any way related to, the
presence, remediation or disposal of Hazardous Material or Hazardous Waste in or
about the Premises by Tenant, its agents, employees and invitees, including any
mechanics' liens and any so-called state, federal or local "superfund" lien
relating to such matters.
(h) Landlord hereby advises Tenant that to the best of its
knowledge, the Building and the Premises are in compliance with applicable law
with respect to hazardous materials. The Landlord shall be responsible for costs
incurred (including without limitation amounts paid pursuant to penalties,
fines, orders), arising out of any claim male by Federal, State or local
agencies or departments or private litigants or third parties with respect to
violations or alleged violations of environmental or health laws, rules,
regulations, orders or common law, provided such violations or alleged
violations are not caused by Tenant's use of the Premises.
Section 27. Americans With Disabilities Act. Landlord warrants that upon
the Commencement Date, the common areas will comply with all applicable
statutes, codes, and regulations including the ADA (as defined below) and OSHA.
After the Commencement Date, Tenant shall comply with the Americans with
Disabilities Act of 1990 ("ADA") and the regulations promulgated thereunder as
to the Premises. Tenant hereby expressly assumes all responsibility for
compliance with the ADA relating to the Premises and the activities conducted by
Tenant within the Premises. Any alterations to the premises made by Tenant for
the purpose of complying with the ADA or which otherwise require compliance with
the ADA shall be done in accordance with this Lease; provided, that Landlord's
consent to such alterations shall not constitute either Landlord's assumption in
whole or in part, of Tenant's responsibility for compliance with the ADA, or
representation or confirmation by Landlord that such alterations comply with the
provisions of the ADA.
Section 28. Default. In the event (i) any installment of rent or
additional rent shall not be paid within ten (10) days after written notice from
Landlord that the same was not received by the due date; or (ii) Tenant defaults
in the performance or observance of any other covenant or condition in this
Lease and such default remains unremedied for fifteen (15) business days after
written notice thereof has been given to the Tenant by the Landlord, or such
longer period of time (not exceed
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ninety (90) days) if such defaults cannot be cured within said fifteen (15) day
period, provided Tenant takes steps to cure such defaults within said fifteen
(15) day period and is diligently proceeding in good faith to effect same; or
(iii) Tenant makes an assignment for the benefit of creditors, files a voluntary
petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions or
applies to any tribunal for any receiver or any trustee of or for Tenant of any
substantial part of its property, commences any proceeding relating to Tenant or
any substantial part of its property under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, or there is commenced against
Tenant any such proceeding which remains undismissed for a period of ninety (90)
days, or any order approving the petition in any such proceeding is entered, or
Tenant by any act indicates its consent to, or acquiescence in any such
proceeding or the appointment of any receiver of or trustee for Tenant of any
substantial part of its property, or suffers any such receivership or
trusteeship to continue undischarged for a period of ninety (90) days, then in
any of such events, Landlord may immediately or at any time thereafter and
without demand terminate this Lease by written notice to Tenant thereof or,
without demand or notice enter upon the Premises or any part thereof in the name
of the whole and repossess the same as of Landlord's former estate and expel
Tenant and those claiming through or under Tenant and remove their effects in
accordance with law, without being deemed guilty of any manner of trespass and
without prejudice to any remedies which might otherwise be used for arrears of
rent or preceding breach of covenant. Upon such termination notice or entry this
Lease shall terminate, and Tenant covenants that, in case of such termination by
reason of the default of Tenant, Tenant shall remain and continue liable to
Landlord in an amount equal to the total rent reserved for the balance of the
term hereof plus all additional rent reserved for the balance of the term hereof
less the net amounts (after deducting the expenses of repair, renovation or
demolition and attorneys fees and leasing commissions) which Landlord realizes
from the reletting of the Premises subject to Landlord's obligation to use
commercially reasonable efforts to mitigate its damages. As used in this
Section, the term "additional rent" means the obligations of Tenant under
Section 4 and the value of all considerations other than rent agreed to be paid
or performed by Tenant hereunder, including, without limiting the generality of
the foregoing, taxes, assessments and insurance premiums. Landlord shall make a
reasonable effort to mitigate such damages under the default and shall have the
right from time to time to relet the Premises upon such terms as it may deem
fit, and if a sufficient sum shall not be thus realized to yield the net rent
required under this Lease, Tenant agrees to satisfy and pay all deficiencies as
they may become due during each month of the remaining term of this Lease.
Nothing herein contained shall be deemed to require Landlord to await the date
whereon this Lease, or the term hereof, would have expired had there been no
default by Tenant, or no such termination or cancellation. Tenant expressly
waives service of any notice of intention to reenter and waives any and all
right to recover or regain possession of the Premises, or to reinstate or redeem
this Lease as may be permitted or provided for by or under any statute or law
now or hereafter in force and effect. The rights and remedies given to Landlord
in this Lease are distinct, separate and cumulative remedies, and no one of
them, whether or not exercised by Landlord, shall be deemed to be in exclusion
of any of the others herein or by law or equity provided. Nothing contained in
this Section shall limit or prejudice the right of Landlord to prove and obtain,
in proceedings involving the bankruptcy or insolvency of, or a composition with
creditors by, Tenant the maximum allowed by any statute or rule of law at the
time in effect.
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Section 29. Expense Reimbursement. In addition to any other remedies
Landlord may have at law or equity and/or under the Lease, Tenant shall pay upon
demand all of Landlord's reasonable costs, charges and expenses, including
reasonable attorney fees and court costs, incurred in connection with the
successful recovery of sums due under this Lease, or the successful enforcement
of any provisions of this Lease.
Section 30. Access to Premises. After the Commencement Date and during the
Lease Term, the Tenant shall have access to the Premises twenty-four (24) hours
per day, seven (7) days per week. Landlord or its representatives shall have
free access to the Premises at reasonable intervals during normal business hours
upon at least twenty-four (24) hours prior oral notice to Tenant (except in the
case of an emergency where no notice is required) for the purpose of inspection,
or for the purpose of showing the Premises to prospective purchasers or Tenants,
or for the purpose of making repairs which Landlord is obligated to make
hereunder or which Tenant is obligated to make hereunder but has failed or
refused to make. The preceding sentence does not impose upon Landlord any
obligation to make repairs. Landlord also reserves the right to alter, change,
close or limit access to any portion of the common areas on the Property or to
designate portions of such common areas for use by a single Tenant of the
Property and agrees to use commercially reasonable efforts to avoid or minimize
any adverse impact on Tenant's access to the Premises or interference with
Tenant's business.
Section 31. Holding Over. Except for mutual consent by Landlord and
Tenant, any holding over by Tenant after the expiration of the term of this
Lease shall be treated as a month-to-month tenancy at a rate equal to one
hundred fifty percent (150%) of the rent and additional rent herein provided
(prorated on a monthly basis) and shall otherwise be on the terms and conditions
set forth in this Lease as far as applicable.
Section 32. Notices. Any written notice, request or demand required or
permitted by this Lease shall be in writing (except as provided in Section 30
hereinabove), until either party shall notify the other in writing of a
different address, be properly given if sent by certified or registered first
class mail, postage prepaid, return receipt requested, or by prepaid overnight
delivery service, or telegram (with messenger delivery specified) and shall be
deemed given on the day that such writing is received by the party to whom it is
sent, and addressed (if notice is given by mail) as follows:
If to Landlord: With a copy to:
One Hundred Twenty Bartlett Bernstein, Shur, Sawyer & Nelson
Street Marlborough LLC 100 Middle Street
121 Middle Street, Suite 400 P.O. Box 9729
Portland, Maine 04101 Portland, Maine 04104-5029
Attn: Howard A. Goldenfarb, Manager Attn: Charles E. Miller, Esquire
Facsimile: 207-774-1127
If to Tenant:
Evergreen Solar Incorporated
259 Cedar Hill Street
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Marlborough, MA 01752
Attn: Richard G. Chleboski
Facsimile: (508) 357-2279
Section 33. Succession. This Lease shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and assigns of the
parties hereto. This section shall not be construed to give Tenant the right to
assign this Lease, which shall be governed, by section 18.
Section 34. Waiver. Any consent, expressed or implied, by either party to
any breach by the other party of any covenant or condition of this Lease shall
not constitute a waiver of any prior or succeeding breach of the same or any
other covenant or condition of this Lease. Acceptance by Landlord of rent or
other payment with knowledge of a breach of or default under any term hereof by
Tenant shall not constitute a waiver by Landlord of such breach or default. This
Lease shall not be modified or canceled except by writing executed by Landlord
and Tenant.
Section 35. No Representations. No representations of any kind or nature
concerning the Premises or any part thereof not contained herein have been made
to Tenant either before or at the time of the execution of this Lease.
Landlord does hereby represent that (i) title to the Property is vested
in Landlord, and (ii) Landlord has the power and authority to enter into this
Lease and perform the obligations of Landlord hereunder, and this Lease and all
other documents executed and delivered by Landlord constitute legal, valid,
binding and enforceable obligations of Landlord, and there are no claims of
defenses, personal or otherwise, or offsets whatsoever to the enforceability or
validity of this Lease.
Section 36. Brokerage. The parties represent and warrant to each other
that they had no contact with any real estate broker, salesman or finder in
connection with the transaction resulting in this Lease other than CRESA
Partners and Hughes Properties, Inc. Landlord shall compensate Hughes
Properties, Inc. pursuant to its commission agreement and shall also pay CRESA
Partners with one (1) full commission in the event that a lease is signed and
Landlord closes on the property of which the Premises are a portion. CRESA
Partners fee schedule equals 6% of the first year's net rent and 3% of the net
rent for each subsequent year for the remainder of this initial term plus an
additional $10,000 fee as per verbal agreement. In addition, Landlord shall pay
CRESA Partners three percent (3.0%) of the net rent associated with any
expansion of the Leased Premises or extensions of the term of this Lease,
provided CRESA Partners is at that time representing Tenant. One-half of the fee
shall be due on Lease (or Lease Amendment or Extension as applicable) signing
and the balance shall be due upon Tenant's occupancy. Tenant shall indemnify and
hold Landlord harmless from any claims by parties other than Hughes Properties,
Inc. and CRESA Partners for commissions due with respect to this Lease arising
out of dealings with the Tenant, such indemnification to include attorneys' fees
and incurred in connection with defending any such claims.
Section 37. Governing Law. This Lease shall be construed and interpreted
in accordance with the laws of the Commonwealth of Massachusetts.
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Section 38. Jury Trial Waiver. NOTWITHSTANDING ANYTHING IN THIS LEASE TO
THE CONTRARY, TENANT, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS HEREBY
KNOWINGLY, WILLINGLY, AND VOLUNTARILY WAIVES ANY AND ALL RIGHTS TENANT MAY HAVE
TO A TRIAL BY JURY IN ANY EVICTION ACTION OR ANY OTHER PROCEEDING BROUGHT BY
LANDLORD, OR LANDLORD'S SUCCESSORS AND/OR ASSIGNS BASED UPON OR RELATED TO THE
PROVISIONS OF THIS LEASE.
Section 39. Force Majeure. Except as otherwise provided herein, in any
case in which either parity hereto is required to perform any act (except for
the payment of Rent and other charges by Tenant), the time for performance
thereof shall be extended by a period equal to any delay caused by or resulting
from act of God, strike, lockout, breakdown, accident, order or regulation of or
by any governmental authority, or failure of supply, or inability by the
exercise of reasonable diligence to obtain supplies, parts or employees
necessary to furnish such services, or perform such obligations or because of
war or other emergency, or for any cause beyond such obligated party's
reasonable control, whether such time be designated by a fixed date, a fixed
time or a "reasonable time". The party claiming a justifiable delay shall
promptly notify the other party of the cause of the delay and shall use
diligence to eliminate the cause of the delay, and shall complete such
unfulfilled obligation as soon as reasonably possible after the cause of the
delay has been eliminated.
Section 40. Invalidity of Particular Provisions. If any term or provisions
of this Lease or the application thereof to any person or circumstance shall, to
any extent, be held to be invalid or unenforceable, the remainder of this Lease,
or the application of such terms or provisions to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
Section 41. Recording. Tenant agrees not to record the within Lease, but
each party hereto agrees, on the request of the other, to execute a so-called
memorandum of lease or short form lease. In no event shall such document set
forth the rent or other charges payable by Tenant under this Lease; and any such
document shall expressly state that it is executed pursuant to the provisions
contained in this Lease and is not intended to vary the terms and conditions of
this Lease.
Section 42. Status Report. Recognizing that Landlord may find it necessary
to establish to third parties, such as accountants, banks, mortgagees or the
like, the then current status of performance hereunder, Tenant, on the request
of Landlord made from time to time, will within ten (10) days furnish to
Landlord, or the holder of any mortgage encumbering the Premises, as the case
may be, a statement of the status of any matter pertaining to this Lease,
including without limitation, acknowledgments that (or the extent to which) each
party is in compliance with its obligations under the terms of this Lease.
Section 43. When Lease Becomes Binding. Employees or agents of Landlord
have no authority to make or agree to make a lease or any other agreement. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations, and understandings between Landlord and Tenant are incorporated
herein and may be modified or
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altered only by agreement in writing between Landlord and Tenant, and no act or
omission of any employee or agent of Landlord or Tenant shall alter, change, or
modify any of the provisions hereof. All rights, obligations and liabilities
herein given to, or imposed upon, the respective parties hereto shall extend to
and bind the several respective heirs, executors, administrators, trustees,
receivers, legal representatives, successors and assigns of the said parties;
and if there shall be more than one landlord or tenant, they shall all be bound
jointly and severally by the terms, covenants and agreements herein. No rights,
however, shall inure to the benefit of any assignee, legal representative,
trustee, receiver, legatee or ocher personal representative of Tenant unless the
assignment to such party has been approved by Landlord in writing, as provided
in Section 16 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed and delivered as of the day and year first above written.
WITNESS: ONE HUNDRED TWENTY BARTLETT STREET
MARLBOROUGH, LLC (Landlord)
By: Ram Management Co., Inc, its Manager
/s/ Kimberly J. Hayes By: /s/ Howard A. Goldenfarb
-------------------------- -------------------------------------------
Name: Howard A. Goldenfarb
President of Ram Management Co., Inc.
/s/ Kimberly J. Hayes By: /s/ Denine Leeman
-------------------------- -------------------------------------------
Name: Denine Leeman
Treasurer of Ram Management Co., Inc.
EVERGREEN SOLAR, INCORPORATED (Tenant)
/s/ Randy Rotermund By: /s/ Richard G. Chleboski
-------------------------- -------------------------------------------
Name: Richard G. Chleboski
Its: Vice President
Thereto duly authorized
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EXHIBIT A
DEPICTION OF PREMISES
[OMMITTED]
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EXHIBIT A-1
DESCRIPTION OF THE PROPERTY
A certain parcel of land with the building thereon situated partly in
Marlborough, Middlesex County, Commonwealth of Massachusetts and partly in
Northborough, Worcester County, said Commonwealth, being shown as Parcel 1 on
plan entitled "Plan of Land in Marlborough and Northborough, Mass., Owned By:
Charles Butcher", dated February 14, 1984, by GLM Engineering Consultants, Inc.,
recorded in the Middlesex County District Registry of Deeds, Book 15522, Page
185, bounded and described as follows:
NORTHEASTERLY: by land now or formerly of Standard Tube Sales Corp., 208.55 feet;
NORTHERLY: by said Standard Tube Sales Corp. land, by two lines measuring respectively
135.35 feet and 67.66;
EASTERLY: by Parcel 2 on the said Plan, 746.84 feet;
SOUTHERLY: Cedar Hill Street, by three lines measuring respectively 338.15 feet, 88.21
feet, and 479.79 feet;
SOUTHERLY: by the intersection of Cedar Hill Street and Bartlett Street by a curved line
with a radius of 42.87 feet, 94.64 feet; and
NORTHWESTERLY: by Bartlett Street by four lines measuring respectively 109.84 feet, 118.05
feet, 365.79 feet and 240.51 feet.
Also shown as Parcels lA and 1B on a plan entitled "Plan of Land in Marlborough
and Northborough, Mass., Owned by: Charles Butcher", dated January 10, 1989,
prepared by GLM Engineering Consultants, Inc. and recorded in the Middlesex
South District Registry of Deeds as Plan no. 451 of 1989 in Book 19791, Page 90.
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EXHIBIT B
SPECIFICATIONS FOR LANDLORD'S WORK
Landlord shall perform the following work in accordance with the specifications
delineated below, Tenant's desired space layout attached hereto as Exhibit A and
the detailed construction plans to be prepared by Landlord's architect (which
plans shall conform to the provisions of Exhibits A and B and shall be subject
to the approval of Tenant, which shall not be unreasonably withheld, conditioned
or delayed) ("Landlord's Work") and employing construction workmanship and
materials and equipment standards which are consistent with the detailed
construction plans.
Landlord shall use diligent efforts to achieve Substantial Completion of
Landlord's Work as specified in Section l of the Lease. Said construction period
will be extended as necessitated by any change orders issued during
construction, by any delays caused by Tenant, and by delays caused by force
majeure.
Warehouse Space. Landlord, at its, expense, shall demise the existing non
air-conditioned 18,975 square foot Warehouse Space with separately metered
utilities, a set of ADA compliant men's and women's lavatories (in a mutually
agreed upon location), an office space (in a mutually agreed upon location),
suspended gas fired unit heaters, high bay metal halide lighting fixtures, three
(3) existing loading docks at tailboard height (door height to be increased from
8' to 10'), one (1) existing overhead door at drive-in grade level, a battery
recharge electric service, two (2) dedicated electrical circuits with 4 duplex
receptacles located near the truck dock area for refrigeration units, and the
existing projections/bumps in the concrete floor being ground down to provide a
level floor where required. Tenant shall be responsible for all other
prep/sanding/polyurethane scaling work on the floor.
Office Space. With respect to the 4,864 square foot Office Space, Landlord, at
its expense, shall re-carpet the entire space, re-paint all non split-rib block
areas in the space, and provide the following building standard office buildout
(as shown on Exhibit A): Seventeen (17) private offices (of various sizes) with
flush face solid core painted wood ply doors with appropriate hardware; one (1)
conference room - approximately 11' x 20'; one (1) kitchen/break room to include
a stainless steel sink, base cabinets, countertop and wall cabinets; one (1)
copier/supply room - approximately 9' x 9'; one (1) storage area - approximately
12' x 8'; and one (1) server/file area - approximately 18' x 6'.
Landlord shall include a telecommunication closet pursuant to the approved
layout.
The Landlord will amortize the cost of any additional Tenant Improvements that
are constructed by Landlord, specifically as they relate to new and customized
overhead doors, dock levelers and seals, over the term of the Lease.
At the Landlord's expense, all architectural and space planning services shall
be provided and controlled by the Landlord with Tenant's reasonable input.
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All materials and equipment for the Landlord's Work shall be new unless
otherwise agreed by Landlord and Tenant in writing. All work shall be completed
in a workmanlike manner and in compliance with applicable laws.
All amounts for change orders request by Tenant shall be at Tenant's expenses,
payable within thirty (30) days after invoice, and shall be considered
additional rent. If any change orders are a result of Landlord's work, latent
defects, or code violations, then all such cost for related change orders shall
be solely the Landlord's expense.
Landlord shall conduct the Landlord's Work and oversee payment of all
contractors and subcontractors. Such payments shall be made upon receipt of
invoices, lien waivers and other appropriate documentation to confirm
satisfactory completion of the applicable work in accordance with the Landlord's
contractor's construction/payment schedule.
Landlord agrees to provide to Tenant with a one year warranty for the Landlord's
Work. Landlord also hereby agrees to pass through to Tenant any warranties
provided by manufacturers and/or distributors of equipment installed at the
Premises in connection with the Landlord's Work.
The build out shall be consistent with the approved layout and Plans and
Specifications.
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