Rhode Island-Warwick-30 Plan Way Lease - CRE Corp. and Zebra Technologies Corp.
LEASE
THIS LEASE is made as of the 30 day of June, 2000, by and between CRE
CORPORATION, a Rhode Island corporation ("Landlord") and ZEBRA TECHNOLOGIES
CORPORATION, a Delaware corporation ("Tenant").
W I T N E S S E T H T H A T:
1. PREMISES AND TERM.
1.1 Landlord hereby demises and leases to Tenant and Tenant hereby
hires and takes from Landlord that certain lot or parcel situated at 30 Plan
Way, Warwick, Rhode Island containing approximately 7.309 acres (the "Land") and
more fully described in Exhibit A attached hereto, together with a certain
building containing by agreement 98,727 sq. ft. (the "Building") and all other
improvements (including all parking areas, driveways and sidewalks) now located
or hereafter erected on the Land. (Said Land, Building and other improvements
are hereinafter collectively called the "Demised Premises").
TO HAVE AND TO HOLD the Demised Premises, together with all rights,
privileges, easements and appurtenances thereunto belonging and attaching, unto
Tenant for a term (the "Initial Term") (the Initial Term, including any
extensions thereof, are sometimes hereinafter called the "Term") commencing on
the date hereof (the "Commencement Date") and ending on April 2, 2003 (the
"Expiration Date") unless sooner terminated or extended as herein provided. This
Lease is made upon the covenants and agreements hereinafter set forth with which
the parties respectively agree to observe and comply during the Term.
1.2 So long as no Event of Default (as hereinafter defined) shall have
occurred and be continuing, Tenant shall have the right to extend the Term for
five additional periods of two (2) years each (each, an "Extended Term" and
collectively, "Extended Terms"), the first Extended Term beginning on April 3,
2003 and continuing through April 2, 2005 and each successive Extended Term
having a term as provided in Section 2.1 below. Each Extended Term shall be on
the same terms and conditions as are contained herein, except that there shall
be one (1) less Extended Term remaining each time Tenant extends the Term and
Rent during each Extended Term shall be as provided in Section 2.1. Tenant shall
exercise each such right to extend by giving notice thereof to Landlord not
later than April 2 of the year that is three hundred sixty-five (365) days prior
to the commencement of the next such Extended Term (the "Renewal Notice Date").
2. RENTAL.
2.1 During the Term, Tenant shall pay to Landlord annual rent ("Rent")
as follows:
a) during the Initial Term (e.g., Commencement Date -
April 2, 2003) at the rate of $4.60 per square foot
payable in equal monthly installments of $37,845.35;
b) during the first Extended Term (e.g., April 3, 2003 -
April 2, 2005), at the rate of $4.72 per square foot
payable in equal monthly installments of $38,832.62;
c) during the second Extended Term (e.g., April 3, 2005
- April 2, 2007), at the rate of $4.84 per square
foot payable in equal monthly installments of
$39,819.89;
d) during the third Extended Term (e.g., April 3, 2007 -
April 2, 2009), at the rate of $4.96 per square foot
payable in equal monthly installments of $40,807.16;
e) during the fourth Extended Term (e.g., April 3, 2009
- April 2, 2011), at the rate of $5.08 per square
foot payable in equal monthly installments of
$41,794.43; and
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f) during the fifth Extended Term (e.g., April 3, 2011 -
April 2, 2013), at the rate of $5.21 per square foot
payable in equal monthly installments of $42,863.97.
2.2 Rent shall be payable monthly in advance on the first day of the
Term and continuing on or before the first business day of each month
thereafter. If the Term commences or terminates on a day other than the first
day of a month, Rent payable for such month will be prorated on a daily basis.
Tenant covenants and agrees with Landlord to pay the Rent at the time and in the
manner as aforesaid by checks or drafts payable to Landlord at such place as
Landlord may direct to Tenant in writing.
3. UTILITIES AND OTHER CHARGES.
From and after the Commencement Date, Tenant will pay directly before
the same become delinquent, as additional rent, all amounts attributable to
electricity, gas, refuse collection, telephone, sewage disposal, water or any
other utilities or services rendered to the Demised Premises or any connection
or meters therefor, whether assessed to, or payable by, Landlord or Tenant. To
the extent possible, all such utilities shall be in Tenant's name and billed
directly to Tenant and such bills will be paid by Tenant in accordance with
their terms. Landlord will promptly forward to Tenant any bills or statements
delivered to Landlord with respect to the foregoing. Tenant will, within thirty
(30) days after written demand by Landlord, furnish Landlord with receipts or
other evidence indicating that all such amounts have been paid.
4. TAXES AND ASSESSMENTS.
Upon receipt of any tax or assessment bill, Landlord shall promptly
forward the same to Tenant. As additional rent, Tenant will pay directly to the
applicable taxing authority promptly, all real and personal property taxes to
which the Demised Premises or any part thereof or the rents therefrom (excluding
any taxes based upon Landlord's income), are now or may during the Term be
assessed or become liable, whether assessed to or payable by Landlord or Tenant
and Tenant shall provide evidence of such payment to Landlord; PROVIDED,
HOWEVER, that (a) with respect to any assessment made under any betterment or
improvement law which may be payable in installments, Tenant shall be required
to pay only such installments as shall become due and payable during the Term or
for any part thereof, and (b) current real property taxes, levies, assessments
and other governmental charges shall be prorated between Landlord and Tenant as
of the dates of commencement and expiration of the Term based on actual taxes
owed for the prorated period. Tenant may, at its expense, and in the name of
Landlord, contest the amount of any such taxes, levies, assessments or other
governmental charges by appropriate administrative or judicial proceeding
provided that prior to commencing any such proceeding Tenant shall have
demonstrated, to the reasonable satisfaction of Landlord, Tenant's ability to
pay in full the amount of such contested tax, levy, assessment or charge.
5. COMPLIANCE WITH LAWS AND REGULATIONS.
5.1 Tenant shall use the Demised Premises for office, manufacturing
research and development and any other lawfully permitted uses (the "Permitted
Use").
5.2 Tenant will at all times during the Term keep the Demised Premises
in good order and condition and, subject to the terms of Section 10 hereof,
observe and perform in all material respects all laws, ordinances, orders, rules
and regulations now or hereafter made by any governmental authority for the time
being applicable to the Demised Premises or any improvement thereon or use
thereof.
6. INSPECTION.
Tenant will permit Landlord and its agents to enter the Demised
Premises, at reasonable times and provided that such entry shall not interfere
with Tenant's operations at the Demised Premises, during the Term in order to
examine the state of repair and condition thereof and the use being made of the
same and to show the
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Demised Premises to mortgagees and prospective purchasers
and, within six (6) months of the expiration of the Term (if Tenant has not
previously extended the Term as provided in Section 1.2) to prospective
purchasers or tenants provided that Landlord shall give Tenant not less than
forty eight (48) hours notice of such entry, except in the case of emergency,
when no such notice shall be required. Tenant shall have the right to accompany
Landlord on any such entry.
7. WASTE AND UNLAWFUL USE.
Tenant will not make or knowingly permit any waste or unlawful,
improper or offensive use of the Demised Premises. Tenant shall use the Demised
Premises solely for the Permitted Use.
8. ASSIGNMENT AND SUBLETTING.
Tenant will not assign, mortgage, pledge or encumber this Lease or
sublet all or any portion of the Demised Premises, or otherwise transfer any
interest herein, without the prior written consent of Landlord in every case,
which consent shall not be unreasonably withheld, delayed, or conditioned.
Notwithstanding the foregoing, Tenant shall have the absolute right to assign
this Lease to any affiliate of Tenant or to any party acquiring all or
substantially all of either the stock or the assets of Tenant. Tenant shall also
have the right, without the prior written consent of Landlord, to collaterally
assign this Lease or grant a leasehold mortgage or deed of trust with respect to
the Lease to any institutional lender extending credit to Tenant. In connection
with any such financing, Landlord agrees to execute and deliver a landlord's
consent and waiver containing such terms as any such lender may reasonably
require, including, without limitation, a waiver of any liens on the personal
property of Tenant and an undertaking by Landlord to recognize any such lender
as the tenant under this Lease in the event that such lender succeeds to the
rights of Tenant hereunder. Any financing of the Lease or any assignment of the
Lease shall be subject to and subordinate to the leasehold estate created by
this Lease. Notwithstanding any assignment of this Lease by Tenant, Tenant shall
not be relieved from any obligations of Tenant hereunder.
9. ALTERATIONS, CHANGES AND IMPROVEMENTS.
9.1 Tenant shall not make any alterations, changes or improvements to
the structural elements or the exterior of the Building or construct any
additions or improvements to the Building or erect any new building, without the
prior written consent of Landlord in every case, which consent shall not be
unreasonably withheld, delayed or conditioned, except as otherwise provided
herein. In seeking such consent, Tenant shall advise Landlord as to whether (a)
Tenant proposes to remove such alterations, changes or improvements at the
expiration of the Term or (b) leave the same in the Demised Premises, whereupon
the same shall become the property of Landlord upon the expiration of the Term,
and such consent, if granted by Landlord, shall be upon such condition that
Tenant either so remove or leave such alterations, changes or improvements, as
the case may be, pursuant to Tenant's request for such consent, upon the
expiration of the Term. Notwithstanding the foregoing, Tenant may from time to
time make non-structural alterations, changes or improvements to the Demised
Premises provided that the aggregate cost of such alterations, changes or
improvements does not exceed the amount of $100,000 in any one calendar year.
9.2 Nothing contained in this Section 10 shall prohibit Tenant from
installing, using and removing personal property used in the conduct of Tenant's
business provided Tenant otherwise complies with its obligations hereunder and
provided that the installation, use and removal does not damage the Demised
Premises such that the Demised Premises are either materially impaired or cannot
be restored by Tenant at the expiration of the Term, reasonable wear and tear
excepted.
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10. MAINTENANCE AND REPAIRS.
10.1 Landlord shall, at its own expense, from time to time and at all
times during the Term, maintain, repair and keep the roof and all structural and
mechanical components of the Building (including but not limited to the heating,
ventilation and air-conditioning, electrical and plumbing systems) in good
repair and condition and shall maintain the parking lot in accordance with
normal maintenance standards except to the extent that any such maintenance and
repair shall occur as a result of the gross negligence or intentional act of
Tenant or its employees, agents or invitees.
10.2 Tenant shall, at its own expense (except for maintenance and
repair by Landlord as provided in Section 10.1), from time to time and at all
times during the Term, repair, replace, maintain and keep the Demised Premises
in as good condition in all respects as the same were at the commencement of
this Lease, reasonable wear and tear and casualty not intentionally caused by
Tenant or its employees, agents or invitees against which insurance is not
required hereunder excepted. In this regard, it shall be the obligation of
Tenant to provide ordinary and routine maintenance of the Demised Premises,
including ordinary and routine maintenance of the mechanical systems in the
Building, notwithstanding the obligations of Landlord set forth in Section 10.1.
Ordinary and routine maintenance and repair shall mean maintenance and repair
expenses which would not be capitalized under generally accepted accounting
practices.
11. INSURANCE; CASUALTY.
11.1 Landlord shall maintain, throughout the Term, policies of
insurance covering damage to the Demised Premises, excluding Tenant's fixtures,
or equipment, in the amount of the full replacement value thereof, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, "all risk" and fire sprinkler
leakage insurance. Landlord shall furnish Tenant, upon written demand therefor,
a copy of such policies or a certificate evidencing such insurance.
11.2 Tenant will, at its own cost and expense, obtain and maintain
during the Term hereof, a policy or policies of comprehensive general liability
insurance, or its equivalent, with minimum limits of not less than Five Million
Dollars ($5,000,000) for death or injury per occurrence and in the aggregate and
Two Million Dollars ($2,000,000) for property damage per occurrence and in the
aggregate. Such policy or policies shall be issued by companies having a Best's
rating of not less than A, shall name Landlord as additional insured, shall
require the insurer to give Landlord at least twenty (20) days' written notice
of its intention to cancel or terminate the insurance policy or policies and
shall cover the entire Demised Premises.
11.3 In case at any time during the Term a portion of the Demised
Premises shall be damaged by fire or other casualty which materially interferes
with the conduct of Tenant's business, then, at the option of Tenant, (a) the
proceeds of any insurance shall be used by Tenant to repair the Demised Premises
in accordance with the procedures set forth in Section 11.4 or (b) Tenant may
terminate this Lease in which case the estate and interest of Tenant in the
Demised Premises shall immediately terminate and Rent and additional rent
hereunder shall be adjusted as of the date of such casualty.
11.4 In case at any time or times during the Term, the Demised Premises
shall be damaged other than as described in Section 11.3 hereof, then the
proceeds of any insurance maintained hereunder for the Demised Premises (and not
for Tenant's property on or adjacent to the Demised Premises) shall be payable
to a mutually acceptable escrow agent for the joint account of Landlord and
Tenant, to be held by such escrow agent in trust, for the purpose of paying the
cost of the repair or replacement of the Demised Premises, to such extent as may
be necessary, and so far as sufficient for said purpose, and the same shall be
paid over promptly by such escrow agent, without hindrance or delay, to Tenant,
at such times as Tenant shall be obligated to make payments upon building
contracts for such repairs and upon certificates of the architect, if any, in
charge of such repairs, and in the absence of an architect, upon the furnishing
of receipted bills for all materials and labor used, it being understood and
agreed that, in the event of damage to any building or buildings or structure or
structures upon the Demised Premises by fire or other casualty Tenant will
proceed with all reasonable diligence to cause said building or buildings to be
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repaired in the manner herein provided, as soon as possible, to the condition
such property was in immediately prior to such damage. Any balance of insurance
in excess of the foregoing requirement shall be the property of Tenant and shall
be promptly paid over to Tenant by such escrow agent.
12. INDEMNIFICATION; CONDITION OF PREMISES; PERMITS.
12.1 Landlord shall indemnify and hold harmless Tenant (regardless of
Landlord's covenant to insure) against and from (a) any and all claims,
liabilities and damages of every nature arising from the use, occupancy or
conduct of Landlord in or about, the Demised Premises, (b) any and all claims,
liabilities and damages made or suffered by third parties (i) arising from any
breach or default on the part of Landlord in the performance of any covenant or
agreement of Landlord under this Lease, or (ii) arising from any act of Landlord
or any of its agents, contractors, servants, employees or licensees occurring
during the Term in or about the Demised Premises, and (c) all reasonable costs,
counsel fees, expenses or liabilities incurred in connection with any claim,
action or proceeding brought thereon.
12.2 Tenant shall indemnify and hold harmless Landlord (regardless of
Tenant's covenant to insure) against and from (a) any and all claims,
liabilities and damages of every nature arising from Tenant's use, occupancy or
conduct in or about, the Demised Premises, (b) any and all claims, liabilities
and damages made or suffered by third parties (i) arising from any breach or
default on the part of Tenant in the performance of any covenant or agreement of
Tenant under this Lease, or (ii) arising from any act of Tenant or any of its
agents, contractors, servants, employees or licensees occurring during the Term
in or about the Demised Premises and (c) all reasonable costs, counsel fees,
expenses or liabilities incurred in connection with any claim, action or
proceeding brought thereon.
12.3 At its own cost, Tenant shall obtain and maintain all permits,
licenses and other authorizations which are required with respect to its
business and the Demised Premises.
13. LIENS.
13.1 Tenant will not commit or suffer any act or neglect whereby the
Demised Premises or any improvements thereon or the estate of Landlord therein
shall at any time during the Term become subject as a result of Tenant's actions
to any attachment, judgment, lien, charge or encumbrance whatsoever and Tenant
will indemnify and hold Landlord harmless from and against all loss, costs and
expenses, including reasonable attorneys' fees, with respect thereto. The
foregoing sentence shall not apply to any attachment, judgment, lien, charge or
encumbrance filed in connection with work performed by, at the direction of, or
arising as a result of acts or omissions by, Landlord.
13.2 If any mechanic's laborer's or materialmen's liens shall at any
time be filed against the Demised Premises or any part hereof (in connection
with work performed by, or at the direction of, Tenant), Tenant, within thirty
(30) days after notice of the filing thereof, shall cause the same to be
discharged of record by payment, bonding or otherwise. Notwithstanding the
foregoing sentence, Tenant shall be entitled to contest or litigate any such
lien provided that prior to such contest or litigation Tenant shall have
demonstrated, to the reasonable satisfaction of Landlord, Tenant's ability to
pay in full such contested amount.
13.3 Nothing contained in this Lease shall be deemed or construed in
any way as constituting the consent or request of Landlord, express or implied
by inference or otherwise, to any contractor, subcontractor, laborer,
materialman, architect or engineer for the performance of any labor or the
furnishing of any materials or services for or in connection with the Demised
Premises or any part thereof. Notice is hereby given that Landlord shall not be
liable for any labor or materials or services furnished or to be furnished to
Tenant upon credit, and that no mechanic's or other lien for any such labor,
materials or services shall attach or affect the fee or reversionary or other
estate or interest of Landlord in the Demised Premises or in this Lease.
14. TENANT DEFAULT.
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14.1 The occurrence of any of the following events shall constitute an
Event of Default hereunder;
a. Tenant shall fail to pay any installment of Rent when due
and such failure shall continue for ten (10) days after written notice
from Landlord; PROVIDED, HOWEVER, that if Landlord is required to give
written notice of default more than two times during any twelve (12)
month period, Landlord shall thereafter no longer be required to
provide written notice;
b. Tenant shall fail to pay any additional rent or other
amounts due under this Lease when due and such failure shall continue
uncorrected for thirty (30) days after written notice from Landlord;
c. Tenant shall (i) apply for or consent to an appointment of
a receiver, a trustee or liquidator of it or all or a substantial part
of its assets; (ii) be unable or admit in writing its inability to pay
its debts as they mature; (iii) make a general assignment for the
benefit of creditors; (iv) be adjudicated a bankrupt or insolvent; (v)
file a voluntary petition in bankruptcy or a petition or an answer
seeking reorganization or an arrangement with creditors to take
advantage of any insolvency law or an answer admitting the material
allegations of a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding or corporate action shall be
taken by it for the purpose of effecting any of the foregoing, which is
not released within a period of thirty (30) days;
d. An order, judgment or decree shall be entered, without the
application, approval or consent of Tenant, by any court of competent
jurisdiction, approving a petition seeking reorganization of Tenant or
such assignee or appointing a receiver, trustee or liquidator of Tenant
or of all or a substantial part of its assets and such order, judgment
or decree shall continue unstayed and in effect for any period of
ninety (90) consecutive days;
e. The dissolution of Tenant, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld;
or
f. The failure of Tenant to observe or comply with any other
material condition or covenant hereof and such failure shall continue
uncorrected for thirty (30) days after written notice thereof from
Landlord. If such condition cannot reasonably be corrected with due
diligence within such period of thirty (30) days, such period shall be
extended to a period necessary to cure such default with all due
diligence.
14.2 Upon the occurrence of an Event of Default or at any time
thereafter, Landlord, at its option, and with or without process of law, shall
have the right to terminate this Lease and to enter upon the Demised Premises
and to expel Tenant and those claiming under Tenant, without being guilty of any
manner of trespass, and thereafter Landlord may peacefully and quietly hold and
enjoy the Demised Premises as if this Lease had not been made; without
prejudice, however, to any right of Landlord to sue for and recover any Rent,
additional rent and other amounts then due under this Lease; or to any claim for
damages or right of action, remedy or proceeding for breach of any covenant,
agreement or condition herein contained which Landlord might otherwise have or
use.
14.3 In case of entry and termination of this Lease as hereinabove
provided, Tenant will pay to Landlord as damages for the breach by Tenant of
this Lease a) the amount of Rent and additional rent provided for herein for the
remainder of the Term as such becomes due, plus b) the reasonable costs of
removal and storage of Tenant's personal property, plus c) the reasonable costs
of such re-letting, less the proceeds received by Landlord, if any, from the
re-letting of the Demised Premises. Landlord shall use reasonable efforts to
mitigate the loss and relet the Demised Premises in such event.
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14.4 Upon the occurrence of an Event of Default, and subject to the
provisions of applicable laws, this Lease will not, except at the option of
Landlord, continue for the benefit of any attaching creditor, assignee for the
benefit of creditors, permanent receiver, or trustee in bankruptcy.
14.5 In the event of any breach by Tenant of any of the covenants,
agreements, terms or conditions contained in this Lease, Landlord shall be
entitled, as a matter of right, to enjoin such breach.
15. CONDEMNATION.
15.1 In case at any time or times during the Term (a) all or
substantially all of the Demised Premises shall be taken or condemned by any
authority having the power of eminent domain, or, (b) as a result of any taking
or condemnation of any portion of the Demised Premises, there is a material
interference with the conduct of Tenant's business, then and in every such case,
this Lease shall terminate immediately and Rent and additional rent hereunder
shall be adjusted as of the date of such condemnation. Notwithstanding the
foregoing, Tenant shall be entitled to any award attributable to the value of
its leasehold improvements and to the cost of relocating its business but such
rights shall not in any way operate to reduce the award to which Landlord might
otherwise be entitled.
15.2 In case at any time or times during the Lease Term the Demised
Premises shall be taken or condemned other than as described in Section 15.1
hereof, then this Lease shall remain in full force and effect and Landlord
shall, to the extent of available condemnation proceeds, perform any restoration
work required to permit the continued use of the Demised Premises for the
Permitted Use. In such event, subject to the rights of the holder of any
mortgage, Landlord will receive all compensation and damages payable on account
of such taking (except compensation and damages, if any, attributable to
Tenant's leasehold improvements, which amounts shall belong to Tenant). In such
event, Rent payable hereunder shall be proportionately and equitably reduced to
reflect such taking.
16. ENVIRONMENTAL MATTERS.
16.1 Landlord represents and warrants to Tenant that, to the best of
the Landlord's knowledge, and there are no soil contamination conditions in, on
or under the real property underlying or surrounding the Land and Building, and
covenants that no asbestos or other hazardous materials have been used in
constructing the Building, or any improvements therein. Landlord agrees to
indemnify, defend and hold harmless Tenant, its affiliates, and their respective
officers, agents and employees, from and against any and all claims, damages,
costs, liabilities and/or fees and expenses (including the fees and expenses of
counsel, consultants and site investigations) resulting from any breach of
Landlord's representations, warranties or covenants contained in this Section
16.1, or from any soil contamination, toxic or hazardous substances, or other
health or environmental hazards in, on or under the Land and Building as of the
Commencement Date. It shall be a condition of Tenant's obligation to occupy the
Demised Premises that no discharge or release of hazardous materials shall have
occurred at the Land and Building prior to the date on which Tenant takes
occupancy of the Demised Premises.
16.2. Tenant represents and covenants that, in connection with its use
and occupancy of the Premises, no hazardous material (except customary products
used in the operations of Tenant) will be intentionally discharged, released,
disposed of, spilled or leaked by Tenant, its officers, agents or employees, in,
on or upon the Demised Premises, or surrounding real property, and that neither
Tenant, nor any of its officers, agents or employees, will bring in, on or
incorporate into the Demised Premises, any asbestos or other hazardous material.
Tenant agrees to indemnify, defend and hold harmless Landlord, its affiliates,
and their respective officers, agents and employees, from and against any and
all claims, damages, costs, liabilities and/or fees expenses, (including the
fees and expenses of counsel, consultants and site investigations) including
attorneys' fees and remediation or cleanup costs, resulting from any discharge,
release, disposal of, spill or leak (whether such discharge, release, disposal
of or spill or leak is intentional or unintentional) by Tenant, its officers,
agents or employees, in, on or upon the Demised Premises or surrounding real
property or any incorporation of asbestos or other hazardous material into the
Demised Premises.
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16.3. For purposes of this Lease, "hazardous materials" shall mean any
substance which is regulated under any federal or state law, regulation or rule
relating to the environment or the protection of human health and safety,
including, but not limited to the Resource Conservation and Recovery Act; the
Comprehensive Emergency Response, Compensation and Liability Act, as amended by
the Superfund Amendments and Reauthorization Act; the Toxic Substances Control
act; the Federal Insecticide, Fungicide, and Rodenticide Act; the Clean Air Act,
as amended, the Clean Water Act, as amended, and the Occupational Safety and
Health Act, as amended.
In the event any hazardous materials are present in the Demised
Premises and the same must be removed, abated or neutralized pursuant to
applicable laws and regulations, then, provided that the Tenant notifies the
Landlord in writing of such presence within sixty (60) days after its discovery
of such materials, such removal, abatement or neutralization shall be
accomplished at no cost or expense to the Tenant, unless such removal, abatement
or neutralization is required as a result of the Tenant or its contractors or
their respective employees or agents bringing or releasing such hazardous
materials onto the Demised Premises, in which event the Tenant shall be
responsible for such removal, abatement or neutralization. If, while the
Landlord is in the process of satisfying its requirement to remove, abate or
neutralize any hazardous materials as aforesaid, the Tenant shall be required to
close its operations in the Premises, then the Tenant shall be entitled to an
abatement of Base Rent and Additional Rent payable by the Tenant hereunder until
the date the Landlord shall complete such removal, abatement or neutralization
as aforesaid.
17. INDEPENDENT COVENANTS -NO WAIVER.
17.1 Each and every one of the covenants and agreements contained in
this Lease shall be for all purposes construed to be separate and independent
covenants and the waiver of the breach of any covenant contained herein by
Landlord shall in no way or manner discharge or relieve Tenant from Tenant's
obligation to perform each and every one of the covenants contained herein.
17.2 If any term or provision of this Lease or the application thereof
to any person or circumstance shall to any extent be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to any
person or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and shall be enforced to the fullest extent permitted
by law.
17.3 The failure of Landlord or Tenant, as the case may be, to insist
in any one or more cases upon the strict performance of any of the covenants of
this Lease shall not be construed as a waiver of a relinquishment for the future
of such covenant. A payment of Rent by Tenant or a receipt by Landlord of Rent,
additional rent or other amount with knowledge in either case of the breach of
any covenant hereof shall not be deemed a waiver of such breach, and no waiver
by Landlord or Tenant of any provision of this Lease shall be deemed to have
been made unless expressed in writing and signed by Landlord or Tenant, as the
case may be.
18. LANDLORD'S TITLE; SUBORDINATION.
18.1 Landlord represents and warrants to Tenant that Landlord is the
owner of the Demised Premises in fee simple and that the same are subject to
only those liens and encumbrances set forth on Exhibit B attached hereto.
Landlord further represents and warrants that all mortgagees have agreed (or
with respect to future mortgagees, will agree) in writing that to the extent
that they are the recipients of any insurance or condemnation proceeds pursuant
to Sections 11 and 15, they shall be bound to fulfill the Landlord's obligations
with respect thereto.
18.2 This Lease and the rights of Tenant hereunder are subject and
subordinate in all respects to all matters of record, including, without
limitation, all mortgages which may now or hereafter be placed on or affect the
Demised Premises, or any part thereof, and/or Landlord's interest or estate
therein, and to each advance made and/or hereafter to be made under any such
mortgages, and to all renewals, modifications, consolidations, replacements and
extensions thereof, and all substitutions therefor; PROVIDED, HOWEVER, that
before such subordination shall be effective as to any mortgage or any other
matter of record, Landlord shall cause the mortgagee, or other party in
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interest, as the case may be, to deliver to Tenant, in proper form for
recording, the agreement of such mortgagee or other party that (a) no
foreclosure of such mortgage or any other person claiming by or through or under
such mortgagee (or other interest) shall disturb the possession of Tenant under
this Lease so long as Tenant is not in default hereunder and (b) that the
validity and continuance of this Lease (including without limitation the
obligation of such mortgagee to allocate insurance and condemnation proceeds in
accordance with the provisions of Sections 11 and 15) will be recognized.
Concurrently with the delivery of such an agreement, Tenant agrees to execute
and deliver an instrument in proper form for recording, in which Tenant agrees
to and does subordinate this Lease to the liens of such mortgagees and other
matters, and to all renewals, modifications, consolidations and replacements and
extensions thereof, and to any persons claiming by, through or under such
mortgagees or other such persons interest. Tenant shall, at the written request
of Landlord, execute and deliver to any existing or future mortgagee a
certificate indicating whether any claims, defenses or offsets then exist
against Landlord, certifying that to the best of Tenant's knowledge, Landlord is
not in default hereunder and that this Lease is in full force and effect and
unmodified, except as specified in said certificate, indicating what rent has
been paid and agreeing that this Lease may not be modified without the consent
of such mortgagee, which consent shall not be unreasonably withheld or delayed.
19. RIGHT OF FIRST REFUSAL; CONVEYANCE OF LANDLORD.
19.1 In the event that Landlord desires to sell all or any portion of
the Demised Premises and receives a bona fide offer therefor (the "Offer"),
which Offer Landlord is prepared to accept, Landlord shall so notify Tenant in
writing. Each notice (the "Offeree Notice") shall set forth the identity and
mailing address of the prospective purchaser ("Prospective Purchaser"), the
portion of the Demised Premises proposed to be sold, the price to be received
therefor and the Landlord's Offer to sell the Demised Premises to Tenant. A copy
of the Offer from the Prospective Purchaser shall accompany such Offeree Notice.
Tenant shall thereupon be entitled for a period of fifteen (15) days after the
date of the Offeree Notice to purchase at the price and upon the terms set forth
in the Offeree Notice all or any portion of the Demised Premises. If Tenant
shall accept such Offer by written notice to Landlord within such time (such
notice specifying a closing date being the later of sixty (60) days from the
date thereof or the closing date specified in the Offer), such offer and
acceptance shall constitute a contract between them for the sale by Landlord and
the purchase by Tenant of the Demised Premises and shall not thereafter be
subject to rejection by either party.
19.2 If the Offer to sell is not so accepted by Tenant, Landlord may
thereafter sell the Demised Premises to such BONA FIDE third party purchaser on
the terms contained in the Offer. Any such sale and transfer must be consummated
within 180 days following the expiration of the time hereinabove provided for
the acceptance by Tenant. If the Demised Premises are sold to such third party,
the sale shall be subject to this Lease and all of the provisions hereof except
that this right of first refusal shall expire upon such conveyance.
19.3 Upon the date fixed for any purchase of the Demised Premises
hereunder, Tenant shall pay to Landlord the purchase therefor and Landlord shall
convey its interest in the Demised Premises to Tenant by quitclaim deed.
20. PRIOR NEGOTIATIONS.
This Lease (including all exhibits hereto) merges and supersedes all
prior negotiations, representations and agreements and constitutes the entire
contract between the parties hereto concerning the leasing of the Demised
Premises, the improvements thereon and the other matters provided for herein.
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21. QUIET ENJOYMENT.
Landlord covenants that Tenant, upon paying the Rent and performing the
covenants hereof on the part of Tenant to be performed shall and may peaceably
and quietly have, hold and enjoy the Demised Premises and all related
appurtenances, rights, privileges and easements throughout the term hereof
without any lawful hindrance by Landlord and any person claiming by, through or
under it.
22. RETURN OF PREMISES; HOLDOVER.
22.1 At the expiration or other termination of the Term, Tenant will
remove from the Demised Premises its property and that of all claiming under it
and will peaceably yield up to Landlord the Demised Premises in as good
condition in all respects as the same were at the commencement of this Lease,
except for ordinary wear and tear, damage by the elements, by any exercise of
the right of eminent domain or by any public or other authority, or damage not
caused by Tenant.
22.2 If Tenant remains in possession of the Demised Premises after the
expiration of the Term Tenant shall be deemed a holdover upon a month-to-month
tenancy subject, however, to all of the terms and conditions of this Lease
except as to the Term and except that monthly Rent shall be one and one half
(1.5) times that payable for the last month of the Term.
23. CONSTRUCTION.
The mention of the parties hereto by name or otherwise shall be
construed as including and referring to their respective successors and
permitted assigns as well as to the parties themselves whenever such
construction is required or admitted by the provisions hereof; and all
covenants, agreements, conditions, rights, powers and privileges hereinbefore
contained shall inure to the benefit of and be binding upon the successors and
assigns of such parties, unless otherwise provided.
24. SHORT FORM OF LEASE.
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At the request of either party, the other party shall duly execute and
acknowledge for recording purposes a short form of this Lease, which shall
recite the names of the parties, describe the Demised Premises, specify the
Term, and provide that this Lease is made upon the rents, terms, option to
purchase, mortgage limitation, non-disturbance and attornment, covenants and
conditions contained herein.
25. NOTICES.
Whenever notice shall be given under this Lease, the same shall be in
writing and shall be sent by certified or registered mail as follows:
To Landlord:
CRE Corporation
30 Plan Way
Warwick, Rhode Island
Attention: Mr. Robert Petteruti
with a copy by ordinary mail to:
Walter G.D. Reed, Esq.
Edwards & Angell, LLP
2800 BankBoston Plaza
Providence, Rhode Island 02903
To Tenant:
Zebra Technologies Corporation.
333 Corporate Woods Parkway
Vernon Hills, IL 60061
Attention:
with a copy by ordinary mail to:
Katten Muchin Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661
Attention: Matthew S. Brown, Esq.
or to such other address or addresses as each party may from time to time
designate by like notice to the other. Notices shall be deemed received two (2)
days following the date of mailing.
26. SUCCESSORS AND ASSIGNS.
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The words "Landlord" and "Tenant" shall include their respective heirs,
legal representatives, successors and assigns.
27. GOVERNING LAW.
This Lease shall be governed by the laws of the State of Rhode Island.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed by their duly authorized officer as of the day and year first above
written.
LANDLORD:
CRE CORPORATION
Witness: By:
------------------------ ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TENANT:
ZEBRA TECHNOLOGIES CORPORATION
Witness: By:
------------------------ ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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SCHEDULE AND EXHIBITS
Exhibit A Legal Description
Exhibit B Permitted Encumbrances
<PAGE>
EXHIBIT A
Legal Description
ALL THAT CERTAIN lot or parcel of land with all the buildings and
improvements thereon located in the City of Warwick, County of Kent, State of
Rhode Island, bounded and described as follows:
BEING designated as "Parcel B 7.309 AC." on that certain plan entitled,
"DIVISION OF LAND WARWICK RHODE ISLAND PREPARED FOR BURDENCE CORPORATION R.A.
CATALDO ENGINEERING 141 POWER ROAD PAWTUCKET, RI 02860 PROJECT NO. 90252 DATE:
10/22/93 SCALE: 1" - 100' Richard E. Danielson in Volume 2101 at Page 318 of the
Warwick Land Evidence Records. The original plan is filed in the map drawer of
the Warwick Land Evidence Records.
BEING further designated as a portion of Lot 4 on Plat 279 of the
Warwick tax assessor's plats as presently constituted, for further reference
only.
BEING a potion of the same premises conveyed to Burdence Corporation, a
Rhode Island corporation, by deed of GTECH Corporation, a Delaware corporation,
dated June 22, 1988 and recorded June 24, 1988 at 12:08 p.m. in Volume 1149 at
Page 133 of the Warwick Land Evidence Records.
SUBJECT to restrictions, easements and agreements of record.
<PAGE>
EXHIBIT B
Permitted Encumbrances
1. Building, zoning and subdivision ordinances, state and federal
regulations.
2. Sewer easement set forth in that certain instrument of record dated
April 22, 1963 and recorded in Volume 336 at Page 504 of the Warwick Land
Evidence Records.
3. Sewer easement set forth in that certain instrument of record dated
August 22, 1963 and recorded in Volume 338 at Page 194 of the Warwick Land
Evidence Records.
4. Slope easement granted to the City of Warwick by that certain
instrument of record dated September 30, 1964 and recorded in Volume 352 at Page
87 of the Warwick Land Evidence Records.
5. Easement to Narragansett Electric Company and New England Telephone
and Telegraph Company set forth in that certain instrument of record dated
October 1, 1969 and recorded in Volume 402 at Page 111 of the Warwick Land
Evidence Records.
6. Subject to existing utility easements of record and rights of
others, including the public, to use the subject premises to pass and repass on
foot and with vehicles of all kinds, between Service Avenue and Blackburn
Street, and right of utility companies to maintain gas, electric and water lines
now existing.
7. Any gas mains or water lines located within the northerly extension
of Blackburn Street.
8. Conditions of survey entitled, "MAP OF LAND IN WARWICK, R.I.
BELONGING TO HILLSGROVE - 95 INDUSTRIAL PARK CORP. SURVEYED BY JOSEPHY A.
MARRIER JR. APRIL 26, 1977 REVISED DECEMBER, 1984 MARRIER SURVEYING, INC. SCALE
1" - 80' " as follows: any matters occurring after December, 1984: a) 30 foot
sewer easement crossing the northwesterly portion of the premises. b) guy wires
attached to poles along Service Avenue and Plan Way as they cross said property.
Survey filed in 1-1-1642 of the Warwick Land Evidence Records.
9. Subject to the sewer easement along the northwesterly portion of the
premises, and a proposed 175' wide drainage easement along the easterly portion
of the premises, as reserved in the proposed deed from Burdence Corporation, a
Rhode Island corporation, and CRE CORPORATION, a Rhode Island corporation,
designated as Parcel B as set forth on that certain plan entitled, "DIVISION OF
LAND WARWICK RHODE ISLAND PREPARED FOR BURDENCE CORPORATION R.A. CATALDO
ENGINEERING" recorded in Volume 2102 at Page 318, and in the map drawer, of the
Warwick Land Evidence Records.