<PAGE>
THE FLATLEY COMPANY
STANDARD FORM OF INDUSTRIAL LEASE
SUBMISSION NOT AN OPTION
THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT
CONSTITUTE AN OFFER TO LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES
AND SHALL VEST NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR
THROUGH TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN
AND THIS LEASE BECOMES EFFECTIVE AS A LEASE ONLY UPON EXECUTION,
ACKNOWLEDGMENT AND DELIVERY THEREOF BY LANDLORD AND TENANT, REGARDLESS OF
ANY WRITTEN OR VERBAL REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF
LANDLORD TO THE CONTRARY.
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TABLE OF CONTENTS
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SECTION ................................................................................ PAGE
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1. Incorporation of Basic Data........................................................ 1
2. Premises .................................................................. ....... 3
3. Term .......................................................................... 3
3A. Option to Extend................................................................... 3
4. Security Deposit............................................................... 4
5. Annual Rent.................................................................... 4
6. Additional Rent
(a) Taxes...................................................................... 4
(b) Tax Payments............................................................... 5
(c) Common Areas............................................................... 6
(d) Charges for Common Areas................................................... 6
7. Utilities...................................................................... 7
8. Tenant's Use of Premises and Miscellaneous Covenants.......... ................ 7
9. Repairs to and Maintenance of Premises by Tenant..... ......................... 8
10. Subletting and Assignment...................................................... 9
11. Alterations.................................................................... 11
12. Trash Removal.................................................................. 11
13. Mechanic's Liens............................................................... 11
14. Access to Premises............................................................. 12
15. Removal of Improvements........................................................ 12
16. Tenant's Insurance Obligations................................................. 12
17. Repairs by Landlord............................................................ 13
18. Damage or Destruction by Eminent Domain,
Fire or Casualty........................................................... 13
19. Tenant's Default
(a) Events of Default.......................................................... 14
(b) Landlord's Remedies........................................................ 15
(i) Termination of Lease.................................................. 15
(ii) Suit for Possession................................................... 16
(iii)Reletting of Premises................................................. 16
(iv) Acceleration of Payment............................................... 16
(v) Monetary Damages...................................................... 16
(vi) Anticipatory Breach;
Cumulative Remedies................................................... 17
(c) Waiver................. . ................................................. 17
(d) Right of Landlord to Cure Tenant's Default................................. 18
(e) Late Payment............................................................... 18
(f) Lien on Personal Property.................................................. 18
20. Liability of Landlord; Indemnification......................................... 18
21. Lease Not to be Recorded..................................................... 20
22. Severability................................................................... 20
23. Delays......................................................................... 20
24. Estoppel Certificates.......................................................... 20
25. Waiver of Subrogation.......................................................... 20
26. Waiver......................................................................... 21
27. Surrender and Holding Over..................................................... 21
28. Lease Inures to Benefit of Successors and Assigns.... ......................... 21
29. Quiet Enjoyment................................................................ 22
30. No Partnership................................................................. 22
31. Notices........................................................................ 22
32. Interpretation................................................................. 22
33. Paragraph Headings............................................................. 22
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34. Broker's Commissions........................................................... 22
35. Interruption of Services....................................................... 22
36. Subordination.................................................................. 22
37. Modification................................................................... 23
38. Multiple Parties............................................................... 23
39. Submission Not an Option....................................................... 23
40. Option to Expand............................................................. 24
41. Lease Inducement ............................................................ 24
42. Entire Agreement............................................................... 24
Exhibit "A"................................................................ 27
Exhibit "B"................................................................ 28
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<PAGE>
LEASE AGREEMENT
(Standard Industrial Form)
This Lease is made as of this 4TH day of APRIL , 2000, by and between
the party named as landlord in the "Basic Data" set forth below (hereinafter
"Landlord") and the party named as tenant in the "Basic Data" set forth below
(hereinafter "Tenant"). In consideration of the mutual covenants herein set
forth, the parties agree as follows:
1. INCORPORATION OF BASIC DATA. All capitalized terms in this
Lease shall have the meanings as described to them in the Basic Data set forth
below unless otherwise defined herein.
BASIC DATA
LANDLORD: shall mean Thomas J. Flatley d/b/a The Flatley Company, having
a principal place of business and current mailing address at
50 Braintree Hill Office Park, Braintree, MA 02184.
TENANT: shall mean Ibis Technology Corporation, having a principal
place of business and current mailing address at 32 Cherry
Hill Drive, Danvers, MA 01923.
PREMISES: shall mean 22,626 square feet, being the approximate size of
the Premises and the basis on which Annual Rent and
Additional Rent shall be paid by Tenant to Landlord, in the
building located at 33 Cherry Hill Drive, Danvers, MA 01923,
(the "Building"), which Building is located on a lot (the
"Lot"), all as such Premises, Building and Lot are described
and/or outlined in Exhibit A.
TERM: shall mean the period of five (5) years commencing upon the
Commencement date.
OPTION TO
EXTEND: One (1) five (5) year Option to Extend term of Lease.
ADJUSTMENT
OF TERM: If the Commencement Date is other than the first day of a
calendar month, this Lease shall continue in full force and
effect for a period of five (5) years from the first day of
the calendar month next succeeding the Commencement Date.
SECURITY
DEPOSIT: INTENTIONALLY OMITTED.
ANNUAL
RENT: shall mean the annual sum of ONE HUNDRED FIFTY-EIGHT
THOUSAND THREE HUNDRED EIGHTY-TWO AND 00/100 ($158,382.00)
Dollars, payable in equal monthly installments of THIRTEEN
THOUSAND ONE HUNDRED NINETY-EIGHT AND 50/100 ($13,198.50)
Dollars, due the first (1st) full year of the Lease Term,
and
during the second (2nd) full year of the Lease Term, the
Annual Rent shall be ONE HUNDRED FIFTY-EIGHT THOUSAND THREE
HUNDRED EIGHTY-TWO AND 00/100 ($158,382.00) Dollars, which
shall be adjusted to reflect the percentage increase, if
any, of the Consumer Price Index for All Urban Consumers,
U.S.
<PAGE>
City Average, all items, (1982-84=100) issued by the U.S.
Department of Labor, or such other index as may be hereafter
substituted by the United States Department of Labor for The
Consumer Price Index (the "INDEX"). If there is an upward
change thereof from the Commencement Date of this Lease to
the commencement date of the second (2nd) year of the Lease
Term, then the Annual Rent for the second (2nd) full year of
the Lease Term shall be increased in accordance with such
adjusted value of the dollar, but in no event shall such
Annual Rent be less than the last Annual Rent paid by Tenant
to Landlord; and
the Annual Rent as determined in the foregoing will be
subject to an annual increase, each year during third (3rd)
full year of the Lease Term through the fifth (5th) full
year of the Lease Term, based upon the increase, if any, in
the INDEX at the start of such year from the INDEX in effect
at the beginning of the preceding year. Notwithstanding the
foregoing, in no event shall such Annual Rent be less than
the last Annual Rent paid by Tenant to Landlord; and
all payable in accordance with Paragraph 5 of this Lease
plus all other charges, amounts, reimbursements or other
sums (collectively "Additional Rent") to be paid by Tenant
to Landlord in accordance with Paragraph 6 and any other
terms of this Lease calling for the payment of money by
Tenant to Landlord.
USE: shall mean Office and assembly of electrical components, and
no other use or purpose whatsoever.
COMMENCE-
MENT DATE: shall mean the earlier to occur of (i) the date the
Premises are ready for occupancy or (ii) the date Tenant
takes occupancy of the Premises. The Premises shall be
deemed ready for occupancy on the first day as of which
LESSOR'S work as delineated on Exhibit "B", attached hereto
and made a part hereof, has been completed except for items
of work (and, if applicable, adjustment and fixtures) which
can be completed after occupancy has been taken, without
causing undue interference with LESSEE'S use of the Premises
(i.e., so-called "punch list" items) and LESSEE has been
given notice thereof. LESSOR shall complete as soon as
conditions permit, all "punch list" items and LESSEE shall
afford LESSOR access to the Premises for such purposes.
Notwithstanding the foregoing, if Tenant's personnel shall
occupy all or any part of the Premises for the conduct of
its business prior to the Commencement Date as determined
herein, such date of occupancy shall, for all intents and
purposes of this Lease, be the Commencement Date.
Landlord and Tenant agree to execute a Supplemental
Agreement setting forth the actual Occupancy and Term Dates,
once the same have been established.
<PAGE>
TENANT'S
PRO RATA
SHARE: shall be based on the fraction:
Square Footage of TENANT's Premises
-----------------------------------
Aggregate of All the Rentable Square Footage
(whether or not rented or improved within the entire Building)
TENANT'S
INSURANCE
REQUIRE-
MENTS: Public Liability: ONE MILLION AND 00/100 ($1,000,000.00)
Dollars for injury to one person, ONE MILLION AND 00/100
($1,000,000.00) Dollars for injury to more than one person,
per incident.
Property Damage: ONE MILLION AND 00/100 ($1,000,000.00)
Dollars per incident.
2. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, but reserving
and excepting to Landlord the use of the exterior walls, the roof and
the right to install, maintain, use, repair and replace pipes, ducts,
conduits, wires and appurtenant fixtures leading through the Premises
and serving other parts of the Building or Lot in locations which will
not materially interfere with Tenant's use thereof. Exhibit A is
intended only to show the location of the Premises in relation to the
Building and/or Lot and the initial size of such Building and Lot, and
other data thereon is to be disregarded and in no event deemed or
construed to be a representation that the Building or buildings,
parking areas or other improvements shown thereon will be constructed
and/or maintained as indicated thereon, or that additions to, or
reductions from, the Building or Lot may not be made by the Landlord
during the Term of this Lease, but rather the Landlord shall have the
right to do so provided that the same does not materially interfere
with Tenant's access to and Use of the Premises, and any such addition
or reduction shall take effect upon Landlord's giving notice to Tenant
to that effect. Landlord reserves the right to construct or sell any
free-standing buildings on any portion of the Lot.
3. TERM. The Term of this Lease shall commence upon the Commencement Date,
which shall be the date set forth in the Basic Data, subject to
Paragraph 23 concerning unavoidable delays. The Premises shall be
deemed ready for occupancy under the terms of this Lease and Landlord's
obligation to deliver the Premises to Tenant as of the Commencement
Date shall be deemed fulfilled if Landlord's construction within the
Premises as required herein is substantially completed with the
exception of minor items which can be fully completed within thirty
(30) days without material interference with Tenant's occupancy of the
Premises. The use by Tenant of the Premises for business shall be
deemed conclusive that the Premises were substantially completed and
that Tenant accepted delivery of the Premises as substantially
completed. Landlord's construction and other work shall be as set forth
in Exhibit B hereto.
<PAGE>
3A. OPTION TO EXTEND. Provided that (i) Tenant has not assigned the Lease,
and (ii) the Premises are not then subject to a sublease (whether the
term of the sublease has commenced or is to be commenced thereafter)
and Tenant will not be exercising the rights hereinafter set forth with
the intent of assigning the Lease or subleasing any portion of the
Premises, then Tenant has the right to extend the Lease Term for one
(1) five (5) year period ("Extension Period") at a Base Rent equal to
the then Current Market Rate, but in no event shall such rental be less
than the last annual rent paid by Tenant, and otherwise on the same
terms and conditions as this Lease, except that there shall be no
further rights to extend the Lease Term. Tenant shall exercise this
option by written notice to Landlord not more than nine (9) months nor
less than six (6) months before the expiration of the Lease Term.
Tenant's exercise of this option shall be effective only if, at the
time of notice and upon the effective date of the Extension Period,
there is no Event of Default.
Thereupon, this Lease shall be deemed extended for an additional period
of five (5) years, upon all of the same terms and conditions of this
Lease and any Amendments made hereto with the exception of the annual
rent stipulated hereinabove.
Tenant's exercise of this renewal option shall be null and void unless
Landlord receives (i) simultaneously with the notice of exercise and
(ii) thirty (30) days before the commencement of the Renewal Term,
Tenant's certified financial statements for the immediately preceding
three (3) year period. In the event the credit worthiness of Tenant is
not sufficient in Landlord's sole discretion to assure the future
performance of Tenant's obligations under the Lease during the Renewal
Term, Landlord may nullify Tenant's exercise of this renewal option.
4. SECURITY DEPOSIT. - INTENTIONALLY OMITTED.
5. ANNUAL RENT. Tenant hereby covenants and agrees to pay to Landlord, at
the place to which notices to Landlord are required to be sent or such
other person or place as Landlord may from time to time designate, as
Annual Rent for the Premises in lawful money of the United States,
without demand, setoff or deduction, during the Term of this Lease, the
sum set forth in Basic Data, payable in equal monthly installments as
set forth there, in advance on the first day of each and every calendar
month during said Term. Annual Rent for any fraction of a month at the
commencement or expiration of said Term shall be prorated on a per diem
basis.
6. ADDITIONAL RENT.
(a) TAXES. Tenant covenants and agrees to pay, as Additional Rent, with
respect to each calendar or other tax year beginning or ending during
the Term hereof, an amount equal to Tenant's Pro Rata Share, as set
forth in the Basic Data, of the real estate taxes (including
betterments and other special
<PAGE>
assessments) allocated to the Building and Lot for such tax year. If
there shall be more than one taxing authority, the real estate taxes
for any period shall be the sum of the real estate taxes for said
period attributable to each taxing authority. Tenant's Pro Rata Share
of the real estate taxes shall be adjusted for and with respect to any
partial tax years on a per diem basis. The expression "real estate
taxes" shall include all general and special assessments, so-called,
rent taxes and other governmental charges which may be charged,
assessed or imposed upon the Building and Lot or Landlord. If at any
time during the term hereof the present system of ad valorem taxation
of real property shall be changed so that in lieu of the ad valorem tax
on real property in whole or in part, or in addition thereto, there
shall be assessed on Landlord a capital levy or other tax on, but not
limited to, the Annual Rent and/or any Additional Rent ("Gross Rents")
received with respect to the Building and Lot, or a federal, state,
county, municipal or other local income, franchise, excise or similar
tax, assessment, levy or charge (distinct from any method of taxation
prevailing at the commencement of the Term hereof) measured by or
based, in whole or in part, upon any such Gross Rents, then any and all
of such taxes, assessments, levies or charges, to the extent that the
same would be payable if the Building and Lot were the only property of
Landlord subject to them, and if the income from the Building and Lot
were the only taxable income of Landlord during the year in question,
shall be deemed to be included within the term "real estate taxes".
Notwithstanding anything to the contrary contained herein, "real estate
taxes" shall not include Landlord's Federal or State income taxes as
presently imposed.
(b) TAX PAYMENTS. Payment of Tenant's Pro Rata Share of the real estate
taxes allocated to the Building and Lot shall be paid, as Additional
Rent, monthly, and at the times and in the fashion herein provided for
the payment of Annual Rent. For an initial period from the Commencement
Date until the end of the first full tax year in which the Building
and/or Lot containing the Premises shall be assessed as a completed
improvement, as distinguished from inprocess construction ("the full
assessment year"), the amount so to be paid shall be the initial
monthly payment reasonably fixed by Landlord on or about the
Commencement Date. Promptly after the determination by any taxing
authority of real estate taxes upon the Building and Lot for each tax
year, Landlord shall make a determination of the Tenant's Pro Rata
Share of the real estate taxes and if the aforesaid payments
theretofore made for such tax year by Tenant exceed Tenant's Pro Rata
Share of the real estate taxes such overpayment shall be credited
against the payments thereafter to be made by Tenant pursuant to this
paragraph; and if the real estate taxes for such tax year are greater
than such payments theretofore made on account for such tax year,
Tenant shall pay such deficiency to Landlord within ten (10) days of
demand therefor. Copies of tax bills submitted by Landlord with any
such statement shall be conclusive evidence of the amount of real
estate taxes charged, assessed or imposed. After the full assessment
year, the initial monthly payment on account of the Tenant's Pro Rata
Share of the real estate taxes shall be replaced each year by a payment
which is one-twelfth (1-12th) of the Tenant's Pro Rata Share of the
real estate taxes for the immediately preceding tax year. An equitable
adjustment shall be made in the event of any change in the method or
system of taxation from that which is now applicable, including without
limitation any change in the dates and periods for which such taxes
were levied. Tenant shall pay all taxes upon its signs and other
property in or upon the Premises and Tenant covenants and agrees to pay
promptly when due all municipal, county, state and federal taxes
assessed against Tenant's leasehold interest and Tenant's fixtures,
furnishing, equipment, stock-in-trade, and other personal property of
any kind owned, installed or existing in the Premises. For the purpose
of this paragraph such taxes shall not be included within real estate
taxes upon the Building and Lot.
<PAGE>
(c) COMMON AREAS. Tenant and its officers, employees, agents, customers
and invitees shall have the right, in common with Landlord and all
others to whom Landlord may from time to time grant rights, to use the
common areas of the Building and Lot for their intended purposes
subject to such reasonable rules and regulations as Landlord may from
time to time impose, including the designation of specific areas in
which cars owned or operated by Tenant, its officers, employees and
agents must be parked. Tenant agrees after notice thereof to abide by
such rules and regulations and to cause its officers, employees,
agents, customers and invitees to conform thereto. Landlord shall at
all times have full control, management and direction of the common
areas and the right to put the common areas to such use as the Landlord
may determine in its sole discretion. Landlord shall have the right at
any time and from time to time to change the layout of the common areas
including, but without limitation, the right to add to or subtract from
their shape and size and to alter their location; provided, however,
Landlord shall always maintain such amount of parking in the common
areas as may be required by local zoning law or ordinance at the time
of such parking area's original construction, and further provided the
same does not materially interfere with Tenant's access to and Use of
the Premises.
(d) CHARGES FOR COMMON AREAS. Tenant shall pay its Pro Rata Share of
the Common Areas Maintenance Costs during the Term of this Lease as
Additional Rent and in the manner hereafter provided. "Common Areas
Maintenance Costs" as used herein shall mean the total cost and
expenses incurred by Landlord, its agents, contractors and/or designees
for operating, maintaining, insuring (or, if Landlord elects to self
insure, an amount equal to the cost of insurance if it were to be
provided by a third party of Landlord's choosing), managing, repairing
and/or replacing all or any part of the common areas and any
installations therein, thereon, thereunder or thereover. Payment on
account of Tenant's Pro Rata Share of the Common Areas Maintenance
Costs shall be paid as Additional Rent, monthly, and at the times and
in the fashion herein provided for the payment of Annual Rent based
initially on Landlord's reasonable estimate. Promptly after the end of
the partial calendar year during which the Term begins and promptly
after the end of each year thereafter, Landlord shall make a
determination of Tenant's Pro Rata Share of the Common Areas
Maintenance Costs. If the aforesaid payments theretofore made for such
period by Tenant exceed Tenant's Pro Rata Share, such overpayment shall
be credited against the payments thereafter to be made by Tenant
pursuant to this paragraph; and if Tenant's Pro Rata Share is greater
than such payments theretofore made on account for such period, Tenant
shall pay such deficiency to Landlord within ten (10) days of demand
therefore. The initial monthly payment on account of the Common Areas
Maintenance Costs shall be replaced after Landlord's determination of
Tenant's Pro Rata Share thereof for the preceding accounting period by
a payment which is one-twelfth (1/12th) of Tenant's actual Pro Rata
Share thereof for the immediately preceding accounting period, with
adjustments as appropriate where such preceding period is less than a
full twelve-month period. Appropriate adjustments shall be made for any
partial month at the commencement of the Term and for any partial month
or year at the end of the Term.
<PAGE>
7. UTILITIES. Tenant agrees to pay or cause to be paid, as Additional
Rent, directly to the authority or party charged with the collection
thereof, all charges for gas, electricity, light, heat, power, water,
sewerage, telephone or other service used, rendered or supplied to or
for the Tenant upon or in connection with the Premises throughout the
Term of this Lease, and to indemnify Landlord and save it harmless
against any liability or damages on such account. Tenant shall also at
its sole cost and expense procure any and all necessary permits,
licenses or other authorizations required for the lawful and proper
maintenance and use upon the Premises of wires, pipes, conduits, tubes
and other equipment and appliances for use in supplying any such
services to and upon the Premises except such permits, licenses and
authorizations which shall be required in connection with original
construction of the Premises, which shall be obtained by Landlord. It
is understood and agreed that Landlord shall be under no obligation to
furnish any utilities to the Premises and shall not be liable for any
interruption or failure in the supply of any such utilities to the
Premises. If a charge shall be made from time to time by the public
authority having jurisdiction of the Premises for the use of the
sanitary sewer system, Tenant shall pay the share thereof equitably
apportionable to the Premises. Tenant shall also pay for any sprinkler
standby service charge equitably apportionable to the Premises. If the
Premises are not separately metered, Tenant shall pay to Landlord, as
billed and as additional Rent, its share of water and/or sewer bills.
In case any such water and sewer charges are not paid by Tenant at the
time when the same are payable, if to municipal officials, Landlord may
nevertheless pay the same to such officials and charge Tenant the cost
thereof, which charge shall become payable on the first day of the
following month as Additional Rent.
8. TENANT'S USE OF PREMISES AND MISCELLANEOUS COVENANTS. During the Term
of this Lease Tenant shall use the Premises solely for the purposes
listed in the Basic Data. Tenant agrees that it will not use, or permit
or suffer the use of, the Premises or any part thereof for any other
business or purpose. Tenant shall use and occupy the Premises in a
careful, safe and proper manner and shall keep the Premises in a clean
and safe condition in accordance with all applicable laws, ordinances
and government regulations. Tenant agrees that it will not do or suffer
to be done, or keep or suffer to be kept, anything in, upon or about
the Premises which will contravene Landlord's policies insuring against
loss or damage by fire or other hazards, or which will prevent Landlord
from procuring such policies from companies acceptable to Landlord.
During the Term of this Lease, Tenant further covenants and agrees as
follows:
(a) Not to use the Premises for any use involving the emission of
objectionable odors, fumes, noise or vibration, or, except to the
extent previously consented to by Landlord in writing, involving the
use, storage or disposition of toxic or hazardous substances or
materials. Tenant covenants and agrees that it shall advise Landlord in
writing of any materials or substances it deals with in any way on the
Premises that may be deemed to be hazardous or toxic prior to such
substances or materials being brought upon the Premises or Lot. In any
event, Tenant shall strictly comply with all state, federal and
municipal laws, regulations, guidelines and ordinances concerning the
use, storage, handling and disposition of any substance or material
that is or may be deemed to be toxic or hazardous and Tenant
<PAGE>
agrees to indemnify Landlord against any liability, including attorneys
fees and costs, in connection therewith. At Landlord's request, Tenant
shall provide Landlord with reasonable assurances that Tenant can and
will comply with the foregoing and, if Landlord so requests, Tenant
shall obtain insurance of such type and in such amount as Landlord may
reasonably specify, such policy to name Landlord as an insured party
and be obtained at Tenant's sole cost prior to such substances or
materials being brought upon the Premises or Lot. Any such policy shall
provide that it may not be canceled or amended without thirty (30) days
prior notice to Landlord, and shall be issued by a company or companies
reasonably satisfactory to Landlord. Failure of Tenant to provide
Landlord with such reasonable assurances or evidence of any reasonably
requested insurance in connection with the bringing of such materials
or substances upon the Premises or Lot shall be reasonable cause for
Landlord to prohibit such substances or materials from being brought
upon the Premises or Lot or, at Landlord's election, a default under
this Lease.
(b) Not to permit the use of the Premises for trucking of a character
or volume greater than that customarily employed by other occupants of
the Building or Lot or any use permitted under this Lease for which
trucking of such character and volume is customary.
(c) Not to place on the Premises or Building any placard or sign of
advertising that the Premises or any part thereof may be sublet, nor to
place any other sign or placard on the Premises or Building which is
visible from the exterior of the Premises or Building without the
written consent of Landlord.
(d) Not to injure, overload, deface or permit to be injured,
overloaded, or defaced, the Premises or Building, and not to permit any
holes to be made in the exterior of the building; and not to make,
allow or suffer any waste or any unlawful, improper or offensive use of
the Premises that shall be injurious to any person or property or
invalidate any insurance on the Premises, Building or Lot or increase
the premium thereof.
(e) To conform to and comply with all state and municipal laws and with
all requirements of any public body or officers having jurisdiction of
the Premises and with the requirements or regulations of any Board of
Fire Underwriters or insurance company insuring the Premises at the
time with respect to the care, maintenance, use and nonstructural
alteration of the Premises, all at Tenant's sole expense.
9. REPAIRS TO AND MAINTENANCE OF PREMISES BY TENANT. Tenant shall keep the
Premises, including without limitation, both the inside and outside of
all doors and windows therein, in the same order and repair as they are
in on the Commencement Date, reasonable wear and tear and damage by
fire or other casualty normally insured under a so-called "extended
coverage endorsement" only excepted; and to keep all fixtures and
equipment on the Premises including, without limitation, all heating,
plumbing, electrical, air-conditioning, ventilation and mechanical
fixtures and equipment serving only the Premises in the same order and
repair as they are in on the Commencement Date, ordinary wear and tear,
damage by fire or other casualty normally insured under an "extended
coverage endorsement" only excepted. Tenant shall, at it sole cost and
expense, during the entire Term of this Lease, maintain in force a
service contract providing for the repair and annual service and
maintenance of all heating, ventilating and air conditioning equipment
serving the Premises, or hire a qualified person to perform such
services on at least a semi-annual basis, or more often if needed,
provided such person is reasonably acceptable to Landlord. Tenant shall
make all repairs and replacements and do all other work necessary for
the foregoing purposes. It is further agreed that the exception of
reasonable wear and tear shall not apply so as to permit Tenant to keep
the Premises in anything less than suitable, tenantlike, efficient and
usable condition considering the nature of the
<PAGE>
Premises and the use reasonably made thereof, or in less than good and
tenantlike repair, and that except in case of fire or other casualty
normally insured under an "extended coverage endorsement" there is no
exception to the rule that all glass must be kept good and whole by
Tenant. Tenant shall also be responsible for the cost of all repairs to
the Building (including, without limitation, the structure and roof
thereon and common areas therein) and the Lot if the same are
occasioned by Tenant's or its employees', agents' or invitees' improper
or negligent use thereof.
10. SUBLETTING AND ASSIGNMENT.
(a) Tenant covenants and agrees not to assign, sell, mortgage, pledge
or in any manner transfer this Lease
or any interest therein or sublet the Premises or any part thereof, or
grant any concession or license or otherwise permit occupancy of all or
any part thereof by another person or entity without the prior written
consent of Landlord, which consent shall not be unreasonably withheld
provided all the provisions of this Paragraph 10 are complied with and
subject to Landlord's right to terminate this Lease as set forth in
this Paragraph 10. Any such consent by Landlord shall be held to apply
only to the specific transaction thereby authorized. Such consent shall
not be construed as a waiver of the obligation of Tenant to obtain from
Landlord consent to any other or subsequent assignment or subletting
period. The collection of rent by Landlord from any assignee, subtenant
or other occupant shall not be deemed an acceptance of the assignee,
subtenant or occupant as tenant or release of Tenant from its
obligation under this Lease.
(b) Notwithstanding the provisions of Paragraph 10(a), above, any
proposed assignee or sublessee submitted to the Landlord for approval
must have the same or greater financial strength as Tenant and if such
is not the case, Landlord's withholding of consent shall be reasonable.
If Tenant shall request permission to assign this Lease or sublet the
Premises or any part thereof Tenant shall, together with such request
for consent thereto, inform Landlord of the rental and any other
amounts to be paid by such assignee or subtenant in connection with
such subletting or assignment regardless of the nomenclature such
payment may take, the term of any subletting, and any financial
information required or requested by Landlord to make the determination
required by the first sentence of this Paragraph 10(b). Landlord shall
have the right to terminate this Lease in lieu of consenting or
reasonably withholding its consent to the proposed subletting or
assignment, provided that Landlord shall exercise such right within
forty-five (45) days of its receipt of Tenant's request for such
consent and provided, further, that Tenant shall have the right to
withdraw its request for such consent within fifteen (15) days after
its receipt of such notice from Landlord, in which event such notice of
termination shall become null and void. If this Lease shall be
terminated pursuant to the provisions of the immediately preceding
sentence, such termination shall become effective upon the last day of
the calendar month next following Landlord's giving said notice of
termination.
(c) If Landlord consents in writing to an assignment or subletting,
such consent shall be deemed conditioned upon Tenant's compliance with
the following provisions and the failure to so comply shall be deemed
to give Landlord reasonable cause for withholding or withdrawing its
consent:
(1) The assignment or subletting must be,
respectively, of all Tenant's leasehold interest or of the
entire Premises and, in the case of an assignment, shall also
transfer to the assignee all of Tenant's rights in and
interests under this Lease, including but without limitation,
the Security Deposit hereunder.
(2) At the time of such assignment or subletting, this Lease
must be in full force and effect without any breach or default
hereunder on the part of Tenant.
<PAGE>
(3) The assignee or sublessee shall assume, by written
recordable instrument, in form and content satisfactory to
Landlord, the due performance of all Tenant's obligations
under this Lease, including any accrued obligations at the
time of the assignment or subletting.
(4) A copy of the assignment or sublease and the original
assumption agreement (both in form and content satisfactory to
Landlord) fully executed and acknowledged by the assignee or
sublessee, together with a certified copy of a properly
executed corporate resolution authorizing such assumption
agreement, shall be received by Landlord within ten (10) days
from the effective date of such assignment or subletting.
(5) Such assignment or subletting shall be upon and subject
to all the provisions, terms, covenants and conditions of this
Lease including but without limitation the use permitted
hereby and Tenant (and any assignee(s), subtenant(s) and
guarantor(s) of this Lease) shall continue to be and remain
primarily and unconditionally liable hereunder.
(6) Tenant shall reimburse Landlord for Landlord's attorneys'
fees for examination of and/or preparation of any documents in
connection with such assignment or subletting.
(7) Any rent, sum or other consideration to be paid or given
in connection with such sublease or assignment, either
initially or over time, in excess of the Annual Rent and/or
Additional Rent and/or other charges to be paid under this
Lease shall be paid directly to Landlord as if such amount
were originally called for by the terms of this Lease as
Additional Rent and Tenant shall be liable to Landlord for all
such amounts.
(d) Subject to the enumerated conditions of the preceding Paragraph
10(c), Landlord hereby consents to the assignment or subletting of the
entire Premises to a corporation which is a wholly owned subsidiary of
Tenant, or to a company that owns one hundred percent (100%) of all the
issued and outstanding capital stock of Tenant, or in the event of a
merger, provided that (i) Landlord is given at least ten (10) days
prior written notice of such occurrence, (ii) the occurrence will not
impair the reputation of the Building, and (iii) the occurrence will
not materially increase the risk of Tenant's default. Notwithstanding
any such assignment or subletting as provided in this Paragraph 10(d),
such assignment or subletting shall be upon and subject to all the
provisions, (except for Landlord's right to terminate as provided in
subsection (b) above) terms, covenants and conditions of this Lease and
Tenant (and any assignee(s), subtenant(s) and guarantor(s) of this
Lease) shall continue to be and remain liable hereunder.
11. ALTERATIONS. Tenant shall not modify the leasehold improvements or make
any alterations to the Premises with the exception of non-structural
alterations costing less than $10,000.00, without first obtaining
Landlord's prior written approval of such modifications and
alterations; provided, however, Landlord shall not unreasonably
withhold its consent to nonstructural alterations of the Premises.
12. TRASH REMOVAL. Tenant shall be responsible for the removal of its own
trash, rubbish, garbage and refuse removal, at its sole cost and
expense. Tenant shall not permit the accumulation of rubbish, trash,
garbage and other refuse in and around the Premises. No rubbish, trash,
garbage or other refuse shall be burned by Tenant in the Premises or
elsewhere in the Building or Lot and all of the same shall be kept in
suitable containers in the interior of the Premises (or in locations
outside the Premises as Landlord may permit by notice in writing) until
the same is picked up from the Premises and the Building and/or Lot.
The removal agency selected by Tenant shall be subject to Landlord's
reasonable approval. In the event Tenant fails to remove any
accumulation of rubbish within twenty-four (24) hours after notice from
Landlord to remove the same, Landlord shall have the right (but not the
obligation) to remove the same, in which event the cost thereof shall
be paid by Tenant as Additional Rent immediately upon demand.
<PAGE>
13. MECHANIC'S LIENS. Tenant will not permit to be created or to remain
undischarged any lien, encumbrance or charge arising out of any work of
any contractor, mechanic, laborer or materialman or any mortgage,
conditional sale, security agreement or chattel mortgage, or otherwise
which might be or become a lien or encumbrance or charge upon the
Premises or any part thereof or the income therefrom, and Tenant will
not suffer any other matter or thing whereby the estate, rights and
interest of Landlord in the Premises or any part thereof might be
impaired. If any lien on account of an alleged debt of Tenant or any
notice of contract by a party engaged by Tenant or Tenant's contractor
to work on the Premises shall be filed against the Premises, Building
or Lot, or any part thereof, within ten (10) days after notice of the
filing thereof Tenant shall cause the same to be discharged of record
by payment or bond. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid then, in addition to any other
right or remedy, Landlord may, but shall not be obligated to, discharge
the same either by paying the amounts claimed to be due or by procuring
the discharge of such lien by deposit or by bonding proceedings, and in
any such event Landlord shall be entitled to compel the prosecution of
an action for the foreclosure of such lien by the lienor or to pay the
amount of the judgment in favor of the lienor with interest, costs and
allowances. Any amount so paid by Landlord and all costs and expenses,
including without limitation reasonable attorneys fees, incurred by
Landlord in connection therewith, together with interest thereon at the
rate specified in Paragraph 19(d) from the respective dates of
Landlord's making of the payment or incurring of the cost and expense,
shall constitute Additional Rent payable by Tenant under this Lease and
shall be paid by Tenant to Landlord immediately upon demand.
14. ACCESS TO PREMISES. Landlord shall have free access to the Premises
upon reasonable notice to the Tenant and without interference with
Tenant's Use of the Premises, at all reasonable time (and in case of
emergency at any time) for the purpose of examining the same or making
such repairs, alterations, additions or improvements to the Premises,
or the Building of which the Premises are a part, that Landlord may
deem necessary or which Tenant has failed to do (but nothing in this
Paragraph shall obligate Landlord to make any such repairs,
alterations, additions or improvements) and also for the purpose of
exhibiting the Premises and putting up notices "To Rent," during the
last six (6) months of the original or extended term, as the case may
be, or "For Sale", which notices shall not be removed, obliterated or
hidden by Tenant. No forcible entry shall be made by Landlord unless
such entry shall be reasonably necessary to prevent injury, loss or
damage to persons or property, and Landlord shall repair any damage to
property occasioned thereby. Landlord shall repair any damage to
property of Tenant or anyone claiming under Tenant caused by or
resulting from Landlord's making any such repairs, alterations,
additions or improvements except only such damage as shall result from
the entry to the Premises and/or the making of such repairs,
alterations, additions or improvements which Landlord shall make as a
result of an emergency or the default, negligence, fault or willful
misconduct of Tenant or anyone claiming under or through Tenant. No
action of Landlord pursuant to this Paragraph shall be deemed an
eviction or disturbance of Tenant nor shall Tenant be allowed any
abatement of rent or damages for any injury or inconvenience occasioned
thereby.
15. REMOVAL OF IMPROVEMENTS. Except as otherwise hereinafter provided, all
trade fixtures, furniture, furnishings and signs installed in the
Premises by Tenant and paid for by it shall remain the property of
Tenant and shall be removed by Tenant upon the expiration of the Term
of this Lease or its earlier termination, provided (a) that any of such
items as are affixed to the Premises and require severance may be
removed only if Tenant shall repair any damage caused by such removal,
(b) that Tenant shall have fully performed all of the covenants and
agreements to be performed by it under the provisions of this Lease,
and (c) that Tenant shall comply with the last sentence of this
Paragraph. If the Tenant fails to remove such items from the Premises
prior to the expiration of this Lease or earlier termination hereof,
all such trade fixtures, furniture, furnishings and signs shall become
the property of the Landlord. All lighting fixtures, heating and
cooling equipment and all other installations, alterations, additions
and improvements to the Premises shall be and remain the property of
Landlord on the ending of the Term hereof or any earlier termination of
this Lease and shall not be removed from the Premises.
<PAGE>
16. TENANT'S INSURANCE OBLIGATION. Tenant shall carry public liability
insurance in a company or companies licensed to do business in the
state in which the Premises are located and reasonably approved by
Landlord. Said insurance shall be in minimum amounts reasonably
required by Landlord from time to time by notice to Tenant and shall
name Landlord as an additional insured, as its interests may appear,
and Tenant shall provide Landlord with evidence, when requested, that
such insurance is in full force and effect. Tenant shall carry property
damage insurance for all of its equipment and for all leasehold
improvements above the building standard which are made by Landlord or
Tenant in and to the Premises, which policies shall name Landlord as an
additional insured. If required by Landlord, receipts evidencing
payment for said insurance shall be delivered to Landlord at least
annually by Tenant and each policy shall contain an endorsement that
will prohibit its cancellation or amendment prior to the expiration of
thirty (30) days after notice of such proposed cancellation or
amendment to Landlord. Tenant shall carry insurance in the initial
amounts listed in the Basic Data and shall provide Landlord with
certificates of such Tenant Insurance Requirements on or prior to the
Commencement Date.
17. REPAIRS BY LANDLORD. Landlord agrees to make all necessary repairs or
alterations to the foundation, roof and structural parts of the
exterior walls of the Premises. Notwithstanding the foregoing, if any
of said repairs or alterations shall be made necessary by reason of
repairs, installations, alterations, additions or improvements made by
Tenant or anyone claiming under or through Tenant, by reason of the
default, negligence, fault, or willful misconduct of such party, or by
reason of a default in the performance or observance of any agreements,
conditions or other provisions on the part of Tenant to be performed or
observed, or by reason of any special use to which the Premises may be
put, Tenant shall be liable for the cost of all such repairs or
alterations as may be necessary. Landlord shall not be deemed to have
committed a breach of any obligation to make repairs or alterations or
perform any other act unless (a) it shall have made such repairs or
alterations or performed such other act negligently, or (b) it shall
have received notice from Tenant designating the particular repairs or
alterations needed or the other act of which there has been failure of
performance and Landlord shall have failed to make such repairs or
alterations or performed such other act within a reasonable time after
the receipt of such notice; and in the latter event Landlord's
liability shall be limited to the cost of making such repairs or
alterations or performing such other act. As used in this Lease, the
expression "exterior walls of the Premises" does not include glass,
windows, doors or door frames, or window sashes or frames. Landlord
shall make all necessary repairs to the common areas and shall maintain
such common areas (except sidewalks abutting the Premises) reasonably
clear of litter and shall perform snow handling to the extent required
for business operations of the Building. The provisions of this
Paragraph shall not apply in the case of damage or destruction by fire
or other casualty or by eminent domain, in which events the obligations
of Landlord shall be controlled by Paragraph 18 hereof.
18. DAMAGE OR DESTRUCTION BY EMINENT DOMAIN, FIRE OR CASUALTY.
(a) In the event that the Premises and/or Building and/or Lot, or any
material part thereof, shall be taken by any public authority or for
any public use, or shall be destroyed or damaged by fire or casualty,
or by the action of any public authority, then this Lease may be
terminated at the election of Landlord. Such election shall be made by
the giving of written notice by Landlord to Tenant within thirty (30)
days after the right of election accrues. If by such taking Tenant is
deprived of the use of more than thirty percent (30%) of the Square
Footage of the Premises, or if by such fire or other casualty more than
fifty percent (50%) of the Square Footage of the Premises shall be
rendered untenable, and if Landlord does not within a reasonable time
after notice from Tenant commence and diligently pursue to rebuild or
repair, Tenant may at its option terminate this Lease by notice in
writing to Landlord within thirty (30) days after the date of such
damage or destruction, or within thirty (30) days after it has received
notice of such taking, as the case may be. If either Landlord or Tenant
exercises such option, this Lease shall terminate on the date
designated in its notice of termination, which shall be not less than
fifteen (15) nor more than thirty (30) days after the date of such
notice.
<PAGE>
(c) If this Lease is not terminated pursuant to the provisions of
Paragraph 18(a) above, this Lease shall continue in full force and
effect and a just proportion of the Annual Rent shall be suspended or
abated until the Premises shall be put by Landlord in proper condition
for use, which Landlord covenants to do with reasonable diligence and
to the extent permitted by the net proceeds of insurance recovered or
damages awarded for such destruction or taking, and subject to zoning
and building laws then in existence. "Net proceeds of insurance
recovered or damaged awarded" refers to the gross amount of such
insurance or award less the reasonable expenses of Landlord in
connection with the collection of same, including without limitations,
reasonable fees and expenses for legal and appraisal services. In the
case of a taking which permanently reduces the Square Footage of the
Premises, the rent shall be abated for the remainder of the Term in
proportion to the amount by which the Square Footage has been reduced.
(c) Irrespective of the form in which recovery may be had by law, all
rights to damages or compensation shall belong to Landlord in all
cases, except for damages to Tenant's fixtures, property or equipment,
and for damages, if any, separately awarded for relocation expenses and
business interruption, provided that none of the same shall reduce the
damages or compensation which Landlord would otherwise recover. Tenant
hereby grants to Landlord all of Tenant's rights to such damages and
awards and covenants to deliver such further assignments thereof as
Landlord may from time to time request.
19. TENANT'S DEFAULT.
(a) EVENTS OF DEFAULT. The following shall be "Events of Default" under
this Lease:
(i) If Tenant shall fail to pay any monthly installment of
Annual Rent or Additional Rent when due and such default shall
continue for ten (10) days after written notice from Landlord;
provided that no such notice shall be required if Tenant has
received a similar notice within three hundred sixty-five
(365) days prior to such violation or failure;
(ii) If Tenant shall fail to timely make any other payment
required under this Lease and such default shall continue for
ten (10) days after written notice from Landlord; provided
that no such notice shall be required if Tenant has received a
similar notice within three hundred sixty-five (365) days
prior to such violation or failure;
(iii) If Tenant shall violate or fail to perform any of the
other terms, conditions, covenants or agreements herein made
by Tenant, if such violation or failure continues for a period
of thirty (30) days after Landlord's written notice thereof to
Tenant; provided that no such notice shall be required if
Tenant has received a similar notice within three hundred
sixty-five (365) days prior to such violation or failure;
(iv) Tenant's becoming insolvent, as that term is defined in
Title 11 of the United States Code, entitled Bankruptcy, 11
U.S.C. Section 101 et. seq. (the "Bankruptcy Code"), or under
the insolvency laws of any State, District, Commonwealth or
Territory of the United States (the "Insolvency Laws");
(v) the appointment of a receiver or custodian for all or a
substantial portion of Tenant's property or assets, or the
institution of a foreclosure action upon all or a substantial
portion of Tenant's real or personal property;
(vi) the filing of a voluntary petition under the provisions
of the Bankruptcy Code or Insolvency Laws;
<PAGE>
(vii) the filing of an involuntary petition against Tenant as
the subject debtor under the Bankruptcy Code or Insolvency
Laws, which is either not dismissed within forty-five (45)
days of filing, or results in the issuance of an order for
relief against the debtor, whichever is earlier;
(viii) Tenant's making or consenting to an assignment for the
benefit of creditors or a common law composition of creditors;
or
(ix) Tenant's interest in this Lease being taken on execution
in any action against the Tenant.
(b) LANDLORD'S REMEDIES. Should an Event of Default occur under
this Lease, Landlord may pursue any or all of the following
remedies:
(i) TERMINATION OF LEASE. Landlord may terminate this
Lease by giving written notice of such termination to Tenant,
or by reentry, whereupon the mailing of such notice of
termination addressed to Tenant, or in the case of reentry,
upon such reentry, with or without notice or demand and with
or without process of law (forcibly if necessary), this Lease
shall automatically cease and terminate and Tenant shall be
immediately obligated to quit the Premises. Termination by
entry or notice as provided herein shall be effective and
complete upon entry or the mailing of notice, respectively,
and shall require no further action on the part of Landlord
including, without limitation, resort to legal process under
applicable law. Any other notice to quit or notice of
Landlord's intention to reenter the Premises is hereby
expressly waived. If Landlord elects to terminate this Lease,
everything contained in this Lease on the part of Landlord to
be done and performed shall cease without prejudice, subject,
however, to the right of Landlord to recover from Tenant all
Annual Rent and Additional Rent and any other sums accrued up
to the time of termination or recovery of possession by
Landlord, whichever is later.
(ii) SUIT FOR POSSESSION. Landlord may proceed to recover
possession of the Premises under and by virtue of the
provisions of the laws of the state in which the Premises are
located or by such other proceedings, including reentry and
possession, as may be applicable.
(iii) RELETTING OF PREMISES. Should this Lease be
terminated before the expiration of the Term of this Lease by
reason of Tenant's default as hereinabove provided, or if
Tenant shall abandon or vacate the Premises before the
expiration or termination of the Term of this Lease without
having paid the full rental for the remainder of such Term,
Landlord shall have the option, but not the obligation, to
relet the Premises for such rent and upon such terms as are
not unreasonable under the circumstances and, if the full
Annual Rent and Additional Rent reserved under this Lease (and
any of the costs, expenses or damages indicated below) shall
not be realized by Landlord, Tenant shall be liable for all
damages sustained by Landlord, including, without limitation,
deficiency in rent, reasonable attorneys' fees, brokerage fees
and expenses of placing the Premises in first-class rentable
condition including without limitation any alterations and
improvements. Landlord, in putting the Premises in good order
or preparing the same for rerental may, at Landlord's option,
make such alterations, repairs or replacements in the Premises
as Landlord, in its sole judgment, considers advisable and
necessary for the purpose of reletting the Premises, and the
making of such alterations, repairs, or replacements shall not
operate or be construed to release Tenant from liability
hereunder as aforesaid. Landlord shall in no event be liable
in any way whatsoever for failure to relet the Premises, or in
the event that the Premises are relet, for failure to collect
the rent under such reletting, and in no event shall Tenant be
entitled to receive the excess, if any, of such net rent
collected over the sums payable by Tenant to Landlord
hereunder.
<PAGE>
(iv) ACCELERATION OF PAYMENT. If Tenant shall fail to pay
any monthly installment of Annual Rent and/or Additional Rent
pursuant to the terms of this Lease, within ten (10) days of
the date when each such payment is due, for three (3)
consecutive months, or three (3) times in any period of twelve
(12) consecutive months, then Landlord may, by giving written
notice to Tenant, exercise any of the following options: (A)
declare the entire rent reserved under this Lease to be due
and payable within ten (10) days of such notice; (B) declare
the rent reserved under this Lease for the next six (6) months
(or at Landlord's option for a lesser period) to be due and
payable within ten (10) days of such notice; or (C) require an
additional security deposit to be paid to Landlord within ten
(10) days of such notice in an amount not to exceed six (6)
months rent. Landlord may invoke any of the options provided
for herein at any time during which an Event of Default
remains uncured.
(v) MONETARY DAMAGES. Any damage or loss of rent
sustained by Landlord may be recovered by Landlord, at
Landlord's option, at the time of the reletting, or in
separate actions, from time to time, as said damage shall have
been made more easily ascertainable by successive relettings,
or at Landlord's option in a single proceeding deferred until
the expiration of the Term of this Lease (in which event
Tenant hereby agrees that the cause of action shall not be
deemed to have accrued until the date of expiration of said
Term) or in a single proceeding prior to either the time or
reletting or the expiration of the Term of this Lease. In
addition, should it be necessary for Landlord to employ legal
counsel to enforce any of the provisions herein contained,
Tenant agrees to pay all attorney's fees and court costs
reasonably incurred.
(vi) ANTICIPATORY BREACH; CUMULATIVE REMEDIES. Nothing
contained herein shall prevent the enforcement of any claim
Landlord may have against Tenant for anticipatory breach of
the unexpired Term of this Lease. In the event of a breach or
anticipatory breach by Tenant of any of the covenants or
provisions hereof, Landlord shall have the right of injunction
and the right to invoke any remedy allowed at law or in equity
as if reentry, summary proceedings and other remedies were not
provided for herein. Mention in this Lease of any particular
remedy shall not preclude Landlord from any other remedy, in
law or in equity, whether or not mentioned herein. Landlord's
election to pursue one or more remedies, whether as set forth
herein or otherwise, shall not bar Landlord from seeking any
other or additional remedies at any time and in no event shall
Landlord ever be deemed to have elected one or more remedies
to the exclusion of any other remedy or remedies. Any and all
rights and remedies that Landlord may have under this Lease,
and at law and in equity, shall be cumulative and shall not be
deemed inconsistent with each other, and any two or more of
all such rights and remedies may be exercised at the same time
insofar as permitted by law. Tenant hereby expressly waives
any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord
obtaining possession of the Premises, by reason of the
violation by Tenant of any of the covenants and conditions of
this Lease, or otherwise.
(c) WAIVER. If, under the provisions hereof, Landlord shall institute
proceedings against Tenant and a compromise or settlement thereof shall
be made, the same shall not constitute a waiver of any other covenant,
condition or agreement herein contained, nor of any of Landlord's
rights hereunder. No waiver by Landlord of any breach of any covenant,
condition or agreement herein contained shall operate as a waiver of
such covenant, condition, or agreement itself, or of any subsequent
breach thereof. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installments of rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor
shall any endorsement or statement on any check or letter accompanying
a check for payment of Annual Rent, Additional Rent or any other sum be
deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance
of such Annual Rent, Additional Rent or any other sum or so pursue any
other remedy
<PAGE>
provided in this Lease. No reentry by Landlord, and no acceptance by
Landlord of keys from Tenant, shall be considered an acceptance of a
surrender of the Lease or Premises.
(d) RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT. If Tenant defaults in
the making of any payment or in the doing of any act herein required to
be made or done by Tenant, then Landlord may, but shall not be required
to, make such payment or do such act, and charge the amount of the
expense thereof, if made or done by Landlord, with interest thereon at
the rate per annum which is four percent (4%) greater than the "base
lending rate" then in effect at The First National Bank of Boston,
Boston, Massachusetts, or the highest rate permitted by law, whichever
may be less; with it being the express intent of the parties that
nothing herein contained shall be construed or implemented in such a
manner as to allow Landlord to charge or receive interest in excess of
the maximum legal rate then allowed by law. Such payment and interest
shall constitute Additional Rent hereunder due and payable with the
next monthly installment of Annual Rent; but the making of such payment
or the taking of such action by Landlord shall not operate to cure such
default or to stop Landlord from the pursuit of any remedy to which
Landlord would otherwise be entitled.
(e) LATE PAYMENT. If Tenant fails to pay any installment of Annual
Rent and/or Additional Rent on or before the first (1st) day of the
calendar month when such installment becomes due and payable, Tenant
shall pay to Landlord a late charge of five percent (5%) of the amount
of such installment, and, in addition, such unpaid installment shall
bear interest at the rate per annum which is four percent (4%) greater
than the "base lending rate" then in effect at The First National Bank
of Boston, Boston, Massachusetts, or the highest rate permitted by law,
whichever may be less; with it being the express intent of the parties
that nothing herein contained shall be construed or implemented in such
manner as to allow Landlord to charge or receive interest in excess of
the maximum legal rate then allowed by law. Such late charge and
interest shall constitute Additional Rent hereunder due and payable
with the next monthly installment of Annual Rent due, or if payments
have been accelerated pursuant to this Paragraph 19, due and payable
immediately.
(f) LIEN ON PERSONAL PROPERTY. INTENTIONALLY OMITTED.
20. LIABILITY OF LANDLORD; INDEMNIFICATION.
(a) Landlord shall not be liable to Tenant, its employees, agents,
contractors, business invitees, licensees, customers, clients, family
members or guests for any damage, compensation or claim arising from
(i) the necessity of repairing any portion of the Premises, Building or
Lot, (ii) the interruption in the use of the Premises, (iii) accident
or damage to persons or property resulting from the use or operation
(by Landlord, Tenant, or any other person or persons whatsoever) of the
Premises or of any elevators or heating, cooling, electrical or
plumbing equipment or apparatus in the Premises or Building, (iv) the
termination of this Lease by reason of the destruction of the Premises,
(v) any fire, robbery, theft, mysterious disappearance and/or any other
casualty, (vi) any leakage in any part or portion of the Premises or
the Building, or from water, rain or snow that may leak into, or flow
from, any part of the Premises or the Building, or from drains, pipes
or plumbing work in the Building, or from any other cause whatsoever,
or (vii) for any personal injury arising from the use, occupancy and
condition of the Premises, unless such personal injury is caused by the
gross negligence of Landlord, or a willful act or failure to act on the
part of Landlord. Tenant shall not be entitled to any abatement or
diminution of rent as a result of any of the foregoing occurrences, nor
shall the same release Tenant from its obligations hereunder or
constitute an eviction. Any goods, property or personal effects of
Tenant, its employees, agents, contractors, business invitees,
licensees, customers, clients, family members or guests, stored or
placed in or about the Premises, Building or Lot shall be at their
risk, and the Landlord shall not in any manner be held responsible
therefor. The employees of the Landlord are prohibited from receiving
any packages or other articles delivered to the Building by Tenant, and
if any such employee receives any such package or articles, such
employee shall be the agent of the Tenant for such purposes and not of
the Landlord. Tenant acknowledges that Landlord will not carry
<PAGE>
insurance on Tenant's furniture, furnishings, fixtures, equipment
and/or improvements in or to the Premises and Tenant shall have full
responsibility therefor and shall bear the full risk of loss thereto.
It is expressly understood and agreed that Tenant shall look to its
business interruption and property damage insurance policies, and not
to Landlord or its agents or employees, for reimbursement for any
damages or losses incurred as a result of any of the foregoing
occurrences, other than clause (a)(vii) above, and that said policies
shall contain waiver of subrogation clauses.
(b) If Landlord shall fail to perform any covenant, term or condition
of this Lease upon Landlord's part to be performed or be guilty of
negligence with regard to any party claiming by, under or through
Tenant and, as a consequence of such default or negligence, Tenant
shall recover a money judgment against Landlord, such judgment shall be
satisfied only out of the proceeds of sale received upon execution of
such judgment and levy thereof against the right, title and interest of
Landlord in the Premises, Building and Lot, and neither Landlord nor
any of the partners designated herein as Landlord comprising any
partnership designated herein as Landlord or any trustees or
beneficiaries designated herein as Landlord shall be personally liable
for any judgment rendered against Landlord or any deficiency
thereunder. It is agreed that in no event shall Tenant have any right
to levy execution against any property of Landlord other than its
interest in the Premises, Building and Lot and the rents or other
income therefrom as hereinbefore expressly provided. In the event of
sale or other transfer of Landlord's right, title and interest in the
Premises, Building and Lot, Landlord shall be released from all
liability and obligations hereunder. If all or any part of Landlord's
interest in this Lease shall be held by a trust, no trustee,
shareholder or beneficiary of such trust shall be personally liable for
any of the covenants or agreements, expressed or implied, hereunder. IN
NO EVENT SHALL LANDLORD EVER BE PERSONALLY LIABLE TO TENANT OR ANYONE
CLAIMING BY, UNDER OR THROUGH TENANT FOR CONSEQUENTIAL DAMAGES, SUCH
DAMAGES OR CLAIMS THEREFOR BEING HEREBY EXPRESSLY WAIVED BY TENANT.
(c) Except to the extent caused by any willful or negligent act or
omission of Landlord or its agents, Tenant hereby agrees to indemnify and hold
Landlord harmless from and against any cost, damage, claim, liability or expense
(including attorney's fees) incurred by or claimed against Landlord, directly or
indirectly, which is occasioned by or results from any default hereunder or any
willful or negligent act or omission on the part of Tenant, its agents,
employees, contractors, invitees, licensees, customers, clients, family members
and guests, or as a result of or in any way arising from Tenant's use and
occupancy of the Premises, Building and/or Lot or in any other manner which
relates to the business of Tenant. Any such cost, damage, claim, liability or
expense incurred by Landlord for which Tenant is obligated to reimburse Landlord
shall be deemed Additional Rent due and payable as Additional Rent upon demand
by Landlord. It is expressly understood and agreed that Tenant's liability under
this Lease extends to the acts and omissions of any subtenant or assignee and
any agent, employee, contractor, invitee, licensee, customer, client, family
member and guest of any subtenant or assignee.
21. LEASE NOT TO BE RECORDED. Tenant agrees that it will not record this
Lease.
22. SEVERABILITY. It is agreed that if any provision of this Lease shall be
determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provisions of this Lease, all
of which other provisions shall remain in full force and effect; and it
is the intention of the parties that if a provision of this Lease is
capable of two constructions, one of which would render the provision
void and the other of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
23. DELAYS. In any case where either party hereto is required to do any
act, other than the payment of money including without limitation
Annual Rent and Additional Rent, and is delayed in so doing by reason
of or resulting from an Act of God, war, civil commotion, fire or other
casualty, labor difficulties, shortages of labor, materials or
equipment, government regulations or other causes beyond such party's
reasonable control, such period of time shall not be counted in
determining the time
<PAGE>
during which such work or act shall be completed, whether such time
shall be designated by a fixed date, a fixed time or "a reasonable
time". In any case where work is to be paid for out of insurance
proceeds or condemnation awards, due allowance shall be made for delays
in the collection of such proceeds and awards.
24. ESTOPPEL CERTIFICATES. Tenant and Landlord each agree from time to
time, upon not less than fifteen (15) days prior written request, to
execute, acknowledge and deliver to the other a statement in writing
certifying that this Lease is unmodified and in full force and effect,
or if modified, stating the modifications; that the requested party has
no defenses, offsets or counterclaims against its obligations under
this Lease (including Tenant's obligation to pay Annual Rent and
Additional Rent) or, if there are any defenses, offsets, or
counterclaims, setting them forth in reasonable detail; and setting
forth the dates to which the Annual Rent and Additional Rent and other
charges have been paid. Any such statement delivered pursuant to this
paragraph may be relied upon by any prospective purchaser or mortgagee
of the Premises, Building and/or Lot, or any prospective assignee of
any such mortgage, or any prospective assignee of this Lease, or any
other similarly interested party.
25. WAIVER OF SUBROGATION. Tenant and Landlord each hereby release the
other to the extent of their respective insurance coverage, from any
and all liability for any loss or damage caused by fire or any of the
extended coverage casualties or any other casualty insured against,
even if such fire or other casualty shall be brought about by the fault
or negligence of Tenant, Landlord or their agents. Tenant and Landlord
agree that their respective policies covering such loss or damage shall
contain a clause to the effect that this release shall not affect said
policies or the right of Tenant or Landlord, as the case may be, to
recover thereunder and otherwise acknowledging this mutual waiver of
subrogation.
26. WAIVER. No waiver of any condition or legal right or remedy shall be
implied by the failure of Landlord to declare a forfeiture, or any
other reasons, and no waiver of any condition or covenant shall be
valid unless it be in writing signed by Landlord. No waiver by Landlord
in respect to one tenant of the Building or Lot shall constitute a
waiver in favor of any other tenant, nor shall the waiver or a breach
of any condition or covenant be claimed or pleaded to excuse a future
breach of the same condition or covenant. The mention in this Lease of
any specific right or remedy shall not preclude Landlord from
exercising any other right or from having any other remedy or from
maintaining any action to which it may be otherwise entitled either at
law or in equity; and for the purpose of any suit by Landlord brought
or based on this Lease, this Lease shall be construed to be a divisible
contract, to the end that successive actions may be maintained as
successive periodic sums shall mature under this Lease. It is further
agreed that failure to include in any suit or action any sum or sums
then matured shall not be a bar to the maintenance of any suit or
action for the recovering of said sum or sums so omitted at a later
time.
27. SURRENDER AND HOLDING OVER. Tenant shall deliver up and surrender to
Landlord possession of the Premises upon the expiration of the Term of
this Lease or its earlier termination in any way, broom clean and in as
good condition and repair as the same shall be at the commencement of
said Term (damage by fire and other perils covered by standard fire and
extended coverage insurance and ordinary wear and tear, subject to
Paragraph 9 of this Lease, only excepted), and shall deliver the keys
at the office of Landlord or Landlord's agent. Should Tenant or any
party claiming under Tenant remain in possession of the Premises, or
any part thereof, after any termination of this Lease, no tenancy or
interest in the Premises shall result therefrom but such holding over
shall be an unlawful detainer and all such parties shall be subject to
immediate eviction and removal, and Tenant shall upon demand pay to
Landlord, as liquidated damages, a sum equal to 1.5 times the Annual
Rent, Additional Rent and any other sums to be paid as specified herein
for any period during which Tenant shall hold the Premises after the
stipulated Term of this Lease may be terminated or have expired.
<PAGE>
28. LEASE INURES TO BENEFIT OF SUCCESSORS AND ASSIGNS. Subject to the
provisions hereof, this Lease and all the terms, covenants, provisions
and conditions herein contained shall inure to the benefit of and be
binding upon their respective successors and assigns including, without
limitation, their heirs, personal representative, debtor in possession,
trustee, custodian, receiver, or any similar functionary serving in
proceedings brought by or against Landlord or Tenant (or their
respective successors and assigns) under the Bankruptcy Code (as now or
hereafter in effect), Insolvency Laws, or any similar laws relating to
bankruptcy, insolvency or the adjustment of debts, provided, however,
that no subletting or assignment by, from, through or under Tenant in
violation of the provisions hereof shall vest in the subletees or
assigns any right, title or interest whatever.
29. QUIET ENJOYMENT. Landlord hereby covenants and agrees that if Tenant
shall perform all the covenants, agreements and other provisions herein
stipulated to be performed or observed on Tenant's part, Tenant shall
at all time during the continuance hereof have the peaceable and quiet
enjoyment and possession of the Premises without any manner of
molestation or hindrance from Landlord or any person or persons
lawfully claiming under Landlord, subject, however, to the terms of
this Lease and any instruments having a prior lien. The rights granted
by this Paragraph are in lieu of any other rights Tenant may have by
statute or at law.
30. NO PARTNERSHIP. Landlord does not, in any way or for any purpose,
become a partner of Tenant in the conduct of its business, or
otherwise, or joint venturer or a member of a joint enterprise with
Tenant.
31. NOTICES. Any notice or consent required to be given by or on behalf of
either party to the other shall be in writing and shall be given by
mailing such notice or consent by registered or certified mail, return
receipt requested, postage prepaid, addressed, if to Landlord, at the
address hereinabove specified, and, if to Tenant, at the address
hereinabove specified if prior to the Commencement Date and thereafter
to the Premises, or at such other address as may be specified from time
to time in writing sent to the other party by like notice. Notices so
given shall be deemed to be given and effective at the time they are
deposited with the United States Postal Service.
32. INTERPRETATION. Wherever either the word "Landlord" or "Tenant" is used
in this Lease, it shall be considered as meaning the parties
respectively, wherever the context permits or requires, and when the
singular and/or neuter pronouns are used herein, the same shall be
construed as including all persons and corporations designated
respectively as Landlord or Tenant in this instrument wherever the
context requires.
33. PARAGRAPH HEADINGS. The paragraph headings are inserted only as a
matter of convenience and for reference and in no way define, limit or
describe the scope or intent of this Lease nor in any way affect this
Lease.
34. BROKER'S COMMISSIONS. Tenant warrants that there are no claims for
broker's commission or finder's fees in connection with its execution
of this Lease or the tenancy hereby created and agrees to indemnify and
save Landlord harmless from any liability that may arise from such
claim, including reasonable attorneys fees.
35. INTERRUPTION OF SERVICES. With respect to any services furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to
furnish the same when prevented from doing so by 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 because of war or other emergency, or for
any cause beyond Landlord's reasonable control, or for any cause due to
any act or neglect of Tenant or its servants, agents,
<PAGE>
employees, licensees or any person claiming by, through or under
Tenant, and in no event shall Landlord ever be liable to Tenant for any
indirect or consequential damages.
36. SUBORDINATION. Upon the written request of Landlord, Tenant shall enter
into a recordable agreement with the holder of any present or future
mortgage of the Premises, Building or Lot which shall provide that (i)
this Lease shall be subordinated to such mortgage, (ii) in the event of
foreclosure of said mortgage or any other action thereunder by the
mortgagee, the mortgagee (and its successors in interest) and Tenant
shall be directly bound to each other to perform the respective
undischarged obligations of Landlord and Tenant hereunder (in the case
of Landlord accruing after such foreclosure or other action and in the
case of Tenant whether accruing before or after such foreclosure or
other action), (iii) this Lease shall continue in full force and
effect, and (iv) Tenant's rights hereunder shall not be disturbed,
except as in this Lease provided. The word "mortgage" as used herein
includes mortgages, deeds of trust and all similar instruments, all
modifications, extensions, renewals and replacements thereof, and any
and all assignments of the Landlord's interest in this Lease given as
collateral security for any obligation of Landlord. Landlord agrees to
use its best efforts to obtain a Non-Disturbance Agreement.
37. MODIFICATION. In the event that any holder or prospective holder of any
mortgage, as hereinbefore defined, which includes the Premises as part
of the mortgaged Premises, shall request any reasonable modification of
any of the provisions of this Lease, other than a provision directly
related to the Annual Rent, Additional Rent or other sums payable
hereunder, the duration of the Term hereof, or the size, use or
location of the Premises, Tenant agrees that Tenant will enter into a
written agreement in recordable form with such holder or prospective
holder which shall effect such modification and provide that such
modification shall become effective and binding upon Tenant and shall
have the same force and effect as an amendment to this Lease in the
event of foreclosure or other similar action taken by such holder or
prospective holder or by anyone claiming by, through or under such
holder or prospective holder.
38. MULTIPLE PARTIES. If Tenant shall consist of more than one person or if
there shall be a guarantor of Tenant's obligations, then the liability
of all such persons, including the guarantor, if any, shall be joint
and several.
39. SUBMISSION NOT AN OPTION. The submission of this Lease for examination
and negotiation does not constitute an offer to lease, a reservation
of, or option for the Premises and shall vest no right in any party.
Tenant or anyone claiming under or through Tenant shall have the rights
to the Premises as set forth herein and this Lease becomes effective as
a Lease only upon execution, acknowledgment and delivery thereof by
Landlord and Tenant, regardless of any written or verbal representation
of any agent, manager or employee of Landlord to the contrary.
40. FINANCIAL INFORMATION. It is hereby understood and agreed that Tenant
will supply to the Landlord, on an annual basis, a copy of Tenant=s
audited financial statement within ninety (90) days following Tenant=s
fiscal year end. Any information obtained by Landlord pursuant to the
provisions of this Paragraph shall be treated as confidential, except
that Landlord may disclose such information to its lenders.
<PAGE>
41. OPTION TO EXPAND. In the event Tenant has not been in default of any of
the terms, conditions and covenants of this Lease Agreement and any
Amendments made hereto during the term hereof, Tenant shall have the
option to lease 18,674 square feet of space from the Landlord located
on the first (1st) floor of 33 Cherry Hill Drive, Danvers, MA 01923,
subject to availability and further subject, but not limited to, the
following terms and conditions:
1. Tenant's additional space requirement must be for a minimum of
18,674 square feet of space (hereinafter referred to as the
"Expansion Premises").
2. Tenant must notify Landlord in writing ("Tenant's Notice") of
its additional space requirements six (6) months prior to the
date Tenant desires such Expansion Premises, but not prior to
January 1, 2001 and not later than January 31, 2001.
3. Tenant must occupy said Expansion Premises and the Premises
demised hereunder for a term which shall be coterminous with
the existing Lease Term.
4. Said Expansion Premises shall be offered to Tenant at the same
per square foot rental rate then being paid by Tenant in
accordance with Section 1 herein.
5. The Expansion Premises shall be leased to Tenant in its
"as-is" condition.
6. Landlord shall deliver the Expansion Premises no later than
June 30, 2001, provided, however, if Landlord is unable to
deliver the Expansion Premises on June 30, 2001 as a result of
the existing tenant holding over in the Expansion Premises,
Landlord shall not be responsible for any delay caused thereby
and Landlord shall diligently pursue all its remedies under
the law or its lease with such third party to evict such
holdover tenant from the Expansion Premises.
It is hereby agreed between the parties that immediately following
Landlord's receipt of Tenant's Notice indicating its desire to lease
Expansion Premises, Landlord and Tenant shall enter into a mutually
acceptable Amendment to this Lease setting forth the terms and
provisions set forth hereinabove.
42. LEASE INDUCEMENT. Landlord shall pay Tenant an inducement payment in
the amount of SEVENTY-FIVE THOUSAND AND 00/100 ($75,000.00) Dollars
(the "Lease Inducement Payment"). The Lease Inducement Payment shall be
paid to Tenant provided there is no Event of Default outstanding under
this Lease (and if any such Event of Default is subsequently cured, any
amount unpaid on account of such Event of Default shall be paid) thirty
(30) days from the Commencement Date of this Lease.
<PAGE>
43. ENTIRE AGREEMENT. This Lease and the exhibits and any rider attached
hereto, set forth all the covenants, promises, agreements conditions,
representations and understandings between Landlord and Tenant
concerning the Premises and there are no covenants, promises,
agreements, conditions, representations or understandings, either oral
or written between them other than those herein set forth and this
Lease expressly supersedes any proposals or other written documents
relating hereto. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be
binding upon Landlord and Tenant unless reduced to writing and signed
by them. Tenant agrees that Landlord and its agents have made no
representations or promises with respect to the Premises, or the
Building of which the Premises are a part, or the Lot, except as herein
expressly set forth.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease to
be signed in triplicate, under seal, as of the day and year first above written,
one copy for Tenant and two copies to Landlord.
Witness as to Landlord: Landlord: Thomas J. Flatley d/b/a
The Flatley Company
/s/Francesca Austin /s/Thomas J. Flatley
------------------------ ---------------------------
By Thomas J. Flatley
Its President
Witness as to Tenant: Tenant: IBIS Technology Corporation
/s/Nancy A. Bailey /s/Debra L. Nelson
------------------------ ---------------------------
By Debra L. Nelson
Its Chief Financial Officer
Duly Authorized
<PAGE>
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF NORFOLK )
APRIL 4, 2000.
Then personally appeared Thomas J. Flatley to me known to be the individual
who acknowledged himself to be the President of The Flatley Company, Landlord,
and that he, as such, being authorized to do so, executed the foregoing
instrument and acknowledged the execution thereof to be his free act and deed
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Norfolk
County, Braintree, Massachusetts, this 4TH day of APRIL, 2000.
/s/Sara T. Capaccioli
----------------------
Notary Public
My commission expires: May 19, 2006
STATE OF MASSACHUSETTS )
) SS.
COUNTY OF ESSEX )
FEBRUARY 28, 2000.
Then personally appeared Debra L. Nelson to me known to be the individual
who acknowledged himself to be the Chief Financial Officer of Ibis Technology
Corporation, Tenant, and that she, as such, being authorized to do so, executed
the foregoing instrument and acknowledged the execution thereof to be his free
act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at ESSEX
County, DANVERS, MA, this 28 day of FEBRUARY, 2000.
/s/Nancy A. Bailey Notary Public
My commission expires: 2/19/04
<PAGE>
Exhibit "A"
Floor Plans
<PAGE>
Exhibit "B"
Landlord's Work
Description of Landlord's Work:
1. Landlord shall demise the Premises for Tenant's occupancy and construct a
vestibule to be located at the back door of the Building.
2. Landlord shall separately meter the electricity.
