EXHIBIT 10.6
LEASE AGREEMENT
Lease Agreement entered into this 18th day of June, 1999 by and between
XXXX X. XXXXXX, XX., XXXXXXX X. XXXXXXXXX and XXXXXXX XXXXXXXX, XX. TRUSTEES OF
PARK PLACE BROOKDALE REALTY TRUST recorded with the Registry District of Hampden
County as Document No. 131504 on Certificate of Title 28989, of 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx [hereinafter "LANDLORD"] and XXXXXXXXXXXX.XXX,
INC., a Delaware corporation, of Concord, Massachusetts [hereinafter "TENANT"].
1. PREMISES: The LANDLORD does hereby lease, demise and let unto the
TENANT the premises described as follows: the entire building located at 000
Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx, containing approximately 25,000
square feet of office and warehouse space (the "Premises"). The lot on which the
Premises is located has a total area of approximately 2.8 acres and is legally
described on Exhibit A (the "Land"). As a right appurtenant to the Premises,
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Tenant shall have the exclusive right to use all of the parking spaces,
driveways, sidewalks and access roads on the Land, and in common with Landlord,
the benefit of all easements and appurtenances which benefit the Land. LANDLORD
makes no representations concerning zoning relating to TENANT's intended use and
leaves TENANT to its own inquiry.
2. TERM: The term of the lease shall be for five (5) years, commencing on
the first of August 1999 (the "Scheduled Commencement Date") and terminating on
the last day of July 2004. On the Scheduled Commencement Date, LANDLORD agrees
that it shall deliver possession of the Premises to TENANT in "broom clean"
condition free of all tenants and their possessions with LANDLORD's work
described on Exhibit B (the "Landlord's Work") completed and Landlord shall
provide Tenant with a copy of a valid certificate of occupancy for the entire
Premises. The date on which the foregoing requirements are satisfied shall be
the "Commencement Date" but in no event shall the Commencement Date be earlier
that the Scheduled Commencement Date. In the event the foregoing requirements
are not satisfied by the Scheduled Commencement Date, then the Commencement Date
shall be delayed until each of the foregoing requirements are satisfied. If the
Commencement Date does not occur by September 1, 1999, TENANT shall have the
right to terminate this Lease by written notice to the LANDLORD.
3. RENT:
a. Commencing on the Commencement Date, rent for the Premises for
the term of the lease shall be as follows:
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Monthly Annual
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Year 1 $ 7,083.33 $ 85,000.00
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Year 2 9,583.33 115,000.00
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Year 3 10,208.33 122,000.00
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Year 4 10,666.66 128,000.00
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Year 5 11,250.00 135,000.00
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b. In the event that any payment of rent is not made to the LANDLORD
by the close of business on the fifth (5/th/) day following the
due date, a late charge equal to three percent (3%) of the
payment due shall be paid by the TENANT.
c. In addition to the payment of the rent due under Section 3(c)
above, TENANT shall pay the following reasonable expenses of
LANDLORD: (i) accounting expenses relating to the administration
of this Lease, (ii) attorneys' fees incurred by LANDLORD in
enforcing any of TENANT's obligations under this Lease, (iii)
expenses of LANDLORD incurred in connection with responding to
TENANT's request for consent as required under this Lease, and
(iv) reasonable administrative and office expenses (including
telephone, postage and stationary supplies) incurred by LANDLORD
in carrying out its obligations under this Lease.
d. TENANT shall, provided it is not in default under the terms of
this lease beyond applicable notice and cure periods, have an option to
renew this lease for an additional five (5) years or an additional one (1)
year period upon giving LANDLORD 12 months written notice ("TENANT's
Extension Notice") TENANT's Extension Notice shall specify if TENANT is
extending the term for one year or five years. Rent for the option period
shall be at the then Fair Market Value (as defined below), however, in no
event shall the rent be less than that of the final year of the first term.
Within thirty (30) days of LANDLORD's receipt of TENANT's Extension Notice,
LANDLORD shall notify TENANT of LANDLORD's good faith estimate of Fair
Market Rent for the option period (the "Proposed Rent Notice"). "Fair
Market Rent" shall be the rental rate that willing unrelated parties
negotiating at arms length would enter into a lease for space similar to
the Premises in the Great Springfield area on substantially the same terms
and conditions as contained in the Lease for the option period specified in
TENANT's Extension Notice. TENANT may either accept the Fair Market Rent
contained in the Proposed Rent Notice or negotiate with LANDLORD for a
period of thirty (30) days after receipt of the Proposed Rent Notice. If
after such thirty (30) day period LANDLORD and TENANT are unable to agree
on the Fair Market Rent, the Fair Market Rent shall be determined according
to the following procedures:
(i) At any time after such 30-day period, LANDLORD and TENANT each
shall have the right, by written notice (a "Notice of
Arbitration") to the other, to demand arbitration of the
calculation of the Fair Market Rent. The party demanding
arbitration (the "first party") shall appoint an arbitrator in
the Notice of Arbitration. Within seven days after the Notice of
Arbitration is given, the other party (the "second party") shall
by notice to the first party appoint a second arbitrator. If the
second party fails to appoint a second arbitrator within such
seven-day period, the position taken by the first party shall be
deemed to be the correct calculation of the Fair Market Rent.
(ii) Within seven days after the designation of the second
arbitrator, LANDLORD and TENANT shall submit their respective
positions with respect to the calculation of the Fair Market
Rent to the two arbitrators. Within fourteen days after the
designation of the second arbitrator, the two arbitrators shall
determine the correct calculation of the Fair Market Rent. The
arbitrators, or either of them, shall give notice of such
resolution (or notice of their inability to reach agreement, as
the case may be) to the LANDLORD and the TENANT within such
fourteen-day period. Any agreement of the two arbitrators shall
be binding upon the LANDLORD and the TENANT.
(iii) If the two arbitrators are unable to reach an agreement within
such fourteen-day period, the two arbitrators shall, within such
fourteen-day period, designate a third arbitrator. If the two
arbitrators fail to agree upon the designation of a third
arbitrator within such fourteen-day period, then either party on
behalf of both may apply to the president of the Greater
Springfield Real Estate Board or, on his or her failure, refusal
or inability to act, to a court of competent jurisdiction, for
the designation of such third arbitrator.
(iv) Within seven business days after the designation of the third
arbitrator, the parties shall submit their respective positions
with respect to the calculation of the Fair Market Rent to the
third arbitrator. Within fourteen days after the designation of
the third arbitrator, the third arbitrator shall conduct such
hearings and investigations as he or she may deem appropriate
and determine the correct calculation of the Fair Market Rent.
Within such fourteen-day period, the third arbitrator shall give
notice of such resolution to Lessor and Lessee. The third
arbitrator's determination shall be binding upon Lessor and
Lessee.
(v) All arbitrators shall be qualified real estate professionals who
shall have had at least five years of experience appraising
buildings substantially similar to the Premises in the Greater
Springfield area. Tenant and Landlord shall each be entitled to
present evidence to the arbitrators in support of their
respective positions. The arbitrators shall not make any
determination inconsistent with the terms of this Lease. The
arbitrators shall not have the power to add to, modify or change
any of the provisions of this Lease. The determination of the
arbitrator(s) shall be conclusive and shall have the same force
as a judgment in a court of competent jurisdiction. Judgment on
the determination made by the arbitrator(s) under the foregoing
provisions may be entered in any court of competent
jurisdiction.
(vi) Each party shall pay the fees, costs and expenses of the
arbitrator appointed by such party and of the attorneys and
expert witnesses of such party and one-half of the other fees,
costs and expenses of arbitration and of the fees, costs and
expenses of the third arbitrator.
4. UTILITIES: On or before the Commencement Date, LANDLORD shall ensure
that all utilities necessary for the operation of the Premises are connected to
the Premises. TENANT shall be responsible for paying for all utilities
including, but not limited to, heat, electricity, gas, oil, water, sewer, and
all utilities, if allowed, shall be carried in the name of the TENANT.
5. REAL ESTATE TAXES: TENANT shall, in addition to rent, pay all real
estate taxes, including betterment assessments, assessed on the Premises and the
Land, pro rated for the period during which the TENANT is occupying the
Premises. LANDLORD represents and warrants that the Land is assessed as a
single tax parcel and that no other improvements shall be constructed on the
Land without the prior written consent of Tenant. LANDLORD shall provide TENANT
with a copy of each real estate tax invoice from the local assessor for the Land
and Premises, and upon receipt of same, TENANT shall pay 1/12 of the annual
taxes indicated on such invoice with each monthly rent payment to LANDLORD, who
shall hold said sums in escrow in an interest bearing account, and LANDLORD
shall pay the taxes when due. At the end of each fiscal tax year, LANDLORD
shall refund any overpayments on account of real estate taxes made by TENANT.
TENANT, at its own expense, may apply for an abatement of real estate taxes at
any time in its own name or the name of the LANDLORD. If either the LANDLORD or
TENANT prosecutes an application for an abatement, the other shall cooperate and
furnish any pertinent information in its files reasonably required by the
prosecuting party. Notwithstanding the above, the costs and expenses of
obtaining an abatement shall be a first charge against the abatement. LANDLORD
shall pay all interest accruing on the tax escrow amount on an annual basis to
TENANT. Provided TENANT makes the payments due hereunder, TENANT shall not be
responsible for, and LANDLORD shall pay, all fees, interest and fines for the
late payment of taxes.
6. USE: TENANT shall use the Premises only for office, warehouse,
distribution, packaging, assembly, retail, light manufacturing and accessory
uses. Any other purposes or uses may be undertaken only with written permission
of the LANDLORD. No trade or occupation shall be conducted on the Premises or
use made thereof which shall be unlawful or contrary to any law or regulation,
including, but not limited to the Zoning By-Laws of Springfield and Section 4 of
the Agreement Imposing Protective Covenants for Industry East dated October 27,
1970 to the extent the same remains in full force and effect during the term of
this Lease. No hazardous materials or substances, as defined in Massachusetts
General Laws, c. 21E, shall be stored or used on the Premises (except for such
hazardous materials and substances as are customarily used in connection with
office, distribution and/or warehouse use, provided the same is done in
compliance with applicable law) without the express written permission of the
LANDLORD and the obtaining of any required permits and licenses.
7. SUBLEASING: TENANT shall not sublet or assign the Premises or this
lease without the express written consent of the LANDLORD, which consent shall
not be unreasonably withheld, conditioned or delayed. Notwithstanding any
contrary provision of this Lease, TENANT shall have the right, without the prior
consent of LANDLORD, to assign this Lease and to sublet all or any portion of
the Premises to any person or entity (a) controlling, controlled by, or under
common control with TENANT, (b) acquiring all or substantially all of the assets
of TENANT or (c) with or into which TENANT merges or consolidates.
8. MAINTENANCE AND REPAIRS: LANDLORD agrees that at the commencement of
the tenancy all utilities and mechanical systems (including, without limitation,
the electrical, plumbing and HVAC systems) shall be in good working order and
LANDLORD shall do the pre-occupancy work as detailed in the attached Exhibit B.
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TENANT agrees to maintain the Premises in the same condition as they are at the
commencement of the term or as they may be put in during the term of this Lease,
reasonable wear and tear, damage by fire and other casualty only excepted.
TENANT shall be responsible for all necessary maintenance and repairs (but not
replacements), including but not limited to lights, air conditioning units,
heating units, plumbing, electrical, security system, sprinkler system,
elevator, doors, windows, including repairs to the interior and exterior of the
Building and parking areas. Work shall be done by authorized and licensed,
where appropriate, technicians. LANDLORD shall be notified in advance of any
work expected to exceed $2,000. Notwithstanding any provision of this Lease to
the contrary, LANDLORD agrees, at its cost, to (i) keep in good order, condition
and repair, the roof, the load-bearing walls (excluding exterior glass), the
foundation and the structure of the Building and the pavement of the parking
areas serving the Premises; (ii) make all replacements to the Building systems
(including, but not limited to, heating, ventilation and air conditioning
system, sprinkler system, plumbing system, and electrical system) and all
repairs estimated to cost in excess of $1,250.00 to such systems, provided
LANDLORD shall not be responsible for such repairs when the need arises from the
abuse or improper maintenance of such systems by TENANT, and provided further
that LANDLORD shall not be responsible for the routine maintenance and repair of
such systems.
a. TENANT shall be responsible for removing snow and ice from the
parking areas and sidewalks on the Land, including sanding and salting
where appropriate and reasonable for the safety of the customers and
occupants. Wherever necessary, TENANT shall replace plate glass and other
glass therein. The interior and exterior of the Premises shall be kept in
a neat and clean condition. TENANT shall be responsible for landscape
maintenance.
b. TENANT shall not permit the Premises to be overloaded, damaged,
stripped or defaced nor suffer any waste.
9. SIGNS: TENANT shall not erect or paint any signs on or about the
Premises without the written consent of the LANDLORD, which shall not be
unreasonably withheld. LANDLORD agrees that TENANT shall have the right to
place TENANT's name on the exterior of the Building, provided the same is done
in compliance with all zoning by-laws and Section 7 of the Agreement Imposing
Protective Covenants for Industry East dated October 27, 1970 to the extent the
same remains in full force and effect during the term of this Lease.
10. ALTERATIONS: TENANT shall not make structural alterations or
additions to the Premises, but may make nonstructural alterations, provided the
LANDLORD consents thereto, which consent shall not be unreasonably withheld,
conditioned or delayed. All such allowed alterations shall be at TENANT's
expense and shall be in quality at least equal to the present construction and
in compliance with all state and city building, zoning and sanitary codes.
TENANT shall not permit any mechanics' liens, or similar liens, to remain upon
the Premises for labor and material furnished to TENANT, or claimed to have been
furnished to TENANT, in connection with work or any character performed or
claimed to have been performed at the direction of TENANT and shall cause any
such lien to be bonded over or released of record forthwith without cost to
LANDLORD. Any such alterations or improvements made by the TENANT shall become
the property of the LANDLORD at the termination of occupancy as provided herein.
Provided, however, that TENANT may at the termination of the tenancy, remove any
trade or business items or fixtures, restoring the Premises to its pre-
installation condition. Notwithstanding the foregoing, TENANT shall have the
right to make non-structural alterations to the Premises without the consent of
LANDLORD but upon prior written notice to LANDLORD throughout the term of this
lease when the estimate cost of each alteration individually in less than
$5,000.00 and the aggregate cost of such alterations throughout the term is less
$75,000.00.
11. ENTRY AND INSPECTION: LANDLORD shall have the right upon reasonable
notice to enter upon the Premises during normal business hours, and other times
in case of emergency, for the purpose of inspecting the same and determining the
need for repairs. If repairs are necessary and are required to be made by the
TENANT pursuant to the terms hereof, LANDLORD may demand that TENANT make the
same forthwith, and if TENANT refuses or neglects to commence such repairs and
complete the same with reasonable dispatch after such demand, LANDLORD may (but
shall not be required to) make or cause such repairs to be made. LANDLORD may
add the reasonable and actual cost of such repairs to TENANT's rent.
12. INDEMNIFICATION: TENANT agrees to indemnify and save harmless the
LANDLORD from and against all claims of whatever nature arising from willful
misconduct or negligence of the TENANT or TENANT's contractors, licensees,
agents, servants, employees, members, officers, guests or invitees. LANDLORD
shall indemnify, defend and hold harmless TENANT from all liabilities, expenses,
damages, causes of action, suits, claims or judgments caused by or arising out
of the negligence or willful misconduct of LANDLORD or its agents, employees,
contractors, licensees, servants, members, officers, guest or invitees. This
indemnity and hold harmless agreement shall include indemnity against all
reasonable costs, expenses and liabilities incurred in connection with any such
claim or process brought thereon, and the defense thereof, including reasonable
attorney's fees.
13. INSURANCE: TENANT agrees to maintain in full force a policy of
commercial public liability and property damage insurance with minimum coverage
of $1,000,000 per occurrence combined single limit for bodily injury and
property damage with a $2,000,000 general aggregate limit. LANDLORD shall
maintain fire and casualty insurance on the Building in an amount equal to
replacement value of the Building, and TENANT, within thirty (30) days of
delivery of the insurer's invoice therefore, shall pay the premium for the same
to
LANDLORD, such premium to be prorated for any period not within the term. TENANT
shall provide LANDLORD evidence of its insurance coverage. TENANT agrees also to
keep its fixtures merchandise, equipment and other property insured against loss
or damage by fire or other casualty. It is understood that TENANT assumes all
risk of damage to TENANT's property and business arising from any cause whatever
including, but not limited to, loss by theft, unless caused by or arising out of
the negligence or willful misconduct of LANDLORD.
14. DAMAGE OR TAKING: Should a portion of the Premises, or of the Land of
which they are a part, be damaged by fire or other casualty, or be taken by
eminent domain, the LANDLORD shall forthwith proceed to repair and restore the
Premises and the Land to the condition that existed prior to such casualty or
taking as quickly as possible. In the event the cost to restore the Premises to
the condition that existed prior to such casualty exceeds $100,000, the LANDLORD
shall not be obligated to spend a sum for such work in excess of any insurance
proceeds recovered provided LANDLORD has maintained the insurance required to be
carried by it under this Lease. If (i) the LANDLORD is unable, despite the use
of diligent good faith efforts, to accomplish the restoration in the event of a
casualty within 90 days of such casualty and the cost to complete the
restoration in estimated in good faith to cost in excess of $100,000, or (ii)
the cost to complete the restoration in estimated in good faith to cost in
excess of $100,000 and the insurance proceeds available to LANDLORD are not
sufficient to cover the cost of such restoration (provided LANDLORD has
maintained the insurance required to be carried by it under this Lease),
LANDLORD may elect to terminate this lease provided LANDLORD delivers written
notice to TENANT within 100 days of the casualty, and in such event all
obligations shall cease. If (i) the LANDLORD fails to restore the Premises
within 90 days of a casualty or taking to the condition required hereunder, or
(ii) a taking of the Land reduces the amount of parking available to TENANT
below the levels required in order the comply with applicable zoning
requirements, TENANT may elect to terminate this lease provided TENANT delivers
written notice to LANDLORD within 100 days of the casualty or taking, and in
such event all obligations shall cease. In the event of any casualty or taking
which renders all or a portion of the Premises untenantable or inaccessible,
there shall be a pro rata abatement of all rent due hereunder from the date of
such casualty or taking until the Premises and access thereto are restored to
the condition which existed prior to the casualty or taking.
15. DEFAULT: In the event the TENANT shall default in the payment of any
installment or rent or other sums herein provided for, and said default shall
continue for 15 days after receipt of written notice from LANDLORD, or if the
TENANT shall default in the observance or performance of any other of the
TENANT's covenants, agreements or obligations hereunder, and such default shall
continue for 30 days after receipt of notice thereof from the LANDLORD (or such
longer period of time as is necessary, provided TENANT promptly commences and
diligently pursues the same to completion) or if the TENANT shall be declared
bankrupt or insolvent according to the law, or shall enter an assignment for the
benefit of creditors, then the LANDLORD shall have the right thereafter to enter
and take complete possession of the Premises in accordance with all applicable
laws and to terminate the lease, without prejudicing any other remedies
available under this lease or at law for arrears of rent or other charges or
damages. In the event TENANT defaults beyond applicable notice and cure periods
and vacates the Premises, LANDLORD agrees to use reasonable efforts to relet the
Premises in order to mitigate its damages.
16. OCCUPANCY: LANDLORD covenants that the TENANT, subject to the terms
and provisions of this lease, on payment of the rent, other charges, and
observing, keeping and performing all of the terms and provisions of this lease
shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises
during the term(s) hereof.
17. SHOWING PREMISES: During the last six months of the term or upon
receipt of notice from TENANT that it will not extent the term of this Lease,
LANDLORD may, upon reasonable advance notice to Tenant at reasonable times
during the term, enter and show the Premises to perspective tenants and post
rental signs on the Premises. Tenant shall have the right to have a
representative present at such showings.
18. TERMINATION: The TENANT shall at the expiration or other termination
of this lease remove all TENANT's goods and effect from the Premises, including
signs. TENANT shall deliver to the LANDLORD the Premises and all keys and other
fixtures connected therewith and all alterations and additions made to or upon
the Premises, in the same condition as they were at the commencement of the
term, or as they were put in during the term hereof, reasonable wear and tear
and damage by fire or other casualty only excepted. In the event of the
TENANT's failure to remove any of TENANT's property from the Premises, LANDLORD
is hereby authorized without liability to TENANT for loss or damage thereto, and
at the sole risk of TENANT, to remove and store any of the property at TENANT's
expense, or to retain same under LANDLORD's control or to sell at public or
private sale, without notice except to the TENANT at the last know address
provided by TENANT, any or all of the property not so removed and to apply the
net proceeds of such sale to the payment of any sum due hereunder or to dispose
of such property.
20. SUBORDINATION: Provided LANDLORD delivers to TENANT an agreement (a
"Non-Disturbance Agreement") from the holder of any mortgage and the landlord
under any ground lease which provides that if (i) any such holder forecloses or
otherwise exercises its rights under its mortgage, (ii) any such LANDLORD
terminates or otherwise exercises its rights under the ground lease or (iii)
such holder or landlord otherwise acquires LANDLORD's interest in the Lease,
such holder or landlord shall recognize TENANT's rights under this Lease, shall
not disturb TENANT's occupancy of the Premises under this Lease and shall assume
LANDLORD's obligation under this Lease, this lease shall be subordinated to
mortgages, deeds of trust now or at any time hereafter on the Premises.
21. TENANT ACCESS: TENANT shall have immediate access to the Premises,
without liability for the rent due hereunder through the Commencement Date for
the purpose of preparing the Premises for Tenant's occupancy which shall
include, without limitation, installation of telephone and computer cabling,
furnishing the Premises and constructing racks for Tenant's merchandise.
22. DEPOSITS: TENANT shall pay to LANDLORD a sum equal to a month's rent
to be applied to the TENANT's last month's rent to be due.
23. COMPLIANCE WITH LAWS: Notwithstanding anything to the contrary in
this Lease contained, LANDLORD shall be responsible, at its sole expense, for
maintaining
the Premises in compliance with all laws, orders, ordinances and regulations of
federal, state and municipal authorities applicable to the Premises including
without limitation the Americans with Disabilities Act (the "Laws") throughout
the term of this Lease except to the extent the non-compliance with the Laws
arises out of the particular use of the Premises made by TENANT, in which event
compliance shall be TENANT's responsibility. For example, LANDLORD shall be
responsible for maintaining the Premises in compliance with the Laws which apply
to the Premises regardless of the particular use undertaken by the tenant
thereof.
24. LANDLORD REPRESENTATIONS: LANDLORD represents and warrants that (i)
LANDLORD has fee simple title to the Premises and the Land, (ii) LANDLORD has
full right and authority to lease the Premises to the TENANT without the consent
or approval of any other party, (iii) the Premises is free and clear of all
mortgages except a mortgage from United Cooperative Bank, and (iv) those persons
executing this Lease on LANDLORD's behalf are duly authorized to execute and
deliver this Lease on its behalf, and that this Lease is binding upon LANDLORD
in accordance with its terms.
25. ENVIRONMENTAL COMPLIANCE AND INDEMNITY: LANDLORD will hold harmless,
defend and indemnify TENANT and its successors and assigns against all claims,
liabilities, loss, cost, and expenses, including reasonable attorneys' fees,
incurred as a result of (i) any Hazardous Materials existing in, on or under the
Premises as of the date of this Lease, and (ii) in connection with the release,
storage or disposal of Hazardous Materials in, on or under the Premises by
LANDLORD, its agents, employees, contractors or invitees, and the provisions of
this sentence shall survive the expiration or earlier termination of this Lease.
TENANT will hold harmless, defend and indemnify LANDLORD and its successors and
assigns against all claims, liabilities, loss, cost, and expenses, including
reasonable attorneys' fees, incurred as a result of the release, storage or
disposal of Hazardous Materials in, on or under the Premises by TENANT, its
agents, employees, contractors or invitees, and the provisions of this sentence
shall survive the expiration or earlier termination of this Lease. The term
"Hazardous Materials" shall mean any explosive, radioactive, hazardous wastes or
hazardous substances or substances defined as "hazardous substances" in any
federal, state or local laws, ordinance, regulation or governmental requirement
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Sections 9601, et seq., Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Sections 11001, et seq.,
Massachusetts Oil and Hazardous Material Release Prevention and Response Act,
M.G.L. Chapter 21E, and Massachusetts Hazardous Waste Management Act, M.G.L.
Chapter 21C. LANDLORD represents and warrants that, except as disclosed in the
Phase I Environmental Report dated May,1990 and prepared by Xxxxxxx Xxxx of
Environmental Compliance Services, it is not aware of the presence of any
Hazardous Materials on the Premises.
26. WAIVER OR CLAIMS/ WAIVER OF SUBROGATION: LANDLORD and TENANT each
hereby release the other from any and all liability or responsibility to the
other for any loss or damage to the Building or property contained therein
against which the waiving party is protected by insurance or required to be
protected by insurance under this Lease, even if such loss or damage is caused
by the fault or negligence of the other party, or any one for whom such party is
responsible. Each party shall obtain a waiver of subrogation for the benefit of
the other in its property insurance policy. If a property insurance policy
cannot be
obtained with a waiver of subrogation or is obtainable only by the payment of an
additional premium charge above that charged by insurance companies issuing
policies without waivers of subrogation, the party undertaking to obtain such
policy shall notify the other of this fact. The other party shall have a period
of 20 days after having receiving such notice either to place the insurance with
a company that is reasonably acceptable to the other party and that will carry
the insurance with the waiver of subrogation at no additional cost or to agree
to pay the additional premium that such a policy is obtainable at additional
cost. If the insurance cannot be obtained or the party in whose favor a waiver
of subrogation is desired or such party has refused to pay the additional
premium charged, the other party shall be relieved of the obligation to obtain a
waiver of subrogation with respect to the particular insurance involved.
27. NOTICES: All notices and demands which may, or are required, to be
given by either party to the other hereunder shall be in writing. All notices
and demands by LANDLORD to TENANT shall be sent by United States mail, postage
prepaid, or by any reputable overnight or same day courier, addressed to TENANT
at 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Chief Financial
Officer, with a copy to Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Real Estate Department, or to such other
place as TENANT may from time to time designate by notice to LANDLORD hereunder.
All notices and demands by TENANT to LANDLORD shall be sent by United States
mail, postage prepaid, or by any reputable overnight or same day courier,
addressed to LANDLORD at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, with a copy
to Xxxxxxx X. Xxxxxxxxx, Esq., 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000, or to such other place as LANDLORD may designate from time
to time by notice to TENANT hereunder. Notices sent by same day courier will be
effective immediately upon delivery to the addressee at the designated address;
notices sent by overnight courier will be effective one (1) business day after
acceptance by the service for delivery; and notices sent by mail will be
effective three (3) business days after mailing.
28. BROKERS: LANDLORD and TENANT each warrant and represent to the other
that such party has negotiated this Lease only with X.X. Xxxxxxx Company, LLC
(the "Broker") and has not authorized or employed or acted by implication to
authorize or employ any other real estate broker or salesman to act for such
party in connection with this Lease. Each party shall hold the other harmless
from and indemnify and defend the other against any and all claims by any real
estate broker or salesman, other than the Brokers. LANDLORD will pay any
commission owing to the Broker pursuant to a separate agreement.
IN WITNESS WHEREOF, the said parties have hereunto set their hands and
seals this 18th day of June, 1999.
PARK PLACE BROOKDALE
REALTY TRUST
By: /s/ Xxxx Xxxxxx
------------------------------------ --------------------------------
Trustee
____________________________________
Trustee
____________________________________
Trustee
MOTHER XXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------- ---------------------------------
From the Office of
Xxxxxxx X. Xxxxxxxxx, Esq. 00 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
