EXHIBIT 10.9
SUBLEASE
BETWEEN
273 CORPORATE DRIVE, LLC
AS
"SUBLESSOR"
AND
APRISMA MANAGEMENT TECHNOLOGIES, INC.
AS
"SUBLESSEE"
OFFICE BUILDING FACILITY
XXXXX INTERNATIONAL TRADEPORT
XXXXXXXXXX, XXX XXXXXXXXX 00000
DATED AS OF ________________, 2000
TABLE OF CONTENTS
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SUBLEASE 4
RECITALS 5
ARTICLE 1. PREMISES 6
ARTICLE 2. CONDITION OF SUBLEASED PREMISES 8
ARTICLE 3. TERM 9
ARTICLE 4. BASE RENT 10
ARTICLE 5. TAXES 13
ARTICLE 6. SURRENDER OF SUBLEASED PREMISES 14
ARTICLE 7. INSURANCE 14
ARTICLE 8. USE OF SUBLEASED PREMISES 17
ARTICLE 9. LIENS 20
ARTICLE 10. ALTERATIONS 20
ARTICLE 11. RIGHT OF SUBLESSOR TO INSPECT AND REPAIR 22
ARTICLE 12. GENERAL INDEMNIFICATION BY SUBLESSEE-SUBLESSOR
INDEMNIFICATION 23
ARTICLE 13. UTILITIES 25
ARTICLE 14. SERVICES TO BE FURNISHED BY SUBLESSOR AND
SUBLESSEE'S AGREEMENTS. 26
ARTICLE 15. THIS ARTICLE INTENTIONALLY LEFT BLANK 28
ARTICLE 16. DAMAGE OR DESTRUCTION 28
ARTICLE 17. EMINENT DOMAIN 28
ARTICLE 18. DEFAULT 29
ARTICLE 19. SUBORDINATION 31
ARTICLE 20. CERTIFICATE 31
ARTICLE 21. ASSIGNMENT, SUBLEASES, MORTGAGE,
RIGHT OF FIRST OFFER 32
ARTICLE 22. ENVIRONMENTAL PROTECTION 33
ARTICLE 23. HOLDING OVER 39
ARTICLE 24. WAIVERS 39
ARTICLE 25. QUIET ENJOYMENT 40
ARTICLE 26. NTENTIONALLY LEFT BLANK 40
ARTICLE 27. INTERPRETATIONS 40
ARTICLE 28. NOTICES 40
ARTICLE 29. DISPUTES AND LITIGATION 41
ARTICLE 30. MISCELLANEOUS 41
EXHIBITS TO SUBLEASE
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SUBLEASE
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THIS SUBLEASE ("Sublease") is made by and between 000 XXXXXXXXX XXXXX,
XXX, ("Xxxxxxxxx") and APRISMA MANAGEMENT TECHNOLOGIES, INC. ("Sublessee");
(Sublessor and Sublessee may be referred to jointly as the "Parties.")
SUMMARY OF BASIC LEASE PROVISIONS AND RECITALS
----------------------------------------------
SUMMARY
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BASIC DATA.
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Sublessor: 000 Xxxxxxxxx Xxxxx, LLC
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000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
SUBLESSEE: Aprisma Management Technologies, Inc.
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000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
GUARANTOR: Cabletron Systems, Inc.
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BASE RENT:
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Years 1 & 2 - $ 9.50 per square foot, triple net
Year 3 - $10.00 per square foot, triple net
Year 4 - $10.50 per square foot triple net
Years 5 - 10 Annual increase equal to 3% of previous year's Base Rent
BASE TAXES: Real Estate taxes for tax year April 1st to March 31st,
beginning with first year of tax assessment as established by the City of
Portsmouth and estimated annually.
PREMISES SUBLEASED: Approximately 100,000 square feet of building as shown
on Exhibits 2 & 3 (the "Building") located on and together with a parcel of
land of 20.09 acres +/- in size as shown in Exhibit 2.
PERMITTED USES: Class A Office Use including research, assembly and light
manufacturing, and such additional uses as permitted under the Primary
Sublease (hereinafter defined) and customary accessory uses thereto which
shall include, but not be limited to, off-street parking and loading,
employee daycare, training and recreational facilities, and shipping and
receiving in the areas designated.
INITIAL TERM: Ten (10) years.
BUSINESS DAYS: All days except Sunday, Federal and State Holidays.
DEFAULT: See Article 18.
INITIAL PUBLIC LIABILITY INSURANCE: $3,000,000 minimum Commercial General
Liability coverage - $1,000,000 in Automobile coverage and Worker's
Compensation coverage at statutory minimum levels.
SUBLESSEE'S REMOVABLE PROPERTY: As defined in Section 6.1.
PARKING: 496 parking spaces including visitor and handicapped parking
spaces.
RECITALS
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A. 000 Xxxxxxxxx Xxxxx, LLC has entered into a Sublease dated
________________, 2000, with the Xxxxx Development Authority ("PDA"), an agency
of the State of New Hampshire established pursuant to RSA Chapter 12-G for
premises located at the Xxxxx International Tradeport in Portsmouth, New
Hampshire described as follows: The premises shown on a Plan entitled
_____________________________________ recorded in the Rockingham Count Registry
of Deeds as Plan #____________, a copy of which Sublease is attached hereto as
Exhibit 1 (the "Primary Sublease"). The Primary Sublease is subject and
subordinate to all agreements made between PDA and the United States of America
or the United States Air Force including, but not limited to, the Master Lease,
the Application, the Acceptance and the FFA, all as hereinafter defined.
B. PDA anticipates acquiring fee title to the portion of the former
Xxxxx Air Force Base hereinafter designated Premises I and Premises II from the
United States of America ("Government or Air Force") by public benefit transfer
(i.e. transfer without consideration) pursuant to the general authority
contained in 49 U.S.C. Sections 47151-47153 and other applicable provisions of
law. (Together, Premises I and Premises II constitute the entirety of the
Airport (the "Airport" or "Xxxxx"). The terms of such acquisition are set forth
in an Amended Application for Public Benefit Transfer executed by PDA
("Application") and accepted by the Air Force on April 14, 1992 (the
"Acceptance"), as the same has been subsequently amended by Amendment No. 1
dated March 24, 1994 and executed June 27, 1997 ("Amendment No. 1"). The
Amended Application was approved December 12, 1995 and confirmed March 18, 1997,
and the Air Force executed an acceptance of the Amended Application on June 26,
1997 ("Acceptance II"). The Acceptance and Acceptance II may be referred to
collectively as the "Acceptances". Pending final disposition of the Airport in
accordance with the terms of the Amended Application and Acceptances, PDA and
Air Force have entered into a Lease as of April 14, 1992 for the Airport
District, a Supplement No. 1 thereto dated August 4, 1992, a Supplement No. 2
thereto dated July 15, 1993 and a Supplement No. 3 thereto dated June 27, 1997
(collectively the "Master Lease"). The Subleased Premises are located within
the Airport District and are located in Premises II. The Parties acknowledge
that the Application, Acceptance and Master Lease impose certain requirements on
Sublessor with respect to subleases which are attached to the Primary
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Sublease. The terms Application, Acceptance and Master Lease shall include any
amendments to said documents. The Parties acknowledge that a Federal Facilities
Agreement ("FFA") required under Section 120 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. (S) 9601
et seg, was entered into by the Air Force, the New Hampshire Department of
Environmental Services ("NHDES") and the United States Environmental Protection
Agency ("EPA") regarding certain contamination at Xxxxx and that FFA also
imposes certain requirements upon Sublessor and Sublessee which are addressed in
the terms and conditions of this Sublease. A copy of the FFA is attached to the
Primary Sublease. Unless the context refers specifically to the document , the
term FFA shall include any amendments to said document.
C. Sublessor is 273 CORPORATE DRIVE, LLC and is duly organized and
existing under the laws of the State of New Hampshire with a principal place of
business at 000 Xxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxxxxx, and is
qualified to do business in the State of New Hampshire.
D. Sublessee APRISMA MANAGEMENT TECHNOLOGIES, INC. is duly organized and
existing under the laws of the State of Delaware with a principal place of
business at 000 Xxxxxxxxxx Xxxxx, and is qualified to do business in the State
of New Hampshire. Subsequent to the occupancy date, the address shall be 000
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx.
NOW, THEREFORE, in consideration of the covenants herein contained and
other valuable consideration, the receipt of which is hereby acknowledged,
Sublessor and Sublessee hereby agree as follows:
ARTICLE 1. PREMISES
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1.1. Description of Subleased Premises
---------------------------------
Sublessor, for and in consideration of the rents and covenants herein
specified to be paid and performed by Sublessee, hereby leases to Sublessee, and
Sublessee hereby hires from Sublessor, the premises described generally below
and more particularly on the plans attached as Exhibit 2 (the "Subleased
Premises" or the "Premises"): consisting of the Building containing a minimum of
approximately 100,000 square feet, and located at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx together with the 20.09 acre parcel as shown on
Exhibits 2 and 3. The 20.9 acre parcel of land on which the Building is to be
located may, in the future, be suitable for expansion of the Building for
Sublessee's use or for construction of other buildings for Sublessee's or other
parties uses. In the event that Sublessor proposes to subdivide such parcel or
construct additional buildings on such parcel for other tenants in the future,
such construction shall be subject to the approval of Sublessee, and Sublessee
agrees to consider such proposal in good faith. The Sublessor shall provide a
certification that the Building conforms to the plans listed on Exhibit 2 and
Exhibit 3 at the time of Substantial Completion (as defined below) of the
Building.
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Appurtenant Rights and Reservations. Subject to FAA regulations and approval,
if necessary, Sublessee shall have the right to install roof top
telecommunications facilities provided that such facilities shall be used only
in connection with the Sublessee's business at the Subleased Premises and for
no other commercial purposes and provided that such facilities shall be allowed
by the PDA under its land use Ordinances.
1.2. Easements - Rights-of-Way
-------------------------
This Sublease is subject to existing easements and rights-of-way of record
and to (i) the Utility Sublease and License Agreement dated July 31, 1992 by and
between PDA and Public Service Company of New Hampshire ("PSNH"), (ii) the
utility Sublease and License Agreement dated May 10, 1995 by PDA and New England
Telephone and Telegraph Company ("NETEL"), (iii) the Wastewater Disposal and
Water Service Facilities Sublease and License Agreement dated as of January 1,
1993 and amended July 1, 1998 by and between PDA and the City of Portsmouth
("COP") and (iv) and to the Pipeline Easement and Transfer Agreement dated
August 12, 1998 by and between PDA, Portland Natural Gas Transmission System and
Maritimes & Northeast Pipeline, L.L.C., and such other agreements as PDA shall
reasonably require for the provision of utilities and the operation, maintenance
and repair of the Airport.
The Government reserves for the use and benefit of the public, an avigation
easement and a right of way for the free and unobstructed passage of aircraft in
the airspace above the surface of the Airport, together with the right to cause
in such airspace such sound, vibrations, fumes, dust, fuel particles, and all
other effects as may be caused by the operation of aircraft, now known or
hereafter used, for the navigation through or flight in the said airspace, and
for use of said airspace for landing on, taking off from, or operating on the
Airport.
1.3. Access
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Sublessee shall have in common with other Airport tenants and authorized
Airport users the right to use the entrances, exits and roadways designated by
PDA for common use at the Airport, subordinate, however, to PDA's rights to
manage the common areas and roadways, which rights of PDA shall include, without
limitation, the right to impose reasonable rules and regulations, and to add,
delete, alter, or otherwise modify the designation and use of all parking areas,
entrances, exits, roadways and other areas of the Airport.
The rights of Sublessee under this Section 1.3 shall be subordinate to
PDA's rights, to manage the common areas and roadways which rights shall
include, without limitation, the right to impose reasonable rules and
regulations relating to use of the common areas and roadways and the right to
add, delete, alter or otherwise modify the designation and use of all common
parking areas, entrances, exits, roadways and other areas of the Airport,
provided, however, that during the term of this Sublease, Sublessee shall have
reasonable access to the Premises and the exclusive use of the building and
parking area which are part of the Premises.
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Sublessor shall at Sublessee's request exercise any and all rights and
remedies available to it under the Primary Sublease to ensure that Sublessee's
use and enjoyment of the Premises and access thereto are protected.
ARTICLE 2. CONDITION OF SUBLEASED PREMISES
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2.1. The Base Building Work to be performed by the Sublessor is shown and
described on Exhibit 2 and 3 and generally consists of the Building and
improvements excepting the tenant fit up.
Also included in Exhibit 3 is a list of all permits, approvals, consents and
licenses (collectively, the "Approvals") required for construction of the Base
Building Work, including the dates upon which such Approvals are to be obtained.
Sublessor represents and warrants to Sublessee that the Approvals constitute all
of the permits, approvals, consents and licenses required for performance of the
Base Building Work.
2.3. Sublessor shall use diligent efforts to obtain all Approvals by the dates
therefor set forth in Exhibit 3 and to commence and perform the Base Building
Work so as to achieve the construction milestones set forth in Exhibit 3 by the
dates therefor set forth in such Exhibit. In the event Sublessor fails to obtain
an Approval by the date therefor set forth in Exhibit 3, or fails to achieve a
construction milestone by the date therefor set forth in Exhibit 3, then
Sublessee shall have the right, exercisable by notice to Sublessor given at any
time while such failure persists, to terminate this Sublease. The construction
milestone dates set forth in Exhibit 3 shall be extended one day up to a maximum
of 180 days for each day of delay caused by the occurrence of an event of "Force
Majeure", defined as follows:
Force Majeure. Except for the performance of any monetary payment
obligations hereunder, the duties of Sublessor or Sublessee to observe or
perform any of the provisions of this Sublease on its part to be performed or
observed shall be excused for a period equal to the period of prevention, delay
or stoppage due to causes beyond the control of the affected party, by reason of
strikes, civil riots, shortages of materials (except in the event materials of
like kind or quality are available), war, invasion, fire or other casualty,
labor unrest (unless such labor unrest solely affects the Premises and is not a
result of Sublessee's acts, omission or negligence but is caused by the acts,
omissions or negligence of Sublessor), actions of public utilities, Acts of God,
unforeseen or unknown conditions in, on or under the Premises, adverse
environmental conditions or contamination, adverse seasonal or weather
conditions beyond those normally experienced in the Portsmouth area, or other
events beyond the reasonable control of the affected party, provided that (a)
the affected party has taken steps that are reasonable under the circumstances
to mitigate the effects of such Force Majeure situation, and (b) the affected
party notifies the other party in writing of the event of Force Majeure within
five (5) days after the occurrence thereof.
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2.4. The Sublessee shall be responsible for all Sublessor approved tenant fit
up work shown in Exhibit 4 ("Tenant Work").
2.5. Sublessor shall perform all of the Base Building Work diligently to
Substantial Completion and final completion in accordance with all plans and
specifications therefor and first class construction and engineering practice,
the requirements of all of the construction documents and all Approvals, and
pursuant to all applicable codes and regulations. The term "Substantial
Completion", as used herein shall mean the Base Building Work is completed to
the point where the Sublessor's architect shall certify that the Building has
been substantially completed in accordance with the plans and specifications
therefor and all applicable law, and all requirements of the Sublease and is
ready for the Tenant Work to be commenced. Thereafter the Sublessor shall
fully complete the Base Building Work and any punch list items at such times as
shall reasonably be determined by the Sublessor's architect, and in a manner
which shall not unreasonably interfere with the Tenant Work.
The Sublessee shall endeavor to substantially complete Tenant Work
within 90 days of the architect's certificate described in Section 2.5 above and
shall endeavor to secure a certificate of occupancy upon completion. Upon
completion of Tenant Work, Tenant's architect shall certify to Landlord that
Tenant's Work has been substantially completed.
2.6. Sublessor shall provide a warranty to Sublessee with respect to all work
performed by or on behalf of Sublessor for a period of one year after the Term
Commencement Date and shall, at Sublessor's sole cost and expense, promptly
correct any defect of which it is notified within such one-year period.
Thereafter, Sublessor agrees that it shall assign to Sublessee or exercise on
Sublessee's behalf any and all warranties available to it from contractors,
subcontractors or suppliers. Notwithstanding the foregoing, latent defects in
the Base Building Work shall be repaired by Sublessor at Sublessor's sole cost
and expense whenever the same are discovered, whether or not within the one-year
warranty period and the cost of such repairs shall not be included within
Operating Expenses.
Amenities to be provided by the Sublessor are listed or described on Exhibit 5.
ARTICLE 3. TERM
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3.1. This Sublease shall be for a Base Term of ten (10) years, which term shall
commence upon completion of the Base Building Work and Tenant Work and issuance
of a certificate of occupancy, provided, however, that in no event shall the
term commence later than one hundred twenty (120) days after the issuance of
Sublessor's architect's certificate set forth in Section 2.5 unless (i)
Sublessee is unable to secure a certificate of occupancy within such one hundred
twenty (120) day period by reason of Sublessor's failure to properly complete
Base
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Building Work or other causes attributable to Sublessor or (ii) Sublessee is
unable to secure a certificate of occupancy as a result of Sublessee's failure
to complete Tenant Work within such one hundred twenty (120) day period by
reason of a force majeure event as described in Section 2.3. In either of such
events, the commencement of the term shall be delayed for the number of days
that such failure or other cause attributable to Sublessor shall have continued
or the number of days of such force majeure event. The Term Commencement Date
shall be the date that the term commences pursuant hereto and the term shall
expire at midnight of the last day of the month in which the 10th anniversary of
the Term Commencement Date occurs (provided however, that if the Term
Commencement Date occurs on the 1st day of the month, the expiration date shall
occur on the day prior to the 10th anniversary date of the Term Commencement
Date), unless terminated earlier or extended in accordance with the provisions
of this Sublease. Sublessee shall have up to three (3) five (5) year option(s)
exercisable by it at its sole discretion, which options, if exercised, shall
extend the Base Term for three additional five (5) year(s) periods, except as
otherwise provided in Section 3.2.
3.2. As a condition precedent to the exercise by Sublessee of any of its
options to extend the term of this Sublease, Sublessee shall give a written
notice ("Option Notice") to Sublessor of its exercise of each such option at
least twelve (12) months prior to the end of the Base Term or any applicable
extension period.
3.3. The options to extend the term hereby granted may not be exercised at any
time during which Sublessee is in default under any of the terms of this
Sublease, after expiration of all applicable grace periods.
3.4. Unless the context clearly indicates otherwise when used in this Sublease
the phrase "term" and "term of this Sublease" shall mean the Base Term plus any
duly exercised allowable extensions thereof.
3.5. In the event the Primary Sublease is terminated for any reason whatsoever,
this Sublease will automatically terminate on that same date, provided however,
such termination shall not affect any liability of Sublessor to Sublessee to the
extent that any such termination results from a breach of the Sublessor's
obligation under the Primary Lease or such termination results in a breach of
any obligations, covenants, terms, or condition of this Lease.
ARTICLE 4. BASE RENT
--------------------
4.1. The Base Rent shall be as follows:
Year 1 - $ 9.50 per square foot
Year 2 - $ 9.50 per square foot
Year 3 - $10.00 per square foot
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Year 4 - $10.50 per square foot
Years 5 through 10 - each year's Base Rent shall be increased by an amount
equal to 3% of the previous year's Base Rent.
Upon completion of the Building the Sublessor's architect shall certify
that the Building has been constructed as per the plans shown in Exhibit 3.
4.2. Base Rent due under Section 4.1 shall commence upon the Term Commencement
Date. The annual Base Rent shall be payable in each case in equal monthly
installments of one twelfth thereof in advance on the first day of each month
without offset in lawful money of the United States at the office of Sublessor
or at such other address as Sublessor may hereafter designate. In addition,
Sublessee agrees to pay when due, such other amounts that may be required to be
paid as Additional Rent as described herein. Sublessee's rent obligation for
any fractional portion of a calendar month at the beginning or end of the term
of this Sublease shall be appropriately pro-rated.
4.3. Additional Rent
The parties agree that this Sublease is to be deemed a Net Lease, and that
except as otherwise specifically allocated to the Sublessor under this Sublease,
all costs and expenses associated with the Subleased Premises or the operation
and maintenance thereof shall be the responsibility of the Sublessee. The term
Additional Rent shall therefore include the following:
i. Operating Expenses; The expenses listed on Exhibit 6 incurred by the
Sublessor on behalf of the Sublessee in the Sublessor's capacity as manager of
the Subleased Premises.
ii. Capital Water and Sewer Expenses: The Sublessee shall pay the share of
the City of Portsmouth charges for water and sewer capital expenses attributable
to the Subleased Premises. Such expenses shall be payable over the longest
period permitted by the City of Portsmouth, and Sublessor shall not agree with
the City of Portsmouth to have the same paid over a shorter period.
iii. Any other costs or expenses described as the responsibility of the
Sublessee under this Sublease.
4.3.1. Sublessee's Payments.
-----------------------------
For the purposes of this Article, a calendar year shall be called an
"Operating Year". At the commencement of the Base Term, the Sublessor shall
estimate the Additional Rent charges for the balance of the then current
Operating Year. Within sixty (60) days of the end of each Operating Year the
Sublessor shall reconcile the estimated Additional Rent charges with the actual
Additional Rent charges, and determine estimated Additional Rent charges for the
then current Operating Year. Additional Rent charges shall be payable by
Sublessee monthly and at the time and in the fashion herein provided for the
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payment of Base Rent. After the end of each Operating Year, Sublessor shall
submit to Sublessee a reasonably detailed accounting of the Additional Rent
charges for such Year, and Sublessor shall certify to the accuracy thereof. If
estimated payments theretofore made for such Operating Year by Sublessee exceed
Sublessee's required payment on account thereof for such Year, Sublessor shall
credit the amount of the overpayment against the next subsequent obligations of
Sublessee with respect to Additional Rent charges (or refund such overpayment
if the term of this Sublease has ended and Sublessee has no further obligation
to Sublessor), but, if the required payments on account thereof for such
Operating Year are greater than the estimated payments (if any) theretofore
made on account thereof for such Year, Sublessee shall make payment to
Sublessor within thirty (30) days after being so advised by Sublessor.
Sublessor shall have the same rights and remedies for the nonpayment by
Sublessee of any payments due on account of Additional Rent charges as
Sublessor has hereunder for the failure of Sublessee to pay Base Rent.
For any partial calendar year during the term (e.g. the first and last
year), the Additional Rent charges shall be determined in a manner which
reflects the partial calendar year, with such adjustment as shall be
appropriate.
Sublessor shall keep separate books and accounting records covering the
Additional Rent charges required to be paid by the Sublessee. Such books and
records shall be preserved for a period of 3 years. The Sublessee shall have
the right to audit those books and records, and if it is demonstrated that the
Sublessee has been overcharged by more than 5%, for any Operating Year, the
Sublessor shall reimburse the Sublessee for the cost of the audit, but in any
event shall be reimbursed for any overcharges.
4.4 Rent During Option Period
-------------------------
In the event that the Sublessee shall exercise its option to renew for any
additional five (5) year period, the Base Rent during that period shall be 95%
of the then Current Market Rental Rate for the Premises but in no case shall the
rent be less than the previous year's Base Rent The term "Current Market
Rental Rate" for purposes of this Sublease shall mean the annual amount per
rentable square foot that a willing sublessee of credit quality similar to
Sublessee would pay, and a willing comparable sublessor of the Building or a
comparable office building in the immediate vicinity of the Building would
accept, at arms length, giving appropriate consideration to annual rental rates
per rentable square foot, escalation clauses (including type, gross or net, and
if gross, whether base year or expense stop), and abatement provisions
reflecting free rent, length of lease term, size, condition and location of
premises being leased.
If Sublessee exercises the extension option, Sublessor and Sublessee shall
attempt to agree upon the Current Market Rental Rate using their best good-faith
efforts. If Sublessor and Sublessee fail to reach an agreement within thirty
(30) days following Sublessee's exercise of such extension option (the "Outside
Agreement Date"), then each party shall make a separate determination
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of the current Market Rental Rate which shall be submitted to each other and to
arbitration in accordance with the following items (i) through (v):
(i) Sublessor and Sublessee shall each appoint, within ten (10) business
days of the Outside Agreement Date, one arbitrator who shall by profession be a
licensed, qualified MAI appraiser of comparable properties in the immediate
vicinity of the Building, and who has been active in such field over the last
five (5) years.
(ii) The two arbitrators so appointed shall within five (5) business daysof
the date of the appointment of the last appointed arbitrator agree upon and
appoint a third arbitrator who shall be qualified under the same criteria set
forth hereinabove for qualification of the initial two arbitrators.
(iii) The three arbitrators shall within fifteen (15) days of the
appointment of the third reach a decision as to whether the parties shall use
Sublessor's or Sublessee's submitted Current Market Rental Rate as closest to
the actual Current Market Rental Rate. The determination of the arbitrators
shall be limited solely to the issue of whether Sublessor's or Sublessee's
submitted Current Market Rental Rate is the closest to the actual Current Market
Rental Rate. The amount which is the closest, as determined by the arbitrators,
shall be deemed the Current Market Rental Rate, 95% of which, or the previous
years Base Rent, whichever is greater, shall be the Base Rent during the
applicable extension term. The decision of the Arbitrators shall be binding
upon Sublessor and Sublessee. If either Sublessor or Sublessee fails to appoint
an arbitrator within ten (10) business days after the applicable Outside
Agreement Date, the arbitrator appointed by one of them shall reach a decision,
notify Sublessor and Sublessee thereof, and such arbitrator's decision shall be
binding upon Sublessor and Sublessee.
(iv) If either Sublessor or Sublessee fails to appoint an arbitrator within
ten (10) business days after the applicable Outside Agreement Date, the
arbitrator appointed by one of them shall reach a decision, notify Sublessor and
Sublessee thereof, and such arbitrator's decision shall be binding upon
Sublessor and Sublessee.
(v) The cost of arbitration shall be paid by Sublessor and Sublessee
equally.
All other additional rent shall also be paid, as provided in Section 4.3
above.
ARTICLE 5. TAXES
----------------
5.1. Sublessee shall be responsible for the Base Taxes assessed against the
Premises by the City of Portsmouth or other applicable taxing authority. At the
time when the City of Portsmouth shall make its initial and any subsequent
assessment of Real Estate taxes, the Sublessor shall notify the Sublessee of the
amount due hereunder which shall be paid by the Sublessee or the City of
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Portsmouth or other taxing authority within ten (10) days of such notification
or such later time as such amount shall be due. Base Taxes shall be deemed to
include any special assessments levied by the applicable taxing authority
provided, however, that the same shall be payable over the longest period
permitted by law. Base Taxes shall not include taxes assessed against or with
respect to the income of Sublessor or the rents received by Sublessor.
5.2. Sublessee shall have the right, at its sole cost and expense, to file tax
abatement proceedings after providing a ten (10) day notice of such action with
the Sublessor and after a consultation discussion with the Sublessor which shall
occur not later than ten (10) days after the Sublessee's notice. Sublessee's
rights hereunder shall not alter the Sublessee's obligation under Paragraph 5.1
above.
ARTICLE 6. SURRENDER OF SUBLEASED PREMISES
------------------------------------------
6.1. On the expiration or termination of this Sublease, Sublessee shall
surrender to Sublessor the Subleased Premises, including all improvements and
fixtures therein except those listed in Exhibit 7, whether leased to or
otherwise owned by Sublessee, broom clean and in good order, condition and
repair, reasonable wear and tear excepted, together with all alterations,
decorations, additions and improvements that may have been made in, to or on the
Subleased Premises, except that Sublessee shall be allowed to remove its
personal property or any removable improvements made by Sublessee at its sole
expense that can be removed without damage to any buildings, facilities or other
improvements to the Subleased Premises. The Subleased Premises, including the
improvements and fixtures therein, shall be delivered free and clear of all
subtenancies, liens and encumbrances, other than those, if any, permitted hereby
or otherwise created or consented to by Sublessor, and, if requested to do so,
Sublessee shall execute, acknowledge and deliver to Sublessor such instruments
of further assurance as in the opinion of Sublessor are necessary or desirable
to confirm or perfect Sublessor's right, title and interest in and to the
Subleased Premises including said improvements and fixtures. On or before the
end of the Sublease term, Sublessee shall remove all of Sublessee's personal and
other property allowed to be removed hereunder, and all such property not
removed shall be deemed abandoned by Sublessee and may be utilized or disposed
of by Sublessor without any liability to Sublessee. Sublessee's obligation
under this Article 6 shall survive the expiration or termination of this
Sublease.
ARTICLE 7. INSURANCE
--------------------
7.1. Sublessee agrees to maintain in full force from the date upon which
Sublessee first enters the Premises for any reason, throughout the term of this
Sublease, and thereafter so long as Sublessee is in occupancy of any part of the
Premises, a policy of general liability and property damage insurance (including
broad form contractual liability, independent contractor's hazard and completed
operations coverage) under which Sublessor, Sublessor's manager and such other
persons as are in privity of estate with Sublessor as may be set out in
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notice from time to time are named as additional insureds, and under which the
insurer agrees to defend, indemnify and hold Sublessor, Sublessor's manager, and
those in privity of estate with Sublessor, harmless from and against all cost,
expense and/or liability arising out of or based upon any and all claims,
accidents, injuries and damages for bodily injury and property damage arising
from the negligent, act or omission of Sublessee or it's employees. Each such
policy shall be non-cancelable unless replaced with comparable coverage from
another carrier, and non-amendable with respect to Sublessor, Sublessor's
manager and Sublessor's said designees without sixty (60) days' prior notice to
Sublessor and shall be as follows:
(1) Comprehensive general liability insurance to a limit of not less
than three million ($3,000,000) dollars, on an "occurrence basis" against claims
for "personal injury", including without limitation, bodily injury, death or
property damages, occurring upon, in or about the Subleased Premises as required
pursuant to the Primary Sublease.
(2) Worker's compensation and employer's liability insurance in an
amount and form which meets all applicable requirements of the labor laws of the
State of New Hampshire, as amended from time to time, and which specifically
covers the persons and risks involved in this Sublease.
(3) Automobile liability insurance in amounts not less than one
million ($1,000,000) dollars combined single limit for owned, hired and non-
owned automobiles.
(4) The Sublessor reserves the right to require reasonable adjustment
in the amount of insurance coverage as of the end of each five (5) year period
under the Sublease.
7.2. All policies of insurance required to be carried under this Article shall
be effected under valid and enforceable policies, in such forms and amounts as
may, from time to time, be required under this Sublease, issued by insurers of
recognized responsibility which are authorized to transact such insurance
coverage in the State of New Hampshire. All such policies of comprehensive
general liability insurance shall name Sublessor, PDA, and the United States of
America as additional insureds. Upon the Term Commencement Date (and
thereafter not less than fifteen (15) days prior to the expiration date of each
policy furnished pursuant to this Article) a copy of each policy required to be
furnished pursuant to this Article (or, with the consent of Sublessor, which
consent shall not be unreasonably withheld, a certificate of the insurer
reasonably satisfactory to Sublessor) bearing a notation evidencing the payment
of the premium or accompanied by other evidence reasonably satisfactory to
Sublessor of such payment, shall be delivered by Sublessee to Sublessor.
7.3. This Section intentionally left blank.
7.4. Each such policy or certificate therefor issued by the insurer shall to
the extent obtainable contain (i) a provision that no act or omission of
Sublessee, or
-15-
any employee, officer or agent of Sublessee, which would otherwise result in
forfeiture or reduction of the insurance therein provided shall affect or limit
the obligation of the insurance company to pay the amount of any loss sustained,
(ii) an agreement by the insurer that such policy shall not be cancelled without
at least sixty (60) days prior written notice by registered mail to Sublessor
and PDA, and (iii) containing a provision that the insurer shall have no right
of subrogation against PDA and the United States of America.
7.5. This Section Intentionally left blank.
7.6. Sublessee shall observe and comply with the requirements of all policies
of insurance at any time in force with respect to the Subleased Premises and
Sublessee shall also perform and satisfy the requirements of the companies
writing such policies so that at all times companies of good standing shall be
willing to write or to continue such insurance. Sublessee shall, in the event
of any violations or attempted violations of the provisions of this Section 7.6
by a subtenant, take steps, immediately upon knowledge of such violation or
attempted violation, to remedy or prevent the same as the case may be.
7.7. Any insurance provided for in this Sublease may be effected by a policy or
policies of blanket insurance and provided further that in all other respects,
any such policy or policies shall comply with the other provisions of this
Sublease. In any such case it shall not be necessary to deliver the original of
any such blanket policy to Sublessor, but Sublessee shall deliver to Sublessor
and to any Mortgagee a certificate or duplicate of such policy in form and
content acceptable to Sublessor.
7.8. To the maximum extent this agreement may be made effective according to
law, Sublessee agrees to use and occupy the Premises and to use such other
portions of the Property as Sublessee is herein given the right to use at
Sublessee's own risk; and Sublessor shall have no responsibility or liability
for any loss of or damage to Sublessee's removable property, or for any
inconvenience, annoyance, interruption or injury to business arising from
Sublessor's making any repairs or changes which Sublessor is permitted by this
Sublease or required by law to make in or to any portion of the Premises or
other sections of the Property, or in or to the fixtures, equipment or
appurtenances thereof, except where the Sublessor is negligent in making such
repairs. Sublessee shall carry "all-risk" property insurance on a "replacement
cost" basis (including so-called improvements and betterments), or be self
insured (with respect to the Sublessee's removable property), and provide a
mutual waiver of subrogation for both parties. The provisions of this Section
shall be applicable from and after the execution of this Sublease and until the
end of the term of this Sublease, and during such further period as Sublessee
may use or be in occupancy of any part of the Premises or of the Building.
7.9. This Section left intentionally blank.
7.10. Sublessor shall maintain in full force from the date upon which
Sublessee first enters the Premises for any reason, throughout the term, a
policy of
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insurance upon the Building insuring against all risks of physical loss or
damage under an All Risk coverage endorsement in an amount at least equal to the
full replacement value of the property insured, with an Agreed Amount
endorsement to satisfy co-insurance requirements, as well as insurance against
breakdown of boilers and other machinery as customarily insured against. Such
insurance shall cover both the Base Building Work and Tenant Work. Sublessor
shall supply to Sublessee from time to time upon request of Sublessee
certificates of all such insurance issued by or on behalf of the insurers named
therein by a duly authorized agent and shall name Sublessee as an additional
insured as its interests may appear. All policies of insurance maintained by
Sublessor shall contain the same waiver of subrogation provisions for the
benefit of Sublessee as Sublessee is required to obtain in its insurance
policies for the benefit of Sublessor. In the event the Sublessee shall be able
to obtain such insurance at lesser cost than the Sublessor, Sublessee shall be
allowed to place such insurance. In the event that the Building shall not be
reconstructed under Article 16.1., the Sublessee shall be entitled to such
portion of the insurance proceeds as shall be allocable to the value of the
unamortized Tenant Work and insurable improvements made by the Sublessee.
ARTICLE 8. USE OF SUBLEASED PREMISES
------------------------------------
8.1. The purposes for which Sublessee may use the Subleased Premises are as set
forth in Summary Of Basic Lease Provisions and Recitals, and for no other uses
without Sublessor's and PDA's prior written consent. Sublessee shall not use,
or permit to be used, the Subleased Premises for any other purpose without the
prior express written consent of Sublessor and PDA. Sublessor's and PDA's
consent shall be subject to the execution of an appropriate agreement which
shall include a provision requiring the payment of established fees and charges
that may be applicable to any such additional uses consented to by Sublessor and
PDA. Sublessee is prohibited from any use of the Subleased Premises not
granted in this Section 8.1.
8.2. Sublessee recognizes that the uses authorized in Section 8.1 are not
granted on an exclusive basis and that Sublessor and PDA may enter into
subleases or other agreements with other tenants or users at areas of the
Airport for similar, identical, or competing uses. No provision of this
Sublease shall be construed as granting or authorizing the granting of an
exclusive right within the meaning of Section 308 of the Federal Aviation Act as
the same may be amended from time to time.
8.3. Except to the extent the maintenance obligation is the responsibility of
the Sublessor hereunder, Sublessee agrees that it will keep the Premises in a
neat, clean and orderly condition in accordance the provisions of Chapters 300
through 500 of the Xxxxx Development Authority Zoning Requirements, Site Plan
Review Regulations and Subdivision Regulations (collectively the "Land Use
Controls") and such other rules and regulations from time to time promulgated by
the PDA, provided that Sublessee shall not be bound by any such rules and
regulations until such time as it receives a copy thereof. Sublessor agrees to
cause trash
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receptacles to be emptied and trash removed at Sublessee's sole cost and
expense.
8.4. Sublessee shall obtain all certificates, permits, licenses or other
entitlements required by federal, state or local laws in order to allow
Sublessee to conduct the permitted uses hereunder (other than the Approvals,
which are to be obtained by the Sublessor ), and that the same are and will be
kept current, valid and complete. Sublessee further warrants that it shall at
all times abide by and conform with all terms of the same and that it shall give
immediate notice to Sublessor of any additions, renewals, amendments,
suspensions or revocations. In the use and occupation of the Subleased Premises
and the conduct of such business thereon, Sublessee, at its sole cost and
expense, shall promptly comply with all present and future laws, ordinances,
orders, rules, regulations and requirements of all federal, state and municipal
governments, courts, departments, commissions and boards, any national, state or
local Board of Fire Underwriters, or any other body exercising functions similar
to those of any of the foregoing. Notwithstanding the foregoing or any other
provision of this Sublease, however, Sublessee shall not be responsible for
compliance with any such laws, regulations, or the like requiring (i) structural
repairs or modifications or (ii) repairs or modifications to the utility or
Building service equipment or (iii) installation of new Building service
equipment, such as fire detection or suppression equipment, unless such repairs,
modifications, or installations shall (a) be due to Sublessee's particular
manner of use of the Premises (other than the primary use contemplated herein),
or (b) be due to the negligence or willful misconduct of Sublessee or any agent,
employee, or contractor of Sublessee, and Sublessor shall be responsible for
compliance with all such laws to the extent Sublessee is not responsible for
compliance, provided that, except to the extent that such noncompliance existed
at the commencement of the term, the costs of such compliance shall be included
in the Operating Expenses to the extent appropriately amortized in any
applicable Operating Year in accordance with generally accepted accounting
principles consistently applied.
8.5. Sublessee shall have the right to contest by appropriate proceedings
diligently conducted in good faith, without cost or expense to Sublessor, the
validity or application of any law, ordinance, order, rule, regulation or
requirement of the nature referred to in this Article. If compliance with any
such law, ordinance, order, rule, regulation or requirement may be delayed on
the basis of an order from a court of competent jurisdiction pending the
prosecution of any such proceeding without the incurrence of any lien, charge or
liability of any kind against the Subleased Premises or Sublessee's interest
therein and without subjecting Sublessor to any liability, civil or criminal,
for failure so to comply therewith, Sublessee may delay compliance therewith
consistent with such court order. Even if such lien, charge or civil liability
would be incurred by reason of any such delay, Sublessee may, with the prior
written consent of Sublessor, contest as aforesaid and delay as aforesaid,
provided that such contest or delay does not subject Sublessor to criminal
liability, damages or expense and provided that Sublessee: (i) furnishes to
Sublessor security, reasonably
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satisfactory to Sublessor, against any loss or injury by reason of such contest
or delay; and (ii) prosecutes the contest with due diligence.
Sublessor and PDA shall not be required to join in any proceedings referred
to in this Section unless the provisions of any applicable laws, rules or
regulations at the time in effect shall require that such proceedings be brought
by and/or in the name of Sublessor and/or PDA and Sublessor and/or PDA
determines that such action is in its best interests, in which event Sublessor
and/or PDA shall join in the proceedings, or permit the same to be brought in
its name, if Sublessee shall pay all expenses in connection therewith.
8.6. This Section Intentionally Left Blank.
8.7. Sublessee's use of the Subleased Premises shall be orderly and efficient
and shall not cause any disruptions to other Airport activities or unreasonable
disruption to other tenants in the Airport District. Sublessee shall not cause
or maintain any nuisance on the Subleased Premises. Sublessee shall conduct all
of its activities hereunder in an environmentally responsible manner.
8.8. Sublessee shall have the right to obtain supplies or services from
suppliers, vendors or contractors of its own choice at the Subleased Premises,
provided that PDA in the Primary Sublease reserved the right to prohibit persons
from engaging in "aeronautical activities" (as defined in Advisory Circular AC
150/5190-2A of the Federal Aviation Administration) or the provision of ground
transportation services at the Airport except in accordance with concession
contracts or operating agreements entered into between PDA and said persons.
8.9. Sublessee acknowledges that PDA is subject to certain restrictions on the
use of the Airport Property in accordance with Conditions 6, 10, 17, 23, 25 and
25A of the Master Lease. Notwithstanding any other provision of this Sublease
or the Primary Sublease, the Sublessee shall be subject to the restrictions in
Conditions 6,10, 17, 23, 25 and 25A of the Master Lease to the extent applicable
to the Subleased Premises or any rights granted to Sublessee under Sublease in
the same manner and to the same extent as PDA is obligated in its capacity as
Lessee under the Master Lease. Sublessor warrants to Sublessee that (a) the use
of the Subleased Premises for the uses permitted hereunder constitutes a "public
airport purpose" as set forth in Condition 6 of the Master Lease, (b) Sublessor
has obtained, or will obtain prior to the date set forth in Exhibit 3 for
obtaining a building permit, all consents and approvals required under
Conditions 17 and 23 of the Master Lease to construct the Building and (c) the
use of the Subleased Premises for the uses permitted hereunder will not cause a
violation of any provision of any of the Master Sublease (including without
limitation the provisions of Conditions 6, 10, 17, 22, 23, 25 and 25A thereof),
Application, Acceptances or FFA.
8.10. Sublessee agrees to conform to the following provisions during the term
of this Sublease: (i) Sublessee shall, at its sole cost and expense in its use
of the Building or the Subleased Premises, comply with the requirements of all
applicable governmental laws, rules and regulations including, without
limitation,
-19-
the Americans with Disabilities Act of 1990, as amended (the "ADA") and (ii) in
the event Sublessee does any work or makes any improvements after commencement
of the term, pay for and perform any work necessary to bring the Premises, the
Building or the Subleased Premises into compliance with the ADA which work is
required due to the Sublessee's particular use of the Premises or the Building.
The Sublessor hereby certifies that the Base Building Work shall conform to the
then existing ADA requirements.
ARTICLE 9. LIENS
----------------
9.1. During the term of this Sublease, Sublessee shall not permit to remain,
and shall promptly discharge, at its cost and expense, all liens, encumbrances
and charges upon the Subleased Premises or any part thereof resulting from or
caused by work performed on behalf of the Sublessee; provided, that the
existence of any mechanics', laborers', materialmen's, suppliers' or vendors'
liens or rights thereto shall not constitute a violation of this Article if
payment is not yet due under the applicable contract. Sublessee shall, however,
have the right to contest with due diligence the validity or amount of any lien
or claimed lien, if Sublessee shall give to Sublessor such security as Sublessor
may reasonably require to insure payment thereof and prevent any sale,
foreclosure or forfeiture of Sublessee's interest in the Subleased Premises or
any portion thereof by reason of such nonpayment. On final determination of the
lien or claim for lien, Sublessee shall immediately pay any judgment rendered
with all proper costs and charges and shall have the lien released or judgment
satisfied at Sublessee's own expense, and if Sublessee shall fail to do so,
Sublessor may at its option pay any such final judgment and clear the Subleased
Premises therefrom. If Sublessee shall fail to contest with due diligence the
validity or amount of any such lien or claimed lien, or to give Sublessor
security as hereinabove provided, Sublessor may, but shall not be required to,
contest the validity or amount of any such lien or claimed lien or settle or
compromise the same without inquiring into the validity of the claim or the
reasonableness of the amount thereof, and in the event of any Sublessor payment
of such lien amount the Sublessor shall be entitled to an additional 20% of such
amount as a penalty and the lien amount and penalty shall be charged to the
Sublessee as Additional Rent hereunder.
9.2. Should any lien be filed against the Subleased Premises or the Building in
which the Subleased Premises are a part, or should any action of any character
affecting the title thereto be commenced, Sublessee shall give to Sublessor
written notice thereof as soon as notice of such lien or action comes to the
knowledge of Sublessee.
ARTICLE 10. ALTERATIONS
-----------------------
10.1. The Sublessee shall have the right to make or construct any cosmetic
changes to the Building or undertake changes or alterations of the non-
structural portions of the Building or Premises, costing less than $50,000
without obtaining Sublessor's approval provided that the Sublessee shall notify
the Sublessor of such alterations. Any non-cosmetic changes or alterations
which shall either
-20-
exceed the $50,000 cost or include structural changes, or any changes which
shall involve changes to the mechanical or HVAC systems, shall require the
consent of the Sublessor, which shall not be unreasonably delayed or withheld
following written notice by the Sublessee. Any request for Sublessor's consent
shall be accompanied by preliminary engineering or architectural plans or, if
consented to by the Sublessor, working drawings. The consent of the Sublessor
will be deemed granted if not withheld within 15 days after request thereof. If
such consents are granted or deemed granted, all such work shall be done at
Sublessee's sole cost, and subject to the following covenants.
(1) All work and alterations shall be done in compliance with all
applicable governmental regulations, codes, standards or other requirements,
including fire, safety and building codes and Land Use Regulations promulgated
by PDA and with the provisions of Article 22 of this Sublease. This obligation
shall include compliance with all applicable provisions of the FFA (as defined
in Article 22), including obligations imposed upon Sublessor in respect to
construction and construction related work.
(2) All alterations shall be of such a character as not to materially
reduce the value and usefulness of any of the Building or other improvements
below their value and usefulness immediately before such alteration (unless
Sublessee undertakes to remove such alterations and restore the Premises upon
termination of the Lease). All work performed hereunder shall be performed in a
good and workmanlike manner, shall conform to drawings and specifications
approved by Sublessor and shall not be disruptive of the overall operation of
the Airport. All contractors engaged by Sublessee to perform such work shall
employ labor that can work in harmony with all elements of labor at the Airport.
(3) During the period of construction of any alteration, Sublessee or
any contractor, subcontractor or sublessee of Sublessee shall maintain or cause
to be maintained the following insurance:
(i) The comprehensive general liability and automobile insurance provided
for in Article 7 and shall be maintained for the limits specified thereunder and
shall provide coverage for the mutual benefit of Sublessor, PDA, the United
States of America and Sublessee as named or additional insured (as is
appropriate) in connection with any alteration permitted pursuant to this
Article 10.
(ii) Fire and any other applicable insurance provided for in Article 7
which if not then covered under the provisions of existing policies shall be
covered by special endorsement thereto in respect to any alteration, including
all materials and equipment therefor incorporated in, on, or about the Subleased
Premises ( including excavations, foundations, and footings) under broad form
all risk builder's risk completed value form or equivalent thereof; and
(iii) Worker's compensation insurance covering all persons employed in
connections with the work and with respect to whom death or bodily injury claims
-21-
could be asserted against PDA, Sublessor, Sublessee or the Subleased Premises,
with statutory limits as then required under the laws of the State of New
Hampshire.
(4) Sublessee shall provide Sublessor and PDA with MYLAR as-built
drawings when any alteration other than cosmetic changes authorized hereunder is
completed.
10.2. Sublessee may erect and maintain suitable monument and on Building back
lit signs at the Subleased Premises upon receiving the prior written approval
of Sublessor and PDA, the approval of Sublessor not to be unreasonably withheld
or delayed. Sublessee shall submit drawings of proposed signs and information
on the number, size, type, and location, all of which Sublessor and PDA may
review for harmony and conformity with the overall structure and architectural
and aesthetic setting of the Building and the Airport as well as with PDA's own
land use control regulations and may approve or disapprove accordingly.
10.3. Notwithstanding any other provision of this Sublease, the right of
Sublessee to place or construct alterations in, to, or upon the Subleased
Premises shall be subject to Condition 17 of the Master Lease.
10.4. In addition to the requirements to provide notice to Sublessor and PDA
under this Article 10 in respect to any alteration, Sublessee shall also provide
notice to Air Force, EPA and NHDES in the same manner and to the extent required
of PDA under Condition 10.16 of the Master Lease. In undertaking any alteration
Sublessee shall comply with Condition 10.17 of the Master Lease to the same
extent required of Sublessor and PDA.
ARTICLE 11. RIGHT OF SUBLESSOR TO INSPECT AND REPAIR
----------------------------------------------------
11.1. Sublessee will permit Sublessor and/or PDA and their authorized agents
and representatives to enter the Subleased Premises at all reasonable times and
upon reasonable notice for the purpose of: (i) inspecting the same; (ii)
showing the Premises to prospective purchasers, or tenants; and (iii) making any
necessary repairs and performing any other work that may be necessary by reason
of Sublessee's failure to comply with the terms of this Sublease within any
applicable grace period provided for in this Sublease with respect to a default
by Sublessee, unless an emergency situation (as determined in Sublessor's and/or
PDA's sole discretion) requires earlier action by Sublessor. Nothing herein
shall imply any duty upon the part of Sublessor and/or PDA to do any such work
and performance thereof by Sublessor and/or PDA shall not constitute a waiver of
Sublessee's default in failing to perform the same. Sublessor and/or PDA may
during the progress of such work keep and store in or on the Subleased Premises
all necessary materials, tools, supplies and equipment. Sublessor and/or PDA
shall not be liable for inconvenience, annoyance, disturbance, loss of business
or other damage of Sublessee by reason of making such repairs or the performance
of any such work, on or account of bringing materials, tools, supplies or
equipment into or through the Subleased Premises during the course
-22-
thereof and the obligations of Sublessee under this Sublease shall not be
affected thereby. Nothing herein shall limit the provisions of Article 8. In
exercising its rights under this Section 11.1, Sublessor shall use diligent
efforts to prevent or minimize interference with Sublessee's use and enjoyment
of the Premises.
11.2. Sublessee acknowledges that from time to time PDA may undertake
construction, repair or other activities related to the operation, maintenance
and repair of the Airport which will require temporary accommodation by
Sublessee. Sublessee agrees to accommodate PDA in such matters, even though
Sublessee's own activities may be inconvenienced or partially impaired, and
Sublessee agrees that no liability shall attach to PDA, its members, employees
or agents by reason of such inconvenience or impairment, unless such activities
of PDA hereunder are performed in a negligent manner.
11.3. Sublessee shall allow PDA and any agency of the United States, its
officers, agents, employees and contractors to enter upon the Subleased Premises
upon reasonable prior notice for any purposes not inconsistent with Sublessee's
quiet use and enjoyment, including but not limited to the purpose of inspection.
Notwithstanding the preceding sentence, in the event the Air Force as Lessor
under the Master Lease (or any other agency having a right of entry under the
Federal Facilities Agreement (FFA) as defined in Section 22.8) or PDA as
Sublessor under the Primary Lease determines that immediate entry is required
for safety, environmental, operations or security purposes they may effect such
entry without prior notice. The Sublessee shall have no claim against PDA or
against the United States or any officer, agent, employee or contractor thereof
on account of any such entries.
ARTICLE 12. GENERAL INDEMNIFICATION BY SUBLESSEE-SUBLESSOR INDEMNIFICATION
--------------------------------------------------------------------------
12.1. In addition to any other obligation of Sublessee under this Sublease to
indemnify, defend and hold harmless Sublessor, it principals, agents and
employees. Sublessee agrees to indemnify, defend and hold harmless Sublessor
against and from any and all claims, judgments, damages, penalties, fines,
assessments, costs and expenses, liabilities and losses (including, without
limitation, sums paid in settlement of claims, attorneys' fees, consultants'
fees and experts' fees) resulting or arising during the term of this Sublease:
(1) from any condition of the Premises resulting from the negligent
use of the Premises by the Sublessee;
(2) from any accident, injury, loss or damage whatsoever caused by any
act or omissions of Sublessee, or any of its agents, contractors, servants,
employees, sublessees, licensees or invitees, to any person or property
occurring during the term of this Sublease, on or about the Subleased Premises
(including ramp and parking areas), or upon the land, streets, curbs or parking
areas adjacent thereto.
-23-
In the event that any action or proceeding is brought against Sublessor by
reason of any matter for which Sublessee has hereby agreed to indemnify, defend,
or hold harmless Sublessor, Sublessee, upon notice from Sublessor, covenants to
resist or defend such action or proceeding with counsel reasonably acceptable to
Sublessor.
12.2. The indemnity provided for in this Article shall extend to and include
individuals, corporations, partnerships, governmental units and any other legal
entity entitled to bring a claim, action or other demand or proceeding on its
own behalf or on behalf of any other entity.
12.3. The Sublessee also expressly waives any claims against the United States
of America, including the Air Force, and further agrees to indemnify, save, hold
harmless and defend the Air Force to the same extent required of PDA under the
Master Lease.
12.4. The Sublessee also expressly waives any claims against PDA and the State
of New Hampshire and further agrees to indemnify, save, hold harmless and defend
PDA and the State of New Hampshire to the same extent required of the Sublessor
under the Primary Sublease.
12.5. In addition to any other obligation of Sublessor under this Sublease
to indemnify, defend and hold harmless Sublessee, its principals, agents and
employees, Sublessor agrees to indemnify, defend and hold harmless Sublessee
against and from any and all claims, judgments, damages, penalties, fines,
assessments, costs and expenses, liabilities and losses (including, without
limitation, sums paid in settlement of claims, attorneys' fees, consultants'
fees and expert fees) resulting or arising during the term of this Sublease:
(1) from any condition of the Premises resulting from negligence of
Sublessor;
(2) from any accident, injury, loss or damage whatsoever caused by any
acts or omissions of Sublessor, or any of its agents, contractors, servants,
employees, sublessees, licensees or invitees, to any person or property
occurring during the term of this Sublease.
In the event that any action or proceedings is brought against Sublessee by
reason of any matter for which Sublessor has hereby agreed to indemnify, defend,
or hold harmless Sublessee, Sublessor, upon notice from Sublessee, covenants to
resist or defend such action or proceeding with counsel reasonably acceptable to
Sublessor.
The indemnity provided for in this Section shall extend to and include
individuals, corporations, partnerships, governmental units and any other legal
entity entitled to bring a claim, action, or other demand or proceeding on its
own behalf or on behalf of any other entity.
-24-
ARTICLE 13. UTILITIES
---------------------
13.1. Sublessor shall bring or shall cause utility lines to be brought to the
Subleased Premises at the points shown on Exhibits 2 & 3. The utility lines as
shown on the Exhibit 2 & 3 Plans shall have the capacities set forth therein
Term which Sublessee acknowledges are sufficient to enable Sublessee to obtain
for the Subleased Premises, as of the date of commencement of Sublessee's
activities, sufficient water, electricity, telephone and sewer service.
Sublessee shall not at any time overburden or exceed the capacity of the mains,
feeders, ducts, conduits, or other facilities by which such utilities are
supplied to, distributed in or serve the Subleased Premises. If Sublessee
desires to install any equipment which shall require additional utility
facilities or utility facilities of a greater capacity than the facilities
provided by Sublessor, such installation shall be subject to Sublessor's and, if
necessary, PDA's prior written approval of Sublessee's plans and specifications
therefor, and the Sublessor's approval shall not be unreasonably withheld. Such
approval shall be deemed granted if the Sublessor shall not respond within 15
days of receipt of Sublessee's written request therefor and shall fail again to
respond 10 days after receipt of Sublessee's second written request therefor. If
such installation is approved by Sublessor and PDA and if Sublessor and PDA
agrees to provide any additional facilities to accommodate Sublessee's
installation, Sublessee agrees to pay Sublessor and/or PDA, in advance and on
demand, the cost for providing such additional utility facilities or utility
facilities of greater capacity.
PDA under the Primary Lease also reserved the right to run such utility
lines as it deems necessary in connection with the development of the Airport
to, from, or through the Subleased Premise, provided, however, that PDA in
exercising such reserved right shall provide reasonable prior notice and the
opportunity to confer with PDA and shall exercise reasonable efforts to avoid or
minimize interference with use of the Subleased Premises.
PDA under the Primary Lease, at its sole discretion, shall have the right
from time to time, to alter the method and source of supply of the above
enumerated utilities to the Subleased Premises and Sublessee agrees to execute
and deliver to PDA such documentation as may be required to effect such
alteration. Sublessee agrees to pay all charges for the above enumerated
utilities supplied by Sublessor, public utility or public authority, or any
other person, firm or corporation which are separately metered to the Subleased
Premises, provided that the charges to be paid by the Sublessee shall not be
greater than those charged prior to the change.
PDA under the Primary Lease, shall have the option to supply any of the
above-enumerated utilities to the Subleased Premises. If PDA shall elect to
supply any of such utilities to the Subleased Premises, Sublessee will purchase
its requirements for such services tendered by PDA, and Sublessee will pay PDA,
within ten (10) days after mailing by PDA to Sublessee of statements therefor,
at the applicable rates determined by PDA from time to time which shall not be
in excess of the public utility rates for the same service, if applicable, to
other aviation tenants at the Airport or otherwise obtainable by Sublessee. If
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PDA so elects to supply any of such utilities, Sublessee shall execute and
deliver to PDA, within ten (10) days after request therefor, any documentation
reasonably required by PDA to effect such change in the method of furnishing of
such utilities.
13.2. Sublessor shall be responsible for providing any meters or other devices
for the measurement of utilities supplied to the Subleased Premises. Sublessee
shall be solely responsible for and promptly pay, as and when the same become
due and payable, all charges for water, sewer, electricity, gas, telephone and
any other utility used or consumed in the Subleased Premises and supplied by
PDA, any public utility or authority or any other person, firm or corporation
which are separately metered to the Subleased Premises.
13.3. All work and construction under this Article shall comply with the
provisions of Article 10 of this Sublease applicable to construction work.
ARTICLE 14. SERVICES TO BE FURNISHED BY SUBLESSOR AND SUBLESSEE'S AGREEMENTS.
-----------------------------------------------------------------------------
14.1 Sublessor Services. Sublessor agrees to provide the services listed under
Exhibit 11 and shall perform such maintenance and repair of the Building as
shall be reasonably required to maintain the condition of the Subleased
Premises; the costs and expenses associated therewith shall be deemed part of
the Additional Rent. Except as otherwise provided in this Sublease, Sublessor
agrees to keep in good order, condition and repair, the foundation, roof, public
areas, exterior walls and structure of the Building including plumbing,
mechanical and electrical systems installed by Sublessor, and the HVAC system
serving the Premises, all insofar as they affect the Premises. Sublessor shall
cause the paved portions of the Property to be kept reasonably free and clear of
snow, ice and refuse and shall cause the landscaped areas of the Property to be
maintained in a reasonably attractive appearance. Except to the extent otherwise
set forth in the Sublease, the Sublessor is reimbursed by insurance or such
repairs are required because of the negligence of Sublessor, its agents or
employees, all costs and expenses incurred by Sublessor in performing its
obligations under this Section shall be included in Operating Expenses.
14.2. Any services which Sublessor is required to furnish pursuant to the
provisions of this Sublease may, at Sublessor's option be furnished from time to
time, in whole or in part, by employees of Sublessor or by the property manager
of the Subleased Premises or by one or more third persons.
14.3. Sublessee's Agreement (a) Sublessee will keep neat and clean and maintain
in good order, condition and repair the Premises and every part thereof,
excepting only those repairs for which Sublessor is responsible under the terms
of this Sublease and reasonable wear and tear of the Premises, and damage by
fire or other casualty and as a consequence of the exercise of the power of
eminent domain; (b) If repairs are required to be made by Sublessee pursuant to
the terms hereof, Sublessor may demand that Sublessee make the same forthwith,
and if Sublessee refuses or neglects to commence such repairs
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and complete the same with reasonable dispatch after such demand, Sublessor may
(but shall not be required to do so) after ninety (90) days prior written notice
to Sublessee stating Sublessor's intentions to make or cause such repairs to be
made (and charge Sublessee with the costs thereof as Additional Rent) and shall
not be responsible to Sublessee for any loss or damage that may accrue to
Sublessee's stock or business by reason thereof. Notwithstanding the foregoing,
Sublessor may elect to take action hereunder immediately without notice to
Sublessee if Sublessor reasonably believes an emergency to exist, and Sublessor
shall provide notice of its action to Sublessee as soon as practicable..
14.4. Floor Load - Heavy Machinery. (a) Sublessee shall not place a load upon
any floor in the Premises exceeding 80 lbs. per square foot. (b) If any safe,
machinery, equipment, freight, bulky matter or fixtures requires special
handling, Sublessee agrees to employ only persons holding a Master Rigger's
License to do such work, and that all work in connection therewith shall
comply with applicable laws and regulations. Any such moving shall be at the
sole risk and hazard of Sublessee, and Sublessee will exonerate, indemnity and
save Sublessor harmless against and from any liability, loss, injury, claim or
suit resulting directly or indirectly from such moving.
14.5. Building Services. Sublessor shall furnish cleaning of exterior common
areas, and cleaning of the Premises in accordance with the provisions of Exhibit
11and hot and cold water to the Building. The Sublessor shall install
underground conduits for the Sublessee's telecommunication requirements. The
Sublessee shall be entitled to such signage as shall be described in Exhibit
12, and if required, approved by the PDA.
14.6. Electricity. Sublessor shall permit Sublessor's existing wires, pipes,
risers, conduits and other electrical equipment of Sublessor to be used for the
purpose of providing electrical service to the Premises. Sublessee covenants
and agrees that its electrical usage will not exceed the maximum load from time
to time permitted by applicable governmental regulations nor the design
criteria of the existing Building electrical capacity. Sublessor shall not in
any way be liable or responsible to Sublessee for any loss or damage or expense
which Sublessee may sustain or incur if, during the term of this Sublease,
either the quantity or character of electric current is changed or electric
current is no longer available or suitable for Sublessee's requirements due to
a factor or cause beyond Sublessor's control. Sublessee shall purchase and
install all lamps, tubes, bulbs, starters and ballasts except as included in
Base Building Work. Sublessee shall pay all charges for electricity, HVAC, gas
and other utilities used or consumed in or on the Premises. Sublessee shall bear
the cost of repair and maintenance of any electric or gas meter used or to be
installed in (or serving) the Premises.
14.7. All work, repairs, alterations or modifications undertaken pursuant to
this Article 14 shall be subject to the provisions of Article 10 of this
Sublease
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ARTICLE 15. THIS ARTICLE INTENTIONALLY LEFT BLANK
-------------------------------------------------
ARTICLE 16. DAMAGE OR DESTRUCTION
---------------------------------
16.1. Sublessor's Right of Termination. If the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially damaged"
meaning damage of such a character that the same cannot, in ordinary course
reasonably be expected to be repaired within nine (9) months from the time the
repair work would commence or such repair would take more than thirty percent
(30%) of the remainder of the term, as extended, to complete or the same shall
occur during the last year of the term and such damage is substantial in light
of the length of the term remaining) then either the Sublessor or the Sublessee
may terminate this Lease by giving notice to the other within 30 days of such
damage or destruction
16.2. Restoration. If this Sublease shall not be terminated pursuant to Section
16.1, Sublessor shall thereafter use due diligence to restore the Premises
(including all alterations, additions or improvements made pursuant to Article 2
including Tenant Work) to proper condition for Sublessee's use and occupation,
provided that Sublessor's obligation shall be limited to the amount of insurance
proceeds available therefor. If, for any reason, such restoration shall not be
substantially completed within nine (9) months (which nine (9)-month period may
be extended for such periods of time as Sublessor is prevented from proceeding
with or completing such restoration for any Force Majeure cause as defined under
Article 2 or by reason of any delay caused by the Sublessee)Sublessee shall have
the right to terminate this Sublease by giving notice to Sublessor after the
expiration of such period (as so extended). Upon the giving of such notice, this
Sublease shall cease and come to an end without further liability or obligation
on the part of either party unless, within thirty (30) days of such notice
Sublessor completes such restoration to the point where the Sublessee can
reasonably resume its use of the Subleased Premises.. Such right of termination
shall be Sublessee's sole and exclusive remedy at law or in equity for
Sublessor's failure so to complete such restoration. term. During the period of
such restoration, and from the date of such damage or destruction, whether or
not the Premises are restored, if the Sublessee shall not have reasonable use
and occupancy of the Premises, the rent shall be equitably abated based on the
extent to which the Sublessee is deprived of productive use of the Premises.
ARTICLE 17. EMINENT DOMAIN
--------------------------
17.1. If after the execution of the Sublease and prior to the expiration of the
term of this Sublease, the whole of the Subleased Premises shall be taken under
the power of eminent domain, then the term of this Sublease shall cease as of
the time when Sublessor shall be divested of its title in the Subleased
Premises, and all rent shall be apportioned and adjusted as of the time of
termination.
17.2. If only a part of the Subleased Premises shall be taken under the power
of eminent domain, and if as a result thereof the Subleased Premises shall not
in Sublessee's reasonable judgment be reasonably adequate for the operation of
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the business conducted in the Subleased Premises prior to the taking, Sublessee
may, at its election, terminate the term of this Sublease by giving the
Sublessor notice of the exercise of its election within thirty (30) days after
it shall receive notice of such taking, and the termination shall be effective
as of the time that Sublessee is dispossessed, and all rent shall be apportioned
and adjusted as of the time of termination. If only a part of the Subleased
Premises shall be taken under the power of eminent domain, and if the term of
this Sublease shall not be terminated as aforesaid, then the term of this
Sublease shall continue in full force and effect, and Sublessor shall, within a
reasonable time after possession is required for public use, repair and rebuild
what may remain of the Subleased Premises so as to put the same into condition
for use and occupancy by Sublessee, and a just proportion of all rent according
to the nature and extent of the injury to the Subleased Premises shall be abated
for the balance of the term of this Sublease. All awards attributable to the
Sublessee's loss of Tenant Work or Sublessee's leasehold improvements or trade
fixtures or other awards directly related to the Sublessee's business shall be
the property of the Sublessee.
17.3. Sublessor reserves to itself, and Sublessee assigns to Sublessor, all
rights to damages accruing on account of any taking under the power of eminent
domain or by reason of any act of any public or quasi public authority for which
damages are payable. Sublessee agrees to execute such instruments of assignment
as may be reasonably required by Sublessor in any proceeding for the recovery of
damages that may be recovered in such proceeding. It is agreed and understood,
however, the Sublessor does not reserve to itself, and Sublessee does not assign
to Sublessor, any damages payable for movable trade fixtures installed by
Sublessee or anybody claiming under Sublessee at its own cost and expense, or
any awards attributable to the Sublessee's loss of the unamortized value of
Tenant Work and the value of trade fixtures or other awards directly related
to the Sublessee's business or moving expenses which shall be the property of
the Sublessee.
ARTICLE 18. DEFAULT
-------------------
18.1. If Sublessee shall default in the payment of rent or other payments
required of Sublessee, and if Sublessee shall fail to cure said default within
seven (7) business days after receipt of written notice of said default from
Sublessor; or if Sublessee shall default in the performance or observance of any
other agreement or condition on its part to be performed or observed, and if
Sublessee shall fail to cure said default within ninety (90) days or such longer
period as shall be reasonably required so long as the Sublessee shall be
diligently pursuing such cure after receipt of written notice of said default
from Sublessor; or if any person shall levy upon, or take Sublessee's leasehold
interest or any part hereof, upon execution, attachment, or their process of
law; or if Sublessee shall make an assignment of its property for the benefit of
creditors; or if Sublessee shall file voluntary bankruptcy; or if any bankruptcy
or insolvency proceedings shall be commenced by Sublessee or an involuntary
bankruptcy shall be filed against the Sublessee which remains undischarged for a
period of 60 days, or if a receiver, trustee, or assignee shall be appointed for
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the whole or any part of the Sublessee's property, then in any of said cases,
Sublessor lawfully may upon seven days notice or if such notice shall adversely
affect the rights of the Sublessor in any bankruptcy or receivership, then
immediately, or at any time thereafter, and without further notice of demand,
enter into and upon the Subleased Premises, or any part hereof in the name of
the whole, and hold the Subleased Premises as if this Sublease had not been
made, and expel Sublessee and those claiming under it, and remove its or their
property without being taken or deemed to be guilty of any manner of trespass
(or Sublessor may send written notice to Sublessee of the termination of this
Sublease, and upon entry as aforesaid (or in the event that Sublessor shall sent
to Sublessee notice of termination as above provided, on the fifth (5th) day
next following the date of the sending of the notice), the term of this
Sublease shall terminate. Sublessee hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Sublessee being evicted or dispossessed for any cause, or in the event Sublessor
terminates this Sublease as provided in this Article. The Sublessee shall be
liable for a 5% late charge applicable to any amounts due under this Sublease,
which are not paid within seven (7) business days from the date of the notice of
default.
18.2. In the case of such termination, Sublessee will indemnify and pay to
Sublessor each month, or such other period elected by the Sublessor against all
loss of rent, and all costs, expenses of any kind incurred by Sublessor by
reason of such termination, between the time of termination and the expiration
of the term of this Sublease. Sublessor shall reasonably perform its legal
obligation to relet the premises for such term as the Sublessor shall determine,
without releasing Sublessee from Sublessee's liability whatsoever. The
Sublessee shall be liable for any expenses incurred by Sublessor in connection
with obtaining possession of the Subleased Premises, with removing from the
Subleased Premises property of Sublessee and persons claiming under it
(including warehouse charges), with putting the Subleased Premises into a
condition reletting similar to its condition at the commencement of this Lease,
reasonable wear and tear excepted, and with any reletting, including, but
without limitation, reasonable attorneys' fees and brokers' fees. Any monies
collected from any reletting shall be applied first to the foregoing expenses
and then to the payment of rent and all other payments due from Sublessee to
Sublessor. The Sublessor shall, commensurate with any demand for payment of any
of the above as to expenses or rent, provide the Sublessee with an itemization
of all such items as a condition to the Sublessee's obligations to make payment.
If Sublessor shall be in default in the prompt and full performance of any
other of its promises, covenants, or agreements contained in this Sublease and
such default in performance continues for more than thirty (30) days after
written notice thereof from Sublessee to Sublessor specifying the particulars of
such default or breach of performance provided, however, that if the default
complained of, is of such a nature that the same cannot be rectified or cured
within such thirty (30 day period, then such default shall be deemed to be
rectified or cured if Sublessor, within such thirty (30) day period, shall have
commenced such cure and shall continue thereafter with due diligence to cause
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such cure to be completed. Upon any default of this Sublease by Sublessor,
Sublessee shall be entitled to pursue any and all remedies available to
Sublessee at law or in equity, including, without limitation, the right of self-
help. In the event Sublessor fails to cure the default within ten (10) days
after delivery of such notice, Sublessee shall have the right, but not the
obligation, to cure such default itself, and the costs incurred by Sublessee in
curing such default shall be offset against the Base Rent next coming due until
satisfied in full.
ARTICLE 19. SUBORDINATION
-------------------------
19.1. Provided that Sublessor delivers a commercially reasonable Non-
Disturbance Agreement, Sublessee agrees that upon the request of Sublessor it
will subordinate this Sublease and the lien hereof to the lien of any present or
future mortgage or mortgages upon the Subleased Premises, any property of which
the Subleased Premises are a part, or upon any ground lease of such property or
upon any part thereof, irrespective of the time of execution or time of
recording of any sub mortgage or mortgages. Sublessee agrees that it will, upon
the request of Sublessor, execute, acknowledge and deliver any and all
instruments deemed by Sublessor necessary or desirable to give effect or notice
of such subordination. The word "mortgage" as used herein includes mortgages,
deeds of trust, or other similar instruments and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. At the request of
the holder of any mortgage upon the Subleased Premises or any property of which
the Subleased Premises is a part may subordinate the lien of such mortgage to
this Sublease, thereby making this Sublease superior to such mortgage, by
recording in the Rockingham County Registry of Deeds, a Notice of Subordination
or other document of like effect, executed unilaterally by such mortgage.
Whether the lien of any mortgage shall be superior or subordinate to this
Sublease and the lien hereof, Sublessee agrees that , if requested by Sublessor
or the holder of such mortgage, it will attorn to the holder of such mortgage or
anyone claiming under such holder and their respective successors and assigns in
the event of foreclosure of or similar action taken under such mortgage.
Sublessor agrees that it shall provide to Sublessee Non-Disturbance Agreements
in form and substance reasonably satisfactory to Sublessee from PDA and any then
existing holder of a mortgage upon the Premises prior to the commencement of
construction of the Building. Such agreement from PDA shall be substantially
as shown in Exhibit 14 attached hereto.
ARTICLE 20. CERTIFICATE
-----------------------
20.1. Within ten (10) business days after written request therefor by
Sublessor, Sublessee agrees to deliver to Sublessor or to any mortgagee a
certificate stating (if such be the case) that Sublessee has entered into
occupancy of the Subleased Premises in accordance with the provisions of this
Sublease, that this Sublease is in full force and effect (if such be the case),
that Sublessor has performed the construction required of Sublessor, and any
other information reasonably requested. Sublessor agrees to provide Sublessee
with any similar certificate upon request by the Sublessee, including a
statement that no default
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exists under the Primary Sublease, and that the Primary Sublease is in full
force and effect.
ARTICLE 21. ASSIGNMENT, SUBLEASES, MORTGAGE, RIGHT OF FIRST OFFER
-----------------------------------------------------------------
21.1. Sublessee shall not assign this Sublease without the written consent of
the Sublessor, provided however, that Sublessee may, without Sublessor's or the
PDA's prior written consent, but upon notice to Sublessor and PDA, sublet all or
any portion of the Premises or assign Sublessee's interest in this Sublease to a
subsidiary, affiliate, parent or other entity which controls, is controlled by,
or is under common control with Sublessee provided that Sublessee shall continue
to remain liable hereunder.
21.2. Except as provided in 21.1 above, Sublessee shall not assign or enter
into any sublease of the Subleased Premises without Sublessor's prior written
approval of Sublessor and PDA. Any request for Sublessor's approval shall be
made at least 21 days prior to the commencement of such tenancy, and shall
provide reasonably detailed information concerning the identity and financial
condition of the proposed assignee or sublessee and the terms and conditions of
the proposed assignment or sublease. Sublessor and PDA shall not unreasonably
withhold or delay consent to such assignment or sublease if (1) the use of the
Subleased Premises is a permitted use under this Sublease; (2) the sublease is
consistent with the terms and conditions of this Sublease; (3) Sublessee remains
primarily liable to Sublessor to pay rent and perform all other obligations to
be performed by Sublessee under this Sublease. Furthermore, neither Sublessor
nor PDA shall unreasonably withhold or delay consent to an assignment or
subletting in connection with any merger, consolidation, acquisition or
reorganization of Sublessee.
If Sublessor shall fail to respond to the Sublessee's request within 15
days after receipt of the request, such request shall be deemed approved.
Sublessee shall not employ a broker to market the Subleased Premises or any
portion thereof other than Sublessor's agent. This provision shall not apply in
the event that 85% of the ownership interest in the Sublessor shall change, in
which event the Sublessor shall so notify the Sublessee.
21.3. Continuing Liability of Sublessee. No subletting, assignment or
transfer, whether Sublessor's consent is required or otherwise given hereunder,
shall release Sublessee's obligations or alter the primary liability of
Sublessee to pay the rent and to perform all other obligations to be performed
by Sublessee hereunder. The acceptance of rent by Sublessor from any other
person shall not be deemed to be a waiver by Sublessor of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. If any assignee of Sublessee or any
successor of Sublessee defaults in the performance of any of the terms hereof,
Sublessor may proceed directly against Sublessee without the necessity of
exhausting remedies against such assignee or successor. If Sublessee assigns
this Sublease, or
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sublets all or a portion of the Subleased Premises, or requests the consent of
Sublessor to any assignment or subletting, or if Sublessee requests the consent
of Sublessor for any act that Sublessee proposes to do, then Sublessee shall pay
Sublessor's reasonable processing fee and reimburse Sublessor for all reasonable
attorneys' fees incurred in connection therewith. Any assignment or subletting
of the Subleased Premises that is not in compliance with the provisions of this
Article 21 shall be void.
21.4. Notwithstanding any other provision of this Sublease, any assignment or
sublease shall comply with the provision of Article 22 including the notice
requirements of Condition 10.8 of the FFA (as that term is defined in Section
22.8) and the terms and conditions of the Primary Sublease.
21.5. Mortgages. Except as otherwise expressly agreed to by PDA in writing,
Sublessee shall not have the right to engage in any financing or other
transaction creating any mortgage upon the Subleased Premises. Any approval of
PDA shall be expressly subject to Condition 21 of the Master Lease and the
provisions of the Primary Sublease. Sublessee further agrees that in the event
of any authorized sublease or assignment of the Subleased Premises, it shall
provide to the Air Force, EPA and NHDES by certified mail a copy of the
agreement of sublease or assignment of the Subleased Premises within fourteen
(14) days after the effective date of such transaction. Sublessee may delete
the financial terms and any other proprietary information from any sublease or
assignment submitted to the above mentioned entities.
ARTICLE 22. ENVIRONMENTAL PROTECTION
------------------------------------
22.1. Sublessee and any sublessee or assignee of Sublessee shall use the
Premises so as to comply with all federal, state, and local laws, regulations,
and standards that are or may become applicable to Sublessee's or Sublessee's
assignee's activities at the Subleased Premises, including but not limited to,
the applicable environmental laws and regulations identified in Exhibit 5, as
amended from time to time, but Sublessee shall have no responsibility for
contamination not caused by Sublessee or its sublessees, assignees, contractors
or agents.
22.2. Sublessee and any assignee of Sublessee shall be solely responsible for
obtaining at their cost and expense any environmental permits required for their
operations under this Sublease or any sublease or assignment, independent of any
existing Airport permits except that Sublessor shall be solely responsible for
obtaining the Certificate of Occupancy and all other Approvals.
22.3. Sublessee shall indemnify, defend and hold harmless Sublessor, PDA and
the Air Force against and from all claims, judgments, damages, penalties, fines,
costs and expenses, liabilities and losses (including, without limitation,
diminution in value of the Premises, damages for the loss or restriction on the
use of the Premises, and sums paid in settlement of claims, attorneys' fees,
consultants' fees and experts' fees), resulting or arising from discharges,
emissions, spills, releases, storage, or disposal of any Hazardous Substances,
or any other action by the Sublessee, or any sublessee or assignee of the
Sublessee, giving rise to
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Sublessor or PDA or Air Force liability, civil or criminal, or responsibility
under federal, state or local environmental laws.
This indemnification of Sublessor and PDA and Air Force by Sublessee
includes, without limitation, any and all claims, judgment, damages, penalties,
fines, costs and expenses, liabilities and losses incurred by Sublessor or PDA
or Air Force in connection with any investigation of site conditions, or any
remedial or removal action or other site restoration work required by any
federal, state or local governmental unit or other person for or pertaining to
any discharges, emissions, spills, releases, storage or disposal of Hazardous
Substances arising or resulting from any act or omission of the Sublessee or any
sublessee or assignee of the Sublessee at the Subleased Premises after the
Occupancy Date. "Occupancy Date" as used herein shall mean the earlier of the
first day of Sublessee's occupancy or use of the Subleased Premises or the date
of execution of this Sublease. "Occupancy" or "Use" shall mean any activity or
presence including preparation and construction in or upon the Subleased
Premises.
The provisions of this Section shall survive the expiration or termination
of the Sublease, and the Sublessee's obligations hereunder shall apply whenever
the Sublessor or the Air Force incurs costs or liabilities for the Sublessee's
actions of the types described in this Article.
22.4. Notwithstanding any other provision of this Sublease, Sublessee and its
sublessees and assignees do not assume any liability or responsibility for
environmental impacts and damage caused by the use by the Air Force or any other
party of Hazardous Substances on any portion of the Airport, including the
Subleased Premises. Furthermore, the parties recognize and acknowledge the
obligation of the Air Force to indemnify the Sublessor and Sublessee to the
extent required by the provisions of Public Law No. 101-511, Section 8056 and
Public Law No. 102-484, as amended. The Sublessee and its sublessees and
assignees have no obligation to undertake the defense, remediation and cleanup,
including the liability and responsibility for the costs of damages, penalties,
legal and investigative services solely arising out of any claim or action in
existence now, or which may be brought in the future by any person, including
governmental units against the Air Force, because of any use of, or release
from, any portion of the Airport (including the Subleased Premises) of any
Hazardous Substances prior to the Occupancy Date, Sublessee's liability being
limited to matters relating to its own or its sublessees, assignees, contractors
and agents' activities.
Sublessor shall have the obligation to remediate any Hazardous Substance
contamination not caused by the Sublessee, at the Sublessor's cost, and not as
part of the Operating Expenses. In the event that any such contamination or
existence of Hazardous Substance shall result in a health hazard sufficient to
not allow the healthful use of the Building by employees or other users of the
Building, which cannot be remedied in a reasonable manner or within a reasonable
time (but in any event, Sublessor shall be given at least one
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hundred eighty (180) days to remedy such problem), the Sublessee shall have the
right to terminate this Sublease upon notice to Sublessor.
22.5. As used in this Sublease, the term "Hazardous Substances" means any
hazardous or toxic substance, material or waste, oil or petroleum product, which
is or becomes regulated by any local governmental authority, the State of New
Hampshire or the United States Government. The term "Hazardous Substances"
includes, without limitation, any material or substance which is (i) defined as
a "hazardous waste," under New Hampshire RSA ch.147-A, (ii) defined as a
"hazardous substance" under New Hampshire RSA ch.147-B, (iii) oil, gasoline or
other petroleum product, (iv) asbestos, (v) listed under or defined as hazardous
substance pursuant to Part Hc. P 1905 ("Hazardous Waste Rules") of the New
Hampshire Code of Administrative Rules, (vi) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act
(33 U.S.C. (S)1317, (vii) defined as a "hazardous waste" pursuant to Section
1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. (S)6901 et
seq. (42 U.S.C. (S)6903), or (viii) defined as a "hazardous substance" pursuant
to Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. (S)9601 et seq. (42 U.S.C. (S)9601) and (ix) so defined
in the regulations adopted and publications promulgated pursuant to any of such
laws, or as such laws or regulations may be further amended, modified or
supplemented (collectively "Hazardous Substance Laws").
As used in this Sublease, the terms "release" and "storage" shall have the
meanings provided in RSA 147-B:2, as amended, and the term "disposal" shall have
the meaning provided in RSA 147-A:2.
22.6. Sublessor's rights under this Sublease and PDA's rights under the Primary
Sublease specifically include the right for Sublessor and PDA to inspect the
Subleased Premises and any buildings or other facilities thereon for compliance
with environmental, safety, and occupational health laws and regulations,
whether or not the Sublessor or PDA is responsible for enforcing them. Such
inspections are without prejudice to the right of duly constituted enforcement
officials to make such inspections. In exercising such rights, Sublessor shall
use diligent efforts to prevent or minimize and to use reasonable efforts to
cause PDA to prevent or minimize interference with Sublessee's use and enjoyment
of the Premises.
22.7. Notwithstanding any other provision of this Sublease and pursuant to the
Primary Sublease, PDA is not responsible for any removal or containment of
asbestos. If Sublessee and any sublessee or assignee intend to make any
improvements or repairs that require the removal of asbestos, an appropriate
asbestos disposal plan must be incorporated in the plans and specifications.
The asbestos disposal plan shall identify the proposed disposal site for the
asbestos. In addition, non-friable asbestos which becomes friable through or as
a consequence of the activities of Sublessee will be abated by Sublessee at its
sole cost and expense. The Sublessor hereby certifies that the Premises and the
buildings on the Premises are free of any asbestos materials.
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22.8. Sublessor and Sublessee acknowledge that the Airport has been identified
as a National Priority List (NPL) Site under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) of 1980, as amended.
Sublessee acknowledges that Sublessor has provided it with a copy of the Xxxxx
Federal Facility Agreement ("FFA") entered into by EPA, and the Air Force on
April 24, 1991, and Modification No. 1 thereto, effective March 18, 1993, agrees
that it will comply with the terms of the FFA to the extent the same may be
applicable to the Subleased Premises and that should any conflict arise between
the terms of the FFA and the provisions of this Sublease, the terms of the FFA
will take precedence. The Sublessee further agrees that the Sublessor and PDA
assume no liability to the Sublessee or any Sublessee or assignee of Sublessee
should implementation of the FFA interfere with their use of the Subleased
Premises. The Sublessee and its Sublessee(s) and assignee(s) shall have no
claim on account of any such interference against the Sublessor, or PDA or any
officer, agent, employee or contractor thereof, other than a claim to Sublessor
for abatement of rent.
In the event of such interference which shall result in the inability of
the Sublessee to use the Premises, or any part thereof, the rent shall be
abated equitably during such period.
22.9. The Air Force, EPA, and NHDES and their officers, agents, employees,
contractors, and subcontractors have the right, upon reasonable notice to the
Sublessee and any Sublessee or assignee, to enter upon the Subleased Premises
for the purposes enumerated in this subparagraph and for such other purposes
consistent with the FFA:
(1) to conduct investigations and surveys, including, where necessary,
drilling, testpitting, borings and other activities related to the Xxxxx
Installation Restoration Program ("IRP") or the FFA;
(2) to inspect field activities of the Air Force and its contractors
and subcontractors in implementing the IRP or the FFA;
(3) to conduct any test or survey required by the EPA or NHDES
relating to the implementation of the FFA or environmental conditions at the
Subleased Premises or to verify any data submitted to the EPA or NHDES by the
Air Force relating to such conditions;
(4) to construct, operate, maintain or undertake any other response
or remedial action as required or necessary under the IRP or the FFA, including,
but not limited to monitoring xxxxx, pumping xxxxx and treatment facilities.
22.10. Sublessee and its sublessees and assignees agree at no cost to them to
comply with the provisions of any health or safety plan in effect under the IRP
or the FFA during the course of any of the above described response or remedial
actions. Any inspection, survey, investigation, or other response or remedial
action will, to the extent practicable, be coordinated with representatives
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designated by the Sublessee and any sublessee or assignee. Sublessee and any
sublessee or assignee shall have no claim on account of such entries against the
State as defined in FFA or any officer, agent, employee, contractor, or
subcontractor thereof.
22.11. The Airport air emissions offsets and Air Force accumulation points for
hazardous and other wastes will not be made available to Sublessee. Sublessee
shall be responsible for obtaining from some other source(s) any air pollution
credits that may be required to offset emissions resulting from its activities
under the Sublease.
22.12. Any permit required under Hazardous Substance Laws for the management of
Hazardous Substances stored or generated by Sublessee or any sublessee or
assignee of Sublessee shall be obtained by Sublessee or its sublessees or
assignee and shall be limited to generation and transportation. Any violation
of this requirement shall be deemed a material breach of this Sublease.
Sublessee shall provide at its own expense such hazardous waste storage
facilities, complying with all laws and regulations, as it needs for management
of its hazardous waste.
22.13. Sublessee, and any sublessee or assignee of Sublessee whose operations
utilize Hazardous Substances, shall have a completed and approved plan for
responding to Hazardous Substances spills required by applicable law prior to
commencement of operations on the Subleased Premises. Such plan shall be
independent of, but not inconsistent with, any plan or other standard of PDA
applicable to the Airport and except for initial fire response and/or spill
containment, shall not rely on use of the Airport or Sublessor personnel or
equipment. Should the Sublessor provide any personnel or equipment, whether for
initial fire response and/or spill containment or otherwise, on request of the
Sublessee, or because the Sublessee was not, in the reasonable opinion of
Sublessor, conducting timely cleanup actions, the Sublessee agrees to reimburse
the Sublessor for its costs.
22.14. Sublessee, and any Sublessee or assignee of Sublessee, must maintain and
make available to PDA, the Air Force, EPA and NHDES all records, inspections
logs, and manifests that tract the generation, handling, storage, treatment and
disposal of Hazardous Waste, as well as all other records required by applicable
laws and requirements. PDA and the Air Force reserve the right to inspect the
Subleased Premises and Sublessee's, its sublessee's or assignee's records for
compliance with Federal, State, local laws, regulations, and other requirements
relating to the generation, handling, storage, treatment and disposal of
hazardous waste, as well as the discharge or release of hazardous substances.
Violations may be reported by PDA and the Air Force to appropriate regulatory
agencies, as required by applicable law. The Sublessee, its sublessees or
assignees shall be liable for the payment of any fines and penalties or costs
which may accrue to the United States of America or PDA as a result of the
actions of Sublessee, its sublessees or assignees, respectively.
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22.15. Sublessor hereby represents and warrants to Sublessee that to the best
of its knowledge and belief the property is free from contamination by Hazardous
Materials or Hazardous Substances and complies with all environmental laws.
Sublessor represents and warrants to Sublessee that Sublessor has delivered to
Sublessee all environmental site assessments and similar reports known to
Sublessor affecting the Property. Sublessor agrees to indemnify, defend and
hold Sublessee harmless from all loss, cost, damage, claims or expenses incurred
by Sublessee as result of the inaccuracy of the above representations.
22.16. Sublessee shall be solely responsible for maintaining and operating the
emergency generator to be installed on the Premises and, accordingly, all risk
and responsibility for handling, storing and disposing of fuel for the
generator, and all other environmental risks associated with the generator,
shall be borne by the Sublessee.
22.17. Sublessee further agrees that in the event of any authorized sublease or
assignment of the Subleased Premises, it shall provide to the Air Force, EPA and
NHDES by certified mail a copy of the agreement of sublease or assignment of the
Subleased Premises within fourteen (14) days after the effective date of such
transaction. Sublessee may delete the financial terms and any other proprietary
information from any sublease or assignment submitted to the above-mentioned
entities.
22.18. Prior to the storage, mixing, or application of any pesticide, as that
term is defined under the Federal Insecticide, Fungicide, and Rodenticide Act,
the Sublessee, its sublessees and assignees shall prepare a plan for storage,
mixing, and application of pesticides ("Pesticide Management Plan"). The
Pesticide Management Plan shall be sufficient to meet all applicable Federal,
State and local pesticide requirements. The Sublessee, its sublessees and
assignees, shall store, mix and apply all pesticides within the Subleased
Premises only in strict compliance with the Pesticide Management Plan. The
pesticides will only be applied by a licensed applicator.
22.19. The Sublessee, its sublessees and assignees must notify the Sublessor
and the Site Manager of its intent to possess, store, or use any licensed or
licensable source or byproduct materials, as those terms are defined under the
Atomic Energy Act and its implementing regulations; of Sublessee's, its
sublessees and assignees intent to possess, use, or store radium; and of
Sublessee's, its sublessees and assignees intent to possess or use any equipment
producing ionizing radiation and subject to specific licensing requirements or
other individual regulations, at least sixty (60) days prior to the entry of
such materials or equipment upon the Airport. Upon notification, the Sublessor
and the Site Manager may impose such requirements, including prohibition of
possession, use, or storage, as deemed necessary to adequately protect the
health and human environment. Thereafter, the Sublessee must notify the
Sublessor and the Site Manager of the presence of all licensed or licensable
source or other byproduct materials, of the presence of all byproduct materials,
of the presence of radium, and of the presence of all equipment producing
ionizing radiation and subject to specific licensing requirements or
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other individual regulation; provided, however, that the Sublessee, it
sublessees and assignees need not make either of the above notifications to the
Sublessor and the Site Manager with respect to source and byproduct material
which is exempt from regulation under the Atomic Energy Act. The Sublessee shall
not, under any circumstances, use, own, possess or allow the presence of special
nuclear material on the Subleased Premises.
ARTICLE 23. HOLDING OVER
------------------------
23.1. Any holding over by Sublessee after the expiration of the term of this
Sublease shall be treated as a daily tenancy at sufferance at a rate equal to
the then fair rental value of the Subleased Premises but in no event less than
150% of the sum of (i) Base Rent and (ii) Operating Expenses and Real Estate
taxes in effect on the expiration date, provided that during the first 6 months
of such holdover the rate shall be at 120% of the then Base Rent and Operating
Expenses and taxes. Otherwise, such holding over shall be on the terms and
conditions set forth in this Sublease as far as applicable. The Sublessor may,
but shall not be required to, and only on written notice to Sublessee after the
expiration of the term hereof, elect to treat such holding over as an extension
of the term of this Sublease for a period of up to the first 6 months, at 120%
of the then current rent rate, such extension to be on the terms and conditions
set forth in this Section.
ARTICLE 24. WAIVERS
-------------------
24.1. Failure of either party to complain of any act or omission on the part
of the other party, no matter how long the same may continue, shall not be
deemed to be a waiver by that party of any of its rights hereunder. No waiver
by either party at any time, express or implied, or any breach of any provision
of this Sublease shall be deemed a waiver of a breach of any other provision of
this Sublease or a consent of any subsequent breach of the same or any other
provision. If any action by Sublessee shall require Sublessor's consent or
approval, Sublessor's consent to or approval of such action on any one occasion
shall not be deemed a consent to or approval of said action on any subsequent
occasion or a consent to or approval of any other action on the same or any
subsequent occasion. No payment by Sublessee or acceptance by Sublessor of a
lesser amount than shall be due from Sublessee to Sublessor shall be deemed to
be anything but payment on account, and the acceptance by Sublessor of a check
for a lesser amount with an endorsement or statement thereon, or upon letter
accompanying said check that said lesser amount is payment in full, shall not be
deemed an accord and satisfaction, and Sublessor may accept said check without
prejudice to recover the balance due or pursue any other remedy. Any and all
rights and remedies which either party may have under this Sublease or by
operation of law, either at law or in equity, upon any breach, shall be
distinct, separate and cumulative, and shall not be deemed inconsistent with
each other; and no one of them, whether exercised by that party or not, shall be
deemed to be in exclusion of any other; and any two or more of all such rights
and remedies may be exercised at the same time.
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ARTICLE 25. QUIET ENJOYMENT
---------------------------
25.1. Sublessor agrees that upon Sublessee's paying the rent and performing and
observing the agreements, conditions and other provisions on its part to be
performed and observed, Sublessee shall and may peaceably and quietly have,
hold, and enjoy the Subleased Premises during the term of this Sublease without
any manner of hindrance or molestation from Sublessor or anyone claiming under
Sublessor, subject, however, to the terms of this Sublease and any instruments
having a prior lien.
ARTICLE 26. NTENTIONALLY LEFT BLANK
-----------------------------------
ARTICLE 27. INTERPRETATIONS
---------------------------
27.1. This instrument contains the entire and only agreement between the
parties, and no oral statements or representations or prior written matter not
contained in this instrument shall have any force or effect. This Sublease
shall not be modified in any way except by a writing subscribed by both parties.
27.2. In the event of a breach of this Sublease by either party, the prevailing
party shall be entitled to reasonable attorneys fees and costs.
This Sublease shall be governed by the laws of the State of New Hampshire.
ARTICLE 28. NOTICES
-------------------
28.1. All notices and other communications authorized or required hereunder
shall be in writing and shall be given by mailing the same certified or
registered mail, return receipt requested, postage prepaid, or first class mail,
postage prepaid or by mailing the same by Express Mail or by having the same
delivered by a commercial delivery service to the following address:
If to Sublessor: 000 Xxxxxxxxx Xxxxx, LLC
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
And to: Xxxx X. Xxxx, Esq.
Xxxxxxx and Xxxx
000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
And to Sublessor's Mortgagee at such address as shall be provided to
Sublessee.
If to Sublessee: Aprisma Management Technologies, Inc.
000Xxxxxxxxxx Xxxxx
-00-
Xxxxxx, XX 00000
and after occupancy:
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
ARTICLE 29. DISPUTES AND LITIGATION
-----------------------------------
29.1. Except as provided below: In the event of a dispute between the parties,
it shall be a condition precedent to the initiation of any formal litigation in
a court of competent jurisdiction that the parties shall meet face to face in a
good faith effort to resolve the dispute directly between them. In the event
that they are unsuccessful, each party agrees to submit the dispute to
alternative dispute resolution, initially by mediation, and the parties shall
equally share the expense of such mediation.
In the event that mediation is unsuccessful, the parties shall then submit
the dispute to arbitration (binding if the parties agree) in accordance with the
Rules of the American Arbitration Association. In the event that arbitration
fails, and provided that the parties have participated in the alternative
dispute resolution provisions hereof in good faith, the aggrieved party may then
commence litigation.
29.2. The foregoing alternative dispute resolution provisions shall not apply
in the event that either party reasonably requires immediate ex parte and/or
injunctive relief from a Court of competent jurisdiction.
ARTICLE 30. MISCELLANEOUS
-------------------------
30.1. Any actions or proceedings with respect to any matters arising under or
growing out of this Sublease shall be instituted and prosecuted only in the
courts located in the State of New Hampshire. Nothing contained in this Article
or any other provision of this Sublease shall be deemed to constitute a waiver
of the sovereign immunity of the State of New Hampshire, which immunity is
hereby reserved to PDA and to the State of New Hampshire.
30.2. Sublessee shall faithfully observe and comply with such rules and
regulations as the PDA may adopt for the operation of the Airport and such rules
and regulations as Sublessor may adopt for the operation of the Subleased
Premises, which rules and regulations are reasonable and nondiscriminatory as
well as all modifications thereof and additions thereto. PDA shall not be
responsible to Sublessee for the violation or nonperformance by any other
sublessee of the PDA of such Airport rules and regulations.
30.3. Sublessee agrees to conform to such additional provisions required of
tenants of office buildings at Xxxxx as, from time to time, by the FAA ("FAA
Requirements") or its successor with respect to the operation of the Airport, or
a portion thereof. The current FAA Requirements are attached hereto as
Exhibit 9 and incorporated herein by reference.
---------
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30.4. This Sublease is subject and subordinate to any agreements heretofore or
hereafter made between PDA and the United States or the Air Force, the execution
of which is required to enable or permit transfer of rights or property to PDA
for airport purposes or expenditure of federal grant funds for airport
improvement, maintenance or development, including, without limitation, the
Application and Acceptance, Master Lease and FFA. Sublessee shall abide by
requirements of any agreement between PDA and the United States or the Air Force
applicable to the Subleased Premises or Sublessee's activities at the Airport
and shall consent to amendments and modifications of this Sublease if required
by such agreements or as a condition of Sublessor's entry into such agreements.
This Sublease is further subject and subordinate to the Primary Sublease
between PDA and Sublessor and Sublessee shall be subject to the provisions of
the Primary Sublease applicable to Sublessee's use of the Subleased Premises or
Sublessee's actions at the Airport.
30.5. Sublessee acknowledges that PDA, in its sole discretion, shall determine
and may from time to time change the routes of surface ingress and egress
connecting the Subleased Premises. PDA also reserves the right to further
develop the Airport, or such portion of the Airport as is owned or controlled by
PDA, as it sees fit, regardless of the desires or views of Sublessee and without
interference or hindrance. Sublessor has delivered to Sublessee a copy of the
Primary Sublease, which Sublessor represents to be complete and in effect.
Sublessor agrees that it will not enter into any amendment of the Primary
Sublease which would adversely affect the rights of the Sublessee hereunder nor
shall Sublessor agree to or permit termination of the Primary Sublease.
30.6. The Sublessee herein covenants by and for itself, its heirs, executors,
administrators, and assigns, and all persons claiming under or through it, that
this Sublease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person
or group of persons, on account of race, color, creed, national origin, or
ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the Premises herein leased nor shall the Sublessee, or any person
claiming under or through it, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location,
number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees in the Subleased Premises herein leased.
30.7. All obligations of Sublessee to indemnify, defend and hold harmless
Sublessor, PDA and the Air Force and to make any monetary payment to Sublessor,
PDA and the Air Force shall survive the termination or expiration of this
Sublease.
30.8. Sublessor's Liability. (a) With respect to any services or utilities to
be furnished by Sublessor to Sublessee, Sublessor shall in no event be liable
for failure to furnish the same when prevented from doing so by force, major
strike,
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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
Sublessor's reasonable control, or for any cause due to any act or neglect of
Sublessee or Sublessee's servants, agents, employees, licensees or any person
claiming by, through or under Sublessee; nor shall any such failure give rise to
any claim in Sublessee's favor that Sublessee has been evicted, either
constructively or actually, partially or wholly, provided however, that if the
failure of utilities shall result in the inability of the Sublessee to use the
Premises, the rent shall be abated during such period.
(b) In no event shall either party ever be liable to the other party for
any loss of business or any other indirect or consequential damages suffered by
such party from whatever cause.
(c) With respect to any repairs or restoration which are required or
permitted to be made by Sublessor, the same may be made during normal business
hours and Sublessor shall have no liability for damages to Sublessee for
inconvenience, annoyance or interruption of business arising therefrom.
(d) An "Abatement Event" shall be defined as an event or circumstance
(other than those addressed in Articles 16 and 17 or by reason of some other
event or circumstance beyond the control of the Sublessor, that prevents
Sublessee from using the Premises or any portion thereof, as a result of any
failure to provide services or access to the Premises. Sublessee shall give
Sublessor notice ("Abatement Notice") of any such Abatement Event, and if such
Abatement Event continues beyond the "Eligibility Period" as that term is
defined below), then the Base Rent and Sublessee's other monetary obligations to
Sublessor shall be abated entirely or reduced, as the case may be, after
expiration of the Eligibility Period for such time that Sublessee continues to
be so prevented from using, and does not use, the Premises or a portion thereof,
in the proportion that the rentable area of the portion of the Premises that
Sublessee is prevented from using, and does not use, bears to the total rentable
area of the Premises; provided, however, in the event that Sublessee is
prevented from using, and does not use, a portion of the Premises for a period
of time in excess of the Eligibility Period and the remaining portion of the
Premises is not sufficient to allow Sublessee to effectively conduct its
business therein, and if Sublessee does not conduct its business from such
remaining portion, then for such time after expiration of the Eligibility Period
during which Sublessee is so prevented from effectively conducting its business
therein, Base Rent and Sublessee's other monetary obligations to Sublessor shall
be abated entirely for such time as Sublessee continues to be so prevented from
using, and does not use, the Premises. The term "Eligibility period" shall mean
a period of three (3) consecutive days after Sublessor's receipt of any
Abatement Notice(s). In addition, if an Abatement Event continues for thirty
(30) consecutive days after any Abatement Notice, Sublessee may terminate this
sublease by written notice
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to Sublessor at any time prior to the date such Abatement Event is cured by
Sublessor.
30.9. Additional Charges. If Sublessee shall fail to pay when due any sums
under this Sublease designated or payable as an additional charge, Sublessor
shall have the same rights and remedies as Sublessor has hereunder for failure
to pay Base Rent.
30.10. Brokerage. The parties agree that the Xxxx Company has acted as sole
broker in this lease transaction. The Sublessor shall be responsible for all
brokerage fees to The Xxxx Company.
30.11. Management. The Sublessor shall charge commercially reasonable
management fees which shall be no more than $.40 per square foot per annum for
the first year of the Lease and which shall be included in Operating Expenses.
Thereafter, such management fees shall be charged at commercially reasonable
rates comparable to other similar single tenant buildings in the Greater
Portsmouth, New Hampshire area..
30.12. Primary Sublease, Master Lease, Application, Acceptance and FFA.
Sublessor shall perform the Base Building Work in accordance with all provisions
of the Primary Sublease, Master Lease, Application, Acceptance and FFA
(collectively, the "Documents") and all other applicable laws, and requirements,
and shall during the term operate the premises leased under the Primary Sublease
in accordance with the Documents and all other applicable laws, codes and
requirements. Sublessor shall deliver to Sublessee copies of all correspondence
sent or received by Sublessor to or from any party to any of the Documents
alleging a default by any party thereto or otherwise setting forth matters which
might reasonably be expected to have an adverse impact on the leasehold interest
created by this Sublease or on Sublessee's use and enjoyment of the Subleased
Premises.
30.13. Notice of Lease. The parties shall execute and record a Notice of Lease
in the form required under New Hampshire law.
30.14. Guarantee. Sublessee shall provide to Sublessor a Guaranty from
Cabletron Systems, Inc. in the form attached hereto as Exhibit 13. EXECUTION
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IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease
effective as of the 4th day of December , 2000.
000 XXXXXXXXX XXXXX, LLC
By: /s/ Illegible
----------------------------------
Its: Manager
----------------------------------
"Sublessor"
APRISMA MANAGEMENT TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Its: President
----------------------------------
"Sublessee"
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXX
Xx this 4th day of December , 2000, personally appeared Xxxxxx X. Xxxx
known to me on the basis of satisfactory evidence) to be the _________________
of 273 CORPORATE DRIVE, LLC, and on oath stated that he was authorized to
execute this instrument and acknowledged it to be his free and voluntary act for
the uses and purposes set forth herein. Before me,
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Notary Public/Justice of the Peace
Name: Xxxxxxx X. Xxxxx
----------------
My Commission Expires: July 4, 0000
-00-
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXX
Xx this 1st day of December , 2000, personally appeared Xxxxxxx
Skubisz_____________, known to me (or proved to me on the basis of satisfactory
evidence) to be the__President_______ of APRISMA MANAGEMENT TECHNOLOGIES, INC.
and on oath stated that he was authorized to execute this instrument and
acknowledged it to be his free and voluntary act for the uses and purposes set
forth herein. Before me,
/s/ Xxxxxx Xxxxxxx
------------------------------------
Notary Public/Justice of the Peace
Name:
My Commission Expires:
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EXHIBIT 1
---------
PRIMARY SUBLEASE
-47-
EXHIBIT 2
---------
PLANS DESIGNATING THE SUBLEASED PREMISES
-48-
EXHIBIT 3
---------
BASE BUILDING SPECIFICATIONS AND PLANS
-49-
EXHIBIT 4
---------
SUBLESSEE TENANT FIT UP PLANS AND SPECIFICATIONS
-50-
EXHIBIT 5
---------
LIST AND DESCRIPTION OF AMENITIES
-51-
EXHIBIT 6
---------
OPERATING EXPENSES
A. All salaries, wages, fringe benefits, payroll taxes and
withholding, and workmen's compensation insurance premiums related thereto and
withholding of and for Sublessor's employees and agents to the extent engaged in
the operation, maintenance or repair of the Sublease Premises. To the extent
that Sublessor's employees provide services to the subleased Premises on less
than a full-time basis, such amounts shall be appropriately pro-rated. No
amounts shall be payable on account of Sublessor's management or administrative
personnel under this Section A.;
B. All costs, including monies paid to utility companies, the city of
Portsmouth, the Xxxxx Development Authority and any other entities, of
furnishing electricity, heat, air-conditioning, steam, water, sewer, gas
services and facilities, and any other utilities and utility facilities to all
areas of the Subleased Premises.
C. All costs of any liability or casualty insurance carried from time
to time by Sublessor related to the Subleased Premises which is required to be
carried by the Sublessor pursuant to the Primary Sublease or by Sublessor's
mortgagee.
D. All costs, including material and equipment costs, for common area
cleaning and janitorial services, window cleaning and rubbish removal.
E. All costs of maintaining and repairing the Subleased Premises,
including the operation, maintenance and repair of heating and air-conditioning
equipment, electric, water, sewer, gas and other utility facilities and
equipment, elevators, and any other equipment and all other repairs and
replacements necessary to keep the Subleased Premises in a first-class
condition;
F. All costs associated with grounds maintenance and repair to
include landscaping and snow and ice removal;
G. Reasonable depreciation of machinery and equipment used in the
maintenance and repair of the Subleased Premises appropriately allocated if used
at premises other than the Subleased Premises ;
H. The cost of providing security and/or any public or private
policing for the Subleased Premises requested by the Sublessee.
I. All costs of all service and supplies contracts relating to
services and supplied referred to in subparagraphs (A) through (H) hereinabove
and relating in any way to the operation, maintenance and management of the
Subleased Premises.
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J. The cost of Sublessor services listed Under Exhibit #11, and any
other costs or expenses incurred by the Sublessor as part of any service or
facility requested by the Sublessee or any maintenance or normal repair of the
Subleased Premises performed by the Sublessor.
Operating Expenses shall not include:
Costs incurred in connection with the replacement or repairs which are
capitalized to the roof or structural portions of the Building; and
Costs incurred in connection with the replacement of Building systems or
other capital improvements except insofar as such costs are properly amortized
in the applicable Operating Year in accordance with generally accepted
accounting principles consistently applied; and
Costs incurred in connection with any new capital improvements (to the
extent not required by Sublessee).
Sublessor shall not purchase or lease equipment or services from
parties related to Sublessor at charges in excess of charges reasonably
available in arms length transactions. Sublessor shall, in connection with the
provision of accounting of Additional Rent charges at the end of each Operating
Year, provide Sublessee with a breakdown of allocations and amortization
schedules applicable to Operating Expenses.
-53-
EXHIBIT 7
---------
LIST OF SUBLESSEE REMOVAL ITEMS
Generator, transfer switch, uninterruptable power supply equipment, step
down transformers exclusively associated with lab use
Cable trays and wire trays in the labs
All kitchen equipment except that which would damage the building
specifically the hood and any sinks
Telephone equipment
Network equipment and racks
All furniture and decorations which are not attached in a permanent fashion
-54-
EXHIBIT 8
---------
LIST OF ENVIRONMENTAL LAWS AND REGULATIONS
Air Quality: (a) Clean Air Act & Amendments, 42 U.S.C.
7401-7642
(b) 40 XXX Xxxxx 00-00, 00, 00, 00-00, 00
(x) XXX ch. 125-C, Air Pollution Control, and
rules adopted thereunder
(d) RSA ch. 125-H, Air Toxic Control Act, and
rules adopted thereunder
Hazardous Materials: (a) Hazardous Materials Transportation Act',
49 U.S.C. 1801-1813, and Department of
Transportation Regulations thereunder
(b) Emergency Planning and Community Right-
Xx-Xxxx Xxx, 00 X.X.X. 00000-00000
(x) 00 XXX Parts 100-179
(d) 40 CFR Part 302
(e) RSA ch. 277-A, Toxic Substances in the
Workplace, and rules adopted thereunder
Hazardous Waste: (a) Resource Conservation and Recovery Act
(RCRA) of 1976 and RCRA Amendments of
1984, 42 U.S.C. 6901-6991i
(b) Comprehensive Environmental Response,,
Compensation, and Liability Act
(CERCLA) of 1980, as amended, 42 U.S.C.
9601-9675
-55-
(c) 40 XXX Xxxxx 000-000, 000, 000
(x) XXX ch. 147-A, Hazardous Waste
Management and rules adopted thereunder
Water Quality: (a) Federal Water Pollution Control Act
(Clean Water Act) and Amendments, 33
U.S.C. 1251-1387
(b) Safe Drinking Water Act, as amended, 42
U.S.C. 300f-300j-26
40 CFR Title 100-143, 401 and 403
(c) RSA ch. 146-A, Oil Spillage in Public
Waters, and rules adopted thereunder
(d) RSA ch. 485, New Hampshire Safe
Drinking Water Act, and rules adopted
thereunder
(e) RSA ch. 485-A, Pollution and Waste
Disposal, and rules adopted thereunder
-56-
EXHIBIT 9
---------
SUBLEASE PROVISIONS REQUIRED BY
THE FEDERAL AVIATION ADMINISTRATION
1. Sublessee, for himself, his heirs, personal representatives, successors
in interest, and assigns, as a part of the consideration hereof, does hereby
agree that in the event facilities are constructed, maintained, or otherwise
operated on the Subleased Premises, for a purpose for which a United States
Department of Transportation ("DOT") program or activity is extended or for
another purpose involving the provision of similar services or benefits,
Sublessee shall maintain and operate such facilities and services in compliance
with all other requirements imposed pursuant to Title 49, Code of Federal
Regulations, DOT, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally Assisted Programs of the Department of
Transportation Effectuation of Title VI of the Civil Rights Act of 1964, and as
said Regulations may be amended.
2. Sublessee, for himself, his personal representative, successors in
interest, and assigns, as a part of the consideration hereof, does hereby agree
that: (I) no person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination in the use of said facilities; (ii) that in the
construction of any improvements on, over, or under such land and the furnishing
of services thereon, no person on the grounds of race, color, or national origin
shall be excluded from participation in, denied the benefits of, or otherwise be
excluded from participation in, denied the benefits of, or otherwise be subject
to discrimination; and (iii) that the Sublessee shall use the premises in
compliance with all other requirements imposed by or pursuant to Title 49, Code
of Federal Regulations, Department of Transportation, Subtitle A, Office of the
Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the
Department of Transportation Effectuation of Title VI of the Civil Rights Act of
1964, and as said Regulation may be amended.
3. That in the event of breach of any of the above nondiscrimination
covenants, Sublessor shall have the right to terminate the Sublease, and to
reenter and repossess said land and the facilities thereon, and hold the same as
if said lease, had never been made or issued. This provision does not become
effective until the procedures of 49 CFR Part 21 are allowed and completed
including expiration of appeal rights.
4. Sublessee shall furnish its accommodations and/or services on a fair,
equal and not unjustly discriminatory basis to all users thereof and it shall
charge fair, reasonable and not unjustly discriminatory prices for each unit or
service; PROVIDED THAT the Sublessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates or other similar type of price reductions
to volume purchasers.
5. Non-compliance with Provision 4 above shall constitute a material
breach thereof and in the event of such noncompliance Sublessor shall have the
-57-
right to terminate this Sublease, and the estate hereby created without
liability therefore or at the election of the Sublessor or the United States
either or both of Sublessor or the United States shall have the right to
judicially enforce provisions.
6. Sublessee agrees that it shall insert the above five provisions in any
lease agreement, by which said Sublessee grants a right or privilege to any
person, firm or corporation to render accommodations and/or services to the
public on the Subleased Premises.
-58-
EXHIBIT 10
----------
RULES AND REGULATIONS
1. All cleaning and janitorial services for the Premises shall be provided
exclusively through Sublessor.
2. Sublessee shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation of its business. Sublessee shall not
use or permit to be used in the Premises any foul or noxious gas or
substance. nor shall Sublessee bring into or keep in or about the Premises
any birds or animals.
3. Sublessor reserves the right, exercisable without notice and without
liability to Sublessee, to change the name and street address of the
Building.
4. Sublessee shall close and lock the doors of its Premises and entirely shut
off all water faucets or other apparatus, and electricity, gas or air
outlets before Sublessee and its employees leave the Premises. Sublessee
shall be responsible for any damage or injuries sustained by other
sublessees or occupants of the Building or by Sublessor for noncompliance
with this rule.
5. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Sublessee who, or whose
employees or invitees shall have caused it. 6. Canvassing, soliciting and
distribution of handbills or any other written material and peddling in the
Airport are prohibited, and Sublessee shall cooperate to prevent such
activities.
1. Sublessor reserves the right to exclude or expel from the Airport any
person whom, in Sublessor's judgement, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
2. Sublessee shall store all its trash and garbage within its Premises or in
other facilities provided by Sublessor. Sublessee shall not place in any
trash box or receptacle any material which cannot be disposed of in the
ordinary and customary manner of trash and garbage disposal. All garbage
and refuse disposal shall be made in accordance with directions issued from
time to time by Sublessor.
-59-
9. Sublessee shall comply with all safety, fire protection and evacuation
procedures and regulations established by Sublessor or any governmental
agency.
10. Sublessee assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.
12. Sublessee's requirements will be attended to only upon appropriate
application to the Project management office by an authorized individual.
Employees of Sublessor shall not perform any work or do anything outside of
their regular duties unless under special instructions from Sublessor, and
no employee of Sublessor will admit any person (Sublessee or otherwise) to
any office without specific instructions from Sublessor.
12. Sublessor may waive any one or more of these Rules and Regulations for the
benefit of Sublessee or any other sublessee, but no such waiver by
Sublessor shall be construed as a waiver of such Rules and Regulations in
favor of Sublessee or any other sublessee, nor prevent Sublessor from
thereafter enforcing any such Rules and Regulations against any or all of
the sublessees of the Project.
13. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend in whole or in part, the terms, covenants,
agreements and conditions of the Sublease.
14. Sublessor reserves the right to make such other and reasonable Rules and
Regulations as, in its reasonable judgment, may from time to time be needed
for safety and security, for care and cleanliness of the Building and for
the preservation of good order therein. Sublessee agrees to abide by all
such Rules and Regulations herein above stated and any additional rules and
regulations which are adopted.
15. Sublessee shall be responsible for the observance of all the foregoing
rules by Sublessee's employees, agents, clients, customers, invitees and
guests.
-60-
EXHIBIT 11
----------
SERVICES TO BE PROVIDED BY SUBLESSOR
-61-
EXHIBIT 12
----------
APPROVED SIGNS
-62-
EXHIBIT 13
----------
CABLETRON GUARANTY
This guaranty, made as of the ____ day of ____________, 2000 by Cabletron
Systems, Inc., of 00 Xxxxxxxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxxxxx to 000 Xxxxxxxxx
Xxxxx, LLC of 000 Xxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxxxxx.
RECITALS
--------
1. 000 Xxxxxxxxx Xxxxx, LLC is the Sublessor with Aprisma Management
Technologies, Inc., as Sublessee, under a Sublease dated as of ___________,2000.
2. As an inducement to the Sublessor entering into the Sublease with the
Sublessee, Cabletron Systems, Inc. has agreed to enter into this Guaranty.
NOW THEREFORE, in consideration of the Sublessor entering into the Sublease
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guarantor agrees as follows:
A. Guaranty. The Guarantor hereby guarantees:
--------
(a) The prompt payment when due of all payments of rent, additional rent,
and all other charges, expenses, impositions, fines, penalties, fees and costs
of ever kind and nature, which are now, or may in the future be, due from
Sublessee under the terms of the Sublease;
(b) The complete and timely performance, satisfaction and observation of
the terms and conditions of the Sublease required to be performed, satisfied or
observed by the Sublessee.
B. Release Conditions.
------------------
This Guaranty shall be released if the Sublessee shall complete an initial
public offering of its stock and Sublessee shall provide a security deposit in
the form of a letter of credit in such amount as may reasonably be required by
Sublessor's mortgagee in light of Sublessee's market capitalization and net
worth and in light of the amount expended by Sublessee on Tenant Work and other
leasehold improvements, provided, however, that in no event shall the amount of
such letter of credit at any time be required to exceed the lesser of (i) two
(2) years Base Rent, Additional Rent and Taxes, or the amount of remaining Base
Rent, Additional Rent and Taxes over the last 23 months or less of the Sublease
term, with adjustments in the amount of the letter of credit to be made
quarterly.
-63-
IN WITNESS WHEREOF, the Guarantor has executed the within on the date and year
first above written.
CABLETRON SYSTEMS, INC.
/s/ Illegible By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------- -------------------------------
Witness Duly Authorized:
-64-
000 XXXXXXXXX XXXXX, LLC.
000 XXXXXXXX XXX
XXXXXXXXXX, XX 00000
March 19, 2001
Xx. Xxxxxxx Xxxxxxx, President
Aprisma Management Technologies, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Re: 000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx
----------------------------------------------
Dear Xx. Xxxxxxx:
Bank of New Hampshire N.A. ("Lender") is making a loan to 000 Xxxxxxxxx
Xxxxx LLC (the "Company") in the original principal amount of Six Million
Dollars ($6,000,000.00) (the "Loan"), the proceeds of which will be used for the
construction of a building on the property located at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx (the "Property"). The Property is subject to a
certain Sublease by and between the Company and Aprisma Management Technologies,
Inc. ("Sublessee") dated December 4, 2000 ("Sublease"), which Sublease is
guaranteed by Cabletron Systems, Inc. ("Cabletron"). Sublessee is a wholly
owned subsidiary of Cabletron.
The Loan is to be evidenced by a certain Note made by the Company in favor
of Lender (the "Note") and will be secured by, among other things, a certain
Leasehold Mortgage and Security Agreement ("Mortgage") from the Company to
Lender dated as of the date of the Loan.
As a condition to the Loan, Lender requires that Sublessee deposit with
Lender the sum of Two Million Dollars ($2,000,000.00) (the "Deposit") to be held
in an interest-bearing reserve to be established by Lender (the "Tenant
Improvement Reserve"). This agreement is an inducement for the Company to
obtain the Loan for the construction of the building on the Property to be
occupied by Sublessee, and the Company is relying upon this agreement in
connection with the Loan.
This letter will confirm our understanding and agreement that, in
connection with the Property, Sublessee has agreed with the Company as follows:
1. To secure Sublessee's obligation to complete certain tenant improvements
as required in the Sublease ("Tenant Improvements"), and to establish and
maintain a fund for reimbursement to Lender for amounts expended in completing
the Tenant Improvements in the event the Tenant Improvements are not completed
by Sublessee in accordance with the Sublease, as required under the Sublease,
Sublessee agrees to deposit with Lender, the Deposit, to be held in the Tenant
Improvement Reserve and disbursed in accordance with a pledge agreement to be
executed by and between Lender and Sublessee. Sublessee's obligation to
establish and maintain such Deposit shall be subject to Sublessee's and Lender's
negotiation and execution of a mutually acceptable pledge agreement.
2. The Deposit shall be held in an interest bearing restricted reserve
account with Lender, or other account acceptable to Sublessee and Lender.
Earnings or interest on the Tenant improvement Reserve shall not become part of
such Tenant Improvement Reserve and shall not be disbursed to Lender. Such
interest or earnings shall accrue to the benefit of Sublessee and shall be paid
to Sublessee as agreed to be Lender in the pledge agreement. While the Deposit
(less any amounts as may be disbursed or other paid out pursuant to the pledge
agreement) is being held by the Lender, in the event the earnings and/or
interest paid by Lender on the Tenant Improvement Reserve are less than the
equivalent of six and one-half percent (6.5%) per annum on a simple interest
basis and based on a 365 day year, the Company agrees to pay Sublessee the
difference between the actual amount of earnings and interest paid by Lender on
the Deposit and the equivalent interest or earnings that the Deposit (less any
amounts as may be disbursed or other paid out pursuant to the pledge agreement)
would have received at an effective interest rate of six and one-half percent
(6.5%) per annum on a simple interest basis and paid on a 365 day year. Such
amounts, if any, shall be paid by the company to Sublessee on a monthly basis.
3. In the event of a default by the Company under the Loan which results in
a foreclosure of the Property by the Lender, the provided that; (i) such default
by the company was not materially and substantially caused by a default of
Sublessee under the Sublease or any other document executed by Sublessee or
Cabletron Systems, Inc. in connection with the Property, or (ii) the Sublessee
(or its successor and assign) has never occupied the building on the Property
pursuant to the Sublease, the Company agrees to pay Sublessee the foreclosure
proceeds actually paid by Lender to the Company, if any, up to a maximum amount
equal to the amount in which the Deposit was used to make improvements to the
Property.
4. This Agreement shall be governed and constructed under the laws of the
State of New Hampshire and shall be binding on and shall inure to the benefit of
the parties, their respective successors and assigns.
Please sign below to indicate Sublessee's acceptable to the terms of this
agreement and its intention to be bound hereby.
000 Xxxxxxxxx Xxxxx, LLC
By: /s/ Illegible
----------------------------
Manager
Agreed to and Accepted by
Aprisma Management Technologies, Inc.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Its: President
PLEDGE OF TENANT IMPROVEMENT RESERVE ACCOUNT
--------------------------------------------
This Pledge Agreement is made by Aprisma Management Technologies, Inc.,
with an address at 000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 ("Pledgor") to Bank
of New Hampshire, N.A. a national banking association with an address at 0
Xxxxxxxx Xxxx Xxxxx Xxxxxxx, XX ("Bank").
Whereas 000 Xxxxxxxxx Xxxxx, LLC ("Borrower") is entering into an agreement
with Bank to borrow up to Six Million Dollars ($6,000,000) under the terms of a
certain Construction Loan Agreement (the "Loan") for the construction of an
approximately 100,000 square foot building at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
XX (the "Project"); and
Whereas Pledgor has entered into a Sublease with Borrower dated December 4,
2000 ("Lease") for the lease of the Project with Lease requires Pledgor to
construct certain tenant improvements in accordance with the terms of Article 2
and Exhibit 4 of the Lease ("Tenant Improvements"), (Pledgors obligation for
construction of the Tenant Improvements hereinafter referred to as the
"Liabilities"); and
Whereas a condition of the Loan to Borrower, Bank is requiring that Pledgor
establish an account, to be pledged herein to Bank, to guarantee the
Liabilities.
NOW, THEREFORE, Bank and Pledgor, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, hereby agree as
follows:
1. Assignment. Pledgor hereby, in order to partially secure the performance
of the Liabilities, grants a security interest in all of Pledgor's right, title
and interest to the Tenant Improvement Reserve Account (exclusive of interest
earned thereon) as established by Pledgor with Bank and being Account
#9720170763 to be funded by Pledgor in the sum of Two Million Dollars
($2,000,000), (the "Collateral"), established with Bank as the sole signatory of
the account.
2. Proceeds of the Collateral. The account shall be an interest bearing
account, at the rate of interest customarily paid to depositors on like
accounts. The interest shall accrue to the benefit of the Pledgor, and shall be
disbursed to Pledgor as provided herein.
3. Disbursements to Pledgor. On request by Pledgor, but no more frequently
than once a month, within five days of receipt by Lender of a certificate from
Pledgor's construction inspector or engineer certifying to Bank that the
requested amount has been paid by Pledgor or is to be used by Pledgor for
payment for work completed on, or materials incorporated into, the Tenant
Improvements, and upon reasonable confirmation by Bank of same, the Bank shall
disburse such requested amount (the "Disbursement") plus all interest accrued on
the account and remaining in the account to the date of the Disbursement to
Pledgor. Notwithstanding anything herein contained to the contrary, interest
accruing in the account shall be paid to Pledgor at the request of Pledgor made
no more frequently than once per month.
4. Final Disbursement. It is the intent of the parties hereto, that a
minimum of Two Million Dollars ($2,000,000) be spent toward the Tenant
Improvements, but there is no requirement that the Tenant Improvements be
complete prior to final disbursement of the funds
and closing of the account, provided all of such funds have been paid toward the
Tenant Improvements.
5. Failure to Build. The Collateral shall be held by Bank and disbursed as
provided hereunder until such time as Two Million Dollars ($2,000,000) has been
paid by Pledgor toward the Tenant Improvements, provided, however, that in the
event that the Pledgor terminates the Lease pursuant to Section 2.3 thereof by
reason of the Borrower's failure to complete the "Base Building Work" as defined
in the Lease within the timeframe set forth therein, then, upon written notice
from Pledgor, the full amount of the Tenant Improvement Reserve, plus interest
accrued thereon, shall be delivered to Pledgor and this Pledge Agreement shall
terminate and be of no further force or effect.
6. Default. In the event the Tenant Improvements have not been constructed
by Pledgor as required pursuant to Article 2 and Exhibit 4 of the Lease, and
Pledgor is in default of the payment of rent under the Lease, Bank may take
possession of the Collateral or any part thereof and use such Collateral for
construction of Tenant fit-up of the Premises, provided, however, that
notwithstanding anything herein contained to the contrary, in the event that the
rental obligations owed by Pledgor under the Lease are paid directly to Bank
without set-off or counterclaim against Borrower, then in that case so long as
such rent is being paid, Bank shall not be entitled to possession of the
Collateral and use of the funds in the pledged account. In the event of the use
of the Collateral by the Bank for Tenant fit-up of the Premises, nothing herein
shall require Bank to do specific Tenant Improvements as per the terms of the
Lease, so long as Bank uses the Collateral in its reasonable discretion for fit-
up of the Project after completion of Basic Building Work (as defined in the
Lease) and for no other purpose.
7. Miscellaneous
7.1 This Pledge may only be modified, in whole or in part, by consent
of all parties in a written instrument executed with all of the formalities
hereof.
7.2 The rights and benefits of Bank and Pledgor hereunder shall insure
to the benefit of their successors and assigns including, without
limitation, any party to which Bank grants a participation interest herein,
and shall be binding upon the heirs, successors and assigns of Pledgor and
Bank.
7.3 This Agreement is being delivered to and accepted by Bank in the
State of New Hampshire and the provisions of this Agreement shall be
construed, administered and enforced according to the internal laws of the
State of New Hampshire. Pledgor agrees that any action hereunder or related
hereto may be maintained in a court of competent jurisdiction located
within the State, and consents to the jurisdiction of any such court for
all purposes connected herewith.
7.4 Except as provided in paragraph 5 above, the rights of the Bank
hereunder shall be irrevocable until construction of the Tenant
Improvements by Pledgor or possession of the Collateral by Bank. Upon
request, Pledgor agrees to execute and record financing statements
evidencing this pledge.
IN WITNESS WHEREOF, the parties have caused this document to be executed
and delivered as of the day and year first above-written.
Pledgor:
Aprisma Management Technologies, Inc.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Its: President
BANK OF NEW HAMPSHIRE, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXX
Xx this the 3rd day of April 2001, before me, the undersigned officer,
personally appeared Xxxxxxx Skubicz, President of Aprisma Management
Technologies, Inc. and as such ____________________, being duly authorized to do
so executed the foregoing instrument for the purposes therein contained on
behalf of the corporation.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxxxx Xxxxxxx
----------------------
Notary Public
Print Name: /s/ Xxxxxx Xxxxxxx
-----------------------
My commission expires: April 10, 2001
----------------
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXX
Xx this the 3rd day of April, 2001, before me, the undersigned officer,
personally appeared Xxxxxxx X. Xxxxxxxx, who acknowledged himself to be the Vice
President of Bank of New Hampshire, N.A., and that he has such Vice President,
being authorized so to do, executed the foregoing instrument for the purposes
therein contained on behalf of the bank.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxxxxx Xxxx Xxxxx
--------------------------
Notary Public
Print Name: Xxxxxxx Xxxx Xxxxx
-----------------------
My commission expires: December 5, 2005
------------------
SUBORDINATION, NON-DISTURBANCE
------------------------------
AND ATTORNMENT AGREEMENT
------------------------
THIS AGREEMENT made as of the 3rd day of April, 2001 between Bank of New
Hampshire, N.A., a national bank chartered under the laws of the United States
of America, with a place of business at 0 Xxxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxx
Xxxxxxxxx 00000 ("Lender"), Aprisma Management Technologies, Inc., a Delaware
corporation with an address of 000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000
("Tenant"), and 000 Xxxxxxxxx Xxxxx XXX, x Xxx Xxxxxxxxx limited liability
company ("Landlord").
WITNESSETH:
-----------
WHEREAS, Tenant has entered into a Sublease dated December 4, 2000, notice
of which is recorded at Book 3532 Page 918 of the Rockingham County Registry of
Deeds (said lease, as heretofore or hereafter amended, modified or supplemented,
is hereinafter called the "Lease"), between Landlord, as landlord, and Tenant,
as tenant, with respect to certain space (the "Demised Premises") in the City of
Portsmouth, State of New Hampshire located on certain land more particularly
described on Exhibit A attached hereto (said land and improvements, the
"Premises"); and,
WHEREAS, Lender is the holder of a certain Note, dated March 19, 2001, from
Landlord in the original principal amount of Six Million Dollars ($6,000,000.00)
(the "Note"), which Note is secured by: (i) a certain Leasehold Mortgage and
Security Agreement dated of even date therewith, from Landlord to Lender, which
encumbers the Premises, and (ii) an Assignment of Leases and Rents dated of even
date therewith, which encumbers Landlord's interest in the Lease. (Such
Leasehold Mortgage and Security Agreement and Assignment of Leases and Rents are
collectively referred to hereinafter as the "Mortgage"); and,
WHEREAS, Lender and Tenant desire to enter into this Agreement upon the
terms, covenants and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the agreements of the
parties contained herein, the parties agree as follows:
1. The Lease is and shall be at all times and in all respects subordinate
and junior to the lien of the Mortgage, and to all advances made and/or
hereafter to be secured by the Mortgage and to all renewals, modifications,
consolidations, substitutions, additions and extensions of the Mortgage, as
fully and with the same effect as if the Mortgage had been duly executed,
acknowledged and recorded, and the indebtedness secured thereby had been duly
disbursed prior to the execution of the Lease or possession of the Premises by
Tenant, or its predecessors in interest.
2. As of the date Lender mails a notice of foreclosure, or otherwise
commences a foreclosure action, or at any time thereafter, or exercises any
other right of Lender under the Mortgage, (a) Tenant shall not be named as a
party defendant in any action or proceeding to enforce the Mortgage, unless such
joinder shall be required under applicable law, nor shall the
Lease be terminated nor Tenant's possession, or any other rights of Tenant
thereunder be disturbed in any such action or proceeding, except in accordance
with the terms of the Lease, and (b) subject to the provisions of Section 4 of
this Agreement, Lender will recognize the Lease and Tenant's rights thereunder.
3. Upon any foreclosure of the Mortgage or other acquisition of the
Premises, Tenant shall attorn to Lender or any other party acquiring the
Premises or so succeeding to Landlord's rights (collectively, the "Successor
Landlord") and shall recognize the Successor Landlord as its landlord under the
Lease. Said attornment shall be effective and self-operative without the
execution on the part of any party of any further instrument. Without limiting
the foregoing, Tenant waives the provisions of, and any rights under, any
statute or rule of law, nor or hereafter in effect, which might otherwise give,
or purport to give, any right or election to terminate or otherwise adversely
affect the Lease and the obligations of Tenant thereunder in the event of said
foreclosure or other acquisition.
4. Upon said attornment, the Lease shall continue as a direct lease between
the Successor Landlord and Tenant upon all terms, covenants and conditions
thereof as are then applicable except that the Successor Landlord shall not be
(a) liable for any damages then accrued as the result of any previous act or
omission of Landlord or any prior landlord under the Lease, (b) subject to any
offsets or defenses that Tenant then has against Landlord or any prior landlord,
(c) bound by any amendment or modification of the Lease hereafter executed, or
the obligations of the parties thereto, unless said amendment or modification
shall have been consented to by the successor Landlord or Lender, or (d) bound
by any prepayment of more than one (1) month's rent or other charges under the
Lease, unless such payment shall have been made in accordance with the terms of
the Lease or shall have been expressly approved in writing by Lender, provided,
however, that nothing herein contained shall relieve the Successor Landlord from
any default under the Lease which continues after Successor Landlord succeeds to
Landlord's right.
5. Tenant, from and after the date hereof, shall sent to Lender a copy of
any notice of default sent under the Lease to Landlord at the same time such
notice is sent to Landlord under the Lease. Such notices shall be delivered to
Lender at the following address:
Bank of New Hampshire
0 Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Vice President
6. Tenant acknowledges notices that Landlord's interest under the Lease and
the rent and all other sums due thereunder have been assigned to Lender as part
of the security for repayment of the Note secured by the Mortgage. In the event
that Lender notifies Tenant of a default under the Mortgage and demands that
Tenant pay its rent and all other sums due under the Lease to Lender, Tenant
agrees that it shall pay its rent and all other sums due under the Lease to
Lender. Landlord joins in the execution hereof for the purpose of consenting to
the provisions of this Section.
7. This Agreement may not be amended, modified, supplemented or terminated
unless in writing and duly executed by the party against whom the same is sought
to be asserted and constitutes the entire agreement between the parties with
respect to the subject matter hereof.
8. This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above-written.
LANDLORD:
000 Xxxxxxxxx Xxxxx LLC
/s/ Illegible By: /s/ Illegible
--------------------------- -----------------------
Witness Its:
TENANT:
Aprisma Management Technologies, Inc.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
--------------------------- -----------------------
Witness Its: President
LENDER:
Bank of New Hampshire, N.A.
By:/s/ Illegible
Its: Vice President
XXXXX XX XX
XXXXXX XX XXXXXXXXXXXX
Xx this the 3rd day of April, 2001, personally appeared Xxxxxxx X.
Xxxxxxxx, the Vice President of Bank of New Hampshire, N.A. and that he
acknowledged the foregoing instrument on behalf of said Bank.
Before me,
/s/ Xxxxxxx Xxxx Xxxxx
----------------------------
Notary Public
My Commission expires:
Name: Xxxxxxx Xxxx Xxxxx
----------------------
STATE OF NH
COUNTY OF STRAFFORD
The foregoing instrument was acknowledged before me this 3rd day of April,
2001 by Xxxxxxx Xxxxxxx of Aprisma Management Technologies, Inc. on behalf of
said corporation.
Before me,
/s/ Xxxxxx Xxxxxxx
------------------------------
Notary Public
My Commission expires:
Name: Xxxxxx Xxxxxxx
------------------------
XXXXX XX XX
XXXXXX XX XXXXXXXXXX
Xx this the 3rd day of April, 2001, personally appeared Xxxxxxx Xxxx who
acknowledged himself to be the Manager of 000 Xxxxxxxxx Xxxxx LLC and that he
executed the foregoing instrument on behalf of said liability company.
Before me,
/s/ Xxxx X. Xxxx
-------------------------
Notary Public
My Commission expires:
Name: /s/ Xxxx X. Xxxx
--------------------
EXHIBIT A
---------
DESCRIPTION OF PROPERTY
CONFIRMATION OF TIMELINE UNDER ATTACHMENT TO EXHIBIT 3 FOR BASE BUILDING WORK
UNDER SECTION 2.5 OF SUBLEASE BETWEEN
273 CORPORATE DRIVE, LLC
AS "SUBLESSOR"
AND
APRISMA MANAGEMENT TECHNOLOGIES, INC.
as "sublessee"
This CONFIRMATION OF TIMELINE UNDER ATTACHMENT TO EXHIBIT 3 FOR BASE BUILDING
WORK UNDER SECTION 2.5 OF SUBLEASE is made by and between 000 XXXXXXXXX XXXXX,
XXX, ("Xxxxxxxxx") and APRISMAS MANAGEMENT TECHNOLOGIES, INC. ("Sublessee"), the
Parties to a certain Sublease dated December 4, 2000, as may be amended
(collectively referred to herein as the "Sublease"). All capitalized terms
contained in this Confirmation shall have the meanings given to them in the
Sublease.
WHEREAS: The Sublease provides for general timelines for certain tasks for the
Base Building Work to be constructed by Sublessor pursuant to Section 2.5 of the
Sublease, and
WHEREAS: The Parties desire to confirm their agreement and identify with
specificity the milestone dates for such tasks.
NOW THEREFORE, the parties confirm and agree as follows:
1. A list of the applicable milestone dates for the certain task to be
performed by Sublessor with respect to the Base Building Work is attached hereto
as Exhibit A, which list is hereby agreed to by the parties, replaces the list
and dates set forth in the Attachment to Exhibit 3 of the Sublease, and is
incorporated into Exhibit 3 to the Sublease by reference.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Confirmation
effect as of the 3rd day of April 2001.
000 XXXXXXXXX XXXXX, LLC
By: /s/ Illegible
------------------------------
Its: Manager
-----------------------------
APRISMA MANAGEMENT TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Its: President
-----------------------------
EXHIBIT A
LIST OF MILESTONE DATES FOR BASE BUILDING WORK
Task Target Date Fall Back Date
--------------------------------------------------------------------------------
Structural Steel Delivery June 4, 2001 July 3, 2001
--------------------------------------------------------------------------------
Erection Completion July 16, 2001 August 16, 2001
--------------------------------------------------------------------------------
Building Envelope October 12, 2001 November 15, 2001
--------------------------------------------------------------------------------
Shell Complete November 1, 2001 December 1, 2001
--------------------------------------------------------------------------------
ESTOPPEL CERTIFICATE
--------------------
Reference is made to a certain Sublease (the "Sublease") dated December 4,
2001, by and between 000 Xxxxxxxxx Xxxxx, XXX, as Sublessor (the "Assignor") and
APRISMA MANAGEMENT TECHNOLOGIES, INC. as Sublessee (the "Tenant"). The premises
covered by the Sublease are located at 000 Xxxxxxxxx Xxxxx, Xxxxx International
Tradeport, Portsmouth, New Hampshire (the "Premises"). The undersigned is the
Tenant, and, understanding that BANK OF NEW HAMPSHIRE N.A. (the "Bank") with an
office in Bedford, New Hampshire, will rely on the information and undertakings
below in connection with a contemplated Loan to Assignor assignment with the
Bank as lender, in which Assignor, as Landlord has assigned its interest in the
Sublease to Bank, hereby warrant to the Bank as follows regarding the Sublease:
(1) The Tenant hereby acknowledges notice of and consents to the mortgaging
and assignment of the Assignor's interest under the Sublease.
(2) That as of the date hereof: (i) Tenant is current on all of its
obligations under the Subleases; (ii) Tenant has not paid rent or any other sums
due under the Sublease more than 30 days in advance of the due date under the
Sublease; and (iii) the Sublease is unmodified and is in full force and effect
in accordance with its terms:
(3) That Tenant, to its current knowledge has no defenses, offsets or
counterclaims against its obligation to pay the fixed rent and additional rent
and to perform its other covenants under the Sublease;
(4) That, to Tenant's current knowledge, there are no uncured breaches or
events of default of Landlord or Tenant under the Sublease, and, to Tenant's
current knowledge, there has occurred no event or circumstance which with the
passage of time or the giving of notice would constitute a default; and,
(5) A true and correct copy of the Sublease by and between Assignor and
Tenants is attached hereto as Exhibit A. The Sublease is not in default, nor any
state of factors, which with the passage of time would constitute a default.
IN WITNESS WHEREOF the Tenants have executed this document on this the 1st day
of April, 2001.
TENANT:
Aprisma Management Technologies, Inc.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------- -----------------------
Witness Name: Xxxxxxx Xxxxxxx
XXXXX XX XX
XXXXXX XX XXXXXXXXX
Xx this the 3rd day of April, 2001, before me, the undersigned officer,
personally appeared Xxxxxxx Xxxx known to me (or satisfactorily proven) to be
the President of Aprisma Management Technologies and that he/she as such
____________________, being authorized so to do, executed the foregoing
instrument for the purpose therein contained on behalf of Aprisma Management
Technologies.
Before me,
/s/ Xxxxxx Xxxxxxx
----------------------------
Notary Public
My Commission expires:
Name: Xxxxxx Xxxxxxx
-----------------------
SUBLEASE
BETWEEN
XXXXX DEVELOPMENT AUTHORITY
AS "SUBLESS0R"
AND
000 XXXXXXXXX XXXXX, LLC
AS "SUBLESSEE"
TABLE OF CONTENTS
ARTICLE PAGE
ARTICLE 1. PREMISES.......................................... 5
ARTICLE 2. CONDITION OF SUBLEASED REMISES.................... 7
ARTICLE 3. TERM.............................................. 12
ARTICLE 4. GROUND RENT - MUNICIPAL SERVICES EE............... 13
ARTICLE 5. IMPOSITIONS....................................... 16
ARTICLE 6. SURRENDER OF SUBLEASE PREMISES.................... 17
ARTICLE 7. INSURANCE......................................... 18
ARTICLE 8. SUBLESSOR'S RIGHT TO PERFORM SUBLESSEE'S COVENANTS 21
ARTICLE 9. USE OF SUBLEASED PREMISES......................... 22
ARTICLE 10. LIENS............................................. 24
ARTICLE 11. REPAIRS AND MAINTENANCE........................... 25
ARTICLE 12. RIGHT OF SUBLESSOR TO INSPECT AND REPAIR.......... 26
ARTICLE 13. GENERAL INDEMNIFICATION BY SUBLESSEE.............. 27
ARTICLE 14. UTILITIES......................................... 29
ARTICLE 15. ALTERATIONS - SIGNS............................... 31
ARTICLE 16. DESTRUCTION AND RESTORATION....................... 34
ARTICLE 17. DEFAULT BY SUBLESSOR.............................. 38
ARTICLE 18. DEFAULT BY S LESSEE............................... 39
ARTICLE 19. DELEGATION - ASSIGNMENT - SUBLEASES - MORTGAGES... 42
ARTICLE 20. [RESERVED]........................................ 47
ARTICLE 21. ESTOPPEL CERTTFICATES AND FINANCIAL STATEMENTS.... 48
ARTICLE 22. INVALIDITY OF PARTICULAR PROVISIONS............... 49
ARTICLE 23. NOTICES........................................... 50
ARTICLE 24. QUIET ENJOYMENT................................... 51
ARTICLE 25. ENVIRONMENTAL PROTECTION.......................... 52
ARTICLE 26. MISCELLANEOUS..................................... 58
ARTICLE 27. GUARANTIES........................................ 62
EXHIBITS TO SUBLEASE
Exhibit
1 APPLICATION AND ACCEPTANCE
2 MASTER LEASE BETWEEN SUBLESSOR AND AIR FORCE
3 FEDERAL FACILITIES AGREEMENT
"A" PLAN DESIGNATING THE
SUBLEASED PREMISES
"A-2" SITE PLAN
"B" CONSTRUCTION PLANS
"C" PLANS DESIGNATING INSTALLATION
OF REQUIRED GRANITE SIGN POSTS
"D" FAA, REQUIREMENTS
"D-1" WASTEWATER/WATER IMPROVEMENTS
"D-2" NOTICE OF CONSENT
"E" LIST OF ENVIRONMENTAL LAWS AND REGULATIONS
"F" CERTIFICATE OF EXISTENCE/GOOD STANDING
"G" GUARANTEES
"H" WETLANDS MANAGEMENT PLAN
SUBLEASE
--------
THIS SUBLEASE ("Sublease") is made by and between the XXXXX DEVELOPMENT
AUTHORITY ("Sublessor") and 000 XXXXXXXXX XXXXX, LLC ("Sublessee"). (Sublessor
and Sublessee maybe referred to jointly as the "Parties.")
RECITALS
--------
A. Sublessor is as agency of the State of New Hampshire established
pursuant to RSA ch. 12-G, "Xxxxx Development Authority," and is authorized to
enter into this Sublease pursuant to the provisions contained therein.
B. Sublessor anticipates acquiring fee title to portions of the former
Xxxxx Air Force Base hereinafter designated Premises I and Premises II from the
United States of America ("Government or Air Force") by public benefit transfer
(fig, transfer without consideration) pursuant to the general authority
contained in 49 U.S.C. Sections 47151 - 47153 and other applicable provisions of
law. (Together, Premises I and Premises II constitute the entirety ,of the Peace
international Tradeport (the "Airport" or "Peace"),) The terms of such
acquisition are set forth in an Amended Application for Public Benefit Transfer
executed by Sublessor ("Application") and accepted by the Air Force on April
14,1992 (the "Acceptance"), as the same have been subsequently amended by
Amendment No. 1 dated March 24, 1994 and executed rune 27, 199? ("Amendment No.
1"). (The Application, as amended by Amendment No. 1 may be referred to as the
"Amended Application'': ") The Amended Application was approved December 12,1995
and confirmed March 18, 1997 end the Air Force executed an acceptance of the
Amended Application on June 26, 1997 ("Acceptance II"). (The Acceptance and
Acceptance II may be referred to collectively as the "Acceptances".) Pending
final disposition of the Airport in accordance with the terms of the Amended
Application and Acceptances, the Sublessor and Air Force have entered into a
Lease as of April 14, 1992 for the Airport District, a Supplement No. l thereto
dated August 4, 1992, a Supplement No. 2 thereto dated July 15, 1993, and a
Supplement No. 3 thereto dated June 27,1997 (collectively the "Master Lease"),
The Subleased Premises are within the Airport District and are located in
Premises II. The Parties acknowledge that the Amended Application, Acceptances
and Master Lease impose certain requirements on Sublessor with respect to
subleases which are addressed in the teams and conditions of this Sublease. ,-
Copies of the Amended Application, Acceptances and Master Lease are attached to
this Sublease as Exhibit 1 a1fd'2. Unless the context refers specifically to the
documents constituting Exhibits 1 and 2, the terms Amended Application,
Acceptances and Master Lease shah include any amendments to said documents.
C. The Parties acknowledge that a Federal Facilities Agreement ("FFA")
required under Section 120 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. (S) 9601 et Wig.
has been entered into by the Air Force, the New Hampshire Department of
Environmental Services ("NHDF-S') and the United States Environmental Protection
Agency ("EPA") regarding certain contamination at Xxxxx and that this FFA also
imposes certain requirements upon Sublessor and Sublessee which are addressed in
the terms and conditions of this Sublease. A copy of the FFA is attached to this
Sublease as Exhibit 3. Unless the context refers specifically to the document
constituting Exhibit 3, the term FFA shall include any amendments to said
document.
D. Sublessee is a limited liability company duly formed under the laws of
the State of New Hampshire with a principal place of business at Portsmouth, New
Hampshire.
THEREFORE, in consideration of the covenants herein contained and other
valuable consideration, the receipt of which is hereby acknowledged, Sublessor
and Sublessee hereby agree as follows:
ARTICLE 1.
PREMISES
--------
1.1. Description of Subleased Premises
---------------------------------
Sublessor, for and in consideration of the rents and covenants herein
specified to be paid and performed by Sublessee, hereby leases to Sublessee, and
Sublessee hereby hues from Sublessor, the land area, buildings and other
facilities and improvements thereon located at t73 Corporate Drive, Xxxxx
International Tradeport, consisting of 20.09+/- acres (875,072 +/- square feet);
which land is shown more particularly an the plans attached as Exhibit A (the
"Subleased Premises" or the "Premises").
Excluded from the Subleased Premises are property or other rights obtained
by a utility supplier from the Sublessor pursuant to a sublease or other
agreement in connection, as set forth in Section 1.2 below, with the provision
of utility lines and or utility services at the Airport-
1.2. Easements - Rights of Way
-------------------------
This Sublease is subject to existing easements and rights-of-way of record
and to (i) the Utility Sublease and License Agreement dated July 31,1992 by and
between PDA and Public Service Company of New Hampshire ("PSNH"); Vii) the
Utility Sublease and License Agreement dated May 10, 1995 by and between PDA and
New England Telephone and Telegraph Company ("NETEL"); (iii) the Wastewater
Disposal and Water Service Facilities Sublease and License Agreement dated as of
January 1, 1993 and amended July 1, 1998 by and between PDA and the City of
Portsmouth ("COP") and (iv) and to the Pipeline Easement and Transfer Agreement
dated August 12, 1898 by and between PDA, Portland Natural Gas Transmission
System and Maritimes & Northeast Pipeline, L.L.C.
The Government reserves for the use and benefit of the public, an avigation
easement and a right of way for the free and unobstructed passage of aircraft in
the airspace above the surface of the Airport, together with the right to cause
in such airspace such sound, vibrations, fumes, dust, fuel particles, and all
other effects as may be caused by the operation of aircraft, now known or
hereafter used, for the navigation. through or flight in the said airspace, and
for use of said airspace for landing on, taking off from, or operating on the
Airport.
1.3. General Rights of Access
------------------------
Subject to the provisions and additional restrictions set forth in Article
9 and other pertinent provisions of this Sublease, Sublessee shall have in
common with other authorized
-5-
Airport users the right to use the entrances, exits and roadways designated by
Sublessor for common use at the Airport.
The rights of Sublessee under this Section 1.3 shall be subordinate to
Sublessor's rights to manage the airfield and other common areas and roadways,
which rights shall include, without limitation, the right to impose reasonable
rules and regulations relating to use of the airfield common areas and roadways
and the right to add, delete, alter or otherwise modify the designation and use
of all airfield facilities and parking areas, entrances, exits, roadways and
other areas of the Airport, to the extent all of the foregoing are not part of
the Subleased Premises; provided, however, that Sublessee shall continue at all
times to have reasonable access to and use of the Subleased Premises.
Sublessee shall comply with all federal, state and local laws, rules and
regulations which apply to the conduct of the uses contemplated under Article 9
of this Sublease, including, without limitation, rules and regulations
promulgated by Sublessor. Sublessor and Sublessee acknowledge and agree that as
of the date of this Sublease, Sublessor has adopted no rule or regulation other
than those which have been specifically provided to Sublessee concerning the
conduct of uses under this Sublease. Sublessee shall pay to Sublessor an amount
equal to all fines levied by any governmental body against Sublessor for any
breach of applicable requirements by Sublessee or any of its employees,
contractors, subcontractors, agents, servants or invitees.
END OF ARTICLE 1
----------------
-6-
ARTICLE 2.
CONDITION OF SUBLEASED REMISES
------------------------------
2.1. Sublessee acknowledges that it has inspected the Subleased Premises,
including all improvements thereon as of the date of execution of this Sublease
and that it has determined that the said Subleased Premises are in good and
tenantable condition. Sublessee accepts said Subleased Premises in their present
condition and without any representation or warranty by Sublessor as to the
condition of said Subleased Premises or as to the use or occupancy which may be
made thereof and without obligation on the part of the Sublessor to make any
alterations, repairs or additions to said Subleased Premises that has not been
fully set forth in this Sublease. Further, Sublessor shall not be responsible
for any latent or other defect or change of condition in said Subleased
Premises, and the rent hereunder shall in no event be withheld or diminished on
account of any such defect in said Subleased Premises nor any such change in its
condition, nor, except as provided herein, for any damage occurring thereto.
Sublessee further acknowledges that a portion of the Subleased Premises is
currently designated as a wetlands area and that Sublessor makes no
representation concerning its potential utilization or capability of being
developed and undertakes no obligation in respect to this area- Subject to the
provisions of Article 25 of this Sublease and Condition 25A, of the Master
Lease; Sublessor agrees to cooperate with Sublessee at Sublessee's sole cost and
expense in respect to any environmental review for permitting processes that may
be required in order to allow utilization of this portion of the Subleased
Premises by Sublessee to the extent allowed under this Sublease-
END OF ARTICLE 2
----------------
-7-
ARTICLE 2A.
IMPROVEMENTS T SUBLEASED PREMISES
---------------------------------
2A.1. In order to induce the Sublessor to enter into this Sublease, the
Sublessee covenants and agrees that it will undertake and continue with due
diligence, at its sole expense following execution of this Sublease, as defined
in Section 1.1 of this Sublease:
the design and construction of a two story office facility, consisting of a
minimum of 100,000 rentable square feet, with related paving,
utilities, landscaping, drainage and associated site improvements (the
"Facility''') consistent with Exhibit A-2 and the Existing Features
Plan, Demolition Plan, the Landscape Plan, the Construction Detail
Plan, the Grading and Erosion Control Plan, Utility and Lighting Plan
(collectively the "Construction Plans"), as set out in Exhibit B and
incorporated herein by reference. Sublessee shall exercise reasonable
efforts to maintain the following schedule to complete design and
construction of the Facility:
Event Completion Date
----- ---------------
Preliminary Site Plaza Submission to Sublessor Completed
Completion of Final Design October 1, 2000
Commencement of Construction November 15, 2000
Completion of Construction October 15, 2001
Sublessee's obligation shall include, without limitation,: the obligation to
make timely application, diligently pursue and obtain necessary approvals and/or
any and all permits required for its construction and intended use of the
Subleased Premises in accordance with the schedule set forth above.
Without limiting the foregoing, Sublessee agrees that the initial
improvements to the Subleased Premises to be made by Sublessee shall include
construction on and under the Subleased Premises (and the inclusion of necessary
equipment) of
(1) a Facility with a footprint of approximately 50,112 square feet,
with paved areas of approximately 4.79 acres for the purposes allowed under
Article 9. The structure will be approximately 35 feet tall at its tallest
point as measured above the ground floor slab which is at approximately 38
feet above sea level;
(2) outside structures accessory to the Facility are not anticipated
in connection with Phase I;
(3) all appropriate lines, pipes, mains, cables, manholes, wires,
conduits and other facilities so as to bring utilities from the existing
locations pursuant to Section 14'h to the Facility and other improvements
made by Sublessee requiring utility service;
-8-
(4) a surface, paved parking area fox use by Sublessee's employees and
business invitees at the Facility; .
(5) all necessary roadways and pedestrian' circulation areas within
the Subleased Premises, including curb cuts as approved by Sublessor to
Airport roadways) contiguous to the Subleased Premises; and
(6) landscaping and exterior lighting.
The provisions of Article 15 and Article 25 applicable to construction work
shall apply with equal force to any demolition and/or construction work by
Sublessee under, this Article.
Any approval or agreement by Sublessor with respect to any element(s) of
the Construction Plans) shall not affect in any way any other approval or other
process involving Sublessor in its governmental capacity, including, without
limitation, requirements under the Sublessor Land Use Controls as defined in
Section 9.3.
Sublessee agrees to be solely responsible for any glens and specifications
used by it and for any loss or damages resulting from the use thereof,
notwithstanding the same having been approved by Sublessor and notwithstanding
the incorporation therein of Sublessor recommendations or requirements.
Notwithstanding the requirement for approval by Sublessor or the incorporation
therein of Sublessor requirements or recommendations, and notwithstanding any
rights Sublessor may have reserved to itself under this Sublease, Sublessor
shall have no liabilities or obligations of any kind to any contractors engaged
by Sublessee for any other matter in connection with any such approval by
Sublessor or Sublessor requirements or recommendations, and Sublessee hereby
releases and discharges Sublessor, its board members, officers, representatives
and employees of and froze any and all liability, claims for damages or losses
of any kind, or from any action or cause of action arising or alleged to arise
out of the performance of any work pursuant to the contracts between Sublessee
and its contractors.
Sublessee has appointed Xxxxxxx Xxxx as project manager (the "Project
Manager") to administer Sublessee's construction and other related activities at
the Subleased Premises. The Project Manager shall be responsible for
coordinating with Sublessor and keeping Sublessor generally up to date on major
construction and construction related activities of Sublessee and shall be
available at the Airport at all reasonable times and during on-site emergencies
or situations requiring immediate or expeditious response or consultation with
Sublessor.
At the completion of construction, Sublessee shall provide Sublessor with
reproducible as-built drawings of buildings and building support systems (i.e.,
electrical, HVAC, plumbing) comprising the Facility (but not including any
proprietary equipment wle4 completed.
2A.2. Risk of Loss - Builder's Risk Insurance Indemnification
-------------------------------------------------------
In addition to its obligations under Article 7, AFticlel3 and Article 15,
Sublessee hereby assumes the risk of loss or damage to all of the construction
work for or relating to the Facility and any other improvements prior to the
completion thereof and arising out of or in connection with the performance of
Sublessee's construction work. Sublessee shall provide Builder's Risk insurance
to cover such risk of loss during the period of construction upon terms and
conditions
-9-
satisfactory to Sublessor and designating Sublessor and the United States of
America as additional insureds. Binders for Builder's Risk Insurance required to
be provided under this Section 2A.2 shall be submitted to Sublessor fox its
review and approval prior to commencement of construction work.
Sublessee shall require each of its contractors and subcontractors, to
defend, indemnify and hold e harmless Sublessor, its board members, officers,
agents and employee's from and against all claims and demands, of third persons
arising or alleged to arise out of the performance of work in connection with
construction of the Facility and any other improvements by Sublessee or its
contractors or subcontractors, including all expenses in the defense.'
settlement ax satisfaction thereof, including without limitation thereto, claims
and demands for death, for personal injury or far property damage, arising from
the ants or omissions of such contractors and subcontractors, excepting only
claims and demands which result solely from the negligence of Sublessor and its
employees, officers, agents, contractors, and subcontractors.
2A.3. OMITTED
-------
2A.4. Plans and Studies
-----------------
To the extent the same are available and applicable, Sublessor will furnish
the following data to Sublessee: relevant maps, diagrams, surveys, drawings,
engineering studies and plans related to the Premises, including but not limited
to, the Environmental Baseline Survey; approved airport layout plan; existing
property drawings and plans; Health and Safety Plans; Construction Work Plans
and planning and engineering studies conducted for the Sublessor or for others,
including available studies conducted for the United States of America-
Department of the Air Force, and pertaining to Xxxxx and or the Premises.
Sublessor makes no warranty or representation, actual or implied, as to the
accuracy of any such data or material to be furnished to the Sublessee, and is
under no obligation to provide any of the aforementioned data to the extent the
same does not exist, or is incomplete, or to update any such data.
2A.5 Title
-----
Except as provided in Article 6 of this Sublease, upon expiration or
termination of this Sublease, including any authorized extension thereof, title
to the Facility shall be vested in Sublessor. Prior to that time, title to any
buildings or improvements situated or erected on the Subleased Premises and the
building equipment and other items installed thereon and any alteration, change
or addition thereto shall remain solely in Sublessee and Sublessee alone shall
be entitled to deduct any applicable depreciation on Sublesses's income tax
returns for any such buildings or equipment and to any other applicable income
tax benefits that are available by reason of such buildings, improvements and
equipment
END OF ARTICLE 2A.
------------------
-10-
ARTICLE 2B.
DEMOLITION OF EXISTING BUILDINGS/ADJUSTMENT TO GROUND RENT
----------------------------------------------------------
2.B.1. In order to induce the Sublessor to enter into this Sublease, the
Sublessee covenants and agrees that it will undertake and continue with due
diligence, at its sole expense, demolition of Buildings Nos. 94, 95 and 96
located on the Subleased Premises in accordance with the terms of this Article
2.13 and removal of all debris (and any other materials; including asbestos)
associated with such demolition. The schedule and plans associated with such
demolition (including truck traffic impacts on the airport roadway system) shall
be reviewed with Sublessor and accomplished in such a way as to avoid undue
impacts on the Airport.
2.B.2. In connection with the Sublessee's obligation to demolish Buildings Nos.
94, 95 and 96, as provided herein, Sublessee covenants and agrees that said
demolition shall be completed on the earlier to occur of the following events
(i) issuance of a building permit for construction of the Facility; or (ii)
October 15, 2001.
2.B.3. In the event Sublessee fails to complete demolition, as provided iii
this Article 2.11, the Option granted to Sublessee for the premises at 000
Xxxxxxxxx Xxxxx (also known as the Xxxxx School) shall terminate and Sublessor
shall be free to use, lease, sublease, or otherwise transfer said premises, as
Sublessor in its sole discretion deems appropriate-
2.B.4. In the event Sublessee completes demolition-of Building Nos. 94,95 and
96, as contemplated herein, and constructs the Facility at its sole cost and
expense all pursuant to the requirements of this Sublease, Sublessee shall be
granted a single credit of Five Hundred Forty-Five Thousand Dollars. (545,000)
(the "Demolition Credit") to be used by Sublessee to offset Ground Rent (as
defined in Article 4 of this Sublease) payments for the Subleased Premises, in
such manner that no Ground Rent shall be payable for the Subleased Premises
until the Demolition Credit has been exhausted, but in no event shall the
Demolition Credit exceed in any one year the amount of Ground Rent for the
Subleased Premises due to the Sublessor_
The Demolition Credit may not be utilized at any dune during which Sublessee is
in default (beyond applicable notice and cure periods) under any of the terms of
this Sublease, it being the intent of the parties that the Demolition Credit
granted may not be utilized or be effective at a time when a default by
Sublessee exists under this Sublease.
2.B.5. The Demolition Credit is intended as a credit of Ground Rent only, and in
no event shall Sublessee be entitled to any payment from Sublessor with respect
to the any unapplied credit balance for any reason, including early termination
of this Sublease.
END OF ARTICLE 2.B.
-------------------
-11-
ARTICLE 3.
TERM
----
3.1. This Sublease shall be effective upon execution and shall continue for a
base term of thirty (30) years ("Base Term") which term shall be deemed to
commence on the earlier to occur of the following events (i) occupancy of all or
any portion of the Facility or 1(i,) March 31, 2001. The earlier to occur of
events (i) or (ii) described in the preceding sentence shall constitute the Term
Commencement Date (the "Term Commencement Daze"). Sublessee shall have up to two
(2) options exercisable by Sublessee at its sole discretion each of which
options, if exercised, shall extend the Base Term for an additional ten (10)
year period (the "Extension Terms)". In no event shah the Base Term and all
option periods extend beyond fifty (50) years from the August 31, 2000. Any
extension of the term through exercise of an option shall be upon the same terms
and conditions applicable to the Base Term, provided that rental rates shall
escalate as provided in Article 4 (and any other applicable provision addressing
rental rates).
It is anticipated that Sublessor will acquire fee title to the Airport;
including the Subleased (remises, during the term of this Sublease and that such
acquisition will result in the termination of the Master Lease. Upon such
acquisition and termination of the Master Lease, this Sublease shall convert
automatically into a direct lease between Sublessor an~Sub"lesse6. Sublessor and
Sublessee will in good faith negotiate and execute such amendment or amendments
as may be appropriate in their mutual judgment to delete any obligations between
Sublessee arid the Air Force or any other provisions of this Sublease that the
parties determine should be deleted of otherwise amended because of the
termination of the Master Lease, provided, however, that such amendment or
amendments shall not delete or otherwise affect any obligation of Sublessee to
the Air Force or any other provisions of the Sublease that are required to
survive the Master Lease.
3.2. Unless Sublessee shall give a written notice to Sublessor at least twelve
(12) months prior to the end of the Base Term or any applicable Extension Term
of its election to terminate this Sublease without exercise of the next
applicable Extension Term(s), Sublessee shall be deemed to have exercised the
next applicable option to extend granted to it under this Sublease and this
Sublease shall be extended without further action, writing or agreement on
behalf of Sublessee in reliance on said extension having been effected.
3.3. Subject to any applicable notice provisions and the right of Sublessee to
cure, the options to extend the term hereby granted may not be exercised at any
time doting which Sublessee is in default under any of the terms of this
Sublease, and, at the election of Sublessor, shall not be effective if any
default occurs after the exercise of such option and before the expiration of
the applicable term, it being the intent of the Parties that the options granted
hereby may not be exercised or become effective at a time when a default by
Sublessee exists under this Sublease.
3.4. Unless the context clearly indicates otherwise when used in this Sublease
the phrase "term of this Sublease" shall mean the Base Terns plus any duly
exercised allowable extensions thereof.
END OF ARTICLE 3
----------------
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ARTICLE 4.
GROUND RENT - MUNICIPAL SERVICES EE
-----------------------------------
4.1. Subleased Premises
------------------
Sublessee shall pay to Sublessor ground rent ("Ground Rent") at the
following annual rates for the areas of the Subleased Premises described in
Section 1.1:
Years 1 through 5 (commencing with an annual amount equal to $12,500 per useable
the Term Commencement Date): acre (the "Base Rent")
Years 6-10 an annual payment equal to the Base Rate per
useable acre plus an annual adjustment equal
to the lesser of CPI or 3% per year, not to
exceed 12% in any 5 year period
Years 11-15 and each year an annual payment equal to the per useable
thereafter, including any are rate for the previous year plus an annual
applicable option period adjustment equal to the lesser of CPI or 3%
per year, not to exceed 12% in any 5 year
period
The annual Ground Rent fox the Subleased Premises will be based on the
total useable acreage of 11.16 acres, including setbacks and open space, but
excluding any wetlands area shown of Exhibit A and any required wetlands buffer
zones in accordance with the band Use Controls as defined in Article 9. The
actual useable acreage of the Subleased Premises will be determined on the basis
of a field survey/wetlands delineation of the wetlands conducted by a qualified
soil scientist.
4.2. The Ground Rent due for the premises under Section 4.1 shall commence on
the Term Commencement Date. The annual Ground Rent shall' be payable in each
case in equal monthly installments of one twelfth thereof in advance on the
first day of each month without offset in lawful money of the United States at
the office of Sublessor at the Airport or at such other address as Sublessor may
hereafter designate. In addition, Sublessee agrees to pay when due, such other
amounts that may be required under this Sublease to be paid as additional rent.
Sublessee's rent obligation for any fractional portion of a calendar month at
the beginning oz end of the term of this Sublease shall be a similar fraction of
the rental due for an entire month.
4.3. Subject to the provisions of Article 4 limiting each annual adjustment and
the total adjustment in any five year period, as of each Adjustment Date (as
hereinafter defined"), the Ground Rent shall be adjusted as provided in Section
4.4 to reflect changes in the Consumer Price Index for All Urban Consumers
applicable to the Boston area (all items 1982 -1984 = 100) published by the
United States Department of Labor, Bureau of Labor Statistics (the "Index'). -
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4.4. On the first day following the expiration of the fifth (5th) year of the
term of this Sublease and on the first day of each year thereafter (individually
'an "Adjustment Date" and collectively the "Adjustment Dates"), Ground Rent
shall be subject to adjustment for the remainder of the term of this Sublease as
follow:
(1) For the first annual adjustment (commencing on the first day
following the expiration of the fifth (5th) year of the term of this
Sublease), the basis for computing such adjustment shall be the Index most
recently published prior to the beginning of the first (1st) year of the
term ("Beginning Index"). If the Index most recently published prior to the
first Adjustment Date ("Extension Index") has increased over the Beginning
Index, the Ground Rent for the one (1) year period commencing as of such
first Adjustment Date, subject to the caps set forth in Section 41 above,
shall be the result obtained by multiplying the annual Ground Rent in
effect on the day of the Adjustment Date (Le- the annual rental for year
one) by a fraction, the numerator of which is the Extension Index and the
denominator of which is the Beginning Index.
(2) For all subsequent adjustments, the rent shall be adjusted in the
same manner as that for the first adjustment; provided, however, that the
rental base shall be the rental in effect just prior to the then applicable
Adjustment Date, the Extension Index far the preceding period shall be the
Beginning Index and the Extension Index shall be the index most recently
published prior to the then applicable Adjustment Date. On each Adjustment
Date, the Parties shall execute an acknowledgment reflecting the new rent
Failure to execute such an acknowledgment shall not affect either the
validity of this Sublease or the effective date of any adjustment to the
rent hereunder.
(3) If for any Adjustment Date the Extension Index most recently
published following the Adjustment Date has not increased over, or has
decreased from, the Beginning Index for that period, no escalation in rent
shall be required on that Adjustment Date, and the rent shall remain at its
then current rate until the next Adjustment Date.
If the Index is changed in any manner, including without limitation, a
change in the base year, the Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics. If the Index is discontinued or revised during the term of
this Sublease, such other government index or computation with which it is
replaced shall be used in order to obtain substantially the same result as would
be obtained if the Index had not been discontinued or revised. If the Parties
shall be unable to agree upon a successor index, the Parties shall refer the
choice of a successor index to arbitration in accordance with the rules of the
American Arbitration Association.
4.5. [RESERVED]
4.6. The Ground Rent payable hereunder shall be net to Sublessor, free and
clear of any arid all Impositions (as defined in Section S.1), or expenses of
any nature Whatsoever in connection with the Premises. The Parties agree that,
except as expressly provided herein, all costs, expenses and charges of every
kind and nature relating to the Subleased Premises which may be attributed to,
or become due during the initial or any renewal term of this Sublease, shall
constitute
-14-
additional rent to be paid by Sublessee and, upon failure of Sublessee to pay
any such costs, expenses or charges, Sublessor shall have the same rights and
remedies as otherwise provided in this Sublease for the failure of Sublessee to
pay rent. It is the intention of the Parties that Sublessee shall in no event be
entitled to any abatement or reduction in rent payable hereunder, except as
expressly provided herein. Any present or future law to the contrary shall not
alter the agreement of the Parties.
4.7. The Subleased Premises are located outside the Airport District, as
defined in NI-I RSA 12-G:2. Sublessee shall pay to the City of Portsmouth a
payment in lieu of taxes in accordance with the provisions of NH RSA,12-G:11, IT
and any other applicable provision of State law.
4.8. Any tax, fee or payment in lieu of tax imposed for the provision of fire,
police, public works or other municipal services shall be considered an
Imposition under Article 5 of this Sublease.
END OF ARTICLE 4
----------------
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ARTICLE 5.
IMPOSITIONS
-----------
5.1. During the terns of this Sublease, Sublessee shall pay when due, all
taxes, charges, excises, license and permit fees, assessments, anal other
governmental charges, general and special, ordinary and extraordinary,
unforeseen, as well as foreseen, of any kind and mature whatsoever, which during
the term of this Sublease are assessed or imposed upon or become due and payable
or a lien upon: (i) the Subleased Premises or any part thereof or any personal
progeny, equipment or other facility used in the operation thereof; or (ii) the
rent or income received from Sublessee's subtenants or licensees; or (iii) any
use or occupancy of the Subleased Premises; or (iv) this transaction or any
document to which Sublessee is a party creating or transferring an estate or
intei6st in the Subleased Premises (all of which taxes, charges, excises, fees,
assessments and other governmental charges are hereinafter collectively referred
to as "Impositions"). If, by law, any such Imposition is payable, or may at the
option of Sublessee be paid in installments, Sublessee may pay the same together
with any accrued interest on the unpaid balance of such Imposition in
installments as the same respectively become due and before any fine, penalty,
interest or cost may be added thereto for the nonpayment of any such installment
and interest. Any Imposition relating to a fiscal period of the taxing authority
a part of which period is included prior to the commencement of the term of this
Sublease, shall be prorated as between Sublessor and Sublessee so that Sublessee
shall pay only the portion thereof attributable to any period during the term of
this Sublease.
5.2. Sublessee covenants to furnish to Sublessor within fourteen (14) days of
receipt of a written request from Sublessor, official receipts of the
appropriate taxing authority, or other proof satisfactory to Sublessor,
evidencing the payment thereof
5.3. Sublessee shall have the right before any delinquency occurs to contest or
object to the amount or validity of any such Imposition by appropriate legal
proceedings. This right shah not be deemed or construed in any way as relieving,
modifying or extending Sublessee's covenant to pay any such Imposition at the
time and in the manner in this Article, unless Sublessee shall have obtained a
stay of such proceedings. Sublessor shall not be required to loin in any such
proceedings unless it shall be necessary for it to do so in order to prosecute
such proceedings and Sublessor shall have been fully indemnified to its
satisfaction against all costs and expenses in connection therewith. Sublessor
shall not be subjected to any liability for the payment of any costs or expenses
(including attorneys' and expert witness fees) in connection with any such
proceedings brought by Sublessee, and Sublessee covenants to indemnify and save
Sublessor harmless from any such costs or expenses.
5.4. As between the Parties, Sublessee alone shall have the duty of attending
to, making or filing any declaration, statement ox report which may be provided
or required by law as the basis of or in connection with the determination,
equalization, reduction or payment of any and every Imposition which is to be
borne or paid or which may become payable by Sublessee under the provisions of
this Article, and Sublessor shall not be or become responsible to Sublessee
therefor, nor for the contents of any such declaration, statement or report.
END OF ARTICLE 5
----------------
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ARTICLE 6.
SURRENDER OF SUBLEASE PREMISES
------------------------------
6.1. On the expiration or termination of this Sublease, Sublessee shall
surrender to Sublessor the Subleased Premises, including all buildings and
improvements on the Subleased Premises whether leased to or otherwise owned by
Sublessee, broom clean and in good order, condition and repair, reasonable wear
and tear excepted, together with all alterations, decorations, additions and
improvements that may have been made in, to or on the Subleased Premises, except
that Sublessee shad be allowed to remove its personal property or any
improvements made by Sublessee at its sole expense that can be removed without
damage to any buildings, facilities or other improvements to the Subleased
Premises. The Subleased Premises, including the buildings and improvements
thereon, shall be delivered free and cleat of all subtenancies, liens and
encumbrances, other than those, if any, permitted hereby or otherwise created or
consented to by Sublessor, and, if requested to do so, Sublessee shad execute,
acknowledge and deliver to Sublessor such instruments of further assurance as in
the opinion of Sublessor are necessary or desirable to confirm or perfect
Sublessor's right, title and interest in and to the Subleased Premises including
said building arid improvements. On or before the end of the Sublease term,
Sublessee shall remove all of Sublessee's personal and other property allowed to
be removed hereunder, and all such properly not removed shall be deemed
abandoned by Sublessee and may be utilized or disposed of by Sublessor without
any liability to Sublessee. Sublessee's obligation under this Article 6 shall
survive the expiration or termination of this Sublease.
END OF ARTICLE
--------------
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ARTICLE 7.
INSURANCE
---------
7.1.
A. Risk of Loss. Sublessee shall bear all risk of loss or damage to the
Subleased Premises, including any building(s), improvements, fixtures or other
property thereon, arising from any causes whatsoever.
B. Insurance. During the entire period this Sublease shall be in effect,
the Sublessee at its expense will carry and maintain:
(1) Properly insurance coverage against loss or damage' by fire and
lightning and against loss or damage or other risks embraced by coverage of
the type now known as the broad form of extended coverage (`including but
not limited to riot and civil commotion, vandalism, and malicious mischief
and earthquake) in an amount not less than 104% of the full replacement
value of the buildings, building improvements, improvements to the land,
and personal property on the Subleased Premises, The policies of insurance
carried in accordance with this Section shall contain a "Replacement Cost
Endorsement". Such full replacement cost shall be determined from time to
time, upon the written request of Sublessor, but not more frequently than
once in any twenty-four (24) consecutive calendar month period (except in
the event of substantial changes or alterations to the Premises undertaken
by Sublessee as permitted under the provisions hereof) by written agreement
of Sublessor and Sublessee, or if they cannot agree within thirty (30) days
of such request, by an insurance consultant, appraiser, architect or
contractor who shad be mutually and reasonably acceptable to Sublessor and
Sublessee_ Any such determination by a third party shall be subject to
approval by Sublessor and Sublessee, which approval shall not be
unreasonably withheld. The insurance maintained in this Section shall be
adjusted to one hundred percent( 100% ) of the new full replacement cost
consistent with the approved determination.
(2) Comprehensive general liability insurance, including on an
"occurrence basis" against claims for "personal injury", including without
limitation, bodily injury, death or property damage, occurring upon, in or
about the Subleased Premises including any buildings thereon and the ramp
area and adjoining sidewalks, streets, and. passageways, such insurance to
afford immediate minimum protection at the time of the Term Commencement
Date, and at all times during the term of this Sublease, to a limit of not
less than Three Million Dollars ($3,000,000) with respect to damage to
property and Three Million Dollars (3,000,000) with respect to personal
injury or death to any one or more persons and with no deductible or such
deductible amount as may be approved by Sublessor. Such insurance shall
also include coverage against liability for bodily injury or property
damage arising out of the acts or omissions by or on behalf of Sublessee,
or any other person or organization, "or involving any owned, non-owned,
leased or hired automotive equipment in connection with Sublessee's
activities.
-18-
(3) Workers' compensation and employees liability insurance in an
amount and form which meets all applicable requirements of the labor laws
of the State of New Hampshire, as amended from time to time, and which
specifically xxxxxx the persons and risks involved in this Sublease.
(4) Automobile liability insurance in amounts approved from time to
time by Sublessor, but not less than two million dollars ($2,000,000)
combined single limit for owned, hired and non-owned automobiles.
7.2. All policies of insurance required to be carried under this Article shall
be effected under valid and enforceable policies, in such forms and amounts as
may, from time to time, be required under this Sublease, issued by insurers of
recognized responsibility which are authorized to transact such insurance
coverage in the State of New Hampshire, and which have been approved in writing
by Sublessor, which approval shall not be withheld unreasonably. The policies of
insurance required in Sections 7.1B. (2) arid (4) shall be for the mutual
benefit of Sublessee, the Sublessor, any Subleasehold Mortgagee, as defined in
Article 19, and the United States of America with the Sublessor, any
Subleasehold Mortgagee and the United States of America named as additional
insureds. The policy required in Section 7.1B. (1) shall name Sublessor and any
Subleasehold Mortgagee as loss payees as their interests may appear. Upon the
execution of this Sublease (and thereafter not less than fifteen (15) days prior
to the expiration date of each policy furnished pursuant to this Article) the
original of each policy required is be furnished pursuant to this Article (or,
with the consent of Sublessor, which consent shall not be unreasonably withheld
a certificate of the insurer reasonably satisfactory to Sublessor) bearing a
notation evidencing the payment of the premium or accompanied by other evidence
reasonably satisfactory to Sublessor of such payment, shall be delivered by
Sublessee to. Sublessor,
7.3. All policies of insurance shall provide for loss thereunder to be adjusted
and payable to 5ublessor or Sublessee in accordance with the terms of this
Sublease.
7.4. Each such policy or certificate therefor issued by the insurer shall to
the extent obtainable contain (i) a provision that no act or omission of
Sublessee, or any employee, officer or agent of Sublessee, which would otherwise
result in forfeiture oz' reduction of the insurance therein grounded shall
affect or limit the obligation of the insurance company to pay the amount of any
loss sustained, (ii) an agreement by the insurer that such policy shall not be
canceled without -at least sixty (60) days prior written notice by registered
mail to Sublessor and to any Mortgagee, and (iii) provide that the insurer shall
have no right of subrogation against Sublessor and the United Stakes of America.
7.5. All policies of insurance required to be maintained by Sublessee shall
have attached thereto the Lender's Loss Payable Endorsement, or its equivalent,
or a loss payable clause acceptable to Sublessor, for the benefit of any
Subleasehold Mortgagee, but the right of any Subleasehold Mortgagee to the
payment of insurance proceeds shall at all times be subject to the provisions of
this Sublease with respect to the application of the proceeds of such insurance.
7.6. Sublessee shall observe and comply with the requirements of all policies
of insurance at any time in force with respect to the Subleased Premises and
Sublessee shall also perform and satisfy the requirements of the companies
writing such policies so that at all times companies of
-19-
good standing reasonably satisfactory to Sublessor shall be willing to write or
to continue such insurance. Sublessee shall, in the event of any violations or
attempted violations of the provisions of this Section 7.6 by a subtenant, take
steps, immediately upon knowledge of such violation or attempted violation, to
remedy or prevent the same as the case may be.
7.7. Any insurance provided for in this Sublease may be effected by a policy or
policies of blanket insurance or may be continued in such form until otherwise
required by Sublessor; provided, however, that the amount of the total insurance
allocated to the Subleased Premises shall be such as to furnish in protection
the equivalent of separate policies in the amounts herein required, and provided
farther that in all other respects, any such policy or policies shall comply
with the other provisions of this Sublease. In any such case it shall not be
necessary to deliver the original of any such blanket policy to Sublessor, but
Sublessee shall deliver to Sublessor and to any Mortgagee a certificate or
duplicate of such policy in form and content acceptable to Sublessor.
END OF ARTICLE 7
----------------
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ARTICLE 8.
SUBLESSOR'S RIGHT TO PERFORM SUBLESSEE'S COVENANTS
--------------------------------------------------
8.1. If Sublessee shall at any time fail to pay when due any Imposition or
other charge or to pay for or maintain any of the insurance policies required
under Article 7, or to make any other payment or perform any other act on
Sublessee's part required by this Sublease, then Sublessor, after ten (10) days
written notice to Sublessee (or, in case of any emergency, without notice, or
with such notice as may be reasonable under the circumstances) and without
waiving or releasing Sublessee from any obligation of Sublessee hereunder, may
(but shall not be required to):
(i) pay such Imposition or other charge, or
(ii) pay for and maintain such insurance policies, or
(iii) make such other payment or perform such other act on
Sublessee's part to be made or performed as provided in this Sublease, and
may enter upon the Subleased Premises for such purpose and take all such
action as may be deemed or appropriate by Sublessor to correct such failure
of Sublessee.
8.2. All sums so paid by Sublessor and all costs and expenses incurred by
Sublessor in connection with the performance of any such act (together with
interest thereon at the rate specified in Section 26.1 from the respective
dates) of Sublessor's making of each such payment or incurring of each cost or
expenses) shall constitute additional rent payable by Sublessee under this
Sublease and shall be paid by Sublessee to Sublessor on demand.
END OF ARTICLE 8
----------------
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ARTICLE 9.
USE OF SUBLEASED PREMISES
-------------------------
9.1. The purposes for which Sublessee may use the Subleased Premises are
general arid business office uses, research and development offices, light
industry and light manufacturing, and customary accessory uses thereto, to
include, as applicable, -off-street parking. and loading, employee day care,
training and recreational facilities, shipping and receiving, anti f6r no other
uses without Sublessor's prior written consent Sublessee shall not use, or
permit to be used' the Subleased Premises for any other purpose without the
xxxxx express written consent of Sublessor.` Sublessor's consent shall be
subject to the execution of an appropriate agreement which shall include a
provision requiting the payment of established fees and charges that may be
applicable to any such additional uses consented to by Sublessor. Sublessee is
prohibited from any use of the Subleased Premises not specifically granted in
this Section 9.1.
9.2. Sublessee recognizes that the uses authorized in Section 9.1 are not
granted on an exclusive basis and that Sublessor may enter into subleases or
other agreements with other tenants or users at areas of the Airport other than
the Subleased Premises for similar; identical, or competing uses. No provision
of this Sublease shall be construed as granting or authorizing the granting of
an exclusive right within the meaning of Section 308 of the Federal Aviation Act
as the same may be mended from time to time.
9.3. Sublessee agrees that it will keep the Premises in a neat, clan and
orderly condition and shall be responsible for trash removal in accordance the
provisions of Chapters 300 through 500 of the Xxxxx Development Authority Zoning
Requirements, Site Plan Review Regulations and Subdivision Regulations
(collectively the "Land Use Controls") and such other rules and regulations from
time to time promulgated, provided that Sublessee shall not be bound by any such
rules and regulations until such time as it receives a copy thereof. Sublessee
agrees to cause trash receptacles to be emptied sad trash removed at Sublessee's
sole cost and expense.
9.4. Sublessee warrants that prior to engaging in any permitted use, it will
hold all certificates, permits, licenses or other entitlements required by
federal, state or local laws in order to allow Sublessee to conduct the
permitted uses hereunder, and that the same are and with be kept current, valid
and complete. Sublessee further warrants that it shall at all times abide by and
conform with all teams of the same and that it shall give immediate notice to
Sublessor of any additions, renewals, amendments, suspensions or revocations. In
the use and occupation of the Subleased Premises and the conduct of such
business thereon, Sublessee, at its sole cost and expense, shall promptly comply
with all present and future laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments, counts,
departments, commissions and boards, any national, state or local Board of Fire
Underwriters, or any other body exercising functions similar to those of any of
the foregoing.
9.5. Any provision of this Sublease to the contrary-notwithstanding, Sublessee
shall have the right to contest by appropriate proceedings diligently conducted
in good faith, without cost or expense to Sublessor, the validity or application
of any law, ordinance, order, rule, regulation or requirement of the nature
referred to in this Article. If compliance with any such law, ordinance, order,
rule, regulation or requirement may be delayed on the basis of an order from a
court of
-22-
competent jurisdiction pending the prosecution of any such proceeding without
the incurrence of any lien, charge or liability of any kind against the
Subleased Premises or Sublessee's interest therein and without subjecting
Sublessor to any liability, civil or criminal, for failure so to comply
therewith, Sublessee may delay compliance therewith consistent with such court
order. Even if such lien, charge or civil liability would be incurred by reason
of any such delay, Sublessee may, with the prior written consent of Sublessor,
contest as aforesaid and delay as aforesaid, provided that such contest or delay
does not subject Sublessor to criminal liability, damages or expense and
provided that Sublessee: (i) furnishes to Sublessor security, reasonably
satisfactory to Sublessor, against any loss or injury by reason of such contest
or delay; and (ii) prosecutes the contest with due diligence.
Sublessor shall not be required to join in any proceedings referred to in
this Section unless the provisions of any applicable laws, rules or regulations
at the time in effect shall require that such proceedings be brought by and/or
in the name of Sublessor and Sublessor determines that such action is in its
best interests, in which event Sublessor shall join in the proceedings, or
permit the same to be brought in its name, if Sublessee shall pay all expenses
in connection therewith
9.6. [Omitted.]
9.7. Except as otherwise provided in this Sublease, responsibility for
compliance with all federal, state and local laws as required by this Article
rests exclusively with the Sublessee. The Sublessor assumes no enforcement or
supervisory responsibility except with respect to matters committed to its
jurisdiction and authority. .
9.8. Sublessee's use of the Subleased Premises shall be orderly arid efficient
and shall not cause any disruptions to other airport activities. Sublessee shall
not cause or maintain any nuisance on the Subleased Premises. Sublessee shall
conduct all of-its activities hereunder in an environmentally responsible
manner.
9.9. Sublessee shall have the right to obtain supplies or services from
suppliers, vendors or contractors of its own choice at the Subleased Premises,
provided that Sublessor reserves the right to prohibit persons front engaging in
"aeronautical activities" (as defined in Advisory Circular AC 150/5190-2A of the
Federal Aviation Administration) oz' the provision of ground transportation
services at the Airport except in accordance with concession contracts or
operating agreements entered into between Sublessor and said persons.
9.10. [Omitted.]
9.11. Sublessee acknowledges that Sublessor is subject to certain restrictions
on the use of the Airport Property in accordance with Conditions 6, 14,17, 23
and~25A of the Master Lease. Notwithstanding any other provision of this
Sublease, the Sublessee shall also comply with and be subject to the
restrictions in Conditions 6, 10, 17, 23 and 25A of the Master Lease to the
extent applicable to the Subleased Premises or any rights granted to Sublessee
tinder Sublease in the same manner and to the same extent as Sublessor is
obligated in its capacity as Lessee under the Master Lease.
END OF ARTICLE 9
----------------
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ARTICLE 10.
LIENS
-----
10.1. Except as provided in Article 19, during the term of this Sublease,
Sublessee shall not permit to remain, and shall promptly discharge, at its cost
and expense, all liens, encumbrances and charges upon the Subleased Premises or
any part thereof, including the Facility and improvements constructed under
Article 2A of this Sublease; provided, that the existence of any mechanics',
laborers', materialmen's, suppliers' or vendors' liens or rights thereto shop
not constitute a violation of this Article if payment is not yet due under the
applicable contract. Sublessee shall, -however, have the right to contest with
due diligence the validity or amount of any lien or claimed lien, if Sublessee
shall give to Sublessor such security as Sublessor may reasonably require to
insure payment thereof and prevent any sale, foreclosure or forfeiture of
Sublessee's interest in the Subleased Premises or any portion thereof by reason
of such nonpayment, On final determination of the lien or claim for lien,
Sublessee shall immediately pay any judgment rendered with all proper costs and
charges and shall have the lien released or judgment satisfied at Sublessee's
own expense, and if Sublessee shall fail to do so, Sublessor may at its option
pay any such final judgment and clear the Subleased Premises therefrom. If
Sublessee shall fail to contest with due diligence the validity or amount of any
such lien or claimed lien, or to give Sublessor security as hereinabove
provided, Sublessor may, but shall not be required to, contest the validity or
amount of any such lien or claimed lien or settle or compromise the same without
inquiring into the validity of the claim or the reasonableness of the amount
thereof.
10.2. Should any lien be filed against the Subleased Premises, including the
Facility and improvements constructed under Article 2A of this Sublease, or
should any action of any character affecting the title thereto be commenced,
Sublessee shall give to Sublessor written notice thereof as soon as notice of
such lien or action comes to the knowledge of Sublessee.
END OF ARTICLE 10
-----------------
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ARTICLE 11.
REPAIRS AND MAINTENANCE
-----------------------
Sublessee covenants and agrees, throughout the term of this Sublease,
without cost to Sublessor, to take good care of the Subleased Premises, the
Facility and related improvements, including sidewalks, curbs, parking or apron
areas designated for Sublessee's exclusive rue and fences, and to keep the same
in good order and condition, and shall promptly at Sublessee's own cost and
expense, make all necessary repairs, internal and external, structural and
nonstructural, ordinary as well as extraordinary, foreseen as well as
unforeseen, to keep the Subleased Premises and related improvements in safe,
clean and sanitary condition. Sublessee's obligation hereunder shall also
include grounds maintenance and restoration and snow removal from the Subleased
premises including any parking areas designated for Sublessee's exclusive use.
All such repairs made by Sublessee shall be at least equal in quality and class
to the original work and shall comply with the provisions of Article 15 of this
Sublease. Sublessee shall keep and maintain all portions of the Subleased
Premises and the parking areas and fences adjoining the same in a clean and
orderly condition, free of accumulation of dirt and rubbish. When used in this
Article, the tenors "repairs" shall include replacements or renewals when
necessary.
END OF ARTICLE 11
-----------------
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ARTICLE 12.
RIGHT OF SUBLESSOR TO INSPECT AND REPAIR
----------------------------------------
12.1. Sublessee will permit Sublessor and its authorized agents and
representatives to enter the Subleased Premises, including the Facility and
improvements constructed under Article 2A of this Sublease, at all reasonable
times and upon reasonable notice for the purpose of (i) inspecting the same; and
(ii) making any necessary repairs and performing any other work that may be
necessary by reason of Sublessee's failure to comply with the terms of this
Sublease within ten (10) days after written notice from Sublessor, unless an
emergency situation (as determined in Sublessor's sole discretion) requires
earlier action by Sublessor. Nothing herein shall imply any, duty upon the part
of Sublessor to do any such work and performance thereof by Sublessor shall not
constitute a waiver of Sublessee's default in failing to perform the same.
Sublessor may during the progress of such work keep and store in or on the
Subleased Premises all necessary materials, tools, supplies and equipment
Sublessor shall not be liable for inconvenience, annoyance, disturbance, loss of
business or other damage of Sublessee by reason of making such repairs or the
performance of any such work, on or account of bringing materials, tools,
supplies or equipment into or through the Subleased Premises during the course
thereof and the obligations of Sublessee under this Sublease shall not be
affected thereby. Nothing herein shall limit the provisions of Article 8 of this
Sublease.
12.2. Sublessee acknowledges that from time to time Sublessor may undertake
construction, repair or other activities related to the operation, maintenance
arid repair of the Airport which will require temporary accommodation by
Sublessee. Sublessee agrees to accommodate Sublessor in such matters, even
though Sublessee's own activities may be inconvenienced or partially impaired,
and Sublessee agrees that no liability shall attach to Sublessor, its members,
employees or agents by reason of such inconvenience or impairment, unless such
activities of Sublessor hereunder are performed in a negligent manner.
12.3. Sublessee shall allow any agency of the United States, its officers,
agents, employees and contractors to enter upon the Subleased Premises for-any
purposes not inconsistent with Sublessee's quiet use and enjoyment, including
but not limited to the purpose of inspection.. Notwithstanding the preceding
sentence, in the event the Air Force as Lesser under the Master Lease (or any
other agency having a right of entry under the Federal Facilities Agreement
(FFA) as defined in Section 25.8) determines that immediate entry is required
for safety, environmental, operations or security purposes it may effect such
entry without prior notice. The Sublessee shall have no claim against Sublessor
or against the United States or any officer, agent, employee or contractor
thereof on account of any such entries.
END OF ARTICLE 12
-----------------
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ARTICLE 13.
GENERAL INDEMNIFICATION BY SUBLESSEE
------------------------------------
1.1. In addition to any other obligation of Sublessee under this Sublease to
indemnify, defend and hold harmless Sublessor, Sublessee agrees to indemnify,
defend and hold harmless Sublessor against and from any and all claims,
judgments, damages, penalties, fines, assessments, costs and expenses,
liabilities and losses (including, without limitation, diminution in value of
the Premises, damages for the loss or restriction on the use of the Premises,
stuns paid in settlement of claims, attorneys' fees, consultants' fees and
experts' fees) resulting or arising during the term o[_] this Sublease:
(1) from any condition of the Premises (except as otherwise set forth
in Article 25), including any building structure or improvement thereon;
(2) from any breach or default on the part of Sublessee `in the
performance of any covenant or agreement on the part of Sublessee to be
performed pursuant to the terms of this Sublease; ox from any act or
omission of Sublessee, or any of its agents, contractors, servants,
employees, sublessees, licensees or invitees; or
(3) from any accident, injury, loss or damage whatsoever caused to any
person or property occurring as a result o(Pounds) the act, omission or
default of Sublessee or its sub-sublessees or assigns or its agents,
contractors, servants, employees, licensees or invitees during the term of
this Sublease, on or about the Subleased Premises (including ramp and
parking areas), or upon the land, streets, curbs or parking areas adjacent
thereto.
Notwithstanding the preceding provisions of this Section 13:1 (i) Sublessee
shall be under no obligation to PDA or the Air Force in respect to such matters
included in items (1) through (3) above in existence prior to the effective date
of this Sublease or caused by the negligence of PDA, its officers, agents or
employees, or the gross negligence or willful misconduct of the Air Force, its
assigns, agents, contractors, servants or employees, without contributory fault
in the part of any person, firm or corporation; and (`u) construction of the
Facility (and/or removal of the Facility if permitted by this Sublease), in
accordance with applicable laws, codes, ordinances and regulations, shall in no
way be deemed to diminish the value of the Premises.
In the event that any action or proceeding is brought against Sublessor by
reason of any matter for which Sublessee has hereby agreed to indemnify, defend,
or hold harmless Sublessor, Sublessee, upon notice from Sublessor, covenants to
resist or defend such action or proceeding with counsel reasonably acceptable to
Sublessor.
1.2. The term "Person" as used in this Article and Article 25 shall include
individuals, corporations, partnerships, governmental units and any other legal
entity entitled to bring a claim, action or other demand or proceeding on its
own behalf or on behalf of any other entity.
1.3. The Sublessee also expressly waives any claims against the United States
of America (except as otherwise set forth in Article 25), including the Air
Force, and further agrees with
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respect to the Premises to indemnify, save, hold harmless and defend the Air
Force to the same extent required of the Sublessor under the Master Lease.
END OF ARTICLE 13
-----------------
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ARTICLE 14.
UTILITIES
---------
14.1. Sublessor shall bring or shall cause utility lines to be brought to the
boundary of the Subleased Premises at the points existing as of the Term
Commencement Date or such other points as may be designated by Sublessor (in
consultation with Sublessee). The utility lines shall have the capacities
existing as of the Term Commencement Date which `Sublessee acknowledges are
sufficient to enable Sublessee to obtain for the buildings at the Subleased
Premises, as of the date of commencement of Sublessee's activities, sufficient
water, electricity, telephone and sewer service. Sublessee shall not at any time
overburden or exceed the capacity of the mains, feeders, ducts, conduits, or
other facilities by which such utilities are supplied to, distributed in or
serve the Subleased Premises. If Sublessee desires to install any equipment
which shall require additional utility facilities or utility facilities of a
greater capacity than the facilities provided by Sublessor, such installation
shall be subject to Sublessor's prior written approval of Sublessee's plans and
specifications therefor, which approval shah not be unreasonably withheld. If
such installation is approved by Sublessor and if Sublessor agrees to provide
any additional facilities to accommodate Sublessee's installation, Sublessee
agrees to pay Sublessor, in advance and on demand, the cost for providing such
additional utility facilities or utility facilities of greater capacity.
Sublessor also reserves the right to run such utility lines as it deems
necessary in connection with the development of the Airport to, from, or through
the Subleased Premises, provided, however, that such right does not include the
right to run any such lines through, under or over any structure on the
Subleased Premises and further provided the Sublessor in. exercising such
reserved right shall provide reasonable prior notice and the opportunity to
confer with Sublessee and shall exercise reasonable efforts to avoid or minimize
interference with use of the Subleased Premises.
Sublessor, at its sole discretion, shall have the right from time to time,
to alter the method and source of supply of the above enumerated utilities to
the Subleased Premises so long as such alteration does not result in an
interruption of service during such change and so long as such alteration does
not result in an increase in the cost of any such utilities. Sublessee agrees to
execute and deliver to Sublessor such documentation as may be required to effect
such alteration. Sublessee agrees to pay all charges for the above enumerated
utilities supplied by Sublessor, public utility or public authority, or any
other person, firm or corporation.
Sublessor shall have the option to supply any of the above enumerated
utilities to the Subleased Premises. If Sublessor shall elect to supply any of
such utilities to the Subleased Premises, Sublessee will purchase its
requirements for such services tendered by Sublessor, and Sublessee will pay
Sublessor, within ten (10) days after mailing by Sublessor to Sublessee of
statements therefor, at the applicable rates determined by Sublessor from time
to time which Sublessor agrees shall not be in excess of the public utility
rates or competitive market rates if available for the same service if
applicable to other aviation tenants at the Airport. If Sublessor so elects to
supply any of such utilities, Sublessee shall execute and deliver to Sublessor,
within ten (10) days after request therefor, any documentation reasonably
required by Sublessor to effect such change in the method of finishing of such
utilities.
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14.2. Sublessor shall not be responsible for providing any meters or other
devices for the measurement of utilities supplied to the Subleased Premises.
Sublessee shall install or make application and arrange for the installation of
all such meters or other devices and shall also procure; or cause to be
procured, without cost to Sublessor, any and all necessary permits, licenses or
other adf6rizations requited for the lawful and proper installation and
maintenance upon the Subleased Premises of wires, pipes, conduits, tubes and
other equipment and appliances required to supply any such service upon the
Subleased Premises, and Sublessee shall be solely responsible for and promptly
pay, as and when the same become due and payable, all charges for water, sewer,
electricity, gas, telephone arid any other utility used or consumed in the
Subleased Premises and supplied by Sublessor, any public utility or authority or
any other person, firm or corporation.
14.3. All work and construction under this Article shall comply with the
provisions of Article 15 of this Sublease applicable to construction work.
14.4. Sublessee (and any sublessee or assignee of Sublessee) shall be solely
responsible for obtaining at its sole cost and expense any sewage or stormwater
discharge permits as may be required for its operations under this Sublease (or
any sublease oz assignment). Sublessee (and any sublessee or assignee of
Sublessee) shall be required to comply with any and all land use control
regulations promulgated by Sublessor and any and all federal, state and local
requirements and standards concerning stormwater discharges and discharges to
sewage treatment works, including, without limitation, any pre-treatment
requirements.
14.5. Notwithstanding anything in this Article 14 to the contrary, Sublessee
acknowledges and agrees that the Sublessee and the City of Portsmouth
contemplate the relocation, upgrade and improvement of water and sewer lines on
International Drive and Corporate Drive (the "Wastewater/Water Improvements' as
more specifically set forth in Exhibit D-1. In connection with said relocation,
upgrade and improvement, Sublessee agrees to-pay its proportional share of the
Wastewater/Water Improvements, which proportional share shall be based upon the
13.2800 acres, as set forth in Exhibit D-1 of the Subleased Premises, to include
any necessary. roadway resurfacing. Notwithstanding any provision of this
Sublease with respect to the calculation of useable acreage of the Subleased
Premises, Sublessee's proportional share of the Wastewater/Water Improvements is
as set forth in Exhibit D-1. As a condition precedent to the issuance by the
City of Portsmouth of a Building Permit and the commencement of construction of
the Facility Sublessee shall enter into a written agreement with the City of
Portsmouth, with such security as the City of Portsmouth may reasonably requite
to insure that said payment obligation is met. Sublessee agrees that any payment
obligation with respect to the Wastewater/Water Improvements shall be considered
an imposition under Article S of this Sublease.
END OF ARTICLE 14
-----------------
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ARTICLE 15.
ALTERATIONS - SIGNS
-------------------
15.1. Except as. provided in Section 2A.1, Sublessee shall not place or
construct any improvements, changes, structures, alterations or additions
(cumulatively referred to in this Article as "Alterations") in, to or upon the
Subleased Premises without Sublessor's written consent, which consent shall not
be unreasonably withheld, conditioned or delayed; provided, Sublessor's consent
shall not be required for non-structural Alterations to the Facility and related
structures that do not otherwise require approval under the PDA Laud Use
Controls and ate otherwise in compliance with applicable laws, codes rules and
regulations any related structures, systems and grounds, cost less than Two
Hundred Thousand Dollars ($200,000), constitute necessary replacements,
maintenance and repairs to the Facility. Unless Sublessee is subject to an
earlier notice requirement under the Sublessor's .and Use Controls or other
applicable requirements with respect to the information required under this
section, any request for Sublessor's consent shall be made upon sixty (60) days
written notice and-shall be accompanied by preliminary engineering or
architectural plans or, if consented to by Sublessor, working drawings.
Sublessor shall endeavor, subject to PDA Land Use Controls, to provide its
consent to or communicate its lack of consent and the reasons therefor within
sixty-, (6Q) days of Sublessee's complete submissions in accordance with this
paragraph. If such consent or communication is not received within said sixty
(60) days, Sublessor, as Landlord, shall be deemed to have consented to the
proposed Alterations; provided, however, that in no event shall Sublessor's
failure to provide such consent or communications be deemed a consent by
Sublessor or any enforcement official or municipality under the PDA Land Use
Controls. If Sublessor grants its consent all such work shall be done at
Sublessee's sole cost and expense, subject, in all cases, to the following
covenants:
(1) All work and Alterations shall be dune in compliance with all
applicable governmental regulations, codes, standards or other
requirements, including fire, safety and building codes and Land Use
Regulations promulgated by Sublessor and with the provisions of Article 25
of this Sublease. This obligation shall include compliance with all-
applicable provisions of the FFA (as defined in Section 25.8), including
obligations imposed upon Sublessor in respect to construction and
construction related work.
(2) All Alterations shall be of such a character as not to materially
reduce the value and usefulness of any of the buildings or other
improvements below their value and usefulness immediately before such
Alteration. All work performed hereunder shall be performed in a good and
workmanlike manner, shall conform to drawings and specifications approved
by Sublessor and shall not be disruptive of the overall operation the
Airport. All contractors engaged by Sublessee to perform such work shall
employ labor that can work in harmony with all elements of labor at the
Airport.
(3) During the period of construction of any Alterations, Sublessee or
any contractor, subcontractor or sublessee of Sublessee shall maintain or
cause to be maintained the following insurance--
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(i) the comprehensive general liability and property damage
insurance provided for in Section 7. 1.13 (2) shall be maintained for
the limits specified thereunder and shall provide coverage for the
mutual benefit of the United States of America, Sublessor and
Sublessee as named or additional insured (as is appropriate) in
connection with any Alteration permitted pursuant to this Article 15;
(ii) Fire and any other applicable insurance provided for in
Article ? which if not then covered under the provisions of existing
policies shall be covered by special endorsement thereto in respect to
any Alteration, including all materials and equipment-therefor
incorporated in, on oz about the Subleased Premises (including
excavations, foundations, and footings) under a broad form all risks
builder's risk completed value form or `equivalent thereof; and
(iii) Workers' compensation insurance covering all persons
employed in connection with the work and with respect to whom death or
bodily injury claims could be asserted against Sublessor, Sublessee or
the Subleased Premises, with statutory limits as then required under
the laws of the State of New Hampshire.
The provisions of all applicable Sections of Article 7 of this Sublease
shall apply to all insurance provided for in this Section.
(4) Sublessee shall provide Sublessor with MYLAR as-built drawings
when any Alteration authorized hereunder is completed.
15.2. Sublessee may erect and maintain suitable signs only within the Subleased
Premises upon receiving the prior written approval of Sublessor; which approval
shall not be unreasonably withheld or delayed. Sublessee shall submit drawings
of proposed signs and information on the number, size, type, and location, all
of which Sublessor may review for harmony and conformity with the overall
structure and architectural and aesthetic setting of the Subleased Premises and
the Airport as well as with Sublessor's own land use control regulations and may
approve or disapprove accordingly.
On or before the Term Commencement Date, Sublessee shall purchase from
Sublessor and install, at its sole cost and expense, a 6" by 6" by 6 granite
post with the street address for the Subleased Premises posted in 3" high
numerals on the two sides perpendicular to the street on which the main entrance
to the Subleased Premises, unless another location is required by the PDA
Department of Engineering Post installation and street number configurations
shall be installed in conformance with the specifications set forth in Exhibit C
of this Sublease. Installation of required signage shall be subject to the
provisions of this Article 15, including any requirement for a PDA dig permit.
15.3. Notwithstanding any other provision of this Sublease, the right of
Sublessee to place or construct Alterations in, to or upon the Subleased
Premises shall be subject to Condition 17 of the Master Lease.
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15.4. In addition to the requirements to provide notice to Sublessor under this
Article 15 in respect to any Alteration, Sublessee shall also provide notice to
the Air Force, EPA and NHDES in the same manner and to the extent required of
Sublessor under Condition 10.16 of the Master Lease. In undertaking any
Alteration, Sublessee shall comply with Condition 10.17 of the Master Lease to
the same extent required of Sublessor.
END OF ARTICLE 15
-----------------
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ARTICLE 16.
DESTRUCTION AND RESTORATION
---------------------------
16.1. Subject to the rights of a Subleasehold Mortgagee under Section 19.7, in
the event any portion of the Subleased Premises, including any building(s),
parking areas or other improvements or facilities located on the Subleased
Premises, (but excluding movable trade fixtures, furniture and equipment), shall
be damaged by fire or other casualty to the extent of fifty percent (50/a) or
less, as determined solely and reasonably by the Sublessor, such damage shall be
repaired by Sublessee as promptly as possible and at Sublessee's expense so as
to restore the same as nearly as possible to the condition prior to such damage.
In discharging this obligation Sublessee may utilize available insurance in
accordance with the provisions of Section 16.4 and Section 16.5 and shall
perform such work in accordance with Section 16.6.
16.2. Subject to the rights of a Subleasehold Mortgagee under Section 19.7, in
the event of damage to or destruction of any portion or component of the
Subleased Premises, including any buildings) or other improvements or facilities
on the Subleased Premises (but excluding movable trade fixtures, furniture and
equipment) by fire or other casualty; to an extent heater than fifty percent
(50%), as determined solely and reasonably by the Sublessor, the Sublessee shall
have the election either to terminate this Sublease in accordance with Section
16.3 or to repair and restore the damaged portions in accordance with Sections
16.4 and 16.5.
16.3. In the event the Sublessee elects to terminate this Sublease as allowed
in Section 16.2, it shall provide written notice of such termination to
Sublessor within thirty (30) days following the occurrence of such damage or
destruction, which termination shall be effective on the third day following the
date of receipt of such notice. In such event, the proceeds received from any
applicable policy of insurance shall, subject to the rights of any Subleasehold
Mortgagee, as defined in Article 19, be applied first to removing any debris and
restoring the site to a condition satisfactory to the Sublessor; and second to
any sums owed by Sublessee to the Sublessor. Subject to the rights of any
Subleasehold Mortgagee, as defined in Article 19, any balance remaining from any
insurance proceeds shall then be apportioned between the Sublessor and Sublessee
as follows:
First, to Sublessor an amount equal to the unamortized balance of leasehold
improvements made at Subles5or's expense calculated on a straight line
basis over the useful life of said improvement.
Second, to Sublessee an amount equal to the unamortized balance of
leasehold improvements made at Sublessee's expense calculated on a
straight line basis over the useful life of said improvement.
Third, to Sublessor any remaining balance.
16.4. In the event the Sublessee shall elect to repair and restore the damaged
premises in accordance with 162, it shall provide written notice of such
election to Sublessor within thirty (30) days following the occurrence of such
damage or destruction. In the event Sublessee elects to repair the damage or
destruction or fails to exercise its option to terminate herein, Sublessee
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shall promptly repair and restore the damaged property to its condition
immediately prior to the occurrence of the fire or other cause. Subject to the
rights of a Subleasehold Mortgagee under Section 19.7, all insurance proceeds
shall be endorsed by Sublessee and held by the Sublessor and shall be paid out
from time to time as the repair/restoration work progresses as follows:
(a) Sublessee shall give a written request for payment to the
Sublessor which shall be accompanied by a verified statement from Sublessee
setting forth that the sum then requested either has been paid by the
Sublessee or is justly due to contractors, subcontractors, rnaterialmen,
engineers, architects, or other persons who have rendered services or
furnished materials for certain work Such statement shall give a
description of such services and materials, shall list the several amounts
so paid or due to each of such persons, shall state the fair value of such
work at the date of the requisition, and shall state that no part of such
expenditures has bees or is being made the basis for any other request for
payment. Such statement shall state also that except for the amounts listed
therein, there is no outstanding indebtedness known to Sublessee after due
inquiry, which is then due for labor, wages, materials, supplies, or
services in connection with such work which, if unpaid, might become the
basis of a vendor's, mechanic's, laborer's, materialmen's, or similar lien
upon such work or upon the Subleased Premises.
(b) Within twenty-one (21) days after the receipt of such statement
from Sublessee; the Sublessor shall out of the fund held by the Sublessor
pay to the person(s) named in such statement the respective amounts stated
in such statement to be due to them, or shall pay to the Sublessee the
amount stated in such certificate to have been paid by the Sublessee;
provided, however, that such payments shall not exceed in amount the fair
value of the relevant work as stated in such certificate. If the total
insurance proceeds exceed the amount required to pay the cost of all
construction when completed, the Sublessor shall be entitled to retain such
excess.
16.5. Subject to the rights of a Subleasehold Mortgagee under Section 19.7, all
insurance money paid on account of any damage or destruction (less the actual
cost, fees and expenses, if any, incurred by Sublessor in connection with the
adjustment of the loss, which costs, fees and expenses shall be paid to
Sublessor) shall be applied, to the payment of the cost of the aforesaid
restoration, repairs, replacement, rebuilding or alterations, including the cost
of demolition and temporary repairs and for the protection of property pending
the completion of permanent restoration, repairs;; `replacements, rebuilding or
alterations (all of which temporary repairs, protection of property and
permanent restoration, repairs, replacement: rebuilding or alterations are
hereinafter collectively referred to as the "restoration"). Such insurance money
shall be endorsed by Sublessor, and Sublessee and held and applied in accordance
with the terms of this Article.
Notwithstanding any other provisions of this Sublease, but subject to the
rights of a subleasehold mortgagee under Section 19.7, any insurance proceeds
received by the Sublessor shall not be required to be paid out if at the time of
the request for payment from Sublessee, Sublessee is in default in the
performance of any term of this Sublease as to which notice of default has been
given and which has not been remedied within the time specified for remedying
the same.
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16.6. All repair/restoration work under this Article shall comply with the
provisions of Article 15 of this Sublease applicable to construction work.
16.7. Except as otherwise expressly provided in this Article, no destruction
of, or damage to the Subleased Premises or any part thereof by fire or any other
cause shall permit Sublessee to surrender this Sublease or shall relieve
Sublessee from its obligations to pay the full ground rent, and additional rent
payable under this Sublease or from any of its other obligations under this
Sublease, and Sublessee waives any rights now or hereafter conferred upon it by
statute or otherwise to quit or surrender this Sublease or the Subleased
Premises or any suspension, diminution, abatement or reduction of rent on
account of any such destruction or damage other than as allowed under this
Article.
END OF ARTICLE 16
-----------------
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ARTICLE 16(A)
EMINENT DOMAIN
--------------
16A.1. In the event that there is a taking by eminent domain of the whole of
the Subleased Premises, this Sublease shall terminate and the entire damages
Attributable to the land area shall accrete to Sublessor, and, subject to the
rights of any subleasebold mortgagee, that portion of the damages attributable
to the capital improvements or buildings shall be divided between Sublessor and
Sublessee in the same priority and on the same basis as the allocation of
damages under Section 16.3 relating to leasehold improvements. Any remaining
balance from damages shall be payable to Sublessor.
16A.2. In the event that there is a taking by eminent domain of a portion of
the Subleased Premises, then this Sublease shall terminate as to the portion
taken and the amount of the damages attributable to the area taken shall be
apportioned between Sublessor and Sublessee in the dame manner as set forth in
Section 16A. I, In the event that the tiling shall not be of the entire
Subleased Premises, but the part of the Subleased Premises remaining shall not
be reasonably sufficient and suitable for Sublessee's use and occupancy for the
purposes permitted hereunder, then vd6lessee may terminate this Sublease
forthwith. If Sublessee so determines and terminates this Sublease, then,
subject to the rights of any subleasehold mortgagees, the damages attributable
for improvements made by Sublessee at its expense shall be divided between
Sublessor and Sublessee as follows: Sublessee will receive that amount equal to
the unamortized balance of any such improvements made by Sublessee at its sole
expense calculated over their useful life on a straight line basis, and
Sublessor will receive any balance.
In the event of such partial taking and an election by Sublessee not to
terminate this Sublease as herein provided, the total amount of damages shall
accrue to Sublessor, and the rental paid by Sublessee shall be reduced in the
proportion which the area of the portion taken bears to the area demised under
the provisions hereof
16A.3. Notwithstanding any other provision of this Sublease; in the event of a
temporary taking CL-e-, 2 years or less) this Sublease shall not terminate but
shall resume at the expiration of the period within which the tilting authority
exercises dominion of the area subject to the temporary taking, provided,
however, that in such event Sublessee shall be under no obligation to pay rent
and shall be allowed to share in any damages to the extent that the award
reflects the fair rental value of the property taken and such value exceeds the
established rental, including all applicable charges, required to be paid by
Sublessee to Sublessor under this Sublease.
END OF ARTICLE- 16(A)
---------------------
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ARTICLE 17.
DEFAULT BY SUBLESSOR
--------------------
17.1. The occurrence of the following events shall constitute a default and
breach of this Sublease by Sublessor:
The failure by Sublessor to observe or perform any covenant required to be
observed or performed by it where such failure continues for thirty
(30) working days after written notice thereof by Sublessee to
Sublessor, provided that if the default is such that the same cannot
reasonably be cured within such thirty (30) day period, Sublessor
shall not be deemed to be in default if it shall have commenced the
cue and `thereafter diligently prosecutes the same to completion.
17.2. In the event of any such default by Sublessor, Sublessee may elect among
any of the following remedies:
1. termination of this Sublease;
2. a rental abatement based on the degree of uninhabitability(as
determined by agreement of the Patties) of the Subleased Premises
caused by Sublessor's default but only for the period that such
default remains in effect;
3. subject to available legal and factual defenses,
- a decree or order of a court of- competent jurisdiction compelling
specific performance by Sublessor of its obligations under the
Sublease;
- a decree or order by a court of competent jurisdiction restraining
or enjoining the breach by Sublessor of any `of its obligations
under the Sublease;
4. to the extent allowed by law, the right to undertake to cure
Sublessor's default, in which event Sublessor shall pay Sublessee the
reasonable costs incurred in such undertaking, provided that such cost
does not exceed the value of the rental payments to 5ublessor due
under this Sublease for any one year period: Notwithstanding any other
provision of this Sublease, this right to undertake to cure
Sublessor's default shall not extend beyond the Subleased Premises and
shall not be exercised a any way that causes disruption or
interference with the overate operation of the Airport
5. Subject to the provisions of Section 26.13 of this Sublease, the right
to pursue rights or remedies available at law including a suit for
damages.
END OF ARTICLE 17
-----------------
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ARTICLE 18.
DEFAULT BY S LESSEE
-------------------
18.1. The occurrence of any of the following events shall constitute a default
and breach of this Sublease by Sublessee (a "Default"):
A. The failure by Sublessee to pay when due the ground rent or additional
rent or to make any other payment required to be made by Sublessee to Sublessor
hereunder where such failure continues for seven (7) working days aver written
notice thereof by Sublessor to Sublessee.
B. The abandonment or vacation of the Subleased (remises by Sublessee
while in breach or default of any provision of this Sublease or that lasts for
14 days or more after written notice thereof by Sublessor to Sublessee.
C. The failure by Sublessee to observe and perform any other provision of
this Sublease (including without limitation compliance with federal, state end
local laws and regulations) to be observed or performed by Sublessee, where such
failure continues for thirty (30) working days after written notice thereof by
Sublessor to Sublessee; provided that if the nature of such default is such that
the same cannot reasonably be cured within such thirty-day period, Sublessee
shall not be deemed to be in default if Sublessee shall within such period
commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of
creditors; the filing by or against a Sublessee of a petition to have Sublessee
adjudged a bankrupt or of a petition for reorganization or arrangement under any
law relating to bankruptcy where possession is not restored to Sublessee within
sixty (60) days; or the attachment, execution or other judicial seizure of
substantially all of Sublessee's assets located at the Subleased Premises or of
Sublessee's interest in this Sublease, where such seizure is not discharged
within sixty (60) days.
18.2. In the event of any Default by Sublessee, Sublessor shall have the option
to terminate this Sublease and all rights o(Pounds) Sublessee hereunder by
giving written notice of such intention to terminate in the manner specified
herein, or Sublessor may elect among any one or more of the following remedies
without limiting any other remedies available to Sublessor:
(1) subject to available legal and factual defenses,
- a decree or order of a court of competent jurisdiction compelling
specific performance by Sublessee of its obligations under the
Sublease;
- a decree or order by a court of competent jurisdiction restraining
or enjoining the breach by Sublessee of any of its obligations
under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure
Sublessee's default, in which event Sublessee shall pay Sublessor the
reasonable costs incurred in such
-39-
undertaking, provided that such cost does not exceed the value of the
rental payments to Sublessor due under this Sublease for the year in
which such default occurs. Except for emergency conditions, Sublessor
shall provide Sublessee with two (2) business days prior written
notice of its intent to exercise the right to undertake to cure
Sublessee's default. In the event Sublessee commences to cure such
default within this two (2) day period and diligently prosecutes the
same to completion, Sublessor shall refrain from exercising the right
to undertake its own cute of Sublessee's default.
In the event that Sublessor shall elect to so terminate this Sublease, Then
Sublessor may recover from Sublessee:
(i) any unpaid rent up to the effective date of termination; plus
(ii) any other amount necessary to compensate Sublessor for all the
detriment proximately caused by Sublessee's failure to perform its obligations
under this Sublease or which in the ordinary course of things would be likely to
result therefrom including the discounted value of the rental payments to
Sublessor under the full term of this Sublease not otherwise offset by rentals
realized from a subsequent sublease with a third party, including a sublessee
provided by Sublessee and reasonably acceptable to Sublessor; plus
(iii) such other amounts in addition to or in lieu of the foregoing as may
be permitted from time to tune by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have
the right, with or without terminating this Sublease, to reenter the Subleased
Premises and remove all persons and property from the Subleased Premises to the
extent allowed under New Hampshire law. Such property may be removed and stored
in a public warehouse or elsewhere at the cost of and for the account of
Sublessee. Under no circumstances shall Sublessor be held liable in damages or
otherwise. by reason of any such reentry or eviction or by reason of the
exercise by Sublessor of any other remedy provided in this Article. All property
of Sublessee which is stared by Sublessor may be redeemed by Sublessee within
thirty (30) days after Sublessor takes possession upon payment to Sublessor in
full of all obligations then due from Sublessee to Sublessor and of all costs
incurred by Sublessor in providing such storage. If Sublessee fails to redeem
such property within this thirty (30) day period, Sublessor may sell the
property in any reasonable manner, and shall apply the proceeds of such sate
actually collected first against the costs of storage and sale and then against
any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by
Sublessee for fourteen (l4) days or in the event that Sublessor shall elect to
renter as provided in Section 18.3 or shall take possession of the Subleased
Premises pursuant to any provision of New Hampshire law or pursuant to any
notice provided by law, then if 5ublessor does not elect to terminate this
Sublease as provided in Section 18.2, Sublessor may from time to time, without
terminating this Sublease, either recover all rental as it becomes due or relet
the Subleased .Premises or any part thereof for such terms and conditions as
Sublessor in its sole discretion may deem advisable, including the right to make
alterations and repairs to the Subleased Premises. In the event that S4blessor
shall elect to rele2, then rentals received by Sublessor from such reletting
shall be
-40-
applied: fiat, to the payment of any indebtedness other than rent due hereunder
from Sublessee to Sublessor; second, to the payment of any cost of such
reletting; third, to the payment of the cost of any alterations aid repairs to
the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder;
and the residue, if any, shall be held by Sublessor and applied in payment of
future rent as the same may become due and payable hereunder. Should the amount
of rental received from such reletting during any month which is applied to the
payment of rent be less than that required to be paid during that month by
Sublessee under this Sublease, then Sublessee shall pay such deficiency to
Sublessor immediately upon demand by Sublessor. Such deficiency shall be
calculated and paid monthly. Sublessee shall also pay for Sublessor, as soon as
ascertained, any costs and expenses incurred by Sublessor in such reletting or
in making such alterations and repairs not covered by the rentals received from
such reletting. Ii
18.5. The various rights and remedies reserved under this Sublease, shall be
cumulative, and, ex c law in force and effect at the time of the execution such
rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise of any right or remedy
shall be construed as a waiver of any such right or remedy or of any default by
Sublessor
18.7. Notwithstanding any other provision of this Sublease in the event the
breach by Sublessee in the reasonable opinion of Sublessor affects or is likely
to affect the efficient operation of the Airport or give rise to public safety
concerns, in addition to any other remedy it may have under this Sublease,
Sublessor shall also be entitled (but shall not be obligated) to take whatever
actions is deemed necessary by Sublessor to xxxxx or cure such situation and
Sublessee shall reimburse Sublessor for all costs incurred by Sublessor in
taking such action.
END OF ARTICLE 18
-----------------
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ARTICLE 19.
DELEGATION - ASSIGNMENT - SUBLEASES - MORTGAGES
-----------------------------------------------
19.1. Delegation. Sublessee shall not have the right to delegate any' of its
responsibilities or obligations under this Sublease.
19.2. Assignment. Sublessee may, subject to Condition 20 of the Master Lease,
without the approval of Sublessor, assign its nights under this Sublease to a
related corporation or other entity as long as Sublessee retains at least fifty-
one percent (51 %) controlling interest in such related corporation ox other
entity. All other assignments shall be subject to approval of Sublessor, which
approval shall not be withheld unreasonably. Sublessor has, as a condition of
this Sublease, approved a sub-sublease to Aprisma Management Technologies, Inc.,
("Aprisma") as evidenced by a duly executed Notice of Consent in the form
attached hereto as Exhibit "D-2".
19.3. Subleases. Sublessee may not enter into any sublease of the land area of
the Subleased Premises without Sublessor's prior written approval. Any request
for Sublessor's approval shall be made at least thirty (30) days prior to the
commencement of such tenancy and shall provide detailed information concerning
the identity and financial condition of the proposed sublessee and the terms and
conditions of the proposed sublease. Sublessor shall not unreasonably withhold
or delay its consent to such sublease if. (1) the use of the Subleased Premises
associated-with any subleases) is permitted under Article 9, (2) the subleases)
are consistent with the terms and conditions of this Sublease; provided,
however, that Sublessee may rent the subleased area at rentals deemed
appropriate by Sublessee, (3) Sublessee remains primarily liable to Sublessor to
pay rent and to perform all other obligations to be performed by Sublessee under
this Sublease, and (4)' the proposed sublessee is financially and operationally
responsible. In the event the rent for the land area of the Subleased Premises
exceeds the rental charged to Sublessee under Article 4, Sublessee shall remit
fifty percent (50%) of such excess to 5ublessor upon receipt by Sublessee;
provided, however, that any rental received by Sublessee during a period in
which no rental is due to Sublessor shall be paid in its entirety to Sublessor.
Sublessor acknowledges and agrees that the preceding sentence shall not apply to
subleases pursuant to which Sublessee is leasing one or xxxx buildings (or
portions of buildings) to direct tenants of Sublessee notwithstanding the fact
that under those subleases the tenants have the right to use some or all of the
land area of the Subleased Premises in connection with their use and enjoyment
of the buildings) they are subleasing from Sublessee.
19.4. Continuing Liability of Sublessee. No subletting, assignment or
transfer, whether Sublessor's consent is required or otherwise given hereunder,
shall release Sublessee's obligations or alter the primary liability of
Sublessee to pay the rent and to perform all other obligations to be performed
by Sublessee hereunder. The acceptance of rent by Sublessor front any other
person shall not be deemed to be a waiver by Sublessor of any provision hereof
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. If any assignee of Sublessee or any
successor of Sublessee defaults in the performance of any of the terms hereof,
Sublessor may proceed directly against Sublessee without the necessity of
exhausting remedies against such assignee or successor. If Sublessee assigns
this Sublease, or s0lets al or a portion of the Subleased Premises, or requests
the consent of Sublessor to any assignment or subletting, or if Sublessee
requests the consent of Sublessor far
-42-
any act that Sublessee proposes to do, then Sublessee shall pay Sublessor's
reasonable processing fee and reimburse Sublessor for all reasonable' attorneys'
fees incurred in connection therewith. Any assignment or subletting of the
Subleased Premises that is not in compliance with the provisions of this Article
19 shall be void and shall, at the option of Sublessor, but subject to any
applicable notice and cure period, terminate this Sublease. Notwithstanding the
preceding provisions regarding assignments and subletting and the continuing
liability of Sublessee, the parties agree that Sublessee may, at any time, and
whether or not its proposed assignment' or sublease is to an affiliate, request
that Sublessor in its sole discretion approve an assignment or sublease by
Sublessee to a third party and relieve Sublessee of its liability under this
Sublease.
19.5. Bankruptcy. If a petition is filed by or against Sublessee for relief
under Title 11 of the United States Code, as amended (the "Bankruptcy Code"),
and Sublessee (including for purposes of this Section Sublessee's successor in
bankruptcy, whether a trustee or Sublessee as debtor-in-possession) assumes and
proposes to assign, or proposes to assume and assign, this Sublease pursuant to
the provisions of the Bankruptcy Code to any person or entity why has made a
bona fide offer to accept an assignment of this Sublease, then notice of the
proposed assignment setting forth' (a) the name and address of the proposed
assignee, (b) all of the terms and conditions of the offer and proposed
assignment, and (c) the adequate assurance to be furnished by the proposed
assignee of its' future performance under the Sublease, shall be given to
Sublessor by Sublessee no later than twenty (20) days aver Sublessee has made or
received such offer, but in no event later than thirty (30) days prior to the
date on which Sublessee applies to a court of competent jurisdiction for
authority and approval to enter into the proposed assignment. If this Sublease
is assigned pursuant to the provisions of the Bankruptcy Code, Sublessor may
request from the assignee a guarantee similar to that requested of Sublessee
under Article29. Any person or entity to which this Sublease is ,assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed, without
further act or documentation, to have assumed all of the Sublessee's obligations
arising under this Sublease on and after the date of such assignment. Any such
assignee shall, upon demand, execute and deliver to Sublessor an instrument
confirming such assumption. No provision of this Sublease shall be deemed a
waiver of Sublessor's rights or remedies under the Bankruptcy Code to oppose any
assumption and/or assignment of this Sublease, to require a timely performance
of Sublessee's obligations under this Sublease, or to regain possession of the
Premises if this Sublease has neither been assumed nor rejected within sixty
(60) days after the date of the order for relief or within such additional tune
as a court of competent jurisdiction may have fixed. Notwithstanding anything in
this Sublease to the contrary, all amounts payable by Sublessee to or on behalf
of Sublessor under this Sublease, whether or not expressly denominated as rent,
shall constitute rent for the purposes of Section 502(b)(6) of the Bankruptcy
code.
19.6. Notwithstanding any other provision of this Sublease, any assignment or
sublease shall comply with the provision of Article 25 including the notice
requirements of Condition 10.8 of the FFA (as that term is defined in Section
25.8 of this Sublease).
19.7. Mortgages. Subject to the provisions o[_] this Sublease and Condition 21
of the Master Lease, Sublessee shall have the right, at any time during the term
of this Sublease, to encumber its estate in the Subleased Premises pursuant to
one or more mortgages or deeds of trust ("Subleasehold Mortgage") only to
provide financing as set forth herein. Any right granted to Sublessee to
encumber its estate is the Subleased Premises through grant of a Subleasehold
-43-
Mortgage shall be subject to the requirement that (i) the maximum amount
o(Pounds) any permanent or refinance Subleasehold Mortgage shall not exceed
eighty percent (80%) of the appraised fair market value of the Subleased
Premises; including the Facility; and (ii) the maximum amount of any permanent
or refinance Subleasehold Mortgage on the land area of the Subleased Premises,
excluding the Facility, shall not exceed one hundred percent (100%) of the total
cost of any authorized capital improvements with ~ a useful life in excess of
five (5) years. No Subleasehold Mortgage shall extend to or affect the fed, the
reversionary interest or the estate of Sublessor and/or the Air Force in or to
any land, building or improvements existing or subsequently constructed on the
Subleased Premises. No Subleasehold Mortgage shall be binding upon Sublessor
and/or the Air Force in the enforcement of its rights and remedies herein and by
law provided, unless, and until a copy thereof shall have been delivered to
Sublessor and the Air Force and such mortgage is authorized under this Section
19.7. Sublessor and Sublessee agree that so long as any authorized Subleasehold
Mortgage is a lien on Sublessee's estate in the Subleased Premises, the
mortgagee or beneficiary thereunder ("Subleasehold Mortgagee") shall have all of
the following rights:
(1) If Sublessee shall have delivered to Sublessor prior written notice of
the address of any Subleasehold Mortgagee, Sublessor will give to the
Subleasehold Mortgagee a copy of any notice under this Sublease at the time of
giving such notice to Sublessee, and will give to the Subleasehold Mortgagee
notice received by Sublessor of any rejection of this Sublease by the trustee in
bankruptcy of Sublessee or by Sublessee as debtor-in-possession. In such case no
termination of this Sublease or termination o[_] Sublessee's right of possession
of the Subleased Premises or reletting of the Subleased Premises by Sublessor
predicated on the giving of any notice shall be effective unless Sublessor gives
to the Subleasehold Mortgagee written notice oz a copy of its notice to
Sublessee of such default or termination, as the case may be. Notices, demands
and requests from Sublessor to the Subleasehold Mortgagee shall be mailed to the
address given for Sublessor by certified or registered mail and notices, demands
and requests from the Subleasehold Mortgagee to Sublessor shall be delivered in
the manner and to the address as specified in Article 23 hereof.
(2) In the event of any default by Sublessee under the provisions of this
Sublease, the Subleasehold Mortgagee will have the same concurrent grace periods
as are given Sublessee for remedying such default or causing it to be remedied,
plus, its each case, an additional period of thirty (30) days after the
expiration thereof or after Sublessor has served a notice or a copy of a notice
of default upon the Subleasehold Mortgagee, whichever is later.
(3) In the event Sublessee shall default under any of the previsions of
this Sublease, the Subleasehold Mortgagee, without prejudice to its rights
against Sublessee, shall have the right to cure such default within the
applicable grace periods provided for in the preceding paragraph of this Section
whether the same consists of the failure to pay rent or the failure to perform
any other matter or thing which Sublessee is hereby required to do of perform,
and Sublessor shall accept such performance on the part of the Subleasehold
Mortgagee as though the same had been done or performed by Sublessee. For such
purpose Sublessor and Sublessee hereby authorize the Subleasehold Mortgagee to
enter upon the Subleased Premises and to exercise any of Sublessee's rights and
powers under this Sublease, and subject to the provisions of this Sublease,
under the Subleasehold Mortgage,
-44-
(4) The term "incurable default" as used herein means any default which
cannot be cured by a Subleasehold Mortgagee. The term "curable default" means
any default under this Sublease which is not an incurable default. In the event
of any curable default under this Sublease, and if prior to the expiration of
the applicable grace period specified in subparagraph (2) of this Section, the
Subleasehold Mortgagee shall give Sublessor written notice that it intends to
undertake the curing of such default, or to cause the same to be cured, or to
exercise its rights to acquire the leasehold interest of Sublessee by
foreclosure or otherwise, and shall immediately commence and then proceed with
all due diligence to do so, whether by performance on behalf of Sublessee of its
obligations under this Sublease, or by entry on the Subleased Premises by
foreclosure or otherwise, then Sublessor will not terminate or take any action
to effect a termination of this Sublease or re-enter; take possess6on of or
relet the Subleased Premises or similarly enforce performance of this Sublease
as long as the Subleasehold Mortgagee is, with all due diligence and in good
faith, engaged in the curing of such default, or effecting such foreclosure,
provided, however, that the Subleasehold Mortgagee shall not be required to
continue such possession or continue such foreclosure proceedings if such
default shall be cured, Nothing herein shall preclude Sublessor from terminating
this Sublease with respect to any additional default which shall occur during
the aforesaid period of forbearance arid not 1;e remedied within the period of
grace, if any, applicable to any such additional default provided that Sublessor
provides the Subleasehold Mortgagee with notice and opportunity to cure any such
additional default.
(6) In the event that this Sublease is terminated by Sublessor on account
of any incurable default or in the event Sublessee's interest under this
Sublease shall be sold, assigned, oz transferred pursuant to the exercise of any
remedy of this Sublease or pursuant to judicial proceedings, and if (i) no rent
or other charges shall then be due and payable by Sublessee under this Sublease,
and (ii) the Subleasehold Mortgagee shall have arranged to the reasonable
satisfaction of Sublessor to cure any curable default of Sublessee under this
Sublease, then Sublessor, within thirty (30) days after receiving a written
request therefor, which shall be given within sixty (60) days after such
termination or transfer and upon payment to it of all expenses, including
attorney's fees, incident thereto, Sublessor will execute and deliver a new
lease of the Subleased Premises to the Subleasehold Mortgagee or its nominee or
to the purchaser, assignee or transferee, as the case may be, for the remainder
of the term of this Sublease, containing the same covenants, agreements, terms,
provisions and` limitations as are contained herein. Upon the execution and
delivery of such new lease, .the new tenant, in its own name or in the name of
Sublessor may take all appropriate steps as shall be necessary to remove
Sublessee from the Subleased Premises, but Sublessor shall not be subject to any
liability for the payment of fees, including reasonable attorney's fees, costs
or expenses in connection therewith; and said new tenant shall pay all such
fees, including attorney's fees, costs and expenses or, on demand, make
reimbursements therefor to Sublessor.
(6) In the event a default under the Subleasehold Mortgage shall have
occurred, the Subleasehold Mortgagee may exercise, with respect to the Subleased
Premises, any right, power or remedy under the Subleasehold Mortgage, which is
not in conflict with the provisions of this Sublease. Any Subleasehold Mortgagee
shall be liable to perform the obligations herein imposed on Sublessee only
dozing the period it is in possession or ownership of the leasehold estate
created hereby.
-45-
(7) This Sublease may be assigned, with the consent of Sublessor, which
consent shall not be unreasonably withheld or delayed, to or by the Subleasehold
Mortgagee or its nominee, pursuant to foreclosure or similar proceedings.
(8) No surrender (except a surrender upon the expiration of the term of
this Sublease or upon termination by Sublessor pursuant and subject to the
provisions of this Sublease) by Sublessee to Sublessor of this Sublease, or of
the Subleased Premises, or any pact thereof, or of any interest therein, and no
termination of this Sublease by Sublessee shall be valid of effective, and
neither this Sublease nor any of the terms hereof may be amended, modified,
changed or canceled without prior written consent of the Subleasehold Mortgagee.
Notwithstanding any provision of this Sublease to the contrary, no
refinancing of any existing subleasehold mortgage shall be effective without the
advance written approval of Sublessor which approval shall not be unreasonably
withheld or delayed.
END OF ARTICLE 19
-----------------
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ARTICLE 20.
[RESERVED]
----------
-47-
ARTICLE 21.
ESTOPPEL CERTTFICATES AND FINANCIAL STATEMENTS
----------------------------------------------
21.1. Sublessor, on or before twenty (20) days following receipt of a written
request from Sublessee, and Sublessee, on or before twenty (20) days following
receipt of a written request from Sublessor, shall deliver to the party malting
such request a statement in writing certifying that this Sublease is unmodified
and in full force and effect (or if there shall have been modifications that the
same is in full force and effect as modified and stating the modifications) and
the date to which the rent and any other deposits or charges have been paid and
stating whether or not, to the best knowledge of the party executing such
certificate (based on reasonable investigation), the party requesting such
statement is in default in the performance of any covenant, agreement or
condition contained in this Sublease and, if so, specifying each such default of
which the executing party may have knowledge,
21.2. Sublessee, on or before twenty (20) days following receipt of a written
request from Sublessor, shall deliver to Sublessor its annual financial
statements of Sublessee and any parent, subsidiary, or affiliated entities as
requested by Sublessor.
END OF ARTICLE 21
-----------------
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ARTICLE 22.
INVALIDITY OF PARTICULAR PROVISIONS
-----------------------------------
If any term or provision of this Sublease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Sublease, or the application of such term oz provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shah not be affected thereby, and each term and provision of this
Sublease shall be valid and be enforced to the fullest extent permitted by law.
END OF ARTICLE 22
-----------------
-49-
ARTICLE 23.
NOTICES
-------
Whenever Sublessor or Sublessee shall desire to give or serve upon the
other any notice, demand, request or other communication with respect to this
Sublease or with respect to the Subleased Premises each such notice, demand,
request or other communication shall be-in writing and shall not be effective
for any purpose unless same shall be given or served by personal delivery to the
party or parties to whom such notice, demand, request or other communication is
directed or by mailing the same, in duplicate, to such party or parties by
certified mail, postage prepaid, return receipt requested, addressed as follows:
If to Sublessor: Peace Development Authority
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Executive Director
If to Sublessee: 000 Xxxxxxxxx Xxxxx, XXX
Xxxxx 000
000 Xxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
or at such other address or addresses as Sublessor or Sublessee may from time to
time designate by notice given by certified mail.
Every notice, demand, request or communication hereunder sent by mail shall
be deemed to have been given or served as of the second business day following
the date of such mailing.
END OF ARTICLE 23
-----------------
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ARTICLE 24.
QUIET ENJOYMENT
---------------
Sublessor covenants and agrees that Sublessee, upon paying the rent and au
other charges herein provided for and observing and keeping all covenants,
agreements, and conditions of this Sublease on its part to be observed and kept,
shall quietly have and enjoy the Subleased Premises during the term of this
Sublease without hindrance or molestation by anyone claiming by or through
Sublessor, subject, however, to the exceptions, reservations and conditions of
this Sublease including, but not limited to the provisions of Article 25,
Environmental Protection.
END OF ARTICLE 24
-----------------
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ARTICLE 25.
ENVIRONMENTAL PROTECTION
------------------------
25.1. Sublessee and any sublessee or assignee of Sublessee shall comply with
all federal, state, and local laws, regulations, and standards that are or may
become applicable to Sublessee's or sublessee's or assignee's activities at the
Subleased Premises, including but not limited to, the applicable environmental
laws and regulations identified in Exhibit "E", as amended from time to time.
25.2. Sublessee and any sublessee or assignee of Sublessee shall be solely
responsible for obtaining at their cost and expense any environmental permits
required for their operations under this Sublease or any sublease or assignment,
independent of any existing Airport permits.
25.3. Sublessee shall indemnify, defend and hold harmless Sublessor and the Air
Force against and from all claims, judgments, damages, penalties, fines, costs
and expenses, liabilities and losses (including, without limitation, diminution
in value of the Premises, damages for the loss or restriction on the use of the
Premises, and sums paid in settlement of claims, attorneys' fees, consultants'
fees and expects' fees, resulting or arising from discharges, emissions, spills,
releases, storage, or disposal of any Hazardous Substances as defined in Section
25.5, or any other action or omission by the Sublessee, or any sublessee or
assignee of the Sublessee, giving risk t4 Sublessor or' Air Force liability,
civil or criminal, or responsibility under federal, state or local environmental
laws.
This indemnification of Sublessor and Air Force by Sublessee includes,
without limitation, any and all claims, judgment, damages, penalties, fines,
costs and expenses, liabilities and losses incurred by Sublessor or Air Force in
connection with any investigation of site conditions, or any remedial or removal
action or other site restoration work required by and federal, state or local
governmental unit or other person for or pertaining to any discharges,
emissions, spills, releases, storage or disposal of Hazardous Substances arising
or resulting from any act or omission of the Sublessee or any sublessee or
assignee of the Sublessee at the Subleased Premises after the Occupancy Date.
"Occupancy Date" as used herein shall mean the earlier of the first day of
Sublessee's occupancy or use of the Subleased Premises ox the date of execution
of this Sublease. "Occupancy" or "Use" shall mean any activity or presence
including preparation and construction in or upon the Subleased Premises or any
portion thereof.
The provisions of this Section shall survive the expiration or termination
of the Sublease, and the Sublessee's obligations hereunder shall apply whenever
the Sublessor or the Air Force incurs costs or liabilities for the Sublessee's,
its sublessees or licensees actions of the types described in this Article 25.
25.4. Notwithstanding any other provision of this Sublease, Sublessee and its
suhlessee5 and assignees do not assume any liability or responsibility for
environmental impacts and damage caused by the use by the Air Force of toxic or
hazardous wastes, substances or materials on any portion of the Airport,
including the Subleased Premises. The Sublessee and its sublessees and assignees
have no obligation to undertake the defense, remediation and cleanup, including
the liability and responsibility for the costs of damages, penalties, legal and
investigative services
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solely arising out of any claim or action in existence now, or which may be
brought in the future by any person, "`including governmental units against the
Air Force, because of any use of, or release from, any portion of the Airport
(including the Subleased Premises) of any toxic or hazardous wastes, substances
or materials prior to the occupancy Date. Furthermore, the parties recognize and
acknowledge the obligation of the Air Force to indemnify the Sublessor and
Sublessee to the extent required by the provisions of Public Law No.101-511,
Section 8056 and Public Law No. 102-484, as amended.
1n addition, Sublessor shall indemnify, defend and xxxxx harmless Sublessee
against and from any and all claims, judgments, damages, penalties, fines, costs
and expenses, liabilities and losses (including, without limitation, diminution
in value of the Premises, damages for the loss or restriction on the use of the
Premises, and sums paid in settlement of claims, attorneys' fees, consultants'
fees and experts' fees), resulting or arising from discharges, emissions,
spills, releases, storage or disposal of Hazardous Substances, or any other
action by Sublessor giving rise to Sublessee liability or responsibility under
federal, state or local environmental laws. This provision shall survive the
expiration or termination of the Sublease, and the Sublessor's obligations
hereunder shall apply whenever the Sublessee incurs costs or liabilities for the
Sublessor's actions of the types described in this Article.
The provisions of this Section 25.4 do not relieve the Sublessee, its
sublessees or licensees of any obligation or liability with regard to third
parties or regulatory authorities by operation of law.
25.5. As used in this Sublease, the. term. "Hazardous Substances" means any
hazardous or toxic substance, material or waste, oil or petroleum product, which
is or becomes regulated by any local governmental authority, the State of New
Hampshire of-.the United States Government. The term "Hazardous Substances"
includes, without limitation,-any; material or substance which is (i) defined as
a "hazardous waste," Under New Hampshire RSA ch. 147-A, (ii) defined as a
"hazardous substance" under New Hampshire RSA ch. 147-B, (iii) oil, gasoline or
other petroleum product, (iv) asbestos, (v) listed under or defined as hazardous
substance pursuant to Parts Env-Wm 110, 211-216, 353, 400-100 ("Hazardous Waste
Rules") of the New Hampshire Code of Administrative Rules, (vi) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. (S)1317, (vii) defined as a "hazardous waste" pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C.
(S)6901 et seq. (42 U.S.C (S)6903), or (viii) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (S)9601 et seg. (42rU.S.C. (S)9601?
and (ix) so defined in the regulations adopted and publications promulgated
pursuant to any of such laws, or as such laws or regulations may be further
amended, modified of supplemented (collectively "Hazardous Substance Laws").
As used in this Sublease, the terms "release" and "storage" shall have the
meanings provided in RSA 147-8:2, as amended, and the term "disposal" shall have
the meaning provided in RSA 147-A:2.
25.6. Sublessor's rights under this Sublease specifically include the right for
Sublessor to inspect the Subleased Premises and any buildings or other
facilities thereon for compliance with
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environmental, safety, and occupational health laws and regulations, whether or
not the Sublessor is responsible for enforcing them. Such inspections are
without prejudice to the right of duly constituted enforcement officials to make
such inspections.
25.7. Notwithstanding any other provision of this Sublease, Sublessor is not
responsible for any removal or containment of asbestos. If Sublessee and any
sublessee or assignee intend to make any improvements, alterations or repairs,
including demolition, that require the removal of asbestos, an appropriate
asbestos removal and disposal plan must be incorporated in the plans and
specifications and submitted for prior approval. The asbestos disposal plan
shall identify the proposed disposal site for the asbestos. In addition, non-
friable asbestos which becomes friable through or as a consequence of the
activities of Sublessee will be abated by Sublessee at its sole cost and
expense.
25.8. Sublessor and Sublessee acknowledge that the Airport has been identified
as a National Priority List (NPL) Site under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) of 1980, as amended. Sublessee
acknowledges that Sublessor has provided it with a copy of the Xxxxx Federal
Facility Agreement ("FFA") entered into by EPA, and the Air Force on April 24,
1991, and Modification No. 1 thereto, effective March 18, 1993, agrees that it
will comply with the terms of the FFA to the extent the same may be applicable
to the Subleased Premises and that should any conflict arise between the terms
of the FFA and the provisions of this Sublease, the terms of the FFA will take
precedence. The Sublessee further agrees that the Sublessor assumes no liability
to the Sublessee or any sublessee or assignee of Sublessee should implementation
of the FFA interfere with their use of the Subleased Premises. The Sublessee and
its sublessee(s) and assignees) shall have no claim on account of any such
interference against the Sublessor or any officer, agent, employee or contractor
thereof, other than for abatement of rent.
25.9. The Air Force, EPA, and NHDES and their officers, agents, employees,
contractors, and subcontractors have the right, upon reasonable notice to the
Sublessee and any sublessee or assignee, to enter upon the Subleased Premises
for the purposes enumerated in this subparagraph and for such other purposes
consistent with the FFA:
(1) to conduct investigations and surveys, including, where necessary,
drilling, soil and water sampling, testpitting, testing soil borings
and other activities related to the Peace Installation Restoration
Program ("IRP'") or the FFA;
(2) to inspect field activities of the Air Force and its contractors and
subcontractors in implementing the 1RF or the FFA; ,
(3) to conduct any test or survey required by the EPA or NHDES relating to
the implementation of the FFA or environmental conditions at the
Subleased Premises or to verify any data submitted to the EPA or NHDES
by the Air Force relating to such conditions;
(4) to conduct, operate, maintain or undertake any other response or
remedial action as required or necessary under the IRP or the FFA,
including, but not limited to monitoring xxxxx, pumping xxxxx and
treatment facilities.
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25.10. Sublessee and its sublessees and assignees agree to comply with the
provisions of any health or safety plan in effect under the IRP or the FFA
during the course of any of the above described response or remedial actions.
Any inspection, survey, investigation, or other response or remedial action
will, to the extent practicable, be coordinated with representatives designated
by the Sublessee and any sublessee or assignee. Sublessee and any sublessee or
assignee shall have no claim on account of such entries against the United
States or the State as defined in FFA or any officer, agent, employee,
contractor, or subcontractor thereof
25.11. Sublessee further agrees that in the event of any authorized sublease or
assignment of the Subleased Premises, it shall provide to the Air Force, EPA and
NHDES by certified mail a copy of the agreement of sublease or assignment of the
Subleased Premises within fourteen (14) days after the effective date of such
transaction. Sublessee may delete the financial terms and any other proprietary
information from any sublease or assignment submitted to the above mentioned
entities.
25.12. The Airport air emissions offsets and Air Farce accumulation points for
hazardous and other wastes will not be made available to Sublessee. Sublessee
shall be responsible far obtaining from some other source(s) any air pollution
credits that may be required to offset emissions resulting from its activities
under the Sublease.
25.13. Any permit required under Hazardous Substance Laws for the' management
of Hazardous Substances stored or generated by Sublessee or any sublessee or
assignee of Sublessee shall be obtained by Sublessee or its sublessees or
assignee and shall be limited to generation and transportation Any violation of
this requirement shall be deemed a material breach of this Sublease. Sublessee
shall provide at its own expense such hazardous waste storage facilities,
complying with all laws and regulations; as it needs for management of its
hazardous waste.
25.14. Sublessee, and any sublessee or assignee of Sublessee whose operations
utilize Hazardous Substances, shall have a completed and approved plan for
responding to Hazardous Substances spills prior to commencement of operations on
the Subleased Premises. Such plan shall comply with changes in site conditions
or applicable requirements and shall be updated from time to time, as may be
required to comply with changes is site conditions or applicable requirements
and shall be approved by agencies xxxxxx regulatory jurisdiction over such plan,
Such plan shall be independent of, but not inconsistent with, any plan or other
standard of Sublessor applicable to the Airport and except for initial fire
response and/or spill containment, shall not rely on use of the Airport or
Sublessor personnel or equipment. Should the Sublessor provide any personnel or
equipment, whether for initial fire response and/or spill containment or
otherwise, on request of the Sublessee, or because the Sublessee was not, in the
opinion of Sublessor, conducting timely cleanup actions, the Sublessee agrees to
reimburse the Sublessor for its costs.
25.15. Sublessee, and any sublessee or assignee of Sublessee, must maintain and
make available to Sublessor, the Air Force, EPA and NHDES all records,
inspection logs, and manifests that track the generation, handling, storage,
treatment and disposal of hazardous waste, as well as all other records required
by applicable laws and requirements. The Sublessor and the Air Force reserve the
right to inspect the Subleased Premises and Sublessee's, its sublessee's or
assignee's
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records for compliance with Federal, State, local laws, regulations, and other
requirements relating to the generation, handling, storage, treatment and
disposal of hazardous waste, `as well as the discharge or release of hazardous
substances. Violations may be reported by Sublessor and the Air Force to
appropriate regulatory agencies, as required by applicable law. The Sublessee,
its sublessees or assignees shall be liable for the payment of any fines and
penalties or costs which may accrue to the Government or Sublessor as a result
of the actions of Sublessee, its sublessees or assignees, respectively.
25.16. Sublessee, its sublessees and assignees agree to comply with the
provisions of any Wetlands Management Plan in effect at Xxxxx, a copy of which
is attached hereto and incorporated herein as Exhibit H. Sublessee, its
sublessees and assignees will minimize the destruction, loss or degradation of
wetlands on the Subleased Premises. Sublessee, its sublessees and assignees will
obtain prior written approval from Sublessor and the Air Force before conducting
any new construction in wetland areas. Sublessee, its sublessees and assignees
will obtain all necessary permits or waivers under Section 404 of the Clean
Water Act and the New Hampshire Fill and Dredge in Wetlands Act
25.17. Prior to the development of any portion of the Subleased Premises on
which a wetland has been identified in the Final Supplemental Environmental
Impact Statement dated August 1995 ("SEIS"), the Sublessee, its sublessees and
assignees, as applicable, shall, if one has not previously been completed,
perform a wetland delineation. `
25.18. Prior to the storage, mixing, or application of any pesticide, as that
term is defined under the Federal Insecticide, Fungicide, and Rodenticide Act,
the Sublessee, its su~6lessees and assignees shall prepare a plan for storage,
mixing and application of pesticides ("Pesticide Management Plan"). The
Pesticide Management Plan shall be sufficient to meet all applicable Federal,
State and local pesticide requirements. The Sublessee, its sublessees and
assignees shall store, mix and apply all pesticides within the Subleased
Premises only in strict compliance with the Pesticide Management Plan. The
pesticides will only be applied by a licensed applicator.
25.19. The Sublessee, its sublessees and assignees must notify the Sublessor
and the Site Manager of its intent to possess, store, or use any licensed or
licensable source or byproduct materials, as those terms are defined under the
Atomic Energy Act and its implementing regulations; of Sublessee's, its
sublessees and assignees intent to possess, use, or stone radium; and of
Sublessee's, its sublessees and assignees intent to possess or use any equipment
producing ionizing radiation and subject to specific licensing requirements or
other individual regulations, at least sixty X60) days prior to the entry of
such materials or equipment upon the Airport. Upon notification, the Sublessor
and the Site Manager may impose such requirements, including prohibition of
possession, use, or stooge, as deemed necessary to adequately protect health and
human environment. Thereafter, the Sublessee must notify the Sublessor and the
Site Manager of tie presence of all licensed or licensable source or other
byproduct materials, of the presence of all radium, and of the presence of all
equipment producing ionizing radiation and subject to specific licensing
requirements or other individual regulation; provided, however, that the
Sublessee, its sublessees and assignees need not make either of the above
notifications to the Sublessor and the Site Manager with respect to source and
byproduct material which is exempt froze regulation under the Atomic Energy Act.
The Sublessee shall not, under any circumstances, use, own, possess or allow the
presence of special nuclear material on the Subleased Premises.
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25.20. The Sublessee, its sublessees and assignees acknowledge that lead-based
paint may be present in and on facilities within the Subleased Premises. The Air
Force may conduct surveys to determine the existence and extent of any possible
lead-based paint in or on the Subleased Premises. Prior to beginning any
Alterations, other construction ox construction related work, (to include paint
stripping or sanding), excavating, demolition, or restoration, the Sublessee,
any sublessee or assignee must test any paint which would be disturbed unless a
conclusive determination has been made that lead-based paint is not present. if
paint is lead-based, the Sublessee, any sublessee or assignee is required to
handle it in accordance with Title X and all applicable Federal, State and local
laws and regulations at its own expense. The Sublessee is required to ensure
that any lead based paint is maintained in good condition.
25.21. The Sublessee acknowledges that chlordane was used at selected housing
units as described in Environmental Condition Report, Exhibit D-1 of the Master
Lease. The Sublessee; its sublessees or assignees will follow all applicable
laws and regulations should-the Sublessee, its sublessee or assignee choose to
disturb or excavate any of this material. Any cost associated with this action
shall be at the Sublessee's, its sublessee's or assignee's expense.
END OF ARTICLE 25
-----------------
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ARTICLE 26.
MISCELLANEOUS
-------------
26.1. All rent and all other sums which may from time to time become due and
payable by Sublessee to Sublessor under any of the provisions of this Sublease
shall be made payable to the "Xxxxx Development Authority" and forwarded by the
Sublessee direct to Sublessor's Executive Director at the address specified in
Article 23. All such rent and other sums if not paid on the due date and the
expiration of any applicable notice and cure period shall bear interest from and
after the due date thereof at the higher of the then current rate applied to
legal judgments by the courts of the State of New Hampshire or the rate of prune
plus 4% per annum; provided, however, that such interest shall in no event
exceed the maximum rate permitted by law: "
26.2. In all cages the language in all parts of this Sublease shall be
construed simply, according to its fair meaning and not strictly for or against
Sublessor or Sublessee.
26.3. The word titles underlying the Article designations contained herein are
inserted solely for convenience and under no circumstances are they or any of
them to be treated or construed as any part of this instrument
26.4. In any action -or proceeding which either Party may take to enforce such
Parry's rights hereunder, whether prior to or after breach or termination, or to
which such Party may be made a party because of any matters arising or growing
out of this Sublease, and due to the act or default of the other, the Party
whose act or default caused the other Party, without fault to become involved in
such litigation, or who shall be defeated in such litigation, agrees to pay all
costs incurred by the winning or other party therein, including reasonable
attorneys' fees.
26.5. If Sublessee should remain in possession of the Subleased Premises after
the expiration of the term of this Sublease and without executing a new lease,
then such holding over shall be construed as a tenancy from month to month,
subject to all the conditions, provisions and obligations of this Sublease
insofar as the same are applicable to a month to month tenancy.
26.6. The individual. executing this Sublease on behalf of Sublessee represents
and warrants that he or she is duly authorized to execute and deliver this
Sublease on behalf of said entity; and that this Sublease is binding upon said
entity in accordance with its terns, `A Certificate of Existence issued by the
New Hampshire Secretary of State is attached to this Sublease as Exhibit F.
26.7. This Sublease covers in full each and every agreement of every kind or
nature whatsoever between the Parties hereto concerning the Subleased Premises
and all preliminary negotiations and agreements of every kind or nature
whatsoever with respect to the Subleased Premises; and no other person, firm or
corporation has at any time had any authority from Sublessor to make any
representations or promises on behalf of Sublessor, sari Sublessee expressly
agrees that if any such representations or promises have been made by Sublessor
or others, Sublessee hereby waives all right to rely thereon. No verbal
agreement or implied covenant shall be held to vary the provisions hereof, any
statute, law, or custom to the contrary notwithstanding. No provision of this
Sublease may be amended or added to except by an agreement in writing signed by
the
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parties hereto or their respective successors in interest. Sublessee
acknowledges that it has read this Section and understands it to be a waiver of
any right to rely on any representations or agreements not expressly set forth
in this Sublease.
26.8. Subject to the provisions hereof, this Sublease shall be binding upon and
shall inure to tire benefit of the Parties hereto and their respective
successors and assigns, and wherever a reference in this Sublease is made to
either of the Parties hereto such reference shall be deemed to include, wherever
applicable, also a reference to the successors and assigns of such party, as` if
in every case so expressed.
26.9. Nothing contained in this Sublease shall be deemed or construed by the
Parties hereto or by any third person to create the relationship of principal
and agent or of partnership or of joint venture or of any association between
Sublessor and Sublessee; and neither the method of computation of rent nor any
ether provision contained in this Sublease nor any acts of the Parties hereto
shall be deemed to create any relationship between Sublessor and Sublessee other
than the relationship of landlord and tenant.
26.10. Sublessee hereby acknowledges that late payment by Sublessee to
Sublessor of rent and other sums due under this Sublease will cause Sublessor to
incur additional costs not contemplated by this Sublease, the exact amount of
which will be extremely difficult to ascertain- Such additional costs include,
without limitation, processing and accounting charges, and late charges which
may be imposed upon Sublessor by the terms of the mortgage or deed of bust
covering the Premises. Therefore, if any installment of rent or nay other sum
due from Sublessee shall not be received in or within seven (7) days of the date
that such amount shall be due, Sublessee agrees to pay, and shall pay, to
Sublessor a late charge equal to five percent (5%) of the overdue amount. The
Parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Sublessor will incur by reason of late payment by
Sublessee. Acceptance of such late charge by Sublessor shall in no event
constitute a waiver of Sublessee's default with respect to such overdue amount
or prevent Sublessor from exercising any or all of the other rights and remedies
granted under this Sublease,
26.11. Each xxxxx warrants to the other that it has had no dealing with any
real estate broker or agent in connection with the negotiation of this Sublease.
26.12. This Sublease shall be construed and enforced in accordance with the
laws of the State of New Hampshire.
26.13. Any actions or proceedings with respect to any matters arising under or
growing out of this Sublease shall be instituted and prosecuted only in courts
located in the State of New Hampshire. Notwithstanding any other provision of
this Sublease, no provision of this Sublease shall be deemed to constitute or
effect a waiver of the sovereign immunity of the state of Never Hampshire and no
provision of this Sublease, other than the provisions of Article 25 in which
Sublessor agrees to indemnify Subles5ee, shall be deemed to constitute or effect
a waiver of the sovereign immunity of Sublessor as a body politic and corporate
of the State of New Hampshire. The sovereign immunity of the State of New
Hampshire is reserved to the State of New Hampshire to the fullest extent
allowed under law and the sovereign immunity of Sublessor is reserved to
Sublessor to the fullest extent allowed under law with the sole exception of
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Sublessor's indemnification obligations to Sublessee under Article 25, provided,
however, that Sublessor agrees to waive immunity for contractual claims under
this Sublease to the extent permitted by New Hampshire RSA Ch. 491:8, as the
same may be amended.
26.14. This instrument may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument ,
26.15. Sublessee shall faithfully observe and comply with such rules and
regulations as Sublessor may adopt for the operation of the Airport, which rules
and regulations are rea6nable and nondiscriminatory as well as all modifications
thereof and additions thereto. Sublessor shall not be responsible to Sublessee
for the violation or nonperformance by any other tenant of Sublessor` of any of
such Rules and Regulations.
26.16. Sublessee agrees to conform to such additional provisions required, from
time to time, by the FAA ("FAA Requirements") or its successor with respect to
the operation of the Airport, or a portion thereof. The current FAA Requirements
are attached hereto as Exhibit "D" and incorporated herein by reference.
26.17. This Sublease is subject and subordinate to any agreements heretofore or
hereafter made between Sublessor and the United States or the Air Force, the
execution of which is required to enable or permit transfer of rights or
property to Sublessor for airport purposes or expenditure of federal grant foods
for airport improvement, maintenance or development, including, without
limitation, the Application and Acceptances Master Lease and FFA. Sublessee
shall abide by requirements of any agreement between Sublessor and the United
States or the Air Force applicable to the Subleased Premises or Sublessee's
activities at the Airport and shall consent to amendments and modifications of
this Sublease if required by such agreements or as a condition of Sublessor's
entry into such agreements; provided, however, that no such agreement shall
modify or alter any obligation of Sublessee with respect to rent or additional
rent payments due by Sublessee to Sublessor under this Sublease.
26.18. Sublessor, in its sole discretion, shall determine and may front time to
tone change the routes of surface ingress and egress connecting the Subleased
Premises. Sublessor also reserves the right to further develop the Airport, or
such portion of the Airport as is owned or controlled by Sublessor, as it sees
fit, regardless of the desires or views of Sublessee and without interference or
hindrance.
26.19. The Sublessee herein covenants by and for itself, its heirs, executors,
administrators, and assigns, and all persons claiming under or through it, that
this Sublease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, national origin, or
ancestry, in the leasing, -subleasing, transferring, use, occupancy, tenure, or
enjoyment of the Premises herein leased nor shall the Sublessee, or any person
claiming Under or through it, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location,
number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees in the Subleased Premises herein leased.
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26.20. All obligations of Sublessee to indemnify, defend and hold harmless
Sublessor and to make any monetary payment to Sublessor, shall survive the
termination or expiration of this Sublease.
26.21. Sublessor and Sublessee shall, at the request of either one, promptly
execute a Notice of Lease with respect to this Sublease in forth suitable for
recording, setting forth the names and addresses of the parties, a description
of the Premises, the term and any extension teens, any options or rights of
first refusal, and any other terms and provisions hereof as either xxxxx may
request excepting for the rental and financial terms.
END OF ARTICLE 26
-----------------
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ARTICLE 27.
GUARANTIES
----------
27.1. At the time of execution of this Sublease, Sublessee shall provide
Sublessor with Guaranties in the form set forth in Exhibit G executed by Xxxx
Xxxx, Xxxxxxx Inane, Xxxxxxx X Xxxxxx, Xxxxxx Xxxx, and Xxxxxxx X. Whales (each
a "Guarantor"), the effect of which will be to guarantee independently the
obligations of Sublessee under this Sublease as provided and subject to the
conditions and limitations set forth in etch Guarantor's guaranty.
END OF ARTICLE 27
-----------------
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EXECUTION
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease
effective as of the 4th day of December______, 2000.
XXXXX DEVELOPMENT AUTHORITY
By: /s/ Illegible
--------------------------
Its: Exec. Dir.
--------------------------
"Sublessor"
000 XXXXXXXXX XXXXX, LLC
By: /s/ Xxxxxx X. Xxxx
--------------------------
Its: Manager
--------------------------
"Sublessee"
STATE OF NEW HAMPSHIRE
COUNTY OF Rockingham, ss
-------------
On this 4th day of December______________, 2000, before me, Xxxxxxx X. Xxxxx
__________, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Katz_______________, personally known tome (or proved tome on
the basis of satisfactory evidence) to be the of 273 CORPORATE DRIVE, LLC, and
on oath stated that he was authorize to execute this instrument and acknowledged
it to be his free and voluntary act for the uses and purposes set forth herein.
/s/ Xxxxxxx X. Xxxxx
----------------
Notary Public in and for said County, and State
Printed Name: Xxxxxxx X. Xxxxx
----------------
My commission expires: July 14, 0000
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXX, ss.
One this 5th day of December____, 2000, before me, Xxxxx X. XxxXxxxxx _____, a
Notary Public in and for said County and fate, personally appeared Xxxxxx X.
Xxxxx, personal y known to me (or proved to me on the basis of satisfactory
evidence) to be the Executive Director of the Xxxxx Development Authority and on
oath stated that he was authorized to execute this instrument and acknowledged
it to be his free and voluntary act for the uses and purposes set forth herein.
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/s/ Xxxxx X. XxxXxxxxx
---------------------
Notary Public in and for said County, and State
Printed Name: Xxxxx X. XxxXxxxxx
-------------------
My commission expires: February 19, 2005
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EXHIBIT 1
APPLICATION AND ACCEPTANCE
-65-
EXHIBIT 2
MASTER LEASE BETWEEN SUBLESSOR
AND AIR FORCE
-66-
EXHIBIT 3
FEDERAL FACILITIES AGREEMENT
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EXHIBIT "A"
PLAN DESIGNATING THE SUBLEASED PREMISES
(Page 1 of 1)
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MAPS
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EXHIBIT "A-2"
SITE PLAN
Plans on Files at the Xxxxx Development Authority
-------------------------------------------------
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EXHIBIT "B"
CONSTRUCTION PLANS
Sublessee to Provide
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EXHIBIT "C"
PLANS DESIGNATING INSTALLATION OF REQUIRED GRANITE SIGNPOSTS
(Page 1 of 1)
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MAP
The Granite posts will be installed as follows: Excavate the hole as shown when
backfilling make sure to compact the soil in 4" lids from bottom to top
thoroughly- This m.'11 prevent the granite post nom tilting.
Ensure street numbers are perpendicular to the road and the post is set 10' -
14' from the curb line. A dig permit front PD A Engineering is required to avoid
mishaps with underground utilities.
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EXHIBIT "D"
SUBLEASE PROVISIONS REQUIRED BY THE FEDERAL AVIATION ADMINISTRATION
1. Sublessee, for himself, his heirs, personal representatives; successors in
interest, and assigns, as a part of the consideration hereof, does hereby agree
that in the event facilities are constructed, maintained, or otherwise operated
on the Subleased Premises, for a purpose for which a United States Department of
Transportation ("DOT") program or activity is extended -or for another purpose
involving the provision of similar services or benefits, Sublessee shall
maintain and operate such facilities and services in compliance with all other
requirements imposed pursuant to Title 49, Code of Federal Regulations, DOT,
Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally
Assisted Programs of the Department of Transportation Effectuation of Title VI
of the Civil Rights Act of 1964, and as said Regulations may be amended.
2. Sublessee, for himself, his personal representative, successors in interest;
and assigns, as a part of the consideration hereof does hereby agree that: (i)
no person on the grounds of race, color, or national origin shall be excluded
from participation in, denied the benefits of, or otherwise be subjected to
discrimination in the use of said facilities; (ii) that in the construction of
any improvements on, over, or under such land and the furnishing of services
thereon no person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be excluded
from participation in, denied the benefits of, or otherwise be subject to
discrimination; and (iii) that the Sublessee shall use the premises in
compliance with all other requirements imposed by or pursuant to Title 49, Code
of Federal Regulations, Department of Transportation, Subtitle A, Office of the
Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the
Department of Transportation Effectuation of Title V'1 of the Civil Rights Act
of 1964, and as said Regulation may be amended.
3. That in the event of breach of any of the above nondiscrimination covenants,
Sublessor shall have the tight to terminate the Sublease, and to reenter and
repossess said land and the facilities thereon, and hold the same as if said
lease, had never been made or issued. This provision does not become effective
until the procedures of 49 CFR Part 21 are allowed and completed including
expiration of appeal rights.
4. Sublessee shall furnish its accommodations and/or services on a fair, equal
and not unjustly discriminatory basis to all users thereof and it shall, charge
fair, reasonable and not unjustly discriminatory prices for each unit or
service; PROVIDED THAT the Sublessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates or other similar type of price reductions
to volume purchasers.
5. Non-compliance with Provision 4 above shall constitute a material breach
thereof and in the event of such noncompliance Sublessor shall have the right to
terminate this Sublease, and the estate hereby created without liability
therefore or at the election of the Sublessor or the United
-74-
States either or both of Sublessor or the United States shall have the right to
judicially enforce provisions.
6. Sublessee agrees that it shall insert the above five provisions ire any lease
agreement, by which said Sublessee grants a right ox privilege to any person,
firm or corporation to lender accommodations and/or services to the public on
the Subleased Premises.
7. Sublessee assures that it will undertake an affirmative action program as
required by 14 CFR Part 152, Subpart E, to insure that no person shall on the
grounds of race, creed, color, national origin, or sex be excluded from
participating in any employment activities covered in 14 CFR Part 152, Subpart
E. Sublessee assures that no person shall be excluded on these grounds from
participating in or receiving the services or benefits of any program or
activity covered by this subpart. Sublessee assures that it will require that
its covered suborganizations provide assurance to the Sublessor, that they
similarly will undertake affirmative action programs and that they will require
assurances from their suborganizations, as required by 14 CFR Part 152, Subpart
E, to the same effect.
8. Sublessor reserves the right to further develop or improve the landing area
of the airport as it sees fit, regardless of the desires or view of the
Sublessee and without interference or hindrance.
9. Sublessor reserves the right, but shall not be obligated to the Sublessee to
maintain and keep in repair the landing area of the airport and all publicly-
owned facilities of the airport, together with the right to direct and control
all activities of the Sublessee in this regard-
10. This Sublease shah be subordinate to the provisions-and requirements of any
existing or future agreement between the Sublessor and the United-. tat6s;l
relative; to the development; operation or maintenance of the airport.
11. There is hereby reserved to Sublessor, its successors and assigns, for the
use and benefit of the public, a right of flight for the passage of aircraft in
the airspace above the surface of the Subleased (remises. `(his public right of
flight shall include the right to cause in said airspace any noise inherent in
the operation of any aircraft used for navigation or flight through the said
airspace or landing at, taking off from or operation on the airport.
12. Sublessee agrees to comply with the notification and review requirements
covered in Part 77 of the Federal Aviation Regulations in the event future
construction of building is planned for the Subleased Premises, or in the event
of any planned modification or alteration, of any present or future building or
structure situated on Subleased Premises.
13. Sublessee, by accepting this Sublease expressly agrees for itself, its
successors and assigns that it shall not erect nor permit the erection of any
structure or object nor permit the growth of any tree on the land leased
hereunder above the mean sea level elevation of 251 feet. In the event the
aforesaid covenants are breached, Sublessor reserves the right to enter upon the
Premises and to remove the offending structure or object and cut the offending
tree, all of which shall be at the expense of the Sublessee.
14. Sublessee, by accepting this Sublease, agrees for itself its successors and
assigns that it will not make use of the Subleased Premises in any manner which
might interfere with the landing
-75-
and taking off of aircraft from the airport or otherwise constitute a hazard In
the event the aforesaid covenant is breached, Sublessor reserves the right to
enter upon the Subleased Premises, and cause the abatement of such interference
at the expense of the Sublessee.
15. It is understood and agreed that nothing herein contained shall be
construed to grant or authorize the granting of an exclusive right within the
meaning of Section 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349a).
16. This Sublease and all the provisions hereof shall be subject to whatever
right the United States Government now has or in the future may have or acquire,
affecting the control, operation, regulation and taking over of said airport or
the exclusive or non-exclusive use of the airport by the United States during
the time of war or national emergency.
-76-
EXHIBIT "D-1"
WASTEWATER/WATER IMPROVEMENTS
-00-
XXXX XX XXXXXXXXXX
Xxxx Xxxx, Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
(000) 000-0000 X 000 Fax (000) 000-0000
Xxxx X. Xxxxxxx
City Manager
August 17, 2000
Mr. Xxxxxx Xxxxx, Executive Director
Xxxxx Development Authority
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Dear Xxxxxx:
As you are aware, on August 2, 2000 Xxxxx Xxxxx sent a letter to Getry Deter
re9arftgthe cost for improvements to the sanity sewerwater system, at the Xxxxx
Tradeport. In that letter, he indicated that the total Cost of upgrading the
sanitary sewer system for the Tradeport would be $3,109,050. As you can see from
the attached letter, the maximum City share, is 570Z,080 and the maximum share
for FDA clients will be $2,406,970 for a total of $3,109,050, which will be the
maximum cost. If the City is eligible for SRF funding, we will pass those
savings along to the users.
As you are aware, I met with representatives from Flextronics on this matter and
they seem to be very satisfied with this arrangement.
I trust that this letter will be sufficient so that you can move forward otter
into your lease' agreements with your clients. If it is not, please advise ma as
w what additional. information you may require. .
Sincerely,
Xxxx X. Xxxxxxx
City Manager
JPB/jmk
Enclosure
cc: D. Xxxxx
X. Xxxxxx
L. Hinchea
X. Xxxxxxxxx
X. Xxxxxxxx
-78-
FOR ENGINEERING REVIEW PURPOSES ONLY
NOT A FINAL APPROVED DOCUMENT
Conceptual Sewer Plan ENGINEER'S OPINION OF COST
Former Base Housing Area
Xxxxx International Tradeport
Portsmouth, New Hampshire
----------------------------------------------------------------------------------------------------------------
I UNIT
NO. ITEMS QUANTITY UNIT PRICE AMOUNT
----------------------------------------------------------------------------------------------------------------
0 Xxx Xx. - 24' PVC Sewer 1,620 LF $ 85.00 $ 137,700.00
----------------------------------------------------------------------------------------------------------------
0 Xxx Xxx. - 10' PVC Sewer 1,230 LF $ 55.00 $ 67,650.00
----------------------------------------------------------------------------------------------------------------
3 International Dr. - 10' PVC Server 2,250 LF $ 55.00 $ 123,750.00
----------------------------------------------------------------------------------------------------------------
4 International Dr. - 10' PVC Server 800 LF $ 55.00 $ 44,000.00
----------------------------------------------------------------------------------------------------------------
5 International Dr. - 4' DI Forcemain 1,050 LF $ 35.00 $ 36,750.00
----------------------------------------------------------------------------------------------------------------
6 Corporate Dr. - 10' PVC Sewer 5,700 LF $ 55.00 $ 313,500.00
----------------------------------------------------------------------------------------------------------------
7 Corporate Dr. - 12' PVC Sewer 700 LF $ 60.00 $ 42,000.00
----------------------------------------------------------------------------------------------------------------
8 Corporate Dr. - 27' PVC Sewer 130 LF $ 90.00 $ 11,700.00
----------------------------------------------------------------------------------------------------------------
9 Corporate Dr. - 8' DI Forcemain 3,200 LF $ 45.00 $ 144,000.00
----------------------------------------------------------------------------------------------------------------
10 Sewer Manholes every 300 LF 390 VF $ 230.00 $ 89,700.00
----------------------------------------------------------------------------------------------------------------
11 Temp. & Permanent Trench Pavement Patch 12,000 LF $ 30.00 $ 360,000.00
----------------------------------------------------------------------------------------------------------------
12 0.125 mgd Sewage Pumping Station 1 LS $120,000.00 $ 120,000.00
----------------------------------------------------------------------------------------------------------------
13 Existing Sewage Pumping Station 1 LS $600,000.00 $ 600,000.00
----------------------------------------------------------------------------------------------------------------
14 Existing Sewer Lateral Connection 10 EA $ 1,000.00 $ 10,000.00
----------------------------------------------------------------------------------------------------------------
15 Ledge Removal Allowance 250 CY $ 80.00 $ 20,000.00
----------------------------------------------------------------------------------------------------------------
16 Piles, Sheeting Allowance 1 LS $100,000.00 $ 5,100.00
----------------------------------------------------------------------------------------------------------------
Total All Construction $2,220,750.00
----------------------------------------------------------------------------------------------------------------
Engineering & Contingency @40% $ 888,300
----------------------------------------------------------------------------------------------------------------
TOTAL $ 3,109,050
----------------------------------------------------------------------------------------------------------------
-79-
Cost Sharing Analysis
Sewer Infrastructure Costs
As of September 19, 2000 - Final Revision
GROSS WETLAND NET PERCENTAGE
----- ------- --- ----------
LOT # TENANT ADDRESS ACRES ACRES ACRES
----- ------ ------- ----- ----- -----
1 000 Xxxxxxxxx Xxxxx LLC 000 Xxxxxxxxx Xxxxx 7.3200 0.0000 7.3200 0.0511
2 000 Xxxxxxxxx Xxxxx LLC 000 Xxxxxxxxx Xxxxx 20.0900 6.8100 13.2800 0.0928
3 Xxxxx School 24 Northwood 8.3600 1.1900 7.1700 0.0501
4 East Corporate to Martins 27.4000 15.6000 11.8000 0.0000
Xxxxx
0 Xxxxxxxxx Xxx Medical Ass. 000 Xxxxxxxxx Xxxxx 5.0100 1.2300 3.7800 0.0264
6 The Xxxx Company Flextronics I - 164/166 21.6427 0.8500 20.7927 0.1452
Corporate Drive
7 The Xxxx Company Flextronics II - 160-162 19.0963 1.0400 18.0563 0.1261
Corporate Dive
0 Xxxx Xxx'x x/x Xxx Xx. & 5.0000 0.0000 5.0000 0.0349
E-velocity
9 2 International Group LLC 000 Xxxxxxxxxxxxx Xxxxx 10.0300 0.0000 10.0300 0.0701
10 2 International Group LLC Lot b/f 200 International 10.0000 4.7500 5.2500 0.0367
Drive
11 Pioneer Development LLC 000 Xxxxxxxxxxxxx Xxxxx 12.6000 2.4900 10.1100 0.0706
(Net to Net I)
12 Pioneer Development LC Net to Net Option 20.7400 3.0000 17.7400 0.1239
13 Pioneer Development LLC Net to Net Right of First 8.2700 0.1700 8.1000 0.0566
Refusal
14 Rokon International, Inc. 000 Xxxxxxxxx Xxxxx 7.1300 2.400 4.7300 0.0330
-------- ------- -------- ------
Totals: 182.6890 39.5300 143.1590 1.0000
-80-
EXHIBIT "D-2"
NOTICE OF CONSENT
-----------------
-81-
This NOTICE OF CONSENT ("Notice") is given by the XXXXX DEVELOPMENT
AUTHORITY ("Sublessor") to 000 XXXXXXXXX XXXXX, LLC ("Sublessee"). Sublessor and
Sublessee may be referred to jointly as the "Parties."
RECITALS
--------
A. The Parties entered into a Sublease for 000 Xxxxxxxxx Xxxxx at Xxxxx
International Tradeport on (the "Sublease"):
B. Section 19.3 of the Sublease states that Sublessor shall not
unreasonably withhold its consent to sublease if.
1. the use of the Subleased Premises associated with the sublease is
permitted under the original Sublease;
2. the sublease is consistent with the terns and conditions of the
original Sublease;
3. the original Sublease remains primarily liable to Sublessor to
pay rent and to perform all other obligations to be performed by
Sublessee under the original Sublease; and -3=
4. the proposed Sublessee is financially and operationally
responsible.
C. Sublessee has requested authorization to sublease square feet at 000
Xxxxxxxxx Xxxxx to Aprisma Management Technologies, Inc. ("Aprisma"), a Nevi
Hampshire corporation.
D. The proposed sublease to Aprisma is for genera and business office use.
TERMS AND CONDITIONS
--------------------
1. Sublessor hereby authorizes Sublessee to execute the sublease,
attached hereto as Exhibit A, with Aprisma for ~ square feet at 000
Xxxxxxxxx Xxxxx.
2. Upon execution of the sublease with Aprisma, Sublessee shall
provide Sublessor with a copy of the executed sublease, copies of all
required insurance certificates and a certificate of good standing from the
State of New Hampshire for Aprisma.
3. Sublessee hereby agrees and affirms that it shall remain primarily
liable to Sublessor to pay rent and to perform all other obligations to be
performed by Sublessee under the original Sublease.
This Notice of Consent is executed, effective this ______ day of
___________, 2000 by the Xxxxx Development Authority.
-82-
XXXXX DEVELOPMENT AUTHORITY
By:
-------------------------------
Its:
------------------------------
AGREED AND ACCEPTED
273 CORPORATE DRIVE, LLC
By:
-------------------------------
Its:
------------------------------
-83-
EXHIBIT "A"
SUBLEASE
-84-
EXHIBIT "E"
LIST OF ENVIRONMENTAL LAWS AND REGULATIONS
------------------------------------------------------------------------------------------------------------
Air Quality: (a) Clean Air Act & Amendments, 42 U.S.C. 7401-7642
(b) 40 XXX Xxxxx 00-00, 00, 00, 00-00, 00
(x) XXX ch. 12S-C, Air Pollution Control, and rules adopted
thereunder
(d) RSA ch. 125-H, Air Toxic Control Act, and rules adopted
thereunder
------------------------------------------------------------------------------------------------------------
Hazardous Materials: (a) Hazardous Materials Transportation Act, 49 U.S.C. 1801-1813,
and Department of Transportation Regulations thereunder
(b) Emergency Planning and Community Right-To-Know Act; 42
X.X.X. 0 000 0-0 X XXX
(x) 00 XXX Parts I00-179
(d) 40 CFR Part 362
(e) RSA ch. 277-A, Toxic Substances in the Workplace, and rules
adopted thereunder
------------------------------------------------------------------------------------------------------------
Hazardous Waste: (a) Resource Conservation and Recovery Act (RCRA) of 1976 and
RCRA Amendments of 1984, 42 U.S.C. 6941-69911
(b) Comprehensive Environmental Response, Compensation, and
Liability Art (CERCLA) of 1980; as amendei9,'42 U.S.C. 9601-96?5
(c) 40 XXX Xxxxx 000-000, 000, 000
(x) XXX ch. 147 A, Hazardous Waste Management and rules adopted
thereunder
------------------------------------------------------------------------------------------------------------
Water Quality: (a) Federal Water Pollution Control Act (Clean Water Act) and
Amendments, 33 U.S.C. 1251-1387
(b) Safe Drinking Water Act, as amended, 42 U.S.C. 300 300j-Z6
(c) 40 CFR Title 100-143, 401 and 403
(d) RSA ch. 146-A, Oil Spillage in Public Waters, and rules
adopted thereunder
(e) RSA ch. 485, New Hampshire Safe Drinking Water Act, and rules
adopted thereunder
(f) RSA ch. 485-A, Pollution and Waste Disposal, and rules
adopted thereunder
------------------------------------------------------------------------------------------------------------
-85-
EXHIBTT "F"
CERTIFICATE OF EXISTENCE/GOOD STANDING
-00-
XXXXX XX XXX XXXXXXXXX
XXXXXXXXXX XX XXXXX
CERTIFICATE OF EXISTENCE
I, Xxxxxxx X. Xxxxxxx, Secretary of State o[_] the State of New Hampshire, do
hereby certify that 000 XXXXXXXXX XXXXX, LLC is a Nevi Hampshire limited
liability company farmed on AUGUST 25, 2000. I further certify that all fees
required by the Secretary of State's office have been received and that a
certificate of cancellation has not heart filed.
IN TESTIMONY WHEREOF, I hereto set my hand and
cause to be affixed the Seal of the State of New
Hampshire, this 17th -day of October, AD 2000
Xxxxxxx X. Xxxxxxx
Secretary of State
-87-
EXHIBIT "G"
GUARANTY
--------
This Guaranty, trade effective as of March 31, 2000, is given by Xxxx Xxxx
of 000 Xxxxxxxx Xxx, Xxxxxxxxxx XX, by Xxxxxxx Xxxx of 000 Xxxxxxxx Xxx,
Xxxxxxxxxx, XX, by Xxxxxxx X. Xxxxxx of 1 I Xxxx Road, Portsmouth, NH, by Xxxxxx
Xxxx of X.X. Xxx 000, Xxxxx Xxxxxxxxxx, XX, and by Xxxxxxx X. Whaler of Suite
202, 170 Commerce Way, Portsmouth, NH (collectively the "Guarantors") to the
Peace Development Authority a body politic and corporate existing under New
Hampshire Revised Statutes Annotated Chapter 12G, with a principal place of
business at 360 Corporate Drive, Xxxxx International Tradeport, Portsmouth, New
Hampshire, U.S.A. ("PDA").
RECITALS
--------
1. At the request of Guarantors, Peace Development Authority ("PDA) has
entered into a Sublease dated effective December 4 2000 (the "Sublease") of
a certain premises located at 000 Xxxxxxxxx Xxxxx at the Xxxxx
International Tradeport, Portsmouth, New Hampshire, with 000 Xxxxxxxxx
Xxxxx, LLC ("Sublessee') a limited partnership organized and existing under
the laws of the State of New Hampshire.
2. PDA would not have agreed to enter into the Sublease except for the request
of the Guarantors and the execution and delivery of this Guaranty:
In consideration of the PDA entering into a Sublease with the Sublessee and
other valuable consideration, the receipt of which is hereby acknowledged, the
Guarantors agree as follows:
1. Guaranty. The Guarantors jointly and severally guarantee:
--------
(a) The prompt payment when due of all payments of rent, additional rent,
and all other charges, expenses, impositions, fines, penalties, fees and costs
of every kind and nature, including, without limitation, accelerated payments,
which are now, or may in the future be, due from Sublessee under the terms of
the Sublease;
(b) The complete and timely performance, satisfaction and observation of
the terms and conditions of the Sublease required to be performed, satisfied or
observed by the -Sublessee including, without limitation, Sublessee's obligation
to complete the construction of the Facility and other improvements as required
by Article 2A.1. of the Sublease.
(c) Notwithstanding the provisions of Sections I (a) and 1 (b) above, upon
completion of the Facility, as set forth in Article 2A of the Sublease and
occupancy of the Facility by Aprisrma Management Technologies, Inc., in
accordance with its Sublease Agreement dated -December 4 , 2000, this Guaranty
shall terminate, and Guarantors shall not be required to furnish a guaranty.
-88-
2. Coverage of Guaranty. This Guaranty extends to any successor of the
Sublessee, any assignee or sublessee of the Sublessee, to any extension or
renewals provided in the Sublease, and to any term established by reason of
the holdover of the Sublessee, an assignee or sublessee.
3. Payment Guaranty. In the event that the Sublessee fails to perform,
satisfy or observe the guarantied terms and conditions, the Guarantors
will; subject to Section 1(c) above, promptly and fully perform, satisfy
and observe the obligation or obligations the place of the Sublessee and
within five (5) business days after notice to the Guarantors that. any
applicable cure period in the Sublease has expired.
4. Waiver of Notices. Without notice to or further assent from the
Guarantors, PDA may waive any of the terms or conditions of the Sublease,
or compromise, settle or extend the lime of payment of any amount due from
the Sublessee or the time of performance of any obligation of the
Sublessee. These actions may be taken by PDA without discharging or
otherwise affecting the obligations of the Guarantors. Guarantors further
waive any right it may have to require PDA to: (i) proceed against
Sublessee or any other party; (ii) proceed against or exhaust any security
held by PDA for Sublessee, or (iii) pursue any other remedy that PDA, may
have.
5. Sublease Security. Subject to Section 1 (c) above, this Guaranty shall
remain in full. force and effect, and the Guarantors shall remain fully
responsible, without regard to any security deposit or other collateral for
the performance of the teams and conditions of the Sublease, or the
receipt; disposition, application, or release of any security deposit or
.other collateral, now or hereafter held by or for the PDA- The Sublessor
shall not, however, be entitled to receive payment for obligations in
excess of these amounts due.
6. Unconditional Obligations. The liability of the Guarantors to PDA under
the Guaranty is direct, immediate, absolute, continuing, unconditional and
limited only as set forth in Section 1(c) above. PDA shall not be required
to pursue any-remedies it may have against the Sublessee or against any
security deposit or other collateral as a condition to enforcement of this
Guaranty. Nor shall the Guarantors be discharged or released by reason of
the discharge or release of the Sublessee for any reason, including a
discharge in Bankruptcy, receivership or other proceedings, a
disaffirmation or rejection of the Sublease by a trustee, custodian, or
other representative in Bankruptcy, a stay or other enforcement
restriction, or any other reduction, modification, impairment or
limitations of the liability of the Sublessee or any remedy of the PDA. The
Guarantors assume all responsibility for being and keeping themselves
informed of Sublessee's assets, and of all other circumstances bearing upon
the risk of non-performance by Sublessee under the Sublease. The Guarantors
agree that PDA shall have no duty to advise the Guarantors of information
known to it regarding such circumstances or risks.
7. Subordination of Subrogation Rights. The Guarantors subordinate any and
all claims which the Guarantors have or may have against the Sublessee by
reason of subrogation for payments or performances under this Guaranty or
claims for any other reason or cause. The Guarantors agree not to assert
any such subrogation claim which it has or may have against the Sublessee,
including claims by reason or subordination under this
-89-
Guaranty, until such time as the payment and other obligations of the
Sublessee to PDA are fully satisfied and discharged.
8. Binding Effect. This Guaranty is binding upon the Guarantors, their
successors and assigns, and is binding upon and shall inure to the benefit
of the PDA, its successors and assigns. No assignment or delegation by the
Guarantors shall release the Guarantors of their obligations under this
Guaranty.
9. Modifications. This Guaranty may be modified only by a writing signed by
both the Guarantors and PDA. Modifications include any waiver, change,
discharge, modification, or termination.
10. Payer. All payments required to be made by Guarantors under this Guaranty
shall be made in lawful money of the United States and shall be delivered
to PDA at the following address:
Xxxxx Development Authority
000 Xxxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000
Attention: Executive Director
11. Enforcement This Guaranty shah be enforceable through actions or
proceedings instituted in New Hampshire courts.
-90-
IN WITNESS WHEREOF the Guarantors have duly signed and made this Guaranty
effective as of December 4 , 2000.
Guarantors Witnesses
/s/ Xxxx Xxxx /s/ Illegible
--------------------------------- -------------------------------
Print Name: Xxxx Xxxx Print Name:
Address: 000 Xxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxxx Xxxx /s/ Illegible
--------------------------------- -------------------------------
Print Name: Xxxxxxx Xxxx Print Name:
Address: 000 Xxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxxx Xxxxxx /s/ Illegible
--------------------------------- -------------------------------
Print Name: Xxxxxxx X. Xxxxxx Print Name:
Address: 00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxx Xxxx /s/ Illegible
--------------------------------- -------------------------------
Print Name: Xxxxxx Xxxx Print Name:
Address: X.X. Xxx 000
Xxxxx Xxxxxxxxxx, XX 00000
/s/ Xxxxxxx Xxxxxx /s/ Illegible
--------------------------------- -------------------------------
Print Name: Xxxxxxx X. Xxxxxx Print Name:
Address: Xxxxx 000
000 Xxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
-00-
XXXXXXX "X"
XXXXXXXX MANAGEMENT PLAN
------------------------
-92-
XXXXX DEVELOPMENT AUTHORITY
WETLANDS
MANAGEMENT
PLAN
Adopted
June 25, 1998
-93-
DRAFT
WETLANDS MANAGEMENT PLAN
WHEREAS, Peace Development Authority ("PDA") is an agency of the State of
New Hampshire established pursuant to RSA ch. 12-G.
WHEREAS, PDA anticipates acquiring fee title to portions of the former
Peace Air Force Base hereinafter designated Premises I and Premises II froze the
United States Air Force ("Air Force by public benefit transfer (i.e. transfer
without consideration) pursuant to the general authority contained in 49 U.S.C.
Sections 47151-47153 and other applicable provisions of law. Together, Premises
I and Premises II constitute the entirety of the Xxxxx International Tradeport .
The terms of such acquisition are set forth in an Amended Application for Public
Benefit Transfer executed by PDA ("Application") and accepted by the Air Force
on April 14, 1992 (the "Acceptance'), as the same have been subsequently amended
by Amendment No. 1 dated March 24, 1994 and executed June 27, 1997 ("Amendment
No. 1"). (The Application as amended by Amendment No. 1 may be referred to as
the "Amended Application.") `Me Amended Application was approved December 12,
1995 and confirmed March 18, 1997 and the Air Force executed an acceptance of
the Amended Application on June 26,1997.("Acceptance IT'S. (The Acceptance and
Acceptance II may be referred to collectively as the "Acceptances".) Pending
final disposition of the Airport in accordance with the terms of the Amended
Application and Acceptances, PDA and the Air Force have entered into a Lease as
of April 14, 1992 for the Airport District, a Supplement No. 1 thereto dated
August 4, 1992, a Supplement No. 2 thereto dated July 15, 1993, and a Supplement
No. 3 thereto dated June 27, 1997 (collectively the "Master Lease").
WHEREAS, this Wetlands Management Plan has been developed to fulfill the
requirement of Condition 25 of the Master Lease, as set out in Supplement No. 3
which provides in pertinent part that:
" [w]ithin one (1) year of the date of execution of this Supplemental
Agreement No. 3, the Lessee shall develop a Wetlands Management Plan in
consultation with NHDES, which PIE will provide planning guidance
prioritizing the wetlands in levels of functional significance and
designating protection strategies. The Lessee will minimize the
destruction, loss, or degradation of wetlands within all leased property.
The Lessee will obtain Air Force approval prior to conducting any new
construction in wetland areas. The Lessee will obtain all necessary permits
or waivers under Section 404 of the Clean Water Act and the New Hampshire
Fill and Dredge in Wetlands Act."
NOW THEREFORE, in accordance with Condition 25 of the Master Lease, PDA hereby
enacts the following Wetlands Management Plan.
-94-
1.0 GENERAL INFORMATION
1.1 PLAN ORGANIZATION
-----------------
The Wetlands Management Plan ("WMP") is organized into five sections:
Section 1 - Summary of purpose of WW2 anal background;.
Section 2 - Location and description of all identified wetlands including
priorities based on levels of functional significance;
Section 3 - Listing of wetlands in tabular form and identificari6n of potential
impacts and imposed limitations.
Section 4 - Administrative procedures for obtaining approval for work in
wetlands. Section 5 - Procedure for implementation of mitigation projects.
1.2 PURPOSE
-------
The WMP serves as a guide for development in and around wetlands at Peace
International Tradeport. The WW identifies all known wetlands, sets priorities
for wetlands based on levels of functional significance and sets forth a
strategy for protection.
The WMP is intended as a guide only and can be expanded or modified as site
activities change, as new laws, rules and regulations are passed or as better
management practices are recognized and instituted. The WMP does not supersede
or act as a substitute for any existing state or federal laws, rules and
regulations or local lead use controls which shall be followed, where
applicable.
1.3 COOPERATING AGENCY PARTICIPATION
--------------------------------
The WMP has been prepared through the cooperative efforts of PDA and the NH
Department of Environmental Semites ("NHDES") and has been reviewed by the Air
Force and the United States Environmental Agency (EPA).
2.0 WETLANDS MAP
2.1 GENERAL DESCRIPTION
The Wetland resources at Peace consist of approximately 550 acres of primarily
forested wetlands. There are four major areas of concentration: the northeast
quadrant of the site north of Peace Boulevard; the central portion between
International Drive and the aircraft parking apron; the southeast convex along
the Xxxxxxxxx Turnpike and Interstate 95; and the area west of the runway. There
are also smaller isolated wetland areas dispersed throughout the Tradeport.
2.2 DELINEATION AND FUNCTIONAL ASSESSMENT
Figure 2.1 shows the result of all wetland delineations and functional
assessments performed ax Xxxxx Wetlands work was conducted bar Smart Associate,
Xxxxx, Xxxxxx & Associates, Fugro-XxXxxxxxxx and Xxx X. Xxxxxx Associates.
-95-
Because the functional value of a wetland may change over time, these findings
need to be verified at the time that specific areas are being considered far
development
3.0 WETLANDS IMPACTS AND LIMITATIONS
3.1 AVOIDANCE
---------
Development at Xxxxx International Tradeport will occur within the framework of
existing environmental conditions with wetland avoidance being the primary goal.
The WMP provides fat the instances when total avoidance is not possible and the
need to impact a wetland is demonstrated.
3.2 IMPACT ASSESSMENT
Table 3.1 together with Figure 3.1 groups wetland of similar characteristics and
lists potential impacts and limitations. This table shall be used during the
pre-application phase to determine whether the proposed action is consistent
with this plan.
The Table is not intended to limit the type of impact which may be requested
Vie. driveway crossing, maintenance, golf cart crossing). Each application will
be considered on its own merits and needs.
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TABLE 3.1 - IMPACT ASSESSMENT
---------------------------------------------------------------------------------------------
WETLAND AREA LIMITATION/a/ POTENTIAL
------- ---- ------------- ---------
(Acres) IMPACT/b/
---------
---------------------------------------------------------------------------------------------
A1 119 Natural Resource Protection golf care crossing
Zone, Master Lease para 25.5
---------------------------------------------------------------------------------------------
A2 80 Natural Resource Protection as allowed by Land Use
Zone Controls
---------------------------------------------------------------------------------------------
A3 98 standard state regulatory proposed use dependent
requirements
---------------------------------------------------------------------------------------------
Bl 40 bulbous bittercress habitat unknown
---------------------------------------------------------------------------------------------
Cl 110 Natural Resource Protection as allowed by Land Use
Zone Master Lease Restricted Controls
Use Area
---------------------------------------------------------------------------------------------
C2 50 standard state regulatory site access
requirements
---------------------------------------------------------------------------------------------
Dl 5 upland sandpiper habitat maintenance
---------------------------------------------------------------------------------------------
El 4 standard state regulatory site access
requirements I
---------------------------------------------------------------------------------------------
Fl 44 standard state regulatory proposed use dependent
requirements
---------------------------------------------------------------------------------------------
/a/in addition to these limitations, Executive Order 11990 applies to all Xxxxx
Wetlands until such time as fee title is transferred from the Air Force.
/b/potential impacts as shown ate based on information available at the time
that this glare was prepared. For example, it is anticipated that the
construction of a road: possibly impacting wetlands, will be required to provide
access to the North ramp. The listing of anticipated impacts in no way limits
the scope of work which may be requested, and approval.
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4.0 ADMINISTRATION
4.1 SCOPE
-----
Section 4 outlines administrative procedures for obtaining approval for work in
and around wetlands arising from development activities at Peace International
Tradeport.
4.2 PRE-APPLICATION PROCEDURE
-------------------------
4.2.1 Development Requiring Wetlands Pre-Application
----------------------------------------------
Development projects which will have a direct or indirect impact on
wetlands will require the submission of a pre-application- Direct
impacts are those resulting from filling, dredging or flooding,
Indirect impacts can occur from disturbance on adjacent lands
resulting in increased chemical and sedimentary runoff that degrades
surface water quality.
State wetlands applications may not be filed until pre-application
approval is granted.
4.2.2 Preliminary Engineering
-----------------------
As parcels of land are identified for development, the developer
shall, at the earliest stages of conceptual design, ascertain through
engineering studies whether there exists any potential impact to
wetlands.
Such studies shall include, but not be limited to:
a) Wetlands delineation
b) Ground survey
c) Preliminary site design
Developer should also review this WW to determine what types of
actions may be permitted. If, during this review, it is discovered
that conflicts exist between field obtained data and the VW, the
developer shill immediately notify FDA and a decision will be made as
to whether the pre-application process can proceed.
4.2.3 Submittals
Persons desiring to pursue development directly impacting wetlands,
shall submit a wetlands pre-application to the Xxxxx Development
Authority Director of Engineering.
The following items shall be included:
a) Pre-Application Form
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b) Plan showing extent of all wetlands, proposed development and area
of proposed wetland impact.
c) Statement describing the type of wetland and the impact of the
proposed development on all affected wetlands.
d) Statement demonstrating the need for the proposed action. e) List
of the alternatives considered and the reasons for selecting the
proposed action and the steps taken to minimize the impact.
Calculated impact area.
4.2.4 Review and Decision Rendering
-----------------------------
FDA, together with DES, will review the request to determine if the
proposed action is consistent with the VINT.
Until such time as fee title is transferred to the PDA from the Air
Force, PDA will also submit the pre-application to the Air Force for
review and approval- Should -the Air Farce have any objection to the
request, the request shall be denied without further consideration.
Following review by PDA, NHDES and the Air Force (where applicable),
PDA shah notify the applicant of the decision which xxxx consist of
one of the following options:
a) Approval
b) Approval with stipulations
c) Denial
4.2.5 Development Resulting in Indirect Wetlands Impacts
--------------------------------------------------
Should it be determined that the proposed development will have, only
indirect effects on wetlands the pre-application submittal will
consist of evidence of a commitment by the developer to protect
adjacent wetlands, during and after construction.
4.3 PROCEDURE FOLLOWING APPROVAL
4.3.1 Application to Wetland Board
----------------------------
For pre-applications which have been approved after joint review by
PDA, NHDES and where applicable the Air Force, the applicant may
proceed with preparing the State Wetland Permit Application in
accordance with the provisions of XX XXX 0x0-X and related
Administrative Rules, as amended from time to time.
The state application shall be prepared by the applicant with
assistance from PDA. All state applications shall be submitted by PDA
with PDA named as applicant. The applications shall be signed by the
PDA Executive Director, Director of Engineering or other qualified
representative.
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Until such time as fee title is transferred to the PDA from the Air
Force, PDA shall obtain the written concurrence of the Air Force to
the submission of the state application.
All Wetlands Permit fees including, but not limited to, state feed end
fees paid to local municipalities shall be paid by the developer. In
addition to such fees, the developer shall pay PDA a fee of $25.00 to
cover processing expenses.
4.3.2 Wetland Mitigation
------------------
To the extent required by federal, state or local law, all successful
wetland applicants shall be required to mitigate the effects of
wetlands impact. Mitigation measures shall be as determined by
Section 5 of this WMP.
A wetlands Mitigation Agreement shall be drafted for all state
approved wetlands impacts requiting mitigation. The Agreement will
require the implementation of appropriate mitigation measures
including, but not limited to, the payment of wetlands credits by the
developer to the PDA. Such payments shall be managed by the PDA and
shall be used to complete the mitigation plan as outlined in Section
5.
4.3.3 Approval Time Period
--------------------
Upon granting, of a request to apply for a state wetland permit,
applicants shall have one year to apply for the state wetland permit.
5.0 IMPLEMENTATION OF MITIGATION PROJECTS
5.1 SCOPE
-----
When required by Section 4.3.2 of this plan the PDA will collect wetland credits
from the developer and use the funds to manage a mitigation project. Criteria
for mitigation plans are described is this section.
5.2 WETLANDS CREDITS
----------------
5.1.1 Determination of Cost
---------------------
The terms and conditions of the Wetlands Mitigation Agreement Shall
include the payment of wetland credits by the developer to the PDA.
The cost of the Wetlands credits shall he based on the cost of
implementing the mitigation project, but in no case shall be less than
$3.00/SF of approved impact with a $1500 minimum fee.
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5.1.2 Administration of funds
-----------------------
PDA shall oversee the administration of the wetland credit funds. The
funds shall be used to cover the cost of designing, constructing, and
administering the mitigation project.
5.3 TIMETABLE FOR MITIGATION
------------------------
5.1.3 Mitigation following development Impact
---------------------------------------
At such time as the PDA has collected Wetland Credit payments from one
or more developers, the PDA in consultation with NHDES shall identify
and complete an appropriate mitigation project. In general a
mitigation project shall be required by the following:
a) the aggregate area of wetlands impacted exceeds 20,000 sf
b) a period of 10 years has elapsed since entering into a Wetlands
Mitigation Agreement without exceeding 20,000 sf impact
c) a need to impact a high quality wetland is demonstrated and
approved. la this case mitigation can be required for impacts of less
than 20,000 sf to be completed within less than 10 years.
PDA may opt to complete a mitigation project sooner than required by
a) and b).
5.3.2 Mitigation prior to Development Impact
--------------------------------------
Should PDA decide to undertake a wetlands mitigation project prior to
meeting the milestones established in a) and b) then any area affected
by the mitigation project in excess of the area impacted shall be
"banked" and used to offset subsequent wetland impacts.
5.4 VALUE OF MITIGATION PROJECT
The following shall be used as a basis for determining the equivalent value of a
Mitigation Project:
a) A project which creates, enhances, or restores wetlands of an area equal to
the area being impacted shall be considered of equivalent value.
b) A project which protects or enhances an area (either wetland or upland)
less than the area being impacted but of higher functional significance may
be considered of equivalent value.
PDA shall work with the NHDES in determining functional values and project
equivalencies.
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5.5 MITIGATION ACTIONS
------------------
5.5.1 Scope
-----
The following list of proposed mitigation actions has been compiled
through consultation with NHDES and EPA. The mitigation project(s)
implemented by PDA may consist of one or more of the following:
a) Construction of new wetland areas
b) Restoration and enhancement of existing wetlands which may leave
been degraded by human activity.
c) Establishment of wetland buffets situated to develop connectivity
of green spaces and wetland systems.
5.5.2 Siting
------
Mitigation projects may be located on the same lot as the development
or on another lot within the Xxxxx International Tradeport.
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BIBLIOGRAPHY
Development Plan Update; September 1995; Prepared for Peace Development
-----------------------
Authority by VHB/Xxxxxxx Xxxxxx Brustlin, Inc., EDAW, Inc., RKG Associates,
Inc., Xxxxx Xxxxxx & Associates, Xxx X. Xxxxxx, Inc. and Xxxxxxx Xxxxxxx &
Halle.
Final Supplemental Environmental Impact Statement Disposal and Reuse of PAFB,
----------------------------------------------------------------------------
NH; August 1995; Prepared by Department of the Air Force, et al.
--
Memorandum of Findings Portsmouth/Newington, New Hampshire: #10102 Mitigation
-----------------------------------------------------------------------------
Alternatives; March 23, 1990 and May 7, 1990; Prepared for NH Department of
------------
Transportation by the Smart Associates, Environmental Consultants, Inc.
Technical Report of Wetlands within FAA Study Area; June 7, 1991; Prepared for
----------------------------------------------------------------
Advanced Sciences, Inc. by the Smart Associates, Environmental Consultants, Inc.
Wetlands Delineation and Evaluation Report for the Xxxxx International
----------------------------------------------------------------------
Tradeport; June 1992; Prepare for Xxxxx Development Authority by Fugro-
---------
XxXxxxxxx.
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