Exhibit 10.32
LEASE AGREEMENT
THIS LEASE dated as of the 1st day of February, 1996, between Technology
Park Associates, Inc., a Vermont corporation with principal place of business in
South Burlington, Vermont; PMF Energy, Inc., a New York corporation with
principal place of business in New York, New York; and Axinn-Vermont, Inc., a
New York corporation with principal place of business in Jericho, New York
(hereinafter collectively called "Landlord") and Ben & Jerry's Homemade, Inc., a
Vermont corporation with principal place of business at Waterbury, Vermont
(hereinafter called "Tenant").
1. DESCRIPTION OF PREMISES.
The Landlord hereby leases to the Tenant the premises shown on Exhibit A
attached hereto and made a part hereof (the "Premises"), in that certain
building (the "Building") located on Xxx 0X, Xxxxxxxxxx Xxxx containing 30.13
acres, more or less, and designated as 000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, XX,
(the "Property"). Tenant shall also have the non-exclusive right to use
driveways, parking areas, entrance ways, walks, and other areas now in place and
hereafter from time to time added and made available to other tenants of the
Building by Landlord ("Common Areas"). Landlord shall provide reasonable light
for all driveways, sidewalks and parking areas, and shall maintain such
driveways, walkways and parking areas in a clean condition and in good repair.
Tenant and customers and agents of Tenant shall be entitled to the non-exclusive
use in common with others of all such Common Areas, such use shall be at all
times subject to such reasonable rules and regulations of general applicability
to all tenants of the Building, as Landlord may from time to time promulgate
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governing the same. Tenant shall use and require all of Tenant's employees to
use the parking areas designated by Landlord. Tenant shall have 220 spaces
allocated to its exclusive use as shown on Exhibit A-1. In addition, should the
Tenant exercise its expansion option under this lease, the Tenant shall be
entitled to the exclusive use of an additional 10 parking spaces. Tenant's
parking spaces will be reasonably identified by signs or pavement markings.
Tenant shall have the right to establish reasonable controls over its assigned
parking spaces to help insure its exclusive use of said spaces. Prior to
implementing any parking controls, Tenant shall consult with and receive
Landlord's permission, which shall not be unreasonably withheld or delayed. The
parties agree to cooperate on all parking issues.
2. COMMENCEMENT AND TERM.
The initial term of this lease shall be for ten (10) years and shall commence on
January 1, 1996. The first monthly installment of rent shall become due and
payable on April 25, 1996, and the term shall expire on January 1, 2006 (the
"Initial Term"). The Landlord hereby acknowledges that pursuant to Paragraph 4
hereof, the Tenant has paid the first month's rent due hereunder simultaneously
with the execution of this lease.
3. RENTAL PAYMENTS
(a) Base Rent. Tenant agrees to pay the annual rental set forth in Exhibit B
attached hereto and made a part hereof (the "Base Rent") in lawful money of the
United States which shall be legal tender in payment of all debts, public and
private, at the time of payment, in equal monthly installments in advance on the
25th day of the preceding month during the Initial Term (commencing April 25,
1996) at the office of Landlord or such other place as Landlord may
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designate. If the Initial Term of this lease does not begin on the first day or
end on the last day of a month, the Base Rent for that partial month shall be
prorated by multiplying the Base Rent by a fraction, the numerator of which is
the number of days of the partial month included in the Initial Term and the
denominator of which is the total number of days in the full calendar month.
Except as herein specifically provided, the obligation of the Tenant to pay the
rent specified herein and all other sums payable by Tenant hereunder shall be
absolute and unconditional under any and all circumstances, without notice or
demand and without abatement, deduction or setoff. If Tenant shall not pay the
Base Rent or any other sum payable under this lease within ten (10) days after
it is due, the Tenant shall pay (i) a late charge equal to one (1) percent of
the unpaid amount plus (ii) interest at the rate of fifteen percent (15%) per
annum on the remaining unpaid balance retroactive to the date originally due,
until paid.
(b) Common Area Maintenance Charges ("CAM"). In addition to the Base Rent
described in paragraph 3.A. above, Tenant shall pay to Landlord CAM charges,
which shall be calculated as follows:
(A) For the first twelve (12) months of this Lease, CAM charges should be
$1.38 per square foot (50,388 square feet times $1.38 equals
$69,535.44) $69,535.44, or $5,794.62 per month, commencing April 25,
1996 ("Initial CAM charge"); and
(B) Commencing in year two (2) of this Lease, CAM charges shall be the
total, actual annual costs to Landlord of real estate taxes and other
municipal assessments (net of abatements, including abatements from
prior Lease Years
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to the extent included in CAM charges and not previously credited),
and the following operating expenses of the Landlord provided the same
are reasonable, actual and necessary, out-of-pocket (except Landlord
may use its normal accrual method of accounting), obtained at
competitive prices and consistent with practice for comparable
facilities in the Burlington, Vermont area, and that are directly
attributable to the operation, maintenance, management, and repair of
the Premises, the Building in which the Premises is located and the
parking areas, driveways, walks and other improvements reasonably
necessary to support the use and occupancy of the Building
("Property"), as determined under generally accepted accounting
principles consistently applied, including:
(1) salaries, and other compensation; including payroll taxes,
vacation, holiday, and other paid absences; and welfare,
retirement, and other fringe benefits; that is paid to employees,
independent contractors, or agents of Landlord engaged in the
operation, repair, management, or maintenance of the Property,
including the following:
(a) inspectors;
(b) window cleaners, miscellaneous repair persons, janitors,
cleaning personnel;
(c) security personnel and caretakers; and
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(d) engineers, mechanics, electricians, and plumbers; but
not more than two on-premises full-time managers or
superintendents;
(2) the purchase, cleaning, replacement, and pressing of uniforms
of employees;
(3) repairs and maintenance of the Property and the cost of
supplies, tools, materials, and equipment for Property repairs
and maintenance, that under generally accepted accounting
principles consistently applied, would not be capitalized;
(4) premiums and other charges incurred by Landlord for insurance
on the Property and for employees including:
(a) fire insurance, extended coverage insurance, and
earthquake, windstorm, hail, and explosion insurance;
(b) public liability and property damage insurance;
(c) workers' compensation insurance;
(d) boiler and machinery insurance; sprinkler leakage, water
damage, water damage legal liability insurance; burglary,
fidelity, and pilferage insurance on equipment and
materials;
(e) health, accident, and group life insurance;
(f) insurance Landlord is required to carry under Section
15; and
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(g) other insurance as is customarily carried by operators
of comparable commercial/industry buildings in the
Xxxxxxxxxx County area;
(5) costs incurred for inspection and servicing, including all
outside maintenance contracts necessary or proper for the
maintenance of the Property, such as janitorial and window
cleaning, rubbish removal, exterminating, water treatment,
electrical, plumbing, and mechanical equipment, and the cost of
materials, tools, supplies, and equipment used for inspection and
servicing;
(6) payroll taxes, federal taxes, state and local unemployment
taxes, and social security taxes paid for employees;
(7) sales, use, and excise taxes on goods and services purchased
by Landlord;
(8) license, permit, and inspection fees;
(9) auditor's fees for public accounting;
(10) legal fees, costs and disbursements but excluding those--
(a) relating to disputes with tenants, or
(b) based upon Landlord's breach of leases with other
tenants, negligence or other tortious conduct, or
(c) relating to enforcing any leases except for enforcing
lease provisions for the benefit of the Buildings tenants
generally, or
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(d) relating to the defense of the Landlord's title to or
interest in the Property;
(11) management fees (calculated at fifteen percent (15%) of the
real estate taxes, assessments and operating expenses described
herein) to a person or entity other than the Landlord;
(12) the annual amortization over its useful life with a
reasonable salvage value on a straight-line basis of the costs of
any capital improvements made by Landlord and required by any
changes in applicable laws, rules, or regulations of any
governmental authorities enacted after the Building was fully
assessed as a completed and occupied unit and the Lease was
signed;
(13) the annual amortization over its useful life with a
reasonable salvage value on a straight-line basis of the costs of
any equipment or capital improvements made by Landlord after the
Building was fully assessed as a completed and occupied unit and
the Lease was signed, as a labor-saving measure or to accomplish
other savings in operating, repairing, managing, or maintaining
of the Property, but only to the extent of the savings;
(14) any costs for substituting work, labor, materials, or
services to the extent the same are used in place of any of the
above items, or for any additional work, labor, materials,
services, or improvements to comply with any governmental laws,
rules, regulations, or other
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requirements applicable to the Property enacted after the
Building was fully assessed as a completed and occupied unit and
the Lease was signed, that, at the time of substitution or
addition, are considered operating expenses under generally
accepted accounting principles consistently applied; and
(15) other costs reasonably necessary to operate, repair, manage,
and maintain the Property in a first class manner and condition.
Notwithstanding anything contained herein to the contrary,
operating expenses shall not include (i) costs billed to and paid
by specific tenants; (ii) the cost of repairs or replacements
resulting from insurable casualty losses or eminent domain
takings; (iii) depreciation or amortization of the Property or
any part thereof, except as expressly permitted; (iv) replacement
or contingency reserves; (v) ground lease rents or payment of any
debt or equity obligations; (vi) legal or other professional fees
relating to leasing, financing or other services not related to
the normal operation, maintenance, cleaning, repair and
protection of the Property; (vii) brokerage fees and commissions;
(viii) promotional, advertising or public relations expenses;
(ix) services provided for a particular tenant, and not tenants
in general; (x) capital expenditures; and (xi) costs for services
or expenses that are materially different than those set forth as
items (1) through (14) above, unless such services or expenses
are required by law or are necessary in the reasonable judgment
of the Landlord to keep the Property competitive with similar
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properties in the Burlington, Vermont area. Operating expenses
shall be reduced by the amount any proceeds, awards, payments,
guarantees, credits or reimbursements, which the Landlord
actually receives and which are applicable to operating expenses
less the cost reasonably incurred in recovering such amount.
Operating expenses shall not include payments to affiliates of
the Landlord to the extent such payments exceed customary charges
for the goods or services provided by such affiliate. In the
event that any operating expenses are shared by tenants of the
buildings other than the Building, the Landlord will charge to
the Tenant only its proportionate share of the expenses allocable
to the Building in particular. Tenant's percentage of total CAM
charges shall be eighteen and 32/100 percent (18.32%) (28.6%, if
Tenant exercises its option for additional space under Paragraph
31). The percentage of CAM charges payable by Tenant is
calculated by dividing the Tenant's gross leasable area (50,388
square feet) by the total gross leasable area in the Building
(275,000 square feet). Tenant shall pay to Landlord in equal
monthly installments the Initial CAM charge, due on the 25th day
of each preceding month included in the term of this Lease. If in
the course of a calendar year of the lease year, the CAM charge
costs exceed the Initial or previous year's CAM charge payable by
all Tenants occupying the building for such period, Landlord
shall notify Tenant of this within sixty (60) days after the end
of the calendar year. Notice shall consist of a statement
received by Tenant that sets forth the CAM charge
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costs for such period and the amount thereof due from Tenant. If
Tenant requests, Landlord shall give Tenant reasonably detailed
documentation to support Landlord's CAM charges. Tenant shall
have fifteen (15) days after the receipt of such notice to pay
the amount to Landlord. If any of the costs to Landlord included
in CAM charges, decrease in subsequent years, the applicable
savings shall be passed on to Tenant by appropriate pro rata
adjustments to the CAM charges. The Landlord represents to the
Tenant that the estimate of $1.38 per square foot in CAM charges
for the first year is reasonable and reflects Landlord's good
faith attempt to determine CAM charges on the building recently
acquired by Landlord. During the term of this Lease, annual
increases of building management fees and maintenance expenses
shall not exceed 6%. Landlord agrees upon request of Tenant to
provide an annual statement of account prepared by Landlord's
accountant, certifying that the CAM charges for the previous year
were consistent with what the lease allowed, and generally
accepted accounting principles. Tenant may, at its own cost,
request an audit of Landlord's CAM charge accounts and records,
and if an audit reveals that Tenant has been overcharged based
upon reasonable accounting principles, Tenant's CAM charges shall
be adjusted accordingly. If an audit reveals a discrepancy in
Tenant's favor by more than 10%,
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Landlord shall reimburse Tenant one-half (1/2) the reasonable
cost of the audit.
4. DEPOSIT.
The Tenant shall pay to the Landlord, no later than the date of the commencement
of the Initial Term of this lease the sum of Thirty-three Thousand Five Hundred
Ninety-two Dollars ($33,592) of which $16,796 shall be applied to the May
rental, and $16,796 shall be held by Landlord as a security deposit, (the
"Security Deposit") as security for the payment of Base Rent and all other sums
which may become due pursuant to this lease and as security for the faithful
performance by the Tenant of all obligations of the Tenant under this lease. The
Security Deposit shall be maintained by the Landlord in a common Security
Deposit account, although it shall not accrue interest. The Landlord may use,
apply or retain the whole or any part of the Security Deposit to the extent
required for the payment of Base Rent or any other sums as to which the Tenant
shall be in default, reimbursement of any sum which the Landlord may expend by
reason of the Tenant's default of any provision of this lease and the payment of
any damages or other sums to which the Landlord may be entitled under this lease
or under applicable law by reason of Tenant's default. Provided that the Tenant
is not in default beyond any applicable notice and cure period hereunder, any
part of the Security Deposit not used by the Landlord as permitted by this
paragraph shall be returned to the Tenant within thirty (30) days after the
expiration of the lease term, or may, at the Tenant's option, be applied to the
last month's rent payable hereunder.
5. NET LEASE.
The Landlord shall not be required to provide any services or do any action in
connection with the Premises except as specifically provided herein.
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6. USE OF PREMISES.
The Tenant may use the Premises for general office use and light warehousing,
and for such other ancillary uses as are consistent with general office use and
light warehousing. The Tenant shall not otherwise use or occupy the Premises or
allow any activity in or about the Premises which would (i) materially impair
the value or usefulness of the Premises or the building of which the Premises
are a part, (ii) adversely affect the fire and comprehensive insurance or
liability insurance premiums payable by the Landlord with respect to the
building of which the Premises are a part, (iii) constitute a public or private
nuisance or waste or a violation of any state, local or federal statute, rule,
regulation or ordinance, or (iv) unreasonably disturb or interfere with the use
and occupancy of any other parts of the building or land of which the Premises
are a part. Tenant shall not use the Premises for any other purpose other than
those specified above without the prior written consent of the Landlord which
consent shall not be unreasonably withheld or delayed. Landlord represents that
the Premises is zoned for such general office light warehousing and ancillary
use.
7. MAINTENANCE AND REPAIR.
The Tenant shall, throughout the term of this lease, at its own cost and
expense, maintain the interior of the Premises (including all interior equipment
and systems used exclusively by Tenant, and such other fixtures as are used in
connection with the occupancy of the Premises, including any and all
replacements made by the Tenant) (except such as are the Landlord's obligation
to maintain hereunder) in such condition, repair and order, as the same now are
or hereafter may be put, reasonable wear and tear, fire or other casualty,
repairs that are the obligation of Landlord to make, or damage caused by the
failure of the Landlord to make repairs hereunder, excepted.
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Landlord shall keep and maintain the HVAC and other major building systems, and
Common Areas, including the roof and structure of the building of which the
Premises are a part in good condition. Tenant shall be responsible for any
repairs, replacement or maintenance of any skylight which Tenant installs after
written approval of the plans from Landlord, which shall not be unreasonably
withheld or delayed. The Tenant shall also keep the Premises in a neat and clean
condition.
8. UTILITIES AND SERVICES.
In addition to the general obligations of the Landlord set forth elsewhere in
this lease, the Landlord shall only furnish those services as set forth in
Exhibit C attached hereto and made a part hereof. The Landlord shall not be
liable for any failure of water supply or electric current or of any service by
any utility, nor for injury or damage to persons (including death) or property
caused by or resulting from steam, gas, electricity, water, rain or snow which
may flow or leak from any part of the Premises, or from any pipes, appliances or
plumbing works of the same or from the street or subsurface or from any other
place, nor from interference with light or other incorporeal hereditaments or
easements, however caused, except as due to the affirmative acts or gross
negligence of the Landlord. Except as set forth in Exhibit C, the Tenant
specifically agrees to pay all charges for electricity, water, light, and sewer
supplied to the Premises, and shall indemnify the Landlord against any and all
liability on such account.
9. COMPLIANCE WITH LAWS.
The Tenant, at its sole expense, shall comply with all laws, orders and
regulations of federal, state, and municipal authorities, with any direction of
any public officer, pursuant to law, any requirements of any insurance carrier
insuring the Premises or the building of which the Premises are a part affecting
the Premises or relating to the use or occupancy of the Premises by the Tenant.
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The Tenant, at its sole expense, shall obtain all licenses or permits which may
be required for the conduct of its business, the use of the Premises by it, or
for the making of repairs, alterations, improvements, or additions to the
Premises and the Landlord, where necessary, will join with the Tenant in
applying for all such permits or licenses. Tenant shall not use or occupy the
Premises for any unlawful purpose. Landlord has no knowledge of any violation of
any permit or approval previously granted in connection with the use or
occupancy of the Building. Any future changes, additions or improvements to the
Building by Landlord shall be performed in conformance with all applicable
rules, ordinances and regulations. Landlord warrants and represents that the
common areas of the Building are in compliance with the requirements of Title
III of the Americans with Disabilities Act of 1990, 42 U.S.C. ss.12101 et seq.
("ADA"). Landlord further covenants and agrees that any alterations,
modification, fit-up or construction performed by Landlord to the common areas
located thereon shall be performed in compliance with the ADA. Tenant represents
and covenants that it shall conduct its occupancy and use of the Premises in
accordance with the ADA (including, but not limited to, modifying its policies,
practices and procedures, and providing auxiliary aids and services to disabled
persons). If the Lease provides that the Tenant is to complete certain
alterations and improvements to the Premises in conjunction with the Tenant
taking occupancy of the Premises, Tenant agrees that that work shall comply with
the ADA and, on request of the Landlord, Tenant shall provide Landlord with
evidence reasonably satisfactory to Landlord that that work was performed in
compliance with
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the ADA. Furthermore, Tenant covenants and agrees that any and all future
alterations or improvements made by Tenant to the Premises shall comply with the
ADA.
10. CONDITION OF PREMISES.
The Tenant acknowledges that it has had sufficient opportunity to inspect the
Premises and accepts the Premises in its present condition and without any
representation or warranty by the Landlord as to the condition of the Premises
or any improvements which are located on the Premises or as to the use or
occupancy which may be made thereof. Tenant acknowledges that Landlord and
Landlord's agents have made no representation or warranties as to the condition
or use of the Premises except Landlord represents and warrants that the Premises
is zoned for general office and light warehousing and ancillary uses, and that
to Landlord's knowledge, the Building does not contain latent defects. At the
expiration or earlier termination of this lease, the Tenant shall remove all
goods and effects not the property of Landlord and shall peaceably surrender the
Premises in as such condition as they are required to be maintained hereunder.
11. ALTERATIONS AND IMPROVEMENTS.
No alteration, addition, or improvement to the Premises shall be made by the
Tenant without the prior written consent of the Landlord, which shall not be
unreasonably withheld or delayed. The Tenant may not place on the Premises any
sign or advertising matter of any kind without obtaining the prior written
approval of the Landlord, which shall not be unreasonably withheld or delayed.
Any alteration, addition, or improvement made by the Tenant shall become the
property of the Landlord upon the expiration or other sooner termination of this
lease unless Tenant notifies Landlord not less than one hundred twenty (120)
days prior to the expiration of the lease, that Tenant desires to remove some or
all of such alterations, additions or improvements. In that event, Tenant
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may remove such alterations, additions or improvements provided that Tenant,
prior to vacating the Premises, restores the Premises and the Building to their
original condition. Tenant shall have the option of removing trade fixtures and
placing the Premises in their original condition at the Tenant's cost upon such
termination of this lease. Tenant may desire to add a mezzanine level of
approximately six thousand (6,000) square feet in the Premises in order to
increase the usable lease area. Landlord is willing to consider Tenant's
proposal in the future, provided that the parties agree to mutually satisfactory
terms and conditions, and an addendum to this Lease is executed. If the other
terms and conditions are agreed to, Landlord shall lease the mezzanine space at
the same rental rate, or such lower rate as may be negotiated by the parties,
and CAM charges per square foot as the original ground floor space described in
Exhibits A and B attached hereto. If approximately six thousand (6,000) square
feet of mezzanine is added by Tenant, Landlord shall provide an additional
twenty four (24) exclusive parking spaces to Tenant.
12. TENANT'S DEFAULT.
A "default" shall be defined for all purposes of the lease as follows:
(a) Failure to make due and punctual payment of any Base Rent or other
sums payable under this lease when and as the same shall become due
and such failure shall continue for a period of ten (10) days after
written notice of default by Landlord to Tenant specifying that such
amounts have not been paid when due; or
(b) Failure by the Tenant in the performance or compliance with any of the
agreements, terms, covenants or conditions in this lease other than
those referenced in the foregoing subparagraph (a), and such failure
shall not be cured within a period of thirty (30) days after written
notice by the Landlord to the Tenant specifying the failure, or, in
the case of a failure
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which cannot with due diligence be cured within said thirty (30) day
period, if the Tenant fails to commence within said thirty (30) day
period the steps necessary to cure the same and thereafter to
prosecute the cure of such failure with due diligence; or
(c) If the Tenant shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent, or if there shall be appointed
a receiver or trustee of all or substantially all of the property of
the Tenant, or if the Tenant shall make an assignment for the benefit
of creditors; or
(d) If the Tenant shall vacate the Premises, without taking reasonable
measures to protect the Premises against vandalism, theft or weather,
and any such condition shall continue for a period of twenty days
after written notice from the Landlord.
Upon the occurrence of one or more events of default, in addition to any other
rights or remedies the Landlord may have, the Landlord shall have the right to
immediately re-enter and regain possession of the Premises and to exclude the
Tenant from further use, occupancy, and enjoyment thereof. In particular, but
not by way of limitation, the Landlord may in the event of such uncured default,
remove all persons and property from the Premises and may store such property in
a public warehouse or elsewhere at the cost of and for the account of the
Tenant, all without service of notice or resort to legal process and without
being deemed guilty of trespass or becoming liable for any loss or damage which
may be occasioned thereby. Should the Landlord elect to re-enter, as provided
herein, or should the Landlord take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, this lease shall terminate. The
Landlord shall use reasonable efforts to relet the Premises or any part thereof
for such term or terms which may be for a term extending beyond the term of this
lease, and at such rental and upon such other terms and conditions as the
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Landlord, reasonably deems advisable. Upon such reletting, all rental thereby
received by the Landlord shall be applied: first, to the payment of any
reasonable costs and expenses of such reletting, including brokerage fees and
attorneys' fees, and costs of any such alterations and repairs as the Landlord
may make to facilitate such re-rental; second, to the payment of any Base Rent
or other amounts due hereunder from the Tenant to the Landlord; and, third, the
residue, if any, shall be held by the Landlord and applied in payment of future
rent as the same may become due and payable hereunder. If such rent received
from such reletting during any month be less than that to be paid during the
month by the Tenant hereunder, the Tenant shall pay any such deficiency to the
Landlord. Should the Landlord at any time terminate this lease for any default,
in addition to any other remedies it may have, the Landlord may within twelve
(12) months after such termination upon notice to the Tenant, elect to recover,
in lieu of other remedies, from the Tenant all damages the Landlord may incur by
reason of such default, including the costs of recovering the Premises,
reasonable attorneys' fees, together with the worth at the time of such
termination of the excess, if any, of the amount of rent and other sums payable
by Tenant hereunder for the remainder of the applicable term over the then
reasonable rental value of the Premises for the remainder of such term, all of
which amounts shall be immediately due and payable from the Tenant to the
Landlord.
13. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS, AND TENANT'S RIGHT TO
PERFORM LANDLORD'S OBLIGATION OF MAINTENANCE AND REPAIR.
If the Tenant is in default of any provision of this lease, other than the
provisions requiring the payment of rent, and the Landlord shall give to the
Tenant written notice of such default, and if the Tenant shall fail to cure such
default within twenty (20) days after the receipt of such notice, then the
Landlord may cure such default for the account of the Tenant, and any sums
reasonably expended
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by the Landlord in connection therewith shall be deemed to be additional rent
and payable with rent which shall next become due. Once Tenant pays the amount
as additional rent, Tenant's default shall be deemed cured for all purposes. If
the Landlord is in default of any of its obligations of repair or maintenance
under this lease, Tenant shall have the right to give Landlord 30 days written
notice of Tenant's intention of making the repairs or required maintenance, and
if Landlord fails to effect the required maintenance or repair within the said
30 days (unless delayed by causes beyond the control of Landlord), Tenant may
contract and perform said repairs or maintenance, and deduct the cost from its
rental payments hereunder. If the Landlord's failure to repair or maintain
causes an emergency situation in the Premises which threatens the health or
safety of Tenant's occupants, or an immediate threat to the property of Tenant,
Tenant shall give reasonable notice to Landlord before performing any repairs or
maintenance itself.
14. RIGHT OF ACCESS.
Upon reasonable prior notice from the Landlord to the Tenant, the Landlord and
its representatives may enter the Premises at reasonable times for the purpose
of inspecting the Premises, performing any work on the Premises or the property
of which the Premises are a part which the Landlord is authorized or obligated
to undertake, exhibiting the Premises for sale or lease, (but only within the
last 12 months of the term), or mortgage financing, or posting any required
notices.
15. INSURANCE.
During the term of this lease, the Tenant, at its sole cost and expense, and for
the benefit of the Landlord, shall carry and maintain the following types of
insurance in the amounts specified:
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(a) Fire and extended coverage insurance covering the betterments and
improvements of Tenant against loss or damage by fire and against loss
or damage by other risks now or hereafter embraced by "extended
coverage", so-called, in an amount not less than full replacement
cost.
(b) Comprehensive public liability insurance, including property damage,
insuring the Landlord against liability for injury to persons or
property occurring in or about the Premises or arising out of the
ownership, maintenance, use, or occupancy thereof. The liability under
such insurance shall not be less than Five Million Dollars
($5,000,000.00) for any one person injured or killed, and not less
than Three Million Dollars ($3,000,000.00) for any one accident and
not less than One Million Dollars ($1,000,000.00) for personal
property damage per accident.
All insurance policies maintained by Tenant pursuant to the terms of this lease
shall be issued by insurance companies reasonably acceptable to Landlord, shall
name Landlord and Tenant as insureds as their respective interests may appear
and shall be written as primary policies which do not contribute to and are not
in excess of coverage which Landlord may carry. All such insurance policies
shall require the insurance carriers to provide the Landlord with at least
fifteen (15) days written notice prior to termination or cancellation of any
policy. At the commencement of the term of this lease and thereafter not less
than fifteen (15) days prior to the expiration date of any policy required
hereunder, Tenant shall deliver to Landlord certificates of insurance in form
and substance acceptable to Landlord.
Landlord shall keep the Building, and the Property insured against damage and
destruction by fire, vandalism, and other perils in the amount of the full
replacement value of the Building, as
March 11, 1996
20
the value may exist from time to time. The insurance shall include an extended
coverage endorsement of the kind required by an institutional lender to repair
and restore the Building.
The Landlord shall maintain contractual and comprehensive general liability
insurance, including public liability and property damage, with a minimum
combined single limit of liability of five million dollars ($5,000,000.00) for
personal injuries or deaths of persons occurring in or about the Building,
Property and the Premises. The Landlord shall name the Tenant as an additional
insured as the Tenant's interest may appear.
16. WAIVER OF SUBROGATION.
Each of Landlord and Tenant hereby releases the other from any and all liability
or responsibility to the other or anyone claiming through or under them by way
of subrogation or otherwise for any loss or damage to Property, including the
Building and the Premises caused by fire or any of the extended coverage or
supplemental contract casualties, even if such fire or other casualty shall have
been caused by the fault or negligence of the other party or anyone for whom
such other party shall be responsible; provided, however that any such release
shall not adversely affect or impair any insurance policies required to be
maintained hereunder, or prejudice the right of the releasor to recover under
such policies. Landlord and Tenant agree that each will require its insurance
carrier to include in its policy a clause or endorsement confirming the
foregoing. If extra costs shall be charged therefor, the insuring party shall
advise the other thereof and the other party, at its election, may pay the same,
but shall not be obligated to do so; provided, however, if the other party does
not pay such extra cost then the first party need not include in its policy such
a clause or endorsement.
March 11, 1996
21
17. TENANT'S PROPERTY.
(a) The Landlord, its agents, contractors, or employees, shall not be liable
for any damage to property of the Tenant or of others located on the
Premises or entrusted to its employees nor for the loss of any such
property by theft or otherwise, and Landlord, its agents, contractors, or
employees shall not be liable for any injury or damage to persons or
property resulting from fire,; explosion, falling plaster, steam, gas,
electricity, wind, water, rain, snow or ice which may leak into the
Premises from pipes, appliances or plumbing systems or from the street or
from any other place, or from dampness or from any other cause whatsoever,
unless caused by or due to the willful or negligent act or omission of the
Landlord or its agents, contractors, or employees. All property of the
Tenant or of others kept or stored on the Premises shall be so kept or
stored at the risk of the Tenant only and the Tenant shall hold the
Landlord harmless from any claims arising out of any damage to the same.
(b) If the Tenant is in default under the terms of this lease and vacates or
abandons the Premises (or after 15 days from the termination or expiration
of this lease), any property that the Tenant leaves on the Premises shall
be deemed to have been abandoned and may either be retained by the Landlord
as its own property or may be disposed of at public or private sale as the
Landlord sees fit. Any property of the Tenant sold at public or private
sale or retained by the Landlord shall have the proceeds of any such sale,
or the then current fair market value of any property retained by the
Landlord as reasonably determined by the Landlord, applied by the Landlord
against (i) any expenses of the Landlord for removal, storage or sale of
such property, (ii) any unpaid Base Rent or other amounts payable under
this lease and (iii) any damages or other amounts to which the Landlord may
be entitled under this lease. The
March 11, 1996
22
balance of such amounts, if any, shall be paid to the Tenant at the address
set forth herein for notices to the Tenant. The Landlord hereby waives any
statutory lien or other security interest that it now or hereafter may have
(unless affirmatively granted by the Tenant) in the goods, equipment and
other personal property of the Tenant presently, or which may hereafter be,
situated on the Premises.
18. QUIET ENJOYMENT.
Landlord covenants and agrees with Tenant that upon Tenant paying said rent, and
performing all the covenants and conditions aforesaid, on Tenant's part to be
observed and performed, Tenant shall and may peaceable and quietly have, hold
and enjoy the premises hereby demised, twenty-four hours a day, seven days a
week, for the term aforesaid, subject, however, to any future underlying
mortgages, in accordance with Paragraph 22 herein.
Landlord agrees to limit other uses in the building to those which would not
unreasonably affect Tenant's peaceful use and occupancy. For example, Landlord
will not allow uses which would cause undue noise, odor or vibrations, such as
cheese-making, oil storage, foundries and other heavy industrial use, or any
other uses which would not be reasonably compatible with office/light
industrial/institutional or educational uses. Landlord shall also take
reasonable measures to provide that any future use of the building will not
interfere with "food grade" (as that term is used in applicable federal
regulations) storage of Tenant.
19. ASSIGNMENT AND SUBLETTING.
March 11, 1996
23
This lease may not be assigned or the Premises sublet by the Tenant without the
express written consent of the Landlord, which shall not be unreasonably
withheld or delayed. However, Tenant may assign this lease or sublease part or
all of the Premises without Landlord's consent to:
(i) any corporation or partnership that controls, is controlled by, or is
under common control with, Tenant; or
(ii) any corporation resulting from the merger or consolidation with Tenant
or to any entity that acquires all or substantially all of Tenant's
assets as a going concern of the business that is being conducted on
the Premises, as long as the assignee or sublessee is a bona fide
entity and assumes the obligations of Tenant.
20. INDEMNIFICATION.
Tenant's Indemnity. Tenant indemnifies, defends, and holds Landlord harmless
from claims which are:
(a) for personal injury, death, or property damage; and
(b) for incidents occurring in or about the Premises or Building or Property;
and
(c) caused by the negligence or willful misconduct of Tenant, or those parties
for whose conduct the Tenant is legally responsible.
When the claim is caused by the joint negligence or willful misconduct of Tenant
and Landlord or Tenant and a third party unrelated to Tenant, except Tenant's
agents, employees, or invitees, Tenant's duty to defend, indemnify, and hold
Landlord harmless shall be in proportion to Tenant's allocable share of the
joint negligence or willful misconduct.
Landlord's Indemnity. Landlord indemnifies, defends, and holds Tenant harmless
from claims which are:
March 11, 1996
24
(a) for personal injury, death, or property damage; and
(b) for incidents occurring in or about the Premises or Building or Property;
and
(c) caused by the negligence or willful misconduct of Landlord, or those
parties for whose conduct the Landlord is legally responsible.
When the claim is caused by the joint negligence or willful misconduct of
Landlord and Tenant or Landlord and a third party unrelated to Landlord, except
Landlord's agents, employees, or invitees, Landlord's duty to defend, indemnify,
and hold Tenant harmless shall be in proportion to Landlord's allocable share of
the joint negligence or willful misconduct.
21. CONDEMNATION.
If at any time during the term of this lease a substantial portion of the
Premises (meaning thereby so much as shall render the Premises substantially
unusable by Tenant, as reasonably determined by Tenant) shall be taken by
exercise of the right of condemnation or eminent domain or by agreement between
Landlord and those authorized to exercise such rights, (all such proceedings
being collectively designated as a "taking in condemnation" or a "taking"), this
lease shall terminate and expire on the date of the taking and the rent and
other amounts payable by Tenant hereunder shall be apportioned and paid to the
date of the taking. Tenant shall have no right to interpose, prosecute or
collect a claim against the Landlord in any proceedings for taking in
condemnation for the loss of the value of this lease or improvements made by the
Tenant to the Premises; provided, however, that the Tenant may claim and recover
from the condemning authority, but not from the Landlord, such compensation as
may be separately awarded or recoverable by the Tenant in Tenant's own right on
account of any and all damage to Tenant's business by reason of any taking in
condemnation and for and on account of any cost or loss to which Tenant might be
put in removing Tenant's
March 11, 1996
25
merchandise, furniture, fixtures and equipment. Except as expressly set forth in
the immediately preceding sentence, any award for the value of the land,
buildings and improvements and loss of rent shall belong to the Landlord, and
Tenant shall not be entitled to share in any such award on account of any
leasehold interest. If the title to less than a substantial portion of the
Premises shall be taken in condemnation so that the business conducted on the
Premises (as reasonably determined by Tenant), can be continued without material
diminution, this lease shall continue in full force and effect. If the taking
does not amount to a substantial portion but does materially adversely affect
the Tenant's ability to conduct Tenant's business on the Premises, the rent from
and after the date of the vesting of title in the condemnor shall be equitably
adjusted by the Landlord to reflect the diminished value of the Premises to the
Tenant as a direct result of the condemnation. Any award for a partial taking
shall be vested as set forth herein relating to total taking in condemnation.
22. PRIORITY OF MORTGAGES.
This Lease shall be subject and subordinated to the lien of all mortgages and
deeds of trust at all times in any amount or amounts whatsoever that may now
exist or hereafter be placed on or against the Building or Property, or on or
against Landlord's interest or estate therein, all without the necessity of
having further instruments executed on the part of Tenant to effectuate such
subordination. Notwithstanding the foregoing, in the event of a foreclosure of
any such mortgage or deed of trust or of any other action or proceeding for the
enforcement thereof or of any sale thereunder, this lease will not be barred,
terminated, cut off, or foreclosed, nor will the rights or possession of Tenant
hereunder be disturbed, if Tenant shall not then be in default in the payment of
rent or other sums or be otherwise in default under this lease, and Tenant shall
attorn to the purchaser at such foreclosure, sale, or other action or
proceeding. Tenant agrees to execute,
March 11, 1996
26
acknowledge, and deliver upon demand such further instruments evidencing such
subordination of this lease to the lien of any such mortgages or deeds of trust
as may reasonably be required by Landlord. Provided, however, that Tenant's
covenant to subordinate this Lease to mortgages or deeds of trust hereafter
executed is conditioned upon each such senior instrument containing the
commitments specified in the preceding sentence. The Landlord represents to
Tenant that as of the date this lease is signed, there are currently no
mortgages or other liens or interests that would take priority over this lease,
and/or would require a third party consent.
23. CUMULATIVE REMEDIES.
The remedies of the Landlord herein shall be cumulative and not alternative, and
not exclusive of any other right or remedy available to the Landlord.
24. HOLDOVER TENANCY.
Any holding over by the Tenant after the termination of this lease shall be on a
day to day basis at the rate of (i) 150% of the Base Rent, plus (ii) applicable
CAM and utility charges in effect at the time of the holding over prorated on a
daily basis. The covenants and agreements contained herein shall remain in force
during the period of any holding over insofar as applicable.
25. HAZARDOUS SUBSTANCES.
Except for materials used, stored or handled in the ordinary course of Tenant's
business, in compliance with all applicable laws and regulations, the Tenant
shall not handle, process, store, release or use any hazardous or toxic
materials in or on the Premises without the express written consent of the
Landlord, which may be withheld in its sole discretion. In connection with the
Tenant's use or occupancy of the Premises, the Tenant shall comply in all
respects with any applicable law, ordinance, regulation or ruling relating to
environmental protection or the presence,
March 11, 1996
27
use, generation, storage, release, containment or disposal of hazardous or toxic
materials. The Tenant shall indemnify, defend and hold the Landlord harmless
from and against any and all damage, cost, loss, liability and expense
(including reasonable attorney's fees) which may be incurred by the Landlord by
reason of, resulting from, or arising in any manner whatsoever out of the breach
of the obligations of the Tenant contained in this Paragraph. The Landlord shall
require all other tenants in the Building to execute leases containing this
Hazardous Substances provision. Landlord has provided copies to Tenant of any
and all available environmental site assessments or reports on the land upon
which the Premises is located, and the Tenant hereby waives any claim against
Landlord in the future regarding toxic substances or hazardous waste disclosed
in said assessments and reports.
The Landlord represents that except as disclosed in said assessments and
reports, it has no knowledge of any toxic or hazardous materials on the
Property.
26. RECORDING OF LEASE.
This lease shall not be recorded by or on behalf of the Tenant, except at the
express request of the Landlord and in the event this lease is recorded without
the permission of the Landlord, then this lease agreement, at the option of the
Landlord, shall become null and void, and of no further force and effect, and
all rights of the Tenant hereunder shall cease. Either of the Landlord or the
Tenant may request that both parties agree to and sign and record a notice of
lease stating the names of the parties, the description of the Premises, the
term of this lease, and such other additional information as may be reasonably
necessary to accurately reflect the terms of this lease, and to protect the
legitimate interests of the Landlord and the Tenant against third parties.
March 11, 1996
28
27. RENEWAL OF LEASE.
The Tenant shall have the right to extend the Initial Term of this lease set
forth in Exhibit D attached hereto and made a part hereof. If there is no
Exhibit D attached hereto then the Tenant shall have no right to extend the
Initial Term of this lease. Except as set forth in Exhibit D any Renewal Term
shall be upon all of the terms and conditions of this lease, except no further
renewals or extensions of this lease shall be permitted. As a condition
precedent to the Tenant's exercise of any right of renewal provided by Exhibit
D, the Tenant must not be in default beyond any applicable notice and cure
provided herein. Tenant shall exercise each renewal, if at all, not less than
three hundred sixty five (365) days prior to the end of the then existing term.
Renewal shall be by written notice delivered to the Landlord.
28. NOTICES.
All
notices or other communications under this lease shall be in writing and shall
be personally delivered or deposited in the United States mail, first class,
registered or certified mail, postage prepaid and shall be addressed as follows:
(a) Landlord:
PMF Energy, Inc., Xxxxx-Vermont, Inc. and
Technology Park Associates, Inc.
c/o Xxxx Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
(b) Tenant:
Ben & Jerry's Homemade, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
March 11, 1996
29
Either party may change its address by providing notice to the other party in
accordance with the above requirements.
Notice for the purposes hereof shall be deemed given when mailed, except that if
any time period commences hereunder with notice, such time period shall be
deemed to commence when such notice is delivered or, if earlier, when postal
records indicate delivery was first attempted.
29. FIT-UP.
Landlord and Tenant agree to the fit-up and improvements shown on Exhibit E
attached hereto.
30. TEMPORARY OFFICE SPACE.
The Landlord shall provide Tenant with approximately 34,200 square feet of
temporary office space across the south side of the building as identified on
the plan attached as Exhibit F until May 1, 1996. Tenant shall have this
temporary space rent-free until May 1, 1996, but shall pay its prorated share of
CAM and utility expenses, as follows:
(1) an agreed sum of $15,732 in CAM charges through May 1, 1996, or a
pro-rata amount if Tenant vacates prior to May 1, 1996;
(2) 12.44% of all utility expenses (except for electricity); and
(3) a share of the total electric xxxx calculated as follows:
(i) the two (2) previous year's electric bills for the entire
Building prior to Tenant's occupancy shall be averaged and
divided by twelve (12) (the "Prior Monthly Average").
(ii) the difference ("Difference") between the Prior Monthly Average
and the monthly electric charge after occupancy ("Current Xxxx")
shall be determined.
March 11, 1996
30
(iii)Tenant shall pay to Landlord the Difference, plus an amount
equal to 12.44% of the current xxxx for the Building.
If the Tenant has not vacated this temporary office space by May 1, 1996, Tenant
shall pay to the Landlord as holdover rental, the sum of $15,000 per month for
each month, or a portion thereof that Tenant occupies said temporary office
space. The parties will use their best efforts to insure that the Premises are
complete and ready for occupancy by the Tenant by May 1, 1996.
31. OPTION TO EXPAND.
(a) Provided there is no default under this lease on the date the option is
exercised, Tenant shall have the exclusive option to lease an additional
27,300 square feet (28,392 square feet including 4% of Common Area),
adjacent to the Premises, as shown on Exhibit A, ("Option Space") at the
same rate per square foot, Base Rent, plus CAM charges, and the prorata
share of utility charges, and under the same terms and conditions described
in this lease.
(b) Tenant shall exercise its option to lease the additional space no later
than December 31, 1996, by notifying Landlord in writing during the term of
the option, and if Tenant does exercise its option rights hereunder, Tenant
shall lease the Option Space on the terms referred to in subparagraph (a)
above except that:
(1) the term for the Option Space shall be coterminous with the term of
Tenant's lease of the Premises;
(2) the space shall be taken by Tenant "as is"; and
(3) A confirmatory amendment to this Lease providing for the lease of the
Option Space shall be executed by Tenant within ten (10) business days
of the receipt by Landlord from Tenant of its intent to exercise the
option. Notwithstanding the foregoing, it is
March 11, 1996
31
expressly understood and agreed that the Option Space shall
automatically be added to the Premises under this lease once the
expansion option has been validly exercised by the Tenant.
32. LIMITATION OF LIABILITY.
Notwithstanding anything to the contrary contained in this Lease, Tenant agrees
and understands that Tenant shall look solely to the estate in the Property of
Landlord, including, but not limited to, all rents, profits and proceeds
therefrom, for the enforcement of a judgment (or other judicial decree)
requiring the payment of money by Landlord to Tenant by reason of default,
breach or event of default of Landlord in performance of its obligations under
this Lease, it being intended that there will be absolutely no personal
liability on the part of Landlord, and no other assets of Landlord, the
investors in Landlord, or of Landlord's partners, if any, shall be subject to
levy, execution, attachment or any other legal process for the enforcement or
satisfaction of the remedies pursued by Tenant in the event of such default,
breach, or event of default, this exculpation of liability to be absolute and
without exception whatsoever.
33. DAMAGE OR DESTRUCTION OF PREMISES.
(a) In the event that the Premises or the Building is damaged or destroyed by
fire, windstorm, or any other casualty to such an extent that it shall
appear unlikely under the existing conditions that such damage could be
repaired within ninety (90) days from the date such work commences, then
Tenant shall have the privilege of terminating this Lease as of the date of
such event (notwithstanding any provisions in the Lease to the contrary) by
furnishing written notice to Landlord to that effect not more than thirty
(30) days after such event; and
March 11, 1996
32
upon such election by Tenant, the rental hereunder shall be prorated and
paid or refunded, as the case may be, as of the date the damage occurred.
(b) If, however, the nature of such damage is such that the Building could
reasonably be repaired or reconstructed substantially to its former
condition within ninety (90) days from the date such work commences, or if
Tenant did not exercise its aforementioned privilege to terminate this
Lease, then in either or such events, Tenant shall not be entitled to
surrender this Lease, but Landlord shall with reasonable due diligence
commence to repair and restore the Premises to a condition at least
equivalent to that prevailing immediately prior to the happening of such
casualty with all reasonable dispatch, and in any event, in the absence of
unavoidable delay, such repair or restoration to be completed within ninety
(90) days from the date such work commences, or such other period of time
as Tenant and Landlord may agree upon in writing, and if, during the period
of such repair or restoration, Tenant is deprived of occupancy of all or
any part of the Premises for Tenant's accustomed use thereof, then, to the
extent that Tenant may be unable reasonably to conduct its regular business
therein, Tenant shall receive a proportionate reduction from its rental
obligation hereunder corresponding to the time during which, and the
proportion of said Premises from which, Tenant shall have been so deprived.
In all events, the Tenant shall have the further option of terminating this
lease should repairs to or restoration of the Premises not be complete
within six months of the date of the casualty.
(c) Notwithstanding the foregoing provisions in this Paragraph 33, if, as a
result of such casualty, the Building shall be damaged or destroyed to such
an extent as to require substantially the rebuilding of at least sixty
percent (60%) thereof, and if all other leases in
March 11, 1996
33
the Building are being terminated and the Landlord has determined not to
repair or restore the Building, then, in such event, Landlord shall have
the privilege of terminating this Lease as of the date of such casualty by
furnishing written notice to Tenant to the effect not more than thirty (30)
days after the occurrence of such casualty, in which event the rental
hereunder shall be prorated and paid, or refunded, as the case may be, as
of the date the casualty occurred.
34. MISCELLANEOUS.
(a) Landlord will use reasonable efforts to negotiate favorable utility rates
with the various utilities. Tenant shall pay their own separate utility
charges for water, sewer and electricity, and shall pay its prorata share
of heating and cooling expenses.
(b) At the request of Landlord, Tenant shall deliver current financial
statements to Landlord or Landlord's bank for the purpose of securing
financing.
(c) Tenant acknowledges and agrees that Landlord is in the process of seeking
both state and local approvals and permits for a fourteen (14) lot
subdivision ("Technology Park"). Tenant agrees to cooperate, at no expense
to the Tenant, with Landlord in connection with said permits and approvals.
In addition, Tenant shall not ask for party status in the approval process,
nor shall Tenant directly or indirectly attempt to influence the outcome of
the permit process in any manner deemed adverse to Landlord; Tenant shall
not appeal any permit or approval, nor influence anyone else to appeal any
permit.
(d) In any litigation between the parties regarding this lease, the losing
party shall pay to the prevailing party all reasonable expenses and court
costs including attorneys' fees incurred by the prevailing party. A party
shall be considered the prevailing party if:
March 11, 1996
34
(1) it initiated the litigation and substantially obtains the relief it
sought, either through a judgment or the losing party's voluntary
action before arbitration (after it is scheduled), trial, or judgment;
(2) the other party withdraws its action without substantially obtaining
the relief it sought; or
(3) it did not initiate the litigation and judgment is entered for either
party, but without substantially granting the relief sought.
(e) The Tenant shall have the right to place 5 sign(s) on the exterior of the
Building with Landlord's prior written consent, which shall not be
unreasonably withheld or delayed, and subject to the Tenant receiving all
approvals and permits necessary under the South Burlington sign ordinance.
(f) In the event the Premises is rendered substantially unusable (through no
fault of Tenant, its employees, agents, invitees, or contractors) by reason
of some event not covered by fire, casualty or business interruption
insurance, and the Premises remains substantially unusable for more than
two (2) weeks, there shall be a prorata abatement of Base Rent and other
charges payable hereunder for the period after two (2) weeks in which the
Premises remains unusable. If the Premises remains unusable for more than
two (2) months, under this subparagraph, the Tenant shall have the option
of terminating this lease, in which event, all payments hereunder shall be
prorated and paid, or refunded as the case may be.
35. RIGHT OF FIRST OFFER OF ADDITIONAL SPACE.
A. Space Subject to First Offer
March 11, 1996
35
The terms of this Paragraph 35 shall apply to the balance of the space in
that one half of the Building to be occupied by Tenant as shown on Exhibit
A, including that portion of such space currently subject to Tenant's
expansion option under Paragraph 31, after Tenant's option has expired by
its terms without having been exercised by Tenant.
B. Notice Procedure
The Landlord shall give the Tenant notice of the proposed rent and any
other material terms upon which any part or all of the subject space is to
be leased to a third party. The Tenant shall then have ten (10) business
days from such notice to determine whether or not it elects to lease any or
all of such space. If the Tenant does elect to lease this space, the lease
for the new space will be coterminous with and on the same terms as the
lease for the rest of the Tenant's Premises, with the exception of Base
Rent, which will be the amount specified by the Landlord in its notice to
the Tenant. If the Tenant does not elect to lease the additional space, the
Landlord shall be free to offer the space to third parties at no lower rent
and on no more materially favorable terms than those presented to the
Tenant; provided, however, that if the Landlord is unable to lease this
space within six (6) months of the date the Tenant rejected the Landlord's
offer, or if the Landlord makes a different, more favorable offer to third
parties, the Landlord shall be required to re-offer the space to the
Tenant.
36. WAIVER.
The failure of the Landlord to insist upon strict performance of any of the
terms, conditions and covenants herein, shall not be deemed a waiver of any
rights or remedies that the Landlord may have and shall not be deemed a waiver
of any subsequent breach or default in the terms, conditions and covenants
herein contained.
March 11, 1996
36
37. INVALIDITY OR INAPPLICABILITY OF CLAUSE.
If any term or provision of this lease or the application thereof to any person
or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this lease shall be valid and be enforced to the fullest extent permitted by
law.
38. CAPTIONS.
The headings and captions contained in the lease are inserted for convenience of
reference only, and are not to be deemed part of or to be used in construing
this lease.
39. SUCCESSORS OR ASSIGNS.
The covenants and agreements herein contained shall, subject to the provisions
of this lease bind and inure to the benefit of the Landlord, its successors and
assigns, and Tenant, its successors and assigns, except as otherwise
specifically provided herein.
40. ENTIRE AGREEMENT; AMENDMENTS.
It is expressly understood and agreed by and between the parties hereto that
this lease sets forth all the promises, agreements, conditions, inducements and
understandings between the Landlord and the Tenant relative to the Premises and
that there are no promises, agreements, conditions, understandings, inducements,
warranties or representations, oral or written, express or implied, between them
other than as herein set forth and shall not be modified in any manner except by
an instrument in writing executed by the parties.
March 11, 1996
37
IN WITNESS WHEREOF, the parties have executed this lease the day and year
first above written.
In the presence of: PMF ENERGY, INC.
XXXXX-VERMONT, INC.
TECHNOLOGY PARK ASSOCIATES, INC.
By: TECHNOLOGY PARK ASSOCIATES, INC.
_______________________ By:________________________________
/s/Xxxxx X. Xxxxxx /s/Xxxx Xxxxxx
Its Duly Authorized Agent
TENANT:
BEN & JERRY'S HOMEMADE, INC.
_______________________ By:________________________________
/s/Xxxxxxx Xxxxx /s/Xxxxxx Xxxxxxx, Jr.
Its Duly Authorized Agent
[drenau.wp.pmc.tpa]xxxxx.xx
4829/1
March 11, 1996
38
EXHIBIT A
DESCRIPTION OF PREMISES
FLOOR PLAN
March 11, 1996
39
EXHIBIT A-1
SITE PLAN
March 11, 1996
40
EXHIBIT B
SCHEDULE OF RENTS
INITIAL TERM
Period Annual Rental for 50,388 square feet
------ -------------
Year
1 $201,552 ($4.00 per square foot)
2 214,149 ($4.25 per square foot)
3 226,746 ($4.50 per square foot)
4 226,746
5 226,746
6-10 226,746 adjusted annually for increase in CPI
with a minimum of 2% per year and a
maximum of 6% per year (i.e., year 6
rental shall be $226,746 per year plus
the increase in CPI, as defined in
Exhibit D, from year 5) plus
applicable CAM charges.
March 11, 1996
41
EXHIBIT C
SERVICES SUPPLIED BY LANDLORD
The Landlord shall provide the Premises with the following services:
o Reasonable heating and air conditioning, for which Tenant shall
pay its prorata share as additional rental. Tenant's share of
heating and air conditioning cost shall be 18.32% of Landlord's
total cost. If Tenant exercises its option to lease additional
space pursuant to Paragraph 31 herein, Tenant's share of heating
and air conditioning costs shall be 28.6% of Landlord's total
cost.
o Snow removal from all parking lots, driveways, sidewalks,
emergency exits and roof.
o Landscaping, including maintenance of the parking lot and lawns,
trees, shrubbery, walkways and sidewalks.
o Maintenance of the roof, exterior shell and structural elements
of the Building.
o Maintenance and preservation of the water supply, (excluding
sinks and drains within the Premises), including complying with
and obtaining all necessary permits.
o Maintenance and preservation of sewage system, (excluding
toilets, drains and sinks within the Premises), including
complying with and obtaining all necessary permits.
o Maintenance of HVAC system, including piping to all units.
o Existing exterior lighting or future lighting installed by
Landlord.
o Emergency generator.
o Boiler.
o Sprinkler system; fire alarm system and panel.
o Provision of existing telephone lines into Building.
March 11, 1996
42
EXHIBIT D
RIGHT TO EXTEND TERM
NO RIGHT TO EXTEND INITIAL TERM
X The Tenant shall have the right to extend the Initial Term of
this lease for two (2) additional term(s) of five (5) years each
in accordance with the provisions of Paragraph 27 of the lease.
The Base Rent during each year in any Renewal Term shall be equal
to the Base Rent for the 10th year rate, adjusted annually by
increases, if any, in the Consumer Price Index, (the "Index"),
with a minimum 2% per year increase and a maximum of 6% increase
in any one year. The Index shall mean the Consumer Price
Index-All Urban Consumers published by the Bureau of Labor
Statistics of the United States Department of Labor.
March 11, 1996
43
EXHIBIT E
FIT-UP AND IMPROVEMENTS TO BE PERFORMED
BY LANDLORD AND TENANT
The Landlord shall perform the following improvements to the premises:
1. Separate water meter and separate electric meter for service to the
premises.
2. Landlord shall turn the space over to Tenant in broom-clean condition,
and shall remove all office equipment and the "environmental room".
3. Landlord shall leave in place through May 1, 1996, office partitions
as part of the front office space. Tenant shall have the option to
purchase or lease the existing partitions after May 1, 1996 if the
parties can agree on a lease or sale price.
4. Clean existing condensate drains; provide vented traps to eliminate
pressure differences caused by other AHUs and insure complete drainage
of lines and pans.
5. Adjust, repair or replace flush valves in toilet room as needed.
6. If lab. results on samples from AHUs at Column 8c, 9c, 8e and 9e from
testing performed by Xxxxx Aerobiology are high, remove duct and
casing liner and clean and decontaminate AHU ducts by trained
professionals. If lab. tests are low, remove duct and casing liner;
clean ducts and AHUs; reinsulate casings and ducts with external
insulation; rigid where exposed and wrap, where concealed.
Tenant shall provide the following fit-up and improvements at its expense:
1. Tenant may install a sky-light on the premises provided that it meets
the approval of Landlord for design and structural standards.
2. The remaining fit-up of the premises including the renovating of
entrance ways and windows, shall be at the Tenant's own expense, and
all Tenant fit-up plans shall be first approved in writing by
Landlord, which approval shall not be unreasonably withheld or
delayed.
At the termination of the Lease, Tenant shall not be required to remove any
of its fit-up improvements.
March 11, 1996
44
