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EXHIBIT 10.1
SUBLEASE
This Sublease (the "Sublease") is entered into by HEWLETT-PACKARD
COMPANY, a California corporation ("Sublessor"), as successor by merger
to Apollo Computer Inc., and THE TIMBERLAND COMPANY, a Delaware
corporation ("Sublessee"), as of the day of , 1994.
1. PROPERTY SUBLEASED. Sublessor hereby subleases to Sublessee, and
Sublessee hereby subleases from Sublessor, upon the terms and
conditions set forth herein, a certain building (the "Building")
situated on certain land described in Exhibit "A" hereto attached and
incorporated herein by this reference, commonly referred to as 200
Domain Drive, Stratham, New Hampshire containing approximately
246,000 rentable square feet of space (determined in accordance with
the BOMA Standard Method for Measuring Floor Area in Office
Buildings), together with the exclusive right to use the "common
areas" (as hereinafter defined) located upon said land (the Building
and the land upon which it is located as described in said
Exhibit "A", including, without limitation, the "common areas" (as
hereinafter defined) are sometimes hereinafter referred to as the
"Premises"). The term "common areas", as herein used, shall mean all
areas, sidewalks, parking areas, access roads and drives, driveways,
landscaped areas, truck serviceways, docks, and pedestrian walkways,
facilities, equipment and signs situated on said land. Only
Sublessee and those claiming under Sublessee shall have the right to
use the common areas, which common areas shall be deemed a part of
the Premises for purposes of this Sublease; provided, however, that
Sublessee acknowledges and agrees that Master Lessor (as defined in
Paragraph 3 of this Sublease) has reserved the right in the Master
Lease (as defined in said Paragraph 3) to grant for itself and for
others drainage and/or utilities easements in, upon and over the
common areas so long as such easements and the facilities installed
pursuant thereto shall not materially interfere with Sublessee's use
of the common areas. To the best of Sublessor's knowledge, the
Premises include all appurtenant easements and other rights that are
needed by Sublessee to use the Premises for the purposes herein
permitted.
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2. PARKING. Sublessee shall have the exclusive use of the existing
parking spaces delineated on the Premises. Sublessor shall have no
obligation to patrol, enforce, or supervise the use of such parking
spaces. Sublessee shall have the right to mark any parking spaces on
the Premises as reserved by signage or otherwise. Without having
made any investigation or inquiry, Sublessor has no reason to believe
that the number of parking spaces on the Premises does not comply
with the applicable requirements of the zoning regulations of the
Town of Stratham, New Hampshire.
3. MASTER LEASE AND MASTER LESSOR. The Premises are presently leased by
Sublessor from the trustees of First Altex Realty Trust ("Master
Lessor"). Sublessor and Master Lessor entered into a lease for the
Premises on June 19, 1984, as amended by a certain Amendment A, dated
December 21, 1984, as further amended by a certain Stratham Lease
Amendment, dated as of May 21, 1986, as affected by a certain letter,
dated September 26, 1990, from Sublessor to the Master Lessor and as
further amended by a certain Amendment to Lease of even date herewith
(said lease, as amended and affected by the above-listed documents,
is hereinafter referred to as the "Master Lease"). A copy of the
Master Lease is attached hereto as Exhibit "B".
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4. PREMISES SUBJECT TO CERTAIN PROVISIONS OF MASTER LEASE. This
Sublease is subject to, and Sublessee shall be bound with respect to
the Premises and this Sublease by, all of the terms, covenants and
conditions of Articles V; VIII; XVI through XIX; XXVIII; and
Exhibit "A" of the Master Lease, which are incorporated herein by
this reference.
Notwithstanding any obligations of the Sublessor, as the "Tenant"
under the Master Lease, to the contrary, it is expressly understood
and agreed that the following provisions of the Master Lease are not
incorporated herein by reference and are entirely superseded and of
no force or effect, as between the Sublessee, on the one hand, and
the Sublessor, Master Lessor and its mortgagee, as applicable, on the
other, by the provisions of this Sublease: Articles I through IV; VI
and VII; IX through XV; XX through XXVII; XXIX; and Exhibit "B".
To the extent that there are any inconsistencies between the terms
and provisions of this Sublease and the terms and provisions of the
Master Lease that are incorporated herein by reference, the terms and
provisions of this Sublease shall control. Any obligations of the
Sublessor, as the "Tenant" under the Master Lease, that are not
expressly set forth herein as an obligation of the Sublessee under
this Sublease shall remain the obligation of the Sublessor under the
Master Lease. Sublessor agrees that it shall comply with the terms,
covenants and conditions of the Master Lease and not act or suffer or
permit anything to be done which would result in a default under the
Master Lease beyond any applicable notice and cure period.
In the event that the Master Lessor succeeds to the Sublessor's
interest under this Sublease, Sublessee acknowledges and agrees that
any obligation under this Sublease on the part of Sublessee to pay
over to Sublessor any amount that Sublessor is obligated under the
Master Lease to pay over to the Master Lessor shall thereupon become
the direct obligation of Sublessee to pay over such amount to the
Master Lessor.
Sublessor agrees that it will not terminate the Master Lease without
Sublessee's prior written consent, except as provided in Paragraph 14
of this Sublease. Except as provided in said Paragraph 14, if
Sublessor desires to terminate the Master Lease, Sublessor shall
notify Sublessee of its desire so to do, whereupon Sublessee shall
either consent or not consent to such termination by giving written
notice to Sublessor within twenty (20) business days after receipt of
Sublessor's notice. Failure by Sublessee to give such notice within
such twenty (20) business day period shall constitute irrevocable and
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conclusive consent to such termination on the part of Sublessee. In
the event that Sublessor thereafter elects to terminate the Master
Lease as aforesaid, Sublessor shall notify Sublessee of such
termination and this Sublease shall likewise terminate as of the
effective date of the termination of the Master Lease.
5. TERM. The term of this Sublease (the "Sublease Term") shall commence
on April 1, 1994 ("Commencement Date") and end on July 14, 1999
("Expiration Date"), subject to Sublessee's right to extend the term
as hereinafter provided. The Sublessee shall be entitled to install
fixtures and other equipment, and do other work, prior to the
Commencement Date, provided, however, that all of Sublessee's
obligations hereunder (except the obligations to pay Base Rent and
Operating Expenses) shall commence on the date Sublessee first enters
upon the Premises to perform any such work. If this Sublease is
still in full force and effect, and if Sublessee is not then in
default hereunder beyond any applicable grace period, Sublessee shall
have the right to exercise any one of the following options of
extension:
(a) the option to extend the term of this Sublease until
September 30, 2000 (the "First Extension Option"), provided
that Sublessee shall send written notice of its election to
exercise such option to Sublessor on or before January 15,
1999, in which event the term of this Sublease shall be
automatically extended until September 30, 2000, without
the requirement of any further instrument, upon all of the
same terms, provisions and conditions set forth in this
Sublease; or
(b) the option to extend the term of this Sublease until any
date between and including October 14, 1999, at a minimum,
and September 30, 2000, at a maximum (the "Second Extension
Option"), provided that Sublessee shall send written notice
of its election to exercise such option (which notice shall
specify the term of the extension period) to Sublessor on
or before April 15, 1999, in which event the term of this
Sublease shall be automatically extended for the period of
time specified in such notice (which shall in no event be
for an extension period ending earlier than October 14,
1999 or later than September 30, 2000), without the
requirement of any further instrument, upon all of the same
terms, provisions and conditions set forth in this
Sublease; or
(c) the option to extend the term of this Sublease until any
date between and including October 14, 1999, at a minimum,
and September 30, 2000, at a maximum (the "Third Extension
Option"), provided that Sublessee shall send written notice
of its election to exercise such option (which notice shall
specify the term of the extension period) to Sublessor on
or before May 15, 1999, in which event the term of this
Sublease shall be automatically extended for the period of
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time specified in such notice (which shall in no event be
for an extension period ending earlier than October 14,
1999 or later than September 30, 2000), without the
requirement of any further instrument, upon all of the same
terms, provisions and conditions set forth in this Sublease.
Except with respect to the aforesaid options of extension, Sublessee
shall have no right to extend its occupancy beyond the Expiration
Date (or, if any of said options of extension is duly exercised by
Sublessee, beyond the expiration of the applicable extension period)
or to purchase all or any portion of the Premises except as may be
agreed upon between the Sublessee and Master Lessor. Sublessor shall
have no liability to Sublessee as a result of any lease entered into
between Sublessee and Master Lessor, nor shall Sublessor have any
liability to Master Lessor beyond that set forth in the Master Lease.
6. RENT. For and with respect to the period from July 15, 1994 through
July 14, 1999, Sublessee shall pay Sublessor, as an absolute net rent
for the Premises ("Base Rent"), a fixed annual rental at the rate of
Six Hundred Seventy-Six Thousand Five Hundred and 00/100 Dollars
($676,500.00), which is the product arrived at by multiplying the
approximate rentable area of the Premises by Two and 75/100 Dollars
($2.75), in equal monthly installments of Fifty-Six Thousand Three
Hundred Seventy-Five and 00/100 Dollars ($56,375.00) each. Sublessee
shall pay all the estimated Operating Expenses (as hereinafter
defined) for the Premises on a monthly basis commencing on April 1,
1994 and continuing through the end of the term hereof, initial or
extended. Sublessee shall pay all utilities and services associated
with Sublessee's use of the Premises, including, without limitation,
the share attributable to the Premises of the costs of water and
sewer service provided to the Industrial Park of which the Premises
are a part and of the cost of repairs and maintenance (but not the
cost of replacements which are capital in nature, as determined in
accordance with generally accepted accounting principles,
consistently applied, which shall be Sublessor's responsibility) of
the water and sewer lines serving the Premises and other portions of
said Industrial Park (such utilities and services, together with
Operating Expenses, are hereinafter referred to as "Additional Rent")
commencing on the date Sublessee first enters upon the Premises.
If Sublessee duly and timely exercises the First Extension Option,
then Sublessee shall pay to Sublessor, as Base Rent for and with
respect to the period from July 15, 1999 through September 30, 2000,
a fixed annual rental at the rate of Seven Hundred Thirty-Eight
Thousand and 00/100 Dollars ($738,000.00), which is the product
arrived at by multiplying the approximate rentable area of the
Premises by Three and 00/100 Dollars ($3.00), in equal monthly
installments of Sixty-One Thousand Five Hundred and 00/100 Dollars
($61,500.00) each, together with Additional Rent.
If Sublessee duly and timely exercises the Second Extension Option,
then Sublessee shall pay to Sublessor, as Base Rent for and with
respect to the applicable extension period, a fixed annual rental at
the rate of One Million Four Hundred Seventy-Six Thousand and 00/100
Dollars ($1,476,000.00), which is the product arrived at by
multiplying the approximate rentable area of the Premises by Six and
00/100 Dollars ($6.00), in equal monthly installments of One Hundred
Twenty-Three Thousand and 00/100 Dollars ($123,000.00) each, together
with Additional Rent.
If Sublessee duly and timely exercises the Third Extension Option,
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then Sublessee shall pay to Sublessor, as Base Rent for and with
respect to the applicable extension period, a fixed annual rental at
the rate of One Million Eight Hundred Forty-Five Thousand and 00/100
Dollars ($1,845,000.00), which is the product arrived at by
multiplying the approximate rentable area of the Premises by Seven
and 50/100 Dollars ($7.50), in equal monthly installments of One
Hundred Fifty-Three Thousand Seven Hundred Fifty and 00/100 Dollars
($153,750.00) each, together with Additional Rent.
All rents hereunder shall be payable in advance on the first day of
each month, without deduction or offset and without prior notice or
demand. Any rents more than 10 days past due shall bear interest at
the rate of ten percent (10%) per annum or the Wall Street Journal
prime rate plus one and one-half percent (1#%), whichever is
greater. Rents shall be payable to the order of Sublessor and shall
be tendered to Sublessor at 3000 Hanover Street, Palo Alto,
California 94304, Attention: Mr. Keith Mehl, Mail Stop 20DF.
7. BUILDING SERVICES; OPERATING EXPENSES; ADJUSTMENTS TO ADDITIONAL RENT.
Building Services: Sublessee shall provide, and/or shall retain a
property manager and/or contractor to provide, at Sublessee's sole
cost and expense, services for the Premises as are required to be
provided by the "Tenant" under the Master Lease.
Operating Expenses: The term "Operating Expenses" as used in this
Sublease, means:
(a) Real property taxes which accrue against the Premises during the
term hereof, initial or extended. Real property taxes shall be
deemed to include any ad valorem tax, levy, charge or assessment
charged against the Premises; any tax or charge for maintenance
or services provided to the Premises, or any tax that may be
imposed on Sublessor's income from the Premises in lieu of ad
valorem or other tax on the Premises (excluding federal or state
income, franchise, inheritance or estate taxes); and
(b) Insurance premiums Sublessor is required to pay or deems necessary
to pay with respect to the Premises
Sublessor agrees, during the term of this Sublease, initial or extended, to
pay said real property taxes directly to the taxing authority of the Town
of Stratham, New
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Hampshire, and to provide Sublessee with evidence of such payment
reasonably satisfactory to Sublessee (such as, for example, a copy of the
tax bill stamped "paid" by said taxing authority) so that it is received on
or before the date which is ten (10) days prior to the date when any
payment of same would become delinquent. If Sublessor fails to pay said
real property taxes and to provide Sublessee with such evidence of payment
within such time, then, unless and until Sublessor actually pays said real
property taxes to such taxing authority, Sublessee shall have the right,
but not the obligation, to pay said real property taxes directly to such
taxing authority, in which event Sublessee shall have the right to set-off
the amount of such payment against any monthly payment(s) of or on account
of any or all of fixed rent, Additional Rent and the Contributed Amount
(as defined in Paragraph 21 hereof) otherwise due and payable from
Sublessee to Sublessor under the terms of this Sublease, until the amount
of such real property tax payment is fully recouped by Sublessee.
Sublessee shall have the right to file an application for an abatement of
real property taxes in accordance with and subject to the following terms
and conditions. If at least thirty (30) days prior to the last day for
filing application for such an abatement for any tax year, Sublessor shall
receive notice from Sublessee that it desires to file an application for
such an abatement for said tax year and, if within twenty (20) days after
the receipt of said notice Sublessor shall not give notice to Sublessee
that Sublessor or Master Lessor shall file such application, Sublessee
shall have the right either in its own name or in the name of Sublessor,
but at its own cost and expense, to file such application. If within
twenty (20) days after receipt by Sublessor of such notice from Sublessee,
Sublessor shall give Sublessee notice that it shall file such application,
Sublessor shall file the same prior to the expiration of the time for the
filing of the same at its own cost and expense. In any event,
notwithstanding the foregoing, if any abatement by whomever prosecuted
shall be obtained, the cost and expense of obtaining the same shall be a
first charge upon said abatement. If Sublessee shall file an application
for abatement pursuant to the provisions hereof, Sublessee will prosecute
the same to final determination with due diligence and shall not, without
Sublessor's written consent (which consent will not be unreasonably
withheld or delayed), settle, compromise or discontinue the same except,
however, that Sublessee may discontinue the prosecution of the same at any
time after giving Sublessor and Master Lessor notice thereof and an
opportunity to take over prosecution of the same. If Sublessor or Master
Lessor shall file an application for an abatement for any tax year after
having received notice from Sublessee that Sublessee desires to file an
application for abatement for said tax year, Sublessor or Master Lessor
shall prosecute the same to final determination with due diligence and
shall not, without Sublessee's written consent (which consent will not be
unreasonably withheld or delayed), settle, compromise or discontinue the
same except, however, that Sublessor or Master Lessor may discontinue the
prosecution of the same at any time after giving Sublessee notice thereof
and an opportunity to take over the prosecution of the same. If any party
shall prosecute an application for an abatement, the other parties will
cooperate and furnish any pertinent information in either of their
respective files reasonably required by the prosecuting party.
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Adjustments to Additional Rent: A statement of current estimated
Operating Expenses is attached hereto as Exhibit "C" and incorporated
herein by this reference. Sublessor shall, within 180 days following
the end of each calendar year of the Sublease Term, and within 180
days following the expiration of the term hereof, initial or
extended, notify the Sublessee of any increases or decreases to the
Additional Rent for the prior calendar year. Such notice shall
include, in reasonable detail, all computations of the Additional
Rent and appropriate documentation evidencing the reason for any
increase or decrease thereto. In the event of an increase, Sublessee
shall pay the Additional Rent due within thirty (30) days following
receipt of the applicable notice and adjust the monthly payment on
account of Additional Rent as reasonably estimated by Sublessor for
the next calendar year. In the event of a decrease, any overpayment
shall be (i) credited against Additional Rent thereafter due under
this Sublease, or (ii) if no such Additional Rent is thereafter due,
promptly refunded to Sublessee.
"Operating Expenses" shall not include any legal fees or legal
expenses payable to Master Lessor under the terms of the Master
Lease, except to the extent that such fees or expenses are incurred
by Master Lessor as a result of the acts or omissions of Sublessee.
8. USE. Sublessee shall use the Premises only for general office, light
manufacture, research and development and related uses and such other
uses as are from time to time approved in writing by Sublessor and
Master Lessor. It is specifically understood and agreed that
Sublessee shall have the right to use the Premises for the purposes
indicated in the Sublessee's Plans (as defined in Paragraph 11 of
this Sublease), including, without limitation, the use of a portion
of the Premises as an employee store, provided that Sublessee obtains
any and all governmental permits, licenses and other approvals as may
be required under applicable law for any and all such uses.
Sublessee shall not discontinue occupancy of or abandon the
Premises. Notwithstanding anything to the contrary contained in this
Sublease, Sublessee agrees that nothing shall be done upon the land
described in Exhibit A which shall violate those certain Protective
Covenants applicable to said land, a copy of which Sublessee
acknowledges is in Sublessee's possession. Without having made any
investigation or inquiry, Sublessor is unaware of any reason why
Sublessee may not use the Premises for purposes of office, research
and development and light manufacturing. Further, Sublessee
covenants and agrees as follows:
(a) Not to injure or deface the Premises; not to permit on the
Premises any auction, sale, nuisance, objectionable vibration,
noise or odor; not to permit the use of the Premises for any
purpose other than those set forth herein or any use which is
contrary to law or ordinance, or liable to invalidate or
increase the premiums for any insurance carried by Sublessor or
Master Lessor on the Premises, or liable to render necessary any
structural alterations or additions to the Premises; and if such
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insurance premiums are increased as a result of the use or
occupancy of the Premises by Sublessee, Sublessee shall pay for
such increase, the responsibility for the payment of which
increase shall apply during each and every year of the term of
this Sublease; and to use the sewer system for normal discharge
of sanitary waste and not to introduce any chemical fluid,
cooling water or any other substance, liquid or material into
such system which may be harmful or destructive to such system;
(b) Not to obstruct in any manner any portion of the common areas;
and to conform to all reasonable rules and regulations now or
hereafter made by Master Lessor and provided in writing to
Sublessee for the care and use of the Premises, its facilities
and approaches and common areas;
(c) Not to store any goods, equipment or any other items outside of
the Building, and not to place or empty any trash or rubbish
outside of the Building (except in enclosed dumpsters), and to
provide for its own rubbish or trash removal;
(d) Not to move any heavy equipment or fixtures in or out of or
within the Building except in such manner as Sublessor and
Master Lessor shall designate after written request from
Sublessee, and not to place a load on any floor of the Building
which would be in violation of what is allowed by law;
(e) That Sublessor, Master Lessor, or their respective agents, may
enter the Premises after prior written notice to Sublessee
(except in case of emergency, when no such notice need be given)
to make any repairs either or both of such parties may deem
necessary or any addition or alteration required to comply with
governmental regulations, and with prior oral or written notice
and at Sublessee's expense, to remove any alterations, signs or
the like for which the prior written consent of either or both
of such parties was required hereunder but not obtained by
Sublessee; it being understood and agreed that such entry shall
be made in such a way as to minimize interference with
Sublessee's use of the Premises;
(f) Subject to Sublessor's obligations to repair and maintain as set
forth herein, neither Sublessor nor Master Lessor shall be
responsible or liable for any defect, latent or otherwise, in
the Premises or any of the equipment, machinery, utilities,
appurtenances therein, nor shall Sublessor or Master Lessor be
responsible or liable for any injury, loss or damage to any
person or to any property of Sublessee or any other person
caused by or resulting from rain, snow, ice, wind, frost, water,
fire or by the bursting or leakage of windows, doors, walls,
ceilings, floors, pipes, gutters or other fixtures, or the
overflow of water or sewage in any part of the Premises or for
any injury or damage caused by or resulting from acts of God or
the elements, or for any injury or damage caused by or resulting
from any defect or negligence in the occupancy, construction,
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operation or use of the Premises, except to the extent caused by
the negligence of Sublessor or Master Lessor. Sublessee shall
give prompt notice to Sublessor and Master Lessor in case of
fire or accidents in the Premises or of defects therein or in
any fixtures or equipment;
(g) To hold all personal property of Sublessee, including trade
fixtures, furniture, equipment and the like of Sublessee, or of
any other owner situated at the Premises, at Sublessee's own
risk, and that neither Sublessor nor Master Lessor shall be
liable for theft thereof or any damage thereto occasioned from
any acts of any other person, except to the extent caused by the
negligence of Sublessor or Master Lessor, as the case may be,
and to pay when due all taxes assessed against any such personal
property or leasehold interest;
(h) To permit Master Lessor and its agents at reasonable times to
show the Premises to prospective purchasers and mortgagees and
to permit Master Lessor and Sublessor and their respective
agents at reasonable times to show the Premises to prospective
tenants and subtenants during the one hundred eighty (180) days
preceding the expiration of the term of the Master Lease or the
Sublease, as the case may be;
(i) Not to suffer or permit any lien of any nature or description to
be placed against the Premises or any portion thereof, and in
the case of any said lien attaching by reason of the conduct of
Sublessee, to immediately pay and discharge the same of record
(provided, however, that Sublessee may contest the same in good
faith so long as it provides a sufficient and recordable lien
bond or other adequate security with respect to such lien);
provided, however, that this provision shall not be interpreted
as meaning that the Sublessee has any authority or power to
permit any lien of any nature or description to attach to or be
placed upon the title or interest of the Master Lessor or the
Sublessor in the Premises or any portion thereof;
(j) That the rights and remedies to which the Sublessor may be
entitled under the terms of this Sublease are cumulative and are
not intended to be exclusive of any other rights or remedies to
which the Sublessor may be properly entitled in case of any
breach or threatened breach by Sublessee of any term or
provision of this Sublease;
(k) That no failure of either party to exercise any power conferred
to it in this Sublease or to insist upon strict compliance by
the other party of any obligation, covenant or agreement and no
custom or practice of the parties at variance with the terms
hereof shall constitute a waiver of such party's right to demand
an exact compliance with the terms hereof;
(l) That, without limitation of anything else herein or in the
Master Lease
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contained, the Sublessor and the Master Lessor may enter upon the
Premises and exercise and perform any and all of Sublessor's and
Master Lessor's respective rights without being deemed guilty of an
eviction or disturbance of Sublessee's use or possession, and
without being liable in any manner to Sublessee; provided, however,
that such entry shall be made in such a way as to minimize
interference with Sublessee's use of the Premises;
(m) To promptly comply, at the expense of Sublessee (except to the
extent that Sublessor is otherwise responsible for compliance
and the cost thereof as set forth in Paragraph 9 hereof), with
all requirements of any governmental agency, whether the same be
local, state or federal, having competent jurisdiction, which
requirements are made necessary by reason of Sublessee's
occupancy and use of the Premises as permitted under this
Sublease (provided, however, that Sublessee may contest the same
in good faith in accordance with, subject to and to the extent
permitted by applicable law);
(n) That if the Sublessee shall at any time breach or default in the
performance of any of the obligations, covenants or agreements
of Sublessee under this Sublease, and if such breach or default
continues beyond the applicable grace period set forth in
Paragraph 16 hereof, then Sublessor and Master Lessor shall each
have the right to enter upon the Premises and to perform such
obligations of the Sublessee, including the payment of money and
the performance of any other act; all sums so paid by the
Sublessor and/or the Master Lessor, as the case may be, and all
necessary and reasonable incidental costs and expenses in
connection therewith shall be deemed to be additional rent under
this Sublease which shall be payable to Sublessor or Master
Lessor, as the case may be, immediately upon demand; and
(o) To insure the contents, equipment and improvements of Sublessee
against standard extended coverage risks, in such amounts as
Sublessor and Master Lessor shall reasonably approve, under a
policy or policies of insurance which shall provide that such
insurance shall not be cancelled without at least ten (10) days'
prior written notice to Sublessor and Master Lessor. Copies of
such insurance policy or policies or certificates of insurance
evidencing such coverage, together with evidence of payment of
premiums, shall be furnished to Sublessor and Master Lessor.
9. CONDITION OF THE PREMISES; MAINTENANCE. Sublessee has inspected the
Premises prior to executing this Sublease. Upon delivery of
possession of the Premises by Sublessor to Sublessee on the
Commencement Date, Sublessee shall conclusively be deemed to have
accepted the Premises in "as-is" condition and to have acknowledged
that (a) the same are in good condition and satisfactory to Sublessee
in all respects and (b) Sublessor has no obligation to make any
improvements to the Premises. After receiving notice from Sublessee
of any failure by Master Lessor to perform any of its obligations to
maintain the Premises, as set
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forth in the Master Lease, Sublessor agrees to use reasonable efforts to
enforce any right Sublessor may have under the Master Lease to cause
Master Lessor to perform any such obligation.
Sublessee agrees that from and after the date that possession of the
Premises is delivered to Sublessee, and until the end of the term
hereof, initial or extended, it will keep neat and clean and maintain
in good order, condition and repair, the Premises and every part
thereof, including, without limitation, the exterior and interior
portions of all doors, windows and plate glass in the Premises, all
plumbing, sewage, septic, heating, air conditioning systems and
mechanical equipment which serve the Premises, including all rooftop
units, fixtures and interior walls, floors, ceilings, signs
(including exterior signs where permitted), and all wiring,
electrical systems, interior building appliances, and similar
equipment within the Premises, reasonable wear and tear and damage by
casualties excepted. Sublessee further agrees that the Premises
shall be kept in a clean, sanitary and safe condition in accordance
with the laws of the State of New Hampshire and by-laws of the Town
of Stratham, and in accordance with all directions, rules and
regulations of the Health Officer, Fire Marshal, Building Inspector
and other proper officers of the governmental agencies having
jurisdiction thereover. Sublessee shall not permit or commit any
waste. Sublessee shall provide and pay for its own janitorial and
cleaning services. Sublessee further agrees that it will obtain and
maintain in full force and effect a heating and air conditioning
equipment service contract which shall provide for the periodic
maintenance of the heating and air conditioning equipment serving the
Building. Said contract shall be made with a reputable contractor
and shall be subject to Sublessor's and Master Lessor's approval,
which approval shall not be unreasonably withheld or delayed. Copies
of said contract and any renewals and/or replacements thereof shall
be delivered to Sublessor and Master Lessor. Sublessee further
agrees that it will obtain and maintain in full force and effect a
service contract which shall provide for the periodic inspection and
maintenance of each elevator within the Building. Said contract
shall be made with a reputable contractor and shall be subject to
Sublessor's and Master Lessor's approval, which approval shall not be
unreasonably withheld or delayed. Copies of said contract and any
renewals and/or replacements thereof shall be delivered to Sublessor
and Master Lessor. In addition, Sublessee agrees to keep the inlets
and outlets of all storm retention and drainage facilities in the
common areas free of obstruction and to keep, maintain and repair all
of the common areas (including, without limitation, any required
patching and other maintenance of the parking lot, but excluding any
replacement or repaving thereof (which shall be Sublessor's
responsibility), and also excluding the maintenance, repair and
replacement of water and sewer lines, for which provision is made
below) in as good order, repair and condition as they were in at the
commencement of the term of this Sublease, reasonable wear and tear
and damage by casualty excepted, free and clear of snow, ice, refuse
and obstructions and lighted at least during such hours of darkness
as may be required by applicable law and/or by the requirements of
13
any insurance company which issues any policy of insurance upon the
Premises. In addition, Sublessee shall be responsible for paying to
Sublessor any amounts which Sublessor is obligated to pay to Master
Lessor under Article VI of the Master Lease, for the cost of making
any reasonable, necessary repairs to the roof of the Building (but
not for the cost of replacing said roof, unless such replacement is
required as a result of any negligent or willful act or omission of
Sublessee). Such cost shall include any amount on account of the
administrative and management charge payable by Sublessor to Master
Lessor under said Article VI. Any amount required to be paid by
Sublessee to Sublessor pursuant to this Paragraph shall be paid
within fifteen (15) days after receipt by Sublessee of a written
request from Sublessor, each such request to be accompanied by copies
of bills, invoices or similar supporting data with respect to the
work covered thereby. In addition, Sublessee shall pay to Sublessor
any amount that Sublessor is obligated to pay to Master Lessor on
account of any assessments made by the Association described in
Article V of the Master Lease for the cost of maintaining the water
and sewer lines which serve the Premises. Further, with respect to
any obligations imposed on Sublessee by this Sublease to comply with
requirements of governmental agencies or other lawful authorities
having jurisdiction, Sublessor agrees that if any such requirements
relate to the removal, replacement or modification of items or
materials that are present in or on the Premises as of the date of
this Sublease and if such removal, replacement or modification would
be required even if the Premises were unused and vacant, that is to
say, irrespective of the use and occupancy of the Premises by
Sublessee as permitted under this Sublease, then Sublessor shall be
responsible for such removal, replacement or modification and
Sublessee shall have no responsibility therefor. Sublessee shall
have no right or obligation to make any structural or roof repairs
to, or to replace or modify any structural portion or the roof of,
the Building, except as may be done in connection with the
performance of the Sublessee's Work, as approved by Master Lessor and
Sublessor. Except as aforesaid, said structural or roof repairs to,
or replacements or modifications of structural portions or the roof
of, the Building shall be the responsibility of the Master Lessor or
the Sublessor as provided in the Master Lease or the Sublease.
10. UTILITIES. Sublessee agrees to pay when due, directly to the
appropriate utility companies, the cost of all water, gas,
electricity and other utilities used by Sublessee at the Premises,
including, without limitation, all utilities necessary for heating
and air conditioning the Premises and to pay the share attributable
to the Premises of the costs of water and sewer service provided to
the Industrial Park of which the Premises are a part and of the cost
of repairs and maintenance of the water and sewer lines serving the
Premises and other portions of said Industrial Park (but not the cost
of any replacement of said water and sewer lines which is capital in
nature, as determined in accordance with generally accepted
accounting principles consistently applied, which shall be
Sublessor's responsibility). Sublessee agrees that it will only
discharge into the sewer system serving the Premises so-called
14
"domestic" sewage from employee washrooms and employee food service
operations, and that no industrial waste will be discharged into said
sewer system. Sublessee further agrees that not more than twenty
thousand (20,000) gallons of water will be used by the Premises each
day, and not more than twenty thousand (20,000) gallons of effluent
will be discharged each day by the Premises into said sewer system.
Sublessee shall provide adequate heat to the Premises to prevent the
freezing and/or bursting of any pipes or duct work in the Premises.
11. CONSTRUCTION; SIGNAGE. Sublessee agrees that it will, at its sole
cost and expense (subject to payment by Sublessor of Sublessor's
Construction Allowance as provided in Paragraph 21 hereof) prior to
commencing Sublessee's remodeling work (the "Sublessee's Work"),
prepare and submit to Sublessor and Master Lessor for their
respective approvals, plans and specifications for such work (the
"Plans and Specifications"). Sublessor hereby approves the general
scope of Sublessee's Work shown on those certain plans consisting of
one "study plan" for each of the floors, dated November 15, 1993 and
stamped November 18, 1993, as updated by two floor plans dated
March 4, 1994; two plans (one floor and one elevation) for the front
lobby entrance, stamped November 18, 1993; and a plan of the
employee/cafe entrance, unstamped and undated; all of which were
prepared by Schwartz/Silver Architects Inc., have been reviewed by
Sublessor and are herein referred to as the "Sublessee's Plans";
provided, however, that Sublessor and Master Lessor shall each have
the opportunity to review the details of the Plans and Specifications
with respect thereto. Sublessee agrees to perform, at the
Sublessee's sole cost and expense (subject to payment by Sublessor of
Sublessor's Construction Allowance as provided in Paragraph 21
hereof), all of the Sublessee's Work described in the Plans and
Specifications. All of the Sublessee's Work shall be performed in
accordance with the Plans and Specifications as approved by Sublessor
and Master Lessor, and shall be governed in all respects by, and be
subject to, the following:
A. The Sublessee's Work shall be performed in a good and
workmanlike manner and shall be in good and usable condition at
the date of completion thereof.
B. Compliance with Laws: All the Sublessee's Work shall be
performed in full compliance with and shall conform to all
applicable federal, state and local laws, codes, regulations
and ordinances, including, without limitation, the Americans
with Disabilities Act, all applicable building and zoning
codes and laws relating to the use, storage, removal,
transportation or disposal of hazardous or toxic materials
or oil, and all directions, rules and regulations of the
Health Officer, Fire Marshal, Building Inspector and other
proper officers of the governmental agencies having jurisdiction
thereover, and all reasonable requirements of the Sublessor's
and Master Lessor's underwriters, if any. Sublessor's and
Master Lessor's approval of the Plans and Specifications shall
not constitute an acknowledgment that work done in conformity
therewith will so comply and conform, it being expressly
15
understood and agreed that Sublessee shall be solely responsible
for ensuring such compliance and conformity and for any
modifications to or corrections in the Sublessee's Work required
by any governmental agency or insurance underwriters. Sublessee
shall obtain and furnish to Sublessor approvals from all
agencies with jurisdiction over matters relative to the
performance of the Sublessee's Work, including, without
limitation, electrical, gas, water, heating and cooling, and
telephone work, and shall secure its own building and occupancy
permits. Sublessor reserves the right to require changes in the
Sublessee's Work when necessary by reason of code requirements
or directives of governmental authorities having jurisdiction
over the Premises. Notwithstanding anything to the contrary
contained in this subparagraph B of Paragraph 11, Sublessee
shall have the right to appeal adverse decisions relative to
state, local or other land use laws in good faith, so long as
any risk to Sublessor or Master Lessor is adequately provided
against by bond or other security reasonably acceptable to
Sublessor or Master Lessor or both, as the case may be.
C. Insurance: Prior to commencement of the Sublessee's Work and
until completion thereof, the Sublessee shall maintain, or cause
to be maintained, casualty insurance in builder's risk form,
covering Sublessor, Master Lessor and its mortgagee and their
respective agents, employees and beneficiaries, Sublessee and
Sublessee's contractor as their interests may appear, against
loss or damage by fire, vandalism and malicious mischief, and
such other risks as are customarily covered by the so-called
"extended coverage endorsement" upon all the Sublessee's Work in
place, and all materials stored at the site of the Sublessee's
Work and all materials, equipment, supplies and temporary
structures of all kinds incident to the Sublessee's Work and
builder's machinery, tools and equipment, all while forming a
part of, or contained in, such improvements or temporary
structures while on the Premises or when adjacent thereto while
on sidewalks, streets or alleys, all in the full insurable value
thereof at all times. In addition, the Sublessee agrees to
require all contractors and subcontractors engaged in the
performance of the Sublessee's Work to effect and maintain and
deliver to Sublessee, Sublessor and Master Lessor certificates
evidencing the existence of, prior to the commencement of the
Sublessee's Work and until completion thereof, the following
insurance coverages:
1. Workmen's Compensation Insurance - In accordance with the
laws of the State of New Hampshire, including Employer's
Liability Insurance, to the limit of $100,000 each accident.
2. Comprehensive General Liability Insurance against bodily
injury, including death resulting therefrom, to the limit
of $3,000,000 for any one person or more than one person in
any one accident and against property damage to the limit
of $250,000 in each occurrence and $500,000 aggregate.
16
Prior to the commencement of the Sublessee's Work, the Sublessee
shall deliver to Sublessor, Master Lessor and its mortgagee (if
applicable) certificates of all required insurance, and evidence
of the payment of premiums thereon (and certificates of renewal,
and evidence of premium payments with reference thereto, where
appropriate). All such insurance shall provide, and certificates
thereof shall state, that the same is non-cancellable and materially
non-amendable without ten (10) days' prior written notice to
Sublessor, Master Lessor and its mortgagee (if applicable),
respectively.
D. Within ten (10) business days after receipt by Sublessor and
Master Lessor of the Plans and Specifications from Sublessee,
such parties agree to review the same, approve or disapprove the
same in writing (Sublessor and Master Lessor both agreeing that
such approval shall not be unreasonably withheld or delayed
(except, with respect to Master Lessor's approval only, as to
structural, exterior and/or roof work) and that any disapproval
shall specify in reasonable detail the reasons therefor), and
specify by written notice to Sublessee all fixtures and other
leasehold improvements to be removed by Sublessee at the
expiration or earlier termination of the Sublease Term. Master
Lessor and Sublessor agree to act reasonably in designating such
fixtures and leasehold improvements for removal as aforesaid.
Sublessee agrees to remove the same at such time in accordance
with the provisions of Paragraph 18 hereof. Failure to give
such notice within such ten (10) business day period approving
or disapproving the Plans and Specifications and specifying such
items to be removed shall constitute approval thereof and
agreement that all such items may remain in the Premises at the
time of surrender thereof.
Sublessee shall be entitled to install or display advertising
devices, signs or other things upon the exterior walls or the
windows, together with monument signs on the land portion of the
Premises, as long as the same comply with applicable requirements of
the zoning regulations of the Town of Stratham, New Hampshire or any
other applicable laws or regulations, do not constitute a nuisance
and are consistent with the exterior architectural and aesthetic
appearance of the improvements located on the Premises.
12. ALTERATIONS. Notwithstanding anything to the contrary contained in
the Master Lease, Sublessee shall make no alteration, addition or
improvement to the Premises without the prior written consent of
the Sublessor and Master Lessor, which consent shall not be
unreasonably withheld or delayed (except, with respect to Master
Lessor's consent only, as to structural, exterior and/or roof work).
Any and all such alterations shall be made in accordance with all
applicable laws and regulations, in accordance with plans and
specifications therefor subject to review and approval by Master
Lessor and Sublessor (Sublessor and Master Lessor both agreeing
that such approval shall not be unreasonably withheld or delayed
(except, with respect to Master Lessor's approval only, as to
structural, exterior and/or roof work) and that any disapproval of
which shall specify in reasonable detail the reasons therefor),
17
and in a good and workmanlike manner. Any request for Sublessor's
and Master Lessor's consent to such alterations shall specify the
commencement date and the approximate completion date thereof, and
shall include the plans and specifications therefor.
Notwithstanding the foregoing, Sublessor and Master Lessor agree that
Sublessee may make interior, non-structural alterations within the
Premises that do not affect the utility or mechanical systems
thereof, without having to obtain their prior written consent,
provided that, in each instance, (i) Sublessee shall first give
written notice to Sublessor and Master Lessor specifying the proposed
alterations, the commencement and approximate completion dates
thereof and a list of all contractors who will be performing work in
connection therewith, (ii) upon Sublessor's or Master Lessor's
request therefor, Sublessee shall provide to such requesting party
copies of plans and specifications for such alterations, (iii) such
alterations shall be made in accordance with all applicable laws and
regulations and in a good and workmanlike manner by licensed and
insured contractors experienced in the kind and scope of the proposed
work and in accordance with all of the applicable provisions of this
Sublease relating to construction of improvements by Sublessee, and
(iv) Sublessee shall provide Sublessor and Master Lessor with a
certificate in form and substance reasonably satisfactory to
Sublessor and Master Lessor stating that such alterations were
constructed substantially in accordance with the plans and
specifications therefor. Notwithstanding the requirement that any
such alteration work not involve utility or mechanical systems, it is
expressly understood and agreed that Sublessee shall have the right
to alter duct work and redistribute utilities within the Premises so
as to adapt the same to any alterations in the location of interior
partitions and non-structural walls that are permitted by the
provisions of the immediately preceding sentence. Sublessor and
Master Lessor shall have the right to impose reasonable conditions
upon the nature, scope or conduct of such alteration work to insure
that the structure or support of the Building is not impaired and
that the purposes and quality of the Building are not adversely
affected. Within ten (10) business days after receipt by such
parties of such notice and plans and specifications from Sublessee,
such parties agree to review the same and specify by written notice
to Sublessee all fixtures and other leasehold improvements to be
removed by Sublessee at the expiration or earlier termination of the
Sublease Term. Master Lessor and Sublessor agree to act reasonably
in designating such fixtures and leasehold improvements for removal
as aforesaid. Sublessee agrees to remove the same at such time in
accordance with the provisions of Paragraph 18 hereof. Failure to
give such notice within such ten (10) business day period specifying
such items to be removed shall constitute agreement that all such
items may remain in the Premises at the time of surrender thereof.
Notwithstanding anything to the contrary contained in this Paragraph
12, if Sublessor fails to approve or disapprove the plans and
specifications for any alteration work requiring Sublessor's approval
hereunder within ten (10) business days after Sublessor receives a
18
complete set thereof, such plans and specifications shall
conclusively be deemed to have been approved by Sublessor.
13. INDEMNITY AND INSURANCE. Sublessee agrees to indemnify and hold
harmless Sublessor, Master Lessor and its mortgagee from and against
all claims arising from any accident, injury or damage whatsoever
caused to any person, or to the property of any person occurring
during the term hereof in or about the Premises, where such accident,
damage or injury results or is claimed to have resulted from
negligence or willful misconduct on the part of Sublessee or
Sublessee's contractors, licensees, agents, servants or employees,
except that Sublessee shall not indemnify and hold harmless any of
Sublessor, Master Lessor or its mortgagee, respectively, to the
extent that any such accident, damage or injury results from the
negligence or willful misconduct of such party or its contractors,
licensees, agents, servants or employees. This indemnity and hold
harmless agreement shall include indemnity against all reasonable
costs, expenses and liabilities incurred in or in connection with any
such claim or proceeding brought thereon, including, without
limitation, reasonable attorneys' fees incurred in connection with
the defense thereof.
Sublessor agrees to indemnify and hold harmless Sublessee from and
against all claims arising from any accident, injury or damage
whatsoever caused to any person, or to the property of any person
occurring during the term hereof in or about the Premises, where such
accident, damage or injury results or is claimed to have resulted
from negligence or willful misconduct on the part of Sublessor or
Sublessor's contractors, licensees, agents, servants or employees,
except to the extent that any such accident, damage or injury results
from the negligence or willful misconduct of Sublessee or its
contractors, licensees, agents, servants or employees. This
indemnity and hold harmless agreement shall include indemnity against
all reasonable costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon,
including, without limitation, reasonable attorneys' fees incurred in
connection with the defense thereof.
Sublessee agrees to maintain policies of comprehensive public
liability insurance and insurance covering its leasehold improvements
and its own fixtures, merchandise, equipment and other property
contained in the Premises in such amounts as Sublessor and Master
Lessor shall reasonably approve, and otherwise in accordance with and
subject to the applicable provisions of the Master Lease, all as if
Sublessee were the Lessee therein named. Such policies of comprehensive
general liability insurance shall name Sublessor and Master Lessor and,
if requested by Master Lessor, all holders of mortgages on the Premises
as additional insured parties. Certificates of insurance evidencing
such coverage shall be delivered to Sublessor and Master Lessor at the
commencement of the Sublease Term and if any such policy requires renewal,
not less than ten (10) days prior to the expiration of such policy.
19
Sublessee waives, as long as it may be permitted by Sublessee's
insurer, without payment of extra premiums, and shall cause its
insurance carrier to waive, its right of recovery against Sublessor,
Master Lessor, all holders of mortgages on the Premises, and their
employees, agents, successors and assigns, for any fire and extended
coverage losses occurring to Sublessee's leasehold improvements and
to property belonging to Sublessee which may be placed in or on the
Premises. In consideration thereof, so long as it may be permitted
by Sublessor's insurer, without payment of extra premiums, Sublessor
hereby agrees to waive, and to cause its insurance carrier to waive,
its right of recovery against Sublessee, its successors or assigns,
for any fire and extended coverage losses to the Premises. If either
party's insurance carrier shall charge extra premiums for the
incorporation of the above-described waiver of subrogation in its
policies, then such party shall give prompt written notice to the
other of the amount of such extra premiums and shall provide evidence
thereof reasonably satisfactory to the other party (such notice and
evidence are hereinafter referred to as the "Extra Premium Notice").
In that event, the other party shall have the right, but not the
obligation, to request that such waiver be provided by giving written
notice to the other party within fifteen (15) business days after
receiving the Extra Premium Notice and by paying such extra premiums
to the other party upon demand. If the party requesting such waiver
shall fail to pay such extra premiums as aforesaid, then the other
party shall be released from its obligation to provide such waiver.
14. CASUALTY AND EMINENT DOMAIN.
A. CASUALTY. If all or a substantial part of the Premises is
destroyed or damaged by fire or other casualty (a substantial
part of the Premises for the purposes of this Paragraph shall be
deemed to be fifty percent (50%) or more of its insurable
value), and if, as a result thereof, Master Lessor elects to
terminate the Master Lease pursuant to the provisions of Article
X thereof, then Sublessor shall notify Sublessee of such
termination and this Sublease shall likewise terminate as of the
effective date of the termination of the Master Lease. If
Master Lessor elects under said Article X of the Master Lease to
restore all or the damaged portion of the Premises, but such
restoration is not substantially completed with the result that
use and occupancy of substantially all of the Premises are not
granted to Sublessee within one hundred eighty (180) days after
the time the Premises are destroyed or damaged, Sublessee shall
have the right to terminate this Sublease by giving twenty (20)
business days' notice to Sublessor, unless Master Lessor
substantially completes such restoration as aforesaid within
such twenty (20) business day period, in which event such
termination shall be null and void and of no force or effect.
Sublessor agrees that it will not terminate the Master Lease
pursuant to Article X thereof without Sublessee's prior written
consent; except that no such consent shall be necessary if
Master Lessor has failed to restore the Premises as aforesaid
within three hundred sixty (360) days after the Premises are
20
destroyed or damaged and Sublessor elects to terminate the
Master Lease after the expiration of such 360-day period. In
such event, Sublessor shall notify Sublessee of such termination
and this Sublease shall likewise terminate as of the effective
date of the termination of the Master Lease. If Sublessor
desires to terminate the Master Lease pursuant to the provisions
of Article X thereof prior to the expiration of such 360-day
period, then Sublessor shall notify Sublessee of its desire so
to do, whereupon Sublessee shall either consent or not consent
to such termination by giving written notice to Sublessor within
twenty (20) business days after receipt of Sublessor's notice.
Failure by Sublessee to give such notice within such twenty (20)
business day period shall constitute irrevocable and conclusive
consent to such termination on the part of Sublessee. In the
event that Sublessor thereafter elects to terminate the Master
Lease as aforesaid, Sublessor shall notify Sublessee of such
termination and this Sublease shall likewise terminate as of the
effective date of the termination of the Master Lease. Neither
Master Lessor nor Sublessor shall have any obligation to
Sublessee to restore the Premises or to repair or replace
Sublessee's furniture, furnishings and equipment after the same
are destroyed or damaged by any such fire or other casualty. If
this Sublease is not terminated as aforesaid, a just proportion
of the Base Rent, Additional Rent and Contributed Amount,
according to the nature and extent of the damage, shall be
abated until use and occupancy of substantially all of the
Premises shall have been granted to Sublessee as aforesaid.
B. EMINENT DOMAIN. If the Premises shall be completely taken by
exercise of eminent domain, then this Sublease shall terminate
as of the date of such taking. If any substantial part of the
Premises shall be taken by the exercise of eminent domain or by
action of any public or other authority (a substantial part of
the Premises for the purposes of this Paragraph shall be deemed
to be fifty percent (50%) or more of its insurable value), and
if, as a result thereof, Master Lessor elects to terminate the
Master Lease pursuant to the provisions of Article XI thereof,
then Sublessor shall notify Sublessee of such termination and
this Sublease shall likewise terminate as of the effective date
of the termination of the Master Lease. If Master Lessor elects
under said Article XI of the Master Lease to restore any
remaining portion of the Premises, but such restoration is not
substantially completed with the result that use and occupancy
of substantially all of such remaining portion are not granted
to Sublessee within one hundred eighty (180) days after the time
of such taking, Sublessee shall have the right to terminate this
Sublease by giving twenty (20) business days' notice to
Sublessor, unless Master Lessor substantially completes such
restoration as aforesaid within such twenty (20) business day
period, in which event such termination shall be null and void
and of no force or effect. Sublessor agrees that it will not
terminate the Master Lease pursuant to Article XI thereof
21
without Sublessee's prior written consent. If Sublessor desires
to terminate the Master Lease pursuant to the provisions of
Article XI thereof, then Sublessor shall notify Sublessee of its
desire so to do, whereupon Sublessee shall either consent or not
consent to such termination by giving written notice to Sublessor
within twenty (20) business days after receipt of Sublessor's
notice. Failure by Sublessee to give such notice within such
twenty (20) business day period shall constitute irrevocable
and conclusive consent to such termination on the part of
Sublessee. In the event that Sublessor thereafter elects to
terminate the Master Lease as aforesaid, Sublessor shall notify
Sublessee of such termination and this Sublease shall likewise
terminate as of the effective date of the termination of the Master
Lease. If this Sublease is not terminated as aforesaid, a just
proportion of the Base Rent, Additional Rent and Contributed Amount,
according to the nature and extent of the portion of the Premises
rendered untenantable, shall be abated until use and occupancy of
substantially all of the remaining portion of the Premises shall have
been granted to Sublessee as aforesaid, and thereafter a just
proportion of the Base Rent, according to the nature and extent of the
portion of the Premises so taken, shall be abated for the balance
of the term of this Sublease. Master Lessor reserves and excepts all
rights to damages to the Premises, including, without limitation, the
Building and the leasehold improvements therein, accrued or
subsequently accruing by reason of anything lawfully done in
pursuance of any public or other authority; and, by way of
confirmation, Sublessee grants to Master Lessor all of Sublessee's
rights to such damages, except for damages to trade fixtures and other
property which Sublessee may remove from the Premises pursuant to the
provisions of this Sublease, relocation expenses and any other award
which would not diminish the amount of Master Lessor's said award
pursuant to Article XI of the Master Lease, and covenants to execute
and deliver such further instruments or assignments thereof as Master
Lessor may from time to time request.
15. NOTICES. Any notice given under this Sublease shall be in writing
and shall be hand-delivered or mailed (by certified or registered
mail, return receipt requested, postage prepaid) or by a national
overnight courier service that provides for a return receipt,
addressed as follows (or addressed as directed in writing by any of
the following parties by subsequent notice to the other parties given
in the same manner):
Sublessee: THE TIMBERLAND COMPANY
200 Domain Drive
Stratham, New Hampshire 03885
Attn: Chief Financial Officer
with a copy to: THE TIMBERLAND COMPANY
200 Domain Drive
Stratham, New Hampshire 03885
Attn: General Counsel
22
Sublessor: HEWLETT-PACKARD COMPANY
2101 Gaither Road
Rockville, Maryland 20850
Attn: Corporate Real Estate Manager
Master Lessor: TRUSTEES OF FIRST ALTEX REALTY TRUST
c/o Altid Properties
17 Monsignor O'Brien Highway
Cambridge, Massachusetts 02141-1817
Master Lessor's
Mortgagee: TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
730 Third Avenue
New York, New York 10017
Any notice shall be deemed to have been given upon the earlier to
occur of (a) when hand-delivered; or, if mailed, upon receipt; or, if
sent by overnight courier, when delivered by such courier; or (b)
whether hand-delivered, mailed or sent by overnight courier, upon the
first business day on which delivery of such notice is attempted.
16. REMEDIES OF SUBLESSOR UPON DEFAULT. Any one of the following shall
be deemed to be an "Event of Default" under this Sublease:
A. Failure on the part of the Sublessee to make payment of or on
account of Base Rent, Additional Rent, the Contributed Amount or
any other monetary amount due under this Sublease within ten
(10) days after the Sublessor has sent to the Sublessee notice
of such default.
B. With respect to a non-monetary default under this Sublease,
failure of the Sublessee to cure the same within thirty (30)
days after the Sublessor has sent to the Sublessee notice of
such default.
C. The commencement of any of the following proceedings, with such
proceeding not being dismissed within sixty (60) days after it
has begun: (i) the estate hereby created being taken on
execution or by other process of law; (ii) the Sublessee being
judicially declared bankrupt or insolvent according to law;
(iii) an assignment being made of the property of the Sublessee
for the benefit of creditors; (iv) a receiver, guardian,
conservator, trustee in involuntary bankruptcy or other similar
officer being appointed to take charge of all or any substantial
part of the Sublessee's property by a court of competent
jurisdiction; or (v) a petition being filed for the
reorganization of the Sublessee under any provisions of the
Bankruptcy Code or any federal or state law now or hereafter
enacted.
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D. The Sublessee filing a petition for reorganization or for
rearrangement under, or otherwise availing itself of any
provisions of, the Bankruptcy Code or any federal or state law
now or hereafter enacted providing a plan or other means for a
debtor to settle, satisfy or extend the time for the payment of
debts.
Should any Event of Default occur then, notwithstanding any license
of any former breach of covenant or waiver of the benefit hereof or
consent in a former instance, the Sublessor lawfully may, in addition
to any remedies available to the Sublessor under applicable statutes
or case law, or otherwise, immediately or at any time thereafter,
and, to the maximum extent permitted by law, without demand or notice
(and the Sublessee hereby expressly waives any notice to quit
possession of the Premises), enter into and upon the Premises or any
part thereof in the name of the whole and repossess the same as of
the Sublessor's former estate, and expel the Sublessee and those
claiming through or under it and remove its or their effects without
being deemed guilty of any manner of trespass, and without prejudice
to any remedies which might otherwise be used for arrears of rent or
preceding breach of covenant and/or the Sublessor may send written
notice to the Sublessee terminating the term of this Sublease; and
upon the first to occur of: (i) entry as aforesaid; or (ii) the
fifth (5th) day following the sending of such notice of termination,
the term of this Sublease shall terminate.
The Sublessee covenants and agrees, notwithstanding any termination
of this Sublease as aforesaid or any entry or re-entry by the
Sublessor, whether by summary proceedings, termination, or otherwise,
to pay and be liable for on the days originally fixed herein for the
payment thereof, amounts equal to the several installments of Base
Rent, Additional Rent, the Contributed Amount and other charges
reserved as they would, under the terms of this Sublease, become due
if this Sublease had not been terminated or if the Sublessor had not
entered or re-entered, as aforesaid, and whether the Premises be
relet or remain vacant, in whole or in part, or for a period less
than the remainder of the term, and for the whole thereof; but in the
event the Premises be relet by the Sublessor, the Sublessee shall be
entitled to a credit in the net amount of rent received by the
Sublessor in reletting, after deduction of all reasonable expenses
incurred in reletting the Premises (including, without limitation,
remodelling costs, brokerage fees, and the like) and in collecting
the rent in connection therewith. It is specifically understood and
agreed that the Sublessor shall be entitled to take into account in
connection with any reletting of the Premises all relevant factors
which would be taken into account by a sophisticated tenant in
securing a replacement subtenant for the Premises, such as, but not
limited to, the type of operation proposed to be conducted by any
such replacement subtenant, and the financial responsibility of any
such replacement subtenant. Sublessor agrees to use reasonable
efforts to relet the Premises in the event that this Sublease is
terminated as aforesaid. As an alternative, at the election of the
Sublessor (such election to be made within ninety (90) days of entry,
24
re-entry or termination), the Sublessee will upon such termination
pay to the Sublessor, as full and complete, final, agreed upon
liquidated damages for Sublessee's liability hereunder for failure to
pay the Base Rent, Additional Rent and Contributed Amount from and
after the date of termination (but not as such liquidated damages for
any liability of Sublessee under this Sublease for failure to perform
any of its other obligations specifically set forth in this Sublease,
including, without limitation, liability for Sublessor's attorneys'
fees and expenses and environmental and holdover liability), such a
sum as at the time of such termination represents the amount of the
excess, if any, of the then present value of the total Base Rent,
Additional Rent, Contributed Amount and other benefits which would
have accrued to the Sublessor under this Sublease for the remainder
of the Sublease term if the Sublease terms had been fully complied
with by the Sublessee (calculated using a discount rate of six
percent (6%) over and above the then fair market cash rental value
(in advance) of the Premises for the balance of the term (calculated
using the same discount rate).
17. NONASSIGNMENT. Sublessee's interest in this Sublease is not
assignable, whether by operation of law or otherwise. Sublessee
shall have no right to sublet the Premises or to transfer any
interest of Sublessee therein. As between Sublessor and Sublessee,
Sublessor shall have the right to assign its interest in the Master
Lease, this Sublease or both without Sublessee's consent.
The provisions of this Paragraph shall not, however, be applicable to
an assignment of this Sublease or subletting of the entire Premises
by Sublessee to its wholly owned subsidiary or immediate controlling
corporation or to a corporation or other entity under common control
with Sublessee (for such period of time as such corporation remains
such a subsidiary or such a controlling corporation or such a
corporation or other entity under common control, respectively, it
being agreed that the subsequent sale or transfer of stock or other
legal or beneficial ownership interest resulting in a change in
voting control, or any other transaction(s) having the overall effect
that such corporation ceases to be such a subsidiary or such a
controlling corporation or such a corporation or other entity under
common control, respectively, of Sublessee, shall be treated as if
such sale or transfer or transaction(s) were, for all purposes, an
assignment of this Sublease governed by the provisions of this
Paragraph), or to a corporation or other entity which acquires all or
substantially all of the assets of Sublessee, provided (and it shall
be a condition of the validity of any such assignment) that such
wholly owned subsidiary or such immediate controlling corporation or
such a corporation or other entity under common control or such
acquiring corporation or entity first agree directly with the
Sublessor and/or the Master Lessor, as the case may be, to be
primarily liable for performing all of the obligations of Sublessee
hereunder, including, without limitation, the obligation to pay the
rent and other amounts provided for under this Sublease, the covenant
to use the Premises only for the purposes specifically permitted
under this Sublease and the covenant against further assignment and
25
subletting; but such assignment shall not relieve the Sublessee
herein named of any of its obligations hereunder, and Sublessee shall
remain fully and primarily liable therefor.
18. SURRENDER OF THE PREMISES. Upon the expiration of the Sublease Term
or earlier termination of this Sublease, Sublessee shall remove its
furniture, trade fixtures, equipment and other goods and effects, and
shall also remove any of its fixtures that Sublessor or Master Lessor
shall have required to be so removed in accordance with the terms and
provisions of Paragraph 11 and/or 12 of this Sublease, and shall
peaceably yield up the Premises, clean and in as good order, repair
and condition as Sublessee is required to maintain same during the
term of this Sublease, reasonable wear and tear and damage by
casualties excepted, and Sublessor's or Master Lessor's failure to
perform their respective repair, maintenance and replacement
obligations under this Sublease or the Master Lease also excepted;
and Sublessee shall repair any injury done to the Premises by the
installation or removal of the Sublessee's fixtures or other
property. Prior to the expiration or earlier termination of this
Sublease, Sublessee shall remove any of the fixtures and other
leasehold improvements originally installed and/or constructed by
Sublessee that are specified for removal by any written notice given
by Sublessor or Master Lessor to Sublessee pursuant to Paragraphs 11
and/or 12 hereof.
19. ATTORNEYS' FEES. Should either party commence any legal action or
proceeding against the other based on this Sublease, the prevailing
party shall be entitled to an award of reasonable attorneys' fees, in
addition to any other relief to which such party would be entitled.
20. REAL ESTATE COMMISSION. Except for the Kane Company and Hunneman
Commercial Company (the "Brokers"), whose entire commission shall be
paid by Sublessor pursuant to separate written agreements between
each of the Brokers, respectively, and Sublessor, each party
represents and warrants to the other that it has not had any dealings
with any real estate broker or other person in respect to this
Sublease. Each party shall indemnify and hold harmless the other
from all damages or claims that may be asserted by any person with
whom the indemnifying party has purportedly dealt.
21. SUBLESSOR'S CONSTRUCTION ALLOWANCE. Sublessor agrees to contribute
up to Three Million Five Hundred Thousand and 00/l00 Dollars
($3,500,000.00), as Sublessor's construction allowance ("Sublessor's
Construction Allowance") toward the cost of Sublessee's Work
("Sublessee's Costs"), it being understood and agreed that the
payment of Sublessor's Construction Allowance shall be made subject
to the following conditions and according to the following schedule:
(a) If there then exists no Event of Default under this Sublease,
during the time between the date on which Sublessee commences
Sublessee's Work and the date on which Sublessee's Work has been
substantially completed, Sublessor agrees to make an initial
partial payment (the "Initial Payment") to Sublessee of
26
Sublessor's Construction Allowance within fifteen (15) days
after Sublessor's receipt of the Initial Requisition (as herein
defined) and the other documents specified in clauses (ii)
through (iv) of this subparagraph (a). The Initial Payment
shall be paid to Sublessee or, at Sublessor's election, directly
to Sublessee's contractors, subcontractors and/or vendors
specified in the Initial Requisition, and shall be equal to
eighty-five percent (85%) of the amount of the Initial
Requisition; provided, however, that in no event shall the
Initial Payment exceed fifty percent (50%) of the full amount of
Sublessor's Construction Allowance. Sublessor's obligation to
make the Initial Payment shall be contingent upon Sublessee's
first having furnished to Sublessor the following: (i) a
statement in form and substance reasonably satisfactory to
Sublessor (the "Initial Requisition"), certified to be true,
accurate and complete by an executive officer of Sublessee,
stating the amount that has actually been paid out and that will
be paid out from the proceeds of the Initial Payment on account
of Sublessee's Costs actually incurred as of the date thereof
(excluding reasonable retainage amounts), (ii) invoices,
including receipted invoices for amounts already paid out,
substantiating any and all such payments made and to be made by
Sublessee on account of Sublessee's Costs actually incurred as
of the date of the Initial Requisition, (iii) an affidavit of
Sublessee's general contractor, in form and substance reasonably
satisfactory to Sublessor, dated no later than the date of the
Initial Requisition, stating that any and all amounts then due
to said general contractor and all subcontractors and other
parties attributable to labor and materials furnished in
connection with Sublessee's Work have been paid in full or will
be paid in full from the proceeds of the Initial Payment
(subject to applicable retainage amounts), and (iv) executed
lien waivers from said general contractor and said
subcontractors and other parties, in form and substance
reasonably satisfactory to Sublessor, waiving any and all liens
attributable to labor and materials theretofore furnished by
such parties in connection with Sublessee's Work.
(b) If there then exists no Event of Default under this Sublease,
after the date on which Sublessor makes the Initial Payment, but
before Sublessee's Work has been finally completed, Sublessor
agrees to make additional payments of Sublessor's Construction
Allowance (each such payment being hereinafter referred to as an
"Additional Payment"), no more frequently than once every thirty
(30) days. Sublessor agrees to make each Additional Payment
within fifteen (15) days after Sublessor's receipt of the
applicable Additional Requisition (as herein defined) and the
other documents specified in clauses (ii) through (iv) of this
subparagraph (b). Each Additional Payment shall be paid to
Sublessee or, at Sublessor's option, to the contractors,
subcontractors and/or vendors specified in the applicable
Additional Requisition, and shall be equal to eighty-five
percent (85%) of Sublessee's Costs as shall have actually been
27
paid or as are payable as of the date of such Additional
Requisition, less the amount of Sublessee's Costs theretofore
paid by Sublessor on account of Sublessor's Construction
Allowance; provided, however, that in no event shall the sum of
any Additional Payment, plus the Initial Payment and all prior
Additional Payments, exceed eighty-five percent (85%) of the
full amount of Sublessor's Construction Allowance. Sublessor's
obligation to make any Additional Payment shall be contingent
upon Sublessee's furnishing to Sublessor the following: (i) a
statement in form and substance reasonably satisfactory to
Sublessor (an "Additional Requisition") certified to be true,
accurate and complete by an executive officer of Sublessee
stating the amount that Sublessee has paid out and that will be
paid out from the proceeds of such Additional Payment on account
of Sublessee's Costs actually incurred after the date of the
Initial Requisition or the last previous Additional Requisition,
as the case may be (excluding reasonable retainage amounts),
(ii) invoices, including receipted invoices for amounts already
paid out, substantiating any and all such payments made or to be
made on account of Sublessee's Costs actually incurred after the
date of the Initial Requisition or the last previous Additional
Requisition, as the case may be, (iii) an affidavit of
Sublessee's general contractor, in form and substance reasonably
satisfactory to Sublessor, dated no later than the date of the
applicable Additional Requisition, stating that any and all
amounts then due to said general contractor and all
subcontractors and other parties attributable to labor and
materials furnished in connection with Sublessee's Work have
been paid in full or will be paid in full from the proceeds of
the applicable Additional Payment (subject to applicable
retainage amounts), and (iv) executed lien waivers from said
general contractor and said subcontractors and other parties, in
form and substance reasonably satisfactory to Sublessor, waiving
any and all liens attributable to labor and materials
theretofore furnished by such parties in connection with
Sublessee's Work.
(c) If there then exists no Event of Default under this Sublease,
upon or after the date on which Sublessee's Work has been
finally completed, Sublessor agrees to make the final payment on
account of Sublessor's Construction Allowance (the "Final
Payment") within fifteen (15) days after Sublessor's receipt of
the Final Requisition (as herein defined) and the other
documents specified below in clauses (ii) through (vii) of this
subparagraph (c). The Final Payment shall be paid to Sublessee
or, at Sublessor's option, to the contractors, subcontractors
and/or vendors specified in the Final Requisition, and shall be
equal to so much of Sublessee's Costs as shall have actually
been paid or as are payable as of the date of the Final
Requisition, less the amount of Sublessee's Costs theretofore
paid by Sublessor on account of Sublessor's Construction
Allowance; provided, however, that in no event shall the Final
Payment exceed the then balance of Sublessor's Construction
28
Allowance. Sublessor's obligation to make the Final Payment
shall be contingent upon Sublessee's furnishing to Sublessor the
following: (i) a statement in form and substance reasonably
satisfactory to Sublessor (the "Final Requisition") certified to
be true, accurate and complete by an executive officer of
Sublessee stating the amount that Sublessee has paid out and
that will be paid out from the proceeds of the Final Payment on
account of Sublessee's Costs actually incurred after the date of
the last previous Additional Requisition, (ii) invoices,
including receipted invoices for amounts already paid out,
substantiating any and all such payments made or to be made on
account of Sublessee's Costs actually incurred after the date of
the last previous Additional Requisition, (iii) an affidavit of
Sublessee's general contractor, in form and substance reasonably
satisfactory to Sublessor, stating that any and all amounts due
to said general contractor and all subcontractors and other
parties attributable to labor and materials furnished in
connection with Sublessee's Work have been paid in full or will
be paid in full from the proceeds of the Final Requisition, (iv)
executed lien waivers from said general contractor and said
subcontractors and other parties, in form and substance
reasonably satisfactory to Sublessor, waiving any and all liens
attributable to labor and materials theretofore furnished by
such parties in connection with Sublessee's Work, (v) evidence
reasonably satisfactory to Sublessor that all of Sublessee's
Work and all of Sublessee's obligations with respect thereto as
contained in this Sublease shall have been finally completed in
all respects in accordance therewith, and (vi) copies of all
governmental approvals, including, without limitation,
certificate(s) of occupancy, necessary for Sublessee to occupy
the Premises.
Sublessee shall pay to Sublessor the total amount of all funds
contributed by Sublessor on account of Sublessor's Construction
Allowance as hereinabove provided (which funds shall in no event
exceed Three Million Five Hundred Thousand and 00/100 Dollars
($3,500,000.00) in the aggregate and are hereinafter referred to as
the "Contributed Amount"), with interest at the rate of six percent
(6%) per annum, payable in sixty (60) consecutive, equal monthly
payments of principal and interest commencing on July 15, 1994 and
continuing on the first day of every month thereafter through and
including the month of July, 1999 (the "Payment Period"). The amount
of each monthly payment on account of the Contributed Amount shall be
calculated so as to result in the full repayment by Sublessee of the
Contributed Amount, with interest at the aforesaid rate, after
payment of all such monthly payments over the aforesaid sixty (60)
month period.
Promptly after the amount of each monthly payment on account of the
Contributed Amount shall have been determined as aforesaid, Sublessor
shall prepare and the parties shall execute and deliver to each other
an agreement memorializing the amount of each such payment payable by
Sublessee during the Payment Period. Sublessor shall have the same
29
remedies hereunder for any failure by Sublessee to pay any payment on
account of the Contributed Amount when due as Sublessor has hereunder
for any failure by Sublessee to pay Base Rent and Additional Rent
when due, including, without limitation, the right to terminate this
Sublease.
22. PROVISIONS BINDING, ETC. Except as herein otherwise expressly
provided, the terms hereof shall run with the land, be binding upon
and inure to the benefit of those claiming under, by and through,
respectively, Sublessor and Sublessee, including, without limitation,
their respective successors and assigns. The reference contained in
the preceding sentence to successors and assigns of Sublessee is not
intended to and does not constitute a consent to assignment by
Sublessee. As between Sublessee and Sublessor, Sublessor shall have
the right to sell, assign, transfer or otherwise alienate its
interest in the Premises, and upon such sale, assignment, transfer or
alienation, the new holder of such interest shall succeed to and
thereby assume all of Sublessor's obligations hereunder, except that
Sublessor and each new holder shall only be liable for obligations
accruing during its respective period of ownership, and Sublessee
shall be bound to the new holder to the same extent as it was bound
to Sublessor. Without limiting the generality of the foregoing, as
between Sublessee and Sublessor, Sublessor shall be entirely freed
and relieved of any obligation or responsibility accruing under this
Sublease from and after any such sale, assignment, transfer or other
alienation by Sublessor of its interest in the Premises.
23. APPLICABLE LAWS. This Sublease shall be construed and interpreted in
accordance with the laws of the State of New Hampshire.
24. ENTIRE AGREEMENT. This Sublease contains the entire agreement of the
parties. No representations, inducements, promises or agreements,
oral or otherwise, not embodied herein shall be of any force or
effect. Nothing in this Sublease shall relieve Sublessor of its
primary liability for its obligations to Master Lessor under the
Master Lease. Master Lessor's consent to this Sublease does not
constitute consent to any future subletting or assignment, except as
expressly permitted in Paragraph 17 hereof with respect to an
assignment of this Sublease or subletting of the entire Premises by
Sublessee to its wholly owned subsidiary or immediate controlling
corporation or to a corporation or other entity under common control
with Sublessee or to a corporation or other entity which acquires all
or substantially all of the assets of Sublessee.
25. ENVIRONMENTAL HAZARDS
25.1 Sublessee's Use of Hazardous Material.
Sublessee shall not cause or permit any hazardous material or oil to
be used, stored, generated, or disposed of by Sublessee or its agents
on, in or from the Premises or in connection with Sublessee's use of
the Premises, except those used, stored, generated, or disposed of by
Sublessee in the ordinary course of its business activities at the
30
Premises, without first obtaining Sublessor's and Master Lessor's
written consent, which consent may be withheld by either party in
such party's sole and absolute discretion. Any request by Sublessee
for such consent by Sublessor and Master Lessor shall be in writing.
Prior to the full execution and delivery of this Sublease, Sublessee
shall deliver to Sublessor and Master Lessor, for their respective
review and approval, which approval may be withheld by either party
in such party's sole and absolute discretion, a list of all hazardous
material or oil that Sublessee intends to use, store, generate, or
dispose of in the ordinary course of its business activities at the
Premises.
25.2 General Standards of Compliance.
Sublessee shall inspect, use, store, generate, transport and dispose
of all hazardous material or oil in compliance with the Environmental
Requirements and shall cause its agents, employees, contractors,
licensees and invitees to so comply. Sublessee shall not release, or
permit to be released by its agents, on, in or from the Premises or
in connection with Sublessee's use of the Premises any hazardous
material or oil in violation of the Environmental Requirements.
25.3 Specific Standards of Compliance.
Without limiting Sublessee's obligations under Paragraph 25.2,
Sublessee shall comply, and cause its agents to comply, with the
specific requirements set forth in this Paragraph 25.3.
(a) Transformers. For all transformers installed by Sublessee on
the Premises, Sublessee shall comply with 40 CFR Part 761.
(b) Discharges to Sanitary Sewer. If required by applicable law,
Sublessee shall obtain permit(s) from all governmental
authorities having jurisdiction with respect to discharges to
sanitary sewers and shall comply with the Federal Clean Water
Act and any pretreatment or other conditions contained in the
applicable sewer permit and shall cause its agents to so comply.
(c) Asbestos. [Intentionally Omitted]
(d) Handling Hazardous Wastes. Sublessee shall comply, and shall
cause its agents to comply, with all applicable laws and
regulations relating to the handling, storage, generation,
transportation, and disposal of hazardous waste.
If Sublessee or its agents generate hazardous waste, upon request of
Sublessor or Master Lessor, Sublessee shall provide any information
and copies of permits required under applicable state laws and
regulations to Sublessor and Master Lessor, and shall make available
upon written request of Sublessor or Master Lessor within thirty (30)
days of the date of such request, copies of all manifests used for
the transportation and disposal of hazardous waste.
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(e) Inventories of Hazardous Material. Sublessee shall make
available to Sublessor and Master Lessor within seven (7) days
of the date of written request: (a) copies of all inventories
of hazardous materials and safety plans filed with the Fire
Department under the Emergency Planning and Community
Right-To-Know Act, 42 U.S.C. Section 11001 et seq. and
applicable New Hampshire laws, (b) copies of material safety
data sheets ("MSDS") that accompany any product used or stored
at the Premises, pursuant to the hazard communications standard
under the Occupational Safety and Health Act ("OSHA") and
evidence that the MSDSs have been made available to Sublessee's
employees, and (c) all other plans and reports required to be
prepared pursuant to the Environmental Requirements.
25.4 Notices.
Sublessor and Sublessee shall promptly deliver to the other and to
Master Lessor any notices, orders or similar documents received from
any governmental agency or official affecting the Premises and
concerning the alleged violation of the Environmental Requirements.
Sublessee shall give notice to the Sublessor and Master Lessor of any
violation or potential violation of the Environmental Requirements
immediately upon becoming aware of same. Sublessor shall give notice
to Sublessee and Master Lessor, within a reasonable time after
receipt thereof, of any official notice received by Sublessor from
any governmental agency or official affecting the Premises and
concerning the alleged violation of the Environmental Requirements.
25.5 Sublessee's Obligation to pay Costs and Fines.
Sublessee shall bear the full cost of, and be solely responsible for,
carrying out its obligations under this Paragraph 25. Sublessee
shall pay forthwith any fine assessed for any violation by Sublessee
or its agents of the Environmental Requirements or shall diligently
proceed to contest the same.
Any cost or fine required under this Paragraph 25 to be borne by
Sublessee may be paid by Sublessor or Master Lessor, at the election
of either party (provided that Sublessor or Master Lessor shall not
pay any such amount if Sublessee is contesting the imposition of the
same, unless such payment is required under the terms of any mortgage
covering the Premises, in which event payment may be made by any such
party if accompanied by an acknowledgement of such contest and a
statement that payment is being made without any waiver of
Sublessee's rights in connection therewith), after at least thirty
(30) days' notice to Sublessee, except that, in cases where such
payment is necessary in order to avoid a lien against or other
material adverse effect on or with respect to the Premises, such
payment may be made immediately after notice, and such payment shall
be reimbursed by Sublessee to Sublessor or Master Lessor, as the case
may be, within 30 days of written demand therefor and may at
Sublessor's election, be treated as additional rent hereunder; and
Sublessor shall have the same rights and remedies for the nonpayment
thereof as for the nonpayment of rent.
32
During the investigation and cleanup of any release that is the
responsibility of Sublessee under this Paragraph 25 or under
applicable Environmental Requirements and during any restoration,
maintenance, or repair work that is the responsibility of Sublessee
under this Paragraph 25 or under applicable Environmental
Requirements, Sublessee shall continue to pay rent even though part
or all of the Premises may be unusable.
25.6 Sublessee's Responsibility to Clean Up Any Release.
Upon written demand by Sublessor or Master Lessor, if hazardous
material or oil has been released in or on the Premises or has
migrated to or off the Premises, by acts or negligence of Sublessee,
Sublessee shall take all actions which are necessary to attain
cleanup levels in accordance with the Environmental Requirements and
to mitigate Environmental Damages, provided, however, to the extent
the same has been expressly permitted by Sublessor and Master Lessor
in writing pursuant to Paragraph 25.1 above, such actions may be
postponed provided they are taken and completed prior to the
expiration of the term of this Sublease and there is no violation of
the Environmental Requirements. These actions include, without
limitation, investigation and cleanup as may be required under
CERCLA, RCRA, or applicable state laws and regulations, whichever is
applicable. All such investigation and remedial work shall be
performed by contractors reasonably acceptable to Sublessor and
Master Lessor in accordance with the Environmental Requirements. Any
such action shall be performed in a good, safe and workmanlike
manner. Upon payment of the reasonable cost of copies thereof,
Sublessee shall promptly provide to Sublessor and Master Lessor
copies of testing results and all other reports.
Following such cleanup, Sublessee shall promptly take all actions as
are necessary to return the Premises and any areas outside the
Premises to the condition existing prior to the release or migration
of any such hazardous material or oil including the repair of any
damage caused by the investigation or remediation.
25.7 Removal.
Sublessee shall remove all hazardous material or oil used, stored,
generated, discharged, released or disposed of by Sublessee and the
containers in which such substances were ever packaged or stored from
the Premises prior to the termination of this Sublease and prior to
vacating; and such removal and disposal of such substances and
containers shall be performed in accordance with all applicable laws
and regulations.
25.8 Inspection.
Upon the written request of Sublessor and/or Master Lessor,
Sublessee, through a duly authorized officer and any employee
responsible for the proper handling and disposal of hazardous
33
material and oil, shall give an annual certification, and a
certification prior to the termination of this Sublease and prior to
vacating, to the effect that the requirements in Paragraphs 25.1
through 25.8, inclusive, and any other of the Environmental
Requirements for which Sublessor or Master Lessor has requested a
certification have been satisfied.
Sublessee grants Sublessor and Master Lessor, upon reasonable written
notice, the right to inspect the Premises throughout the term of this
Sublease to determine whether Sublessee is in compliance with the
provisions in this Paragraph 25; and Sublessee shall provide
Sublessor and Master Lessor with all information retained by
Sublessee in the ordinary course of its business, or required to be
retained by the Environmental Requirements, deemed by Sublessor and
Master Lessor necessary for Sublessor and Master Lessor to ascertain
whether Sublessee so complies.
25.9 Default.
A breach of the obligations contained in this Paragraph 25 shall be
deemed a breach of a material obligation of Sublessee under this
Sublease which breach shall entitle Sublessor to enforce all remedies
against Sublessee for breach and default. Provided, however, the
notice and grace periods set forth in Paragraph 16 of this Sublease
shall apply to any such breach.
25.10 Self Help.
If Sublessor or Master Lessor determines that Sublessee has not
proceeded diligently to cure any default within a reasonable time
period, as reasonably determined by Sublessor and Master Lessor as
the case may be, or in the event of an emergency as determined by
Sublessor or Master Lessor in its reasonable judgment, Sublessor or
Master Lessor, in addition to any other remedy under this Sublease,
shall have the right, if such default continues for ten (10) days
after written notice (or at any time after such notice in the event
of an emergency) but not the obligation, to enter upon the Premises
and to perform Sublessee's obligations hereunder, including the
payment of money and the performance of any other act. All sums so
paid by Sublessor or Master Lessor, as the case may be, and all
reasonable incidental costs and expenses in connection therewith
shall be reimbursed by Sublessee as additional rent to Sublessor
within fifteen (15) days after written request from Sublessor or to
Master Lessor (such written request to include invoices and other
documentation evidencing in reasonable detail all costs paid by
Sublessor or Master Lessor). Notwithstanding any such performances
by Sublessor or Master Lessor, Sublessee shall remain liable for any
violation of the provisions in this Paragraph 25.
25.11 Sublessee's and Sublessor's Indemnification.
Sublessee and its successors, assigns and guarantors shall release,
defend (with an attorney reasonably acceptable to Sublessor and
34
Master Lessor), indemnify and hold harmless Sublessor and Master
Lessor and their respective successors and assigns and the officers,
directors, stockholders, partners, beneficial owners, trustees,
employees, agents, contractors and attorneys, of Sublessor and Master
Lessor, or of the successors and assigns of any of the foregoing,
from and against all Environmental Damages which may be asserted by
Sublessee, any other person or entity, or government agency on
account of the release of any hazardous material or oil upon, in or
from the Premises by Sublessee or its agents, or on account of other
action by Sublessee or its agents in violation of the Environmental
Requirements or on account of breach of any of Sublessee's
obligations under this Paragraph 25, except to the extent that any
such Environmental Damages are caused by the indemnified party. The
provisions of this Paragraph 25.11 shall not apply to hazardous
materials or oil upon or in the Premises on the date hereof or to any
migration of same upon or to the Premises from other property or
caused by third parties, except to the extent caused by Sublessee or
its agents, and Sublessor and its successors, assigns and guarantors
shall release, defend (with an attorney reasonably acceptable to
Sublessee), indemnify and hold harmless Sublessee and its successors
and assigns and the officers, directors, stockholders, partners,
beneficial owners, trustees, employees, agents, contractors and
attorneys of Sublessee, or the successors and assigns of any of the
foregoing, from and against all Environmental Damages which may be
asserted by Sublessor or Master Lessor, any other person or entity,
or government agency on account of the release of any hazardous
material or oil upon, in or from the Premises by Sublessor or Master
Lessor or their respective agents, or on account of other action by
Sublessor, Master Lessor or their respective agents in violation of
the Environmental Requirements, except to the extent that any such
Environmental Damages are caused by Sublessee. In the event that the
Master Lessor succeeds to the interest of the Sublessor under this
Sublease, it is understood and agreed that (a) Master Lessor shall be
liable to Sublessee under the foregoing indemnity only for
Environmental Damages which may be asserted as aforesaid on account
of the release of any hazardous material or oil upon, in or from the
Premises by Master Lessor or its agents that first occurs from and
after the date on which Master Lessor first succeeds to Sublessor's
interest hereunder, or on account of other action by Master Lessor or
its agents in violation of the Environmental Requirements that first
occurs from and after such date (such Environmental Damages are
hereinafter referred to as "After-Occurring Damages"), and (b)
Sublessor shall not be liable to Sublessee under the foregoing
indemnity for any After-Occurring Damages.
25.12 Definitions.
The following terms as used herein shall have the meanings set forth
below:
"Hazardous material or oil" shall mean any substance (i) which is
toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous substance which is or
35
becomes regulated by any governmental authority, agency, commission
or instrumentality of the United States, the State of New Hampshire
or any political subdivision thereof including city or town; or (ii)
which is or becomes defined as a "hazardous substance" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA") or the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901
et seq. ("RCRA"); as well as any material or substance which is or
becomes defined as hazardous material or oil under applicable state
laws and regulations; or (iii) which is or becomes a pollutant regulated
under the Clean Air Act, 42 U.S.C. Section 7401 et seq. and 40 CFR Parts
50 to 85 or applicable state laws and regulations; or (iv) which is or
becomes defined as "hazardous waste" below; or (v) the presence of which
requires investigation or remediation under any present or future federal,
state or local statute, regulation, ordinance, by-law, order, action,
policy or common law; or (vi) which contains gasoline, diesel fuel, oil
or other petroleum hydrocarbons.
"Hazardous waste" shall mean any material designated as such under
any applicable federal, state or local law, regulation, ordinance or
by-law.
"Environmental Damages" shall mean liabilities, injuries, losses,
claims, damages, settlements, reasonable attorneys' and consultants'
fees, penalties, interest and expenses, and costs of environmental
site investigations, reports and cleanup. The costs of environmental
site investigations, reports and cleanup include costs incurred in
connection with any investigation or assessment of site conditions or
health of Sublessee's agents or other persons using the Premises,
risk assessment, monitoring, or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental
agency or political subdivision or recommended by Sublessor's or
Master Lessor's environmental consultant (or Sublessee's
environmental consultant in the event Sublessor or Master Lessor
elect not to employ their own consultant) in the exercise of its
reasonable professional judgment.
"Environmental Requirements" shall mean all applicable laws, rules
and regulations (including without limitation the laws and
regulations referenced in Paragraphs 25.2 through 25.8, inclusive),
and the orders of any governmental authority having jurisdiction with
respect thereto, insofar as such laws, rules and regulations and
orders relate to the release, maintenance, use, keeping in place, or
disposal of hazardous material or oil, including those pertaining to
reporting, licensing, permitting, housekeeping, upgrading of
equipment, health and safety of tenant's agents and other persons,
investigation, remediation, and disposal; and shall include both
present and future laws and regulations and orders.
"Release" shall mean any release, spill, emission, discharge or other
disposal into the environment including the atmosphere, ground,
building materials, sewer system, storm drainage system, or body of
water.
36
25.13 Other.
(a) The provisions of this Paragraph 25 shall be in addition to any
other obligations and liabilities Sublessee may have to
Sublessor under this Sublease or at law or in equity.
(b) In the case of conflict between this Paragraph 25 and other
provisions of this Sublease, the provisions imposing the most
stringent requirement as to Sublessee shall control.
(c) The obligations of Sublessee and Sublessor under this Paragraph
25 shall survive the expiration or termination of this Sublease
and the transfer of title to the Premises.
(d) Sublessee's liabilities and obligations under this Paragraph 25,
including, without limitation, Sublessee's indemnification
obligations, shall include liability for and obligations
relating to the acts and omissions of Sublessee, anyone claiming
by, through or under the Sublessee, and any and all employees,
agents, contractors and subcontractors of Sublessee or any such
party. Sublessor's indemnification obligations under this
Paragraph 25 shall include liability for and obligations
relating to the acts and omissions of Sublessor, anyone claiming
by, through or under the Sublessor, and any and all employees,
agents, contractors and subcontractors of Sublessor or any such
party.
26. HOLDING OVER. If Sublessee remains in possession of the Premises or
any part thereof beyond the Expiration Date (or, if Sublessee shall
duly exercise any of the options of extension set forth in Paragraph
5 of this Sublease, beyond the expiration of the applicable extension
period), Sublessee shall be deemed to be occupying the Premises from
month to month, subject to such occupancy being terminated by either
party upon at least thirty (30) days' written notice (except that
such occupancy shall in any event automatically terminate on
September 30, 2000 without the need of any such notice), at a monthly
rental equal to One Hundred Eighty-Four Thousand Five Hundred and
00/100 Dollars ($184,500.00), together with Additional Rent, and
subject to all of the same terms, provisions, and conditions set
forth in this Sublease; it being understood and agreed that Sublessee
shall have no right to and shall in no event remain in occupancy of
the Premises or any part thereof beyond September 30, 2000 without
having first entered into a new lease agreement relative to the
Premises with Master Lessor. Sublessee shall indemnify and hold
harmless Sublessor from and against any and all liability, loss,
cost, damage and expense suffered by Sublessor arising out of or
resulting from any failure on the part of Sublessee to yield up the
Premises when and as required under this Sublease.
27. QUIET ENJOYMENT. Sublessee, subject to the terms and provisions of
this Sublease, on payment of the rent and observing, keeping and
performing all of the terms and provisions of this Sublease on its
37
part to be observed, kept and performed, shall lawfully, peaceably
and quietly have, hold, occupy and enjoy the Premises during the term
hereof without hindrance or ejection by any persons lawfully claiming
under Sublessor. To the best of Sublessor's knowledge, there is no
pending or overtly threatened litigation or administrative action
involving the Premises that would adversely affect Sublessee's
ability to lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises as aforesaid.
28. OPTION TO PURCHASE. Sublessor hereby assigns to Sublessee
Sublessor's option to purchase the Premises and certain other real
property, as set forth in, and subject to and in accordance with the
terms and conditions of, Article XXIV of the Master Lease. In the
event that Sublessee exercises such option to purchase and acquires
record title to the Premises and such other property, then this
Sublease shall thereupon cease and determine and be of no further
force and effect, without recourse to either of Sublessor or
Sublessee as to matters accruing from and after the date on which
Sublessee acquires record title to the Premises and such other
property.
29. FORCE MAJEURE. In the event that any party hereto shall be delayed,
hindered in or prevented from the performance of any act (other than
the payment of Base Rent, Additional Rent or the Contributed Amount
by Sublessee and the performance of restoration work by the Master
Lessor in the event of a casualty or taking as provided in Paragraph
14 of this Sublease) required hereunder by reason of strikes,
lock-outs, labor troubles, inability to procure materials, fuel or
gas, failure of power, riots, insurrection, the act, failure to act
or default of the other party, war, accidents or any other reason
beyond such party's control, then performance of such act shall be
excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent
to the period of such delay.
30. SUBLESSOR AND MASTER LESSOR DEFAULT AND LIABILITY. Sublessor and
Master Lessor shall in no event be in default in the performance of
any of their respective obligations hereunder unless and until
Sublessor or Master Lessor, as the case may be, shall have failed to
perform such obligations within thirty (30) days or such additional
time as is reasonably required to correct any such default after
notice by Sublessee to such party properly specifying wherein such
party has failed to perform any such obligation. Notwithstanding
anything contained herein to the contrary, in the event that any
failure by Sublessor or Master Lessor to perform their respective
obligations under this Sublease or the Master Lease shall prevent
Sublessee from using all or a portion of the Premises for the
purposes permitted under this Sublease for any period of five (5)
consecutive business days or longer after the date on which Sublessor
receives notice of such failure specifying in reasonable detail the
particulars thereof, and if there then exists no Event of Default
under this Sublease, then a just proportion of the Base Rent,
Additional Rent, Contributed Amount, according to the nature and
38
extent of the portion of the Premises rendered untenantable, shall be
abated until use and occupancy of substantially all of the Premises
shall be restored. In the event that the Sublessee shall be prevented
from using all of the Premises for the purposes permitted under this
Sublease by reason of any such failure by Sublessor or Master Lessor
for a period of thirty (30) consecutive days or longer after the date
on which Sublessor receives notice of such failure specifying in
reasonable detail the particulars thereof, and if there then exists no
Event of Default under this Sublease, then Sublessee shall have the right
to terminate this Sublease upon twenty (20) business days' written notice
to Sublessor, in which event this Sublease shall terminate with the same
effect as if the date set forth in such notice were the expiration date
set forth in this Sublease. Notwithstanding anything contained herein to
the contrary, Sublessee agrees that Master Lessor shall have no personal
liability with respect to any of the provisions of this Sublease at any
time, whether before or after Master Lessor succeeds, if at all, to
Sublessor's interest hereunder, and Sublessee shall look solely to the
estate and property of the Master Lessor in the Premises for the
satisfaction of any of Sublessee's remedies, including, without
limitation, the collection of any judgment or the enforcement of any other
judicial process requiring the payment or expenditure of money by Master
Lessor in the event of any default or breach by Master Lessor with respect
to any of the terms and provisions of this Sublease to be observed and/or
performed by Master Lessor, subject, however, to the prior rights of any
holder of any mortgage covering all or part of the Premises, and no other
assets of Master Lessor or any principal of Master Lessor shall be subject
to levy, execution or other judicial process for the satisfaction of
Sublessee's claim and in the event Sublessee obtains a judgment against
Master Lessor, the judgment docket shall be so noted. Without in any way
limiting the foregoing, Sublessee reserves the right to seek judicial
injunctive relief to enforce any obligations of Master Lessor which have
not been complied with.
IN WITNESS WHEREOF, the parties have executed this Sublease, under
seal, as of the date first written above.
SUBLESSOR: SUBLESSEE:
HEWLETT-PACKARD COMPANY THE TIMBERLAND COMPANY
By: By:
Its Its
Hereunto duly authorized Hereunto duly authorized
/4282
39
CONSENT OF MASTER LESSOR
Pursuant to Article IX of the Master Lease, the undersigned Master
Lessor under the Master Lease hereby consents to the subletting of the
Premises in accordance with the terms and conditions of the foregoing
Sublease but does not consent to any future subletting or assignment,
notwithstanding anything to the contrary contained in Sections 17 and 22
of said Sublease.
In connection with its consent to the Sublease, the Master Lessor
hereby agrees as follows:
1. The Master Lessor hereby confirms, to the best of its knowledge,
that there exists no default under the Master Lease nor any event which
with the giving of notice or passage of time or both could constitute a
default under the Master Lease and the Master Lessor hereby waives all
rights to claim a default (a) under Article XII(f) of the Master Lease
relating to any discontinuance of occupancy or abandonment of the
Premises accrued or occurring prior to the date hereof or (b) under
Article IX of the Master Lease relating to any assignment of the Master
Lease in connection with the transfer of all of the outstanding shares of
Apollo Computer, Inc. to Sublessor;
2. As between the Master Lessor and the Sublessee, to the extent
there are any inconsistencies between the terms and provisions of the
Sublease and the terms and provisions of the Master Lease, the terms and
provisions of the Sublease shall control;
3. The Master Lessor agrees to be bound by the obligations of the
Master Lessor to the Sublessee set forth in the following provisions of
the Sublease: (i) Master Lessor's obligation under Paragraph 7 to
prosecute tax abatement proceedings once commenced and to notify
Sublessee of the discontinuance thereof; (ii) Master Lessor's obligation
under Paragraph 8(e) to minimize interference with Sublessee's use of the
Premises in connection with the exercise by the Master Lessor of its
rights thereunder; (iii) Master Lessor's obligations under Paragraphs
8(f) and 8(g) to be liable to Sublessee for damages caused by its
negligence; (iv) Master Lessor's obligation under Paragraph 8(o) to act
reasonably in approving or disapproving insurance amounts; (v) Master
Lessor's obligation under Paragraph 9 to act reasonably in approving or
disapproving maintenance contracts; (vi) Master Lessor's obligations
under Paragraph 11 to act reasonably in approving or disapproving Plans
and Specifications (except as to structural, exterior and/or roof work),
in designating fixtures and leasehold improvements for removal from the
Premises at the expiration or earlier termination of the Sublease Term,
and in acting to approve or disapprove Plans and Specifications within
ten (10) business days after receipt thereof and failing such action, in
being bound by the provisions thereof relative to the consequences of
such failure; (vii) Master Lessor's obligations under Paragraph 12 to act
reasonably in approving or disapproving subsequent alterations and the
plans and specifications therefor (except as to structural, exterior
and/or roof work), in designating fixtures and leasehold improvements for
40
removal from the Premises at the expiration or earlier termination of the
Sublease Term, and in acting to approve or disapprove such plans and
specifications within ten (10) business days after receipt thereof and
failing such action, to be bound by the provisions thereof relative to
the consequences of such failure; (viii) Master Lessor's obligation under
Paragraph 17 to permit, without the need for Master Lessor's consent, any
assignment of the Sublease or subletting of the Premises expressly therein
permitted; and (ix) Master Lessor's obligation under Paragraph 25.11 to act
reasonably in approving or disapproving an attorney designated by Sublessee
in connection with any matter that is the subject of the indemnity therein
provided.
The Master Lessor hereby certifies as of the date hereof as follows:
A. The Master Lease represents the entire agreement between the
Master Lessor and the Sublessor, is in full force and effect and has not
been assigned, modified, supplemented or amended in any way (except that
Master Lessor has assigned the Master Lease to its mortgagee); a true,
correct and complete copy of the Master Lease, including any and all
amendments thereto (which documents consist of a lease dated June 19,
1984, as amended by a certain Amendment A, dated December 21, 1984, as
further amended by a certain Stratham Lease Amendment, dated as of May
21, 1986, as affected by a certain letter, dated September 26, 1990, from
Sublessor to the Master Lessor and as further amended by a certain
Amendment to Lease of even date herewith), is attached as Exhibit "B" to
the Sublease of which this consent is a part; and
B. Rental payments under the Master Lease are being made on a
current basis and have been paid through the month of April, 1994.
The undersigned hereby agrees to enter into a subordination,
non-disturbance and attornment agreement with Sublessee, in the form
attached to the Sublease of which this consent is a part as Exhibit
"SNDA", concurrently with the full execution and delivery of said
Sublease.
As between Master Lessor and Sublessor, nothing herein or in said
Sublease shall relieve Sublessor of its obligations to Master Lessor
under said Master Lease or modify any of the terms of said Master Lease.
Executed under seal this day of , 1994.
FIRST ALTEX REALTY TRUST
By:
Hereunto duly authorized, as
Trustee and not individually
(Signatures continued on next page)
41
By:
Hereunto duly authorized, as
Trustee and not individually
By:
Hereunto duly authorized, as
Trustee and not individually
42
EXHIBIT NOT FILED
EXHIBIT "A"
PLAN OF PREMISES
43
EXHIBIT NOT FILED
EXHIBIT "B"
MASTER LEASE
44
EXHIBIT "C"
ESTIMATED OPERATING EXPENSES AND OTHER COSTS
200 DOMAIN DRIVE
STRATHAM, NH
Estimated 1994 Operating Expenses:
Real Property Taxes $0.796/r.s.f.
Insurance $0.147/r.s.f.
TOTAL $0.943/r.s.f.
45
EXHIBIT "SNDA"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made as of the day of March, 1994 by and
between the TRUSTEES of FIRST ALTEX REALTY TRUST, u/d/t dated as of
May 15, 1984 and recorded with the Rockingham County Registry of Deeds in
Book 2499, Page 1348, as amended (the "Master Lessor"), having a business
address in care of Altid Properties, 17 Monsignor O'Brien Highway,
Cambridge, Massachusetts 02141-1817, and THE TIMBERLAND COMPANY, a
Delaware corporation ("Sublessee"), having a business address of 11
Merrill Industrial Drive, P.O. Box 5050, Hampton, New Hampshire
03842-5050.
W I T N E S S E T H:
WHEREAS, Master Lessor holds the lessor's interest in and to a
certain lease, dated June 19, 1984, the lessee's interest in which is
held by Hewlett-Packard Company (the "Sublessor"), relating to certain
premises located at 200 Domain Drive in Stratham, Rockingham County, New
Hampshire, as more particularly therein described (the "Premises"), as
amended by a certain Amendment A, dated December 21, 1984, as further
amended by a certain Stratham Lease Amendment, dated as of May 21, 1986,
as affected by a certain letter, dated September 26, 1990, from Sublessor
to the Master Lessor and as further amended by a certain Amendment to
Lease dated March , 1994 (said lease, as amended and affected by the
above-listed documents, is hereinafter referred to as the "Master Lease");
WHEREAS, Sublessor holds the sublessor's interest in and to a certain
sublease, dated March , 1994, the sublessee's interest in which is
held by Sublessee, relating to the Master Lease and the Premises; and
WHEREAS, Master Lessor has been requested by Sublessor and Sublessee
to enter into this agreement with Sublessee;
NOW, THEREFORE, in consideration of the Premises and the mutual
covenants herein contained, the parties hereto mutually covenant and
agree as follows:
1. Subject to the terms and provisions of this agreement, the
Sublease and all of the right, title and interest of Sublessee
thereunder in and to the Premises are and shall be subject and
subordinate to the Master Lease.
2. In the event that Master Lessor comes into possession of the
Premises as a result of the termination or other enforcement of
lessor's rights under the Master Lease as the result of a
default by the Sublessor thereunder, as long as Sublessee is not
then in default under the Sublease beyond any applicable notice
46
and cure period provided to Sublessee under the Sublease, Master
Lessor will recognize Sublessee and will not disturb Sublessee
in its possession of the Premises for the full term of years in
the Sublease provided subject to the terms, covenants and
conditions of the Sublease for any reason other than one which
would entitle Sublessor to terminate the Sublease under its
terms or would entitle Sublessor to dispossess Sublessee from
the Premises.
3. Sublessee agrees with Master Lessor that if the interest of
Sublessor in the Premises shall be held by Master Lessor by
reason of termination or other proceedings brought by Master
Lessor, Sublessee shall be bound to Master Lessor and Master
Lessor shall be bound to Sublessee under all of the terms,
covenants and conditions of the Sublease for the then balance of
the term thereof and any extensions or renewals thereof which
may be effected in accordance with any option therefor in the
Sublease, with the same force and effect as if Master Lessor
were the original holder of the sublessor's interest in and to
the Sublease (except that Master Lessor shall in no event be
liable for or bound by the obligations of Sublessor under
Paragraph 21 of the Sublease), and the Sublease shall be a
direct lease between the Master Lessor and the Sublessee, and
Sublessee shall attorn to Master Lessor as its lessor, said
attornment to be effective and self-operative without the
execution of any further instruments on the part of Sublessor
and Master Lessor immediately upon Master Lessor's succeeding to
the interest of Sublessor in the Premises.
4. Sublessee agrees with Master Lessor that if Master Lessor shall
succeed to the interest of Sublessor under the Sublease, Master
Lessor shall not be (a) liable for any action or omission of
Sublessor under the Sublease prior to such succession, or (b)
subject to any offsets or defenses which Sublessee might have
against Sublessor, or (c) bound by any rent or additional rent
which Sublessee might have paid for more than the then current
month to Sublessor, or (d) bound by any amendment or
modification of the Sublease made without Master Lessor's and
its mortgagee's written consent, or (e) personally liable with
respect to any of the provisions of the Sublease and Sublessee
shall look solely to the estate and property of the Master
Lessor in the Premises for the satisfaction of any of
Sublessee's remedies, including, without limitation, the
collection of any judgment or the enforcement of any other
judicial process requiring the payment or expenditure of money
by Master Lessor in the event of any default or breach by Master
Lessor with respect to any of the terms and provisions of the
Sublease to be observed and/or performed by Master Lessor,
subject, however, to the prior rights of any holder of any
mortgage covering all or part of the Premises, and no other
assets of Master Lessor or any principal of Master Lessor shall
be subject to levy, execution or other judicial process for the
satisfaction of Sublessee's claim and in the event Sublessee
obtains a judgment against Master Lessor, the judgment docket
shall be so noted.
47
5. This Agreement shall bind and inure to the benefit of Master
Lessor and Sublessee and their respective successors and assigns.
6. This Agreement shall be governed by and construed in accordance
with the laws of the State of New Hampshire.
Executed under seal as of the date first above written.
WITNESS: FIRST ALTEX REALTY TRUST
By:
Hereunto duly authorized, as
Trustee and not individually
[SIGN IN BLACK INK]
By:
Hereunto duly authorized, as
Trustee and not individually
[SIGN IN BLACK INK]
By:
Hereunto duly authorized, as
Trustee and not individually
[SIGN IN BLACK INK]
ATTEST: THE TIMBERLAND COMPANY
By: Secretary
Its
Hereunto duly authorized
[SIGN IN BLACK INK]
48
STATE OF )
) ss.
COUNTY OF )
On this day of , 1994, before me personally
appeared , who, being by me duly sworn, did say
that he/she is of The Timberland Company, a Delaware
corporation, that said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors; and said
acknowledged said instrument to be the free act and
deed of said corporation.
Notary Public
My Commission Expires:
[COMPLETE AND SIGN IN BLACK INK]
STATE OF )
) ss.
COUNTY OF )
On this day of , 1994, before me personally
appeared , Trustee of First Altex Realty
Trust as aforesaid, and acknowledged the foregoing instrument to be
his/her free act and deed, as said Trustee.
Notary Public
My Commission Expires:
[COMPLETE AND SIGN IN BLACK INK]
STATE OF )
) ss.
COUNTY OF )
On this day of , 1994, before me personally
appeared , Trustee of First Altex Realty
Trust as aforesaid, and acknowledged the foregoing instrument to be
his/her free act and deed, as said Trustee.
Notary Public
My Commission Expires:
[COMPLETE AND SIGN IN BLACK INK]
49
STATE OF )
) ss.
COUNTY OF )
On this day of , 1994, before me personally
appeared , Trustee of First Altex Realty
Trust as aforesaid, and acknowledged the foregoing instrument to be
his/her free act and deed, as said Trustee.
Notary Public
My Commission Expires:
[COMPLETE AND SIGN IN BLACK INK]