Exhibit 10.44
LEASE AGREEMENT
By and Between
Mutual Properties Stonedale L.P.
as Landlord
and
Pro-Xxxx Holdings, Inc.
as Tenant
Property Location: Xxxxxxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Peace Xxxx, R.I. 02881
LEASE AGREEMENT
SUMMARY OF LEASE TERMS
Premises Address: Stonedale Building
1935 Kingstown Road
Peace Xxxx, R. I. 02883
Unit Number: Xxxxxx #000, #000
Xxxxxx Xxxxxxx: Xxxxx Xxxx
----- ----
201 3735
203 2707
----
Total 6442
Term: Five (5) Years
Commencement Date: April 1, 1998
Expiration Date: March 31, 2003
Option to Renew: None:
Purpose: General Office Use
Base Tax Year: 1997
Advance Front Rent $14,494.50
Applied as follows:
First Month: $7,247.25
Security Deposit: $7,247.25
Rent: Embodied within the express terms of the Lease.
LEASE AGREEMENT
This LEASE AGREEMENT ("Lease") dated as of this 23rd day of
December, 1997, is made by and between MUTUAL PROPERTIES STONEDALE L.P., a Rhode
Island Limited Partnership, having an address of Xxx Xxxxx X Xxxxxx Xxxxxxx,
Xxxx Xxxxxxx, X.X. 00000, ("Landlord"), and Pro-Xxxx Holdings, Inc. a Delaware
Corporation, having an address of 0000 Xxxxxxxxx Xxxx, Peace Xxxx, R. 1.
("Tenant").
Article I - Premises
Section 1.01. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, for the term and subject to the covenants, agreements and
conditions hereinafter set forth those certain premises located at Stonedale
Office Building, 1935 Kingstown Road, Peace Xxxx, RI. 02883 identified as
premises as outlined in red (the "Premises"), on Exhibit A attached hereto.
Section 1.02. The rentable area of the Premises is agreed to be 6442
square feet which consists of Suite #201 containing 3735 square feet and Suite
#203 containing 2707 square feet The Premises are a portion of the building (the
"Building") located at 0000 Xxxxxxxxx Xxxx, Peace Xxxx, R.I. 02883
(collectively, the "Property").
Section 1.03. Landlord hereby grants to Tenant the nonexclusive
right to use the common areas associated with the Building (the "Common Areas"),
which are defined herein as all areas and facilities outside the Premises
contained in or related to the Building that are provided for the general use
and convenience of Tenant and of other tenants of rental space in the Building
and their respective agents, invitees and customers. The Common Areas shall
include without limitation, pedestrian walkways, stairways, landscaped areas,
sidewalks, service corridors, throughways and private roads servicing the
Building. The Common Areas shall also include the parking facilities servicing
the Building (the "Parking Area").
Article 2 - Term
Section 2.01. The term (the "Initial Term") of this Lease shall
commence on April 1, 1998 (the "Commencement Date") and, subject to earlier
termination or upon default or as hereinafter provided, end on March 31, 2003
(the "Expiration Date"). Landlord and Tenant agree that Landlord shall deliver
possession of the Premises to Tenant on or before the Commencement Date, with
time being of the essence.
Section 2.02. Provided Tenant is not in default hereunder, Tenant
may terminate this Lease with respect to the entire Premises or a part thereof
upon six (6) months advance written notice to Landlord given any time after
March 31, 2000 (the "Notice"). The termination of the Lease, in its entirety or
with respect to any Suite, identified in the Notice , (Tenant may not terminate
a portion of any Suite), shall be effective as of the last day of the sixth
month following Landlord's receipt of the Notice (the "Effective Date"). For any
such termination to become effective on the Effective Date,
Tenant shall pay to Landlord prior to the Effective Date a lump sum termination
fee equal to three (3) months Rent and Additional Rent then allocable to the
Premises or portion thereof affected by the Notice and Tenant shall not be in
default under the Lease through the Effective Date. In the event of a partial
termination, Rent shall be proportionately reduced on the remaining premises
from and after the Effective Date.
Article 3 - Rent
Section 3.0. Commencing on the Commencement Date and continuing
through March 31, 2003, Tenant agrees to pay to Landlord annual rent ("Base
Rent") for the use of the Premises, in lawful money of the United States in the
following amounts:
Years 1 - 5:
From April 1, 1998 through and including March 31, 2003,
annual Base Rent of $86,967.00 payable in equal monthly
installment of $7,247.25.
All installments of Base Rent shall be payable on the first day of each
month in advance without setoff or deduction. Rent for any period less than a
full calendar month shall be prorated.
Section 3.02. In addition to Base Rent, Tenant shall pay as
additional rent (hereinafter called "Additional Rent") (a) Tenant's Pro Rata
Share (as hereinafter defined) of all real estate taxes and assessments of any
kind relating to the Property in excess of those which were assessed for the
1997 tax fiscal year ("Base Tax Year") and (b) Tenants Pro Rata Share of all
Operating Costs (as hereinafter defined) incurred by the Landlord (collectively
"Landlords' Expenses").
Tenant's Pro Rata Share shall be 34.17%. Such Additional Rent shall
be in the nature of Rent for purpose of determining Landlord's rights in respect
thereto. As soon as reasonably practicable after Landlord's receipt of real
estate tax and assessment bills for the Property each Lease year throughout the
Term, Landlord shall deliver to Tenant each year a reasonably detailed statement
setting forth the real estate taxes and assessments due for the Base Tax Year,
the real estate taxes and assessments due for the current year, and Tenant's Pro
Rata Share thereof. Tenant shall pay such amount upon receipt of such statement.
Beginning on the Commencement Date and continuing on the first of
each month throughout the Term, Tenant agrees to pay monthly in advance the sum
of $540.00 as Tenant's Pro-Rata share of the Operating Cost of the Property. As
soon as reasonably practicable after the end of each fiscal year, Landlord shall
supply Tenant with a reasonably detailed statement setting forth all Operating
Cost and a determination of Tenant's Pro-Rata Share thereof. In the event the
amount paid by Tenant shall be less than its Pro-Rata Share of Landlord's
Operating Cost for each calendar year of the Term, Tenant shall pay said excess
cost within Thirty (30) days after receipt of such determination each year
throughout the Term. Notwithstanding the foregoing, Landlord and Tenant agree
that in each subsequent year of the term, Tenant's Pro-Rata Share of Operating
Costs shall not in crease by more than 3% each year.
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For the purpose of this Lease, the term "Operating Costs" shall mean
the following costs and expenses incurred by Landlord for the operation,
management and maintenance of the Property: insurance premiums and the
reasonable expenses incurred in maintaining and repairing all plumbing, heating,
air conditioning and electrical equipment and managing, equipping, lighting,
repairing, cleaning and maintaining, and the Common Areas, specifically
including but not limited to landscaping, gardening, parking lot maintenance,
line painting, traffic control, sanitary control, removal of snow, ice, trash,
rubbish and other refuse, and the cost of all personnel necessary to implement
such services plus 15% of all costs to cover administrative cost relative in the
operation of the Common Areas, but not financing costs nor the costs of any
major repairs to or replacement of the Building, fixtures (excluding Tenant's
fixtures but including all plumbing, heating, air conditioning and electrical
equipment) Common Areas and Structural Components thereof. Such financing costs
and the costs of any major repairs or replacement shall be paid solely by
Landlord.
Section 3.03. All payments of Rent required to be made hereunder
shall be made payable to and sent to Landlord at the address set forth in
Article 25 hereof.
Article 4 - Possession: Quiet Enjoyment
Section 4.01. Landlord shall, on or before the Commencement Date,
deliver possession of the Premises to Tenant, in good condition and repair, and
in material compliance with all governmental codes, laws, ordinances,
regulations and requirements applicable to the Premises and to Tenant's use
thereof. To the extent government agencies or regulatory bodies require facility
updates be made to comply with laws and regulation under the Americans With
Disabilities Act (the "ADA") it will be the Landlords responsibility to make
such renovations at Landlords expense.
Section 4.02. Landlord covenants that it has good and marketable
record title to the Property free from any liens or encumbrances which would
interfere with the Tenant's quiet enjoyment of the Premises during the Term.
Landlord covenants and agrees to keep Tenant in quiet possession and enjoyment
of the Premises during the Term.
Section 4.03. Landlord covenants that it has full, lawful right and
authority to enter into the Lease and the execution of the Lease will not
violate the provisions of any lease, mortgage, agreement, restriction, law, code
or ordinance in effect and applicable to the Premises and/or the Property.
Section 4.04. Landlord will not enter into any lease, agreement, or
other undertaking which will violate or interfere with the rights of the Tenant
under the Lease.
Section 4.05. Landlord covenants that to the best of its knowledge
that there are no present or pending violations of any applicable public,
building or local safety laws or regulations with respect to the Premises, nor
is there any violation of any zoning law, ordinance or regulation of any
subdivision plat, deed or other restriction.
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Section 4.06. Landlord covenants that all plumbing, heating, air
conditioning and electrical equipment are of such design, efficiency and
capacity as will insure the comfortable and economic enjoyment of the Premises
by the Tenant, its agents, employees and invitees throughout the Term of the
Lease.
Section 4.07.Landlord shall provide Tenant with additional space
within the Building at the same Base Rent then in effect for these Premises, at
any time during the Term as the same shall be or become available from time to
time.
Article 5 - Use of Premises
Section 5.01. Tenant shall be permitted to use the Premises for the
purposes of General Office Use and for any other legal purpose (the "Permitted
Use"). Landlord covenants that the Permitted Use of the Premises is in
compliance with and will not violate the provisions of any lease, mortgage,
agreement, restrictive covenant, or zoning or building law applicable to the
Premises.
Article 6 - Taxes
Section 6.01. Tenant shall pay before delinquency all taxes that
become payable during the Term which are levied or assessed upon Tenant's
equipment, furniture, fixtures and Tenant's other personal property installed or
located in or on the Premises.
Section 6.02. Landlord shall pay before delinquency and subject to
reimbursement by Tenant of Tenant's Pro Rata Share, in accordance with Section
3.02. hereof, all real property and/or rental taxes which are now or hereafter
imposed upon the Property and/or the Building by any governmental agency or
authority having jurisdiction over the Property, or any net income, franchise,
estate, inheritance or transfer tax imposed upon the Property and/or the
Building subject to whatever rights.
Article 7 - Insurance
Section 7.01. Tenant shall maintain, at Tenant's expense throughout
the Term, a policy of commercial general liability insurance, against all claims
in connection with Tenant's Permitted Use or occupancy of the Premises. Such
policies shall have limits of liability of not less that $1,000,000 for personal
injury or death of any one person, not less that $1,000,000 for any one
incident, and not less than $500,000 for property damage. Tenant shall also
maintain at Tenant's expense throughout the Term xxxxxxx'x compensation
insurance affording statutory coverage and containing statutory limits.
Tenant shall furnish Landlord a certificate evidencing such
insurance. Such insurance policy shall name Landlord as an additional insured
and provide at least thirty (3 0) days' cancellation notice to Landlord.
Section 7.02. Landlord shall cause to be maintained, throughout the
Term (a) a policy
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of commercial general liability insurance with respect to the Property, and (b)
policies of insurance covering damage to the Building, excluding Tenant's
fixtures, or equipment, in the amount of the full replacement value thereof,
providing protection against all risk of loss. Landlord shall furnish Tenant,
upon written demand therefor, a copy of such policies or a certificate
evidencing such insurance.
Section 7.03. Landlord and Tenant hereby mutually waive their
respective rights of recovery against each other for any loss of, or damage to,
either party or its property, where such loss or damage is insured by an
insurance policy required to be in effect at the time of such loss or damage;
and they further mutually agree that their respective insurance companies shall
have no right of subrogation against the other on account thereof. Each party
shall obtain any special endorsements, if required by its insurer, whereby the
insurer waives its rights of subrogation against the other party hereto.
Article 8 - Indemnification
Section 8.01. Tenant shall hold Landlord harmless from and defend
Landlord against any and all claims or liability for any injury or damage to any
person or property whatsoever; (a) occurring in, on, or about the Premises; and
(b) occurring in, on, or about the Building, when such injury or damage shall be
caused in part or in whole by the act, neglect, fault, or omission of and duty
with respect to the same, by Tenant, its agents, employees, or invitees.
Section 8.02. Landlord shall hold Tenant harmless from and defend
Tenant against any and all claims or liability for any injury or damage to any
person or property whatsoever; (a) occurring in, or about the Property other
than the Premises; and (b) occurring in, on, or about the Premises, when such
injury or damage shall be caused in part or in whole by the act, neglect, fault,
or omission of any duty with respect to the same, by Landlord, its agents,
employees or invitees.
Article 9 - Utilities and Services; Parking
Section 9.01. Landlord shall cause water and sewage service to be
furnished to the Premises for the use of Tenant. Tenant shall, at its sole cost
and expense, pay or cause to be paid all charges (including any deposits) for
water, sewer, gas, electricity, telephone or other services or utilities
furnished to the Premises or to Tenant with respect to its operation therein
during the Term to the extent that such utilities shall be separately metered
and/or directly billed to Tenant by the respective utilities. To the extent that
any such utilities are metered and/or billed to more than one tenant (including
Tenant) Tenant shall pay Tenant's pro rata share of such amounts. Further, it is
expressly agreed and understood between the Tenant and the Landlord that the
Tenant shall hold the Landlord harmless for any and all damages sustained as a
direct or indirect result of damage to mains and conduits bringing water gas
and/or electricity to the Tenanfs pren-fises, provided that the damage to such
mains and/or conduits was not caused by the gross negligence or willful
misconduct of Landlord.
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Section 9.02. Tenant shall have the right in common with the general
use of other tenants, to park vehicles in accordance with the parking
requirements of the city or town in which the Premises are located free of
charge and on an unreserved basis, in the Parking Areas subject to the exclusive
control and management of Landlord.
Article 10 - Landlord's Work
Section 10.01. Prior to the Commencement Date, Landlord, at its
expense, shall cause certain work to be constructed in accordance with Exhibit B
attached hereto and by this reference incorporated herein. Article 11 - Repairs
and Maintenance
Section 11.01. Landlord, at its sole expense subject to
reimbursement of Operating Costs by Tenant as provided in Section 3.02. shall do
the following:
(a) Maintain, in good condition and repair, during the Term the
structural components of the Property, including without limitation the
foundation, roof, exterior walls of the Building which are a part of and/or
service the Premises.
(b) Maintain and keep clean all Common Areas, including the Parking
Area, provide adequate lighting and drainage for the Parking Area during normal
business hours, and maintain all landscaping in a neat and orderly condition.
(c) Perform all other maintenance and repair obligations at the
Building and Premises that are not specifically allocated to the Tenant in
Section 11.02 hereof, including without limitation maintaining in good order and
repair the plumbing, electrical, heating and air conditioning systems which are
part of or service the Premises.
(d) Remove snow and ice from the Parking Area and driveways serving
the Premises.
All repairs and maintenance to be performed by Landlord hereunder
shall be done in a timely fashion, as circumstances dictate.
Section 11.02. Tenant, at its sole expense shall do the following:
(a) Make all interior repairs to the Premises during the Term which
are necessary to keep the Premises in substantially as good condition as on the
Conunencement Date, reasonable wear and tear and damage by fire or other insured
casualty excepted.
(b) Keep the Premises neat, clean, orderly, in sanitary condition
and free of insects and pests, replace all lamps, bulbs, fluorescent tubes, and
ballasts.
(c) Use reasonable efforts to conserve energy, fuel and water.
(d) Maintain and replace any electrical or plumbing components
installed by Tenant and customized for their use.
(e) Provide janitorial services to the Premises consistent with
those provided in buildings similar in quality to the Building.
(f) Cause Tenant's own trash and refuse to be removed daily or as
often as is reasonably necessary from the Building so as to avoid unreasonable
accumulations of the same.
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(g) Operate the air conditioning, heating and ventilating equipment
throughout the year, as the weather requires, so as to keep the Premises
comfortably cool in the warm season, comfortably warm in the cold season, and
adequately ventilated at all times.
(h) Keep all glass in doors and windows within and adjacent to the
Premises clean, provide plate glass coverage for all risks and replace promptly
with glass of like kind and quality,any plate glass or window glass which may
become cracked or broken.
(i) Not cause or permit objectionable odors, or noises to emanate or
be dispelled from the Premises.
0) Not permit the parking of delivery vehicles so as to interfere
with the use of any driveway, walk, parking area, mall or other Common Area.
(k) Comply with all laws and ordinances and all valid rules and
regulations of governmental authorities, now or hereafter enacted, promulgated
or adopted, with respect to the use or occupancy of the Premises.
(1) Refrain from placing in the sewerage system any chemical, waste
or substance which may require special treatment or may cause damage or injury
to the sewerage system and to pay the cost of any repair or damages in the
sewerage system necessitated by any violation of this undertaking; and
(m) Properly remove and dispose of all medical waste.
Article 12 - Alterations
Section 12.01. Tenant shall make no alterations, installations,
additions or improvement ("additions") in or to the Premises in excess of
$10,000 without the prior written consent of Landlord, which consent will not be
unreasonably withheld. All such permanent additions shall be deemed to be part
of the Building and to belong to Landlord at the end of the Term.
Article 13- Trade Fixtures
Section 13.01. All equipment, business and office machines,
furniture and other items of personal property (except additions including
without limitation walls, floors, ceilings, wiring, plumbing, sewerage, and
water pipes and lines) owned or installed by Tenant in the Premises at its
expense shall remain the property of Tenant, and may be removed by Tenant at any
time provided that Tenant shall at its expense, repair any damage, holes or
openings caused or occasioned by such removal and provided Tenant shall not at
such time be in default under any covenant or agreement contained herein. If
Tenant is in default, Landlord shall have a lien on said trade fixtures,
appliances and equipment, and a continuing security interest on all said items
and the proceeds thereof, a security against loss or damage resulting from any
such default by tenant, and said trade fixtures, appliances and apparatus shall
not be removable by Tenant until such default is cured. Tenant shall at
Landlord's request execute and deliver to Landlord a financing statement under
the Uniform Commercial Code, which shall be subordinate only to Tenant's
Purchase Money security interest on said trade fixtures.
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Article 14 - Mechanic's Liens
Section 14.01 Tenant shall keep the Property, the Building and the
Premises free from and promptly remove any mechanic's liens arising due to
Tenant's acts or omissions after written notice from Landlord. Tenant shall have
no obligation under this section to keep the Property, the Building, and the
Premises free from or to remove any mechanic's liens arising due to other
tenant's or Landlord's acts or omissions.
Article 15 - Damage and Destruction
Section 15.01. If the Premises are damaged by fire, earthquake, act of God or
the elements, Landlord shall forthwith repair the same, subject to the
provisions of this Section hereinafter set forth and provided such repairs can
be made within four (4) months under applicable state, federal and city and
county laws and regulations. This Lease shall remain in full force and effect,
except that if there shall be damage to the Premises, and such damage is not the
result of the negligence or willful misconduct of Tenant or Tenant's agents,
employees or invitees, a proportionate reduction in Rent shall be allowed Tenant
for such part of the Premises as shall be rendered unusable by Tenant in the
conduct of its business during the time such part is so unusable. If such
repairs cannot be made within four (4) months, Tenant may, upon written notice
to the Landlord, within thirty (30) days after the date of such fire or other
casualty, terminate this Lease as of the date of such fire or other casualty.
The Landlord shall be required to notify the Tenant within fifteen (15) days of
such casualty of whether the repairs can be completed within said four (4) month
period.
Notwithstanding the foregoing, Tenant may elect to terminate this
Lease by written notice to Landlord within thirty (30) days of such fire or
other casualty if, as a result thereof, at least twenty-five percent (25%) of
the floor space in the Premises has been damaged and Tenant reasonably
determines that it cannot carry on its business in the Premises as intended
thereby; provided, however, that Tenant may not terminate this Lease in such
event if Landlord provides reasonable written assurance to Tenant within fifteen
(15) days of such fire or other casualty that it can restore the Premises to
substantially the same condition they were in prior to the fire or other
casualty and the Premises are in fact so restored no later than (i) four (4)
months from the date of the fire or other casualty and (ii) six (6) months prior
to the expiration of the current Lease term. In the event that Tenant terminates
this Lease under this section, Tenant shall be entitled to the return of any
Rent (including Additional Rent) paid by Tenant with respect to the period of
the Lease term following the fire or other casualty.
Section 15.02. Landlord shall not be required to repair any injury
or damage by fire, earthquake, act of God or the elements, or to make any
repairs or replacements, of any Property, fixtures or equipment of Tenant or of
any improvements installed in the Premises by Tenant, except for the portion of
such improvements the cost of which was bome by Landlord; and Tenant shall, at
Tenant's sole cost and expense, repair and restore its portion of such
improvements.
Section 15.03. In the event the Premises or the Building is totally
destroyed or
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rendered wholly unusable for Tenant's Permitted Use, this Lease shall terminate
and Tenant and Tenant shall only be liable for Rent up to the date of such total
destruction.
Article 16 - Condemnation
Section 16.01. If the Premises and/or the Building, or any portion
thereof, are taken or condemned under the power of eminent domain, or by
purchase in lieu of such taking or condemnation, and as a result thereof the use
and enjoyment of the Premises by Tenant are materially impaired, Tenant may, at
its sole option, but without prejudice to any rights and claims which it may
otherwise have on account of such taking, condemnation or sale, terminate this
Lease upon written notice to Landlord. If Tenant does not elect to terminate
this Lease, the Rent reserved for the remainder of the Term shall be reduced in
proportion to the portion of the Premises taken, condemned or sold, having due
regard to the nature and extent of the injury caused thereby to the Premises and
to Tenant's Permitted Use thereof, and such reduction in Rent shall be without
prejudice to any rights and claims which Tenant may otherwise have on account of
such taking or condemnation or sale. All compensation award for such taking of
the fee and the Leasehold shall belong to the Landlord. All compensation award
for moving expenses, shall belong to Tenant.
Article 17 - Environmental Provisions
Section 17.01 Landlord and Tenant represent, warrant and covenant
that to the best of each party's knowledge each has obtained, is in compliance
with, and will continue to comply with all permits, licenses and other
authorizations which are required under all environmental laws and regulations
applicable to the Property.
Section 17.02. Landlord and Tenant shall comply with the
requirements of all federal, state, and local environmental laws relating to the
Property, shall immediately notify the Landlord or Tenant, as the case may be in
the event of any spill, pollution or contamination affecting the Property from
oil, friable asbestos, hazardous waste, hazardous material, or other waste or
material regulated or limited by applicable federal, state, or local
environmental law or regulation ("Hazardous Material"); and shall immediately
forward to the Landlord or Tenant as the case may be any notices relating to
such matters received from any governmental agency.
Section 17.03. Landlord shall immediately contain and remove at its
sole cost and expense any Hazardous Material found on the Premises of which it
has knowledge, if the presence of such Hazardous Material is not caused by
Tenant, its agents, or employees; such work must be done in compliance with
applicable laws. Tenant shall notify Landlord of any material on the Premises
which it knows or reasonably suspects to be a Hazardous Material.
Section 17.04. Tenant shall immediately contain and remove at its
sole cost and expense any Hazardous Material found on the Premises if caused by
Tenant, its agents, or employees; such work must be done in compliance with
applicable laws.
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Section 17.05. Landlord will indemnify, defend, and hold the Tenant
harmless from and against any claim, cost, damage (including without limitation
consequential damages), expense (including without limitation reasonable
attorney's fees and expenses), loss, liability, or judgment now or hereafter
arising as a result of any claim for environmental cleanup costs, any resulting
damage to the environment and any other environmental claims against the
Landlord, the Tenant, or the Property relating to any act or failure to act by
Landlord or anyone claiming by, through or under Landlord provided such damage
was not caused by the Tenant, its agents, employees, or invitees. The provisions
of this Section 17.05, shall continue in effect and shall survive (among other
events) any termination or expiration of this Lease.
Section 17.06. Tenant will indemnify, defend, and hold the Landlord
harmless from and against any claim, cost, damage (including without limitation
consequential damages), expense (including without limitation reasonable
attorney' fees and expenses), loss, liability, or judgment now or hereafter
arising as a result of any claim for environmental cleanup costs, any resulting
damage to the environment and any other environmental claims against the Tenant,
the Landlord, or the Property relating to any act or failure to act by Tenant
provided such damage was not caused by the Landlord, its agents, employees, or
invitees. The provisions of this Section 17.06. shall continue in effect and
shall survive (among other events) any termination or expiration of this Lease.
Article 18 - Security Deposit
Section 1801. Tenant has deposited with Landlord the sum of
$7,247.25 as security for the full and faithful performance and observance by
Tenant of all the covenants, terms and conditions herein contained to be
performed and observed by Tenant, and Landlord may use, apply or retain the
whole or any part of said security to the extent required for the payment of any
Rent or any sum as to which Tenant is in default in respect to any of the
covenants, terms or conditions of this Lease. Said sum (to the extent permitted
by law, without interest), or any balance thereof, shall be returned to Tenant
after the time fixed as the expiration of the Lease provided that Tenant shall
have fully performed all of said covenants, terms and conditions. It is agreed
that said security is not an advance payment of, or on account of the Rent
herein reserved, or any part of settlement thereof, or a measure of Landlord's
damages, and in no event shall Tenant be entitled to a return or particular
application of said sum or any part thereof, until the end of the Term hereby
granted.
Article 19- Signs and Advertising
Section 19.01. Tenant shall not place any sign, decoration,
lettering or advertising matter on or around the Premises, Building or Land
without the advance written consent of Landlord, which consent shall not be
unreasonably withheld. Any and all signs shall be installed at Tenant's expense
and in strict conformance with Landlord's specifications. Tenant further agrees
to maintain all such signs and advertising matter as may be approved in good
order and repair at all times. Landlord agrees to maintain a uniformity of all
signage for the Building.
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Article 20- Entry by Landlord
Section 20.01. Landlord and its agents shall have the right to enter
into and upon the Premises at reasonable times for the purpose of examining and
exhibiting the same, for making any necessary repairs or alterations thereto,
for the purpose of supplying any service, or building maintenance to be provided
by Landlord hereunder; provided, however, that Landlord shall advise Tenant a
reasonable time in advance thereof, and provided further, that the operations of
Tenant shall not be interfered with unreasonably thereby. Landlord may enter
into and upon the Premies at any time without prior notice to Tenant if such
entry is of an emergency nature.
Article 21 - Assignment and Subletting
Section 21.01. Tenant will not assign, sublet, pledge, mortgage, or
otherwise transfer this Lease or the whole or any part of the Premises without
in each instance having first received the express written consent of Landlord,
which consent shall not be unreasonably withheld.
Article 22 - Subordination
Section 22.01. Tenant agrees to subordinate this Lease to any
mortgage or other instrument of security placed upon the Premises by Landlord if
the holder of such mortgage or other instrument (the "Landlord's Mortgagee")
requires such subordination; provided, however that the Landlord's Mortgagee
must enter into an agreement with Tenant and the successors and assigns thereof
in which the Landlord's Mortgagee agrees not to disturb the possession and other
rights of Tenant under this Lease so long as Tenant continues to perform its
obligations hereunder, and, in the event of acquisition of title by the
Landlord's Mortgagee through foreclosure proceedings or otherwise, to accept
Tenant as tenant of the Premises under the terms and conditions of this Lease
and to perform the Landlord's obligations hereunder arising after the
acquisition of such title.
Section 22.02. At no expense to the Landlord, and from time to time,
Tenant agrees that within thirty (30) days after a written request therefore and
upon such form as Landlord provides (hereinafter refer-red to as "Tenant's
Estoppel Certificate"), Tenant will certify to Landlord or any person designated
by Landlord ("Landlord's Designee") that: (a) this Lease is in full force and
effect; (b) there are no existing uncured defaults hereunder; (c) this Lease is
unmodified; (d) the date to which Rent and Additional Rent (if any) have been
paid; (e) the amount held by Landlord as a security deposit (if any); and (f)
any deviations from any of the preceding declarations. Landlord and Landlord's
Designee shall be absolutely entitled to rely upon the declarations contained in
Tenant's Estoppel Certificate, and Tenant shall be forever estopped from
disputing the truthfulness of any declaration therein contained as of the date
to which Tenant's Estoppel Certificate speaks.
Section 22.03. At no cost or expense to the Tenant, and from time to
time, Landlord agrees that within thirty (30) days after a written request
therefore and upon such form as Tenant provides (hereinafter referred to as
"Landlord's Estoppel Certificate"), Landlord will certify to Tenant or any
person designated by Tenant (Tenant's Designee"), that: (a) this Lease is in
full force
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and effect; (b) there are no existing uncured defaults hereunder; (c) this Lease
is unmodified; (d) the date to which Rent and Additional Rent (if any) have been
paid; (e) the amount held by Landlord as security deposit (if any); and (f) any
deviations from any of the preceding declarations. Tenant and Tenant's Designee
shall be absolutely entitled to rely upon the declarations contained in Landlord
Estoppel Certificate, and Landlord shall be forever estopped from disputing the
truthfulness of any declarations therein contained as of the date to which
Landlord's Estoppel Certificate speaks.
Article 23 - Default
Section 23.01. If any of the following shall occur, Tenant shall be
deemed in default of this Lease: (a) if Tenant shall fail to pay any Rent or
other sum when and as the same becomes due and payable and such failure shall
continue for more than ten (10) days after written notice thereof from the
Landlord; (b) if Tenant shall fail to perform any of the other duties required
to be performed by Tenant under this Lease and such failure shall continue for
more than thirty (30) days after receipt of written notice thereof from
Landlord; provided, however, that if such cannot reasonably be performed within
such thirty (30) day period, Tenant shall have such additional time as is
reasonably necessary to perform such duty; (c) if Tenant shall make a general
assignment for the benefit of creditors, admit in writing its inability to pay
its debts as they become due, file a petition in bankruptcy, have an order of
relief entered against it, or file or have filed against Tenant a petition
seeking any reorganization, receivership, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation.
Section 23.02. The Rent is due the 1st of the month. If the Rent is
not paid on the 1st of the month and continues unpaid for a period of ten (10)
business days, it will be a material breach of the Lease and the Tenant will be
subject to legal proceedings. The Landlord may give notice of this breach to the
Tenant by regular mail and if the Rent is not paid within Five (5) days of such
notice, the Landlord may terminate the Lease at its option and the Tenant is
subject to eviction, damages and cost of eviction, including reasonable
attorneys' fees. For every day after such notice of breach the Rent is unpaid, a
$25.00 per day late rental payment accruing as of the first of the month will be
due and payable and considered Additional Rent. It is further agreed, that
acceptance by the Landlord of any part of any arrearage shall not be deemed a
waiver of this provision. If Tenant shall violate either (a) the covenant to pay
Rent, Additional Rent or any other charges or sums required to be paid hereunder
and shall fail to comply with said covenant within 10 days (or such shorter
period as expressly provided herein) after being sent written notice of such
violation by Landlord, or (b) any other covenant other than that of payment of
Rent made by it in this Lease and shall fail to comply, or commence compliance,
within 10 days after being sent written notice of such violation by Landlord,
and diligently complete the same, then Landlord may, at its option, terminate
this Lease by serving on Tenant a notice of termination, setting forth in said
notice of termination, a termination date which shall be no less than 10
business days after mailing of said notice. The Tenant shall be subject to
eviction, damages and cost of eviction including reasonable attorneys' fees.
Tenant waives any right of redemption of the Premises after eviction.
Section 23.03. The waiver by either party of any default shall not
be deemed to be
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a waiver of any subsequent default under the same, or under any other term,
covenant or condition of the Lease. The subsequent acceptance of any Rent by
Landlord shall not be deemed to be a waiver of any preceding default by Tenant
under any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding default at the time of acceptance of such Rent.
Article 24 - Return of Premises: Holdover
Section 24.01. At the expiration of or other termination of the
Term, Tenant will remove from the Premises its property and that of all claiming
under it and will peaceably yield up to Landlord the Premises in as good
condition in all respects as the same were at the commencement of this Lease,
except for ordinary wear and tear, damage by the elements, by any exercise of
the right of eminent domain or by any public or other authority, or damage not
caused by Tenant and with respect to which Tenant is not required to maintain
insurance hereunder.
Section 24.02. If Tenant shall hold possession of the Premises
beyond the Term without Landlord's written consent Tenant shall pay to Landlord
double the Rent plus the Additional Rent than applicable for each month during
which Tenant shall retain such possession, and also shall pay all damages
sustained by Landlord on account thereof The provisions of this paragraph shall
not operate as a bar or as a waiver by Landlord of any right of re-entry or any
remedy available to Landlord under common law.
Article 25 - Notices
Section 25.01. All notices which are required to be given by either
party hereunder shall be in writing, sent by certified or registered mail,
postage prepaid, return receipt requested, and addressed to the parties at the
following addresses:
Landlord: Mutual Properties Stonedale L.P.
Xxx Xxxxx X Xxxxxx Xxxxxxx
Xxxx Xxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx
Tenant: Pro-Xxxx Holdings, Inc.
00 Xxxxx Xxxx
Xxxxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxx, CFO
or to such other addresses and to such other persons as the parties may from
time to time designate in writing. The time of giving of any such notice shall
be deemed to be three (3) days after such notice is mailed.
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Article 26 - Broker's Commission
Section 26.01. Each party hereto represents that it has not dealt
with any other real estate broker or agent in connection with the negotiation of
this Lease or the leasing of the Premises except for Xxxxxxx X. Xxxxxx, dba
Mutual Properties, Inc. Each party shall hold the other harmless from all
damages resulting from any claims that may be asserted against the other party
by any broker, finder, or other person or entity with whom the other party has
dealt.
Article 27 - Rules and Repulations
Section 27.01. Tenant shall abide by the reasonable rules and
regulations from time to time established by Landlord with respect to the
Building and the Property. In the event that there shall be conflict between
such rules and regulations and the provisions of this Lease, the provisions of
this Lease shall control.
Article 28 - Recording of Lease
Section 28.01. The parties hereto agree that this Lease shall not be
recorded, but the Landlord and Tenant hereby agree upon request of either party
to enter into a notice of lease in recordable form, setting forth the names of
the parties, describing the Premises, specifying the Term and such other
provisions, except rental provisions, with respect to the Lease as will put on
notice any third party of the existence of the Lease.
Article 29 - Miscellaneous
Section 29.01 The words "Landlord": and "Tenant", as used herein,
shall include the plural as well as the singular. Words used in the masculine
gender herein shall include feminine and neuter forms thereof,
Section 29.02. The covenants and conditions contained herein shall
be binding upon and inure to the benefit of the heirs, executors,
administrators, and subject to Section 21.01, successors and assigns of the
parties hereto.
Section 29.03. The article headings in this Lease are for
convenience only, and shall not limit or otherwise affect the meaning of any
provisions hereof.
Section 29.04. Tenant shall pay interest at the rate of Eighteen
(18%) Percent per annum on any installment of Rent or Additional Rent from the
due date when paid more than Ten (10) days after the due date thereof and such
interest shall be paid on demand. Section 29,05. Time is of the essence in each
and every provision of this Lease. Section 29.06 The invalidity or
unenforceability of any provision of this Lease shall
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not affect any other provision hereof.
Section 29.07. Should either party hereto commence an action against
the other to enforce any obligation under this Lease, the prevailing party shall
be entitled to recover reasonable attorney's fees and expense ftom the other.
Section 29.08 This Lease shall be construed and enforced in
accordance with the laws of the State of Rhode Island without respect to its
conflict of laws provisions.
Section 29.09. This Lease constitutes the entire agreement between
the parties hereto and may not be modified in any manner other than by written
agreement, executed by all of the parties hereto or their successors in
interest. No prior understanding or representation of any kind made before the
execution of this Lease shall be binding upon either party unless incorporated
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as
of the date first set forth above.
Landlord: Mutual Properties Stonedale L.P.
A Rhode Island Limited Partnership
By: STO Real Estate Inc. General Partner
By: /s/ Xxxxxxx X. Xxxxxx, Pres.
------------------------------------
Xxxxxxx X. Xxxxxx President
Tenant: Pro-Xxxx Holdings, Inc.
By: /s/ E. Xxxxx Xxxxxxx
------------------------------------
E. Xxxxx Xxxxxxx
Its: President an CEO
(Landlord)
STATE OF RHODE ISLAND
COUNTY OF KENT
In Warwick, on the 12th day of December 1997, before me personally appeared
Xxxxxxx X. Xxxxxx, the President of STO Real Estate Inc. to me known and known
by me to be the person executing the foregoing instrument, and he acknowledged
said instrument by him executed to be his free act and deed in said capacity and
the free act and deed of the General Partnership.
/s/ Xxxxxx Xxxxxx
-----------------------------------
Notary Public
My Commission Expires: 6/26/2001
------------
-00-
(Xxxxxx)
XXXXX XX XXXXX XXXXXX
XXXXXX OF _______________
In ____________________ on the ______ day of December, 1997 before me personally
appeared E. Xxxxx Xxxxxxx, the President and CEO of Pro-Xxxx Holdings, Inc. to
me known and known by me to be the person executing the foregoing instrument,
and he acknowledged said instrument by him executed to be his free act and deed
in said capacity and the free act and deed of the corporation.
------------------------------------------
Notary Public
My Commission Expires
--------------------
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EXHIBIT "B"
Landlord's Work
Pro-Xxxx Holdings Corporation
Landlord shall perform the following at Landlord's sole cost and expense:
1. Remove and/or construct interior walls to create floor plan layout as
shown on plan attached.
2. Install new floor coverings if and as required to provide uniform
finished floors.
3. Provide finished ceilings, reconstruct lighting, and fire safety
systems to accommodate new floor plan layout.
4. Paint walls as required to provide clean wall surfaces.
EXHIBIT "A"
[Floor diagram of Main Level]
EXHIBIT "B"
[Detailed floor diagram of main level]
