LEASE
This instrument is an indenture of lease by and between
Optometrics Holdings LLC, a Massachusetts Limited Liability
Company ("Landlord") and Dynasil Corporation of America, a New
Jersey corporation and Optometrics Corporation, a Delaware
corporation ("Tenant").
The parties to this instrument hereby agree with each other
as follows:
ARTICLE I
SUMMARY OF BASIC LEASE PROVISIONS
1.1 INTRODUCTION
As further supplemented in the balance of this instrument,
the following sets forth the basic terms of this Lease, and,
where appropriate, constitutes definitions of certain terms used
in this Lease.
1.2 BASIC DATA
Date: March 8, 2005
Landlord: Optometrics Holdings LLC
Payment Address: 0 Xxxxx Xxx
Xxxxx Xxxxx Xxxxxxxxxx Xxxx
Ayer, Massachusetts 01432
Tenant: Dynasil Corporation of America
Mailing Address of
Tenant: 000 Xxxxxx Xxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Premises: 0 Xxxxx Xxx
Xxxxx Xxxxx Xxxxxxxxxx Xxxx
Xxxx, Xxxxxxxxxxxxx 00000
Lease Term: Eight (8) years (plus the
partial calendar month immediately
following the Term Commencement Date if
the Term Commencement Date does not fall
on the first (1st) day of a month). The
Lease may be extended pursuant to
Article 3.2 herein.
Term Commencement Date: March 8, 2005
Base Rent: Shall be One Hundred
Fourteen Thousand (U.S. $114,000.00) per
annum, payable in monthly installments
of Nine Thousand, Five Hundred (U.S.
$9,500.00) Dollars.
Rent Commencement Date: Upon the Term Commencement Date.
Permitted Use: For general business
office and manufacturing use and all
uses presently being made of the
Premises or as allowed by laws
applicable to the Premises.
Additional Rent: (i) Operating Expense:
All Operating Costs for the Premises.
(ii) Real Estate Taxes: All Real Estate
Taxes for the Premises.
Tenant's Insurance
Requirements: Public Liability: As presently insured.
Property Damage: Insured similar to current
insurance levels in all material
respects.
ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT
RIGHTS
2.1 LOCATION OF PREMISES
The Landlord hereby leases to Tenant, and Tenant hereby
accepts from Landlord, the land with the buildings thereon
commonly known and numbered as 0 Xxxxx Xxx, Xxxxx Xxxxx
Xxxxxxxxxx Xxxx, Xxxx, Xxxxxxxxxxxxx 00000 (the "Premises").
2.2 APPURTENANT RIGHTS AND RESERVATIONS
Tenant shall have, as appurtenant to the Premises, rights to
use the facilities including the buildings or the land
constituting the Premises, including parking areas, walkways,
driveways, lobbies, hallways, ramps, stairways and elevators,
necessary for access to said Premises. Such rights shall be
subject to reasonable rules and regulations from time to time
established by Landlord by suitable notice, and to the right of
Landlord to designate and change from time to time the areas and
facilities so to be used, provided such changes do not
unreasonably interfere with the use of the Premises for the
Permitted Use. The Landlord reserves the right to install, use,
maintain, repair and replace in the Premises (but in such manner
as not unreasonably to interfere with Tenant's use of the
Premises) utility lines, shafts, pipes, and the like, in, over
and upon the Premises in accordance with the terms hereof. Such
utility lines, shafts, pipes and the like shall not be deemed
part of the Premises under this Lease. The Landlord also
reserves the right to alter or relocate any common facility and
to change the lines of the Lot if so required by applicable
government authority or to preserve or protect the Premises.
ARTICLE III
TERM OF LEASE
3.1 TERM OF LEASE
The term of this Lease shall be the period specified in
Section 1.2 hereof as the "Lease Term" commencing upon the Term
Commencement Date specified in Section 1.2.
3.2 OPTION TO EXTEND
Provided that (i) Tenant has not assigned the Lease (except
as otherwise permitted herein), and (ii) the Premises are not
then subject to a sublease (whether the term of the sublease has
commenced or is to be commenced thereafter) and Tenant will not
be exercising the rights hereinafter set forth with the intent of
assigning the Lease (except as otherwise permitted herein) or
subleasing any portion of the Premises, then Tenant has the right
to extend the Lease Term for two (2) five (5) year periods
("Extension Period") at the then current market rent rate, and
otherwise on the same terms and conditions as this Lease, except
that there shall be no further rights to extend the Lease Term.
Tenant shall exercise the option for an Extension Period by
written notice to Landlord not more than fifteen (15) months nor
less than nine (9) months before the expiration of the Lease Term
or, for purposes of the second Extension Period, not more than
fifteen (15) months nor less than nine (9) months before the
expiration of the first Extension Period. Tenant's exercise of
this option shall be effective only if, at the time of notice and
upon the effective date of the Extension Period, there is no
Event of Default.
Thereupon, this Lease shall be deemed extended for an additional
period of five (5) years, upon all of the same terms and
conditions of this Lease and any Amendments made hereto with the
exception of the annual rent stipulated hereinabove.
Except in the event that shares of Tenant have been listed on a
nationally-recognized stock exchange, or quoted on NASDAQ for a
period of two (2) years prior to Tenant's exercise of its option
to renew the term of this Lease, Tenant's exercise of this
renewal option shall be null and void unless Landlord receives
(i) simultaneously with the notice of exercise and (ii) thirty
(30) days before the commencement of the Extension Period,
Tenant's certified financial statements for the immediately
preceding three (3) year period. In the event Tenant's auditors
provide a "going concern" qualification (but not a "subject to"
opinion) as to Tenant's ability to continue as a going concern,
Landlord may nullify Tenant's exercise of this renewal option.
ARTICLE IV
RENT
4.1 RENT PAYMENTS
The Base Rent (at the rates specified in Section 1.2 hereof)
and the additional rent or other charges payable pursuant to this
Lease (collectively the "Rent") shall be payable by Tenant to
Landlord at the Payment Address or such other place as Landlord
may from time to time designate by written notice to Tenant
without any demand whatsoever except as otherwise specifically
provided in this Lease and without any counterclaim, offset or
deduction whatsoever, except as further specified herein or as
specified in Paragraph 8.4 of the ASSET PURCHASE AND SALE
AGREEMENT entered into between the parties on February 17, 2005.
(a) Commencing on the Rent Commencement Date, Base Rent and
Taxes and Operating Expenses, if applicable, shall be payable in
advance on the first day of each and every calendar month during
the term of this Lease. If the Rent Commencement Date falls on a
day other than the first day of a calendar month, the first
payment which Tenant shall make shall be made on the Rent
Commencement Date and shall be equal to a proportionate part of
such monthly Rent for the partial month from the Rent
Commencement Date to the first day of the succeeding calendar
month.
(b) Base Rent and Taxes and Operating Expenses, if
applicable, for any partial month shall be paid by Tenant to
Landlord at such rate on a pro rata basis. Any other charges
payable by Tenant on a monthly basis, as hereinafter provided,
shall likewise be prorated.
(c) Rent not paid when due shall bear interest at the
lesser of: (i) a rate of one and one-half percent (1.5%) per
month; or (ii) the maximum legally permissible rate, from the due
date until paid.
4.2 REAL ESTATE TAX
(a) The term "Taxes" shall mean all taxes and assessments
(including without limitation, assessments for public
improvements or benefits and water and sewer use charges), and
other charges or fees in the nature of taxes for municipal
services which at any time during or in respect of the Lease Term
may be assessed, levied, confirmed or imposed by any governmental
entity or municipal authority on or in respect of, or be a lien
upon, the Premises, or any part thereof, or any rent therefrom or
any estate, right, or interest therein, or any occupancy, use, or
possession of such property or any part thereof, and ad valorem
taxes for any personal property used exclusively in connection
with the Premises. Without limiting the foregoing, Taxes shall
also include any payments made by Landlord in lieu of Taxes.
Should the Commonwealth of Massachusetts, or any political
subdivision thereof, or any other governmental authority having
jurisdiction over the Premises, (1) impose a tax, assessment,
charge or fee, which Landlord shall be required to pay, by way of
substitution for or as a supplement to such Taxes, or (2) impose
an income or franchise tax or a tax on rents in substitution for
or as a supplement to a tax levied against the Premises or any
part thereof and/or the personal property used exclusively in
connection with the Premises or any part thereof, all such taxes,
assessments, fees or charges ("Substitute Taxes") shall be deemed
to constitute Taxes hereunder. Taxes shall also include, in the
year paid, all reasonable fees and costs incurred by Landlord
with the knowledge and consent of Tenant, not to be unreasonably
withheld, in seeking to obtain a reduction of, or a limit on the
increase in, any Taxes, regardless of whether any reduction or
limitation is obtained, provided that Tenant receives any savings
that may be awarded as a result of any such contest. Except as
hereinabove provided with regard to Substitute Taxes, Taxes shall
not include any inheritance, estate, succession, transfer, gift,
franchise, net income or capital stock tax.
(b) The Tenant shall pay directly to the taxing authority,
or directly to Landlord if so requested by Landlord, all Taxes
assessed against the Premises during any tax year (i.e., July 1
through June 30, as the same may change from time to time) during
the Lease Term. In the event Landlord directs Tenant to pay all
Taxes directly to Landlord, and Tenant makes such payment(s) in a
timely manner, Landlord shall indemnify and hold Tenant harmless
from any failure to pay such Taxes to any government entity or
municipal authority, including any fines, costs or penalties
assessed with regard to such failure.
(c) If any Taxes, with respect to which Tenant shall have
paid, shall be adjusted to take into account any abatement or
refund, Tenant shall be entitled to a credit against rental
obligations hereunder, in the amount of such abatement or refund
less Landlord's reasonable costs or expenses, including without
limitation reasonable appraiser's and attorneys' fees, of
securing such abatement or refund or, if the Lease Term has
expired and Tenant has no outstanding monetary obligations to
Landlord, Landlord shall promptly pay such amount to Tenant. The
Tenant shall not apply for any real estate tax abatement without
the prior written consent of Landlord.
(d) Tenant shall pay or cause to be paid, prior to
delinquency, any and all taxes and assessments levied upon all
trade fixtures, inventories and other personal property placed in
and upon the Premises by Tenant during the Lease Term.
4.3 OPERATING COSTS
Tenant shall pay directly to the provider of goods or
services, or reimburse to Landlord as Additional Rent at the
election of Landlord, all Operating Costs incurred with respect
to the Premises.
As used in this Lease, the term "Operating Costs" shall mean
all costs and expenses incurred in connection with the operation,
insuring (other than title insurance), repair, equipping,
maintenance (except if caused by fire or other casualty),
management and cleaning (collectively, "the Operation") of the
Premises, the heating, ventilating, electrical, plumbing, and
other systems including, without limitation, the following:
(1) Costs for electricity, steam and other utilities
required in the Operation of the Premises;
(2) Water and sewer use charges;
(3) Any capital expenditure made by Landlord during the
term of this Lease, the total cost of which is not properly
includable in Operating Costs, shall nevertheless be included in
such Operating Costs, and Operating Costs for each succeeding
operating year shall include the annual charge-off of such
capital expenditure. Such capital expenditures shall be made by
mutual consent or at the reasonable discretion of the Landlord in
order to maintain the safety and security of the Premises or to
maintain the Premises in a manner consistent with "like"
properties within the locality in which the Premises are located.
Annual charge-off shall be determined by dividing the original
capital expenditure plus an interest factor, reasonably
determined by Landlord, as being the interest rate then being
charged for long-term mortgages by institutional lenders on
"like" properties within the locality in which the Premises are
located, by the number of years of useful life of the capital
expenditure, and the useful life shall be determined reasonably
by Landlord in accordance with generally accepted accounting
principles and practices in effect at the time of making such
expenditure.
Anything in the foregoing to the contrary notwithstanding, except
to the extent, if any, specifically set forth herein, the term
"Operating Costs" shall not include any of the Landlord's
administrative or transactional costs or expenses relating to the
ownership, financing or refinancing, or leasing of the Premises,
including, without limitation, the Landlord's expenses for its
own administrative expenses, accounting, auditing or tax
preparation or return preparation expense, franchise or income
taxes, financing fees, expenses and costs, refinancing fees,
expenses and costs, loan or mortgage broker fees or costs, survey
or appraisal expense, environmental assessment or remediation
expense (unless such environmental or remedial expense is subject
to indemnification as provided in Paragraph 5.4 herein),
subdivision or zoning approval (unless requested by Tenant),
document preparation or legal expenses, leasing expenses and the
like.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE
Tenant agrees that the Premises shall be used and occupied
by Tenant only for the purposes specified as the Permitted Use
thereof in Section 1.2 of this Lease, and for no other purpose or
purposes.
5.2 COMPLIANCE WITH LAWS
Tenant agrees that no trade or occupation shall be conducted
in the Premises or use made thereof which will be unlawful,
improper, or contrary to any law, ordinance, by-law, code, rule,
regulation or order applicable in the municipality in which the
Premises are located. Tenant shall, at its own cost and expense,
(i) make all installations, repairs, alterations, additions, or
improvements to the Premises required by any law, ordinance, by-
law, code, rule, regulation or order of any governmental or quasi-
governmental authority; (ii) keep the Premises equipped with all
required safety equipment and appliances; and (iii) comply with
all laws, ordinances, codes, rules, regulations, and orders and
the requirements of Landlord's and Tenant's insurers applicable
to the Premises. In the event such installations, repairs or
alterations are considered capital expenditures in accordance
with GAAP, such expenditures will be made by Landlord and
reimbursed in accordance with subparagraph 4.3(9) above. Tenant
shall not place a load upon any floor in the Premises exceeding
the floor load per square foot of area which is allowed by law.
Tenant shall not permit any use of the Premises which will
make voidable or, unless Tenant pays the extra insurance premium
attributable thereto as provided below, increase the premiums for
any insurance on the Building or on the contents of said property
or which shall be contrary to any law or regulation or which
shall require any alteration or addition to the Building. Tenant
shall, within thirty (30) days after written demand therefor,
reimburse Landlord for the costs of all extra insurance premiums
caused by Tenant's use of the Premises. Any such amounts shall
be deemed to be additional rent hereunder
5.3 TENANT'S OPERATIONAL COVENANTS
(a) Affirmative Covenants
In regard to the use and occupancy of the Premises,
Tenant will at its expense: (1) keep the Premises reasonably
clean; (2) replace promptly any cracked or broken glass of the
Premises with glass of like kind and quality; (3) maintain the
Premises in a clean, orderly and sanitary condition and free of
insects, rodents, vermin and other pests; (4) keep any garbage,
trash, rubbish or other refuse in vermin-proof containers.
(b) Negative Covenants
In regard to the use and occupancy of the Premises and
common areas, Tenant will not: (5) place or maintain any trash,
refuse or other articles in any vestibule or entry of the
Premises, on the sidewalks or corridors adjacent thereto or
elsewhere on the exterior of the Premises so as to obstruct any
corridor, stairway, sidewalk or common area; (6) permit undue
accumulations of or burn garbage, trash, rubbish or other refuse
within or without the Premises; (7) cause or permit objectionable
odors to emanate or to be dispelled from the Premises; or (8)
commit, or suffer to be committed, any waste upon the Premises,
or use or permit the use of any portion of the Premises for any
unlawful purpose.
5.4 ENVIRONMENTAL COMPLIANCE.
(a) Tenant's Responsibility. Tenant shall not cause
or permit the escape, disposal or release of any biologically
active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in
any manner not sanctioned by law or in compliance with the best
practices prevailing in the industry for the storage and use of
such substances or materials, nor allow to be brought into the
Premises any such materials or substances except to use in the
ordinary course of Tenant's business. Tenant covenants and
agrees that the Premises will at all times during its use or
occupancy thereof be kept and maintained so as to comply with all
now existing or hereafter enacted or issued statutes, laws,
rules, ordinances, orders, permits and regulations of all state,
federal, local and other governmental and regulatory authorities,
agencies and bodies applicable to the Premises, pertaining to
environmental matters or regulating, prohibiting or otherwise
having to do with asbestos and all other toxic, radioactive, or
hazardous wastes or material including, but not limited to, the
federal Clean Air Act, the federal Water Pollution Control Act,
and the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as from time to time amended (all
hereafter collectively called "Laws"). Tenant shall execute
affidavits, representations and the like, from time to time, at
Landlord's reasonable request, concerning Tenant's best knowledge
and belief regarding the presence of hazardous substances or
materials on the Premises.
(b) Indemnification. As used in this Section 5.4(b),
the term, "Hazardous Material" shall mean any substance that is:
(a) defined under any environmental law as a hazardous substance,
hazardous waste, hazardous material, pollutant or contaminant,
(b) a petroleum hydrocarbon, including crude oil or any fraction
or mixture thereof, (c) hazardous, toxic, corrosive, flammable,
explosive, infectious, radioactive, carcinogenic or reproductive
toxicant, or (d) otherwise regulated pursuant to any
environmental law. Tenant shall indemnify, defend and hold
harmless Landlord and its members, shareholders, directors,
officers, agents, employees, parent corporation, subsidiaries and
affiliates from and against any and all damages, fines,
judgments, penalties, costs, liabilities, expenses or losses
(including, without limitation, any and all sums paid for
settlement of claims, attorney's fees, consultant, investigation
and expert fees) incurred with claims accruing or arising during
the Lease Term or thereafter from or in connection with the
presence or suspected presence of Hazardous Materials in, on or
beneath the Premises caused by Tenant. Without limiting the
foregoing, this indemnification shall include any and all costs
reasonably incurred due to any environmental investigation of the
Premises or any environmental cleanup, remediation, removal or
restoration mandated by a federal, state or local agency or
political subdivision. This indemnification shall specifically
include any and all costs due to Hazardous Material that flows,
diffuses, migrates or percolates into, onto or under the Premises
after the Commencement Date. Notwithstanding the foregoing, and
anything herein to the contrary notwithstanding, Tenant shall
have no obligation to indemnify Landlord for or with respect to
any Hazardous Materials that are or were present on or before the
Term Commencement Date, including without limitation those that
are referred to or described in the "Citizens Transaction Screen
Assessment" dated May 6, 2004 prepared by GeoInsight, Inc. or are
present as a result of Landlord's acts or omissions, as to any
and all of which Landlord shall indemnify Tenant to the same
extent as Tenant is obligated to indemnify Landlord hereunder.
The parties agree that this Section 5.4(b) shall survive the
expiration or earlier termination of this Lease for any reason
and shall not be construed to limit Tenant's or Landlord's rights
against any third party who may be responsible for the presence
of Hazardous Materials on the Premises.
In the event of a breach by either party of its
representations or covenants contained in Sections 5.4(a) or
5.4(b) which breach is not cured within thirty (30) days after
written notice of such breach from the other (or if such breach
cannot be cured within said 30 day period, such additional time
so long as the responsible party is diligently and continuously
pursuing such cure), then either party shall have the right to
terminate this Lease, without cost or liability therefor, upon
written notice to the other party.
(c) Tenant's Liability After Termination of Lease.
The covenants contained in this Paragraph 5.4 shall survive the
expiration or termination of this Lease, and shall continue for
so long as either party and its successors and assigns may be
subject to any expense, liability, charge, penalty, or obligation
from which either party has agreed to indemnify the other party
under this Paragraph 5.4.
5.5 INSTALLATIONS, ALTERATIONS, AND ADDITIONS
Tenant shall not make structural installations, alterations,
or additions to the Premises, but may make nonstructural
installations, alterations or additions provided that Landlord
consents thereto in advance and in writing. In any event, Tenant
shall not demolish the existing office space in the Premises,
without the prior written approval of Landlord, which approval
shall not unreasonably be withheld. In no event shall Landlord's
approval of any proposed installations, alterations, or additions
to the Premises, whether in connection with Tenant's initial
leasehold improvements or otherwise, constitute a representation
by Landlord that such work complies with the requirements of any
applicable law or regulation, including without limitation the
requirements of the ADA. Any installations, alterations, or
additions made by Tenant shall be at Tenant's sole cost and
expense and shall be done in a good and workmanlike manner using
materials of a quality at least equivalent to that of the
existing improvements; and prior to Tenant's use of the Premises,
after the performance of any such work, Tenant shall procure
certificates of occupancy and any other required certificates.
Tenant shall not suffer or permit any mechanics' or similar liens
to be placed upon the Premises for labor or materials furnished
to Tenant or claimed to have been furnished to Tenant in
connection with work of any character performed or claimed to
have been performed at the direction of Tenant, and shall cause
any such lien to be released of record forthwith without cost to
Landlord. Any installations, alterations or additions made by
Tenant to the Premises, including, without limitation, all
utility systems, fixtures, machinery, equipment, and appliances
installed in connection therewith, other than movable personal
property, shall become the property of Landlord at the
termination or expiration of this Lease, unless Landlord
requires, at the time of Landlord's approval of such work, Tenant
to remove any of the same, in which event Tenant shall, at its
own cost and expense, comply with such requirement and repair any
damage caused by such removal. As and to the extent reasonably
requested by Landlord at the termination or expiration of this
Lease, Tenant shall provide Landlord with all deeds, bills of
sale or similar documents to transfer to vest in Landlord at or
as of such time ownership of all such installations, alterations
or additions made by Tenant.
It is further agreed and understood that at the termination
of this Lease or any extensions thereof, Tenant shall have
restored the Premises to good repair, order and condition in all
respects, including but not limited to repair of all floor
surfaces damaged by the removal of partitions, machinery and
equipment, and shall restore all floor areas to a good condition
and repair, using materials to provide a consistent floor
surface, reasonably satisfactory to Landlord; and shall have
cleaned and removed accumulations of dirt and particles, oils,
grease, and discolorations from all surfaces resulting from
Tenant's processes and shall leave the Premises broom clean.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION
Except as specifically set forth in this Article VI, Tenant
shall not, directly or indirectly, assign, mortgage, pledge or
otherwise transfer, voluntarily or involuntarily, this Lease or
any interest herein or sublet (which term without limitation,
shall include granting of concessions, licenses, and the like) or
allow any other person or entity to occupy the whole or any part
of the Premises, without, in each instance, having first received
the express consent of Landlord. Any assignment of this Lease or
subletting of the whole or any part of the Premises by Tenant
without Landlord's express consent shall be invalid, void and of
no force or effect.
6.2 PERMITTED ASSIGNMENT
The foregoing notwithstanding, provided that Tenant is not
then in default under this Lease, Tenant may assign this Lease
upon written notice to Landlord, to a wholly-owned subsidiary or
affiliate provided (and it shall be a condition of the validity
of any such assignment) that such subsidiary or affiliate agrees
directly with Landlord to be bound by all of the obligations of
Tenant hereunder, including, without limitation, the obligation
to pay the Rent and other amounts provided for under this Lease,
the covenant to use the Premises only for the purposes
specifically permitted under this Lease and the covenant against
further assignment; but such assignment shall not relieve Tenant
herein named of any of its obligations hereunder, and Tenant
shall remain fully liable therefor.
6.3 PERMITTED SUBLETTING
The terms of Paragraph 6.1 above notwithstanding, and
provided that Tenant is not then in default under this Lease, if
at any time or from time to time during the Lease Term, Tenant
desires to sublease all (but not less than all) of the Premises,
Tenant shall notify Landlord in writing of the terms of the
proposed subleasing, the identity of the proposed sublessee, a
copy of the proposed sublease, and such other information as
Landlord may reasonably specify to evaluate Tenant's request.
Within thirty (30) days subsequent to Landlord's receipt of the
proposed sublease and such requested additional information,
Landlord shall approve or disapprove in writing the proposed
sublease and the proposed sublessee. Landlord's approval of the
proposed sublease and/or subleesee shall not be unreasonably
withheld, conditioned or delayed.
If, with the written approval of Landlord, the Premises are
subleased, Landlord may, after default by Tenant, collect Rent
from the subtenant, and apply the net amount collected to the
Base Rent and additional rental herein reserved, but no such
subleasing or collection shall be deemed: (i) a waiver of any of
Tenant's covenants contained in this Lease; (ii) the acceptance
by Landlord of the subtenant as Tenant; or (iii) the release of
Tenant from further performance by Tenant of its covenants under
this Lease. Landlord's approval of or consent to a sublease
transaction shall not operate to release Tenant from its
liability hereunder, and shall not affect Landlord's rights under
this Paragraph 6.3 as to any subsequent proposed sublease.
Tenant covenants and agrees to deliver to Landlord one (1) fully
executed counterpart of the instruments and documents (including
amendments thereto) evidencing any approved subleasing effected
pursuant to this Lease. Such delivery shall be made promptly
following the execution of any such instrument or document.
ARTICLE VII
REPAIRS AND MAINTENANCE
7.1 TENANT OBLIGATIONS
From and after the date that possession of the Premises is
delivered to Tenant and until the end of the Lease Term, Tenant
shall keep the Premises and every part thereof in good order,
condition, and repair, reasonable wear and tear and damage by
casualty, as a result of condemnation only excepted; and shall
return the Premises to Landlord at the expiration or earlier
termination of the Lease Term in such condition.
7.2 LANDLORD'S RIGHT OF ACCESS
The Landlord and its agents, contractors, and employees
shall have the right to enter the Premises at all reasonable
hours upon reasonable advance notice or any time in case of
emergency, for the purpose of inspecting or of making repairs or
alterations, to the Premises, and Landlord shall also have the
right to make access available at all reasonable hours to
prospective or existing mortgagees or purchasers of any part of
the Premises.
For a period commencing twelve (12) months prior to the
expiration of the Lease Term, Landlord may have reasonable access
to the Premises at all reasonable hours for the purpose of
exhibiting the same to prospective tenants.
ARTICLE VIII
UTILITIES
8.1 UTILITIES
Tenant shall pay directly to the utility, as they become
due, all bills for electricity, gas, water and sewer, and other
utilities (whether they are used for furnishing heat or for other
purposes) that are furnished to the Premises.
ARTICLE IX
INDEMNITY
9.1 INDEMNITY
(a) TENANT'S INDEMNITY
The Tenant shall indemnify and save harmless Landlord, the
members, directors, officers, agents, and employees of Landlord,
against and from all claims, expenses, or liabilities of whatever
nature (a) arising from the failure of Tenant to comply with any
rule, order, regulation, or lawful direction now or hereafter in
force of any public authority, in each case to the extent the
same are related, directly or indirectly, to the Premises, or
Tenant's use thereof; or (b) arising directly or indirectly from
any accident, injury, or damage, caused by Tenant, to any person
or property, on or about the Premises; or (c) arising directly or
indirectly from any accident, injury, or damage to any person or
property occurring outside the Premises, where such accident,
injury, or damage results, or is claimed to have resulted, from
any act, omission, or negligence on the part of Tenant, or
Tenant's contractors, licensees, agents, servants, employees, or
customers, or anyone claiming by or through Tenant: provided,
however, that in no event shall Tenant be obligated under this
clause (c) to indemnify Landlord, the members, directors,
officers, agents, employees of Landlord, to the extent such
claim, expense, or liability results from any omission, fault,
negligence, or other misconduct of Landlord or the officers,
agents, or employees of Landlord on or about the Premises.
Anything in the foregoing to the contrary notwithstanding, Tenant
shall have no obligation to indemnify Landlord against any
liability, cost or expense, arising from or relating to any pre-
existing condition or state of affairs that Landlord knew or
should have known to be a hazard or dangerous condition at the
commencement of the Lease Term; however, Tenant shall be
obligated to immediately notify Landlord of any such condition of
which it becomes aware during the Lease Term.
This indemnity and hold harmless agreement shall include,
without limitation, indemnity against all expenses, attorney's
fees and liabilities incurred in connection with any such claim
or proceeding brought thereon and the defense thereof; provided
that Landlord promptly notifies Tenant in writing of any claim
for which it seeks indemnification hereunder and provides Tenant
with sole control of any defense or settlement thereof, together
with reasonable assistance in the defense thereof.
9.2 TENANT'S RISK
The Tenant agrees to use and occupy the Premises at Tenant's
sole risk; and Landlord shall have no responsibility or liability
for any loss or damage, however caused, to furnishings, fixtures,
equipment, or other personal property of Tenant or of any persons
claiming by, through or under Tenant other than uninsured losses
resulting from Landlord's negligence, Landlord's breach of any
representation or warranty made hereunder by Landlord or
Landlord's failure to perform in all material respects each and
every one of Landlord's covenants made herein. "Uninsured
losses" shall not include deductible amounts under Tenant's
insurance. Without limiting the generality of the foregoing,
Landlord acknowledges and agrees that Tenant intends to occupy
and use the Premises for and in the manner contemplated by an
Asset Purchase Agreement dated even date herewith entered into by
and among Tenant, the principals of Landlord and Landlord's
current tenant.
9.3 INJURY CAUSED BY THIRD PARTIES
The Tenant agrees that Landlord shall not be responsible or
liable to Tenant, or to those claiming by, through, or under
Tenant, for any loss or damage resulting to Tenant or those
claiming by, through, or under Tenant, or its or their property,
that may be occasioned by or through the acts or omissions of
persons occupying any part of the Premises, or for any loss or
damage from the breaking, bursting, crossing, stopping, or
leaking of electric cables and wires, and water, gas, sewer, or
steam pipes, or like matters, except to the extent caused by the
omission, fault, negligence, or other misconduct of Landlord or
its officers, agents, or employees, or the breach of Landlord's
obligations under the Lease.
ARTICLE X
INSURANCE
10.1 TENANT'S INSURANCE OBLIGATIONS
Tenant shall carry public liability insurance in a company
or companies licensed to do business in the state in which the
Premises are located. Said insurance shall be in the amounts
listed in the Basic Data and shall name Landlord as an additional
insured, as its interests may appear. Tenant shall carry
property damage insurance for all of its equipment and for all
leasehold improvements which are made by Landlord or Tenant in
and to the Premises, which policies shall name Landlord as an
additional insured and be for the full replacement value of any
such equipment or leasehold improvements similar to current
insurance. Each policy shall contain an endorsement that will
prohibit its cancellation or amendment prior to the expiration of
thirty (30) days after notice of such proposed cancellation or
amendment to Landlord. Tenant shall carry insurance in the
initial amounts listed in the Basic Data and shall provide
Landlord with certificates of such Tenant Insurance Requirements
on or prior to the Commencement Date.
10.2 WAIVER OF SUBROGATION
Tenant and Landlord each hereby release the other to the
extent of their respective insurance coverage, from any and all
liability for any loss or damage caused by fire or any of the
extended coverage casualties or any other casualty insured
against, even if such fire or other casualty shall be brought
about by the fault or negligence of Tenant, Landlord or their
agents. Tenant and Landlord agree that their respective policies
covering such loss or damage shall contain a clause to the effect
that this release shall not affect said policies or the right of
Tenant or Landlord, as the case may be, to recover thereunder and
otherwise acknowledging this mutual waiver of subrogation.
ARTICLE XI
CASUALTY
11.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE"
The term "substantial damage," as used herein, shall refer
to damage which is of such a character that in Landlord's
reasonable, good faith estimate the same cannot, in ordinary
course, be expected to be repaired within 90 calendar days from
the time that such repair work would commence. Any damage which
is not "substantial damage" is "partial damage."
11.2 PARTIAL DAMAGE TO THE PREMISES
If during the Lease Term there shall be partial damage to
the Premises by fire or other casualty and if such damage shall
materially interfere with Tenant's use of the Premises as
contemplated by this Lease, Landlord shall proceed to restore the
Premises to substantially the condition in which it was
immediately prior to the occurrence of such damage.
11.3 SUBSTANTIAL DAMAGE TO THE PREMISES
If during the Lease Term there shall be substantial damage
to the Premises by fire or other casualty and if such damage
shall materially interfere with Tenant's use of the Premises as
contemplated by this Lease, Landlord shall restore the Premises
to the extent reasonably necessary to enable Tenant's use of the
Premises, unless Landlord, within ninety (90) days after the
occurrence of such damage, shall give notice to Tenant of
Landlord's election to terminate this Lease. The Landlord shall
have the right to make such election in the event of substantial
damage to the Building whether or not such damage materially
interferes with Tenant's use of the Premises. If Landlord shall
give such notice, then this Lease shall terminate as of the date
of such notice with the same force and effect as if such date
were the date originally established as the expiration date
hereof.
11.4 ABATEMENT OF RENT
If during the Lease Term the Premises shall be damaged by
fire or casualty and if such damage shall materially interfere
with Tenant's use of the Premises as contemplated by this Lease,
a just proportion of the Rent payable by Tenant hereunder shall
xxxxx proportionately for the period in which, by reason of such
damage, there is such interference with Tenant's use of the
Premises, having regard to the extent to which Tenant may be
required to discontinue Tenant's use of the Premises, but such
abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises or so much thereof as shall
have been originally constructed by Landlord (exclusive of any of
Tenant's fixtures, furnishings, equipment and the like or work
performed therein by Tenant) to substantially the condition in
which the Premises were prior to such damage.
11.5 MISCELLANEOUS
In no event shall Landlord have any obligation to make any
repairs or perform any restoration work under this Article XI if
prevented from doing so by reason of any cause beyond its
reasonable control, including, without limitation, the
requirements of any applicable laws, codes, ordinances, rules, or
regulations, the refusal of the holder of a mortgage or ground
lease affecting the premises to make available to Landlord the
net insurance proceeds attributable to such restoration, or the
inadequacy of such proceeds to fund the full cost of such repairs
or restoration, but reasonably promptly after Landlord ascertains
the existence of any such cause, it shall either terminate this
Lease or waive such condition to its restoration obligations and
proceed to restore the Premises as otherwise provided herein.
Further, Landlord shall not be obligated in any event to make any
repairs or perform any restoration work to any alterations,
additions, or improvements to the Premises performed by or for
the benefit of Tenant (all of which Tenant shall repair and
restore) or to any fixtures in or portions of the Premises or the
Building which were constructed or installed by or for some party
other than Landlord or which are not the property of Landlord.
ARTICLE XII
EMINENT DOMAIN
12.1 RIGHTS OF TERMINATION FOR TAKING
If the Premises or such portion thereof as to render the
balance (if reconstructed to the maximum extent practicable in
the circumstances) physically unsuitable for Tenant's purposes,
shall be taken (including a temporary taking in excess of 180
days) by condemnation or right of eminent domain or sold in lieu
of condemnation, Landlord or Tenant may elect to terminate this
Lease by giving notice to the other of such election not later
than thirty (30) days after Tenant has been deprived of
possession.
Further, if so much of the Premises shall be so taken,
condemned or sold or shall receive any direct or consequential
damage by reason of anything done pursuant to public or quasi-
public authority such that continued operation of the same would,
in Landlord's opinion, be uneconomical, Landlord may elect to
terminate this Lease by giving notice to Tenant of such election
not later than thirty (30) days after the effective date of such
taking.
The Landlord shall have and hereby reserves and excepts, and
Tenant hereby grants and assigns to Landlord, all rights to
recover for damages to the Premises and the leasehold interest
hereby created, and to compensation accrued or hereafter to
accrue by reason of such taking or damage, as aforesaid. The
Tenant covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request.
Nothing contained herein shall be construed to prevent Tenant
from prosecuting in any condemnation proceedings a claim for the
value of any of Tenant's personal property installed in the
Premises by Tenant at Tenant's expense and for relocation and
increased occupancy and operating expenses, provided that such
action shall not affect the amount of compensation otherwise
recoverable hereunder by Landlord from the taking authority. In
any action brought by Landlord with regard to any taking,
Landlord will not claim as damages the value of Tenant's personal
property maintained within the Premises.
12.2 ABATEMENT OF RENT
In the event of any such taking of the Premises, the Rent or
a fair and just proportion thereof, according to the nature and
extent of the damage sustained, shall be suspended or abated, as
appropriate and equitable in the circumstances.
12.3 MISCELLANEOUS
In no event shall Landlord have any obligation to make any
repairs under this Article XII if prevented from doing so by
reason of any cause beyond its reasonable control, including,
without limitation, requirements of any applicable laws, codes,
ordinances, rules, or regulations or requirements of any
mortgagee. Further, Landlord shall not be obligated to make any
repairs to any portions of the Premises which were constructed or
installed by or for some party other than Landlord or which are
not the property of Landlord, and Tenant shall be obligated to
perform any repairs on and restorations to any alterations,
additions, or improvements to the Premises performed by Tenant.
ARTICLE XIII
13.1 TENANT'S DEFAULT
(a) Events of Default. The following shall be "Events of
Default" under this Lease:
(i) If Tenant shall fail to pay any monthly
installment of Rent when due, and such default shall
continue for five (5) days after written notice from
Landlord; provided that no such notice shall be required if
Tenant has received two (2) similar notices within three
hundred sixty-five (365) days prior to such violation or
failure;
(ii) If Tenant shall fail to timely make any other
payment required under this Lease and such default shall
continue for five (5) days after written notice from
Landlord; provided that no such notice shall be required if
Tenant has received two (2) similar notices within three
hundred sixty-five (365) days prior to such violation or
failure;
(iii) If Tenant shall violate or fail to perform any
of the other terms, conditions, covenants or agreements
herein made by Tenant in any material respect, if such
violation or failure continues for a period of thirty (30)
days after Landlord's written notice thereof to Tenant;
provided that no such notice shall be required if Tenant has
received two (2) similar notices within three hundred
sixty-five (365) days prior to such violation or failure;
(iv) Tenant's becoming insolvent, as that term is
defined in Title 11 of the United States Code, entitled
Bankruptcy, 11 U.S.C. Section 101 et. seq. (the "Bankruptcy
Code"), or under the insolvency laws of any State, District,
Commonwealth or Territory of the United States (the
"Insolvency Laws");
(v) the appointment of a receiver or custodian for all
or a substantial portion of Tenant's property or assets, or
the institution of a foreclosure action upon all or a
substantial portion of Tenant's personal property;
(vi) the filing of a voluntary petition under the
provisions of the Bankruptcy Code or Insolvency Laws;
(vii) the filing of an involuntary petition against
Tenant as the subject debtor under the Bankruptcy Code or
Insolvency Laws, which is either not dismissed within ninety
(90) days of filing, or results in the issuance of an order
for relief against the debtor, whichever is earlier;
(viii) Tenant's making or consenting to an assignment
for the benefit of creditors or a common law composition of
creditors; or
(ix) Tenant's interest in this Lease being taken on
execution in any action against the Tenant.
(b) Landlord's Remedies. Should an Event of Default occur
under this Lease, Landlord may pursue any or all of the following
remedies:
(i) Termination of Lease. Landlord may terminate this
Lease by giving written notice of such termination to Tenant, or
by reentry in accordance with applicable law, whereupon the
mailing of such notice of termination addressed to Tenant, or in
the case of reentry, upon such reentry, this Lease shall
automatically cease and terminate and Tenant shall be immediately
obligated to quit the Premises. If Landlord elects to terminate
this Lease, everything contained in this Lease on the part of
Landlord to be done and performed shall cease without prejudice,
subject, however, to the right of Landlord to recover from Tenant
all Rent and any other sums accrued up to the time of termination
or recovery of possession by Landlord, whichever is later.
(ii) Suit for Possession. Landlord may proceed to
recover possession of the Premises under and by virtue of the
provisions of the laws of the state in which the Premises are
located or by such other proceedings, including reentry and
possession, as may be applicable.
(iii) Reletting of Premises. Should this Lease be
terminated before the expiration of the Term of this Lease by
reason of Tenant's default as hereinabove provided, or if Tenant
shall abandon or vacate the Premises before the expiration or
termination of the Term of this Lease without having paid the
full rental for the remainder of such Term, Landlord shall use
commercially reasonable efforts to relet the Premises for such
rent and upon such terms as are not unreasonable under the
circumstances and, if the full Annual Rent and Additional Rent
reserved under this Lease (and any of the costs, expenses or
damages indicated below) shall not be realized by Landlord,
Tenant shall be liable for all damages sustained by Landlord,
including, without limitation, deficiency in rent, reasonable
attorneys' fees, brokerage fees and expenses of placing the
Premises in rentable condition including without limitation any
alterations and improvements. Landlord, in putting the Premises
in good order or preparing the same for rerental may, at
Landlord's option, make such alterations, repairs or replacements
in the Premises as Landlord, in its sole judgment, considers
advisable and necessary for the purpose of reletting the
Premises, and the making of such alterations, repairs, or
replacements shall not operate or be construed to release Tenant
from liability hereunder as aforesaid. Landlord shall in no
event be liable in any way whatsoever for failure to relet the
Premises except as set forth herein, or in the event that the
Premises are relet, for failure to collect the rent under such
reletting, and in no event shall Tenant be entitled to receive
the excess, if any, of such net rent collected over the sums
payable by Tenant to Landlord hereunder.
(iv) Acceleration of Payment. If Tenant shall fail to
pay any monthly installment of Rent pursuant to the terms of
this Lease, within five (5) days of the date when each such
payment is due, for three (3) consecutive months, or three (3)
times in any period of twelve (12) consecutive months, then
Landlord may, by giving written notice to Tenant, exercise any of
the following options: (A) declare the entire rent reserved
under this Lease to be due and payable within ten (10) days of
such notice; (B) declare the rent reserved under this Lease for
the next six (6) months (or at Landlord's option for a lesser
period) to be due and payable within ten (10) days of such
notice; or (C) require an additional security deposit to be paid
to Landlord within ten (10) days of such notice in an amount not
to exceed six (6) months rent. Landlord may invoke any of the
options provided for herein at any time during which an Event of
Default remains uncured.
(v) Monetary Damages. Any damage or loss of rent
sustained by Landlord may be recovered by Landlord, at Landlord's
option, at the time of the reletting, or in separate actions,
from time to time, as said damage shall have been made more
easily ascertainable by successive relettings, or at Landlord's
option in a single proceeding deferred until the expiration of
the Term of this Lease (in which event Tenant hereby agrees that
the cause of action shall not be deemed to have accrued until the
date of expiration of said Term) or in a single proceeding prior
to either the time of reletting or the expiration of the Term of
this Lease. In addition, should it be necessary for Landlord to
employ legal counsel to enforce any of the provisions herein
contained, Tenant agrees to pay all attorney's fees and court
costs reasonably incurred.
(vi) Cumulative Remedies. In the event of a breach by
Tenant of any of the covenants or provisions hereof, Landlord
shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if reentry, summary
proceedings and other remedies were not provided for herein.
Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy, in law or in equity, whether or
not mentioned herein. Landlord's election to pursue one or more
remedies, whether as set forth herein or otherwise, shall not bar
Landlord from seeking any other or additional remedies at any
time and in no event shall Landlord ever be deemed to have
elected one or more remedies to the exclusion of any other remedy
or remedies. Any and all rights and remedies that Landlord may
have under this Lease, and at law and in equity, shall be
cumulative and shall not be deemed inconsistent with each other,
and any two or more of all such rights and remedies may be
exercised at the same time insofar as permitted by law. Tenant
hereby expressly waives any and all rights of redemption granted
by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Premises, by reason of the
violation by Tenant of any of the covenants and conditions of
this Lease, or otherwise.
(c) Waiver. If, under the provisions hereof, Landlord
shall institute proceedings against Tenant and a compromise or
settlement thereof shall be made, the same shall not constitute a
waiver of any other covenant, condition or agreement herein
contained, nor of any of Landlord's rights hereunder. No waiver
by Landlord of any breach of any covenant, condition or agreement
herein contained shall operate as a waiver of such covenant,
condition, or agreement itself, or of any subsequent breach
thereof. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installments of rent herein stipulated
shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any
check or letter accompanying a check for payment of Rent or any
other sum be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or any other sum or so
pursue any other remedy provided in this Lease. No reentry by
Landlord, and no acceptance by Landlord of keys from Tenant,
shall be considered an acceptance of a surrender of the Lease or
Premises.
(d) Right of Landlord to Cure Tenant's Default. If Tenant
defaults in the making of any payment or in the doing of any act
herein required to be made or done by Tenant, then Landlord may,
but shall not be required to, make such payment or do such act,
and charge the amount of the expense thereof, if made or done by
Landlord, with interest thereon at the rate which is 1.5% per
month, or the highest rate permitted by law, whichever may be
less; with it being the express intent of the parties that
nothing herein contained shall be construed or implemented in
such a manner as to allow Landlord to charge or receive interest
in excess of the maximum legal rate then allowed by law. Such
payment and interest shall constitute Additional Rent hereunder
due and payable with the next monthly installment of Rent; but
the making of such payment or the taking of such action by
Landlord shall not operate to cure such default or to stop
Landlord from the pursuit of any remedy to which Landlord would
otherwise be entitled.
(e) Late Payment. If Tenant fails to pay any installment
of Rent on or before the tenth (10th) day of the calendar month
when such installment becomes due and payable, Tenant shall pay
to Landlord a late charge of three percent (3%) of the amount of
such installment, and, in addition, such unpaid installment shall
bear interest at the rate per month which is 1.5%, or the highest
rate permitted by law, whichever may be less; with it being the
express intent of the parties that nothing herein contained shall
be construed or implemented in such manner as to allow Landlord
to charge or receive interest in excess of the maximum legal rate
then allowed by law. Such late charge and interest shall
constitute Additional Rent hereunder due and payable with the
next monthly installment of Rent due, or if payments have been
accelerated pursuant to this Lease, due and payable immediately.
ARTICLE XIV
14.1 SUBORDINATION
Upon the written request of Landlord, Tenant shall enter
into a recordable agreement with the holder of any present or
future mortgage of the Premises which shall provide that (i) this
Lease shall be subordinated to such mortgage, (ii) in the event
of foreclosure of said mortgage or any other action thereunder by
the mortgagee, the mortgagee (and its successors in interest) and
Tenant shall be directly bound to each other to perform the
respective undischarged obligations of Landlord and Tenant
hereunder (in the case of Landlord accruing after such
foreclosure or other action and in the case of Tenant whether
accruing before or after such foreclosure or other action), (iii)
this Lease shall continue in full force and effect, and (iv)
Tenant's rights hereunder shall not be disturbed, except as in
this Lease provided. Tenant may request that the mortgage holder
execute a nondisturbance and attornment agreement with Tenant.
The word "mortgage" as used herein includes mortgages, deeds of
trust and all similar instruments, all modifications, extensions,
renewals and replacements thereof, and any and all assignments of
the Landlord's interest in this Lease given as collateral
security for any obligation of Landlord.
14.2 MODIFICATIONS
In the event that any holder or prospective holder of any
mortgage, as hereinbefore defined, which includes the Premises as
part of the mortgaged Premises, shall request any reasonable
modification of any of the provisions of this Lease, other than a
provision directly related to the Rent or other sums payable
hereunder, the duration of the Term hereof, or the size, use or
location of the Premises, and such modification is not
detrimental to Tenant, Tenant agrees that Tenant will enter into
a written agreement in recordable form with such holder or
prospective holder which shall effect such modification and
provide that such modification shall become effective and binding
upon Tenant and shall have the same force and effect as an
amendment to this Lease in the event of foreclosure or other
similar action taken by such holder or prospective holder or by
anyone claiming by, through or under such holder or prospective
holder.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 CAPTIONS
The captions throughout this Lease are for convenience or
reference only and shall in no way be held or deemed to define,
limit, explain, describe, modify, or add to the interpretation,
construction, or meaning of any provision of this Lease.
15.2 COUNTERPARTS
This Lease is executed in any number of counterparts, each
copy of which is identical, and any one of which shall be deemed
to be complete in itself and may be introduced in evidence or
used for any purpose without the production of the other copies.
15.3 CONSTRUCTION AND GRAMMATICAL USAGE
This Lease shall be governed, construed and interpreted in
accordance with the laws of the Commonwealth of Massachusetts,
and each party agrees to submit to the personal jurisdiction of
any court (federal or state) in said Commonwealth for any
dispute, claim or proceeding arising out of or relating to this
Lease.
15.4 COVENANT OF QUIET ENJOYMENT
Subject to the terms and provisions of this Lease and on
payment of the Rent, additional rent, and other sums due
hereunder and compliance with all of the terms and provisions of
this Lease, Tenant shall lawfully, peaceably, and quietly have,
hold, occupy, and enjoy the Premises during the term hereof,
without hindrance or ejection by Landlord or by any persons
claiming by, through or under Landlord; except as otherwise
specifically provided herein, the foregoing covenant of quiet
enjoyment is in lieu of any other covenant, express or implied.
15.5. ESTOPPEL CERTIFICATES.
Landlord and Tenant both agree on the Term Commencement Date
and from time to time thereafter, upon not less than fifteen (15)
days' prior written request by either party to execute,
acknowledge and deliver to the other party a statement in
writing, certifying that this Lease is unmodified and in full
force and effect, that such party has, except to the extent set
forth therein, no defenses, offsets or counterclaims against its
obligations to pay rent and other charges required under this
Lease and to perform its other covenants under this Lease and
that, except to the extent set forth therein, there are no
uncured defaults of Landlord or Tenant under this Lease (or, if
there have been any modifications, that this Lease is in full
force and effect, as modified, and stating the modifications,
and, if there are any defenses, offsets, counterclaims or
defaults, setting them forth in reasonable detail), and the dates
to which the Rent and other charges have been paid. Any such
statement delivered pursuant to this Section 15.5 may be relied
upon by any prospective purchaser or mortgagee of the property
which includes the Premises or any prospective assignee of any
such mortgagee.
15.6 HOLDOVER
If Tenant remains in the Premises after the termination of
this Lease, by its own terms or for any other reason, such
holding over shall not be deemed to create any tenancy, but
Tenant shall be a tenant at sufferance only, at a daily rate
equal to 125% of the Rent applicable immediately prior to such
termination plus the then applicable additional rent and other
charges under this Lease. Tenant shall also pay to Landlord all
damages, direct or indirect, sustained by Landlord by reason of
any such holding over. Otherwise, such holding over shall be on
the terms and conditions set forth in this Lease as far as
applicable.
15.7 ENTIRE AGREEMENT
This Lease sets forth all the covenants, promises,
agreements conditions, representations and understandings between
Landlord and Tenant concerning the Premises and there are no
covenants, promises, agreements, conditions, representations or
understandings, either oral or written between them other than
those herein set forth and this Lease expressly supersedes any
proposals or other written documents relating hereto. Except as
herein otherwise provided, no subsequent alteration, amendment,
change or addition to this Lease shall be binding upon Landlord
and Tenant unless reduced to writing and signed by them.
IN WITNESS WHEREOF, the parties hereto have executed this
instrument under seal as of the date set forth in Section 1.2,
above.
LANDLORD: OPTOMETRICS HOLDINGS LLC
_/s/ Xxxxx Xxxxxx
By: Xxxxx Xxxxxx, Member
/s/ Xxxxx Xxxxxxx
By: Xxxxx Xxxxxxx, Member
TENANT: DYNASIL CORPORATION OF AMERICA
By: /s/ Xxxxx X. Xxxxxx
Print: Xxxxx X. Xxxxxx
Title: President/ CEO
TENANT: DYNASIL CORPORATION OF AMERICA
By: /s/ Xxxxx X. Xxxxxx
Print: Xxxxx X. Xxxxxx
Title: President
