EXHIBIT 10.5
FORM OF
LEASE AS TO
FRANKLIN INDUSTRIAL PARK
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Dated as of: December 22, 1998
DEFINED TERMS
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1. Landlord: Third Franklin Trust
2. Landlord's Address: c/o Park Development Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
3. Building: 00 Xxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
4. Tenant: X.X. Xxxx, Inc.
5. Tenant's Address: 00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
6. Rentable Square Feet Leased to 29,091 square feet
Tenant:
(See Exhibit A)
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7. Rentable Square Feet in Building: 97,000 square feet
8. Base Rent: Years 1 - 3: $189,091.50
Years 4 and 5: $203,637.00
9. Term: Five (5) years
10. Commencement Date: January 4, 1999
11. Security Deposit: $15,757.63
12. Guarantor: None
13. Broker(s): Xxxxxxxxx & Xxxx and Xxxxxxx
Commercial Group
14. Tenant's Percentage Share of Real Twenty-Nine and Ninety-Nine One
Property Taxes and Operating Hundredths (29.99%) Percent
Expenses:
15. Management Fee: Four percent (4%) of Base Rent
16. Permitted Uses: Light Non-Nuisance Manufacturing,
office, warehouse and, to the extent
permitted by zoning laws,
manufacturing and integration of
enclosures and cabinetry and systems
integration.
17. Option to Extend: One (1) Five Year Option
18. Date and Recordation of May 1, 1987, recorded at Norfolk
Declaration of Protective County Registry of Deeds in Book
Covenants: 7689, Page 385, as amended by First
Amendment dated December 1, 1992,
recorded with said Deeds in Book
9702, Page 360 those Protective
Covenants dated as of May 1, 1987,
which are recorded with said Deeds at
Book 7689, Page 385, as amended by a
First Declaration of Amendment dated
December 1, 1992, recorded with said
Deeds in Book 9702, Page 603, as
affected by a Confirmatory First
Declaration of Amendment as to
Protective Covenants dated as of
December 12, 1994 recorded with said
Deeds in Book 10798, Page 479, and as
amended by a Second Declaration of
Amendment dated March 29, 1995,
recorded with said Deeds in Book
10848, Page 251.
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TABLE OF CONTENTS
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DEFINED TERMS 1
TABLE OF CONTENTS 3
EXHIBITS 4
I. Premises. 5
II. Term 5
III. Base Rent. 5
IV. Additional Rent. 6
V. Repairs, Maintenance and Alterations 7
VI. Compliance with Laws 8
VII. Insurance 8
VIII. Permitted Uses; Environmental Regulations 9
IX. Damage and Destruction 10
X. Eminent Domain 10
XI. Events of Default 11
XII. Assignment and Subletting 12
XIII. Miscellaneous 13
(a) Waiver. 13
(b) Servants, Agents and Employees 13
(c) Term 13
(d) Writing 13
(e) Notices 13
(f) Applicable Law 13
(g) Entire Agreement 14
(h) Broker 14
(i) Limitation of Landlord's Liability 14
(j) Subordination 14
(k) Estoppel Certificate 14
(l) Indemnification by Tenant 15
(m) Option to Extend 15
(n) Security Deposit 15
(o) Interest Rate 16
(p) Notice of Lease 16
(q) Occupancy Prior to Commencement Date; Landlord's Work 16
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EXHIBITS
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The following Exhibits are attached to this Lease and incorporated herein by
reference:
Exhibit A - Plan of the Premises
Exhibit B - Purposely Omitted
Exhibit C - Form of Commencement Date Agreement
Exhibit D - Supplemental Agreements
Exhibit E - Fair Rental Value Determination
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LEASE
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THIS LEASE made as of this 22nd day of December, 1998, by and between
Xxxxxxx X. Xxxxxxx, Trustee of Third Franklin Trust under Declaration of Trust
dated August 4, 1988, and recorded in the Norfolk County Registry of Deeds at
Book 8088, Page 627, as amended of record, (the "Registry") (hereinafter
"Landlord"), and X. X. Xxxx Company, Inc. with its principal place of business
at 00 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000 (hereinafter "Tenant").
In consideration of these premises and the mutual covenants herein
contained, the parties hereto, for themselves, their successors and assigns,
hereby covenant and agree as follows:
I. Premises.
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Landlord hereby leases to Tenant, subject to the provisions of the Lease,
the premises (the "Premises"), as shown on the Plan attached as Exhibit A, in
the building (the "Building") situated at 00 Xxxxxxx Xxx, Xxxxxxxx Industrial
Park, Franklin, Massachusetts (the "Land"), together with the right to use, in
common with others, the existing parking lots and access ways on the Land, and
certain rooms, located on the perimeter of the Premises which contain electric,
gas, telephone, fire alarm control, and sprinkler system control equipment (the
"Central Utility Rooms") which are to be used by Tenant in common with Landlord
and the other occupants of the Building. The Premises are leased "AS IS",
without representation or warranty, whether express or implied.
II. Term.
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TO HAVE AND TO HOLD for a term (the "Term") of five (5) years commencing on
January 4, 1999 (the "Commencement Date"). Landlord shall deliver the Premises
to the Tenant on the Commencement Date, and the Term of this Lease, and (except
as expressly provided hereunder, Tenant's obligation to pay rent and any other
sums hereunder) shall begin on and as of that date, and Tenant shall be deemed
to have accepted the Building and the Premises as of said date.
III. Base Rent.
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YIELDING AND PAYING Base Rent therefor at the annual rate or rates set
forth in paragraph (8) on page 1 of this Lease, payable in advance, without
prior demand and without deduction, set off or counterclaim, in equal monthly
installments during the Term to Landlord, at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, or at such other address as Landlord shall designate in
writing. Such installments shall be payable on the first day of each month of
the Term of this Lease (but if the Commencement Date does not fall on the first
day of a month, then the first such payment shall be made on the Commencement
Date, prorated for the portion of a month then involved, and the last such
payment due hereunder shall also be prorated appropriately) (see Exhibit D).
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IV. Additional Rent.
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Tenant shall pay to Landlord, as Additional Rent, its Percentage Share of
the following expenses incurred by Landlord, relating to the operation of the
Building and the Land as a whole during the Term and any extension hereof:
(a) All real estate taxes and other taxes relating to the Premises,
Building and Land, municipal charges, and other like assessments (any betterment
assessments will be computed based upon payment over the longest period
permitted by law for making payments of said assessments)
(b) Landlord's reasonable expenses in connection with its repair and
maintenance obligations pursuant to Article V(a) hereof;
(c) Landlord's insurance expenses pursuant to Article IX(a) hereof; and
(d) Landlord's reasonable expenses in respect of its obligations concerning
maintenance of certain "Common Areas" of the Franklin Industrial Park, as set
forth in the Protective Covenants.
Tenant shall also pay as Additional Rent Landlord's Management Fee, which
shall be fixed at an amount equal to Four percent (4%) of the effective rate of
Base Rent (without regard to so-called "free rent" or any other like
concession), during each year of the Term or any extension thereof.
Landlord shall reasonably estimate the total amount of all such expenses as
of June 1 for each year of this Lease, with reference to the twelve month period
beginning on the following July 1 (the "Lease Year"), and shall furnish its
computations to Tenant together with any available supporting data. Thereafter,
Tenant shall be responsible on a monthly basis for the payment of an amount
equal to the total estimate of such expenses for the Lease year as a whole,
multiplied by the Percentage Share, and further divided by twelve. Such amount
shall be payable in equal monthly installments on the first of each month (with
appropriate proration, as in the case of the Base Rent, in the event that the
Commencement Date does not fall on the first day of the month). Within forty-
five (45) days after the end of each Lease Year, Landlord shall also furnish to
Tenant computations showing its actual expenses, reasonable documentation
supporting the same, and a recomputation, if necessary, of Tenant's allocable
portion thereof. Tenant, shall, upon demand, pay any underpayments, and any
overpayments shall be paid or credited to Tenant's obligations hereunder.
Tenant also agrees to pay all charges for utility services, including, but
not limited to heat, water, gas, and electricity, rendered to the Premises and
to be responsible for its own rubbish removal.
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V. Repairs, Maintenance and Alterations.
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(a) Landlord agrees to provide during the Term, grounds care, paving
maintenance, snow removal, and exterior maintenance of the Building, so as to
keep the same in good condition and repair, and to make all necessary repairs to
the roof and outer walls and glass in order to keep the same wind and
weathertight, and to make all necessary repairs to any building-wide utility
systems (such as the sprinkler system, and the electric, water, gas, fire alarms
and telephone equipment located in the Central Utility Rooms referred to in
Article I hereof), unless any such repairs or maintenance are necessitated as a
result of Tenant's misuse or negligence, in which event Tenant shall pay for the
cost of such repairs.
(b) Tenant agrees during the Term, at its sole expense, except as otherwise
provided in (a) above, to keep, repair, and maintain the Premises and all
fixtures and equipment thereon and therein (including, but not limited to, all
heating, air conditioning and ventilating systems, and that portion of the
sprinkler system located within the Premises) in good order, repair and
condition, reasonable wear and tear, and damage by fire or other casualty only
excepted, and at the expiration or termination of this Lease, peaceably to yield
up the Premises and all alterations and additions thereto in good order, repair
and condition, reasonable wear and tear and damage by fire or other casualty
excepted, first removing all goods and effects of Tenant. With respect to said
heating, air conditioning and ventilating systems, Tenant, at its sole cost and
expense, shall maintain so-called maintenance contracts with reputable vendors
reasonably approved by Landlord; provided, however, that Landlord shall furnish
to Tenant all available manufacturer's warranties relating to said equipment.
(c) Tenant agrees not to make any alterations, improvements and/or
additions to the Premises (1) without first obtaining, on each occasion, the
written consent of Landlord, except that Tenant at its own expense may make
nonstructural alterations after first submitting to Landlord plans and
specifications therefor and securing the Landlord's written approval, which
shall not be unreasonably withheld or delayed, (except any nonstructural
alterations made by Tenant within 60 days after the Commencement Date shall not
require Landlord's approval provided that Tenant provides Landlord prior to
commencing construction of any such nonstructural alterations or work a letter
describing in reasonable detail the proposed nonstructural alterations) and (2)
upon condition that such alterations shall be made in accordance with all
applicable laws and in good and workmanlike first-class manner. In the event
that the estimated cost for such alterations by Tenant shall exceed Twenty-Five
Thousand ($25,000.00) Dollars, then no consent of Landlord shall be valid or
binding upon it until Tenant furnishes Landlord a liability policy in amounts
satisfactory to Landlord protecting Landlord from any liability for injury done
to persons or property arising directly or indirectly from the making of such
alterations or additions by Tenant, its agents, servants, employees and/or
independent contractors.
Tenant further agrees to pay when due all costs for labor and materials
furnished in connection with any work done to the Premises, and to promptly
remove or bond any and all
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mechanics' liens filed against the Building as a result of labor or materials
furnished in connection with said work.
Any and all alterations, additions, and improvements, which may be made or
installed by Tenant in the Premises and which are attached to the floors, walls,
or ceilings, including, without limiting the generality of the foregoing, any
linoleum, carpeting or other floor covering of similar character, which may be
cemented or otherwise adhesively affixed to the floor, shall remain upon the
Premises, and at the termination of this Lease shall be surrendered with the
Premises as a part thereof, unless Landlord shall request removal upon
expiration of this Lease or within thirty (30) days after Landlord regains
possession. It is understood and agreed that any trade fixtures, furniture and
equipment placed upon the Premises by Tenant are to remain the property of
Tenant and shall be removed by Tenant from the Premises promptly prior to the
expiration of the term of this Lease. Tenant shall repair any damage to the
Premises or the Building caused by the removal of items under either of the two
preceding sentences.
(d) Tenant agrees during the Term to permit Landlord, upon at least twenty-
four (24) hours advance notice (except in the case of emergency) and subject to
Tenant's reasonable security requirements and without interfering with Tenant's
use, to enter upon the Premises, to perform the obligations of Landlord under
this Lease and in order to inspect the same with respect to Tenant's compliance
with the provisions of this Lease, to show same to prospective lenders, and,
during the final nine (9) months of the Term, to show same to prospective
tenants. In addition, if Tenant fails to perform any repair or maintenance work
required of it hereunder, then Landlord, after reasonable notice shall have the
right to perform same, charging the entire cost to Tenant to be paid by Tenant
in full on demand. Further, for a period of two hundred seventy (270) days prior
to the expiration or sooner termination of the Term hereof, Landlord may place
upon the Premises "for lease" signs which Tenant agrees not to disturb.
VI. Compliance with Laws.
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Tenant agrees, at its sole expense, to conform promptly with all laws,
requirements, regulations, or lawful direction of any legally constituted public
official or authority relative to Tenant's occupancy and use of the Premises.
Included hereunder is any duty imposed upon Landlord or Tenant arising out of
Tenant's particular use of the Premises. Tenant agrees to procure any licenses
and permits from time to time required because of Tenant's particular use of the
Premises. Landlord represents and warrants that, to the best of Landlord's
knowledge, the Building and Premises are not currently in violation of
applicable federal, state and local laws and ordinances, including proper
handicap accessibility.
VII. Insurance.
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Except as provided otherwise by this Lease and except for injury or damage
arising out of Landlord's negligence or other wrongful act or omission, Tenant
agrees to indemnify, defend and save harmless Landlord against all claims for
injury, death or damage to persons or property on
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or about, or by reason of the Tenant's use and occupancy of, the Premises.
Tenant, at its sole cost and expense, shall maintain in full force and effect
throughout the term of this Lease the following insurance written by one or more
responsible insurance companies licensed to do business in the Commonwealth of
Massachusetts:
(a) Comprehensive public liability insurance of not less than $2,000,000.00
on a so-called "combined single limit" basis, in responsible companies qualified
to do business in Massachusetts, which insurance shall also provide for twenty
(20) days' notice of cancellation to Landlord and shall name Landlord and any
mortgagee of the Building, of which Tenant is notified as an additional insured
thereon;
(b) Workmen's compensation insurance covering all employees, and if Tenant
shall contract with any independent contractor for the furnishing of labor,
materials or services to Tenant, Tenant shall require such independent
contractor to maintain workmen's compensation insurance covering all its
employees and all the employees of any such subcontractor; and
(c) Fire insurance with standard extended coverage in an amount of not less
than the full replacement value of all Tenant's contents, including leasehold
improvements.
All policies of property and liability insurance which either party obtains
in connection with the Premises shall include a clause or endorsement denying
the insurer any rights of subrogation against the other party. Each party waives
any rights of recovery against the other for injury or loss due to hazards
covered by insurance to the extent of the proceeds recovered therefrom.
Certificates evidencing any or all of the foregoing liability insurance
shall be provided to Landlord prior to the Commencement Date and thereafter on
written request by Landlord.
VIII. Permitted Uses; Environmental Regulations.
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Tenant may use the Premises only for the Permitted Uses.
The Premises shall not be used for any illegal purposes; nor in any manner
to create any nuisance or trespass; nor in any manner to vitiate the insurance
or increase the rate of casualty insurance on the Building unless Tenant agrees
to pay for the entire such increase.
Tenant shall not cause any hazardous wastes, toxic substances or related
materials (collectively "Hazardous Materials") to be used, generated, stored or
disposed of on, under or about, or transported to or from, the Property
(collectively, "Hazardous Materials Activities"), without first receiving
Landlord's written consent, which may be withheld for any reason whatsoever and
which may be revoked, at any time, and then only in compliance (which shall be
at Tenant's sole cost and expense) with all applicable Regulations and using all
necessary and appropriate precautions. Landlord shall not be liable to Tenant
for any Hazardous Materials
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Activities by Tenant, Tenant's employees, agents, contractors, licensees or
invitees. Tenant shall indemnify, defend with counsel acceptable to Landlord and
hold Landlord harmless from any, claims, damages, costs and liabilities arising
out of Tenant's Hazardous Materials Activities on, under or about the Property.
Landlord shall not be liable to Tenant regardless of whether or not Landlord has
approved Tenant's Hazardous Materials Activities. For the purposes of this
Article, Hazardous Materials shall include but not be limited to substances
defined as "hazardous substances" or "toxic substances" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9061 et sec.; Hazardous Materials Transportation Act, 49 U.S.C. Sec.
1802; and Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq;
and those substances defined as "Hazardous wastes" under the laws of the
Commonwealth of Massachusetts and publications promulgated pursuant to said
laws; and any substances, materials and wastes which are or become regulated
under any applicable local, state, or federal law.
IX. Damage and Destruction.
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(a) Landlord agrees to maintain as to the Building during the Term, (i) a
policy of insurance insuring against all risks of physical damage or loss from
external cause to the extent of the replacement value thereof, and (ii) so-
called rental insurance, insuring against loss of rents during the period after
the occurrence of a casualty.
(b) This Lease is made on the condition that in case, at any time after the
execution hereof, (i) at least fifty (50%) percent of the replacement value of
the Premises or (ii) at least twenty-five (25%) percent of the replacement of
the Building shall be destroyed or damaged by fire or other casualty, this Lease
may be terminated at the election of Landlord or Tenant in the instance of
proviso (i), and at the election of Landlord only in the instance of proviso
(ii), in either event within thirty (30) days after such damage or destruction
by notice in writing to the other party, and upon the giving of such notice this
Lease shall come to an end and be terminated as of and upon the date specified
in such notice, provided, however, that Tenant shall have a reasonable time from
the giving of such notice to remove Tenant's goods and effects from the
Premises. If this Lease is not terminated, then a just proportion of the rent
reserved hereunder shall be equitably abated as to the period after any such
casualty, and prior to the restoration of the Premises or termination of this
Lease, as the case may be, provided that Landlord shall be entitled to receive
all insurance proceeds referred to in Article IX (a)(ii) hereof.
X. Eminent Domain.
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This Lease is made on the further condition that in case, at any time after
the execution hereof, all or any "material part" (as hereinafter defined) of the
Premises or the Building shall be taken for any street or other public or quasi-
public use or condemned by public authority, then this Lease may be terminated
at the election of Landlord or Tenant in the instance of the Premises, and at
the election of Landlord only in the instance of the Premises, and at the
election of Landlord only in the instance of the Building by notice to the other
party within forty-five (45)
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days after such taking or condemnation has become effective, notwithstanding
that the entire interest of Landlord has been divested thereby, and upon the
giving of such notice this Lease shall come to an end and be terminated as of
and upon the date specified in such notice, provided, however, that Tenant shall
have a reasonable time from the giving of such notice to remove Tenant's goods
and effects from the Premises. In the event that this Lease shall not be so
terminated, or if the taking is less than a "material part" thereof and if the
Premises or any part thereof are thereby rendered unfit for use and occupation,
the hereinbefore reserved rent, or a just and proportionate part thereof
according to the nature and extent to which the Premises have been rendered
unfit for use and occupation, shall be temporarily suspended or abated until the
Premises, or what remains thereof, shall have been rebuilt and restored at the
expense of Landlord to substantially the condition in which they (or what
remains thereof) were immediately prior to such taking or condemnation, and are
capable of being occupied by Tenant for the purposes of Tenant's business. If as
a result of any taking or condemnation as aforesaid, the area of the Premises
which shall, after reconstruction, be available for use and occupation shall be
diminished and this Lease shall not have been terminated as aforesaid, or if the
taking is less than a "material part" thereof, a just proportion of said
reserved rent shall be permanently abated for the balance of the Term of this
Lease in proportion to such diminution. In case of any such taking or
condemnation all damages awarded for the same shall be the sole and exclusive
property of Landlord, whether or not this Lease is terminated as a result
thereof. The term "material part" shall mean twenty percent (20%) or more of the
floor area of the Premises, or ten percent (10%) or more of the Building.
XI. Events of Default.
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The following shall constitute a "default" or an "Event of Default"
hereunder:
(a) Tenant fails to pay Rent when due and such failure continues for five
(5) business days after Landlord gives Tenant written notice thereof (except
that such notice shall not be required more than twice in any calendar year);
(b) Tenant fails to comply with any of its covenants in this Lease
regarding maintaining insurance, or subletting or assignment and such failure
continues for ten (10) days after Landlord gives Tenant written notice thereof;
(c) Tenant fails to comply with any of Tenant's other obligations in this
Lease and such failure continues for a period of thirty (30) days after Landlord
gives Tenant a notice specifying in reasonable detail such failure, and if such
default is susceptible to cure, such reasonable additional time as may be
necessary to cure the default so long as Tenant proceeds with diligence to cure
the default as soon as reasonably possible and continues to take all steps
necessary to complete the same;
(d) An execution or attachment is issued against Tenant or any of its
property as a result of which the Premises are taken or occupied by any person
other than Tenant;
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(e) Tenant or any Guarantor dies, dissolves, reorganizes or terminates its
existence;
(f) Tenant or any Guarantor becomes insolvent or otherwise unable to pay
its debts as they become due;
(g) Tenant or any Guarantor makes an assignment for the benefit of
creditors;
(h) A receiver, trustee or other officer shall be appointed to take charge
of all or any substantial part of the assets of Tenant or Guarantor;
(i) A petition is filed by or against Tenant or Guarantor under any
bankruptcy, insolvency or other law relating to the relief or adjustment of
indebtedness of debtors and is not dismissed within sixty (60) days of filing.
This Lease is made on the condition that, if a default or an Event of
Default occurs, Landlord may immediately or at any time thereafter exercise one
of the following remedies:
(a) Landlord may bring suit for damages or specific performance for the
collection of unpaid rent or the performance of any of Tenant's obligations,
without entering into possession or terminating this Lease; OR
(b) Landlord may, at its option, give Tenant a notice terminating this
Lease on a date not less than ten (10) business days after Landlord gives such
notice, (and upon such date this Lease shall terminate and all rights of
Landlord shall cease without further notice or lapse of time) or Landlord may,
without notice (beyond what may be required by subparagraphs (a) through (i)
hereof), re-enter the Premises for the purpose of re-possessing the same and
terminating this Lease (it being agreed that Landlord shall first obtain such
court orders as may be necessary in relation thereto, if any). Upon termination
of this Lease, Tenant shall surrender the Premises to Landlord. Landlord may
remove Tenant's property and store it in a public warehouse at the expense and
risk of Tenant.
At any time after termination of this Lease, pursuant to this Article XI,
Landlord shall be entitled to recover from Tenant, and Tenant shall pay to
Landlord, on demand the amount by which the fair rental value of the Premises
for the residue of the Term, minus reletting expenses, is less than the Base and
Additional Rent for the residue of the Term, said amount to be calculated from
the date of termination of this Lease, pursuant to subparagraph (B) above.
XII. Assignment and Subletting.
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Tenant may not sublet the Premises, except with the express written
approval of Landlord and any mortgagee or other lien holder referred to in
Article XII hereof, which approval by Landlord shall not be unreasonably
withheld. Landlord agrees not to withhold its consent, however, in the event of
a sublease to a parent, subsidiary, or affiliate of Tenant. If Tenant
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receives rent or other consideration for any sublease in excess of the Base Rent
and the Additional Rent, Tenant shall pay Landlord such excess.
In any event, it is understood and agreed that any such sublease shall be
subject to the terms and conditions of this Lease, that Tenant shall continue to
be liable to Landlord for compliance with the terms and conditions of this Lease
throughout the duration of the initial term and any extended term, and that
Landlord shall have no obligation to look to such subtenant for the enforcement
of the terms and conditions of this Lease, but may proceed directly against
Tenant whether or not Tenant occupies any portion of the Premises, it being the
intention of this clause that no sublease shall impose any obligations on
Landlord, or otherwise affect any of the rights of Landlord under this Lease.
No assignment of this Lease shall be allowed, in any event.
XIII. Miscellaneous.
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(a) Waiver. No consent or waiver, express or implied, by either party to,
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or of any breach of, any agreement or duty of the other party shall be construed
as a consent to or waiver of any other breach of the same or any other agreement
or duty.
(b) Servants, Agents and Employees. The terms "Landlord" and "Tenant"
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shall include therein their respective servants, agents and employees.
(c) Term. The word "Term" refers as of any particular time to the Initial
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Term and also to any extension thereof with respect to which Tenant has as of
that time exercised its extension option set forth herein.
(d) Writing. Whenever any notice, approval, consent or request is given
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pursuant hereto, the same shall be in writing.
(e) Notices. All notices shall be sent to the respective addresses for
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Landlord and Tenant indicated on page 1 of this Lease. Any notice required
hereunder shall be in writing, and shall be delivered by hand, be sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed, or be sent by expedited or overnight courier. All notices required or
otherwise given hereunder shall be deemed to be received on the date of delivery
by hand or delivery by mail, or one (1) day after the date of deposit with an
expedited or overnight carrier. Delivery by mail shall be evidenced by the
signed receipt for registered or certified mail, or by an indication by the U.S.
Postal Service that delivery has been refused.
(f) Applicable Law. This Lease shall be deemed to be a contract made under
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the laws of the Commonwealth of Massachusetts, and shall be construed in
accordance with the laws of said Commonwealth.
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(g) Entire Agreement. The whole agreement between the parties hereto is
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set forth herein and neither party shall be bound by any understanding or
condition other than those expressly set forth and stipulated herein, unless in
writing subscribed by both parties.
(h) Broker. Landlord and Tenant warrant to each other that no broker other
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than as specified in paragraph (13) on page 1 hereof, introduced Tenant to these
premises, and each agrees to indemnify, defend and hold the other harmless
against any breach of said warranty.
(i) Limitation of Landlord's Liability. The obligations of this Lease
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shall run with the land, and this Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that Landlord shall be liable only for obligations while owner of the
Land or Building and the obligations of the Landlord hereunder shall be
enforceable only against, and recovery shall be had only against, Landlord's
ownership interest in the Land and Building, and not against any trustee,
officer, agent, shareholder or beneficiary of the trust individually.
(j) Subordination. Tenant agrees that it will at any time and from time to
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time, upon request of Landlord, subordinate this Lease to any mortgage, deed of
trust and/or any other security indenture hereafter placed upon the Building or
the Land and to any renewal, modification, replacement or extension of such
mortgage, deed of trust, or security indenture and to any and all advances made
or to be made thereunder, provided that in the instrument of subordination the
mortgagee, trustee or holder of such security indenture agrees, for itself and
its successors and assigns, that so long as Tenant shall not be in default under
this Lease, the mortgagee, trustee or holder or such security indenture and its
successors and assigns will not disturb the peaceful, quiet enjoyment of the
Premises by Tenant. Tenant hereby irrevocably appoints Landlord, its
representatives and assigns, to be Tenant's attorneys or attorneys-in-fact, to
execute and deliver any and all such instrument or instruments of subordination
for and on behalf of Tenant and its successors and assigns (in which event, a
copy thereof shall be furnished by Landlord). Tenant also agrees, for itself and
its successors and assigns, that if this Lease is so subordinated, no entry
under any such mortgage or sale for the purpose of foreclosing the same shall be
regarded as an eviction of Tenant or its successors and/or assigns, constructive
or otherwise, or give Tenant or its successors or assigns any right to terminate
this Lease, whether it or they attorn or become tenant of the mortgagee or new
owner or not.
If any mortgagee, trustee or holder of such security indenture elects to
have this Lease and the interest of Tenant thereunder superior to any such
interest by notice to be given to Tenant, then this Lease and the interest of
Tenant hereunder shall be deemed superior to any mortgage, deed of trust, or
security indenture, whether this Lease was executed before or after such
mortgage, deed of trust or security indenture.
(k) Estoppel Certificate. Each of the Tenant and Landlord agree from time
--------------------
to time upon request of the other to furnish certification to the other that (i)
this Lease is then in full force and effect, if such be the case; (ii) that
there is no default hereunder, and if such shall not be
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the case, to specify any default then existing; and (iii) to such other effects
as Landlord's lenders may reasonably request, including, without limitation,
such financial statements and other data as Tenant has made generally available
to its customers or prospective customers.
(l) Indemnification by Tenant. In addition to and not in limitation of any
-------------------------
other provisions of this Lease, Tenant does hereby agree to indemnify and hold
harmless Landlord of and from all costs and expenses including reasonable
attorney's fees, incurred by Landlord (after written notice to Tenant whenever
expressly required hereunder), in exercising its rights under this Lease or
enforcing the obligations and duties of Tenant hereunder.
Also, Landlord does hereby agree to indemnify and hold harmless Tenant of
and from all costs and expenses, including reasonable attorneys fees, incurred
by Tenant in exercising its rights under this Lease or enforcing the obligations
and duties of Landlord hereunder; provided, however, that the foregoing
indemnification shall not become operative unless and until Tenant has given
Landlord no less than thirty (30) days written notice and the opportunity to
cure any such default.
(m) Option to Extend. Tenant shall have the right and option to extend the
----------------
Initial Term hereof for an additional five (5) years, provided that Tenant shall
not be in default of any of the terms of this Lease, either at the time such
option is exercised, or at the expiration of the preceding Term. Said option
shall be exercisable by written notice to Landlord given not less than nine (9)
months prior to the expiration of the preceding Term. Said extension shall be on
the same terms, covenants and conditions as are contained in this Lease, except
that the Base Rent for the extended Term shall be adjusted to the Fair Rental
Value of the Premises as agreed upon by the parties as of the date which is six
months prior to the expiration of said Term (the "Determination Date"). Said
Fixed Rent adjusted shall in no event, however, be less than the Fixed Rent
during the prior Lease Period. Fair Rental Value is defined as the highest rent
that the Premises would bring if offered for lease in the open market as of the
Determination Date, allowing a reasonable time to find a tenant who leases with
the knowledge of all of the uses to which the Premises are adapted and for which
they are capable of being used. If the parties are unable to agree on said Fair
Rental Value as of the Determination Date, said question shall be submitted to
arbitration as provided in Exhibit E hereto.
(n) Security Deposit. If an amount has been specified in Paragraph (11) on
----------------
page 2 of this Lease, then upon the execution of this Lease, Tenant has
deposited with Landlord said sum as a security deposit to assure the Landlord of
the full and prompt payment and performance of Tenant's obligations under this
Lease. Said amount is not advance rent and if Tenant shall have fully performed
all of its obligations under this Lease, Landlord shall return said security
deposit to Tenant at the expiration of this Lease subject to any diminution
thereof pursuant to the terms of this Lease. Landlord need not have recourse to
said security deposit but may require Tenant's performance without regard
thereto. If Landlord shall use all or any part of the said security deposit to
cure Tenants default hereunder, Tenant shall restore the part so used promptly
upon demand of Landlord. Landlord shall place said sum in a separate investment-
type account for the
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benefit of the Tenant, and Landlord shall remit the interest on said account to
Tenant on an annual basis, together with an indication of where said account is
maintained.
(o) Interest Rate. Unless otherwise provided in the Lease to the contrary,
-------------
any sums due from Tenant to Landlord hereunder, if not paid within ten (10) days
of the date originally due hereunder, shall bear interest at the lower of (i)
the Prime Rate of the Bank of Boston, N.A., plus three (3%) percentage points or
(ii) the maximum rate permitted by law, from the date originally due until paid
in full.
(p) Notice of Lease; Commencement Date Agreement. Neither party will
--------------------------------------------
record this Lease but each party will on demand by the other execute an
appropriate memorandum or notice of this Lease, for recording pursuant to
Massachusetts General Laws, Chapter 183, Section 4, and a Commencement Date
Agreement in the form set forth on Exhibit C attached hereto.
(q) Tenant's Access Prior to Term. Tenant and Tenant's agents may enter
-----------------------------
the Premises prior to the Commencement Date at such times and for such purposes
as Landlord may approve, which approval shall not be unreasonably withheld, in
order to do such preparation as may be required to make the Premises ready for
Tenant's occupancy. If at any time such entry unreasonably interferes with the
orderly or timely completion of the Building or Premises, Landlord may withdrawn
such permission upon 24 hours Notice to Tenant. Any such entry into the Premises
shall be deemed to be under all of the terms of this Lease, except that the
obligation to pay rent shall not commence until the Commencement Date. If Tenant
does so enter the Premises, Landlord shall not be liable for any injury or death
to any person, or damage to any property. Such entry shall be at Tenant's sole
risk and Tenant shall indemnify, defend and hold harmless Landlord for any and
all loss, cost or expense arising or resulting from same.
IN WITNESS WHEREOF, the parties hereto have set their respective hands and
seals as of the day first written.
Witness: Landlord:
THIRD FRANKLIN TRUST
By:
------------------------------ --------------------------------
, Trustee and
-------------------------
Not Individually
Tenant:
X. X. XXXX, INC.
------------------------------ --------------------------------
Its:
----------------------------
Hereunto duly authorized
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EXHIBIT A
---------
Tenant's Floor Plan of the Premises
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EXHIBIT C
---------
COMMENCEMENT DATE AGREEMENT
To:______________________ Date:______________________
Re: Lease dated __________________, 19__ between First Franklin Trust,
Landlord, and ______________________, Tenant, located at ____________________
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted herewith by the Tenant as being
substantially complete in accordance with the subject Lease, and that there is
no deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the term of said
Lease shall commence as of ("Commencement Date") for a term of _______________,
ending on _______________.
3. That in accordance with the subject Lease, rent commenced to accrue on
_____________________.
4. If the Commencement Date of the subject Lease is other than the first
day of the month, the first billing will contain a pro rata adjustment. Each
billing thereafter shall be for the full amount of the monthly installment as
provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and every
month during the term of said Lease. Your rent checks should be made payable to
______________ at _________________.
AGREED AND ACCEPTED:
"Tenant" "Landlord"
__________________________________ __________________________________
a ________________________________ a ________________________________
By:_______________________________ By:_______________________________
Its:____________________________ Its:____________________________
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EXHIBIT D
---------
SUPPLEMENTAL AGREEMENTS
Anything to the contrary in the foregoing lease notwithstanding, Landlord and
Tenant hereby agree as follows:
1. During the period from the Commencement Date to and including January 14,
1999, Tenant shall not be obligated to pay the Rent.
2. With respect to the requirement under Article XII for Landlord's approval
of any sublet of the Premises by Tenant, such approval will not be
unreasonably delayed or conditioned.
3. In the event that Tenant enters into an agreement with Landlord to (i)
lease or purchase another parcel in Franklin Industrial Park and (ii) build
new premises by Landlord to suit Tenant at said parcel, then Tenant shall
have the right to terminate this Lease effective upon the Tenant taking
occupancy of the new premises.
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EXHIBIT E
---------
If the parties are unable to agree on said Fair Rental Value as of the
Determination, Date, said question shall be submitted upon either party's
request to a board of appraisers two (2) in number, one named by Lessor and one
named by Lessee. Each appraiser appointed under this paragraph shall be a
reputable real estate broker of industrial and office space with at least ten
(10) years experience in the Boston Metropolitan Area. Each appraiser so
appointed shall be instructed to determine independently the Fair Rental Value
within thirty (30) days after the request of either party If (i) only one
appraiser shall have been appointed within ten (10) days after the first party's
request, or (ii) if two appraisers shall have been appointed by only one
appraiser shall have made a determination of Fair Rental Value within thirty
(30) days after the request of either party as aforesaid, then the determination
of such single appraiser shall be final and binding upon both parties. If two
appraisers shall have been appointed and shall have made their determinations
within the respective requisite periods set forth above, and if the difference
between the amounts so determined shall not exceed ten (10%) percent of the
lesser of such amounts, then the Fair Rental Value shall be the average of the
amounts so determined; if, however, the difference between the amounts so
determined shall exceed ten (10%) percent of the lesser of such amounts, then
such two appraisers shall have ten (10) days to appoint a third appraiser, but
if such appraisers fail to do so, then either party may request the President of
the Greater Boston Real Estate Board to appoint an appraiser within ten (10)
days of such request. Such third appraiser shall also be a reputable real state
broker of industrial and office space with at least ten (10) years experience in
the Boston Metropolitan Area, and shall not have acted in any capacity for
either party within five (5) years of his selection. Both parties shall be bound
by
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any appointment so made within said ten (10) day period. If no such appraiser
shall have been appointed within said ten (10) days, either party may apply to
any court having jurisdiction to make such appointment. Any appraiser appointed
by the original appraisers, by the President of the Greater Boston Real Estate
Board, or by the court, shall be instructed to determine the Fair Rental Value
within thirty (30) days after his appointment. If the amount of the third
appraisal shall be less than the lower of the first two appraisals, the Fair
Rental Value shall be the lower of the first two appraisals. In all other cases,
the Fair Rental Value shall be equal to the third appraisal. This provision for
determination by appraisal shall be specifically enforceable to the extent such
remedy is available under applicable law, and any determination hereunder shall
be final and binding upon the parties except as otherwise provided by law.
Each party shall bear the costs of its own appraiser, and shall share
equally the cost of a third appraiser, if any.
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CERTIFICATE OF VOTE
-------------------
I, _____________________________, Clerk of ______________________, a
corporation duly organized and existing under the laws of
_________________________ do hereby certify that at a duly called and held
meeting of the Board of Directors of said Corporation, at which a quorum was
present and acting throughout, it was unanimously
VOTED: That this Corporation enter into a lease for the premises at ___________,
Franklin, Massachusetts for a term of ( ) years for such rent and upon
such other terms, provisions and conditions, including rent and
additional rent, as the President, Treasurer or any Vice President of
this Corporation shall, by the execution thereof, determine.
VOTED: That the President, Treasurer or any Vice President of this Corporation
be, and he hereby is, authorized and empowered for and on behalf of this
Corporation, and in its corporate name, to execute, acknowledge, affix
the corporate seal thereto, and deliver a lease pursuant to the foregoing
vote, and such other instruments and documents as may be necessary or
desirable to effectuate the same, upon such terms, provisions, and
conditions as the said officer shall, by the execution thereof,
determine.
I do hereby further certify that _______________________ is the President of
this Corporation and that ________________________ is the Vice President of this
Corporation, and that ________________________ is the Treasurer of this
Corporation, each duly elected, qualified and acting as _______________________
such, that the foregoing votes are in full force and effect as the date hereof,
and that no provision of the charter or By-Laws of this Corporation prohibit,
condition or detract from the authority hereinabove granted.
______________________________________
Clerk
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