EXHIBIT ____
ONE XXXXXXXX SQUARE FIFTH FLOOR LEASE
THIS LEASE dated the'____ day of December, 2005 by and between Xxxx X. Xxxxxxxx,
Trustee of M.P.A. Realty Trust under Declaration of Trust dated June 28, 1979
(hereinafter called the "Landlord") and Technest Holdings, Inc. (hereinafter
called the "Tenant").
WITNESSETH:
Section 1. The Premises.
Landlord hereby lets to Tenant, and Tenant leases from Landlord, upon the
subject to the terms and provisions of this Lease, "as is", that north facing
portion of Unit 5 (hereinafter called the "Leased Premises") in the condominium
known as XxXxxxxx Square Condominium (the "Condominium") situated at 000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, ("the Building"). Landlord hereby represents to
Tenant that the Leased Premises contain approximately 2,079 rentable square
feet.
The Leased Premises are leased with the benefit of and subject to all terms and
provisions of the Master Deed creating the XxXxxxxx Square Condominium
Association, as any of the same may be amended from time to time (the
"Condominium Documents"). In accordance therewith, Tenant shall have the right
to use for its customers, employees, and visitors, in common with other entitled
thereto, the common areas and facilities of the Condominium (the "Common
Elements"), including, without limitation, entrances, elevators, lobbies, egress
corridors and stairways, and restrooms.
Landlord agrees, at its sole cost and expense, to paint the premises, one coat,
a color to be mutually agreed upon.
Section 2. Term.
TO HAVE AND TO HOLD for an initial term of three (3) years commencing January 1,
2006 (the "Commencement Date") and terminating on December 31, 2009 unless
sooner terminated or extended as hereinafter provided.
Section 3. Annual Rent.
(A) Tenant covenants and agrees to pay to Landlord, without setoff or deduction,
except as provided herein, minimum monthly rental during each month of the term
of this Lease according to the following rent schedule:
RENT SCHEDULE
Annually Monthly Per Square Foot
$54,054.00. $4,504.50 $26.00
Rent shall be due and payable in advance on or before the first day of each
calendar month in each successive month of the term and shall be sent to
Landlord at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
(B) Partial Months. Payments for partial months within the term shall be
prorated in the same ratio that the number of days during which Tenant occupies
the Leased Premises in any such month bears to the number of days in said month,
without allowance for weekends or holidays. Tenant's obligations to pay rent or
to make any other payments or to fulfill any other obligations under this Lease
shall terminate on the day following the date on which tenant if not in default
vacates the Leased Premises at the expiration or earlier termination of the
term, and all monetary obligations created this Lease shall be prorated through
the date on which the Tenant shall have so vacated the Leased Premises.
Section 4. Additional Rent.
Tenant shall pay, as additional rent during the term and any extensions, within
thirty (30) days of billing by Landlord, Landlord's expenses for operating
expenses, property taxes and condominium fees and charges as set forth in this
section, except that property taxes shall be paid as set forth in Section 4(B).
(A) Operating Costs, Condominium Fees and Charges.
Tenant's proportionate share is equal to the ratio of the area of the leased
premises to the entire area of Unit 5 as follows: 2,079 to 4532, or 45.87%.
For the purposes of this Section 4(A), the following definitions shall apply:
(1) The term "Base Year" shall mean the calendar year ending October 31, 2005.
(2) The term "Operating Costs, Condominium Fees and Charges" shall mean any and
all expenses incurred by Landlord in connection with ownership and maintenance
of the Leased Premises and Unit 5 (excluding interest and amortization of
mortgage debt incurred to purchase, own or maintain the Unit, expenses for
repair or other work occasioned by fire or other casualty covered by a standard
fire insurance policy with extended coverage, interest or late charges by reason
of the failure to pay timely any Operating Costs, Condominium Fees or Charges,
and penalties imposed by the XxXxxxxx Square Condominium Association on Landlord
not caused by any act or omission of Tenant), but including, without limitation,
insurance maintained on the Unit, heating, ventilating and air conditioning
expenses, charges for water, gas and other utilities, fuel oil, cleaning and
maintenance services, management fees, condominium fees and charges and
assessments made by the XxXxxxxx Square Condominium Association.
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Beginning with the month of November, 2006, and thereafter monthly throughout
the term Tenant shall pay to Landlord, together with other rental due hereunder,
a sum equal to 1/12 of Tenant's proportionate share of the amount, if any, by
which Landlord's reasonably estimated Operating Costs, Condominium Fees and
Charges for the ensuing 12 months (or, if the lease term then in effect expires
in less than 12 months, for the period ending with the expiration of the lease
term) will exceed those of the Base Year. Such estimate shall be based on the
Base Year's Operating Costs, Condominium Fees and Charges, with a reasonable
amount to cover known increases in Base Year Operating Costs, Condominium Fees
and Charges for the ensuing year.
Within ninety (90) days of the expiration of each calendar year Landlord shall
furnish to Tenant a statement setting forth the actual Operating Costs,
Condominium Fees and Charges for such calendar year. In the event such statement
discloses that the additional rent paid by Tenant is greater or less than the
increase actually incurred, either Landlord shall credit Tenant such amount in
respect of rental payments next becoming due at the time Landlord delivers such
statements, or Tenant shall pay such amount within twenty (20) days after
receipt of such statement. If the term of this Lease shall have expired and such
statement shall indicate that Tenant has paid more than its proportionate share
(as required to be calculated pursuant to the foregoing) of increased Operating
Costs, Condominium Fees and Charges, Landlord shall credit the excess against
any amounts then due and owing to Landlord under this Lease, and shall pay any
further amounts to Tenant.
(B) Property Taxes. For the purpose of this Section 4(B), the following
definitions shall apply:
(1) The term "Tax Year" shall mean each twelve (12) month period commencing on
July 1 during each year of the term hereof.
(2) The term "Taxes" shall mean all taxes, assessments and betterments levied,
assessed or imposed at any time during the term by any governmental authority
upon or against Unit 5 or taxes in lieu thereof, expressly excluding taxes on
any capital improvements made by Landlord or Tenants to portions of Unit 5 which
are not part of the Leased Premises. If, at any time during the term of this
Lease, any tax or excise on rents or other taxes, however described, are levied
or assessed against Landlord with respect to the rent reserved hereunder, either
wholly or partially in substitution for, or in addition to, real estate taxes
assessed or levied on Unit 5, such tax or excise on rents shall be included in
Taxes; however, Taxes shall not include franchise, estate, inheritance,
succession, capital levy, transfer, income or excess profits taxes assessed on
Landlord.
(3) The term "Base Taxes" shall mean the taxes for the municipal tax year
beginning July 1, 2005 and ending June 30, 2006. Base Taxes are to be calculated
without giving effect to any abatement.
If Taxes assessed for any Tax Year beginning after June 30, 2006 shall exceed
the Base Taxes, whether due to increase in rate or re-assessment of Xxxx 0, the
Tenant shall reimburse Landlord for its proportionate share of any such
increase, said share to be equal to the ratio of the Lease Premises to the
entire area of Unit 5 as follows: 2,079 to 4532 or 45.87% therefor of any such
excess (the "Tax Excess"), payment of which shall be made to Landlord at least
ten (10) days prior to the date or dates within any year during the term hereof
that the same, or any fractional share thereof, shall be due and payable to any
governmental authority responsible for collection of same (as stated in written
notice to Tenant given at least twenty (20) days prior to the date or dates any
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such payment shall be due, which notice shall set forth the manner of
computation of any Tax Excess due from Tenant). At Landlord's election, on the
first day of each calendar month of any Tax Year beginning after June 30, 2006,
Tenant shall remit to Landlord one-twelfth of the Tax Excess. If the total of
such monthly remittances is greater than the Tax Excess for the next succeeding
Tax Year, Landlord shall credit the difference against the next installment of
rental or other charges due to Landlord hereunder; if the total of such
remittances is less than the Tax Excess for such next succeeding Tax Year,
Tenant shall pay the difference to Landlord at the time any Tax Excess becomes
due and payable as hereinabove provided.
If, after Tenant shall have made any reimbursement to Landlord pursuant to this
Section 4(B), Landlord shall receive a refund of any portion of Taxes paid with
respect to any Tax Year during the term hereof as a result of an abatement of
such Taxes by legal proceedings, settlement or otherwise (without either party
having any obligation to undertake any such proceedings), Landlord shall pay or
credit to Tenant the portion of such refund (less the proportional, pro rata
expenses, including attorneys' fees and appraisers' fees, incurred in connection
with obtaining any such refund), related to any Tax Excess paid by Tenant to
Landlord with respect to any Tax Year for which such a refund is obtained.
In the event this Lease shall commence, or shall end (by reason of expiration of
the term or earlier termination pursuant to the provisions hereof), on any date
other than the first or last day of the Tax Year, or should the Tax Year or
period of assessment of real estate taxes be changed or be more or less than one
(1) year, as the case may be, then the amount of Tax Excess which may be payable
by Tenant as provided in this Section 4(B) shall be appropriately apportioned
and adjusted.
(C) Electricity and Gas
Tenant shall pay for all electricity and gas charges related to its use and
occupancy of the Leased Premises. Tenant shall promptly pay Tenant's
proportionate share of the bills received each month by Landlord for electricity
and gas for Unit 5. If Landlord determines that Tenant's use of electricity or
gas is excessive, Tenant shall install a sub-meter(s) at its sole cost and
expense, and its share of the bills received shall be based upon the reading(s)
of the sub-meter(s).
Section 5. Use of Leased Premises. The Leased Premises are leased, and other
rights set forth herein are granted, subject to the Condominium Documents and to
mortgages and restrictions of record. The Leased Premises are to be used solely
for general office purposes and not for any other purposes and without annoyance
to or disruption of other occupants of the Building. Tenant's use shall not
exceed one (1) person for each two hundred (200) square feet of the Leased
Premises, or ten (10) persons. Tenant will not permit smoking in the leased
premises or in any part of the common areas of Unit 5.
Section 6. Tenant's Covenants. Tenant covenants with Landlord, during the term
and for such further time as Tenant or anyone claiming by, through or under
Tenant shall hold the Leased Premises or any part thereof:
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(A) To pay promptly the annual rent and additional rent provided for herein and
any other charges payable by Tenant to Landlord at the address from time to time
designated for the sending of notices to Landlord at the times and in the manner
herein set forth; in the event any monthly payment due under the lease is not
paid within 5 days of the due date, in addition to all other sums due, a late
payment of 4% of such payment shall be due.
(B) Not to perform any renovation or construction to the Leased Premises nor to
erect any signs or other additions or structures in the Leased Premises nor to
make or any other alterations or additions to the Leased Premises (including,
without limitation, the installation of any signs or draperies in any windows of
the Leased Premises), except as herein expressly set forth; provided, however,
Tenant may make minor alterations or leasehold improvements to the Leased
Premises neither reducing the value of the Building nor impairing its structural
strength if Landlord's prior written approval is obtained in each such instance
(not to be unreasonably withheld). Tenant may install equipment which does not
damage the Leased Premises without first obtaining Landlord's consent. Any such
alterations, improvements, installations or addition as shall be made at
Tenant's sole risk and expense. Landlord hereby expressly consents to Tenant
installing reasonable interior signs with the names of Tenant and any sublessee
of Tenant. Landlord further agrees that it shall use reasonable efforts to
install or cause to be installed nameplates in the lobby directory of the
Condominium with the names of Tenant and Tenant's sublessee, all at Tenant's
expense.
Tenant may make non-structural alterations which do not reduce the value of the
Leased Premises, provided that Tenant shall remove such alterations and, at
Landlord's option, restore the Leased Premises as they were prior to said
alterations at the expiration or termination of this lease, and permit no liens
to attach to the Leased Premises on account of such alterations.
(C) Not to place any load upon any floor of the Leased Premises which exceeds
the rated capacity of the floor in question, nor to otherwise overload or deface
the Leased Premises or Building, nor permit any use, alteration or repair
contrary to law, the Condominium Documents, or any lawful ordinance, by-law,
regulation or order of any public authority.
(D) To save Landlord harmless and to exonerate and indemnify Landlord from and
against any and all claims, liabilities or penalties asserted by or on behalf of
any person, firm, corporation or public authority on account of injury, death,
damage or loss to person or property in or upon the Leased Premises or the
building arising out of any act or omission of Tenant or as a result of any use
or occupancy of, or passage and travel over or upon, the Leased Premises or the
Building by the Tenant or by any person claiming by, through or under Tenant
(including, without limitation, all servants, employees, agents, contractors,
customers, patrons, invitees, licensees or visitors, of Tenant), or arising out
of any delivery to or service supplied to the Leased Premises, or on account of
or based upon anything whatsoever done on the Leased Premises, except if same
was caused by the negligence, fault or misconduct of Landlord, its agents,
servants, or employees; and, if required by law, to keep all Tenant's employees
working in or about the Leased premises covered by Workmen's Compensation
Insurance and upon request of Landlord to deliver certificates evidencing said
coverage. With respect to all of the foregoing, Tenant shall indemnify Landlord
from and against all costs, expenses (including reasonable attorneys' fees), and
liabilities incurred in or in connection with any such claim, Tenant, upon
notice from Landlord and at Tenant's expense, shall resist or defend such action
or proceeding and employ counsel therefor reasonably satisfactory to Landlord.
Tenant's obligation to save Landlord harmless and exonerate and indemnify
Landlord is limited to those claims, liabilities or penalties due to acts or
omissions of Tenant, its agents, servants, employees, or contractors.
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Landlord shall save Tenant and its partners, stockholders (if any), directors,
officers, and employees harmless and exonerate and indemnify them from and
against any and all claims, liabilities or penalties asserted by or on behalf of
any person, (including but not limited to Tenant and such persons) firm,
corporation or public authority on account of injury, death, damage or loss to
person or property in or about the Leased Premises arising out of any act or
omission of Landlord, its partners, stockholders, agents, employees and
contractors. In case of any action or proceeding brought against Tenant or its
partners, directors, officers, or employees, Landlord, on notice from Tenant and
at Landlord's expense, shall resist or defend such action or proceeding and
employ counsel reasonably satisfactory to Tenant.
(E) To carry and maintain, throughout the term hereof, at its own cost and
expense, public liability insurance (containing standard extended coverage
endorsements, so-called covering the Leased Premises (and the Building, insofar
as used by customers, employees, servants or invitees of the Tenant), naming
Tenant and Landlord as insured parties, in such companies as are reasonably
satisfactory to the Landlord, in amounts not less than $1,000,000 for injury or
death to any one person, and an aggregate amount of not less than $2,000,000 for
any one accident, and $500,000 for damage to property, which insurance shall
provide that such insurance may not be cancelled or terminated without at least
twenty (20) days' prior notice to Landlord. Certificates evidencing such
insurance coverage shall, upon Landlord's request, be promptly delivered to
Landlord.
(F) That any and all property of Tenant of any kind that may be in the Leased
Premises or the Building shall be at the sole risk of Tenant or those claiming
through or under Tenant, and that in no case whatsoever shall Landlord (or those
having estate in the Unit) be liable to Tenant, or any other person, for any
injury, death, loss or damage to any person or property in the Building or the
Leased Premises except if caused by the gross or willful negligence or
misconduct of Landlord or Landlord's agents or employees.
(G) Not to mortgage, pledge or encumber this Lease. Not to sublet or assign any
part of the Leased Premises without, on each occasion, obtaining the prior
written consent of Landlord, which consent Landlord agrees not to unreasonably
withhold or delay, expressly providing that Tenant may sublease individual
office areas within the Leased Premises not exceeding 40% of the Leased Premises
nor to more than two unaffiliated entities. (As used herein, the term "assign"
or "assignment" shall be deemed to include any transfer of Tenant's interest in
the Lease by operation of law, the merger or consolidation of Tenant with or
into any other firm or corporation, or the transfer or sale of a controlling
interest in Tenant.) The consent by Landlord to any such assignment or
subletting shall not constitute a waiver for the necessity of such consent with
respect to any subsequent assignment or subletting. in the event of any
assignment or subletting by Tenant, Tenant shall remain liable for the payment
of any and all rents and other payments and charges which may become due
hereunder and for the performance of all other covenants, agreements, and
conditions on the part of Tenant to be performed hereunder. No such assignment
shall be valid or effective unless and until the assignee shall covenant in
writing with Landlord, to the satisfaction of Landlord, to be bound directly to
Landlord for the performance of all Tenant covenants herein contained.
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(H) Not to permit anything to be done in or upon the Leased Premises or the
Building, or to bring or keep anything therein or thereof (including, without
limitation, all furnishings, carpeting and wall coverings), except as now or
hereafter permitted by the Condominium Documents, applicable building, fire,
health, sanitary or safety codes, ordinances, or by-laws, or by any public
authority (including, without limitation, the Boston Fire Department, Board of
Fire Underwriters, or by any fire insurance rating organization or other
authority having jurisdiction of the Property); Tenant shall not use the Leased
Premises in a manner which shall increase the rate of fire, casualty or extended
coverage insurance maintained on the Leased Premises or on property located
therein by the Landlord over the rate in effect as of the Commencement Date; and
Tenant shall, upon request of Landlord and at Tenant's expense, carry "contents
and improvements" casualty insurance. If, by use of the Leased Premises or by
reason of failure of Tenant to comply with the provisions of this Section 6(H),
the fire, casualty or extended coverage insurance rates effective with respect
to the Leased Premises shall be higher than such rates otherwise would have
been, then Tenant shall, upon demand, reimburse Landlord, as additional rent
hereunder, for that part of all such insurance premiums thereafter paid by
Landlord which shall be charged because of such failure to use by Tenant (a
schedule or "make up" of rate for the Leased Premises issued by the Fire
Insurance Exchange, or any other body making such insurance rates for the
Property, being conclusive evidence of the facts therein stated and of the
several items and charges in such insurance rates then applicable to the Leased
Premises), and shall make such reimbursement upon the first day of the month
following such outlay by Landlord; but if the use or occupancy of the Leased
Premises by Tenant shall make void or voidable any such insurance coverage then,
at the option of the Landlord, this Lease may be terminated. That the Leased
Premises are being used for the purposes authorized in this Lease shall not
relieve Tenant from the foregoing duties, obligations arid expenses.
(1) To permit the Landlord, its agents or representatives, upon prior notice, to
view or examine the Leased Premises or any part thereof, to show the Leased
Premises to others, to make improvements, and to make repairs and replacements
to preserve the Leased Premises.
(J) To comply with the Condominium Documents as if all such Documents were set
forth in this Lease at length. A set of such Documents, as currently in effect,
are available to Tenant upon request. Landlord shall not be responsible to
Tenant or to Tenant's servants, employees, agents, contractors, customers,
patrols, invitees, licensees or visitors for failure to enforce any provisions
thereof or for the non-observance or violation thereof by the owner of any other
Unit in the Condominium, by any other tenant, or by any other person.
(K) To maintain the Leased Premises neat and clean and in such repair, order and
condition as the same are in on the Commencement Date or may be put in during
the term hereof, reasonable use and war thereof and damage by fire or by
reasonably unavoidable casualty taking by eminent domain, and obligations
assumed by Landlord herein only excepted; and to make as and when needed all
repairs in and about the Leased Premises necessary to preserve them in such
repair, order and condition, which repairs shall be in quality and class equal
to the original work.
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(Landlord, upon prior notice to Tenant, may elect, at the expense of Tenant, to
make any such repairs or to repair any damage or injury to the Leased Premises
caused by moving property of Tenant in or out of the Leased Premises or by
installation or removal of furniture or other property, or by misuse by, or
neglect, or improper conduct of; Tenant or Tenant's servants, employees, agents,
contractors, customers, patrons, invitees, licensees, or visitors.) Tenant
shall, on or before the expiration of the term, remove Tenant's signs, goods,
personal property, trade fixtures and equipment used in the conduct of Tenant's
business not servicing or affixed to the Leased Premises, and will repair, prior
to the expiration of the term, any damage or injury to the Leased Premises
caused by such removal.
Section 7. Landlord's Obligations. If at Tenant's request Landlord performs any
work for Tenant, Tenant shall pay Landlord for Landlord's cost for such work.
The Landlord covenants during the Term of this Lease to maintain at its expense,
subject to the provisions of Section 4(A)(2), the heating, ventilating and air
conditioning equipment supplying the Leased Premises, and to do the cleaning of
Unit 5.
Section 8. Waiver of Subrogation. Landlord and Tenant mutually agree that
(insofar as and to the extent that such agreement may be effective without
invalidating or making it impossible to secure insurance coverage obtainable
from responsible insurance companies doing business in the Commonwealth of
Massachusetts) with respect to any loss which is covered by insurance then being
carried by Landlord or Tenant, respectively, the party carrying such insurance
and suffering said loss releases the other of and from any and all claims with
respect to such loss; and they further mutually agree that their respective
insurance companies shall have no right to subrogation against the other on
account thereof; even though extra premium may result therefrom. In the event
that extra premium is payable by Tenant as a result of this provision, Landlord
shall not be liable for reimbursement to Tenant for such extra premium.
Section 9. Alterations, Installation and Work Done to Leased Premises.
(A) All repairs, alterations, additions and restorations required or permitted
hereunder by Tenant or Landlord shall be done in a good and workmanlike manner
and in compliance with all applicable laws and lawful ordinances, permits,
by-laws, regulations and orders of governmental authority and insurers of the
Property. All improvements, alterations and additions to the Leased Premises,
and to fixtures and equipment serving it, made or installed at any time by
either Landlord or Tenant shall be part of the Leased Premises but not signs,
office furnishings, equipment or trade fixtures installed by Tenant and used in
Tenant's business arid not servicing, or not affixed or secured to, the Leased
Premises, nor any additional or equipment installed at Tenant's expense which
Landlord has agreed in writing prior to installation may be removed by Tenant.
(B) Each party doing any construction or other work covenants to promptly pay
for it, unless otherwise provided in this Lease, and to bond or discharge
promptly any mechanics or other liens or claims arising from the same.
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Section 10. Casualty and Taking.
(A) Complete Taking; Partition, etc., If the entire Building shall be taken by
any exercise of the right of eminent domain, or if the entire Building shall be
destroyed by reason of damage from fire or other casualty, or by account of any
public or quasi-public authority, or in the event of a partition sale of the
Condominium or purchase of the Leased premises or the Unit by the Board of
Managers of the Condominium Association (the "Board of Managers"), then this
Lease shall terminate as of the effective date of such taking or as of the
effective date of such damage, sale or purchase. If the Building shall be
substantially damaged by reason of fire or other casualty, or by the action of
any public or quasipublic authority, then this Lease may be terminated by
Landlord as of the date of such damage or action by a written notice to Tenant
within sixty (60) days of the date of such damage or action or by Tenant by
written notice to Landlord.
(B) Destruction of or Damage to Premises Leased to Tenant. If the entire Leased
Premises shall be damaged and rendered untenantable by reason of damage from
fire or casualty, then this Lease may be terminated by either Landlord or
Tenant, as of the date of such damage, by written notice to the other within
sixty (60) days of the date of such damage; provided, however, Tenant may not so
terminate this Lease if Landlord, within sixty (60) days of the date of damage,
gives Tenant written notice of its intention, subject to the terms and
conditions of Subsection (E) hereof, to restore the Leased Premises for use and
occupancy by Tenant. If the Lease is not so terminated, a just proportion of the
rent due hereunder shall be abated according to the nature and extent of the
damage from the date of such damage until the Leased Premises shall have been
restored to proper condition for use and occupancy. If a portion of the Leased
Premises is so damaged, but the remaining portion is suitable for the continued
conduct of Tenant's business, then Tenant shall have no right to terminate this
Lease, but a just proportion of the rents due hereunder shall be abated
according to the nature and extend of the damage from the date of such damage
until the damaged portion of the Leased Premises shall have been restored to
proper condition for use and occupancy.
(C) Partial Taking and Temporary Taking of Leasing Premises. If a portion, but
not all, of the building or the Unit shall be taken by any exercise of the right
of eminent domain, such partial taking such be considered to be damage to a
portion of the Leased Premises and treated in accordance with Subsection (B)
hereof unless or until it results in a partition sale of the Condominium or a
purchase of the Leased Premises or the Unit by the Board of Managers, in which
case such partial taking shall be treated in accordance with Subsection (A)
hereof. If all of the Building, Unit or Property shall be treated in accordance
with Subsection (B) hereof if the taking lasts for three (3) months or less, and
in accordance with Subsection (A) hereof if the taking lasts in excess of three
(3) months.
(D) Condemnation Awards. In the event of any taking, partition sale, or purchase
of the Leased Premises by the Board of Managers, Landlord shall be entitled to
receive the entire amount to which the owner of the Unit is entitled under the
By-Laws of the Condominium Association and M.G.L. c. 183A, and Tenant hereby
waives all rights relating to damages to the Leased Premises, the Building or
the leasehold hereby created; provided, however, Tenant shall be entitled to and
does not waive its rights with respect to any special damages expressly awarded
to Tenant by the taking authority with respect to Tenant's loss of fixtures,
leasehold improvements, or relocation expenses.
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(E) Restoration of Premises Leased to Tenant. In the event of damage to or a
partial taking of the Property, Building, Unit or Leased Premises which does not
result in a termination of this Lease as aforesaid, Landlord shall have no
obligation to repair and restore the walls, ceilings, floors, doors or windows
of or within the Leased Premises or any electrical, plumbing, heating and air
conditioning equipment or fixtures within the Leased Premises (the "Unit
Improvements") unless the Board of Managers shall have first repaired and
restored the building and the Unit pursuant to Article VI, Section 8 of the
By-Laws of the condominium Association. Upon completion of such repair and
restoration by the Board of Managers, Landlord shall promptly commence repair
and restoration of the Unit Improvements to the condition thereof prior to such
damage or partial taking, subject to reduction in size caused by any partial
taking (the "Landlord's Repairs and Restoration"). Landlord's Repair and
Restoration shall be completed by Landlord as rapidly as is reasonably
practicable, at Landlord's expense, subject to reasonable delays which may arise
by reason of adjustment of insurance on the part of Landlord, labor troubles,
shortages of materials, or any other cause beyond Landlord's control.
Substantial completion of Landlord's Repairs and Restoration shall, in any
event, be completed within 180 days after the same commenced. Landlord shall not
be liable for any inconvenience or annoyance to Tenant, or for any injury to the
business of Tenant, resulting from delays in repairing such damage.
Section 11. Tenant Default.
(A) In the event any default by Tenant continues, in case of rent, for more than
five (5) days after due, or in case of any other default, for more than twenty
(20) days after written notice thereof to Tenant from Landlord (unless Tenant
has, within said twenty (20) day period, commenced to cure such default and
thereafter prosecutes the curing of such default to completion with due
diligence), or if Tenant makes any assignment for the benefit of creditors,
commits any act of bankruptcy or files a petition under any bankruptcy or
insolvency law, or if such a petition filed against Tenant is not dismissed
within sixty (60) days, or if a receiver or similar officer becomes entitled to
the leasehold and it is not returned to Tenant within sixty (60) days, or if
Tenant's interest in this Lease is taken on execution or other process of law in
any action against Tenant, then, in any such instance, Landlord may, immediately
or at any time thereafter (notwithstanding any license, consent or waiver of any
former breach), and without demand or notice, in person or by agent or attorney,
enter the Leased Premises or any part thereof and repossess the same as of its
former estate, or terminate this Lease by written notice to Tenant and, in
either event, expel Tenant and those claiming through or under it, and remove
their effects (forcibly, if necessary), without being deemed guilty of any
manner of trespass and without prejudice to any remedy which otherwise might be
available for arrears of rent or breach of covenant and, upon entry or notice as
aforesaid, this Lease shall terminate and Landlord, in addition to all other
remedies which it may have at law or in equity, shall have the remedies provided
in Section 12 hereof.
Tenant hereby waives and surrenders all rights and privileges which it might
have under or by reason of any present or future law to redeem the Leased
Premises, or to have continuance of this Lease for the term hereby leased, after
being dispossessed or ejected therefrom by process of law or under the terms of
this Lease, or after the termination of this Lease, as herein provided.
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Section 12. Landlord's Remedies. The following terms and provisions of this
Section 12 are, and shall be, applicable only in the event of Tenant default
pursuant to Section 11 hereof.
(A) If this Lease shall be terminated as provided in Section 11 hereof; in
addition to all sums which were due prior to the date of such termination,
Tenant shall, upon the election of the Landlord, forthwith pay to Landlord as
damages, a sum equal to the amount by which the amount of rent which would have
been paid in accordance with this Lease for the remainder of the original term
hereof (as set forth in Section 2 hereof) exceeds the fair market rental value
of the Leased Premises for the remainder of the term, estimated as of the date
of the termination. Should the parties be unable to agree on a fair market rent,
the matter shall be submitted, upon the demand of either party and at the
expense of the Tenant, to the Boston office of the American Arbitration
Association, with a request for arbitration by a single arbitrator, in
accordance with the rules of the Association. Landlord and Tenant agree that a
decision of the arbitrator shall be conclusive and binding upon them.
Alternatively, if, at the end of the term of this Lease as set forth in Section
2 hereof; the rent which Landlord receives from the Leased Premises is less than
the fair market rent estimated as aforesaid, Tenant shall thereupon pay to
Landlord the amount of such difference. Should Landlord fail to make such an
election, Tenant shall indemnify Landlord of the loss of rent by a payment at
the end of each month for the then current term, representing the difference
between the rent which would have been paid (minimum and additional rents) and
the rent actually derived from the Leased premises, by Landlord, for such month.
(B) In lieu of any other damages or indemnification and in lieu of recovery by
Landlord of all sums payable under any of the foregoing provisions of Section
12(A), Landlord may elect to recover, and Tenant shall forthwith pay, as
liquidated damages, an amount equal to the aggregate of the minimum annual rent
plus any additional rents (including, without limitation, amounts for Tax
Excess) due and payable by Tenant for the then current term next prior to such
termination (plus the amount of minimum annual and additional rents of any kind
accrued and unpaid at the time of termination) and less the amount of any
recovery by Landlord under the foregoing provisions of Section 12(A) up to the
time of payment of such liquidated damages. This Subsection (B) shall be
inapplicable in the event termination pursuant to section 11 hereof occurs
within the last year of the term hereof
(C) In addition to the foregoing, Tenant also agrees (a) to indemnify and save
Landlord harmless from and against all reasonable expenses and attorneys' fees
which Landlord may incur in connection with such termination and the cost of
putting the Leased Premises in good order or preparing the same for re-rental,
and (b) that Landlord may re-let the Leased Premises, or any portion thereof;
for a period which may at Landlord's option, be less than or exceed the period
which would otherwise have constituted the balance of the term, and may grant
concessions or free rent. Any suit brought to collect the amount of deficiency
for any month shall not prejudice in any way the right to Landlord to collect
the deficiency for any subsequent month by a similar proceeding. Landlord may
make such alterations, repairs, replacements and decorations to the Leased
Premises as Landlord, in Landlord's reasonable judgment, considers advisable and
necessary for the purpose of re-letting the Leased Premises.
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(D) In the event of any default by Tenant hereunder, Tenant will reimburse
Landlord for all expenses and reasonable attorneys' fees incurred by Landlord in
collecting any amount due from Tenant, curing any default of Tenant or in
obtaining possession of, or in re-letting, the Leased Premises; and tenant shall
pay all reasonable attorneys' fees and expenses arising out of any litigation in
which Landlord shall become involved by reason of any default, act or failure to
act, or negligence of Tenant or anyone acting under Tenant. Tenant further
agrees that if, on termination of this Lease by expiration or otherwise, Tenant
shall fail to remove any of its property from the Leased Premises, Landlord
shall be authorized, at its sole option, and in Tenant's name and on its behalf,
either (a) to cause such property to be removed and placed in storage for the
account of and at the expense of Tenant, or (b) to sell such property at public
or private sale (at which Landlord may be a purchaser), with or without notice,
and to apply the proceeds thereof, after the payment of all expenses of removal,
storage and sale, to the indebtedness, if any, of Tenant to Landlord, the
surplus, if any, to be paid to Tenant.
(E) In addition to all other remedies provided in this Lease, Landlord shall be
entitled to restrain by injunction any violation, or any attempted or threatened
violation, of any of the covenants, conditions, or provisions of this Lease.
(F) No act or thing done by Landlord during the term hereof shall be deemed an
acceptance or a surrender of the Leased Premises and no agreement to accept such
surrender shall be valid, unless in writing signed by Landlord. The delivery of
keys to any employee of Landlord or of Landlord's agents shall not operate as a
termination of the Lease or a surrender of the Leased Premises.
Section 13. Cumulative Remedies. The specified remedies to which Landlord may
resort under the terms of this Lease are cumulative, are not intended to be
exclusive of any other remedies or means of redress to which Landlord may be
lawfully entitled in case of any breach or threatened breach by Tenant of any
provision of this Lease, and are in addition to any now or hereafter existing in
law, in equity, or by statute.
Section 14. Interest Due on Tenant Defaults. If Tenant fails to pay the full
amount of any rent or additional rent or to make any other payment required
after any applicable grace period, or to perform any act required of Tenant
hereunder after any applicable grace period, Landlord shall have the right to
collect the amount of such over due payment or to perform such act on behalf of
Tenant and to collect from Tenant interest at the rate of twelve percent (12%)
per annum computed on the amount of such payment or the cost of such performance
on behalf of Tenant.
Section 15. Holdover. If the Tenant remains in the Leased Premises beyond the
expiration of this Lease, such holding over shall be without right and shall not
be deemed to create any tenancy, but the Tenant shall be a tenant at sufferance
only at a daily rate of rent equal to two (2) times the rent (annual and
additional) and other charges in effect and/or due from Tenant under this Lease
as of the day next prior to the date of expiration of this Lease.
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Section 16. Subordination of Lease. Tenant agrees that upon request of Landlord,
Tenant will subordinate this Lease and the lien hereof to the lien of any
present or future mortgage or mortgages (including, without limitation,
leasehold mortgages) upon the Leased Premises, irrespective of the time of
executive or time of recording of any such mortgage or mortgages. Tenant agrees
that it will, upon request of Landlord, execute, acknowledge and deliver any and
all instruments deemed necessary or desirable by Landlord to give effect to, or
notice of, such subordination, provided only that such mortgagee enters into an
agreement with Tenant which provides that such mortgagee will not disturb the
possession and all other rights of Tenant under this Lease and that such
mortgagee will accept Tenant as a tenant of the Leased Premises under the terms
and conditions of this Lease in the event of acquisition of title to the Leased
Premises by said mortgagee through foreclosure proceedings or otherwise, so long
as Tenant performs its obligations hereunder, agrees to recognize the holder of
such mortgage as the Landlord in such event, and agrees to attorn to the holder
of same; such agreement shall be expressly binding upon the successors and
assigns of Tenant and of any such mortgagee and upon anyone purchasing the
Leased Premises at a foreclosure sale. Tenant and Landlord agree to execute,
acknowledge and deliver any appropriate instruments necessary to carry out the
agreements contained herein.
Section 17. Covenant of Quiet Enjoyment; Landlord's Right to Make Alterations or
Improvements to the Property. Tenant, on payment of the rents and other charges
payable hereunder, and upon performance of the covenants of this Lease on its
part to be performed, shall and may peaceably and quietly have, hold and enjoy
the Leased Premises for the term of this Lease; provided, however, Landlord
reserves the right at any time and from time to time, without the same
constituting breach of Landlord's covenant of quiet enjoyment or an actual or
constructive eviction, and without incurring any liability to Tenant or
otherwise affecting Tenant's obligations under this Lease, to make such changes,
alterations, improvements, repairs or replacements in or to the Leased Premises
and the fixtures and equipment thereof as Landlord may deem necessary or
desirable; provided further, however, that there be no unreasonable obstruction
of the rights of access to the Leased Premises by Tenant. Nothing contained in
this Section 17 shall be deemed to relieve Tenant of any duty, obligation or
liability of Tenant with respect to making any repair, replacement or
improvement or complying with any law, order or requirement of any governmental
or other authority.
Section 18. Estoppel Certificate. Landlord and Tenant agree, at any time and
from time to time, upon not less than ten (10) days' prior written request by
the other, to execute, acknowledge and deliver to the requesting party a
statement in writing certifying (if such be the case) that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the same are in full force and effect as modified and stating the
modifications), that to the knowledge of such party no uncured defaults exist
hereunder (or if any defaults exist, specifying the same), and the dates to
which the rent and other charges due hereunder have been paid in advance, if
any, it being intended that any such statement delivered pursuant to this
Section 18 may be relied upon by any prospective purchaser or by any mortgagee
or assignee of any mortgage upon the Leased Premises.
Section 19. Notices and Approvals. All notices, requests, demands, consents,
elections, approvals, and other communications which may be or are required to
be served or given hereunder (hereinafter collectively called "Notices") shall
be in writing and shall be delivered in hand or sent by postage prepaid first
class mail, or by registered or certified mail, return receipt requested, to
Landlord and/or Tenant at Xxx XxXxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. Any
notice of default shall be clearly labeled "Urgent" and such notice shall
specify with particularity the default complained of, and citing the specific
lease provision in question. Each party agrees upon request of the other
immediately to acknowledge any such hand delivery.
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Either party may, by Notice given as aforesaid, change its address for all
subsequent Notices, except that neither party may require Notices to it to be
sent to more than two (2) addresses. Notice shall be deemed given when mailed in
the manner aforesaid provided they are received in due course.
Section 20. Non-Waiver Provision. No assent, express or implied, by either party
to any breach of any agreement or condition herein contained on the part of the
other to be performed or observed, and no waiver, express or implied, of any
such agreement or condition, shall be deemed to be a waiver of or assent to any
succeeding breach of the same or any other agreement or condition. The
acceptance by Landlord of rent or other payment hereunder, or silence by
Landlord as to any breach, shall not be construed as a waiver of any of the
Landlord's rights hereunder unless such waiver of any of the Landlord's rights
hereunder unless such waiver shall be in writing. No payment by Tenant or
acceptance by Landlord of a lesser amount with an endorsement or statement
thereon, or in a writing accompanying such check, that said lesser amount is
payment in full shall not be deemed an accord and satisfaction, and the Landlord
may accept such check without prejudice to recover the balance due or to pursue
any other remedy.
Section 21. Inability to Perform - Exculpatory Clause.
Except as otherwise expressly provided herein, the failure of either party
hereto to perform the obligations, covenants and agreements herein contained
shall be temporarily excused during such period as the party failing to perform
is unable to so perform by reason of strikes or labor troubles, conditions of
supply and demand, or any other similar or dissimilar cause whatsoever
(including, but not limited to, governmental preemption in connection with a
national emergency or by reason of any rule, order or regulation of any
governmental agency or any department or subdivision thereof); provided,
however, Tenant shall not be excused from its obligations hereunder to pay
rental, additional rental and other monetary obligations by reason of any of the
foregoing matters contained in this Section 21; and provided further, however,
that in each such instance of inability of either party to perform, the
non-performing party shall exercise due diligence to eliminate the cause of such
inability to perform, to secure alternate sources of supply and the like.
Section 22. Limitation of Liability.
(A) Limitation of Landlord's Liability. The term "Landlord", as used in this
Lease, so far as covenants or obligations to be performed by Landlord are
concerned, shall be limited to mean and include only the owner or owners at the
time in question of the Leased Premises, and in the event of any transfer or
transfers of title to the Leased Premises, the Landlord herein named (and in
case of any subsequent transfers or conveyances, the then grantor) shall be
automatically freed and relief from and after the date of such transfer or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of the Landlord contained in this Lease thereafter to be
performed, it being intended hereby that the covenants and obligations contained
in this Lease on the part of Landlord shall, subject as aforesaid, be binding on
the Landlord, its successors and assigns, only during and in respect of their
respective successive periods of ownership of the Leased Premises. Tenant, its
successors and assigns, agrees it shall not assert nor seek to enforce any claim
for breach of this Lease against any of Landlord's assets other than Landlord's
interest in the Leased Premises and in the rents, issues and profits thereof,
and Tenant agrees to look solely to such interest for the satisfaction of any
liability of or claim against Landlord under this Lease, it being specifically
agreed that in no event whatsoever shall Landlord (which term shall include,
without limitation, any beneficiary of any trust of which Landlord is a trustee)
ever be personally liable for any such liability.
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Section 23. Entire Agreement. This Lease sets forth the entire agreement between
the parties hereto and cannot be modified or amended except in writing duly
executed by both parties hereto.
Section 24. Partial Invalidity. The invalidity of one or more of the provisions
of this Lease shall not affect the remaining portions of this Lease; and, if any
one or more of the provisions of this Lease should be declared invalid by final
order, decree or judgment of a court of competent jurisdiction, this Lease shall
be construed as if such invalid provisions had not been included in this Lease.
Section 25. Execution; Headnotes. The covenants and agreements of this Lease
shall, subject to the terms of this Lease to the contrary, be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, as the case may be. This Lease may be executed in one or more
counterparts, all of which are identical, any one of which is to be deemed to be
complete in itself and may be introduced in evidence or used for any purpose.
The headnotes 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.
Section 26. No Brokerage. Tenant acknowledges that it has dealt with no broker
in the negotiation of this lease other than Boston Realty Advisors. Tenant
agrees to indemnify Landlord from any and all claims brought against Landlord by
any broker claiming a commission due through the Tenant other than Boston Realty
Advisors.
Section 27. Security Deposit. Tenant shall pay two (2) month's rent, nine
thousand and ninety one dollars and thirty four cents ($9,064.34) as a security
deposit to Landlord on or before January 1, 2006 which shall be returned to
Tenant at the termination of this lease provided all of Tenant's obligations
under this lease have been satisfied.
WITNESS the execution hereof as a sealed instrument as of the date first above
written.
LANDLORD:
Xxxx X. Xxxxxxxx, Trustee of M.P.A. Realty Trust
Trustee and not individually
TENANT:
/'s/ Xxxxxx X. Xxxxxx
President
Technest Holdings, Inc.
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