Exhibit 10.9
LEASE AGREEMENT
ARTICLE I - PARTIES
This Lease Agreement (hereinafter "Lease" or "Agreement") made this
16th day of December, 1996.
Seven October Hill LLC, a Massachusetts limited liability corporation,
with an address at c/o Parsons Commercial Group, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter "LESSOR") which expression shall include its
successors, and assigns where the context so admits, does hereby lease to
Harvard Apparatus, Inc., a Massachusetts corporation with an address at 00
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter "LESSEE"), which
expression shall include its successors, executors, administrators, and assigns
where the context so admits, and the LESSEE hereby leases from the LESSOR the
following described premises:
ARTICLE II - PREMISES
Suite Numbered L-1 located in the building, consisting of approximately
one Hundred Twelve Thousand (112,000) rentable square feet, at 0 Xxxxxxx Xxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter the "Building"), shown as the
area outlined in red on Exhibit A attached hereto and made a part hereof,
consisting of approximately Fifteen Thousand (15,000) leasable square feet
inside the Building (hereinafter referred to as the "Premises" or "Leased
Premises"), as measured from and extending to the centerline of party walls and
out to but excluding the exterior faces of all other walls, together with the
right to use, in common with others entitled thereto, the hallways and stairways
necessary for access to the Leased Premises, along with the right to use, in
common with others entitled thereto, the parking areas and sidewalks shown on
Exhibit B attached hereto and made a part hereof, and the common loading docks
as shown on Exhibit B but reserving and excepting to LESSOR the use of the area
behind the surface of the demising walls, the area above the ceilings of the
Leased Premises and the right to install, maintain, use, repair and replace
pipes, ducts, conduits, wires and appurtenant fixtures leading through the
Leased Premises in locations which will not materially interfere with LESSEE'S
use thereof. The Leased Premises and the Building are located upon the land
owned by LESSOR consisting of approximately seven and two one hundredths (7.02)
acres in the vicinity of the Building (the "Land") within the industrial park
known as New Englander Industrial Park (hereinafter the "Industrial Park").
ARTICLE III - TERM
3.1 LENGTH OF TERM: The term of this Lease shall be for approximately
five (5) years commencing March 15, 1997 or such later date as LESSOR has
substantially completed the improvements to the Premises to be accomplished by
LESSOR in accordance with Article 12 and Exhibit E hereof, and terminating on
the day which is the last day of the month preceding the fifth anniversary of
the commencement date. For the purposes hereof,
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"substantial completion" shall mean completion in such a fashion as to enable
LESSOR to obtain a certificate of occupancy and the only items to be completed
by LESSOR will not prevent LESSEE from operating its business in the ordinary
course.
In the event that the term of this Lease shall commence on a day other
than the first day of the month, then rent shall be immediately paid for such
fractional month prorated on the basis of a thirty (30) day month and, for the
purposes of determining anniversary dates of the commencement date of this
Lease, or the termination date of this Lease, the term of the Lease shall be
deemed to commence on the first day of the calendar month next succeeding.
LESSOR may deliver possession of the Leased Premises to TENANT on or after
February 1, 1997 but prior to the commencement of the term. Notwithstanding
anything herein contained to the contrary, all terms and conditions of the Lease
shall be effective after delivery of possession of the Leased Premises, except
that LESSEE shall not be required to pay Minimum Rent on account of any period
prior to March 15, 1997. LESSOR shall be deemed to have delivered the Leased
Premises to LESSEE upon delivery of the keys to the Leased Premises. By taking
occupancy of the Leased Premises, LESSEE shall be deemed to have accepted the
Leased Premises, to have acknowledged that the same are in the condition called
for hereunder and to have agreed that as of that time, all of the obligations of
the LESSOR imposed under this Lease shall have been performed, except for
construction items described in a "punch list" which may be given to LESSOR by
LESSEE within thirty (30) days of LESSEE'S taking possession of the Leased
Premises, which items LESSOR agrees to promptly repair or replace to the extent
the same are the responsibility of LESSOR hereunder. At the time of commencement
of the term, LESSOR and LESSEE shall execute a memorandum establishing the
commencement date of this Lease.
3.2 EXTENSION TO TERM: LESSEE shall have the right to extend this Lease
and the term hereunder for one (1) additional term of five (5) years, on the
same terms and conditions and provisions as the original term hereof, except the
rate of rental set forth in Article 4.1 hereof shall be adjusted as provided in
Article 4.2 hereof. Unless the LESSEE shall notify the LESSOR in writing of its
intention to extend this Lease at least six (6) months prior to the termination
of the original term, then this Lease shall terminate at the end of the original
term.
ARTICLE IV - RENT
LESSEE covenants and agrees to pay to LESSOR at the address set out in
the heading of this Lease, or at such other place as LESSOR may designate in
writing to LESSEE, rental at the rates and times set forth below.
4.1 MINIMUM RENT. Minimum Rent shall be paid at the annual rate of
Seventy Four Thousand Seven Hundred Fifty Dollars ($74,750.00) payable in twelve
(12) equal installments of Six Thousand Two Hundred Twenty Nine Dollars
Seventeen Cents ($6,229.17) in advance on the first day of each calendar month,
or part thereof, during the first year of the
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term; the Minimum Rent for any portion of a calendar month at the beginning of
the term to be apportioned on the basis of a 365-day year.
4.2 INCREASES TO MINIMUM RENT. During the initial term the Minimum Rent
shall be increased effective on the first anniversary of the commencement date
to an annual amount equal to Eighty Six Thousand Two Hundred Fifty Dollars
($86,250.00) payable in twelve (12) equal monthly installments each year of
Seven Thousand One Hundred Eighty Seven Dollars fifty Cents ($7,187.50) on the
first, (1st) day of each calendar month.
During the extension term, Minimum Rent shall be equal to Ninety Five
Percent (95%) of fair market rental value as determined in accordance with
Exhibit D attached hereto and made a part hereof.
4.3 TAX ON RENTALS. The LESSEE shall pay, as additional rent, before
any fine, penalty, interest or cost may be added thereto for nonpayment, any tax
that may be levied, assessed or imposed upon or measured by the rents reserved
hereunder or upon a commercial lease by any governmental authority acting under
any present or future law.
4.4 NO SET OFF. LESSEE covenants to pay all rentals when due and
payable without any set off, deduction or demand whatsoever. Any reasonable
amounts paid or expenses incurred by LESSOR to correct violations of any of the
LESSEE's obligations hereunder (following notice to LESSEE of such violations
and the expiration without cure of the cure period specified in Article XIX
hereof) shall be additional rental. Any additional rental provided for in this
Lease becomes due with the next installment of Minimum Rent due after receipt of
notice of such additional rental from LESSOR. Rentals and statements required of
LESSEE shall be paid or delivered to LESSOR at the place designated for notices
to LESSOR. If any payment of rent or additional rent due hereunder is received
by LESSOR more than ten (10) days after notice from LESSOR that it is due, then
LESSOR may, in addition to any other remedies LESSOR may have for late payment
of rent, assess a late charge in the amount of two percent (2%) of the late
payment, such late charge to be additional rent under this Lease.
ARTICLE V - TAXES AND OPERATING EXPENSES
5.1 DEFINITIONS. For purposes of this Article:
(i) "Taxes" shall mean the real estate taxes and assessments
and special assessments, sewer rents, imposed upon the Building and the Land by
any governmental bodies or authorities. If at any time during the term of this
Lease, as the same may be extended, the methods of taxation prevailing at the
commencement of the term hereof shall be altered so that in lieu of, or as an
addition to or as a substitute for the whole or any part of the taxes,
assessments, levies, impositions or charges now levied, assessed or imposed on
real estate and the improvements thereof, there shall be levied, assessed or
imposed (i) a tax, assessment, levy or otherwise on the rents received
therefrom, or (ii) a license fee measured by the rent payable
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by LESSEE to LESSOR, or (iii) any other such additional or substitute tax,
assessments, levy, imposition or charge, then all such taxes, assessments,
levies, impositions or charges or the part thereof so measured or based shall be
deemed to be included within the term "Taxes" for the purpose hereof.
(ii) "Tax Year" shall mean the fiscal year for which taxes are
levied by the governmental authority.
(iii) "LESSEE'S Proportionate Share" shall be Thirteen and
Four Tenths Percent (13.4%), which is determined by dividing the rentable
square footage of the Leased Premises by the square footage of all rentable
area within the Building (e.g. 15,000 DIVIDED BY 112,000). In the event that
any change in the Building or Leased Premises results in an increase or
decrease in the area of the Leased Premises and/or rentable area of the
Building, LESSEE'S Proportionate Share shall be recalculated by LESSOR to
reflect the fraction determined by dividing the leasable square footage of
the Leased Premises by the square footage of all leasable area within the
Building.
(iv) "Operating Expenses" shall mean all reasonable costs of
operating, servicing, administering, repairing and maintaining the Building,
Common Areas, and the Land (excluding costs paid directly by LESSEE and other
lessees in the Building or otherwise reimbursable to LESSOR) , the landscaping
of Common Areas of the Building and the Land and the common parking lot(s)
contiguous to the Building. All reasonable costs of operating, servicing,
administering, repairing and maintaining the Building, Common Areas, and the
Land, including any reasonable and necessary costs of operation, maintenance and
repair, computed in accordance with generally accepted accounting principles
applied on a consistent basis ("GAAP") , and will include, by way of
illustration, but not limitation:
(a) all necessary costs of managing, operating and maintaining
the Building, Common Areas, and Land, including, without limitation, wages,
salaries, fringe benefits and payroll burden for employees on-site utilized in
the day to day operation of the Building and Land; water, sewer, heating, air
conditioning, ventilating and all other utility charges (other than with respect
to utilities separately metered and paid directly by LESSEE or other lessees)
serving the common area or all tenants of the Building; the cost of contesting
the validity or amount of real estate; janitorial services; access control;
maintenance and repair of all HVAC systems whether inside or outside of the
Leased Premises, and other utility systems to the extent that repairs or
maintenance of the same are the responsibility of LESSOR and not the LESSEE;
window cleaning; fire detection and security services; costs of maintaining and
installing general information and tenant listings signage on the Industrial
Park Directory and Building Directory; gardening and landscape maintenance; all
costs of common area snow and ice removal; common area trash, rubbish, garbage
and other refuse removal; pest control; painting; common area facade
maintenance; common area lighting; exterior wall and demising wall repairs
except repairs of damage caused by other lessees; minor non-capital roof
repairs, maintenance of all steam, water and other water retention and
discharging piping, lakes, culverts, fountains, pumps, weirs, lift stations,
catch basins and other areas and facilities;
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repair and repainting of sidewalks due to settlement and potholes and general
resurfacing and maintenance of parking areas; sanitary control; depreciation of
machinery and equipment used in any of such maintenance and repair activities;
management fees; union increases; road sidewalk and driveway maintenance; and
all other Building and Land maintenance, repairs and insurance.
(b) the costs (amortized together with a reasonable finance
charge in accordance with GAAP) of any capital improvements: (i) made to the
Building by LESSOR to the extent reducing Operating Expenses or to replace
existing Capital Improvements; or (ii) made to the Building by LESSOR primarily
to comply with any governmental law or regulation.
(c) the costs of supplies, materials and tools.
(d) all insurance amounts paid by LESSOR for insurance with
respect to the Building and Land including, without limitation, workers
compensation insurance, fire insurance, and liability insurance.
(e) all costs paid to the New Englander Industrial Park Owners
Association (which at the current time includes only costs incident to the use
and operation of a pump house) with respect to services provided to the Land or
Building.
Operating Expenses shall not include:
(a) depreciation on the Building or any Common Areas;
(b) costs of space planning, lessee improvements, marketing
expenses, finders fees and real estate broker commissions;
(c) any and all expenses for which LESSOR is reimbursed
(either by an insurer, condemnor or other person or entity), but only to the
extent of such reimbursement, and any and all expenses for which LESSOR is
reimbursed or entitled to reimbursement by a lessee in the, Building pursuant to
a lease provision in LESSEE's Lease;
(d) costs in connection with services or benefits of a type
which are not provided to LESSEE, but are provided to another lessee or
occupant;
(e) LESSOR's general overhead and administrative expenses not
directly allocable to the operation of the Building;
(f) cost of repair or other work necessitated by the
negligence or willful misconduct of LESSOR or LESSOR's employees contractors or
agents.
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(g) costs of making upgrades to septic systems required for
compliance with law.
(v) "Common Areas" shall mean all areas and facilities outside the
Premises and within the exterior boundaries of the Building or the Land that are
not leased to other lessees and that are provided and designated by LESSOR, in
its sole discretion from time to time, for the general use and convenience of
LESSEE and other lessees of the Building and their authorized representatives,
entities, invitees and the general public.
5.2 TAXES.
(a) LESSEE shall pay as additional rent for each Tax Year
during the term, an amount equal to LESSEE'S Proportionate Share of the Taxes
for such Tax Year (the "Tax Payment"). LESSEE shall pay in advance of the first
month and each month thereafter an estimate of one twelfth (1/12) of LESSEE's
Proportionate Share of taxes which shall be an amount estimated and billed by
LESSOR prior to the beginning of each Tax Year. Such estimate and billing may be
revised by LESSOR, at LESSOR's sole option, during the Tax Year based on tax
bills or assessments actually received by LESSOR relating to the current Tax
Year. Within sixty (60) days of the end of each Tax Year LESSOR shall furnish
LESSEE, in reasonable detail, the final computation and allocation of taxes for
the preceding Tax Year. If the amount allocated to LESSEE exceeds the sum of the
estimated taxes already paid by LESSEE, LESSEE shall pay such excess to LESSOR
within thirty (30) days of demand therefor. If the amount allocated to LESSEE is
less than that already paid by LESSEE, LESSOR shall credit the difference to
future payments of Minimum Rent (or pay the same to LESSEE at the end of the
term, if no extra Minimum Rent is due). The Tax Payment shall be prorated, if
necessary, to correspond with that portion of a Tax Year occurring within the
term of this Lease.
(b) If LESSOR shall receive a refund for any Tax Year(s) in
which a Tax Payment shall have been made by LESSEE, LESSOR shall repay to LESSEE
LESSEE'S Proportionate Share of such refund up to the amount of such payment
after deducting therefrom the costs and expenses of obtaining such refund, which
costs and expenses shall be allocated to all of the Tax Years involved. LESSOR
agrees to act in good faith in connection with a determination as to whether the
filing of abatement applications affecting the Leased Premises would be
appropriate.
(c) With respect to any period at the expiration of the term
of this Lease, as the same may be extended, which shall constitute a partial Tax
Year, LESSOR'S statement shall adjust the amount of the additional rent due
hereunder. The obligation of LESSEE in respect to such additional rent
applicable for the last year of the term of this Lease as the same may be
extended shall survive the expiration of the term of this Lease.
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For the purpose of this Lease, the term "Tax Year" shall mean the
twelve (12) month period established as the real estate tax year by the taxing
authorities having lawful jurisdiction over the Industrial Park.
5.3 OPERATING EXPENSES.
(a) OPERATING EXPENSES RENT. LESSEE shall pay as additional
rent LESSEE's Proportionate Share of the Operating Expenses paid or incurred by
LESSOR, provided, however, that during the initial five (5) year term, LESSEE
shall not be required to pay more than One Dollar Twenty Five Cents ($1.25) per
square foot of the Leased Premises per annum for any of the consecutive twelve
(12) month periods which begin on the commencement date of the term and on each
anniversary of the commencement date occurring during the initial term.
(b) PAYMENT. During December of each calendar year or as soon
thereafter as practicable, LESSOR will give LESSEE written notice of its
estimate of LESSEE's Proportionate Share of operating Expenses for the ensuing
calendar year on or before the first day of each month during the ensuing
calendar year, LESSEE will pay to LESSEE One Twelfth (1/12th) of such estimated
amounts, provided that if such notice is not given in December, LESSEE will
continue to pay on the basis of the prior year's estimate until the month after
such notice is given. If at any time or times it appears to LESSOR that the
amounts payable for Operating Expenses for the current calendar year will vary
from its estimate by more than Ten Percent (10%), LESSOR, by written notice to
LESSEE, will revise its estimate for such year, and subsequent payments by
LESSEE for such year will be in an amount so that by the end of such year LESSEE
will have paid a total sum equal to such revised estimate. LESSOR will indicate
in its notice to LESSEE the reasons LESSOR believes its estimate is low or high
by more than Ten Percent (10%).
(c) STATEMENT. Within ninety (90) days after the close of each
calendar year or as soon after such ninety (90) day period as practicable,
LESSOR will deliver to LESSEE a statement of amounts of LESSEE's Proportionate
Share of operating Expenses payable under this Lease for such calendar year. If
such statement shows an amount owing by LESSEE that is more than the estimated
payments for such calendar year previously made by LESSEE, LESSEE will pay the
deficiency to LESSOR within thirty (30) days after delivery of the statement. If
the statement shows an amount which is less than the estimated payments
previously paid by LESSEE for the calendar year, provided LESSEE is not then in
default, LESSOR will remit the amount owed LESSEE with the statement. LESSEE has
the right, exercisable no more than once each calendar year on reasonable notice
and at a time reasonably acceptable to LESSOR, to cause an audit to be performed
at LESSEE's sole cost and expense of LESSOR's operations and/or books and
records pertaining to Operating Expenses and Taxes and Insurance of the
preceding calendar year. LESSOR, at LESSOR's sole discretion, may provide such
audit prepared by a certified public accountant in lieu of allowing LESSEE to
audit LESSOR's operations and/or books.
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(d) PRORATION. If for any reason other than the default of
LESSEE, this Lease terminates on a day other than the last day of a calendar
year, the amount of LESSEE's Proportionate Share of Operating Expenses payable
by LESSEE applicable to the calendar year in which such termination occurs will
be prorated on the basis which the number of days from the commencement of such
calendar year to and including such termination date bears to Three Hundred
Sixty Five (365). Likewise, in the year this Lease commences, LESSEE's
Proportionate Share of Operating Expenses shall be prorated based upon the
number of days from the Commencement Date to the end of the calendar year in
which the Commencement Date occurs.
ARTICLE VI - PARKING/LOADING
6.1 LESSEE's PARKING RIGHTS. Within the Common Areas, LESSOR will
provide parking areas with necessary access as shown in Exhibit B. Only
automobiles and pickup trucks will be permitted on the parking areas.
6.2 LESSOR's CONTROL OVER PARKING. LESSEE and its authorized
representatives will park their cars only in areas specifically designated for
that purpose by LESSOR. LESSEE shall have the exclusive use of ten (10) parking
spaces in the location outlined in red on Exhibit B. In addition, LESSOR shall
ensure that there are at least twenty seven (27) parking spaces available for
the use of LESSEE and its agents, employees, and invitees in the location
outlined in blue on Exhibit B, and that up to three (3) additional parking
spaces in that location shall be specifically designated as being for LESSEE's
visitor's use. LESSEE will not park or permit the parking of any vehicles
adjacent to loading areas so as to interfere in any way with the use of such
areas. LESSOR shall have the right, in LESSOR's sole discretion, to designate
parking spaces for the exclusive use of a particular lessee or particular
lessees. LESSOR will have the right to institute reasonable procedures and/or
methods to enforce the terms of this Section.
6.3 LOADING DOCKS/DRIVE IN DOOR. LESSEE shall have the use of the drive
in door serving the Leased Premises and the right, in common with others
entitled thereto, to utilize the two (2) loading docks adjacent to the Leased
Premises as shown in Exhibit B.
ARTICLE VII - UTILITIES
LESSEE shall pay, as they become due, all bills for gas, electricity,
telephone service, and any other utilities furnished to the Leased Premises from
and after such date as the term shall commence, including electricity charges in
connection with the heating and air conditioning system serving the Leased
Premises.
LESSOR shall have no obligation to provide utilities or equipment other
than the utilities and equipment within the Leased Premises as of the
commencement date of this Lease, all subject to interruption due to any
accident, to the making of repairs, alterations, or
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improvements, to labor difficulties, to difficulty in obtaining fuel,
electricity, service or supplies from the sources from which they are usually
obtained for said building, or to any cause beyond LESSOR'S control. In the
event LESSEE requires additional utilities or equipment, the installation and
maintenance thereof shall be the LESSEE'S sole obligation, provided that such
installation shall be subject to written consent of the LESSOR.
ARTICLE VIII - USE OF LEASED PREMISES
The LESSEE shall use the Leased Premises only for offices, storage, and
light manufacturing as permitted by law. LESSEE shall not use any portion of the
Premises for purposes other than those specified above and no use shall be made
or permitted to be made upon the Premises, nor acts done, which will increase
the existing rate of insurance upon the Building or cause cancellation of
insurance policies covering said Building. Subject to compliance with applicable
law, the LESSEE may enter the Premises at any time seven (7) days per week,
fifty two (52) weeks per year.
ARTICLE IX - COMPLIANCE WITH LAWS, PROHIBITED AND REQUIRED USES
9.1 MISCELLANEOUS RESTRICTIONS. LESSEE will not use the Premises for or
permit in the Premises any offensive, noisy, or dangerous trade, business,
manufacture or occupation or interfere with the business of any other lessee in
the Building or permit any auction, liquidation, fire or bankruptcy sale to be
held or conducted in or about the Premises. LESSEE agrees not to cause, permit
or suffer any waste or damage, disfigurement or injury to the Premises or the
fixtures or equipment thereof or the Common Areas with the exception of normal
wear and tear. LESSEE will not use the Premises for cooking and nothing will be
prepared, manufactured or mixed in the Premises which might emit any offensive
odor. LESSEE will not keep, display or sell any merchandise or other items
outside of the Premises or otherwise obstruct the sidewalks or Common Areas in
the Building or use the same for business operations or advertising except as
otherwise provided herein. LESSEE will not install, maintain, use or allow in or
upon the Premises any pinball machines, coin operated music machine, video game
machines or any other coin operated amusement device of any kind. LESSEE will at
all times comply with the rules and regulations of the Building attached hereto
as Exhibit C and such additional reasonable rules and regulations as may be
adopted by LESSOR from time to time. LESSEE will procure and maintain in full
force and effect all licenses, permits, variances and the like which may be
required for any specific use made of the Leased Premises including, without
limitation, any manufacturing use (excluding permits that may be required for
general office use such as a certificate of occupancy or the like). LESSEE shall
operate its business in the Leased Premises in compliance with all laws and
ordinances of all governmental authorities having jurisdiction.
9.2 COMMON AREAS. LESSOR has the right to:
(a) establish and enforce reasonable rules and regulations
applicable to all lessees concerning the maintenance, management, use and
operation of the Common Areas;
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(b) close, if necessary, any of the Common Areas to prevent
dedication of any of the Common Areas or the accrual of any rights of any person
or of the public to the Common Areas;
(c) close temporarily any of the Common Areas for maintenance
purposes; and
(d) select a person, firm or corporation which may be an
entity related to LESSOR to maintain and operate any of the Common Areas.
Notwithstanding the provisions of this Section, in exercising its
rights hereunder, LESSOR will provide reasonable access to and from the
Premises. LESSOR shall make all reasonable efforts to maintain the Common Areas
in a clean, unobstructed and functional state, and shall make no permanent
changes therein which shall result in a material adverse effect in the access to
or use of the Leased Premises except to the extent required by law.
9.3 HAZARDOUS SUBSTANCES. The LESSEE hereby covenants and agrees that
it shall not release, or permit any release or threat of release, of any
hazardous substances in the Leased Premises, Building, Land, or Industrial Park
in violation of applicable law. "Hazardous substances" shall mean oil, hazardous
material, hazardous waste or hazardous substance (collectively called "hazardous
substances"), as those terms are defined by any applicable law, rule or
regulation including without limitation, the Massachusetts Oil and Hazardous
Material Release Prevention and Response Act, M.G.L. c.21E, the Massachusetts
Hazardous Waste Management Act, M.G.L. c.21C, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. Section 9601 et
seq. and the Resource conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq. The LESSEE covenants and agrees that it shall not generate
or permit any hazardous substances to be generated in the Leased Premises in
violation of applicable law; the LESSEE shall not store or permit hazardous
substances to be stored on the Leased Premises in violation of applicable law;
the LESSEE shall not permit any lien under said Massachusetts Oil and Hazardous
Material Release and Prevention Response Act or said Comprehensive Environmental
Response, Compensation and Liability Act to attach to the Leased Premises,
Office Building, or Industrial Park, or any portion thereof or interest therein;
the LESSEE shall indemnify, exonerate and hold the LESSOR harmless from and
against any claim, liability, loss, damage or expense, including reasonable
attorneys' fees, arising out of breach of any of the representations,
warranties, conditions and covenants of this paragraph. The LESSOR shall have
the right, but not the obligation, to enter upon the Leased Premises to expend
funds to cure any breach by the LESSEE of the representations, warranties,
conditions and covenants of this paragraph, and any amounts paid as a result
thereof, together with interest thereon at the rate of eighteen percent (18%)
per annum shall be immediately due and payable by the LESSEE to the LESSOR. The
LESSEE shall provide the LESSOR with prompt written notice: (a) upon the
LESSEE's becoming aware of any release or threat of release of any hazardous
substances; (b) upon the LESSEE's receipt of any notice from any federal, state,
municipal or other governmental agency or authority in connection with any
hazardous
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substances located upon or under the Leased Premises, or emanating from the
Leased Premises; and (c) upon the LESSEE's obtaining knowledge of any incurrence
of any expense by any governmental authority in connection with the assessment,
containment or removal of any hazardous substances located upon or under the
Leased Premises, or emanating from the Leased Premises.
ARTICLE X - INSURANCE
10.1 LESSOR's FIRE INSURANCE. Throughout the term hereof, LESSOR shall
maintain a policy of insurance on the Building against damage by fire and such
other risks covered by the so-called Extended Coverage endorsement.
In the case of any loss or damage covered by such insurance, the
proceeds of such insurance shall be devoted by LESSOR, so far as may be required
hereunder, to the repair, rebuilding or restoration of the Building, provided,
however, that this Lease shall not have been terminated.
10.2 PERSONAL PROPERTY INSURANCE. LESSEE shall procure such insurance
on its improvements and personal property as it deems appropriate.
10.3 LESSEE's LIABILITY INSURANCE. LESSEE agrees to maintain with
respect to the Leased Premises, Building, and the Industrial Park, broad form
comprehensive general liability insurance with limits in the minimum amount of
One Million Dollars ($1,000,000.00) per occurrence and property damage liability
insurance in the minimum amount of Two Hundred Fifty Thousand Dollars
($250,000.00) per occurrence and to submit copies of such policies and
certificates of such insurance to LESSOR. The policies shall name LESSOR and
LESSEE as insureds, and shall contain a provision that the insurer will not
cancel, materially change or renew the insurance without first giving the LESSOR
thirty (30) days prior written notice. The insurance shall be in an insurance
company approved by LESSOR, which approval will not be unreasonably withheld.
LESSEE shall promptly furnish LESSOR with certificates or other evidence
acceptable to LESSOR that such insurance is in effect.
10.4 Intentionally Omitted.
10.5 SPRINKLER INSURANCE. LESSEE shall maintain insurance covering
damage from leakage or sprinkler systems now or hereafter installed in the
Premises in an amount not less than the current replacement cost covering
LESSEE'S merchandise, LESSEE'S improvements and LESSEE'S trade fixtures.
10.6 EMPLOYER'S LIABILITY INSURANCE WORKER'S COMPENSATION INSURANCE.
LESSEE shall provide employer's liability insurance and worker's compensation
insurance providing statutory state benefits for all persons employed by LESSEE
in connection with the Premises as required by applicable law.
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LESSEE will not do or omit any act, or keep anything in, upon or about
the Leased Premises, the Building or the Industrial Park which may prevent or
impair obtaining and maintaining any fire, liability or other insurance upon or
written in connection with the Leased Premises, the Building, the Industrial
Park, or which may make any such insurance void or voidable or otherwise
invalidate the obligations of the insurer contained therein, or which may create
any extra premiums or increase the rate of any such insurance over that normally
applicable to office buildings. LESSEE agrees to pay to LESSOR, upon demand, the
amount of any extra premiums or any increase in the rate of such insurance which
results from LESSEE's occupancy of or conduct in the Leased Premises, whether or
not LESSOR has consented to such business.
ARTICLE XI - MAINTENANCE
11.1 LESSEE'S MAINTENANCE. The LESSEE agrees to maintain the Leased
Premises in good condition, ordinary wear and tear, damage by fire and other
insured casualty, damage occasioned solely by reason of acts and omissions of
LESSOR, and taking by eminent domain, only excepted, and whenever necessary, to
replace plate glass and other glass therein, acknowledging as of the
commencement date of this Lease that the Leased Premises are in good order and
the glass whole. LESSEE shall maintain all utility systems located within the
Leased Premises other than the HVAC system. The LESSEE shall not permit the
Leased Premises to be overloaded, damaged, stripped, or defaced, nor suffer any
waste. LESSEE shall furnish the Leased Premises in a neat and attractive manner,
and shall maintain the Leased Premises in a clean, orderly, and professional
condition at all times during this Lease or any extension thereof.
LESSEE shall contract for in its own name and pay, as they become due
and payable, all charges for rubbish removal from the Leased Premises. LESSEE
shall be responsible for providing at its own cost cleaning services for the
Leased Premises. All trash shall be kept within the Leased Premises or if
outside the Leased Premises only in areas designed by LESSOR and only in closed
containers.
11.2 LESSOR's MAINTENANCE. The LESSOR agrees to maintain the structure,
including the roof and foundation, the HVAC systems serving the Leased Premises
(to the extent not damaged by the negligence of LESSEE, its servants, agents,
employee or invitees) and the Common Areas of the Building in the same condition
as they are at the commencement of the term, reasonable wear and tear, and
damage insured against and with respect to which LESSEE obtains proceeds of
insurance only excepted, unless such maintenance is required because of LESSEE
or those for whose conduct the LESSEE is legally responsible. The costs of such
maintenance shall be included in operating Expenses.
The LESSOR shall be under no responsibility or liability for failure or
interruption of any such repairs or services referred to in this Article XI
except to the extent resulting from LESSOR's gross negligence, or for any
interruption in utility services, caused by breakage, accident, strikes,
repairs, inability after exercise of reasonable diligence to obtain supplies or
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otherwise furnish services, or for any cause or causes beyond the reasonable
control of LESSOR (but LESSOR, in respect of those matters for which LESSOR is
responsible, will use reasonable efforts to restore such services or make such
repairs as soon as possible), nor in any event for any indirect or consequential
damages; and failure or omission on the part of the LESSOR to furnish such
service or make such repair under those circumstances and conditions shall not
be construed as an eviction of the LESSEE, nor render the LESSOR liable in
damages, nor entitle LESSEE to an abatement or rent, nor release the LESSEE from
the obligation to fulfill any of the covenants under this Lease.
11.3. CONSTRUCTION. LESSEE acknowledges that LESSOR and/or lessees of
the Building, on or after the date hereof , may be making improvements to their
Premises, the, Building, or Industrial Park which will require construction work
during normal business hours. Notwithstanding anything to the contrary in this
Lease, such work may be performed during normal business hours. LESSOR agrees to
use all reasonable efforts to reduce any disruption to LESSEE'S use and
occupancy of the Leased Premises to a minimum. LESSEE shall have no right to any
abatement of rental or other compensation or to any claim of breach of LESSOR'S
covenants under this Lease (provided that there is no significant interruption
to LESSEE'S access to the Leased Premises) or for loss of business or
inconvenience, or in any event for consequential damages on account of such
construction work.
ARTICLE XII - CONSTRUCTION AND ALTERATIONS
12.1. Prior to the commencement of the term of this Lease, LESSOR shall
substantially complete the work enumerated on Exhibit E attached hereto and made
a part hereof and shall have obtained a certificate of occupancy for the Leased
Premises. Exhibit E shall define the total scope of work which LESSOR is to
perform within the Leased Premises, and, upon the completion of such work,
LESSOR shall notify LESSEE that the work has been substantially completed and
provide LESSOR with certificates to such effect from LESSOR's architect. Any
additional work required for LESSEE to use the Leased Premises for the intended
purpose shall be at the sole cost and expense of LESSEE. Any equipment or work
other than items specifically enumerated in Exhibit E which the LESSOR installs
or constructs in the Leased Premises on the LESSEE's behalf shall be paid for by
LESSEE within fifteen (15) business days after receipt of a xxxx therefor at
cost, plus ten percent (10%) for overhead and supervision. If the Leased
Premises have not been substantially completed prior to April 1, 1997 for
reasons other than conduct by LESSEE or force majeure events, and provided that
this Lease is not terminated as set forth below, the LESSEE shall be entitled to
an abatement of minimum Rent for a one (1) month period at the commencement of
the term. LESSEE may cancel this Leased upon twenty (20) days written notice to
LESSOR if the Leased Premises have not been substantially completed on or before
April 15, 1997 for reasons other than conduct by LESSEE or force majeure events,
and such substantial completion has not been accomplished prior to the
expiration of such twenty (20) day period.
12.2 LESSEE'S ALTERATIONS. LESSEE may not make any structural
improvement or alteration to the Premises without the prior written consent of
LESSOR.
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LESSEE may not make any nonstructural improvement or alteration of the Premises
costing in excess of Five Thousand Dollars ($5,000.00) without the prior written
consent of the LESSOR which shall not be unreasonably withheld or delayed.
LESSEE shall prepare, at its sole cost and expense, complete plans and
specifications prepared by a professional architect or engineer for all LESSEE'S
work, whether original or alterations, and submit such plans and specifications
to LESSOR or LESSOR'S designated representative for written approval no later
than fifteen (15) days, prior to the planned commencement of any work, together
with the name of the contractor or contractors to perform such work. All
contractors or others performing work on the Leased Premises shall be approved
in writing by LESSOR. All such allowed alterations shall be at LESSEE'S expense,
shall be in quality at least equal to the contemplated or then existing
construction, as the case may be, and shall be prosecuted diligently and
completed in a good and workmanlike manner. Any alterations or improvements made
by the LESSEE shall become the property of the LESSOR at the termination of
occupancy as provided herein; provided, however, that LESSEE shall be obligated
to remove such improvements, fixtures and equipment at the said termination of
occupancy as LESSOR shall request prior to such termination, the LESSEE being
obligated to repair any damage which such removal may cause. LESSEE agrees that
any window treatments installed by LESSEE in the Leased Premises which are
visible from the exterior of the Leased Premises shall be of a type and color to
be determined by LESSOR or shall be approved in advance by LESSOR.
12.3 NO LIENS. LESSEE shall not suffer or permit any liens to stand
against the Leased Premises or Building or the Industrial Park by reason of
work, labor, services or materials done for or at the request of LESSEE. LESSEE
shall cause any such lien to be discharged within five (5) business days after
the date that LESSEE receives notice of filing thereof. If LESSEE shall fail to
take such action as shall cause such lien to be discharged within such five (5)
day period, LESSOR may pay the amount of such lien or discharge the same by
deposit or bonding proceedings, and in the event of such deposit or bonding
proceedings, LESSOR may require the lienor to prosecute an appropriate action to
enforce the lienor's claim and may pay any judgement recovered on such claim. In
the event that LESSOR does any of the things it is by this paragraph empowered
to do, LESSEE shall promptly reimburse LESSOR for any sums expended by LESSOR in
connection therewith, including any sum paid in discharge of any lien or
judgement, for premiums on bonds, or for attorney's fees. All such sums shall be
payable upon demand with interest at the rate of eighteen percent (18%) per
annum running from the fifteenth (15th) day after demand.
12.4 LESSOR'S ENTRY. LESSOR may, from time to time, enter the Leased
Premises to perform construction work or make improvements, benefitting the
Common Areas of the Building or other lessees of the Building. LESSOR agrees to
give reasonable advance notice to LESSEE of LESSOR'S need to enter the Leased
Premises for such purposes and agrees to perform such work in a manner which
will minimize any disruption to LESSEE within the Leased Premises.
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ARTICLE XIII - ASSIGNMENT/SUBLEASING
LESSEE agrees not to sell, assign, mortgage, pledge, franchise or in
any manner transfer this Lease or any estate of interest thereunder and not to
sublet the Leased Premises or any part or parts thereof and not to permit any
licensee or concessionaire therein without the previous written consent of the
LESSOR in each instance first obtained. Consent to a subletting by LESSEE shall
not be unreasonably withheld or delayed. Consent by LESSOR to one assignment of
this Lease or to one subletting, sale, mortgage, pledge or other transfer
including licensing or the grant of a concession shall not be a waiver of
LESSOR'S right under this Article as to any subsequent similar action.
Notwithstanding any assignment or subletting, LESSEE shall remain fully liable
on this Lease and shall not be released from performing any of the terms,
covenants and conditions of this Lease.
If, any time during the term of this Lease, LESSEE (and/or the
guarantor of LESSEE, if any) is a corporation or a trust (whether or not having
shares of beneficial interest) and there shall occur any change in the identity
of any of the persons then having power to control the election or appointment
of the directors, trustees, or other persons exercising like functions and
managing the affairs of LESSEE to other than the families of the principals of
LESSEE, the same shall be deemed an assignment requiring consent hereunder, and
LESSEE shall so notify LESSOR thereof. This section shall not apply if the
LESSEE (and/or guarantor, if any) named herein is a corporation and the
outstanding voting stock thereof is listed on a recognized securities exchange
or is wholly owned by another corporation whose outstanding voting stock is so
listed.
LESSOR'S rights to assign this Lease are and shall remain unqualified.
Upon any bona fide sale of the Leased Premises in an arms length transaction and
provided the purchaser agrees to assume all past and future obligations of
LESSOR under this Lease, LESSOR shall thereupon and not otherwise be entirely
freed of all obligations of the LESSOR hereunder and shall not be subject to any
liability resulting from any act or omission or event occurring after such
conveyance, except that any covenant or obligation of LESSOR hereunder affecting
land owned by LESSOR shall continue for its term during such ownership, but no
longer. Upon the sale or other transfer of LESSOR'S interest in this Lease,
LESSEE agrees to recognize and attorn to such transferee as LESSOR, and LESSEE
further agrees to execute and deliver a recordable instrument setting forth the
provisions of this paragraph.
ARTICLE XIV - SUBORDINATION
This Lease is and shall be subject and subordinate to all ground leases
and mortgages of record, any of which may now or hereafter be placed on or
affect the Building, the Leased Premises, or any part thereof and to each
advance made or to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor, provided that said mortgagee agrees in writing delivered
to LESSEE to recognize this Lease, and not to disturb LESSEE'S rights
thereunder. LESSOR shall deliver such a non-disturbance agreement to LESSEE from
any mortgage company
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holding a mortgage covering the Building. In confirmation of such subordination,
LESSEE shall execute and deliver promptly any nondisturbance, subordination, and
attornment agreement that LESSOR and/or any mortgagee or lessor under any ground
or underlying lease and/or their respective successors may require so long as
the same is in substance similar to those customarily utilized in the Greater
Boston, Massachusetts area.
Without limitation of any of the provisions of this Lease, if any
ground lessor or mortgagee shall succeed to the interest of LESSOR by reason of
the exercise of its rights under such ground lease or mortgage (or the
acceptance of voluntary conveyance in lieu thereof) or the expiration or sooner
termination of such ground lease, however caused, then such successor shall give
written notice to LESSEE (which in the case of a ground lease shall be within
thirty (30) days after such expiration or sooner termination) that it is
succeeding to the interest of LESSOR under this Lease; and in such event, the
LESSEE shall attorn to such successor and shall ipso facto be and become bound
directly to such successor in interest to LESSOR to perform and observe all the
LESSEE'S obligations under this Lease without the necessity of the execution of
any further instrument. Nevertheless, LESSEE agrees at any time and from time to
time during the term hereof to execute a suitable instrument in confirmation of
LESSEE'S agreement to LESSOR, pr any ground lessor, or such mortgagee, and/or
their respective assigns and LESSEE'S attorney-in-fact, to execute and deliver
any such agreement of attornment for and on behalf of LESSEE.
ARTICLE XV - LESSOR'S ACCESS
The LESSOR or agents of the LESSOR may, upon reasonable prior notice, at
reasonable times, enter to view the Leased Premises and make repairs and
alterations as LESSOR should elect to do and may show the Leased Premises to
others, and at any time within six (6) months before the expiration of the term,
may, affix to any suitable part of the Leased Premises a notice for selling the
Leased Premises or property of which the Leased Premises are a part and keep the
same so affixed without hindrance or molestation. LESSOR agrees to make such
entries in a manner which will minimize any disruption to LESSEE within the
Leased Premises.
ARTICLE XVI - INDEMNIFICATION
LESSEE hereby covenants to indemnify and save LESSOR harmless from and
against any and all claims, liabilities or penalties asserted by or on behalf of
any person, firm, corporation or public authority:
(a) On account of or based upon any injury to person, or loss
of or damage to property sustained or occurring on the Leased Premises on
account of or based in whole or in part upon the act, omission, fault,
negligence or misconduct of any person other than LESSOR or its employees, or
agents after delivery of the Leased Premises to LESSEE;
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(b) On account of or based in whole or in part upon any injury
to person, or loss of or damage to property sustained or occurring in or about
the Building or the Industrial Park, arising out of the use or occupancy of the
Building or the Leased Premises by the LESSEE or by any person claiming by,
through or under LESSEE, in addition to and not in limitation of Section (a)
above;
(c) on account of or based upon (including monies due on
account of) any work or thing whatsoever done (other than by LESSOR or its
contractors or agents or employees of either) on the Leased Premises during the
term of this Lease, any further time during which LESSEE occupies the Leased
Premises and, to the extent resulting from the actions of LESSEE or its
servants, agents or contractors, during the time, if any, prior to the
commencement date when LESSEE may have been given access to the Leased Premises;
and, in respect of any of the foregoing, from and against all costs, expenses
(including, without limitation, reasonable attorneys' fees and expenses) and
liabilities incurred in or in connection with any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against LESSOR, LESSEE shall at LESSEE'S expense resist and defend such action
or proceeding and employ counsel therefor reasonably satisfactory to LESSOR, it
being agreed that such counsel as may act for LESSEE'S insurance underwriters
engaged in defense shall be deemed satisfactory.
ARTICLE XVII - WAIVER OF SUBROGATION
LESSEE covenants that with respect to any insurance coverage carried by
LESSEE in connection with the Leased Premises or the Building or the parcel upon
which it is located, (whether or not such insurance is required by the terms of
this Lease) such insurance shall provide for the waiver by the insurance carrier
of any subrogation rights against LESSOR, its agents, servants and employees.
ARTICLE XVIII - DESTRUCTION OF PREMISES/EMINENT DOMAIN
18.1 PARTIAL DESTRUCTION. In the event of a partial destruction of the
Premises during the term hereof, from any cause covered by insurance, LESSOR
shall repair the same to the extent such repairs can be made with the insurance
proceeds made available to LESSOR and within sixty (60) days under then existing
governmental laws and regulations. Such partial destruction shall not terminate
this Lease and LESSEE shall be entitled to a proportionate reduction of rent
based upon the extent to which the LESSEE shall be deprived of productive use of
the Premises if such repairs cannot be made within said sixty (60) days period,
LESSOR, at its option, may make the repairs within a reasonable time not to
exceed one hundred eighty (180) days. If LESSOR elects to make said repairs,
this Lease will continue in effect and the rent will be proportionately abated
as stated above. If the repairs cannot be made within sixty (60) days with the
available insurance proceeds and LESSOR elects not to make said repairs, this
Lease may be terminated at the option of either party.
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18.2 MATERIAL/TOTAL DESTRUCTION. If the Building in which the Premises
are situated or the Building and Land sustains damage of more than one third
(1/3) of the replacement cost thereof, LESSOR may elect to terminate this Lease
whether the Premises are injured or not. If the Premises are damaged
significantly enough that in LESSOR's reasonable judgment repair of the damage
will take over one hundred eighty (180) days, LESSEE may terminate this Lease. A
total destruction of the Building in which the Premises are situated or the
Building and Land shall terminate this Lease.
18.3 EMINENT DOMAIN.
(a) In the event that a substantial portion of the Leased
Premises or the Building or the Land shall be taken or appropriated by eminent
domain or shall be condemned for any public or quasi-public use, then this Lease
and the term hereof may be terminated at the election of LESSOR by a notice in
writing of its election so to terminate, which notice shall be given no later
than sixty (60) days following the date on which LESSOR shall have received
notice of such taking, appropriation, or condemnation. If the entire Leased
Premises or such portion thereof or a substantial portion of the Building or the
access thereto shall be so taken, appropriated, or condemned, such that LESSEE
shall be precluded from utilizing the Leased Premises substantially as
contemplated, then this Lease and the term hereof may be terminated at the
election of LESSEE by a notice in writing of its election so to terminate, which
notice shall be given no later than sixty (60) days following the date on which
LESSEE shall have received notice (clearly stating the effect of such taking
upon the Leased Premises and the Industrial Park) of such taking, appropriation
or condemnation. Upon the giving of any such notice of termination (either by
LESSOR or LESSEE) this Lease and the term hereof shall terminate on or
retroactively as of the date on which LESSEE shall be required to vacate any
portion of the area so taken, appropriated or condemned or shall be deprived of
the means of access thereto or upon ninety (90) days written notice after LESSOR
is required to vacate the applicable portion of the Building or the Industrial
Park, provided that no portion of the Leased Premises has been taken or
condemned. In the event of such termination, this Lease and the term hereof
shall expire as of such effective termination date and rent shall be apportioned
as of such date.
(b) If neither party (having the right to so) elects to
terminate this Lease and the term hereof, LESSOR shall, with reasonable
diligence and at LESSOR'S expense, restore the remainder of the Leased Premises
(but not LESSEE'S personal property or alterations installed at LESSEE'S
expense), and the means of access thereto, as nearly as practicable to the
condition which obtained prior to such taking, appropriation or condemnation, in
which event the rent shall be adjusted such that a just proportion of the rent
shall be abated according to the nature and extent of the taking, appropriation
or condemnation. LESSOR shall not be liable for any delays in such restoration
which are due to acts of God, as defined herein, nor shall LESSOR be liable for
any inconvenience or annoyance to LESSEE or injury to LESSEE'S business
resulting from reasonable delays in such restoration (although the same shall be
taken into account in connection with any abatement of rent). LESSOR expressly
reserves and LESSEE hereby assigns to LESSOR, all rights to compensation and
damages
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created, accrued or accruing by reason of any such taking, appropriation or
condemnation, excluding only rights to compensation or damages relating to
LESSEE'S fixtures, property, or equipment or relocation expenses made directly
to LESSEE by a governmental agency or entity.
(c) If the Leased Premises or any part thereof or the access
thereto shall be taken, appropriated or condemned for any temporary use (i) this
Lease shall be and remain unaffected thereby and LESSEE shall continue to pay
the full amount of the rent, (ii) LESSEE shall be entitled to receive for itself
any award made for such use allocable to the term of this Lease, and (iii)
LESSEE shall be responsible for any repairs necessary to restore the Leased
Premises to their condition prior to such taking, appropriation or condemnation,
provided that if any such taking, appropriation or condemnation extends beyond
the term of this Lease, the costs of such repairs shall be allocated between
LESSOR and LESSEE in proportion to the amount of any award each receives. Any
taking, appropriation or condemnation continuing in excess of six (6) months
shall be deemed to be a permanent taking, appropriation or condemnation and
shall be governed by Sections (a) and (b) above.
ARTICLE XIX - DEFAULT
19.1 If LESSEE shall default in the payment of rent or any other
charges due hereunder and such default shall continue for ten (10) days after
written notice to LESSEE, or if LESSEE shall default in the performance of any
other of its obligations and such default shall continue for thirty (30) days
after written notice thereof to the LESSEE (except that if the LESSEE cannot
reasonably cure any such default of its other obligations within said thirty
(30) day period, this period may be extended for a reasonable time not exceeding
ninety (90) days, provided that the LESSEE commences to cure such default within
the thirty (30) day period and proceeds diligently thereafter to effect such
cure), or if the LESSEE shall file a petition under any bankruptcy or insolvency
law, or if such a petition filed against LESSEE is not dismissed within sixty
(60) days, or if the LESSEE shall be adjudicated bankrupt or insolvent according
to law, or if the LESSEE shall make any assignment for the benefit of creditors,
or if the LESSEE shall file any petition seeking a reorganization, arrangement
or similar relief, or if a receiver, custodian, trustee or similar agent of the
Leased Premises or of all or a substantial part of LESSEE's assets shall be
authorized or appointed or if LESSEE's interest in this Lease is taken upon
execution or other process of law in any action against LESSEE, then the LESSOR
may lawfully enter the Leased Premises and repossess the same as the former
estate of the LESSOR, or terminate this Lease by written notice to LESSEE and,
in either event, expel the LESSEE and those claiming through or under the
LESSEE, and remove their effects (forcibly, if necessary) without being deemed
guilty of any manner of trespass and without prejudice to any other remedy which
the LESSOR may have for arrears of rent and other charges due hereunder or
proceeding on account of breach of covenant, and upon entry or notice as
aforesaid, this Lease shall terminate. LESSEE covenants, in case of any default
by LESSEE hereunder (which covenant shall survive the termination of this
Lease), to pay LESSOR all costs of enforcing its rights under this Lease
(including, without limitation, reasonable attorney's fees and expenses),
reletting expenses, expenses incurred putting the
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Leased Premises in good order and repair for rental, and brokerage fees together
with, as agreed liquidated damages, the greater of either (i) the amount by
which, at the termination of the Lease, the aggregate of the rent (including,
without limitation, the tax payments projected on the basis of experience under
this Lease) and other sums payable hereunder projected over a period from such
termination until the termination date stated herein as the same may have been
extended exceeds the aggregate projected fair market rental value of the
Leased-Premises for such period, or (ii) an amount equal to the rent (including,
without limitation, tax payments projected on the basis of experience under this
Lease) and other sums which would have been payable had the Lease not so
terminated (subject to off-set for net rents actually received from reletting
after subtraction of the expenses of reletting), payable upon the due dates as
specified herein.
LESSOR may bring legal proceedings for the recovery of such damages, or
any installments thereof, from time to time at its election, and nothing
contained herein shall be deemed to require LESSOR to postpone suit until the
date when the term of this Lease would have expired if it had not been
terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding
LESSOR'S recovery from LESSEE of any amount or damages (including, without
limitation, reasonable attorney's fees and expenses) to which, in addition to
the damages particularly provided above, LESSOR may lawfully be entitled by
reason of any default hereunder on the part of LESSEE.
LESSOR and LESSEE agree that, for the purpose of computing liquidated
damages, increased tax payments for the period between the termination of this
Lease pursuant to this Article and the date of termination called for hereunder
as the same may have been extended shall be computed upon the assumption that
the amount of the tax payment would increase for each fiscal year during the
term by an amount determined by applying the average annual percentage increase
over the three (3) Tax Years immediately preceding the Tax Year in which the
Lease is terminated.
19.2 LESSOR shall not be in default of any of its obligations unless it
shall fail to perform such obligations within thirty (30) days (or such further
time as is reasonably necessary) after receipt of written notice thereof from
LESSEE. LESSEE shall give like notice to any mortgagee which has so requested in
writing, which mortgagee shall have like opportunity to cure.
19.3 If LESSEE shall default in the observance or performance of any
term, covenant or condition on its part to be observed or performed under this
Lease, LESSOR, without being under any obligation to do so and without thereby
waiving such default, may remedy such default for the account and at the expense
of LESSEE, immediately and without notice in case of emergency, and in any other
case after LESSEE shall fail to remedy such default within the time set forth in
this Lease, and after LESSOR shall have given notice to LESSEE of such failure.
If LESSOR makes any expenditures or incurs any obligations for the payment of
money in connection therewith, including, but not limited to, reasonable
attorney's fees and
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expenses, such sums paid or obligations incurred, with interest at the rate of
eighteen percent (18%) shall be paid to LESSOR by LESSEE as rent hereunder.
ARTICLE XX - NOTICE
Any notice from the LESSOR to the LESSEE relating to the Leased
Premises or to the occupancy thereof, shall be deemed duly served, if left at
the Leased Premises addressed to the LESSEE or if mailed to the Leased Premises,
registered or certified mail, return receipt requested, postage prepaid, or by
Federal Express or other overnight mail service, addressed to the LESSEE. Any
notice from the LESSEE to the LESSOR relating to the Leased Premises or to the
occupancy thereof, shall be deemed duly served, if mailed to the LESSOR by
registered or certified mail, return receipt requested, postage prepaid, or by
Federal Express or other overnight mail service, addressed to the LESSOR c/o
Parsons Commercial Group, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000,
or at such other address as the LESSOR may from time to time advise in writing.
ARTICLE XXI - SURRENDER
The LESSEE shall at the expiration or other termination of this Lease
remove all LESSEE'S goods and effects from the Leased Premises, (including,
without hereby limiting the generality of the foregoing, all signs and lettering
affixed or painted by the LESSEE, either inside or outside the Leased Premises).
LESSEE shall deliver to the LESSOR the Leased Premises and all keys and locks
thereto, and other fixtures connected therewith and all alterations and
additions made to or upon the Leased Premises, in good condition, ordinary wear
and tear, only excepted. In the event of the LESSEE'S failure to remove any of
LESSEE'S property from the Leased Premises, LESSOR is hereby authorized, without
liability to LESSEE for loss or damage thereto, and at the sole risk of LESSEE,
to remove and store any of said property at LESSEE'S expense, or to retain same
under LESSOR'S control or to sell at public or private sale, without notice of
any or all of the property not so removed and to apply the net proceeds of such
sale to the payment of any sum due hereunder, or to destroy such property.
ARTICLE XXII - COVENANT OF QUIET ENJOYMENT
LESSOR hereby warrants that it and no other person or corporation has
the right to Lease the Leased Premises hereby demised. So long as LESSEE shall
perform each and every covenant to be performed by LESSEE hereunder (subject to
applicable grace periods), LESSEE shall have peaceful and quiet possession of
the Leased Premises without hindrance on the part of the LESSOR or persons
claiming by or through the LESSOR or anyone under LESSOR'S control.
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ARTICLE XXIII - NON-WAIVER
No reference to any specific right or remedy shall preclude LESSOR from
exercising any other right or from having any other remedy or from maintaining
any action to which it may otherwise be entitled either at law or in equity.
LESSOR'S failure to insist upon a strict performance of any covenant of this
Lease or to exercise any option or right herein contained shall not be a waiver
or relinquishment for the future of such covenant, right or option, but the same
shall remain in full force and effect.
ARTICLE XXIV - INTENTIONALLY OMITTED
ARTICLE XXV - APPLICABLE LAW
This Lease shall be construed under the laws of the Commonwealth of
Massachusetts. If any provision of this Lease, or portion thereof, or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not be effected
thereby and each provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
ARTICLE XXVI - NO PARTNERSHIP
Any intention to create a joint venture or partnership relation between
the parties hereto is hereby expressly disclaimed.
ARTICLE XXVII - LIABILITY
If two or more individuals, corporations, partnerships or other
business associations (or any combination of two or more thereof) shall sign
this Lease as LESSEE the liability of each individual, corporation, partnership
or other business association to pay rent and perform all other obligations
hereunder shall be deemed to be joint and several. In a like manner, if the
LESSEE named in this Lease shall be a partnership or other business association,
the members of which are, by virtue of statute or general law, subject to
personal liability, the liability of each such member shall be deemed to be
joint and several.
LESSEE shall neither assert nor seek to enforce any claim for breach of
this Lease against any of LESSOR'S assets other than LESSOR'S interest in the
Building and Industrial Park and in the rents, issues and profits thereof, and
LESSEE agrees to look solely to such interest for the satisfaction of any
liability of LESSOR under this Lease. In no event shall any individual Trustee
or beneficiary of the LESSOR (including without limitation all of the officers,
trustees, directors, partners, beneficiaries, joint ventures, members'
stockholders or other principals or representatives, disclosed or undisclosed,
thereof) ever be personally liable for any such liability or ever be liable for
damages, whether direct, consequential, punitive or otherwise. Each LESSOR shall
be liable only for events occurring during that person's ownership of LESSOR'S
estate.
22
ARTICLE XVIII - RULES AND REGULATIONS
The rules and regulations attached to this Lease as Exhibit C are made
a part of this Lease, and LESSEE agrees to comply with and observe the same.
LESSEE'S failure to keep and observe said rules and regulations shall constitute
a breach of the terms of this Lease in the manner as if the same were contained
herein as covenants. LESSOR reserves the right from time to time to amend or
supplement said rules and regulations and to adopt and promulgate additional
rules and regulations applicable to the Leased Premises, the Building, and the
Industrial Park. Notice of such additional rules and regulations, and amendments
and supplements, if any, shall be given to LESSEE and LESSEE agrees thereupon to
comply with and observe all such rules and regulations, and amendments thereto
and supplements thereof.
ARTICLE XXIX - EXAMINATION
The submission of this Lease for examination does not constitute a
reservation of or option for the Leased Premises, and this Lease becomes
effective only upon execution and delivery thereof by LESSOR and LESSEE.
ARTICLE XXX - ESTOPPEL
LESSEE agrees that at any time and from time to time at reasonable
intervals, within ten (10) days after written request by LESSOR, LESSEE will
execute, acknowledge and deliver to LESSOR, LESSOR'S mortgagee, or an assignee
designated by LESSOR, a writing ratifying this Lease and certifying: (a) that
LESSEE has entered into occupancy of the Leased Premises and the date of such
entry if such is the case; (b) that this Lease is in full force and effect, and
has not been assigned, modified, supplemented or amended in any way (or if there
has been any assignments, modification, supplement or amendment, identifying the
same) ; (c) that this Lease represents the entire agreement between LESSOR and
LESSEE as to the subject matter hereof (or if there has been any assignment,
modification, supplement or amendment, identifying the same) ; (d) the date of
commencement and expiration of the term; (e) that all conditions under this
Lease to be performed by LESSOR have been satisfied and all required
contributions by LESSOR to LESSEE on account of LESSEE'S improvements have been
received (and, if not, what conditions remain unperformed or contribution
unpaid); (f) that to the knowledge of the signer of such writing, except as
otherwise stated, no default exists in the performance or observance of any
covenant or condition in this Lease and there are no defense or offsets of which
the signer may have knowledge; (g) that Minimum Rent and all other rentals have
been paid under this Lease, if such be the case.
ARTICLE XXXI - SECURITY DEPOSIT
LESSEE, contemporaneously with the execution of this Lease, has
deposited with LESSOR the sum of Thirteen Thousand Four Hundred Sixteen Dollars
Sixty Seven Cents ($13,416.67), receipt of which is hereby acknowledged by
LESSOR. In the event that LESSEE commences occupancy of the Premises upon
receipt of notice that LESSOR'S work has been completed and otherwise commences
performing LESSEE'S obligations as LESSEE
23
under this Lease, then Six Thousand Two Hundred Twenty Nine Dollars Seventeen
Cents ($6,229.17) of the deposit shall be applied to the first full month's
Minimum Rent due hereunder. The balance of said deposit shall be held by LESSOR,
without liability for interest, as security for the faithful performance by
LESSEE of all of the terms, covenants, and conditions of this Lease by said
LESSEE to be kept and performed during the term hereof. If at any time during
the term of this Lease any of the rent herein reserved shall be overdue and
unpaid, the LESSOR may, at the option of the LESSOR, upon written notice to
LESSEE, appropriate and apply any portion of said deposit to the payment of any
such overdue rent or other sum. In the event of the failure of LESSEE to keep
and perform any of the terms, covenants and conditions of this Lease to be kept
and performed by LESSEE, then the LESSOR at its option, upon written notice to
LESSEE, may appropriate and apply said entire deposit or so much thereof as may
be necessary, to compensate the LESSOR for loss or damage sustained or suffered
by LESSOR due to such breach on the part of LESSEE. Should the entire deposit,
or any portion thereof, be appropriated and applied by LESSOR payment of overdue
rent for the payment of overdue rent or other sums due and payable to LESSOR by
LESSEE hereunder, then LESSEE shall, upon the written demand of LESSOR,
forthwith remit to LESSOR a sufficient amount in cash to restore said security
to the original sum deposited (less any amount applied to the first month's
rent), and LESSEE'S failure to do so within five (5) days after receipt of such
demand shall constitute a breach of this Lease. The said deposit, including any
additions thereto (or the balance thereof not applied to the first months rent
or obligations of LESSEE provided for herein), shall be returned in full to
LESSEE at the end of the term of this Lease.
ARTICLE XXXII - HOLDOVER
If the LESSEE remains in the Leased Premises beyond the expiration of
this Lease at the end of the term, or sooner following an early termination as
provided for herein, such holding over shall be deemed to create a
tenancy-at-will, subject to all of the LESSEE's obligations set forth herein,
but at a monthly rate equal to one hundred ten percent (110%) for the first
sixty (60) days and one hundred twenty five percent (125%) thereafter of the
fixed Minimum Rent and additional rent and other charges provided for under this
Lease. The tenancy-at-will may be canceled by either party with a thirty (30)
day written notice.
ARTICLE XXXIII - NOTICE OF LEASE
LESSEE agrees that it will not record this Lease. LESSOR and LESSEE
shall, upon request of either, execute and deliver a notice of this Lease in
such recordable form as may be required by applicable statute.
ARTICLE XXXIV - ALL AMOUNTS ARE RENT
All amounts payable by LESSEE to LESSOR under any provision of this
Lease shall be deemed to be rent or additional rent for the use of the Leased
Premises, and LESSOR'S remedies for the nonpayment of such amounts shall be
the same as for nonpayment of Minimum annual Rental.
24
ARTICLE XXXV - ACTS OF GOD
In any case where either party is required to do any act other than the
payment of rent, delays caused by or resulting from acts of God, war, civil
commotion, fire, flood or other casualty, labor difficulties, shortages of
labor, materials or equipment, unusual government regulations, unusually severe
weather or other causes beyond such party's reasonable control shall not be
counted in determining the time during which such act shall be completed,
whether such time be designated as a fixed date, a fixed time or "a reasonable
time", and such time shall be deemed to be extended by the period of such delay.
ARTICLE XXXVI - NO ACCORD AND SATISFACTION
No acceptance by LESSOR of a lesser sum than the Minimum Rent,
additional rent, or any other charge then due shall be deemed to be other than
on account of the earliest installment of such amount due, and notwithstanding
any endorsement or statement on any check or any letter accompanying any check
for payment, LESSOR may accept such check or payment without prejudice to
LESSOR'S right to recover the balance of such amount or pursue any other remedy
provided in this Lease or by law.
ARTICLE XXXVII - PARTIAL INVALIDITY
The invalidity of one 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.
ARTICLE XXXVIII - SIGNAGE
LESSOR shall cause LESSEE's name to be lettered on the front of the
Building with other lessees of the Building as part of a Building Directory.
LESSOR shall also cause LESSEE's name to be posted on the so-called "Park
Directory" at the entrance to the Industrial Park. LESSEE shall not install any
signage on the exterior of the Leased Premises or visible from outside the
Leased Premises, without LESSOR'S prior written approval upon submission of
detailed plans. LESSEE may install a free standing sign identifying LESSEE
adjacent to the walk in front of the Building, the size and location of which
shall be subject to the approval of LESSOR. All of LESSEE'S signage other than
the above-mentioned signage for the Building Directory and Industrial Park
Directory shall be erected at LESSEE'S sole cost and expense. All such signage
must comply in all respects with local legal requirements. LESSOR reserves the
right, at any time, to establish sign criteria to which all signs shall be made
to conform, at LESSEE'S sole expense.
25
ARTICLE XXXIX - BROKERS
LESSEE represents that it has not dealt with any person in connection
with the Leased Premises or the negotiation or execution of this Lease other
than Xxxxxxx & Xxxxxxxxx of Massachusetts, Inc. and Xxxxxxx Commercial Group.
LESSOR agrees to pay to Xxxxxxx & Xxxxxxxxx of Massachusetts, Inc. and Xxxxxxx
Commercial Group all fees and/or commission due in connection with this
transaction. LESSEE shall indemnify and save harmless the LESSOR from and
against all claims, liabilities, costs and expenses incurred as a result of any
breach of the foregoing representation by LESSEE.
ARTICLE XL - SUCCESSORS AND ASSIGNS
This Lease and the terms hereof shall be binding upon and inure to the
benefit of the parties hereto and their permitted successors and assigns.
ARTICLE XLI - RIGHT OF FIRST REFUSAL
The LESSEE is hereby given the right of first refusal to lease the
space adjacent to the Leased Premises designated Suite Number L-2 currently
occupied by Xxxxxxx Design and shown as outlined in blue on Exhibit A (the
"Adjacent Premises"). If at any time during the initial term of this Lease (i)
while there are at least twenty four (24) months remaining in the initial term,
or (ii) after LESSEE has exercised its option to extend hereunder, the Adjacent
Premises shall become vacant, LESSEE is not then in default hereunder beyond any
applicable grace period, and LESSOR has received an offer to lease all or part
of the Adjacent Premises, the LESSOR shall notify the LESSEE of such fact, and
the LESSEE shall thereupon have the right within ten (10) days from the receipt
of notice from LESSOR to elect to lease such Adjacent Premises. LESSEE may
exercise such right only by providing written notice of its election to exercise
such right to LESSOR within ten (10) days of receipt of LESSOR'S notice. If the
LESSEE shall not so elect within the said period, the LESSOR may then lease said
Adjacent Premises or any portion thereof to any potential lessee upon such
terms, conditions, and rental as LESSOR, in its sole discretion, determines. If
the LESSEE elects to exercise said right of first refusal, the Adjacent Premises
shall be delivered in "AS IS" condition on the later of ten (10) days after
receipt of LESSEE's notice and the date that the same became vacant. If the
LESSEE elects to exercise such right of first refusal, the parties shall enter
into an amendment to this Lease providing that the rent per square foot and
terms and conditions of lease of the Adjacent Premises shall be the same as
contained in this Lease and that this Lease shall be amended to include the
Adjacent Premises, and to the extent that LESSEE'S option to extend has or may
be exercised with respect to the Premises, it shall also be deemed to have been
exercised with respect to the Adjacent Premises. The right of first refusal
herein contained shall expire on the first to occur of the following (i) the
failure of the LESSOR and LESSEE to execute an amendment to this Lease for any
reason whatsoever within ten (10) days after the election by LESSEE to exercise
its right of first refusal, or (ii) LESSEE'S failure to notify LESSOR of its
exercise of its right to lease the Adjacent Premises after notice duly given by
LESSOR.
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ARTICLE XLII - OPTION TO EXPAND PREMISES
The LESSEE is hereby given the right during the term to lease the
approximately Five Thousand (5,000) square feet in the Building, contiguous to
the Premises and outlined in green on Exhibit A (the "Expansion Premises"). At
any time during the initial term of this Lease while there are at least twelve
(12) months remaining in the initial term, and provided LESSEE is not then in
default hereunder, the LESSEE shall have the right to elect to lease such
Expansion Premises by providing LESSOR with at least ninety (90) days advance
written notice of its election to lease the Expansion Premises beginning no
later than twelve (12) months prior to the expiration of the initial term. If
the LESSEE elects to exercise said option, the Expansion Premises shall be
delivered in "AS IS" condition and this Lease shall be amended to include the
Expansion Premises. Such amendment shall provide, inter alia, (i) for Minimum
Rent at the annual rate of Four Dollars ($4.00) per square foot during the
initial term and at Ninety Five Percent (95%) of fair market value as determined
in accordance with Article 4.2 hereof during the extension term, and (ii) that
any buildout agreed to between LESSOR and LESSEE which is accomplished by LESSOR
shall be amortized over the then remaining term of the Lease.
ARTICLE XLIII - FINANCING REQUIREMENTS
If in connection with obtaining financing for the Office Building, a
bank, insurance company, pension trust or other institutional lender shall
request reasonable modifications in this Lease as a condition to such financing,
LESSEE will not unreasonably withhold, delay, or condition its consent thereto,
provided that such modifications do not increase the obligations of LESSEE
hereunder or materially adversely affect the leasehold interest hereby created.
ARTICLE XLIV - CAPTIONS AND HEADINGS
The captions and headings used herein are intended only for the
convenience of the reference and are not to be used in construing this
instrument.
ARTICLE XLV - ENTIRE AGREEMENT
This Lease and the Exhibits hereto constitute the full and complete
agreement between the parties hereto and are no other terms, obligations,
covenants, representations, warranties or conditions other than contained
herein.
27
IN WITNESS WHEREOF, LESSOR and LESSEE have caused this Lease to be
signed, sealed and delivered as of the day first above written.
LESSOR: SEVEN OCTOBER HILL LLC. LESSEE:
By:/S/ Xxxx X. Xxxxxxx Xx. By: /S/ Xxxxx Xxxxx
------------------------------- -------------------------------
Its:Manager Member Its: President
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF MIDDLESEX DECEMBER 16, 1996
On this 16th day of December 1996 before me, personally appeared the
above-named Xxxx X. Xxxxxxx Xx. known to me to be the Manager Member of Seven
October Hill LLC., who, being by me duly sworn, acknowledged the foregoing
instrument to be his free act and deed as said Managing member of Seven October
Hill LLC.
[Notary Seal]
/S/ Illegible Signature
-----------------------
Notary Public
My Commission Expires:
00
XXXXXXXXXXXX XX XXXXXXXXXXXXX
XXXXXX XX XXXXXXXXX DECEMBER 16, 1996
On this 16th day of December 1996 before me personally appeared the
above-named Xxxxx Xxxxx, as President of Harvard Apparatus, Inc., who, being by
me duly sworn, acknowledged the foregoing instrument to be his free act and deed
and the free act and deed of the corporation.
[Notary Seal]
/S/ Illegible Signature
-----------------------
Notary Public
My Commission Expires:
29
Exhibit "A"
This is a floorplan of the basement level of 0 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx. The floorplan appears on the page sideways in a
landscape orientation. The scale, printed in the lower left corner, reads 1 cm =
15 feet. The depicted space is a rectangle measuring 20.5 cm across and 8.5 cm
high. There is a small rectangular protrusion on the right wall which is 1.7 cm
across and 1.3 cm high. This protrusion is 0.6 cm up from the bottom wall. The
floorplan is subdivided into four areas labeled Area A, B, C and D.
Area A occupies the entire 8.5 cm of the left wall. Area A extends 13.4
cm from the left wall at a width of 3.4 cm, as measured from the top of the
floorplan down. Area A then tapers to a width of 2.6 cm and extends another 1.6
cm towards the right wall. At the bottom of the floorplan, Area A extends 4 cm
from the left wall where it intersects with a stairwell shared with adjacent
Area C. Above the shared stairwell, which extends 2.0 cm from the bottom wall,
Area A opens out an additional 0.7 cm towards the right wall. Area A is shaded.
It includes twenty four spaces divided by internal walls. Two spaces located at
the top of the floorplan are labeled Loading Dock Doors 1 and 2.
Area B occupies a rectangular area in the center of the floorplan,
measuring 9 cm across by 1.6 cm high. It is situated between Areas A and C. A
narrow strip extends from the left side of Area B and runs downward 1.8 cm at a
width of 0.8 cm. Area B expands upward 1.0 cm at a point 13.4 cm from the left
wall. It extends upward again, in a narrow strip, at a point 14.9 cm from the
left wall. This strip measures 1.0 cm across and runs the remaining 2.5 cm to
the top wall where it is met by Loading Dock Door 3. Area B contains one space
divided by internal walls which is labeled Garage Door.
Area C is a rectangular space extending from the bottom wall measuring
11.5 cm across and 3.5 cm high. It begins 5.7 cm from the left wall. It contains
three spaces divided by internal walls. These spaces are labeled Stairs,
Sprinkler and Electrical.
Area D occupies the entire 8.5 cm of the right wall as well as the 1.7
cm by 1.3 cm protrusion described in the first paragraph above. It extends 4.4
cm towards the left wall, except as it narrows by 0.1 cm to accommodate a space
marked Garage Door. There are three spaces divided by internal walls along the
top wall of the floorplan. Loading Dock Door 4 is in Area D. It is located
along the top wall 3.6 cm from the right wall.
The bottom left corner of the page contains a small black square which
contains a white circle with a line through it. Immediately to the right of the
square is printed: X.X. Xxxxx Management Corp. 00 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000.
00
Xxxxxxx X
XXX XXXXXXXXX XXXXXXXXXX XXXX
XXX 000 XXXXXXXXX, XX
[graphic]
The graphic depicts the layout of the nineteen buildings that comprise
New Englander Industrial Park. One building at the bottom of the map is labeled
NAM. The remaining buildings are numbered one through eighteen. A note on the
top left corner of the map states: F denotes Phase II Conceptual only. Buildings
eleven through eighteen are marked with the letter F. Building seven appears at
the top of the map and is shaded. The words Subject Building appear above
Building seven with an arrow pointing downward to building seven. The Upper
Parking Lot is labeled and appears above and slightly to the right of building
seven. The map also depicts various lawns and trees within the industrial park.
31
SEVEN OCTOBER HILLS LLC.
EXHIBIT C
RULES AND REGULATIONS
1. In the event of any conflict between the terms of these rules and
regulations and the express provisions of the Lease, the express, applicable
provisions of the Lease shall control. LESSOR reserves the right, without the
approval of LESSEE, to rescind, add to and amend any rules or regulations, to
add new reasonable rules or regulations and to waive any rules or regulations
with respect to any lessee or lessees. LESSEE shall provide a copy of these
rules and regulations to each of its employees to facilitate compliance with
these standards.
2. The sidewalks, plaza entries, corridors and staircases of the
Building shall not be obstructed, and shall not be used by LESSEE, or the
employees, agents, servants, visitors or invitees of LESSEE, for any purpose
other than ingress and egress to and from the Premises. No skateboards, roller
skates, roller blades or similar items shall be used in or about the Building.
3. No freight, furniture or other large or bulky merchandise or
equipment of any description will be received into the Building except in such a
manner, during such hours and using such passageways and loading doors as may be
approved or designated by LESSOR, and then only upon having been scheduled in
advance. Any hand trucks, carryalls, or similar equipment used for the delivery
or receipt of merchandise or equipment shall be equipped with rubber tires, side
guards and such other safeguards as LESSOR shall reasonably require. All
deliveries and shipments shall be made to the loading docks at the rear of the
Premises except for small packages customarily brought to offices by U.S. mail,
package delivery services, or couriers. Although LESSOR or its personnel may
participate or assist in the supervision of such movement, LESSEE assumes
financial responsibility for all risks as to damage to articles moved and injury
to persons or public engaged or not engaged in such movement, including any
equipment, property or personnel of LESSOR damaged or injured in connection with
carrying out this service for LESSEE.
4. LESSOR shall have the right to prescribe the weight, position and
manner of installation of safes or other heavy equipment which shall, if
considered necessary by LESSOR, be installed in a manner which shall insure
satisfactory weight distribution. All damage done to the Building by reason of a
safe or any other article of LESSEE's equipment being on the Premises shall be
repaired at the expense of LESSEE. The time, routing and manner of moving safes
or other heavy equipment shall be subject to proper approval by LESSOR. No
objects which cause a loading factor of more than one hundred seventy five (175)
pounds per square foot shall be brought into the Premises.
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5. Only persons authorized by LESSOR will be permitted to furnish
newspapers, ice, drinking water, towels, barbering, shoe shining, janitorial
services, floor polishing and other similar services and concessions in the
Building, and only at hours and under regulations fixed by LESSOR.
Notwithstanding, this paragraph shall not interfere with LESSEE placing a
vending machine or some similar device within the Premises for the exclusive use
by LESSEE's employees.
6. LESSEE, or the employees, agents, servants, visitors or invitees of
LESSEE, shall not at any time place, leave or discard any rubbish, paper,
articles or object of any kind whatsoever outside the doors of the Premises or
in the corridors or passageways of the Building.
7. Except as otherwise set forth in Lease between LESSOR and LESSEE,
LESSEE shall not place, or cause or allow to be placed, any sign, placard,
picture, advertisement, notice or lettering whatsoever, in, about or on the
exterior of the Premises or Building except in and at such places as may be
designated by LESSOR and consented to by LESSOR in writing. Any such sign,
placard, advertisement, picture, notice or lettering so placed without such
consent may be removed by LESSOR without notice to and at the expense of LESSEE.
All lettering and graphics on doors and windows shall conform to the Building
standard prescribed by LESSOR.
8. LESSEE shall not place, or cause or allow to be placed, any
satellite dish, communications equipment, computer or microwave receiving
equipment, antennae or other similar equipment about or on the exterior of the
Premises, Building or Land without LESSOR's prior authorization, which may
require LESSEE to provide LESSOR of details of equipment and its installation
and to execute an agreement which may provide for rent for roof space utilized,
for LESSEE's indemnification of LESSOR and other provisions as LESSOR may deem
necessary. If LESSEE fails to get LESSOR's approval, any such equipment so
placed may be removed by LESSOR without notice to and at the expense of LESSEE.
9. Canvassing, soliciting, or peddling in the Building is prohibited
and LESSEE shall cooperate reasonably to prevent same.
10. If LESSEE desires additional security service for the Premises,
LESSEE shall have the right (with advance written notification to LESSOR) to
obtain such additional service at LESSEE'S sole cost and expense. LESSEE shall
keep doors to unattended areas locked and shall otherwise exercise reasonable
precautions to protect property from theft, loss or damage. LESSOR shall not be
responsible for the theft, loss or damage of any property or for any error--with
regard to the exclusion from or admission to the Building of any person. In case
of invasion, mob, riot or public incitement, the LESSOR reserves the right to
prevent access to the Building during the continuance of same by taking measures
for the safety of the lessees and protection of the Building and property or
persons therein and shall provide such notice to LESSEE as is practicable under
the circumstances.
33
11. Only workmen employed, designated or approved by LESSOR may be
employed for repairs, installations, alterations requiring LESSOR's approval,
painting, material moving and other similar work that may be done in or on the
Building.
12. LESSEE shall not bring or permit to be brought or kept in or on the
Premises or Building in violation or applicable law any flammable, combustible,
corrosive, caustic, poisonous, or explosive substance in violation of applicable
law, or firearms, in violation of applicable law or cause or permit any odors to
permeate in or emanate from the Premises, or permit or suffer the Building to be
occupied or used in a manner offensive or objectionable to LESSOR or other
occupants of the Building by reason of light, radiation, magnetism, noise, odors
and/or vibrations.
13. LESSEE shall not xxxx, paint, drill into, or in any way deface any
part of the Building or the Premises. No boring, driving of nails or screws,
cutting or stringing of wires shall be permitted, except with the prior written
consent of LESSOR which consent shall not be unreasonably withheld or delayed.
LESSEE shall not install any resilient tile or similar floor covering in the
Premises except with the prior approval of LESSOR, which approval shall not be
unreasonably withheld or delayed. Notwithstanding, LESSEE may hang pictures
which are used in the decoration of the Premises.
14. No additional locks or bolts of any kind shall be placed on any
door in the Premises and no lock on any door therein shall be changed or altered
in any respect. LESSEE shall not make duplicate keys. All keys shall be returned
to LESSOR upon the termination of this Lease and LESSEE shall give to LESSOR the
explanations of the combinations of all safes, vaults and combination locks
remaining with the Premises. LESSOR may at all times keep a pass key to the
Premises. All entrance doors to the Premises shall be left closed at all times
and left locked when the Premises are not in use.
15. LESSEE shall give immediate notice to LESSOR in case of known
theft, unauthorized solicitation or accident in the Premises or in the Building,
or of known defects therein or in any fixtures or equipment, or of any known
emergency in the Building.
16. LESSEE shall not use the Premises or permit the Premises to be used
for photographic, multilith or multigraph reproductions, except in connection
with its own business and not as a service for others without LESSOR's prior
written permission.
17. No animals or birds shall be brought or kept in or about the
Building, with the exception of guide dogs accompanying visually handicapped
persons.
18. No awnings, draperies, shutters or other interior or exterior
window coverings that are visible from the exterior of the Premises may be
installed by LESSEE without LESSOR's prior written consent.
34
19. LESSEE shall not place, install or operate within the Premises or
any other part of the Building any engine, stove, or machinery, or conduct
mechanical operations therein other than in the ordinary course of its business,
without the prior written consent of LESSOR.
20. No portion of the Premises or any other part of the Building shall
at any time be used or occupied as sleeping or lodging quarters.
21. LESSEE shall at all times keep the Premises neat and orderly.
22. The toilet rooms, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein. The expenses
of any breakage, stoppage or damage, resulting from the violation of this rule
shall be borne by the LESSEE who (or whose employees or invitees) shall have
caused such damage.
23. All LESSEE modifications resulting from alterations or physical
additions in or to the Premises must conform to all applicable building and fire
codes. LESSEE shall obtain written approval from the management office prior to
commencement of any such modifications and shall deliver as built plan to the
management office upon completion.
24. LESSEE agrees to place all indoor potted plants requiring water
within a container capable of collecting any water overflow, such containers to
be approved and/or supplied by LESSOR, at LESSEE's sole expense. LESSEE agrees
to use caution so that indoor plants do not damage or soil the Premises.
25. LESSEE shall not park (and shall insure that LESSEE's employees,
agents, and invitees do not park) in any reserved parking space other than those
reserved parking spaces, if any, specifically assigned to LESSEE. Any vehicle
improperly parked, or parked in any unauthorized parking area in the Building
and Land, shall be towed at the vehicle owner's expense and without further or
additional notice.
26. Persons using the parking areas do so at their own risk. LESSOR
specifically disclaims all liability, except when caused solely by its gross
negligence or willful misconduct, for any personal injury incurred users of the
parking areas, their agents, employees, family, friends, guests or invitees, or
as a result of damage to, theft of, or destruction of any vehicle or any
contents thereof as a result of the operation or parking of vehicles in the
parking areas.
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SEVEN OCTOBER HILLS LLC.
EXHIBIT D
DETERMINATION OF RENTAL DURING EXTENSION TERM
At least six (6) months prior to the commencement of the extension
term, and provided LESSEE has given LESSOR notice of LESSEE'S intention to
extend this Lease in accordance with Article 3 hereof, the LESSOR and LESSEE
shall meet and negotiate Minimum Rent for the extension term, based upon ninety
five percent (95%) of rates then in effect and prevailing for similar space in
the greater Ashland/Holliston, Massachusetts area. In the event the parties are
unable to mutually agree as to a rental rate for the extension term, the same
shall be determined by informal binding arbitration as follows:
A. At any time following the initial meeting of LESSOR and LESSEE
above-referenced, either party may commence informal binding arbitration
proceedings by providing the other party with written notice of the desire to
arbitrate rental.
B. Arbitration shall commence not later than thirty (30) days next
following forwarding of notice to arbitrate and be completed not later than
thirty (30) days next following the date the same commences unless other time
periods are mutually agreed upon by LESSOR and LESSEE.
C. The rules and procedures governing the proceedings shall be agreed
upon by the LESSOR and LESSEE, provided that to the extent LESSOR and LESSEE are
unable to agree on particular rules or procedures such aspects of the
proceedings shall be governed by the rules and procedures of the American
Arbitration Association.
X. XXXXXX and LESSEE agree to be bound by the following procedure
concerning selection of an arbitrator:
a. Arbitration shall be conducted by a single arbitrator
mutually acceptable to LESSOR and LESSEE. Absent
mutual agreement LESSOR and LESSEE shall each
designate a representative who shall meet and appoint
an arbitrator. The selection of the representatives
shall be final unless the individual selected becomes
unavailable in which case the representatives shall
again meet and designate a successor.
b. The decision of the arbitrator shall be final and
binding as regards the applicable rental rate.
c. Arbitration shall be held in Boston, Massachusetts.
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d. The foregoing procedure shall be the exclusive
procedure of determination of the rental rate
applicable to the extension term.
e. In the event a determination shall not be made
regarding rental for the extension term, prior to the
beginning of such term, the rate in effect
immediately prior to the commencement of the
extension term, increased in accordance with
Paragraph F hereof, shall be due and owing from
LESSEE to LESSOR as provided for in the within Lease,
and the same to be retroactively adjusted to the
commencement date of such extension term once
determined.
f. The sole determination to be made by the arbitrators
shall be the rental rates then in effect and
prevailing for similar space as the Leased Premises
in the Greater Ashland/Holliston, Massachusetts area.
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Exhibit "E" (tenant improvements to be completed as per plan)
[graphic]
This is a floorplan of the basement level of 0 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx. It has the same dimensions and internal divisions as
Exhibit A. The area labeled Area A in exhibit "A" contains thirty eight spaces
divided by internal walls. None of the other areas, as defined in exhibit "A",
have been changed.
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