EXHIBIT 10(i)
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LEASE AGREEMENT
BY AND BETWEEN
XXXXX X. XXXXXX, TRUSTEE OF SPI-TRUST
AS LANDLORD
AND
SPIRE CORPORATION
AS TENANT
DATED: MAY 23, 2003
THIS LEASE AGREEMENT (this "LEASE AGREEMENT") is hereby made and
entered into as of this 23rd day of May, 2003, by and between Xxxxx X. Xxxxxx,
Trustee of SPI-TRUST, established under a declaration of trust dated October 30,
1996, a certified copy of which is recorded with the Hillsborough County
Registry of Deeds, as of the date hereof at Book __________, Page __________,
having a mailing address of Xxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx, 00000
(the "LANDLORD") and Spire Corporation, a Massachusetts corporation, with an
address of Xxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx, 00000 (the "TENANT").
W I T N E S S E T H:
1. Lease of Premises. Subject to all of the provisions herein
contained, and in consideration of the rentals to be paid to Landlord by Tenant,
and the other covenants and agreements to be kept and performed by Tenant
hereunder, as hereinafter set forth, Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, the premises ("PREMISES") commonly known and
numbered as 00 Xxxxxxxx Xxxx Xxxx situated in the Town of Hudson, Hillsborough
County, New Hampshire, all as more particularly described on Exhibit A attached
hereto and made a part hereof. The Premises include all of the land (the "LAND")
included in the Premises, the building (the "BUILDING") located on the Premises,
all of the other improvements and fixtures (the "IMPROVEMENTS") located on the
Premises, the benefit of all of the easements, covenants, conditions and
restrictions benefiting the Premises, and the burden of all of the easements,
covenants, conditions and restrictions burdening the Premises. Except as
otherwise provided herein, the Tenant shall have the right to use the Premises
during the Term of this Lease for any lawful purpose. The square footage of the
Building upon which the Rental is based shall be 90,000 square feet.
2. Term. The term of this Lease Agreement shall be for a period of
five (5) years, beginning on the 1st day of June, 2003 (the "COMMENCEMENT DATE")
and, unless terminated as herein provided, continuing until expiration on the
31st day of May, 2008. Landlord hereby grants Tenant the right and option to
extend this Lease Agreement for two additional periods of five (5) years each,
commencing on June 1, 2008 and June 1, 2013, respectively, and, unless
terminated as herein provided, continuing until expiration on May 31, 2013 and
May 31, 2018, respectively. The extension options granted herein are conditioned
upon Tenant's not being in default beyond any applicable grace period of the
Tenant's covenants hereunder and upon Tenant's giving Landlord notice of its
intention to so extend on or before December 1, 2007 and December 1, 2012,
respectively.
3. Rent. For the use and occupancy of the Premises Tenant hereby
covenants and agrees to pay to or for the account of Landlord as rental
("RENTAL"), without deduction or offset, an annual fixed rental calculated at
the rate set forth in the chart below (hereinafter the "BASE RENTAL"), due and
payable in advance in monthly installments as set forth in the chart below, at
Landlord's business premises located at Xxx Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx, 00000, on the first day of each and every calendar month during
the term of this Lease Agreement; a prorated and proportional rent shall be due
for any periods of less than a calendar month at the commencement and expiration
of the lease term, all without set off or deduction except as may
be required by law in order to preserve any claim of Tenant thereto.
--------------- --------------- ------------------- ------------------
TERM YEAR RATE/FOOT ANNUAL RENT MONTHLY RENT
--------------- --------------- ------------------- ------------------
Year 1 $6.00 $540,000.00 $45,000.00
--------------- --------------- ------------------- ------------------
Year 2 $7.50 $675,000.00 $56,250.00
--------------- --------------- ------------------- ------------------
Year 3 $8.50 $765,000.00 $63,750.00
--------------- --------------- ------------------- ------------------
Year 4 $10.50 $945,000.00 $78,750.00
--------------- --------------- ------------------- ------------------
Year 5 $13.50 $1,215,000.00 $101,250.00
--------------- --------------- ------------------- ------------------
In addition to the Base Rental set forth above, Tenant hereby
covenants and agrees to pay the following on behalf of the Landlord as a part of
the Rental without deduction or offset.
(a) All real estate taxes, or taxes in the nature of real estate
taxes, or taxes assessed in lieu of or in addition thereto (except income taxes
of general application, inheritance, estate or like taxes) including special and
general assessments, however the same may be designated, levied or to be levied
by any taxing authority upon the Premises throughout the entire term of this
Lease Agreement; the same shall be paid by Tenant directly to such taxing
authority, whether mailed directly to Tenant or upon presentation of the tax
xxxx by Landlord, but in no event later than fifteen (15) days prior to the last
date upon which such taxes may be paid without interest or penalty. If the first
or last year of the term of this Lease Agreement shall not be co-extensive with
the tax year the amount of taxes payable by Tenant hereunder for such years
shall be prorated in proportion to the period of effectiveness of the Lease
Agreement during such years. Tax receipts shall be furnished to Landlord by
Tenant from time to time upon request to show Tenant's compliance herewith on a
current basis. If requested by any first mortgagee of the Premises, Tenant
agrees to instead make monthly deposits to such mortgagee on account of such
taxes in an amount reasonably estimated to be sufficient to pay such taxes when
they become due, provided that such deposits are maintained in a separate
account and any interest payable with respect thereto shall be payable to
Tenant.
(b) All costs of electricity, gas, fuel, water and sewage
assessed against the Premises, which services shall be placed in the name of
Tenant, and the bills therefore shall be mailed directly to Tenant and paid
directly by Tenant to the provider of such services.
(c) All other costs and expenses of every kind with respect to
operation, maintenance and repair of the Premises, excepting those undertaken by
Landlord pursuant to Section 7(b) hereof.
4. Cost of Living Adjustment. In the event that as of any
anniversary of the Commencement Date ("Anniversary Date") after the first
five-year term, there shall have been an increase in the CPI over the last
Anniversary Date, the fixed rental payable pursuant to Section 3 for the
succeeding year shall be subject to adjustment as herein provided. The amount of
such adjusted fixed rental shall be equal to the sum of: (i) the Base Rental;
plus (ii) the Base Rental multiplied times the Adjustment Percentage. In no
event shall the adjusted fixed rental calculated hereunder be less than the
rental payable during the preceding year. As used herein:
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the term "Base Rental" shall mean an annual rental as set forth in the chart in
Section 3 above; the term "CPI" shall mean the Consumer Price Index for Urban
Wage Earners and Clerical Workers for Boston, published by the United States
Department of Labor, Bureau of Labor Statistics, using ____ as base 100 (or any
other index which supercedes such index); the term "Adjustment Percentage" shall
mean the percentage derived from a ratio having as its denominator Y and as its
numerator the difference between X and Y where X is the monthly index number
last established under the CPI prior to the Anniversary Date in question and Y
is the monthly index number last established under the CPI prior to the
Commencement Date.
5. Security Deposit. At the time of the execution hereof, Tenant
shall deposit with the Landlord a security deposit (the "Security Deposit") in
the amount of $135,000.00 in cash to be held by Landlord without interest during
the term hereof, and any extensions, and for so long thereafter as Tenant is in
possession of the Premises or has unsatisfied obligations hereunder to Landlord,
which deposit the Landlord may apply from time to time against outstanding
obligations of Tenant hereunder. Each time that the monthly installment of Base
Rental shall increase, Tenant shall promptly pay Landlord as additional Security
Deposit the amount of any increase in such Base Rental, said additional sums to
be added to the Security Deposit held hereunder. Tenant shall have no right to
require the Landlord to so apply said Security Deposit, nor shall Tenant be
entitled to credit the same against rents or other sums payable hereunder. If
and to the extent that Landlord makes such use of the Security Deposit, or any
part thereof, the sum so applied by Landlord shall be restored to the Security
Deposit by Tenant upon notice from Landlord, and failure to pay to Landlord the
amount to be so restored (within the grace period applicable to rents hereunder)
shall be a default hereunder giving rise to all of the Landlord's rights and
remedies applicable to a default in the payment of rent. Any portion of said
Security Deposit which has not been applied as aforesaid by Landlord shall be
repaid by Landlord to Tenant after the end of the term and any extensions
hereof, or as soon thereafter as all obligations of Tenant under this Lease have
been performed in full. Upon any conveyance by Landlord of its interest under
this Lease the Security Deposit may be turned over by the Landlord to Landlord's
grantee or transferee, and upon any such delivery of the Security Deposit,
Tenant hereby releases Landlord herein named of any and all liability with
respect to the Security Deposit, its application and return, and Tenant agrees
to look solely to such grantee or transferee, and it is further understood that
this provision shall also apply to subsequent grantees and transferees.
6. Net Lease. It is the intention of the parties hereto that this is
a net lease and that all costs of ownership, maintenance and use of the Premises
shall be paid by Tenant in addition to the fixed rent specified above and other
sums payable by Tenant hereunder (each of which shall be treated as Rental, for
non-payment of which Landlord shall have all rights which Landlord would have
for non-payment of fixed rent hereunder), provided, however, that Landlord shall
be responsible for maintenance and repair of structural portions of the Building
in accordance with Section 7(b) hereof. Tenant shall pay to or on behalf of
Landlord, through the term of this Lease, the rent and other payments hereunder,
free of any charges, assessments, impositions or deductions of any kind, all of
which Tenant shall pay or discharge, without abatement, deduction or set off,
and Landlord shall not be required to make any payment of any kind whatsoever
hereunder (whether due to circumstances now existing or beyond present
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contemplation of the parties), except as herein otherwise set forth. The rights
of the parties in the event of a casualty to the Premises shall be governed by
Section 14 hereof.
7. Tenant's Covenants. Tenant further covenants and agrees as
follows:
(a) To maintain the Premises including the doors and windows
thereof in good repair, condition and order in accordance with good maintenance
practices; and to yield peaceable possession to Landlord of the Premises at
termination or expiration of this Lease Agreement free of all tenants and
occupants in as good repair and condition as at occupancy by Tenant or may be
put thereafter except for ordinary wear and tear, obsolescence, and damage
caused by fire (unless caused by Tenant's negligence or default and not insured
against or required to be insured against hereunder) or the elements.
(b) To comply fully with any applicable statutes, ordinances, and
lawful regulations, rules or orders pertaining to the Premises and to the
activities conducted thereon, to comply with all applicable rules or conditions
reasonably imposed with respect to the Premises by any insurance carrier, and to
prevent the existence of any nuisance, or the violation of any statute,
ordinance or valid rule, order or regulation with respect thereto and to save
Landlord harmless from any failure to do so.
(c) To keep the Building insured to the extent of building
replacement costs, against loss or damage by fire, windstorm, hail, explosion
and the other risks included in extended coverage policies from time to time,
subject, however to a "deductible" clause in the amount of $50,000 or such other
amount as Tenant shall reasonably request and Landlord shall approve, which
approval shall not be unreasonably withheld or delayed; all of such policies
shall name as insured Landlord, any first mortgagee of the Premises and Tenant,
as their respective interests may appear and shall provide that they may not be
cancelled without at least fifteen (15) days prior written notice to Landlord
(provided, that such additional notice does not result in the imposition of
additional premiums or charges by such insurer). Tenant agrees to furnish
Landlord with a certificate by the insurer as to the existence thereof, together
with a copy of such policy. Tenant may procure such insurance under a so-called
blanket policy insuring other locations of the Tenant, provided however, that
such policy shall provide on its face that such portion of the face amount as is
required by this Lease Agreement is payable with respect to covered loss
relating to the Premises and is not affected by losses on other premises.
(d) To the fullest extent permitted by law, to indemnify Landlord
fully against and to save Landlord harmless from loss, liability, costs,
expense, attorney's fees and court costs, arising directly or indirectly from
any claim or lawsuit by any person, firm, corporation, association or
governmental agency or authority whomsoever, including (but not limited to)
Tenant's officers, agents, employees or invitees, for damages assertedly
sustained to person or property by reason of any activity conducted by Tenant
upon the Premises, or of any breach by Tenant, its officers, agents, employees,
or invitees of the terms, provisions and conditions of this Lease Agreement, or
occurring upon the Premises or areas controlled by the Tenant by reason of the
conduct of the Tenant, its officers, agents, employees and invitees, regardless
of the merit or lack of merit of any such claim or lawsuit, of the fault or lack
of fault on the part of Landlord and regardless of the amount of insurance
carried; and further, to procure and keep in force, at
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Tenant's sole expense, public liability insurance covering the Premises, with
minimum limits of at least $5,000,000.00 for the death of or bodily injury to
any one person, and $5,000,000.00 for the death of or bodily injury to any
number of persons resulting from the same event, and of $3,000,000 for property
damage naming Landlord, any first mortgagee of the Premises and Tenant as
insureds, as their respective interests may appear, provided that if greater
coverage limits are normally carried under similar circumstances, Tenant agrees
to increase such coverage limits appropriately.
(e) To use its best efforts to prevent the filing or imposition
of any lien of any kind whatsoever upon or against the Premises based upon or
arising out of Tenant's actions, except by Landlord or with Landlord's prior
written consent and in the event of the filing or imposition of any such lien,
to discharge same or to obtain a surety bond sufficient to discharge same within
30 days following the date of any such filing or imposition.
(f) To permit Landlord to enter the Premises during normal
business hours and, subject to Tenant's reasonable security and confidentiality
requirements, where such entry will not unreasonably disturb or interfere with
Tenant's use of the Premises and the operation of Tenant's business, to examine,
inspect, provide Services or make repairs, replacements, changes or alterations
as set out in this Lease Agreement, and to take such steps as Landlord may
reasonably deem necessary for the safety, improvement or preservation of the
Premises. Landlord shall give reasonable notice to Tenant prior to any such
entry, except in the case of an emergency, but no such entry shall constitute an
eviction or entitle Tenant to any abatement of Rental.
(g) In the event that Tenant shall fail to perform any act
required by the foregoing covenants and such failure shall continue for a period
of 30 days after notice thereof from Landlord, Landlord may (but shall not be
obligated to do so) perform such act without waiving or releasing Tenant from
any of its obligations with respect thereto. Landlord shall be entitled to
recover from Tenant all sums paid or costs incurred in performing such acts on
demand.
8. Landlord's Covenants. The Landlord hereby represents, warrants,
covenants and agrees as follows:
(a) That Landlord has good and marketable title to the Premises,
free and clear of all liens and encumbrances that would materially interfere
with Tenant's intended use of the Premises; as of the date hereof, title to the
Premises is adequately insured with a reputable title insurance company under a
policy in form and amount as reasonably determined by Landlord; and Landlord has
full right and authority to lease the Premises and to carry out its obligation
under this Lease Agreement.
(b) To maintain all structural portions of the Premises including
foundations, roofs, exterior walls, structural members and other supporting
structures, in. good repair, condition and order; provided, however, that
Landlord's responsibility for repair and maintenance of roofs shall exclude
responsibility for repair of (i) leaks occurring by reason of roof penetrating
structures installed or constructed by Tenant after the Commencement Date; and
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(ii) isolated minor leaks properly repaired by simple patching procedures (as
opposed to a leak or series of leaks which properly require replacement or
restoration of all or any portion of a roof).
(c) To give Tenant prompt notice of the name and mailing address
of any mortgagee or holder of a first mortgage lien with respect to the Premises
and of any change therein.
9. Subletting. Subject to all of the provisions of this Lease
Agreement, all or any portion of the Premises may be sublet by Tenant with the
consent of Landlord, which consent shall not be unreasonably withheld or
delayed; but Tenant shall have no right to assign this Lease Agreement nor any
of its rights hereunder (other than assignment to an entity controlling,
controlled by or under common control with Tenant or pursuant to the sale of the
entire business and assets of the division of Tenant occupying the Premises
provided, however, that without the consent of Landlord no such assignment shall
relieve Tenant of liability hereunder), nor may same be assigned or passed to
another by operator of law, and any attempt to so assign, without the express
prior consent of Landlord, shall be utterly void. Tenant further agrees to
promptly provide Landlord with the name and address of the sublessee and a
description of the terms of the sublease arrangement. Tenant shall be entitled
to retain fifty percent (50%) of any premium over the Rental provided hereunder
which it receives under any such sublease.
10. Signs. Tenant shall be entitled to erect reasonable ground and
building signs, subject to approval of Landlord, which shall not be unreasonably
withheld. All signs installed by Tenant shall comply with all requirements of
appropriate governmental authorities, and all necessary permits or licenses
shall be obtained by Tenant. Tenant shall maintain all signs in good condition
and repair at all times, and shall save Landlord harmless from injury to person
or property, arising from the erection and maintenance of said signs. Upon
vacating the Premises, Tenant shall remove all signs and repair all damage
caused by such removal.
11. Alterations and Improvements by Tenant.
(a) Tenant shall have the right during the continuance of this
Lease Agreement to make such alterations, changes and improvements to the
Premises as may be proper and necessary for the conduct of Tenant's business and
for the full beneficial use of the Premises. Tenant shall not make any
structural change in the Premises without first having obtained Landlord's
written consent thereto, without limitation Landlord may condition any such
consent by reserving the right to require the Premises to be restored to the
same condition they were in prior to the making of any such structural change.
Tenant shall pay all costs and expenses of such alterations, changes, and
improvements, shall make the same in a good and workmanlike manner, and in
accordance with all applicable laws, codes, and building regulations, and shall,
prior to the making of such alterations, changes, and improvements, assure
Landlord, in form satisfactory to Landlord, that payment for the same will be
made by Tenant. Tenant hereby completely and fully indemnifies Landlord against
any Mechanic's Liens or other liens or claims in connection with the making of
such alterations, changes, and improvements. Any liens arising out of such
alterations, changes, and improvements shall be discharged of record by Tenant
within thirty (30) days after the same have been filed. Tenant shall pay any and
all taxes relating to its personal property and business
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(b) Except as otherwise provided, all signs, furnishings, trade
fixtures and other removable equipment installed in the Premises by Tenant and
paid for by Tenant shall remain the property of Tenant and shall be removed by
Tenant upon the termination of this Lease Agreement provided that any of such as
are affixed to the Premises and require severance shall be removed at Tenant's
cost, and Tenant shall immediately repair any damage caused by such removal.
12. Waiver of Subrogation. Each of Landlord and Tenant hereby
releases the other from any and all liability or responsibility to the other or
anyone claiming through or under them by way of subrogation or otherwise for any
loss or damage to property caused by fire or any other perils insured or
required to be insured against in policies of insurance covering such property,
even if such loss or damage shall have been caused by the fault or negligence of
the other party, or anyone for whom such party may be responsible, including any
sub-tenants or other occupants of the Premises; provided, however, that this
release shall be applicable and in force and effect only to the extent that such
release shall be lawful at that time and in any event only with respect to loss
or damage occurring during such times as the releasor's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Each of Landlord and Tenant agrees that it will request its
insurance carriers to include in its policies such a clause or endorsement. If
extra cost shall be charged therefor, each party shall advise the other thereof
and of the amount of the extra cost, and the other party, at its election, may
pay the same, but shall not be obligated to do so. If such other party fails to
pay such extra cost, the release provisions of this paragraph shall be
inoperative against such other party to the extent necessary to avoid
invalidation of such releasor's insurance.
13. Subordination.
(a) Tenant, upon demand by Landlord, agrees to give a waiver of
priority of Tenant's lien arising by virtue of the within leasehold estate,
thereby subordinating Tenant's lien in favor of any mortgage loan, any mortgage
lien, or any refinancing or replacing of a mortgage loan that Landlord may
determine necessary or desirable from time to time, which election may be
changed from time to time. Tenant agrees to execute such instruments as may be
required by any such lending institution or prospective first mortgagee in order
to effectuate such waiver of priority and subordination of Tenant's lien and
such certificates as to the status of this Lease Agreement and other matters as
such mortgagees shall reasonably require. Tenant shall be bound by and observe
all conditions of said mortgage which shall require the giving of reports and
copies of notices to any such mortgagees, as well as those which afford such
mortgagees the opportunity to cure any default of Landlord hereunder and,
subject to paragraph (b) below, to take possession of the Premises without
liability for any default of the Landlord occurring prior thereto or which
cannot reasonably be cured by such mortgagee not be subject to any offset or
defenses on account thereof nor bound by any prepayment of rent beyond the then
current period. In the event any proceedings are brought for foreclosure, or in
the event of the exercise of the power of sale under any mortgage or deed of
trust, Tenant shall attorn to the purchaser in any such foreclosure or sale and
recognize such purchaser as landlord under this Lease Agreement.
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(b) Upon the request of Tenant, Landlord shall procure from any
such lending institution or mortgagee an agreement in writing, which shall be
delivered to Tenant, providing in substance that so long as Tenant shall
faithfully discharge the obligations on its part to be kept and performed under
the terms of this Lease Agreement, Tenant's tenancy will not be disturbed nor
this Lease Agreement affected by any default under such mortgage, and Tenant
agrees that this Lease Agreement shall remain in full force and effect even
though default in the mortgage may occur.
14. Limitation of Landlord Liability.
(a) If Landlord shall fail to perform any covenant term or
condition of this Lease Agreement upon Landlord's part to be performed and, as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the interest of Landlord
in the Premises or mortgage proceeds therefrom and Landlord shall not be liable
for any deficiency. It is understood and agreed that in no event shall Tenant
have any right to levy execution against any property of Landlord other than its
interest in the Premises as hereinbefore expressly provided. Upon receipt of
notice to do so from any first mortgagee of the Premises, Tenant agrees to give
written notice to such mortgagee in the event of any default hereunder by
Landlord.
(b) To the fullest extent permitted by law, Tenant hereby agrees
that Landlord shall not be liable for any claim for damage to person or property
sustained by Tenant or any person claiming through Tenant resulting from any
accident or occurrence in, about, or upon the Premises unless due to the fault
or negligence of Landlord and Landlord's failure to make such repairs as it is
obligated to make within a reasonable period after notice from Tenant of the
need for such repairs. Said waiver shall include claims for unforeseen acts or
events resulting in damage or injury to person or property sustained by Tenant
or any person claiming through Tenant.
(c) Landlord shall not be deemed to be in default of its
obligations under this Lease Agreement unless Landlord or any mortgagee of which
Tenant has been given notice pursuant to Section _______ shall have received
notice thereof and such default shall continue uncured for a period of thirty
(30) days following receipt of such notice. No performance by any such mortgagee
of Landlord's obligations or exercise of its rights, undertaken in a
commercially reasonable manner, shall subject such mortgagee to any liability
under this Lease Agreement.
15. Casualty to Premises.
(a) If, during the term hereof, the Premises shall be destroyed
or so damaged by fire or other casualty as to be unfit, in whole or in part, for
occupancy and such destruction or damage can reasonably be repaired to
substantially the same form and condition and with substantially the same
materials as before such destruction or damage, within nine (9) months following
the date thereof, then Tenant shall not be entitled to surrender possession of
the Premises nor shall Tenant's liability to pay rent under this Lease Agreement
cease without the
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mutual consent of the parties hereto. In the event of any such destruction or
injury, Landlord shall repair the same with all reasonable speed and shall
complete such repairs within nine (9) months from the date of such damage or
destruction. If during such period Tenant shall be deprived of the use of all or
any portion of the Premises, a proportionate allowance shall be made to Tenant
from the Rental corresponding to the time during which and to the portion of the
Premises of which Tenant shall be so deprived.
(b) If such destruction or injury cannot reasonably be repaired
to such former condition within nine (9) months from the date of such
destruction or damage, Landlord shall notify Tenant within sixty (60) days after
the happening of such destruction or damage whether or not Landlord will repair
or rebuild. If Landlord shall elect to repair or rebuild, Landlord shall specify
the time within which such repairs or reconstruction will be completed, and
Tenant shall have the option, exercisable within thirty (30) days after the
receipt of such notice, to elect either to terminate this Lease Agreement and
any further liability hereunder or to extend the term of the Lease Agreement (at
the rental in effect immediately preceding expiration of the normal term hereof)
by a period of time equivalent to the time from the happening of such
destruction or injury until the Premises are restored to such former condition.
In the event Tenant elects to extend the term of the Lease Agreement, Landlord
shall restore the Premises to such former condition within the time specified in
such notice, and Tenant shall not be liable to pay Rental for the period from
the time of such destruction or injury until the Premises are so restored to
such former condition.
(c) In the event that Landlord does not elect to repair or
rebuild the Premises pursuant to paragraph (b) above, then Tenant may at its
option: (i) terminate this Lease Agreement and any further liability hereunder;
or (ii) continue this Lease Agreement with the Rental adjusted to reflect the
diminution in the value of the Premises effected by such destruction or damage,
effective as of the date of such destruction or damage after such
reconstruction.
(d) In the event of any such destruction or damage, Tenant shall
be entitled to reduction or abatement of Rental only as provided in this Section
14; Tenant shall not be entitled to any reduction or abatement in Rental
hereunder if any such damage or destruction is caused by an act or omission of
Tenant, its officers, agents, employees or invitees except to the extent that
Landlord shall be insured against same and receive the proceeds of such
insurance. Landlord shall have no liability to Tenant by reason of any injury to
or interference with Tenant's business or property arising from any such
destruction or damage unless caused by an act or omission of Landlord. Landlord
shall in no event be liable for any such injury or interference resulting from
the making of any repairs to the Premises undertaken by Landlord in good faith.
16. Condemnation.
(a) In the event that the entire Premises shall be taken by
condemnation or right of eminent domain, this Lease Agreement shall terminate as
of the day possession shall be taken by the taking authority, and Landlord and
Tenant shall be released from any further liability hereunder thereafter
accruing.
(b) In the event that only a portion of the Premises shall be
taken by
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condemnation or right of eminent domain and the portion so taken renders the
balance unsuitable for the purpose of this Lease Agreement, the Tenant may, at
its option, elect to terminate this Lease Agreement effective as of the day
possession shall be taken, provided thirty (30) days notice of such termination
is given. If, in such case, this Lease Agreement is not terminated, Landlord
may, at its option restore the Premises with reasonable speed to an
architectural unit as nearly like its condition prior to such taking as shall be
practicable, and if during and/or after the work of restoration, Tenant is
deprived of the use of all or a part of the Premises, an appropriate reduction
of Rental, depending upon the time during which and the portion of said Premises
of which Tenant is so deprived, shall be granted. In the event Landlord elects
not to so restore the Premises, then Tenant may at its option: (i) terminate
this Lease Agreement and any further liability hereunder; or (ii) continue this
Lease Agreement with the Rental adjusted to appropriately reflect the diminution
in value of the Premises effected by such taking, effective as of the date
thereof.
(c) All damages awarded in connection with the taking of the
Premises, whether allowed as compensation for diminution in value to the
leasehold or to the fee of the Premises, shall belong to the Landlord.
Notwithstanding the foregoing, Tenant shall be entitled to make a separate claim
for damage to merchandise and moveable trade fixtures, and removal,
re-installation, and moving expenses, provided it does not reduce the award
payable to Landlord.
17. Default.
(a) If: (1) there be default in payment of any Rental which,
shall continue for a period of ten (10) days following receipt by Tenant of
notice thereof from Landlord; or (.ii) there shall be default in any other of
Tenant's obligations hereunder or if the Premises be abandoned or vacated by
Tenant, and if such default or condition shall continue for a period of thirty
(30) days following receipt by Tenant of notice from Landlord to make good such
default or correct such condition; or (iii) any proceedings under the present or
any future Bankruptcy Act be instituted by or against Tenant, or any receiver or
trustee be appointed for or ordered to dispose of Tenant's business or property,
or if Tenant makes any assignment or conveyance for benefit of creditors and if
any such proceeding instituted against Tenant shall not be dismissed within 20
days following the date of such institution; then, in such event Landlord shall
have the right, immediately or at any time thereafter, to enter upon the
Premises in the name of the whole and repossess the same as if its former estate
and expel Tenant and all those claiming by, through or under it, and remove
their goods and effects (forcibly if necessary) and store the same on behalf of
Tenant without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent or
other default hereunder and upon entry as aforesaid this Lease Agreement shall
be terminated. Landlord, at its election, may effect such termination by written
notice to Tenant to that effect, which shall have the same force as an entry for
breach as provided in this Section 16. In case of such termination, Landlord
shall become entitled to receive from Tenant, and Tenant shall pay to Landlord
on demand, as initial liquidated damages, a sum equal to the amount by which the
sum of the rent and other payments called for hereunder for the remainder of the
term exceeds the fair rental value of the Premises for the remainder of the
term. Further, Tenant shall, on demand of Landlord, from time to time indemnify
Landlord against all loss of rent, other payments and damages, however caused,
which it may incur by reason of such termination during the remainder of the
term, first giving credit to
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any payments made by Tenant to Landlord on account of initial liquidated damages
as aforesaid. In computing such damages there shall be added such reasonable
expenses as Landlord may incur in connection with such termination and/or
reletting, such as legal expenses, brokerage, expenses for keeping the Premises
in good order and for preparing the same for reletting and expenses and/or
decorations in the Premises as may be necessary for the purpose of reletting.
Landlord shall also have the right to pursue such other rights and remedies as
may be allowed at law or equity against Tenant, and any and all other parties
who may be liable. All such remedies shall be cumulative. Provided, however, if
any such default be under clause (ii) above and it would take more than thirty
(30) days to cure the same, Landlord shall not forfeit the lease created hereby,
enter upon the Premises or exercise any of the other remedies herein provided
for such default if Tenant begins the cure thereof within such period and
pursues same with reasonable due diligence to completion.
18. Quiet Enjoyment. The Landlord covenants and agrees with Tenant
that as long as the Tenant keeps and performs all of the covenants and
conditions to be performed by Tenant hereunder, during the term of this Lease
Agreement Tenant shall have quiet and undisturbed and continued possession of
the Premises, free from any claims against the Landlord and all persons claiming
under, by or through the Landlord.
19. General Provisions. (a) Words of any gender used herein shall be
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires, (b) the terms
and provisions of this Lease Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors, permitted
assigns and legal representatives; (c) the headings used herein are for
reference purposes only and do not affect the meaning or construction hereof;
(d) this Lease Agreement may not be altered or amended and no waiver of any of
the provisions hereof shall be effective except by an instrument in writing
signed by both parties hereto; (e) all notices, consents, waivers or demands
hereunder shall be in writing and shall be delivered or mailed by Registered or
Certified mail, postage paid, to the party to whom given at the address set
forth above or at such other address as such party may specify in accordance
with this clause; (f) if any provision of this Lease Agreement shall be held to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Lease Agreement shall not in any way be
affected or impaired thereby; (g) this Lease Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts; (h)
each of the parties represents and warrants to the other that it has not dealt
with any broker or finder in connection with this Lease Agreement and agrees to
indemnify and hold the other harmless from and against any claims, liabilities
or losses (including attorney's fees) arising out of a breach of this warranty;
(i) Landlord and Tenant shall each have the right to contest in good faith the
validity or amount of any tax, assessment, license fee, excise fee and other
charge for which it is responsible under this Lease Agreement provided that no
contest by Tenant may be undertaken unless tenant shall, upon Landlord's
request, deposit with Landlord adequate and sufficient security against any loss
or damage which may ensue or involve the reasonable possibility of forfeiture,
sale or disturbance of Landlord's interest in the Premises and that upon the
final determination of any contest by Tenant, Tenant shall immediately pay and
satisfy the amount found to be due, together with any costs, penalties and
interest; (j) in any case where either party hereto is required to do any act,
other than the making of any payment of Rental, the time for performance
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thereof shall, be extended for a period equal to any delay caused by or
resulting from any act of God, war, civil commotion, fire, casualty, labor
difficulties, shortages of labor, materials or equipment, governmental
regulations or other causes beyond such party's reasonable control, to the
extent that the performance of such obligation was actually prevented thereby;
and (k) this instrument constitutes the entire agreement between the parties
relating to the subject matter hereof and supercedes all prior negotiations,
contracts or understandings.
[Remainder of Page Left Intentionally Blank]
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Signature Page to Lease
(Sagamore Road)
EXECUTED as a sealed instrument as of the date first hereinabove stated.
LANDLORD
SPI-TRUST
By: /s/Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx Xxxxxx, Trustee
and not individually
TENANT
SPIRE CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
Treasurer
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