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EXHIBIT 10.40
ADDENDUM "A"
TO LEASE DATED SEPTEMBER 1, 1996
000 XXXX XXXXXX, XXXXX XXXXX
XXXXXXXXXX
3.4 Lessee shall have the option to renew this Lease for two (2) separate
five (5) year option periods subsequent to August 31, 2001. Monthly rent
will be ninety percent (90%) of the then current fair market monthly
rent ("Fair Market Rent") for the Premises as of the commencement date
of the applicable extended term, as determined by the agreement of the
parties or, if the parties cannot agree within sixty (60) days prior to
the commencement of such extended term, then by an appraisal. All other
terms and conditions contained in this Lease shall remain in full force
and effect and shall apply during the option terms. Lessee shall give
Lessor at least ninety (90) days notice of its intent to exercise this
option.
If it becomes necessary to determine the Fair Market Rent of the
Premises by appraisal, real estate appraiser(s), all of whom shall be
members of the American Institute of Real Estate Appraisers and who have
at least five (5) years experience appraising industrial space located
in the vicinity of the Premises shall be appointed and shall act in
accordance with the following procedures:
If the parties are unable to agree on the Fair Market Rent within the
allowed time, either party may demand an appraisal by giving written
notice to the other party, which demand to be effective must state the
name, address and qualifications of an appraiser selected by the party
demanding an appraisal (the "Notifying Party"). Within ten (10) days
following the Notifying Party's appraisal demand, the other party (the
"Non-Notifying Party") shall either approve the appraiser selected by
the Notifying Party or select a second properly qualified appraiser by
giving written notice of the name, address and qualification of said
appraiser to the Notifying Party. If the Non-Notifying Party fails to
select an appraiser within the ten (10) day period, the appraiser
selected by the Notifying Party shall be deemed selected by both parties
and no other appraiser shall be selected. If two appraisers are
selected, they shall select a third appropriately qualified appraiser.
If the two appraisers fail to select a third qualified appraiser, the
third appraiser shall be appointed by the then presiding judge of the
county where the Premises are located upon application by either party.
If only one (1) appraiser is selected, that appraiser shall notify the
parties in simple letter form of its determination of the Fair Market
Rent for the Premises within fifteen (15) days following his selection,
which appraisal shall be conclusively determinative and binding on the
parties as the appraised Fair Market Rent. If multiple appraisers are
selected, the appraisers shall meet not later than ten (10) days
following the selection of the last appraiser. At such meeting the
appraisers shall attempt to determine the Fair Market Rent for the
Premises as of the commencement date of the extended term by the
agreement of at least two (2) of the appraisers. If two (2) or more of
the appraisers agree on the Fair Market Rent for the Premises at the
initial meeting, such agreement shall be determinative and binding upon
the parties hereto and the agreeing appraisers shall, in simple letter
form executed by the agreeing appraisers, forthwith notify both Lessor
and Lessee of the amount set by such agreement. If multiple appraisers
are selected and two (2) appraisers are unable to agree on the Fair
Market Rent for the Premises, all appraisers shall submit to Lessor and
Lessee an independent appraisal of the Fair Market Rent for the Premises
in simple letter form within twenty (20) days following appointment of
the final
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appraiser. The parties shall then determine the Fair Market Rent for the
Premises by averaging the appraisals; provided that any high or low
appraisal, differing from the middle appraisal by more than ten percent
(10%) of the middle appraisal, shall be disregarded in calculating the
average.
The appraisers' determination of Fair Market Rent shall be based on
rental of space of the same age, construction, size and location as the
Premises with the improvements installed therein at Lessor's expense and
shall take into account Lessee's obligations to pay additional rent
under this Lease. In determining Fair Market Rent, the appraisers shall
not consider any alterations installed in the Premises at Lessee's
expense.
If only one (1) appraiser is selected, then each party shall pay
one-half of the fees and expenses of that appraiser. If three (3)
appraisers are selected, each party shall bear the fees and expenses of
the appraiser it selects and one-half of the fees and expenses of the
third appraiser.
Notwithstanding anything to the contrary contained in this Lease, if the
rent during any extended term is determined by appraisal and if Lessee
does not, in its sole discretion, approve the rental amount established
by such appraisal, Lessee may rescind its exercise of the option by
giving Lessor written notice of such election to rescind within ten (10)
days after receipt of all appraisals. If Lessee rescinds its exercise of
the option, then (i) this Lease shall terminate on the thirtieth (30th)
day after Lessee's notice of rescission or on the date this Lease would
have otherwise terminated absent Lessee's exercise of the option,
whichever date is later; and (ii) Lessee shall pay all costs and
expenses of the appraisal.
7.5(a) Lessee may make such alterations, additions or utility installations as
are reasonably necessary to conduct its media manufacturing business. At the
end of this Lease (including option periods), Lessee will restore the building
to its original condition except for structural improvements and insulation,
subject only to normal wear and tear.
8.3(a) Lessee will provide insurance to cover any liability or contingent
liability arising from the improper discharge of waste materials, toxic
chemicals and or polluted water.
9.6(b) If Lessor shall be obligated to repair or restore the Premises under
the provisions of this Xxxxxxxxx 0, Xxxxxx may at Lessee's option undertake
such repair and restoration. In such event, Lessor shall assign the proceeds
of any applicable insurance to Lessee to the extent of the required repairs or
restoration.
48 Lessor hereby grants to Lessee a right of first refusal (the "Right of
First Refusal") to purchase all or any portion of the Premises or
interest therein that Lessor elects to offer for sale (the "Transfer
Premises"). If Lessor proposes to sell or otherwise transfer the
Transfer Premises to a third party at any time during the term of this
Lease (including extension options), Lessor shall first give Lessee
written notice of its intent to sell or transfer the Transfer Premises
("Lessor's Notice"). Lessor's Notice shall include all of the material
business terms (the "Business Terms") upon which Lessor is willing to
sell the Transfer Premises, including, without limitation, the price,
the amount and terms of any seller financing, the amount and terms of
any assumable third party financing, the date for close of escrow, the
state of title to be transferred, and the method of proration of closing
expenses. A copy of any written offer to purchase the Transfer Premises
by any third party shall be attached to Lessor's Notice.
Lessee may elect to exercise its Right of First Refusal by giving Lessor
written notice of such election on or before the twentieth (20th)
business day following actual receipt of Lessor's Notice. Upon Lessee's
exercise of the Right of First Refusal, Lessor shall sell the Transfer
Premises to Lessee on the Business
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Terms stated in Lessor's Notice. If Lessee does not elect in writing to
exercise its Right of First Refusal within the allowed time period, Lessor
thereafter shall have the right to transfer the Transfer Premises that has
been offered to Lessee; provided (i) the sale is consummated on the Business
Terms set forth in Lessor's Notice, and (ii) escrow for the sale closes on
or before the ninetieth (90th) day following Lessee's receipt of Lessor's
Notice. any sales transaction or transfer, other than a sale or transfer
complying with the foregoing, shall be deemed a new determination by Lessor
to sell the Transfer Premises and no such sale may be consummated unless
Lessee is first offered the right to purchase the Transfer Premises in
accordance with the provisions of this Right of First Refusal. Lessee's
failure to exercise its Right of First Refusal with respect to any
particular transaction shall not be deemed a waiver of its Right of First
Refusal with respect to any other transaction.
49 The parties agree that, as of the Commencement Date of this Lease, this
Lease shall supersede and entirely replace that certain lease dated as of
June 1990 by and between Lessor and Nashua Computer Products Corporation
(the "Original lease") and the Original Lease shall be null, void and of no
further force and effect.
