THE XXXXXXX COMPANY
STANDARD FORM OF INDUSTRIAL LEASE
SUBMISSION NOT AN OPTION
THE SUBMISSION 0F THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT CONSTITUTE
AN OFFER TO LEASE. A RESERVATION OR, OR OPTION FOR THE PREMISES AND SHALL VEST
NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR THROUGH TENANT SHALL
HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN AND THIS LEASE BECOMES
EFFECTIVE AS A LEASE ONLY UPON EXECUTION, ACKNOWLEDGMENT AND DELIVERY THEREOF BY
LANDLORD AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL REPRESENTATION OF ANY
AGENT, MANAGER OR EMPLOYEE OF LANDLORD TO THE CONTRARY.
Revision Date: 10/85
Lease Agreement
(Standard Industrial Form)
This lease is made as of this 14th day of May, 1991, by and between the party
named as landlord in the "Basic Data" set forth below (hereinafter "Landlord")
and the party named as tenant in the "Basic Data" set forth below (hereinafter
"Tenant"). In consideration of the mutual convenants herein set forth, the
parties agree as follows:
1. INCORPORATION OF BASIC DATA. All capitalized terms in this Lease shall
have the meanings as described to them in the Basic Data set forth below unless
otherwise defined herein.
BASIC DATA
LANDLORD. shall mean Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company, having a
principal place of business and current mailing address at 00 Xxxxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxxx, XX 00000.
TENANT: shall mean TyLink Corporation, having a principal place of
business and current mailing address at 00 Xxxxxxxx Xxx, Xxxxxx, XX 00000.
PREMISES: shall mean 25,220 square feet, which shall include at least
9,4000 square feet of office space, being the approximate size of the Premises
and the basis on which Annual Rent and Additional Rent shall be paid by Tenant
to Landlord, in the building located at Norton Commerce Center, 00 Xxxxxxxx Xxx,
Xxxxxx, XX 00000 (the "Building"), which Building is located on a lot (the
"Lot"), all as such Premises, Building and Lot are described and/or outlined in
Exhibit A.
TERMS: shall mean the period of five (5) years commencing upon the
Commencement Date.
SECURITY DEPOSIT: shall mean the sum of TEN THOUSAND FIVE HUNDRED EIGHT AND
33/100 ($10,508.33) DOLLARS paid this day by Tenant to Landlord, to be held by
Landlord pursuant to the terms of Paragraph 4 of this Lease.
ANNUAL RENT: shall mean the annual sum of ONE HUNDRED TWENTY-SIX THOUSAND ONE
HUNDRED AND 00/100 ($126,100.00) DOLLARS, payable in equal monthly installments
of TEN THOUSAND FIVE HUNDRED EIGHT AND 33/100 ($10,508.33) DOLLARS, for the Term
of this Lease payable in accordance with Paragraph 5 of this Lease plus all
other charges, amounts, reimbursements or other sums (collectively "Additional
Rent") to be paid by Tenant to Landlord in accordance with Paragraph 6 and any
other terms of this Lease calling for the payment of money by Xxxxxx to
Landlord.
USE: shall mean general offices, light manufacturing, and
manufacturing and distribution of electronic products and no other use or
purpose whatsoever.
COMMENCEMENT DATE: shall mean May 1, 1991.
RENT/COMMENCE DATE: Annual Rent as described hereinabove shall commence on May
1, 1991. Notwithstanding the foregoing, Landlord hereby grants to Tenant a rent
allowance in the amount of TWO THOUSAND AND 00/100 dollars per month, and at
that rate for any fraction of a month, effective with the Commencement Date of
this Lease and continuing until the date the construction as detailed on Exhibit
"A-2", attached hereto and made a part hereof, is substantially completed with
the exception of minor items which can be fully completed within thirty (30)
days without material interference with Xxxxxx's occupancy of the Premises.
TENANT'S PRO RATA SHARE: shall be based on the fraction:
25,220
50,100
TENANT'S INSURANCE REQUIREMENTS: Public Liability: ONE MILLION AND 00/100
($1,000,000.00) DOLLARS for injury to one person, ONE MILLION AND 00/100
($1,000,000.00) DOLLARS for injury to more than one person, per incident.
Property Damage: ONE MILLION AND 00/100
($1,000,000.00) DOLLARS per incident.
2. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, subject to and with the benefit of the terms, convenants,
conditions and provisions of this Lease, the Premises, but reserving and
excepting to Landlord the use of the exterior walls, the roof and the right to
install, maintain, use, repair and replace pipes, ducts, conduits, wires and
appurtenant fixtures leading through the Premises and serving other parts of the
Building or Lot in locations which will not materially interfere with Xxxxxx's
use thereof. Exhibit A is intended only to show the location of the Premises in
relation to the Building and/or Lot and the initial size of such Building and
Lot, the Building and/or Lot and other data thereon is to be disregarded and in
no event deemed or construed to be a representation that the Building or
Buildings, parking areas and other improvements shown thereon will be construed
and/or maintained as indicated thereon, or that additions to, or reductions from
the Building or Lot may not be made by the Landlord during the Term of this
Lease, but rather the Landlord shall have the right to do so and any such
addition or reduction shall take effect upon Landlord's giving notice to Tenant
to the effect. Landlord reserved the right to construct or sell any free-
standing buildings on any portion of the Lot.
3. TERM. The Term of this Lease shall commence upon the Commencement Date,
which shall be the date set forth in the Basic Data.
4. SECURITY DEPOSIT. Tenant has deposited with Landlord the Security
Deposit as security for the faithful performance and observation of Tenant of
the terms, provisions and conditions of this Lease. It is agreed that in the
event Tenant defaults in respect of any of the terms, provisions and conditions
of this Lease, Landlord may use, apply or retain the whole or any part of the
Security Deposit to the extent required for payment of any Annual Rent,
Additional Rent, or any other sum as to which Tenant is in default or for any
sum which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this Lease,
including but not limited to any damage or deficiency accrued before or after
summary proceedings or other reentry by Landlord, including the costs of such
proceeding or reentry and further including, without limitation, reasonable
attorney's fees. It is agreed that Landlord shall always have the right to
apply the Security Deposit, or any part thereof, as aforesaid, without notice
land without prejudice to any other remedy or remedies which Landlord may have,
or Landlord may pursue any other such remedy or remedies in lieu of applying the
Security Deposit or any part thereof. No interest shall be payable on the
Security Deposit. If Landlord shall apply the Security Deposit in whole or in
part, Tenant shall upon demand pay the Landlord the amount so applied to restore
the Security Deposit to its original amount. In the event that Tenant shall
fully and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the Security Deposit shall be returned to Tenant
within ninety (90) days after the date fixed as the end of the Lease and after
delivery of entire possession of the Premises to Landlord in accordance with the
terms of this Lease. In the event of a sale or other transfer of the Building,
or leasing of the entire Building including the Premises subject to Xxxxxx's
tenancy thereunder, Landlord shall transfer the Security Deposit then remaining
to the vendee or lessee and Landlord shall thereupon be released from all
liability for the return of such Security Deposit to Tenant; and Xxxxxx agrees
to look solely to the new Landlord for the return of said Security Deposit then
remaining. The holder of any mortgage upon the Building or Lot shall never be
responsible to Tenant for the Security Deposit or its application or return
unless the Security Deposit shall actually have been received in hand by such
holder. Tenant further convenants that it will not assign or encumber or
attempt to assign or encumber the Security Deposit and that neither Landlord nor
its successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
5. ANNUAL RENT. Tenant hereby covenants and agrees to pay to Landlord, at
the place to which notices to Landlord are required to be sent or such other
person or place as Landlord may from time to time designate, as Annual Rent for
the Premises in lawful money of the United States, without demand, setoff or
deduction, during the Term of this Lease, the sum set forth in Basic Data,
payable in equal monthly installments as set forth there, in advance on the
first day of each and every calendar month during said Term. Annual Rent for
any fraction of a month at the commencement or expiration of said Term shall be
prorated on a per diem basis.
6. ADDITIONAL RENT.
(a) TAXES Tenant convenants and agrees to pay, as Additional Rent,
with respect to each calendar or other tax year beginning or ending during the
Term hereof, an amount equal to Tenant's Pro Rata Share, as set forth in the
Basic Data, of the real estate taxes (including betterment's and other special
assessments) allocated to the Building and Lot for such tax year. If there
shall be more than one taxing authority, the real estate taxes for any period
shall be the sum of the real estate taxes for said period attributable to each
taxing authority. Tenant's Pro Rata Share of the real estate taxes shall be
adjusted for and with respect to any partial tax years on a per diem basis. The
expression "real estate taxes" shall include all general and special
assessments, so-called, rent taxes and other governmental charges which may be
charged, assessed or imposed upon the Building and Lot or Landlord. If at any
time during the term hereof the present system of ad valorem taxation of real
property shall be changed so that in lieu of the ad valorem tax on real property
in whole or in part, or in addition thereto, there shall be assessed on Landlord
a capital levy or other tax on, but not limited to, the Annual Rent and/or any
Additional Rent ("Gross Rents") received with respect to the Building and Lot,
or a federal, state, county, municipal or other local income, franchise, excise
or similar tax, assessment, levy or charge (distinct from any method of taxation
prevailing at the commencement of the Term hereof)a measured by or based, in
whole or in part, upon any such Gross Rents, then any and all of such taxes,
assessments, levies or charges, to the extent that the same would be payable if
the Building and Lot were the only property of Landlord subject to them, and if
the income from the Building and Lot were the only taxable income of Landlord
during the year in question, shall be deemed to be included within the term
"real estate taxes". Notwithstanding anything to the contrary herein, "real
estate taxes" shall not include Landlord's Federal or State or any income taxes
as presently imposed.
(b) TAX PAYMENTS Payment of Tenant's Pro Rate Share of the real estate
taxes allocated to the Building and Lot shall be paid, as Additional Rent,
monthly, and at the times and in the fashion herein provided for the payment of
Annual Rent. For an initial period from the Commencement Date until the end of
the first full tax year in which the Building and/or Lot containing the Premises
shall be assessed as a completed improvement, as distinguished from inprocess
construction ("the full assessment year"), the amount so to be paid shall be the
initial monthly payment reasonably fixed by Landlord on or about the
Commencement Date. Promptly after the determination by any taxing authority of
real estate taxes upon the Building and Lot or each tax year, Landlord shall
make a determination of the Tenant's Pro Rata Share of the real estate taxes and
if the aforesaid payments theretofore made for such tax year by Tenant exceed
Xxxxxx's Pro Rata Share of the real estate taxes such overpayments shall be
credited against the payments thereafter to be made by Tenant pursuant to this
paragraph; and if the real estate taxes for such tax year are greater than such
payments theretofore made on account for such tax year, Tenant shall pay such
deficiency to Landlord within ten (10) days of demand therefore. Copies of tax
bills submitted by Landlord with any such statement shall be conclusive evidence
of the amount of real estate taxes charged, assessed or imposed. After the full
assessment year, the initial monthly payment on account of the Tenant's Pro Rate
Share of the real estate taxes shall be replaced each year by a payment which is
one-twelfth (1-12th) of the Tenant's Pro Rate Share of the real estate taxes for
the immediately preceding tax year. An equitable adjustment shall be made in
the event of any change in the method or system of taxation from that which is
now applicable, including without limitation any change in the dates and periods
for which such taxes were levied. Tenant shall pay all taxes upon its signs and
other property in or upon the Premises and Tenant convenants and agrees to pay
promptly when due all municipal, county state and federal taxes assessed against
Tenant's leasehold interest and Xxxxxx's fixtures, furnishing, equipment,
stock-in-trade, and other personal property of any kind owned, installed or
existing in the Premises. For the purpose of this paragraph such taxes shall
not be included within real estate taxes upon the Building and Lot.
(c) COMMON AREAS Tenant and its officers, employees, agents, customers
and invitees shall have the right, in common with Landlord and all others to
whom Landlord may from time to time grant rights, to use the common areas of the
Building and Lot for their intended purposes subject to such reasonable rules
and regulations as Landlord may from time to time impose. Landlord warrants
that available parking will in no event be less than that of the local code
governing parking for said building. Tenant agrees after notice thereof to
abide by such rules and regulations and to cause its officers, employees,
agents, customers and invitees to conform thereto. Landlord shall at all times
have full control, management and direction of the common areas and the right to
put the common areas to such use as the landlord may determine in its sole
discretion. Landlord shall have the right at any time and from time to time to
change the layout of the common areas including, but without limitation, the
right to add to or subtract from their shape and size and to alter their
location; provided, however, Landlord shall always maintain such amount of
parking in the common areas as may be required by local zoning law or ordinance
at the time of such parking area's original construction.
(d) CHARGES FOR COMMON AREAS. Tenant shall pay its Pro Rata Share of
the Common Areas Maintenance Costs during the Term of this lease as Additional
Rent and in the manner hereafter provided. "Common Areas Maintenance Costs" as
used herein shall mean the total cost and expenses incurred by Landlord, its
agents, contractors and/or designees for operating, maintaining, insuring (or,
if Landlord elects to self insure, an amount equal to the cost of insurance if
it were to be provided by a third party of Landlord's choosing), managing,
repairing and/or replacing all or any part of the common areas and any
installations therein, thereon, thereunder or thereover. Payment on account of
Xxxxxx's Pro Rate Share of the Common Areas Maintenance costs shall be paid as
Additional Rent, monthly, and at the times and in the fashion herein provided
for the payment of Annual Rent based initially on Landlord's reasonable
estimate. Promptly after the end of the partial calendar year during which the
Term begins and promptly after the end of each year thereafter, Landlord shall
make a determination of Tenant's Pro Rata Share of the Common Areas Maintenance
Costs. If the aforesaid payments theretofore made for such period by Tenant
exceed Xxxxxx's Pro Rata Share, such overpayment shall be credited against the
payments thereafter to be made by Tenant pursuant to this paragraph; and if
Tenant's Pro Rata Share is greater than such payments theretofore made on
account for such period, Tenant shall pay such deficiency to Landlord within ten
(10) days of demand therefore. The initial monthly payment on account of the
Common Areas Maintenance Costs shall be replaced after Landlord's determination
of Tenant's Pro Rata Share thereof for the preceding accounting period by a
payment which is one-twelfth (1/12th) of Tenant's actual Pro Rata Share thereof
for the immediately preceding account period, with adjustments as appropriate
where such preceding period is less than a full twelve-month period.
Appropriate adjustments shall be made for any partial month at the commencement
of the Term and for any partial month r year at the end of the Term.
7. UTILITIES. Tenants agree to pay or cause to be paid, as
Additional Rent, directly to the authority or party charged with the collection
thereof, all charges for gas, electricity, light, heat, power, water, sewerage,
telephone or other service used, rendered or supplied to or for the Tenant upon
or in connection with the Premises throughout the Term of this Lease, and to
indemnify Landlord and save it harmless against any liability or damages on such
account. Tenant shall also at its sole cost and expense procure any and all
necessary permits, licenses or other authorizations required for the lawful and
proper maintenance and use upon the Premises of wires, pipes, conduits, tubes
and other equipment and appliances for use in supplying any such services to and
upon the Premises except such permits, licenses and authorizations which shall
be required in connection with original construction of the Premises, which
shall be obtained by Landlord. It is understood and agreed that Landlord shall
be under no obligation to furnish any utilities to the Premises and shall not be
liable for any interruptions or failure in the supply of any such utilities to
the Premises. If a charge shall be made from time to time by the public
authority having jurisdiction of the Premises for the use of the apportionable
sewer system, Tenant shall pay the share thereof equitably apportionable to the
Premises. Tenant shall also pay for the sprinkler standby
service charge equitably apportionable to the Premises. If the Premises are not
separately metered, Tenant shall pay to landlord, as billed and as additional
Rent, its share of water and/or sewer bills. In case any such water and sewer
charges are not paid by Xxxxxx at the time when the same are payable, if to
municipal officials, Landlord may nevertheless pay the same to such officials
and charge Tenant the cost thereof, which charge shall become payable on the
first day of the following month as Additional Rent.
8. TENANT'S USE OF PREMISES AND MISCELLANEOUS COVENANTS. During the
Term of this Lease Tenant shall use the Premises solely for the purposes listed
in the Basic Data. Tenant agrees that it will not use, or permit or suffer the
use of, the Premises or any part thereof for any other business or purpose.
Tenant shall use and occupy the Premises in a careful, safe and proper manner
and shall keep the Premises in a clean and safe condition in accordance with all
applicable laws, ordinances and government regulations. Xxxxxx agrees that it
will not do or suffer to be done, or keep or suffer to be kept, anything in,
upon or about the Premises which will contravene Xxxxxxxx's policies insuring
against loss or damage by fire or other hazards, or which will prevent Landlord
from procuring such policies from companies acceptable to Landlord.
During the Term of this Lease, Xxxxxx further convenants and agrees as follows:
(a) Not to use the Premises for any use involving the emission of
objectionable odors, fumes, noise or vibration, or, except to the extent
previously consented to by Landlord in writing, involving the use, storage or
disposition of toxic or hazardous substances or materials except for components
associated with the usual use of wave solder machine. Landlord acknowledges
Xxxxxx's use of an air compressor, said compressor to be enclosed by Tenant, at
Tenant's expense, to reduce noise. Tenant covenants and agrees that it shall
advise Landlord in writing of any materials or substances it deals with in any
way on the Premises that may be deemed to be hazardous or toxic prior to such
substance or materials being brought upon the Premises or Lot. In any event,
Tenant shall strictly comply with all state, federal and municipal laws,
regulations, guidelines and ordinances concerning the use, storage, handling and
disposition of any substance or material that is or may be deemed to be toxic or
hazardous and Tenant agrees to indemnify Landlord against any liability,
including attorney's fees and costs, in connection therewith. At Landlord's
request, Tenant shall provide Landlord with reasonable assurances that Tenant
can and will comply with the foregoing and, if Landlord so requests, Tenant
shall obtain insurance of such type and in such amount as Landlord may
reasonable specify, such policy to name Landlord as an insured party and be
obtained at Tenant's sole cost prior to such substances/or materials being
brought upon the Premises or Lot. Any such policy shall provide that it may not
be canceled or amended without thirty (30) days prior notice to Landlord, and
shall be issued by a company or companies reasonably satisfactory to Landlord.
Failure to Tenant to provide Landlord with such reasonable assurances or
evidence of any reasonable requested insurance in connection with the bringing
of such materials or substances upon the Premises or Lot shall be reasonable
cause for Landlord to prohibit such substances or materials from bring brought
upon the Premises or Lot or, at Landlord's election, a default under this Lease.
This Subparagraph (a) notwithstanding, Landlord acknowledges that Tenant can use
the Premises for its intended purpose as described under the Basic Data herein.
(b) INTENTIONALLY OMITTED
(c) Not to place on the Premises or Building any placard or sign of
advertising that the Premises or any part thereof may be sublet, nor to place
any other sign or placard on the Premises or Building which is visible from the
exterior of the Premises or Building without the written consent of Landlord.
(d) Not to injure, overload, deface or permit to be injured,
overloaded, or defaced, the Premises or Building, and not to permit any holes to
be made in the exterior of the building; and not to make, allow to suffer any
waste or any unlawful, improper or offensive use of the Premises that shall be
injurious to any person or property or invalidate any insurance on the Premises,
Building or Lot or increase the premium thereof.
(e) To conform to and comply with all state and municipal laws and
with all requirements of any public body or officers having jurisdiction of the
Premises and with the requirements or regulations of any Board of Fire
Underwriters or insurance company insuring the Premises at the time with respect
to the care, maintenance, use and nonstructural alteration of the Premises, all
at Tenant's sole expense.
9. REPAIRS TO AND MAINTENANCE OF PREMISES BY TENANT Tenant shall keep the
Premises, including without limitation, both the inside and outside of all doors
and windows therein, in the same order and repair as they are on the
Commencement Date, reasonable wear and tear and damage by fire or other casualty
normally insured under a so-called "extended coverage endorsement" only
excepted; and to keep all fixtures and equipment on the Premises including,
without limitation, all mechanical fixtures and equipment serving only the
Premises in the same order and repair as they are in on Commencement Date,
damage by fire and other casualty normally insured under an "extended coverage
endorsement" only excepted. Tenant shall, at it sole cost and expense, during
the entire Term of this Lease, maintain in force a service contracting providing
for the repair and annual service and maintenance of all heating, ventilating
and air conditioning equipment serving the Premises, such contract to be with a
party reasonably acceptable to Landlord or, if Landlord should so elect, with a
party designated by Landlord. Tenant shall make all repairs and replacements
and do all other work necessary for the foregoing purposes. It is further
agreed that the exception of reasonable wear and tear shall not apply so as to
permit Tenant to keep the Premises in anything less than suitable, tenant like,
efficient and usable condition considering the nature of the Premises and the
use reasonably made thereof, or in less than good and tenant like repair, and
that except in case of fire or other casualty normally insured under an
"extended coverage endorsement" there is no exception to the rule that all glass
must be kept good and whole by Tenant. Tenant shall also be responsible for the
cost of all repairs to the Building (including, without limitation, the
structure and roof thereon and common areas therein) and the Lot if the same are
occasioned by Tenant's or its employees, agents or invitees improper or
negligent use thereof.
10. SUBLETTING AND ASSIGNMENT
(a) Tenant convenants and agrees not to assign, sell, mortgage,
pledge or in any manner transfer this Lease or any interest therein or sublet
the Premises or any part thereof, or grant any concession or license or
otherwise permit occupancy of all or any part thereof by another person or
entity without the prior written consent of Landlord, which consent shall not be
unreasonably withheld provided all the provisions of this Paragraph 10 are
complied with and subject to Xxxxxxxx's right to terminate this Lease as set
forth in this paragraph 10. Any such consent by Landlord shall be held to apply
only to the specific transaction thereby authorized. Such consent shall not be
construed as a waiver of the obligation of Tenant to obtain from Landlord
consent to any other or subsequent assignment or subletting period., The
collection of rent by Landlord from any assignee, subtenant or other occupant
shall not be deemed as acceptance of the assignee, subtenant or occupant as
tenant or release of Tenant from its obligation under this Lease.
(b) Notwithstanding the provisions of Paragraph 10(a), above, any
proposed assignee or subleasee submitted to the Landlord for approval must have
the same or greater financial strength as Tenant and if such is not the case,
Xxxxxxxx's withholding of consent shall be reasonable. Landlord shall not be
considered unreasonable in the event at the time of such request by Tenant to
assign or sublet this Lease, Tenant shall be in default under this Lease. If
Tenant shall request permission to assign this Lease or sublet the Premises or
any part thereof Tenant shall, together with such request for consent thereto,
inform Landlord of the rental and any other amounts to be paid by such assignee
or subtenant in connection with such subletting or assignment regardless of the
nomenclature such payment may take, the term of any subletting, and any
financial information required or requested by Landlord to make the
determination required by the first sentence of this Paragraph 10(b). Landlord
shall have the right to terminate this Lease in lieu of consenting or reasonably
withholding its consent to the proposed subletting
or assignment, provided that Landlord shall exercise such right with forty-five
(45) days of its receipt of Tenant's request for such consent and provided,
further, that Tenant shall have the right to withdraw its request for such
consent within fifteen (15) days after its receipt of such notice from Landlord,
in which event such notice of termination shall become null and void. If this
Lease shall be terminated pursuant to the provisions of the immediately
preceding sentence, such termination shall become effective upon the last day of
the calendar month next following Xxxxxxxx's giving said notice of termination.
(c) If Landlord consents in writing to an assignment or subletting,
such consent shall be deemed conditioned upon Tenant's compliance with the
following provisions and the failure to so comply shall be deemed to give
landlord reasonable cause for withholding or withdrawing its consent:
(1) The assignment or subletting must be, respectively, of all
Tenant's leasehold interest or of the entire Premises and, in the case of an
assignment, shall also transfer to the assignee all of Tenant's rights in and
interests under this lease, including but without limitation, the Security
Deposit hereunder.
(2) INTENTIONALLY OMITTED
(3) The assignee or subleasee shall assume, by written
recordable instrument, in form and content satisfactory to Landlord, the due
performance of all Tenant's obligations under this Lease, including any accrued
obligations at the time of the assignment or subletting.
(4) A copy of the assignment of sublease and the original
assumption agreement (both in form and content satisfactory to Landlord) fully
executed and acknowledged by the assignee or subleassee, together with a
certified copy of a properly executed corporate resolution authorizing such
assumption agreement, shall be received by Landlord within ten (10) days from
the effective date of such assignment or subletting.
(5) Such assignment or subletting shall be upon and subject to
all the provisions, terms, covenants and conditions of this Lease including but
without limitation the use permitted hereby and Tenant (and any assignee(s),
subtenants(s) and guarantor(s) of this Lease) shall continue to be and remain
primarily and unconditionally liable hereunder.
(6) Tenant shall reimburse Landlord for Landlord's attorneys'
fees for examination of and/or preparation of any documents in connection with
the assignment or subletting.
(7) Any rent, sum or other consideration to be paid or given
in connection with such sublease or assignment, either initially or over time,
in excess of the Annual Rent and/or Additional Rent and/or other charges to be
paid under this Lease shall be paid directly to Landlord as if such amount were
originally called for by the terms of this Lease as Additional Rent and Tenant
shall be liable to Landlord for all such amounts.
(d) Subject to the enumerated conditions of the preceding Paragraph
10(c), Landlord hereby consents to the assignment or subletting of the entire
Premises to a corporation which is a wholly owned subsidiary of Tenant, or to a
company that owns majority of all the issued and outstanding capital stock of
Tenant. Notwithstanding any such assignment or subletting as provided in this
Paragraph 10(d), such assignment or subletting shall be upon and subject to all
the provisions, terms, covenants and conditions of this Lease and Tenant (and
any assignee(s), subtenant(s) and guarantor(s) of this Lease) shall continue to
be and remain liable hereunder.
(e) INTENTIONALLY OMITTED
11. ALTERATIONS. Tenant Shall not modify the leasehold improvements or
make any to the Premises (except for non-structural improvements and alterations
which do not exceed $5.000.00) without first
obtaining Landlord's prior written approval of such modifications and
alterations; provided, however, Landlord shall not unreasonably withhold its
consent to nonstructural alternations of the Premises.
12. TRASH REMOVAL. Tenant shall be responsible for the removal of its own
trash, rubbish, garbage and refuse removal, at its sole cost and expense.
Tenant shall not permit the accumulation of rubbish, trash, garbage and other
refuse in and around the Premises. No rubbish, trash, garbage or other refuse
shall be burned by Tenant in the Premises or elsewhere in the Building or Lot
and all of the same shall be kept in suitable containers in the interior of the
Premises (or in locations outside the Premises as Landlord may permit by notice
in writing until the same is picked up from the Premises and the Building and/or
Lot. The removal agency selected by Tenant shall be subject to Landlord's
reasonable approval. In the event Tenant fails to remove any accumulation of
rubbish within twenty-four (24) hours after notice from Landlord to remove the
same, Landlord shall have the right (but not the obligation) to remove the same,
in which event the cost thereof shall be paid by Xxxxxx as Additional Rent
immediately upon demand.
13. MECHANIC'S LIENS. Tenant will not permit to be created or to remain
undischarged any items, encumbrance or charge arising out of any work of any
contractor, mechanic, laborer or material man which might be or become a lien
or encumbrance or charge upon the Premises or any part thereof or the income
therefrom, and Tenant will not permit the rights and interest of Landlord in
the Premises or any part thereof might be impaired. If any lien on account
of an alleged debt of Tenant or any notice of contract by a party engaged by
Xxxxxx or Xxxxxx's contractor to work on the Premises shall be filed against
the Premises, Building or Lot, or any part hereof, within ten (10) days after
notice of the filing thereof Tenant shall cause the same to be discharged of
record by payment or bond. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid then, in addition to any other right
or remedy, Landlord may, but shall not be obligated to, discharge the same
either by paying the amounts claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, and in any such event Landlord
shall be entitled to compel the prosecution of an action for the foreclosure of
such lien by the lienor or to pay the amount of the judgment in favor of the
lienor with interest, costs and allowances. Any amount so paid by Xxxxxxxx and
all costs and expenses, including without limitation reasonable attorney fees,
incurred by Landlord in connection therewith, together with interest thereon at
the rate specified in Paragraph 19(d) from the respective date of Landlord's
making of the payment or incurring of the cost and expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be paid by Tenant
to Landlord immediately upon demand.
14. ACCESS TO PREMISES . Landlord has free access to the Premises at all
reasonable time (and in case of emergency at any time) for the purpose of
examining the same or making such repairs, alterations, additions or
improvements to the Premises, or the Building of which the Premises are a part,
that Landlord may deem necessary or which Tenant has failed to do (but nothing
in this Paragraph shall obligate Landlord to make any such repairs, alteration,
additions or improvements) and also for the purpose of exhibiting the Premises
and putting up notices "To Rent" or "For Sale", which notices shall not be
removed, obliterated or hidden by Tenant. No forcible entry shall be made by
Landlord unless such entry shall be reasonably necessary to prevent injury, loss
or damage to persons or property, and Landlord shall repair any damage to
property occasioned thereby. Landlord shall repair any damage to property of
Tenant or anyone claiming under Tenant caused by or resulting from Xxxxxxxx's
making any such repairs, alterations, additions or improvements except only such
damage as shall result from the entry to the Premises and/or the making of such
repairs, alternations, additions or improvements which Landlord shall make as a
result of an emergency or improvements which Landlord shall make as a result of
an emergency or the default, negligence, fault or willful misconduct of Tenant
or anyone claiming under or through Tenant. No action of Landlord pursuant to
this Paragraph shall be deemed an eviction or disturbance of Tenant nor shall
Tenant be allowed any abatement or rent or damages for any injury or
inconvenience occasioned thereby unless Landlord materially interferes with
Xxxxxx's use and enjoyment of the Premises.
15. REMOVAL OF IMPROVEMENTS. Except as otherwise hereinafter provided, all
trade fixtures, furniture, furnishings and signs installed in the Premises by
Tenant and paid for by it shall remain the property of Tenant and shall be
removed by Tenant upon the expiration of the Term of this Lease or its earlier
termination, provided (a) that any of such items as are affixed to the Premises
and require severance may be removed only if Tenant shall repair any damage
caused by such removal, (b) that Tenant shall have fully performed all of the
covenants and agreements to be performed by it under the provisions of this
Lease, and (c) that Tenant shall comply with the last sentence of this
Paragraph. If the Tenant fails to remove such items from the Premises prior to
the expiration of this Lease or earlier termination hereof, all such trade
fixtures, furniture, furnishings and signs shall become the property of the
Landlord. All lighting fixtures, heating and cooling equipment and all other
installations, alterations, additions and improvements to the Premises shall be
and remain the property of Landlord on the ending of the Term hereof or any
earlier termination of this Lease and shall not be removed from the Premises.
16. TENANT'S INSURANCE OBLIGATIONS. Tenant shall carry public liability
insurance in a company of companies licensed to do business in the state in
which the Premises are located and reasonably approved by Landlord. Said
insurance shall be in minimum amounts reasonably required by Landlord from time
to time by notice to Tenant and shall name Landlord as an additional insured, as
its interests may appear, and Tenant shall provide Landlord with evidence, when
requested, that such insurance is in full force and effect. Tenant shall carry
property damage insurance for all of its equipment and for all leasehold
improvements above the building standard which are made by the Landlord or
Tenant in and to the Premises, which policies shall name Landlord as an
additional insured. If required by Landlord, receipts evidencing payment for
said insurance shall be delivered to Landlord at least annually by Tenant and
each policy shall contain an endorsement that will prohibit its cancellation or
amendment prior to the expiration of thirty (30) days after notice of such
proposed cancellation or amendment to landlord. Tenant shall carry insurance in
the initial amounts listed in the Basic Data and shall provide Landlord with
certificates of such Tenant Insurance Requirements on or prior to the
Commencement Date..
17. REPAIRS BY LANDLORD. Xxxxxxxx agrees to make all necessary repairs or
alterations to the foundation, roof and structural parts of the exterior walls
of the Premises. Notwithstanding the foregoing, if any of said repairs or
alterations shall be made necessary by reason of repairs, installations,
alternations, additions or improvements made by Tenant or anyone claiming under
or through Tenant, by reason of the default, negligence, fault, or willful
misconduct of such party, or by reason of a default in the performance or
observance of any agreements, conditions or other provisions on the part of the
Tenant to be performed or observed, or by reason of any special use to which the
Premises may be put, Tenant shall be liable for the cost of all such repairs or
alterations as may be necessary. Landlord shall not be deemed to have committed
a breach of any obligation to make repairs or alterations or perform any other
act unless (a) it shall have made such repairs of alterations or performed such
other act negligently, or (b) it shall have received notice from Tenant
designating the particular repairs or alterations needed or the other act of
which there has been failure of performance and Landlord shall have failed to
make such repairs or alterations or performed such other act within a reasonable
time after the receipt of such notice; and in the latter event Landlord's
liability shall be limited to the cost of making such repairs of alterations or
performing such other act. As used in this Lease, the expression "exterior
walls of the Premises" does not include glass, windows, doors or door frame, or
window sashes or frames. Landlord shall make all necessary repairs to the
common areas and shall maintain such common areas (except sidewalks abutting the
Premises) reasonably clear of litter and shall perform snow handling to the
extent required for business operations of the Building. The provisions of this
Paragraph shall not apply in the case of damage or destruction by fire or other
casualty or by eminent domain, in which events the obligations of Landlord shall
be controlled by paragraph 18 hereof.
18. DAMAGE OR DESTRUCTION BY EMINENT DOMAIN, FIRE OR CASUALTY
(a) In the event that the Premises and/or Building and/or Lot, or
any material part thereof, shall be taken by any public authority or for any
public use, or shall be destroyed or damaged by fire or casualty, or by the
action of any public authority, then this Lease may be terminated at the
election of Landlord. Such election shall be made by the giving of written
notice by Landlord or Tenant within thirty (30) days after the right of election
accrues. If by such taking Tenant is deprived of the use of more than twenty
percent (20%) of the Square Footage of the Premises, or if by such fire or other
casualty more than
forty percent (40%) of the Square Footage of the Premises shall be rendered
untenable, and if Landlord does not within a reasonable time after notice from
Tenant commence and diligently pursue to rebuild or repair, Tenant may at its
option terminate this lease by notice in writing to Landlord within thirty (30)
days after the date of such damage to destruction, or within thirty (30) days
after it has received notice of such taking, as the case may be. If either
Landlord or Tenant exercise such option, this Lease shall terminate on the date
of such loss or taking.
(b) If this Lease is not terminated pursuant to the provisions of
Paragraph 18(a) above, this Lease shall continue in full force and effect and a
just proportion of the Annual Rent shall be suspended or abated in proportion to
the square footage utilized by Tenant until the Premises shall be put by
Landlord in proper condition for use, which Landlord covenants to do with
reasonable diligence and to the extent permitted by the net proceeds of
insurance recovered or damages awarded for such destruction or taking, and
subject to zoning and building laws then in existence. "Net proceeds of
insurance recovered or damaged awarded" refers to the gross amount of such
insurance or award less the reasonable expenses of Landlord in connection with
the collection of same, including without limitations, reasonable fees and
expenses for legal and appraisal services. In the case of a taking which
permanently reduces the Square Footage of the Premises, the rent shall be abated
for the remainder of the Term in proportion to the amount by which the Square
Footage has been reduced. Landlord warrants that Landlord shall maintain
insurance coverage as set forth herein during the Term of this Lease in an
amount equal to one hundred percent (100%) replacement value of the Building.
(c) Irrespective of the form in which recovery may be had by law, all
rights to damages or compensation shall belong to Landlord in all cases, except
for damages to Tenant's fixtures, properly or equipment, and for damages, if
any, separately awarded for relocation expenses and business interruption,
provided that none of the same shall reduce the damages or compensation which
Landlord would otherwise recover. Tenant awards and convenants to deliver such
further assignments thereof as Landlord may from time to time request.
19. TENANT'S DEFAULT.
(a) Events of Default: The following shall be "Events of Default"
under this Lease:
(i) If Tenant shall fail to pay any monthly installment of
Annual Rent or Additional Rent when due, and such default shall continue for ten
(10) days after written notice from Landlord; provided that no such notice shall
be required if Tenant has received two (2) such similar notices within three
hundred sixty-five (365) days prior to such violation or failure;
(ii) If Tenant shall fail to timely make any other payment
required under this Lease and such default shall continue for two (10) days
after written notice from Landlord; provided that no such notice shall be
required if Tenant has received two (2) such similar notices within three
hundred sixty-five (365) days prior to such violation or failure;
(iii) If Tenant shall violate or fail to perform any of the
other terms, conditions, covenants or agreements herein made by Tenant, if such
violation or failure continues for a period of thirty (30) days after Landlord's
written notice thereof to Tenant; provided that no such notice shall be required
if Tenant has received two (2) such similar notices within three hundred sixty-
five (365) days prior to such violation or failure;
(iv through vii crossed out)
(viii) Xxxxxx's making or consenting to an assignment for the
benefit of creditors or a common law composition of creditors; or
(ix) Xxxxxx's interest in this Lease being taken on execution
in any action against the Tenant.
(b) LANDLORD'S REMEDIES. Should an Event of Default occur under this
Lease, Landlord may pursue any or all of the following remedies:
(i) TERMINATION OF LEASE. Landlord may terminate this Lease
by giving written notice of such termination to Tenant, or by reentry, whereupon
the mailing of such notice of termination addressed to Tenant, or in the case of
reentry, upon such reentry, with or without notice or demand and with or without
process of law (forcibly if necessary), this Lease shall automatically cease and
terminate and Tenant shall be immediately obligated to quit the Premises.
Termination by entry or notice as provided herein shall be effective and
complete upon entry or the mailing of notice, respectively, and shall require no
further action on the part of Landlord including, without limitation, resort to
legal process under applicable law. Any other notice to quit or notice of
Xxxxxxxx's intention to reenter the Premises is hereby expressly waived. If
Landlord elects to terminate this Lease, everything contained in the Lease on
the part of Landlord to be done and performed shall cease without prejudice,
subject, however, to the right of Landlord to recover from Tenant all Annual
Rent and Additional Rent and any other sums accrued up to the time of
termination or recovery of possession by Landlord, whichever is later.
(ii) SUIT FOR POSSESSION. Landlord may proceed to recover
possession of the Premises under and by virtue of the provisions of the laws of
the state in which the Premises are located or by such other proceedings,
including reentry and possession, as may be applicable.
(iii) RELETTING OF PREMISES. Should this Lease be terminated
before the expiration of the Term of this Lease by reason of Tenant's default as
hereinabove provided, or if Tenant shall abandon or vacate the Premises before
the expiration or termination of the Term of this Lease without having paid the
full rental for the remainder of such Term, Landlord shall have the option, but
not the obligation, to relet the Premises for such rent and upon such terms as
are not unreasonable under the circumstances and, if the full Annual Rent and
Additional Rent reserved under this Lease (and any of the costs, expenses or
damages indicated below) shall not be realized by Landlord, Tenant shall be
liable for all damages sustained by Landlord, including, without limitation,
deficiency in rent, reasonable attorney's fees, brokerage fees and expenses of
placing the Premises in the same condition as existed on the Commencement Date,
normal ware and tear excepted. Landlord shall in no event be liable in any way
whatsoever for failure to relet the Premises, or in the event that the Premises
are relet, for failure to collect the rent under such reletting, and in no event
shall Tenant be entitled to receive the excess, if any, of such net rent
collected over the sums payable by Tenant to Landlord hereunder.
(iv) ACCELERATION OF PAYMENT. INTENTIONALLY OMITTED
(v) MONETARY DAMAGES. Any damage or loss of rent sustained
by Landlord may be recovered by Landlord, at Landlord's option, at the time of
the reletting, or in separate actions, from time to time, as said damage shall
have been made more easily ascertainable by successive relettings, or at
Xxxxxxxx's option in a single proceeding deferred until the expiration of the
Term of this Lease (in which event Tenant hereby agrees that the cause of action
shall not be deemed to have accrued until the date of expiration of said Xxxx)
or in a single proceeding prior to either the time or reletting or the
expiration of the Term of this Lease. In addition, should it be necessary for
Landlord to employ legal counsel to enforce any of the provisions herein
contained, Xxxxxx agrees to pay all attorney's fees and court costs reasonably
incurred.
(vi) ANTICIPATORY BREACH; CUMULATIVE REMEDIES. Nothing
contained herein shall prevent the enforcement of any claim Landlord may have
against Tenant for anticipatory breach of the unexpired Term of this Lease. In
the event of a breach or anticipatory breach by Tenant or any of the covenants
or previsions hereof, Landlord shall have the aright of injunction and the right
to invoke any remedy allowed at law or in equity as if reentry, summary
proceedings and other remedies were not
provided for herein. Mention in this Lease of any particular remedy whether or
not mentioned herein. Xxxxxxxx's election to pursue one or more remedies,
whether as set forth herein or otherwise, shall not bar Landlord from seeking
any other or additional remedies at any time and in no event shall landlord ever
be deemed to have elected one or more rights and remedies that landlord may have
under this Lease, and at law and in equity, shall be cumulative and shall not be
deemed inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law. Tenant
hereby expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Landlord obtaining possession of the Premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
Lease, or otherwise. In no event will Landlord implement the terms of this
Subparagraph (vi) unless Tenant has defaulted under Paragraph 19.
(c) WAIVER. No waiver by Landlord of any breach of any covenant,
condition or agreement herein contained shall operate as a waiver of such
covenant,, condition, or agreement itself, or of any subsequent breach thereof.
No payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installments of rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
on any check or letter accompanying a check for payment of Annual Rent,
Additional Rent or any other sum be deemed an accord and satisfaction, and
landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such Annual Rent, Additional Rent or any other sum or
so pursue any other remedy provided in this Lease. No reentry by Xxxxxxxx, and
no acceptance by Landlord of keys from Tenant, shall be considered an acceptance
of a surrender of the Lease or Premises.
(d) RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT. If Tenant defaults
in the making of any payment or in the doing of any act herein required to be
made or done by Tenant, then Landlord may but shall not be required to be made
or done by Tenant, then Landlord may, but shall not be required to, make such
payment or do such act, and charge the amount of the expense thereof, if made or
done by Landlord, with interest thereon at the rate per annum which is four
percent (4%) greater than the "base lending rate" then in effect at the First
National Bank of Boston, Boston, MA, or the highest rate permitted by law,
whichever may be less; with it being the express intent of the parties that
nothing herein contained shall be construed or implemented in such a manner as
to allow Landlord to charge or receive interest in excess of the maximum legal
rate than allowed by law. Such payment and interest shall constitute Additional
Rent; hereunder due and payable with the next monthly installment of Annual
Rent; but the making of such payment or the taking of such action by Landlord
shall not operate to cure such default or to stop Landlord from the pursuit of
any remedy to which Xxxxxxxx would otherwise be entitled.
(e) LATE PAYMENT. If Tenant fails to pay any installment of Annual
Rent and/or Additional Rent on or before the first (1st) day of the calendar
month when such installment becomes due and payable, Tenant shall pay to
Landlord a late charge of five percent (5%) of the amount of such installment,
and, in addition, such unpaid installment shall bear interest at the rate per
annum which is four percent (4%) greater than the "base lending rate" then in
effect at The First National Bank of Boston, Boston, MA, or the highest rate by
law, whichever may be less; with it being the express intent of the parties that
nothing herein contained shall be construed or implemented in such manner as to
allow Landlord to charge or receive interest in excess of the maximum legal rate
than allowed by law. Such late charge and interest shall constitute Additional
Rent hereunder due and payable with the next monthly installment of Annual Rent
due or if payments have been accelerated pursuant to this Paragraph 19, due and
payable immediately.
(f) LIEN ON PERSONAL PROPERTY. INTENTIONALLY OMITTED.
20. LIABILITY OF LANDLORD; INDEMNIFICATION.
(a) Landlord shall not be liable to Tenant, its employees, agents,
contractors, business invitees, licensees, customers, clients, family members or
guests for any damage, compensation or claim
arising from (i) the necessity of repairing any portion of the Premises,
Building or Lot, (ii) the interruption in the use of the Premises, (iii)
accident or damage to persons or property resulting from the use of operation
(by Landlord, Tenant, or any other person or persons whatsoever) of the Premises
or of any elevators or heating, cooling, electrical or plumbing equipment or
apparatus in the Premises or Building, (iv) the termination of this Lease by
reason of the destruction of the Premises, (v) any fire, robbery, theft,
mysterious disappearance and/or any other casualty, (vi) any leakage in any part
or portion of the Premises or the Building, or from water, rain or snow that may
leak into, or flow from, any part of the Premises or the Building, or from
drains, pipes or plumbing work in the Building, or from any other cause
whatsoever, or (vii) for any personal injury arising from the use, occupancy and
condition of the Premises, unless such personal injury is caused by the gross
negligence of Landlord, or a willful act or failure to act on the part of the
Landlord. Tenant shall not be entitled to any abatement or diminution of rent
as a result of any of the foregoing occurrences, nor shall the same release
Tenant from its obligations hereunder or constitute an eviction. Any goods,
property or personal effects of Tenant, its employees, agents, contractors,
business invitees, licenses, customers, clients, family members or guests,
stored or place in or about the Premises, Building or Lot shall be at their risk
and the Landlord shall not in any manner be held responsible therefor. The
employees of the Landlord are prohibited from receiving any packages or other
articles delivered to the Building by Tenant, and if any such employee receives
any such package or articles, such employee shall be the agent of the Tenant for
such purposes and not of the Landlord. Tenant acknowledges that Landlord will
not carry insurance on Tenant's furniture, furnishings, fixtures, equipment
and/or improvements in or to the Premises and Tenant shall have full
responsibilities therefor and shall bear the full risk of loss thereto. It is
expressly understood and agreed that Tenant shall look to its business
interruption and property damage insurance policies, and not to Landlord or its
agents or employees, for reimbursement for any damages or losses incurred as a
result of any of the foregoing occurrences, other than clause (a) (vii) above,
and that said policies shall contain waiver or subrogation clauses.
(b) If Landlord shall fail to perform any convenient, term or
condition of this Lease upon Xxxxxxxx's part to be performed or be guilty of
negligence with regard to any party claiming by, under of through Tenant and, as
a consequence of such default or negligence. Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
proceeds of sale received upon execution of such judgment and levy thereof
against the right, title and interest of Landlord in the Premises, Building and
Lot, and neither Landlord nor any of the partners designated herein as Landlord
comprising any partnership designated herein as Landlord or any trustees or
beneficiaries designated herein as Landlord shall be personally liable for any
judgment rendered against Landlord or any deficiency thereunder. Kit is 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, Building and Lot
and the rents or other income therefrom as hereinbefore expressly provided. In
the event of sale or other transfer of Landlord's right, title and interest in
the Premises, Building and Lot, Landlord shall be released from all liability
and obligations hereunder. If all or any part of Landlord's interest in this
Lease shall be held by a trust, not trustee, shareholder or beneficiary of such
trust shall be personally liable for any of the covenants or agreements,
expressed or implied hereunder. IN NO EVENT SHALL LANDLORD EVER BE PERSONALLY
LIABLE TO TENANT OR ANYONE CLAIMING BY, UNDER OR THROUGH TENANT FOR
CONSEQUENTIAL DAMAGES, SUCH DAMAGES OR CLAIMS THEREFORE BEING HEREBY EXPRESSLY
WAIVED BY TENANT.
(c) Tenant hereby agrees to indemnify and hold landlord harmless from
and again any cost, damage, claim, liability or expense (including attorney's
fees) incurred by or claimed against Landlord directly or indirectly, which is
occasioned by or results from any default hereunder or any willful or negligent
act or omission on the part of Tenant, its agents, employees, contractors,
invitees, licensees, customers, clients, family members and guests, or as a
result of or in anyway arising from Tenant's use and occupancy of the Premises,
Building and/or Lot or in any other manner which related to the business of
Tenant. Any such cost, damage, claim, liability or expense incurred by Landlord
for which Tenant is obligated to reimburse Landlord shall be deemed Additional
Rent due and payable as Addition Rent upon demand by Landlord. It is expressly
understood and agreed that Xxxxxx's liability under this Lease extends
to the acts and omissions of any subtenant or assignee and any agent, employee,
contractor, invitee, licensee, customer, client, family member or guest of any
subtenant or assignee.
21. LEASE NOT TO BE RECORDED. Xxxxxx agrees that it will not record this
Lease. Both parties shall, upon the request of either, execute and deliver a
notice or short form of this Lease in such form, if any, as may be permitted by
applicable statue. If this Lease is terminated before the Term expires, the
parties shall execute, deliver and record an instrument acknowledging such fact
and the actual date of termination of this Lease, and Tenant hereby appoints
Landlord its attorney-in-fact in its name and on its behalf to execute and
record such instrument, such appointment being coupled with an interest and
irrevocable.
22. SEVERABILITY. It is agreed that if any provision of this Lease shall be
determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provisions of this Lease, all of which
other provisions shall remain in full force and effect; and it is the intention
of the parties that if a provision of this Lease is capable of two
constructions, one of which would render the provision void and the other of
which would render the provision valid, then the provision shall have the
meaning which renders it valid.
23. DELAYS. In any case where either party hereto is required to do any
act, and is delayed in so doing by reason of or resulting from an Act of God,
war, civil commotion, fire or other casualty, labor difficulties, shortages of
labor, materials or equipment, government regulations or other causes beyond
such party's reasonable control, such period of time shall not be counted in
determining the time during which such work or act shall be completed, whether
such time shall be designated by a fixed date, a fixed time or "a reasonable
time". In any case where work is to be paid for out of insurance proceeds or
condemnation awards, due allowance shall be made for delays in the collection of
such proceeds and awards.
24. ESTOPPEL CERTIFICATES. Tenant and Landlord each agree from time to
time, upon not less than fifteen (15) days prior written request, to execute,
acknowledge and deliver to the other a statement in writing certifying that this
Lease is unmodified and in full force and effect, or if modified, stating the
modifications; that the requested party has no defenses, offsets or
counterclaims against its obligations under this Lease (including Tenant's
obligation to pay Annual Rent and Additional Rent) or, if there are any
defenses, offsets, or counterclaims, setting them forth in reasonable detail;
and setting forth the dates to which the Annual Rent and Additional Rent and
other charges have been paid. Any such statement delivered pursuant to this
paragraph may be relied upon by any prospective purchaser or mortgagee of the
Premises, Building and/or Lot, or any prospective assignee or any such mortgage,
or any prospective assigned of this Lease, or any other similarly interested
party.
25. WAIVER OF SUBROGATION. Tenant and landlord each hereby release the
other to the extent of their respective insurance coverage, from any and all
liability for any loss or damage caused by fire or any of the extended coverage
casualties or any other casualty insured against, even if such fire or other
casualty shall be brought about by the fault or negligence of Tenant, Landlord
or their agents. Tenant and Landlord agree that their respective policies
covering such loss or damage shall contain a clause to the effect that this
release shall not affect said policies or the right of Tenant or landlord, as
the case may be, to recover thereunder and otherwise acknowledging this mutual
waiver of subrogation.
26. WAIVER. No waiver of any condition or legal right or remedy shall be
implied by the failure of Landlord to declare a forfeiture, or any other
reasons, and no waiver of any condition or covenant shall be valid unless it be
in writing signed by landlord. No waiver by landlord in respect to one tenant
of the Building or Lot shall constitute a waiver in favor of any other tenant,
now shall the waiver or a breach of any condition or covenant be claimed or
pleaded to excuse a future breach of the same condition or covenant. The
mention in this Lease of any specific right or from having any other remedy or
from maintaining any action to which it may be otherwise entitled either at law
or in equity; and for the purpose of any suit by Landlord brought or based on
this Lease, this Lease shall be construed to be a divisible contract, to the end
that successive actions may be maintained as successive periodic sums shall
mature
under this lease. It is further agreed that failure to include in any suit or
action any sum or sums then matured shall not be a bar to the maintenance of any
suit or action for the recovering of said sum or sums so omitted at a later
time.
27. SURRENDER AND HOLDING OVER. Tenant shall deliver up and surrender to
Landlord possession of the Premises upon the expiration of the Term of this
Lease or its earlier termination in any way, broom clean and in as good
condition and repair as the same shall be at the commencement of said Term
(damage by fire and other perils covered by standard fire and extended coverage
insurance and ordinary wear and tear, subject to Paragraph 9 of this Lease, only
excepted), and shall deliver the keys at the office of Landlord or Xxxxxxxx's
agent. Should Tenant or any party claiming under Tenant remain in possession of
the Premises, or any part thereof, after any termination of this lease, no
tenancy or interest in the Premises shall result therefrom but such holding over
shall be an unlawful detainer and all such parties shall be subject to immediate
eviction and removal; a sum equal to double the Annual Rent, Additional Rent and
any other sums to be paid as specified herein for any period during which Tenant
shall hold the Premises after the stipulated Term of this Lease may be
terminated or have expired.
28. LEASE INURES TO BENEFIT OF SUCCESSORS AND ASSIGNS. Subject to the
provision hereof, this Lease and all the terms, covenants, provisions and
conditions herein contained shall inure to the benefit of and be binding upon
their respective successors and assigns including, without limitation, their
heirs, personal representative, debtor in possession, trustee, custodian,
receiver, or any similar functionary serving in proceedings brought by or
against Landlord or Tenant (or their respective successors and assigns) under
the Bankruptcy Code (as now or hereafter in effect), insolvency Laws, or any
similar laws relating to bankruptcy, insolvency or the adjustment of debts,
provided however, that no subletting or assignment by, from, through or under
Tenant in violation of the provisions hereof shall vest in the subletees or
assigns any right, title or interest whatever.
29. QUIET ENJOYMENT. Landlord hereby covenants and agrees that if Tenant
shall perform all the covenants, agreements and other provisions herein
stipulated to be performed or observed on Tenant's part, Tenant shall at all
time during the continuance hereof have the peaceable and quiet enjoyment and
possession of the Premises without any manner of molestation or hindrance from
Landlord or any person or persons lawfully claiming under Landlord. The rights
granted by this Paragraph are in lieu of any other rights Tenant may have by
statue or at law.
30. NO PARTNERSHIP. Landlord does not, in any way or for any purpose,
become a partner of Tenant in the conduct of its business or otherwise, or point
venture or a member of a joint enterprise with Tenant.
31. NOTICES. Any notice or consent required to be given by or on behalf of
either party to the other shall be in writing and shall be given by mailing such
notice or consent by registered or certified mail, return receipt requested,
postage prepaid, addressed, if to landlord, at the address hereinabove
specified, and, if to Tenant, at the address hereinabove specified to the
attention of Xxxxxx's Chief Financial Officer, or at such other address as may
be specified from time to time in writing sent to the other party by like
notice. Notices so given shall be deemed to be given and effective upon the
date of receipt.
32. INTERPRETATION. Wherever either the word "Landlord" or "Tenant" is used
in this Lease, it shall be considered as meaning the parties respectively,
wherever the context permits or requires, and when the singular and/or neuter
pronouns are used herein, the small shall be construed as including all persons
and corporations designated respectively as Landlord or Tenant in this
instrument wherever the context requires.
33. PARAGRAPH HEADINGS. The paragraph headings are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope or intent of this lease now in any way affect this Lease.
34. BROKER'S COMMISSIONS. Other than Xxxxx Xxxxx of Xxxxx & Xxxxxx, Tenant
warrants that there are no claims for broker's commission or finder's fees in
connection with its execution of this Lease or the tenancy hereby created and
agrees to indemnify and save Landlord harmless from any liability that may arise
from such claim, including reasonable attorney fees.
35. INTERRUPTION OF SERVICES. With respect to any services furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to furnish
the same when prevented from doing so by strike, lockout, breakdown, accident,
or regulation of or by any governmental authority, or failure of supply, parts
or employees necessary to furnish such services, or because of war or other
emergency, or for any cause beyond Landlord's reasonable control, or for any
cause due to any act or neglect of Tenant or its servants, agents, employees,
licensees or any person claiming by, through or under Tenant, and in no event
shall Landlord ever be liable to Tenant for any indirect or consequential
damages.
36. SUBORDINATION. Upon the written request of Xxxxxxxx, Xxxxxx shall enter
into a recordable agreement with the holder of any present or future mortgage of
the Premises, Building or Lot which shall provide that (1) this Lease shall be
subordinated to such mortgage, (ii) in the event of foreclosure of said mortgage
or any other action thereunder by the mortgage, the mortgagee (and its
successors in interest) and Tenant shall be directly bound to each other to
perform the respective undischarged obligations of Landlord and Tenant hereunder
(in the case of Landlord accruing after such foreclosure or other action and in
the case of Tenant whether accruing before or after such foreclosure or other
action), (iii) this Lease shall continue in full force and effect, and (iv)
Tenant's rights hereunder shall not be disturbed, except as in this Lease
provided. The word "Mortgage" as used herein includes mortgages, deeds of trust
and all similar instruments, all modifications, extensions, renewals and
replacements thereof, and any and all assignments of the Landlord's interest in
this Lease given as collateral security for any obligation of Landlord.
37. MODIFICATION. In the event that any holder or prospective holder of any
mortgage, as hereinbefore defined, which includes the Premises as part of the
mortgaged Premises, shall request any provision directly related to the Annual
Rent, Additional Rent or other sums payable hereunder, the duration of the Term
hereof, or the size, use or location of the Premises, Xxxxxx agrees that Tenant
will enter into a written agreement in recordable form with such holder or
prospective holder which shall effect such modification and provide that such
modification shall become effective and binding upon Tenant and shall have the
same force and effect as an amendment to this Lease in the event of foreclosure
or other similar action taken by such holder or prospective holder or by anyone
calming by, through or under such holder or prospective holder.
38. MULTIPLE PARTIES. If Tenant shall consist of more than one person or if
there shall be a guarantor of Tenant's obligations, then the liability of all
such persons, including the guarantor, if any, shall be joint and several.
39. SUBMISSION NOT AN OPTION. The submission of this Lease for examination
and negotiation does not constitute an offer to lease, a reservation or, or
option for the Premises and shall vest no right in any party. Tenant or anyone
claiming under or through Tenant shall have the rights to the Premises as set
forth herein and this Lease becomes effective as a Lease only upon execution,
acknowledgment and delivery thereof by Landlord and Xxxxxx, regardless of any
written or verbal representation of any agent, manager or employee of Landlord
to the contrary.
40. FINANCIAL INFORMATION. It is hereby agreed that prior to the execution
of this document by Xxxxxxxx, Tenant shall furnish to Landlord, a financial
statement, credit references or similar documentation certifying Tenant's
financial standing.
41. CONTINGENCY. Notwithstanding anything contained herein to the contrary,
it is hereby understood and agreed that this Lease Agreement is contingent upon
the existing tenant executing a Termination Agreement by April 30, 1991, or an
extended date as mutually agreed upon by Xxxxxxxx and Xxxxxx in
writing. In the event the existing Tenant fails to execute such Termination
Agreement by this April 30, 1991, date, or said extended date, this Lease
Agreement shall become null and void and of no further force or effect.
42. FUTURE CONSTRUCTION. Xxxxxxxx agrees to perform the construction as
detailed on Exhibit "B-1", attached hereto and made a part hereof (hereinafter
referred to as the "Future Construction"), following Xxxxxxxx's receipt of
Tenant's written notice requesting same. Upon receipt of Xxxxxx's notice,
Landlord shall immediately apply to the Town of Norton for a building permit to
perform such Future Construction. Landlord agrees to use its best efforts to
fully complete such Future Construction within thirty (30) days following the
Town of Xxxxxx'x issuing such building permit; However, in the event Landlord
is delayed in completing such Future Construction and such delay is caused by
the inability of the Landlord's supplier to deliver the equipment in a timely
manner, then Landlord shall have such longer period of time as is necessary
under the circumstances.
Landlord hereby estimates the total cost of performing the Future Construction
at NINETY-ONE THOUSAND NINE HUNDRED SIX AND 00/100 ($91,906.00)DOLLARS. Xxxxxx
agrees to reimburse Landlord for same in accordance with the following schedule:
a. Tenant shall pay Landlord one-half (1/2) of the total cost of
such Future Construction, on the date it sends written notice requesting
Landlord perform the Future Construction.
b. Landlord shall amortize the remaining one-half (1/2) of such
Future Construction over the remaining Lease Term with an interest rate of ten
percent (10%). Prior to Landlord's commencement of the Future Construction,
Landlord and Tenant agree to enter into a mutually acceptable Amendment to this
Lease setting forth the amount, terms and conditions of such amortization.
Tenant hereby acknowledges that the cost of the Future Construction set forth
hereinabove is an ESTIMATE. Upon Xxxxxxxx's receipt of Xxxxxx's written notice
requesting Landlord to perform the Future Construction, Landlord shall re-
estimate the cost of the Future Construction and in the event the cost of same
is higher than the amount described hereinabove, then Tenant shall have the
option of (1) rescinding its notice to Landlord to perform the Future
Construction or (ii) paying Landlord for such higher amount.
Tenant hereby acknowledges that the Future Construction may interfere with or
interrupt Tenant's operations and use of the Premises; however, Landlord shall
use its best efforts to perform such Future Construction in a manner as to
minimize such interference or interruption of Tenant's normal business
operations. Xxxxxx further acknowledges that a "shut down" period may be
required to Tenant in order for Landlord to complete the Future Construction.
Tenant hereby agrees to cooperate with Xxxxxxxx in the scheduling for the
performance of such future Construction. Notwithstanding the foregoing, it is
hereby understood and agreed by the parties that in no event shall Tenant
receive an equitable abatement or reduction in Rent and/or Additional Rent as a
result of any interference, interruption or "shut down" in Tenant's business
operations as a result of landlord's Future Construction described hereinabove.
Notwithstanding anything contained in this Paragraph 42 to the contract, Tenant
must exercise its option for the Landlord to perform the Future Construction no
later than May 1, 1993, or this entire Paragraph 42 shall be deemed null and
void and of no further force or effect as of such May 1, 1993, date.
43. EARLY AGREEMENT. This Lease and the exhibits and any rider attached
hereto, set forth all the covenants, promises, agreements conditions,
representations and understandings, either oral or written between them other
than those herein set forth and this Lease expressly supersedes and proposals or
other written documents relating hereto. Except as herein otherwise provided,
no subsequent alteration, amendment, change of addition to this Lease shall be
binding upon Landlord and Tenant unless reduced to writing and sign by them.
Xxxxxx agrees that Landlord and its agents have made no representations or
promises with respect to the Premises, or the Building of which the Premises are
a part, or the Lot, except as herein expressly set forth.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease to be signed
in triplicate, under seal, as of the day and year first above written, one copy
for Tenant and two copies for the Landlord.
Witness as to Landlord: Landlord: Xxxxxx X. Xxxxxxx, d/b/a
The Flately Company
By Xxxxxxx X Xxxxxx
Its Senior Vice President
Authorized Agent
Witness as to Tenant: Tenant: TyLink Corporation
Xxxx Xxxxxxx Xxxxxxx Xxxxxxxx
SR VP Operations & Devel VP Finance
COMMONWEALTH OF MASSACHUSETTS )
) ss
COUNTY OF NORFOLK )
May 14, 1991
Then personally appeared Xxxxxxx X. Xxxxxx to me known to be the
individual who acknowledge himself to be the Senior Vice President/Authorized
Agent of the Flately Company, Landlord, and that he, as such, being authorized
to do so, executed the foregoing instrument and acknowledged the execution
thereof to be his free act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Norfolk
County, Braintree, Massachusetts, this 14th day of May, 1991.
Notary Public
Commission Expires 7/2/93
SECOND AMENDMENT TO LEASE
This Agreement made this 30th day of May, 1996, by and between Xxxxxx X.
Xxxxxxx a/b/a The Xxxxxxx Company (hereinafter referred to as LANDLORD), and
TyLink Corp. (hereinafter referred to as TENANT),
WITNESSETH:
WHEREAS, by a certain Lease Agreement May 14, 1991, as amended by a First
Amendment to Lease dated September 12, 1991 (hereinafter collectively referred
to as the "Lease"), XXXXXX leased to LESSEE, a certain premises described as
Norton Commerce Center , 00 Xxxxxxxx Xxx, Xxxxxx, XX 00000, consisting of
approximately 25,220 square feet of space, more particularly described therein
as ("Premises"), and,
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged each to the other, the above named parties do hereby agree to amend
said Xxxxx as follows:
1. The original Term of the Lease, which expires April. 30, 1996, is hereby
extended for a period of three (3) years, commencing May 1, 1996 and
expiring April 30, 1999, (hereinafter referred to as the "Extended Term").
2. Effective May 1, 1996, Paragraph I of the Lease, Incorporation of Basic
Data, namely Annual Rent, shall be deleted in its entirety and replaced
with the following:
shall mean the annual sum of ONE HUNDRED FIFTY-ONE THOUSAND THREE HUNDRED
TWENTY AND 00/100 ($I51320.00) DOLLARS, payable in equal monthly
installments of TWELVE THOUSAND SIX HUNDRED TEN AND 00/100 ($12,610.00)
DOLLARS, for the period commencing may 1, 1996, and Continuing through and
including April 30, 1997 of the Lease Term; and
the annual sum of ONE HUNDRED FIFTY-SEVEN THOUSAND SIX HUNDRED TWENTY-FIVE
AND 00/100 ($157,625.00) DOLLARS, payable in equal monthly installments of
THIRTEEN THOUSAND ONE HUNDRED THIRTY-FIVE AND 42/100 ($13,135.42) DOLLARS,
for the period commencing May 1, 1997' and continuing through and including
April 30, 1998 of the Lease Term; and
the annual sum of ONE HUNDRED SIXTY-THREE THOUSAND NINE HUNDRED THIRTY AND
00/100 ($163,930.00) DOLLARS, payable in equal monthly installment of
THIRTEEN THOUSAND SIX HUNDRED SIXTY AND 83/100 (13,660.83) DOLLARS, for the
period commencing May 1, 1998 and Continuing through and including April
30, 1999 of the Lease Term, payable in accordance with Paragraph 5 of the
Lease plus all other charges, amounts, reimbursements or other sums
(collectively "Additional Rent") to be paid by TENANT to LANDLORD in
accordance with Paragraph 6 and any other terms of the Lease calling for
the payment of money by Tenant to Landlord.
3. LANDLORD shall have sixty (60) days from mutual Lease execution to complete
LANDLORD'S Work as delineated on Exhibit "B-2", attached hereto and made a
part hereof. LANDLORD and TENANT acknowledge that TENANT is in possession
of the space at the Commencement Date of this Lease. LANDLORD shall
minimize interference with TENANT'S use of the Premises in performing
LANDLORD'S work and completing the punch-list items. XXXXXXXX and TENANT
agree while simultaneously performing work and set-up within the Premises
to work in harmony with each other.
TENANT is responsible for moving all furniture and equipment within the
Premises for LANDLORD to perform LANDLORD'S Work as described hereabove.
Notwithstanding anything contained herein to the contrary, in the event,
LANDLORD'S Work is delayed by TENANT for any reason, LANDLORD shall receive
one (1) additional day for each and every day that is needed to complete
the work,
4. Except where this Second Amendment to lease specifically changes same, all
other terms, conditions and covenants of the original Lease Agreement and
any Amendments thereto, shall remain the same, where applicable, and are
hereby reaffirmed.
5. The submission of this document for examination and negotiation does not
constitute an offer, and this document shall become effective and binding
only upon the execution thereof by both XXXXXX and XXXXXX, regardless of
any written or verbal representation of any agent, manager or other
employee of LESSOR to the contrary. All negotiations , consideration,
representations and understandings between LESSOR and LESSEE are
incorporated herein and the Lease and this Amendment expressly supersede
any proposals or other written documents relating hereto. The Lease and
this Amendment may be modified or altered only by written agreement between
XXXXXX and XXXXXX, and no act or omission of any employee or agent of
LESSOR shall alter, change or modify any of the provisions thereof.
IN WITTINESS WHEREOF, the parties hereto have signed and sealed this instrument
on the day and year first above written.
LESSOR Xxxxxx Xxxxxxx d/b/a
The Flately Company
BY Xxxxxx X' . Xxxxxxx
Its President
LESSEE TyLink Corp.
By
Its President
Duly Authorized
COMMONWEALTH OF MASSACHUSETTS )
SS.
COUNTY OF NORFOLK
June 4, 1996
Then personally appeared Xxxxxx X. Xxxxxxx to me known to be the individual who
acknowledged himself to be the President of The Xxxxxxx Company, XXXXXX, and
that he, as such, being authorized to do so, executed the foregoing instrument
and acknowledged the execution thereof to be his free act and deed for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Norfolk County,
Braintree, Massachusetts", this 4th day of June, 1996.
STATE 0F MASSACHUSETTS
COUNTY OF BRISTOL
23 May 1996.
Then personally appeared Xxxxxx X. Xxxxx to me known to be the individual who
acknowledged himself to be the President of TyLink Corp., XXXXXX, and that he,
as such, being authorized to do so, executed the foregoing instrument and
acknowledged the execution thereof to be his free act and deed for the purposes
therein contained.
WITNESS WHEREOF, I hereunto set my hand and official seal at Bristol County,
Norton, Massachusetts, this 23 day May, 1996.
Notary Public
my commission expires: 3/14/97
EXHIBIT "B-211"
Description of LANDLORD'S Work
1. LANDLORD to paint all walls including bathrooms and re-carpet all office
areas and common corridors within the Premises only; not to include warehouse.
