EXHIBIT 10.1
LEASE
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PARTIES:
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LEASE dated as of 28th day of July 1995, by and between W.D.P. Corp., a
Massachusetts Corporation with a usual place of business in the Commonwealth at
00 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx, (herein "Landlord") and
Dynasys System Corporation, a DELAWARE Corporation with a usual place of
business in the Commonwealth at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxxx (herein "Tenant").
W I T N E S S E T H
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PREMISES:
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1. (a) Landlord hereby leases to Tenant and Tenant agrees to lease from
Landlord, upon the terms and conditions herein set forth, 7,000 square feet of
space, including common areas, on the second floor of the commercial building
located at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx (herein the "Demised
Premises"), together with appurtenant rights thereto belonging, including the
use, in common with all others lawfully entitled thereto, of all parking areas,
common areas and entrances.
TERM:
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2. To have and to hold the Demised Premises for an initial term of
three (3) years unless sooner terminated as herein provided, commencing at 12:01
a.m. E.S.T. on the 1st day of September 1995 or if later, the date by which all
of Landlord's Improvements (as defined in Section 7 below) to the Demised
Premises are completed so as to permit the operation of Tenant's permitted uses
in the Demised Premises in accordance with law.
BASIC RENT:
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3. Tenant agrees to pay Landlord basic rent for the initial three year
term at the rate of Eight-Four Thousand ($84,000.00) Dollars per year which rent
shall be payable in advance on the first day of each month in equal monthly
installments of Seven Thousand ($7,000.00) Dollars.
4. If the said term commences or terminates on other than the first day
of any month, said rent shall be equitably apportioned. All rent, whether basic
or otherwise, shall be payable in lawful money of the United States to Landlord
at 00 Xxxxxxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx, or such other place as
Landlord may, from time to time, designate in writing to Tenant. In addition,
Tenant shall pay to Landlord the last month's rent, in advance, upon the signing
of this Lease. Tenant shall pay to Landlord a late charge equal to three (3%)
percent of any monthly installment not paid within fifteen (15) days of the due
date.
UTILITIES:
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5. Tenant shall, during the term hereof, pay for electricity consumed
on or in connection with its use and occupancy of the Demised Premises, provided
however, Tenant's liability for electricity hereunder shall be limited to a
total maximum annual liability of Seven Thousand ($7,000.00) Dollars, payable to
the Landlord as herebefore set forth, along with the basic rent, in monthly
installments of Five Hundred Eighty-Three Dollars and Thirty-Three ($583.33)
Cents. Tenants electrical use shall be reviewed on an annual basis, on the
anniversary of the commencement date, and if Tenants electrical use is less than
the above payments, Landlord shall provide Tenant with a credit based on actual
use.
CONDITION OF PREMISES, REPAIRS, MAINTENANCE AND CLEANING:
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6. (a) Tenant accepts the Demised Premises in the condition which they
are on the date of commencement of the term thereof, acknowledging that they are
in good order and condition and sufficient for the uses intended by Tenant.
Tenant agrees that it has had full and adequate opportunity to inspect the
Demised Premises and has done so to its satisfaction. Landlord has made, and
Tenant has relied on, no representations and warranties, whether express or
implied, as to the condition of the Demised Premises or their suitability for
Tenant's use other than those which may be specifically set forth in this Lease.
The Tenant shall not permit the Demised Premises to be overloaded, damaged,
stripped or defaced, nor suffer any waste. Landlord agrees to make such
improvements to the Demised Premises prior to the commencement of the Lease
term, in accordance with the plans and specifications agreed to by the Landlord
and Tenant.
(b) The Tenant shall perform such ordinary day to day
maintenance as shall be required to maintain the Demised Premises, in the same
condition they are at the commencement of the term, or as they may be put in
during the term of this Lease, reasonable wear and tear, damage by fire and
other casualities only excepted, and whenever necessary, to replace plate glass
therein at Tenant's expense, and acknowledging that said Demised Premises are
now in good order and glass whole. The Tenant shall not permit the Demised
Premises to be overloaded, damaged, stripped or defaced, nor suffer any waste.
(c) Landlord shall, at its sole cost and expense, maintain in
good repair and condition the Demised Premises, including, but not limited to,
repairs required due (i) to mechanical and utility systems, including without
limitation, all heating, plumbing, hot water, ventilating, electrical,
air-conditioning, security systems and elevators, of the Demised Premises, (ii)
to structural members of the Demised Premises including without limitation,
exterior walls, roof, foundation, supporting columns, and underground or
otherwise concealed interior or exterior structure, or (iii) any act, omission,
or default of Landlord's. Landlord shall make necessary repairs within a
reasonable period of time after Tenant has given Landlord written notice of the
need for repair. Landlord shall maintain in good condition all lawns and planted
areas, and keep in good repair, clean, neat, and free of snow and ice all
surfaced roadways, walks, and parking and loading areas.
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ALTERATIONS AND IMPROVEMENTS:
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7. (a) Tenant shall not make any alterations, additions or improvements
to the Demised Premises, except with the Landlord's written consent.
(b) Any and all alterations, additions or improvements to the
Demised Premises during the term of this Lease shall become the property of the
Landlord at the end of the Term without payment therefore by the Landlord.
(c) On or before September 1, 1995, Landlord shall, at
Landlord's sole cost and expense, complete construction of the build out of the
Demised Premises (the "Landlord Improvements"), in accordance with plans and
specifications approved by Tenant described on Exhibit B hereto. Landlord shall
promptly commence and prosecute with diligence the construction of the Landlord
Improvements in accordance with such plans and the terms and provisions of this
Lease, and shall have substantially complete the Landlord Improvements by
September 1, 1995. In the event that said improvements have not been completed
by September 1, 1995, despite Landlord's diligent efforts to complete same,
Landlord shall have up to an additional thirty (30) days to complete Landlord
Improvements. Landlord covenants that the Landlord Improvements shall be
constructed and performed using first-class workmanship and materials to comply
with all applicable laws, ordinances, orders, rules, regulations and
requirements, including, without limitation, those pertaining to zoning,
building, utility service, fire safety and all other applicable laws. During the
construction of the Landlord Improvements and until completion thereof, Landlord
shall obtain, at Landlord's sole expense, public liability insurance and
workmen's compensation liability insurance in reasonable amounts.
USE AND RESTRICTIONS:
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8. (a) Tenant may use the Demised Premises solely for commercial office
space. The Landlord represents that such use of the Premises will not violate
any restrictions imposed upon the Premises, and is not in violation of the
Certificate of Occupancy issued for the Premises nor contrary to any zoning
ordinance or regulation affecting the Premises.
(b) Tenant shall not use nor suffer or permit the use by any
person of the Demised Premises and its appurtenant rights for any purpose or in
any manner which is contrary to any applicable law or regulation and which may
constitute a nuisance or be offensive or which could cause injury or damage to
the Demised Premises.
(c) Landlord represents that the land and building comprising
the Premises are currently not in violation under any federal, state and/or
municipal codes, ordinances, zoning rules, and regulations.
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RULES AND REGULATIONS:
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9. Tenant shall, at its own cost and expense, subsequent to the
commencement date hereof, promptly comply with all present and future laws,
ordinances, rules and regulations of any duly constituted governmental authority
relating to the use or occupancy of the Demised Premises, provided that Tenant
shall not be required to make any alterations or additions to the structure,
mechanical and utility systems, roof or foundation of the Building on account
thereof. Tenant shall promptly pay all fines, penalties and damages that may
arise out of or be imposed because of Tenant's failure to comply with the
provisions of this paragraph. Landlord is responsible for making the Demised
Premises comply with all applicable provisions of Title III of the Americans
with Disabilities Act of 1990, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611
and the regulations adopted pursuant thereto at 28 C.F.R. Part 36. The parties
acknowledge and agree that the Demised Premises shall not be accessed by an
elevator.
INDEMNIFICATION AND LIABILITY:
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10. Tenant shall indemnify and hold Landlord harmless from any and all
claims for injury to persons or damage to property by reason of any accident or
happening on the Demised Premises unless caused by the fault or negligence of
Landlord or its agents, servants or employees. Tenant shall carry public
liability insurance in limits of at least $500,000.00 for injury or death to one
person, and $1,000,000.00 for injury or death to more than one person in the
same accident and $50,000.00 for damage to property. On the commencement of the
term of this Lease and thereafter not less than thirty (30) days prior to the
expiration date of the policies of insurance required by this paragraph 10,
Tenant shall deliver to Landlord copies of such policies or certificates of the
insurer with respect thereto reasonably satisfactory to Landlord, accompanied by
evidence of the payment of the premiums for the policies. Said insurance shall
name the Landlord as an insured, as its interest may appear. All.such insurance
policies shall provide that no cancellation thereof or material change therein
shall be made unless Landlord shall have been given twenty (20) days' prior
written notice thereof and that no act or omission by Tenant shall invalidate
such policies as they apply to Landlord. All insurance policies required to be
maintained under this lease may be blanket policies, provided such policies
reference and incorporate the obligations to insure hereunder.
FIRE AND EXTENDED COVERAGE INSURANCE:
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11. Tenant shall be responsible for providing fire and extended
coverage insurance for its own fixtures, equipment, furniture and possessions on
the Demised Premises.
TENANT'S FAILURE TO PERFORM:
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12. If Tenant shall at any time fail to pay any tax or assessment as
required in this Lease or to take out, pay for, maintain or deliver any of the
insurance policies provided for in this Lease or shall fail to make any other
payment or perform any other act on its part to be made or performed under this
Lease, then Landlord, after ten (10) days' notice to Tenant, except
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when other notice is expressly provided for in this Lease (or without notice in
case of an emergency), and without waiving or releasing Tenant from any
obligation of Tenant contained in this Lease, may (but shall be under no
obligation to):
(a) pay any tax or assessment so payable by Tenant; or
(b) take out, pay for and maintain any of the insurance
policies provided for in this Lease; or
(c) make any other payments or perform or cause to be
performed any act on Tenant's part to be made or
performed as in this Lease provided;
and may enter upon the Demised Premises for any such purpose and take all such
action thereon as may be necessary therefore.
MECHANICS' LIENS:
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13. Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished, or to be furnished, for the Tenant, except for
those improvements furnished by the Landlord as provided herein, and that no
mechanics' liens or other liens for any such labor or materials shall attach to
or affect the reversionary or other estate or interest of Landlord in and to the
Demised Premises. Tenant further agrees to indemnify and hold harmless Landlord
against any and all costs it may suffer on account of the same.
LANDLORD'S ACCESS:
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14. (a) Tenant agrees that Landlord, upon reasonable advance notice to
Tenant (or without notice in case of emergency), may enter upon the Demised
Premises at reasonable hours so as not to unduly interfere with the normal
conduct of Tenant's business (or at any time in case of emergency) for the
purpose of inspecting the same and making repairs and constructing additions
thereto as it may be required or permitted to do under the terms of this Lease.
(b) Landlord shall have the right, during the last six (6)
months of the lease term to place signs upon the Demised Premises indicating
they are for sale or for rent.
EXPIRATION OF TERM:
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15. (a) Tenant, at the expiration of the term hereof, or at any prior
termination as herein provided, shall peaceably yield up the Demised Premises
and all additions, improvements and alterations made thereupon in the same
condition and repair as the same were in at the commencement of the term hereof,
or may have been put in thereafter, reasonable wear and use, damage by fire or
other casualty, acts of God, acts of war and the enemy and acts of paramount
authority only excepted.
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(b) Tenant and those claiming by, through or under Tenant may,
at any time prior to the expiration of the term or prior termination thereof,
then or within a reasonable time thereafter not to exceed five (5) days, remove
its personal property, trade fixtures and any equipment installed by it from the
Demised Premises, provided that if such removal causes any damage to the Demised
Premises, Tenant shall promptly repair the same.
(c) Any property, fixtures or equipment of Tenant's remaining
on the Demised Premises after said five (5) day period shall be deemed abandoned
and may be removed and disposed of by Landlord as Landlord shall determine and
Landlord may charge the cost of such removal and any repairs or replacements to
the Demised Premises necessitated thereby to Tenant.
HOLDING OVER:
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16. In the event that Tenant or anyone claiming by, through or under
Tenant shall remain on the Demised Premises after the termination of this Lease
or any renewals, extensions or modifications thereof, it shall be deemed to be a
tenancy from month to month subject to all the terms and conditions hereof as
may be applicable.
ASSIGNMENT AND SUBLETTING:
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17. Tenant shall not transfer, sublet, assign, hypothecate or otherwise
alienate this Lease or Tenant's interest in and to all or any part of the
Demised Premises, nor shall Tenant grant any person any license or permission to
use the Demised Premises without Landlord's prior written consent on each
occasion.
SIGNS:
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18. No signs, billboards, posters or advertising material of any type
or description shall be erected or kept on the Demised Premises without the
prior written consent and approval of Landlord. Landlord agrees that Tenant may
have a sign posted at the building entrance on Route 9, subject to local codes
and regulations Tenant shall receive top billing on any sign posted at said
entrance.
DESTRUCTION BY CASUALTY:
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19. (a) If the Demised Premises are partially damaged or destroyed by
storm, fire, lightening, earthquake or other casualty, but are still usable by
Tenant for the conduct of its business in substantially the same manner as it
was conducted immediately prior to such damage or destruction, the basic rental
hereunder shall be equitably adjusted from the date of such damage or
destruction to take into account the value of any leased space lost as a result
of the damage or destruction. Said rental adjustment shall apply until the
damage is repaired or the destroyed areas are restored by Landlord to at least
as good condition as existed immediately prior to the damage or destruction, and
Landlord shall use due diligence to effect such repairs
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or restoration. Tenant shall have the right to terminate this lease by written
notice if Landlord fails to repair or restore the premises within sixty (60)
days. If the damage or destruction is so extensive as to render the Demised
Premises not suitable for the said conduct of Tenant's business, this Lease
shall terminate unless there are sufficient insurance proceeds available to
complete the repair or restoration to the condition of the building prior to the
damages or destruction, in which event, at Tenant's election by notice within
thirty (30) days thereafter, Landlord shall promptly commence repair or
restoration to render the said premises tenantable and shall proceed with due
diligence, to the extent of available insurance proceeds. During the period of
such repairs or restoration, the rent hereunder shall be abated in such
entirety, except to the extent Lessee is able to use the Demised Premises, in
which event the rent shall be adjusted to reflect such use. If the Landlord
fails to repair or restore the Demised Premises within sixty (60) days from the
event, Tenant shall have the right to terminate this Lease by written notice
within fifteen (15) days after the expiration of said sixty (60) day period or
of the failure (which shall then be continuing) by Landlord to diligently pursue
such repair or restoration, as the case may be.
(b) Tenant hereby irrevocably transfers, sets over and assigns
to Landlord all Tenant's rights in and to the insurance proceeds payable on
account of damage or destruction to the Demised Premises. If Landlord shall so
elect to repair or restore, Tenant shall immediately pay over to Landlord any
such proceeds which may be paid to it directly or to it and Landlord jointly.
EMINENT DOMAIN:
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20. (a) If the entire Building or Demised Premises shall be taken for
public or quasi-public purposes, then this Lease shall terminate as of the date
Tenant shall be required by law to vacate the premises and surrender them to the
authority making the taking.
(b) If such portion of the Demised Premises or the Building
shall be taken as to render the Demised Premises unsuitable for the continuance
of Tenant's business in substantially the same manner as the same was being
conducted immediately prior to such taking, then Tenant shall have the right to
terminate this Lease by giving written notice to Landlord within thirty (30)
days after receipt of Notice of Entry for purposes of effectuating the taking.
If the costs of repairing or restoring the Demised Premises after a partial
taking is more than fifty (50%) percent of their value immediately prior to such
taking, Landlord may, at its option, terminate this Lease by written notice to
Tenant within thirty (30) days after the date of the taking.
(c) If this Lease shall not be so terminated, Landlord shall
restore the Building with all reasonable dispatch to a complete architectural
unit as close as possible to the condition of the Building was in immediately
prior to said taking. Any provision of this subparagraph (c) to the contrary
notwithstanding, Landlord shall not be required to restore if Landlord's
mortgagees shall refuse to permit application of Landlord's condemnation
proceeds towards the costs of such restoration.
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(d) If the Demised Premises, or any part thereof, shall be
rendered untenantable and the Lease is not terminated, the rent herein reserved,
or a just and proportionate part thereof, shall be suspended or abated according
to the nature and extent of the taking from the date of such taking until the
Demised Premises are smaller than they were prior to the taking or the utility
thereof to Tenant otherwise diminished, the annual rent shall be equitably
reduced.
(e) In the event of any such taking, the proceeds thereof
shall be payable to Landlord or Landlord's mortgagee, if so required by the
applicable terms of the mortgage. Tenant shall have absolutely no right or
interest in any award except if awarded as otherwise provided by law. Tenant
hereby irrevocably appoints Landlord as its attorney in fact for purposes of
collecting any such condemnation award and dealing with all governmental
authorities with respect thereto. This power of attorney is coupled with an
interest and hence is irrevocable. By execution of this Lease, the Landlord does
not reserve to itself, and the Tenant does not assign to the Landlord, any
damages payable upon condemnation of trade fixtures or equipment installed by
the Tenant or maintained and owned by the Tenant whether or not such trade
fixtures or equipment are a part of the realty. It is also agreed and understood
that the Tenant does not waive any relocation benefits to which it is entitled
by reason of its status as a tenant in the event of any taking or condemnation
of any or all of the Demised Premises. Nothing herein shall prohibit the Tenant
from taking independent action against the condemning authority to recover any
other damage or cost to which it may be entitled.
(f) If Landlord shall be obligated to repair or restore as
aforesaid, and if the Demised Premises are not repaired or restored within four
(4) months after the date of such taking, then Tenant may, in addition to all
other rights and remedies it may have, terminate this Lease.
DEFAULT AND TERMINATION OF LEASE:
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21. If the rent herein reserved shall not have been paid when due, and
shall remain unpaid for fifteen (15) days after written notice, or other
obligations of Tenant under this Lease shall not be performed within fifteen
(15) days after notice by Landlord to Tenant thereof; or in the event that
Tenant shall be adjudicated a bankrupt or should a permanent receiver in
insolvency or permanent trustee in bankruptcy of Tenant be appointed and said
appointment shall not have been vacated within sixty (60) days, or should Tenant
make a general assignment for the benefit of creditors, or file a voluntary
petition for reorganization under the Bankruptcy Act, then Landlord may, in
addition to any of Landlord's other rights set forth elsewhere herein, (a) cure
any default or breach of warranty of Tenant hereunder, and perform any covenants
which Tenant has failed to perform, and any sums expended by Landlord in curing
such default or breach of warranty and performing such covenants shall be paid
by Tenant to Landlord immediately upon demand, and shall bear interest at the
rate of 1.5% per month from the date of demand; (b) bring suit to recover from
Tenant all sums due Landlord from Tenant together with reasonable attorney's
fees and interest thereon at the rate set forth above; (c) declare this Lease to
be terminated, and enter into the Demised Premises, using such force as may be
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necessary to do so and so to repossess and enjoy the said premises as of
Landlord's former estate, without being guilty of trespass, forcible entry,
detainer or other tort.
ADDITIONAL REMEDIES ON DEFAULT:
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22. Notwithstanding any termination pursuant to Paragraph 21 above or
any entry or re-entry by Landlord, Tenant agrees to pay and be liable for, on
the days originally fixed herein for the payment thereof, amounts equal to the
several installments of rent and any other charges herein reserved as they
would, under the terms of this Lease, become due if this Lease had not been
terminated or if Landlord had not entered or re-entered as aforesaid, and
whether the Demised Premises be relet or remain vacant in whole or in part or
for a period less than the remainder of the term, or for the whole thereof; but
in the event the Demised Premises be relet, in whole or in part, by Landlord,
Tenant shall be entitled to a credit in the net amount of rent received by the
Landlord in reletting the Demised Premises and in collecting the rent in
connection therewith. Tenant shall also be liable to Landlord for all expenses
(including reasonable attorney's fees) incurred by Landlord in enforcing its
rights under this Lease in the event of a default by Tenant and such expenses
may also be deducted from any credit due Tenant on account of any reletting by
Landlord.
ESTOPPEL CERTIFICATE:
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23. Upon not less than fifteen (15) days prior written request,
Landlord and Tenant agree, each in favor of the other, to execute, acknowledge
and deliver a statement in writing certifying that this Lease is unmodified and
in full force and effect (or, if there have been any modifications that the same
are in full force and effect as modified and stating the modifications), and the
dates to which the basic rent hereunder and other charges have been paid and any
other information reasonably requested. Any such statement delivered pursuant to
this paragraph may be relied upon by any prospective purchaser, mortgagee or
lending source.
SUBORDINATION AND RECORDING:
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24. This Lease shall be subject and subordinate to any mortgages)
hereinafter placed upon the Demised Premises; provided that Tenant receives a
so-called non-disturbance and attornment agreement, in form and substance
satisfactory to Tenant acting in a commercially reasonable manner from such
mortgagee.
BROKERS' COMMISSIONS:
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25. Landlord shall pay a brokers commission to ComVest Realty Service,
Inc., as agreed. Tenant represents and warrants that it has not dealt with any
other broker and agrees to indemnify and hold Landlord harmless, as aforesaid,
from any claims for any other brokers' commissions arising by reason of its
having dealt with such brokers.
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FAILURE OF APPROVAL:
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26. Wherever the consent or approval of either party to this Lease is
required, the same shall not be unreasonably conditioned, withheld or delayed.
WAIVER OF SUBROGATION:
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27. Landlord waives, discharges and releases all rights of recovery
against Tenant and its agents and employees for any loss or damage to property
of Landlord located on the Demised Premises or comprising a part thereof and
insured under valid and collectible insurance policies, to the extent of any
recovery actually collected under such insurance, provided that this waiver
shall only be operative with respect to loss or damage occurring during such
time as Landlord's policies of insurance contain a clause providing that such
waiver shall not affect or impair the policy and the Landlord's right to recover
thereunder. Tenant waives, discharges and releases and will require any
permitted subtenants or assignees to waive, discharge and release all rights of
recovery against Landlord and the agents and employees of Landlord for loss or
damage to property of Tenant or to the property of any subtenants located on the
Demised Premises and insured under valid and collectible insurance policies to
the extent of any recovery actually collected under such insurance, provided
that this waiver shall only be operative with respect to loss or damage
occurring during such time as Tenant's policies of insurance contain a clause
providing that such waiver shall not affect or impair the policy and the
Tenant's rights to recover thereunder.
Each of the parties agrees with the other party (1) that such insurance
policies as it may have in effect during the term of this Lease or any extension
or renewal thereof, shall, if the insurance carrier permits the inclusion of
such clause or endorsement in such policies, include a clause or endorsement
which provides in substance that the insurance company waives any right of
subrogation which it might otherwise have against Landlord or Tenant, as the
case may be, and (2) upon demand of the other party hereto, will reimburse the
other party for any extra premium costs incurred by the latter in obtaining such
clause or endorsement.
DISPUTES:
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28. It is agreed between the parties that if at any time a dispute
should arise as to the propriety or necessity of Tenant making any payment or
performing any obligations required hereunder, Tenant may pay or perform the
same under protest and such payment or performance under protest shall not be
considered to be voluntary on the part of the Tenant.
ASSENTS:
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29. No assent, express or implied, by one party to any breach of any
covenant or condition herein contained on the part of the other to be performed
or observed and no waiver, express or implied, of or failure by one party to
insist on the other's prompt performance or observance of any such covenant or
condition, shall be deemed to be a waiver of or assent to
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any succeeding breach of the same or any other covenant or condition and, except
as provided herein, any party may assert its rights and remedies hereunder
without any prior or additional notice to the other that it proposes to do so.
The payment by Tenant, and acceptance by Landlord of rent or other payment
hereunder or silence by either party as to any breach, shall not be construed as
waiving any of such party's rights hereunder unless such waiver is in writing.
No payment by Tenant or acceptance by Landlord of a lesser amount than shall be
due Landlord from Tenant shall be deemed to be anything but payment on account
and the acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon or upon a letter accompanying said check shall
not be deemed in accord and satisfaction and Landlord may accept said check
without prejudice to recover the balance due or pursue any other remedy which
may be available to it.
CUMULATIVE RIGHTS:
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30. Any and all rights and remedies which either party may have
hereunder shall be cumulative and the exercise of any one of such rights shall
not bar the exercise of any other right or remedy which said party may have.
NOTICES:
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31. Whenever in this Lease it shall be required or permitted that
notice, demand or other communication be given or served by either party to this
Lease or upon the other, such notice shall be deemed to have been duly given or
served if in writing and forwarded by a nationally recognized overnight delivery
service requiring a return receipt, postage prepaid, addressed to the party to
whom it is to be given or served,at his or its address first above written. Each
party may change its above address for purposes of notices by notice to the
other party in the manner hereinbefore provided.
ENTIRE AGREEMENT:
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32. This instrument contains the entire and exclusive agreement between
the parties and supersedes and terminates all prior or contemporaneous
arrangements, understandings and agreements, whether oral or written. This Lease
may not be amended or modified, except by a writing executed by Landlord and
Tenant.
CONSTRUCTION:
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33. In construing this Lease, feminine or masculine pronouns shall be
substituted for those of neuter form and vice versa and the plural for singular
and singular for plural in any place where the context may require.
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GOVERNING LAW AND SEVERABILITY:
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34. This Lease shall be governed by and interpreted in accordance with
the laws of the Commonwealth of Massachusetts. In the event any provision of
this Lease shall be determined to be invalid or unenforceable under applicable
law, such provision shall, insofar as possible, be construed or applied in such
manner as will permit enforcement; otherwise, this Lease shall be construed as
if such provision had never been made part hereof.
HEADINGS:
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35. The headings used herein are used only for convenience of reference
and are not to be considered a part of this Lease or to be used in deter-mining
the intent of the parties hereto.
BINDING EFFECT:
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36. This Lease shall be binding upon and inure to the benefit of all
administrators, executors, personal representatives, heirs, successors and
permitted assigns, including all permitted subtenants, of the parties hereto.
Each subtenant or assignee shall, as a precondition to Landlord's approval of
Tenant's subletting the Demised Premises or assigning this Lease, execute such
written instrument as Landlord shall reasonably require evidencing his agreement
to be bound by each and every term of this lease, provided that such an
agreement shall not, unless specifically provided, operate to release Tenant
from its obligations hereunder. Tenant represents and warrants that the person
signing this Lease on behalf of Tenant is authorized to so execute this Lease
and to bind the Tenant.
ENVIRONMENTAL MATTERS:
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37. The LESSEE will comply with all laws and regulations applicable to
the LESSEE pertaining to the protection of the environment from any
contamination and except as hereinafter provided shall be responsible for
correcting and hereby indemnities the Landlord against the cost of correcting
any situation which shall be determined by lawful authority to amount to
environmental contamination caused or permitted by the LESSEE. This obligation
shall survive the termination of the Lease. The LESSEE shall not be responsible
for any remedial action or expense necessary to correct any release of hazardous
materials, substances, or oil on the Premises or on the premises adjacent
thereto which took place prior to the date of the commencement of the Lease
term. The costs of any remedial action for any such prior release shall be borne
entirely by Landlord.
QUIET ENJOYMENT:
----------------
38. The Landlord covenants that, so long as the LESSEE is not in breach
of the terms and conditions of this Lease, the LESSEE shall peaceably and
quietly have, hold and enjoy the Premises for the term hereof, subject to the
provisions of this Lease.
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LANDLORD'S REPRESENTATIONS AND COVENANTS:
-----------------------------------------
39. Landlord hereby warrants and represents to, and covenants and
agrees with, Tenant as follows:
(a) The Demised Premises (including all parking) and the
related areas are and will be in good condition and repair, and all utilities,
including oil, electricity, telephone, water and sewer are sufficient to meet
Tenant's reasonable requirements for the permitted uses.
(b) The heating, ventilating and air conditioning ("HVAC")
serving the Demised Premises are and shall be sufficient to maintain
temperature, ventilation and humidity levels to Tenant's reasonable satisfaction
to permit Tenant to conduct its business in accordance with the terms of this
Lease.
LANDLORD'S DEFAULT:
-------------------
40. In the event Landlord shall fail to perform any obligation
specified in this Lease or if any material representation or warranty of
Landlord in this Lease shall be breached, then Tenant, in addition to and not in
limitation of any other remedies, may after the continuance of such default for
thirty (30) days after notice thereof by Tenant (provided that emergency repairs
which are Landlord's responsibility under this Lease may be made upon 25 hours'
notice to Landlord) on behalf and at the expense of Landlord, do all necessary
work and make all necessary payments in connection therewith, and Landlord shall
on demand, pay Tenant forthwith the amount so paid by Tenant, provided herein
nothing shall limit or condition Tenant's obligation to otherwise pay rent and
all other sums due Landlord, as provided herein.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first written above.
LANDLORD,
W.D.P. CORP.
By: /s/ Xxxxxxx X. Xxxxx, Pres.
----------------------------
TENANT,
DYNASYS SYSTEM CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
President & CEO
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GUARANTY
--------
In consideration of the letting of the Demised Premises above
described, Palomar Medical Technologies, Inc., a Delaware Corporation, with a
usual place of business in the at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000, the parent company of the Tenant, hereby guarantees the prompt and
punctual payment and the performance of all of the covenants of the Tenant in
the above Lease to be paid and performed by said Tenant, without requiring any
notice of nonpayment or nonperformance, or proof of notice or demand being made
in order to charge the Guarantor therefore. Guarantor represents and warrants
that the person signing this Guaranty on behalf of the Guarantor is authorized
to so execute this Guaranty and to bind the Guarantor.
IN WITNESS WHEREOF, the Guarantor hereto has set its hand and seal this
27th day of July, 1995.
PALOMAR MEDICAL TECHNOLOGIES, INC.
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------- -------------------------
Xxxxxxx Xxxxxxxx, Secr.
DS1-308339
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